James Cappello v Spark Management Pty Ltd

[2020] FWC 6570

[2020] FWC 6570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Cappello
v
Spark Management Pty Ltd
(U2020/8121)

DEPUTY PRESIDENT DEAN SYDNEY, 14 DECEMBER 2020

Application for an unfair dismissal remedy – application dismissed

[1] Mr James Cappello has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009. Mr Cappello claims that he had been unfairly dismissed by Spark Management Pty Ltd (Spark).

[2] Spark denies that Mr Cappello was dismissed and contends that Mr Cappello abandoned his employment having failed to attend work on 5 and 6 June 2020. It also claims that Mr Cappello is not able to make an application for an unfair dismissal remedy because it is a small business and the Small Business Fair Dismissal Code (the Code) applies.

[3] The application was heard by video on 29 October 2020. At the hearing Ms A Costin of Counsel appeared with permission for Mr Cappello, and Ms K Parkinson, Director, appeared for Spark Management. Evidence was given by Mr Cappello and Ms Parkinson.

[4] For the reasons set out below, I find that Mr Cappello’s dismissal was not unfair and accordingly his application is dismissed.

Events leading to the termination of Mr Cappello’s employment

[5] Mr Cappello commenced employment with Spark in March 2018. According to Ms Parkinson, Spark is a labour company which provides employees for Hopscotch Bar and Young and Frisky Pub. Mr Cappello was employed to work at Hopscotch Bar, initially as a bartender on a casual basis, and later moving into a supervisory role. At the time his employment with Spark came to an end, he was engaged in a full time capacity in a ‘Second In Charge’ supervisory role.

[6] The events leading to the end of Mr Cappello’s employment from the perspective of Spark are set out in a letter Ms Parkinson wrote to Mr Cappello on 9 June 2020 which is in the following terms:

“Dear James,

As you are aware Hopscotch Bar was directed by Federal and Territory Government to cease trade on 23 March 2020 due to the worldwide COVID-19 pandemic.

Accordingly, you were stood down from your position at Hopscotch Bar on 23 March 2020.

On or about the week of 1 May 2020, we requested you return to work.

Between 1 May 2020 and 31 May 2020 you were required as part of the Job Keeper program which you were eligible for as an employee of Spark Management Pty Ltd to attend work limited hour per week and perform cleaning and general maintenance tasks with the other employees on these scheme.

During the week of 25 May 2020 you were advised along with former Manager Dylan Aitolu and the remainder of the Job Keeper staff that Hopscotch would be reopening in a limited capacity from Friday 5 June 2020.

You were advised that your shifts for the week of 1 June 2020 were Friday 5 June at 2 pm and Saturday 6 June at 3pm.

On Thursday 4 June 2020, Mr Aitolu ceased employment effective immediately. Mr Brian Smith, Operations Manager sat down with you following Mr Aitolu's departure and discussed this with you. You responded that you were not going anywhere and were on board and committed to Hopscotch Bar.

On Friday 5 June 2020, you were due to start work at 2pm.

On Friday 5 June 2020, Mr Smith called you at 12.29pm and 1.36pm and sent you a text message at 1.37pm confirming your ability to work. You did not take or return his phone calls or respond to his text message, although we note the text message was read.

We confirm you did not turn up to work at 2pm on Friday 5 June 2020.

We confirm that you did not turn up to work on Saturday 6 June 2020 at 3pm.

On Monday 8 June 2020 at 9.49pm you send a text message stating ‘you have heard from people I have been fired, but you guys haven't told me anything about that, what's happening with my leave then can I get that paid out. And a written reference’

Your assertion that we fired you is incorrect and inaccurate. It is clear that you have chosen to abandon your job.

We note you are not in possession of any Hopscotch property and any annual leave you have accrued will be paid out in today's pay run.

Therefore, this finalises our business relationship.

We wish you all the best in your future career.

Kate Parkinson”

[7] Mr Cappello says that on Thursday 4 June 2020 he was at work undertaking cleaning in preparation for the upcoming re-opening of Hopscotch Bar. The General Manager, Mr Aitolu, attended work to meet with a representative of Spark management, Mr Smith. After that conversation Mr Aitolu advised Mr Cappello that he had resigned effective immediately and left the premises.

[8] Mr Cappello was then asked to attend a meeting with Mr Smith during which he confirmed that he wished to continue in his employment notwithstanding the departure of Mr Aitolu.

[9] Mr Cappello says he was advised by Mr Smith to go home and that the re-opening scheduled for the following day, Friday 5 June, would be pushed back to Saturday 6 June and he would be contacted regarding his roster for the weekend. He says he assumed this contact would be via the Hopscotch Bar Facebook page, as this was the only way of communicating with all staff, and was used to upload rosters etc.

[10] Mr Cappello contended that at no stage had he been uncontactable over that time period and did not receive any calls from Mr Smith until Sunday 7 June when he sent a text message to Mr Smith asking why he had not been rostered for the re-opening.

Was Mr Cappello dismissed?

[11] Mr Cappello’s application can only proceed if he was dismissed. A person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative (s386(1)(a).

[12] In this case, I am not satisfied that Mr Cappello abandoned his employment, as asserted by Spark. Abandonment of employment has a particular meaning, which was considered by a Full Bench in the context of the award modernisation review process 1:

“[21] “Abandonment of employment” is an expression sometimes used to describe a situation where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract. This may be termed a renunciation of the employment contract. The test is whether the employee’s conduct is such as to convey to a reasonable person in the situation of the employer a renunciation of the employment contract as a whole or the employee’s fundamental obligations under it. Renunciation is a species of repudiation which entitles the employer to terminate the employment contract. 5 Although it is the action of the employer in that situation which terminates the employment contract, the employment relationship is ended by the employee’s renunciation of the employment obligations.”

[13] The factual circumstances of this matter, particularly that Mr Cappello contacted Spark on the morning of Sunday 7 June 2020, does not support a finding that Mr Cappello evinced an unwillingness to substantially perform his obligations under his employment contract on an ongoing basis.

[14] Accordingly, I am satisfied and find that Mr Cappello’s employment was terminated at the initiative of Spark, effective 9 June 2020.

Was Mr Cappello’s dismissal consistent with the Code?

[15] Spark contends that it is a small busines employer, having 14 employees at the time Mr Cappello’s employment ended. This was evidenced by the production of payroll records and the evidence given by Ms Parkinson, including evidence given in cross examination. She confirmed she had more than 15 employees prior to her business being shut down due to COVID-19, and all employees not eligible for JobKeeper payments were terminated at that time the business was closed some months earlier.

[16] Mr Cappello disputed that Spark was a small business but did not provide any evidence in support of his contention.

[17] I am satisfied, based on the payroll records and evidence of Ms Parkinson, that Spark is a small business employer at the time of Mr Cappello’s dismissal. I will now consider whether Mr Cappello’s dismissal was consistent with the Code.

[18] The Code is set out below:

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.

[19] The Code can only apply in this case if Mr Cappello’s conduct was sufficiently serious as to warrant immediate dismissal. This is because there is no contention by Spark that Mr Cappello was warned of any risk of dismissal, and so “Other Dismissal” does not apply.

[20] In deciding whether the conduct of an employee was sufficient to justify summary dismissal, the Commission does not have to make a finding, on the evidence, whether the conduct occurred. The Commission needs to find whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal. It is not necessary for the Commission to determine whether the employer was correct in the belief that it held.

[21] For an employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish that they did in fact hold the belief that:

a. the conduct was by the employee

b. the conduct was serious, and

c. the conduct justified immediate dismissal.

[22] The employer must establish that they had reasonable grounds to hold the belief.

[23] Ms Parkinson gave evidence that the reason Mr Smith spoke with Mr Cappello immediately after the departure of Mr Aitolu was because Messrs Cappello and Aitolu were ‘best friends’ and Spark were concerned that Mr Cappello may also wish to depart. She said that as a supervisor, Mr Cappello’s attendance at work was essential for their re-opening on 6 June 2020 since the lockdown due to the pandemic. She explained that this was why Mr Smith tried to call Mr Cappello on two occasions on Friday 5 June, and sent him a text message that day asking him to confirm whether he was “right to work tomorrow or not?”.

[24] Ms Parkinson also gave evidence that Mr Cappello was rostered to work on Friday 5 June and Saturday 6 June. In terms of the manner in which staff were advised of their rostered shifts, she said that the Facebook page was a method usually used by non-supervisory staff, but not by management staff. She specifically said it was not the method used for Mr Cappello as a supervisory employee, and he was rostered for his shifts in their formal rostering and time management system called Easy Employer, to which he had access.

[25] Mr Cappello said he did not receive any missed calls from Mr Smith and did not receive his text message. He gave evidence that he was told by Mr Smith to go home on Thursday 4 June and would be contacted about his next rostered shifts, which he expected to be posted on the Facebook page. He only contacted Mr Smith on Sunday morning because he did not know when his next rostered shift was.

[26] Spark clearly held a concern as to whether Mr Cappello wanted to continue in employment given the departure of Mr Aitolu. It made attempts to confirm his attendance at his next rostered shifts by attempting to call him and sending the text message. There is no dispute that Mr Cappello did not attend work on Friday 5 June, and did not attend the opening night on Saturday 6 June.

[27] Ms Parkinson noted that the text message from Mr Smith to Mr Cappello had been deleted from the text messages annexed to Mr Cappello’s witness statement, which she alleged was done to mislead the Commission and strengthen his case.

[28] There is no reasonable explanation as to why Mr Cappello did not receive the text message as he alleged. It is clearly contained in the text messages attached to Ms Parkinson’s witness statement. The only reasonable explanation is that it was deleted by Mr Cappello, and I so find. This casts doubt on the rest of his evidence, including that he did not receive any missed calls from Mr Smith on his phone on Friday 5 June. To the extent, therefore, that there is a dispute between the evidence of Ms Parkinson and Mr Cappello, I prefer the evidence of Ms Parkinson. I am satisfied that Spark called Mr Cappello on two occasions and sent him a text message to confirm his attendance for his next rostered shift. It was particularly important that Mr Cappello attend work because it was the re-opening of Hopscotch Bar. Spark management undertook these steps because of the concern held as to whether Mr Cappello wished to remain employed given the departure of Mr Ailolu.

[29] The difficulty however is that Spark contended that Mr Cappello abandoned his employment. I do not have sufficient evidence to find that Spark held a reasonable belief that Mr Cappello’s conduct justified his immediate dismissal. On this basis, I must find that his dismissal was not consistent with the Code and accordingly I turn to whether Mr Cappello’s dismissal was otherwise unfair.

Was Mr Cappello’s dismissal unfair?

[30] Section 385 of the Act, set out below, defines what is an unfair dismissal.

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[31] There is no suggestion that Mr Cappello’s dismissal was a case of genuine redundancy.

[32] Having found that Mr Cappello was dismissed, that the dismissal was not consistent with the Small Business Fair Dismissal Code and was not a case of genuine redundancy, Mr Cappello has been unfairly dismissed if I am satisfied that it was harsh, unjust or unreasonable.

[33] 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.

[34] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.²

Valid reason - s.387(a)

[35] In order 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 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.⁵

[36] Without repeating the contents of paragraphs [23] to [28] above, I am satisfied that Mr Cappello failed to attend for work when rostered. While this may not usually constitute a valid reason for dismissal, the particular circumstances here include that:

a. Mr Cappello was a Second in Charge Supervisor;

b. It was the re-opening weekend of the Bar after having been closed for some months due to COVID-19,

c. Spark had specifically discussed with Mr Cappello his willingness to continue working after the departure of Mr Aitolu the day before; and

d. It made three attempts to contact him to confirm his attendance for his next rostered shift.

[37] Further, there was nothing that arose in Mr Cappello’s evidence during the hearing that otherwise provided a reasonable excuse for his non-attendance.

[38] His non-attendance at work in these circumstances, and his untruthfulness as to the receipt of the text message, in my view constitute a valid reason for the termination of his employment.

Notification of the valid reason and opportunity to respond - s.387(b) and (c) 

[39] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,⁶ in explicit terms⁷ and in plain and clear terms.⁸

[40] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.⁹ This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.¹⁰

[41] Mr Cappello was not advised of the reason for his dismissal before it took effect and was given no opportunity to respond to it. I accept, however, that this was the result of a genuine belief by Spark management that Mr Cappello had abandoned his employment and that it had not dismissed him.

[42] While he was not notified or given an opportunity to respond to the reason for his dismissal, I am not satisfied that this is sufficient to make his dismissal unfair. Additionally, there was nothing put by Mr Cappello in the hearing that would have otherwise explained his non-attendance that, if put to Spark before his dismissal, might have changed the outcome.

Unreasonable refusal by the employer to allow a support person - s.387(d) 

[43] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[44] Mr Cappello was not refused a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[45] There is no suggestion that Mr Cappello was dismissed for unsatisfactory performance and so this criterion is not relevant.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[46] Spark Management is a small business and I consider that its size and the absence of dedicated human resource expertise may have impacted on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[47] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[48] I do not consider there are other matters that require consideration under this subsection.

Conclusion

[49] I have considered each of the matters specified in s.387 of the Act, and having weighed up each of those matters, I am satisfied that the dismissal of Mr Cappello was not unfair. Accordingly, his application is dismissed.

DEPUTY PRESIDENT

Appearances:

A Costin of counsel for James Cappello.
K Parkinson for Spark Management Pty Ltd.

Hearing details:

2020.
Canberra and Sydney (By video):
October 29.

Printed by authority of the Commonwealth Government Printer

<PR725208>

 1   Abandonment of Employment [2018] FWCFB 139].

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) 62 IR 371, 373.

4 Ibid.

5 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

6 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

7 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

8 Previsic v Australian Quarantine Inspection Services Print Q3730.

9 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

10 RMIT v Asher (2010) 194 IR 1, 14-15.