Jane Ann Parsons v AJSL Holdings Proprietary Limited T/A Viva Italia Ipswich

[2014] FWC 5280

[2014] FWC 5280

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jane Ann Parsons
v
AJSL Holdings Proprietary Limited T/A Viva Italia Ipswich

(U2014/6658)

COMMISSIONER SIMPSON BRISBANE, 15 AUGUST 2014

Application for relief from unfair dismissal - Objection that summary dismissal complied with Small Business Dismissal Code - Objection made out - Application dismissed.

[1] The following Decision, now edited, was issued during proceedings on 6 August 2014.

[2] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mrs Jane Ann Parsons (“the Applicant”) who alleges that the termination of her employment with AJSL Holdings Proprietary Limited trading as Viva Italia Ipswich, (“the Respondent”) was unfair in accordance with the definition contained within s 387 of the Act.

[3] The application was filed on the 22 April 2014. A jurisdictional objection was raised concerning the minimum employment period but that was dismissed and we proceeded to deal with the substantive issue concurrently with the objection that the dismissal was in accordance with the Small Business Fair Dismissal Code.

[4] Statements have been provided for the Applicants case by the Applicant, Ms Parsons, her husband Mr Christopher Parsons, and Ms Amanda Dick. They have been supported by a range of references that are favourable to the Applicant.

[5] The Respondent filed statements from Mr Anthony Stanton, Ms Sandra Stanton, Ms Hayley Burton, Ms Courtney Scott Dekker, Ms Brittni Helpin, Ms Ashleigh Tooley and Mr Jason Tooley. The Applicant filed statements in reply in relation to the statements of each of the Respondents.

[6] Notification was received from both parties that they didn’t wish to cross examine any of the persons who gave witness statements. Oral submissions by Mr Parsons on behalf of his wife, the Applicant, and Mr Stanton on behalf of the Respondent were provided. It is always difficult in regard to dealing with factual disputes when people are not called to give evidence on oath. However, the Act provides a capacity to try and manage these issues in conference, which we’ve sought to do today.

[7] Section 396 requires that I deal with the jurisdictional issue first. And the respondent relies, essentially, on the part of the Code dealing with summary dismissal, which reads as follows:

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 to be 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.

[8] The meaning of “serious misconduct” is defined in the regulations of the Act. The definition includes at Regulation 1.07 sub (2)(a):

Meaning of serious misconduct....

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

and I now go to (b)(ii):

the reputation, viability or profitability (indistinct) the employer’s business.

(3) For sub-regulation (1), the conduct that is serious misconduct includes each of the following -

(i) theft, or

(ii) fraud; or

(iii) assault;

and in that list is included, at (c):

the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

[9] As discussed in conference today, unlike the test in s.387(a) regarding whether there was a valid reason for dismissal, the application of the Small Business Code involves determining if there is reasonable grounds on which the respondent reached the view that the applicant’s conduct was serious enough to justify an immediate dismissal.

[10] The determination is based on knowledge available to the Respondent at the time of dismissal and involves assessing the steps taken by the Respondent to gain the relevant information. Authority on that matter is found in Narong Khammaneechan v Nanakhon Pty Ltd ATF Nanakhon Trading Trust T/A Banana Tree Cafe. 1

[11] A Full Bench viewed that decision favourably in John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo. 2 The Full Bench also referred to a decision of Senior Deputy President O’Callaghan in Harley v Rosecrest Asset Pty Ltd T/A Can Do International.3 Paragraph 29 of the Full Bench reads as follows:

We believe that the approach and observations in those two decisions are correct. There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether at the time of dismissal the employer held a belief that the employee’s conduct was sufficiently serious to justify immediately dismissal. Secondly, it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[12] I am conscious in dealing with this matter to consider the context, this is a small business restaurant and in that context the importance and seniority of the role of a Head Chef in a business of that nature in terms of its good management.

[13] Mr Stanton’s statement says that he took over the running of the business on 2 December 2013 when he bought the business, Viva Italia, and at that time he decided to keep all existing kitchen staff and two waitresses.

[14] The first issue of significance in deciding this question is the material going to an incident on 2 March. Mr Stanton said there was an incident on 2 March. It appears to be there’s no dispute there was an incident on 2 March which indicated that there were problems.

[15] Mr Stanton said he received reports of an incident between his Head Chef Ms Parsons, the Applicant, and a Second Year Apprentice, Ms Courtney Scott who, he said, was told they had a stand up argument in the kitchen which spilled out into the dining room and that the exchange between them was loud and was audible in the public dining area of the restaurant. Now, it appears to be that the statements subsequently provided by other people in the restaurant corroborate that that in fact occurred.

[16] Flowing from that, and while there were competing versions as to the actual nature of the incident between the Applicant, as Head Chef, and the Second Year Apprentice about the reasons why the incident occurred and where blame actually lay, it appears to be beyond a doubt that the blow up, as I colloquially describe it, did occur and it was something which would have had an impact on the restaurant in that it would have been audible to patrons.

[17] Flowing from that, Mr Stanton said he interviewed both Ms Scott and Mr Jason Tooley, his Site Manager. The following day Ms Scott accused Ms Parsons of bullying her on this night and this is what led to her having an emotional outburst. Mr Stanton said that Ms Scott told her that this behaviour had been going on for some time. Mr Stanton said that he spoke to the Applicant and Ms Parsons denied this allegation and gave her context as to the issues with Ms Scott’s performance as an apprentice. In the short term Mr Stanton decided to give both Ms Parsons and Ms Scott a formal warning about the incident. He says he made it clear that this behaviour would not be tolerated and that the next person to have an emotional outburst would be terminated.

[18] In terms of the claims of Ms Scott there is some corroboration for her version from other persons who provided statements about the way Ms Parsons conducted herself, as the Head Chef, towards Ms Scott and the manner in which she treated her which might provide some basis to support Ms Scott’s claims. I accept that Ms Parsons’ vehemently denies those claims but at the end of the day I am in a position where I can only deal with the material that’s put before me. It appears to be I’m dealing with a claim from Ms Parsons which is contested by a number of other persons that appear to support the claim of Ms Scott over a period of time, and I won’t go through each of the various incidents that were raised in the statements of others regarding the claim of bullying.

[19] It’s said that over the next month bits and pieces were heard by Mr Stanton from his Manager that indicated things were not going well in the kitchen. Mr Stanton said that in early April he asked his wife, Ms Sandra Stanton, to have a meeting with Ms Parsons to address issues that he was hearing about. He said he did this because he did not want Ms Parsons to feel intimidated by him and thought it could be an encouraging ear and it might bring better results. Ms Stanton’s statement said that prior to the meeting there were a range of times where hair had been found in people’s food, which seemed to be of particular importance to her.

[20] Mr Stanton said that he and his wife prepared a list of issues which Ms Stanton then discussed with the Applicant the following day, on Wednesday the 2nd. The list included the allegation of bullying by Ms Scott, the issue about hair being in food and I won’t deal with each of these in detail. An issue about the standard of crème brulee; an issue about the use of the wrong pizza dough; an issue about some sub standard mushrooms being used and about the kitchen not being cleaned properly.

[21] In the statement of Ms Parsons she has gone through and given her version in response to those issues, which contest the fact that the issues as raised against her were legitimate reasons for her to be subject to warning.

[22] In any event, I don’t find that these issues, bar the bullying issue, have any significant role in dealing with the jurisdictional question. Moving to the evening of Wednesday the 2nd April, it was said that Mr Stanton and his wife attended the restaurant to observe the results of the meeting that day. Towards the end of the dinner Ms Parsons came out of the kitchen, or as they say stormed out in a very emotional state, saying “I can’t work like this” or words to that effect.

[23] Mr Stanton said that Ms Parsons had claimed that Ashleigh, the daughter of Mr Stanton, who is also employed in the restaurant as the Head Waitress, had been abusive towards her in the kitchen. Mr Stanton said that he said nothing immediately. There was some silence. It was in the vicinity of other patrons. They were sitting in the outside area of the restaurant, and it was audible to the public who were dining in the restaurant. He said he was horrified by the unprofessional outburst and he regarded it as a repetition of the incident on 2 March. He said he spoke to his daughter about the incident. He actually formally warned his daughter about her conduct on that occasion.

[24] Ms Stanton’s version was that they were at an outside table area and her version of the words used by Ms Parsons are essentially the same as Mr Stanton’s. She believed it caused some embarrassment for the restaurant. She said she asked the Applicant to go back to the kitchen and on entering the kitchen discovered that Ashleigh was doing the cooking duties. Ms Stanton’s claim is she asked the Applicant to calm down and wash her face. Ms Stanton claims that she was later advised that the Applicant didn’t return to work. Now, there’s some issue about this in the sense that Ms Parsons’ view is that the work was effectively completed. Other persons’ accounts are that Ms Parsons essentially abandoned work that evening and vacated her role as Head Chef, leaving the restaurant without a Head Chef for the last part of a shift.

[25] The following day Mr Stanton said because he had a day off his normal job he had a long talk to the Applicant. He said he told her that he held her responsible for unprofessional conduct. He said the mood in the kitchen was sullen. He said that he told the Applicant he was keen to see the problem with the kitchen resolved and that he would try to come in on Friday night. As it turned out he was unable to come in on Friday night because he said he had babysitting responsibilities. It seems to me the evidence is, or the claim is, that certainly Ms Stanton says that she received a phone call at home later that evening from Mr Tooley, the Manager of the restaurant, saying again the Applicant had stormed out of the kitchen and he doubted that she would return.

[26] On the Saturday morning it’s claimed that Mr Tooley and his wife Ashleigh Tooley, (the daughter of Mr Stanton) visited Mr Stanton at home and described in some detail incidents that occurred, claiming that the Friday night was worse than the Wednesday night and making other allegations about Ms Parsons deliberately holding back meals. Mr Stanton has claimed that he proceeded to interview other employees about these claims to get their version that included the other apprentices and staff, to try and decide his view about the matters.

[27] A phone call was made by Mr Parsons on behalf of his wife, where he left a message on the phone of Mr Stanton, it seems, advising that his wife wouldn’t be coming to work until the following Wednesday and to ask him to contact Mr Parsons about the issue. That was in the context of Ms Parsons’ visiting a medical doctor and getting advice to take time off work. Although it would seem to be reasonably clear that this wasn’t communicated at that stage, as at the Saturday. Mr Stanton said he decided to present the allegations he had been presented with by Mr Tooley and his daughter in an email to the Applicant, which he wrote quickly and sent on the Saturday. He said he considered the email a warning and that its contents were being corroborated by other witnesses to the incidents referred to in the letter.

[28] The Applicant said that after having the problems with abuse from staff she was advised, by her doctor not to go to work on the 5th and to apply for WorkCover on the 7th for stress. Ms Parsons said that on the morning of the 5th her husband tried to contact Mr Stanton by phone. The Applicant said she received a message on her phone denying her husband access to a meeting with him. And Ms Parsons has provided the material that she has filed, a screenshot from her phone indicating that that was the message that she got and claiming that this itself is a breach of the Small Business Code. The Applicant accepts that she received the email from Mr Stanton on the Saturday setting out a range of allegations and seeking a response to those, which she says she spent Saturday and Sunday compiling a response to.

[29] I won’t deal with the other issues in any detail, in terms of the WorkCover matters on the Monday, because in the end I don’t think they’re particularly relevant to this particular element of what I need to determine. Because I’m really dealing with the question as to whether or not, at the time, firstly, Mr Stanton held a reasonable belief about Ms Parsons’ conduct being sufficiently serious to justify dismissal and secondly, to consider whether or not his belief is based on reasonable grounds. Mr Stanton said he received a response on 8 April, Tuesday, to his email of the 5 April. He claimed the tone was arrogant and it provided limited explanations and he said the responses did not represent someone who was listening to counsel or heeding earlier warnings.

[30] He said he investigated the Small Business Code by searching the internet, and looking up the meaning of “serious misconduct.” He said he looked at the Fair Work Ombudsman’s website and particularly the part dealing with: “A risk to reputation or profits of the employer’s business or deliberately behaving in a way that is inconsistent with continuing with employment.

[31] He said in light of the accounts of 5 other employees and Ms Parsons’ responses he formed a view that what occurred was serious misconduct and he said at 9.37pm he sent the email terminating the Applicant’s employment. It seems to me that email also incorporated other matters but ultimately there would be no opportunity to respond to those for the Applicant. The question really is whether or not they formed part of the reason and that would be sufficient support to make a finding that Mr Stanton had a reasonable basis for believing the conduct was serious misconduct.

[32] Mr Parsons on behalf of his wife has raised a few different issues which I will touch on. He raised the fact that Mr Stanton did not meet with Ms Parsons in the intervening time between the Saturday and the decision to terminate. Mr Stanton also refused to meet with Mr Parsons on behalf of Ms Parsons which really goes to the issue of procedural fairness, that in the context of summary dismissal it’s relevant for the purposes of deciding whether or not there had been sufficient steps taken to investigate the matter.

[33] The Applicant has also raised the issue of the various references that have been provided supporting the character of Ms Parsons and really for the purposes of saying that they raise a serious question about the possibility of the allegations being substantiated given the fact that she had a good employment record, it was said, between 4 May 2011 to the commencement of running the business by Mr Stanton.

[34] I need to draw a conclusion about the tests that I’ve considered. I have had regard to the material that’s put before me. I particularly have had regard to all of the statements that have been filed. I need to consider the fact that in these particular circumstances there are a range of witnesses that can give evidence that largely appear, and without dealing with each of the issues again that I’ve addressed, to corroborate the versions as being put against Ms Parsons but Ms Parsons is really the only person that can give evidence to contest those versions.

[35] So, dealing with the two issues I need to consider, I am satisfied, given the material that has been provided and what has been put, that at the time of dismissal Mr Stanton did hold the belief that Ms Parsons’ conduct was sufficiently serious to justify immediate dismissal. That particularly goes to the incidents in early March, the incident on the Wednesday evening and the incident on the Friday evening. If the incidents as claimed to have occurred and which appear to be supported by the statements for the Respondent as being right, did occur, then there is no question in my mind that that conduct would be conduct that would fall within the meaning of serious misconduct for the reason that such conduct would be conduct that could cause serious risk or serious and imminent risk to the reputation, viability or profitability of the employer’s business.

[36] There is also this issue about the wearing of a hairnet. Now, there have been some statements put by Ms Parsons about the fact that she contested the fact that it was a requirement for her to do that. There was no more material put forward that goes to whatever the rules are that might govern that but it appears to be fairly clear that Ms Stanton gave a direction that that was to be required and there appears to be a range of different staff corroborating the version that that wasn’t done on the Friday night. So for that reason it appears to me, on the balance of probability, there was a basis to find that that was a refusal to carry out a lawful and reasonable instruction.

[37] I need to secondly turn to consider whether or not the belief of Mr Stanton was based on reasonable grounds. I return to what I’ve just said. I’m faced with circumstances where the evidence is that the issues definitely occurred in March, and on the evening of the Wednesday night. There’s contest about what exactly happened on each of those occasions but there’s no contest that the incidents actually occurred. Now, it appears to be Mr Stanton, particularly on the Saturday, took steps to speak to, interview and try and find out what people’s respective versions were before he sent the email on the Saturday.

[38] In all the circumstances I am satisfied that was sufficient for him to have formed a reasonable basis for the views that he held. I note there’s a response provided by Ms Parsons to that but at the end of the day I’ve got to decide whether he had a reasonable basis to form the view that he did about the conduct having occurred and I am satisfied that he did. On that basis I find that the Small Business Code jurisdictional objection is made out. I emphasise the fact that at the end of the day these findings are made on the balance of probability.

[39] I can’t say here, as one might do in a different sort of matter, that it’s beyond doubt these things happened and at the end of the day the nature of these cases have to be sorted on balance. And the material before me does satisfy me on balance that, for the reasons I have given, the Code has been satisfied by the Respondent. So on that basis the application must be dismissed.

COMMISSIONER

 1   [2010] FWA 7891

 2   [2012] FWAFB 1359

 3   [2011] FWA 3922

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