Mark Bartolo v Gabriel's Gateaux Pty Ltd T/A Gabriel's Gateaux
[2017] FWC 2551
•9 MAY 2017
| [2017] FWC 2551 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Bartolo
v
Gabriel’s Gateaux Pty Ltd T/A Gabriel’s Gateaux
(U2016/6468)
COMMISSIONER CIRKOVIC | MELBOURNE, 9 MAY 2017 |
Application for relief from unfair dismissal – whether Applicant dismissed.
[1] Mr Mark Bartolo has applied under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an unfair dismissal remedy in respect of his former employment with Gabriel’s Gateaux Pty Ltd (Gabriel’s Gateaux) (the Respondent). I must first determine whether Mr Bartolo was dismissed within the meaning of s.386. If this threshold issue is determined in Mr Bartolo’s favour, I will then consider the merits of his application.
Threshold issue
Was Mr Bartolo dismissed?
[2] Mr Bartolo’s employment ended on 8 April 2016. The circumstances in which Mr Bartolo’s employment ended are in dispute. Mr Bartolo submits that he was dismissed and the Respondent contends that Mr Bartolo resigned. It is necessary to first resolve this dispute because s.394(1) provides that only ‘a person who has been dismissed’ may apply to the Commission for an unfair dismissal remedy.
[3] Section 386 of the Fair Work Act provides as follows:
‘386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.’
[4] Section 386(1) is subject to a number of exceptions identified in s.386(2), none of which are relevant to this case. The dispute as to whether Mr Bartolo was dismissed arises out of the interpretation of a series of text messages from 7 – 8 April 2016 sent by Mr Bartolo to Mr Simon Kurban, owner of the premises leased to the Respondent. Further text messages were exchanged between Mr Bartolo and Mr Kurban on 11 April 2016, however they are not directly relevant to the threshold issue in question.
[5] Mr Bartolo gave evidence that the text messages he sent to Mr Kurban were not intended as notice of his resignation, as they were not sent to Ms Silvana Harbie, Managing Director of Gabriel’s Gateaux. Mr Bartolo contends that the text messages were sent to communicate his frustration with his employment situation and to ask Mr Kurban to mediate the situation. 1 The Respondent denies Mr Bartolo’s contention and submits that the text messages were in the context of him abandoning his employment on 7 April 2016.
[6] On the question of whether there was a dismissal; Mr Bartolo relies upon two witness statements in his name dated 27 June 2016 and 18 July 2016. The Respondent tendered witness statements of Ms Harbie and Mr Kurban dated 1 July 2016 and 29 June 2016 respectively. Mr Bartolo, Ms Harbie and Mr Kurban all gave evidence at the hearing on 31 August 2017.
[7] It is well established by the courts that whether the words and/or conduct by an employee amount to a resignation is to be determined objectively. The words and/or conduct by an employee must be construed according to how they would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties. 2
[8] A number of authorities of this tribunal have found that where ‘special circumstances’ exist it may not be reasonable for an employer to immediately accept an apparent resignation, but rather allow a reasonable period of time to pass in order to ascertain, after further inquiry, if the employee’s resignation was really intended.
[9] The issue of a resignation given in ‘special circumstances’ was considered by the Full Bench in Ngo v Link Printing Pty Ltd 3:
“[12] We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd [(1995) 63 IR 357 at 361-2] as follows:
‘The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:
“In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise...
However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.”
Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows:
“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (`being jostled into a decision') and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as `special circumstances'. Where `special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively.”’
[13] We are prepared to assume, without so deciding, that it was incumbent on Link, following Mr Ngo's statement that he resigned, to allow a reasonable period of time to elapse to ascertain whether circumstances arose during the period that put Link on notice that further enquiry was necessary to see whether Mr Ngo's resignation was really intended. Mr Ngo spoke his words of resignation on the afternoon of 8 June 1998. He then resumed work for the balance of the shift, went home, resumed work the next day and, when approached by Mr Corrigan, said that he was not resigning. In our view, any reasonable period of time had elapsed well before Mr Ngo said this.
[14] We have considered the evidence of Link's witnesses as to their reaction to Mr Ngo saying that he resigned. Even if they did not believe Mr Ngo when he said that he resigned, the fact remains that Mr Ngo did not tell Link, until the following day that he was "not resigning".
[15] We have also considered the effect of Mr Corrigan's words (as recorded in Mr Ngo's statement) "Okay, you must give us a letter in writing, and give it to me tomorrow". It was submitted by the appellant that a contract was formed under which Link agreed to accept the withdrawal of the resignation and the resignation would only take effect if it was submitted in writing. In our view, this submission cannot be sustained. There is, we think, nothing in the evidence to support the view that the brief reference to providing a letter created the contractual relationship contended by the appellant.
[16] The next point is whether Mr Ngo was entitled to withdraw his resignation. The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in paragraph [8]). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (p.110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union [(1993) 49 IR 323 at 336], by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia [(1993) 54 IR 134 at 138] and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd [(1995) 60 IR 68 at 87-88].
[17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly (pp.110- 111).
[18] In Mr Ngo's case, assuming in his favour that his resignation was given in the heat of the moment, it was not retracted swiftly. In our view, Mr Ngo was not entitled to withdraw his resignation on the day following the giving of it.”
Factual context
[10] Gabriel’s Gateaux is a baking/catering business. The premises is owned by Mr Kurban who leases the equipment to Gabriel’s Gateaux and who has an office in the premises from which he maintains his other business interests. 4 Mr Kurban had previous business dealings with Mr Bartolo and introduced him to Ms Harbie. Ms Harbie subsequently employed Mr Bartolo as the Business Development Manager of Gabriel’s Gateaux on 18 August 2014.5
[11] Mr Kurban gave evidence that it is in his best interests to see his tenant succeed in her business and he assisted Ms Harbie in setting up her business and attended weekly staff meetings, which were also attended by Mr Bartolo. In the course of performing his duties as the Business Development Manager, Mr Bartolo would often work offsite and visit potential customers or collect payment of accounts.
[12] The Applicant struck me as an honest witness who gave his evidence in a reliable and forthright manner. I have formed the view that Ms Harbie and Mr Kurban’s evidence was at times inconsistent and often opportunistic and vague. In particular, the discrepancies between Ms Harbie’s written evidence and oral evidence and the inconsistencies in her oral evidence rendered much of her evidence unreliable. Where in this decision it has been necessary to make findings based solely on the competing versions of events given by Ms Harbie and Mr Bartolo I have preferred Mr Bartolo’s version of that event.
Meeting late March 2016
[13] Mr Bartolo gave largely uncontested evidence of a meeting in late March 2016 that he attended with Ms Harbie and Mr Kurban. 6 Mr Bartolo’s evidence is that at the meeting he had reason to believe that Ms Harbie was unhappy with his sales and was trying to remove other aspects of the role.7 Mr Bartolo’s alleges that Ms Harbie ‘blew her top’, ‘was angry’, accused him of not trying to get sales and stated that she ‘didn’t see the dollar value’.8 Mr Bartolo’s admits he said ‘If you want just a sales rep I will help you find my replacement’.9 I accept the evidence of Mr Bartolo as to the meeting in late March 2016.
Meeting Wednesday 6 April 2016
[14] On Wednesday, 6 April 2016 there was a meeting between Mr Bartolo, Mr Kurban and Ms Harbie. 10 Mr Bartolo gave evidence that he had asked Ms Harbie whether his attendance was required given that he was having trouble getting a car park near the office and it was raining heavily.11 His evidence is that Ms Harbie told him that he needed to come in and that he eventually found a park ‘a fair way from the office’ and attended work.12
[15] Mr Bartolo’s evidence is that during the meeting Ms Harbie became angry about the lack of sales and asked how Mr Bartolo spent his days and that he offered to provide his diary, in which he recorded when he organised appointments and planned cold calls. 13 Mr Bartolo’s evidence is that Mr Kurban and Ms Harbie agreed this would be satisfactory and he subsequently sent his rolling diary for 6 and 7 April to Ms Harbie and Mr Kurban via email.14
[16] Ms Harbie’s evidence is that when Mr Bartolo refused to attend the office on Wednesday, 6 April 2016, allegedly because he could not get a parking space, she phoned him back and demanded that he attend the office and that Mr Bartolo then demonstrated unacceptable behaviour on the phone. 15
[17] Ms Harbie’s evidence is that during the entire period of Mr Bartolo’s employment she constantly asked him for progress reports and the status of prospective new customers. 16 Ms Harbie’s evidence is that she never got a definite response from Mr Bartolo and that Mr Bartolo would always be evasive and gave a general response to these questions.17 Ms Harbie’s evidence is that during the meeting on Wednesday, 6 April 2016, she stated that one of Mr Bartolo’s duties was ‘increased sales’ and that if she referred to Mr Bartolo as a ‘sales rep’ she feels that this is one of the duties required to ‘increase sales’.18
[18] In respect of the meeting of 6 April 2016, Mr Kurban gave evidence that the meeting concerned the lack of new customers for the Respondent. 19 Mr Kurban’s evidence is that during the meeting Mr Bartolo was told ‘we must increase our customer base’.20
[19] I accept that Mr Bartolo attended a meeting on Wednesday 6 April 2016. I also accept that there was a discussion involving Ms Harbie’s dissatisfaction with Mr Bartolo’s sales. The evidence before me does not support a finding that Mr Bartolo demonstrated unacceptable behaviour on the phone. 21
Thursday 7 April 2016
[20] Mr Bartolo’s evidence is that on Thursday, 7 April 2016 at about 9:30am, Ms Harbie called him to ask where he was. 22 Mr Bartolo’s evidence is that he was outside Anglers Tavern about to enter for his first meeting of the day and that he told her he had sent his diary, to which Ms Harbie responded ‘That’s not good enough’. Mr Bartolo gave evidence that he replied ‘Silvana I won’t go into it. We will talk about it on Monday’, which was his next working days.23
[21] Mr Bartolo’s evidence is that he had felt that Ms Harbie had reneged on what she had agreed to at the meeting of 6 April 2016 and that had felt very frustrated. 24 Mr Bartolo’s evidence is that he had felt that he was now being treated as ‘just a sales rep’ and that he had offered to get a replacement if ‘all they wanted was a sales rep’.25
[22] Mr Bartolo denies that he specified that he was going to Nikos Cakes in Oakleigh and that Ms Harbie said to him that he had seen Nikos Cakes many times and asked why he was going back. 26 Mr Bartolo denies that he said to Ms Harbie ‘do you want to know that as well’ and that he hung up on her.27
[23] Ms Harbie’s evidence is that on Thursday, 7 April 2016, she received a text message from Mr Bartolo asking her what time she would be in the office and that she had replied not until the afternoon. 28 Ms Harbie’s evidence is that Mr Bartolo then messaged asking her to give him a time so that he could move his appointments around.29 Ms Harbie’s evidence is that she called Mr Bartolo immediately after she received his text message and asked him what was in his schedule for the day,30 to which Mr Bartolo had said he was going to see Nikos Cakes in Oakleigh and that she had replied that Mr Bartolo had been there many times and asked why was he going back.31 Ms Harbie’s evidence is that Mr Bartolo said ‘do you want to know that as well?’ and further ‘it’s too hard, can’t work like that’ and then hung up on her.32
[24] Having regard to my earlier findings at paragraphs [12] and [19], I consider that the evidence of Mr Bartolo in relation to the events of the morning of 7 April 2016 should be preferred.
Text communications 7 - 8 April 2016
[25] Mr Bartolo’s evidence is that following the conversation with Ms Harbie on 7 April 2016 he sent a text message to Mr Kurban, whom he regarded as a friend, asking him to give him a call. 33 Mr Bartolo’s evidence is that Mr Kurban replied to say that he was in Bacchus Marsh.34 Mr Bartolo’s evidence is that he sent a message saying ‘please start looking for my replacement’.35 Mr Bartolo’s evidence is that Mr Kurban replied to say that he would call later and that Mr Bartolo replied ‘Yeh my hearts not in it buddy. No cash today? Plus unpaid super, plus reimbursements for fuel best we call it quits’.36
[26] Mr Bartolo’s evidence is that he did not send the text message ‘please start looking for my replacement’ because he intended to leave the organisation and that he was not looking to resign from the Respondent when he sent a text message to Mr Kurban stating ‘best we call it quits’. 37 Mr Bartolo’s evidence is that he sent the text messages because he was very frustrated due to Ms Harbie’s conduct and he wanted Mr Kurban to ‘curb the situation’. Mr Bartolo’s contends that Mr Kurban had been in the meeting the day prior and Mr Bartolo ‘believed that Simon Kurban had the powers to resolve and make Silvana Harbie see’.38 Mr Bartolo’s evidence is that Mr Kurban had previously done so on many other occasions,39 and that it was his belief that Mr Kurban and Ms Harbie were the owners of the Respondent during the time of his employment.40
[27] Mr Bartolo’s evidence is that Mr Kurban did not ring him and that on Friday, 8 April 2016, he facetiously texted Mr Kurban ‘Thanks for your call back yesterday’. 41 Mr Bartolo’s evidence is that Mr Kurban replied and explained that he could not call back the previous day because he had Ms Harbie in the van with him and they had driven 800km that day.42
[28] Mr Kurban gave the following evidence in relation to the events of 7 and 8 April 2016:
- On Thursday 7 and Friday 8 April 2016, he received a number of text messages from Mr Bartolo. 43
- ‘I tried to be the mediator in between, trying to soothe things; I tried to keep the calm and keep the peace in place’. 44
- At 09:40am on 8 April 2016 Mr Bartolo sent a text message saying ‘I’ll call you later. I’m really annoyed mate don’t want to work for that lady. Everything we spoke off [sic] on the first day is out the window. It doesn’t feel right anymore’. 45
- Mr Kurban showed Ms Harbie his phone because ‘she had to know what was happening’ and because ‘she had to make a decision here and now what she wants to do…I think Mark’s not coming back’. 46
- He passed a copy of the text messages to Ms Harbie as he felt they should have been sent directly to her. 47
- He told Ms Harbie ‘[h]e’s not coming back’ in the van on Thursday 7 April 2016 on their way to Bacchus Marsh after he received the message from Mr Bartolo saying he can’t work with that lady. 48
- He sent a text to Mr Bartolo on Monday 11 April 2016: ‘Mark I was hoping it will be sorted out but unfortunately can’t talk any sense to them’, 49 which referred to Ms Harbie and Mr Bartolo and that he was trying to tell him that there was ‘no way’ he was going to be involved anymore.50
[29] Ms Harbie’s evidence is that Mr Kurban showed her the text messages from Mr Bartolo when they stopped in Shepparton on Thursday 7 April 2016. 51 Ms Harbie’s evidence is that the text message of Mr Bartolo to Mr Kurban stating ‘please start looking for my replacement’ indicated to her that Mr Bartolo was looking to leave the Respondent and that he effectively abandoned his employment. Ms Harbie contended that when she returned to the office, she decided to email Mr Bartolo to advise him that his bad behaviour was not appropriate and that he was no longer needed by the company.52 At that point, Ms Harbie alleges that she considered Mr Bartolo had already resigned.
[30] I accept that a series of text messages were sent by Mr Bartolo to Mr Kurban on 7 and 8 April 2016. There is some discrepancy in the evidence of the Respondent as to when and which of these texts were communicated to Ms Harbie by Mr Kurban. These matters are not directly relevant in respect of the findings I make as it is clear on the evidence before me that at least some of these text messages were shown to Ms Harbie.
Email of 8 April 2016
[31] Mr Bartolo’s evidence is that on 8 April 2016, after he had sent text messages to Mr Kurban, he received an email from Ms Harbie. 53 The email is set out below:
‘I write in response to a number of SMS’s sent by yourself in the past few days advising that “I don’t want to work for that lady” which was sent at 10:04 hrs on Thursday 7th April 2016. Taking this comment into consideration and the fact that you did not attend our premises yesterday, 7th April 2016, I can only assume you “abandoned your post” at the time you sent the SMS (photo 2.JPG) being 09:43 hrs the same day wherein you stated “I am already looking”
At the present time you are in possession of equipment belonging to Gabriel’s Gateaux (Namely one motor vehicle Registration Number WRM 740) and I hereby put you on notice that unless said motor vehicle is returned to our premises within 24 hours of receipt of this email I shall have no option but to place the matter in the hands of the police, advising that the vehicle is missing presumed stolen.
Effective immediately you [sic] services are here by terminated as you have previously been given a “First and Final Notice” (refer attached) and I advise you will be paid what monies are due to you in our next normal pay period.’ 54
[32] Mr Bartolo’s evidence is that he was working on the Thursday mentioned in the termination letter, trying to get sales and that Ms Harbie was aware of this because she had spoken to him about where he was and had seen his diary plan for the day. 55
[33] Ms Harbie’s evidence is that she did not terminate Mr Bartolo’s employment, instead Mr Bartolo ‘abandoned his post based on the messages he sent to Simon’. 56
[34] I accept that the email replicated above was sent by Ms Harbie and received by Mr Bartolo on 8 April 2016. I consider that whilst Mr Bartolo may not have attended the premises of the Respondent, he was in fact working on the Thursday mentioned in the termination letter.
[35] Mr Bartolo submits that had Mr Kurban not passed on the text messages to Ms Harbie and Ms Harbie not sent the email, 57 the employment would not have ended immediately on Friday, 8 April 2016.58 Mr Bartolo submits that the claim of abandonment based on the fact that Mr Bartolo did not attend the worksite 7 April 2016 is incorrect given Ms Harbie’s evidence that she called Mr Bartolo that day and that he had told her he was going to see a customer.59
[36] Mr Bartolo submits that he did not explicitly state he wished to resign 60 and that even if his text message confirmed he wished to resign, they were sent to the Respondent’s landlord and therefore could not be seen as resignation.61 Mr Bartolo submits that in the circumstances where Ms Harbie maintains that Mr Kurban holds no position within the Respondent, she could not adopt the view that the text message exchange between Mr Bartolo and Mr Kurban constituted clear and unambiguous language resigning from his employment with the Respondent.62
[37] Mr Bartolo submits that there would be no reason for Ms Harbie to send the dismissal email if she believed Mr Bartolo had resigned his employment. 63 Mr Bartolo submits that the text messages in question were not sent to the employer64 and that no valid notice of resignation can be found in the text messages.65
[38] The Respondent submits that it is clear from the text messages Mr Bartolo sent to Mr Kurban that Mr Bartolo intended to resign. 66
[39] The Respondent submits that the text messages of Mr Bartolo to Mr Kurban were clear and unambiguous words that indicated Mr Bartolo was resigning. 67 The Respondent submits that the context in which the text messages were sent was that Mr Bartolo was unhappy with his employment.68 The Respondent submits that the text messages were sent to a person Mr Bartolo believed was an owner of the company and that to communicate with someone you believe to be a manager or director of the company that he should start looking for a replacement is clearly evincing an intention to resign.69 The Respondent submits that the Commission should take into account that Mr Bartolo had already flagged to the Respondent his general unhappiness with his role in the organisation and that Mr Bartolo was under pressure for his work performance.70 The Respondent submits that Mr Bartolo did not resign in the heat of the moment or due to undue pressure from the employer.71 The Respondent submits that there was no duty for it to check the resignation with Mr Bartolo.72
[40] In summary, I conclude the relevant facts were as follows:
- There was a meeting on 6 April 2016 between Mr Kurban, Ms Harbie and Mr Bartolo. Mr Bartolo called Ms Harbie before the meeting to ask if he was required, I have found that there was no unacceptable behaviour demonstrated by Mr Bartolo on the phone (see paragraph [19]).
- On 7 April 2016, Mr Bartolo attending a work meeting off-site. Ms Harbie called Mr Bartolo who advised her that he had sent her his work diary confirming this.
- There were a series of text messages sent by Mr Bartolo to Mr Kurban from 7 – 11 April 2016.
- On 8 April 2016, Ms Harbie sent an email to Mr Bartolo terminating his employment with Gabriel’s Gateaux.
[41] I have formed the view that the text messages sent by Mr Bartolo to Ms Harbie were equivocal. At best, they indicate his intention to resign sometime in the future. I do not accept that the proper characterisation of Mr Bartolo’s words, viewed objectively, and within the context of the employment relationship as at the time the texts were sent, amount to unambiguous words of resignation. In coming to this conclusion, I have taken into account the fact that the text messages were sent to Mr Kurban and not Ms Harbie and in the context of a deteriorating relationship between Mr Bartolo and Ms Harbie. The relationship between Mr Bartolo and Mr Kurban, however, was one in which Mr Bartolo regarded him as a good friend and confidant 73 who had brought him into the company,74 whom he relied on to resolve issues with Ms Harbie, notwithstanding his mistaken view that Mr Kurban was a co-owner of the Respondent. Indeed Mr Kurban acknowledges that he had tried to be the ‘mediator’, ‘to soothe’ and ‘to keep the peace’ between Mr Bartolo and Ms Harbie. In making this finding I have also considered the employer’s response to Mr Bartolo’s text messages as set out in paragraph [31] above.
[42] Having regard to my findings in paragraphs [19], [24], [30], [34], and [41], I conclude that Mr Bartolo was dismissed on 8 April 2016 within the meaning of s.386(1).
Whether Mr Bartolo’s dismissal was unfair
[43] Having found that Mr Bartolo was dismissed, it remains necessary to determine whether that dismissal was unfair within the meaning of the FW Act. However, the present case is one in which the determination of the preliminary question as to whether there was a dismissal makes almost inevitable a finding that the dismissal was unfair.
[44] Section 396 of the FW Act requires that four specified matters must be decided before the merits of Mr Bartolo’s application may be considered. There was no contest between the parties regarding the matters specified in s.396. 75 Accordingly, I find that:
(a) Mr Bartolo’s application was made within the period required by s.394(2) (s.396(a));
(b) Mr Bartolo was a person protected from unfair dismissal (s.396(b));
(c) the Respondent was not a Small Business within the meaning of s.23 (s.396(c)); and
(d) the dismissal was not a case of genuine redundancy (s.396(d)).
[45] In determining whether Mr Bartolo’s dismissal was harsh, unjust or unreasonable, I must have regard to the following matters set out in s.387:
“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.”
[46] I am obliged to consider each of these matters in reaching my conclusion, and I do so having regard to the factual findings made earlier and taking into account the submissions filed by the parties.
[47] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ in the context of dismissal was explained in Byrne v Australian Airlines Ltd 76by McHugh and Gummow JJ 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.” 77
[48] Ultimately, however, I must have regard to the matters set out in s.387 of the FW Act.
Valid reason – s.387(a)
[49] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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). 78 The reason must be ‘sound, defensible or well founded’79 and should not be ‘capricious, fanciful, spiteful or prejudiced’. 80
[50] The Respondent submits that the text messages sent by Mr Bartolo on 7 and 8 April 2016 are so offensive as to justify termination and that they displayed a failure by Mr Bartolo to treat Ms Harbie with dignity, courtesy and respect. Further, the Respondent seeks to characterise the series of text messages sent by Mr Bartolo on 7 and 8 April 2016 as a repeat of the conduct referred in the warning letter dated 12 October 2015, warranting termination of Mr Bartolo’s employment.
[51] Ms Harbie gave evidence that there were a number of other incidents which preceded the text messages of 7 and 8 April 2017. One incident in particular which involved Ms Harbie and Mr Bartolo led to an official warning letter dated 12 October 2015.
Incident of 12 October 2015
[52] In a meeting of 12 October 2015 attended by administrative staff, Mr Bartolo and Ms Harbie, there was a heated exchange between Ms Harbie and Mr Bartolo which resulted in a written warning concerning Mr Bartolo’s conduct. 81 The written warning stated as follows:
‘Based on your behaviour in our Boardroom this morning which was heard by a good number of our staff I advise you that all Employees and Directors should be treated with dignity, courtesy and respect at all times and you have failed to do so today. Any further instances of this behaviour will lead to your termination.’ 82
[53] The circumstances that led to the written warning are in dispute between the parties. Ms Harbie, in her written statement, contends that Mr Bartolo became irate and began yelling and screaming at her. Mr Bartolo denies that he yelled and became irate, stating that he raised his voice as the ‘general meeting was at that level’. During the course of her oral evidence, Ms Harbie alleged that Mr Bartolo threw cake samples on the ground after the meeting and this was the reason for the first and final warning, contrary to the reasons provided in her witness statement. 83
[54] In addition to the 12 October 2015 incident, Ms Harbie gives evidence of two other occasions where she says Mr Bartolo ‘displayed unstable tendencies’. First, that on 28 January 2015 in relation to a speeding infringement notice the Applicant yelled and abused her in the main office before all of the staff. Second, that on 11 March 2016 in relation to a mobile phone infringement notice the Applicant was absolutely livid, yelled and abused her, crumpled the mobile phone infringement notice and threw it at her and that he said that it was not worth the effort. During her oral evidence Ms Harbie concedes that the reference to March 2016 as the date of the mobile phone infringement may have been a ‘typing mistake’.
[55] Mr Bartolo denies the 28 January 2015 infringement notices involved any incidents where he yelled at Ms Harbie. 84 Two infringement notices relating to Mr Bartolo dated 28 January 2015 were produced in the evidence before me, one a speeding infringement and the other a mobile phone infringement. The scanned copy of mobile phone infringement notice was tendered as an attachment to Ms Harbie’s witness statement.
[56] I accept that there were two infringement notices dated 28 January 2015, regarding a speeding infringement and a mobile phone infringement involving Mr Bartolo. Having regard to my finding in paragraph [12] above, I prefer the evidence of Mr Bartolo over Ms Harbie’s to the extent there are discrepancies between their evidence in relation to the alleged conduct of 28 January 2015. I do not accept that Mr Bartolo yelled at or abused Ms Harbie, nor did he throw the mobile phone infringement notice at her. It seems to me that if the incidents as alleged occurred, they were not regarded by Ms Harbie as serious enough to be raised with Mr Bartolo. There is no evidence that Ms Harbie counselled Mr Bartolo about these matters, or that he was warned about his behaviour toward Ms Harbie. In the circumstances, I do not find Ms Harbie’s evidence about these incidents particularly compelling.
[57] I accept that there was a meeting on 12 October 2015 and I accept that during the meeting Mr Bartolo raised his voice and that there was a heated exchange with Ms Harbie. I consider that this was a breach of Mr Bartolo’s obligations under his employment agreement and that he was issued a first and final warning by Ms Harbie on 12 October 2015. Further, I consider that there is insufficient evidence before me to support a finding that Mr Bartolo threw cake samples on the ground.
[58] In summary, I conclude the relevant facts were as follows:
- Mr Bartolo was issued with two infringement notices dated 28 January 2015.
- There was no infringement notice dated 11 March 2016 nor was there an incidence where Mr Bartolo engaged in a heated exchange with Ms Harbie regarding the alleged infringement notice on this day.
- There was a meeting on 12 October 2015 in which Mr Bartolo raised his voice at Ms Harbie and there was a heated exchanged which I find amounted to a breach of Mr Bartolo’s obligations under his employment agreement (see paragraph [57]).
- There was no incidence where Mr Bartolo threw cake samples on the ground and yelled at Ms Harbie on 12 October 2015 (see paragraph [57]).
[59] I am satisfied that the content of the text messages sent by Mr Bartolo to Mr Kurban were a source of frustration for Ms Harbie and that they were sent within the context of an environment of tension and dissatisfaction between her and Mr Bartolo. I do not consider the content or language of the text messages sent on 7 and 8 April 2016 themselves so offensive as to justify a valid reason for Mr Bartolo’s dismissal, nor do I accept the Respondent’s characterisation of them as misconduct. I do not accept that the text messages are of the same or similar character as the conduct that led to the 12 October warning.
[60] Having regard to my findings in paragraph [42] that there was a termination at the initiative of the employer and my above findings in paragraph [59], I find that there was no valid reason for dismissal.
Notification of the valid reason; Opportunity to respond – ss.387(b)-(c)
[61] As I have found that there was no valid reason for the dismissal, the issues of notification of the reason and the provision of an opportunity to respond are not relevant.
Unreasonable refusal of a support person – s.387(d)
[62] Mr Bartolo did not have discussions with Ms Harbie or any other person on behalf of the Respondent in relation to his dismissal or the reasons for it. Accordingly, the issue of a support person being present did not arise.
Warnings regarding unsatisfactory performance – s.387(e)
[63] The Respondent first raised Mr Bartolo’s issue of performance in its closing submission but did not particularise which meeting Mr Bartolo allegedly failed to attend. I have not considered this allegation in relation to my finding. The final written warning referred to by the Respondent is properly characterised as relating to Mr Bartolo’s conduct, therefore the dismissal did not relate to unsatisfactory performance.
Impact of the size of the respondent on procedures followed and absence of dedicated human resources management specialist/expertise on procedures followed - s.387(f) – (g)
[64] Mr Bartolo submits that the Respondent business is relatively small and it is expected that this would have an impact on the procedures followed and concedes that the Respondent does not have in-house human resource expertise. 85
[65] I find the absence of dedicated human resource management expertise in the Respondent's enterprise and the size of the Respondent has impacted on the procedures followed by the Respondent in effecting the dismissal and contributed to the unfair treatment experienced by Mr Bartolo.
Other relevant matters – s.387(h)
[66] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. In determining whether dismissal of Mr Bartolo was harsh unjust and/or unreasonable I have had regard to the following relevant matters:
- the harshness of the personal and economic consequences of the dismissal for Mr Bartolo;
- that Mr Bartolo has failed to secure alternative employment; and
- that the outcome of the dismissal was disproportionate to the gravity of the alleged misconduct.
Conclusion
[67] Having considered each of the matters specified in section 387 of the Act, I am satisfied that Mr Bartolo’s dismissal was:
- unjust because on the evidence before me, Mr Bartolo did not engage in the misconduct that the Respondent sought to rely on to justify its decision to dismiss him, and
- unreasonable because the Respondent's decision to dismiss Mr Bartolo was made on inferences which could not, on the basis of the evidence before me, reasonably have been drawn and because Mr Bartolo was not afforded procedural fairness in the process leading to his dismissal, and
- harsh in its consequences considering the personal economic situation of Mr Bartolo and because the dismissal is disproportionate to the gravity of the misconduct in respect of which the Respondent acted.
Remedy
[68] Section 390 of the FW Act sets out the circumstances in which I may make an order for reinstatement or compensation:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Reinstatement
[69] Mr Bartolo did not seek the remedy of reinstatement and that the Respondent opposes reinstatement in the event the application succeeds. 86
[70] Immediately prior to the dismissal, by Mr Bartolo's own admission, there was considerable tension in the relationship with Ms Harbie. I also accept the Respondent’s submission that there has been a loss of trust and confidence in Mr Bartolo. In the circumstances, I am satisfied that reinstatement is inappropriate.
Compensation
[71] I have found that Mr Bartolo was unfairly dismissed by the Respondent and consider that it is appropriate that an order for compensation be made. I am required by s.392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a)–(g) of the subsection. The general approach to the calculation of compensation in the context of the current Act is set out in Bowden v Ottrey Homes Cobram and District Retirement Villages. 87. I have adopted the methodology utilised in Bowden, in determining the amount of compensation payable.
Remuneration that would have been received: s.392(2)(c)
[72] Mr Bartolo’s remuneration with the Respondent was $81,952 per annum. 88
[73] I have considered the parties’ submissions and I determine it is reasonable to assume that, but for the dismissal, Mr Bartolo’s employment would have continued for 6 weeks. In coming to this conclusion I have taken into account Mr Bartolo’s generally good employment record, that he had no other employment to go to and would not have voluntarily left well-paying employment. I have taken into account that Mr Bartolo had been issued a first and final warning and that considerable tension existed between Mr Bartolo and Ms Harbie in the lead up to his dismissal. In particular, I have considered:
- the dissatisfaction of Ms Harbie with Mr Bartolo in relation to his sales, as expressed during the meeting of late March and the meeting of Wednesday 6 April 2016;
- Mr Bartolo’s displeasure with Ms Harbie as he thought she was trying to remove other aspects of his role and to reduce him to ‘just a sales person’;
- that from March 2016 Mr Bartolo offered to help Ms Harbie and Mr Kurban find his replacement on more than one occasion; 89 and
- that the terms of Mr Bartolo’s text messages are a strong indicator as to his state of mind as to his ongoing employment. Although the words in the text messages do not amount to a resignation, they do present a picture of an employee who was unhappy, was ‘already looking’ and did not ‘want to work for that lady’, all of which is inconsistent with an expectation of longevity of employment.
[74] Accordingly, I calculate the remuneration that Mr Bartolo would have received, or would have been likely to receive, if his employment had not been terminated, at $9,456 gross, plus superannuation.
Remuneration earned: s.392(2)(e)
[75] Mr Bartolo submits that he has been actively seeking employment but has obtained no paid employment and earned no income as of 25 November 2016. 90 Therefore no deductions are to be made.
Income reasonably likely to be earned: s.392(2)(f)
[76] Given my decision about the period of time Mr Bartolo would have remained in employment this is not relevant.
Other matters: s.392(2)(g)
[77] Ordinarily a deduction for contingencies is appropriate. 91 However, contingencies only apply to the anticipated period of employment. As the period of anticipated employment does not extend beyond the date of the hearing, I consider that a deduction for contingencies is not warranted in this particular matter.
Viability: s.392(2)(a)
[78] There is no evidence that an order for $9,456 gross plus superannuation, payable to Mr Bartolo by the Respondent would affect the viability of the Respondent’s enterprise. I do not consider that the making of an order for compensation will affect the viability of the Respondent and nothing has been put to me to suggest otherwise.
Length of service: section s.392(2)(b)
[79] I consider that Mr Bartolo's relatively moderate period of service with the Respondent does not in all the circumstances justify any increase or reduction to the amount of compensation otherwise payable.
Mitigating efforts: s.392(2)(b)
[80] Mr Bartolo submits that he has made all reasonable efforts to mitigate his loss. 92 Mr Bartolo has provided evidence of how he is looking for jobs, jobs he has applied for, and responses he had received in relation to some of them.93
[81] Mr Bartolo submits that the evidence he has been looking online and in newspapers at hundreds of jobs cannot be dismissed as an inadequate job search. 94 Mr Bartolo submits that the Respondent’s submission that a 50% deduction contingency on the basis that he has not mitigated his loss is not translatable to this situation and that the facts in Veal v Sundance95can be distinguished from the present matter.96
[82] The Respondent submits that the basic evidence that Mr Bartolo has mitigated his loss by seeking other employment is not enough to persuade the Commission that he has made an acceptable attempt to find work to mitigate his loss. 97 The Respondent submits that Mr Bartolo has attempted, in a cursory way, to find other employment and it is not enough to demonstrate that Mr Bartolo was serious about obtaining other work.98 The Respondent submits that Mr Bartolo has applied for positions in industries that he has not worked in and that the positions are not related to the work he was doing at the Respondent.99 The Respondent submits that Mr Bartolo has not acted reasonably to mitigate his loss.100
[83] The Respondent submits that as in Veal v Sundance Marine Pty. Ltd.as trustee for Sundance Unit Trust T/A Sundance Marine [2013] FWC 2653 where the Commission held that a discount of 50% was appropriate as the employee had not mitigated his loss, the same percentage be applied in this case. 101
[84] I consider Mr Bartolo has made reasonable attempts to mitigate the loss he has suffered because of his dismissal by the Respondent. I do not accept that I should make a deduction of 50% as advanced by the respondent. Mr Bartolo’s efforts to mitigate his loss can be distinguished from the failure to do so by Mr Bartolo in Veal v Sundance. The latter having rejected a number of jobs and instead decided to invest in a business that was in debt.
Misconduct: s.392(3)
[85] As per my earlier findings in this matter, there was no misconduct by Applicant; as such this has no relevance to an assessment of compensation.
Shock, Distress: s.392(4)
[86] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap: s.392(5)
[87] Since this amount of $9,456 gross plus superannuation, is less than the compensation cap in s.392(5) of the Act, I make no further reduction for that reason.
Conclusion
[88] I am satisfied an order for payment of compensation of $9,456 gross plus 9.5% superannuation, less taxation as required by law is appropriate in all circumstances of the case.
[89] An order 102 giving effect to this decision will be issued with this decision.
COMMISSIONER
Appearances:
Garry Dircks, of Just Relations – Consultants for Applicant;
Anton Duc, of Counsel for Respondent.
Hearing details:
2016
31 August and 27 October.
Final written submissions:
Applicant’s Final Submission – Remedy, 25 November 2016
Respondent’s Final Submission – Remedy, 24 January 2017
Applicant’s Final Submission in Reply – Remedy, 2 February 2017
1 PN318-PN319 and PN527-PN528.
2 Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64 at [82].
3 (1999) 94 IR 375.
4 Exhibit R1.
5 Exhibit A1, par.1.
6 Exhibit A1, par.47.
7 Exhibit A1, par.51.
8 Exhibit A1, par.52.
9 Exhibit A1, par.55.
10 Exhibit A1, par.59.
11 Exhibit A1, par.60; PN138.
12 Exhibit A1, par.60; PN138.
13 Exhibit A1, par.62; PN136.
14 Exhibit A1, par.64 and attachments MB8 and MB9.
15 Exhibit R2, p.3.
16 Exhibit R2, p.2.
17 Exhibit R2, p.2.
18 Exhibit R2, p.2.
19 Exhibit R1.
20 Exhibit R1.
21 Transcript at PN1072–PN1075.
22 Exhibit A1, par.65-66.
23 Exhibit A1, par.69.
24 Exhibit A1, par.70.
25 Exhibit A1, par.71.
26 PN257-259.
27 PN260-262.
28 Exhibit R2, p.3.
29 Exhibit R2, p.3.
30 Exhibit R2, p.3.
31 Exhibit R2, p.3.
32 Exhibit R2, p.3.
33 Exhibit A1, par.72 and attachments MB10-MB11.
34 Exhibit A1, par.72 and attachments MB10-MB11.
35 Exhibit A1, par.72 and attachments MB10-MB11.
36 Exhibit A1, par.72 and attachments MB10-MB11.
37 PN318 & 527.
38 PN319 & 528.
39 PN320-321 & 328.
40 PN334 & 388-390.
41 Exhibit A1, par.73 and attachment MB12.
42 Exhibit A1, par.74 and attachment MB12.
43 Exhibit R1 and attachments.
44 PN707.
45 Exhibit R1 and attachments.
46 PN785.
47 Exhibit R1.
48 PN832-840.
49 Exhibit A3.
50 PN707, 859 & 861.
51 PN944.
52 Exhibit R2, p.2-3.
53 Exhibit A1, par.75 and attachment MB13.
54 Exhibit A1, attachment MB13.
55 Exhibit A1, par.77.
56 PN956-958.
57 Exhibit A1, attachment MB13.
58 Applicant’s Closing Submissions, lodged 22 September 2016, par.67.
59 Applicant’s Closing Submissions, lodged 22 September 2016, par.68; Exhibit R2; PN939.
60 Applicant’s Closing Submissions, lodged 22 September 2016, par.79.
61 Applicant’s Closing Submissions, lodged 22 September 2016, par.80.
62 Applicant’s Closing Submissions, lodged 22 September 2016, par.89.
63 Applicant’s Closing Submissions in reply, lodged 20 October 2016, par.6-7.
64 Applicant’s Closing Submissions in reply, lodged 20 October 2016, par.13.
65 Applicant’s Closing Submissions in reply, lodged 20 October 2016, par.20.
66 Respondent’s Closing Submissions, lodged 6 October 2016.
67 Exhibit A3; Respondent’s Closing Submissions, lodged 6 October 2016.
68 Respondent’s Closing Submissions, lodged 6 October 2016; PN336-345.
69 Respondent’s Closing Submissions, lodged 6 October 2016; PN390-391.
70 Respondent’s Closing Submissions, lodged 6 October 2016.
71 Respondent’s Closing Submissions, lodged 6 October 2016.
72 Respondent’s Closing Submissions, lodged 6 October 2016.
73 Exhibit A1, par.72; PN303, 313 & 603.
74 Exhibit A1, par.15.
75 There was some initial disagreement between the parties as to whether the Respondent was a small business, however, During the hearing of 31 August 2016 the Respondent’s representative confirmed that s.385(c) was not in issue. PN25.
76 (1995) 185 CLR 410
77 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ)
78 Fair Work Act 2009 (Cth) s. 387(a).
79 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
80 Ibid.
81 PN158-159; Exhibit A1, par.29.
82 Attached to email, dated 26 April 2016, lodging Unfair Dismissal Application Form F2.
83 Transcript at PN1121.
84 PN248.
85 Applicant’s Closing Submissions, lodged 22 September 2016, par.12.
86 Applicant’s Outline of Submissions, lodged 27 June 2016, par.56; Applicant’s Closing Submissions, lodged 22 September 2016, par.19-21.
87 [2013] FWCFB 431
88 Employer Response Form F3, lodged 26 May 2016, answer to questions 1.5; Applicant Outline of Submissions, lodged 27 June 2016, par.1; Exhibit A1, par.6 and attachment MB2.
89 Exhibit A3; PN472; Exhibit A1, par.55..
90 Applicant’s Closing Submissions, lodged 22 September 2016, par.41; Applicant’s Closing Submissions – Remedy, lodged 25 November 2016, par.19-20; Applicant’s Closing Submissions in reply – Remedy, lodged 2 February 2016, par.45.
91 Slifka v JW Sanders Pty Limited (1995) 67 IR 316 at 328.
92 Applicant’s Closing Submissions, lodged 22 September 2016, par.43.
93 Applicant’s Witness Statement Regarding Mitigation, dated 20 October 2016, par.2-6 and attachments MB17-MB20.
94 Applicant’s Closing Submissions in reply – Remedy, lodged 2 February 2017, par.47.
95 [2013] FWC 2653.
96 Applicant’s Closing Submissions in reply – Remedy, lodged 2 February 2017, par.52 & 55.
97 Respondent’s Closing Submissions – Remedy, lodged 24 January 2016, par.18-19.
98 Respondent’s Closing Submissions – Remedy, lodged 24 January 2016, par.19-20.
99 Respondent’s Closing Submissions – Remedy, lodged 24 January 2016, par.20.
100 Respondent’s Closing Submissions – Remedy, lodged 24 January 2016, par.22.
101 Respondent’s Closing Submissions – Remedy, lodged 24 January 2016, par.24.
102 PR592778.
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