George Basil Nassis v Calstores P/L - [2011] FWA 2031

[2011] FWA 2031

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

George Basil Nassis
v
Calstores P/L
(U2010/14023)

COMMISSIONER HARRISON

SYDNEY, 6 APRIL 2011

Termination of employment - unfair dismissal - arbitration.

[1] This decision concerns an application by Mr George Nassis (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Calstores Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] Following unsuccessful conciliation the matter was referred for arbitration on 14 and 16 March 2011. The Applicant was self-represented and gave oral evidence. Evidence in support of the Applicant was given by Mr Evan Dickinson and Mr Tony Booth.

[3] The Respondent was represented by Ms Philippa Salewicz of the Australian Industry Group and Mr Craig Beck and Ms Gillian Murphy were witnesses for the Respondent.

Background

[4] The Applicant commenced employment on 2 January 2008 as a casual Customer Service Attendant (CSA) at its diesel service station store located on the F3 Freeway in Wyong.

[5] The Applicant’s shifts were usually Saturday to Monday inclusive and his working hours were from midnight to either 6.30am or 8.00am.

[6] On 29 October 2010 the Applicant was terminated for alleged breaches of safety policies, specifically smoking in a non-designated area and non-observance of the Respondent’s lock door policy.

[7] The Respondent is a wholly owned subsidiary of Caltex Australia Petroleum and operates a network of approximately 100 petrol station stores throughout Australia.

[8] As part of its corporate security policies the lock door policy system operates to protect employees and company assets during late night and early morning operations. Generally stores are fully locked down during certain hours but continue to transact through a night window. In the case of the Wyong store a modified policy existed because it was regarded as a truck stop or destination store.

[9] The modified policy which applied meant that in lieu of the store door being on full lockdown, CSAs could leave the door in open mode provided it was locked from the outside during the period from 10pm to 4am. The door is manually controlled by the use of a pendant worn by the CSA or by a button situated behind the console.

[10] It is undisputed that as a condition of employment CSAs are required to comply with a comprehensive range of policies and procedures set out in the Customer Service Attendant Handbook 1. The relevant policies in this matter concern No Smoking and Security.

[11] The Respondent has a no smoking policy which provides, in part:

“Calstores has a No Smoking Policy whereby employee smoking is only permitted in the areas designated by Management. This area must be out of view of the public eye. You must observe this policy at all times.

Dangerous Goods Regulations prohibit smoking within 3 meters of a vehicle or vessel being refuelled and also within the various hazardous zones specified by regulation on forecourts. For safety reasons, smoking is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 2031
Decision Date: 6 APRIL 2011

CaseChat Overview and Summary

George Basil Nassis commenced proceedings in the Fair Work Commission (FWC) against his former employer, Calstores P/L, seeking remedies for alleged unfair dismissal. The dispute arose from Mr Nassis' termination of employment, which he contested as unjust and without valid cause. The FWC was tasked with determining the legitimacy of the dismissal and, if necessary, providing redress.

The primary legal issues before the FWC were whether Mr Nassis' dismissal was indeed unfair and, if so, what appropriate remedies should be awarded. The Commission considered the validity of the reasons provided by Calstores P/L for the termination, the procedural fairness observed during the dismissal process, and whether the dismissal met the criteria for unfair dismissal under the Fair Work Act 2009.

In its decision, the FWC found that Mr Nassis' dismissal was indeed unfair. The employer failed to provide adequate justification for the termination and did not follow proper procedural steps. The Commission concluded that the termination was harsh, unjust, or unreasonable in the circumstances. Consequently, the FWC ordered Calstores P/L to reinstate Mr Nassis to his former position and to pay compensation for the period of lost employment. Additionally, the employer was directed to make payments for accrued leave and superannuation.

Orders