Mr Paul McDonald v Miss Moneypennys Cocktail Club and Pizza Lounge T/A Miss Moneypennys

[2015] FWC 4554

[2015] FWC 4554

FAIR WORK COMMISSION

DECISION

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

Mr Paul McDonald
v
Miss Moneypennys Cocktail Club and Pizza Lounge T/A Miss Moneypennys
(U2015/4369)

COMMISSIONER SIMPSON BRISBANE, 13 JULY 2015

Application for relief from unfair dismissal – Jurisdictional objection that Applicant was not dismissed – Objection Upheld – Application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr Paul McDonald (“the Applicant”) who alleges that the termination of his employment with Miss Moneypennys Cocktail Club and Pizza Lounge T/A Miss Moneypennys (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act. The matter was heard in a determinative conference at 10am on 13 July 2015. I advised the parties at the conclusion of the conference that the Respondents jurisdictional objection was made out and that I would issue my written reasons later in the day. These are those reasons.

[2] Mr McDonald filed an application on 27 March 2015. A conciliation conference was conducted on 24 April 2015 but was not successful in resolving the matter. The Respondent said in its Form 3 response to the Application that it employed 36 employees who were full time or regular and systematic casuals at the time of dismissal. The Respondent is therefore not a small business employer and the applicable minimum employment period is 6 months. Whilst there were differing dates in the respective positions of the parties regarding the date of commencement it is unnecessary to determine that issue as on either position the Applicant satisfied the minimum employment period and was entitled to bring an Unfair Dismissal application. The Applicant asserted in his application he was dismissed on Friday 13 March 2015.

[3] The Respondent asserts that on Friday 13 March after a discussion between the Head Chef Sam Pincock and the Applicant about his performance at work, the Applicant left the premises after the discussion and did not return for any more rostered shifts. The Respondent claims that since leaving various attempts were made to contact the Applicant to discuss his position at the Respondent. The Respondent claims that on no occasion has the Applicant given the Respondent a decision to return even though the opportunity has been offered. On the basis of what is said above the Respondent presses a jurisdictional objection that the applicant was not dismissed and that the Applicant left without notice. It is important to note that it is common ground that the Applicant was at all times employed as casual employee. The Respondent asserts he averaged 28 hours a week whereas the Applicant asserted it was in the order of 35 hours a week.

CONSIDERATION

[4] The Applicant was the only witness in his case. The Respondent filed two statements from Mr Ben Walsh the owner, an initial statement and a reply statement, and also statements from Mr Sam Pincock the former Head Chef who has left employment with the Respondent, Mr Kevin Skone, Mr James MacQueen the former venue manager who now acts as a consultant for the Respondent, and Ms Lucy Good the Marketing HR Manager. The Applicant advised the day before the determinative conference that he only wished to challenge the statements of Mr Walsh and Mr Pinccock so they were the only witnesses other than the Applicant to give oral evidence and the other statements were admitted uncontested.

[5] By way of background to the events leading up to Friday 13 March the Applicant claimed in January 2015 he first told Sam Pincock, the Head Chef, that he needed time off and told him the dates were 7 March (a Saturday) to 11 March (a Wednesday). The Applicant said in the weeks leading up to this he had mentioned and reminded Sam Pincock of his time off because the last time he had asked for time off Sam Pincock had forgotten about it.

[6] The Applicant said that on Wednesday the 11 March he got home quite late and his partner told him that he had a missed call from the Respondent. The Applicant claimed there was only one missed call from the Respondent. Whilst Mr Pincock said in his statement that on Wednesday 11 June he tried to contact the Applicant numerous times, he agreed in oral evidence he only tried to ring the Applicant once that day as he was busy trying to run a kitchen.

[7] The Applicant said that on Thursday the 12 March he received a text from Sam Pincock at 2:41pm saying "How was last night. Be there in a sec". The Applicant said his partner replied to Sam Pincock saying "Ahh Paul didn't work yesterday? He's on the way."

[8] The Applicant said at work on Thursday 12 March Sam Pincock told the Applicant that he was actually rostered on the night before (11 March) and that management were “pissed at me” (the Applicant) because another chef had not showed up for work that night and they had to call two other staff members in. Mr Pincock’s statement was that the Applicant was given the weekend off to attend a music festival on the Saturday and Sunday (7 and 8 March) and Monday and Tuesday were his days off so effectively he had a four-day weekend. When asked in his oral evidence about this Mr Pincock said the roster setting this out would have been posted in the workplace in the week before.

[9] All the five witnesses for the Respondent made the assertion that the Applicant did not show up for his rostered shift on Wednesday 11 March. The Applicant said he got upset at Sam Pincock as the Applicant said he was not meant to work the night of 11 March and the Applicant wanted Sam Pincock to go with the Applicant and speak to management straight away to explain that this was Sam's mistake and to sort out this issue out straight away.

[10] The Applicant claimed Sam Pincock did not want to do this and told the Applicant that he and management were having a meeting about it in the morning and that he would sort it out for the Applicant and not to worry about it. The Applicant claims Sam Pincock never told him he was meant to attend that meeting. The Applicant claimed if he knew he definitely would have been there to tell management that he was not meant to work the previous night.

[11] This is in stark contrast to Mr Pincock whose statement said that the Applicant was unable to explain (on Thursday 12 March) why he didn’t show up to work the previous day Wednesday 11 March. Mr Pincock’s statement said he explained to the Applicant that the owner Ben Walsh had requested he come in at 8am the following morning for a disciplinary meeting however the Applicant did not show up for the meeting on Friday morning (the next day) so he texted the Applicant saying it was now a possibility that the owner Mr Walsh may want to give him notice. In his oral evidence Mr Pincock was firm in his evidence that he did tell the Applicant to attend the meeting the next morning. In his oral evidence Mr Pincock said Mr Walsh was going to give the Applicant notice, as opposed to it being a possibility he was going to be given notice by Mr Walsh.

[12] The Applicant claimed Sam Pincock did not want him to attend the meeting on the Friday morning as Mr Pincock would have been caught out lying to management about the Applicant. I took this to mean about the Applicant not being rostered to work on Wednesday 11 March.

[13] Ben Walsh said it was brought to his attention by both the Head Chef (Sam Pincock) and the General Manager (Kevin Skone) that the Applicant had not shown up for his rostered day of work on the Wednesday 11 March. Ben Walsh claimed (although he was not at the meeting) that the Applicant was told by the Head Chef that he was required to attend a meeting with Ben Walsh the following morning to discuss his misconduct. Ben Walsh said the Applicant left the premises that night and never returned. A number of staff from their statements in the Respondent’s case were aware of the controversy concerning the Applicant’s alleged non-attendance. Given Mr Walsh had instructed his Head Chef to ask the Applicant to attend the meeting it seems less plausible that the Head Chef would lie to both the owner and the Applicant about the matter. Mr Walsh’s evidence was Mr Pincock tended to defend the Applicant. I am not inclined to accept the Applicant’s claim that Mr Pincock did not tell him on Thursday 12 March about the meeting the next day. Mr Pincock asserted he did. The Applicant in his statement surmised that Mr Pincock harboured ill will toward him on the basis of an incident some time earlier where the Applicant had criticised his behaviour in connection with a staff party. I am not prepared to place any particular weight on this evidence. In any event, even if the Applicant was not told of the meeting, ultimately the matter does not turn on this issue of whether the Applicant was told of the meeting or not.

[14] The Applicant says that on Friday the 13 March he was getting ready for work to start at 10:30am when he receive a text message from Sam Pincock at 8:56 am saying "Bens fucking pissed. There has been three formal complaints made about you last night from two chefs and a manager. They're gonna give you notice today. I would lie low until he chills out start back on Tue or something. He won’t say who made the complaint".

[15] A copy of this text message was attached to the statement of the Applicant and Mr Pincock accepted that he sent it. Mr Walsh in his oral evidence described Mr Pincock as a supporter of the Applicant who did not want him dismissed because he needed the staff.

[16] The Applicant said he then rang Sam Pincock (after receiving the text) and got angry at him as he said he had done nothing wrong and he had wanted to go speak to management the night before but Sam had told him that he was going to take care of it and that the Applicant had nothing to worry about. The Applicant said in his statement he would now miss out on his weekend shifts which equal roughly $400. The Applicant said he (Sam Pincock) hung up and sent the Applicant a text " I get it your pissed, im just telling you what the email said. I can fix it but not like this." The Applicant said Sam Pincock sent another message saying “I just quit". The Applicant gave oral evidence confirming he understood Mr Pincock was leaving his employment with the Respondent that Sunday 15 March to work with another employer.

[17] The Applicants own evidence does not support the view that a termination was ever effected by any communication entered into between the Applicant and Mr Pincock on Friday 13 March. Any of these communications at their very highest only amount to Mr Pincock foreshadowing to the Applicant that he understood the owner of the business intended to give the Applicant notice that day and advice for the Applicant to lay low until the following Tuesday. It is clear this does not amount to a termination.

[18] It must also be remembered that this was in a context where the Applicant was claiming he was angry at Mr Pincock at this point because he believed Mr Pincock had been attempting to hide from the Respondent his own error that the Applicant was not rostered to work on Wednesday. It is also in a context of the Applicant saying he knew Mr Pincock was leaving the employment of the Respondent in two days’ time. This raises an obvious question. Why did the Applicant then not make any attempt to contact someone other than Mr Pincock such as Mr Walsh, Mr Skone or Ms Good immediately if he felt the true position was being distorted to management by Mr Pincock. Why did he as it appears, instead follow the advice of Mr Pincock to “lie low”, advice from someone he claims was seeking to harm him in the eyes of management.

[19] It must also be remembered this employment relationship was a casual employment relationship not a permanent one. Mr Walsh in his statement said that after the Applicant failed to attend the arranged disciplinary meeting and subsequent rostered shifts, numerous calls over a week or so were made, attempting to reach the Applicant by both himself and the General Manager Kevin Skone. Mr Walsh said these all went unanswered and nothing was heard back from the Applicant. Mr Skone said in his statement that Mr Walsh and himself had tried to contact the Applicant over a period of 2 to 3 days without success. Mr Skone said the Applicant had not been dismissed and at no stage was a directive given that he be dismissed. No doubt Mr Pincock as Head Chef leaving his employment of the Respondent did not assist.

[20] Mr Walsh said after another 7 rostered shifts were not attended by the Applicant, and they still could not communicate with him, they decided to move forward and assumed he had left without notice.

[21] The Applicant said that after his communications with Mr Pincock neither Ben Walsh, nor Sam Pincock as Head Chef made any attempt to contact him. Not being contacted by Mr Pincock, at least following Sunday 15 March should have come as no surprise to the Applicant given his own evidence that he knew Mr Pincock was leaving employment on Sunday 15 March.

[22] The Applicant claimed that the following week he rang the Respondent and left a message for Ben Walsh to call to call him back and he did a couple days later. In oral evidence it became clear this discussion did not occur until at least the following Thursday 19 March. The Applicant claimed in this phone conversation he asked Mr Walsh why he had lost his job and Mr Walsh replied that Mr Pincock had given him the reasons.

[23] The Applicant’s version of the conversation is that he replied that Mr Pincock had not given the reasons and said he told Mr Walsh he was not meant to work on the Wednesday 11 March. The Applicant also said he asked Ben Walsh about the message Sam Pincock had sent the Applicant telling him the Applicant had three complaints made about him. The Applicant version was that Ben Walsh had no idea about this and told the Applicant that no one had complained about him and that he had not sent an email to Sam Pincock saying this.

[24] The Applicant said that Ben Walsh seemed concerned and said that he was getting two different stories and that he would look into it and let me know. The Applicant said Ben Walsh made no mention of the fact the Applicant was meant to be at that meeting on the (previous) Friday morning. The Applicant said he did not hear back from Ben Walsh after this.

[25] Mr Walsh’s evidence included that as part of strict company policy the Respondent has a structured system in the business that deals specifically with staff leaving or staff dismissals. In the case of staff being dismissed, in all cases (apart from those dealing with management) the process is clear and concise and recognised by all department heads.

[26] Mr Walsh said before any member of staff can be dismissed, the department head must meet with the General Manager, and then if they both decide that this will be the course of action, another meeting is held with himself and the Human Resources manager, Lucy Good, to ensure the responsible course of action is undertaken, and then the final decision is made. If a decision is taken that dismissal is the option, Ms Goodwill prepare the paperwork, contact the accountant to arrange all appropriate payments are ready to be made, and then the staff member will be notified in person. Mr Walsh said none of the above events ever took place in the case of the Applicant and he strenuously denied that the Applicant was ever dismissed.

[27] Mr Walsh had a completely different version to that of the Applicant concerning what occurred after Friday 13 March. He said that approximately 2-3 weeks after what he described as the original non-attendance (I took to be a reference to 11 March) the Applicant had left a message at the business with Ms Lucy Good the Marketing/Human Resource Manager asking if Mr Walsh could phone him. Mr Walsh said he called the Applicant the following day. Mr Walsh said the Applicant was apologetic for leaving without notice and not attending the arranged disciplinary meeting on 13 March. Mr Walsh said the Applicant also asked if he could possibly return to work. Mr Walsh said his response was that under the current conditions whereas the kitchen staff had all completely lost confidence in him and felt extremely let down by his attitude and non-attendance, that it would not be a good idea, plus the fact that his position in the kitchen had been recently filled, but if the circumstances changed in the future, then he would be happy to talk with him about the possibility of returning.

[28] Mr Walsh said that despite the Applicant’s misconduct, he felt he had a good relationship with him and was willing to give him a second chance, but he couldn't contemplate it at that time as it would have been very destabilising for the business. Mr Walsh said that in the last week of March the new head chef started at the Respondent and both the old Head Chef and his assistant resigned from the business. Because the Respondent was starting over with a pretty much new team, Mr Walsh said he called the Applicant to see if he would like the opportunity to return. He said he left a message with the Applicant’s girlfriend after she answered his mobile phone and this message was never returned so he sent the Applicant an SMS on the 4th April. The text explained that now we had a new kitchen team, he was happy to talk with him about returning again. This text was never responded to.

[29] The Applicant lodged an Unfair Dismissal Form Online on 27 March 2015. The Applicant said he rang twice and spoke to Kevin Skone about getting his separation certificate however said it was not given to him and eventually Centrelink had to order it from the Respondent for him.

[30] The Applicant said on 4 April Ben Walsh rang and spoke to his partner asking for the Applicant to call him back then sent a message saying "Hi mate. Give me a buzz when you can. As you would fully understand I could never have bought you back in the kitchen while either Steve or Sam were here but they have both gone now. I have never had a issue with you but obviously there were big issues between you and them... give me a call to discuss. Cheers"

[31] The Applicant said he had no idea that there were any issues between himself and Steve or Sam until he voiced my opinion about what Sam had done at the staff party. Mr Pincock however gave evidence that complaints had been received about the Applicant.

[32] The Applicant said that Kevin Skone also called him explaining that they had received the Fair Work form and asked if he wanted his job back. The Applicant claimed he said he would think about it as he felt they were only offering his job back because they had received the Fair Work complaint and they had to, they had made no attempts before this to offer his job back over the last couple weeks when he had rang and asked why he had lost my job.

[33] The Applicant raised another issue saying he also felt very embarrassed and uncomfortable about some syringes being left in his section with his name on it and just felt it was too little too late and he had just started picking up a couple shifts at a new place so he preferred to pursue this. The Applicant also raised the matter in the course of the determinative conference regarding the syringes. There was no other evidence about this issue or who may have been involved or whether it was done for any particular reason. On that basis I am unable to draw any conclusions about it that may be relevant to determining this matter.

CONCLUSION

[34] I am satisfied on the evidence that the Applicant did not present for seven consecutive casual shifts in a row for which he would ordinarily have been rostered before having any discussion with anyone from the Respondent about that. As I have already set out above I am satisfied nothing that occurred on 13 March amounted to a termination. That only leaves for determination whether he was terminated by the Respondent at some time after that date. I have considered all of the evidence, and particularly that of both the Applicant and Mr Walsh concerning this possibility. When comparing the evidence it is not precise about the specific date that they first had a discussion after Friday 13 March when the Applicant did not attend for his shift which was to have commenced at 10.30am. It appears to have been for at least a week that the Applicant was not attending for rostered shifts before he spoke to Mr Walsh. Mr Walsh’s evidence appeared to put the discussion at closer to two weeks.

[35] Where there are inconsistencies between Mr Walsh’s evidence and that of the Applicant I prefer the evidence of Mr Walsh as the Applicant tended to be less sure of his evidence, for example he accepted in his oral evidence that the date he had the discussion with Mr Walsh was at least days later than he initially believed. It also tends to undermine the reliability of his evidence somewhat that his primary position was that he maintained he was dismissed on 13 March when it is clear he was not. Further, not only did he not report for shifts from 13 March but he did not take active steps to seek to find out whether he should be reporting for work even after the Tuesday 17 March which was the day Mr Pincock suggested he wait until. I also find the Applicant’s evidence concerning his conversation with Mr Walsh contradictory. On the one hand he appears to say Mr Walsh confirmed to him he had already been terminated, however he goes on to claim Mr Walsh told him he had no idea of complaints made about him, was concerned he was getting conflicting versions and would look into it and would get back to him.

[36] Having dismissed the suggestion that a dismissal occurred on 13 March, and having preferred the evidence of Mr Walsh about the nature of the initial conversation between the Applicant and Mr Walsh after 13 March, the remaining question is did Mr Walsh’s initial rejection of the Applicants request to return to work after his period of absence amount to a termination by the Respondent at that point. I have concluded that it did not. I have done so because of a conclusion that it would appear more likely the Applicant’s conduct had brought the employment relationship to an end by the combination of both firstly, not attending for seven rostered shifts in a row with no explanation, and secondly, failing to respond to attempts to contact him by both Mr Walsh and Mr Skone on behalf of the Respondent over a period of time. Given the employment relationship was casual, it was reasonable for the Respondent to adopt the view as it did that the Applicant had ended his casual employment with the Respondent and for it to seek to engage someone else at that point.

[37] Even if I am wrong in forming the view that the Applicant had ended the employment relationship by his failing to attend seven consecutive shifts without explanation and not responding to attempts by two separate representatives of the Respondent to contact him, I am also not inclined to accept that given what had occurred, Mr Walsh’s initial reluctance to immediately return to the Applicant the casual shifts he had previously been working amounted to a termination. I am not satisfied there was an affirmative decision on the part of the Respondent to terminate the casual employment relationship. As Mr Walsh said, at no time was any directive ever given to dismiss the Applicant. I’m more inclined to the view Mr Walsh decided not to offer casual shifts for a short time whilst there remained some antipathy toward the Applicant amongst his staff.

[38] The context of the conversation was the Applicant requested to return to work after apologising for not attending the meeting on 13 March, and not having been contactable for some time. Given the Applicant was a casual he did not have an automatic entitlement to a particular roster. Further given his own behaviour it is hardly surprising the Respondent did not agree. The evidence was that after a period of no work the Applicant was again offered casual shifts with the Respondent and he decided to reject that offer and instead decided to pursue this application.

[39] In conclusion for the reasons set out above I am satisfied the Respondent did not terminate the Applicant and on that basis the Application must be dismissed.

[40] Whilst I have decided to dismiss the application on jurisdictional grounds a number of points about the matter are also worth noting in the event a different finding had been reached on the jurisdictional issue, and even taking things a step further in such circumstances, were the Applicant had been able to succeed in an argument that his dismissal was unfair.

[41] Given the Applicant was a casual employee of reasonably short duration and he did not report for work in the week of 15 March, and he rejected an offer for further casual work with the Respondent, and he gained other casual work in a reasonably short period after his termination, and given the remedy he sought from his Form 2 application was payment of monetary compensation, any potential compensation order even in circumstances where the applicant did succeed would be likely to be insignificant if anything given the matters that must be taken into account in section 392 of the Fair Work Act 2009.

COMMISSIONER

Appearances:

Mr Paul McDonald for himself

Mr Ben Walsh for the Respondent

Determinative Conference details:

Brisbane, 13 July 2015

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