[2012] FWA 8048

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Haines
v
Darwin Trailer Boat Club Inc
(U2012/8317)

COMMISSIONER SIMPSON

      BRISBANE 23 NOVEMBER 2012

[1] On 24 May 2012 Jason Haines (“the Applicant”) made an application under Section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. His employer was the Darwin Trailer Boat Club Inc. (“the Respondent”)

[2] A Directions hearing was listed for Tuesday 7 August 2012. The matter was then listed for hearing Wednesday 10 Thursday 11 and if required Friday 12 October 2012 in Darwin.

[3] The Applicant was represented at the hearing by Mr Lucio Matarazzo and the Respondent by Mr Alexander Erlich. The Applicant appeared as the first witness in his case, and he was followed by evidence from Ms Di Brereton (former Club Office Manager), Mr Tony Butler (Club President), Mr Wayne Carmody (Club Treasurer) and Mr Greg Flanagan (Club Secretary) who were all required to attend pursuant to an order under s.590 of the Fair Work Act 2009 (FW Act). Mr Erlich was the only witness to give evidence in the Respondents case.

[4] The Applicant filed a written submission dated 6 September 2012 1 and further submission in reply dated 21 September.2

[5] The Respondent filed a ‘Response to Submission’ 3 of six pages, accompanied by a two page document titled ‘In Brief’ under the name of Anthony Butler the Club President, and 9 attachments. The first of those attachments is a chronology of events as prepared by Mr Erlich which became exhibit 8 when he adopted it as his statement.4 The ninth attachment in the respondent’s material was withdrawn by the Respondent following an objection raised by the Applicant. 5

BACKGROUND

[6] The Applicant commenced employment with the Respondent on 6 September 2010  6 and was dismissed on 16 May 2012. The termination letter handed to the Applicant on the day of termination provides no reasons for termination, only stating the amount of his termination pay which included three weeks pay in lieu of notice.

[7] On the employment separation certificate a box was marked ‘unsatisfactory work performance’ under the heading of ‘Reasons for Separation’ and in a section of the form which sought reasons or further details it merely stated ‘Not experienced enough’. Ms Brereton gave evidence that this part of the certificate was completed by Mr Erlich. 7

[8] The Applicants initial role on commencement was as a full time assistant to the Head Chef including ordering, stock control, cleaning, cooking, serving customers and working on functions. 8 He worked in this role for approximately 14 months before being promoted to head chef role in November 2011.9

CONSIDERATION

[9] While Mr Erlich says he was appointed to the role of general manager on 2 April 2012 he did not commence in the role in a paid capacity until 9 May 2012. 10 The first time Mr Erlich and the Applicant met was on 13 April 2012 when Mr Erlich was introduced to staff as the incoming general manager.

Discussions on 13 April

[10] While it was generally agreed between the Applicant and Mr Erlich that they had a discussion on 13 April 2012 there was a dispute between them about the content of the discussion. The Applicant denied saying that “..there was nothing wrong with the menu.” He said he did not disagree that the food costs were at an unacceptable level and he had tried to point it out to the committee. 11 The Applicant accepted that proposals Mr Erlich had talked about for changing the menu included lamb shanks and curries.12

Buffet Brunch

[11] Mr Erlich claimed that he informed the Applicant that the Sunday Bistro being planned in two weeks time was being advertised as A’la Carte yet the Applicant was planning a Buffet and that the Applicant responded by saying that the Sunday Brunch would be buffet breakfast no matter what the acting club manager Di Brereton was advertising. 13 The Applicant however disputed saying this.14 He accepted he was planning to do a Buffet15 but explained this had been arranged with Brett Simmonds the previous general manager in early January 2012 and the committee approved the purchase of a toaster for that very purpose.16 Ms Brereton, as acting general manager before the commencement of Mr Erlich, said there was discussion about leaving the breakfast as A la Carte and not changing to Buffet on the basis that some advertising had been done. 17

Request for Costings

[12] Mr Erlich maintained that on 13 April he had instructed the Applicant to “give me a costing of the menu and to come up with some new, fast to serve cost effective dishes, for the new menu... 18 Mr Erlich complained that in the next four weeks all the Applicant came up with was anti pasta, a labour intensive slow to prepare dish. The Applicant said he didn’t think Mr Erlich had asked him to do the costings for the new menu but he did ask him to come together with a new menu. The Applicant accepted costings were discussed19 and further he agreed at the time the costings were “way out of line”. 20

Garlic Bread

[13] The Applicant agreed that on 13 April Mr Erlich talked to him about making garlic bread in-house and he claimed to say to Mr Erlich “I can’t hire any more staff. I’m at full capacity of trying to get everything done now. I’ve got no time.”  21 Mr Erlich did not seek to take this point further.

[14] The Applicant accepted Mr Erlich’s version of the conversation after the meeting on 13 April where the Applicant had expressed a concern that he felt they had not gotten off to a good start and that Mr Erlich disliked him, and that Mr Erlich responded that it was not personal but that he disliked the food being served in the Bistro and that it must change.  22

[15] The Applicant expressed the general view that he regarded these conversations as “general discussion about operations” because this was only 13 April and Mr Erlich did not start until 9 May.

[16] Brett Simmonds had been the general manager at the time the Applicant commenced employment and continued in that role until January 2012. Di Brereton took over as acting general manager in January 2012 and remained in that role until 9 May 2012.

Sunday April 22

[17] Mr Erlich said that he held an impromptu Bistro staff meeting at the end of service on 22 April that the Applicant attended. Mr Erlich said that he informed the meeting that there was no truth in rumours that the Bistro would be outsourced and his first priority was to drastically rethink the way the Bistro operated. He said he was ‘hands on’ and he invited all staff to be part of “Brainstorming”. Mr Erlich said several staff responded over the next few weeks except the Applicant. 23 The Applicant generally agreed with Mr Erlich’s version of the meeting but again said he understood it was just a consultation meeting before Mr Erlich started employment.24 The Applicant agreed that Mr Erlich did talk about the need to change menus, processes and costings.25

Thursday 10 May 2012

[18] Mr Erlich commenced employment on 9 May and there was evidence provided about a conversation between Mr Erlich and the Applicant the following day. The Applicant again accepted the version of the conversation Mr Erlich gave between the two of them in his evidence which included that Mr Erlich informed the Applicant that his practice of serving reheated, pre-packaged, instant mash potatoes was unacceptable, and that it was below the standard he accepted. The Applicant claimed he said to Mr Erlich because he couldn’t hire more staff it was easier to use the mashed potatoes. The Applicant also said instant mashed potatoes were used in other parts of the industry and that it was a satisfactory product. 26

[19] The Applicant accepted that Mr Erlich made it clear he believed the practice of using instant mash potatoes was unacceptable, however complained that he was not directed to stop and that it was a busy weekend. 27

[20] The question regarding this exchange is whether the Applicant was given a clear instruction to stop using instant mash potatoes and if so, when it was intended to have effect. When Mr Erlich asked the Applicant during cross examination what he thought Mr Erlich was asking him to do at the time the Applicant replied; “---You didn’t ask me to do anything.”  28

[21] Mr Erlich conceded in his closing submissions that he didn’t get into a conversation about how and when a change from the practice of using instant mash potatoes was to occur because he interpreted the Applicant’s response as “defensive or closed down.” 29 This left open the possibility for the Applicant to interpret his statements regarding the exchange in a way other than to stop the practice immediately.

[22] The particular exchange is indicative of a difficulty with the approach adopted by Mr Erlich toward managing his perceived deficiencies in the Applicants performance. I am satisfied in this instance he was not sufficiently clear about specifically what he was directing the Applicant to do. He also did not warn the Applicant that this particular practice, or any of the others he referred to for that matter would result in him being disciplined if he did not change or improve. Mr Erlich’s failure to take these simple steps undermines his ability to later rely on this example and others given as a basis to terminate the Applicant.

Qualifications

[23] The Applicant accepted that Mr Erlich asked him if he was a Chef. 30 31 A document titled “NZQA 753 PART TWO PROFESSIONAL COOKERY CERTIFICATE 18 SEPTEMBER - 24 NOVEMBER 200” which was on Massey University letterhead addressed to the Applicant.32 Further correspondence was provided by way of background regarding the qualification.33

[24] This is a New Zealand qualification which according to the Applicant was preceded by a 751 and 752 qualification involving 6 months of classroom participation and 2000 hours of on the job training after which the 753 qualification is completed. 34 On the basis of this evidence the Applicant maintained he was “qualified”. He also said he was never asked to provide proof of qualification until 10 May 2012, some 21 months after he commenced.35 He provided some further particulars on how the course was structured.36

[25] Mr Erlich made some further comments about the qualification on the basis of other further material supplied by Massey University  37 suggesting the Applicant had not completed the entire theoretical component of the course meaning the Respondent would have been unable to employ an apprentice under the Applicants supervision.38

[26] Mr Erlich said he had asked the Applicant for the qualification because he wanted to start employing apprentices in the kitchen. There is no evidence the Applicant at anytime attempted to deceive the Respondent about his qualifications and I am satisfied the Applicant regarded himself as qualified although it remains unclear whether he holds an appropriate qualification in order for the Respondent to engage an apprentice. I see this as a neutral issue for the purposes of this application.

Wednesday 16 May 2012

[27] The Applicant said he had little contact with Mr Erlich between Thursday 10 May and the day of his termination on 16 May because he did not see him on the Friday, Saturday, and on the Sunday he was very busy as there was a Mother’s Day luncheon. On the Monday and Tuesday there is no dispute that he was rostered off duty. 39 He said he commenced at 10 am on the Wednesday 16 May.

[28] The Applicant said his first interaction with Mr Erlich on Wednesday 16 May was after lunch service when Mr Erlich came to the kitchen and said he wanted to talk to the Applicant so they both went out the back to the smoking section and Mr Erlich said; “This is a letter of your termination.” The Applicant claimed he was then handed the letter and Mr Erlich walked away. 40 On opening and reading the letter the Applicant walked into the office and asked Mr Erlich; “What’s this all about?” and the Applicant claimed Mr Erlich replied; “It isn’t working out” to which the Applicant relied; “You can’t fire me. I’m full time.”

[29] The evidence of Mr Erlich regarding the exchange between himself and the Applicant did not vary greatly from the Applicants. In his written statement he said he served the Applicant the letter of termination and said; “..I simply stated that he was not suitable (sic) skilled for the position...”  41 His version in oral evidence did not vary greatly from this either however he agreed he said words to the effect of “It’s just not working out.” Mr Erlich claimed in oral evidence that the Applicant refused to sit down and listen and he described the Applicant as hypersensitive.

[30] The letter of termination 42 43 provides no reasons for termination. The Applicant repeated that he was not given any written, verbal or other warnings.44 In contrast to Mr Erlich’s evidence Ms Brereton said in her time as acting general manager that she was happy with the Applicants performance as Head Chef. 45 She said on the day of termination she saw the Applicant come into the office and say words to the effect; “It can’t be done this way.”46 Ms Brereton said she later approached the Applicant and asked him to calm down. She said the Applicant had kicked a bin.

Other Issues

Costs of Kitchen

[31] A considerable amount of the evidence was given concerning the operating costs of running the kitchen and the extent to which that was the fault of the Applicant.

[32] Di Brereton agreed that the auditors indicated that the Club was close to insolvency and the new Executive was concerned about the Respondents survival. 47 Mr Flanagan said the financial position of the Club was a lot better now than what it had been 6 months ago when the Club was in a ‘dire’ position.

[33] The parties presented the following agreed facts for the purposes of costs associated with the Bistro before and after the termination of the Applicant.  48

 

DECEMBER 2011

August 2012

September 2012

Labour costs

30.44%

33%

30%

Material costs/food

47.54%

43.7%

33%

Total

77.98%

76.7%

63%

[34] It is clear the financial performance of the Bistro has improved since the termination of the Applicant. Because there are a range of variables impacting on that performance, some of which would be beyond the direct control of the Applicant and there was also little evidence to indicate the Applicant had been given specific directions to change the manner in which he performed the role of head chef during his tenure I am of the view that this material has limited weight to support the argument that the Respondent had a valid reason for termination.

[35] I note there was some material indicating that the Committee had raised requests of the Applicant to try and reduce the costs of operating the Bistro, but in the absence of directions to make particular changes that may have had a significant impact it is difficult for the Respondent to rely on this material as a basis for the decision to terminate in the manner adopted.

Bidvest Rewards System

[36] Questions were put to the Applicant about alleged previous misuse of a staff rewards system that applies at Christmas time. 49 The issue was not relied on as a reason for termination or pursued by the Respondent as a disciplinary issue at the time. I do not intend to have regard to it for the purposes of determining this matter.

Salads

[37] Mr Erlich referred to an issue where a new procedure was to be adopted where salads would be put on a plate when people came up for their meal rather than salad being on a hotplate under the hot lights. 50 Mr Erlich put to the Applicant this was explained to him one morning and at lunchtime Mr Erlich raised it again with him because the new procedure was not being followed. The Applicant rejected this saying the new procedure was never explained to him and he could not remember the conversations referred to by Mr Erlich. Mr Erlich was unable to be precise about when he believed this discussion occurred, saying he thought it was about a week before the Applicant was terminated. Mr Erlich ultimately said he would let the matter drop.51 On that basis I do not intend to attach significant weight to it.

Mr Butler

[38] Mr Butler said he became Club President in March 2012. 52 Mr Butler said there had been discussions for some time concerning the Applicants performance and it was discussed at some Council meetings.53

[39] He said he discussed the termination of the Applicant with Mr Erlich when he started. He said he saw the termination letter a day or two before the termination. 54 He said as President he felt that he should not interfere with staffing matters.55 He said he never spoke directly with the Applicant about his performance.56

[40] In the document titled ‘In Brief” 57 under Mr Butler’s name it is said that the Applicant was given “..ample opportunity to address grave concerns that were presented to him over a period of at least four months. The Club came to the conclusion that Mr Haines was incapable of following direct instruction (my emphasis) or able to providing (sic) the changes needed to address the alarming net losses incurred by the Bistro.”

[41] Mr Butler was pressed in cross examination about who he had spoken to in order to arrive at this view and he replied it was Mr Wayne Carmody the Treasurer. 58 He referred to what he understood were discussions between Mr Carmody and the Applicant in December 2011 regarding the type of chip purchased for use in the Bistro.59

[42] Mr Butler clarified that the document titled “In Brief” under his name was in fact prepared by Mr Erlich not him, 60 however he did sign it.61 It appear Mr Butler did not have a strong basis to claim the Applicant had been given “ample opportunity to address grave concerns...”

[43] Importantly Mr Butler expressed the following views when under cross examination;

[44] Mr Butler agreed that he had advised Mr Erlich to get legal advice about terminations and he had discussed with the general manager giving three written warnings to the Applicant and Mr Erlich had said to him that in the context he could not tolerate that. 63 Mr Butler agreed he consented to the termination of the Applicant.64

Mr Flanagan

[45] Mr Flanagan said he did not find out about the termination until after it had occurred. 65 He said about 1 week before the Applicant was terminated he had a conversation with Mr Erlich where he had told him a meal he had in the Bistro on a Saturday night was a disgrace.66 He accepted that it was possible that the Applicant did not prepare the meal.67

Mr Carmody

[46] Mr Carmody became the Treasurer of the Respondent in November 2011 and was the Assistant Treasurer for the 12 months before that. 68 He said he did have discussions with the general manager about the performance of the Applicant before his termination. He said the issue was also discussed in the Executive. He said the Executive was meeting nearly every week trying to turn the club around, and the Bistro was “costing a fortune and we were losing money.” 69 He said he believed the main drivers for the turnaround included menu pricings, a complete new menu, changed purchasing and preparing food in-house which reduces cost.70

[47] He said between December 2011 and January 2012 he gave the Applicant regular updates on the performance of the Bistro and that he told the Applicant he had to get costs below 80%. 71 Mr Carmody said in the 2010-2011 financial year money had to be taken out of the bar section to pay the bills of the bistro.72 Mr Carmody said he was going to have discussions with Mr Erlich about whatever procedures were put in place regarding the Applicants termination but he said “Unfortunately, I didn’t have the opportunity to put that in place...” He confirmed he expected the Applicant to be disciplined possibly, but not terminated. He clarified that he knew the Applicant was going to be terminated but he wanted to make sure the Respondent followed procedures in termination.73

[48] He said the Club had lost $150,000 in the previous financial year. 74 He said this year the Club was reporting a $130,000 profit.75 He said that September 2012 was the first time the Bistro had contributed to the bottom line of the Club. He said from 2010 to 2011 the Bistro did not make enough money to cover costs.

Mr Erlich’s Authority.

[49] Mr Erlich put that his authority to direct the Applicant was no less from 13 April when despite not having commenced employment he had been appointed as the general manager by that date. 76 He said the following in oral evidence;

[50] The difficulty with Mr Erlich’s view was that Di Brereton remained the acting general manager until Mr Erlich’s commencement on 9 May, some 26 days after 13 April. Further he gave evidence that he remained an employee at Charles Darwin University until a day or two before commencing his new role at the Respondent. 78 This is an important point because the Respondents case seeks to rely heavily on discussions that involved Mr Erlich and the Applicant before 9 May to sustain the case that the Applicant was given a reasonable opportunity to respond to issues raised by Mr Erlich before his termination but failed to do so. This is in contrast to the view of the Applicant that discussions prior to 9 May were “all just friendly conversations”.79 Mr Butler the Club President accepted that Mr Erlich had only been being paid as the general manager for seven days when the Applicant was terminated.80

[51] It could reasonably be expected that it was incumbent upon Mr Erlich on formal commencement in his appointed role as general manager from 9 May to restate any matters he may have raised in discussions prior to his employment in the role of general manager and becoming an agent or representative of the Respondent. Prior to 9 May 2012 he was unable to give a lawful direction on behalf of the Respondent because his employment in the role had not commenced, Ms Brereton was filling the role. The Respondent cannot rely upon any purported direction by Mr Erlich to the Applicant prior to his employment on 9 May as being a lawful direction on behalf of the Respondent.

Discussions with Phillip Gammeson and Di Brereton prior to 9 May

[52] Mr Erlich gave evidence that he broached the subject of the Head Chef role at the Respondent with a Phillip Gammeson, a former work colleague of his at another restaurant in Darwin called Pee Wee’s, on or around 20 April 2012. 81 82 Mr Erlich described this discussion as making “contingency plans.” 83 Gammeson was employed by the Respondent several weeks after the termination of the Applicant on a salary package approximately $20,000 a year more than the Applicant.84

[53] Ms Brereton claimed that Mr Erlich had asked her to terminate the Applicant prior to his commencing. She said as follows in response to a question from the Applicant;

[54] Importantly Mr Erlich was aware of this evidence given by Di Brereton during her oral evidence because he heard her give that evidence but when he had the opportunity to cross examine her himself, did not put any questions to her to challenge this assertion. On that basis her evidence on this point went unchallenged. When it was put to Mr Erlich that he had made this request of Ms Brereton he denied it, 86 however he then gave the following evidence regarding a conversation he said occurred between Ms Brereton and himself regarding whether to remove a computer from the Applicants office while she was still acting manager and before he commenced as an employee;

[55] I would seem most likely that the conversation Mr Erlich described is the same conversation Ms Brereton was referring to in her evidence. On Mr Erlich’s own admission he was attempting to construct a set of circumstances that would lead to the termination of the Applicant prior to Mr Erlich even commencing employment for the Respondent. This is a strong indication that Mr Erlich had already made up his mind that the Applicant would be terminated one way or another. This time is close in proximity to the time that Mr Erlich agreed he had canvassed with Mr Gammeson coming to work as the Head Chef for the Respondent. This again would indicate Mr Erlich had a pre-mediated intention to dismiss the Applicant before he commencing as general manager. Ms Brereton also gave evidence that she believed Mr Erlich was a bully, and that she didn’t like the way he spoke to people. 88

HARSH, UNJUST OR UNREASONABLE

[56] Section 387 of the FW Act sets out a number of criteria to be taken into account in deciding whether a dismissal was harsh, unjust or unreasonable.

(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);

[57] The termination letter handed to the Applicant on 16 May 2012 provided no reasons for termination. Various issues have been raised about the performance of the Applicant as part of the Respondents case but none of them were given to the Applicant as reasons for his dismissal at the time.

[58] As stated above the Respondent cannot argue that exchanges between Mr Erlich and the Applicant prior to 9 May amounted to lawful directions because for reasons set out above Mr Erlich did not have the capacity to give lawful directions until 9 May. As for exchanges between Mr Erlich and the Applicant after that date they were minimal, the principle incident being an exchange regarding instant mashed potatoes and another being about salads left under hot lights. For reasons set out above I am satisfied Mr Erlich was not sufficiently clear regarding what he was directing the Applicant to do regarding the mash potato issue and therefore cannot now argue the Applicant failed to follow a lawful direction in that regard. There was some conflict in the evidence concerning the salads issue, and Mr Erlich could not be clear about when it was said to have occurred and he ultimately said himself he would let the matter drop.

[59] I have also given my reasons above as to why I am not satisfied the improvement in the financial performance of the Bistro since the termination of the Applicant can now be relied upon as a basis to argue a valid reason for termination existed at the time of termination. For the reasons set out above I am not satisfied there was not a valid reason for dismissal.

(b) whether the person was notified of that reason;

[60] The evidence of Mr Erlich was that he said to the Applicant at the time he was terminated that he was not suitably skilled in his written statement, and in his closing submissions said the comment was “It’s not working out.” 89 He also claims to have received legal advice not to list all of the reasons in the termination letter and to keep it as minimal as possible in case it got to this point, 90 which I understood to mean in the event the dismissal was contested. I am satisfied the Applicant was not notified on the reasons for dismissal.

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

[61] At no stage was it indicated to the Applicant that his job was in jeopardy prior to his termination. The termination letter was prepared before the exchange on 16 May and there was no indication anything the Applicant said could have reversed the decision. I am satisfied the Applicant was not given an opportunity to respond to the reasons for termination related to capacity or conduct.

[62] Mr Butler conceded upon reflection he would have offered counselling first and tried to improve the Applicants performance before termination. Mr Carmody said he was going to have discussions with Mr Erlich about procedures regarding the Applicants termination but was too late.

(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;

[63] As no discussions were held between the parties relating to dismissal other than the act of Mr Erlich handing the Applicant his termination letter and saying he was not suitable for the role or “..it’s not working out..”  91 There was no opportunity for the Applicant to make a request for a support person to be present.

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

[64] There were no formal warnings or counselling of the Applicant. He was frustrated that when he requested the staff ‘Brainstorm’ the Applicant did not produce more worthwhile proposals for a new menu however he did not warn or counsel the Applicant about this. Mr Erlich did not during any of these conversations make it clear that a particular consequence would flow if the Applicant did not change the way he was doing his job.

(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;

[65] The Respondent engaged approximately 40 employees. At the time of the hearing according to Mr Erlich there were seven permanent employees and casuals can vary from between 20 and 40.  92

(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;

[66] The Applicant did not have internal human resources expertise in the enterprise.

(h) any other matters that FWA considers relevant.

[67] I am satisfied that Mr Erlich was predisposed to terminate the Applicant even before Mr Erlich’s own employment commenced based on Ms Brereton’s uncontested evidence that Mr Erlich had asked her to construct a conflict in order to terminate the Applicant.

[68] The conduct of Mr Erlich in effectively offering Mr Gammeson the Applicants job prior to commencing as general manager and also attempting to orchestrate a conflict between Ms Brereton and the Applicant to create a basis to dismiss the Applicant undermines any suggestion that Mr Erlich was prepared to attempt an objective performance management of his perceived deficiencies in the Applicants performance.

CONCLUSION

[69] For all of the reasons outlined above I find the termination was harsh, unjust or unreasonable. Mr Erlich’s desire to turn around the Bistro and hence the financial position of the Club was admirable and also central to the Club’s future viability. It was also clear to me that Mr Erlich was frustrated because he believed the Applicant was defensive and would not engage in discussions with him about changing work practices. That may have been so however in such circumstances a manager is required to address those issues and not simply bi-pass them by terminating the employment relationship. I have no doubt Mr Erlich had formed quite negative views about the Applicant’s performance. He was obligated to deal with those performance issues. It is clear the Applicant was never warned his employment was in jeopardy.

[70] Performance management is a central responsibility of any manager. Simply indicating displeasure with an employee’s performance does not amount to performance management. There is a responsibility to explain where an employee’s performance is unsatisfactory and to also explain what is required in order for an employee to address the unsatisfactory performance. Further it is incumbent on a manager to explain to an employee what may happen if they fail to address the identified problems. Mr Erlich failed to take these steps despite warnings from Mr Butler to get proper legal advice. 93

[71] Mr Erlich argued in the context of employment as a head chef in a restaurant there should be less of an expectation to follow procedural steps regarding performance. 94 However the deficiencies in the manner Mr Erlich chose to terminate the Applicant do not stand up to scrutiny.

REMEDY

Reinstatement

[72] The Applicant was clear in seeking reinstatement as a remedy. 95 Mr Butler gave evidence the Respondent would accept FWA’s decision.96 Mr Erlich made it clear he did not believe he could work with the Applicant again.97 I am satisfied it is inevitable that in the event I ordered reinstatement Mr Erlich and the Applicant would be required to have regular contact. The Applicant would need to work under the direction of Mr Erlich. I do not believe it is realistic to expect that a productive working relationship is likely to be able to be established between Mr Erlich and the Applicant. The Applicant’s former position has been filled and there is no other comparable position in which to order reinstatement. The Applicant has also gained other permanent employment. For these reasons I have decided not to order reinstatement.

Compensation

[73] The Applicant said he gained full time employment as the Head Chef at the Darwin RSL at the start of the 12th week after his termination. 98 It was later confirmed his commencement date with his new employer was 6 August 2012 as demonstrated by a payslip tendered in evidence.99 100 The role was in a full time capacity as Head Chef.

[74] Two payslips of the Applicant at the time of termination were admitted into evidence. 101 It was agreed the Applicant was earning a salary of $60,000 per annum at the time of termination.102 This is $1,153.83 per week.

[75] The Respondent had not yet commenced any formal disciplinary process and there were no formal disciplinary steps taken against him prior to Mr Erlich’s commencement. I have taken into account the relationship between the Applicant and Mr Erlich as the new general manager. Mr Erlich complained that the Applicant was difficult to deal with. I was given some basis for believing that may be the case during the conduct of the hearing itself by the manner in which the Applicant responded on a number of occasions to questions from his own representative Mr Matarazzo during examination in chief. On a number of occasions he appeared displeased with the manner in which Mr Matarazzo sought for him to provide his oral evidence, at one point saying to his own representative in response to a question “.Do you even know what you’re asking?” 103 It was unusual that a party would direct such conduct toward their own representative for no apparent reason and tends to support Mr Erlich’s complaint that the Applicant could at times be difficult to deal with. This factor weighs against the likelihood that the relationship would survive for a lengthy period.

[76] I have also had regard to the length of service of the Applicant which was approximately 21 months. This length of service is not of such a length that it would create an expectation that the relationship would otherwise have continued for a longer period.

[77] I am also satisfied that while I have been quite critical of the Respondents handling of the dismissal, it also appears the Applicant made no attempt to engage with Mr Erlich in his attempts to introduce changes to work practices to improve the Bistro’s performance. I am satisfied this approach of the Applicant was also likely to contribute to the relationship ending sooner.

[78] In all of the circumstances I believe it is reasonable to assume that, but for the dismissal, the Applicant would not have continued in employment with the Respondent for any longer than another seven weeks.

[79] Accordingly I calculate that the remuneration the Applicant would have received, or would have been likely to receive, if his employment had not been terminated based on a further seven weeks to be $8,076.81. On the basis of payroll advice provided 104 I am satisfied the Applicant was also being paid superannuation as part of his remuneration at the rate of 9% of his gross wage which should also form part of an order for compensation.

[80] His termination letter said he was paid $6604.32 gross at the time of termination which includes three weeks pay in lieu of notice, and also outstanding holiday pay. The Applicant queried whether that payment did include three weeks’ notice pay on the basis of his final payroll advice indicating a substantial annual leave balance. Mr Erlich indicated the Applicants annual leave balance had in fact been in debit. The Applicants ordinary pay advice for the week before his termination indicates the Applicant did not have a substantial leave balance. 105 The Applicant said he could not remember precisely when he took leave in his 21 months of employment but that “a couple of times” he said he had to ask for holiday pay in advance.106 This evidence in conjunction with the Employment Separation Certificate107 supports the conclusion that the Applicants termination payment did include three weeks payment in lieu of notice when in fact the Respondent was only required to pay two weeks. Therefore I make a further deduction of three weeks’ pay equating to $3,461.49 paid at the time of termination. That reduction equates to a compensation figure of $4,615.32 I make no deduction for contingencies.

[81] The Applicant commenced employment with the Darwin RSL on 6 August 2012, a period of 82 days or just less than 12 weeks after his termination. As the period of likely future employment I have determined with the Respondent was less than period taken to gain alternative employment I do not intend to reduce compensation on the basis of remuneration earned from employment during the period between the dismissal and the making of this order.

[82] There was no evidence that an order for the payment of $4,615.32 could affect the viability of the employer’s enterprise. On the basis that the Applicant gained other employment as a head chef in Darwin I do not propose to make a further deduction for failure to make efforts to mitigate his loss. I make no further deduction on the basis of misconduct as I am not satisfied the Applicant engaged in misconduct that contributed to the employers decision to dismiss him. Since the amount of $4,615.32 plus 9% superannuation does not exceed the compensation cap in s.392(5) of the FW Act I make no further deduction for that reason. I am satisfied that an order for payment of compensation of $4,615.32 gross, less taxation according to law, plus 9% superannuation by Darwin Trailer Boat Club Inc to Mr Jason Haines is appropriate in all of the circumstances of this case. An order to this effect will issue with this decision.

COMMISSIONER

Appearances:

Ms C Matarazzo representing the Applicant

Mr A Ehrlich representing the Respondent

Hearing details:

Darwin

10 October 2012

11 October 2012

 1   Document 1 Mr J Haines submissions with attachments A to L

 2   Document 3 Mr J Haines submissions in reply

 3   Document 2 Respondents submission in reply

 4   Transcript PN 2005

 5   Transcript PN 82

 6   Transcript PN 183

 7   Transcript PN 785

 8   Transcript PN 198

 9   Transcript PN 213 to 219

 10   Exhibit 8 Respondent’s document headed “ Chronology” page two

 11   Transcript PN 232

 12   Transcript PN 431

 13   Exhibit 8 Respondent’s document headed “ Chronology” page one

 14   Transcript PN 232

 15   Transcript PN 450

 16   Transcript PN 452 to 457

 17   Transcript PN 1049

 18   Exhibit 8 Respondent’s document headed “ Chronology” page one

 19   Transcript PN 418

 20   Transcript PN 420

 21   Transcript PN 496

 22   Transcript PN 233

 23   Exhibit 8 Respondent’s document headed “ Chronology” page two

 24   Transcript PN 266 to 268

 25   Transcript PN 423

 26   Transcript PN 282

 27   Transcript PN 438 to 439

 28   Transcript PN 446

 29   Transcript PN 2582

 30   Transcript PN 271 to 272

 31   Transcript PN 291

 32   Exhibit 1 Letter from Massey University

 33   Further correspondence from Massy University

 34   Transcript PN 325

 35   Transcript PN 330 to 333

 36   Transcript PN 547

 37   Exhibit 3 Documents from Massey University

 38   Transcript PN 958

 39   Transcript PN 292

 40   Transcript PN 298

 41   Exhibit 8 Respondent’s document headed “ Chronology” page two

 42   Document 1 attachment h

 43   Document 1 attachment A

 44   Transcript PN 300 to 301

 45   Transcript PN 815

 46   Transcript PN 894

 47   Transcript PN 1060

 48   Transcript PN 1526 to 1536

 49   Transcript PN 572 to 577

 50   Transcript PN 587

 51   Transcript PN 599 to 610

 52   Transcript PN 110

 53   Transcript PN 114

 54   Transcript PN 1124

 55   Transcript PN 1111

 56   Transcript PN 1127

 57   Document 2 page eight

 58   Transcript PN 1149

 59   Transcript PN 1218

 60   Transcript PN 1222

 61   Transcript PN 1242

 62   Transcript PN 1295 to 1297

 63   Transcript PN 1343 to 1351

 64   Transcript PN 1376

 65   Transcript PN 1414

 66   Transcript PN 1419

 67   Transcript PN 1423

 68   Transcript PN 1824 to 1825

 69   Transcript PN 1692

 70   Transcript PN 1868

 71   Transcript PN 1693

 72   Transcript PN 1702

 73   Transcript PN 1744 to 1746

 74   Transcript PN 1864

 75   Transcript PN 1969

 76   Transcript PN 401

 77   Transcript PN 2191

 78   Transcript PN 2193

 79   Transcript PN 412

 80   Transcript PN 1158

 81   Transcript PN 2044 to 2057

 82   Transcript PN 2063

 83   Transcript PN 2064

 84   Transcript PN 2132 to 2133

 85   Transcript PN 899 to 891

 86   Transcript PN 2219

 87   Transcript PN 2222 to 2224

 88   Transcript PN 1078 to 1080

 89   Transcript PN 2602

 90   Transcript PN 2600

 91   Transcript PN 2602

 92   Transcript PN 2682

 93   Transcript PN 2114 to 2115

 94   Transcript PN 2104

 95   Transcript PN 685

 96   Transcript PN 1324

 97   Transcript PN 2664

 98   Transcript PN 694 to 695

 99   Transcript PN 1549

 100   Exhibit 4 Pay Slip from new Employer

 101   Exhibit 6 Two pay slips of Mr Haines from the Respondent Darwin Trailer Boat Club

 102   Transcript PN 1546

 103   Transcript PN 369 to 371

 104   Exhibit 6 Two pay slips of Mr Haines from the Respondent Darwin Trailer Boat Club

 105   Exhibit 6 Two pay slips of Mr Haines from the Respondent Darwin Trailer Boat Club

 106   Transcript PN 2344

 107   Document 1 Mr J Haines submissions with attachments h

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