[2018] FWC 607
FAIR WORK COMMISSION

EX-TEMPORE DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Carmelo Sapienza
v
Cash in Transit Pty Ltd T/A Secure Cash
(U2017/8576)

DEPUTY PRESIDENT BULL

PERTH, 30 JANUARY 2018

Application for an unfair dismissal remedy. Valid reason for dismissal, allegations of inappropriate behaviour in dealing with clients, no unfairness found.

[1] In this matter, which was heard on 19 January 2018, I advised the applicant that I would hand my decision down later in the day orally and provide him a written copy together with a copy to the respondent in due course, reserving the right to make any necessary changes to make the decision read more fluidly. This is the published version of the decision in transcript edited for style and clarity.    1

[2] In this application, Mr Carmelo Sapienza (Mr Sapienza/the applicant) alleges he was unfairly terminated from his employment summarily, via correspondence he received on 18 July 2017.

[3] Mr Sapienza commenced employment with West Coast Cash Escorts Pty Ltd on 23 November 2016, and commenced with the current respondent, Cash in Transit Pty Ltd trading as Secure Cash in March 2017. Following a jurisdictional objection initially raised by the respondent, the decision of Gooley DP 2 found that a transmission of business had occurred, and for the purposes of this matter, Mr Sapienza's employment commenced on 23 November 2016. The jurisdictional matter was dealt with via a telephone hearing, with the Deputy President observing that, despite directions, neither party filed any material.

[4] Mr Sapienza was employed as a banking courier where he visited clients' premises and took their surplus cash and banked it on their behalf. Mr Sapienza said that he worked from home and received instructions to manage his daily schedule via email or text.

[5] This matter was listed for hearing and directions were issued for both parties to file and serve an outline of submissions and any written statements. The applicant, while not filing a witness statement, which he explained was due to his confusion as to what a witness statement would contain, filed an outline of submissions in accordance with the directions.

[6] On 18 January 2018, the respondent was contacted by the Commission's Chambers inquiring as to why no outline of submissions or witness statements had been filed in accordance with the Commission's directions. A Mr Darren Bacchus, from the respondent advised by telephone that he was unaware of the hearing and would speak urgently to a Ms Bethaney Bacchus, whose email address had been provided as a contact reference for the respondent.

[7] Following a further follow up enquiry by the Commission, Ms Bethaney Bacchus sent an email stating that she had received all communication from the Commission, but unfortunately found herself in a position where she could not engage legal support due to financial constraints, nor did she have the time required to properly format a response which she sought to do with the assistance of a free legal service. Ms Bacchus also stated that she did not have the financial means to attend the hearing today in Western Australia as she was based in Adelaide, and sought to rely on her initial response in the Form F3 filed in the Commission. Ms Bacchus stated that customer complainants referred to in the termination of employment letter were not identified for fear of retaliation from the applicant.

[8] Ms Bacchus was advised that the Commission had a registry in Adelaide where she could attend the hearing via videoconference, that the opportunity to seek an adjournment or an extension of time to file submissions and witness statements was available, and that the hearing may proceed in the respondent's absence, with the possibility of an outcome detrimental to the respondent.

[9] On the morning of the hearing, Ms Bacchus sent a further email saying she was unaware that she could seek to appear at the local office of the Commission in Adelaide, had not sought any legal advice and did not seek an adjournment or a time extension. Ms Bacchus stated the respondent was content to rely on the material that had been filed. Based on the respondent's decision not to attend the Commission hearing via videoconference or any other means, and not to provide any written submissions or witness statements, the matter proceeded as programmed in the respondent's absence.

[10] The respondent's response to the claim of unfair dismissal contained in the Form F3 stated that the applicant was dismissed for a serious breach of conduct due to multiple complaints about his conduct from several different clients. While the respondent did not attach the termination of employment letter to its Form F3, it is only from the examination of this correspondence that the actual detail of the complaints against the applicant can be ascertained. Attached to the Form F3 was the applicant's employment separation certificate, which stated that the applicant's employment was terminated as a result of inappropriate sexual behaviour to several clients, and what purports to be a copy of the applicant's employment application.

[11] A copy of the termination of employment letter was provided by the applicant himself, which reveals that the respondent relied on three specific complaints from clients to justify his summary termination. The termination letter is signed by Ms Bethaney Bacchus as National General Manager, whom Mr Sapienza stated he had never met or spoken to.

[12] The termination letter commences:

“This letter is to inform you that your employment with Cash in Transit Pty Ltd is terminated immediately due to your serious breach of conduct and your inappropriate behaviour in dealing with our clients.”

[13] The letter then details the three complaints which Mr Sapienza dealt with in his evidence to the Commission.

First complaint

[14] The first complaint is dated 18 April 2017. The respondent states that an email was received from a client complaining about the applicant's behaviour while conducting a collection. The client's email complaint refers to Mr Sapienza becoming physically agitated and using foul language when he was unable to get into his car located in the car park due to another car being parked too close to his vehicle. The letter of termination states that when this complaint was reported, the Local Area Manager, Mr Didier Hoareau, was asked to speak to Mr Sapienza. While Mr Sapienza recalls this event and the client being a pet shop in William Street, Cannington, Western Australia, he denies the allegations of being physically aggressive or using foul language.

[15] Mr Sapienza further stated that he was never spoken to about the complaint by Mr Hoareau and only became aware of the complaint when he received his termination letter.

Second complaint

[16] The second complaint raised in the termination letter, concerns the 29 June, where a client had asked for a different employee to be provided by the respondent, as in their words:

“Carmelo is a nice man but is making our staff feel very uncomfortable in store.”

[17] Again, the termination letter states that the Local Area Manager, Mr Hoareau, was asked to speak to Mr Sapienza regarding this complaint. Mr Sapienza's evidence was that he was not spoken to and only became aware of the complaint when he received the termination of employment letter. Mr Sapienza stated that he had no idea of where the complaint would have originated from; he had never met Mr Hoareau and had only spoken to him at most, once a week by telephone. It was his understanding that Mr Hoareau had left the employment of the respondent about a week before his dismissal and he was not advised as to the reasons for his departure.

Third complaint

[18] The letter of termination states that on 18 July a further complaint was received from a client, which was considered the most serious of the three complaints. The complaint refers to Mr Sapienza acting unprofessionally and making two employees of the client feel very uncomfortable, the two employees being young females. In his evidence Mr Sapienza identified the client as ICE Design, a ladies clothing shop in the Kwinana Hub Shopping Centre in Western Australia, as it was the only premises that he visited where they employed young women.

[19] The written complaint makes a number of serious allegations against Mr Sapienza. He is alleged to have said to female staff:

"When will you be leaving your boyfriend so we can run away together?"

which Mr Sapienza denied had ever occurred.

[20] It was also alleged that he told staff they were good looking and had asked one 18 year old employee for her telephone number. Mr Sapienza denied that these incidents had ever occurred.

[21] It was also alleged that he had stated to these young female employees that he had dated girls of their age. Again, Mr Sapienza denied that he had made any such statements, stating that he is a 48 year old male with no interest in anyone as young as 18.

[22] It was further alleged that on Monday 10 July, when he came to collect the banking, he told two team members that they had missed his birthday and asked:

"Where is my kiss?"

[23] Whilst asking, he leant over the counter and put his cheek up to the girls' faces. The complaint stated that while they kissed his cheek, the girls advised that they felt uncomfortable and pressured to do so.

[24] Further, the respondent's client had been told by their female staff that Mr Sapienza gets physically close to their female employees and had put his arms around the waist of a staff member and placed his hand on a staff member's hip.

[25] The complaint further stated that he hugs employees when leaving.

[26] In respect of these complaints relating to physical contact, Mr Sapienza acknowledged that after getting to know the client’s staff well he did hug the female staff on arriving and leaving the client's premises and they hugged him in return. He acknowledged that he may have put his arm on the hip of one of the employees but did not recall this event. Mr Sapienza also accepted that he may have asked the female employees for a kiss due to his cheeky nature and tendency to joke around. His birthday was on 6 July, which is consistent with the comment that on 10 July he stated to the female employees that they had missed his birthday.

[27] Mr Sapienza's explanation for this conduct was that as an Italian he was used to affection and showing affection. He also hugged staff at other client premises that were in their 40s (on his assumption). By way of example, Mr Sapienza said that he kissed his father every time he saw him until he passed away. Mr Sapienza said he was of the belief that the physical encounters were consensual and friendly, and had he thought otherwise, it would have ceased immediately. Mr Sapienza said there was no sexual connotation in his conduct and at all times it was consensual and friendly.

[28] The third complaint also referred to Mr Sapienza engaging in unprofessional and unprovoked conversations with staff while collecting deposits, and that he was staying talking for 20 minutes on occasions, which the staff tried to avoid. Mr Sapienza stated that with this particular client he would have to wait until they finished serving staff, and as they never had their paperwork in order, the process could take 15 to 20 minutes.

[29] Mr Sapienza explained that his allegation of unfair dismissal was based on the fact that he had never been warned in writing or verbally in respect of the conduct said to have occurred in the complaints dated 18 April and 29 June.

[30] He stated that he was unaware of the complaints.

[31] He stated that he was never spoken to or provided with an opportunity to respond to the complaint of 18 July relating to his conduct with female staff at ICE Design, and on that basis, his application was made for financial compensation and a desire to clear his name.

[32] Following his dismissal, he was unemployed for a period of two months and fortunately has now secured a position in sales, earning the same or slightly less than that earnt in his previous position with the respondent.

Consideration

[33] In dealing with unfair dismissal applications, the Commission is required to take into account a number of factors, the first being whether there was a valid reason for the dismissal relating to the person's conduct. Due to the approach taken by the respondent in not attending the hearing, either in person or by videoconference, nor providing any further assistance to the Commission other than filing their F3 Form in defending the unfair dismissal claim, the Commission was without the benefit of any detailed criticism of Mr Sapienza's conduct.

[34] Mr Sapienza was not cross examined, and as such, generally his evidence must be accepted, as he was prepared to come to the Commission by taking a day off work and provide his evidence under oath, something which the respondent elected not to do. The respondent made no effort to advise the Commission it would not comply with the directions or attend the hearing. It wasn't until the day of the hearing following the Commission's contact that the respondent's non-attendance was elicited from the respondent.

[35] The respondent has stated that due to the nature of the complaints, none of the clients are prepared to identify themselves in the proceedings with statements for fear of retaliation from the applicant. This response is somewhat unusual due to the detailed nature of the complaints, other than the events of 29 June, and it is clear to Mr Sapienza who the complainants are.  The suggestion of retaliation was put to Mr Sapienza, who vehemently denied that it was in his nature to retaliate simply because a complaint had been made against him. His evidence is accepted on this issue.

[36] Mr Sapienza denies the events as described by the respondent occurring on 18 April and 29 June 2017. He further denies having ever been advised of the complaints for these events until he received his termination of employment letter. There had been no contradiction of this evidence, with the respondent choosing not to produce any evidence to support that Mr Sapienza was ever spoken to, nor provide a statement from Mr Hoareau. On this basis these two alleged incidents do not provide a valid reason for Mr Sapienza's dismissal.

[37] In respect of the complaint received on 18 July, purportedly from ICE Design, much of which Mr Sapienza denied, there is conduct which he agrees occurred, or may have occurred, despite him placing the conduct in a different context than that portrayed in the complaint. I find that the admission by Mr Sapienza that he did hug and ask for a kiss from women as young as 18 years was sufficient to substantiate that the respondent had a valid reason for the applicant's termination of employment. Despite Mr Sapienza's explanation that his conduct was due to his Italian heritage and being of an affectionate nature, the actions were improper, unprofessional and naive, to say the least.

[38] The Commission is further required to consider whether the applicant was notified of the reasons for termination. The reason for termination was clearly elaborated on in the termination of employment letter given to the applicant. However, it cannot be said that the applicant was provided with any opportunity to respond to the reasons for dismissal, particularly the 18 July complaint, as he was summarily terminated without even a verbal conversation with his employer.

[39] I further accept that the complaints concerning the incidents occurring on 18 April and 29 June were never brought to the applicant's attention by Mr Hoareau, and while it was within the respondent's capacity to demonstrate otherwise, this was not done.

[40] Mr Sapienza's work performance in his role as the cash courier was not in question. It was his alleged conduct unrelated to his duties which was the concern to his employer and their clients.

[41] While it would appear that the respondent has little if any human resource management expertise, the process it adopted concerning Mr Sapienza's dismissal was seriously lacking in procedural fairness. However, in view of Mr Sapienza's admissions in respect to his physical contact with young female staff of a client of the respondent, I do not find that summary dismissal was harsh, unjust or unreasonable, once this conduct was brought to the attention of the respondent.

[42] This conclusion is reached having regard to the considerable age difference between Mr Sapienza and the female employees. The explanation provided by Mr Sapienza of showing affection due to his Italian heritage falls short of justification for such behaviour towards otherwise unrelated persons. This is a complete and distinct difference from how one may conduct themselves with physical familiarity towards friends or in a family environment.

[43] If Mr Sapienza did not know or appreciate that it is inappropriate asking 18 year old females for a kiss and indulging in the practice of hugging as a greeting or goodbye, which may not be reciprocated willingly by much younger persons, he ought to.

[44] I have considered the clear procedural deficiencies involved in Mr Sapienza's dismissal and the fact that he was unemployed for a two month period, viewed against his limited service with the respondent and the nature of the conduct in regard to the third complaint, which to his credit Mr Sapienza accepted some of which did occur.

[45] Having found that a valid reason for the dismissal existed and considering all other factors under s.387 of the FW Act, the Applicant has not demonstrated to my satisfaction that his dismissal was harsh, unjust or unreasonable.

[46] On this basis, the application is dismissed. The Commission is adjourned.

Seal of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

Appearances:

Applicant: Mr Carmelo Sapienza on his own behalf

Respondent: No appearance

Hearing details:

2018

Perth

19 January

<PR599927>

 1   See extra curial publication (1997) 9 Judicial Officers’ Bulletin Gleeson CJ at 25

 2   [2017] FWC 5939

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