Mr Andrew Grimson v Alice Springs Memorial Club Inc
[2010] FWA 2764
•11 APRIL 2010
[2010] FWA 2764 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Andrew Grimson
v
Alice Springs Memorial Club Inc
(U2009/13197)
COMMISSIONER THATCHER | SYDNEY, 11 APRIL 2010 |
Termination of employment - arbitration
[1] Andrew Grimson has made application to Fair Work Australia for an unfair dismissal remedy on the basis that the termination of his employment as Head Chef, Alice Springs Memorial Club (the Club) on 12 October 2009 was harsh, unjust or unreasonable.
[2] I considered it appropriate to proceed by way of hearing after taking into account the wishes of the parties. 1 Before proceeding to hear and determine the application, I was satisfied of the requirements of s.396 (Initial matters to be considered before merits) of the Fair Work Act 2009 (the Act). The matter had been adjourned from 19 January 2010 at the request of Mr Grimson.
[3] Mr Grimson, who had been employed since 16 February 2009, was terminated because the Club was not satisfied with his performance. 2 Specifically, as Head Chef he had shown poor leadership and refused to accept direction from Andrea Sullivan, the Club’s General Manager.
[4] Evidence was given by Mr Grimson and Ms Sullivan. This focussed on the series of events that led to the termination of Mr Grimson’s employment.
[5] One incident occurred at approximately 3.00am on the morning of Saturday 5 September 2009 when the club’s premises were not occupied, and involved Mr Grimson, who had not been working that evening, jumping the back fence of the Club after alighting from a taxi in the company of two other persons. After jumping the fence he gained entry to the licensed premises through the back kitchen door with his master key and left carrying a box. Whilst Mr Grimson stated that he was checking to see if an apprentice had turned the gas off and the kitchen was closed correctly and that the box had not contained alcohol but only his dirty clothes, to gain entry at such time the Club expected him to contact either its security or its general manager. The Club considered that entering the building in such manner to be unacceptable behaviour and not expected of a senior employee.
[6] As a consequence the Club required Mr Grimson to return the key and introduced a procedure/checklist and training plan to prevent that type of problem happening again. It issued him with a written warning, which included the possibility of dismissal should further incidents or similar behaviour occur.
[7] Another issue involved Mr Grimson’s practice of preparing his roster so that it showed that he was starting work at 9.30am. For some time Ms Sullivan had been requesting him to alter the roster so that it recorded the correct starting and finishing times 3 but he had failed to do so. Since 30 June 2009 Ms Sullivan made notes in her diary whenever his starting times were well after 9.30am (based on the observations of herself or other staff of when Mr Grimson arrived at the Club).
[8] There was also an issue of the requirements that kitchen staff not put empty bread crates in the back outside area of the kitchen and that staff clean and keep the walkway tidy at all times. Ms Sullivan had asked Mr Grimson repeatedly for this and, because her verbal requests were not heeded, on 28 September 2009 she put the request in writing. However on 30 September 2008 Ms Sullivan noticed that the floor area had not been cleaned and again spoke to Mr Grimson. 4 Under cross examination, Mr Grimson explained that he thought the back outside area was the most convenient spot for the crates. Whilst he acknowledged that Ms Sullivan was entitled to have her way, Mr Grimson would not concede that his failure to comply with her requests involved his performance.5
[9] The final incident, which triggered the termination of Mr Grimson’s employment was the unfavourable report of 9 October 2010 from the health inspector, which was undertaken whilst Mr Grimson was on a rostered day off. The report contained some 15 adverse items, which included the removal of bricks from under a freezer, something that Ms Sullivan had previously indicated to Mr Grimson that he must fix and which the club took to be another example of his failure to take instructions. The Club took the view that it was primarily Mr Grimson’s responsibility to ensure that the kitchen maintained the standards required for health and safety.
[10] Section 387 of the Act states:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
Valid Reason
[11] There is a general acceptance that the often quoted words of Northrop J in Selvachandran v Peteron Plastics Pty Ltd also apply to the existing provision:
In its context in s.170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct …. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s.170DC. 6
[12] Clearly Mr Grimson actions in accessing the Club’s premises on the morning of 3 October 2009 caused the Club to question whether it could have confidence in his judgement. Thereafter, Mr Grimson was ‘on thin ice’ and transgressions, which in isolation might not have warranted his dismissal, when taken cumulatively led to the termination of his employment.
[13] Whilst at times Mr Grimson appeared to accept that as the Head Chef he was responsible for the overall operations of the kitchen and its staff, 7 at other times he appeared to seek to blame other kitchen staff for various failures rather than accept overall responsibility for their performance.8 Also, he appeared to submit that his willingness to rectify the breaches excused him from the issues that had occurred.9
[14] Having observed the evidence I was left in little doubt that Ms Sullivan’s limited involvement in how Mr Grimson organised and maintained the kitchen was not welcomed and was resisted by him.
[15] In my opinion, in the prevailing circumstances, this failure to accept accountability for the performance of kitchen staff and his failure to recognise and accept the General Manager’s authority constitute a valid reason for Mr Grimson’s dismissal relating to his capacity or conduct.
[16] Mr Grimson may well have excellent culinary and customer service skills (and I heard no evidence to the contrary. Indeed during the period of Mr Grimson’s employment there was an increase in the Club’s patronage, particularly in the bistro, and in May 2009 the Club won a ‘Best Club Bistro Dining’ award). However I am satisfied that for the reasons to which I have alluded his performance fell short of the club’s expectations of the conduct and performance of its Head Chef. I was not persuaded by what was put to me by Mr Grimson that those expectations were unreasonable to an extent that the various failures did not constitute a valid reason for the termination of his employment.
[17] It may be that some gastronomic restaurants and the like decide to retain the services of chefs whose conduct in the kitchen would otherwise be a valid reason for the termination of their employment. However this was not the approach taken by this Alice Springs club towards Mr Grimson and this was not unreasonable.
Procedural fairness
[18] Following its consideration of the health inspector’s unsatisfactory report, on Mr Grimson’s return to work the Club took action to terminate his employment without indicating its intention to do so and giving him the opportunity to respond.
Previous warning
[19] As a consequence of the incident of Mr Grimson accessing the Club’s unoccupied premises, the Club issued him with a warning, which included the possibility of dismissal, should further incidents or similar behaviour occur. No further warnings 10 were given to Mr Grimson.
Other matters
[20] Nothing was put to me about the Club’s size or the degree to which the absence of dedicated human resource management specialists or expertise impacted upon the procedures followed in effecting the dismissal.
[21] I have taken account of Mr Grimson’s relatively short period of employment (just under 8 months) with the Club. Also I have taken into consideration the economic impact of his dismissal and his subsequent relocation.
[22] There was no evidence to support inferences being drawn that Mr Grimson’s employment was terminated because he queried the Club’s contributions to his superannuation or that he had sought a pay rise (although I noted that his Individual Transitional Employment Agreement contained a No Extra Claims clause). Also Mr Grimson gave no evidence to support his suggestion that there was a drug culture amongst employees (which was not accepted by the Club) with which he did not wish to become involved.
Conclusion
[23] After having regard to my findings in relation to each of the matters in s.387 (a) to (h) of the Act and giving appropriate weight to each, I am not satisfied that the termination of Mr Grimson’s employment was harsh, unjust or unreasonable.
[24] In arriving at that decision I have been conscious of the object of Part 3-2 of the Act, including ensuring that both the Club and Mr Grimson are accorded a ‘fair go all round’.
[25] The application is dismissed and I order accordingly.
COMMISSIONER
Appearances:
Mr A Grimson on his own behalf
Mr M Maloney and Ms A Sullivan for the Alice Springs Memorial Club Inc
Hearing details:
2010
Alice Springs
January 19
March 9
1 s.398 (Hearings)
2 PN498 & PN502
3 PN184-PN186
4 MR Grimson’s sworn statement that he was on sick leave during the period was found to be inaccurate under cross-examination (PN156). PN214
5 (PN144, PN147 , PN150, PN159)
6 (1995) 62 IR 371, 373
7 PN116, PN170-PN171, PN202
8 Mr Grimson sought to blame the chef on the previous night’s shift for issues addressed in the report and stated: ‘As I was not at work that evening the state of the kitchen was not my responsibility.’ Also he sought to blame an apprentice for not maintaining cleaning procedures whilst Mr Grimson had taken two days off. [This was contrary to the Club’s evidence that the health inspector stated that certain cleaning had not been done for some months.] Mr Grimson sought to justify putting the freezer back on bricks (contrary to Ms Sullivan’s instruction) because his request that the freezers be affixed with wheels had not been ‘adhered to by Club management’.
9 In his closing statement Mr Grimson, when referring to the health report, said: ‘… all right I’ll take responsibility for the people not doing their job perfectly. But as I tried to explain to you, like, if they don’t do it, they don’t do it, like. But at the end of the day it was fixed up.’ (PN486)
10 The meaning of the term ‘warning’ in the relevant context was explained by a Full Bench of the Australian Industrial Relations Commission, S9280, 21 August 2000, per Ross VP, Williams SDP and Blair C, at paragraphs 43-44.
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