Janusz Kacprowicz v Melbourne City Sightseeing Pty Ltd T/A Melbourne City Sightseeing

[2016] FWC 2584

[2016] FWC 2584

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janusz Kacprowicz
v
Melbourne City Sightseeing Pty Ltd T/A Melbourne City Sightseeing
(U2015/16601)

COMMISSIONER GREGORY MELBOURNE, 30 MAY 2016

Application for relief from unfair dismissal.

Introduction

[1] Mr Janusz Kacprowicz was employed by Melbourne City Sightseeing in May 2013 and worked as a bus driver. However, he was dismissed in November last year for allegedly putting the reputation of the business at risk.

[2] On 8 December 2015 Mr Kacprowicz filed an unfair dismissal application and this decision deals with that application.

[3] The matter was set down for hearing on 21 April 2016, however, a conference was convened on 19 April 2016 as Mr Kacprowicz had not filed materials in support of his application in accordance with the directions issued previously. Mr Kacprowicz was assisted in this conference by an interpreter and indicated he was not aware he was required to file submissions and evidence in support of his application. However, he indicated he would now proceed to prepare and file any evidence and submissions he sought to rely on in support of his application.

[4] After further discussions in the conference both parties also indicated they were now prepared to have the matter dealt with on the basis of the submissions and evidence filed. They each subsequently provided written confirmation of this at the Commission’s request. The scheduled hearing was accordingly cancelled.

The Issue to be Determined

[5] Mr Kacprowicz claims he has been unfairly dismissed because his dismissal was harsh, unjust or unreasonable. In determining an unfair dismissal application the Fair Work Act 2009 (Cth) (“the Act”) requires that the Commission must take into account the various considerations contained in s.387. It states:

“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 followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.” 1

[6] Therefore, has Mr Kacprowicz been unfairly dismissed, taking into account the considerations in s.387, on the basis that his dismissal was harsh, unjust or unreasonable?

The Evidence and Submissions

[7] Mr Kacprowicz indicated in his written submission he was first employed as a bus driver with Melbourne City Sightseeing in April 2013. He submits he was employed as a “full-time casual”, however, his working hours fluctuated, and in winter periods, for example, he often worked only on one day each week.

[8] Mr Kacprowicz also raised a number of other issues in regard to his employment. He said the drivers employed by Melbourne City Sightseeing were required to sell tickets to passengers and for a time received a commission for each ticket sold. He also raised issues about the condition of the buses and submits that breakdowns occurred from time to time, which caused significant inconvenience to passengers. He also made reference to problems with the internal lighting in the buses. Mr Kacprowicz also raised issues about the superannuation contributions made on his behalf and other entitlements due to him.

[9] He also indicated in his unfair dismissal application, in terms of the reasons provided for his dismissal, “My employer told me: that I caused serious and imminent risk to the reputation, viability or profitability of the employer business.” 2 He also attached a copy of the letter of termination provided to him. It is dated 11 November 2015 and states in part:

“I refer to our meeting on 06/11/2015 which was attended by you and Alex Potocnik and Troy Steans. During the meeting we discussed your treatment of Customers in the public space while representing City Sightseeing Melbourne and Federation square [sic].

As discussed during the meeting, your conduct during that incident:

• caused a serious and imminent risk to the reputation, viability or profitability of the Employer’s business in that the public treatment of customers caused for customer complaints in regards to your treatment of these customers.

We consider that your actions constitute serious misconduct warranting dismissal.

Based on your length of service, your notice period is 2 weeks. Therefore your employment will end on 18/11/2015.” 3

[10] Melbourne City Sightseeing submits, in response, it is a small business in the context of ss.23 and 385 of the Act. It provided a list of 14 employees, who it submits were employed by the business at the time Mr Kacprowicz was last employed. The list indicates 10 of those employees, including Mr Kacprowicz, were employed on a casual basis, with three part-time employees and one full-time employee.

[11] Melbourne City Sightseeing also provided several statements from employees. Mr Ronald Spiteri is the General Manager of Melbourne City Sightseeing. He indicated in his statement that Mr Kacprowicz received a first warning letter 16 September 2013 in response to a number of complaints received by the business about a driver smoking inside the vehicle. The business also received complaints that this driver failed to stop for passengers at a designated stop.

[12] He said Mr Kacprowicz was given a second warning letter on 26 September 2013 because he had failed to deal with the earlier performance issues, and was still not picking up passengers at all designated stops. He also said whenever he raised issues with Mr Kacprowicz an argument would ensue with Mr Kacprowicz swearing and raising his voice.

[13] He also said that Melbourne City Sightseeing has continued to receive complaints from customers about Mr Kacprowicz smoking in the vehicles, raising his voice to customers, using abusive language towards customers, making discriminatory comments about other staff members, and repeatedly failing to turn off the engine of the bus between routes, as required.

[14] Mr Charles Abela is a Director of Melbourne City Sightseeing. He said he was involved in training Mr Kacprowicz when he commenced working with the business, and often had occasion to speak to him about issues to do with wearing the proper uniform, speaking appropriately with customers, and dealing with customer complaints.

[15] Mr Mario Abela is employed by Melbourne City Sightseeing as a Director, but also works as a bus driver on regular occasions. His statement indicated he spoke with Mr Kacprowicz on several occasions about him leaving the bus engine running during breaks at Federation Square, which is in breach of company policy.

[16] Mr David Khor is employed by Melbourne City Sightseeing as a Customer Service Representative and sells tickets to customers, as well as dealing with customer complaints and enquiries. He said in his statement he received a number of complaints about Mr Kacprowicz’s behaviour from customers. These include complaints about him smoking in the bus and arguing with customers.

[17] Mr Joseph Abela is also a Customer Service Representative with Melbourne City Sightseeing. He indicated in his statement that on one occasion he witnessed Mr Kacprowicz verbally abusing a customer and telling her to get off the bus.

[18] Melbourne City Sightseeing also attached various documents to its submission. These included the letter dated 16 September 2013 and headed “First Warning Letter.” It makes reference to issues to do with smoking in the bus, and the cleanliness of the vehicle, as well as failing to stop at designated stops. The letter states in part:

“After considering the situation it is expected that your conduct improves and specifically that you take not [sic] of the company policy’s [sic] and procedures to Smoking near City Sightseeing Melbourne’s Vehicles and in the public eye while dressed in Employee Clothing, and also ensuring that you are stopping and checking for passengers at all stops regardless of running on time or late.

This is your first warning letter. Your employment may be terminated if your performance does not improve.” 4

[19] A second letter dated 26 September 2013 was headed “2nd and Final warning letter.” It dealt specifically with Mr Kacprowicz’s failure to “Stop at All Melbourne City Sightseeing Bus Stop’s [sic] as per the approved bus stop locations on all trips.” 5 Melbourne City Sightseeing also attached the termination letter provided to Mr Kacprowicz, dated 11 November 2015. The materials also contain what appeared to be email complaints from customers about Mr Kacprowicz’s behaviour.

Consideration

[20] I now turn to consider whether Mr Kacprowicz’s dismissal was “harsh, unjust or unreasonable,” taking into account the considerations in s.387 I must have regard to.

[21] I note, firstly, that an explanation about the conduct that might be encompassed within the phrase “harsh, unjust or unreasonable” was provided by the decision in Byrne & Frew v Australian Airlines Ltd 6 when McHugh and Gummow JJ stated as follows:

“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 7

[22] The decision of the Full Bench of Fair Work Australia in the matter of L. Sayer v Melsteel Pty Ltd 8 also provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 9

[23] I now turn to deal with each of the considerations in s.387 having regard to these authorities.

(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);

[24] The termination letter provided to Mr Kacprowicz states, in part, that his conduct “caused a serious and imminent risk to the reputation, viability or profitability of the Employer’s business and that the public treatment of customers caused for customer complaints in regards to your treatment of these customers.” 10

[25] As indicated in the various witness statement these matters involve issues to do with abusing customers, failing to stop at designated pickup points, and smoking in the bus. Mr Kacprowicz’s submissions did not refute any of these grounds. I am satisfied Melbourne City Sightseeing had a valid reason to dismiss Mr Kacprowicz.

(b) whether the person was notified of that reason;

[26] Mr Kacprowicz was provided with a reason for his termination in the letter dated 11 November 2015.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[27] The letter of termination and the witness statement provided by Mr Spiteri indicates Mr Kacprowicz met with representatives from Melbourne City Sightseeing on 6 November 2015 to discuss the issues to do with his performance.

(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;

[28] There is no evidence indicating Mr Kacprowicz was denied the opportunity to have a support person present at any discussions about his termination.

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;

[29] Mr Kacprowicz was provided with two written warnings in 2013 about his conduct and performance. However, he does not appear to have been provided with a further written warning since then. However, the statement provided by Mr Spiteri indicates he was also spoken to on various occasions about a range of matters to do with his conduct and performance.

(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;

(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;

[30] In regard to each of the above considerations Melbourne City Sightseeing submits it is a small business employer and has complied with the Small Business Code in carrying out Mr Kacprowicz’s dismissal. It indicated at the time he was dismissed it had 14 employees, but did not make further submissions about compliance with the Code. However, given the conclusions I have come to in this matter I do not consider it necessary to deal further with this consideration.

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

[31] I am not aware of any further issues that need to be considered in this context.

Conclusion

[32] In dealing with the various matters in s.387 that I am required to take account of it is noted, firstly, that previous authorities have established that the existence or not of a “valid reason” is invariably an important issue in any unfair dismissal application, and is often determinative. For example, in the often cited decision of Parmalat Food Products Pty Ltd v Kasian Wililo 11 a Full Bench of the Commission made the following statement about the importance of “valid reason”:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.” 12

[33] It is also clear that the reason must be objectively valid. It is not sufficient that the employer believes it had a valid reason for termination. This was emphasised in the Full Bench decision handed down by the Commission’s predecessor in the matter of Rode v Burwood Mitsubishi 13at paragraph 19 where the Full Bench held:

“....the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 14

[34] As the decision in Selvachandran v Peterson Plastics Pty Ltd 15 also makes clear the reason should also be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”

[35] Mr Kacprowicz has raised various issues associated with his entitlements and working conditions. However, he has not provided evidence or made submissions that refute or take issue with the circumstances relied upon by Melbourne City Sightseeing as the reason for his termination. As indicated, I am satisfied that those circumstances make clear Melbourne City Sightseeing had a valid reason to terminate Mr Kacprowicz’s employment.

[36] In conclusion, I have had regard to each of the considerations in s.387 that I am required to take account of in dealing with this application. Based on those considerations and the evidence and submissions provided in this matter I am unable to conclude that Mr Kacprowicz was unfairly dismissed. His application is dismissed.

COMMISSIONER

Final written submissions:

Applicant’s final written submissions received 18 April 2016

Respondent’s final written submissions received 18 March 2016

 1   Fair Work Act 2009 (Cth) at s.387

 2 F2 submitted by Applicant, dated 8 December 2015 at question 3.1

 3   Ibid at attached document

 4   Respondent’s Document List, Letter from Troy Steans to Janusz Kacprowicz dated 16 September 2013

 5   Ibid, Letter from Troy Steans to Janusz Kacprowicz dated 26 September 2013

 6 (1995) 185 CLR 410

 7   Ibid at 465

 8   [2011] FWAFB 7498

 9   Ibid at para 20

 10   Respondent’s Document List, Letter from Troy Steans to Janusz Kacprowicz dated 11 November 2015

 11   [2011] FWAFB 1166

 12   Ibid at [24]

 13  Print R4471, 11 May 1999

 14   Ibid at [19]

 15 (1995) 62 IR 371 at 373

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