Bartosz Jacek Marcinkowski v Woolworths Limited

[2015] FWC 3497

[2015] FWC 3497

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bartosz Jacek Marcinkowski
v
Woolworths Limited
(U2014/7199)

COMMISSIONER WILLIAMS PERTH, 29 MAY 2015

Termination of employment.

[1] This matter concerns an application made by Mr Bartosz Jacek Marcinkowski (Mr Marcinkowski or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Woolworths Limited (Woolworths or the respondent).

[2] The applicant was a Store Manager who was dismissed due to a failure to meet the inherent requirements of his role including multiple breaches of food safety policies and food safety standards on a number of occasions.

[3] At the hearing of this matter Mr Marcinkowski gave evidence on his own behalf and evidence for the respondent was given by the respondent’s Area Manager Mr Nick Shewring (Mr Shewring) and the respondent’s State HR Manager Supermarkets - WA Ms Peta Hartley (Ms Hartley).

[4] Considering the evidence the relevant facts in this matter are set out below.

[5] The applicant commenced employment in early 2006. Since that time he worked at a number of different stores.

[6] Mr Marcinkowski had been the Store Manager at Bennett Springs and in 2012 became the Store Manager at Kalamunda. The evidence is that in March 2011 due to non-compliance with the respondent’s procedures Mr Marcinkowski was responsible for stock losses resulting from a power outage worth over $40,000 and was formally interviewed and counselled as a result.

[7] I accept the evidence of Mr Shewring that he was advised by the previous Area Manager Mr Johnson that in part of his January 2014 performance review the applicant was advised he needed to be more accountable for issues raised within his store and needed to make his team more accountable for delivering a higher standard in the supermarket.

[8] During his time at Woolworth’s Mr Marcinkowski had completed numerous training courses on food safety and compliance. In the first week of April 2014 Mr Marcinkowski attended a two-day management course entitled “Coaching for high performance”.

[9] It is not disputed that the duties of a Store Manager required the applicant to:

• set and deliver high operational standards of cross merchandising, on shelf availability, food quality, safety and customer service;



• establish a safety culture to ensure safety is a priority;

• ensure all food safety issues are managed in a timely manner in accordance with legislation;



• build a high performance culture;



• develop and build a capability for store management; and



• ensure the team are engaged and committed to the business and feel pride and job ownership.

The Deli Manager’s performance

[10] In January 2014 Mr Marcinkowski placed the Deli Manager on a performance improvement plan. Mr Marcinkowski said she had been properly trained but apparently was unwilling to ensure the work in the deli was undertaken to the requisite standard. Shortly thereafter Mr Marcinkowski was absent from the store for four weeks. He did not take any steps to ensure that his replacement followed up on the performance improvement plan during his absence. When Mr Marcinkowski returned to the Kalamunda store in March and thereafter he did not follow up on the performance improvement plan of the Deli Manager.

[11] In mid March 2014 there was a food safety review conducted. Amongst other problems the review identified a number of food safety failings within the deli within the direct responsibility of the Deli Manager.

[12] Next a Business Review audit was conducted over three days ending on 4 April 2014 and this identified numerous failings across the store including in the deli area.

[13] Finally a follow-up food safety review was conducted on 29 April 2014 which identified problems still existed in the deli area.

[14] Being aware of this evidence that the deli area had not been meeting the required food safety standards over an extended period Mr Marcinkowski, through to the time he was suspended on 2 May 2014, did not take any further counselling or disciplinary action with respect to the Deli Manager’s performance.

Reviews and audits

[15] The food safety review mentioned above was conducted on 13 March 2014 by Mr John Vinci (Mr Vinci) who is a Food Safety Specialist for Woolworths. The purpose of such reviews is to ensure the appropriate food safety processes are in place and operational to reduce the risk to customers, of potential prosecutions and to the Woolworths brand.

[16] The review identified process breakdowns in a number of areas in the store requiring long-term action. It was noted that high risk areas identified on the day of the review were addressed with the store management and rectified.

[17] In summary the process breakdowns involved:

• failing to monitor and record the temperature of hot foods in the deli;



• a number of out of date stock on display including meat products, yoghurts and lentil burgers with which had mould on them;



• failure to comply with country of origin labelling requirements;



• not recording refrigerated products being kept below the required temperature; and



• not recording temperature device accuracy checks each month.

[18] A follow-up food safety review was conducted on 29 April 2014, more than six weeks after the original review. Mr Vinci’s second report again identified a number of food safety breaches. In the deli and seafood area problems were identified with food storage and handling, cleaning standards, food safety recording and that expired products were found on display in the deli area.

[19] I accept the evidence of Mr Shewring that the process and system breakdowns that this second review had identified were still apparent in the deli and seafood department were of high concern because of the potential health risk these posed to customers and consequently the risk of damage to the company’s brand.

[20] Over a three-day period between 2 and 4 April a Woolworth’s auditor Ms Tate undertook a Business Review audit of the store. The audit in summary found that the overall control of the environment was considered to be inadequate and required Management’s immediate attention.

[21] The audit being conducted over three days is very comprehensive and the report involves 22 pages of specific detailed findings across all areas of the store and functions within the store. The audit turns its attention to stock control, payroll and training, finance and administration and what is referred to as the environment.

[22] The environment section concerns the review of a range of matters and the report includes findings in significant detail which in summary identified that:

• temperature device calibration checking and recording had not been completed on a monthly basis as required;

• product temperature checks had not been recorded as completed in the food safety books as required;



• there were instances where the cleaning records indicated cleaning schedules had not been completed as required;

• inspection of food storage and handling identified a number of areas for improvement;



• cleaning standards were identified as needing to be improved in the seafood, service deli and produce departments;

• pre-start hygiene checks were not recorded as having being completed as they should be; and



• there were instances where the hygiene and compliance checks required had not been completed.

[23] The overall audit rating was 2/5. The audit report commented that the rating of 2 had been assigned to the stock control and environment sections due to breakdowns in the administrative controls, store and food safety requirements and legislative breaches.

[24] The evidence which I accept is that in terms of audit scores a score of 3 is not really acceptable and is a bare pass but a 2 is a lot more serious and shows a systematic breakdown of processes.

[25] In Western Australia there are nearly 90 Woolworths stores and each store is audited at least every three years. Mr Shewring having worked for the business for 19 years could not remember another store receiving an audit score of 2 however under cross-examination conceded that he had been told by the State Manager that the Albany store some time back did receive a 2 but this was not for food safety issues but rather invoicing processes and back of house concerns and the Store Manager resolved the issues within two weeks.

[26] Ms Hartley’s experience regarding store audits is that there is no excuse why a Store Manager wouldn’t achieve a 4 or 5 rating and in her 12 months in Western Australia the Kalamunda store was the only store that received a rating of 2. From her prior experience with Woolworths in Queensland she knew of only two occasions where stores in that state received a Business Review rating of 2 and as a consequence those scores both of the respective Store Managers resigned. In her words a rating of 2 is horrendous. It demonstrates absolute systemic breakdown in all policies and procedures.

[27] The seriousness of the concerns raised for the business when a store receives a Business Review rating of 2 is evidenced by the fact that it is a policy of Woolworths that if this occurs it is reported to the Woolworths Board of Directors for consideration at its next monthly Board meeting.

[28] The auditor Ms Tate during her visit to the Kalamunda store spoke to Mr Marcinkowski about the concerns she was identifying.

[29] At the time of the audit Mr Shewring discussed the audit findings with Mr Marcinkowski on the phone and forwarded another copy of the audit to him by email. I am satisfied that Mr Marcinkowski had received an email copy of the full audit report some time before 14 April 2015.

[30] Mr Shewring gained the impression that Mr Marcinkowski did not see the issues as particularly serious or urgent.

[31] On 14 April 2015 Mr Shewring and the WA State Manager Mr Lott met with Mr Marcinkowski at the store and discussed the serious failures identified in the audit. Mr Shewring’s observations of the store during that visit were that in particular the presentation of merchandise, its quality and the freshness of the product on show in the deli area was not acceptable. In addition the seafood department was smelly. His evidence was that if the cleaning practices and standards had been properly carried out it would be pretty much odour free.

[32] Mr Shewring felt it was necessary to assist Mr Marcinkowski put together an action plan to respond to the audit findings.

[33] The respondent temporarily transferred a Relief Manager to the Kalamunda store with the expectation that this would enable Mr Marcinkowski to implement the action plan to remedy the non-compliance issues identified in the audit.

[34] As explained above Mr Vinci’s second food safety review was then conducted on 29 April 2014, three and a half weeks after the Business Review audit had been completed. This second review identified the deli and seafood department as still having failures in food storage and handling, cleaning standards and food safety recording. Expired products had also been found on display in the deli area.

[35] In light of these findings of Mr Vinci, Mr Shewring considered that a number of weeks after the audit had been completed Mr Marcinkowski had failed to address the issues required of him and was showing a lack of urgency in actioning the necessary improvements. His evidence was that he would have expected any Store Manager to have resolved these problems by this time.

[36] Mr Marcinkowski denied he had not addressed these issues. His evidence was that this all occurred around Easter which is a busy period and that the temporary Relief Manager assigned to the store to assist him was a Manager in training and he had to spend time teaching him the respondent’s policies and procedures.

[37] Mr Marcinkowski’s evidence was that he did put in place action plans to resolve the failures identified in the audit but in any event he understood that there was supposed to be at least a three month period to implement changes.

[38] I note that the Business Review audit on the first page of what could be called a five-page executive summary states that “The overall control environment is considered to be inadequate and requires management’s immediate attention.” The conclusion on page three states that there will be a follow-up review and that “This review will occur within 3 to 6 months.”

[39] Mr Marcinkowski was interviewed on 2 May 2014 by Mr Shewring and Ms Hartley. The shortcomings identified in the audit were discussed and Mr Marcinkowski was asked to explain his views on this. The evidence of Ms Hartley and Mr Shewring which I accept is that Mr Marcinkowski was honest and open about these issues and generally conceded that he had could have done things better or differently but did not concede he had failed as a Store Manager. Mr Marcinkowski at this meeting was advised that disciplinary action resulting from his poor performance up to and including termination could follow.

[40] Mr Marcinkowski was advised he would be suspended on pay pending further investigations. A second meeting was scheduled for 6 May 2014.

[41] Shortly after 2 May 2014 Mr Shewring and a Human Resources Specialist Ms Covino visited the Kalamunda store and spoke to various staff regarding the audit findings. Their conclusion was that there was a lack of leadership from Mr Marcinkowski and the Assistant Store Managers and the audit results hadn’t been communicated effectively to department Managers. Further food safety breaches were identified during this visit including that there was a falsification of food safety books in the deli department and that cleaning standards in all departments were at a minimal level. There was also a lack of morale, standards and accountability within the store.

[42] Mr Shewring walked around the store and says he did not have to look too hard to find out of date product. He entered the deli cool room which had a distinct smell. There were multiple breaches of food safety in that area. Mr Shewring said the state of deli department was so poor he seriously considered closing it. He says they then took immediate action to remove all the food on display and that product was removed from sale and dumped.

[43] A meeting was arranged for 6 May 2014 which was attended by Mr Marcinkowski and again Mr Shewring and Ms Hartley. I accept that Mr Marcinkowski was offered the opportunity of having a support person present but he declined this. It was put to Mr Marcinkowski that he had not fixed the critical failings identified in the Business Review audit.

[44] Ms Hartley’s impression from the meeting was that Mr Marcinkowski had given up trying to fix the problems at the store. Her evidence which I accept is that Mr Marcinkowski said that it was too hard to fix the problems at Kalamunda and he deserved a second chance at another store that did not have the issues that needed to be rectified at the Kalamunda store and was closer to his home.

[45] The meeting adjourned and Ms Hartley and Mr Shewring discussed the matter. They considered demoting Mr Marcinkowski to the position of Assistant Manager however that was decided as inappropriate because he had not displayed the necessary leadership skills. Demotion to a Store Assistant role was also considered however the evidence of Ms Hartley is that Mr Marcinkowski had indicated that he could not survive on the lower salary.

[46] They say they had consideration for the significant training Mr Marcinkowski had received and the performance review from January 2014 which identified that improvement was required in some areas and the previous disciplinary action regarding an incident at the Bennett Springs store which resulted in a $40,000 stock loss to the respondent. Considering all of this and the failings of Mr Marcinkowski it was decided that it was appropriate that he be terminated.

[47] The meeting was reconvened and Mr Marcinkowski was advised that his employment would be terminated on the grounds of unsatisfactory performance and that he would be paid four weeks’ pay in lieu of notice of termination.

Valid reason

[48] Mr Marcinkowski had failed to ensure that all of the departments within his store were compliant with the respondent’s requirements. The evidence is that the store under his management did not meet the requirements of the food safety policies of Woolworths nor the applicable food safety legislation. Mr Marcinkowski had been provided with detailed information from a food safety review followed by a broader Business Review audit. These and another food safety review all specifically identified areas in the store which were non-compliant with respect to food safety and various other requirements. Mr Marcinkowski had a number of weeks within which to remedy at least the most urgent and critical of these areas of non-compliance identified in the first food safety review and the audit within the store but failed to achieve this.

[49] Mr Marcinkowski’s performance was unsatisfactory firstly in having allowed the standards at the store to decline to the point where it received such a low audit score that it did. His performance was also unsatisfactory in his failure to remedy the most critical of these deficiencies within a reasonable period of time. There had not been any significant improvement after the first food safety review. Nor had there been significant improvement after the Business Review audit as evidenced by the findings of the second food safety review and the observations of Mr Shewring when visiting the store in early May 2014. The explanation by Mr Marcinkowski that he should have been allowed three months to fix these deficiencies demonstrated a concerning lack of appreciation that some of the audits findings warranted urgent remedial action being taken. The fact the audit stated a follow up review was to be conducted in three to six months was not a license to wait for this period to fix the problems.

[50] The explanations that Easter was a busy time and that the Assistant Manager provided so he had more capacity to fix the problems needed to be supported by Mr Marcinkowski do not explain how the store was allowed to decline to the point that it only scored a 2 on the audit in the first place nor are they acceptable explanations for his failure to have remedied at least the most critical issues identified in the first food safety review and later the Business Review audit, weeks after he was made aware of these.

[51] Separately Mr Marcinkowski’s failure to properly follow through on the performance management of the Deli Manager is another instance of unsatisfactory performance.

[52] Mr Marcinkowski’s unsatisfactory performance was a valid reason for his dismissal.

Notification of the reason

[53] In two meetings Mr Marcinkowski was notified of the reason the employer was considering dismissing him.

Opportunity to respond

[54] In both meetings Mr Marcinkowski did have an opportunity to respond to the reason the employer was considering dismissing him and provided his response.

Support person

[55] There was no unreasonable refusal by the respondent to allow the applicant to have a support person present during the discussions relating to his dismissal.

Warnings

[56] The respondent did not warn Mr Marcinkowski that failure to promptly remedy the critical areas of non-compliance identified in the audit could lead to his dismissal.

Other matters

[57] The applicant has been employed for approximately eight years.

[58] The applicant does not have an unblemished record over that time. In March 2011 Mr Marcinkowski was formally counselled because his failure to follow proper procedure resulted in a stock loss of over $40,000 whilst he was the Store Manager at Bennett Springs.

[59] In his January 2014 performance review Mr Marcinkowski was advised by the then Area Manager Mr Johnson that he needed to be more accountable for issues raised within his store and needed to make his team more accountable for delivering a higher standard in the supermarket.

[60] Mr Marcinkowski sought to introduce into evidence a food safety review of the Kalamunda store that was conducted in August 2014 a number of months after his dismissal. The respondent objected to that on the basis that it had been improperly obtained by Mr Marcinkowski by him continuing to use the respondent’s email system months after his dismissal when he was no longer authorised to do so.

[61] I agree with the respondent that Mr Marcinkowski should not have continued to use the respondent’s email system after his dismissal. However I think this is not a matter that needs to be determined in the sense of the Commission deciding whether or not to consider the August 2014 report at all. This is the case because I do not accept that this report in any way exonerates Mr Marcinkowski.

[62] The evidence of Mr Shewring which I accept is that whilst the August 2014 food safety review still identified some non-compliance at the store there had been significant improvements made since Mr Marcinkowski’s dismissal and the dismissal of the Deli Manager which occurred around the same time. These improvements had been achieved in the context that after his dismissal a new senior team had to be found, put together and placed into the Kalamunda store to deal with the situation. Naturally these new Managers did not have the same familiarity with the store nor the established relationships Mr Marcinkowski had with the store’s staff and so the improvements this new team has made took longer than Mr Marcinkowski should have required had he similarly acted to make the same improvements working with his well-established team in the store he had managed for two years.

Conclusion

[63] Considering the matters the Commission must take into account which have been dealt with above the only matter that suggests the dismissal could be viewed as having been harsh, unjust or unreasonable is the fact that Mr Marcinkowski had not been warned by the respondent that not promptly remedying the critical areas of non-compliance could lead to his dismissal. All the other criteria that the Commission must consider demonstrate that the dismissal was neither harsh, unjust or unreasonable.

[64] The significance of the fact no warning about unsatisfactory performance was given must be considered in the particular circumstances of the matter. The relevant circumstances here are that Mr Marcinkowski was the Manager of the store and as such was a senior member of the respondent’s staff. The applicant had been employed with the respondent for approximately eight years and had been a Store Manager for over two years. The applicant was aware that it was a critical part of his responsibilities to ensure that food safety standards and other standards are maintained within the store. The applicant understood the seriousness of not meeting the required food safety standards.

[65] Considering these circumstances objectively it could be expected that a Store Manager would understand, that a repeated failure to ensure the respondent’s standards are maintained, particular food safety standards, would lead to his dismissal. I do not accept that an experienced Store Manager needed to be given a formal warning about this. The applicant at least from the time of the Business Review audit in early April 2014 was aware of the seriousness of the problems 1. This was reinforced shortly afterward in a meeting with the State Manger of Woolworths at the store2. The applicant was aware of the seriousness of the situation and he was very concerned about the findings of the audit. It is reasonable to conclude any such Store Manger would appreciate that if they did not fix these issues their job would be in jeopardy. In all the circumstances here the fact there was no warning about the applicant’s unsatisfactory performance before the dismissal does not make the dismissal harsh, unjust or unreasonable.

[66] In this case there was a valid reason for Mr Marcinkowski’s dismissal. His unsatisfactory performance was serious and involved an ongoing failure by him to discharge his responsibilities as a Store Manager over an extended period which resulted in his store being given such a poor audit score that this was reported to the Board of Directors of Woolworths. Subsequently his failure over a number of weeks to remedy the most critical areas of non-compliance identified in the first food safety review and identified again in the audit resulted in others having to take urgent action within the store because of the parlous state of the deli department in particular.

[67] The dismissal of Mr Marcinkowski in all of the circumstances was not harsh, unjust or unreasonable. His dismissal was not unfair. Consequently this application will be dismissed and an order to that effect will be issued.

COMMISSIONER

Appearances:

B Marcinkowski on his own behalf.

A Talbert of Sparke Helmore Lawyers for the respondent.

Hearing details:

2015.

Perth:

February 27.

Final written submissions:

Applicant, 14 April 2015.

Respondent, 23 March 2015.

 1   Transcript at PN104 to PN110

 2   Ibid., at PN85 to PN88

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