Thomas Salpietro v Deus Qld Pty Ltd T/A Zambrero, Camp Hill

[2020] FWC 2672

[2020] FWC 2672

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thomas Salpietro
v
Deus QLD Pty Ltd T/A Zambrero, Camp Hill
(U2020/608)

COMMISSIONER SIMPSON BRISBANE, 21 MAY 2020

Application for an unfair dismissal remedy.

[1] Mr Thomas Salpietro has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Deus QLD Pty Ltd T/A Zambrero, Camp Hill (the Respondent).

[2] In the Form F3 – Employer Response to unfair dismissal application, the Respondent objected to the application on the basis it had complied with the Small Business Fair Dismissal Code.

[3] The matter did not settle at conciliation and was allocated to me. I issued directions for the filing of material, and the matter was listed for Hearing by telephone on 11 May 2020.

[4] The Respondent submitted it is a small business employer that had fewer than six employees at the relevant time of Mr Salpietro’s dismissal. It said this included one part-time, one full-time and three casual employees. Mr Salpietro did not dispute that the Respondent was a small business for the purpose of the Act.

Summary Dismissal

[5] The Small Business Fair Dismissal Code provides the following:

“Summary Dismissal

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. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

[6] The Respondent submitted Mr Salpietro was summarily dismissed, as it reasonably believed his conduct on 3 January 2020 was sufficiently serious enough to justify immediate dismissal.

3 January 2020

[7] The Respondent submitted that on 3 January 2020, Mr Salpietro was scheduled to commence work and open the shop at 9:00am, however he failed to show up for his shift.

[8] The Respondent submitted that as a result of Mr Salpietro’s failure to show up for the opening shift, the store lost $1000 sales that day. Ms Megan Brusensky, a Director of the Respondent, said it was a Friday, which are one of the store’s busiest days, and the store did not open until 1.30pm. Ms Brusensky said this meant missing the morning and lunch trade. Ms Brusensky said she believed this resulted in serious misconduct and justified immediate dismissal.

[9] Mr Salpietro did not dispute that on 3 January 2020, he was rostered to work from 9:00 am to 2:00 pm. Mr Salpietro submitted he misread the roster and thought he was working from 5:30pm to 9:30 pm on that day.

[10] Mr Salpietro submitted that morning he received a phone call from Mr Ian Brusensky, a Director of the company, asking where he was and why he had not opened the store. Mr Salpietro submitted he explained he thought he was rostered to start at 5:30pm until 9:30pm. Mr Salpietro said Mr Brusensky verbally abused him and hung up.

[11] Mr Salpietro accepted he made a “huge mistake,” but said as soon as he got the phone call from Mr Brusensky he immediately made his way into store. He said he was not sure about the $1000 but he simply mis-read the roster and thought he was starting at 5:30pm. He said he offered to make up for his mistake by coming in and helping in the afternoon.

[12] Mr Salpietro said he did not actually go into work, because he got the text from Ms Stacey Fulton, the store manager at 2:30pm saying he was dismissed. Mr Salpietro said the text message said words to the effect “Hey Tom it’s really unfortunate what happened this morning, but unfortunately we do not wish to continue with your employment. Please return your items.”

[13] Ms Brusensky, said Mr Salpietro had organised a shift swap with another staff member, but Mr Salpietro failed to show up and that there are text message records of this. Mr Salpietro accepted he had arranged to swap shifts with another staff member “Sophie” about a week earlier on 23 December. Mr Salpietro accepted he told Stacey Fulton, who approved of the swap and updated the roster. Mr Salpietro accepted that he just forgot.

[14] The Code provides that serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. I am not satisfied that Mr Salpietro’s misconduct was serious enough that is was reasonable for the Respondent to form the view immediate dismissal was justified.

Other Dismissal

[15] The Small Business Fair Dismissal Code also provides:

“Other Dismissal

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.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

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. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.”

[16] Mr Salpietro submitted that the SBFDC dealing with other dismissals was not satisfied because there was no valid reason, he was not given a reason for why he was at risk of being dismissed, and because he was not warned he was at risk of being dismissed and was not given an opportunity to respond or an opportunity to improve his performance.

[17] I am satisfied from the evidence, which will be addressed in greater detail below, that the Respondent did not give Mr Salpietro the reason he was at risk of being dismissed or warn him that he was at risk of being dismissed without improvement. On that basis the SBFDC does not apply and it is necessary to determine whether the dismissal was unfair in accordance with s.387 of the Act.

Was there a valid reason for dismissal?

[18] Mr Salpietro submitted there was no valid reason for his dismissal and that his mistake with the roster on 3 January was a once-off error. He submitted the dismissal showed no professionalism and respect for his two years working for the employer.

[19] The Respondent put forward a number of reasons as to why Mr Salpietro was dismissed.

Stolen Food

[20] The Respondent submitted that Mr Salpietro did not pay for his food on more than one occasion. Mr Sam Sing, Supervisor, gave evidence for the Respondent that on “two or three occasions” Mr Salpietro would eat food and not pay for it.

[21] In his witness statement, Mr Sing put that Mr Salpietro was:

“Caught stealing food on shift and when I confront him then he paid: reported 2 x Friday nights between 11/11 and 24/12 and this is reported on the daily reconciliation sheets as well.”

[22] In his oral evidence, Mr Sing said on a Friday three or four weeks’ before he was dismissed, Mr Salpietro took bottles of soft drink from the fridge without paying for them. When asked if he could be more specific about this Mr Sing said he could not recall. Mr Salpietro accepts he took drinks from the cold room but that he did pay for them.

[23] When asked why he formed the view Mr Salpietro did not pay for the drinks, Mr Sing said he would find drinks out the back of the store when Mr Salpietro worked, and because there were no receipts printed there was no evidence Mr Salpietro paid for the drinks.

[24] Mr Sing said there is a policy that if a staff member takes food from the store, they must make a written note, but Mr Salpietro never did this. Mr Salpietro said he was aware that there was a requirement of staff to write down when food was taken, but only if a staff discount was used. He accepted he did not do this for the drinks but said this was because the 20% discount did not apply to drinks.

[25] Ms Brusensky and Mr Sing accepted that the discount did not apply to drinks. Ms Brusensky said despite the fact no discount was applied, staff should still write down when they take items, so the store knew the staff member had paid for them. Mr Salpietro gave evidence this was not what was said in training. Ms Brusensky said there was nothing in the training to suggest the requirement was different with drinks.

[26] Mr Sing also gave evidence that after making food for himself, Mr Salpietro failed to pay for it. He said that he noticed Mr Salpietro’s card had declined, and it was not until Mr Sing raised it with Mr Salpietro, that Mr Salpietro actually paid for the food.

[27] Mr Salpietro said he was under the impression he paid for the food and didn’t realise it didn’t go through. He said it was not his intention to steal. Mr Sing said it was Mr Salpietro’s responsibility to ensure all card transactions go through, including his own.

Pausing Uber

[28] The Respondent submitted Mr Salpietro took it upon himself to pause Uber during the busiest hours of trade for any time between 30 minutes to two hours. The Respondent submitted Mr Salpietro would only do this when the supervisor was not present, and he was working with another level one staff member.

[29] The Respondent submitted it only discovered this from reports from Uber as it had noticed loss of sales of around $700-1000 per week and that this was attributable to Mr Salpietro.

[30] Ms Brusensky said she was able to align the Uber reports with Mr Salpietro’s shifts as evidence that it was Mr Salpietro pausing the Uber. Ms Brusensky accepted there was another staff member on shift with Mr Salpietro, but that he was junior to Mr Salpietro and wouldn’t know how to pause Uber.

[31] Mr Salpietro argued that the $700-$1000 a week could not possibly be solely attributed to 30 minutes twice a week where he paused the Uber, and that it would be a result of all staff doing the same thing.

[32] Ms Brusensky said there were allowances for pausing Uber for short periods for example, toilet breaks, however the reports showed Mr Salpietro paused the Uber during busy periods including Saturdays for 30 or 45 minutes. She said there was an occasion where he paused it for two hours. Mr Salpietro said he definitely did not pause Uber for two hours, and that he would have done it for 10-20 minutes at most.

[33] The parties agreed that there was a note sent to staff about pausing Uber. Ms Brusensky also said Mr Salpietro was spoken to on the phone by either Mr Sing or Ms Fulton but could not remember which one. Mr Salpietro said he could not remember who it was but conceded he was likely warned verbally over the phone individually.

[34] The Respondent submitted this was a gross misconduct and caused great financial hardship for the business. The Respondent submitted it took a while to work out as Mr Salpietro “was quite sneaky about it”.

[35] Mr Salpietro said he was not the only staff member that used to pause Uber during busy periods. Mr Salpietro said he wouldn’t know how to do it without the Supervisor, Mr Sing, showing him how to do it. Ms Brusensky said no staff member should have been doing it. Mr Salpietro said there was a culture that all staff would pause Ubers during busy times.

[36] When asked if there was any evidence that Mr Salpietro continued to pause Ubers after he was warned, Ms Brusensky said there was not.

Disrespectful behaviour

[37] The Respondent submitted Mr Salpietro would consistently disrespect and argue with his supervisor on shift in front of customers and other staff. Ms Brusensky could not give direct evidence on examples of this.

[38] Mr Sing provided in his witness statement that Mr Salpietro was “Never ready to follow the instruction and sometimes argues with me for silly things.”

[39] When asked to elaborate on this during cross-examination, Mr Sing said if Mr Salpietro missed something when completing a cleaning task, Mr Sing would bring it up with Mr Salpietro and Mr Salpietro would argue with him. Mr Salpietro said he would never deliberately not clean things he was asked to do. He accepted sometimes he may have accidentally missed things.

[40] The Respondent submitted that towards the end Mr Salpietro showed no respect for the business policy. It said he would go against the rules set in place and take it upon himself to give out discounts to staff and family whist they were not on shift and went as far as to call out his supervisor in front of a staff member visiting the store with parents saying, “give them a discount Sam don't be tight.” The Respondent submitted this goes against store policy and shows the disrespect Mr Salpietro has for the business and his supervisor.

[41] Mr Salpietro said on this occasion, a staff member came into the store with their family. He said another staff member who was working, Emma, asked whether she could give discounts to staff. Mr Salpietro said he thought because it was only $2 it would be okay. He said Mr Sing asked whether they could do that, and that Mr Salpietro said to Mr Sing, “be nice”. Mr Salpietro denied calling Mr Sing “tight”.

[42] Mr Salpietro agreed it was not really appropriate to give out discounts and denies it was on multiple occasions. He said he never gave discounts to his own family. Ms Brusensky said despite it being only $2 it was still theft.

[43] Mr Sing gave evidence that on this day a staff member came in with their Dad. He said that as the staff member was not working he did not think the discount was appropriate. He said Mr Salpietro said to him “be nice”.

Food safety breach

[44] The Respondent put forward that Mr Salpietro was observed on a closing shift taking short-cuts which would lead to a major food safety breach. It was put that Mr Salpietro was removing meat bains from the hot plates for extended periods to clean so he could get out of work as early as possible. It was put that Mr Salpietro would also advise other staff it was fine to do so when he had no authority to do so. The Respondent could not advise who from the company could support this evidence and did not call anyone to speak to these propositions.

[45] Mr Salpietro said that it was not actually him that removed the meat bains. He said there was video footage to show it was another staff member, Josh. He said he could not remember his last name. He said he did not tell Josh to do this.

[46] Ms Brusensky said Mr Salpietro was warned that if he did this again his employment would be terminated.

[47] Ms Brusensky gave a number of other reasons including that Mr Salpietro failed to show up for multiple shifts, would often come to work with poor appearance, would not wear the uniform correctly or would prioritise talking to friends over doing work.

Uniform issues

[48] Ms Brusensky said Mr Salpietro would never wear his hat. Mr Salpietro accepted he was asked to wear the hat, about once a month by Mr Brusensky, between 5-10 times over two years. He said the supervisor Mr Sing never wore his hat either, and said he followed what Mr Sing did. Mr Salpietro said he and Mr Sing were the only male staff members so were the only ones required to wear a hat. Ms Brusensky accepted that on some occasions Mr Sing did not wear a hat despite being asked.

[49] Mr Sing’s evidence was that he always wore a hat.

Being late

[50] Ms Brusensky said in addition to the incident on 3 January, Mr Salpietro was late to his shift on a previous occasion being 19 December. Mr Salpietro did not dispute this. Mr Salpietro said he had agreed to cover another staff member’s shift and accepted he forgot about it. Ms Brusensky said he was late by about 15 minutes. Mr Salpietro said it was probably 5-10 minutes.

Giving friends priority over customers

[51] Mr Salpietro disputed he gave his friends priority over customers if they came into the store. He said his friends rarely came to the store, but when they did he would not give them priority. Ms Brusensky said she could see images from cameras to her mobile phone, that gave the impression Mr Salpietro was talking to his friends. She accepted she could not hear audio of these conversations.

Notified of the Dismissal

[52] Mr Salpietro received a text message from the Store Manager, Stacey Fulton, advising his employment had been terminated. I am satisfied Mr Salpietro was notified of his dismissal.

Opportunity to Respond

[53] Mr Salpietro said he was not given a chance to respond properly as Mr Brusensky hung up abruptly. There was no discussion of dismissal during the call. Mr Salpietro also he attempted to contact Stacey Fulton via phone call every day for the following 4 days after receiving the dismissal text message, however his calls were avoided, and my voicemails were not returned.

[54] I am satisfied Mr Salpietro was not afforded an opportunity to respond. However, it is necessary to determine whether this failure to allow Mr Salpietro an opportunity would have affected the outcome.

[55] I am of the view that had Mr Salpietro been given more opportunity to respond, it is unlikely he would have provided the Respondent with any reason sufficient enough to change the Respondent’s decision to terminate his employment.

Warned of performance issues

[56] Ms Brusensky said in relation to the food safety incident she advised Mr Salpietro this was a gross misconduct and that he would be fired if he did it again. Ms Brusensky said Mr Salpietro had been there long enough to be well aware of these policies. Mr Salpietro said he received one official warning (1st and last written) whilst employed at the Respondent.

[57] Mr Salpietro also accepted it was likely he was warned verbally about pausing Uber.

[58] Ms Brusensky also said Mr Salpietro was sent “a number of warnings” in relation to the other performance issues, however could not provide any evidence of this. Mr Salpietro submitted that at no point was he informed that his employment was at risk due to his performance at work. He submitted he was therefore unaware his employment was at risk and was not given a reasonable chance to rectify the problem.

[59] I am not satisfied Mr Salpietro was warned of his performance issues for all of the reasons the Respondent has ultimately relied on as valid reasons for dismissal. It does not appear as though apart from the incident involving the food safety, that Mr Salpietro was warned his employment was at risk of being terminated.

Refusal of support person

[60] There is no evidence Mr Salpietro was refused a support person however it is also clear given the way Mr Salpietro was terminated he did not have an opportunity to request that a support person be present to assist in discussions relating to his dismissal.

Size of employer's enterprise & human resources specialists

[61] It was not disputed the Respondent was a small business.I am satisfied the Respondent did not have access to Human Resources specialists, and this has impacted the way in which the Respondent ultimately handled Mr. Salpietro’s dismissal.

Other relevant matters

[62] I do not find there are any other matters relevant to consider for this application.

Consideration

[63] As outlined above, the Respondent provided a list of reasons as to why Mr Salpietro was dismissed. I am not satisfied that all of these reasons provided a valid reason for dismissal.

[64] I am not satisfied that there is enough evidence to support the submission that Mr Salpietro was taking food without paying for it. Mr Sing’s evidence was vague at best in relation to these accusations and I am not satisfied it can be made out on the evidence. I am also not satisfied there is enough evidence to suggest Mr Salpietro would prioritise friends over customers, or that he was disrespectful to management as this evidence was also vague.

[65] I am also not satisfied on the evidence that Mr Salpietro pausing the Uber in itself provided a valid reason for dismissal. The evidence does not demonstrate that the losses in sales as reported by Uber can solely be attributed to Mr Salpietro, and I accept that it is likely other staff were also involved. There is nothing on the evidence to suggest that once told he was not to do this, that Mr Salpietro continued to pause orders. There is also no evidence to suggest Mr Salpietro was in breach of any food safety procedures after being warned two years ago.

[66] However, I find that Mr Salpietro being late on two occasions resulting on the second occasion in significant loss of income for the Respondent in combination with his continued disregard for lawful directions given to him by Mr Brusensky provided the Respondent with a valid reason for dismissing Mr Salpietro under s.387(a).

[67] I am of the view that Mr Salpietro’s performance and conduct in relation to these issues support the Respondent’s submission that Mr Salpietro had a lack of respect for the procedures put in place or for the job itself.

[68] The fact that Mr Salpietro did not show up for his shift on 3 January which resulted in the loss of half a days’ sales for the Respondent, only a few weeks after he was late to a previous shift, in my view shows Mr Salpietro’s lack of care and responsibly for the job. It is not satisfactory that Mr Salpietro simply forgot, not once but twice considering the consequences of his actions.

[69] Further, Mr Salpietro admitted he was told between 5 and 10 times by no less than a director of the company to wear his hat, however he continued to ignore this direction on multiple occasions. Regardless of whether other staff members were doing so, Mr Salpietro ought to have followed the multiple directions given to him by the owner of the business.

[70] I am satisfied the totality of issues with Mr Salpietro’s performance and conduct provided the Respondent with a valid reason to dismiss him.

[71] In relation to s.387 (c) and (d) it is clear there are some procedural flaws in the way in which Mr Salpietro was terminated. There are a number of previous decisions of this Commission that have criticised employers who had terminated employees by text message and I repeat those criticisms here. It is almost never appropriate to terminate an employee by text message unless there is some extenuating circumstance that would make it so. There was no such circumstance here. However, despite there being deficiencies in the procedures followed and the manner of dismissing Mr Salpietro, taking into account all of the circumstances, I find that overall the process was not so procedurally flawed as to have caused such a significant level of prejudice to Mr Salpietro that it would outweigh the existence of a valid reason for termination on the particular facts of this case.

[72] In relation to wearing the hat, I am of the view that because Mr Salpietro was not warned that his employment was in jeopardy if he did not wear one does not ultimately result in Mr Salpietro’s dismissal being unfair. As highlighted above, Mr Salpietro was made aware on numerous occasions that the expectation of him was to wear the uniform correctly.

[73] In relation to turning up late to his shifts, I am of the view that given the Respondent is a small business with no dedicated HR department, it should be afforded some latitude for its failure to explicitly warn him his employment would be in jeopardy if he did not turn up for a shift. As a casual working for a small business, Mr Salpietro ought to have known that failing to show up for a shift, which ultimately lost the business significant amounts of money, could likely lead to his dismissal.

[74] I have taken into account all of the matters that I am required to in accordance with s.387. After weighing all the evidence and for reasons set out above, I have concluded that Mr Salpietro’s dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed.

COMMISSIONER

Appearances:

Mr Thomas Salpietro appearing on his own behalf.
Ms Megan Brusensky appearing on behalf of the Respondent

Hearing details:

2020,
Brisbane
May 11

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