Darryl Lavis v L and O Operations Pty Ltd T/A Lakes and Ocean Hotel

[2014] FWC 3932

[2014] FWC 3932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darryl Lavis
v
L & O Operations Pty Ltd T/A Lakes & Ocean Hotel
(U2013/13300)

VICE PRESIDENT LAWLER SYDNEY, 18 JUNE 2014

Application for relief from unfair dismissal.

[1] The Applicant, Mr Lavis, was employed as a casual bottle shop attendant by the Respondent at the Lake & Ocean Hotel, Foster, in about February 2012. He had regular and systematic employment working between 15 and 30 hours per week. Mr Lavis left work on Friday, 7 June 2013 and has not worked at the hotel since.

[2] The position of the Respondent is that Mr Lavis’ employment has not been terminated but simply that his casual assistance is not presently required and that he will be offered work when it becomes available.

[3] Mr Lavis presented as an earnest party who had prepared his evidence and his case with great care and attention to detail. Mr Wynne, who appeared for the Respondent, said this:

“Look, I frankly don’t disagree with what Mr Lavis has said today. I’ve read Mr Lavis is supporting statements from people that he has here, Mr Berryman and Alex. I don’t disagree with those statements at all either. I find them to be quite forthright gentleman and true in what they’re saying. I’m not disputing any of the information in those statements whatsoever.” (PN112).

[4] I accept the evidence of Mr Lavis and of his supporting witnesses.

[5] I find that the following sequence of events occurred. Mr Lavis attended a meeting with the Manager of Hotel, Mr Royal in which he took objection to Mr Royal referring to particular customers as “black c**ts”. Mr Lavis is a sole parent and his teenage daughter has indigenous heritage. In the period following the meeting Mr Lavis perceived that he was being subjected to victimisation by Mr Royal. His hours were reduced. Mr Royal criticised Mr Lavis for not smiling enough and being friendly with the customers (I find that that criticism was without substance on the basis of Mr Wynne’s unreserved acceptance of Mr Lavis’s corroborating witnesses and Mr Lavis’ own evidence). Mr Lavis began to feel very stressed. He raised the victimisation with Mr Wynne. Several days later, on 7 June 2013, Mr Royal counselled Mr Lavis about a customer complaint (Mr Lavis considered unjustly). Later that evening Mr Lavis became agitated and ill and determined that he could not finish his shift and that he needed to leave work and seek medical attention. He locked the bottle shop and gave the keys to the barman. He then sought out Mr Kerry McDonald, the licensee, and informed him that he was sick and was going home and that he had locked the bottle shop and left the keys with the barman. Mr Lavis consulted a medical practitioner at the earliest opportunity and obtained a medical certificate which he forwarded to the Respondent. When he was assessed as fit to return to work, Mr Lavis contacted the Respondent to be told that no work was available because his position had been filled.

[6] The Respondent contends that there was no dismissal. I disagree. I find it in the circumstances the Respondent dismissed Mr Lavis and that contention of the Respondent, although advanced in good faith by Mr Wynne, is misconceived.

[7] Although the Respondent also sought to contend that Mr Lavis had miss-conducted himself in some fashion on the evening of 7 June 2013, I find that Mr Lavis acted reasonably and could not properly be criticised for his failure to seek out Mr Wynne personally and inform him of his need to leave work.

[8] I am required to consider each of the matters specified in s.387.

s.387(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)

[9] Implicit in the findings that I have made, there was no valid reason for the dismissal related to the Applicant’s capacity or conduct. I am not satisfied that any concerns that Mr Royal had in relation to the Applicant’s manner towards customers amounted to a valid reason for dismissal or that this was in fact a significant issue. The statements filed by the Applicant and accepted by Mr Wynne tend to confirm that the Applicant seems to generally get on well with customers.

s.387(b) whether the person was notified of that reason

[10] There was no notification of any reason for dismissal.

s.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[11] The Applicant was given an opportunity to respond to the assertion by Mr Royal that he did not smile enough. However, that was certainly not in the context of a consideration of whether the Applicant should be dismissed.

s.387(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

[12] This matter is not applicable.

s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[13] The Respondent maintained that there was no dismissal. There had been no warning beyond the unwarranted criticism of Mr Lavis’ manner with customers.

s.387(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

[14] The Respondent is not a large employer and its relatively small size certainly impacted on the procedures that were followed in the case.

s.387(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

[15] The Respondent’s case is that it did not affect a dismissal, but rather treated the Applicant as a continuing casual employee for whom work was not presently available but who would be offered work when it became available (which had not occurred by the time of the hearing, more than six months after Mr Lavis went home from work on 7 June 2013). The position adopted by the Respondent was no doubt affected by the absence of dedicated human resource management.

s.387(h) any other matters that the FWC considers relevant.”

[16] I have taken account of all the circumstances of the case.

Finding

[17] Mr Lavis’ treatment was manifestly unfair. I make the statutory finding that Mr Lavis’ dismissal was harsh, unjust or unreasonable.

Remedy

[18] I am satisfied that a remedy is appropriate.

[19] Mr Lavis did not seek reinstatement. I am satisfied that reinstatement is not appropriate. If I am satisfied that an order for compensation is appropriate, as I am, I am required by s.393 to consider the various matters set out in s.393(2) before determining the proper amount of compensation.

s.393(a) the effect of the order on the viability of the employer’s enterprise

[20] There is no suggestion that such an order would threaten the viability of the Respondent’s business.

s.393(b) the length of the person’s service with the employer

[21] I have taken account of the fact that Mr Lavis’ employment period is not particularly long. However, I am satisfied that he was settled in that employment and that, but for the events that occurred, it is more likely than not that Mr Lavis would have continued his employment with the Respondent for a long period.

s.393(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[22] Mr Lavis provided an analysis of his wage receipts that was not challenged and is summarised in a document entitled “Applicant’s Merit Checklist” (which I rely upon for calculations only). I rely upon that evidence in assessing compensation in the amount of $13,749.84.

s.393(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[23] I am satisfied that Mr Lavis has made reasonable, albeit unsuccessful, attempts to find alternative employment.

s.393(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[24] Mr Lavis has not earned remuneration from employment or other work in a material amount that would affect the appropriateness of the order I have determined should be made.

s.393(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[25] This is not a factor that could affect the outcome.

s.393(g) any other matter that the FWC considers relevant.

[26] I have taken account of all of the circumstances of the case.

[27] Applying the approach to assessing compensation required by the FW Act as explained in the authorities, the appropriate level of compensation clearly exceeds the cap amount. I consider that remedy appropriate in all the circumstances.

[28] The application is allowed and an order for compensation in the amount specified has issued in conjunction with these reasons.

VICE PRESIDENT

Appearances:

Mr D. Lavis on his own behalf

Mr P. Wynne for the Respondent

Hearing details:

2014.

Newcastle:

13 March.

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