George Basil Nassis v Calstores P/L
[2011] FWA 2031
•6 APRIL 2011
[2011] FWA 2031 |
|
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 not permitted anywhere on a Calstores forecourt except where a safe area can be designated for the purposes of employee smoking...”
[12] The policy in respect of security provides, in part:
“The industry in which we work has a high cash flow and a high exposure to the public. We need to be aware of the dangers and develop habits that will minimise potential dangers which can occur to both life and property.
• Do not leave the shop floor unattended.
• Remain alert and regularly scan shop and forecourt.
• Acknowledge all customers quickly as they enter the shop floor area.
.....
Night Time Security and Front Entrance Doors
Each store has specific demographic customer flow requirements which can determine the feasibility of changing entrance door access from automatic to manual at the Company preferred time of 8.30pm. The manual option at night is desired so that you only open the locked door as a customer approaches. On daylight the doors can be reverted to automatic.
Where you are unable to restrict access at 8.30pm, it is imperative that you remain extremely diligent and observant of activity on site. As soon as you can restrict access as per Company guidelines ensure you take this action promptly. On every occasion, the console and storeroom doors are to be kept closed.”
Legislative framework
[13] The Act provides:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[14] The events leading up to the Applicant’s termination began in November 2009 when the newly appointed Business Manager for the region, Ms Gillian Murphy made a late night visit to the north bound store site where she observed the Applicant not wearing his personal protective equipment, smoking in a non-approved area and breaching the locked door policy.
[15] It was the Applicant’s evidence that Ms Murphy behaved rudely and he told her she was “facile” 2. He agreed he became agitated but denied he was himself being rude.
[16] In January 2010 a memo was issued to all four CSAs employed at the store including the Applicant and duly signed off by each of them. The content of the memo is set out below:
“LOCK DOOR POLICY MEMO
Wednesday 27th January 2010
Dear F3 SB Diesel Staff,
It has been brought to my attention that in recent times, there has been a number of breaches at site regarding lock door policy.
I have also been advised there are a number of questions surrounding lock door policy.
Please find below answers regarding your questions re: lock door policy.
1. The front door is to bet set on exit during lock door policy
2. A pendant is to be worn at all times during lock door policy
3. The back door is to be locked at all times during lock door policy
4. (Please note if the shop floor requires filling during the night shift, stock required to fill the shop floor will bought [sic] into the store room for the night staff)
5. The alarm is to be ON at all times during lock door policy
6. No smoking to occur in the compound area during lock door policy
Could all staff members please read and sign acknowledging they understand this policy.
Please note if there are any further breaches regarding lock door policy this will result in a formal counselling.
If you have any other questions regarding this matter please address with your site manager.
Regards,
Gillian Murphy
Business Manager”
[17] On 28 June 2010 the Applicant was allegedly given a formal verbal warning for breach of policies. The Applicant’s evidence is that he was unaware he was formally warned until he had read the Respondent’s evidence in these proceedings. He acknowledged having a conversation with his manager Ms Morton concerning leaving the door open whilst he had a cigarette outside but never assumed he was formally warned:
“You’d agree that Ms Morton had a discussion with you on the date written on that paper, which is 28 June 2010, and gave you a formal warning?---Well, no, I don’t agree that she gave me - I thought we had a two-way conversation. I told her - I gave her a few tips, she had a whinge at me, but I certainly didn’t think that it was a verbal warning. No, not at all. How am I to recognise a verbal warning if there are no letters given to me afterwards telling me that I’d had one? How am I supposed to recognise when I’m having a verbal warning and a sour conversation?” 3
[18] I note Ms Morton, the manager involved in this warning was not called in evidence. Ms Gillian Murphy, the Respondent’s Business Manager in her evidence refers to directing the manager to issue a verbal warning. Annexed to the statement of Ms Murphy is a copy of a pro-forma document titled “Counselling/Discipline Interview” from Calstores Pty Ltd March 2004 4.
[19] A memo to all staff was issued by Ms Morton on 8 October 2010 in the following terms:
“MEMO 08/10/10
ATTENTION ALL STAFF
THE PENDANT IS LOCATED ON THE CURRENT KEY RACK UNDER CONSOLE.
WHEN YOU ARE STARTING THE 6PM SHIFT UNTIL MIDNIGHT THIS IS TO BE WORN ON YOU UNTIL OPEN DOOR’S [sic] AT 4AM.
Refer to you [sic] SFOT time table located near the night window.
This is not a new policy and I expect everyone to adhere to this.
Breaches in Security will result in first and final warnings.
If any one is unclear of the policy or have questions please don’t hesitate in calling me.
Regards
Tegan Morton
Alarm panel is to be activated @ lock door period.
Please sign attached form” 5
[20] On 12 October 2010 the Respondent wrote to the Applicant requiring him to attend a Counselling and Disciplinary meeting on 15 October. The correspondence was sent to the wrong address. The Respondent was then advised by e-mail and verbally and invited to bring a witness to the meeting.
[21] On 15 October 2010 a first and final written warning was issued to the Applicant following 36 alleged breaches of the lock door policy and smoking policies. The Respondent’s evidence is that he was given a list of the alleged breaches of company security policy. The Applicant stated he admitted to the breaches but stressed that the policies had not previously applied to the truck stops.
[22] In a pro-forma “Record of Discussion” document the Applicant’s hand written response to the allegations were:
“I do not argue that these breaches of policy occurred. But I understand that company policy is company policy and the individual employee has some discretionary powers within the policy. Policy cannot be rigidly adhered to at all times and this particular policy is particularly less relevant at our two truck stops. There are many situations which occur during my shift where it is necessary for me to leave the shop temporarily. Sometimes because of...emergency, sometimes because it is helping out customers - and most times because I need a smoke. The designated area cannot be accessed because the back door is locked as well.”
[23] In an additional comment the Applicant wrote that he would in future adhere to the policies and that he expected to “...have some chance to speak to HR about my objections to these policies.”
[24] The document also records the Manager’s comments as stating the breaches are extremely serious and any repeat will result in termination.
[25] The document further records details of an action plan prepared in conjunction with the Applicant setting out the expected improvement required in performance and behaviour. The Applicant was to be reviewed against the terms of the action plan on 3 November 2011.
[26] During cross examination the Applicant strongly denied he had ever discussed an action plan or had ever seen a copy of same:
“You’d agree that that appears to be an action plan which sets out a number of different items for you to comply with?---Well, I - to tell you the truth I’m seeing it now, I’ve never read one, but, yes, okay, I’m looking at it, yes.
And you agree that that was the action plan that was discussed with you at that meeting on 15 October?---Certainly not. Nothing was discussed with, and I never got to - I never got to look at a copy of that - of that - of a finalised copy of that meeting with the manager’s comments at all. Not at all. It was not discussed with me at all.” 6
[27] At this time the Respondent issued a memo to all staff clarifying the policy on lock door policy and smoking policies. The Applicant and all other staff signed acknowledgements of receipt of the memo.
[28] Ms Murphy gave evidence that she conducted a site inspection on 18 October when she noticed tobacco, a lighter and rolled cigarettes on the premises. She suspected they belonged to the Applicant and she requested closed circuit TV (CCTV) footage from the previous night worked by the Applicant. On 19 October Ms Murphy telephoned the Applicant to summon him to a formal counselling meeting.
[29] The meeting was conducted on 21 October. Ms Murphy states that without admissions from or any conclusive proof against the Applicant she did not believe termination of employment was appropriate.
[30] On 25 October 2010 fresh allegations concerning a breach of the lock door policy were directed to the Applicant. The allegation arose following a complaint from a newspaper delivery man who stated he visited the site at approximately 4am on 24 October and the store was unattended. The Respondent relied on CCTV footage of this incident as evidence of a further breach of policy by the Applicant and terminated his employment on 29 October 2010.
[31] The particular CCTV footage was tabled as evidence and viewed during proceedings. It showed that at 3.50am a group of school children and adults enter the store through the unlocked doors. After their departure the Applicant left the store unattended with the doors still unlocked. At 3.59am the newspaper delivery person enters the store and is observed looking around for the CSA. At 4.01am the Applicant returns to his console and takes receipt of the delivery docket.
[32] The Applicant admitted he made one mistake over which the Respondent chose to dismiss him. “The mistake was that I didn’t place the automatic door on lock before leaving the console to go into the storeroom. I do contend, however, that there was extenuating circumstances for this error, bearing in mind that this was only my sixth shift since moving into the new (renovated) shop on October 3.” 7
[33] Under cross examination he stated he changed the lock door settings for “very good reason”:
“Do you agree that that was in breach of Calstores policy?---Well, would it - is it? I mean, have they got a safety policy was well. There’s two policies: they’ve got a safety policy on the one hand; they’ve got this policy on the other hand. No, if I hadn’t put it on 3.50 and one of those kids smacked into it or hurt themselves, well, then I was breaking the safety policy. If I didn’t do that, then I’m breaking the lock door policy. I told you we have discretion - by necessity we have discretion, and I used my discretion to say that it was more important that I open the door at 3.50 than keeping it locked until 4 o’clock.
Mr Nassis, you’d agree that if you were complying with the locked door policy then you should have left that door on half lock and use the pendant to let the children in?---No. No way in the world. No way in the world.
That would have breached lock door policy is that what you’re telling us?---No, because there’s even situations that went in lock door policy where - I don’t know. Look, I don’t know, but all I’m telling you is what I did was what anybody else - what any other CSA with a bit of - with a nounce would have done. He would have let - opened - put the doors on “open” so that the doors automatically responded - responded automatically while kids walked in and out of there. Otherwise one of those kids would have run straight into that door. As sure as eggs is eggs.” 8
Consideration
[34] Section 387 of the Act provides:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
Valid reason
[35] The Respondent relies on a series of informal and verbal warnings and first and final warnings given to the Applicant sometime in late November 2009, on 28 June 2010, 15 October 2010, 21 October 2010 and 29 October 2010.
[36] In considering these warnings I place little weight on the verbal warning on 28 June because the disciplinary procedure fell down. Whilst the Respondent put in place an “action plan” to improve behaviour it omitted to tell the Respondent. In respect of the 21 October warning I am not satisfied that it was justified on the basis that the evidence of smoking was purely circumstantial and unproven.
[37] Nevertheless, putting aside the disciplinary issues it is clear the Applicant was trained and fully aware of the Respondent’s policies and procedures in relation to the Lock Door Policy and the Smoking Policy.
[38] It is evident that compliance with these policies was lax prior to the appointment of Ms Murphy as Business Manager in 2009. The Applicant disagreed with the strict interpretation of policy and contended that he had the right to exercise his own discretion in applying the policies.
[39] I accept the Respondent’s submission that given the high risks associated with the business and the size and scope of the operations, the Respondent had an absolute duty of care to ensure its policies were centralised and mandatory. The authorised exception at the F3 Wyong location was clearly communicated and no other individual variations could be tolerated.
[40] On his own admissions the Applicant breached the policies and rationalised his actions on the grounds he was adjusting to working in a new store and was trying his best.
[41] Regrettably in the context of working as a sole operator on the graveyard shift the Applicant put customer convenience first and his own safety and security second.
[42] In all of the circumstances of this matter I find the Applicant’s breaches of the Respondent’s policies a valid reason for his termination.
Notification
[43] The Applicant was verbally advised on the morning of 29 October, the day of termination, that he was required to attend a meeting to discuss an allegation about a breach of the lock door policy on 25 October. This advice followed a letter of notification of a meeting for 28 October being sent to the wrong address and three unanswered telephone calls to the Applicant. Upon commencement of the meeting on 29 October the Applicant was offered a postponement to another date. I am satisfied the Applicant was notified of the reasons for termination.
Opportunity to respond
[44] The Applicant was given the opportunity to respond to the allegations and did so.
Support person
[45] The Applicant was afforded the opportunity to have a support person present but declined the offer.
Performance
[46] This is not a relevant consideration. The Applicant’s performance was not in question and was considered satisfactory.
Size of employer’s enterprise
[47] The Respondent is a large employer with dedicated human resource specialists.
Other matters
[48] In considering the factors in s.387 above, it is well settled that the existence of a valid reason for termination is but one of the issues to be considered when determining matters of this kind. The meaning of the term “harsh, unjust and unreasonable” was considered by McHugh and Gummow JJ in Byrne and Frew v Australian Airlines Pty Ltd. 9 In Byrne and Frew v Australian Airlines Pty Ltd McHugh and Gummow JJ observed:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 10
[49] In paragraph 36 above I refer to the Respondent’s disciplinary procedure. Both the Applicant and Mr Tony Booth, a fellow employee and witness in support, made reference to the Respondent officially recording counselling sessions without their knowledge or written record.
[50] The Applicant submitted he was required to attend meetings at short notice and respond to allegations compiled from CCTV records. He stated: “After these meetings were finished management then compiled their preferred version of the meeting, typed it up and then did not send me a copy of this version, so I had no idea what was said, what was agreed or anything.” 11
[51] In cross examination by the Applicant, Ms Murphy’s evidence regarding the written records of counselling meetings was that a pro-forma document is filled out during the conduct of the meeting and that she kept additional minutes. Ms Murphy stated the employee is not informed in writing of the outcome arising from the meetings “...but you’re actually present at the meeting where the outcomes of the meeting are delivered to you...verbally”.
[52] Ms Murphy stated if the Applicant had requested a copy of the document she would have provided one but it was not normal procedure.
[53] In reply to a question from the Tribunal as currently constituted Ms Murphy stated the record of interview is placed on the employee’s personal file stored on site. Whether employee’s have access to their file or are aware of their rights to such is not clear.
“Do employees have access to that file?---Yes, they are actually entitled to request anything out of that file.
That’s a known policy? Is it part of your policy and procedures, or the manual?---I don’t believe it’s included in the CSA handbook.” 12
[54] I consider it unreasonable to expect the Applicant to improve his behaviour in accordance with a plan he had no involvement with or had ever been shown a copy of. This lack of transparency in the Respondent’s Counselling and Disciplinary process was repeated earlier when a written verbal warning was officially recorded against the Applicant yet he was unaware of its formal status nor given any written record.
[55] In my view the Respondent’s Counselling and Disciplinary procedures are deficient to the extent that they are not transparent and lead to conflict as to their intent. Employees’ rights to information are not codified and are reliant on an employee taking the initiative.
Conclusion
[56] In this matter I consider the Applicant was not afforded the benefits of procedural fairness and in that context I find the Applicant’s dismissal was harsh, unjust and unreasonable.
Remedy
[57] The Applicant in this matter does not seek reinstatement and in any event I would have considered it inappropriate. I therefore turn to consider an order for compensation.
[58] Section 392 of the Act provides as follows:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(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; and
(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; and
(g) any other matter that FWA considers relevant.
[59] There is no evidence that an order would affect the viability of the Respondent’s enterprise.
[60] The Applicant was employed for less than three years. It is a neutral factor in my consideration of any order I will make.
[61] The remuneration the Applicant would have received but for the termination can only be a speculative estimate. The Applicant did not appear to take the warning signs that his employment was in jeopardy seriously. On his own evidence he was insensitive to the tightening up of security procedures on site.
[62] Given the growing accumulation of allegations in my view the Applicant would not have remained employed for any lengthy period.
Mitigation
[63] There is no evidence that the Applicant has sought to mitigate his loss since termination. Whilst I note his submissions regarding his role in caring for his elderly mother and assisting his son’s farming activities, the lack of mitigation will reduce any order I will make.
Other remuneration
[64] There is no evidence of any remuneration earned by the Applicant. His sole source of income has been Centrelink benefits.
Other matters
[65] Section 392(3) of the Act provides as follows:
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
[66] The Applicant’s conduct contributed to the termination of employment. I will reduce the amount of the order I will make.
[67] Having regard to all of the circumstances of the case and the provisions of s.392 of the Act I consider an appropriate amount of compensation to be six weeks salary subject to taxation.
[68] An order requiring payment within 14 days of this decision will issue concurrently.
COMMISSIONER
Appearances:
G B Nassis, the Applicant
P Salewicz, The Australian Industry Group for Calstores Pty Ltd
Hearing details:
2011.
Sydney:
March 14 and 16.
1 Exhibit S2 (GM1)
2 Transcript
3 Transcript PN586
4 Exhibit S2 (GM17)
5 Exhibit S2 (GM18)
6 Transcript PN800-801
7 Transcript PN214
8 Transcript PN918-921
9 (1995) IR 32 at 72.
10 Ibid.
11 Transcript PN242
12 Transcript PN1706-1707
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