Ronald Lalli-Cafini v The Trustee for Samios Tyres Business Trust

[2014] FWC 4098

[2014] FWC 4098

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ronald Lalli-Cafini
v
The Trustee for Samios Tyres Business Trust
(U2013/16552)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 JUNE 2014

Application for relief from unfair dismissal.

[1] Mr Lalli-Cafini’s employment was terminated by Samios Tyres Business Trust (STBT) on 21 November 2013. Mr Lalli-Cafini said the termination of his employment was unfair.

Background

[2] STBT is a tyre fitting and sales business. It has offices in Brisbane and Altona. Its directors, Mr Andrew Samios and Mr Steve Fardoulys are located in Brisbane but make regular visits to the Altona branch. STBT employs sales staff and tyre fitters.

[3] Mr Lalli-Cafini was initially employed by STBT as a sales representative in March 2012 at Altona. After the manager of the Altona office left, Mr Lalli-Cafini was approached to take on the role of manager. He initially refused but in January 2013 he accepted the promotion.

[4] Mr Lalli-Cafini was not provided with a formal job description but it was not contested that his job included responsibility for managing all staff, health and safety, and developing the business.

[5] At the time Mr Lalli-Cafini commenced work for STBT, there were no written policy documents and those policies were not reduced to writing during Mr Lalli-Cafini’s employment.

[6] Mr Lalli-Cafini’s induction to his new role was via on-the-job training conducted by Mr Samios at the Altona office. In addition, during Mr Lalli-Cafini’s time as manager, Mr Samios regularly spoke to Mr Lalli-Cafini via telephone or Skype. As well, one of the directors visited the Altona office at least once a month.

[7] Mr Lalli-Cafini did not undergo any formal performance review during his time as manager.

[8] CCTV cameras were installed in the Altona officer and staff in both Brisbane and Altona received a live stream from the cameras. Mr Lalli-Cafini was able to view what was happening in the tyre fitting bay at any time via his desktop computer.

What were the policies or rules about safety in the tyre fitting bay?

[9] There was no doubt that there were safety rules that applied in the tyre fitting bay. When a vehicle arrived, a sales person was required to escort the driver to the tyre fitting bay and provide the tyre fitter with details of the job. The sales person was then required to escort the driver out of the tyre fitting bay and the driver was not to return to the bay until the job was finished and then they were escorted to their truck. No unescorted drivers or members of the public were allowed in the tyre fitting bay. If a member of staff saw someone in the bay via the CCTV or otherwise, they were to escort them out of the tyre fitting bay. If a tyre fitter saw an unescorted driver or member of the public in the tyre fitting bay he or she must stop work and tell the person to leave and must not perform work whilst the person is present.

The events leading to the termination

[10] On 10 September 2013, Mr Samios observed on CCTV an unauthorised person in the tyre fitting bay. The person was unchallenged and the tyre fitter continued to work. The CCTV footage of this event was not presented to the Fair Work Commission (the Commission) as it had not been kept.

[11] Mr Samios immediately contacted Mr Lalli-Cafini by Skype and told him he needed to address this immediately.

[12] Mr Lalli-Cafini tendered a diary entry for that day which recorded that he had spoken to the sales staff and the tyre fitters about the incident. He said he reinforced the rules to both groups of employees. 1

[13] A number of employees gave evidence that they recalled this meeting. 2 Mr Gustavo Mune a witness for STBT confirmed that when Brisbane raised a safety issue with Mr Lalli-Cafini he “would come out to the tyre fitting bay and say to all of us “Guys, Brisbane has complained about customers wandering around the tyre fitting bays. Try to keep them out of the tyre fitting area.”3

[14] On 4 November 2013, at 12.07pm Mr Samios observed two customers walking between two trucks in the tyre fitting bay. One of the customers got inside the cabin of the truck. Mr Samios said he immediately contacted Mr Lalli-Cafini by Skype and told him he needed to address it urgently. Mr Samios described this as him reprimanding Mr Lalli-Cafini. 4

[15] CCTV footage of this was tendered. However, the video does not support the contention that the tyre fitters continued to work whilst the men were in the area. It is not clear from the CCTV footage that the tyre fitters were able to see the men who were between the trucks. When one of the tyre fitters saw them he went around the truck and spoke to the men who left the tyre fitting bay.

[16] Mr Lalli-Cafini tendered a diary note which recorded that he spoke Mr Joe Tapp, who was a tyre fitter in the area, and he told Mr Lalli-Cafini that he stopped work until they left the area. Mr Lalli-Cafini recorded that he spoke to both the tyre fitters and sales staff about the incident. 5 Mr Lalli-Cafini also said he spoke to Graeme Near about the incident but it was accepted by Mr Lalli-Cafini that this was not true as Mr Near was not at work that day.

[17] Again witnesses for Mr Lalli-Cafini gave evidence that Mr Lalli-Cafini conducted such meetings.

[18] Forty minutes later on the same day, CCTV footage shows two tyre fitters working whilst a customer leans up against the truck. It is clear from the footage that the tyre fitters did not comply with the rules and stop working until the customer left the area. Mr Lalli-Cafini submitted that he was not at the office at that time because the CCTV footage showed his car arriving at the site.

[19] At 14.21 pm on the same day CCTV footage showed a driver in the cabin of a truck whilst the truck was being worked on. While it is not clear if the tyre fitter knew the driver was there the whole time he was working on the truck the CCTV footage shows the tyre fitter speaking to the driver in the cabin after he had completed his work and then walking away.

[20] While the 12.07pm incident was brought to Mr Lalli-Cafini’s attention the other two incidents on that day were not discovered until after Mr Lalli-Cafini’s employment was terminated.

[21] On 11 November 2013 at 10.26am a driver is seen on CCTV footage walking unaccompanied across the tyre fitting bay. It is not clear where the tyre fitter is. The driver then walks back and is then accompanied by a tyre fitter and walked out of the area. There was no evidence that this was brought to Mr Lalli-Cafini’s attention.

[22] On 11 November 2013 at 1.07pm Mr Samios observed a fitter putting air into a truck tyre whilst the driver was sitting inside the truck. The driver then got out of the truck but remained in the area and stepped around the tyre fitter. The driver was then left at the vehicle when the tyre fitter left the area and he then climbed into the truck whilst two tyre fitters worked on the wheel.

[23] Mr Samios said he skyped Mr Lalli-Cafini and told him he needed to address this issue immediately. He thought that Mr Lalli-Cafini was dismissive of his concerns. 6

[24] On 14 November 2013, Mr Samios saw a safety breach on CCTV which he described as follows: “When I saw it I got an extremely bad chill up my spine because you’ve got people there doing things extremely in an unsafe way and I was fearful of a death happening.” 7

[25] On that occasion a tyre fitter is seen getting into the cabin of the truck whilst other tyre fitters are working on the truck. One of the tyre fitters is seen getting under the truck whilst the other tyre fitter is in the cabin.

[26] Mr Samios skyped Mr Lalli-Cafini and told him the breach was unacceptable. Mr Lalli-Cafini told him he would look into it. Mr Samios thought that Mr Lalli-Cafini was very casual about this incident. 8

[27] The extent to which this behaviour was dangerous was called into question by Mr Mune who was the tyre fitter who went under the vehicle. Mr Mune did not consider his actions unsafe. 9 While he was more equivocal in re-examination I accept his evidence that he was working safely. He gave evidence that Mr Lalli-Cafini asked them at the time what was going on and the tyre fitters explained what was happening.10

[28] Despite the alleged seriousness of the incident, there was no evidence that Mr Mune and the other tyre fitters were warned either verbally or in writing by Mr Samios about the incident.

[29] On 19 November 2013, Mr Samios received complaints from two staff members in the Brisbane office that Mr Lalli-Cafini had been very rude and angry to them over the telephone. 11

[30] Mr Samios gave evidence that he had raised other concerns with Mr Lalli-Cafini about other issues including the untidiness and general disorganised state of the Altona office; the excessive personal use of the internet; the reduction of tyre fitter’s overtime; and his failure to follow up instructions to promote the business. 12

[31] Mr Samios decided to consult with his newly engaged human resources consultant. Ms Noela Quadrio advised him that he needed to review the appropriateness and capacity of Mr Lalli-Cafini to continue managing the Altona branch. 13

[32] On the advice of Ms Quadrio, he rang Mr Lalli-Cafini and told him that he would be coming to Melbourne the next day to discuss his performance and that his options were to warn or dismiss Mr Lalli-Cafini. He advised Mr Lalli-Cafini that any decision would be based on his assessment of the likelihood of further breaches. Ms Quadrio advised Mr Samios that if Mr Lalli-Cafini did not “offer satisfactory explanations for these breaches or strategies which he had put in place to satisfy the Directors that future breaches would not occur in the future, then it would be appropriate to consider instant dismissal as these were serious breaches of Workplace Health and Safety with potentially serious consequences.” 14

[33] Mr Samios met with Mr Lalli-Cafini on 21 November 2013. At the meeting Mr Samios said he attempted to detail the serious breaches that had occurred. He said that Mr Lalli-Cafini cut him off and dismissed the seriousness of the breaches. He said Mr Lalli-Cafini became very defensive and upset and refused to accept that he was at fault. 15

[34] Mr Samios formed the view that Mr Lalli-Cafini lacked insight and blamed others, as well as offered no plan on how to change the unsafe work practices. Consequently he decided to immediately terminate Mr Lalli-Cafini’s employment. 16

[35] On 26 November 2013, Mr Samios sent Mr Lalli-Cafini a letter of termination. While there was no mention of notice in either the conversation on 21 November 2013 or in the letter of termination, Mr Lalli-Cafini was paid two weeks’ pay in lieu of notice.

Evidence called on behalf of Mr Lalli-Cafini

[36] Mr Lalli-Cafini filed witness statements and those were adopted by his witnesses as true and correct. The witness statements contained similar or identical statements. Each of his witnesses recalled being in safety meetings on 10 September, 4 November and 14 November.

[37] Mr Khaled Joud gave evidence that he did not write his statement nor did he give instructions about its content. Someone gave him the statement; he read it and signed it because he agreed with it. 17 Mr Joud accepted that he had no independent memory of these matters.

[38] Mr Mark Appleton also did not write his own witness statement. He identified paragraphs [5], [6] and [14] as ones which he had specifically given instructions on. 18

[39] Mr Joe Tapp gave evidence that he could recall the meetings on 10 September and 4 November but couldn’t recall what was said. He could not recall any details about the meeting on 14 November.

[40] Mr Mark Lalli-Cafini gave evidence that he was told the dates of the meetings by Ms Amanda Gibson. 19 He said he kept records of the meetings in his diary but did not produce his diary to support this evidence.

[41] Ms Amanda Gibson gave evidence that she recalled the meeting on 10 September because it was her second day. She recalls the meeting on 4 November but did not recall any meeting on 14 November.

[42] On 4 November there were three incidents. Mr Samios’ evidence makes it clear that he did not see the second and third incidents until after Mr Lalli-Cafini’s employment was terminated. He did not speak to Mr Lalli-Cafini about these incidents at the time they occurred. There was no evidence that Mr Lalli-Cafini knew about these incidents when they occurred. Mr Lalli-Cafini gave evidence in relation to the first incident that he spoke to the tyre fitter and he told the staff off. 20 In relation to the second incident he said he gave Mr Tapp a verbal warning.21 Mr Tapp agreed he got a verbal warning.22 Yet this incident was not brought to Mr Lalli-Cafini’s attention at the time it occurred. Further Mr Lalli-Cafini’s diary entry23 refers to the first incident only and notes that Mr Tapp told him that he stopped work until the drivers left the area. There is no reference to Mr Lalli-Cafini not accepting Mr Tapp’s explanation.

[43] I therefore do not accept that Mr Lalli-Cafini gave Mr Tapp a warning about any incident on 4 November 2013.

[44] Mr Lalli-Cafini was ordered to produce his diary. He did not do so as he said he did not have it in his possession. Mr Lalli-Cafini tendered three diary extracts for 10 September, 4 November and 14 November. Mr Lalli-Cafini could not provide an explanation as to how or when he came to photocopy these particular pages from his diary.

[45] Mr Lalli-Cafini’s notes of 4 November state that he spoke to Mr Near about this incident. When it became clear that Mr Near was not at work that day he said this was a mistake. It is difficult to understand given the detail in the note that Mr Lalli-Cafini simply confused Mr Near for someone else. The other two sales persons were his son and Ms Gibson. I am therefore not satisfied that Mr Lalli-Cafini’s notes were made contemporaneously and therefore cannot be relied upon.

[46] Apart from Ms Gibson I do not accept that Mr Joud, Mr Tapp, Mr Appleton or Mr Mark Lalli-Cafini had an independent memory of what occurred on 10 September, 4 November or 14 November. This does not mean that I discount all their evidence. I accept that there were discussions in the workplace about safety and that Mr Lalli-Cafini had formal and informal meetings with staff about safety. However I am unable to rely upon much of the evidence of Mr Lalli-Cafini’s witnesses as I formed the view from their statements and oral evidence that they tailored their evidence to support Mr Lalli-Cafini rather than gave evidence of their actual recollection of events.

The safety breaches

September 10

[47] I accept that on 10 September that Mr Samios informed Mr Lalli-Cafini of a safety breach. I accept that Mr Lalli-Cafini spoke to both the tyre fitters and the sales staff about this and reminded both groups about the rules. So much was confirmed by Ms Gibson’s evidence.

November 4 at 12.07

[48] I accept that on 4 November that Mr Samios spoke to Mr Lalli-Cafini at around 12.07pm about a safety breach. An examination of the CCTV footage did not establish that the tyre fitters had breached the safety rules.

November 4 at 12.47

[49] Two tyre fitters continue to work whilst a driver is in the tyre fitting bay. This was a breach of policy. However there is no evidence that Mr Lalli-Cafini knew of this incident. I do not accept that Mr Lalli-Cafini gave Mr Tapp a warning about this incident.

November 4 at 2.21

[50] It is not possible to tell from the CCTV footage that the staff were aware that the driver remained in the truck. Again there is no evidence that Mr Lalli-Cafini knew of this incident.

November 11 at 10.27

[51] It is not clear that the tyre fitter breached the safety rules. Again there is no evidence that Mr Lalli-Cafini knew of this incident.

November 11 at 13.09

[52] It is clear that Mr Tapp breached the safety rules. Mr Lalli-Cafini says he spoke to Mr Tapp about this but he did not give him a warning. 24

November 14 at 14.11

[53] I do not accept that this was a breach of the policy. I accept that Mr Samios was concerned about what he saw. However no evidence was put that there was a policy that tyre fitters could not release the brakes or that tyre fitters were required to call a mechanic if the brakes were jammed. I accept Mr Mune’s evidence that the tyre fitters were performing the work safely.

The other incidents

19 November 2013

[54] Ms Lea Losbanos and Ms Maritsa Fardoulys 25 gave evidence about Mr Lalli-Cafini speaking to them rudely and unprofessionally. Ms Losbanos lodged a complaint about this on 20 November 2013. That complaint was never shown to Mr Lalli-Cafini though it is clear from his own evidence that he knew that there was an issue arising from this confrontation.26

[55] While I accept Ms Losbanos’ and Ms Fardoulys’ evidence about this incident, it is difficult to imagine that it would have led to more than counselling about his manner. There should also have been a discussion and investigation to ensure Mr Lalli-Cafini understood his responsibilities and how payroll issues should be resolved.

The allegations of poor performance

[56] Mr Samios gave evidence that he spoke to Mr Lalli-Cafini about his concerns about how the Altona branch was being managed. 27 Mr Lalli-Cafini was not cross examined about these concerns.

[57] While Mr Samios measured the productivity of tyre fitters in the Altona branch he did not tell Mr Lalli-Cafini about the benchmark or whether the tyre fitters were reaching the benchmark. 28

[58] While Mr Samios said that performance reviews were done, they were confidential. 29 There was no evidence that they were discussed with Mr Lalli-Cafini.

[59] Mr Samios also gave evidence that Mr Lalli-Cafini did not follow up his instructions to cold call potential clients. 30 Mr Lalli-Cafini was not cross examined about these matters.

[60] There is insufficient evident to establish that Mr Samios directed Mr Lalli-Cafini to make cold calls and he refused to comply with those directions. There was no evidence that this was discussed with Mr Lalli-Cafini prior to his termination.

[61] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the following:

s387(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);

[62] Mr Lalli-Cafini was dismissed summarily on 21 November 2013. By letter dated 26 November 2013, Mr Samios set out the reasons for the dismissal. Mr Lalli-Cafini was dismissed because STBT had lost confidence in his ability to perform the manager’s role and because of his failure to ensure compliance with workplace safety procedures. 31 The letter set out three aspects of Mr Lalli-Cafini’s performance that led to this conclusion:

1. His failure to ensure that an important workplace health and safety procedure, fundamental to the safety of customers, staff and primarily tyre fitters working in the fitting area, was complied with by staff and customers.

2. His failure to follow Mr Samios’ instructions to visit potential clients on a weekly basis to promote the business.

3. His failure to demonstrate respect towards others during interactions in his capacity as the Altona manager. 32

[63] While there was no reference to notice in the letter, Mr Lalli-Cafini was paid two weeks’ pay in lieu of notice. 33 A decision of STBT to subsequently pay in lieu of notice does not change the nature of the dismissal. Mr Lalli-Cafini was summarily dismissed on 21 November 2013.

[64] STBT submitted that the valid reason for the dismissal involved both capacity and conduct. 34

[65] In relation to his conduct, STBT submitted that Mr Lalli-Cafini breached critical workplace health and safety standards. 35 In relation to capacity, STBT submitted that Mr Lalli-Cafini did not ensure that there were safe work practices and safe systems of work.

[66] There is no evidence that Mr Lalli-Cafini breached any workplace health and safety standards. There is no evidence that Mr Lalli-Cafini was present when any of the alleged incidents occurred or that he condoned the breaches of the standards. I find that Mr Lalli-Cafini was not guilty of misconduct.

[67] Mr Lalli-Cafini was the manager of the Altona branch. If his evidence is accepted, he repeatedly reinforced the safety rules with both the tyre fitters and the sales staff. Despite this the tyre fitters were observed on a number of occasions not complying with the rules. On 4 November 2013 there were three separate breaches. I accept that Mr Lalli-Cafini spoke to the tyre fitters after the first incident but it is clear that they had no regard to what he said as 40 minutes later two tyre fitters continued to work while a driver stood talking to them.

[68] While the tyre fitters themselves are responsible for complying with the rules that Mr Lalli-Cafini was unable to ensure that they complied meant that he did not perform his duties as a manager effectively. Mr Mune expressed it most clearly when he said that Mr Lalli-Cafini did not appear to want to take responsibility for telling them off. 36

[69] Managing staff was a critical part of Mr Lalli-Cafini’s role. Ensuring that they complied with the safety rules was also critical. I accept that Mr Lalli-Cafini took some steps after Mr Samios raised concerns with him but this appears to be nothing more than exhortations for employees to do better.

[70] It was not that Mr Lalli-Cafini did not know the procedure to be followed if an employee did not do as expected. Mr Lalli-Cafini had terminated an employee, who despite being warned, had not improved his performance. 37 He also instantly dismissed an employee who on his first day breached a safety rule.38 It is clear that Mr Lalli-Cafini did not make it clear to the tyre fitters that there were consequences if the rules were not followed. By not doing so he failed to perform a critical part of his role and I find that STBT had a valid reason for terminating Mr Lalli-Cafini’s employment.

[71] As far as the other matters relied upon to justify Mr Lalli-Cafini’s termination, I do not consider on their own or in combination with the other factors that they provided a valid reason for the termination of Mr Lalli-Cafini’s employment.

s387(b) whether Lalli-Cafini was notified of that reason;

[72] In a telephone conversion, Mr Samios told Mr Lalli-Cafini that he would meet with him on 21 November 2013 to discuss his performance. Mr Samios said he told Mr Lalli-Cafini that a possible outcome of the meeting was the termination of his employment. 39 Mr Samios said he told Mr Lalli-Cafini that he had a number of serious concerns. He did not detail in his witness statement whether he elaborated on those concerns.

[73] Mr Lalli-Cafini accepts that he was told that Mr Samios was coming down to talk to him but said he was told that Mr Samios was coming to talk to him about the complaints by the Brisbane staff. He did not accept that he was told that a possible outcome was the termination of his employment. 40

[74] At the meeting on 21 November 2013 Mr Samios said he attempted to detail each of the health and safety incidents that had occurred. It was his evidence that Mr Lalli-Cafini was not responsive to these concerns. Mr Samios said that Mr Lalli-Cafini was defensive and did not accept responsibility for these breaches. 41

[75] Mr Lalli-Cafini said that at the meeting on 21 November 2013 Mr Samios met with him. He said that Mr Samios had some pieces of paper in his hand which caused him to think that “something serious is going on.” 42 He accepted that Mr Samios raised the safety breaches and Mr Lalli-Cafini said he told Mr Samios that he did not know what he was talking about. He said Mr Samios then said that they would need to “part company.”43

[76] Mr Lalli-Cafini left the meeting after Mr Samios said this because he had been sacked and he was upset and angry. 44 Mr Lalli-Cafini said he had no idea that he would be sacked that day.45

[77] I am not satisfied that Mr Samios told Mr Lalli-Cafini all the reasons relied upon for the dismissal prior to it taking place.

[78] However as I have found that the valid reason for the termination was his failure to ensure that staff followed critical safety rules, it was this reason that Mr Lalli-Cafini had to be told about before the decision to terminate his employment was taken. Mr Samios did attempt to explain to Mr Lalli-Cafini the safety issues that concerned him. He did not tell Mr Lalli-Cafini that his employment could be terminated because he had failed to ensure that staff and customers abided by health and safety rules.

[79] However, given that Mr Lalli-Cafini got upset and was defensive about the matters raised the discussion was curtailed and his employment was terminated. I accept that Mr Samios would have gone into more detail prior to the termination if Mr Lalli-Cafini had not got defensive.

s387(c) whether Mr Lalli-Cafini was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[80] Mr Lalli-Cafini was given an opportunity to respond but because he became upset and defensive, Mr Samios formed the view that he was lacking in insight into his responsibilities and his employment was terminated.

s387(d) any unreasonable refusal by the employer to allow Mr Lalli-Cafini to have a support person present to assist at any discussions relating to dismissal;

[81] MrLalli-Cafini did not ask to have a support person present.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Lalli-Cafini had been warned about that unsatisfactory performance before the dismissal;

[82] Mr Lalli-Cafini had been promoted to manager in January 2013. The training provided was informal. Mr Samios did not provide any details about any training provided to Mr Lalli-Cafini either formal or informal about managing staff underperformance. Nor was there evidence of any training either formal or informal about how Mr Lalli-Cafini should manage his transition from co-worker to manager.

[83] Mr Lalli-Cafini had not been formally warned that his performance was unsatisfactory. While Mr Samios alerted him to a number of concerns he did not tell Mr Lalli-Cafini, prior to 21 November 2013, that his performance as a manager was unsatisfactory or that his employment was at risk. Mr Samios did not provide any additional guidance to Mr Lalli-Cafini about how he should be performing his work and he did not provide him with any additional training.

[84] It was submitted that Mr Lalli-Cafini had been reprimanded over the safety breaches. Mr Samios’ evidence in relation to the 10 September incident was that he told Mr Lalli-Cafini that he needed to address the safety breach. 46 Similarly with the 4 November incident he told Mr Lalli-Cafini that he needed to address the safety breach urgently.47 While he describes this in his statement as a “reprimand”48 there is nothing in Mr Samios’ description of what he said to Mr Lalli-Cafini that could be described as a reprimand. In relation to the 14 November incident, again Mr Samios told Mr Lalli-Cafini that the breach was unacceptable.49

[85] I am unable to find on this evidence that Mr Lalli-Cafini was in fact reprimanded. There is a difference between raising an issue with an employee and reprimanding him.

[86] Mr Samios gave evidence that he retained CCTV footage of unsafe work practices to use for training purposes but he did not provide Mr Lalli-Cafini with copies of any of the CCTV footage or take him through, after the event, the incidents he complains of. It is surprising that Mr Samios did not on any occasion he attended the Altona branch bring a copy of the CCTV footage and go through it with Mr Lalli-Cafini and direct him to hold a meeting of all employees to show them the CCTV footage and discuss his safety concerns. Further Mr Samios did not discuss any of the incidents with the tyre fitters or issue them with any warnings or instruct Mr Lalli-Cafini to issue any warnings. It is not that Mr Samios considered it inappropriate for him to issue warnings directly to staff, as he had issued Mr Near with a warning. 50

[87] There is no evidence that Mr Samios asked Mr Lalli-Cafini if he had issued warnings to the tyre fitters and if not, why not. There is no evidence that Mr Samios followed up any of these incidents with Mr Lalli-Cafini. There is no evidence that Mr Samios had any discussion with Mr Lalli-Cafini that made it clear to him that whatever approach he had taken in the past to get the staff to comply with the rules wasn’t working or that he provided Mr Lalli-Cafini with any advice about alternative strategies he might use to ensure compliance with the rules. At most Mr Samios exhorted Mr Lalli-Cafini to deal with the problem. That is not enough.

[88] While I accept that Mr Lalli-Cafini should have recognised that Mr Samios had concerns about the tyre fitters not complying with the rules and recognised that the staff were not responding to his instructions to comply with the rules, Mr Samios should have taken further steps to address these concerns formally with Mr Lalli-Cafini.

[89] The evidence established that Mr Samios had concerns about the productivity of the Altona branch but there is no evidence that he warned Mr Lalli-Cafini that if there was not an improvement in the productivity of the Altona branch, his employment was at risk.

[90] Mr Lalli-Cafini was not warned about not cold calling potential clients or about any inappropriate behaviour.

[91] I find therefore that Mr Lalli-Cafini was not warned about his unsatisfactory performance before his employment was terminated.

s387(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;

[92] This is not a small business as it has 19 staff. I accept that the size of the business may have had an impact on the procedures followed in managing Mr Lalli-Cafini prior to Ms Quadrio’s engagement. However, even employees of businesses of this size are entitled to be told that their performance is putting their jobs at risk and be given an opportunity to improve. However the size of the business can have had no impact on the procedures followed in effecting the dismissal as Mr Samios received professional advice about how to effect the dismissal.

s387(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;

[93] Mr Samios engaged a professional human resources consultant in late October 2013. Having received advice, Mr Samios realised that he needed to deal with Mr Lalli-Cafini’s performance in a structured way. Therefore by the time he decided to manage Mr Lalli-Cafini’s underperformance he had specialist advice.

s387(h) any other matters that FWA considers relevant.

[94] STBT sought to rely upon allegations about post employment conduct. As this evidence did not go to the question of whether the dismissal was harsh unjust or unreasonable, but would only be relevant to whether Mr Lalli-Cafini should be reinstated, I did not admit the evidence as he did not seek reinstatement.

Conclusion

[95] While I have found that there was a valid reason for the termination of Mr Lalli-Cafini, the failure of STBT to properly supervise Mr Lalli-Cafini, to advise him where he was going wrong, to warn him that his job was at risk and provide him with clear expectations and additional training, makes the termination of his employment unreasonable.

Remedy

[96] Mr Lalli-Cafini is not seeking reinstatement of his employment.

[97] In assessing any amount in lieu of reinstatement, the Commission is required to have regard to the following:

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

[98] It was established that STBT made a loss in the last financial year. However no evidence was called as to the impact on the business of any order for compensation.

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

[99] Mr Lalli-Cafini had only worked for STBT since March 2012 and had been the manager for eleven months. This is a short period of employment.

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

[100] I consider that even if Mr Lalli-Cafini had been warned about his performance he would not have improved sufficiently that STBT would have continued his employment for very long. Unfortunately for Mr Lalli-Cafini, his relationship with his staff was more one of a co-worker than a manager and I do not consider given this history he would have been able to change that relationship such that his staff would have changed their approach to the safety rules.

[101] I consider that Mr Lalli-Cafini would have worked for STBT for another eight weeks had he not been terminated.

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

[102] I accept that Mr Lalli-Cafini attempted to mitigate his losses.

(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;

[103] Mr Lalli-Cafini did not earn any income in the eight week period after the termination of his employment. He was paid two weeks’ notice and I have deducted that from the amount as had he continued to work. I consider it more likely than not he would have been given notice of termination rather than been dismissed summarily and he would have been required to work out his notice. Mr Lalli-Cafini earned $22 per hour for a 38 hour week plus superannuation. He would therefore have earned $5016 plus $451.44 superannuation.

(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;

[104] This criterion is not relevant.

(g) any other matter that FWC considers relevant.

[105] No submissions were made that there were any other relevant factors.

[106] I have not made any discount for misconduct as I do not consider that Mr Lalli-Cafini engaged in misconduct.

Conclusion

[107] I therefore order STBT pay Mr Lalli-Cafini $5016 less applicable taxation and $451.44 to Mr Lalli-Cafini’s superannuation fund within 14 days of the date of this decision.

DEPUTY PRESIDENT

Appearances:

R. Lalli-Cafini on his own behalf.

N. Quadrio on behalf of the Trustee for Samios Tyres Business Trust.

Hearing details:

2014.

Melbourne:

7, 8 and 9 May.

 1   Exhibit A2

 2   Exhibit A11, A12, A8, A9, and A10

 3   Exhibit R7 at [7]

 4   Exhibit R4 at [36]

 5   Exhibit A3

 6   Exhibit R4 at [36]

 7   Transcript PN2732

 8   Exhibit R4 at [41]

 9   Ibid PN 4328-4329

 10   Ibid PN 4360

 11   Ibid at [55]

 12   Ibid at [43]

 13   Ibid at [60]

 14   Ibid at [63]

 15   Ibid at [70]

 16   Ibid at [73]-[77]

 17   Transcript PN 979

 18   Ibid PN 1355-1358

 19   Ibid PN 2112

 20   Ibid PN 308 and 323

 21   Ibid PN 329

 22   Ibid PN 1462-1466

 23   Exhibit A3

 24   Transcript PN 429, 435

 25   Exhibit R3 and R2

 26   Transcript PN 675

 27   Exhibit R4 at [43]

 28   Transcript PN 2361-2364

 29   Ibid PN 2373

 30   Exhibit R4 at [43e]

 31   Ibid at APS3

 32   Ibid

 33   Ibid at APS4

 34   Submissions of STBT at [11]

 35   Ibid

 36   Transcript PN 4406

 37   Ibid PN 211

 38   Ibid PN 225

 39   Exhibit R4 at [62]

 40   Transcript PN 675 and 679

 41   Exhibit R4 at [69]-[70]

 42   Transcript PN 693

 43   Ibid

 44   Ibid PN 702-706

 45   Ibid PN 701 and PN 734

 46   Exhibit R4 at [26]

 47   Ibid at [30]

 48   Ibid at [36]

 49   Ibid at [41]

 50   Exhibit R6 at [j]

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