Industrial Relations Commission of New South Wales CITATION : Trotter v Slavic t/as Amici's Restaurant [2001] NSWIRComm 292 PARTIES : Phillip Charles Trotter John Slavic trading as Amici's Italian Restaurant FILE NUMBER: IRC 6251 of 2000 CORAM: Harrison DP CATCHWORDS : Application for relief from unfair dismissal - misconduct - summary termination Held - substantive and procedural fairness - application for relief refused LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 09/13/2001 DATE OF JUDGMENT: 11/16/2001 APPLICANT Mr N Pipe, Solicitor John McDonald & Partners Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr G Brooke Newton & Associates, Employment Consultants & Industrial Advocates JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 16 November 2001 Matter No IRC 6251of 2000 PHILLIP CHARLES TROTTER & JOHN SLAVIC T/AS AMICI'S RESTAURANT Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001] NSWIRComm 292 1 This matter initially dealt with by McKenna C resulting in a conclusion that the matter was unable to be resolved by conciliation, and an exercise of rights pursuant to s173 of the Industrial Relations Act 1996 ('the Act') by the Restaurant and Catering Industry Association of New South Wales (RCA), then appearing on behalf of the respondent employer. 2 The matter was subsequently allocated to the Commission as presently constituted for arbitration proceedings. Directions were issued to bring the matter to hearing in September 2001. Subsequent to these directions the RCA filed a Notice of Ceasing To Act on behalf of the respondent. By Notice of Appearance filed, the Commission was informed that the respondent would be represented by Newton & Associates, Employment Consultants and Industrial Advocates. 3 Arbitration proceedings took place at Tweed Heads on 13 September 2001. Mr N Pipe, solicitor of John McDonald & Partners Solicitors, appeared on behalf of Mr Phillip Trotter ('the applicant'). Mr G Brooke of Newton & Associates, appeared on behalf of John Slavic, trading as Amici's Italian Restaurant ('the respondent'). 4 Mr Pipe brought evidence from the applicant. 5 Mr Brooke brought evidence from Mr John Slavic, the respondent; Ms Georgina Stephens, former de facto partner and employee of the respondent in the capacity of waitress; and Mr John Wicks, employed by the respondent at the relevant time as maitre d'/waiter. 6 This evidence of the respondent's witnesses was presented in the form of affidavits, sworn on 11 September 2001. Mr Pipe took no objection to the late entry of affidavits, noting that the respondent's case had earlier been set out in a series of statutory declarations filed on 10 August 2001 by the RCA, then the respondent's advocate of record. 7 At the conclusion of evidence on 13 September 2001 the parties made application to put submissions in writing. Submissions from the applicant were received on 10 October 2001. Submissions from the respondent were received on 26 October 2001. THE EVIDENCE 8 The applicant commenced employment with the respondent on 25 February 2000 in the capacity of pizza chef. 9 The applicant's evidence is that he commenced employment in the catering industry in 1981 as an apprentice chef. The applicant deposed that he has worked in various capacities, including as a chef in a la carte restaurants, and as a contract caterer in the club industry. The applicant had not completed his apprenticeship, having two units of the TAFE syllabus to fulfil. 10 The applicant's evidence is that Mr Slavic undertook to teach him the skills required to roll pizza dough, which he put "took a couple of days for me to pick up the procedure but I got the hang of it fairly quickly." The applicant describes his duties with the respondent at points 8, 9 and 17 of his affidavit of evidence (ex 1) in the following terms: 8. My duties in relation to the restaurant included weighing and rolling the dough, making sure that there was enough of the various items that go on the pizza and, if not, preparing those items such as cheese, vegetables, meats, etc., cutting the tomatoes for the bruschetta, preparing the garlic bread, folding the pizza boxes and making sure my section was clean and tidy. 9. If I had additional time I would help in the kitchen at the back of the restaurant, chopping vegetables, de-veining prawns and any other related food preparation work, but my duties predominantly kept me at the pizza section. 17. At the time I was working, the list of pizzas was on a menu and individually priced. Part of my work involved varying the orders according to customer requests and so I would make pizzas that were not catered for on the menu according to the orders taken by the waiters from the customers. At the time I spoke to John Slavic I was of the opinion that I was working at a Grade 4 level with respect to the Restaurant and Employees' Award. I had looked up the details of the Award on the Internet and although I made reference to my level being Grade 5, I recognised that the duties that I was performing at that time did not accord with that level. 11 The applicant deposed that he received a number of compliments from customers in relation to pizzas he had made. 12 It is the applicant's evidence that prior to August 2000 he received no details of how his pay was calculated each week. His evidence is that from on or about August 2000 he began to receive a computer generated payslip noting the detail of wages calculation. 13 The applicant deposed that on or about 8 October 2000 he questioned his rate of pay with the respondent, who contended that he was being paid correctly. The applicant claimed payment at Grade 5 of the Restaurants, &c., Employees (State) Award (321 IG 759) ('the Award'); the respondent contended the payment at Grade 2. The applicant's evidence is that Grade 2 rates being used in the calculation of his pay were in any event wrong, failing to take into account a recent increase, an issue which the respondent advised was being investigated by his accountant. 14 The applicant's evidence is that in December 2000 he informed the respondent that he had enrolled at Kingscliffe TAFE to undertake the final two units of study necessary to complete his apprenticeship. His evidence is that he informed the respondent that on completion he would be entitled to payment as "a Level 5 Chef". 15 The applicant's evidence is that on or about 5 December 2000 the respondent introduced him to a new employee and requested: "Could you please teach this fellow how to make pizzas, we're going to open longer hours and I've decided to employ someone else so that you can have a day off, he'll only be working casually." 16 It is the applicant's evidence that he instructed the new employee in the duties involved in the pizza section, as required. 17 The applicant's evidence is that on 8 December 2000 his employment was terminated. The applicant recounts the exchange surrounding his termination (pt 19, ex 1) in the following terms: On 8 December 2000, I went to work and was told by John Slavic, "You're fired." I said, "Why, what's the matter?" John Slavic said, John tells me that you didn't properly cook a couple of pizzas last night, also you're rude to the staff and you don't work well with everyone else." I said, "John came out and told me that the pizza hadn't been properly cooked but when I went back in to check it, there was nothing in the oven. I don't believe that there were any undercooked pizzas. I am no more rude than anyone else and I get on well with the staff generally. I don't know what you're on about." John said, "You're fired. Now get out of here." I said, "What about my pay, what about my Group Certificate and my Separation Certificate?" He said, "Come back next week and I'll give it to you. Now get out of here." John refers to John Wicks who is a waiter at the restaurant and a friend of John Slavic's. 18 The applicant's evidence is that he received no prior warning or criticism in respect to his work. He deposed that the only complaint ever made was in respect to the allegedly undercooked pizza on the evening prior to his dismissal. 19 The applicant contends that there had been only one prior incident of tension which had involved him leaving the restaurant during service on an occasion when he had come to work feeling ill and had been given Panadol by Ms Stephens who told him to leave. The applicant contends that in the course of his departure he encountered Mr Slavic, who would not talk to him. 20 The applicant acknowledged there had at times been some tension between himself and Ms Stephens and that there had been some swearing, which he contended was quite normal practice in the kitchen. 21 The applicant gave evidence in respect to his search for alternative employment following his dismissal, which was largely unsuccessful until 23 February 2001 when he was contracted to provide catering services to a local club, a contract which he no longer holds. 22 The applicant defended criticism of his behaviour in the workplace and refuted allegations that he did not get along with other staff, putting that erstwhile employees of the respondent had accepted employment from him in the course of his catering contract. 23 Mr Trotter conceded that on one occasion a waitress, identified as "Irene", had tried to tell him how to make pizzas and he had told her to mind her own business in no uncertain terms. Mr Trotter conceded that Irene "went off crying", putting that Mr Slavic consequently spoke to him about getting on with other staff and he had spoken to Irene the next day and made peace. 24 The evidence of Mr John Slavic is that he is the owner and proprietor of the restaurant and that he has been in the industry for some 33 years. Mr Slavic deposed that he is a qualified chef, completing his apprenticeship in the early years of his employment in the industry. 25 Mr Slavic described his experience in the industry in various positions throughout Australia and overseas prior to owning his own restaurant. 26 Mr Slavic deposed that early in the year 2000 he sought a replacement pizza chef, resulting in an interview with the applicant. He deposed that the applicant informed him at the interview that he was prepared to do anything as he was desperate to obtain employment. 27 Mr Slavic deposed that he instructed the applicant on the intricacies of preparing pizzas. Mr Slavic's evidence is that approximately one month after the applicant commenced employment it became apparent to him that the applicant could not handle pressure, particularly in busy periods, often becoming agitated and aggressive in his behaviour. Mr Slavic put that he was often required to attend the pizza area to assist the applicant and remonstrate with him in respect to his behaviour. 28 Mr Slavic deposed that he received complaints from staff and patrons resulting in numerous warnings to the applicant over a period of three months. Mr Slavic put that these conversations were held in the rear of the restaurant, and on some occasions Mr Wicks was present. 29 Mr Slavic recounts these events at points 11 and 12 of his affidavit of evidence (ex 2): 11. I do admit that for quite some time Mr Trotter was producing good pizzas. However, I was not at all happy with his attitude or his demeanour within the restaurant. On many occasions I told him of my unhappiness and in fact, those were later expressed as warnings. Some instances of my unhappiness and the subject of the warnings were: Mr Trotter quite often presented for work with dirty hands (grease ingrained) and in an unhygienic condition. Mr Trotter always use to secure the fly of his pants loosely by the use of a large safety pin. Mr Trotter, on many occasions (despite my warnings) used to sit with customers and chat. On frequent occasions, Mr Trotter used to absent himself from the pizza area, and in fact the restaurant, and talk to people outside. There were many occasions when this caused a severe backlog of filling customers orders. 12. Approximately one month before Mr Trotter's dismissal, I commenced talking very seriously to him about his attitude. I had started to become increasingly concerned about his attitude and his behaviour and knowing that it was coming up to the Christmas trade, I was particularly concerned about his ability to do the job. I had recalled circumstances where Mr Trotter had left the restaurant without notice leaving me and my staff in a precarious position. This happened twice and I reminded Mr Trotter of not only these facts but also my continuing unhappiness in relation to his general demeanour. I also advised him that I had been told by many staff that they were prepared to leave because of the treatment that he was giving them. 30 The applicant denied the allegations made in respect to hygiene. He deposed that he owned eight pair of chef's trousers, only one of which had the fly secured by a safety pin. The applicant further contended that he always wore an apron over his trousers. There was conjecture between the parties on this point. 31 Mr Slavic deposed that on the two occasions that the applicant absented himself without notice or permission he returned in an emotional state, pleading that his employment not be terminated. Mr Slavic deposed that he accepted these pleadings and gave the applicant a further final warning. Mr Slavic deposed that he informed the applicant that if there were any further incidents brought to his attention, the applicant's employment would be instantly terminated and that there would be no further warnings. 32 The applicant denied the second of these incidents, putting that he had sought and been given permission to take two days off to go to Port Macquarie. Permission for the time off to go to Port Macquarie remains an issue of contention. 33 Mr Slavic's evidence is that there was little if any improvement in the applicant's performance and he continued to receive complaints that the applicant deliberately lost order slips and that one staff member left his employ as a result of the applicant's behaviour. He deposed that these events caused him to observe the applicant's behaviour carefully over the next week or so. 34 The applicant conceded that he would talk to customers, putting that he did this only in quiet periods and would not sit with them to do so. 35 In his evidence in chief the applicant deposed that he had never received complaints concerning the pizzas he had made, putting on the contrary that he had received some praise from Mr Slavic. In revisiting this issue in re-examination, the applicant's evidence is (TR p36): Q: You were asked about complaints about your pizzas. Have you ever had a complaint? A: The only complaint that I know about, and John Slavic was there, was a lady had ordered a - I'll think of the name of it in a moment - a particular style of pizza, she didn't feel that there was enough anchovies put on the top of it and that it had been a bit too much cheese; this is about a month or so before I was terminated. She came back the following day and complained about it. My view was that she was after a free pizza. John - I actually waited till that lady came to the restaurant and asked her exactly how much she wanted on it. I was civil to her. There's no way it could be misconstrued that I was any other way. 36 Mr Slavic describes the basis of termination of the applicant's employment (pt 16, ex 2) in the following terms: 16 On Thursday, 7th December, the restaurant was open as usual. It was a Thursday trade night and reasonably busy as it was approaching Christmas. Normally on a Thursday in December, we would have in the vicinity of one hundred customers or more to serve during the night. I spent the night at home as I had been working continually for a number of days. when I came to the restaurant on Friday 8th, about lunchtime, I ran into staff members. They told me that the previous night had been bad so far as Mr Trotter was concerned. It had been a busy night and it was quite apparent that Mr Trotter was continuing to go outside and ignore customers orders and his duties at the pizza oven. They also told me that they had received complaints from patrons about pizzas being undercooked and told me that was as result of inattention to what was supposed to be done. 37 The applicant denies this occurred. His evidence (TR p25) is: Q: And accordingly, you reject any assertion made by the witnesses from the respondent that in fact the pizza on the night before you left was undercooked? A: Yes, I reject the fact that it was undercooked. And in the 30 seconds that it took me to put the cigarette out and walk inside, a pizza that was apparently in the - had been placed back in the oven had been removed from the oven and was gone in 30 seconds. Q: That's fine. You said that you were having a cigarette? A: Mm. Q: And you said you were having that cigarette outside? A: That's right. 38 The evidence of Ms Stephens is that she had been associated with Mr Slavic in a personal relationship and in his restaurant for some four years, assisting in all facets of the business. 39 Ms Stephens deposed that Mr Slavic worked primarily in the kitchen area and that she held responsibility for the front dining area. She deposed that the applicant worked in the front section of the restaurant and consequently she was in a position to observe his conduct. 40 Ms Stephens' evidence supports that of Mr Slavic, asserting that the applicant displayed an intimadatory nature and attitude, was aggressive towards other staff, and could not cope with the pressure of a busy schedule. Ms Stephens deposed that she conveyed her concerns to Mr Slavic whom, she understood, raised the issues with the applicant. 41 Ms Stephens deposed that she found herself in a dilemma over the need to continually report the applicant's misbehaviour to Mr Slavic and her understanding of the restaurant's desperate need for a pizza chef. 42 Ms Stephens deposed that the issue was further complicated by the illness of Mr Slavic during the relevant time, though the disharmony amongst staff, in her allegation, caused by the applicant's behaviour was an issue which required attention. 43 Ms Stephens deposed that she was aware of two occasions on which the applicant had attended the residence then occupied by Mr Slavic and herself and had been counselled by Mr Slavic in respect to many matters concerning his attitude. 44 The evidence of Mr Wicks is that he was employed by the respondent as maitre d' from February 1999 to March 2001. His evidence is that he found the applicant difficult to work with, deposing that the applicant was aggressive, unable to handle pressure, did not observe personal hygiene requirements, and on many occasions his dress standards left a lot to be desired. 45 Mr Wicks further deposed that on one occasion he had seen the results of the applicant's actions leading to a waitress being in tears and that he witnessed the applicant walking out of the restaurant on two occasions. The evidence of Mr Wicks is that he was present on a number of occasions when Mr Slavic counselled the applicant in relation to his "behaviour, demeanour and attitude and work performance". 46 Mr Wicks could not recall the number of occasions, putting that on each occasion the warnings given included a clear message that the applicant's attitude could not continue and an acknowledgment by the applicant that if he did not improve he would have to leave. 47 Mr Wicks deposed that on a number of occasions he expressed his unhappiness to Mr Slavic that the applicant had been employed at all. 48 Mr Wicks was an employee of the respondent at the time of termination of the applicant's employment but was not present during the event. 49 Mr Wicks is now employed in South Australia and acknowledged in cross examination that the respondent had paid his airfare and provided him with accommodation and expenses to attend these proceedings. SUBMISSIONS 50 Mr Pipe submitted that the termination of the applicant's employment was motivated entirely by the respondent's desire to avoid the issue of correct payment pursuant to the Award. Mr Pipe put that this issue involved an underpayment at Grade 2 and the impending upgrade to Grade 4 or 5 on completion of trade qualifications. 51 Mr Pipe submitted that the evidence of Mr Slavic, Ms Stephens and Mr Wick in respect to the warnings and counselling sessions should not be accepted. He submitted that the evidence of the applicant be preferred. Mr Pipe advanced that the applicant continued to be employed for a period of some eight and half months, notwithstanding the respondent's allegation that problems had become apparent after one month; putting that the respondent has been unable to offer any credible explanation as to why the applicant was kept in employment if he was as troublesome as alleged. 52 Mr Pipe, on behalf of the applicant, submitted the depositions by affidavits filed on behalf of the respondent were materially different to that found in the statutory declarations, reinforcing his submission that the evidence of the applicant be preferred. 53 Mr Pipe submitted that the evidence of Ms Stephens is irretrievably coloured by the fact that she was Mr Slavic's de facto partner and, apart from the emotional connection, she also had a financial interest in avoiding relief to the applicant in this matter. Mr Pipe put that the nature of Ms Stephens' affidavit (ex 3) is so laudatory of Mr Slavic as to invite scepticism as to her motives and truthfulness. 54 Mr Pipe put that the termination of the applicant's employment was harsh, unreasonable and unjust and sought an order of compensation. 55 Mr Brooke submitted that the termination of employment was not harsh, unreasonable or unjust and that, when examined against the requirements of s84 of the Act, met the criteria therein legislated. 56 Mr Brooke relied upon s88(a) of the Act, submitting that a reason for termination was given to the applicant. By further reference to s88(b) Mr Brooke submitted that the reason had a basis in fact and that the applicant was given many opportunities to make out a defence or give an explanation of his behaviour. 57 Mr Brooke contends that I should accept the evidence of Mr Slavic, Ms Stephens and Mr Wicks as to conduct and warnings given to the applicant. He submits that the absence of written warnings, providing no documentary support for the allegations of conduct, should not be held to the disadvantage of the respondent as there is nothing in the legislation that requires warnings to be in writing; and that the practice of the business did not include the creation of a record of such events. 58 Mr Brooke submitted that while documentation may be advisable as proof of fact, in the matter the evidence of Mr Slavic is corroborated by both Ms Stephens and Mr Wicks. 59 Mr Brooke submitted that the evidence of Ms Stephens and Mr Wicks was truthful and honestly given, refuting the assertion that it is tainted by their close relationship with Mr Slavic. 60 Mr Brooke submitted that the evidence shows that warnings were indeed given, culminating in a final warning on at least one occasion and that the content of these warnings to the applicant were clear. 61 Mr Brooke put that on no occasion did the applicant seek reinstatement nor reemployment. 62 Mr Brooke put a further submission seeking costs in the matter pursuant to s181(2) of the Act in the following terms: The Respondent, in this matter claims costs pursuant to Section 181 of the Act. Costs awarded in any matter in this jurisdiction are of course discretionary matters however it is our submission that the Commission should be moved on this occasion because of the specific provisions of Section 181 (2). That submission is made for the following reasons . The evidence shows that there was no attempt at the cessation of employment by the Applicant to do anything more than seek remedy for a matter of alleged underpayment which is not available to him pursuant to Section 380 of the Act. Further, the Respondent submits that at all material times, the Applicant knew that his job was in jeopardy and termination was dependant upon a conduct and attitudinal change. The Respondent therefore believes the applicant in the first place was frivolous as well as vexatious. It is also the Respondent's submission that the Applicant instituted proceedings without reasonable cause as he was fully aware of the consequences by way of a final warning and a clear further transgression. Finally, the Respondent submits that the Applicant unreasonably failed to agree to a settlement of the claim during earlier proceedings. 63 There are no submissions from the applicant in respect to costs. CONSIDERATION 64 I find no material difference between the affidavits tendered and the statutory declarations filed. 65 On the issue of credibility I am compelled to accept the version of events put forward by the respondent. I do so having regard to what I consider to be inconsistencies and contradictions in the applicant's evidence, particularly in respect to his apparent proclivity to leave his work station for cigarette breaks, friction with staff members, and dress code. This evidence also supports the contention that the respondent was overly patient and less than direct in his criticism of the applicant's conduct and demeanour. 66 The catalyst for termination of employment being a single under cooked pizza is not itself of sufficient magnitude to warrant termination of employment. However, seen in the context of the overall employment relationship, it was the final event rendering continued employment untenable. 67 I find that there were substantive grounds for the termination of the applicant's employment, however remain concerned that the tentative and uncertain manner in which the applicant was counselled and warned gives rise to issues of procedural unfairness. This disquiet is reinforced by the absence of any record, diary note or correspondence dealing with the issues of hygiene, dress standards, and attendance which are obviously matters of significance in the restaurant industry. 68 The assertion that termination of employment was initiated by a desire to avoid award wages is not made out on the evidence. The summary dismissal of the applicant shortly after the recruitment of another pizza chef is a further cause for discomfort, however the applicant's conduct is of paramount consideration. The applicant was employed for a relatively short period of time which, on his own evidence, was punctuated by events which can only be regarded as inappropriate conduct. 69 I am led to the conclusion in the circumstances of this matter that the absence of appropriately documented procedure is more a function of shoddy management arising from the benign and generous nature of the respondent. 70 On analysis I find that the substantive issues outweigh the procedural and come to the conclusion that termination of employment was not harsh, unreasonable or unjust, and accordingly decline to intervene. COSTS 71 The respondent seeks costs in the matter pursuant to s181(2)(c) of the Act, asserting that the application was frivolous and vexatious, and that the applicant unreasonably failed to agree to a settlement of the claim during earlier proceedings. 72 The application for costs is refused. 73 It cannot be found that the application was frivolous and vexatious when considered against the procedural aspects discussed above. The fact that an applicant refuses an offer and subsequently is unsuccessful in the substantive proceedings does not of itself give rise to an award of costs pursuant to s181(2)(c) of the Act. 74 The Commission must come to the view that a party was unreasonable in refusing to settle and in the circumstances of this matter I am unable to form the necessary conclusion. 75 The application is dismissed. Costs are refused. Matter No IRC 6251 of 2000 is so concluded. oo0oo 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.