Clinton Harding v TJRR Pty Ltd
[2022] FWC 3007
•11 NOVEMBER 2022
| [2022] FWC 3007 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Clinton Harding
v
TJRR Pty Ltd
(U2022/7105)
| DEPUTY PRESIDENT LAKE | BRISBANE, 11 NOVEMBER 2022 |
Application for unfair dismissal remedy – small business employer – summary dismissal – whether employer complied with Small Business Fair Dismissal Code – whether employee conduct constituted serious misconduct – application dismissed.
Mr Clinton Harding (the Applicant) brought an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he contended that he had been unfairly dismissed by TJRR Pty Ltd (the Respondent).
The Applicant commenced working as a baker for the Respondent on 5 November 2021 when the current owner took over the business from the Applicant’s parents who had run the business for many years prior. The Applicant was the head baker and made pies, pastries, and ran the kitchen work area. He had been working in this role many years prior when his parents owned the business. He was a permanent staff member along with five other employees at the café.
On 29 June 2022, the Applicant was notified that by the way of serious misconduct, his employment was summarily terminated.
Preliminary matters
Section 396 of the Act requires that I decide four matters before considering the merits of the Applicant’s application. Neither party disputed that the Applicant made his application within the 21-day period required by s.394(2) of the Act, that he was a person protected from unfair dismissal, as he earned less than the high-income threshold,[1] or that his dismissal was not a case of genuine redundancy. I am satisfied that the three matters referred to in s.396(a), (b), and (d) are satisfied.
The issue before me is whether the dismissal of the Applicant was consistent with the Small Business Fair Dismissal Code (the Code). The Respondent says it was, but the Applicant disagrees.
Dismissal under the Code
The dismissal of an employee will not be unfair if it was consistent with the Code.[2] Section 388 of the Act provides:
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
It was uncontentious that the Respondent, notwithstanding its associated entities, had less than 15 employees and was therefore a “small business” within the meaning of s.23 of the Act.
Legal framework
The Code provides that:
“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.”
In the present case, if the Applicant’s employment was terminated because the Respondent reasonably believed that he had engaged in serious misconduct, the corollary is that the Respondent was entitled to summarily dismiss him. If that is so, the application fails. If, however, the Applicant’s conduct fell short of serious misconduct, I must consider whether there was a valid reason for the Applicant’s dismissal and whether he was afforded the usual requirements of procedural fairness.
Both matters were dealt with at a hearing before me on 1 November 2022. The Applicant appeared on his own behalf and gave evidence supported by his sister, Ms Benita Harding. Ms Tamara Zeller, the Respondent’s owner and director appeared for the company.
Background
The Respondent’s evidence was that the Applicant had been baking at the café for many years prior to Ms Zeller buying the business. She offered the Applicant a role as a baker in her business. He accepted on terms that were amenable to him and continued baking breads and pastries for the Respondent. The Respondent was subject to a random inspection by the Brisbane City Council food authorities and as a result of a number of critical findings, the café was closed until the requisite cleaning and corrections to food handling occurred. The Respondent then undertook a deep clean of the food handling areas in an effort to comply with the requisite standard. The Applicant participated for several days until 21 June 2022. He was told by the owner to take a break for a couple of days and then was asked to attend work on 29 June 2022, when he was told that he had been terminated and was provided with a separation form.
Ms Zeller said that she did not terminate the Applicant out of malice, nor was it done lightly, but the baking area of the café which the Applicant had responsibility for was well below the required food hygiene standards. The flour had been stored next to meat and on the floor and he as the Baker had responsibility for food handling and preparation. As a result of his neglectful and lackadaisical approach to work, the café was now closed and at risk of not opening until there had been a thorough clean of the café.
Events leading up to termination
The Respondent was known as Tilley’s Café and had been operated by the Applicant’s parents for a significant number of years. Ms Zeller took over on 5 November 2021 and offered the Applicant a role as baker in the café. The café continued to trade as Tilley’s Café.
An audit was conducted by the Brisbane City Council on the 16 June 2022. The findings are extracted below:
“Critical non-compliances at time of inspection:
Opened flour bags in back kitchen.
Raw mince stored in plastic container with packaged breadrolls in cold room.
Bagged dough stored on the floor in cold room.
Evidence of rodent activity, large amounts of mouse droppings inside kitchen along 3 walls of the back kitchen including next to back
door, behind bread slicer, and underneath shelves and benches.
Major non-compliances at time of inspection:
Large amounts of mouse droppings inside kitchen along 3 walls of the back kitchen including next to back door, behind bread slicer,
and underneath shelves and benches.
Steel tray food racks inside cold room and in kitchen have accumulation of grime.
Cold room fan grills unclean, accumulation of visible matter.
Miscellaneous items stored inside kitchen and in unused fridges including paint tins, electrical cords, containers, etc. Premises unable
to be easily cleaned.
Accumulation of mould and visible matter around under bench fridge in pizza area.
Maintenance tools stored in cupboard under hand wash basin in servery area, no access to clean or site for pests.
Minor non-compliances at time of inspection:
Hole in wall behind storage shelves rack on left of wash up sink.
Two broken light diffusers on ceiling.”
The Environmental Officer who attended the site indicated that they would issue an improvement notice. However, on discussing the matter with a senior officer, a decision was made by the Brisbane City Council to close the Respondent until the requisite issues were addressed.
The Applicant attended work for four days following the closure of the café and was involved in the rectification of a number of the issues that had been identified. The Respondent then requested the Applicant not to attend work for two days, during which the Respondent continued to clean and address the list of issues. The services area issues were rectified during a 48-hour period. However, to meet the standards of the food business licence, a further nine days of cleaning were required which included the baking area, baking equipment, and intense cleaning of the oven.
Ms Zeller states that she held the Applicant responsible for maintaining a clean and safe food compliant area of work and that his disregard of the requirements had resulted in the closure of the business and failure of a food safety audit.
The Applicant says that the business had previously had an audit in October 2021 and that had resulted in the issuing of an improvement notice which identified cleanliness and maintenance issues to be addressed by the owners. The Applicant says that the issues identified in June 2022 were not his responsibility and other staff were also responsible for the shortcomings in the audit.
Ms Zeller asserted that as the cleaning began, following the audit, it became apparent how significantly the Applicant had fallen short in his obligations regarding food safety and workplace hygiene. The Respondent reflected upon the very poor standard and whilst addressing the cleaning required to regain the licence, it identified much of the baking equipment was in a deplorable state requiring excessive cleaning and in some cases, the trashing of the baking trays and bread tins that were beyond repair or cleaning.
The Respondent after cleaning the baking area and associated equipment to return the area to the required standard then considered the role the Applicant had in failing the requirements to maintain and operate the baking area to a food safe standard. The Applicant had been working in this area for many years prior to Ms Zeller purchasing the business and as an experienced baker, the Applicant should have ensured the equipment, the storage of food, and the cleanliness of the workplace met all the health and safety standards.
Ms Zeller contends that she had only been made aware of undated product and minor cleaning details. However, it was also identified that there were major breaches where food was stored on the floor and bread and raw meat were stored together in the cold room. Ms Zeller stated that she had multiple conversations with the Applicant regarding keeping his area tidy and food off the floor. As the Applicant was making most of the food products for sale, she held him accountable for the breaches of food safety in his area.
As the baking area and the products were solely for the goods produced for sale at the café it was a significant part of the business. In spite of some of the health and safety issues being outside of the remit of the baker, such as the service areas of the café, the baking operations were a central and significant area of the café and for the café to be closed as a result of the critical health breaches in the baking area meant that in Ms Zeller’s mind, the Applicant had committed serious misconduct regarding the occupational health and safety standards which warranted summary dismissal.
Ms Zeller maintained that she had frequently discussed with the Applicant the requirements of cleanliness in his work area.
Ms Zeller called the Applicant to come in on 29 June 2022 and immediately indicated that he was no longer working at the premises and gave him a separation certificate.
Ms Zeller stated that the business did reopen on 30 June 2022, some eleven days following the closure. However, they did not have a baker and she is currently sourcing baked goods from external kitchens.
Consideration
To establish that the Respondent summarily dismissed the Applicant in accordance with the Code, the Respondent must demonstrate that the Applicant was dismissed without notice or warning and that the Respondent believed on reasonable grounds that the conduct was sufficiently serious to justify immediate dismissal.
The Applicant was not provided any warning regarding the termination. The Respondent had formed the view reasonably that the Applicant in his role as the head baker and the only employee that utilised the workspace and the baking equipment was responsible for the requisite standard of hygiene and complying with the food and health and safety standards.
The closure of the business by the Brisbane City Council was a significant indication that the café and more particularly the kitchen had failed to meet the requirements of the health and safety standards. This was dramatic and tangible action by the Council and the Respondent held the baker responsible for the key breaches.
The Respondent formed the view that the Applicant, by not operating the kitchen to the required health and safety standard, was seriously neglectful and his actions or inaction regarding hygiene warranted immediate dismissal.
In weighting the matter, I have formed the view that the Respondent held a reasonable belief that the Applicant’s misconduct was serious and as there was a breach of health and safety laws in the baking area, that it did warrant summary dismissal.
I did turn my mind to whether the Applicant truly believed that he was not responsible for the breaches, and he had been undertaking his work diligently and in the same way he had been working for the previous years under his parents’ management. It may have been that under the previous management that the approach to work had been less disciplined and the audits by the Council had not identified the same matters, or possibly the Applicant had let his standards slip under new management and as he no longer was responsible to his parents felt less motivated to approach his work with the diligence he should have. In any event, the Council did identify critical breaches and they were in his area of responsibility, he was not a new employee, and the Respondent formed an entirely reasonable view that the Applicant had through his misconduct caused the business to be closed for a temporary period.
The Code states that, “serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures”. In this matter, there was a serious breach of the health and safety standards, and the Applicant was held responsible for a major part of the business, the kitchen area.
Having considered the evidence and submissions made by each party, I am satisfied that the Respondent reasonably believed that the Applicant engaged in serious misconduct warranting summary dismissal.
Accordingly, I order that the jurisdictional objection be upheld, and that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) s.382.
[2] Fair Work Act 2009 (Cth) s.385.
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