Tsiamas, Arthur v ALH Group Pty Ltd
[1997] FCA 591
•20 JUNE 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - termination of employment - misconduct - responsibility of head chef for standard of food and for cleanliness and hygiene
Workplace Relations Act 1996 ss.170DE(1), 170EA
CASES:
Bi-Lo Proprietary Limited v Hooper (1994) 53 IR 224
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Kerr v Jaroma Pty Ltd (IRCA, unreported, Marshall J, 7 October 1996)
Nettlefold v Kym Smoker Limited (1996) 69 IR 370
Thomas v Ralph Lynch trading as Bellingen Grocery (IRCA, unreported, Wilcox CJ, 20 December 1996)
Westen v Union Des Assurance De Paris (IRCA, unreported, Madgwick J, 20 February 1997)
Sangwin and Imogen Pty Ltd (IRCA, unreported, von Doussa J, 8 March 996)
Imogen Proprietary Limited v Sangwin (1996) 70 IR 254
TSIAMAS -v- ALH GROUP PTY LTD
No. VI-2562 of 1996
Ryan JR
Melbourne
20 June 1997
FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-2562 of 1996
B E T W E E N :
ARTHUR TSIAMAS
Applicant
AND
ALH GROUP PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 20 June 1997
THE COURT ORDERS:
That the application be dismissed.
FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-2562 of 1996
B E T W E E N :
ARTHUR TSIAMAS
Applicant
AND
ALH GROUP PTY LTD
Respondent
Before: Ryan JR
Place: Melbourne
Date: 20 June 1997
REASONS FOR JUDGMENT
(Delivered Ex Tempore)
THE APPLICATION
The Applicant was head chef at the Ferntree Gully Hotel from 31 October 1995 until 9 October 1996. He has applied for relief in respect to the termination of his employment by the Respondent on 9 October 1996. He seeks reinstatement. The Respondent is a large national hotel operator responsible for over 100 hotels. Mr Shaw appeared for the Applicant and Mr Klemens for the Respondent.
THE RESPONSE
The Respondent concedes that the employment was terminated at the initiative of the employer, and asserts that the termination was based on gross misconduct by the Applicant in circumstances in which the employer could not reasonably be expected to give the employee an opportunity to defend himself against the allegations made. In any event, the Respondent also asserts that the Applicant was given an opportunity to defend himself against the allegations and that the termination was for valid reason connected with the employee's conduct, and was a lawful termination.
THE EVIDENCE FOR THE RESPONDENT
Mr Klemens led evidence from the present manager of the hotel, Ms Jennifer Shaw, the Respondent's most senior manager with over-all responsibility for food preparation, design and hygiene; the Group Executive Chef, Mr Graeme Asbury; the present area manager for the area including the Ferntree Gully Hotel, Mr Simon Gardner; a former chef at the hotel now a chef at the Prince Mark Hotel, Mr Steven Beagley and the Respondent's Human Resources Officer, Ms Shirley Farrell. It is not necessary to go into the detail of the evidence led on behalf of the Respondent or even summarise all aspects of that evidence.
Ms Shaw gave evidence of:
a staff meeting on 1 February 1996 - the minutes are exhibit R2
a breakdown in working relationships between the Applicant and all subordinate staff in the kitchen and bistro areas
a petition from five kitchen staff and seven bistro staff and a bottle shop attendant, which requested the termination or transfer of the Applicant from his position as head chef
a meeting on 19 August 1996 at which she and Product Specialist, Gaming, Mr Chris O'Dwyer, discussed with the Applicant a threat by all kitchen staff to walk off the job because of unsatisfactory working conditions for which they held the Applicant responsible
written advice to the Applicant from Mr O'Dwyer on 20 August 1996 in which the Applicant was:
(a)informed that Ms Shaw and Mr O'Dwyer had found sufficient consistency amongst complaints received to warrant serious concern about kitchen management practices at the hotel
(b) advised that his performance as head chef would be monitored with an interim appraisal to be conducted by 30 August 1996
(c) provided with a job description for the position of head chef
(d) warned that while he would be given every opportunity to demonstrate ability to perform the job as outlined, any deficiency in performance, breach of Health Act Regulations or ALH Group code of conduct would be addressed with disciplinary action
Ms Shaw also gave evidence of
diary notes of certain occasions when food which was bad and unfit for consumption was made available, allegedly at the direction of or under the supervision of the Applicant
constant complaints by regular customers as to the unsuitability of food
personal observations and complaints by staff in respect of inadequate personal hygiene on the part of the Applicant
It is unnecessary to go into detail but this was evidence of serious defects in personal hygiene on the part of a person occupying a crucial and responsible position in food preparation. The evidence was confirmed by the evidence of Mr Steven Beagley.
Mr Asbury gave evidence of his inspection between 8 am and 11 am on 4 October 1996 of the front-of-house and back-of-house kitchens, the refrigerators, the freezers, the dry stores and Garfield's Restaurant, a restaurant attached to the adjoining motel.
Mr Asbury in his sworn evidence and in the detailed written report of inspections, exhibit R9, outlined numerous breaches of the Food Premises Code issued by what was then the Health Protection Section of the Public Health Branch of the Victorian Department of Health and Community Services.
Mr Gardner gave evidence of
a briefing by his predecessor as area manager (at that stage Mr O'Dwyer)
arranging for Mr Asbury to inspect the kitchens and related areas on 4 October, and accompanying Mr Asbury on his inspection
action taken during the inspection to immediately remedy such serious breaches of the Food Premises Code as might result in the immediate closure of the hotel if brought to the attention of a health inspector
action taken within a few days by a professional external company to clean the kitchens, stores and food preparation areas
his involvement in and conduct of an interview of the Applicant on 9 October 1996
his decision, after discussion with Ms Shaw and Ms Farrell, to immediately terminate the Applicant's services as head chef
In the course of his evidence, Mr Gardner stated that he went through Mr Asbury's report with the Applicant point by point, and that the Applicant did not respond to some aspects, and gave unsatisfactory responses to other points. He recalled responses by the Applicant to the effect that he was not responsible for some matters, and had directed staff to perform other tasks associated with cleanliness and food protection and storage. Mr Gardner was asked whether he could recall any explanation made by the Applicant as to what he, the Applicant, did when staff did not carry out the tasks as directed by the Applicant. Mr Gardner stated that the only response he could recall from the Applicant to that issue was a statement by the Applicant that he “could not work with the kitchen staff”, and that “they all should be sacked”.
Mr Gardner stated that, in view of the lack of satisfactory explanation to the numerous defects identified by Mr Asbury and put to the Applicant, and because of the severity of some of the defects identified, he had no option but to terminate the employment of the Applicant.
Mr Gardner said:
“I expected the Applicant to explain why the kitchen was as Mr Asbury found it. I expected him to take responsibility (for these things) and to do them and get them done but at no point was that the case. There was a continued denial of responsibility. If he asked someone to do these things and they did not do it, he had to get those things done.”
Mr Gardner included the following as grounds for the termination
lack of answers
serious nature of defects
no ownership
no responsibilities
He stated:
“The results of the report were so severe, the breaches of the Act that had happened, the lack of any response from the Applicant, left no alternative but to terminate him. We could then employ somebody who could do the job.”
Ms Farrell gave evidence of her involvement in the interviews with the Applicant on 19 August 1996 and 9 October 1996. She also gave evidence from notes taken by her during the interview on 9 October 1996 and indicated that the Applicant accused others of incorrect practices in respect of food storage and claimed that he could control the staff but was not given authority. She claims that the Applicant admitted that on occasions he had refused to direct staff and had admitted that he refused to assist with cleaning. I note that the Applicant himself, in his own evidence, conceded that certainly on a number of occasions he refused to assist with cleaning.
Ms Farrell, in her notes, recorded at the time of the interview, listed a number of what she described as “excuses given” on 9 October 1996 by the Applicant.
The “excuses given” were recorded as follows
others responsible
equipment unsatisfactory
quote ‘He can’t cook water’
staff don’t listen
manager won’t sack staff
short staffed
under too much pressure
has psych problem due to stress
admitted he refused to direct staff to assist with cleaning
Mr Beagley gave unfavourable evidence in respect of the Applicant's personal hygiene. He claimed that on at least a dozen occasions he told the Applicant that the food was off. He also gave specific evidence in respect of fish and potato pie which smelt bad and was unfit for human consumption.
On 10 October 1996 Mr Gardner signed a letter to the Applicant which was stated as “serving to explain the reasons why the employment was terminated”. He enclosed a cheque for $3250 which comprised salary for 15.2 hours, worked on 7 and 8 October, two weeks salary in lieu of notice and 131.28 hours pro rata annual leave.
The letter reads as follows
“Dear Arthur
Further to a meeting on 9th October 1996, this serves to explain the reasons why your employment at the Ferntree Gully Hotel was terminated.
On the 19th of August 1996 a meeting was called between Chris O’Dwyer, Shirley Farrell, Jenny Shaw and yourself. On this date you were given the opportunity to respond to allegations made by kitchen staff regarding hygiene, serving contaminated foods and substandard kitchen management practices.
The outcome of the meeting was to provide you with a clearer job description and an opportunity to demonstrate your abilities to perform the duties of Head Chef. It was also made clear in an accompanying letter that any breach of the Health Regulations would not be tolerated.
Your performance was subsequently monitored by Hotel Manager, Jenny Shaw. As a result of a change in area managers at the Ferntree Gully Hotel, Mr Simon Gardner requested an inspection and full report of kitchen hygiene and food storage practices at the Ferntree Gully Hotel.
Mr Graeme Asbury, ALH Group Executive Chef conducted an inspection of the kitchen, including food storage areas, on the 4th of October, 1996. The subsequent report, of which you were given a copy, itemised serious breaches of acceptable storage procedures and kitchen hygiene.
At our meeting on the 9th of October, 1996, you were given the opportunity, but failed to provide, explanations as to why these breaches had occurred.
Your demonstrated performance as Head Chef was found to be unsatisfactory. These serious and extreme breaches in kitchen hygiene and the potential danger to customers through cross - contamination of food, left us with no alternative but to terminate your employment.
Regards
Simon Gardner
Area Manager”
The Court considers the letter accurately summarises the reasons for the termination of the Applicant's employment.
THE EVIDENCE OF THE APPLICANT
The general tenor of the evidence of the Applicant was that he was a head chef of 30 years experience who had been employed at the hotel by the then manager, Mr Bourke. He had known Mr Bouke for 25 years and worked for him for about 10 years and that Mr Bourke was a friend but that in business there is no friendship and Mr Bourke was a professional manager.
When he started at the hotel he had two kitchenhands and six chefs. He allocated the jobs and discussed allocation of work with staff. He said
“The first two or three months were okay but afterwards I find out a few people racist to me and working against me.”
He described the meeting with staff on 1 February 1996 as follows:
“I had to call the meeting. There was backstabbing against me. I find out who they are. Jenny Shaw took the notes, she was at the meeting.”
After the meeting on 1 February 1996 (according to the Applicant) “things were better for a little while” and then the relationship with the kitchen staff “lapsed again”.
The Applicant placed the blame for the very poor working relationships between himself and his staff on Ms Shaw. Even when she was assistant manager the Applicant claims that she bore the overall responsibility to provide him with adequate staff and to support him in disciplining staff and indeed in supporting the termination of staff in cases in which this was sought by the Applicant.
The Applicant claimed that Mr Bourke, as manager, was occupied with other matters and he implied that Ms Shaw had the responsibility to support him and failed to do so.
The Applicant faces great difficulties with his evidence. At various times he made assertions which conflicted with certain aspects of the evidence of each Respondent witness. There were conflicts with different aspects of the evidence of each Respondent witness and the conflicts were numerous.
His evidence was also inconsistent and he made many assertions which were not put to relevant witnesses. Some, perhaps most of the assertions, were not provided to his counsel. It is possible that his counsel did not receive instructions in relation to any of these assertions but, be that as it may, none of these assertions were of assistance to the Applicant in the pursuit of his application. In every case in which his evidence conflicts with that of the five Respondent witnesses, I prefer the evidence of the latter.
SUBMISSIONS FOR THE APPLICANT
However, as I understand the submission of counsel for the Applicant, he contends that even if I accepted the version of events put forward by the Respondent, the application should still succeed and the Applicant should be reinstated to employment somewhere in the ALH group of hotels. He contends that there is no valid reason for termination in terms of Selvachandran v Peteron Plastics (1995) 62 IR 371 and Kerr v Jaroma Pty Ltd (IRCA, unreported, Marshall J, 7 October 1996) and that it is absolute nonsense to suggest that the indisputably parlous state of the kitchen and related storage areas can be visited on the Applicant.
His words were that:
“To suggest that with such a large management group that, in the hotels, the buck stops at the executive chef, is absolute nonsense.”
FINDINGS
I do not have any difficulty with that proposition. The responsibility for complying with the Health Act and Regulations and with the Food Premises Code does not stop with the head chef in any hotel. The final responsibility and the liability for these matters lies with the licensee of licensed premises.
That does not mean a crucial employee, a head chef, does not have certain responsibilities. The termination of the Applicant was primarily, if not exclusively, based on his failure to ensure through his own efforts and those of his staff that the hotel complied with the Health Act and Regulations, and provided appropriate food and services to hotel diners. Counsel for the Respondent asserts - and I agree - that the state of the kitchens as found by Mr Astbury (and other matters) constituted serious misconduct by the Applicant as an employee.
He cited Bi-Lo Proprietary Limited v Hooper (1994) 53 IR 224 at 229 as follows:
“Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that in so far as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done these things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at the time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal.”
Von Doussa J referred to Bi-Lo in Sangwin and Imogen Proprietary Limited (IRCA, unreported, 8 March 1996) as follows at 11 and 12.
“Section 170DE(1) should not be construed so as to exclude from the notion of a valid reason an honest belief held on reasonable grounds by the employer after an inquiry of the type envisaged in Bi-Lo Proprietary Limited v Hooper that a state of fact exists which justifies termination of the employment. In my opinion if the employer honestly believes on reasonable grounds after sufficient inquiry that the employee has been guilty of serious misconduct, a valid ground within the meaning of section 170DE(1) exists for terminating the employment of the employee.”
The Full Court in Imogen Proprietary Limited v Sangwin (1996) 70 IR 254 at 259 endorsed such an approach although the appeal there was on a different issue.
At the conclusion of the hearing yesterday I found that there were clear, demonstrable, sound, well founded and objectively defensible reasons for the termination of the Applicant on 9 October 1996. In my view the reasoning in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 in Kerr v Jaroma Pty Ltd (IRCA, unreported, Marshall J, 7 October 1996), in Nettlefold v Kym Smoker Limited (1996) 69 IR 370, in Thomas v Ralph Lynch trading as Bellingen Grocery (IRCA, unreported, Wilcox CJ, 20 December 1996) and in Westen v Union Des Assurance De Paris (IRCA, unreported, Madgwick J, 20 February 1997) all support such a finding.
The order of the Court is that the application be dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
I certify that this and the preceding 8 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 1 July 1997
Counsel for the Applicant: Mr B Shaw
Representative for the Respondent: Australian Hotels &
Hospitality Association
Counsel for the Respondent: Mr Klemens
Date of hearing: 18 and 19 June 1997
Date of judgment: 20 June 1997
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