Vasiljevs v Imprimater Pty Ltd
[2016] FWC 169
•22 January 2016
[2016] FWC 169
DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| Leonard Vasiljevs | |
| v | |
| Imprimater Pty Ltd T/A Metro Press | |
| (U2015/5706) | |
| COMMISSIONER RIORDAN | PERTH, 22 JANUARY 2016 |
| Application for relief from unfair dismissal. |
[1] This decision relates to an application by Mr Leonard Vasiljevs for an unfair dismissal
remedy against Imprimater Pty Ltd trading as Metro Press (Metro).
[2] Mr Vasiljevs was employed on 6 May 2013 as a qualified Printer. He is an
experienced Printer having worked in both the United Kingdom and Australia. He was
dismissed by Metro on 22 May 2015.
[3] Mr Vasiljevs represented himself in these proceedings and attested to his witness
statement. Metro was represented by Ms Mary Jo Fisher from the Printing Industries
Association of Australia. Mr Mark Rossiter, the Director of Metro gave evidence during the
proceedings.
[4] The matter was heard in Perth on 19 October 2015, with final written submissions
received on 16 November 2015.
[5] It is not in contention that Metro is a small business which employs five employees.
Background
[6] Mr Vasiljevs contended that Metro has deliberately manipulated the employment
relationship to constructively dismiss him on the basis that he required major hip surgery and
would be off work for 6 – 8 weeks.
[2016] FWC 169
[7] Mr Vasiljevs claimed that he had been treated in a different and prejudicial manner
compared to his follow employees.
[8] Mr Vasiljevs submitted that his dismissal was harsh and unfair on the basis that he
was not given a valid reason for his termination or provided with the appropriate level of
procedural fairness during the termination process.
[9] Mr Vasiljevs argued that he repeatedly requested an independent arbiter to assist with
the employment issues that he was experiencing with Mr Rossiter. Unfortunately, Mr
Vasiljevs has confused the meaning and role of an independent support person with that of an
independent arbiter.
[10] Metro submitted that they were bound by and had complied with the Small Business
Fair Dismissal Code (the Code) by giving Mr Vasiljevs multiple warnings, both verbal and
written, in relation to his work performance. Issues of concern in relation to his work
performance include the quality of the printing work produced by Mr Vasiljevs, the failure by
Mr Vasiljevs to maintain a clean and uncluttered work area, the refusal by Mr Vasiljevs to
clean the printing machine each day as requested by Mr Rossiter, the deliberate decision by
Mr Vasiljevs to ignore the direction of Metro to not take personal mobile phone calls during
work time and Mr Vasiljevs refused to work in a team environment.
[11] Metro Press further claimed that Mr Vasiljevs refused to follow lawful instructions
and conducted himself in a belligerent manner towards Mr Rossiter.
Statutory Provisions
[12] The Fair Work Act, 2009, (the Act) prescribes the following:
“385 What is an unfair dismissal A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (d) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
[2016] FWC 169
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code
if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s
employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in
relation to the dismissal.”
“The Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
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.
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.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the
employee can have another person present to assist. However, the other person
cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with
the Code if the employee makes a claim for unfair dismissal to Fair Work Australia,
including evidence that a warning has been given (except in cases of summary
[2016] FWC 169
dismissal). Evidence may include a completed checklist, copies of written warning(s),
a statement of termination or signed witness statements.”
[13] If Metro Press has complied with the Small Business Fair Dismissal Code then the
dismissal of Mr Vasiljevs was not harsh, unjust or unreasonable
1
| [14] | On 16 January 2015, Metro Press issued Mr Vasiljevs with the following letter | : |
“Dear Len
I am providing this correspondence to you in the hope that it will bring to your
attention my concerns with aspects of your performance in the job and make it
.
clear what my expectations are.
You can consider this to be a warning letter concerning the shortcomings in your
performance requiring your immediate attention.
Failure to address these issues will place your employment in jeopardy.
Work area
You will maintain a clean and tidy work area at all times. Personal items are to be
stored off the work area. Ink knives and associated items are to be cleaned and put
away;
wash-trays are to be cleaned at conclusion of each days work.
Used plates put on the pile daily
The machine needs to kept clean particularly the exterior of the press; this can be
done on longer print runs on a continuous basis and at the end of the day.
We are a small team and it is of the utmost importance that all members apply
themselves to ensure a safe, clean and harmonious work environment.
If you observe any items that should be stored, open packs of paper that require
re- packing and labelling empty used boxes that can be flattened and/or discarded
in fact any other items that require putting away or cleaning it is incumbent on you
and the other staff to do it. A “someone else will do it” attitude is unacceptable.
Start and Finish times
Your start time is currently 7am it has been noted that you have been late on
several occasions. Your start time is just that, you are ready to commence the first
job of the day.
I routinely start 90minutes after you and often the press is still being set-up. I have
run Metro Press for 14 years and I have never seen a more regular pattern of slow
commencements. I can only assume that you have to clean up from the previous
[2016] FWC 169day before you can start the current days’ work. I hope the preceding instruction
in relation to a clean work environment will remedy this situation.
Mobile Phone
Your mobile phone will be switched off during working hours; I don’t want to see
you outside on the phone when you should be working as has been observed on
several occasions.
Quality standards
Colour fidelity is a primary concern. Several attempts may be required to
achieve the desired result especially if the customer requires a match to a
previously printed job. Obviously not all jobs will require this level of attention,
you will be told which jobs don’t but the default situation is accurate colour
mixing to the book or sample if required unless instructed otherwise. If for
whatever reason this isn’t possible you are to inform me immediately and a
decision will be made at that point. We have received several complaints and
indeed lost customers over this issue.
Team work
From time to time a casual printer may be required to assist during busy
periods your co-operation and willing assistance is required, I will bring in
outside help whenever it is required dissent and objections to this will not be
tolerated.
Absence from work
Please note that on any future occasion upon which you seek paid sick leave of
any duration, we require you to provide us with a medical certificate verifying
that you were unfit for work during that time. We are then able to proceed to
investigate the veracity of that certificate.
We will meet again to review your performance and conduct in approximately 2
weeks time, am looking for you to satisfactorily perform your job, and conduct
yourself appropriately at work. A failure to do so will place your job with Metro
Press in jeopardy.
I am more than happy to discuss the foregoing so you are clear on my
expectation but on the key issues of your performance what I have set forward is
the very minimum I expect of you in your job at Metro Press.
Yours faithfully
Mark Rossiter”
[2016] FWC 169
2
| [15] | Mr Vasiljevs provided a lengthy response to Metro Press on 18 January 2015 | . I have |
reproduced a number of the relevant sections of this correspondence:
“Dear Mr Rossiter
I am writing in response to your undated warning letter, which you left on my
workstation on Friday…..
…..I find your warning letter interesting, as it coincides with my imminent hip
surgery. Maybe it is pure coincidence, but I feel that you are trying to make
inroads in to terminating my employment at Metro Press, before I have to
undergo surgery…..
…..The issuing of your warning letter also seems to coincide with our dispute about
overtime rates of pay in December…..
Work Area
…..I can certainly ensure that ink knives and wash up trays are cleaned after each
shift. Sometimes, I just forget like we all do from time to time. The casual printer
leaves ink knives and wash up trays uncleaned, I trust you will advise him…..
Mobile phone
…..I consider your request that my mobile phone to be switched off, to be unfair
and impractical. You are aware that, from October 2013, I was diagnosed with
severe osteoarthritis of my left hip and I am now awaiting hip surgery. Healthcare
personnel have and will need to contact me to discuss matters in relation to the
hip surgery.
You are also aware that I record ink-mixing ratios on my mobile phone, which is
obviously work related.
Quality standards
To me, your only concern regarding quality standards is the ink colour consistency.
Countless times you have told me what a great job I have done. You have made
such comments as, “great job mate”, “excellent job” and “bonza”. You know I
pride myself on quality work and you also know the level of attention I attain to
perform a quality printed job, to which I feel you have no complaints there.
In regard to the ink colour inconsistencies, I have tried to address the problem, by
buying ink from different manufacturers and I believe I have tried four
manufacturers to date. The issue seems to arise from either reflex blue or in
particular, process blue inks. The properties in those particular inks are very
strong. A work around, that seems to be acceptable, is a ten percent reduction of
those inks to a mix. We have had past discussions about the ink and what can be
done. I have stated that much of the problem is beyond my control, but you seem
unwilling to accept this. Some customers’ expectations are very high and maybe
Metro Press is not the print company to fulfil their needs. Metro Press does not
[2016] FWC 169work to any industry standard ISO schemes in relation to ink colours. We do not
have adequate ink mixing scales to weigh out very small ink measurements. Again,
I have discussed this with you in the past and you were going to look in to
buying proper Pantone ink scales…..
Team work
…..In response to your request for my co-operation and willing assistance with the
casual printer, well, this is where we hit a stumbling block. As I have mentioned
earlier, I have my concerns about a third party person coming in to do additional
work. I have aired my concerns to you regarding this and I know that you are
not legally obliged to offer me additional hours of overtime, when production
demands this. However, I think I will struggle to actively co-operate and willing
assist the casual printer. This is on the grounds that I think your actions are
unethical, in respect of depriving a permanent member of staff of additional income
and the method of how the casual printer is employed, I do question whether
Mark Potter is officially ‘on the books’ at Metro Press. I do not see the logic in
bringing in another person to pay a similar rate of pay. I have mentioned on
numerous occasions, that I do not mind working overtime and I am willing to do
several additional hours after each normal shift. Why are you not giving me the
opportunity to work this overtime?.....
…..I would also like to place on record, the inefficiencies of the planning of
production…..
…..Over the past six months or so, I have found that your manner has become
more petty and pedantic. On two previous occasions, you have had t o apologise
to me for what you consider to be poor behaviour. You have even been unpleasant
to past and present staff, so I do not believe the way I conduct myself to be a
problem…..
…..I fear your intentions have ulterior motives and I believe that we will be unable
to ‘improve our working relationship without outside intervention. I would like to
find a resolution and I suggest we contact the Industrial Relations department for
advice on how they could mediate…..
Kind Regards,
Len Vasiljevs”
3
| [16] | Metro Press responded to Mr Vasiljevs’ correspondence on 21 January 2015 | in the |
following terms:
“Dear Len
Thank you for your letter of 18 January 2015.
I would be more than happy to meet with you and your support person at any time to
discuss the content of the letter. However, this would only take place were you not to
address the concerns I have raised. Please be assured that your hip operation has
nothing to do with the concerns I have raised and in fact I had completely forgotten
about this issue until you raised it in your letter. Furthermore, your concern that my
[2016] FWC 169
warning letter also coincided with our discussions on overtime rates is also
unfounded. I have reviewed this as you said and I have made good the payment. This
is not in dispute. However, any decisions on overtime and when it is worked, and,
whether I choose to employ a casual during these periods is entirely up to me as the
owner and manager of Metro Press.
In regards to your work area
I will work closely with you in regards to the appearance and clutter in your work
area. I will advise you immediately of any matters I am not happy with so there is no
ambiguity or misunderstanding as to my expectations. I am aware that Mark Potter
also needs to improve in some areas and I have brought these issues to his attention. I
want to make it clear to you that I make the decisions on when and if I bring a casual
printer into the business and any issues I have with him are not your concern. I will
advise you immediately if I have any concerns with you in the area of safety,
cleanliness or team work. I would expect to see my concerns addressed in a positive
way thereafter.
Start and Finish times
I find it hard to believe the reason given by you for your often turning up to work late.
I would like to sit down with you and set forth my expectations in this area including
the wash up timetable and the recording of ink mixing ratios that you are proposing
which is not acceptable to me.
Quality Standards
I acknowledge some of your concerns and have agreed to get more accurate scales. I
will work closer with you on the quality standards but I want you to be clear that my
concerns are not isolated to colour standards alone. We can discuss.
Team work
I would like to make it clear again that my arrangements with the casual printer are
between Metro Press and the casual printer. If you fail to treat the casual printer as a
team member, or fail to follow lawful instructions to cooperate with him your position
here will be in jeopardy.
Absences from work
I accept your comments regarding absences. In regards to inefficiencies I will work
closer with you on addressing your concern. I do not accept your comments about me
being petty or pedantic. As your employer will not be subjected to your argumentative
and recalcitrant attitude when I raise issues of concern with you. In the past I have
been prepared to tolerate your behaviour at times but I am no longer prepared to do
this. I am prepared to work with you on some of your concerns but not all because
they are not your business
[2016] FWC 169
Len, it is of the utmost importance that we improve our working relationship and I
have outlined in this response those areas where I am open and responsive to
addressing the issues you have raised. However, if I give you a lawful instruction I do
not expect to have to debate the issue with you just to get what I have asked to be
done completed.
I look forward to meeting with you to discuss my reply further if any part of it is not
clear.
Regards
Mark Rossiter”
4
| [17] | On 22 May 2015, Metro Press issued Mr Vasiljevs with another letter | which could be |
loosely defined as a “show cause” letter:
“Dear Len
On 8 May 2014 I met with you and in that meeting, you were advised that I had
concerns with your slow production rate and a very messy workplace. You attributed
the slow-rate of production to problems with the press and we agreed to remedy the
problem which was subsequently done.
On the 27th November 2014 you refused to start an hour earlier to facilitate an
afternoon shift for the one day. This was because you objected to us getting another
person to run the press during a busy time. On the 16” January 2015 you were issued
with another warning letter on the issues of start and finish times, mobile phone use,
team work, the state of your work area and quality standards.
On the 21st January 2015 you had a second meeting with me and I advised you that
your performance had not improved to the level required. You made no attempt to
address my concerns.
On 12th March 2015 a job was rejected due to a colour variation. We had a written
protocol in place to deal with decisions to do with colour variation and these were
ignored by you. You then refused to attend a meeting to further discuss these issues.
On 13th April 2015 you left the press in a deplorable condition at the end of the day.
This issue has specifically been raised in previous warnings as an area of your
performance that causes us most concern.
On 22 April 2015 you left the wash-up trays unclean. Dirty ink knives were left on the
machine walkway, mixed ink was left laying on the walkway at the end of the day.
Once again demonstrating your complete contempt for the issues raised in the letter of
16th January 2015.
On the 14th May 2015 the GTO was left is a deplorable condition again. No wash-up
had been done of even attempted, ink was left on the blanket, rollers left un-washed
and the dampening unit was left untouched.
[2016] FWC 169
Despite all of our attempts to give you an opportunity to address the shortcomings in
your performance you continue to treat our endeavours and requests with contempt.
The frequency with which you leave your work area in an unmaintained state is
compromising the performance and safety of our machinery not to mention its
productive life. In addition the level of cleanliness (puddles of ink laying on
walkways) jeopardizes the safety of other team members.
Len there is a continuing litany of failures on your part to follow lawful instructions
by abiding to the company policies. The latest issues reflect the nature of the contempt
you hold for all our efforts to improve your performance and compliance. Unless you
can provide some reasonable explanation or give us some trust that you will improve
your performance and comply with our directives your job with Metro Press is in
immediate jeopardy of termination.
Yours sincerely,
Mark Rossiter
Director”
[18] Mr Rossiter requested Mr Vasiljevs to meet with him to discuss this correspondence.
Mr Vasiljevs refused to meet with Mr Rossiter unless there was an independent arbitrator
present. Mr Rossiter was prepared to delay the meeting for only a few days to allow Mr
Vasiljevs to seek advice. Mr Rossiter dismissed Mr Vasiljevs when he refused to meet with
him to discuss the issues raised in this correspondence. Mr Vasiljevs’ dismissal was
5
| confirmed in writing | : |
“Dear Len
Re: Termination of your employment
This letter is to confirm in writing the termination of your employment with
Imprimater Pty Ltd Trading as Metro Press as at the 22.5.2015.
Further to our correspondence of 22.5.2015.
On 22 May 2015, I gave you a final warming letter which you were asked to respond
to our concerns regarding you performance and conduct. You refused to discuss these
matter at all citing that you would only do so when you were ready and that you
wanted an independent arbitrator to be present.
You were given the opportunity to have a support person attend a meeting to be held
on Monday afternoon 25 May 2015. This meeting you also refused to attend.
Your conduct is unacceptable. You refuse to discuss, acknowledge or remedy your
performance or follow our lawful instructions. Even when presented with our latest
grievances your bad behavior did not abate and when asked to return the keys to the
factory you refused to hand back the property of the business.
All out attempts to reason with you and get you to change your behavior and improve
your performance have been in vain. You have failed on an ongoing basis to comply
[2016] FWC 169with our policies and all attempts to talk with you on the issues that we have raised
over many months are met with aggression and contempt.
Your employment is terminated.
Based on your length of service, your notice period is 3 weeks. In lieu of receiving
that notice, you will be paid the sum of $3053.60. This takes into account the price of
$61.40 which was the cost to change the keys on Friday.
You will also be paid your accrued entitlements and outstanding remuneration,
including superannuation, up to and including your last day of employment.
Employees and employers may seek information about minimum terms and
conditions of employment from the Fair Work Ombudsman. If you wish to contact
them you can call 13 13 94 or visit their website at
Mark Rossiter.”
Consideration
[19] I have taken into account all of the evidence and submissions that have been
submitted by the parties
[20] Based on all of the evidence, I am satisfied that Mr Vasiljevs has been warned on
numerous occasions about his conduct and performance. Mr Vasiljevs admitted under cross
examination that he had left the printing machine and associated equipment uncleaned and
that he refused to accept that Metro Press has the right to employ other personnel instead of
offering him overtime. I have taken these matters into account.
[21] There was also not an insignificant issue in relation to workmanship that was in
dispute between the parties in relation to colour control. Metro Press provided two examples
where colour quality of repeat business was not appropriately matched. Mr Vasiljevs is an
experienced printer and provided a possible explanation for the colour variance on these
occasions. I also note that these finished jobs passed the internal quality control tests before
they were sent to the customers. I have taken this into account.
[22] I cannot find any corroborating evidence to support Mr Vasiljevs’ claim that his
termination was the subject of a “long term constructive dismissal process” due to his
pending hip surgery. Mr Vasiljevs was consistently warned about his performance and
conduct. Unfortunately, Mr Vasiljevs simply ignored these warnings. I have taken this into
account
[23] Whilst I have some sympathy for Mr Vasiljevs in relation to his medical predicament,
I cannot help but form the view that Mr Vasiljevs had little respect for Mr Rossiter in relation
to his technical knowledge or capacity to run Metro. As a result, Mr Vasiljevs became a
recalcitrant employee who refused to follow legitimate and appropriate instructions. This
type of behaviour cannot be condoned. I have taken this into account.
[24] The issue of Mr Vasiljevs not having a support person present nor having an
opportunity to respond, goes to the very heart of the concept of procedural fairness and
[2016] FWC 169
natural justice. However, Mr Vasiljevs’ misunderstanding in relation to the concept of a
support person made the scenario impossible and impracticable. Mr Rossiter attempted to talk
to Mr Vasiljevs on many occasions without success. I am of the view that the events of 22
May 2015 cascaded into a termination out of sheer frustration. A frustration created by Mr
Vasiljevs due to his misunderstanding of the Act and his belligerent attitude. I have taken this
into account.
[25] Overall, I am surprised by the patience that Metro Press has afforded Mr Vasiljevs
over his relatively short employment career.
Conclusion
[26] I am satisfied that Metro Press provided Mr Vasiljevs with a number of warnings in
relation to his performance and conduct.
[27] I find that Metro Press has satisfied the procedural requirements of the Small Business
Fair Dismissal Code by providing the Fair Work Commission with copies of the warnings
given to Mr Vasiljevs and Mr Rossiter’s sworn evidence in these proceedings.
[28] Whilst I am not convinced that Mr Vasiljevs was treated with the appropriate level of
procedural fairness in the termination process, I find that this deficiency was primarily caused
by the actions of Mr Vasiljevs. I am in no doubt that even had Mr Vasiljevs been given the
opportunity to respond with a support person present, the termination would have proceeded.
[29] I find that Mr Vasiljevs was terminated for a valid reason and that the termination of
Mr Vasiljevs was consistent with the Code. Therefore, in accordance with section 385(c) of
the Act, Mr Vasiljevs was not unfairly dismissed.
[30] Mr Vasiljevs application for an Unfair Dismissal Remedy is dismissed.
COMMISSIONER
Appearances:
Mr Vasiljevs on his own behalf
Ms Mary Jo Fisher for the respondent
Hearing details:
October 19 2015, Perth.
Final written submissions:
16 November 2015
[2016] FWC 169
Printed by authority of the Commonwealth Government Printer
<Price code C, PR575974>
1
Exhibit V4 Copy of warning Letter date 16 January 2015
2
Exhibit V5 Response letter from Applicant to Mr Rossiter dated 18 January 2015
3
Exhibit V6 Response letter from Mr Rossiter to the Applicant dates 21 January 2015
4
Exhibit V16 Warning Letter (Show cause letter) dated 22 May 2015
5
Exhibit V2 Termination Letter dated 22 May 2015
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