Hasith Kavindu Akash Weerathunga Arachchige v Daniel Brian Kelly
[2022] FWC 361
| [2022] FWC 361 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hasith Kavindu Akash Weerathunga Arachchige
v
Daniel Brian Kelly
(U2021/9488)
| Deputy President Lake | BRISBANE, 18 FEBRUARY 2022 |
Application for unfair dismissal remedy – where no valid reason evidenced – where the Applicant was unfairly dismissed – where reinstatement not appropriate – where the Applicant was awarded two weeks’ pay as remedy
Hasith Kavindu Akash Weerathunga Arachchige (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Daniel Brian Kelly (the Respondent).
The Applicant commenced employment as a cook for the Respondent on 1 December 2020 and was terminated on 5 October 2021, effective either immediately (according to the Respondent) or on 7 October 2021 (according to the Applicant).
It is not in dispute that the application was made within time, the Applicant is protected from unfair dismissal, the Small Business Dismissal Code does not apply, and the dismissal did not involve a genuine redundancy.[1] The sole matter for determination is whether the Applicant’s dismissal was harsh, unjust or unreasonable.
Directions were issued for the filing of submissions and evidence. The Applicant complied with those directions. The Respondent filed a Form F3 and some supporting documentation prior to the Applicant’s submissions and evidence being filed. Despite repeated invitations from my Chambers, no further material was provided by the Respondent. Accordingly, I must rely on what had been filed prior to the hearing and the evidence given by the Respondent at the hearing.
This matter was heard before me on 27 January 2022 by video using Microsoft Teams.
Applicant’s material
The Applicant initially wrote in his Form F2 that he was dismissed because he refused to serve calamari and perform the head chef's duties, he did not work his full 38 hours per week and that he had inappropriately taken sick leave. However, he also provided a recording of the conversation between him and his manager (Mervyn) on 5 October 2021 during which he was told that he was being terminated for the following reasons:
(a)refusing to do updated weekly and daily specials since he had been a chef;
(b)refusing to do any extra reasonable overtime above the 38 hours;
(c)not working his 38 hours or accurately recording his breaks. Specifically, the concern was that the Applicant did not clock off at the end of the shifts. That is, it was said that he was meant to sign on at 11:00am and off at 2:30pm before clocking on again at 5:00pm for the evening shift;
(d)under-ordering in the kitchen leaving the kitchen out of stock; and
(e)inadequately preparation for service (that is, no fish stored or calamari thawed).
At the end of the recording, Mervyn confirms that the Applicant was fired effective immediately and that he had 48 hours to remove his things from his accommodation (which was supplied by his employer).
The Applicant gave further evidence in respect of each of the allegations against him at the hearing. In respect of the ordering of food for the specials, the Applicant stated that was not his responsibility. That role was within the purview of the head chef, and while he had agreed and was understood to be assisting in the head chef’s absence, he had told his manager that he could not be responsible for all the head chef’s duties because he was not good enough and lacked the skills and experience. He says he had ordered things for the specials during the head chef’s absence but that he could not do so on that particular occasion because he was on sick leave.
In respect of the allegations regarding the improper taking of sick leave, the Applicant says that he only took sick leave when he needed to. He had one issue with a growth under his eye, for which the doctor told him to rest and wash his eye twice a day. He was given a medical certificate covering three days, which he presented to his manager. As to the event with his leg, the Applicant denies threatening to take sick leave days in advance of doing so. He says that on the Saturday night he developed pain in his leg while at work and communicated that to those around him. The next day the pain worsened, and he told his manager that he could not work. He obtained a medical certificate from a medical practice in respect of it.
The Applicant denies that he engaged in timesheet fraud. He said he had a split shift arrangement with a two-and-a-half-hour break in the middle of the day. He was paid a weekly salary so he did not get paid more for having worked any overtime anyway. He said he cannot otherwise respond to the allegations about his supposedly inaccurate filling in of timesheets or not being working when he said he was, because they have not been particularised enough for him to address.
He denies that when he did order food, he under-ordered, and says that he cannot otherwise respond to the allegation because the Respondent has not provided any particulars.
As to the calamari issue, the Applicant’s evidence was that he prepared the same amount of calamari as had been prepped by the head chef on weekends. There had been many orders of calamari on the night in question and so they had gone through those containers faster than usual. When he had been asked to defrost more calamari quickly, the Applicant told Mervyn that it was his understanding that calamari required 24 hours to thaw correctly so he could not simply defrost more calamari by putting in hot water.
The Applicant asserts the dismissal was unfair because he was not given a verbal or written warning or otherwise made aware of any complaints about his conduct or previous mistakes. Further, he states that the termination was particularly unfair because he has completed many duties that he was not even supposed to do. He says that because of how busy it got sometimes, he could not handle everything and so had to minimise some extra duties.
The Applicant claims that his circumstances make the dismissal particularly unfair given that he is a single individual with no family or support in Australia. He says that when he heard he had been terminated, he mentally fell apart and became helpless because he knew it meant that he would have no place to stay, no income and no mental support.
Evidence of Rameera Buddika Weerarathna
The Applicant provided a statement in support of his application from Rameera Buddika Weerarathna, the Head Chef at the Respondent’s business. Mr Weerarathna’s statement was that:
“My name is Rameera and I have been working with Hasith for a more than 10 months (12.2020 – 10.2020), for my knowledge and experience he is best at what he was doing at work.
Regarding his dismissal, I was quite shocked when I heard that and about given reasons for his dismissal it seems very unfair because, when we both working together Hasith doing his duties for the perfection as well as getting good compliments from customers.
Regarding his working hours, as a head chef I have to monitor everyone’s working hours and duties. According to Hasith’s hours, I'm well aware that he is completing more than 38h awake allocated on the roster.
Hasith was also very hard-working person, he usually doesn't take sick leaves only if something critical happened to him, and also, he is very cooperative with all the staff.”
Mr Weerarathna gave evidence that the Applicant was not at the same level as a Head Chef and that, as a cook, would have some skills to fill in for his leave period but would require assistance. He further stated that he had no performance issues with the Applicant during his time working there and also confirmed that on one of the occasions that the Applicant required sick leave, Mr Weerarathna had himself taken the Applicant to see a medical professional and confirmed that the Applicant was indeed suffering a medical issue.
Respondent’s material
As I have stated above, the Respondent’s evidence was limited. He did, however, attend the hearing and provide submissions and evidence on his behalf. Mervyn, the Respondent’s Manager, and the person who had direct dealings with the Applicant and who had ultimately terminated his employment was not available for the hearing. While I am sure the Respondent gave evidence in good faith and based on what had been communicated to him, most of his evidence is hearsay. Even though the Commission is not bound by the rules of evidence, I am still required to base my decision on facts. In the present case, given the nature of the evidence before me, it is difficult to give much weight to the Respondent’s allegations given they cannot be validated or established apart from the Respondent’s testimony.
In the Form F3, the Respondent states that the Applicant was dismissed for poor performance and timesheet fraud. The Respondent expounded on the reasons for the dismissal as follows:
“Threating management with sick days on our busy booked days, then actually calling in sick with a chemist certificate.
Repeated refusal to do daily and weekly specials.
Refusal to do extra hrs past his 38hrs, even though he was not logging off between split shifts and using these hrs towards total hrs.
Under ordering food for kitchen
Inadequate prep time, refused to rectify.
Have attached statements and timesheets for proof.”
The Respondent provided a document titled, “Kavid”, which contained bullet points which largely sets out the matters listed above. There is an additional bullet point which states that on 5 October 2021, the Applicant requested a face-to-face meeting with Mervyn during which all of the above was discussed. The writer of the document noted that the Applicant recorded that meeting. During the meeting, the Applicant allegedly stated that he does not care about the ordering or making the specials on the basis that it was not his job.
The documents attached also included timesheets which indicate that the Applicant clocked on in the morning and did not clock out until late in the evening. Some of the timesheets which indicate the Applicant had been away on sick leave contain a handwritten notation stating that he had threatened to take sick leave and then did so.
Another of the documents provided by the Respondent is a handwritten note which states that the Applicant:
“messaged Kim informing her that he could not work 3.10.21 SUNDAY Do you too sore foot. I approached [the Applicant] at his unit to ask him if he could work. He told me that he could do lunch not dinner. He then walked with no limp to Remm’s car and went and got chemist medical cert stating he could not work on this day. I noticed [the Applicant] walking with no difficulty. Then morning of the 4.10.21 [the Applicant] walked to his car with no difficulty and then drove from hotel.”
The Respondent’s evidence at the hearing was that the Applicant had been threatening to take sick days on days when they were heavily booked, and then actually calling in sick. There were some notations suggesting this on the Applicant’s timesheets, though the author of those notes – Mervyn – was not available to expand upon them. The information relayed to the Respondent seems not always to have been accurate. The Respondent said that in respect of the Applicant’s absences on sick leave, both had been supported by medical certificates from a pharmacy. That is what the Respondent had understood from what he had been told. However, as it turned out, on one occasion the Applicant had received a certificate from a pharmacy and the other from a doctor. While I have no doubt that the Respondent was trying to be truthful, the information provided to him had not been correct.
Further, the Respondent states that the Applicant incorrectly filled in his time sheets, or in some cases, omitted to log off after he left the kitchen during a break or at the end of the day. By allegedly failing to accurately record his time, it appeared that the Applicant was working his full hours, and overtime, when he was not necessarily doing so. The Respondent asserts that they had to put on extra staff to cover the shortfall. It should be noted that the Applicant was paid a salary and the weekly amount was not varied and there was no overtime paid, however the Respondent asserts that by mis-recording his hours it appeared that the Applicant was meeting the 38-hour minimum requirement without necessarily working them. The Respondent’s allegations lacked evidence to support the contentions made.
It was also alleged that the Respondent would leave once he had finished his hours, while other kitchen staff finished the clean-up. Though he was on salary, they were paid hourly. This meant that the Respondent incurred more costs. The difficulty with these allegations is that there is no evidence other than the time sheets pointing towards the hours worked by the Applicant. Even if the Respondent's testimony is based in fact, the Respondent himself did not witness these occurrences, nor were any specific evidence given by those who may have.
The Respondent described the process for ordering specials as follows: on Wednesdays the specials are suggested for the following week so that they can be agreed, and the food ordered ahead of the Friday delivery and ready for service on the Monday. Therefore, the fact the Applicant was covered by a medical certificate on the Friday, Saturday and Sunday should have had no impact on his ability to order the specials because they were supposed to be in place by the previous Wednesday.
Another issue with the Applicant’s conduct was that the Respondent had been told that the Applicant was refusing to be flexible with respect to customer orders. That is, that if someone ordered something other than what was written on the menu – for example, replacing chips with a salad – the Applicant would not accommodate the request whereas the Respondent himself or the head chef would have done so without hesitation. The Respondent had also been told that people had complained of meals coming out cold but that had never happened when the head chef was cooking. Similarly, the Respondent says he was told that the Applicant was often outside on his mobile phone when he could have been preparing food.
In respect of the calamari matter, the Respondent asserts that there was not enough preparation and the quantities defrosted were incorrect. This meant that there was not enough calamari available for service.
As with all the allegations put by the Respondent at the hearing, there was no evidence to support them apart from the Respondent’s recollection of those occurrences being relayed to him. This makes it difficult to give any weight to his description of events.
The Respondent states that the Applicant had been paid one week's pay in lieu of notice.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]
(a) whether there was a valid reason for the dismissal
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. It is not sufficient that the employer believed, on reasonable grounds that the employee was guilty of the alleged conduct. [5]
The purported reasons for terminating the Applicant were set out above. Had the allegations been proved – particularly in respect of the dishonest recording of timesheets or deceptive attempts to rely on medical certificates – there may well have been a valid reason to terminate the Applicant’s employment. However, I cannot be satisfied on the evidence before me that the Respondent had a valid reason to terminate the Applicant.
In respect of the issues that may be better characterised as performance issues – the failure to order food for the specials, the defrosting of too little calamari, the slow service, the inflexible approach to the menu – if evidenced may have justified some disciplinary action or performance management. However, more likely it evidences a young cook without the experience, skills or proper instruction to act as head chef. The Applicant clearly struggled to confidently fill the gap left by the head chef’s absence.
The recording of the Applicant’s termination demonstrated a perfunctory approach where Mervyn listed the issues he had with the Applicant’s performance and terminated him. While it may be that this was not the first time that such matters were raised with the Applicant, there is no evidence of that being the case. Similarly, there does not seem to have been a concerted attempt by Mervyn, on the Respondent’s behalf, to document the issues he was having with the Applicant. It seems he had just decided that he had had enough of the Applicant and that he needed to be sacked. I would hope that this approach is not repeated by the Respondent or any of his managers in future.
Therefore, based on the evidence before me, I cannot be satisfied that the Respondent had a valid reason for dismissal, much less summary dismissal. I weigh this factor in favour of the Applicant.
(b) whether the person was notified of that reason
Based on the evidence provided and submissions made, I am satisfied the Applicant was notified of the reasons the Respondent sought to rely on to justify his dismissal. As noted above he was provided a verbal list of the reasons for his dismissal, however flawed the evidence for each of those allegations may have been. This factor weights in favour of the Respondent.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
The Applicant was not given an opportunity to respond. The Applicant attempted to respond however was told several times that he “was fired”.
(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
The Applicant was not aware that the meeting was regarding his termination so had not opportunity to bring a support person. This factor falls in favour of the Applicant.
(e) whether the person had been warned about unsatisfactory performance
This factor is not relevant. The Respondent asserts that the Applicant was dismissed for misconduct. The Respondent did state that the Applicant had had several verbal warnings on a number of the matters however failed to be able to provide dates or diary notes for the verbal warnings.
(f) and (g) the impact of the size of the employer’s enterprise & the absence of dedicated human resource management specialists or expertise had on the dismissal process
The Respondent did not have the benefit of dedicated human resource personnel.
(h) any other matters that the FWC considers relevant
The Respondent's dismissal of the Applicant was harsh when one considers all of the circumstances. I note that the Applicant was on working visa with no family or support in Australia. He was given 48 hours to leave his accommodation (which was provided as part of his employment) and was paid out one week in lieu of notice. The termination meant the Applicant had to find somewhere to live and a new job or face leaving the country. This does not seem to have been considered by Mervyn on behalf of the Respondent. The Respondent is in the hospitality business and there can be a high turnover and many junior employees. I would caution the Respondent to adopt proper procedure when performance or conduct issues arise with the workforce. There are many resources available for the Respondent, including the Commission website and the Australian Hotels Association.
Remedy
Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is inappropriate, and that it considers an order for the payment of compensation is appropriate in all the circumstances. In this case the Applicant has secured new employment and reinstatement is not appropriate.
I consider that an award of compensation is appropriate. In determining compensation s.392(2) provides that the Commission must take into account all the circumstances of the case, this includes the matters in s.392(a) to (g). The principles are outlined in decision of the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc.[6]
In considering each of the matters set out in s.392, I note that I have no evidence from the Respondent to suggest that an order for compensation would affect the Respondent’s viability. The Applicant had been employed for less than 2 years. I must also consider what may have occurred had the Applicant not been dismissed. This exercise is a hypothetical one. However, given the number of issues raised about the Applicant’s conduct and performance and their seriousness if they had been substantiated (which may have occurred if the Respondent himself had stood in the shoes of Mervyn and managed the disciplinary or termination process), I consider it likely that the Applicant would have been terminated shortly afterwards. Had the Respondent gathered detailed information regarding allegations – in particularly, the timesheet recording issues – and then followed the appropriate process, the Applicant would have remained employed for no longer than two weeks.
The Applicant found employment one month later which is perhaps due to the high level of motivation the Applicant had to remain in the country and the employment conditions in the hospitality industry. I make no deduction for contingencies.
Conclusion
I am satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable.
For the reasons set out above, I order the Respondent to pay two weeks’ salary to the Applicant.
DEPUTY PRESIDENT LAKE
[1] Fair Work Act 2009 (Cth) s.396.
[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].
[3] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371, 373.
[4] Ibid.
[5] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) [23]-[24].
[6] [2013] FWCFB 431.
Printed by authority of the Commonwealth Government Printer
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