Mr Michael Torr v Global Viande Pty Ltd T/A Global Food and Wine
[2015] FWC 4325
•15 JULY 2015
| [2015] FWC 4325 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Torr
v
Global Viande Pty Ltd T/A Global Food and Wine
(U2014/14377)
COMMISSIONER SIMPSON | BRISBANE, 15 JULY 2015 |
Application for relief from unfair dismissal – Reasons for termination not justifiable on the facts – Dismissal Unfair – Compensation appropriate.
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Michael Torr (“the Applicant”) who alleges that the termination of his employment with Global Viande Pty Ltd T/A Global Food and Wine (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.
[2] The Applicant was employed by the Respondent on 19 February 2014 in its Meat Department in Cairns and his dismissal took effect on 26 September 2014. The application was filed on 19 October 2014. This application was out of time and an extension of time was granted by Deputy President Sams [PR560637]. The matter was then allocated by me and at a directions hearing was listed for determination by telephone on June 30 2015. The parties agreed that the matter would be best dealt with as a determinative conference and proceeded on that basis.
[3] The Applicant submits that he was handed a notice of termination after finishing his shift on 26 September 2014. He claimed this came as a complete shock as there were no written or verbal warnings or issues prior to his dismissal.
[4] The termination letter included the following:
“You have been employed with us since 19.02.14 on a full-time basis as Manager of the meat department.
Unfortunately, we have recently noticed a slackening off in your attitude towards your work.
As manager of the meat department, it is your responsibility to lead by example, to ensure co-ordination and correct procedures are adhered to for the smooth running the (sic) department. This has not been occurring.
Your blasé attitude to your work has been noted by you working the least amount of hours within the department over the last two weeks. In addition, you have not been adhering to planned start and finish times, on one occasion, you were 25 minutes late for work and offered no explanation or apology.
Furthermore, the condition of the meat room, stock and paperwork is not being maintained to an acceptable standard. Two examples of this are:
1. Six pallets of stock arrived on Monday 22nd September, the order was found to have issues. As the manager, it is your responsibility to be involved in the process of checking and ensuring stock is put away. Instead, this process was left to a Sales Representative, with the assistance of a Storeperson.
2. You left work today (Thursday 25th September), before a large order due to be dispatched for delivery tomorrow had been completed. This is unacceptable.
Following on from these issues, I have been left with little option but to terminate your employment effective Friday 26 September. You will be paid one week’ pay in lieu of notice.
Your final payment will be prepared on Monday 29th September and will include your full entitlements.
An Employment Separation Certificate will be issued to you if requested upon return of the company mobile phone and clean and laundered work uniform.
Yours sincerely
Nicholas Zanapalis Andrew Bennett
Manager Manager”
Applicant slackening off in his attitude toward work
[5] The Applicant said that at no time did he “slacken off” in his attitude towards work. He said he enjoyed his position and took pride in his work and had a good relationship with his colleagues in the meat department.
Failure to lead by example to ensure co-ordination and correct procedure for smooth running of the department
[6] The Applicant said that part of his role included receiving goods, quality control and temperature checking. He said he did this to the strictest standards. He said a Foodsafe representative audited the room in June/July 2014 and informed him he was very happy overall and especially happy with the hygiene of the meat unit.
[7] He said that several times over the course of his employment he asked Mr Bennett (the former Branch Manager of Cairns) how he felt the meat unit was operating and not once did he give a negative comment. The Applicant said Mr Bennett always gave positive feedback. He said that had Mr Bennett informed me of his concerns he would have addressed the issues.
Mr Bennett accepted in his oral evidence the Applicant was never given a warning about his performance.
Blasé attitude to work in number of hours worked in last two weeks. Not adhering to planned start and finish times each day.
[8] The Applicant said that his scheduled start and finish times were 5.30am to 2.00pm each day. He said he often started early and finished half an hour, to an hour after his finishing time each day. In his written statement he said that on Tuesday 23rd of September 2014, he picked up meat from a local meat wholesaler on his way to work, to complete orders that were going out that morning. He corrected this date before adopting his statement saying it should have been a reference to Friday 19 September.
[9] The Applicant said that on this occasion the wholesalers did not have the order (he collected on the way to work) ready on time and he arrived 25 minutes after his normal start time. The Applicant said that had Mr Bennett approached him with his concerns he would have found no reason for concern.
[10] The Respondents submitted that the Applicant was 25 minutes late on Friday 19 September. The Respondent claimed in the last two weeks of his employment the Applicant was late for work on a regular basis including 19 September with no reason, explanation or apology.
[11] The Respondent said that the Applicant was late 10 minutes and up to 25 minutes four days straight. In regard to the Applicants claims that he was late on his way to work on the Respondent said that at no time does the Respondent encourage or tolerate staff picking up stock on their way to work. Further the Respondent noted that all meat products must be transported in refrigerated vehicles to which the employee must clock in at work prior to using a refrigerated vehicle.
[12] The Respondent in its written submission said the timesheets indicated tardiness regarding his starting times, working less hours than employees he supervised, and not following reasonable instructions when it came to labelling stock and handing in invoices only after being chased.
[13] The oral evidence of the Applicant and his written statement, the written statement of Ms Lavinia McLeod’s who was not required by the Respondent for cross examination, and also the oral evidence of Mr Bennett all support the conclusion that the Respondent adopted a flexible approach to actual hours of work, and these could vary depending on the work demands at the time. Mr Bennett said starting times could vary day to day, week to week and month to month depending on the time of year and he agreed starting times were flexible. Further the unchallenged evidence of the Applicant and Ms McLeod was that the meat department employees including the Applicant regularly worked over 50 hours a week. The Applicant said there was a liberal approach to hours of work and employees stayed at work until the job was done.
[14] This evidence supports a conclusion that the Respondent did not as a matter of practice enforce strict start and finish times, and employees regularly worked well in excess of their nominal hours of work. On that basis I do not intend to place significant weight on the Respondents criticism of the Applicant that he had developed a pattern of being late for work during his last two weeks of employment. The evidence concerning this matter in the Respondents case was the evidence of Mr Bennett and timesheets provided that set out the hours of work of the Applicant in his last two weeks before he was terminated. Mr Bennett in his oral evidence accepted he did not give the Applicant any warning about this issue. Had the Applicant been directed by someone in authority that the commencement times were to be strictly adhered to, contrary to what the evidence shows had been the custom and practice, then the Applicant not adhering to such a direction would be a much more serious issue. In the circumstances it was not a valid reason for termination.
[15] In regard to the issue of the Applicant collecting meat on his way to work in a private vehicle, the Applicant said that the practice predated his employment, the wholesaler was only ten minutes away, and there was no other way of getting the product on time to avoid holding up trucks. He also said this practice occurred for specialised products only, was boxed up and no more than 5 kilograms. The Applicant also said Mr Bennett knew about the practice. The Respondent saw this as a serious issue and a practice it did not tolerate. The issue is not mentioned in the termination letter and so appears not an issue relied upon by the Respondent at the time of termination, but appears to have arisen from the Respondent learning of the practice after the Applicant’s termination. As stated the Respondent said all meat products must be transported in refrigerated vehicles in accordance with food safety guidelines.
[16] The evidence of the Applicant, Ms Lavinia McLeod and Shaun Rushton (who also was not required for cross examination) was that it was common practice for staff to pick up meat required for early deliveries on their way to work in their own private vehicles. Ms McLeod said the meat department took turns at doing this and it happened almost daily and would take up to half an hour depending on the supplier. She said the Respondent’s meat van was not always available to use for these pick-ups as it was used for early drops to customers.
[17] Mr Rushton said that he was required to start the earliest of all the meat department employees at around 4am to sort through the orders and notify other staff members of any pick-ups form their supplier on their way to work. He said these pick-ups occurred on an almost daily basis to avoid hold ups of early trucks.
[18] The Respondent says that it was unaware of this practice and further that the Applicant was employed by the Respondent on the basis of his background as having worked in the meat industry with another employer and that he was appointed to manage the meat department in Cairns, and should have known that this practice was unacceptable. In response the Applicant disputed that he was the manager, and that Ms McLeod was in charge. The Applicant said Ms McLeod always ran the (meat) room, she had the phone and she did the ordering.
[19] The Respondent disputes that the Applicant was not a manager and relies on his letter of appointment which described him as a manager. The Applicant said his initial letter of appointment was incorrect and he did not accept it. This appears to have been because his pay rate was incorrect. The Respondent produced subsequent to the determinative conference an amended letter dated 26 February 2014. The Applicant said in the determinative conference that he could not remember a subsequent letter, but did not contest that a subsequent letter was rejected by him. It is reasonable to assume on balance this amended letter was accepted by the Applicant as the basis of his on-going employment arrangements with the Respondent.
[20] The evidence also indicates however that despite his letter of appointment indicating he had been appointed as a Manager in the meat department, Ms McLeod who had been employed in the meat department before the Applicant states that she held the position of ‘meat specialist’ in Cairns, and she understood the Applicant had been employed as a senior storeman/qualified butcher. Ms McLeod said that the Applicant was recommended to her by another employer in the industry, and she interviewed him for the job. She said at no stage was she aware that the Applicant was ‘the Manager’.
[21] Ms McLeod said that she was responsible for ordering/purchasing stock and most suppliers’ invoices were sent to her email address. She said that if she did not print out the invoices the Applicant did not have copies to check off. She said that the Applicant was not provided with a company email address. The Applicant confirmed this in his evidence. Mr Bennett accepted that Ms McLeod had an email address and appeared to have responsibility for invoices.
[22] It appears from the evidence there is some ambiguity about who was in charge. The evidence of the Applicant, and to a lesser extent Ms Mcleod, tends to indicate at least in some respects that Ms Mcleod had greater authority than the Applicant, despite the Respondent describing the Applicant as the manager. The Respondent submitted Ms McLeod had ceased to be an employee and had an unspecified on-going legal dispute with the Respondent and this should influence the manner in which her evidence is treated. However, after making this submission the Respondent indicated it only took issue with the third and tenth paragraph of Ms McLeod’s statement, and did not wish to cross examine her in any event.
[23] In summary on the issue concerning the collecting of meat in private vehicles by staff in the meat department, whilst I have not been provided any documentation by the Respondent to indicate how this practice breaches industry standards, I accept and the Applicant did not contest the practice is inappropriate. However the evidence is the practice had been going on prior to the Applicant’s employment and was a practice of all staff in the meat department. The Respondent’s case is, it did not know of the practice, and the Applicant as the manager should have stopped it. I would accept the Applicant, as a butcher and it appears a manager should have questioned the practice and investigated with more senior management why this practice had been allowed. However this is also in the context of Ms McLeod, the person who interviewed him for his job, and it appears from his evidence he believed someone more senior than him, approved of the practice. The Applicant claimed Mr Bennett was aware of the practice however unfortunately the matter was never put squarely to him. If the Respondent wished to rely on this matter to justify termination, given that it was not an issue referred to in the termination letter than it was an issue it should have sought to adduce some evidence from a witness about. It did not. In any event, in all of the circumstances I am not satisfied this issue of itself provided a valid reason for termination of the Applicant given the practice pre-dated the Applicants employment, the Respondent assumed that from his previous employment in the meat industry “he should have just known” it was inappropriate, and some ambiguity concerning the chain of command as between Ms McLeod and the Applicant. Given all the circumstances some measure short of termination would have been more appropriate.
The condition of the meat room, stock and paperwork are not being maintained at an acceptable standard.
[24] The Applicant accepted that issues of cleanliness and stock rotation were discussed with Mr Bennett but the Applicant maintained the issues were resolved as they arose and the tone of his evidence was that they were not raised as disciplinary in nature. The Applicant claimed Mr Bennett never spoke to him about these issues personally and Mr Bennett spoke to the employees as a group. The Respondent in the termination letter provided two examples concerning the issues of the condition of the meat room and stock and paperwork not being maintained. Firstly, it was said that six pallets of stock arrived on Monday 22 September, and the order was found to have issues. The Respondent said that as the manager, it was the Applicant’s responsibility to be involved in the process of checking and ensuring stock was put away. It was said that instead the process was left to a sales representative with the assistance of a store person.
[25] The Applicant said that six pallets of stock referred to were delivered from the Brisbane Global depot after cleaning out their freezer of unwanted stock, i.e freezer burn, out of date and low turnover stock. The Applicant said that the reuse or destruction of this stock was attended to under his supervision by Lavinia McLeod, Purchasing Officer/Manager (described by the Respondent as a Sales Representative) and Shaun Rushton, a store person undertaking his job.
[26] Ms McLeod also described this ‘large order’ ‘six pallets’ that arrived on Monday was in fact a clean out of mostly rotten product from the Brisbane branch. She said this happened regularly as Cairns was seen as the end of the road and couldn’t send it back.
[27] There was no suggestion by the Respondent that any particular adverse outcome for it had flowed from the manner in which these six pallets of stock were ultimately handled. Further no witness for the Respondent referred specifically in their written statement about how the Respondent came to be aware of this event and why it was treated as a serious issue when it occurred. Mr Bennett said he did not know what the nature of the stock on the six pallets was although he did say in his oral evidence that he thought the issue was that the Applicant should have overseen the handling of the order but he did not discuss it in terms of him being involved or aware of the event at the time. Given that the criticism of the Applicant is confined to the view that he should have overseen the handling of the pallets and not the other two employees, I am not satisfied this issue was so serious that it provided a basis for termination of the Applicant. If the Respondent had concerns about the task being completed by others and not the Applicant it could have warned him about it, and directed him that he was not to delegate this task in the future.
[28] Secondly, it was said the Applicant left work on Thursday 25 September before a large order due to be despatched for delivery the next day had been completed. The Applicant said that the order referred to was for the Salt House. He said he recalled the particular order due to the fact that both Jay Hurley, the butcher, and himself stayed back until 4.30pm to complete it ready for dispatch the following morning. There was no evidence that any issue or problem arose for the Respondent out of the manner in which this order was completed and dispatched. Similarly to the matter concerning the six pallets, the Respondent could have raised with the Applicant any concern it had about his performance in regard to this order. Again this issue does provide a valid reason for the termination of the Applicant’s employment.
[29] It is also worth noting that Mr Bennett said in his evidence he could not remember specific dates or times that he discussed issues with the Applicant. He described the discussion in regard to stock rotation issues as a general discussion. He went on to make the general observation that he did not feel the issues warranted an official warning.
Other issues
[30] The Applicant claimed that the meat unit was turning over 30 to 40 thousand dollars per week when he commenced employment and reached 65 to 75 thousand before his termination. He claimed “we prided ourselves on successfully meeting deadlines for all orders.” He claimed there was not one occasion where a deadline was missed or where truck drivers had to wait for orders.
[31] The Respondent said the Applicant was not privy to the Respondent’s financial position, and that the company’s turnover was declining, a portion of this due to the loss of a large contract. It was said the company is not a financially viable operation and is being reviewed.
[32] The Applicant said that he felt that he was dismissed unfairly for no reason other than personal ones from Mr Bennett. He said had any of the concerns been raised with him at the time they occurred he would have been able to address each one.
[33] The Applicant said he is the sole provider and parent of three children. He said he was unemployed for over six weeks and was forced to use his hard earned savings to get through. He said he had to apply for unemployment benefits. He said he considered himself a hard worker, always did his best for his employer and had never been terminated from previous employment before.
[34] Sunshine Craig provided a statement for the Respondent 1 stating on Thursday 25 September she was contacted by Mr Andrew Bennett with regards to assistance in drafting a termination letter for the Applicant as he was considering terminating the Applicants employment for poor performance, behaviour and failing to follow reasonable instructions.2 Ms Craig said that she wrote the letter to the best of her ability based on the conversation she had with Mr Bennett.3 Ms Craig was not required for cross examination by the Applicant. Here evidence was not direct evidence concerning the conduct or performance of the Applicant. Similarly Mr Nicholas Zanapalis, the Manager of the Respondent provided a statement. His evidence again was not direct evidence concerning the conduct or performance of the Applicant and was confined to discussions he said he had with Mr Bennett about the Applicant. He was not required for cross examination.
[35] Section 387 of the Fair Work Act 2009 reads as follows:
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.
[36] Having considered the matters as set out above I am not satisfied the Respondent had a valid reason for dismissal of the Applicant related to his capacity or conduct. If it held concerns about the Applicants performance of the nature set out in the termination letter these could have been squarely raised with the Applicant, he could have been given a warning about issues of concern and some opportunity given for the Applicant to address them. The Respondent has not provided evidence of conduct or performance issues up to and including 26 September that was sufficient to warrant termination of employment. I have dealt with the matter of the transporting of meat in private vehicles from the wholesaler above.
[37] The Applicant was notified of the reason for termination by Mr Bennett. As was confirmed in the course of the determinative conference the termination letter was prepared before Mr Bennett spoke to the Applicant on 26 September and he was handed the letter. The Applicant said Mr Bennett said words to the effect that Mr Bennett regretted the termination but did not provide to the Applicant an explanation and according to the Applicant ‘let the letter do the talking’.
[38] There was no proper opportunity for the Applicant to respond to the reasons related to his capacity or conduct before he was terminated. Given the way the termination occurred there was no opportunity for the Applicant to have a support person present to assist in discussions relating to the dismissal. As stated the evidence of Mr Bennett for the Respondent was that the Applicant had not been warned about his unsatisfactory performance before the dismissal. The evidence of both Mr Bennett and the Applicant certainly support a conclusion there had been some discussion about a number of issues. The Applicant regarded this as just general day to day discussion that would occur and the ordinary course of work. Mr Bennett saw the discussion as related to performance but accepted the Applicant was never warned.
[39] The Respondent said it had 50 to 100 employees at the time of termination and at the time of termination did not employee a human resources specialist however since the termination had employed one. Ms Cindric indicated in closing submissions it was Ms Craig was assisting Mr Bennett at the time in dealing with the matter and she did not have extensive experience in the area.
[40] I have considered each of the matters I am required to take into account and I am satisfied the Applicants dismissal was harsh, unjust or unreasonable. The Applicant made clear that he did not seek reinstatement and has gained other employment. On that basis I am satisfied it is not appropriate to consider reinstatement as a remedy. The only other remedy available is compensation. Section 392 of the Act reads as follows:
“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.
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.
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.
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.
Note: subsection 392(5) indexed to $66,500 from 1 July 2014
(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.
[41] The formula used in Sprigg v Paul’s Licensed Festival Supermarket 4is commonly used to work out an appropriate amount of compensation. The first step is to estimate the amount of remuneration the employee would have received if they had not been dismissed. This is usually done by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. Given the employment was of short duration, at just over 31 weeks from 19 February to 26 September 2014 and the Applicant’s manager at the time Mr Bennett clearly held a range of concerns about the performance of the Applicant, I am not prepared to estimate a period of greater than another eight weeks employment. The Applicant was on an annual wage of $65,000 divided by 52 equates to $1,250 per week multiplied by eight equals $10,000. The Applicant was paid a week in lieu of notice which must be deducted from that figure arriving at $8,750. The Applicant gained permanent employment after seven weeks of being unemployed on an annual wage of $48,000 divided by 52 equalling a weekly wage of $923.07. Any remuneration earned by the Applicant since his dismissal until the end of the anticipated employment period must be deducted. Deducting $923.07 from $8,750 arrives at a figure of $7,826.93. I do not intend to make any deduction for Centrelink payments if any such payments were received.
[42] The Respondent indicated the business may not be sustainable into the future but no evidence was provided to this effect. I do not intend to reduce the amount of compensation on that basis.
[43] I do not intend to deduct any further amounts for contingencies. I am also not satisfied there was misconduct on the part of the Applicant that would justify a further reduction. The figure of $7,826.93 does not exceed the compensation cap in the legislation. It is also appropriate an amount equal to the superannuation that would have been paid to the Applicant also be paid as part of an order for compensation. An order for the payment by the Respondent to the Applicant for the amount of $7,826.93 plus applicable superannuation will be issued separately to this decision.
COMMISSIONER
Appearances:
Mr M Torr, Applicant
Ms Cindric, for the Respondent
Hearing details:
Brisbane
2015
June
30
July
6
1 Exhibit 7 Statement of Sunshine Craig
2 Exhibit 7 Statement of Sunshine Craig Paragraph 3
3 Exhibit 7 Statement of Sunshine Craig Paragraph 6
4 Sprigg v Paul’s Licensed Festival Supermarket Dec 1534/98 S Print R0235
Printed by authority of the Commonwealth Government Printer
<Price code A, PR568782>
0
0
0