Mr Frank Femia v Prima Pizza and Pasta

[2014] FWC 5293

[2014] FWC 5293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Frank Femia
v
Prima Pizza and Pasta
(U2013/17374)

COMMISSIONER CLOGHAN PERTH, 7 AUGUST 2014

Unfair dismissal.

[1] On 13 December 2013, Mr Frank Femia (Mr Femia or Applicant) made application seeking a remedy for alleged unfair dismissal from his employment with Prima Pizza and Pasta (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] Conciliation did not take place on 13 February 2014. Both parties requested a conference before a Commissioner. A conference before a Commissioner took place on 20 March 2014. The matter remained in dispute.

[4] At the hearing on 18 June 2014, the Applicant was represented by Mr Jones, Agent. The Applicant gave evidence on his own behalf.

[5] The Employer was represented by Mr Clifton of counsel. Evidence for the Employer was given by Mr A Abate, Proprietor and Mr P Leonard, Head Chef.

[6] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.

RELEVANT LEGISLATIVE FRAMEWORK

[7] There is no dispute between the parties that Mr Femia has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework is ss.385 and 387 of the FW Act.

[8] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[9] Mr Femia has been dismissed, consequently, the issue for determination is whether the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (Code).

RELEVANT BACKGROUND

[10] The Employer is a fast food business employing less than nine (9) employees.

[11] The Employer does not employ a dedicated Human Resources employee and does not have a Human Resources policy. Mr Abate employs two (2) cooks and casual employees as required.

[12] Mr Abate has known the Applicant for approximately 20 years as he worked for Mr Abate’s father. Mr Abate described Mr Femia as an acquaintance but had not seen him in years prior to employment with the Employer.

[13] In or about December 2010, the Applicant enquired whether Mr Abate had any work available. On 14 July 2011, Mr Femia was employed by Mr Abate as a Cook. There was no written contract of employment. Mr Femia’s duties included making pizzas, supervising staff, handling cash, responding to customer orders and closing the shop when required.

[14] On 26 October 2013, Mr Abate advised Mr Femia that his employment with the Employer would cease on 23 November 2013.

APPLICANT’S SUBMISSION

[15] The Applicant submits that the Code was not followed and the incidents on which the termination of employment was based were not established, and in any event, were not sufficiently serious to warrant dismissal.

[16] Mr Femia further submits that “the alleged events did not occur and there was no valid basis for the termination”.

EMPLOYER’S SUBMISSION

[17] The Employer submits that:

• the Commission can be satisfied that Mr Femia’s dismissal was consistent with the Code, and consequently, the Applicant was not unfairly dismissed in accordance with s.385 of the FW Act;



• the Applicant was a difficult and problematic employee from commencement of employment;



• there were a number of specific incidents (as set out in witness evidence) that demonstrate that the Applicant’s behaviour, performance and general conduct in the workplace was unacceptable;



• further, there were a number of specific incidents that arguably justified summarily termination of employment;



• the Applicant received a number of verbal warnings regarding his conduct and behaviour in the workplace;



• Mr Femia was given a number of oral performance warnings regarding mistakes concerning pizza orders;



• in October 2013, the Applicant was provided with a specific warning that his employment was at risk of termination The warning was plainly received by the Applicant to such an extent that he commented to Mr Leonard that he was “on probation”;



• the Applicant was given the opportunity to improve his behaviour, conduct and performance; and



• the application should be dismissed.

CONSIDERATION

Mr Femia’s evidence

[18] Difficulties with Mr Femia’s evidence can be demonstrated as follows:

“As a senior member would you expect to set a good example for other employees?---I always did.” 1

“...I was the most professional worker there.” 2

“...at one stage where you decided to walk out of the restaurant?--- That's the night I got splattered with cheese.” 3

“Did you take some money out of the till before you walked out?---I took my money out of the till because Adrian [Mr Abate] won't pay the cash...He wouldn't give me my money.” 4

“So what did you say to Adrian when you took your money out of the till?---I'm going home.” 5

“Did Adrian warn you about taking money out of the till?---No, he didn't.” 6

“Did you give the money back?---No, it was my money.” 7

“What do you mean it's your money? Have you ever been paid - taking your own money out of the till?---I would pay myself in certain cases when Adrian was not there.” 8

“Did anyone else tell you that taking money out of the till is not the right thing to do?---No. I paid them as well.” 9

“...so you're aware that Adrian would tell you - or tell other staff members not to cook pasta for you?---Yes.” 10

“And would you go against that direction?---Well, I wouldn't ask for it, no.” 11

“What do you mean, you wouldn't ask for it?---I wouldn't ask for it, they just gave it to me.” 12

“Did Adrian talk to you about this issue?---Yes.” 13

“And what did he say to you?---"It's a policy that we don't have pasta.” 14

“So your attitude with Adrian changed and you'd constantly go against any of his wishes and directions?---Not at all, no, he's the boss.” 15

“Would you say it's correct that you make between three or four mistakes a night? ---I'd say three or four per week.” 16

“Did Adrian ever discuss these matters with you? ---No. 17

“So if a mistake was made nothing was ever said to you?---If a mistake was made it was generally somebody else.” 18

“It wasn't yourself?---Well, no.” 19

“Even with those one to three mistakes per week, did you talk to Adrian about them, did Adrian talk to you about those mistakes?---He wasn't there - well, no, I wouldn't talk to him about it.” 20

“If he was there?---Well, I'd tell him, yes, of course. "We have to make another pizza, this one is wrong.” 21

“Did you ever tell Paul Leonard that you were on probation?---No.” 22

“- - - that you were on probation, would you say that's not correct?---I'd say Paul's either probably getting paid off or... being a friend to Adrian, or trying to keep his job” 23 24

“Did you ever swear at them when they made a comment - if they made a comment about your shirt?---If I swore at him I would be fired and I did not swear. This whole thing is about respect, and I did respect my employer.” 25 (my emphasis)

Evidence

[19] Mr Abate in cross examination described Mr Femia as hard to deal with, “He would just say, "I can't do it. I'm too old to change. It's just the way I am.” 26 Mr Abate characterised Mr Femia as belligerent. In my view, Mr Abate’s description was accurate. I gained the impression during the hearing that Mr Femia saw these proceedings as a continuation of his conflict with Mr Abate, irrespective of fact or evidence.

[20] Mr Femia’s evidence was to deny certain events took place or undermine their significance. I do not accept that the dismissal was related to a plot or sub plot related to employment/contractual issues or safety matters. This was simply an employee, through an accumulation of “innumerable events”, 27 led Mr Abate forming the view that he had a “gutful” and ended the employment relationship.28

[21] Mr Abate’s witness statement is very measured and controlled as the Commission would expect when prepared with the assistance of a lawyer. However, in cross examination when pressed about Mr Femia’s behaviour and conduct at work, Mr Abate’s evidence was like an outpouring of emotion.

[22] Mr Abate described his business as a “mum and dad type business” 29. Mr Abate did not try to embellish his business. Mr Abate acknowledged that training was “basic”, he looked for people with “experience dealing with food”30. The job is not “rocket science”31. Making pizzas is not a career, but is a “stop gap job” for most32.

[23] Mistakes in the business occurred 33. However, Mr Abate does not undertake training in handwriting as inferred by the Applicant regarding the reading of order dockets - “they [are] adults, they should be able to write”34.

[24] Unintentionally, I consider Mr Abate was giving evidence that the standards of behaviour and performance expected of employees in his business was not that of a five (5) star restaurant but a pizza bar. Mr Abate tolerated Mr Femia for so long but in the end, it was “too hard” 35 and he gave Mr Femia four weeks’ notice.

[25] Mr Abate was not cross examined on the details of examples he gave in his witness statement which, in accumulation, led to Mr Femia’s dismissal. Where there is conflict in the evidence of the detail of incidents which occurred during Mr Femia’s employment, I prefer the evidence of Mr Abate.

[26] Mr Femia is alleged to have “slapped” a fellow employee who immediately left the premises and never returned to work. Mr Femia said he “definitely” did not slap him. Mr Femia’s response to allegedly slapping another employee is to say “it’s against my morals” 36. As to noticing whether the employee on the receiving end of the slap, had left work immediately, the Applicant’s evidence is that he does not remember and people are leaving all the time. I am satisfied on the evidence that Mr Abate enquired as to why the employee was not at work. Mr Abate raised the matter with Mr Femia and informed him that if it occurred again, his employment would be terminated37. I am satisfied that Mr Leonard heard an argument and a slap, and further, gave evidence that Mr Femia said to him after the incident words to the effect “I gave him a little slap”; this witness’ evidence was not challenged in cross examination.

[27] In early October 2013, there was another argument/discussion between Mr Femia and Mr Abate. Mr Abate gave evidence that he was “fed up” with Mr Femia’s behaviour and that it could not continue. Mr Abate’s evidence is that Mr Femia offered to give four (4) weeks’ notice. Mr Abate declined to accept the proposed notice but requested Mr Femia to “do his job without all the dramas” 38. Mr Abate’s evidence was not subject of Mr Femia’s examination in chief but he denied in cross examination that he gave notice. I accept the evidence of Mr Leonard that Mr Femia stated he was now on probation.

[28] I find that the particular incidents referred to by the Employer involving Mr Femia’s conduct or performance are relevant. The evidence demonstrates that Mr Femia was disposed to conduct consistent with Mr Leonard’s evidence that the Applicant would: refuse to follow instructions; objected to being told the correct way of doing things; be abrasive with customers and argue and swear with staff.

[29] I also find an inconsistency between the evidence in the hearing of Mr Femia’s assessment of himself as a “professional”, “setting a good example” and not going against “the boss”. Mr Femia seemed unconcerned with contradictions in his evidence.

[30] In conclusion, Mr Femia appeared to consider that he had proprietary rights over certain facts. If Mr Femia stated that a certain incident did not occur, that was all that was necessary and sufficient. When pressed on such matters, he would tend to distract or obscure incidents.

Small Business Fair Dismissal Code

[31] Section 388 of the FW Act provides for a Small Business Fair Dismissal Code. The Code relates to summary dismissal and “other dismissal”.

[32] The Employer asserts that Mr Femia was dismissed pursuant to the “other dismissal” provisions.

[33] In the case of an other dismissal, it is necessary for:

• the employee to be given a warning (verbally or preferably in writing) that the employee is at risk of being dismissed;



• the reason for the warning must be a valid reason and based on the employee’s conduct or capacity to do the job;



• the employer is required to provide the employee with an opportunity to respond to the warning and rectify their conduct or capacity to do the job;



• in discussions between the employer and employee where dismissal is a possibility, the employee can have another person present;



• in the event of a claim of unfair dismissal, the employer must demonstrate that it has complied with the Code, if it has completed the Code Checklist, copies of written warnings, a statement of termination or signed witness statements.

Was Mr Femia given a warning?

[34] I am satisfied on the evidence that Mr Femia received from Mr Abate oral warnings concerning the mistakes he made regarding pizza orders The extent of the mistakes was disputed in the hearing but Mr Abate’s evidence that the rate of errors had “gone through the roof” since Mr Femia commenced employment was not disputed in cross examination 39. Further, Mr Abate gave evidence that Mr Femia’s response was to put the mistakes down to “human error”.

[35] I am satisfied on the evidence that Mr Femia during his employment slapped another employee and received a warning that if it happened again, he would be replaced 40.

[36] In October, Mr Femia concedes he attended work in a Wild Cats T Shirt.

[37] Mr Abate gave evidence that he questioned its suitability and what made him think he could turn up for work dressed in such a way 41. Mr Leonard also passed comment on the state of the T Shirt42. Mr Femia cannot recall the incident. Mr Leonard’s uncontested evidence is that after his and Mr Abate’s comments, Mr Femia told both of them to “fuck off” and went to IGA to buy another shirt. Mr Femia later questioned Mr Leonard as to why he had taken Mr Abate’s side; Mr Leonard responded with words to the effect, “how could I not agree with him”43.

[38] I am satisfied on the particular evidence that Mr Femia was told to improve his performance and conduct following an incident in which the following was written about him on Urbanspoon:

“I order quite a lot and assumed they would work out the process based on the combos...But on paying, they talked up the full price for each item. When questioned about the combos, the big guy was quite rude, ‘no no no, all I see is the price here’, he said while pointing to the docket. Luckily another guy intervened and helped...” 44 (my emphasis)

[39] Mr Femia concedes that the “big guy” was himself and that “she [the customer] wasn’t happy” and Mr Abate “took over” 45. I am satisfied that on seeing the review on Urbanspoon, Mr Abate raised the issue with the Applicant. Mr Abate’s evidence was that he counselled Mr Femia to “be more helpful with a clearly agitated client by not saying things like, ‘I just see the total’ when the client feels that there is an issue with the pricing”46. Consistent with other evidence of Mr Femia, he directed the “blame” for the incident on the Employer. The Employer addressed the incident. Mr Femia refused to take any responsibility which appears to be consistent with other events in the workplace.

[40] Finally, I am satisfied on the evidence that the “last straw” for the Employer was the need to remake an order on 26 October 2013. Mr Femia does not deny he made the mistake 47. However, almost predictably in cross examination, responsibility for the mistake belonged to Mr Abate because “everything gets moved around, gets changed around”48. However, later in cross examination, Mr Femia states, “I was shocked that I was being fired for misreading a docket”49.

[41] I find it inconceivable and incompatible that Mr Femia can give evidence that “any restaurant will have about 10 per cent per night of mistakes” 50 and at the same time, in examination in chief, also say that he was never given any information, counselling or advice on how to improve his performance,.

[42] By the time of the incident on 26 October 2013, the Employer had a “gutful” of Mr Femia’s lack of performance. Mr Femia knew what was required of him but was not prepared to rectify his performance. The Employer came to the view, despite the problems of replacing Mr Femia, further warnings would be fruitless and terminated, with notice, his employment.

[43] In conclusion, I am satisfied that Mr Femia was given warnings.

Was there a valid reason for the warnings?

[44] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 (Selvachandran) in the following terms:

“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 reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. 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 treated fairly’.”

[45] I am satisfied that in accordance with Selvachandran, for the reasons outlined above, the warnings were sound, defensible and well founded.

Was Mr Femia provided with an opportunity to respond to the warnings and rectify their conduct and capacity to do the job?

[46] Mr Femia was informed about his unsatisfactory performance and conduct. Mr Femia was given the opportunity to rectify his conduct and performance.

[47] While Mr Femia attempts to portray his dismissal as trivial - “misreading a docket”, he fails to recognise, and understand, that this was the “last straw” or the “tipping point” after an accumulation of mistakes and inappropriate conduct.

[48] Notwithstanding, Mr Abate runs a “mum and dad business”, he had standards of performance and conduct. These standards were made known to and applied to Mr Femia. In view of all the previous incidents, I am satisfied that Mr Abate extended to Mr Femia a fair and reasonable opportunity to respond to his conduct and capacity to do the job. It would appear that the opportunity for Mr Femia to improve his performance would not have been as extensive, if Mr Abate could have readily replaced the Applicant; this was not possible due to the labour market and other business reasons. I am satisfied Mr Femia was given extensive opportunities to respond.

Was another person present at the time Mr Femia was given notice of termination of employment?

[49] There is no dispute between the parties that another person was present at the time Mr Femia was given notice.

[50] The Employer readily admits that he does not have a Human Resources policy or access to human resources specialists.

[51] The presence of a support person is not mandatory for compliance with the Code.

Has the Employer demonstrated that it has complied with the Code through the provisions of a completed checklist, copies of written warnings, statement of termination or signed witness statements?

[52] As part of these proceedings, the Employer has provided evidence of compliance with the Code by signed witness statements.

CONCLUSION

[53] In conclusion, for the reasons set out above, I am satisfied that Mr Femia’s dismissal from his employment was consistent with the Code, and consequently, is not an unfair dismissal in accordance with s.385 of the FW Act. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Appearances:

R Jones, Industrial Agent, on behalf of the Applicant.

C Clifton, of counsel, on behalf of the Respondent.

Hearing details:

2014:

Perth,

18 June.

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