Mr Jaime Neves v Mecca Bah Oracle Broadbeach Gold Coast

[2014] FWC 2417

[2014] FWC 2417

FAIR WORK COMMISSION

DECISION

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

Mr Jaime Neves
v
Mecca Bah Oracle - Broadbeach Gold Coast
(U2013/14605)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 17 APRIL 2014

Summary: whether dismissal harsh, unjust or unreasonable - compensation ordered.

[1] This application under s.394 of the Act was made by Mr Jaime Neves (“the Applicant“), who seeks an unfair remedy in respect of his dismissal from his employment at Mecca Bah Oracle - Broadbeach Gold Coast (“the employer”) where he performed duties as supervisor. The Applicant had been employed for a period of some seven months with the employer before he was dismissed.

[2] The Applicant’s employment was terminated on 10 October 2013 by written correspondence in the following (relevant) terms:

Your performance during the course of your employment has not been on par with the level of supervisor expected at Mecca Bah. During our numerous conversations you were advised about the issues but still were unable to perform to the level expected of you.

It is apparent that you are not able to follow even simple instructions without questioning authority and having no respect for those above you in the hierarchy.

The latest incident involving blinds last Monday is the direct cause of the termination of your employment though. You were repeatedly instructed and shown the way to operate the blinds, yet every time you disregard these instructions. Your actions were dangerous to the passers by, and could, potentially, cause thousands dollars of damage to Company property.

Considering all of the above you leave me no option but to terminate your employment effective immediately. (sic)

[3] The author of the dismissal correspondence was Mr Stan Kravchenko, the manager.

[4] The Applicant contends that the employer’s premises had two sets of shutters, which were closed by a remote control. The Applicant claims that he was familiar with the method of closing one set of shutters, but not the other. On 7 October 2013 he was required to close the second set of shutters. He had only completed this process on one other occasion, he claimed, and had received only minimal training.

[5] Upon his attempting to close the shutters, Mr Kravchenko was said to have appeared and “shouted” at him (in front of other staff) words to the effect of:

“You’re doing it wrong.”

“How many times do I need to tell you?”

“Are you listening to me?”

[6] The Applicant claimed that he became flustered after having been “yelled at” and pushed the wrong button which caused a third shutter to blow in the wind. The Applicant claimed Mr Kravchenko “continued to scream at” him. The Applicant stated that:

“I ignored him as I did not want to respond in kind. I thought it best to shut the shutters and get the job finished.”

[7] The Applicant then conceded that when Mr Kravchenko continued to yell at him, he (the Applicant) responded in kind.

[8] The Applicant says he was immediately sent home from his shift as a consequence. The Applicant claims he attempted to speak with Mr Kravchenko about the matter but he (Mr Kravchencko) was too busy to engage in further discussion.

[9] The Applicant had two rostered days off thereafter. But on Thursday 10 October 2013 he opened his e-mail whilst at home at 9AM in the morning (before commencing a 10AM shift) and discovered the dismissal correspondence set out above.

[10] The Applicant claimed that he had no recollection of having any other adverse interactions with Mr Kravchenko over the course of his employment. He only recalled one incident on a Saturday night after a busy shift in which he and Mr Kravchenko were said to have had a “small discussion” where Mr Kravchenko criticised the Applicants work. The Applicant had responded by informing Mr Kravchenko “that I was not doing anything wrong”. The Applicant claimed that Mr Kravchenko had informed him that he should not “talk back on a busy Saturday shift and that if [he] did, he would send [me] home.”

[11] The Applicant contended he was never issued any warnings of any kind over the course of his employment and that bar the matters raised above Mr Kravchenko had expressed no disapproval as to his conduct or performance. And as is apparent from the above, the Applicant claims that he was given no opportunity to respond to the reasons for his dismissal (let alone having been notified in advance thereof).

[12] Mr Kravchenko, the General Manager of the Mecca Bah Group, asserted evidence to the effect the Applicant was an unsuitable employee, and also provided a different construction of the events around the incident of 7 October 2013.

[13] Generally, Mr Kravchenko claimed the Applicant was unable to competently perform his duties, largely for reason of the Applicant’s idiosyncratic conduct, which demonstrated that he was unstable and unpredictable as an employee and as a supervisor of other employees.

[14] Mr Kravchenko claimed as evidence of this the following behaviours for which it was said the Applicant was “reprimanded repeatedly”:

• Whistling loudly in the middle of the dining room service;



• Swinging an imaginary cricket bat repeatedly during the dining room service;



• Calling or sending an SMS text notifying that he was sick with an hour’s notice and without a medical certificate;



• Sending Mr Kravchenko on a regular basis prank text messages at any time of the day and in the middle of the night; and



• Crying in the middle of the dining room service in view of customers (because his dog was sick or had a rash, or because his relationship was unstable).

[15] Generally speaking, Mr Kravchenko considered that conduct of this kind demonstrated that the Applicant was unpredictable and unstable and not able to supervise the workplace or perform reliable duties. The Applicant himself did not entirely deny these claims, only the frequency of the occurrences, that no one complained about his conduct and the behaviour (such as texting) was inadvertent.

[16] Mr Kravchenko also claimed that the Applicant had obtained employment under false pretences. That is, the Applicant had presented himself to the business as having extensive experience including bartending, cocktail and coffee making. Once the employment commenced, however, it became evident to the employer that the Applicant had no coffee making or cocktail making experience at all.

[17] The employer had also presumed from the Applicant’s curriculum vitae that he had the necessary leadership skills to supervise other staff. However, the employer claimed that the Applicant had no control over staff, was rude, and had been reprimanded for publicly swearing at his colleagues during his shift.

[18] Mr Kravchenko conceded that the immediate reason for the Applicant’s dismissal “on the spot” was his “wilful harm” to the business property and the potential to endanger himself, colleagues, diners and passers-by.

[19] The employer also gave a different construction of the events regarding the closure of the so-called “shutters”.

[20] The employer firstly claimed that the establishment does not have “shutters” as described by the Applicant in his evidence.

[21] Rather, the employer has 3m high and 3m wide blinds that are weighted and clip to the ground, and each weigh in excess of 70 kg.

[22] Each blind costs $2400.

[23] If the blinds are broken parts of the restaurant become exposed to the elements and the restaurant will lose turnover as a result.

[24] The employer claimed that if the blinds are left unattended they will fly up and down in the wind striking everything in their path and presenting a public risk, and more.

[25] Because of this, the employer claimed that only senior staff members were allowed to lift or lower the blinds using the remote control procedure.

[26] Each new senior staff member goes through the training and the procedure to operate the blinds and is only allowed to operate one blind at a time. Great care, it was said, needed to be applied in this operation because of the risks involved.

[27] Prior to the incident which resulted in the dismissal of the Applicant the Applicant had been verbally reprimanded twice for not following the procedure with the blinds.

[28] On the day of the incident, the employer claimed that the Applicant proceeded to drop two blinds at a time in a strong wind. Once his conduct was questioned by his employer, the Applicant started to drop the third blind. At that time, the employer claimed that patrons and passers-by were only metres from the blinds that were swinging wildly in the wind because the Applicant was not able to control any of the three blinds. It was therefore necessary for all staff members to stop their activities and to leave the restaurant floor to prevent what could possibly have been a life-threatening situation.

[29] The employer claimed that the Applicant ‘thought it was all fun and games and did not even begin to comprehend the severity of the situation.”

[30] In such a context, the employer sent the Applicant home even though it impacted on his service delivery that day. The employer was not aware of the Applicant having tried to talk to him at any time.

[31] Generally, the employer argued as follows:

If someone were hurt during what [the Applicant] described as a small misfortune, I would go to jail, lose my employment and livelihood. Business will suffer and, probably shut down, sending 30 people to the street. [The Applicant] does not see it this way and that’s where the problem that I had with him being employed as a supervisor lies - he exhibited behaviour of a sixteen year-old without willing to accept or even understand the concept of responsibility. [sic]

Whether the Applicant had undertaken to not pursue claims against Mecca Bah

[32] I note that the employer contended that the Applicant had lodged a case with the Fair Work Ombudsman in respect of the payment of notice and all outstanding accumulated allowances.

[33] The employer contended that correspondence directed to the parties by the Fair Work Ombudsman included terms “which indemnified Mecca Bah against future liability [yet] he pursued the case with FWC.”

[34] And true it is that the correspondence from the Fair Work Ombudsman to the parties on 13 November 2013 stated that because Mecca Bah had undertaken to pay the Applicant a certain sum of money:

Jaime Neves has indemnified MECCA BAH against any further claims.

[35] It is difficult to see how the parties might have agreed to such terms such that it might be a bar to any further proceedings, however.

[36] This is because the correspondence directed to the Fair Work Ombudsman from the Applicant accepting the payment from Mecca Bah actually stated that he (the Applicant):

I accept the settlement amount proposed by Mecca Bah Gold Coast (Stan Kravchenko) [and that] I hereby consider the matter (complaint made to FWO) closed.

[37] The correspondence does not appear to suggest that the Applicant intended to waive his right to pursue this application, only that he had resolved the matter of his complaint to the Fair Work Ombudsman about underpayments (as he believed them to be).

[38] It was therefore not possible (on what is before me) for the Fair Work Ombudsman to have promulgated terms of a settlement as indicated as the Applicant had expressly never agreed to such terms.

[39] It may well be the case that Mr Kravchenko had sought terms such as those which appear in the Fair Work Ombudsman’s correspondence, and believed that acceptance of his offer would only be upon those terms (which would have the effect of barring any further actions by the Applicant).

[40] But the Applicant never accepted the payment of the monies on such terms and no agreement can be said to have come into existence on agreed terms. The Applicant cannot be said to have waived his right to pursue this application under s.394 of the Act as a consequence.

[41] That matter determined, I now turn to consider whether the Applicant was harshly, unjustly or unreasonably dismissed.

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.

Consideration

(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)

[42] As is mentioned above, the Applicant was dismissed for reasons of his failure to perform his duties in relation to the proper and safe means of lowering the large blinds that surround the restaurant dining area.

[43] The evidence is sufficient to demonstrate that the Applicant had been trained in the use of the remote control method of lowering the blinds “a few times”. The methodology appears quite straightforward and no complex decision-making is required. Rather, a cautious approach is demanded, and each blind should be lowered individually such that it may be manually guided to its locking position at ground level.

[44] The Applicant contends that the second remote was one with which he was less familiar. But be that as it may, a difference between the remotes was hardly as significant as the Applicant might portray.

[45] As it was, the Applicant appears to have approached the task in a less than cautious manner and appears to have had 3 blinds being dropped more or less at the one time, with the third blind subsequently becoming caught in the wind. This presented a real risk to the safety of diners, staff and passers-by. It also put the business in some jeopardy for the period the blinds were not under direct control.

[46] Mr Kravchenko reasonably expected more from his supervisory staff.

[47] But for all of this, the Applicant cannot be said to have performed his duties in such a way as he wilfully sought to create a risk. It is more the case, on the evidence that I have heard, that the Applicant became flustered and lost his composure and made a poor decision as a consequence.

[48] I do not think the incident in question was sufficient to damage the employment relationship fundamentally. Admittedly, the incident caused Mr Kravchenko to lose confidence in his supervisor’s ability to constantly manage the eight blinds surrounding the restaurant. But in the circumstances, this is a concern that could have been corrected by additional training and counselling while the Applicant went about his wider duties. Mr Kravchenko demonstrably fully appreciated the gravity of the incident in terms of its potential, but in the end no damage was done and no injury was incurred.

[49] Of course, it is not always the case that an unsafe act should be spared from criticism merely because it did not result in an actual injury or that it did not cause damage. Careless conduct may be the cause of a loss of confidence, but much depends on the circumstances. Where formal training has been undertaken and expectations clearly established there will be less room for latitude or the exercise of discretion than where training is informal or casual. Here, the best that could be said was that the Applicant had been shown how to perform the blind drop “a few times”.

[50] But equally, I concede, the task as required was not difficult and it was reasonable to expect that the Applicant, who is a mature adult, could have acted with more caution and regard for the environmental risks.

[51] The Applicant, therefore, should be censured for reason that he did not approach the task in a measured and safe manner. His instinct was to press ahead when it ought to have been to reduce the risk and not lower the blind in an uncontrolled manner. He reasonably ought to have apprehended the risks of the manoeuvre in a public area.

[52] In all, while the Applicant bears some culpability for his conduct, I nonetheless am of the view that his conduct did not in the particular circumstances warrant dismissal.

(b) whether the person was notified of that reason

[53] The Applicant was not notified in advance of his dismissal of the reasons for his dismissal. He received an e-mail informing him that he had been dismissed. Up until that point he knew only that he had been sent home following the blinds incident referred to above.

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

[54] The Applicant was not given an opportunity to respond to the reason for the dismissal.

(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

[55] There was no unreasonable refusal by the employer to allow the Applicant to have a support person present at any discussions relating to dismissal. Equally so, however, there were no such discussions in the first place.

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

[56] The Applicant appears not to have been warned previously in relation to this particular incident - in so far as it is capable of being characterised as a performance and not a conduct related matter.

(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

[57] The employer provided the following evidence in total in relation to s.387(f) and s.387(g) of the Act:

• Mecca Bah Gold Coast is not a small business.



• Around 25 staff are employed at any time.



• What is meant by “dedicated human resource expertise”? 



• Other senior staff have reasonable degree of experience in restaurant human resource management and most decisions are taken in consideration of their views. 



• This particular case has been discussed with the senior staff and the decision has not been solely mine. 



• The decision was based on the incident combined with the prior history of the employee and has been made irrespective of the size of the company.

[58] The employer is a smaller business but despite that Mr Kravchenko was not prepared to rationalise his decision making on the basis of the size of the business. He contended that he had deliberated about the dismissal before deciding on the eventual course of action.

(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

[59] Mr Kravchenko acted as a practical man and sought to relieve his business of a risk which he could not afford to manage.

[60] He was afforded some assistance by experienced staff but he does not appear to have had any professionally trained human resource expertise at his disposal. It is likely that the absence of such expertise did affect the judgment to dismiss the Applicant without regard to any procedural opportunities to respond for the reasons for the dismissal.

(h) any other matters that the FWC considers relevant

[61] The Applicant demonstrated a number of personal characteristics that Mr Kravchenko found unsuited to a professional dining environment. The Applicant conceded that personal issues had affected his conduct on one shift (and he may have acted erratically); that he had been censured for whistling on the floor; and that he had swung an imaginary cricket bat during service (but claimed that no one had ever complained about this).

[62] The Applicant also conceded that in his seven months of employment he had missed five shifts in total.

Conclusion

[63] Considering all the circumstances of this case I consider that the Applicant was harshly, unjustly and unreasonably dismissed.

Remedy

[64] The Applicant is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether the Applicant can be reinstated.

[65] Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[66] I would neither reinstate (by re-appointing) the Applicant to his former position nor order that he be appointed to another equivalent position with the Respondent, or any associated entity of the Respondent, on the same or any other site.

[67] This is because the Applicant himself does not request reinstatement or otherwise. But also for reason that the relationship between the Applicant and Mr Kravchenko, which was evident in the proceedings, is not one that can be readily repaired, especially in such as confined working environment. Reinstatement or reappointment would not be conducive to a productive and constructive workplace.

[68] Because of my findings in this regard I now turn to consider compensation.

392 Remedy — compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

[69] In respect of the above matters that I must take into account I find as follows:

(a) the effect of the order on the viability of the employer’s enterprise

[70] There is no evidence that any order I might make for compensation would in some manner affect the employer’s viability.

(b) the length of the person’s service with the employer

[71] The Applicant had been employed with the employer since 8 March 2013, and was dismissed on 10 October 2013. This is a length of service that lends only little support to the making of an order for compensation.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[72] On the evidence available to me, the Applicant would have been likely to have remained in employment for a period of six weeks.

[73] I think the various issues that had come between the Applicant and his employer were inevitably leading to a point at which they would go their separate ways in the near future. Mr Kravchenko maintained a dogged view of the professionalism required on the floor of his restaurant, whilst the Applicant was by nature, it struck me through his evidence, a less constrained personality type by far. In all, this was not the foundation to an enduring employment relationship, particularly as it was subject to stress on a number of fronts.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[74] The Applicant took steps to mitigate his losses. He met the work tests required of him by Centrelink in the anticipated period of employment. The Applicant set out the details of the various applications for employment he had made during the entirety of the period of his unemployment. The Applicant’s evidence was not contested in this respect, though Mr Kravchenko did pose a question as to whether the Applicant was suited to the positions for which he applied. Nonetheless, I am satisfied the Applicant took steps to mitigate his losses. I can see no reason to find that the Applicant was not genuine in his efforts to find alternative employment.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation.

[75] The Applicant did not earn any remuneration during the anticipated period of employment. The Applicant’s evidence was not contested in this respect.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[76] This is not a matter that requires any further consideration.

(g) any other matter that the FWC considers relevant

[77] I indicate that I make no deduction for contingencies as I do not see them as being relevant in these circumstances. There is no evidence that the Applicant was otherwise exposed to loss of income over the period of anticipated employment. Sickness, accident, unemployment and industrial disputes are the main contingencies. I see no reason to apply any discount arising from such contingencies. Some of these apparent contingencies do not necessarily result in lost income in the modern workplace, and there was little realistic likelihood of the Applicant having been embroiled in an industrial dispute which would have reduced his income, particularly during the anticipated period of employment.

[78] Section 392(3) of the Act provides as follows:

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

[79] The Applicant did conduct himself in a careless manner in the way in which he approached the dropping of the blinds. His conduct realistically placed the employer in jeopardy and created an unsafe environment for those in the vicinity of the restaurant. The incident could have had a very regrettable consequence.

[80] In such circumstances, the Applicant contributed to the decision by the employer to dismiss him and I therefore deduct two weeks remuneration from the six weeks remuneration he would otherwise have earned but for his dismissal.

[81] Section 392(4) of the Act provides as follows:

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

[82] My order for compensation makes no allowance for the above proscribed matters or considerations.

[83] Section 392(5) of the Act provides as follows:

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

[84] Section 392(6) of the Act provides as follows:

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[85] The order that I propose to make does not need to take into account the statutory cap.

[86] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[87] The Respondent has made no application in the course of these proceedings to pay any amount I may order to be paid as compensation in instalments.

CONCLUSION IN RELATION TO REMEDY

[88] I add for sake of clarity that I have found that an order for compensation by way of a remedy is appropriate in the circumstances I have set out above.

[89] That determined, it is apparent from my discussion above that the Applicant would have been employed for a period of time of no more than 6 weeks.

[90] For the reasons I have given earlier I have reduced this amount by 2 weeks and order that the employer pay to the Applicant an amount equal to 4 weeks of his usual salary.

[91] The amount ordered to be paid must be subject to ordinary taxation.

[92] The amount ordered to be paid must be paid to the Applicant’s usual bank account within 14 calendar days of the date of this decision.

[93] An order to the above effect will issue along with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J. Neves, Applicant

Mr S. Kravchenko, of the Respondent

Hearing details:

Brisbane

2014

7 April

Printed by authority of the Commonwealth Government Printer

<Price code C, PR549558>