Tapan Nicholas Rozario v Alpha Flight Services T/A Dnata Catering

[2019] FWC 3182

[2019] FWC 3182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tapan Nicholas Rozario
v
Alpha Flight Services T/A Dnata Catering
(U2019/106)

COMMISSIONER PLATT ADELAIDE, 10 MAY 2019

Application for an unfair dismissal remedy - applicant engaged as a casual – whether protected against unfair dismissal – employment regular and systematic – was applicant dismissed or did he resign – application for leave – application refused – applicant’s knowledge of refusal disputed – applicant travelled overseas and did not attend for work – employment terminated – held applicant protected from unfair dismissal and was dismissed – dismissal not harsh, unjust or unreasonable.

Summary

[1] On 4 January 2019, Mr Tapan Nicholas Rozario (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Dnata Catering on 18 December 2018.

[2] I note that the Respondent’s Form F3 Employer Response identifies the employer as Alpha Flight Services T/A Dnata Catering (Dnata). This does not appear to be in dispute and I have amended the application accordingly. I also note that the Applicant has reversed his first and last name on his application, I have corrected that error.

[3] Dnata’s Form F3 contended that Mr Rozario’s dismissal took effect on 23 December 2018.

[4] Conciliation was unable to be conducted and the matter was allocated to my Chambers on 20 February 2019.

[5] A Directions Hearing was conducted on 26 February 2019. Directions were issued requiring the parties to file and serve an outline of their submissions, witness statements and any documents to be relied upon, and the Hearing was listed for 21 March 2019. The parties filed material in compliance with the Directions. Dnata was directed to provide copies of Mr Rozario’s time and wage records.

[6] A further Conciliation was conducted on 6 March 2019 before Commissioner Hampton, however the matter did not resolve.

[7] The matter was heard on 21 March 2019. Ms Sullivan from United Voice represented Mr Rozario. Mr Murray Procter (of Counsel) represented Dnata with permission being granted pursuant to s.596(2)(a) of the Act.

[8] Dnata provides catering services to a number of airlines at Adelaide Airport. The most senior chef is the Executive Chef – Mr Christian Parle, next in the hierarchy are four Sous chefs including Mr Daljinder Singh (aka DJ) and Mr Swaranjeet Singh Gill. In the next level below, there are 10 – 15 chefs including the Applicant, Mr Rozario. In addition, Mr Nikola Metodijevic is employed as the Business Manager. 1

[9] Mr Rozario contends that:

•  He was engaged as a regular casual employee for a period of about 18 months, had a reasonable expectation of ongoing employment, and was protected from unfair dismissal.

•  He was dismissed on 18 December 2018.

•  He had permission to be absent for work in the December 2018/January 2019 or in the alternative he was not properly characterised as a casual employee and was entitled to annual leave, and Dnata unreasonably refused to approve his leave request.

•  Dnata’s decision to dismiss him for failing to attend for work was harsh, unjust or unreasonable.

[10] Dnata’s written submissions contended that Mr Rozario was employed on a casual basis and had a reasonable expectation of ongoing employment. At the Hearing, Dnata’s verbal submissions differed and suggested that Mr Rozario did not at the time of dismissal have a reasonable expectation of ongoing employment.

[11] As to the merits, Dnata submitted that Mr Rozario’s application for leave of absence was refused, this decision was communicated to him on 3 September 2018 and that Mr Rozario was advised (in effect) that failure to attend for work would result in his dismissal.

[12] Witness statements were received from:

•  Mr Rozario 2;

•  Mr Gill 3;

•  Mr Saini 4;

•  Mr Parle 5; and

•  Mr Metodijevic 6.

[13] I will deal with the evidence of each witness on each of the relevant topics.

Protection from unfair dismissal

Was Mr Rozario protected from unfair dismissal?

[14] Section 382 of the Act provides as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[15] Section 383 details the minimum employment period (MEP). Dnata advised on the Form F3 that it employed approximately 1,700 persons. In accordance with s.383 and s.23 of the Act, the applicable MEP is six months.

[16] Mr Rozario was engaged as a casual employee. Section 384(2)(a) details when a period of service as a casual employee counts towards the minimum employment period.

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis…”

[17] Mr Rozario commenced employment with Dnata at Adelaide Airport as a Chef on June 2017 (prior to this he had worked at Dnata via a contractor). On 18 December 2018 Mr Metodijevic sent (by email) a letter of termination as a result of (inter alia) Mr Rozario’s failure to attend for work from 10 December 2018.

[18] Mr Rozario contended that he worked in accordance with a roster that was published weekly, had two days off each week, and worked 45 or more hours per week. Mr Rozario would seek time off by lodging a “leave application”. In the absence of “approved leave”, Mr Rozario was expected to attend work according to the roster. This evidence was not in dispute.

[19] A graphical summary of the time and wages submitted by Dnata was prepared by the by the Commission and provided to the parties. The information on the payslips originally appeared to indicate that Mr Rozario worked 60 or more hours per week, however it came to light that the payslips recorded penalty hours as additional hours (e.g. for each hour worked on a Sunday 2 hours were recorded). The amended graph of hours worked by Mr Rozario appears below. 7 These hours are not in dispute.

[20] It can be seen that other than in the week in July 2018 (when Mr Rozario was on approved leave) his hours were regular and systematic for a period of not less than 6 months.

[21] Mr Rozario submitted that he had a reasonable ongoing expectation of work. In its written submission dated 7 March 2018 Dnata agreed with that position. At the Hearing, Dnata submitted that as a result of the conversations between Mr Rozario and Mr Metodijevic on 6 December 2018 (which are not in dispute), Mr Rozario was aware that his leave had not been approved, that he had an option to resign, and that if he travelled overseas and did not attend for work he would be dismissed. Dnata submits that on that basis Mr Rozario could not have had a reasonable expectation of ongoing employment.

[22] The evidence of Mr Rozario is that he believed he had been given permission to take the leave by Mr Saini (DJ), that he was not aware of Dnata’s formal rejection of his leave application on 3 September 2018, and that he believed he was entitled to rely on the alleged approval by Mr Saini. Whilst I have some concerns about the factual basis upon which Mr Rozario based his belief (which I will deal with later), I am satisfied that prior to the dismissal Mr Rozario had a reasonable expectation of continuing employment within the meaning of s.384(2)(a) of the Act.

[23] I find that Mr Rozario is protected from unfair dismissal under s. 382 of the Act.

Was Mr Rozario dismissed?

[24] The material before me establishes that Mr Rozario was dismissed by Mr Metodijevic on 18 December 2018 by letter 8 which was sent via email.

Was Mr Rozario’s leave application approved by Mr Saini? When was Mr Rozario first aware of the rejection of his formal request for leave?

[25] These are two key factual disputes which need to be determined on the basis of credit.

[26] Mr Rozario intended to travel overseas on a religious pilgrimage in December 2018 and January 2019.

[27] Mr Rozario contends that in December 2017 he spoke to his line Manager, Mr Saini, about taking time off. Mr Rozario contends that he was advised by Mr Saini that he could take leave as no one else had applied. There was no discussion about lodging a formal leave request.

[28] Mr Rozario engaged a travel agent to arrange the trip in February 2018 and made payments towards the travel on 2 and 3 September 2018 and 16 November 2018. The first two payments were about $6,700.00 each. 9

[29] Mr Saini recalls having a discussion with Mr Rozario in early 2018 about him travelling to India on a religious pilgrimage, and states that he said that it was the busiest time of the year and he would need to seek approval. Mr Saini denied approving Mr Rozario’s leave and said he did not have authority to do so. Mr Saini said Mr Rozario approached him a few months later asking if he thought a formal request would be approved. Mr Saini contends that he told Mr Rozario that it was a busy period and it probably would be approved, however that he would need to make the request through “Time Target” (the internal HR computer system accessed by a Kiosk where employees log on and off work). Mr Saini’s evidence was unshaken by cross-examination, however he conceded that he may have told Mr Rozario that no one else had sought leave for that period.

[30] Dnata submitted two videos which demonstrated how the HR Kiosk system worked. This process is not in dispute.

[31] In June 2018 Mr Rozario was talking to another employee about his intention to take time off in July 2018. The employee asked him if he had lodged a leave form. On 4 June 2018 Mr Rozario submitted a paper based leave application for the period 7 to 13 July 2018. On 8 June 2018 Dnata advised Mr Rozario via the HR kiosk that the leave application had been approved.

[32] In respect of the July 2018 leave application Mr Rozario states he never saw any message via the HR Kiosk and contends Dnata backdated the records. No evidence to support this assertion was submitted.

[33] Mr Rozario said (in respect of the December 2018/January 2019 leave) that Mr Saini (DJ) or someone else told him to make an application for leave through the system, 10 and that he understood that approval was not automatic.11

[34] In July 2018 Mr Rozario made a leave application (by blocking out dates in Time Target for December 2018 and January 2019 indicating he would not be available to work). Mr Rozario contends this occurred on 3 July 2018, Dnata’s records indicate it occurred on 22 July 2018. Nothing turns on this discrepancy, although it has some bearing on credit.

[35] The next time Mr Rozario enquired about his leave application was in November 2018.

[36] Dnata alleged that a message rejecting Mr Rozario’s leave application was read by him at 5:05pm on 3 September 2018. A video demonstrating how the leave applications are made and responded to was tendered. A review of the video indicates that employees log on, and in the case of a leave application, a “pop up” message then appears advising if the leave application has been approved or denied. The employee has to press the “OK” button in order to remove the pop up message from the screen. The operation of the HR Kiosk is not in dispute.

[37] Mr Rozario gave evidence that he finished work at 5:00pm on 3 September 2018. He accepts that he clocked off at 5:03pm as recorded by the HR Kiosk log but denied seeing a message advising him that his leave application was rejected. 12 In his statement, Mr Rozario did not provide any explanation for him not being aware of the 3 September 2018 communication and suggested the date on the message had been fabricated (backdated).

[38] During his evidence Mr Rozario gave the following evidence:

“COMMISSIONER: Do you have to log on to TimeTarget when you sign in and sign out?---Yes.

Does everyone sign in and sign out at the same time approximately?---Most of the time, yes, all the chefs we go in most of the time, same time.  So all the chefs is in the queue and sometimes - like example I just give you, sometimes chef is, like example, if somebody doing the TimeTarget out and anything come - another person is just out because they are hurry to go out.

MR PROCTER:  I put it to you that you're the only person that finishes at 5 o'clock?---In my - I don't think so, because there is other person in my back that day.  I don't think so that day only I am the one to time out 5 o'clock.

On that day you weren't the only one?---No, I don't think so.

So you can remember that day?---Yes.

How many people were in the queue?---I can say to you maybe there is two, three chefs in my behind and also packing staff also there.

So two or three chefs behind you?---Yes.

And packing staff?---Packing staff also.

Back end or packing?---Packing.

Packing?---Packing the food.

How many of those?---I cannot remember but they are all in the behind.

When you say behind you mean behind you in the queue?---Yes, yes.

So you're not sure how many were in the queue in terms of packing?---No.

But you think two or three chefs were behind you in the queue?---Yes.”

[39] Mr Metodijevic gave evidence that Mr Rozario was the only person who finished work at 5:00pm on 3 September 2018 which conflicts with Mr Rozario’s contention that he was somehow prevented from reviewing the annual leave rejection message at the HR Kiosk due to a line of persons waiting behind him.

[40] Prior to the conclusion of the Hearing I required Dnata to provide me the data from the HR Kiosk which identified all users on 3 September 2018. The information was supplied on 22 March 2019. The report identified that the next person to access the HR Kiosk did so at 7.36pm. I afforded Mr Rozario an opportunity to make any further submissions in relation to this evidence. His representative was unable to explain the information other than to postulate the possibility that the data may have been tampered with. This suggestion was not put during cross-examination.

Credit and factual finding

[41] Mr Rozario was not an impressive witness. Whilst I have made allowances for English not being his first language, and his unfamiliarity in giving evidence, a review of the transcript identified numerous occasions where he was unable to answer questions about key issues. Whilst his evidence about the queue behind him at the HR Kiosk on 3 September 2018 was definite and that he had a recollection of that day, it was contradicted by the evidence of Mr Metodijevic (who stated only Mr Rozario finished a 5:00pm and contradicted by the HR Kiosk data log which indicated that the next person who used the Kiosk did so after 7:00pm). Whilst I have some concerns about Mr Metodijevic’s objectivity (in light his views after receiving discovery of the information about Mr Rozario’s second job), I have no reason to believe that the HR Kiosk data has been altered by him or anyone else.

[42] My finding about the lack of the queue behind Mr Rozario on 3 September 2018 impacts poorly on his credit.

[43] I prefer the evidence of Mr Saini to that of Mr Rozario as to the conversation about his intention to travel overseas, likelihood of success and the need to make a formal application. I reject Mr Rozario’s assertion that Mr Saini approved the leave.

[44] I do not believe Mr Rozario’s account of his actions at the HR Kiosk on 3 September 2018. I reject his evidence that he was unaware that his leave application was rejected.

[45] Having made that finding, it follows that Mr Rozario’s lack of follow up of his July leave request is counterintuitive for a man who has paid a considerable amount of money to a travel agent prior to the approval of leave. It adds to my concerns about the truthfulness of his evidence.

November/December Meetings

[46] In mid-November 2018, Dnata approached Mr Rozario about the reason why he had advised he would not be available to work in the December/January period. Mr Rozario was advised if he went on the trip his employment could not be guaranteed. Mr Rozario contacted his travel agent who said they could not refund the money. Mr Rozario considered resignation. On 10 December 2018, Mr Parle asked Mr Rozario (by text message) what was happening. Mr Rozario said (in effect) he was going on the trip, he could work up to 10 December 2018 and then resign. Mr Parle asked Mr Rozario to send his resignation in. Mr Rozario subsequently decided not to resign.

[47] On 10 December 2018 Mr Rozario flew to India and did not attend for work thereafter. On 11 December 2018 he received an email from Dnata about his failure to attend for work and that he might be terminated. Mr Rozario responded to that email and pleaded his case.

[48] On 18 December 2018 Mr Metodijevic terminated Mr Rozario’s employment based on his failure to attend for work.

Was the dismissal harsh unjust or unreasonable?

[49] Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

“387 Criteria for considering harshness etc.

(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.”

Valid reason - s.387(a)

[50] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd¹³which requires the reason for termination to be “sound, defensible or well founded.”

[51] I have found that Mr Rozario’s line Manager, Mr Saini (DJ) did not approve the leave. I have found that Mr Rozario was aware that his leave application made in July 2018 had been rejected on 3 September 2018. After the meeting with Mr Metodijevic in mid-November 2018, and Mr Parle and Mr Metodijevic in December 2018, Mr Rozario could not reasonably have been under any illusion about Dnata’s position, and the likelihood of his dismissal if he failed to attend for work.

[52] I accept that the Christmas period is a peak period for Dnata and that formed the basis relied upon for the rejection of the leave request.

[53] I have also considered the length of leave sought by Mr Rozario – a period of about 7 weeks, albeit Mr Rozario offered to return earlier (12 January 2019) on 16 December 2018.

[54] I have also considered that despite Mr Rozario’s engagement as a casual employee his work attendance appears to have been such that he might be more appropriately classed as a part-time or full-time employee and that if this was the case, he would have had an entitlement to annual leave of about 6 weeks (subject to previous leave history – noting that he had 5 days leave in July 2018) and that under the National Employment Standards (NES) the employer must not unreasonably refuse a request to take paid annual leave.

[55] I accept that Dnata had a reasonable basis to refuse leave over the Christmas period, even if Mr Rozario had an entitlement under the NES.

[56] Whilst Mr Rozario was within his rights not to resign, he was clearly advised before he departed Australia that a decision to take his trip and not to attend for work would have consequences, most likely termination. On 11 December 2018 he was formally advised of the potential for termination, however by that time Mr Rozario had “rolled the dice” and was in India.

[57] Mr Rozario’s failure to attend for work in these circumstances was a valid reason for dismissal.

Notification of valid reason - s.387(b)

[58] Mr Rozario was on notice of the likelihood of being dismissed if he failed to attend for work after the meeting on 5 December 2018. On 18 December 2018 Mr Rozario was advised that he had been dismissed for failing to attend for work.

Opportunity to respond - s.387(c)

[59] Mr Rozario was put on notice about his dismissal on 11 December 2018 by email and responded by email about the proposed termination on 16 December 2018.

Any unreasonable refusal by the employer to allow Mr Rozario to have a support person present to assist at any discussions relating to dismissal - s.387(d)

[60] No request was made, however the manner in which the communications were conducted (by email) did not facilitate the involvement of a support person.

Warnings relative to unsatisfactory performance - s.387(e)

[61] There were no prior warnings regarding satisfactory performance.

Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)

[62] Dnata employs 1,700 persons. It was not contended that they do not have dedicated human resources support.

Other matters considered relevant - s.387(h)

[63] I have taken into account the personal circumstances of Mr Rozario and the impact of the dismissal on him.

Conclusion

[64] The Explanatory Memorandum to the Act¹⁴ explains the approach of the Commission in considering the elements of s.387:

“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”

[65] In Byrne and Frew v Australian Airlines Pty Ltd,¹⁵ the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[66] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Mr Rozario’s employment was not harsh, unjust or unreasonable.

[67] An Order 16 reflecting this decision will be issued.

COMMISSIONER

M Sullivan (United Voice) on behalf of the Applicant.

M Procter (of Counsel) on behalf of the Respondent.

Hearing details:

2019.

Adelaide.

21 March.

Printed by authority of the Commonwealth Government Printer

<PR708106>

 1   PN645-653.

 2   Witness Statement Exhibit A1, Supplementary Statement Exhibit A2, Payslips Exhibit A3.

 3   Exhibit R1.

 4   Exhibit R2.

 5   Exhibit R3 and R4.

 6   Exhibit R6 and R7.

 7   Exhibit A5.

 8   Exhibit A1, Attachment A13.

 9   PN426.

 10   PN417.

 11   PN419.

 12   PN268-269.

13 (1995) 62 IR 371 at 373.

¹⁴ Explanatory Memorandum to the Fair Work Bill 2008.

15 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24.

 16   PR708107.