Sparks v Ashrafi Persian Trading Company Pty Ltd t/as Roslyn Gardens Serviced Apartments [2005] NSWIRComm 1171

Industrial Relations Commission of New South Wales

CITATION: Sparks v Ashrafi Persian Trading Company Pty Ltd t/as Roslyn Gardens Serviced Apartments [2005] NSWIRComm 1171

APPLICANT Jason Matthew Sparks PARTIES: RESPONDENT Ashrafi Persian Trading Company Pty Ltd t/as Roslyn Gardens Serviced Apartments

FILE NUMBER(S): 1268 of 2005

CORAM: McLeay C

CATCHWORDS: Unfair dismissal - termination of employment - General Manager - dismissed without notice - whether warnings issued - whether witnesses were credible - conduct on last day of employment critical to question of fairness - loss of trust - reference issued - dismissal not harsh, unreasonable or unjust - application dismissed

Industrial Relations Act 1996 LEGISLATION CITED: Annual Holidays Act 1944

HEARING DATES: 09/07/2005; 09/26/2005

DATE OF JUDGMENT: 10/28/2005

APPLICANT Mr P Hayward Haywards Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr J Boyle Boyle Associates Solicitors

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: McLEAY C

28 October 2005

Matter No IRC 1268 of 2005

Jason Matthew Sparks and Ashrafi Persian Trading Company Pty Ltd t/as Roslyn Gardens Serviced Apartments

Application by Jason Matthew Sparks re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 1171

1 This is an application by Jason Matthew Sparks ("the applicant") for unfair dismissal against Ashrafi Persian Trading Company Pty Ltd t/as Roslyn Gardens Serviced Apartments ("the respondent") pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Mr Sparks was employed as General Manager of Roslyn Gardens Serviced Apartments ("the hotel") from September 2004 until he was dismissed on 1 March 2005. 2 On the day prior to the dismissal, Mr Ashrafinia, Director of the respondent, had several discussions with Mr Sparks with the intention of leaving him with full responsibility for the operation of the hotel for the next six weeks while Mr Ashrafinia travelled overseas. Mr Ashrafinia said these discussions included warnings about the need to improve his performance. Specifically, he referred to too many days off, no medical certificates to support sick days, too many swapped shifts, rudeness to guests and lack of tact with other staff. He said that Mr Sparks made a strong commitment to carry out all his duties and "really perform" during his absence. 3 On the morning of 1 March Mr Ashrafinia said that Mr Sparks was late for work, he asked another worker to swap a shift with him, he shouted abuse at someone from the rear driveway of the hotel upsetting staff and guests, he telephoned the police to attend the hotel against company protocol, and denied having spoken to his work colleague in regard to the swapping of shifts. Mr Ashrafinia then decided that he could not trust Mr Sparks to run the hotel in his absence and terminated the applicant's employment. 4 Mr Sparks denied many of the complaints against him. While conceding a number of discussions had taken place about doing things differently, he said he had not been warned about his performance.