Luigi De Marzi v 360 Gradi Pty Ltd T/A 360 Gradi Pizzeria and Trattoria
[2017] FWC 4014
•31 JULY 2017
| [2017] FWC 4014 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Luigi De Marzi
v
360 Gradi Pty Ltd T/A 360 Gradi Pizzeria & Trattoria
(U2017/2335)
COMMISSIONER PLATT | ADELAIDE, 31 JULY 2017 |
Application for relief from unfair dismissal – casual employee – regular and systematic work – whether Small Business Fair Dismissal Code applies – FWC not satisfied fewer than 15 employees engaged – was dismissal harsh, unjust or unreasonable – valid reason – dismissal not harsh, unjust or unreasonable – application dismissed..
Summary
[1] On 3 March 2017, Mr De Marzi lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) with respect to the termination of his employment with Vadagnini T/A 360 Gradi Pizzeria & Trattoria on 11 February 2017.
[2] In a previous Decision 1 relating to representation, I used my discretion under s.586 of the Act to amend the application to reflect the correct name of the respondent as 360 Gradi Pty Ltd T/A 360 Gradi Pizzeria & Trattoria (360 Gradi).
[3] By directions issued on 12 April 2017, parties were requested to seek permission for legal representation by 4 May 2017. On 12 May 2017, I determined to reject the request by 360 Gradi for legal representation. 2
[4] The parties submitted material in accordance with the directions, however, as a result of the inclusion of considerable material not related to the working relationship, and large amounts of hearsay evidence, the parties were required to review and resubmit the witness statements.
[5] The hearing was conducted on 31 May and 1 June 2017 by way of a Determinative Conference. Mr De Marzi represented himself, 360 Gradi was represented by Mr Nicola Vadagnini (Director).
[6] There was no dispute that Mr De Marzi was protected from unfair dismissal pursuant to s.382 of the Act.
[7] 360 Gradi is a pizza restaurant located in Kensington and from 19 January 2017 in St Morris, South Australia.
[8] Mr De Marzi was employed by 360 Gradi as Casual Manager on or about 12 February 2015. Mr De Marzi shared responsibility for the restaurant with Mr Martinello who was generally rostered on when Mr De Marzi was not. When working, Mr De Marzi’s responsibilities were to manage the operation of the restaurant including the supervision of all staff and additionally he was required to oversee the renovation/fit out of premises leased in St Morris to allow the restaurant to transfer to that location. When the restaurant relocated, Mr De Marzi continued to manage the new location. For a period, Mr De Marzi would work at the Kensington restaurant and also supervise the renovation/fit out at St Morris.
[9] In the period leading up to the dismissal, Mr De Marzi was paid $154.56 per week depending on the number of hours worked, via 360 Gradi’s wages system, 3 and $600-$800 depending on the number of hours worked, in cash.4 This information was recorded on a spread sheet which detailed the cash payments made to persons engaged by 360 Gradi which was submitted by Mr Vadagnini.
Is 360 Gradi a Small Business?
[10] The meaning of a small business employer is set out in s.23 of the Act as follows:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee's employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
[11] At the time of his dismissal, Mr Vadagnini contends that 13 persons including Mr De Marzi were employed by 360 Gradi. 5
[12] Mr Vadagnini’s statement 6 identified that as at 11 February 2017, 360 Gradi employed the following persons:
● Riccardo Martinello
● Fabio Grasso
● Nitin Devgon
● Paul Covino
● Dominic Fitzgerald
● Benjamin Owen-Thomas
● Eskel Malave
● Federico Tondini
● Marta Gargione
● Ivan Cabello
● Giada Furini
● Jessica Vadagnini
● Luigi De Marzi
[13] Mr De Marzi disputes this contention and suggested that other persons were employed by 360 Gradi and not paid through the books, including his brother Andrew De Marzi and Zac Karpa.
[14] A review of the spread sheet titled ‘Cash Calculator’ attached to the second statement of Mr Vadagnini 7 identified that a person named Martinea was paid in the week ending 12 February 2017. Andrea [surname unknown] and Ivan Affitto in the week ending 5 February 2017, Dominic Fitzgerald and Zac Karpa in the week ending 22 January 2017, and Pascale [surname unknown] in the week ending 8 January 2017. Andrew De Marzi was not identified as an employee despite Mr Vadagnini conceding he was engaged by Mr De Marzi.
[15] Mr Vadagnini sought to explain the presence of the additional names on the cash payment list. He contended that some of those persons were not employed again, or had been dismissed, other payments may have been made to service providers. It was apparent that some persons on that list had been offered further shifts after 11 February 2017. It appears that most, if not all, of these persons are employed on a casual basis. Many, including some of the witnesses who gave evidence, are regularly employed and others are engaged based on workload. No evidence was produced to support Mr Vadagnini’s contentions.
[16] I have doubts about the accuracy of the evidence of Mr Vadagnini concerning the number of persons employed by 360 Gradi, particularly as a result of the information contained in the cash payment list, his failure to identify all employees in his witness statement and his active participation in an arrangement which appears to be designed to understate his PAYG and superannuation tax obligations, and potentially other wage related obligations (payroll tax and/or workers compensation levies).
[17] I find there are at least two persons (Andrew De Marzi and a person named Martinea) who appear to have been employed in the week of Mr Luigi De Marzi’s dismissal. In addition, there is no evidence that persons described as Zac or Ivan Affitto had been dismissed as at 11 February 2017.
[18] The onus is on 360 Gradi to demonstrate that they employed fewer than 15 persons at the time of the dismissal and 360 Gradi has not discharged that onus. I reject the contention that 360 Gradi is a small business employer within the meaning of s.23 of the Act.
Summary of the Parties Positions
[19] Mr De Marzi contends that:
● he was protected from unfair dismissal on 11 February 2017;
● he was paid below the award rate of pay;
● he was not paid superannuation during his employment;
● he was not subject to warnings about his performance, alcohol consumption or behaviour;
● he was not provided with an opportunity to respond;
● his dismissal was unfair as it was harsh, unjust or unreasonable; and
● he was owed $40,000 from a commercial arrangement he had with 360 Gradi.
[20] During the hearing, the parties were advised that the Fair Work Commission did not have the jurisdiction to deal with claims in relation to underpayment of wages, the failure to declare the entirety of wages paid to employees, superannuation entitlements or commercial disputes. Mr Vadagnini was warned about his evidence being on the public record and available to the authorities. 8 These are matters for other statutory bodies or Courts to deal with and I propose to consult the President pursuant to s.655 of the Act.
[21] 360 Gradi contend that:
● it commenced operating the 360 Gradi business on 1 August 2016, prior to that date the business was operated by Vadagroup Pty Ltd;
● Mr De Marzi commenced employment with 360 Gradi on 1 August 2016;
● Mr De Marzi was engaged as a Casual Manager working four to six days a week;
● his duties and responsibilities included recruitment, rostering staff, record keeping, training staff members, supervision, purchasing goods and equipment, running and overseeing the activities of the restaurant including sale and supply of liquor;
● on 6 February 2017, Mr Vadagnini received information that Mr De Marzi had been:
- drinking alcohol, including in front of customers, and being intoxicated at work during and after meal service;
- eating and drinking alcohol in the kitchen almost every night during service;
- using abusive, insulting or offensive language directed towards staff and customers;
- making unjustified complaints or criticisms of staff members;
- giving unreasonable and/or constantly changing directions to staff; and
- making sexual or suggestive comments towards a staff member.
● between 7 and 10 February 2017, Mr Vadagnini investigated these complaints whilst Mr De Marzi was on leave; and
● on 11 February 2017, Mr Vadagnini and Mr Martinello met with Mr De Marzi. Mr Vadagnini informed Mr De Marzi of concerns about his behaviour towards staff members. Mr De Marzi said he was fair to staff members, accepted he may have told staff members to “Go fuck themselves” but that this was because they deserved it, denied raising his voice, cursing or blaspheming in front of staff in front of customers but accepted he might have blasphemed behind the counter in the absence of customers. 360 Gradi determined to dismiss Mr De Marzi at that meeting.
[22] 360 Gradi is half owned by Vadagroup Pty Ltd (Vadagroup) which is fully owned by Mr Vadagnini who is the sole Director. 9 The other half is owned by Mr Riccardo Martinello.10 Mr Vadagnini is the sole Director of 360 Gradi.11 It appears Vadagroup operated the restaurant 360 Gradi prior to 1 August 2016 and that it employed Mr De Marzi.
[23] Mr De Marzi submitted a number of witness statements12 and gave evidence on his own behalf. He also submitted statements and led evidence from:
● Mr Gisueppe Cominci – Dishwasher at 360 Gradi; 13
● Mr Tony Padova – Pizza Chef at 360 Gradi; 14 and
● Mr Federico Tondini – employee of 360 Gradi. 15
[24] Mr Vadagnini provided two witness statements16 and gave evidence on his own behalf. He also submitted statements and led evidence from:
● Mr Riccardo Martinello – Restaurant Manager at 360 Gradi; 17
● Mr Riccardo Infantino – Waiter at 360 Gradi; 18
● Mr Fabio Grasso – Chef at 360 Gradi; 19
● Mr Ivan Cabello – Waiter at 360 Gradi; 20 and
● Ms Giada Furini – Waitress at 360 Gradi. 21
Witness Evidence
Luigi De Marzi
[25] Mr De Marzi commenced employment as the Casual Manager of 360 Gradi on 12 February 2015 and holds a Responsible Person certification.
[26] Mr De Marzi described the responsibilities of his role as including roster management, hiring staff, training employees, giving orders to staff in relation to work roles and duties, ensuring staff maintained the standard of work expected and disciplining staff for poor performance, opening and closing the restaurant, creating a friendly environment for staff, and developing the business. He contends that he has never been subject to any performance or disciplinary actions.
[27] He denies the allegations that he:
● did not pay for his food and drinks consumed at 360 Gradi;
● drank alcohol in the presence of customers;
● was abusive, insulting or spoke to employees in an intimidating manner; and
● used offensive language or made offensive comments.
[28] He contends that his conduct around customers was professional and courteous and further that he had a good working relationship with his team and was unaware of any complaints made about his conduct towards staff and customers.
[29] Whilst giving evidence, Mr De Marzi advised that he drinks once every two weeks. When he does drink alcohol, he drinks a lot and if he does not feel very well the day after he does not attend work. 22 Mr De Marzi accepts that he is a heavy drinker, but contends he does not drink during work hours.23 Mr De Marzi contends that drinking alcohol does not affect him.24
[30] Mr De Marzi accepted that his eyes may have been red but explained that it was due to being fatigued. 25
[31] Mr De Marzi suggested that he only worked with Ms Furini on 15-20 occasions. 26
[32] Mr De Marzi appears to accept that on 2 February 2017 he was blaspheming (saying ‘God pork’ and ‘God pig’ in Italian) but that it was directed towards Mr Grasso. 27 Mr De Marzi later rejected that he had used such words.
[33] Mr De Marzi also accepts that, at the meeting on 2 February 2017, he was “a little bit loud” when saying his “rights” to Mr Grasso, Ms Furini and Mr Covino but that “it was not offending, it was not rude and it was not raising the voice (sic)”. 28 Mr De Marzi stated “It’s not that hospitality works only on compliments.”29
[34] He accepted that he told Mr Infantino’s partner that he wanted to marry her, but that it was a joke. 30
[35] Mr De Marzi denied making a sexual reference towards Ms Furini but proffered the explanation that he made compliments, and that he made comments about the appearance of customers but not in a rude way, such as “You think she’s pretty”. He denied making comments about Marta’s appearance, other than in his mind, 31 but suggested he made comments about Marta being a pretty girl or that she was good looking to her face.32
[36] On 11 February 2017, he met with Mr Vadagnini and Mr Martinello and was dismissed.
Giuseppe Cominci
[37] Mr Cominci gave evidence with the assistance of a Commission appointed interpreter.
[38] He worked at 360 Gradi between March and April 2016 and worked for Mr De Marzi as a dishwasher in the kitchen. Mr Cominci did not work at 360 Gradi during the period when the allegations about Mr De Marzi’s conduct were made.
[39] He found Mr De Marzi to be professional in his conduct towards him.
[40] He believed that Mr De Marzi was friendly and courteous to customers and staff.
[41] He had never observed Mr De Marzi acting inappropriately in front of customers or staff.
[42] Mr De Marzi would occasionally criticise staff for poor performance, but this criticism was never unjustified.
[43] On occasions, when the restaurant was busy, Mr De Marzi would come into the kitchen and speak to the staff abruptly. On one occasion, he did not like how he was spoken to and spoke with Mr De Marzi, who responded, “Sorry if I am rude, but its only for the work.” 33
[44] He observed Mr De Marzi drinking at the restaurant after work.
Tony De Padova
[45] Mr De Padova gave evidence with the assistance of a Commission appointed interpreter.
[46] Mr De Padova regularly worked at 360 Gradi from September 2015 to 20 August 2016 as a Pizza Chef. Mr De Padova did not work at 360 Gradi during the period when the allegations about Mr De Marzi’s conduct were made.
[47] He found Mr De Marzi to be a conscientious, organised manager, and an enthusiastic and passionate employee who was very caring and considerate to employees of 360 Gradi.
[48] Mr De Padova said Mr De Marzi was always friendly to customers and staff.
[49] He did not observe Mr De Marzi drinking in front of customers but had seen him drinking with staff at the end of the night.
[50] He had not seen Mr De Marzi behave inappropriately in front of staff or bully any employee.
[51] He had not witnessed Mr De Marzi using offensive language, or making offensive or sexual comments.
[52] He did not witness or hear of any complaints from staff.
Federico Tondini
[53] Mr Tondini gave evidence that he believes Mr De Marzi is a very direct person and tells people off using a raised voice if he does not like how they work. 34
[54] Mr De Marzi would say “You are working like shit”. Mr Tondini had heard Mr De Marzi say ‘God is a pig’ or ‘Pig God’ in Italian outside of the work environment. 35
[55] Mr Tondini had never seen Mr De Marzi drink alcohol at work when the restaurant was open for customers. 36
[56] Staff were allowed to drink alcohol after the customers had left and the restaurant was closed. 37
[57] He had observed Mr De Marzi using the tips jar to get change. 38
[58] He remembered when Mr Infantino brought his girlfriend to the restaurant and Mr De Marzi made some jokes about her. He could not remember the detail. 39 Mr De Marzi had been drinking alcohol on that occasion.40 There were no customers in the restaurant though.41
[59] Mr De Marzi had used rough words to him but he never felt insulted. 42 Mr De Marzi had been very critical of his deportment but for good reason.43
Nicola Vadagnini
[60] Mr Vadagnini is the Director of 360 Gradi.
[61] He met Mr De Marzi in January 2015 when he interviewed him for the position of Manager at 360 Gradi which at that time was owned by Vadagroup. Mr De Marzi was not engaged at that time.
[62] In May 2015, Mr Vadagnini decided to reduce his hand on involvement with 360 Gradi and engaged Mr De Marzi under the supervision of himself, Mr Martinello and Ms Jessica Vadagnini.
[63] On 1 August 2016, he employed Mr De Marzi as Manager of 360 Gradi. He worked on a casual basis between four and six days per week.
[64] His responsibilities included staff recruitment, rostering and working hours records, staff training, supervision, purchasing goods and equipment, running and overseeing the activities of the business including the sale and supply of liquor.
[65] When Mr De Marzi first commenced working for Vadagroup, he was observed raising his voice towards a staff member and was immediately told in private that such behaviour was unacceptable.
[66] Mr Vadagnini was not aware that Mr De Marzi was drinking at work until February 2017.
[67] Mr De Marzi, together with Mr Martinello, were managing the renovation works at the St Morris venue.
[68] Between 26 and 29 December 2017, whilst overseas on leave, Mr Vadagnini received two telephone calls from Mr Martinello expressing concerns about Mr De Marzi’s behaviour towards the Builder.
[69] Mr Vadagnini returned to Australia on 23 January 2017.
[70] Mr Vadagnini had a discussion with Mr Rechichi, the Builder who was renovating the St Morris premises, in relation to an encounter with Mr De Marzi. On 5 February 2017, Mr Vadagnini had a discussion with Mr Martinello about a non-work related incident involving Mr De Marzi. Mr Vadagnini was becoming more concerned about Mr De Marzi’s behaviour and asked Mr Martinello to speak with the staff at 360 Gradi about Mr De Marzi’s behaviour at work.
[71] On 6 February 2017, Mr Vadagnini received a request from Mr Martinello to attend 360 Gradi. Mr Vadagnini and Mr Martinello spoke with Mr Grasso and Ms Furini who advised that during their employment they had observed Mr De Marzi:
● drinking alcohol and appearing intoxicated during and after service;
● drinking alcohol toward the end of shifts in front of customers;
● instead of taking counter payments, remaining in the kitchen eating and drinking alcohol;
● making abusive, insulting or offensive comments to staff and, in some cases, in the presence of customers;
● making unjustified criticism or complaints about staff and customers;
● constantly changing directions given to staff; and
● making sexual or suggestive comments to another staff member.
[72] On 10 February 2017, Mr Vadagnini sent Mr De Marzi a text message to confirm the location for a meeting on the following day.
[73] On 11 February 2017, Mr Vadagnini and Mr Martinello met with Mr De Marzi. Recognising there was a possibility that Mr De Marzi’s employment might cease, Mr Vadagnini pre-prepared a document dismissing Mr De Marzi.
[74] The meeting was recorded covertly by Mr Vadagnini. Mr Vadagnini’s statement contained a transcript from the recording.
[75] Mr Vadagnini asked Mr De Marzi if there would be any reason for the staff members to make false allegations against him. Mr De Marzi said no, the staff were very happy.
[76] Mr Vadagnini then sought to agree on a basis for Mr De Marzi to leave the employ of 360 Gradi. No agreement was reached.
[77] Mr Vadagnini then informed Mr De Marzi of concerns about his behaviour towards staff members and provided more detail of the allegations. Broadly speaking, Mr De Marzi denied the allegations. Mr De Marzi said he was fair to staff members, accepted he may have told staff members to “Go fuck themselves” but this was because they deserved it, denied raising his voice, cursing or blaspheming in front of staff or customers but accepted he might have blasphemed behind the counter in the absence of customers.
[78] Mr Vadagnini considered Mr De Marzi was refusing to recognise, and address, that there was a problem. Mr Vadagnini considered Mr De Marzi’s behaviour during the meeting as aggressive and hostile.
[79] Mr Vadagnini considered that Mr De Marzi was a major threat to the 360 Gradi business, its employee and customers and decided to dismiss Mr De Marzi and handed him the pre-prepared dismissal letter.
[80] On 13 February 2017, Mr De Marzi put forward an offer to resolve all the dismissal and commercial matters. The offer was rejected. Mr De Marzi then threatened to do all he could to destroy the restaurant.
Riccardo Martinello
[81] Mr Martinello has been employed by 360 Gradi as Restaurant Manager since 1 August 2016 and previously worked at 360 Gradi when it was owned by Vadagroup.
[82] Before Mr De Marzi’s employment, he worked 7 days a week. Mr De Marzi was engaged in order to reduce his working hours; he did not normally work when Mr De Marzi was rostered. In the period prior to 19 January 2017, Mr Martinello worked with Mr De Marzi for two days per week. 44
[83] He contended that Mr De Marzi had poor English skills, a poor temper and poor ability to work under pressure. When under pressure, he found Mr De Marzi would raise his voice, start swearing and cursing and would become irritable.
[84] After receiving some complaints about such behaviour, he warned Mr De Marzi verbally that such behaviour was inappropriate. It is not clear when this warning took place.
[85] Mr Martinello shared a house with Mr De Marzi for a period.
[86] From November 2016 to January 2017, Mr De Marzi was supervising the Builder who was renovating the new St Morris venue.
[87] On or about 18 January 2017, a meeting was held concerning the renovation progress onsite with the Builder. Concerns were expressed about the new venue not being ready on time. Mr De Marzi started screaming and cursing at the Builder and blaming him for not being ready. When Mr Martinello defended the Builder, Mr De Marzi turned on him and started screaming and cursing. Mr Martinello spoke to Mr Vadagnini about the matter.
[88] A meeting between Mr Martinello, Mr Vadagnini and Mr De Marzi was arranged for 28 January 2017 but was cancelled by Mr De Marzi.
[89] On Saturday 4 February 2017, a non-work related incident occurred between Mr Martinello, his girlfriend and Mr De Marzi at the share house which adversely impacted on the working relationship between Mr Martinello and Mr De Marzi.
[90] On 6 February 2017, Mr Martinello interviewed each staff member who worked at 360 Gradi and took a statement from Mr Grasso and Ms Furini. The other staff members wished to remain anonymous. The statements raised concerns about Mr De Marzi’s conduct.
[91] Mr Martinello discussed the matter with Mr Vadagnini and Mr De Marzi was subsequently advised by Mr Vadagnini to take annual leave. The investigation continued whilst Mr De Marzi was on leave. Mr De Marzi was not aware of the allegations or investigation.
[92] On 11 February 2017, Mr Martinello and Mr Vadagnini met with Mr De Marzi at about 1:30pm. It does not appear that Mr De Marzi was advised of the nature of the meeting prior or of any allegations that had been made against him. The conversation was covertly recorded by Mr Vadagnini. 45 Initially the broader allegations were discussed and Mr De Marzi denied that there were any issues between him and the staff. Mr Vadagnini put a proposal to cease the employment relationship which was rejected. The allegations were then discussed in more detail. Mr De Marzi contended that 360 Gradi was progressing as a result of his work but accepted that he might have told staff to “Fuck themselves” but if he did so they deserved it. Mr De Marzi denied raising his voice, cursing or reprimanding staff in front of customers, consuming alcohol ‘on the job’ or drinking alcohol in front of customers at the pay counter.
[93] When Mr De Marzi was asked if he had blasphemed in front of the customers, he denied the accusation and then said he might have done that behind the counter but never in front of the customers.
[94] Mr Vadagnini suggested that Mr De Marzi was not suitable to work at 360 Gradi. Mr De Marzi rejected the suggestion.
[95] Mr De Marzi was then advised that returning to work at 360 Gradi was not an option and his employment was terminated immediately.
[96] Mr Martinello also gave evidence that Mr De Marzi’s brother worked at 360 Gradi on or about 11 February 2017 but his name did not appear on the employee list attached to Mr Vadagnini’s statement. 46 Mr Andrew De Marzi was supposed to work on 11 February 2017 but he did not attend for work.47
[97] A person named Martinea worked at 360 Gradi on or about 11 February 2017 but her name did not appear on the employee list attached to Mr Vadagnini’s statement as she was probably paid in cash. 48
[98] A person named Paul Covino and probably Eskel Malave were also working for cash. 49
[99] Mr Martinello conceded that at the time of the dismissal 360 Gradi employed 15 to 16 persons. 50
[100] Mr Martinello had observed Mr De Marzi consume alcohol whilst the restaurant was open for customers but thought that it was not a problem. He had never seen Mr De Marzi drunk at work. 51
Riccardo Infantino
[101] In late November 2016, Mr Infantino attended 360 Gradi with his girlfriend to meet Fabio Grasso who was a chef working at 360 Gradi. When he arrived he saw a person he now knows as Mr De Marzi sitting at a table at the front of the restaurant with another man he now knows as Federico Tondini. He had not met Mr De Marzi prior to that evening.
[102] Mr De Marzi asked Mr Tondini to get a bottle of wine from a new supplier which was shared amongst persons at the table.
[103] After 10 minutes, Mr De Marzi commenced making inappropriate comments about his girlfriend, 52 for example that Mr De Marzi could marry her so she could obtain citizenship.
[104] Mr Infantino believed that Mr De Marzi was ‘tipsy’ as he was constantly repeating himself. 53 The restaurant closed about 20 minutes after he arrived.54
[105] Whilst Mr Infantino was giving his evidence, Mr De Marzi apologised to him for his conduct towards his girlfriend. 55
Fabio Grasso
[106] Mr Grasso has been employed by 360 Gradi since 14 November 2016 as a chef working six days per week. Mr De Marzi interviewed him.
[107] His interaction with Mr De Marzi at work was limited. Mr De Marzi told him to be less gentle with employees if he wanted them to respect him, for example, he suggested he say “You have to fucking do this.” 56
[108] On 6 February 2017, Mr Martinello asked him about how Mr De Marzi interacted with others at work. Later that evening, Mr Vadagnini attended.
[109] Mr Grasso advised Mr Martinello and Mr Vadagnini that:
● he had observed Mr De Marzi intoxicated on multiple occasions during and after service, particularly when the restaurant was busy; 57
● Mr De Marzi usually began drinking between 8:00pm to 9:00pm;
● Mr De Marzi would invite staff members to drink at the restaurant after work;
● almost every night, whilst Mr De Marzi was in the kitchen eating and drinking, if he was asked to go to the front counter he would say in Italian “Tell them to wait”, “Tell them to go take a shit”, “Tell them to go and fuck themselves”, “Tell them not to break my balls”;
● when the restaurant was busy and Mr De Marzi was struggling to cope he would scream and insult staff members both with and without customers being present;
● on 28 January 2017, the restaurant was fully booked, the new venue was not perfectly organised and Mr De Marzi was stressed and started drinking. He began repeating himself and Mr Grasso believed he was intoxicated. He heard Mr De Marzi in the kitchen yelling at staff members and blaspheming regularly during the night;
● in late January 2017 a waitress, Marta, was cleaning the cutlery, Mr De Marzi was making an up and down gesture with his hand behind her and he said “Keep practicing that because it will become handy later”;
● before Marta started to work at 360 Gradi, she was a customer and Mr De Marzi used to make sexual jokes in Italian about her and other customers. These jokes referred to her having a good body and comments about her breasts; 58
● Mr De Marzi was difficult to work with as he kept changing his mind and then would become agitated if you did not do what he first requested; and
● on 2 February 2017, a meeting was held after work at 10:15pm about working hours and staffing levels. Ms Furini and Mr Covino were also at the meeting. As soon as Mr De Marzi started talking he sounded intoxicated and appeared agitated. Mr De Marzi was blaspheming in Italian saying ‘God pork’ and/or ‘God dog’ etc. Then he stood up and started yelling at Mr Grasso about the kitchen and Dominic Fitzgerald not working properly. When he threatened to leave, Mr De Marzi calmed down. Mr Grasso was scared of Mr De Marzi’s unpredictable mood swings.
[110] Mr Grasso described Mr De Marzi’s blaspheming as saying ‘Porco dio’ (in Italian) or ‘God pork’ and ‘God dog’ (in English). He was offended by Mr De Marzi’s language.
[111] Mr Grasso had observed Mr De Marzi drinking white wine whilst the St Morris venue was open for customers.
Ivan Cabello
[112] Mr Cabello was employed as a waiter and barman from November 2016 working three to five days per week, and out of that about three days per week with Mr De Marzi.
[113] He regularly observed Mr De Marzi drinking beer and/or wine during food service periods and at the end of a shift whilst customers were present. There was a rule that staff should not consume alcohol whilst working. 59
[114] He observed Mr De Marzi making inappropriate statements in Italian to staff members and was critical of customers who were making service requests. 60
[115] He heard Mr De Marzi cursing God and cursing in general in front of customers and staff. An example of the terms used was the Italian equivalent of ‘Gods deserts me’, or ‘Pig God’. Mr Cabello stated these terms would be very offensive to an Italian who believes in God. 61 Mr De Marzi was laughing when this evidence was being given.62
[116] Mr Cabello found that on occasions, after he filled the restaurant bar fridges in the evening, the next morning they would be half or completely empty at times when only Mr De Marzi or his brother were on the premises at the time he left. 63
[117] He observed Mr De Marzi removing money from the tips jar. Mr Cabello accepted that Mr De Marzi may have been using the tips jar to give change as he had not observed him returning the money.
Giada Furini
[118] Ms Furini was employed as a waitress from 18 December 2016 having been interviewed, employed and trained by Mr De Marzi, and remains employed by 360 Gradi, sometimes in a more senior role. Prior to working at 360 Gradi, Ms Furini worked at a restaurant called Antica.
[119] Whilst working at the Kensington Park venue, Ms Furini observed: 64
● Mr De Marzi drinking beer during a period when customers were being served in the restaurant, and she believed that Mr De Marzi was intoxicated as his face and eyes were red, he was repeating the same things over and over and occasionally he would just stare into space;
● on occasion, Mr De Marzi would drink alcohol in front of customers whilst they were paying their bill; and
● on a number of occasions, normally on Fridays, Mr De Marzi would sit at a table outside the restaurant drinking alcohol during service instead of being at the counter taking payment, answering the phone and running the restaurant.
[120] Whilst working at the St Morris venue, five days per week, Ms Furini observed: 65
● Mr De Marzi drinking at work, but instead of just drinking on weekends he would drink on week nights during service and in large quantities (5-6 beers) after service. Ms Furni was aware of the amounts as she was required to dispose of the empty bottles; 66
● on occasions, when staff members called to ask Mr De Marzi to the counter, he would respond in Italian and insult and/or curse the customers. On one occasion, Mr De Marzi said in Italian “Tell that bitch not to break my balls”;
● on one occasion, Mr De Marzi finished a stubby of beer at the counter whilst a couple was paying their bill, and that the customers facial expression indicated surprise; and
● on another occasion, Mr De Marzi poured some Prosecco into the wrong sized glass in front of customers and Ms Furini asked him to change the glass to the correct size. Mr De Marzi did so and then consumed the Prosecco in the smaller glass in front of the customers. 67
[121] Mr De Marzi suggested to Ms Furini that at the time she was working at Antica she was aware of his reputation of poor conduct and swearing and questioned why she came to work at 360 Gradi. Ms Furini said that 360 Gradi was closer to home which enabled her to walk to work and that she would make her own assessment of Mr De Marzi’s conduct. 68
[122] Ms Furini also recalled Mr De Marzi asking her to get Marta to work behind the bar so that he could “Watch her arse”. 69 Marta complained to Ms Furini about the remark being made.
[123] Ms Furini recalled that Mr De Marzi regularly used the expressions ‘God dog’ and ‘God pork’ in Italian and that she was very offended by such remarks. 70
[124] One of the customers reported to her that “Coming to 360 Gradi was like going to the theatre.” 71
Findings of Fact
[125] It appears that 360 Gradi condones staff drinks out of hours and as a result this conduct cannot be relied upon to support a valid reason.
[126] Little evidence has been given to support the contention that Mr De Marzi was continually changing directions given to staff and I am unable to find that this conduct was such to support a valid reason for dismissal.
[127] Based on the evidence before me, the principal allegations made against Mr De Marzi are as follows:
● Drinking alcohol and/or appearing intoxicated during service.
● Remaining in the kitchen eating and drinking alcohol in preference to receiving payment for accounts by customers.
● Making abusive, insulting or offensive comments towards staff.
● Making abusive, insulting or offensive comments towards customers.
● Making sexual or suggestive comments to a staff member.
[128] As the most senior person at the restaurant, Mr De Marzi was a leader and had an obligation to act as such and lead by example, and to demonstrate appropriate leadership behaviours. The allegations made above, if accepted, are inconsistent with Mr De Marzi’s employment obligations.
[129] The conduct relied upon by 360 Gradi occurred after 19 January 2017 when 360 Gradi opened the St Morris venue. A number of the witnesses called did not work for 360 Gradi in the St Morris location. Their evidence is more akin to character evidence.
[130] Despite making significant allowances for Mr De Marzi’s unfamiliarity with Commission processes and his heightened level of emotion, he was an unconvincing witness.
[131] The principal evidence concerning the allegations came from Ms Furini and Mr Grasso.
[132] Ms Furini was a particularly impressive witness, she was cross-examined vigorously by Mr De Marzi, yet her account of what she observed was clear and where appropriate concessions were made. I reject Mr De Marzi’s contention that Mr Furini was motivated to give evidence against him by promotion. I accept her evidence and prefer it over Mr De Marzi’s where they conflict.
[133] I also accept the evidence of Mr Cabello, Mr Infantino and Mr Grasso and prefer it to Mr De Marzi where they differ.
[134] I note that Mr De Marzi’s own witnesses, Mr Cominci and Mr Tondini, told of their experience of Mr De Marzi raising his voice and berating staff. Mr Tondini gave an account of Mr De Marzi’s conduct towards Mr Infantino’s girlfriend where he made jokes at her expense, and it appears for the first time that Mr De Marzi recognised this conduct as inappropriate whilst Mr Infantino gave evidence.
[135] Mr De Marzi’s conduct during the hearing appeared to be more focussed on his disbelief that each witness could give evidence against him, considering the fact that he had given them a job, provided training or that he considered that he had made 360 Gradi a successful business.
[136] Mr De Marzi seemed oblivious to his impact on other people, failing to recognise the line between complimenting persons and making suggestive comments, making jokes versus making jokes at a customer’s expense, and that abusing or talking down to customers in another language was somehow acceptable.
[137] Based on his own evidence, he was a poor manager of staff, admitting to berating them in front of others when he was stressed and thought they needed to improve. He encouraged others to adopt the same approach.
[138] Mr De Marzi asked the Commission to believe that he did not drink whilst the restaurant was open, despite the numerous accounts of this conduct before me. He then claims he was a heavy drinker and somehow immune to the effects of alcohol. It is possible that Mr De Marzi means that he was not affected by the alcohol he drank whilst the restaurant was open for customers. I reject his denial and find that he drank whilst the restaurant was open for service.
[139] I also find that he drank at the table of a customer, and on another occasion out of a glass that he had filled incorrectly and a second glass had been substituted. In my view, this is conduct which would be offensive to a reasonable person.
[140] I find that he failed to move from the kitchen to serve customers who were waiting to pay their account and that he mocked the customers in Italian rather than attend to his work obligations. The fact that Mr De Marzi was laughing whilst this evidence was being given again indicates a failure to recognise the impact of his behaviour on others.
[141] I find that Mr De Marzi used inappropriate language, for example ‘God dog’, in a manner that would be offensive to staff and customers who spoke Italian and believed in God.
[142] I find that Mr De Marzi acted inappropriately towards Mr Infantino’s girlfriend who was a customer and made repeated jokes at her expense for his own amusement.
[143] I find that Mr De Marzi made inappropriate sexual references about Marta.
[144] It appears that 360 Gradi, under Mr De Marzi’s management, was a modern day Faulty Towers, no doubt the reason why one customer likened the experience as similar to going to the theatre.
Was the dismissal harsh unjust or unreasonable?
[145] Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
“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 followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid reason - s.387(a)
[146] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd72which requires the reason for termination to be “sound, defensible or well founded.”
[147] I find that Mr De Marzi’s conduct, detailed in my findings above, was a valid reason for 360 Gradi to terminate his employment.
Notification of valid reason - s.387(b)
[148] Mr De Marzi was notified of the reasons for the dismissal at the meeting on 11 February 2017.
Opportunity to respond - s.387(c)
[149] Mr De Marzi was provided with and took advantage of an opportunity to respond to the allegations at the meeting on 11 February 2017. I note that he was not provided with prior notice of the matters to be discussed at the meeting which is relevant to s.387(h).
Any unreasonable refusal by the employer to allow Mr De Marzi to have a support person present to assist at any discussions relating to dismissal - s.387(d)
[150] Mr De Marzi did not seek to have a support person present. However, he was not notified in advance that the meeting was disciplinary in nature or that his employment was at risk which is relevant to s.387(h).
Warnings relative to unsatisfactory performance - s.387(e)
[151] Mr De Marzi was not given any formal warnings in respect of his work performance.
Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)
[152] 360 Gradi is a small employer with no dedicated human resources management support. I take this into account when I consider the limited investigation process and the failure to notify Mr De Marzi of the purpose of the meeting on 11 February 2017.
Other matters considered relevant - s.387(h)
[153] This is the key basis upon which the dismissal is challenged, and there are a number of factors which go to whether the dismissal was harsh, unjust or unreasonable. The factors relevant to this matter include:
Factors in favour of termination |
Engaged in the most senior role in the restaurant with staff supervisory responsibilities |
Many years of experience as a Restaurant Manager and therefore he should have been aware of the potential consequences of his conduct |
The breaches were numerous, of a serious nature, and impacted on staff and customers |
The conduct was denied |
No regret or remorse |
Factors which may characterise the termination as harsh, unjust or unreasonable |
No formal warnings |
Lack of notice of disciplinary meeting or risk of dismissal |
Mr De Marzi is 56 years of age and may have potential difficulty in finding alternative employment |
Covert recording of the disciplinary meeting |
Summary dismissal – no notice was paid |
[154] Whilst Mr De Marzi worked for 360 Gradi for less than 12 months, it appears he worked for an associated entity since 2015. Whilst Mr De Marzi had been spoken to about his behaviour towards employees there was no formal warning history. 360 Gradi appears to have been unaware of the gravity of Mr De Marzi’s conduct which may have been due to his level of autonomy.
[155] Whilst 360 Gradi made some procedural errors and covertly recorded the interview, I suspect these result from the lack of HR awareness and support.
[156] Whilst Mr De Marzi was not subject to a formal warning process, any reasonable person at his level should have been aware that the conduct he engaged in was not acceptable.
[157] Mr De Marzi was a senior autonomous Manager of the restaurant. Mr Vadagnini was a ‘hands off’ Director who relied upon Mr De Marzi to do his job. Mr Martinello worked on the days that Mr De Marzi did not. It appears to me that the 360 Gradi staff were reluctant to raise their concerns with Mr De Marzi and with management no doubt for fear that it may impact on their casual employment.
[158] Any reasonable person in Mr De Marzi’s position should have been aware that his conduct was unacceptable and a grave departure from the norm.
[159] The fact that Mr De Marzi saw no fault with his conduct meant, absent some intervention, it would have continued. I accept that Mr De Marzi’s conduct had an adverse effect on staff. I have no doubt that Mr De Marzi’s conduct and management of the 360 Gradi would have had an adverse impact on customers and the reputation of 360 Gradi. I accept that left unaddressed Mr De Marzi’s management would have threatened the viability of 360 Gradi. For the reasons detailed above, I accept that 360 Gradi had a proper basis to remove Mr De Marzi immediately, and I do not believe its actions in doing so were harsh, unjust or unreasonable.
Conclusion
[160] The Explanatory Memorandum to the Act73 explains the approach of the Commission in considering the elements of section 387:
“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”
[161] In Byrne and Frew v Australian Airlines Pty Ltd,74 the following observations made by McHugh and Gummow JJ are relevant to my conclusion:
“It may be that the termination is harsh but not 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.”
[162] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr De Marzi’s employment was not harsh, unjust or unreasonable.
[163] An Order 75 reflecting this decision will be issued.
COMMISSIONER
Appearances:
Mr L.De Marzi the Applicant.
Mr N.Vadagnini on behalf of the Respondent.
Hearing details:
2017.
Adelaide:
31 May and 1 June.
1 Luigi De Marzi v 360 Gradi Pty Ltd T/A 360 Gradi Pizzeria & Trattoria[2017] FWC 2645
2 Ibid
3 See payslips attached to Mr Vadagnini Statement, Exhibit R2
4 See spread sheet titled “Cash Calculator” attached to Exhibit R2
5 PN250
6 Exhibit R2
7 Exhibit R2
8 PN903
9 PN223,231
10 PN225
11 PN238-241
12 Exhibit A1, A2, A3, A4, A5
13 Exhibit A8
14 Exhibit A9
15 Exhibit A10
16 Exhibit R1, R2
17 Exhibit R5
18 Exhibit R7
19 Exhibit R11
20 Exhibit R8
21 Exhibit R10
22 PN2964
23 PN2956
24 PN2960
25 PN2884-2885
26 PN3206
27 PN3564-PN3580
28 PN3601
29 PN3633
30 PN2331
31 PN3691-3692
32 PN3552-3563
33 PN2006-2008
34 PN2614
35 PN2617-2620
36 PN2717
37 PN2640
38 PN2652
39 2668-2671
40 PN2678
41 PN2694
42 PN2726
43 PN2733
44 PN1785
45 PN1632-1635
46 PN1588-1590, PN1600-1601
47 PN1741-1742
48 PN1591-1593, PN1602
49 PN1596-1597
50 PN1621-1622
51 PN1649-1655
52 PN2312
53 PN2314-2317
54 PN2319
55 PN2341-2349
56 PN3373-3378
57 PN3394-PN3402
58 PN3534-PN3563
59 PN2359-2370
60 PN2371
61 PN2410-2436
62 PN2437
63 PN2385-2404
64 Exhibit R10, paragraph 6.1
65 Exhibit R10, paragraph 6.2
66 PN2847
67 PN3042-3063
68 PN2831
69 PN3085
70 PN2791-2796
71 PN3011
72 (1995) 62 IR 371 at 373
73 Explanatory Memorandum to the Fair Work Bill 2008
74 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24
75 PR594994
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