Ahmed Aaron Berjaoui v Aspley Hotels Pty Ltd [1995] IRCA 582

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CLAIM OF UNLAWFUL TERMINATION - WHETHER PERIOD OF PROBATION REASONABLE - WHETHER VALID REASON FOR TERMINATION - COMPENSATION. INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170EDA, 170DC, 170EE INDUSTRIAL RELATIONS REGULATIONS 1989 Reg. 30B Nicolson v ­Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 AHMED AARON BERJAOUI -v- ASPLEY HOTELS PTY LTD - NI 95/2435 BEFORE: R D FARRELL JR PLACE: PERTH (HEARD IN SYDNEY) DATE: 31 OCTOBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. NI 95/2435 BETWEEN: AHMED AARON BERJAOUI - Applicant AND: ASPLEY HOTELS PTY LTD - Respondent MINUTE OF ORDERS BEFORE: R D FARRELL JR PLACE: PERTH (HEARD IN SYDNEY) DATE: 31 OCTOBER 1995 THE COURT DECLARES THAT: 1. The termination of the employment of the applicant contravened Section 170DE of the Industrial Relations Act 1988. AND THE COURT ORDERS THAT: 2. The respondent shall pay compensation to the applicant in the sum of $4,500.00 within 14 days of the date of this order. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. NI 95/2435 BETWEEN: AHMED AARON BERJAOUI - Applicant AND: ASPLEY HOTELS PTY LTD - Respondent BEFORE: R D FARRELL JR PLACE: PERTH (HEARD IN SYDNEY) DATE: 31 OCTOBER 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 ("the Act") for compensation arising from the alleged unlawful termination of the employment of the applicant, Ahmad Aaron Berjaoui ("Mr Berjaoui"), by the respondent, Aspley Hotels Pty Ltd, which trades as Inter-Continental Hotel Sydney ("the Inter-Continental"). Reinstatement is not sought. Mr Berjaoui, who represented himself, alleges that the Inter-Continental breached the provisions of Section 170DE(1) of the Act and contends that the termination of his employment did not occur for a valid reason. Further, Mr Berjaoui contends that the termination of his employment was in any event harsh, unjust or unreasonable within the meaning of Section 170DE(2) of the Act. Mr Lees, who appeared for the Inter-Continental, contends that at the time of his dismissal, Mr Berjaoui was serving a period of probation, and is therefore excluded from the operation of Section 170EA of the Act. It is also contended on behalf of the Inter-Continental that there was in any event a valid reason for the termination, based on Mr Berjaoui's conduct, and that the termination of Mr Berjaoui's employment was not harsh, unjust or unreasonable within the meaning of Section 170DE(2) of the Act. Mr Berjaoui contends that he was not given the opportunity to defend himself against any allegations made against him in relation to his conduct. Mr Berjaoui's Earlier Employment Mr Berjaoui was first employed by the Inter-Continental as a steward (otherwise described as a Kitchen Attendant Grade 1) on 7 March, 1994. On or about 12 March, 1995 he left to travel overseas. In the weeks before leaving, Mr Berjaoui asked Siva Kumaran Mathiaparaha, the then chief steward, ("Mr Mathiaparaha") for two months' unpaid leave. It was Mr Mathiaparaha's evidence, and the Inter-Continental's contention, that while Mr Mathiaparaha supported Mr Berjaoui's application for unpaid leave, it was rejected by the Inter-Continental's Human Resources Department more than a fortnight before Mr Berjaoui's departure. It was Mr Mathiaparaha's evidence that he personally explained to Mr Berjaoui that he would have to resign, but that the Hotel would re-employ him if he applied for a job on his return, provided there was a position vacant. Mr Berjaoui contends that he was told by Mr Mathiaparaha that the leave had been granted and that he left to go overseas with that belief. Mr Berjaoui says that he did not learn until his return that his employment had been terminated. The documentary evidence tends to support Mr Berjaoui's account. The Human Resources Transaction Form (Exhibit R6) was not completed until 24 March, 1995 and the earliest date appearing upon it is 20 March 1995. It is apparent from Exhibit R12 - the schedule of termination payments - that Mr Berjaoui's accrued entitlements were not paid out until Friday, 31 March, 1995 - some three full working weeks after Mr Berjaoui's last day of work on Sunday, 12 March, 1995, and more than 5 weeks after Mr Mathiaparaha says the decision was made that leave would not be granted and that Mr Berjaoui would have to resign. It was contended on behalf of the Inter-Continental that this delay was purely administrative in nature. If this were so, it would reflect poorly on the Inter-Continental's standards of administration, particularly where it had the effect of significantly delaying the payment of an employee's entitlements. I find it difficult to accept that administration in an establishment in the Inter-Continental's position would be so poor. Having considered the evidence before me, including the oral testimony of Mr Berjaoui and of Mr Mathiaparaha, and taking into account the documentary evidence, I find that Mr Berjaoui was not advised prior to his leaving that his application for unpaid leave had been rejected. I conclude on the evidence that Mr Mathiaparaha expected that unpaid leave would be granted, and communicated this expectation to Mr Berjaoui. When this was not the case, Mr Mathiaparaha did his best to achieve the next best outcome - immediate re-hiring. The documentary evidence leads me to conclude that the decision was not finally made until after Mr Berjaoui's departure, and therefore could not have been communicated to him before his departure. The termination of Mr Berjaoui's employment in March 1995 is, of course, not the termination giving rise to this application. However, the fact that Mr Berjaoui had previously been employed by the Inter-Continental forms part of the relevant circumstances in this claim. The Inter-Continental recognised this by, for example, adducing evidence of disciplinary notices arising out of this earlier period of employment. The first of these, dated 20 October 1994 (Exhibit R4), is classified as a formal written warning. It was issued by an employee known as "Sunil" (Mr Mathiaparaha's predecessor as Chief Steward) and was counter-signed by Mr Berjaoui. It records that Mr Berjaoui took a 45 minute dinner break on that day, staying in the canteen instead of returning to his work after the half an hour break allowed, and that this delay caused an operational problem. Mr Berjaoui has noted on the notice "Sunil please see me for discussion". It was Mr Berjaoui's evidence that, once he and Sunil had had the chance to discuss the issue, the matter was left with Sunil telling Mr Berjaoui "no problem". Sunil is no longer in the employ of the Inter-Continental and was not available to give evidence. The second disciplinary notice, dated 30 October 1994 (Exhibit R5), is also classified as a formal written warning, and was issued by Maanjit Singh ("Singh") - another of Mr Berjaoui's superiors. It records that Mr Berjaoui took a number of unauthorised "coffee breaks" on that shift, so that other stewards were required to do his allocated tasks, and that when told that his conduct was causing disruption, Mr Berjaoui responded by saying "Don't tell me what to do, You can call anybody you like, I am leaving next week." The notice is countersigned by Sunil and one other, who has not been identified. It is recorded upon the notice - apparently by Singh - that Mr Berjaoui refused to sign the notice or make any statement. Mr Berjaoui denies that this notice was ever presented to him at the time. Singh did not give evidence. In his evidence concerning the incident the subject of the notice dated 30 October 1994, Mr Berjaoui explained that in one of the breaks he had to move his car, as the parking had run out. More generally, he said that, at about that time, he had formed the view that Singh was going to "get him" and that was why he had decided to leave. He did not, in the end, act on this decision. It is clear, therefore, that there were two written warnings on Mr Berjaoui's file arising from his first period of employment, but in the absence of evidence from Messrs Singh and Sunil, I accept Mr Berjaoui's evidence that the significance of the first warning was played down by the Inter-Continental's representative following a discussion with Mr Berjaoui of the circumstances, and that the incident giving rise to the second warning was at least partly justifiable. More importantly, it is noteworthy that Mr Mathiaparaha had written "Can we rehire. He is good" on the Human Resources Transaction Form completed in March 1995 in connection with Mr Berjaoui's departure overseas (Exhibit R6). Mr Mathiaparaha confirmed in his oral evidence that this was his assessment, and gave evidence that Mr Berjaoui was rehired "largely because he had previous experience". I therefore find that, as at March 1995, and notwithstanding the written warnings, the overall assessment of the Inter-Continental's representative was that Mr Berjaoui was a good employee. Re-employment of Mr Berjaoui on Probation On his return, Mr Berjaoui contacted the Hotel and was rehired, completing a new application for employment on 16 May 1995 (Exhibit R11) and commencing work again as a steward on Monday, 22 May, 1995. Mr Mathiaparaha says that during a discussion with Mr Berjaoui before he started work on 22 May 1995, Mr Mathiaparaha told Mr Berjaoui that he would be on probation for three months. It is not contested that when Mr Berjaoui was first employed by the Inter-Continental on 7 March 1994, he was placed on a three month probationary period. This was confirmed by the Inter-Continental's letter of engagement, which is dated 11 March, 1995 and was acknowledged by Mr Berjaoui on 13 March, 1995 (Exhibit R1). That letter states that "All offers of employment are subject to a three month probation period...". The Inter-Continental claims that a similar letter was in the process of being prepared in connection with Mr Berjaoui's re-employment, but was not completed before Mr Berjaoui's dismissal. I note that the Human Resources Transaction Form completed by Mr Berjaoui on 16 May 1995 was not processed by the Human Resources Section until 29 May 1995 (Exhibit R10). I am satisfied on the evidence before me that the Inter-Continental intended that Mr Berjaoui again be on three month's probation, and that Mr Berjaoui was orally advised of this on 22 May 1995. The legal consequences of this are considered. Alleged Favouritism Mr Berjaoui complained in his evidence that he was "not treated properly" by Mr Mathiaparaha on his return to work. He said that while his relationship with Mr Mathiaparaha had been good before he left to go overseas, it was no longer good after he was re-employed. I note in this context that Mr Mathiaparaha gave evidence that, when Mr Berjaoui applied for re-employment, two supervisors and at least two staff members advised Mr Mathiaparaha not to employ him. Mr Berjaoui's specific complaint was that Mr Mathiaparaha would often change Mr Berjaoui's job allocation and his shift times to suit the preferences of the other employees on Mr Mathiaparaha's team. After his re-employment, Mr Berjaoui was rostered to work shifts either from 8am to 4pm or from 9am to 5pm. The duties were either the cleaning of plates prior to placing them in the washing machine ("sketches") or the cleaning and washing of pots and pans ("potwash"). It seems the former duties were generally preferred. Mr Berjaoui's complaint is that he would often be moved by Mr Mathiaparaha to potwash duties for the benefit of favoured members of the team when that was not originally his allocated task. He also complained that on many occasions - he says as often as 7 days out of 10 - Mr Berjaoui would report for duty at 8am in accordance with the scheduled roster, only to be advised by Mr Mathiaparaha that he would be working the 9 to 5 roster that day, and he would be sent to wait in the cafeteria for an hour until the start of his new shift. This would happen - Mr Berjaoui says - when one of Mr Mathiaparaha's favourites wanted the earlier shift so that they could leave early. Mr Mathiaparaha denies these claims, and gave evidence that the rosters for shifts and allocation of duties were drawn up well in advance and were adhered to. It was clear to me that Mr Berjaoui is genuinely aggrieved by his treatment by the Inter-Continental. It does not necessarily follow, of course, that this sense of grievance is well-founded. It was also apparent from his demeanour throughout the hearing that Mr Berjaoui has a forceful personality, and would not be inclined to readily submit to an injustice or a perceived injustice being done to him. I accept that he genuinely believed he was being unjustly treated in relation to the allocation of work and in relation to shift changes. Mr Mathiaparaha's evidence was guarded. He answered questions carefully and gave me the impression that he was consciously tailoring his evidence to assist, where possible, the Inter-Continental's case. While I believe that Mr Berjaoui's account of the number of instances of favouritism against him is likely to have been overstated, I accept that Mr Berjaoui was not well-liked by some of his supervisors and workmates, and I accept his evidence that the job allocations and shifts were on at least some occasions changed to his disadvantage and to the corresponding advantage of his workmates. In so finding, I should not be taken to have concluded that there was a premeditated campaign to victimise Mr Berjaoui. Allegations that Mr Berjaoui Refused to Accept Direction Regino Delapaz, who was employed by the Inter-Continental as a trainee supervisor in the main kitchen in May 1995 when Mr Berjaoui was re-employed, gave evidence that Mr Berjaoui refused to accept his direction in connection with the allocation of duties. I am satisfied, having considered all the evidence, that this incident happened on Tuesday 30 May 1995. Mr Delapaz said Mr Berjaoui abused him, saying among other things that he would "do what he liked". It was Mr Berjaoui's evidence that he did not believe that Mr Delapaz had the authority to give him directions. He believed Mr Delapaz was a "normal steward". Mr Mathiaparaha gave evidence that, following this alleged altercation, he warned Mr Berjaoui about the performance of his duties. Mr Mathiaparaha says that during this conversation, Mr Berjaoui became very angry and threatened to report Mr Mathiaparaha to the Human Resources Department. Mr Mathiaparaha says he invited Mr Berjaoui to do so. In his oral evidence Mr Mathiaparaha explained that the basis of Mr Berjaoui's threat was an allegation of improper discrimination by Mr Mathiaparaha against Mr Berjaoui. I note at this point that I do not believe, on the evidence, that any decisions made by Mr Mathiaparaha were based on racial grounds. Mr Berjaoui agrees that he had a talk with Mr Mathiaparaha and Mr Delapaz about this matter. Following his cross-examination on the matter, however, I formed the view that Mr Berjaoui does not accept even now that Mr Delapaz had the authority to give him directions concerning his job allocation. I believe, however, that the genesis of this refusal to accept, in an abstract sense, Mr Delapaz's authority to allocate work lies in Mr Berjaoui's past practical experience that directions as to the allocation of work had not been reasonable, being - as he perceived it - the product of favouritism. Allegations that Mr Berjaoui Left Work Early Mr Delapaz also gave evidence that when Mr Berjaoui's shift began at 9am "he would usually be gone by 4pm", that he "constantly left work early" and that this placed an extra burden on staff working in the same team. Mr Delapaz appeared relaxed as he gave his evidence. He responded to the questions asked of him readily without any apparent concern as to the significance of his answers in the context of the case. There was a lack of precision, however, in his answers, and a tendency to generalise and, I believe, exaggerate. Mr Mathiaparaha gave evidence that as early as on or about Tuesday 23 May 1995 he received complaints from other staff that Mr Berjaoui would not work as part of a team, was inclined to wander off from his work station and the night before had left nearly one hour prior to his shift ending. Mr Mathiaparaha says he spoke to Mr Berjaoui about these complaints but that Mr Berjaoui blamed other staff for the problem. Mr Mathiaparaha's evidence is that he warned Mr Berjaoui that if he was not prepared to work as a team member his future may lie elsewhere. Mr Mathiaparaha gave evidence that some time later Mr Berjaoui had left his work station by about 4pm, nearly an hour before his rostered finishing time. I am satisfied on all the evidence that this was the evening of Wednesday 31 May, 1995. On meeting Mr Berjaoui on another floor, preparing to leave, Mr Mathiaparaha says he asked him why he was leaving so early. Mr Berjaoui is said by Mr Mathiaparaha to have responded that his work was finished and that he had to hurry to get to his other job as a security guard for K-Mart. Mr Mathiaparaha claims that he later established that Mr Berjaoui's work had in fact not been completed, and that other staff were being required do it. Mr Berjaoui denies ever leaving before the end of his shift, with one exception, dealt with below. Otherwise, he claimed that it was the Inter-Continental's expectation that employees stay back past their scheduled finish times to complete their work, without claiming for overtime. Mr Berjaoui says he was not always prepared to do this, and that was what the Inter-Continental meant when it claimed he left early. This was denied by Mr Mathiaparaha in his evidence, but I found his denial so unqualified as to be implausible. It is noticeable that in Mr Mathiaparaha's evidence and in the disciplinary notices he has completed, there are repeated references to Mr Berjaoui having left with duties not being completed and work not being finished. Having considered all the evidence, including that of Mr Delapaz, I accept that the problem arose from Mr Berjaoui leaving before the work allocated to him was finished, so that other employees had to complete it. I am not, however, satisfied that Mr Berjaoui was leaving before his scheduled finish time. Mr Berjaoui says that on one occasion, which I find on all the evidence to be Wednesday 31 May 1995, he left half an hour early, but that this had been authorised. He says that the previous day - probably Tuesday 30 May - he had been asked by Mr Mathiaparaha to help shift furniture at related premises next door to the hotel, on the basis that he work overtime without pay in return for leaving early the next night. Mr Berjaoui says that in fact they worked an hour and a half overtime. Mr Berjaoui says that when he left early the next night, he was challenged by Mr Mathiaparaha, who asked him where he was going. Mr Berjaoui says he responded "You told me to leave" upon which Mr Mathiaparaha had said "OK - leave." Mr Mathiaparaha recalled in evidence the occasion when Mr Berjaoui helped move furniture, but says it was wholly in working hours, and that Mr Berjaoui's early departure was not authorised. I prefer Mr Berjaoui's evidence on this matter. Mr Berjaoui denies that he had another job as a security guard, and says that what he told Mr Mathiaparaha was that he wanted to get another job with a security company. The Inter-Continental led no other evidence to establish that Mr Berjaoui had additional employment, and I am not satisfied that he had any such employment. Disciplinary Notices and Termination Mr Mathiaparaha's evidence is that on Tuesday 30 and Wednesday 31 May 1995, "there being no improvement in his attitude or positive response to the counselling" he had a further interview with Mr Berjaoui, at which disciplinary notifications were completed, which Mr Berjaoui refused to sign. A disciplinary notice was tendered, dated 30 May 1995 (Exhibit R7), which is classified as both a formal written warning and a verbal warning. It was issued by Mr Mathiaparaha and is counter-signed by Mr Delapaz. It is not signed by Mr Berjaoui. The notice records that Mr Berjaoui was warned for "not following the work assignment and not completing his duties". It records that these duties were completed by others. It then records that "Today (30-5-95) he refused to follow the daily duty chart and started late." It records that on being questioned, Mr Berjaoui started to argue and blame the person in charge - Mr Delapaz. Curiously, given that the notice is dated 30 May, the notice then goes on to record an event which is alleged to have occurred on 31 May 1995. It is recorded that on that day, Mr Berjaoui is said to have "left the working area without finish (sic) the work" and that when met by Mr Mathiaparaha, Mr Berjaoui said that everything was finished. Mr Berjaoui's evidence was that the first occasion on which he saw this notice was during a later discussion with an assistant in the Human Resources Department. A further disciplinary notice was tendered, dated 30 May 1995/31 May 1995 (Exhibit R8), which is classified as a verbal warning. It was issued and signed by Mr Mathiaparaha on 31 May 1995, and is not counter-signed by Mr Berjaoui or by anyone else. The notice records that Mr Berjaoui is not finishing his work, and is leaving a lot of work for others. It records that on 30 May 1995 Mr Berjaoui refused to take orders from Mr Delapaz, the acting supervisor (trainee), and that Mr Berjaoui argued, would not start the work and left the work early. It further records that on 31 May 1995, Mr Berjaoui left work without completing and that he is not cooperative with the other associates. At the bottom of the notice, Mr Mathiaparaha writes "As I have done counselling one week back he is not improving his attitude. As you have got second job, not giving full commitment to hotel work. We don't need your services from 1-6-95." Mr Berjaoui does not recall ever having seen this notice. Mr Berjaoui's evidence was that he was simply called in to Mr Mathiaparaha's office at 10am on the date of his termination and was told by Mr Mathiaparaha that Mr Mathiaparaha had decided to terminate his employment. Mr Berjaoui claims that he was shocked by this news, and asked why he was being terminated. According to Mr Berjaoui, Mr Mathiaparaha's response was "Don't ask me - I don't want you - you're not a suitable person", after which Mr Mathiaparaha left the room. Mr Berjaoui says he then made his way to the Human Resources Department, where he spoke to an assistant in the department, known to him as "Betty". Betty did not give evidence. Mr Berjaoui says that Betty appeared to know that he had been dismissed, and told him that "we've got files on you, and we don't want you no more". They went into Betty's office and she showed him the notices saying that he hadn't been completing the job. These included notices from his earlier period of employment and exhibit R7. Mr Berjaoui says that when a Mr Jenkins - also of the Human Resources Department - walked into the office, Mr Berjaoui asked him why he wasn't given a chance. Mr Jenkins did not give evidence and there is no evidence of his response. No written notice of termination was given to Mr Berjaoui. Having considered all the evidence, I find that Mr Mathiaparaha spoke with Mr Berjaoui on four relevant occasions during his second period of employment: · First, very soon after Mr Berjaoui began, as a result of complaints that he was leaving "early" - that is before the allocated work was completed; · Secondly, on Tuesday 30 May 1995 in the presence of Mr Delapaz, concerning the altercation with Mr Delapaz; · Thirdly, on Wednesday 31 May 1995, as Mr Berjaoui was preparing to leave early; and · Finally, on the last day of work, which I understand to be Saturday 3 June 1995, when Mr Mathiaparaha told Mr Berjaoui that his employment was terminated. I find, however, that Mr Mathiaparaha did not prepare the disciplinary notices (exhibits R7 and R8) recording his account of the above discussions until he had already decided that Mr Berjaoui's employment should be terminated. I am not satisfied on the evidence that these notices were ever shown to Mr Berjaoui until after he had been dismissed by Mr Mathiaparaha. Rather, I find that they were forwarded directly to the Human Resources Department, where Mr Berjaoui was ultimately shown at least one of them.