Helen Lyberopoulos v Reidwell Investments BT Pty. Ltd. T/A Coco Cubano Blacktown

[2015] FWC 4256

[2015] FWC 4256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Helen Lyberopoulos
v
Reidwell Investments BT Pty. Ltd. T/A Coco Cubano Blacktown
(U2014/8864)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 10 JULY 2015

Application for relief from unfair dismissal.

[1] This decision arises from an application by Ms Lyberopoulos for an unfair dismissal remedy pursuant to section 394(1) of the Fair Work Act 2009 (the Act).

[2] Ms Lyberopoulos represented herself in these proceedings. Mr Reid from Reidwell Investments BT Pty Ltd, trading as Coco Cubano (Reidwell), represented the respondent.

[3] Reidwell did not lodge an Employer Response but it lodged a jurisdictional objection to the application which was heard by Deputy President Booth. It submitted that the applicant had been absent from employment on unauthorised leave from 15 May 2014 to 11 June 2014 and that that break constituted a break in employment so that the applicant had not been employed for the minimum employment period of six months. Deputy President Booth accepted Ms Lyberopoulos’s evidence and, in the absence of any support for Mr Reid's submission, concluded that Ms Lyberopoulos was on authorised leave. Reidwell’s jurisdictional objection was dismissed on 18 December 2014.

[4] It is necessary for me to determine whether Ms Lyberopoulos’s termination of employment was harsh, unjust or unreasonable having regard to the criteria referred to in s.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 for followed in effecting the dismissal; and

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

[5] Ms Lyberopoulos commenced work with another entity on 20 January 2014. Her employment was transferred to Reidwell on 19 May 2014. Her employment was terminated summarily on 3 August 2014.

[6] The letter of termination of employment is extracted below.

“Termination Letter

Date Sunday, 3 August 2014

Helen Lyberopoulos


Title: Store Manager – Rouse Hill Coco Cubano

This letter is to confirm that your employment and engagement for Reidwell Investments MV Pty Ltd, Trading As Coco Cubano Rouse Hill has been summarily terminated effective today 3^rd August 2014. This is due to an ongoing failure to comply with corporate franchisor governance procedures, as stated in the Coco Cubano Operations Manuals and as directed by Coco Cubano corporate staff and us, and continued failure to follow direction/s given to you by us the owners of the business regarding operational in store procedures and systems implemented to properly manage the business.

You have previously been given multiple directions by us to follow corporate franchise operational procedures and standards of conduct yet after many personal discussions to request you to follow the rules made for our brand you have failed to follow them.

We also recall your recent trip to the USA on a holiday in which you failed to notify us or request permission for any leave or any such trip. On this occasion we told you that you had lost our respect and trust. However on that occasion we retained your services but made it very clear that you had damaged the relationship significantly.

Your exhibited behaviour since April 2014 is and has been unacceptable and you have not acted in a manner befitting a senior employee in a position of trust. At the same time you have brought disrespect and injured the brand of Coco Cubano franchise in general through your varied actions.

Upon this termination of employment you must immediately:

Forward to the Company or its nominee any and all documents, memoranda, records, files, address lists, letters, video or audio tapes, credit cards, keys, business cards and other material (and all copies thereof) which may be in your possession or control which relates in any way to the affairs or business of the Company, its associated organisations or Franchisees.

Immediately resign from all offices, positions and authorities you hold related to the Company or associated organisations.

Not, without the prior written consent of the Company, except as required by law, divulge to any person the circumstances surrounding the termination of your employment with the Company.

In the event that any monies are owed to the Company by you at the termination of your employment, you agree that any entitlements due and payable to you, including commissions, bonuses, annual leave, and/or long service leave, may be offset in the amount outstanding to the Company.

We also note that we have reimbursed you onsite for you (sic) shirt and patches to the value of $60.

We are sorry this relationship has come to such an abrupt end however we wish you all the best in the future.

Yours sincerely”

[7] In a statement dated 7 March 2015 Mr Reid said:

“The applicant during her tenure was requested to assist in the running of the Blacktown store as at the time it had no full time manager.

Helen Lyberopoulos reported directly to myself.

The Applicants employment was summarily terminated on August 3^rd 2014. She was terminated for:

1. Failure to follow store and corporate brand procedures as detailed
in the Operations Manuals for the Coco Cubano Franchise
2. Continued abuse and lack of respect by not following my direct written and oral requests for work to be done and the way I wanted the business to be operated
3. Injury to the brand Coco Cubano corporate as continued non adherence to policies and procedures showed in poor performance reviews and customer feedback.
4. Involvement in the theft and financial misappropriation.”

[8] Having considered the evidence and submissions of the parties I have resolved various factual issues relevant to the criteria I am required to consider pursuant to s.387of the Act. In resolving the factual background and any conflict in the facts presented by the parties I have accepted the evidence of Ms Lyberopoulos in preference to that of Mr Reid or Mr Singh wherever there was a conflict. I did not find Mr Reid a reliable or credible witness. Despite my best efforts I experienced great difficulty in having Mr Reid concentrate and identify the reasons he relied upon to terminate the employment of Ms Lyberopoulos. 1 His evidence was that "… everything just snowballed for me,…"2 I did not find Mr Singh a reliable or credible witness. Mr Singh gave evidence regarding the conduct of Ms Lyberopoulos. He is on a working visa with Reidwell. He was a person in conflict with Ms Lyberopoulos for management roles. Since the termination of Ms Lyberopoulos’s employment he has been promoted from the kitchen to the management of the restaurant although, notably, without a pay rise. He was a person who had engaged in previous misconduct in relation to a female staff member. On his own evidence he had held a female employee by the elbow and put her outside. Mr Reid acknowledged that he had seen a bruise.3 I did not accept the veracity of Mr Singh’s evidence and questioned his motivation. I concluded that Mr Singh was providing support to Mr Reid as his employer for his own purposes.

[9] I have set out key factual findings below.

• Mr Reid alleged that the applicant took unauthorised leave from 15 May 2014 to 11 June 2014. He relied upon that unauthorised absence as a reason for the termination of Ms Lyberopoulos’s employment. Her Honour Deputy President Booth has already dealt with this issue in her decision regarding the respondent’s jurisdictional objection. She concluded that Ms Lyberopoulos was on authorised leave for that period. On the material before me there is no reason to disturb her Honour's finding. Indeed, I would make the same finding. In relation to the alleged unauthorised absence I reject the evidence of Mr Reid. I accept that the applicant advised Mr Reid of her absence and in any event stayed in touch with the staff of the restaurant in an entirely appropriate fashion. The leave in question was not a valid reason for the termination of Ms Lyberopoulos’s employment. To the extent that this was relied upon by Mr Reid it was harsh, unjust or unreasonable for him to do so.

• Mr Reid took exception to Ms Lyberopoulos’s leave and resented it.

• Ms Lyberopoulos attended a meeting with Mr Reid and two other persons at 4:15 PM on 3 August 2014. At that meeting there were four reasons provided for the termination of her employment. They were:

1. A staff member didn't pay for her lunch at the time of purchase but paid at the end of her shift. She produced a receipt for payment.

2. A supervisor at the Blacktown store had provided free drinks to customers. Ms Lyberopoulos should have been aware of this even though she was rostered to the Rouse Hill store. Ms Lyberopoulos responded that she could not control people's actions when absent from work. If she had been told beforehand she would have disciplined the supervisor.

3. Ms Lyberopoulos was alleged to have passed on money to existing staff to go for group drinks. Ms Lyberopoulos responded that she did not hand over the tips but acknowledged that she should have been aware of it having occurred.

4. As a result of these matters Mr Reid said that he no longer had confidence in her and he was terminating her on the spot.

• The failure of a single staff member to pre-pay for lunch was not a valid reason for summary termination of employment. It was not, in conjunction with other matters relied upon by Mr Reid, a matter of sufficient weight to contribute to the issues relied on by Mr Reid which led to the termination of Ms Lyberopoulos’s employment. To the extent that it was relied upon by Mr Reid it was harsh, unjust or unreasonable for him to do so.

• Ms Lyberopoulos could not be held responsible for the actions of staff at a store at which she was not in attendance. To the extent that this was relied upon by Mr Reid it was harsh, unjust or unreasonable for him to do so.

• Mr Reid relied upon Ms Lyberopoulos providing tips to staff to go to group drinks or allowing/approving/failing to stop such conduct. Mr Reid’s position was that gratuities left for staff belonged to the respondent and were to be used to top up any losses in the till. Mr Singh gave evidence that any excess might be used to provide vouchers for use in the respondent's business. Mr Reid was committed to his view that providing gratuities to staff was a misappropriation of money belonging to the respondent. The money left in gratuities belongs to the staff. It is not the property of the respondent. If Ms Lyberopoulos provided staff gratuities to the staff, that conduct was giving the staff what belonged to them. If she approved, allowed or failed to prevent someone else giving staff their gratuities she was approving, allowing or failing to prevent the staff receiving what belonged to them. To the extent that this conduct was relied upon by Mr Reid it was harsh, unjust or unreasonable for him to do so. Mr Reid was not entitled to take staff gratuities as part of the respondent's income.

• Mr Reid relied on various matters of performance identified by an exchange of e-mails. I am not satisfied that any of the matters of performance identified in that correspondence amounted to a valid reason for the termination of Ms Lyberopoulos’s employment alone or in conjunction with any other matter relied upon by Mr Reid. To the extent that Mr Reid relied upon these issues of performance as valid reasons for the termination of Ms Lyberopoulos’s employment it was harsh, unjust or unreasonable for him to do so alone or in conjunction with any other matter.

• Ms Lyberopoulos was not provided with procedural fairness in relation to matters of performance. She was not warned in a manner that was appropriate that her employment might be terminated for any of the matters of performance relied on in Mr Reid's e-mail correspondence. In any event, I am satisfied that there was no merit in any of the complaints raised by Mr Reid. Mr Reid was an absentee employer. His manner of dealing with issues was “shoot from the hip”, careless, uninformed and unfair to Ms Lyberopoulos.

• In relation to all other matters Ms Lyberopoulos was not provided with procedural fairness. The termination of her employment was a predetermined matter and was dealt with in an offensive and aggressive manner entirely lacking in even ordinary good manners. The manner in which he dealt with Ms Lyberopoulos was a disgrace. Ms Lyberopoulos was escorted to the office to collect her handbag. Mr Reid insisted that she remove her work shirt and give it to him immediately. She only had a slim garment underneath her workshirt and it was a cold evening in August. She provided the shirt under protest. Mr Reid gave her $60 from the till which she had paid for the shirt. Mr Reid was abusive. He called Ms Lyberopoulos “a bitch”. Mr Reid threatened that if she was to "badmouth him" she would not get paid at all.

• Ms Lyberopoulos was dismissed without notice.

Valid reason - s.387(a)

[10] I am satisfied that Mr Reid’s reasons for the termination of Ms Lyberopoulos’s employment were the antithesis of sound, defensible and well founded.    4

[11] I am satisfied that there was not a valid reason for the termination of Ms Lyberopoulos’s employment, either summarily or with notice.

[12] Having considered the issues to which my attention is directed by s.387 of the Act I am satisfied that the dismissal of Ms Lyberopoulos was harsh, unjust or unreasonable.

Remedy

[13] Having determined that there was not a valid reason for the termination of Ms Lyberopoulos’s employment I now have to consider remedy. I have considered ss.390, 391 and 392 of the Act.

[14] I have considered whether the remedy of reinstatement is appropriate in the circumstances of this application. I am satisfied that it is inappropriate. Whilst many issues of merit in this application weigh in favour of reinstatement, I am satisfied that restoring Ms Lyberopoulos to employment with Reidwell would be entirely inappropriate. I am satisfied that it would place her in a position of likely mortification and expose her to possible further bullying. I have also taken into account the fact that Ms Lyberopoulos has, after a considerable delay, located further employment in a situation which provides her with an appropriate income and job satisfaction.

[15] I have considered whether an order for payment of compensation is appropriate in all the circumstances of this case and I am satisfied that it is. I have considered in particular the criteria set out in section 392(2) which I have extracted below.

“392 Remedy—compensation

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC 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 the FWC considers relevant.”

[16] I have considered the issues to which my attention is drawn by s.392 of the Act.

• There is no evidence that any order I might make in relation to compensation would have any effect on the viability of Reidwell's enterprise.

• Ms Lyberopoulos was not employed for a long period. I have given consideration to that issue.

• I have given consideration to the remuneration that Ms Lyberopoulos would have received had she not been dismissed. At the date of termination of employment Ms Lyberopoulos’s gross weekly wage was $1,492. Without the intervention of the termination of her employment I am satisfied that she would have continued to earn that amount for at least another 12 months.

• There is no evidence that Ms Lyberopoulos had any intention of leaving her employment and, apart from those reasons relied on by Mr Reid for the termination of her employment, there is no evidence of any matter which might otherwise have provided a reason for the termination of her employment prior to that date.

• I am satisfied that Ms Lyberopoulos made significant efforts to find other employment but was not successful until 21 January 2015, 24 weeks and 3 days following termination of employment, when she obtained a new position on a gross annual salary of $85,000.

• There is no evidence of any amount earned by Ms Lyberopoulos from termination of employment and commencement of the new employment on 21 January 2015.

• The amount likely to be earned my Ms Lyberopoulos from the date of my order until actual compensation is already known and I have taken that fact into account.

[17] I have not taken into account any shock or distress suffered by Ms Lyberopoulos. I have not reduced the amount of compensation by any consideration of any possible misconduct by Ms Lyberopoulos. I am satisfied that she did not engage in any misconduct. I have considered the compensation cap at the date of Ms Lyberopoulos’s termination of employment and the amount I have ordered be paid to Ms Lyberopoulos in lieu of reinstatement is below the compensation cap applicable at the date of termination of employment.

[18] I have determined that the appropriate compensation payable to Ms Lyberopoulos is 24 weeks and 3 days at $1,492 per week. I order the respondent to pay Ms Lyberopoulos the sum of $36,267 within 14 days. The applicant will be responsible for the declaration of that income and for the payment of any taxation arising from that income.

[19] If it is established that Ms Lyberopoulos was not paid her accrued entitlements on termination of employment these can be pursued separately elsewhere.

SENIOR DEPUTY PRESIDENT

 1   Transcript PN372 – PN427

 2   Transcript PN621

 3   Transcript PN1058

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