| [2020] FWC 70 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Enzo Liistro
v
Services of Top Cut Foods (Vic) PL T/A Top Cuts
(U2019/10043)
COMMISSIONER BISSETT |
MELBOURNE, 8 JANUARY 2020 |
Application for an unfair dismissal remedy.
[1] Mr Enzo Liistro was employed as a driver by Top Cut Foods (Vic) PL trading as Top Cuts (Top Cut Foods). His employment was terminated on 6 September 2019 following an incident in which he drove a truck into a metal container used to store meat, damaging the vehicle. Mr Liistro has subsequently applied for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).
[2] Mr Liistro’s application was made within the requisite period of 21 days, he has served the minimum employment period and is covered by a modern award such that he is protected from unfair dismissal. His dismissal was not a redundancy and Top Cut Foods is not a small business, having approximately 250 employees.
[3] Neither party was represented at the hearing before me and, having heard from the parties I determined that the matter should be dealt with by way of conference.
[4] Mr Liistro has worked for Top Cut Foods since September 2009.
[5] At the time of his dismissal Mr Liistro had a first written warning on his file in relation to an incident on 24 June 2019 in which he put the incorrect fuel into the truck he was driving. Mr Liistro said that the error was ‘an honest mistake’. The cost to the company of the requirement to have the truck towed and the fuel drained was $827.00. 1
[6] Mr Liistro had also been subject to an investigation into his conduct in using bathroom facilities and accessing a staff room at a site he had undertaken a delivery to in April 2019. This investigation did not lead to any findings against Mr Liistro and no disciplinary action resulted. 2
[7] Top Cut Foods claimed that there were a range of other performance matters it had raised with Mr Liistro in relation to his performance. Whilst there was some dispute as to the detail of these matters and if and when they had been raised with Mr Liistro they did not, in any event, result in any disciplinary action or warnings being given to Mr Liistro.
[8] Mr Liistro said that on 6 September 2019 he had completed a delivery using one of the work vans. On return to Top Cut Foods’ premises he was instructed to use a hire van which had been brought in because other delivery vans were out of commission. Mr Liistro said that, as required, he inspected the van so that he understood its layout etc. On doing so Mr Liistro said that he observed a ‘hump’ next to the brake pedal. He said the hump was about five inches high.
[9] Mr Liistro got into the van and said he needed to carefully manoeuvre it from where it was parked so as not to hit cars parked around him in the company car park. Directly ahead of him were some stacked crates. To get out of the car park he said he had to pull out and turn sharply to the right to avoid the cars and the crates. He said he was going at about 5 km per hour as he drove out. He said he braked to slow down but his foot hit the hump and he hit a crate instead. He estimated that at the time he hit the crate he was going at 2-3 km per hour.
[10] Mr Liistro said he got out of the van and inspected the damage. He said that there was only a small amount of damage to the vehicle although did agree that there was coolant coming out of the vehicle. He called over to a forklift driver who was about 50 metres away and explained to him what had occurred. The forklift driver went and got Mr Abhishek (Mr Liistro’s supervisor). Mr Jason Watkins, the Site Manager, was then contacted and came out to the site of the incident. Mr Watkins said that Mr Liistro had driven into a metal container used to store meat.
[11] Mr Liistro said that Mr Watkins swore and yelled at him, said the van was not insured and told Mr Liistro the incident had ‘cost him his job’. Mr Watkins told Mr Liistro to go to the office. Mr Liistro said that when Mr Watkins came into the office he told him he could have a support person but did not offer to schedule the meeting so that Mr Liistro had time to arrange a support person. Mr Liistro said that Mr Watkins started writing out a report on the incident but did not ask Mr Liistro anything. Mr Liistro told Mr Watkins what had happened (that his foot got stuck on the hump next to the brake). Mr Liistro said that Mr Watkins told him that he was a professional driver and he should know the layout of the vehicle. An administrative employee (‘Wendy’, last name not known) and Mr Abhishek were both present at the meeting. Mr Liistro complains that no-one enquired as to his health and wellbeing following the incident.
[12] At the conclusion of the meeting Mr Liistro’s employment was terminated. He said was walked off the site that day.
[13] Mr Liistro said that he was treated more harshly than another driver (‘Joe’, last name not known) who had ‘totalled’ two vans but had not had his employment terminated. Mr Liistro said that the damage he caused to the van was minimal. He said other vans had dents in the rear doors and no-one else had been dismissed. He said he was made a scapegoat.
[14] Mr Liistro said he had been working with Top Cut Foods for the last 10 years and was happy there. He seeks reinstatement.
[15] Mr Liistro said that since his employment was terminated he had applied for over 40 jobs without success. He said that if his employment had not been terminated he would have continued with Top Cuts Food for another four years.
[16] Mr Watkins said that 6 September 2019 was a Friday and a very busy day. On top of the normal work, he had vans out of operation and had to arrange a hire van. He said that he was called out to the yard by Mr Abhishek. When he got there he observed that there was coolant leaking from the van and damage to the front of the van that had been allocated to Mr Liistro to drive. Mr Watkins agreed that, when in the yard, he said to Mr Liistro ‘what the fuck have you done’ but by the time of the meeting in the office he had calmed down. He said he did not tell Mr Liistro that the incident would cost him his job but did say it could cost him his job.
[17] Once in the office Mr Watkins told Mr Liistro that the meeting was a disciplinary meeting and that Mr Liistro could have a support person (which Mr Liistro declined). He asked Mr Liistro what had happened to which Mr Liistro said that the van did not stop. Mr Watkins asked whether Mr Liistro had hit the brakes or if the brakes did not work. Mr Liistro advised the incident was due to the ‘hump’ next to the brake.
[18] Mr Watkins told Mr Liistro that he was an experienced driver, the incident was not good enough and that, in conjunction with other matters, it had been decided to terminate his employment. When asked what the ‘other matters’ were Mr Watkins said it included the incorrect petrol incident in June 2019, the inappropriate access to facilities in April 2019 and the failure to make prison deliveries as required in mid-2019.
[19] Mr Watkins agreed that Mr Liistro had been told nothing had come of the investigation into the April 2019 incident (although said Mr Liistro was reminded of proper protocol in using the toilet at a customer’s premises) and that following Mr Liistro not delivering as required to the prisons the runs had been changed ‘for operational reasons’.
[20] Mr Watkins said that there was no excuse for what Mr Liistro did on 6 September 2019, that it was ‘minor and silly’ and he was not in control of his vehicle when, as an experienced driver, he should have been. He said Mr Liistro had put others at risk by his conduct as he had lost control of the vehicle.
[21] Mr Watkins said that he accepts that everyone makes mistakes but Mr Liistro appeared to be becoming more forgetful over the past year, his mind did not appear to be on the job and his performance was getting worse.
[22] Mr Watkins completed a further Performance Improvement Form in relation to the incident that day 3 during the meeting with Mr Liistro. He said he marked ‘final written warning’ on the Form as he understood that to mean dismissal.
[23] Ms Stacey Reynolds is the Human Resources Manager for Top Cut Foods. She said that while the investigation into the inappropriate use of toilet facilities substantiated that Mr Liistro was in the staff lunchroom, they could not find any substantiated evidence of anything being missing. She was not aware if this outcome had been conveyed to Mr Liistro.
[24] Ms Reynolds agreed that the only written warning on Mr Liistro’s file prior to the incident of 6 September 2019 was the petrol matter of June 2019. She said that the incident of 6 September 2019 was classified as a near miss even though no-one else was in the vicinity at the time. She said that a near miss is defined as an accident that could have caused harm even though no-one was hurt.
[25] Ms Reynolds said that Mr Watkins contacted her before he spoke to Mr Liistro in the office. He told her that Mr Liistro had caused damage to the vehicle. He also said that he had ‘a couple of diary notes with respect to [Mr Liistro’s] performance’ (listed in an email 4).
[26] In that phone call Mr Watkins told Ms Reynolds that he had sent Mr Liistro to the office and had spoken to Mr Abhishek. Mr Watkins said Mr Liistro was becoming more forgetful and not following procedure. Ms Reynolds said that she and Mr Watkins ‘decided on balance’ to terminate Mr Liistro’s employment but that the final decision on this would be up to Mr Watkins after he met with Mr Liistro.
[27] Having been satisfied that Mr Liistro is protected from unfair dismissal, that his employment was not terminated by reasons of redundancy and that the Small Business Fair Dismissal Code does not apply, it is necessary to consider if his dismissal was harsh, unjust or unreasonable in order to determine if he was unfair dismissed.
[28] Section 387 of the FW Act articulates those matters that I must consider in deciding if the dismissal of Mr Liistro was harsh, unjust or unreasonable. Section 387 states:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(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; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(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; and
(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; and
(h) any other matters that the FWC considers relevant.
[29] For a reason for dismissal to be a valid reason it must be ‘sound, defensible and well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.’ 5 In considering if there is a valid reason for dismissal the Commission does not ‘stand in the shoes’ of the employer – that is, it is not the role of the Commission to determine what it would do if it was the employer but rather to determine if the reason of the employer for dismissal was a valid reason.
[30] Mr Liistro’s employment was terminated because of the incident of 6 September 2019 in which he damaged a hire van. When Mr Watkins considered this in conjunction with an existing written warning in relation to incorrect fuel in a van, the inappropriate use of toilets at a facility he was delivering to, failure to deliver to prisons as required and a general increase in forgetfulness of Mr Liistro, he decided to dismiss Mr Liistro.
[31] I am not satisfied, on the basis of the material before me, that this presented a valid reason for the dismissal of Mr Liistro.
[32] At the time Mr Liistro’s employment was terminated he had a first written warning on his file and no more. This was attributable to the fuel incident in June 2019. Beyond the incident on 6 September 2019 there is no evidence of any other matters having been raised with Mr Liistro with respect to his performance since the issue of the written warning. Any incidents prior to the fuel incident warranted no more than some discussion with Mr Liistro (to the extent there is evidence of these matters having been raised). The inappropriate use of the toilet warranted no further action (on lack of substantiation of allegations) beyond a reminder of protocol for using facilities at sites he was delivering to.
[33] It seems to me that if the incidents that pre-dated the fuel incident were of such importance or demonstrated an accumulation of inappropriate conduct or performance these should have been raised, or would have influenced, the decision taken to issue the first written warning in June 2019. Had those incidents occurred after the fuel incident, it is not apparent why they would not be written up in a more formal manner. That they apparently did not otherwise warrant some formal counselling report raises a question as to the validity of them now being taken into account to justify Mr Liistro’s dismissal.
[34] In any event Mr Watkins described the incident of 6 September 2019 as ‘minor and silly’. Such a description does not suggest that the incident, even in conjunction with other matters, would justify dismissal.
[35] I accept that the incident of 6 September 2019 was a ‘near miss’ but note Ms Reynolds’ evidence that not all near misses warrant dismissal. Further, there was no one in the immediate vicinity of the incident (the nearest person was about 50 metres away) and I accept Mr Liistro’s uncontested evidence that he was travelling very slowly and that, if he had not hit the crate, he would have damaged one of the cars parked nearby.
[36] I accept that Mr Watkins was angry that morning. He was very busy and he did swear in asking Mr Liistro what had occurred. I do not accept that he told Mr Liistro that it would cost him his job but did suggest that it could do so.
[37] While I accept that there was damage done to the hire vehicle (on Top Cut Foods’ submission about $5,000.00 plus lost time and the cost of hiring another van) I am not satisfied, on balance, that it provides a valid reason for dismissal in that I do not consider the reason defensible in all of the circumstances. This is not to say that Top Cut Foods would not have been justified in taking disciplinary action against Mr Liistro but I consider dismissal, in these circumstances, to be justified.
[38] Whilst there was no valid reason for his dismissal I am satisfied that Mr Liistro was advised of the reasons of Top Cuts Food for his dismissal – that is the incident of 6 September 2019 and the earlier incidents.
[39] I am, however, not satisfied that Mr Liistro was given an opportunity to respond to the totality of the reasons for his dismissal prior to the decision to dismiss him having been made.
[40] It is clear from the evidence that the only matter Mr Liistro was asked to respond to was the incident of 6 September 2019. While Mr Liistro was advised by Mr Watkins that Top Cut Foods was considering terminating his employment because of the accumulation of matters as articulated in the hearing before me it is not apparent that he was given an opportunity to respond to each of those issues. Further, I am not satisfied that Mr Watkins advised Mr Liistro that Top Cut Foods was considering terminating Mr Liistro’s employment because of all of the incidents combined such that he could have influenced that decision before it was made.
[41] I am satisfied that Mr Watkins and Ms Reynolds discussed dismissal of Mr Liistro prior to Mr Watkins meeting with him but am satisfied that the final decision was left to Mr Watkins following the meeting with Mr Liistro.
[42] For these reasons, even if the reasons for dismissal formed a valid reason, I would not be satisfied that Mr Liistro had been advised of the totality of the reasons for his dismissal or given an opportunity to respond to all of these reasons prior to the decision being taken to dismiss him.
[43] I am satisfied that Mr Watkins advised Mr Liistro that he could have a support person with him at the meeting on 6 September 2019. Whilst Mr Liistro said that the meeting was not deferred until he could get a support person I am not satisfied that Mr Liistro made such a request. Had he done so and the request refused I might have found that he had been unreasonably denied access to a support person.
[44] On the evidence before me I do not find that Mr Liistro was unreasonably denied access to a support person.
[45] Mr Liistro’s employment was terminated for poor performance. Performance includes ‘factors such as diligence, quality, care taken and so on’. 6 It is, in this case, the care taken by Mr Liistro that went to the reason for dismissal.
[46] There is no doubt that Mr Liistro had been warned about his performance in relation to the fuel incident in June 2019.
[47] Whilst Mr Watkins said he had spoken to Mr Liistro about his performance in relation to some matters, Mr Liistro did not agree that this had occurred. While Top Cut Foods provided an email sent by Mr Watkins in which he detailed three issues he had with Mr Liistro’s performance 7 and said that the information in the email came from Mr Watkin’s diary notes, the diary notes were not provided to the Commission. Additionally, no dates of the incidents were given and no detail of what may have been said to Mr Liistro at the time was detailed.
[48] In the absence of such information all that can be accepted is the June 2019 written warning and all that warning indicated was that Top Cut Foods had decided to ‘document the incident’. There is otherwise no evidence of any warning to Mr Liistro that a failure to improve his performance to some specified standard (as opposed to a general request) could result in termination of his employment.
[49] I am therefore not satisfied that Mr Liistro was adequately warned with respect to his performance.
[50] Top Cut Foods has approximately 250 employees. It also has specialist human resources staff (including Ms Reynolds). In these circumstances it would not be expected that the size of the employer’s business would have had any adverse consequences on how the dismissal of Mr Liistro was effected.
[51] It is apparent from the written warning provided to Mr Liistro and through the evidence of Ms Reynolds that Top Cut Foods has a properly developed process for dealing with performance or conduct issues in the workplace.
[52] Mr Watkins discussed the incident and possible response with Ms Reynolds prior to proceeding with his meeting with Mr Liistro on 6 September 2019 and received advice from her.
[53] In these circumstances I consider these matters a neutral consideration in my determination of whether the dismissal was harsh, unjust or unreasonable.
[54] Mr Liistro gave uncontested evidence that other employees have been involved in more serious matters than his incident of 6 September 2019 and not had their employment terminated. In particular he referred to ‘Joe’ who had totalled two vans and not been dismissed and to other (unspecified) incidents in which vans had been damaged with no adverse consequences for the relevant drivers.
[55] Mr Liistro also said that the consequences of his dismissal have been substantial as he had just started building a new house and now has no income.
[56] Given my finding as to a lack of a valid reason I am satisfied that the dismissal of Mr Liistro was unjustified.
[57] Even if I had found that there was a valid reason for the dismissal of Mr Liistro related to the 6 September 2019 incident in conjunction with earlier performance issues, I would have found the decision to dismiss Mr Liistro harsh and unreasonable. As Mr Watkins said the ‘general matters’ in relation to Mr Liistro’s performance happened to other employees as well. It seems to me that if those matters are accepted as part of doing business then to rely on them to justify the dismissal of Mr Liistro is unreasonable in that Mr Liistro was treated differently to other employees. In addition, that Mr Watkins relied on the April 2019 matter in part to justify dismissal when he agreed, and told Mr Liistro, that nothing had come of that investigation is unreasonable.
[58] To rely on the incident of 6 September 2019 because it was a near miss is not reasonable in circumstances where Ms Reynolds agreed that not all near misses result in termination of employment and in circumstances where the nearest other employee was 50 metres away, well away from the incident.
[59] Because of the economic consequences on Mr Liistro I would have found the dismissal to be harsh.
[60] For these reasons I am satisfied that the dismissal of Mr Liistro from his employment was unfair.
[61] Mr Liistro seeks reinstatement. Top Cut Foods opposes reinstatement on the basis that the working relationship between Mr Liistro and Mr Watkins has deteriorated.
[62] Mr Watkins said that, while Top Cut Foods is a national organisation, each site is required to perform its own functions to the required standard. Mr Watkins said that Mr Liistro’s lack of attentiveness and his forgetfulness were having a negative impact on the business.
[63] Mr Liistro said that he has very little interaction with Mr Watkins on a day to day basis.
[64] Whilst it would often be the case that the lack of day to day interaction between a manager and employee of a business would weigh in favour of reinstatement where sought, in this case Mr Watkins is the manager of the site where Mr Liistro works and Mr Liistro’s performance can have direct consequences for Mr Watkins.
[65] There are nine drivers at the site delivering to a diverse geographic area (Mr Liistro spoke of delivering to Beaufort and Castlemaine). A failure to perform by one driver may well have consequences for others. In circumstances where the deliveries are of food there are also consequences for customers which includes prisons and health facilities.
[66] In these circumstances I am satisfied that it is reasonable that Mr Watkins should have confidence in his drivers. The June 2019 petrol incident and the September 2019 incident are such that it is reasonable that Mr Watkins has lost trust and confidence in Mr Liistro. Each of these incidents led to a truck being off the road, deliveries not being made on time and additional costs to the business.
[67] For these reasons I am satisfied that it is not reasonable that Mr Liistro be reinstated.
[68] It is therefore necessary that I consider compensation. In making a determination on this matter I have taken into account those matters set out in s.392(2) of the FW Act.
[69] I am satisfied that any order of compensation will not adversely affect the viability of Top Cut Foods.
[70] Mr Liistro had worked for Top Cut Foods for 10 years.
[71] In determining the remuneration that Mr Liistro would have received had his employment not been terminated I have taken into account that Mr Liistro had no immediate plans to retire and considered he would have remained at Top Cut Foods for a further four years (until he turned 70). Top Cut Foods took no issue with this.
[72] In these circumstances I am satisfied that Mr Liistro would have remained employed for a further four years. At the time of his dismissal Mr Liistro was earning $41,495.00 per annum and in receipt of 9.5% superannuation. I am satisfied therefore that, had he not been dismissed, Mr Liistro would have received $165,980.00 plus 9.5% superannuation.
[73] There is no reason to assume any specific contingencies beyond those routinely encountered. I have therefore deducted 10% for contingencies. Mr Liistro’s ‘lost’ remuneration is therefore $149,382.00 plus 9.5% superannuation.
[74] Mr Liistro said that he has applied for 40 jobs since the time of his dismissal with no success. Again, Top Cut foods takes no issue with this. I am therefore satisfied that Mr Liistro has sought to mitigate his loss and make no deduction for a failure to do so.
[75] Mr Liistro has not had employment (beyond a day or two) since his dismissal. There is no deduction to be made for this purpose. I do however deduct $3,192.00 which represents four weeks’ pay in lieu of notice paid to Mr Liistro on the termination of his employment.
[76] There are no other relevant matters.
[77] Mr Liistro did not engage in any misconduct such that any award of compensation should be reduced for this reason.
[78] The amount of compensation calculated in accordance with s.392(2) well exceeds the compensation cap 8 of $20,747.50. The amount I will order that Top Cut Foods pay to Mr Liistro is therefore $20,747.50 plus 9.5% superannuation paid into Mr Liistro’s superannuation account.
[79] An order 9 reflecting this will be issued with this decision. It will require that Top Cut Foods pay the amount within 14 days of the making of the order.
COMMISSIONER
Appearances:
E. Liistro on his own behalf.
B. Liistro for the Applicant.
S. Reynolds for Services of Top Cut Foods (Vic) PL T/A Top Cuts.
Hearing details:
2020.
Melbourne:
January 3.
Printed by authority of the Commonwealth Government Printer
<PR715750>
1 Respondent’s documents 2-4.
2 Respondent’s document 1b.
3 Respondent’s document 5.
4 Respondent’s document 9. The actual diary notes were not provided to the Commission.
5 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IRCA 371.
6 Annetta v Ansett Australia (2000) 98 IR 233 at [16].
7 Respondent’s document 9.
8 The compensation cap is the lesser of the amount of remuneration the person was entitled to in the 26 weeks before the dismissal or half the amount of the high income threshold. In this case it is the amount Mr Liistro would have received in the 26 weeks prior to his dismissal. See s.392(5) & (6) of the FW Act.