T8917
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Mathew James Alcorso and Rosevears Estate Wines Pty Ltd ACN 086 141 826
Industrial dispute - termination of employment - performance and punctuality - warning issued regarding performance - insufficient time to improve - no current warning regarding punctuality - denial of procedural fairness - dismissal unfair - compensation ordered REASONS FOR DECISION On 31 March 2000, Mathew James Alcorso (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Rosevears Estate Wines Pty Ltd ACN 086 141 826 trading as Rosevears Estate (the respondent) arising out of the termination of his employment. On 14 April 2000, the President convened a hearing at the Supreme Court, Cameron Street, Launceston, Tasmania, before Commissioner Imlach, to commence at 1.00 pm on Tuesday, 9 May 2000. On that date Mr A Bain, a legal practitioner, sought and was granted leave to appear on behalf of the applicant, and Mr Andrew Flood of the Tasmanian Chamber of Commerce and Industry appeared for the respondent. The parties agreed to enter into conciliatory discussions, with the assistance of the Commission. Following those discussions Mr Bain submitted that the application ought be referred to another Commissioner for hearing, on the basis of some views which had been expressed. Commissioner Imlach agreed to refer the application back to the President. On 17 May 2000, the President convened a hearing at the same venue, before myself, to commence at 9.30 am on Friday 9 June 2000. On this occasion, Mr Michael Daly, a legal practitioner, sought and was granted leave to appear on behalf of the applicant, and Mr Flood again appeared on behalf of the respondent. Background On 18 October 1999, Mr Mathew James Alcorso was appointed, by letter,1 signed by Mr John Fahey, to the position of Head Chef at the Rosevears Estate Restaurant and Function Centre, with a starting date of 28 October 1999. The restaurant and function centre is operated by Rosevears Estate Wines Pty Ltd. Mr Alcorso was provided, prior to his employment, with a document headed "Duties and Responsibilities", which set out the chain of command, duties and responsibilities, and his salary package.2 His duties included the day to day administration of the kitchen, preparation of menus, and stock management and control. The document stated that the Chef would report directly to Ms Rosemary Jones, Manager. In the event, Ms Jones was replaced by another employee, and Mr Alcorso reported to Mr John Fahey. Mr John Fahey owned a company which had been engaged to provide a consultancy service to Rosevears Estate to assist in establishing the new venture. Mr Fahey had a delegated authority to "hire and fire" staff for the restaurant and function centre (hereafter referred to as "the restaurant"). Mr Alcorso had initially applied for the position of Second Chef, but commenced work on 29 October 1999 as Head Chef. On 20 November 1999 the new restaurant was officially opened. Mrs Christine Beamish, the wife of the Managing Director, was appointed to the position of Restaurant Manager, later to become Administration Manager. Between December and the date of termination there were a number of discussions between Mr Fahey and Mr Alcorso in relation to various aspects of the performance of the kitchen generally, and Mr Alcorso's role specifically. Mrs Beamish was present during some of those discussions. Sometime just prior to 17 March 2000, Mr Christopher Speedie was appointed to the position of Restaurant Manager. On Friday 17 March 2000, a meeting was held at which Mr Speedie, Mrs Beamish, Mr Fahey and Mr Alcorso were present, and at which Mr Alcorso was provided with a memo relating to the performance of the kitchen. At that meeting, it is agreed, Mr Fahey said to Mr Alcorso something to the effect that "heads will roll, and yours will be the first". On Saturday 18 March Mr Alcorso was late getting to work because of transport difficulties. He was late again on Sunday 19 March. On Sunday 19 March Mrs Beamish dined at the restaurant together with interstate guests, and was extremely disappointed with the meals served. Early on Monday 20 March 2000 Mr Fahey and Mrs Beamish discussed the events of the preceding weekend, following which they called Mr Alcorso into the office and, at a brief meeting lasting between five and ten minutes, terminated Mr Alcorso's employment, with one week's salary paid in lieu of notice. The Dispute The issues in dispute are:
1. Were warnings issued? Mr Daly, for the applicant, submitted that Mr Alcorso was dismissed for lateness and there was not sufficient warning that lateness would result in termination.3 Mr Flood, for the respondent, claimed that whilst the termination of Mr Alcorso's employment eventually came about as a result of two late starts, there were other reasons for the dismissal. These were a number of performance issues throughout the period of employment, and that, whilst there were no written warnings, there were at least four occasions when Mr Alcorso was warned that if the issues were not addressed his employment would be terminated.4 The Evidence of Mr Alcorso Mr Alcorso testified that there had been a number of discussions between himself and Mr Fahey in relation to various aspects of his job, but that they had been general discussions, involving Mr Fahey giving him instructions regarding the running of the kitchen, and that at no time had he been issued with either verbal or written warnings. The topics under discussion had included the following: Stock Control Mr Alcorso said that there had been a couple of times when Mr Fahey found that the restaurant had been charged for goods not received, or wrongly received. Mr Alcorso admitted that it was ultimately his responsibility, but said that he had received neither written nor verbal warnings about the incidents.5 Organisational Skills Mr Alcorso admitted that there was a lot of room for improvement in his organisational skills and that there had been discussions with Mr Fahey in this regard. Mr Fahey had told him that he needed to try to organise his time better and that Mr Fahey would get him a diary and show him how to use his time more efficiently. This discussion took place some time around February, but the diary was never provided to Mr Alcorso.6 During February or March Mr Fahey asked Mr Alcorso to go to the Waverley Woollen Mills for a discussion during his day off. He said that at that meeting they talked about organisational problems, the plans of the second chef in relation to his rumoured departure and how the kitchen was running generally. Reference was made to the lack of cleanliness in the kitchen. Mr Alcorso was emphatic that no warnings were issued in relation to these issues.7 The Cool Room According to Mr Alcorso, there had been discussions "on and off" about the cleanliness of the cool room, which had got into a mess with stock laying around as a result of the restaurant being busy. Mr Alcorso said that Mr Fahey would ask how he was going with the cool room and Mr Alcorso would tell him that he was working on it. The Meeting of Friday 17 March 2000 Mr Alcorso said that on Thursday 16 March he had been told by Mr Fahey that there was to be a meeting on the next day which could go for a while, but he was not told what was to be discussed at that meeting. Present at the meeting were Mr Fahey, Mrs Beamish, Mr Alcorso, and Mr Speedie, who had just been appointed restaurant supervisor. At the beginning of the meeting Mr Fahey told Mr Alcorso that Mr Speedie was the new restaurant supervisor and that Mr Alcorso would be reporting to him. Following that introduction Mr Alcorso was given a memorandum dated 16 March 2000 which been prepared by Mr Fahey.8 The memo said that Mr Fahey had lunched with two guests on 13 March and it contained comments and observations of a critical nature about the food served and its presentation. Lack of planning for functions was also referred to. The memo concluded with the following comments:
Mr Alcorso said that Mr Fahey asked him for his thoughts and comments on the contents of the memo. He said that his response was that it was "fair enough", and that he offered explanations for some of the items listed, in particular in relation to a recent function. He said that Mr Fahey told him to "try and rein it in and get control over it."9 As far as the final paragraph went, he did not regard it as a warning that his job was on the line, Mr Alcorso said, because he took it to mean that things needed to improve and that he thought that Mr Fahey was "venting" and demonstrating his authority in front of Mrs Beamish. Cross Examination Under cross examination Mr Alcorso said that although there had been discussions previously along the lines of "we need to sort this out, we need to sort that out" , the meeting of Friday 17 March was the first in a formal atmosphere or environment.10 He said that although he did not feel under any threat the matters raised had to be dealt with because the complaints had been put into writing. Mr Alcorso said that he remembered previous discussions about the number of items on the the menu which were not available to customers, and he said that he had offered a suggestion as to how that could be improved, which had not been acted upon. He also agreed that there had been discussions in relation to the fact that the kitchen assistants had prepared the desserts and that the cooking staff had left early. He said that had happened during busy times, usually on Sundays. Mr Alcorso agreed that Mr Fahey had spoken to him about that practice, voicing a concern that the kitchen hands might to go to the "Industrial Relations Commission" and ask to be paid as chefs.11 He denied that he was instructed to ensure that the practice did not continue. Mr Alcorso also agreed that an occasion when the kitchen staff did not finish until 2.00 am was mentioned, and he agreed that on that occasion the clean up time was too long due to inexperienced or inefficient kitchen hands. Mr Flood put to Mr Alcorso that there had been another meeting on Monday 27 December at which he was spoken to about having been late on that day, and was also spoken to regarding the condition of the cool room and the mobile fridge, and the fact that a lot of food was wasted, or rotten, and had to be thrown out. Mr Alcorso did not recall being spoken to regarding lateness, nor did he recall being late on that day, but he did remember the cool room episode, and said that he and Mr Fahey had gone through the cool room taking stock following a seafood buffet on Christmas Day, Mr Alcorso agreed with Mr Flood, that he had been late on New Year's Day, but said that had been an arrangement agreed between the kitchen staff. He said that Mr Fahey had not spoken to him about that at all. Mr Flood showed Mr Alcorso a document,12 which was a memo from Mr Fahey to Mr Alcorso dated 2 January 2000, the subject of which was "Staff Access", the text of which is as follows: "Mathew,
Mr Alcorso said that he had never seen that memo before and Mr Flood did not pursue the matter. Mr Flood then asked Mr Alcorso about a discussion which allegedly took place on Monday 3 January, at which the duties outlined in Exhibit D1 were discussed by Mr Fahey and at which Mr Fahey told him that he was dissatisfied with his work. Mr Alcorso said that he did not remember going through that document at all and that Mr Fahey had never said to him that he was dissatisfied with his work. He said that he regarded the comments Mr Fahey made to him as constructive criticism.13 Mr Alcorso denied that Mr Fahey had said to him that he had three choices: one, to get hold of the kitchen and run it; two, to be demoted and have someone new brought in over the top; or, three, to leave the employment. He said that he did remember being told that he could have someone come in to work with him or to be above him. He said that he discussed with Mr Fahey the problems that he was having with the other chefs and asked for assistance in dealing with them. He said it was agreed that Mr Fahey would have a talk to the other chefs.14 Another meeting was raised, this one dated Saturday 22 January, at which Mrs Beamish was present as well as Mr Fahey. Mr Alcorso agreed that his lack of time management skills was discussed, as well as the kitchen being in a messy state, the costings of the food, and the fact that some items of food ran out and staff had to go to the supermarket to replenish stock. Mr Alcorso said that sometimes stock did run out but at other times the suppliers had failed to provide the stock in the first place. At that meeting Mr Fahey went through a time management exercise involving detailed diary-keeping. Mr Alcorso denied that on 7 February Mr Fahey had lost his temper with him because of the poor quality of the food and had said that if the quality of the food did not improve he (Mr Fahey) would start looking around for someone to replace him.15 Mr Flood put to Mr Alcorso that, on Friday 25 February, Mr Fahey again spoke to Mr Alcorso in the presence of Mrs Beamish. Mr Alcorso agreed that it was possible that the fact that not enough work was being done in the kitchen was raised, and he agreed that the messiness of the kitchen and the dirtiness of the cool room were discussed. He also agreed with Mr Flood that it was his responsibility to ensure the cleanliness of the kitchen, but said that he had asked Mr Fahey for "fridges and things" to rectify the problem, but that they had never been provided. Mr Alcorso agreed that a meeting had taken place on Monday 28 February at the Waverley Woollen Mills. At that meeting, he said, Mr Fahey told him:
He denied that he was told that if he couldn't do the job properly then he (Mr Fahey) would do it himself and there would be no room for Mr Alcorso. He agreed that on Saturday 12 March Mr Fahey spoke to him about the cost of food, especially fruit and vegetables. He said that Mr Fahey had waved a cheque at him for $5000-odd, out of takings of $70,000-odd, and had said it was unacceptable. Mr Alcorso said that he had not taken much notice of it because it was totally the wrong way to conduct a meeting.17 Mr Alcorso said that he had not taken the final paragraph of the memo of 16 March, given to him at the meeting on Friday 17th, as a threat to his employment, nor did he take the comment that "heads will roll and yours will be the first" as a threat to his job.18 He said this was because when Mr Fahey was in the presence of Mr or Mrs Beamish he "tends to upgrade the way he speaks" and "because of his persona".19 The Evidence of Mr Fahey Mr Fahey said that, in his position of Head Chef, Mr Alcorso was responsible for running the kitchen and that he, Mr Fahey, had overall responsibility to the board for the actions and behaviour of the kitchen. He said that he could not recall the dates and the context of all of the meetings that he had, but that he kept diary notes. He said that he could have "up to 40 or 50 meetings a week".20 He said that he had concerns about the menu and meals on it not being available because the kitchen was constantly running out of food, and that there had been several discussions with Mr Alcorso as to how the problems could be rectified. He had also spoken to Mr Alcorso because he was "most annoyed"21 that the kitchen hands were left to prepare desserts during service periods. He said that he issued an outright directive that the kitchen hands were not to be left to do this, and was assured by Mr Alcorso that would happen. Mr Fahey said that he was also "really quite annoyed" that at the end of a service period the cooks would leave and that there was too much work being left for the kitchen hands. On 27 December 1999 there was a "discussion and meeting"22 regarding the "absolute disgrace" of the way the food had been put away following the Christmas Day buffet. He said "it had almost been stood at the door and thrown in". He said that he went through the contents with Mr Alcorso and decided which should be kept and which should be thrown away and then they put the cool room back together in an orderly manner. He said that the mobile cool room had rotting vegetables in the fridge, there were rotting berries, and there was a terrible stench as a result of two butcher's boxes full of rotting beef and beef bones. He said that:
Mr Fahey said that on the day after Boxing Day Mr Alcorso was due to start at 8 am but did not arrive until after 9 am. Whilst Mr Alcorso had authority to write the rosters he had been instructed to ensure that somebody was to be rostered on at eight o'clock every day, even although it did not have to be Mr Alcorso. When asked whether he had spoken to Mr Alcorso about his lateness, Mr Fahey replied that he had asked him why nobody was there at 8 o'clock. Mr Alcorso had replied that Marcus was late picking him up. Mr Fahey said that Mr Alcorso was late again on New year's Day and that he was extremely annoyed as higher rates were paid on that day, and that he had spoken to Mr Alcorso about it and had given him a memo.24 Mr Fahey said that he was certain that he had given the memo to Mr Alcorso in the kitchen. Mr Fahey said he discussed Mr Alcorso's duties with him several times, and had a meeting early in the New Year where he got out Mr Alcorso's duty statement and went through it with him. At another meeting he had spoken to Mr Alcorso and told him that his options were that he:
On Saturday 22nd January he had spoken to Mr Alcorso about the lack of preparation and the shortcuts that were being taken in the kitchen. On that occasion he had taken Mr Alcorso through a time-management exercise, involving the use of a diary. He said that Mr Alcorso had agreed that his time was not spent wisely.26 On Friday 25 February there had been a meeting at which Mrs Beamish was also present. At that meeting problems were discussed relating to the failure to have food preparation done in time. He said that he was "also constantly carping on about the cleanliness of the place".27 On Monday 28 February he met with Mr Alcorso at the Waverley Woollen Mills. That meeting was along the lines of a "what the hell are we going to do, type meeting....what the hell he wanted from me to be able to help him to do his job...". Mr Fahey said that they went over all the things that were going wrong. Mr Fahey said that Mr Alcorso had said that the problems were caused by the kitchen staff and:28
Mr Fahey said that meeting lasted between an hour and a half and two hours and Mr Alcorso gave assurances that he would "get a grip on it" and that he was not going to be put in the firing line because other people weren't doing their job, and that he was going to get tough. Mr Fahey agreed that at the end of the meeting he was satisfied that Mr Alcorso was going to improve his performance. When asked by Mr Flood whether there was any immediacy given to the request for improvement in performance, Mr Fahey said:
Mr Fahey said that on Sunday March 12 he had spoken to Mr Alcorso about the greengrocery bill, because he had found 40 or 45 punnets of strawberries in the cool room which were "very, very conspicuously tired" and the excessive quantities of certain foods in the cool room. He said that Mr Alcorso had said that Mark (the second chef) had ordered them on his (Mr Alcorso's day off). Mr Fahey said that he "used to constantly carp at him, why wasn't he placing the orders, why were other people placing orders".30 Mr Fahey said that he had "almost to the point of despair" been asking Mr Alcorso to complete purchase order forms. He said that Mr Alcorso would spend a lot of time going back through previous weeks and writing up the forms retrospectively, which, he said, was "a gross waste of time ... just stupidity" and that he had "had another go at him" about the purchase orders not being done.31 The last paragraph of the memo that was presented to Mr Alcorso at the meeting of 17 March had been the subject of very clear discussion with Mr Alcorso, he said. He said to Mr Alcorso that:
Mr Fahey said that Mr Alcorso clearly understood what was meant because as he left the meeting his comment was that "none of those bastards in the kitchen are going to cost me my job".33 Cross Examination Mr Fahey agreed with Mr Daly that there were a good many discussions with Mr Alcorso in relation to his performance, and that he had expressed annoyance at a number of incidents. He said that people would know from his tone of voice whether he was being serious or flippant. Mr Daly suggested that the "meetings" referred to in Mr Fahey's evidence were not always formally called, and might better be described as "chats". Mr Fahey's response was that he defined them as "management meetings".34 He said that his management meetings were "very rarely" scheduled in advance, he said that:
He agreed that a meeting could take place "then and there", and that there would be nothing in writing to flag the time, place or nature of the meeting, and that there would be nothing subsequently to confirm the subject matter of the meeting. Mr Daly put it to Mr Fahey that he had lacked precision when dealing with performance issues and had used expressions such as "get a grip, grab the bull by the horns, pull your socks up ..."36 Mr Fahey said that he believed that he had been quite precise. He agreed that he had used such terms as "what the hell are you here for, get a grip, you're in the gun". Mr Fahey agreed that a general exhortation to improve was a tool he used to try to rectify the situation. Mr Fahey agreed that he kept diary notes of what was said during his meetings with Mr Alcorso, but that he had never shown those notes to him, nor had he ever prepared minutes or memos from those notes and shown them to Mr Alcorso, nor had he ever prepared anything in writing setting out what his difficulties with Mr Alcorso were, apart from the memo relating to staff access dated 2 January 2000.37 He agreed that the memo dated 16 March was the only written document that addressed his criticisms of Mr Alcorso's performance. The Evidence of Mr Speedie Mr Speedie said that on the first day of his employment at the Rosevears Estate, 17 March 2000, he attended a meeting at which Mr Alcorso, Mr Fahey and Mrs Beamish were present. He said that the meeting commenced with Mr Alcorso being given a memo and then they all sat down and discussed Mr Alcorso's performance in the kitchen and the fact that it was not up to standard. He said that the meeting was conducted as a warning to Mr Alcorso, and that it was an open forum discussion, during which Mr Alcorso had an opportunity to respond to the allegations made by Mr Fahey. He could not recall the details of the comments made, but he believed that Mr Alcorso knew what was going on and was trying to defend his actions. He said that Mr Alcorso had wanted to "blame the other men in the kitchen".38 Mr Speedie specifically recalled a comment of Mr Fahey's which was "heads will roll and yours will be the first".39 He said that had happened towards the end of the meeting. He said that a threat to Mr Alcorso's continued employment was made in the memo. Mr Speedie could not recall the details of the allegations made, but did remember a reference to the presentation of the food. He agreed that the only threats which were made in relation to Mr Alcorso's employment were the reading out of the memo and the reference to "heads will roll". He said that he was unaware whether or not any processes were set in train in order to investigate Mr Alcorso's claim that others in the kitchen were to blame for the problems. Because it was his first day there, he said, he had to assume that the allegations made against Mr Alcorso had substance. The Evidence of Mrs Beamish Mrs Beamish said that prior to the arrival of Mr Speedie she had been the floor and restaurant manager, but that her current position was administration manager. Mrs Beamish said that she had been present at meetings of a disciplinary nature involving Mr Alcorso.40 Those meetings had been attended by herself, Mr Fahey and Mr Alcorso. She said that the first of these meetings had occurred in mid to late January and that it concerned problems with the kitchen, including consistency of meals, timing of meals, hygiene and occupational health and safety standards. There had been discussion, she said, about punctuality and the responsibilities of the head chef. She said that there had been complaints from customers about the meals, specifically the size and flavour of the meals, and that these complaints were of concern to the Managing Director. Mrs Beamish said that the outcome of the meeting in January was that Mr Alcorso would endeavour to manage the kitchen a little better. She said that Mr Alcorso tried to blame the second and third chefs a great deal. The next meeting that Mrs Beamish attended was the meeting of Friday 17 March, at which, she said, his (Mr Alcorso's) "position was on the line as head chef".41 She said that the phrase used was:
Mrs Beamish was referred to the memo shown to Mr Alcorso43 and she said that Mr Alcorso understood what it meant because he said something like "I'm not going to risk my job for anybody". Cross Examination Mrs Beamish said that notes were taken by Mr Fahey at all meetings at which she was present.44 She agreed that it would be preferable when certain conduct would result in the termination of a person's employment, to put that in writing to the person.45 She said that she was the person whose responsibility it was to ensure that industrial processes were implemented fairly. Mrs Beamish said that she took notes at the meeting of Friday 17 March and agreed that she had not shown those notes to Mr Alcorso, nor had she prepared any document from those notes to give to Mr Alcorso.46 Later, Mrs Beamish said that no notes were taken either by herself or by Mr Fahey at the meeting of 20 March at which Mr Alcorso was dismissed.47 Mr Daly said to Mrs Beamish that her evidence relating to the meeting in late January differed from that of Mr Fahey in that he had never stated that there was a problem with the size and flavours of the meals. Mrs Beamish replied "I disagree because of some of the inquiries I've had". In relation to the meeting of Friday 17 March, Mrs Beamish said that she had known of the contents of the memo48 prior to the meeting. She agreed that she had never suggested that Mr Alcorso should be told what the meeting was to be about. Mrs Beamish said that the issues discussed at the Friday March 17th meeting had incuded punctuality.49 Mr Daly put to Mrs Beamish that nowhere in her evidence was there any discussion at that meeting in relation to punctuality, and that the memo which was the basis of the discussion did not address lateness, to which she replied: "Previous memos had, I believe. Not Friday's".50 FINDINGS Having considered all of the evidence I find that no formal warnings were issued to Mr Alcorso prior to the meeting of Friday 17 March 2000, three days prior to his dismissal. I do not consider the document dated 2 January and headed "Staff Access" to be a warning concerning lateness. Whilst Mr Alcorso had no recollection of receiving that memo, it is concerned with ensuring that someone be on the premises to allow staff access to the building. It is not written in terms of a warning regarding Mr Alcorso's punctuality. Whilst such an inference could be drawn, it is not expressed in such a way that the employer could be certain that Mr Alcorso had understood it as such. I am satisfied that, whilst there were forceful expressions of dissatisfaction with Mr Alcorso's performance, until 17 March they were not expressed in terms which clearly indicated that he was in danger of losing his job. Nor was there any reference in the written warning, given on 17 March, to any previous alleged verbal warnings. If there had been such warnings it is likely that they would have been incorporated into the written warning. They were not. Three incidents referred to by Mr Fahey were not recalled by Mr Alcorso, these were: an alleged incident of lateness on Boxing Day 1999, a discussion which allegedly took place on Monday 3 January at which his duty statement was discussed, and an incident on 7 February where Mr Fahey lost his temper regarding the quality of the food and allegedly said that if it didn't improve then he would look around for someone to replace Mr Alcorso. Given the numerous discussions concerning a large number of issues, which took place over a period of some months, it is not surprising that Mr Alcorso did not recall every single discussion and comment. Mr Fahey had the benefit of diary notes, from which he would have been able to refresh his memory prior to the hearing, however he did not tender those diary notes as evidence. Mr Alcorso had no such notes. The evidence of Mr Alcorso and Mr Fahey, with the above exceptions, was essentially the same, although coloured differently because of their individual perspectives. It is clear from the evidence that what Mr Fahey referred to as "meetings", were often no more than discussions regarding the day-to-day operations of the kitchen. There were no formal records kept of these discussions, nor was Mr Alcorso presented with any records of these meetings. Mr Fahey, in his evidence said that he could have up to "40 or 50 meetings a week". These meetings were very rarely scheduled in advance, notes were not taken (apart from Mr Fahey's own private diary notes), and minutes were not produced. Mr Fahey's "meetings" could take place "then and there" with no notice to the other party as to what the "meeting" was to be about. These discussions, in my view, are not meetings for the purposes of discussing the performance of an employee, and it is understandable that Mr Alcorso did not regard them as anything other than general discussions about the performance of the kitchen. Apart from some specific deficiences in Mr Alcorso's performance, ie, time management, organisational skills and staff management skills, it is, at times, difficult from the evidence to distinguish between what was the result of the general vicissitudes of the restaurant business - the restaurant being busier than anticipated, staffing difficulties in the kitchen, failure of suppliers to deliver goods, etc - and that which was specifically directed at Mr Alcorso's performance. It is apparent that Mr Fahey was given to using colourful and colloquial expressions of a general nature, such as "pull your finger out", "get up to speed", "get a grip", "rein it in", "you're in the gun", "pull your socks up", etc. Such exhortations are not warnings that an employee's employment could be terminated if their performance does not improve. Warnings need to be explicit and unambiguous, preferably in writing, and properly documented. Mr Fahey, by his own admission, was frequently "annoyed", "extremely annoyed", "really quite annoyed" or "most annoyed", when the kitchen's performance did not meet his standards. He also, according to his own evidence, "used to constantly carp at him [Mr Alcorso]" about stock control, and was "constantly carping about the cleanliness of the place". Counselling "on the run", or in anger, are not acceptable industrial practices. They give rise to just such situations as this one, where the employee may be unaware that his employment is in danger, and simply accepts such admonishments as the management style of the individual. Where the performance of an employee is unsatisfactory (and there is sufficient evidence, in this case, to show that it was], then this needs to be clearly and unequivocally explained to the employee, documented, the standards to be achieved clearly set out, and a proper period of review put in place. There were only two meetings which could be seen to be "formal" meetings, in that there was advance notice of the meeting (even though Mr Alcorso was not told what the meetings to be about). The first of these was the one which took place at the Waverley Woollen Mills on Friday 25 February. I do not find that any proper warnings were issued at that meeting. Mr Fahey said that the meeting was along the lines of a "what the hell are we going to do, type meeting ... what the hell he wanted from me to be able to help him to do his job ..." An employee is entitled to a period of review if their performance is called into question, with a proper time line. Mr Fahey's answer to a question as to the immediacy given to a request for improvement was to the effect that his tone of voice would have been sufficient to indicate the immediacy of his request. Tone of voice is not a sufficient indicator of the time frame for improvement. I find that a formal warning was issued to Mr Alcorso on Friday 17 March 2000. The evidence of Mr Alcorso, Mr Fahey and Mr Speedie shows that on that date there was a meeting at which Mr Alcorso was shown a memo relating to the performance of the kitchen and it was made clear to him that "heads would roll and his would be the first" if things did not improve. I find that this meeting did constitute a warning, even although the processes were flawed in that Mr Alcorso was not given advance notice of what the meeting was to be about, nor was there proper documentation of the meeting. However, I believe that the message was, on this occasion, sufficiently clear - Mr Alcorso should have been aware that his job was now on the line in relation to the performance of the kitchen, which was his responsibility. I find that the warning was in relation to performance only, and that Mr Alcorso was not warned about lateness at that meeting. Of the four witnesses, Mrs Beamish is the only one who made such a claim, and I find, on balance, that such a claim is not sustainable. 2. What was the reason for the dismissal - and was it a valid one? Shortly after arriving at work on Monday 20 March 2000, Mr Alcorso was dismissed from his employment. There was no written notice of termination and no written reasons were provided. The evidence of all parties shows that Mr Fahey said to Mr Alcorso "I think it is time that Rosevears Estate and Mathew Alcorso parted company". The evidence was that the meeting at which the termination took place possibly lasted only five minutes. The Evidence of Mr Alcorso Mr Alcorso was approximately one hour late on Saturday 18 March. His car had been "written off", and an arrangement had been made with the kitchen hand, Mr Kerry Stephens, to collect him and take him to work. It was Mr Stephen's practice not to knock on the door or sound the horn. On that day they had missed each other and when Mr Stephens arrived at work and saw that Mr Alcorso was not there he had returned and collected him and taken him to work.51 On Sunday 19 March Mr Alcorso was again late by about one hour. On this occasion he slept through his alarm. On Monday 20th March, Mr Alcorso was called into the office at 9.30 am. Present were Mr Fahey and Mrs Beamish. According to Mr Alcorso, Mr Fahey said:
The Evidence of Mr Fahey Mr Fahey said that on Sunday 19th March he arrived at work to find Mr Stephens waiting outside due to the lateness of Mr Alcorso, and that Mr Stephens told him that Mr Alcorso had been late the previous day as well. Mr Fahey said that he spoke to Mr Alcorso the following day, Monday 20th March, about the lateness.53 He said that he was "really quite livid" because Sunday (the previous day) had been a "disaster" from the service point of view. There had been complaints from Dr Beamish's table, who had been:
Mr Fahey said that on the Monday he called Mr Alcorso into the office. Mrs Beamish was present, and that:
In answer to a question as to which part of Mr Alcorso's performance over the weekend was unacceptable and whether he had told him which part of his performance was unacceptable, Mr Fahey replied:
Mr Fahey said that the meeting went no longer than five or ten minutes.55 During cross-examination, Mr Fahey agreed that the specific complaints made about the restaurant during the weekend were not raised during the meeting of Monday 20 March.56 He said that what he had said to Mr Alcorso at that meeting was that his behaviour over the weekend was totally unacceptable, and that he thought he used the word "performance" as well. The Evidence of Mr Stephens The evidence of Mr Stephens confirmed the events of the weekend of 18th and 19th March as described both by Mr Alcorso and Mr Fahey. His evidence was confined to the issue of lateness. The Evidence of Mrs Beamish Mrs Beamish said that on the morning of 20th March she met with Mr Fahey and discussed with him having a meeting with Mr Alcorso as a result of the events of the weekend. She said that there were problems involving the cleaner (Mr Stephens) on the Saturday and the Sunday and that she was "very unhappy" and "very disappointed" with the meals served to herself and her guests from Melbourne on the Sunday.57 Submission of Mr Daly for the applicant Mr Daly said that there was no valid reason for the dismissal. Two issues arose: the first was the lateness, and the second, the "other problems". Mr Fahey relied heavily on the lateness of Mr Alcorso on Saturday 18th and Sunday 19th March as a reason for the dismissal, Mr Daly said. The evidence was that Mr Alcorso had some degree of autonomy in relation to the hours he worked. The principal problem with the lateness, as alleged by Mr Fahey, was that it cost the company money, but there was no evidence to substantiate that it had done so. If the heat as voiced by Mr Fahey and Mrs Beamish is stripped away then the problem had no real effect in the workplace, other than management being upset about it. The lateness was not conduct which could justify dismissal, according to Mr Daly. Mr Daly said that it would have been easy for the employer to put Mr Alcorso on notice and to provide him with a memo about what was expected, but this was not done. The only lateness, he said, that can be taken into account was the lateness on the Saturday and the Sunday before the dismissal. Mrs Beamish's suggestion that punctuality was raised as an issue at the meeting of Friday 17 March was an innocent reconstruction on her part, Mr Daly said. It was not Mr Fahey's or Mr Speedie's evidence that the question of lateness was raised at that meeting. In relation to the other problems, the evidence is that Mr Alcorso was given a warning in very specific terms on Friday 17 March, as outlined in Exhibit D2, Mr Daly said. Prior to that Mr Fahey's statements to Mr Alcorso were general exhortations to improve. Mr Daly said that it is always preferable that when warnings about performance might result in termination then they should be in writing and employees ought to be given a meaningful opportunity to address the issues. Mr Daly said that where there are allegations about performance the employee should be given a reasonable period within which to improve the performance. An analysis of the evidence would show that Mr Alcorso was not given a fair go by his employer. The appropriate thing to have done on Monday 20th March would have been for Mr Fahey to have outlined in writing the problems of the weekend, Mr Daly said. Possibly as a result of his exasperation with Mr Alcorso, Mr Fahey had gone into Monday's meeting with a "head full of steam". Mr Daly said that the rule as established in Browne v Dunn (1893) 6R 67 makes it necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely, particularly where that case relies upon inferences to be drawn from the other evidence in the proceedings. If that is not done, then that evidence cannot be relied upon, he said. He said that a good deal of the evidence relied upon by the employer and put through Mr Fahey was not put to Mr Alcorso in cross-examination, and cannot be relied upon by the employer to justify its decision to terminate, therefore that evidence should be disregarded by the Commission. There was a large body of evidence that Mr Alcorso was not asked any questions about, including the reasons advanced by Mr Fahey for Mr Alcorso's dismissal in relation to the quality of the food served on the Sunday before the dismissal, Mr Daly said. Submission of Mr Flood for the respondent Mr Flood said that Mr Fahey had spoken to the employee a number times over a period of three months and there were three occasions when he made it clear that Mr Alcorso's employment was in jeopardy if matters did not improve. There were numerous matters raised, Mr Flood said. They were specific and Mr Alcorso knew precisely what Mr Fahey expected of him. Mr Fahey's use of colloquialisms did not confuse the matter. Although Mr Alcorso may not have taken the warnings seriously, they were nonetheless clearly given. Mr Flood said that on the Friday before the dismissal Mr Alcorso was presented with some fairly specific allegations regarding the standard of the food, invited to respond to that and the employer then made the decision to issue him with a final warning. Regarding Browne v Dunn, Section 20 of the Industrial Relations Act 1984 says that in the exercise of the Commission's jurisdiction it is not bound by any rules of evidence. The Commission is a lay tribunal and the Commission should dismiss that part of Mr Daly's submissions. Mr Flood said that there was a valid reason for dismissal, clearly put to Mr Alcorso on 20 March. The employer believed he had a valid reason for terminating the employment and in coming to that decision he was not acting capriciously or spitefully; it was a sound and well-founded decision that Mr Fahey made in an attempt to protect the interests of the business, Mr Flood said. FINDINGS Mr Daly submitted that the Commission should disregard that part of the employer's evidence which was not put to Mr Alcorso during cross-examination, stating the rule in Browne v Dunne as authority for that proposition. The rule in Browne v Dunn is a rule of evidence which requires that a witness be given an opportunity to offer any explanations regarding an issue in dispute if a Court or Tribunal is later to be invited to disbelieve him or her. The Commission is not bound by the rules of evidence. Section 20(1)(a) requires the Commission, in the exercise of its jurisdiction to:
The requirement to act according to "equity and good conscience" obliges the Commission to ensure that witnesses are treated fairly. I make no finding as to whether the rule in Browne v Dunn should apply in this jurisdiction, as I am satisfied that Mr Alcorso had sufficient opportunity whilst giving his evidence to address all of the relevant matters which I have taken into account when reaching my decision. Having considered all of the relevant evidence, I find that Mr Alcorso was dismissed for two reasons; one was poor work performance, and the other was unpunctuality. I find that Mr Alcorso was under no warning for lack of punctuality. Mr Alcorso gave an explanation for being late on the Saturday 18 March, which reason was supported by the evidence of Mr Stephens. There was a reasonable explanation for at least one of the occasions of unpunctuality over the weekend. There was one occasion of lateness for which there was not a reasonable explanation, and that was on Sunday 19 March. It would have been appropriate for the employer to issue a warning for lateness at that stage, which would have been the first such warning. I find that the dismissal for unpunctuality was unfair. Mr Alcorso was also dismissed for poor work performance, in particular, the poor performance of the kitchen on Sunday 19 March, for which Mr Alcorso was held responsible in his capacity as head chef. Mrs Beamish was not happy with the meal and the service when she attended with her friends on that day. Given that Mr Alcorso was dismissed for poor work performance only two full working days after his first formal warning relating to this issue, I find the dismissal for reasons of poor work performance to be unfair. In my view, this was insufficient time for Mr Alcorso to have made the improvements expected of him by his employer. An employee is entitled to a reasonable period of review and a genuine opportunity to attempt to improve their performance. 3. Was Mr Alcorso afforded procedural fairness at the time of the dismissal. Submission of Mr Daly Mr Daly said that it is essential that the employer ensure that the employee is given as detailed particulars of the allegation against him as possible. In this case that did not happen. It is beyond comprehension that termination was not discussed when Mr Fahey and Mrs Beamish met on the Monday morning before the meeting at which Mr Alcorso was dismissed, he said. Mr Daly said that the actual termination was precisely as described by Mr Fahey - Mr Fahey said to Mr Alcorso that his behaviour over the weekend was unacceptable and the time has probably come (to dismiss Mr Alcorso) and that the meeting took only five to ten minutes. Mr Alcorso had no chance to meet his case, the magnitude of the performance problems could not possibly be elaborated on in only five to ten minutes. Mr Alcorso simply did not have time to respond. When Mr Fahey said "Is there any point in discussing this, Mathew?" the statement that it was time for the parting of the ways had already been made, Mr Daly said. Mr Daly said that there was no time for Mr Alcorso to consider his position, there was no opportunity for him to really understand fully the matters which were being relied upon by Mr Fahey when he said, "your behaviour over the weekend was unacceptable". There was no process commensurate with the gravity of the situation. Mr Alcorso was entitled to the view that there had already been a decision made. There was a tone of finality to the discussion, Mr Daly said. Mr Alcorso was not being given a chance to respond to particular allegations, he was being given the opportunity to comment on a decision that had already been made. Mr Daly referred the Commission to the case of Shields v Carlton United Breweries (NSW) Pty Ld (1999) FCA 377. Their Honours Justices Ryan, Moore and Marshall, (in a case where an employee had disported himself naked before some female employees, and where a decision had been made before meeting with the employee, to dismiss him) said very firmly that how a termination is done is every bit as important as the why. The ILO Convention, Article 7 is about procedural fairness, and the employer simply did not meet with the requirements of that article, he said. Mr Daly cited Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCA 1994, where Wilcox CJ at page 243, says:
Submission of Mr Flood Mr Flood said that Mr Alcorso was given ample opportunity to respond to the allegations against him at the meeting on Friday 17 March, but he chose not to defend himself. The same applied at the time of termination, he said. Mr Fahey asked Mr Alcorso whether there was anything he wanted to say before a decision was finally made and he chose to say nothing except to say at a later stage that he had bitten off more than he could chew. Mr Flood said that in a decision of the Commission - T6427 (in fact T6247) of 1996 involving the Australian Workers Union and Pasminco Metals, Imlach C accepted the principle espoused in Loty and Holloway v AWU (1971) 71 AR (NSW) 95, which was:
In this case there was no denial of natural justice, Mr Flood said. The ILO Convention simply requires that the employer clearly put the allegations of misconduct or poor performance to the employee and give them an opportunity to respond. Mr Flood said that no decision was made to terminate Mr Alcorso's performance prior to the meeting of Monday 20th March. The meeting was to start with an opportunity for Mr Alcorso to defend himself. When he chose not to respond, that is when Mr Fahey decided that he would terminate the employment. Whilst the procedures followed by the employer were not ideal, in that Mr Alcorso was not provided with prior notice of the meetings and was not advised that he could have a witness of his own choosing, those are matters that Part II of the ILO Convention do not require to Commission to take notice of, Mr Flood said. FINDINGS The evidence of Mr Alcorso and Mr Fahey in describing what happened at the meeting at which Mr Alcorso was dismissed is essentially the same. The evidence of Mrs Beamish differs considerably in several respects to that of the other witnesses. In the circumstances, I prefer the evidence of Mr Alcorso and Mr Fahey to that of Mrs Beamish, whose evidence was, in some respects, internally inconsistent. From the evidence it is clear that Mr Fahey and Mrs Beamish were both upset with Mr Alcorso; they had a meeting and compared notes, following which they met briefly with Mr Alcorso and dismissed him. Despite the fact that Mr Fahey claimed not to have made his mind up before hearing Mr Alcorso and that he was prepared to give Mr Alcorso one more chance, I believe that it is more likely that the decision had already been made to dismiss him. I base this on the sequence of the discussion at the meeting and the fact that Mr Fahey was clearly very angry - he said that he was "really quite livid".58 I do not think it probable, in the circumstances, that Mr Fahey would have been prepared to hear Mr Alcorso in relation to being given another chance. Mrs Beamish's evidence differed from that of Mr Alcorso and Mr Fahey, in that she claimed that Mr Fahey provided Mr Alcorso with the opportunity to explain the events of the weekend at the start of the meeting, including being asked "why did you believe this happened with the meals?"59 and that it was only after such questioning that Mr Fahey said that Mr Alcorso and Rosevears should part company. It was not the evidence of either Mr Fahey or Mr Alcorso that this questioning ever took place. I find that Mr Alcorso was told he was dismissed before he had an opportunity to respond. Mr Alcorso's only response was, after being told that it was time he and Rosevears parted ways was to say something along the lines of "Cool. I was going to Sydney anyway".60 I accept Mr Alcorso's explanation that this was a "kneejerk reaction" as a result of the shock he was suffering, and that he made this comment because it was apparent that the decision had already been made. I agree with Mr Daly that it is apparent that a very short and abrupt meeting took place that morning, notwithstanding the gravity of the situation. There was no real opportunity given to Mr Alcorso for him to consider his position and to respond appropriately. In addition, Mr Alcorso was not told in advance what the meeting was to be about, or that it could result in him losing his job; he was not given the opportunity to have a witness of his choosing present at the meeting, and the complaints made about the food on the Sunday were not put to Mr Alcorso at the meeting, despite the fact that they formed part of the reasons for the dismissal. For all of the above reasons I find that Mr Alcorso was not accorded procedural fairness. Other issues A number of other issues were raised by Mr Daly, which I do not consider to be relevant in the light of the questions to be addressed. Accordingly, I have not taken them into account. These were:
Remedy The Evidence It was apparent from Mr Alcorso's evidence that he was very aware of the opportunity such a position offered a young person such as himself. He said:
Mr Alcorso said that it was his intention to "spend a great time of my future in this new establishment".62 Mr Fahey, in his evidence, said that more than enough opportunity had been given to Mr Alcorso, and he could not see that anything would change were reinstatement to be ordered. He did not see that he could trust Mr Alcorso to perform his work satisfactorily.63 Mr Fahey said that a new Head Chef had been appointed to fill the position. Submission of Mr Daly Mr Daly said that Mr Alcorso valued his job and the opportunity it presented. It was an excellent opportunity for a young chef. The primary remedy under the Act is reinstatement and that is the remedy sought. If the primary remedy is impractical then the Commission should take into account the fact that Mr Alcorso had left stable employment to take up the position at Rosevears, the fact Mr Alcorso had been without wages for four weeks following the dismissal before he obtained casual employment, and also the loss of the "plum" job and the opportunity it represented, Mr Daly said. Submission of Mr Flood Mr Flood submitted that if the Commission should find that there was not a valid reason for dismissal and that the procedural aspects were unfair, then the following matters should be considered:- Mr Fahey does not believe that he could work with Mr Alcorso again. There is now another employee in the position of Head Chef, although Mr Flood acknowledged that the Commission is not required to take that into account. Mr Alcorso has obtained other employment, and there is a large amount of "water under the bridge". Should the Commission find that reinstatement is impractical, then the amount of compensation should be limited to the period between his dismissal from Rosevears Estate and his gaining of other employment - a period of four weeks. Mr Flood said that the matters raised by Mr Daly, namely that the Commission should take into account the loss of a "plum" job, the loss of long term employment and the loss of reputation, are matters that go to damages and the Commission is unable to take those matters into account. FINDINGS Mr Daly submitted, correctly, that the primary remedy for unfair termination of employment is reinstatement, unless it is impractical. I find that that reinstatement is not practical, given the apparent break down in the relationship between the employer and employee, particularly as expressed in the level of anger and disappointment described by Mr Fahey and Mrs Beamish. Whether or not the circumstances justify such expressions is beside the point, they were genuinely expressed and it would be difficult to re-establish a workable employment relationship. Section 31(1B) of the Industrial Relations Act 1984 states:
I reject Mr Daly's submission that, when determining what compensation should be paid, I should take into account the fact that Mr Alcorso left stable employment, had lost a very desirable position and had been without wages for a period of four weeks. I agree with Mr Flood that these are matters that the Commission is not required to take into account. I also reject Mr Flood's arguments regarding "water under the bridge", the appointment of a new Head Chef and the limitation of compensation to the period of time during which Mr Alcorso was unemployed, on the same grounds, ie, these are not matters that the Commission is required to take into account when awarding compensation. In considering what the compensation should be, I have relied on the well-known precedent established in Nicholson v Heaven and Earth Gallery in which Wilcox J said:
It is clear from the evidence that Mr Alcorso's performance was not of the standard required in the role of Head Chef, perhaps due to his lack of experience. The areas in which he lacked skills included, by his own admission, organisational skills and time management skills. It is also clear that he lacked skills in managing the kitchen staff. Had Mr Alcorso been given a reasonable period of review following the meeting of Fridday 17 March, it is, in my opinion, very likely that he would still have been unable to meet the standards required of a Head Chef in such an establishment. A four week review period would have been reasonable in the circumstances, following which it is likely that Mr Alcorso's employment would have been validly terminated with one week's notice. Accordingly, I have decided to award compensation of four weeks' wages, based upon his weekly wage, as set out in Exhibit D3, of $730.36 per week. ORDER PURSUANT TO the power conferred on my by Section 31(1) of the Industrial Relations Act 1984 I HEREBY ORDER that, in settlement of the industrial dispute referred to in matter T8917 of 2000, the employer, Rosevears Estate Wines Pty Ltd ACN 086 141 826 trading as Rosevears Estate, pay to Mathew James Alcorso, of 2 Franklin Street, Launceston, Tasmania, the sum of Two Thousand, Nine Hundred and Twenty One Dollars and 44 Cents, in full settlement of this dispute, such payment to be made on or before the close of business Friday 4 August 2000.
P C Shelley Appearances: Date and place of hearing: 1 Exhibit D1 |