Danny Mitchell v Goldbreak Holdings T/A the Local Shack

[2019] FWC 1435

[2019] FWC 1435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Danny Mitchell
v
Goldbreak Holdings T/A The Local Shack
(U2018/10442)

COMMISSIONER WILLIAMS PERTH, 8 MARCH 2019

Termination of employment.

[1] This decision concerns an application made by Mr Danny Mitchell (the Applicant or Mr Mitchell) under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The Respondent is Goldbreak Holdings T/A The Local Shack (the Respondent or the Local Shack).

Background

[2] At the hearing of this matter Mr Mitchell represented himself and the Respondent was represented by Mr Bradley Wright (Mr Wright), the Respondent’s General Manager.

[3] Evidence was given by Mr Mitchell and the Respondent called as their sole witness Ms Chloe DeBono (Ms DeBono), the HR Officer of the Respondent.

[4] The Respondent in its form F3−Employer’s Response said Mr Mitchell was not dismissed but rather he abandoned his employment.

Factual findings

[5] Having considered the written materials provided both parties and their oral evidence at the hearing the Commission makes the following factual findings relevant to the determination of this application.

[6] The Respondent operates a number of outlets of the Local Shack and has approximately 60 employees.

[7] Mr Mitchell commenced employment in July 2017 and his employment ended on 19 September 2018.

[8] Both parties provided a document headed ‘Contract of Employment’. A number of versions of this document were provided. Each of these appears to be addressed to the Applicant. One of these contracts refers to the position as being Regional Head Chef Trainer and another says the position is of Head Chef/Cook.

[9] Both of the contracts of employment include the following introductory paragraph which states Mr Mitchell will be employed by,

“Goldbreak Holdings ATF the Brown Family Trust (ACN 16880323390) trading as The Local Shack (“ the Employer ”)…”

and the following clause,

“3. Reporting

Subject to clause 6, you will report to the Venue Manager or as the Employer may from time to time otherwise direct.”

[10] Clause 6 concerns relocating to alternative positions at another location.

[11] There is no evidence that Mr Mitchell was at any time directed by “the Employer” to report other than to the “Venue Manager”.

[12] Ms DeBono is not a Director of the Respondent.

[13] The evidence is that Mr Mitchell did commonly interact with Ms DeBono and with Mr Wright on any number of day-to-day business matters including with Ms DeBono concerning rosters and sick leave absences of other employees.

[14] Mr Mitchell was what the parties referred to as an Executive Chef and was responsible for the kitchens of the Local Shack at four different locations.

[15] The Respondent uses WhatsApp messaging to disseminate information to groups of its employees.

[16] The week beginning Monday, 10 September 2018 Mr Mitchell had been working at the Mandurah outlet.

[17] Mr Wright had also asked the Applicant to assist on Tuesday 11 September 2018, after he had already worked his rostered shift, with the installation of a new oven at the Forrestfield outlet. Mr Mitchell attended as directed and met with Mr Wright however they had a disagreement about what Mr Wright expected of him.

[18] Afterwards when Mr Mitchell realised he had been removed from the Respondent’s WhatsApp group he thought he may have been sacked by the Respondent and queried this with Ms DeBono by text message. His evidence was that any time an employee is removed from the messaging group it’s because they’ve been sacked.

[19] Mr Mitchell’s evidence was that he was working commonly 50 to 70 hours per week and when the Mandurah store opened he had done 92 hours in one week and got no additional compensation.
[20] Both contracts say the salary is based on working a minimum of 38 hours a week and 8 reasonable additional hours per week. There is no provision in the contract for payment in addition to the salary for hours worked beyond these 46 hours per week.

[21] On 12 September 2018 Mr Mitchell went to his doctor because in his words he was “broken”. Mr Mitchell obtained a medical certificate stating he was unfit to work from 12 September 2018 to 19 September 2018 inclusive.

[22] Ms DeBono and Mr Mitchell swapped text messages between 11 and 13 September 2018 inclusive. As arranged through these text messages Mr Wright and Mr Mitchell spoke briefly on the phone on 13 September 2018. Mr Mitchell under cross-examination was adamant that he did not agree to work at Forrestfield on the night of Thursday, 13 September 2018, and I accept his evidence.

[23] Mr Mitchell agrees he did not mention to Mr Wright in that phone conversation that he had the first medical certificate and he says this was because he was distressed at how Mr Wright and Ms DeBono were treating him. He had also already provided it to the Mandurah Venue Manager.

[24] I accept that in the three months prior to his employment ending the vast majority of Mr Mitchell’s shifts were worked at the Mandurah store.

[25] Mr Mitchell denies that he agreed to work anywhere beyond his rostered hours at Mandurah during this week. When the Venue Manager, Ms Katie Johnston (Ms Johnston), at Mandurah messaged him saying he had to work at Forrestfield on the 13 September 2018 he informed her he was unable to.

[26] I accept his evidence that he provided this first medical certificate mentioned above to his Venue Manager at Mandurah, Ms Johnston, and this is where he was rostered to work for the period of this medical certificate.

[27] Mr Mitchell believed that the Venue Manager had relayed this information to Mr Wright.

[28] On 13 September 2018 he also spoke about the first medical certificate to JD, another Venue Manager.

[29] The evidence is that the Mandurah Venue Manager sent a text message to Ms DeBono on 13 September 2018 saying that Mr Mitchell had text her saying he couldn’t come in.

[30] Mr Mitchell’s evidence was that he received a message from Mr Wright saying he was a “real piece of work” and several missed phone calls. Mr Mitchell said he felt threatened and distressed and consequently put his phone on silent. He agrees he also blocked Ms DeBono on Facebook.

[31] I accept the evidence of Mr Mitchell that he was not blocking receipt of WhatsApp messages sent by Ms DeBono but rather that Mr Wright, following the disagreement with Mr Mitchell on 11 September 2018, had removed him from the Respondent’s WhatsApp group.

[32] On 19 September 2018 having been to the doctor and receiving the second medical certificate stating he was unfit to work between 19 and 26 September 2018 he then spoke to an employee in the Respondent’s accounts area because he had not been paid. She told him that the Respondent had withheld his pay because he had not gone to any shifts. Consequently he decided to send the medical certificates to Ms DeBono because he was still without any sick pay.

[33] On 19 September 2018 1:56 p.m., Mr Mitchell emailed Ms DeBono telling her he had been signed off by the doctor for the next week due to a stress-related illnesses attaching two medical certificates one stating he had a medical condition and will be unfit for work from 12 September 2018 to 19 September 2018 inclusive and another dated 19 September 2018 stating he would be unfit for work from that day until 26 September 2018 inclusive.

In reply Ms DeBono emailed Mr Mitchell saying relevantly as follows,

“You were supposed to attend work over the previous weekend. Despite numerous attempts to contact you, you chose to turn your phone off.

You’ve abandoned a minimum of three consecutive shifts and chose not to advise the general manager, leaving him with no choice but to attend those shifts (despite not being a chef).

As per your contract as an executive chef, you are instructed to report directly to the general manager.

…

You have put our company at risk by choosing not to attend shifts, despite a conversation with myself and the general manager that you would attend.

We see no choice but to terminate your employment.

…

However, the numerous attempts to contact you (via Facebook phone, mobile phone - to which you blocked my number) by myself and the general manager, leave us no choice.”

[34] The Respondent’s position was that Mr Mitchell’s dismissal took effect immediately.

Submissions

The Applicant

[35] The Applicant submits that his dismissal was unfair due to having a medical certificate and still being dismissed by email with no opportunity to explain his illness. He notes he had informed the Venue Manager before his next shift was due.

[36] The Applicant submits he was not given a chance to reply as the dismissal email stated the decision was made.

[37] He submits he had explained to the Respondent about his physical and mental state weeks before his termination and they had agreed on an extra day off, which was later overlooked.

[38] The Applicant submits he received no warnings nor performance reviews. He had never received any disciplinary action during his employment.

The Respondent

[39] The Respondent submits that the dismissal was fair and just because the Applicant had abandoned shifts.

[40] The Respondent submits that the Applicant had ceased communication with his employer between 13 and 19 September 2008 by blocking their phone numbers.

[41] The Respondent submits they cannot reasonably hold a position open when they have had no communication from the Applicant for six days.

[42] The Respondent also submits that the General Manager had given Mr Mitchell a reasonable direction to train the new Chef at Forrestfield and by refusing to do this the Applicant had upset his employer.

[43] The Respondent submitted that the Applicant was a disgruntled employee who planned the stress leave prior to going to the doctor. It is submitted the Applicant had even planned that it would be three weeks although he only received one week from the doctor the following day.

[44] When the Applicant had spoken to the General Manager on the phone he knew he already had a doctor’s certificate for one week. It is submitted he waited for one week and then went back to the doctor for another medical certificate. This dishonesty by the Applicant constitutes misconduct and a valid reason for the Applicant’s dismissal.

The legislation

[45] The criteria the Commission must take into account when considering whether or not it is satisfied that a dismissal was harsh unjust or unreasonable are prescribed in section 387 of the Act, which is set out below.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

[46] Notwithstanding the Respondent’s initial response to this application, that there had not been a dismissal, I am satisfied that Mr Mitchell’s employment with the Respondent has been terminated on the Respondent’s initiative. The Respondent did dismiss Mr Mitchell.

Valid reason

[47] In a leading decision on the meaning of “valid reason” as it is currently used in section 387(a) a Full Bench of the Australian Industrial Relations Commission held that the reason for the dismissal must be sound, defensible or well founded, a reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason, the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts and it will not be enough for an employer to say that they acted in the belief that the termination was for a valid reason. 1

[48] The email from Ms DeBono dated 19 September 2018 wherein she advised Mr Mitchell that the Respondent had no choice but to terminate his employment explains the reasons for his termination were that,

•  He was supposed to attend work over the previous weekend.

•  Despite numerous attempts to contact him he chose to turn his phone off.

•  He abandoned a minimum of three consecutive shifts and chose not to advise the General Manager.

•  His contract instructed him to report directly to the General Manager.

•  He put the Respondent at risk by choosing not to attend shifts despite conversations with her and the general manager that he would attend.

[49] In addition at hearing the Respondent in its closing submission relies on the alleged dishonesty of the Applicant in obtaining the medical certificates and his supposed dishonesty in not telling the General Manager about the first medical certificate during a particular phone conversation with him.

[50] Considering the facts found it is not factually correct for the Respondent to say that Mr Mitchell had not worked when he was supposed to or that he had abandoned shifts. The shifts he did not work about which the Respondent complains were shifts covered by the medical certificates and some were shifts he had not agreed to work. Consequently not working particular shifts was in the circumstances not a valid reason for Mr Mitchell’s dismissal.

[51] It is correct that Mr Mitchell did turn his phone off at one point. This however in the circumstances does not equate to Mr Mitchell wrongly preventing the Respondent from contacting him. The circumstances were that it was Mr Wright who had removed Mr Mitchell from the Respondent’s WhatsApp messaging group which prevented the Respondent communicating with him through this commonly used method as an alternative to a phone call. Separately Mr Mitchell was certified by a doctor as being unwell and suffering stress at this time. Consequently turning his phone off was not a valid reason for Mr Mitchell’s dismissal.

[52] It is not correct to say as the Respondent does that Mr Mitchell’s contract instructed him to report directly to the General Manager. No instruction to that effect had been given to Mr Mitchell and his contract actually required him to report to his Venue Manager, which he did. Consequently this is not a valid reason for Mr Mitchell’s dismissal.

[53] It is also not correct to say that Mr Mitchell chose not to attend shifts despite saying he would attend. The evidence is Mr Mitchell did not agree to attend to work additional shifts and in any event was not choosing not to attend; Mr Mitchell was unfit to work as certified by his doctor. Consequently this is not a valid reason for Mr Mitchell’s dismissal.

[54] There is no evidence to support Mr Wright’s allegation that Mr Mitchell acted dishonestly in obtaining the two medical certificates, this allegation is baseless.

[55] It is also in the circumstances wrong to say Mr Mitchell was dishonest because he did not tell Mr Wright he had a medical certificate when they spoke on the phone. There is no suggestion he was asked whether he had a medical certificate by Mr Wright. At the time of their phone conversation Mr Mitchell had already advised his Venue Manager he would not attend for work and that he had a medical certificate. In addition the conversation with Mr Mitchell that Mr Wright refers to was obviously tense and the evidence is that at the time Mr Mitchell was distressed by the way he was being treated by his employer.

[56] Mr Mitchell had not been deliberately dishonest and the allegations that he had been are therefore not a valid reason for his dismissal.

[57] In summary there was no valid reason for the dismissal of Mr Mitchell.

Notification of that reason

[58] Mr Mitchell was not notified of the reason the Respondent was considering dismissing him, before the Respondent acted to dismiss him.

Opportunity to respond

[59] Mr Mitchell was not given an opportunity to respond to the reasons for his dismissal before the Respondent acted to dismiss him.

Refusal to allow a support person to assist

[60] There were no discussions relating to Mr Mitchell’s dismissal and consequently there was no refusal by the Respondent to allow him to have a support person present.

Warnings about unsatisfactory performance

[61] The reasons for dismissal did not involve any suggestion that Mr Mitchell’s work performance was unsatisfactory so warnings were not relevant.

The size of the employer’s enterprise

[62] The enterprise has approximately 60 employees so is a medium sized business.

Absence of dedicated Human Resource Management and specialists or expertise

[63] Ms DeBono is the Respondent’s Human Resource Officer. Her qualifications or expertise are unknown.

Other relevant matters

[64] Relevantly Mr Mitchell had been employed for approximately 14 months at the time of his dismissal.

Conclusion

[65] The manner in which both self-represented parties presented their case in this matter was problematic and consequently it has been difficult on the evidence given to understand with precision all of what relevantly occurred. It is readily apparent however that there was a mixture of miscommunication and failure of communications at times between all involved and this contributed to the Respondent deciding to dismiss Mr Mitchell as it did.

[66] In this case there was no valid reason for Mr Mitchell’s dismissal and separately there was a total absence of procedural fairness in that he was not notified of the reasons he was to be dismissed before the Respondent dismissed him and importantly in this case he was not given an opportunity to respond to those reasons before the Respondent acted to dismiss him.

[67] My impression is that the Respondent has limited management resources. Mr Wright and Ms Debono are fully occupied with day-to-day management of the Respondent’s multiple outlets and so have little capacity to professionally deal with important developments that arise from time to time, such as their Executive Chef not being able to meet their expectations for a period for whatever reasons. Whilst this might explain why Mr Mitchell’s situation was poorly handled by the Respondent it does not excuse him being dismissed as he was.

[68] I find that the dismissal of Mr Mitchell was unjust and unreasonable. Mr Mitchell was unfairly dismissed.

Remedy

[69] Given the central role Mr Mitchell held in the Respondent’s business and everything that has transpired and the self-evident enmity between Mr Wright, the General Manager, and Mr Mitchell I am satisfied that reinstatement is inappropriate.

[70] I do consider that an order for the payment of compensation to Mr Mitchell is appropriate in the circumstances.

Compensation

[71] There is no evidence as to what effect an order for compensation would have on the viability of the employer’s enterprise.

[72] Mr Mitchell was employed for approximately 14 months.

[73] It is apparent the relationship between Mr Mitchell and Mr Wright had deteriorated prior to his dismissal. From Mr Mitchell’s perspective Mr Wright was failing to acknowledge the long hours he had been working for the business and was making increasingly unreasonable demands on what little free time Mr Mitchell had available. In the circumstances my assessment is that had he not been dismissed Mr Mitchell would have remained working for the Respondent for only a further six weeks.

[74] Mr Mitchell’s remuneration was $70,000 per annum gross.

[75] Consequently had he not been dismissed as he was the remuneration he would have received was $8,076.92 gross.

[76] Superannuation on this amount of $767.31 would also have been payable.

[77] Therefore the total compensation payable is $ 8,844.23.

[78] Mr Mitchell has made appropriate efforts to mitigate his loss.

[79] This was not a case where Mr Mitchell committed any misconduct that contributed to the Respondent’s decision to dismiss him and so there are no deductions from the compensation amount.

[80] The Commission will order [PR705534] that the total compensation of $8,844.23 gross from which normal tax will be deducted shall be paid within 21 days of the date of this decision.

[81] The Commission has no jurisdiction to make orders concerning unpaid accrued leave entitlements or unpaid superannuation contributions however Mr Mitchell is able to pursue these claims in other jurisdictions if they remain unresolved.

Appearances:

D. Mitchell on his own behalf.

B. Wright on behalf of the Respondent.

Hearing details:

2019.

Perth:

February 4.

Printed by authority of the Commonwealth Government Printer

<PR705533>

 1   Rode v Burwood Mitsubishi, AIRCFB Print R4471 at [18] and [19].