Cullam Silby v Burger Urge Pty Ltd
[2022] FWC 2426
•14 SEPTEMBER 2022
| [2022] FWC 2426 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cullam Silby
v
Burger Urge Pty Ltd
(U2022/5469)
| COMMISSIONER SIMPSON | BRISBANE, 14 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
On 17 May 2022, Mr Cullam Silby (Mr Silby/ the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Burger Urge Pty Ltd (Burger Urge/ the Respondent).
The matter was listed for a conciliation before a Commission Conciliator on 20 June 2022 but did not settle. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 4 July 2022. The matter was listed for hearing on 19 August 2022.
The matter was conducted as a determinative conference by telephone. The Applicant represented himself, and the Respondent was represented by Mr Nathan Bryant (Mr Bryant), Chief People Officer at Burger Urge.
The Respondent is not a small business employer, and there are no other jurisdictional issues.
EVIDENCE AND SUBMISSIONS
The Applicant was employed with Burger Urge on a part-time basis from 24 May 2021 until the termination of his employment on 5 May 2022. Ms Renee Watson had filed a statement in support of the Applicant’s case, however was not available to give evidence.
The Applicant did not file a witness statement as such, however provide oral evidence on oath. Mr Bryant provided a statement filed on 10 August 2022,[1] and also adopted the answer to question 3f of the Respondent’s Outline of Argument as his evidence[2]. Ms Uzma Sheereen[3] and Ms Shana-Lea Post[4] (Burger Urge Training Manager and temporary Venue Manager of Burger Urge Dubbo) also provided witness statements.
The Scooter Incident
On 30 April 2022, the Applicant reported that his Motor Scooter/Bike (Scooter) was involved in an attempted theft. The Applicant said he parked it under the building where he worked and when he returned to his Scooter after work, he had to ring the police as someone had tried to ‘jimmy’ the lock. He said he rang a tow truck but they could not get under the building to the carpark. He said this occurred at about 11.30pm on the Saturday evening. The Applicant stated that he was unable to move the Scooter from the underground carpark as a result of the attempted theft. The Scooter was then stolen and taken for a ‘joy ride’ the following day on 1 May 2022. The police contacted the Applicant to inform him the Scooter had been found in a state of disrepair.
The Applicant submitted that the Scooter was his only form of transport and that he was required to attend the Police Station to file reports. It was for this reason, the Applicant stated that he was unavailable to attend his rostered shift.
The Applicant provided photos of his Scooter in a damaged state. The Respondent did not contest what the Applicant said in relation to his Scooter.
Absent from Work
At approximately 4:26 am on Sunday 1 May 2022, the Applicant sent a message in a Facebook message group between other employees of the Respondent as follows:
“Hey I know it’s early is anyone with eod access be able to do my close I need to sort out this stuff with my bike out with the police tomorrow and don’t know how it will go. I’m happy to trade shifts with you and or anything to help you out.”
Mr Silby stated that employees regularly used this Facebook message group to, among other things, find cover for shifts that they would not be able to fulfil. The Applicant stated that in the past he had been directed to use this group to find coverage. Mr Silby said during his oral evidence that Stacey Matthews (Ms Matthews) had told him to use this for any messages during his shifts. Mr Silby claimed he tried to ring the store that day and spoke to Ms Watson.
Mr Bryant said Ms Matthews was a former Area Manager and he said he did not know whether Ms Matthews would have told Mr Silby to use this message group, however he said staff training is that you must ring your manager, and the Manager of the Dubbo Store at the relevant time being Ms Post, said she was unaware of this message group.
The Respondent submitted that this form of communication was not supported nor encouraged by the Respondent and that employees, including the Applicant had been trained on the authorised process in advising that that they would not be able to fulfil their rostered shifts. Mr Bryant confirmed his view that the Facebook Message Group had no official status and it is not monitored by the Respondent, and while he is aware staff at some stores have them, the Respondent does not support them as anyone can be in the Group. He said the Respondent supports email, phone or text to the employees listed mobile or on the on-boarding platform Tander. Mr Bryant said Tander is the time and attendance software and it is how staff sign on or off and apply for leave, and it talks directly to the Respondent’s payroll software.
Mr Bryant said that a communication through Tander gets sent to the Tander App similar to a text message, and the administrator can then see from their end what the message is. Mr Bryant said the appropriate course for Mr Silby was for him to ring the manager. He said that the training platform is called World Manager and the portal on World Manager is called School of Sauce, and Mr Silby has completed his training module as provided by the Respondent. The Training Module states that an employee must call their manager and cannot call in sick by SMS, Facebook or any other means. Mr Silby said he remembered doing courses but could not remember this specific course, however he did not contest he did the training.
Mr Silby said Ms Matthews’ process was to get staff to put it through the Facebook page and try and get coverage for shifts and if there were any issues, to message the group chat and ring the store as well. Mr Silby said he thought that the way Ms Matthews was running it was how it was done. Ms Post gave oral evidence that she knew that perhaps the store had a Facebook group chat but she was not in it at the time. Ms Post said if someone were sick, they would call her or call the store. Ms Sheereen supported the evidence of Mr Bryant and Ms Post. Ms Sheereen said she was not part of any Facebook Messager group.
The Respondent submitted that the Applicant’s message was also unclear, given that the message requested if anyone could fulfil the shift ‘tomorrow’ which would be Monday 2 May 2022. Mr Silby conceded that the message was intended to request coverage for his shift that same day, being Sunday 1 May 2022. Mr Bryant said in his oral evidence that Mr Silby was not rostered to work on the following day being Monday 2 May.
Mr Silby said that the idea behind the text was to get someone to replace his shift that day and he would swap with another staff member. Mr Silby’s evidence was that when he sent the message early on Sunday he was referring to the Sunday, and his reference to tomorrow should have been today.
Mr Silby said that his interview with the Police was to be the Monday. I asked Mr Silby if he was not meeting the Police until the Monday why couldn’t he work on the Sunday. He said when the message was sent he was trying to organise someone else to pick up his Scooter and it was meant to be picked up that day and taken to the Police for finger printing. Mr Silby said the Scooter could not be moved and he did not know anyone who could help move it and the steering wheel was locked. Mr Silby said that it looked like someone had used a screw driver to try and ‘jimmy’ the lock.
I asked Mr Silby how the Scooter was eventually moved. Mr Silby said someone ripped the front off the Scooter the next day (I understood to mean on the Sunday) and took it joy riding and left it out the front of the carpark. It was then able to be towed to the Police Station. Mr Silby said the Police told him a witness had seen two people riding the Scooter. He said the Police took the Scooter to their lot and checked the VIN number and license plate and called him at 10am in the morning and told him that the Scooter had actually been stolen. Mr Silby said the second incident in relation to the Scooter happened on the Sunday night.
The Applicant stated that he spoke with a Ms Watson to inform that he would not be able to fulfil his shift. Ms Watson was not in attendance at the determinative conference and could not be examined. Ms Watson’s letter to the Applicant says that she spoke with the Applicant on 3 May 2022 and that she had discussed this with the Manager. Mr Bryant said in response to Mr Silby’s claim that he spoke to Ms Watson at the store on 1 May that was impossible as Ms Watson was not on shift that day, and Ms Post said was on shift that day and did not see Ms Watson.
Mr Silby said in response to this evidence of Mr Bryant, he did remember ringing Ms Watson but was now not sure what day he spoke to Ms Watson. Mr Silby agreed there would have been no point to ring and speak to Ms Watson after 1 May. Mr Bryant said Ms Watson was not rostered on until Tuesday 3 May 2022. Mr Silby in his oral evidence appeared to accept that the phone call he claimed to have made to Ms Watson was not made until Tuesday 3 May. He said the purpose of the call was to let her know that the Scooter had been damaged and he had to provide a witness statement about it.
I am satisfied on the basis of the evidence Ms Watson was not at the Respondent’s premises on 1 May 2022 and therefore could not have taken the call from Mr Silby on that day, and if he spoke to Ms Watson at all it would not have been until the Tuesday 3 May at the earliest.
On 1 May 2022 Mr Silby did not attend the workplace for his rostered shifts. Ms Post was the Manager in the store on this day.
When Ms Post became aware that the Applicant did not attend the workplace at his rostered start time she was informed by the Team Leader present that the Applicant had posted in the message group requesting his end of day (EOD) shift be covered. The Team Leader advised that she believed that the Applicant would still attend for the afternoon shift but needed coverage for the EOD shift.
Ms Post stated that she attempted to call the Applicant and received a SMS when he didn’t answer the call, advising that he was with the Police and could not speak with her. Ms Post stated that she was then required to work the Applicant’s closing shift.
The Respondent submitted that Mr Silby did not follow the correct procedures and his absence was therefore unexpected and unexplained. The Respondent submitted that his absence caused financial and reputational damage to the Respondent’s business.
Mr Silby said there would usually be three people on shift during the day time and more in the evening. Ms Post said in her oral evidence that she only arrived at this store two days prior and she was the manager of the store that day. Ms Post said when she realised Mr Silby hadn’t shown up, she asked the Team Leader ‘Sara’ if she had heard from him and that was when ‘Sara’ told her about the message in the messenger group and his request to be covered for the EOD shift. Ms Post said she thought that must have meant only the evening the shift, however he actually meant the whole shift.
Ms Post said in her oral evidence Mr Silby did not answer her phone call but then texted back saying he was with the Police and wouldn’t be able to come in. Ms Post said she was in the store that day from 7am doing stock take and then she ended up having to work all the way through to 11pm as there was no one else. Mr Bryant said Sara Riddle was rostered on from 10am to 7.30pm, Mia Scott 12pm to 3pm, Bianca Clisold 11am to 8.30pm and the Applicant 12pm to 9.30pm. There was another vacant shift from 10am to 3pm which Ms Post filled herself.
Mr Bryant appeared to agree that on the day in question there was no less than three staff at any one time.
The Termination
Ms Post contacted Mr Bryant on Monday 2 May 2022 after lunch service to inform of the Applicant’s absence on Sunday 1 May 2022. Mr Bryant stated that following this, he commenced an investigation.
Mr Bryant said Mr Silby’s next shift was Tuesday 3 May 2022 at 12 midday.
INVESTIGATION
Mr Bryant said he had received the screen shots, had looked at the rosters and the text messages between Mr Silby and Ms Post. Mr Bryant said he was seeking feedback from Mr Silby and standard practice is to get information and get a notice to attend a meeting and go from there.
Mr Bryant’s oral evidence was that on Thursday 5 May 2022 at 11:42am, he called Mr Silby, with the HR Administrator Uzma Sheereen present, to gain some information regarding the allegations against Mr Silby. Mr Bryant submitted that Mr Silby advised he messaged Burger Urge Dubbo that morning and requested someone cover his shift.
Mr Silby confirmed he received the phone call from Mr Bryant at 11:42am and that he told Mr Bryant that he sent the message to the Facebook Message Group.
At 11:45am Mr Bryant contacted Ms Post (Burger Urge Training Manager and temporary Venue Manager of Burger Urge Dubbo) to ask if she received any communications regarding Mr Silby’s absence. It was submitted that Ms Post did not receive any communications prior to his absence but when he did not arrive for his shift, she said she “…tried to call Cullam to find out where he was with no response so I followed up with a text to which he responded saying he posted in the chat.”
At 12:02pm Mr Bryant called Mr Silby back to advise him about the information Mr Bryant received and asked if he had anything else to add. Mr Bryant’s evidence was that Mr Silby responded that as a Team Leader he knew the proper process and the conversation then digressed to an unprofessional tone with inappropriate language from Mr Silby. Mr Bryant’s evidence was that it was because of this he decided not to provide a Notice to Attend Meeting as per procedure.
Mr Silby said in his oral evidence Mr Bryant brought up his message and that he could see where Mr Bryant was coming from that the message was not clear, but he was trying to inform Mr Bryant that was the way Ms Matthews and himself and a couple of other people had been doing it, however they ended up in a heated discussion because of way Mr Bryant was firing him.
The Respondent submits that having already reviewed the screenshot from the group chat and in consideration of clauses 6.1.3 Summary Dismissal and 6.1.4 Absenteeism of the Burger Urge EBA (Burger Urge EBA) Mr Bryant chose to terminate Mr Silby’s employment during that call.
In his oral evidence Mr Bryant said when he called back Mr Silby and started to tell Mr Silby what he heard, while it was several months ago and Mr Bryant could not remember the specifics of the conversation, Mr Silby was not too happy with Ms Post. Mr Bryant claimed Mr Silby did not mention Ms Matthews at the time.
Mr Bryant said the discussion did get heated but prior to advising Mr Silby of the termination, Mr Silby said this was “BS” which I took to mean bullshit, and Mr Bryant said he then decided to terminate Mr Silby, as he didn’t see how they would progress, and he sent Mr Silby the termination the following day.
Mr Bryant said he wanted to hear if Mr Silby had any reason as to why it might not progress to a Notice to Attend a meeting. Mr Bryant said Mr Silby did not have anything to add. I asked Mr Bryant during the determinative conference if he was aware of the circumstances involving Mr Silby’s Scooter at the time. Mr Bryant said he was aware someone had tried to steal his vehicle as an explanation for not being at work on the Sunday.
I asked Mr Bryant what changed the process to one where a decision was made to terminate Mr Silby that day, and had his tone not been unprofessional would he have still been terminated. Mr Bryant said had Mr Silby had a professional tone he would have issued a Notice to Attend a Meeting, however he said on the basis of the evidence he would still have been terminated, and the termination would only have been delayed.
Mr Bryant confirmed that the reason for termination was the failure to communicate his non-attendance, and the non-attendance. Mr Bryant also said in the current environment any absenteeism is a challenge for the Respondent.
Mr Silby said that he tried to explain what happened with his Scooter.
Mr Silby said in the second conversation, Mr Bryant advised him he would be terminated and it was after that, that he became aggravated. Mr Silby said he was okay with the initial phone call, however in the second phone call Mr Bryant said it was a basis for termination. Mr Bryant said the business has 800 staff including franchises and he always follows the process, and this is a rare occasion where this did not occur.
Ms Sheereen said the conversation was months ago and so she cannot say the exact words, however Mr Bryant called Mr Silby twice, and when Mr Bryant was discussing the matter with Mr Silby he raised his voice. Ms Sheereen claimed that it was after Mr Silby raised his voice that Mr Bryant terminated him. I asked Ms Sheereen what Mr Silby was raising his voice about, and Ms Sheereen claimed it was Mr Bryant telling him he had not followed proper channels. I asked Ms Sheereen what Mr Bryant said, and Ms Sheereen said Ms Bryant said, “you are raising your voice, you should not do it and we are terminating you”. Mr Bryant said he told Mr Silby it was a summary dismissal effective immediately.
Mr Silby said he was not informed that Ms Sheereen was on the phone call. Mr Bryant said he told Mr Silby that Ms Sheereen was on the earlier phone call at 11.42am but not for the later phone call at 12.02pm. Mr Silby maintained he was not told in either conversation that another person was in the phone call. Ms Sheereen said she recalled in the first call that Mr Bryant told Mr Silby she was in the phone call.
A letter confirming the summary termination that occurred on 5 May was sent by Mr Bryant to Mr Silby the following day and read as follows:
“Dear Cullam,
Management has conducted a thorough investigation into the following act of policy breach.
• You were absent from work on 1/05/2022;
• Your absence was not approved;
• Your direct report did not receive appropriate communications regarding your absence;
• Communications received misled the entire team.You were communicated and provided with full particulars regarding the above allegations and were offered an opportunity to respond. We note that you recognised your communications were not sufficient and that as a Team Leader, you knew you had to lead by example.
However, having considered the facts and the outcomes of our meeting on 5/05/2022, we find that the allegation against you have been substantiated. Such action is considered to constitute gross misconduct due to your knowledge of the staffing environment, Burger Urge policy, and costs to the organisation in event of a no show without an excuse.
Your employment will be summarily dismissed effective immediately. This letter confirms the termination of your employment due to gross misconduct.”
CONSIDERATION
In considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable, the Commission must take into account the considerations under section 387 of the Act.
(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
A valid reason was described in Selvachandran v Petron Plastics Pty Ltd[5] as one which is “…sound defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based on the operational requirements of the employer’s business.”
The Applicant did not attend a rostered shift on Sunday 1 May from 12 midday to 9.30pm and failed to follow the correct and normal process in advising the Respondent as such. The Applicant conceded he had participated in training that included that the normal and correct process was to call the store manager if you were going to be unavailable for a shift.
The Respondents relies on clause 6.1.4 Absenteeism in the enterprise agreement which reads as follows:
“6.1.4 Absenteeism (a) If you fail to attend a rostered shift without authorisation by us and without notifying us, you will be deemed to have abandoned your employment and resigned from your employment effective from your last working day, unless you can provide us with reasonable evidence to the contrary.”
It is apparent from the evidence that Mr Silby did not abandon his employment, nor did he resign from his employment. To the extent that clause 6.1.4 of the enterprise agreement is relied upon to purport that Mr Silby should be taken to have abandoned his employment, or resigned by force of the clause, even if the clause could be interpreted such that it did have that effect, it would be unlawful. That is because section 194 of the Fair Work Act 2009 provides that a term of an enterprise agreement is an unlawful term if it is…
“..(d) a term that excludes the application to, or in relation to, a person of a provision of Part 3-2 (which deals with unfair dismissal), or modifies the application of such a provision in a way that is detrimental to, or in relation to, a person; …”
There is no dispute that there were no other issues with Mr Silby’s performance or conduct relied upon by the Respondent to support the decision to terminate his employment, other than his non-attendance for a single shift on 1 May 2022. The evidence is clear that Ms Silby was summarily dismissed. The termination letter sent to Mr Silby the day after he was summarily dismissed described his conduct as gross misconduct.
Clause 6.1.3 of the enterprise agreement under the heading summary dismissal reads as follows:
(a)Notwithstanding the provisons of clause 6.1.1, we shall have the right to dismiss you without notice for conduct that justifies instant dismissal, including but not limited to:
· theft,
· wilful damage to Burger Urge property,
· assault, threatening or abusive conduct towards other employees or customers,
· serious neglect of your duty,
· dishonesty or fraud,
· attending for work under the influence of drugs or alcohol, using drugs or drinking alcohol whilst on duty,
· unlawful or reckless operation of a Burger Urge vehicle;
· any serious breach or repeated failure to comply with any legislation including state food safety legislation, or
· any failure to follow reasonable and lawful directions.
I am not satisfied Mr Silby engaged in gross misconduct. Mr Silby’s evidence is he used a Facebook Group Message to advise that he would be unavailable. He claims to have attempted to call the store that day, but it is now clear he could not have spoken to Ms Watson at the store on 1 May as she was not rostered on that day. He conceded in his oral evidence it may have been another day. I am inclined to the view that he did not call the store that day and instead was relying on having sent the Facebook Group Message sent at 4.26am to communicate his absence.
He said in his evidence that this is consistent with how he had been instructed to communicate an absence by a former manager Stacey Matthews. Mr Bryant said he was unaware if Mr Silby’s former manager may have said this to him, but he had been trained that the correct process is to call the store and speak to the store manager if he was going to be absent.
I accept that the steps that Mr Silby followed that day were inappropriate. However, in my view his actions also needed to be viewed in the full context of the specific circumstances. Mr Silby gave unchallenged evidence concerning the events of Saturday evening 30 April and Sunday 1 May 2022 concerning his Scooter which was his primary mode of transport.
His evidence included that his Scooter was vandalised and that there was an initial attempt to steal it by ‘jimmying’ the lock on the evening of 30 April when it was parked in the undercover Coles carpark in Dubbo. Mr Silby said after discovering this initial attempt to steal his Scooter at approximately 11.30pm that Saturday evening, he was unable to have in towed because the towing company could not get a vehicle into the area where the vandalised Scooter was located in the carpark. His evidence was the steering was locked and the Scooter could not be moved.
Early the next morning at 4.26am he sent the Facebook Group message, no doubt after unsuccessfully trying to move the Scooter. A further event occurred the next day, Sunday 1 May where the damaged Scooter, still sitting in the Coles carpark, was subjected to further vandalism and was stolen on this occasion and subsequently later located by Police who contacted Mr Silby and made arrangements for him to be interviewed about the matter on Monday 2 May.
Mr Silby’s message sent to the Facebook message group early on Sunday morning 1 May was consistent with his oral evidence. I have no reason to doubt Mr Silby’s account of the events involving the vandalism and later theft of his Scooter.
Whilst I accept that Mr Silby did not follow the correct procedure for notifying the employer of his unavailability for the shift starting at 12 midday on Sunday 1 May 2022, in all of the circumstances there is a logical explanation for his difficulty in being available to perform his usual rostered shift given he was trying to deal with the particular circumstances he described in his unchallenged evidence concerning the Scooter.
Neither party called Stacey Matthews to give evidence about her directions to Mr Silby, however I am also inclined to the view that there probably had been an informal arrangement prior to Ms Post being made the store manager, that a number of staff used the Facebook message group to try to cover shifts.
Mr Silby sent the message at 4.26am, some seven and a half hours before his scheduled commencement of shift. It was apparent from the evidence of Ms Post that whilst she was not aware of the message, another member of staff on shift that day was aware of it, which tends to support Mr Silby’s claim that others had used it. Whilst I am satisfied Mr Silby did not follow the correct procedure, I am also satisfied his problem on the relevant day was genuine and he was not merely attempting to avoid the shift without a basis for doing so.
Given my conclusion above, I am inclined to the view that Mr Silby’s actions in all of the circumstances, including that he had no prior record of performance or conduct issues, warranted counselling, or a warning but certainly not summary termination.
I asked questions each of Mr Silby, Mr Bryant and Ms Sheereen about the final telephone call at 12.02pm on Thursday 5 May in order to resolve the factual dispute as to whether Mr Bryant communicated his decision to terminate the employment of Mr Silby before or after the conversation became heated and Mr Silby apparently said words to the effect of “this is bullshit”.
There are factors that might tend to support Mr Silby’s claim that he did not utter the words or become agitated until he was told he was being dismissed. Certainty the act of being told he was terminated may explain his apparent agitation. Mr Bryant’s version is that he conferred with Ms Post and commenced the final phone call by telling Mr Silby about what Ms Post had told him and it was at that point Mr Silby became aggravated. Ms Sheereen supported Mr Bryant’s version of the conversation. I am inclined to the view that Mr Bryant had not yet formally advised Mr Silby that he was to be terminated, however Mr Silby had formed the view that this was likely at the time he became aggravated.
In any event, I have concluded not much turns on the matter anyway because Mr Bryant’s evidence was to the effect that had Mr Silby been unable to come up with some other reason for not being terminated, he would still have been terminated. I am not satisfied that the evidence, limited as it is, to the specific exchange that occurred between Mr Bryant and Mr Silby, and Mr Silby apparently saying words to the effect of “this is bullshit”, is of itself a basis to warrant summary dismissal. Mr Bryant has never asserted that was the primary issue, and the Respondent’s case has always rested on the alleged gross misconduct of not communicating appropriately the non-attendance on 1 May, and the subsequent non-attendance.
The Respondent has also relied on the impact of Mr Silby’s non-attendance on the remaining staff that day, as they had to cover work that would otherwise have been performed by Mr Silby, and a general difficulty in obtaining staff in the industry at the moment. Mr Bryant’s evidence was also that one of the other rostered shifts from 1 May was not filled that day. The evidence appeared to be that despite Mr Silby’s absence the store was staffed by three staff at all times that day. It was obviously not desirable that another member of staff had to work overtime that day, however it could not be said that Mr Silby’s failure to attend had a dire effect on the business, such as the store being forced to close. I am not satisfied these issues provide a valid reason for dismissal.
For all of the reasons set out above I am not satisfied that the Respondent had valid reason for dismissal.
(b) Whether the person was notified of the reason
Mr Silby was notified during the second conversation at 12.02pm on 5 May 2022 that he was being terminated as the result of his absenteeism and failure to follow the correct process in advising his direct report. The Respondent determined not to send the Notice to Attend a Meeting as a result of the tone of the discussion and to proceed to terminate the Applicant’s employment.
Mr Bryant stated that as a result of the ‘unprofessionalism’ of Mr Silby, he determined to summarily dismiss the Applicant. Mr Silby was notified of the reason for his dismissal in the course of the final telephone conversation at 12.02 pm on Thursday 5 May during which he was dismissed.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
The Respondent dismissed Mr Silby during a phone call and submitted in the termination letter that he had been provided an opportunity to respond. However, Mr Bryant dismissed the Applicant during the phone call.
I am not satisfied that Mr Silby was given an appropriate opportunity to respond to his summary termination. I am inclined to the view that had Mr Bryant had more time to consider all the facts and circumstances concerning the events affecting Mr Silby on Saturday 30 April and Sunday 1 May, he may not have summarily dismissed Mr Silby.
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal
As Mr Bryant summarily dismissed the Applicant, there was no opportunity for a support person to be present. It was Mr Bryant’s evidence that he would almost always follow a course involving the issuing of a letter with a Notice to Attend a Meeting but did not do so in this case.
(e) Was the Applicant warned about unsatisfactory performance before dismissal
The Respondent cited that the termination of the Applicant’s employment was as the result of Serious Misconduct. This factor weighs as neutral.
(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
The Respondent is a large organisation with an equipped Human Resources Team. They have a standard procedure in dealing with instances of absenteeism and issues with communication.
(h) Any other matters that the FWC considers relevant
Mr Silby is experiencing hardship as the result of his Scooter having been vandalised and then stolen and further damaged. In the past, it appears Mr Silby had been advised by a former manager to use the Facebook group chat to find a staff member to cover shifts.
CONCLUSION ON HARSH, UNJUST OR UNREASONABLE
Whilst I acknowledge Mr Silby didn’t follow the correct procedure in advising his employer of his unavailability for the reasons set out above, I concluded this failure in the specific facts of this case was not a valid reason for dismissal. I have also concluded there have been procedural flaws on the part of the Respondent. The Respondent acted hastily and terminated the Applicant’s employment terming his absenteeism as serious misconduct.
REMEDY
Mr Silby initially in his Form F2 said he sought reinstatement, however advised at the determinative conference that he no longer sought reinstatement, however instead, sought compensation. I have determined it is appropriate that Ms Silby be awarded some compensation.
Mr Silby worked for the Respondent for just under 12 months.
Mr Silby said he has commenced new employment with Carl’s Junior Restaurant, a Fast-Food Outlet. Mr Silby said he commenced employment with Carl’s Junior on Monday 25 July 2022. He said his hourly rate of pay is $24.44 per hour and he is working 40 hours per week. Mr Silby confirmed he was working about 34 hours a week on average for the Respondent, and the hourly rate was $22.78 per hour at the time of termination. The Team Leader rate increased to $24.58 per hour from 1 July 2022.
Mr Silby said he earned no other remuneration from 5 May to 25 July 2022.
Mr Silby undertook efforts commencing 5 May 2022 to seek alternative employment and submitted that he was applying for approximately 2-3 jobs per day. He said he went on to the Seek website pretty much straight away. The Respondent submitted that the current employment market made it unlikely that it took the Applicant two months to find employment. Mr Silby said he applied for jobs at KFC and McDonalds and various labouring jobs and was unsuccessful.
At an hourly rate of $22.78 multiplied by 34 hours per week I estimate Mr Silby would have earned $774.52 a week gross. Given there had been no other issues in Mr Silby’s employment history with the Respondent, reasonably brief as it was, I estimate had he not been terminated he would have continued to be employed for a least another eight weeks.
$774.52 multiplied by eight equals $6,196.16. There was no other income earned in the eight-week period immediately following Mr Silby’s termination.
I have decided to make a deduction of one week from the amount on the basis that Mr Silby did not follow the procedure he had been trained in to alert the store manager and for his conduct in the course of the telephone call on 5 May 2022. $6,196.16 minus $774.52 equals $5,421.64.
There is no evidence to suggest an order for the amount of $5,421.64 will affect the viability of the Respondent. I am satisfied that Mr Silby took steps to seek to mitigate his loss and obtained other employment by 25 July 2022.
The amount does not exceed the compensation cap. There are no other matters that I consider relevant to the assessment of compensation.
I order that Burger Urge Pty Ltd pay to Mr Cullam Silby the amount of $5,421.64 gross taxed according to law and 10% superannuation contribution on that amount into Mr Silby’s nominated superannuation fund within 21 days of the date of this decision. Order PR745744 will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr Cullam Silby on his own behalf.
Mr Nathan Bryant for the Respondent.
Hearing details:
2022
Brisbane (by Telephone)
19 August.
[1] Exhibit 2.
[2] Exhibit 1.
[3] Exhibit 3.
[4] Exhibit 4.
[5] (1995) 62 IR 371 at 373.
Printed by authority of the Commonwealth Government Printer
<PR745742>