Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - casual employee - regular and systematic employment - applicant protected from unfair dismissal - conduct not a valid reason - unfairly dismissed

[1] Mr Phillip Coffey was employed by QBar Darwin Pty Ltd (QBar) from about October 2015 until March 2017. Mr Coffey was employed as a casual employee and he was not offered any further shifts from 7 March 2017.

[2] Mr Coffey says that he was unfairly dismissed and has applied to the Commission for relief pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] QBar says that Mr Coffey was a casual employee and that he was not dismissed. Rather it says that, there were no longer any shifts available for him. Alternatively it says that, if he was a regular and systematic employee, there were reasons for him no longer being offered work.

[4] The legislative framework with respect to determining an application for unfair dismissal relevantly states:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[5] There is no dispute that Mr Coffey's employment is covered by an award.

[6] In order to determine if Mr Coffey has served the minimum employment period it is necessary to decide if he was a regular and systematics employee.

[7] Section 384 of the FW Act states:

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis;...

[8] In considering if Mr Coffey was employed on a regular and systematic basis, s.384(2)(a) of the FW Act must be considered.

[9] Mr Coffey's evidence is that he was the supervisor of café staff at QBar. He said that when he re-commenced working at QBar in October 2015 (after a break from previous employment) he worked from 7.00am to 4.00pm each day although some days he would start earlier when another staff member had the day off.

[10] Mr Coffey said that in October 2016 (after having left a night-club weekend job) he discussed with Ms Kristie Foreman (the owner of QBar) about taking on some weekend work. As a result of this discussion he said he started working one weekend a month although this increased to three weekends a month. These hours were in addition to his weekday hours.

[11] Mr Coffey provided a bundle of rosters that he said supported his claim that he was a regular and systematic employee of QBar.[1]

[12] Ms Foreman's evidence is that Mr Coffey worked an average of 28 hours per week in the last six months of his employment, working as little as 14 hours per week.

[13] I have considered the evidence of Mr Coffey and his statements as to his regular and systematic employment. QBar has failed to provide any evidence that would counter the material put forward by Mr Coffey. Even if it was that Mr Coffey's hours reduced towards the end of his employment this does not change that he was engaged on a regular and systematic basis.

[14] I am therefore satisfied that Mr Coffey was a regular and systematic employee of QBar. He was employed by QBar from October 2015 to March 2017. I am therefore satisfied he has completed the minimum employment period.

[15] As Mr Coffey was covered by an award and has served the minimum employment period I am satisfied that Mr Coffey is protected from unfair dismissal.

[16] The legislative framework with respect to determining an application for relief from unfair dismissal relevantly states:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[17] I am satisfied that, in not offering Mr Coffey any shifts after 6 March 2017, Mr Coffey's employment was terminated at the employer's initiative.

[18] I am satisfied that Mr Coffey made his application for unfair dismissal within the time frame required by the FW Act.

[19] I am further satisfied that the Small Business Fair Dismissal Code does not apply. In its Form F3 - Employer Response to Unfair Dismissal Ms Foreman indicated that, at the time of dismal QBar engaged 15 employees. It is therefore not a small business within the meaning of the FW Act.

[20] Further, I am satisfied that Mr Coffey's dismissal was not a matter of redundancy.

[21] It therefore falls for me to determine if the dismissal of Mr Coffey was harsh, unjust or unreasonable.

[22] Section 387 of the FW Act states:

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."

Section 387(a) - a valid reason for dismissal

[23] For a reason to be valid it must be "sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason".[2]

[24] Where the dismissal is for reasons of misconduct it is necessary for the Commission to be satisfied that the conduct did, in fact, occur.[3] Such an assessment must be made on the basis of the evidence before the Commission.

[25] Mr Coffey said that, following the commencement of Ms Marii Stanley as QBar Manager, Ms Stanley started employing more of her friends who came from the same cultural group and spoke the same language (Estonian) as she did. He said that these staff often spoke in Estonian amongst themselves which made him and other staff feel excluded.

[26] Mr Coffey referred to this matter in his evidence as "cultural exclusion".

[27] He says he raised his concerns with Ms Foreman and on 15 October 2016 sent an email to Ms Foreman and Ms Stanley that said:

It has been brought to my attention by several staff members that they aren't happy with there (sic) hours being cut over the last month. These are staff that have been working at Qbar for a long period of time...

It is very noticeable that the Estonian group of staff are favoured over everybody else and this is also not fair for the other staff members, these are comments passed on to me by the Qbar staff. I have a good bond with everyone that works here and they have come to me as they feel like nothing will happen/change or they will loose (sic) more shifts if they go to management.

Marii this is not a personal attack on you by any means I'm just passing on comments that have been raised to my attention for some time now...[4]

[28] Ms Foreman said she raised this issue with Ms Stanley and they sought to address it in the workplace. Ms Foreman said she employed staff based on their skills and availability and not their language or cultural background.

[29] Mr Coffey said that on 17 February 2017 Ms Stanley and a number of other staff of Estonian background were leaving work to go to an exercise class. He said that as Ms Stanley left she said goodbye to everyone in Estonian. She then walked past Mr Coffey and Mr Lin, (another employee). Mr Coffey said "seeya" and Ms Stanley did not reply. Mr Coffey said to Mr Lin "she can be a racist bitch"[5]. This apparently was overheard by Ms Marilis Miller, a friend of Ms Stanley's, who told Ms Foreman and Ms Stanley.

[30] Mr Coffey said that Ms Stanley confronted him about his comment the following Monday. He said to her that it was how he felt and that she favoured the Estonian staff. Mr Coffey said that Ms Stanley agreed that this was the case.

[31] Mr Coffey said he never made the remark to Ms Stanley's face but that it was only in passing. He recognised in evidence that he probably should not have made the comment but he stands by it.

[32] Mr Coffey said that "everyone swears" in the café so the statement was not that bad and he should not be made out to be the "nasty one". Further, he said it was his opinion expressed to a friend.

[33] Ms Stanley said she was offended by the comment when told of it.

[34] Ms Foreman said that she was advised of Mr Coffey's comments by Ms Stanley. She said Mr Coffey confirmed that he had called Ms Stanley a racist bitch. Ms Foreman found the comment unacceptable. She said she approached Mr Coffey to meet with Ms Stanley to try and resolve the issue but Mr Coffey was not interested in doing so.

[35] On 22 February 2017 Mr Coffey sent an email to Ms Foreman with a subject line of "Regarding our talk yesterday". The email said, in part:

In our talk yesterday you said Alan came to you and spoke to you about it, which is false then you changed it to you approached Alan about it on Saturday which is also false as I have spoken with him about this matter.

There was two other people speaking that day so I don't know Maralis has only repeated the words I said, I'm not throwing anyone under the bus but she is just starting trouble!...

I'm not interested in having a talk today as I have had enough excuses made for bad behaviour shown to me and other colleagues by my manager over the last few months...(sic)[6]

[36] The "talk yesterday" was a discussion Ms Foreman had with Mr Coffey about the incident on 17 February 2017.[7]

[37] On 5 March 2017 Mr Coffey sent a further email to Ms Foreman in which he said:

I'm still waiting on my pay slips from one month ago, also what's going in this coming week with my pay?? I'm only working 3 days and as fair as I am aware you have been paying me a salary for a full time package...

I have also done my own investigation regarding the Marii [Stanley] situation as I know you wouldn't, I have contacted numerous ex employees and they have felt the same on this matter, at times felt bullied by her or felt discriminated against for many reasons I have already expressed to you, I have also spoken with many regular customers about this issue and they said most of the people there need there (sic) attitudes adjusted one even stated that it is rude and uncomfortable to be waiting for a non English conversation to Finnish before being acknowledged or served at the cake cabinet, and they find it even more rude and uncomfortable for the staff to keep speaking in another language whilst serving them.

I have been in touch with my union and Fair Work on this matter, I have logged formal complaints with both with statements not only from me. This whole time you have disregarded anything that I have said to you or any email I have sent to you regarding the issue.

I have been made out the be bad person here for making one comment out of anger and frustration, I'm not sorry for what I said as it is how I feel after watching everything go on in this place over the last year and it's not right.[8](sic)

[38] On receipt of this email Ms Foreman said she called Mr Coffey in for a meeting to discuss his concerns and reconciling with Ms Stanley. She said that Mr Coffey was not interested in reconciling with Ms Stanley. She therefore decided that, given the reduction in hours available for work (due to financial constraints on the business) and the strained environment in the workplace caused by Mr Coffey's remarks, she would no longer offer any hours to Mr Coffey.

[39] On the basis of the evidence before me it appears that Mr Coffey's employment was terminated because he called Ms Stanley a "racist bitch", the strained environment at work attributable to this, his refusal to attempt to come to some reconciliation about the issue with Ms Stanley as demonstrated in his email of 17 February 2017 and his statement in his email of 15 July 2017 that he had "spoken with many regular customers about this issue".

[40] I am satisfied that Mr Coffey did call Ms Stanley a "racist bitch" and that Ms Stanley was offended by this. Further I am satisfied that Mr Coffey refused efforts by Ms Foreman to find some resolution of the matter between him and Ms Stanley.

[41] Mr Coffey said that he had not raised the matter with any customers as set out in his email but rather that they had approached him. I do not accept Mr Coffey's evidence in this respect. The language in Mr Coffey's email of 5 March 2017 is quite clear. He used the pronoun "I" to indicate that he undertook his own investigation, he spoke to ex-employees, he had been in touch with his union and Fair Work - that is, they were all definite actions instigated by him. For the phrase "I have also spoken to regular customers" to be taken to mean the customers approached him and he did nothing to initiate the contact is just not credible. For this reason I am satisfied that Mr Coffey did speak of his dissatisfaction with some aspects of the working environment with customers and that he did instigate those conversations. No evidence is available however of what those conversations actually entailed such that I can draw any conclusion about them.

[42] This conclusion is supported by the evidence of Ms Stanley that Ms Miller told her she had heard Mr Coffey speaking to customers of the matter although Ms Miller gave no direct evidence of what she heard Mr Coffey say.

[43] Even if Mr Coffey did not initiate the contact these are not matters for him to discuss with customers. The appropriate course of action would have been for him to note the comments made to him and pass these on to Ms Foreman or ask the customers to raise their concerns directly with her.

[44] Mr Coffey's comments about Ms Stanley and his discussion of workplace issues with customers are the more egregious of his actions. Even if he did not make the comments directly to Ms Stanley he made them within ear shot of a person he knew to be a close friend of Ms Stanley and he must have known it would get back to her. He may have been frustrated at the lack of action he saw from Ms Foreman in addressing the cultural issues in the workplace but this is no reason to speak about a work colleague as he did. Mr Coffey's saving grace is that he did not make the comment in front of customers.

[45] Ultimately, having raised his concern about the cultural issues in the workplace, Mr Coffey shunned attempts (although they may have been delayed) by Ms Foreman to find some resolution to the matter by refusing attempts to have him meet with Ms Stanley to try and resolve the issues.

[46] Mr Coffey's actions in talking to customers of the issues he had with Ms Stanley or with Estonian staff is unacceptable and in doing so he may well have tarnished the reputation of Ms Stanley although I have no evidence on which I could make such a finding.

[47] Mr Coffey's actions can at best be described as inappropriate and unprofessional. They warranted some reproach and warning as to his conduct from Ms Foreman. I am not convinced however that they warranted dismissal.

[48] I am therefore satisfied that, on balance, there was no valid reason for Mr Coffey's dismissal.

Section 387(b) & (c) - whether the person was notified of that reason; and whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[49] Mr Coffey attended a meeting with Ms Foreman on 7 March 2017. At this meeting she advised Mr Coffey that he would not be offered any further shifts.

[50] The purpose of notifying a person of the reason for dismissal is to provide them with an opportunity to respond prior to a final decision being taken to dismiss the employee.

[51] I am satisfied that Ms Foreman did not advise Mr Coffey of the reason for his dismissal prior to deciding to dismiss him (i.e. not to offer any further shifts). In this respect Ms Foreman did deny Mr Coffey procedural fairness.

[52] This denial of procedural fairness was further exacerbated by not providing Mr Coffey with any warnings with respect to his conduct, that a continuation of the conduct or recurrence of it might lead to him being denied further shifts and, in this respect, dismissed.

Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[53] No submissions were made on this point. It is a neutral matter in reaching my conclusion.

[54] Mr Coffey's employment was not terminated for unsatisfactory performance. This is not a relevant consideration.

Sections 387(f) & (g) - the size of the employer's business and absence of dedicated human resource management specialists or expertise

[55] I accept that the business is not large - it has around 15 employees. There is no apparent HR expertise in the business. I accept that this may have had an negative impact on the way the dismissal was effected.

[56] A number of other matters were raised by QBar with respect to Mr Coffey's availability to work. Ms Foreman suggested that Mr Coffey was unreliable and was often absent or late or sought changes to the roster.

[57] Ms Stanley said it was difficult to work around Mr Coffey's absences and Ms Miller said that staff had to cover Mr Coffey's shifts when he cancelled at the last minute.

[58] There is no evidence of a pattern of a failure to attend for work or to cancel shifts at the last minute by Mr Coffey. The text messages provided by Ms Foreman show a couple of instances where Mr Coffey was late for work and where he had sought to arrange his shifts in advance to suit his circumstances. There is no pattern of conduct by him that suggests a disregard for rosters or an absence of attending his rostered shifts.

[59] As to the text messages submitted by Ms Foreman, these appear to show no more than what might be expected as the normal process when employees are asked to indicate their availability for the following week for shifts or exchanges when an employee notifies they are running late. They do not alter the conclusion I have reached.

[60] As to Mr Coffey's unavailability to attend compulsory barista training, the text exchange suggests that Ms Foreman had no difficulty with his unavailability ("Hi, not a problem. I'll organise one with Nathan for later"). What was not a problem on 15 February cannot justify a complaint of misconduct three weeks later.

[61] Mr Coffey and Ms Bewick both gave evidence of unpaid superannuation a matter Ms Foreman said was being addressed.

[62] There was no valid reason for the dismissal of Mr Coffey. It was not a sound decision but one taken perhaps out of frustration. Whilst Mr Coffey contributed to this frustration such a matter should be properly managed in the first instance before dismissal might be justified. For the reasons set out above I am satisfied that Mr Coffey's dismissal was harsh and unjust.

[63] For the reasons given I am satisfied that Mr Coffey was unfairly dismissed.

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

[65] Section 391 of the FW Act says, of reinstatement:

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal...

[66] Mr Coffey does not seek reinstatement.

[67] In the circumstances of this case, in a small working environment and where relationships have soured, I am satisfied that reinstatement is not appropriate.

[68] I am not satisfied that the parties have adequately addressed me on compensation. Further directions will be issued with this decision seeking submissions that address the issues in s.392 of the FW Act.

[2] Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371, 373.

[3] King v Freshmore (Vic) Pty Ltd, Print S4213 at [24].

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