Ilya Demin v Kwasi Studios

[2016] FWC 3434

[2016] FWC 3434 [Note: An appeal pursuant to s.604 (C2016/4171) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ilya Demin
v
Kwasi Studios
(U2016/694)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 31 MAY 2016

Application for relief from unfair dismissal – failure to attend determinative conference – small business fair dismissal code – application dismissed.

[1] On 18 February 2016 Mr Demin lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Kwasi Studios Pty Ltd (Kwasi Studios). That application was the subject of a determinative conference on 26 May 2016. Mr Demin did not attend the conference and could not be contacted. The conference proceeded on the basis that I advised Kwasi Studios that I intended to invite Mr Demin to provide, within seven days, reasons for his failure to attend. I advised that, if I was satisfied that Mr Demin had an acceptable reason for not attending, or not advising of his inability to attend, the matter may be listed for a further conference. Failing that, Mr Demin’s application would be determined on the material before me.

[2] In the conference, Ms Pierro, appeared for Kwasi Studios, as agent, pursuant to an grant of permission made under s.596(2)(a) of the FW Act. In providing for permission on this basis, I noted that in a directions conference convened on 28 April 2016 Mr Demin indicated that he did not oppose such a request.

[3] Following the conference I issued directions in which I provided an opportunity for Mr Demin to explain why he did not attend the conference or advise of his non-attendance. These directions required Mr Demin to provide written advice of his position. They stipulated that, in the absence of any such advice, or, if I considered that his position was not acceptable, I would simply determine the matter on the material before me, which included submissions and documents provided by Mr Demin consistent with directions issued on 28 April 2016. No further advice has been received from Mr Demin.

[4] On 30 May 2016 Mr Demin provided a detailed response setting out the circumstances which led to his non-attendance. This was to the effect that he had recently received information from another former Kwasi Studios employee which indicated that a decision to dismiss him had been made at a time before he was advised of that dismissal. Mr Demin said that he had little sleep before the conference date as he had been trying to access computer records to confirm this. However, fundamental to Mr Demin’s non-attendance was his advice that he mistook the conference date and had his mobile telephone on silent so that he did not hear the calls from the Commission. Mr Demin sought another conference date and sought to call a former employee as a witness.

[5] Simply put, I am not satisfied that Mr Demin has provided a satisfactory reason for failing to attend the determinative conference about which he received multiple advices. There is no dispute in this matter that Kwasi Studios was a small business at the time of the termination of Mr Demin’s employment. A fundamental purpose of the approach to the treatment of small businesses is directed toward the expedited consideration of an unfair dismissal claim. Convening a further conference simply because Mr Demin forgot to attend the scheduled conference would seem to me to be inherently unfair to Kwasi Studios. In any event, I am not satisfied that the additional assertions made by Mr Demin are either made clear or are relevant to the consideration of his application. As a consequence, I have considered the application on the basis of the information before me.

[6] I have summarised the background to this matter on the basis of the material before me. Mr Demin was employed by Kwasi Studios as a technical web design and improvement specialist from 7 October 2014 to 29 January 2016. Kwasi Studios assert that it was, at the time of the termination of his employment, a small business. There is nothing that indicates that this assertion is opposed. Consistent with s.396 of the FW Act, the initial consideration in this matter relates to whether the termination of Mr Demin’s employment was consistent with the Small Business Fair Dismissal Code (the Code). Section 385 establishes that, if the termination of Mr Demin’s employment was consistent with the Code, that termination cannot then be considered unfair.

[7] The parties were made aware, through a directions conference on 27 April 2016, and subsequent directions, that the conference on 26 May 2016 would deal with both the operation of the Code, and evidence relative to the merits, or s.387 of the FW Act. Both parties have provided material which enables these issues to be considered.

[8] The Kwasi Studio’s position is that the termination of Mr Demin’s employment was a consequence of his continuing poor performance, about which he was warned, and consistent with the Code, given the opportunity to have a support person present and was aware that employment termination was a possibility. Kwasi Studios assert that Mr Demin was dismissed because he did not complete client and internal tasks by their due date and his work quality and output was not acceptable. Further, that he did not plan and complete tasks within budget and did not cooperate or properly communicate with other staff.

[9] Kwasi Studios asserts that, in the alternative, consideration of s.387 should result in a finding that the termination of Mr Denim’s employment was not unfair.

[10] Mr Demin’ position is that the termination of his employment followed a request he made to be paid for overtime he was required to work. Mr Demin asserts that he was not advised in advance of a performance review which occurred on 30 November 2015 and hence was not able to access a support person. The material provided by Mr Demin indicates that he understood that he could still achieve a pay increase on the one year anniversary of his employment and that a further performance review was set for 8 January 2016.

[11] Mr Demin asserts that on 4 December 2015, he sought to be paid for overtime work he had done but was told that he would not be paid because he had made a mistake that had to be remedied at his own expense. Mr Demin asserted that he subsequently lodged a complaint about this issue with the Fair Work Ombudsman (the FWO). Mr Demin’s position appears to be that he did not further pursue this complaint for fear of retribution but that he again raised the issue of overtime payments on 7 December 2015, which promoted an angry reaction from Kwasi Studios management. Mr Demin appears to contend that his scheduled performance review was then cancelled and that on 17 December 2015, allegations of under-performance were made to him. Mr Demin appears to contend that he was then given a formal performance improvement plan. This plan required him to do more work without a change in his pay.

[12] Mr Demin appears to contend that a Christmas message led him to understand that issues relating to him had been resolved. Notwithstanding this, he asserts that Kwasi Studio’s chargeable time expectations were unreasonable and that he was unable to achieve those targets in any event. The material provided by Mr Demin appears to concede that he did not achieve the chargeable time targets and asserts that he requested more time and feedback from Kwasi Studios but that he received no response to those requests. He asserts that the time he spent pursuing these issues further distracted him from his work targets. Over this same period, Mr Demin appears to assert that performance concerns brought to his attention were unfounded. He links these performance concerns and his ultimate dismissal to his overtime payments claim.

The Evidence

[13] In reaching a conclusion in this matter, I have considered all of the material provided by Mr Demin about his employment circumstances. I have also considered the evidence of Mr Kwasi and that of Ms Pierro.

Findings

[14] Mr Demin was engaged under a contract dated 9 September 2014. 1 That contract provided for hours of work between 9.00 am and 5.00 pm Monday to Friday but specified that additional hours may be required. Further, the contract provided for Mr Demin to receive an annual remuneration package of $58,035 per annum and recognised that he may be reasonably required to work, or attend functions or training outside of normal working hours.2 That contract does not deal with overtime or overtime payments so that I have concluded that Mr Demin’s annual salary incorporated recognition of reasonable additional working requirements.

[15] Mr Demin’s employment contract provided for remuneration which was significantly in excess of any relevant minimum award obligation. Consequently, I am not satisfied that a right to paid overtime is established in the manner asserted by Mr Demin.

[16] Mr Demin relies on various documents to support his position in various key respects. I am not satisfied that a number of those documents properly reflect his characterisation of them. I am not satisfied that Mr Demin’s reliance on an email sent to him by Mr Kwasi on 27 November 2015 established a right to an additional payment, or to payment of overtime for the remedial work which Mr Kwasi requested Mr Demin to undertake.

[17] I am not satisfied that Mr Kwasi’s email to Mr Demin of 30 November 2015 3 which confirmed a performance review meeting scheduled for 8 January 2016, was a consequence of his request for payment of overtime. I have concluded that this performance review followed Mr Demin’s request for a pay increase and reflected concerns about Mr Demin’s performance. This is consistent with Mr Demin’s own advice that the performance review was arranged in the meeting on 30 November 2015 where he asked for a wage increase.4 It is also consistent with the evidence given by Mr Kwasi in the conference.5 Further, I have concluded that in the course of the meeting of 30 November 2015, Mr Kwasi issued a verbal warning to Mr Demin relative to his work performance.6

[18] I have concluded that Mr Demin continued to assert that he had a right to payment for work he undertook on the weekend of 28 November 2015 and that Kwasi Studios reiterated that, pursuant to the terms of his contract, payment for this work was not applicable. 7 It is also clear that Kwasi Studios repeatedly raised with Mr Demin, its concerns about his performance. This is clear from both the evidence of Mr Kwasi8 and the copies of emails which were sent to Mr Demin.9

[19] Mr Demin’s assertion that he lodged a complaint with the FWO is not supported by the material before me. I acknowledge that he may well have done so, either before or, more likely, after the termination of his employment. The email of 25 February 2016 10 upon which he relies in his assertion that the termination of his employment occurred because he sought to exercise an employment right, does not support his position. It is simply the case that Kwasi Studios confirmed in this email that, having terminated his employment, it was waiving certain restraint of trade terms of the employment contract.

[20] To the extent that Mr Demin asserts that a general Christmas message sent to all Kwasi Studios staff indicated that the concerns which had previously been raised with him about his performance had been resolved, his position is unrealistic.

[21] Mr Kwasi’s email to Mr Demin of 18 December 2015 11 provided a very clear summary of the concerns about his work and work performance. It referred to possible termination of his employment consequent upon a performance review on 29 January 2016. Mr Demin’s reply to this email of the same date12 confirms that he understood the possibility of employment termination because he sought advice about whether that termination would be of a summary nature.

[22] The evidence of Ms Pierro and Mr Kwasi confirms their awareness of the Code and Mr Kwasi’s completion of the Code Checklist, 13 albeit around a month after the termination of Mr Demin’s employment. Consequently, I have not relied upon the Code Checklist in order to reach a conclusion about compliance with the Code.

The Small Business Fair Dismissal Code

[23] The Code states:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[24] The termination of Mr Demin’s employment did not occur on a summary basis. The termination of employment advice 14 establishes that Mr Demin was paid one month’s notice consistent with his employment contract. That termination advice confirmed the advice provided to Mr Demin in his discussions with Mr Kwasi on 29 January 2016 and detailed the various performance concerns which led to the termination of his employment. I am satisfied that those reasons for termination represent valid reasons which related to Mr Demin’s conduct or his capacity to do the job.

[25] Mr Demin was given a verbal warning on 30 November 2015 relative to his work performance. Further, the warning of 18 December 2015 15 advised Mr Demin that he risked being dismissed if there was no, or insufficient improvement, in his work performance. Mr Demin had the opportunity to address these performance concerns and to clarify any doubt that he may have had about the expectations of him.

[26] The performance review which resulted in the termination of Mr Demin’s employment was confirmed in an email on 28 January 2016. 16 That email advised Mr Demin that he was welcome to have a support person with him at this meeting.

[27] Consequently, I am satisfied that the requirements of the Code have been met in these circumstances. Section 395 establishes that, in this situation, where the termination of Mr Demin’s employment was consistent with the Code, that dismissal cannot then be unfair. Mr Demin’s application must accordingly be dismissed. An Order (PR580890) to this effect will be issued.

Appearances:

R Pierro agent for the Respondent.

Hearing (Determinative Conference) details:

2016.

Adelaide:

May 26.

 1   Exhibit R2, Attachment WK2

 2   Exhibit R2. Attachment WK2, cl 3.2

 3   Exhibit A1, Attachment 3

 4   Exhibit A1, para 7

 5   Audio Recording, Transcript, 26 May 2016, 10.25 am

 6   Audio Recording, Transcript, 26 May 2016, 10.24 am

 7   Exhibit A1, Attachment 9

 8   Audio Recording, Transcript, 26 May 2016, 10.33 am

 9   See for example Exhibit A1, Attachments 15, 17, 18 and 19

 10   Exhibit A1, Attachment 8

 11   Exhibit A1, Attachment 20

 12   Exhibit A1, Attachment 21

 13   Exhibit R3, Attachment WK11

 14   Exhibit R3, Attachment WK10

 15   Exhibit A1, Attachment 20

 16   Exhibit R3, Attachment WK8

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