Piero Ciabattoni v Glen Rochester T/A Matraville TAB

[2014] FWC 1711

[2014] FWC 1711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Piero Ciabattoni
v
Glen Rochester T/A Matraville TAB
(U2013/2707)

VICE PRESIDENT WATSON SYDNEY, 13 MARCH 2014

Application for relief from unfair dismissal - application dismissed - small business code - Fair Work Act 2009 - ss. 394, 587.

[1] This decision is an amended version of a decision given in transcript on 7 March 2014 that concerns an application by Mr Piero Ciabattoni against Glen Rochester T/A Matraville TAB for unfair dismissal remedy made by under s.394 of the Fair Work Act 2009 (the Act). The application was made on 13 August 2013.

[2] The application before the Commission is an application made under section 394 of the Fair Work Act by Piero Ciabattoni who was dismissed from his employment by Glen Rochester trading as Matraville TAB by letter dated 29 July 2013, which confirmed an earlier discussion on the Saturday previously 27 July 2013. The letter of termination indicates that the termination was to be effective on Saturday 3 August 2013 and was due to irreconcilable differences.

[3] Section 385 of the Act says that an unfair dismissal is one which fulfils all four of the criteria set out in that section. One of those criteria is that the dismissal was not consistent with the Small Business Fair Dismissal Code. Section 396 of the Act requires the Commission to determine that question, where it arises, before considering the merits of the application.

[4] Section 388 of the Act provides in subsection (2) that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if immediately before the time of the dismissal, or the time the person was given notice of the dismissal, the person’s employer was a small business employer and the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

I am satisfied on the evidence that Mr Rochester and the Matraville TAB is a small business employer for the purposes of the Act. I turn to consider whether the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[5] That code classifies terminations in two ways: first, by way of summary dismissal where it is said that it is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. I am not satisfied that the employer formed such a view or that there were reasonable grounds to form such a view in the circumstances of this case. It is clear that there was evidence of significant concerns of the employer at Mr Ciabattoni’s conduct. However, those concerns related to conduct over an extended period and were the subject of warnings, which I find on the evidence were given, and they appear to me to be of a different character to matters which warrant termination by way of summary dismissal.

[6] The Small Business Fair Dismissal Code then deals with other dismissals.

It says;

“In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.”

[7] I am satisfied on the evidence before me that Mr Rochester spoke to Mr Ciabattoni about the matters of concern regarding the performance of his duties and his conduct at work on a number of occasions and that there were approximately six verbal warnings given about those matters. I am also satisfied on the evidence that a written warning was provided in approximately March 2013 concerning the same matters that ultimately constituted the reasons for termination.

[8] I have considered those matters and the evidence in relation thereto and I am of the view that those matters constitute a valid reason based on Mr Ciabattoni’s conduct and performance. I mention, in particular, the matter of the value alerts. This was a requirement of the employer to set the value alerts at his standard of $500. It had significance in terms of customers and the ability of customers to place bets without interruption up to that level and I find that Mr Rochester clearly gave a direction on a number of occasions to Mr Ciabattoni to set the value alerts at $500 and he declined to do so when he was in the TAB on his own. I regard that as an example of conduct contrary to the employer’s interests, in breach of a specific direction and having implications for the employer’s business.

[9] The refusal to follow that direction is essentially admitted and there has been an attempt to justify the conduct. In my view that is irrelevant and it is not open to an employee, in circumstances such as this, to disobey a clear direction by the employer in relation to work and operational requirements. That matter was subject to considerable friction between the parties, a number of mentions and a written warning. I find that that matter, combined with other matters, constituted a valid reason for termination and was the subject, as I said, of the warnings.

[10] The Small Business Fair Dismissal Code goes on to say that the employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. On the evidence before me, although a copy of the written warning is not in evidence and is apparently not in the possession of the employer, I am satisfied that the written warning and also the oral warnings, fall within that description.

[11] The Code then says the small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem having regard to the employee’s response. Raising the matter on a number of occasions verbally and raising the matter in a written warning provided Mr Ciabattoni with the opportunity to rectify the problem by complying with the employer’s direction. The evidence before me leads to the finding that Mr Ciabattoni did not do so and he continues to this day to suggest that he was entitled and had some justification in declining to follow the employer’s direction. It is sufficient for me to note that that aspect of the Fair Dismissal Code is satisfied.

[12] The Code then deals with procedural matters and says that an employee can have another person present to assist. There is no evidence about the nature of the discussions, but there is no evidence of any denial of such an opportunity or any request for an assisting person.

[13] The Code then says a small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warnings, a statement of termination or signed witness statements. I am satisfied on the material before me that sufficient evidence falling within that description has been produced and justifies the findings that I have made that the employee was given a warning about the conduct and an opportunity to rectify the problem and the matters raised with him were valid reasons for termination, especially given that there was no rectification of the problem subsequent to the issue of the warnings.

[14] It follows from those findings that I find that the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal. The dismissal therefore cannot be considered to be an unfair dismissal and the findings I have made lead to the conclusion that the application should be dismissed.

Conclusion

[15] It is unnecessary for me to consider the other matters referred to in the Act as the merits or more particularly whether the dismissal was harsh, unjust or unreasonable and I do not deal with those matters more generally. For the above reasons I dismiss the application.

VICE PRESIDENT WATSON

Appearances:

Mr C MacArdle on behalf of Mr Piero Ciabattoni.

Mr R Fox on behalf of Glen Rochester T/A Matraville TAB.

Hearing details:

2014.

Sydney.

March, 7.

Final written submissions:

Mr C McArdle, 7 March 2014.

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