Industrial Relations Commission of New South Wales CITATION: Gelos v. Broadlex Services Pty Limited [2005] NSWIRComm 1153 APPLICANT Sergio Gelos PARTIES: RESPONDENT Broadlex Services Pty Limited FILE NUMBER(S): 1159 of 2005 CORAM: Connor C termination of employment - failure to meet appropriate performance standards as a supervisor - offer of re-engagement as a cleaner rejected - claim to preserve entitlements as a supervisor whilst performing duties as a cleaner - application rejected CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Busways v. Johnson (1994) 55 IR 255 CASES CITED: Re Loty and Holloway and the Australian Workers' Union (1971) AR 95 HEARING DATES: 09/22/2005 DATE OF JUDGMENT: 09/30/2005 APPLICANT applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT David Lehmann DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 30 September, 2005 Matter No IRC 1159 of 2005 Sergio Hector Gelos and Broadlex Services Pty Limited Application under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1153 Introduction 1 Mr S H Gelos was employed as a regional cleaning supervisor with Broadlex Services Pty Limited. He commenced work as a full-time cleaner in the middle of 2002 under the terms of the Cleaning and Building Services Contractors (State) Award and twelve months later - on Monday, 2 June, 2003 - he joined a team of six salaried management employees, which is award free. He was subject to a period of training. He was provided with a vehicle, a petrol card and a mobile telephone. He was allocated a region and worked autonomously in supervising that region until his services were terminated on Monday, 14 February, 2005. 2 Mr Gelos subsequently lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. In his Part 6 application he has claimed that the termination of his services was unfair and he has sought his reinstatement or, alternatively, monetary compensation in lieu thereof. The matter was allocated to me by Registry staff who set it down for a conciliation and directions hearing on Wednesday, 30 March, 2005. It was adjourned for mention on Wednesday, 13 April, 2005. 3 Conciliation failed to settle the matter. I programmed it for arbitration which was scheduled for Thursday, 22 September, 2005. Initially, Mr Gelos was represented by a solicitor but on Tuesday, 20 September, 2005 that solicitor lodged a notice that he was ceasing to act for Mr Gelos, who appeared unrepresented in the hearing. An affidavit signed by Mr Gelos, which had earlier been prepared by his solicitor was tendered into evidence. Mr Lehmann represented Broadlex in the hearing. Four witness statements had been provided in the hearing on behalf of Broadlex - from Mr Nick Kazakonis, the branch operations manager, Mr Gregory Lerond, the general manager, Mr Nick Sarris, the executive manager of operations for Mascot, and Ms Christine Zmijewski, the risk management team leader. Mr Gelos did not require to cross-examine those four witnesses. Nor did Mr Lehmann require to cross-examine Mr Gelos. 4 Mr Gelos has pointed out in the written statement which formed the basis of his evidence that: "...my English is not 100%..." And when the matter came before me for mention on Wednesday, 13 April, 2004 he was assisted by a Spanish interpreter. I had formed the view that Mr Gelos was actually able to communicate satisfactorily in English, for the purpose of this hearing, at least. Indeed, I would expect that his job, which involved him in communicating in English with clients and staff under his supervision, would demand it. I did not repeat requests for a Spanish interpreter for the hearing, especially since his claim was being pressed through a solicitor. Nevertheless, when that solicitor withdrew his brief, I accepted that there may have been a problem with Mr Gelos presenting a case in this hearing. He was assisted by his stepdaughter in the hearing when any language difficulties arose for him. The Evidence 5 Mr Kazakonis claimed in his evidence that he had counselled Mr Gelos on many occasions over his not properly servicing the sites he supervised to the quality of service which Broadlex required as a standard. Mr Kazakonis asserted that Mr Gelos did not keep several appointments with school principals, did not deliver supplies to sites as required and did not complete service quality reports as required. Nor did he keep accurate payroll records for staff absenteeism and workers compensation with the result that cleaning staff were sometimes not paid correctly. He began diarizing complaints from clients concerning Mr Gelos' work performance. 6 Ultimately, late in 2004 Mr Kazakonis spoke with Mr Gelos and, in the light of concerns over his supervisory skills and the complaints that had been received concerning his work performance, asked him if he was interested in returning to a school cleaning position. Mr Kazakonis claimed that Mr Gelos became very emotional, saying: "I will not resign as supervisor. If you want you can give me the sack." Mr Gelos explained the complaints over the cleaning service by arguing that there were not enough cleaners or equipment. He told Mr Kazakonis: "...You do not send enough cleaners to schools. Often we do not have enough vacuum cleaners." 7 At another meeting with Broadlex management on Monday, 15 November, 2004 a further offer was made to Mr Gelos to relocate to a position with Qantas. He was to report to Mr Sarris and work with him in maintaining contract standards for Qantas. He was to remain a salaried employee and retain the vehicle and mobile telephone with which he had formerly been provided to him. Mr Gelos claimed in his affidavit that he was told: "If you take the job at Qantas you will go there as a cleaner, not a supervisor, but you will keep your salary and car." To which Mr Gelos replied: "I will accept to work like a cleaner but get paid the money of the supervisor and the car." Broadlex denied that it offered Mr Gelos employment as a cleaner with payment and conditions of employment at the level of a supervisor. It would be extraordinary that it would make such an offer and I believe that Mr Gelos misheard what he had been told. 8 Mr Gelos had apparently accepted that offer and a written contract was drawn up to give formal effect to the agreement. Mr Gelos asked for 24 hours to sign the agreement. Broadlex management agreed to that extension of time but heard nothing further from Mr Gelos. On Friday, 19 November, 2004 Ms Zmijewski wrote to Mr Gelos informing him that the position he had been offered could not be kept upon beyond Tuesday, 23 November, 2004 and that: "...if we do not have any communication from you by 5.00pm on Tuesday, 23 November, 2004, then we must assume that you have abandoned your employment with our company. If we have no word from you by this date, we will terminate your employment with our company..." 9 Mr Gelos wished to take the matter up with his solicitor and was not able to do so until Monday, 22 November, 2004 and on that day a solicitor did contact Ms Zmijewski to confirm the terms of the offer of employment, ie that he would be working for Mr Sarris, assisting him and, in that capacity, acting as both supervisor and cleaner. Mr Gelos wrote to Ms Zmijewski on Monday, 22 November, 2004 accepting the offer on the understanding that he would work under the same remuneration and conditions of employment, ie that he retained his existing salary and vehicle and that his seniority within Broadlex would be preserved. 10 Mr Gelos claimed that his health during that period was poor. He recorded in his affidavit that the persistent meetings with Broadlex: "...has made me very stressed; my blood pressure was high. Mt doctor told me not to work and gave me medical certificates that covered all of November..." 11 Mr Gelos, in fact, commenced working at the Qantas site when his medical certificate expired on Saturday, 27 November, 2004 - as a cleaner, Mr Gelos asserted. He declined to sign the written employment agreement in support of the new arrangement, however. Mr Sarris had some concerns that Mr Gelos was not meeting appropriate performance standards. He had been issued with warnings over his work performance. Mr Sarris also became aware that Mr Gelos had been involved in an accident in the vehicle which Broadlex had provided to him and had driven that vehicle with a smashed back window, and thereby unsecured, for a period of approximately three weeks. He had been issued with a warning for failing to follow basic safety instructions. Ultimately, Mr Gelos claimed that he "...just wanted to be a cleaner..." - but he wished to preserve the entitlements with which he had been provided as a supervisor. 12 On Friday, 14 January, 2005 Mr Sarris requested Mr Gelos to attend a meeting, arranging for a Spanish interpreter. Mr Sarris explained to him in words to the following effect: "I want you to understand the transfer offer was never intended to be a basic cleaning job. The offer to transfer to Qantas was made to assist me with the daily running of the airport cleaning requirements and that is the reason you are able to retain your salaried remuneration, company vehicle and phone. You accepted this offer on the same terms and conditions as your previous role. If you want to take a cleaning position, Broadlex would allow you to do so. However, a cleaning position would be on award conditions and you would not be entitled to your current remuneration and conditions." 13 Mr Gelos stated that he could "...feel his blood pressure rising..." and asked to leave the meeting. He indicated that he would consider his position and inform Broadlex of his decision in writing on Wednesday, 19 January, 2005 and later that deadline was extended to Tuesday, 25 January, 2005. Mr Gelos pressed for what he understood to be the agreement reached, ie that he work as a cleaner but preserve his entitlements as a supervisor and, in the light of Broadlex's failure to negotiate a mutually acceptable outcome from the protracted negotiations they had held, it terminated Mr Gelos' services. Conclusion 14 My principle task in this hearing is to determine whether or not, to use the language of S.84(1) on which Part 6 applications rely, the conduct of Broadlex has been either "harsh", "unreasonable" or "unjust" [Busways v. Johnson (1994) 55 IR 255 at p.261]. Mr Lehmann, using the familiar expression of a "fair go all round" approved by Sheldon J of the former State Industrial Commission in Re Loty and Holloway and the Australian Workers' Union (1971) AR 95 at p.99, asked rhetorically what further action Broadlex could take with Mr Gelos. I am satisfied that Broadlex management has been very patient with Mr Gelos and that there was no intention on its part to bring Mr Gelos' employment to an end until he, in effect, forced their hand. I certainly find nothing harsh, unreasonable or unjust in its conduct with him. 15 The fact is that Mr Gelos cannot have his cake and eat it too. He cannot expect to preserve entitlements he had as a supervisor if he is not performing as a supervisor. He was offered work as a cleaner by Broadlex. He clearly was wishing to work as a cleaner but also wished to retain all the entitlements he previously enjoyed as a supervisor. I do not believe that Broadlex ever held that option out to him and he either simply misunderstood what he had been told or chose to move the goal posts in his employment with Broadlex. 16 For those reasons, there are no grounds for my intervention in support of Mr Gelos in this hearing and I decline to do so. I dismiss his Part 6 application. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.