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[Extract from Queensland Government Industrial Gazette,

dated 28 January, 2005, Vol. 178, No. 4, pages 94-95]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 – s. 74 – application for reinstatement

Dion John Thompson AND Neatt Investments Pty Ltd t/a Top Shop (Sunshine Beach) (No. B1174 of 2004)

VICE PRESIDENT LINNANE 17 January 2004

DECISION

[1] This is an application by Dion Thompson (Applicant) seeking reinstatement to his former position as head chef with Neatt Investments Pty Ltd trading as Top Shop (Sunshine Beach) (Respondent) pursuant to s. 74 of the Industrial Relations Act 1999 (Act). The Applicant commenced employment with the Respondent on or about 3 February 2004 and that employment was terminated on or about 14 July 2004.

[2] At the interview for the position the Applicant was advised by James Doward and Jenny Place, both proprietors of the Respondent, that his specific duties as head chef were to prepare and service the existing take-away menu, order all food stock, be responsible for quality control, supervise staff, liaise with food representatives and to establish a new café style menu. This latter duty also involved the costings of any new menu. At the interview for the position it was conveyed to the Applicant that the business was hiring a chef to change the format of the take-away business to more of a café style à la carte menu. It is this duty of establishing a new café style menu with costings that appear to form the basis for the Applicant’s dismissal from employment.

[3] On or about 20 July 2004 the Applicant says that he was telephoned by Mr Doward and asked to attend a meeting on the following morning. Mr Doward commenced the meeting by saying words to the effect that there was “no easy way of doing this but I am going to terminate your employment agreement”. The Applicant asked for a reason and he was told that he “did not reach guidelines” of the employment agreement being the formatting of a new café style menu (including food costings), quality control and staff supervision.

[4] The Applicant says that approximately one month after commencing employment he had completed a rough copy of a new menu and he arranged a meeting with Mr Doward and Ms Place. The meeting took place with Ms Place only. Mr Doward was unable to attend. During this time he says he also completed a list of names and telephone numbers of wholesale suppliers and did a layout plan of the kitchen i.e. a plan for the refrigerators, freezers and the cool room.

[5] The Applicant states that Ms Place was impressed with the draft new menu and after making a few adjustments advised the Applicant to go ahead with the menu and to make the appropriate arrangements for the purchase of wholesale food items from local suppliers. A copy of this draft menu was in evidence. The Applicant’s evidence was that he also discussed with Ms Place the need to rearrange the layout of the service kitchen if the new menu was to be introduced.

[6] According to the Applicant’s evidence, approximately one to two weeks after that meeting Mr Doward informed him that he was going to engage a pizza cook who would design his own pizza menu and would be responsible for preparing and serving the pizza food. During this meeting Mr Doward asked how the new café style menu was going. The Applicant said that he advised Mr Doward that it was ready to go but was awaiting his authorisation to make the appropriate changes to the kitchen layout. Mr Doward advised the Applicant that he had been looking at new equipment for the kitchen for the new menu and asked him to draw up a plan for the redesign of the preparation kitchen, the dishwashing area, the food preparation benches and the dry store area. The Applicant’s draft plan was also in evidence.

[7] The Applicant’s evidence is that immediately following this conversation with Mr Doward he was on days off. On those days off work he drew up the plan. When he returned from those days off the Applicant states that Mr Doward had already made changes to the preparation area. The Applicant was not impressed with the changes made. According to the Applicant Mr Doward continued to make changes to the layout of both kitchens. Mr Doward was of the view that the Applicant did not provide his plans for a further week after the discussion between himself and the Applicant. Whether it was less than a week or a week and a half after the discussion is immaterial and I do not have to decide the issue.

[8] During the Easter holiday period the Applicant says that he met with Ms Place and asked her to arrange a meeting with Mr Doward. Shortly after the Easter weekend the pizza chef left the employment of the Respondent and the Applicant was required to take over the pizza section whilst also training another person to look after the take-way section. The Applicant says that he was also required to perform all his other duties.

[9] As for the costings issue, the Applicant says that he had not completed the costings at the time of termination. He says that the reason for that was that he had asked Ms Place for invoices relevant to the costing of the menu. The Applicant says that he had also asked Mr Doward for such invoices. Those invoices were not supplied to the Applicant.

[10] The Applicant states that the termination of his employment came as a total surprise. He says that he had received no warnings about his conduct or performance prior to the termination. On termination he did not receive any pay in lieu of notice. An amount of $970.00 ($1,193.05 gross) was only deposited into his bank account some fourteen days after the s. 75 statutory conference i.e. some six weeks after the termination of his employment. Exhibit 3 would indicate that this amount was for accrued annual leave and annual leave loading. Whilst Mr Doward thought he had also paid one week’s pay in lieu of notice the Applicant’s evidence was that he received no other payment. The Respondent did not introduce any evidence which would verify that a payment in lieu of notice has been made to the Applicant.

[11] As for the efforts of the Applicant to mitigate his loss, the evidence is that the Applicant is currently not employed but is hoping to enrol in a Certificate IV course in workplace training and assessment at TAFE – a six week course on two days per week. Before he can apply to commence that course he must undertake a computer course. He has four weeks of that course remaining. This course also involves only two days per week. When asked whether he had sought to work part time whilst completing this course the Applicant’s initial response was “I don’t have any obligation to”. The Applicant said that he could get work as a casual chef but he was reluctant to work again as a chef in Noosa.

[12] The evidence is that the Applicant, on the day of dismissal, went to Centrelink and registered himself as unemployed and looking for employment. Centrelink ultimately referred him for further training.

[13] He has received unemployment benefits since the date of dismissal at the rate of $395.00 gross per fortnight ($370.00 net per fortnight). Whilst employed by the Respondent the Applicant was receiving $1400.00 gross per fortnight ($1100.00 net per fortnight).

[14] Mr Doward gave evidence for the Respondent. Mr Doward said that it was the menu structure and costings that indicated the Applicant’s lack of suitability for the position. Mr Doward’s evidence was that the Applicant “repeatedly” demonstrated that he was not able to build and cost the menu. Mr Doward said that the suppliers of products to the Respondent were all available to the Applicant and the price list and product guide from such suppliers were also available: see Exhibit 4 which the Applicant agreed was available to him listed the price of all products from one supplier. The Applicant’s evidence however was that the goods for the new menu would not have been purchased from an existing supplier.

[15] It was a little surprising that Ms Place did not give evidence when the reason for dismissal was the inability of the Applicant to provide a new menu together with the costings of that menu. The statement of the Applicant (Exhibit 1) filed in this proceeding indicated that the Applicant had been involved in meetings with Ms Place concerning the menu and the documentation which the Applicant said he needed to enable him to prepare costings. Mr Doward could not refute this evidence.

Was the dismissal unfair?

[16] I accept that the Applicant could have prepared at least preliminary costings of the new menu produced with the information he had to hand. There was no evidence from the Applicant that he had actually prepared any of the items on the draft menu to gauge the likely amount of each menu item that would have been required. Such costings may have needed refinement once further information was available. However no costings were prepared by the Applicant. There was however no warning of the Applicant concerning his failure to provide the costings that would be sufficient to warrant dismissal from employment. It must also be noted that the Applicant was summarily dismissed given that he was not given any notice and not paid any monies in lieu of notice. The discussions about the menu and costings appear to have been held with Ms Place rather than Mr Doward and there was no evidence from Ms Place. I therefore find that the Applicant was not warned about his performance.

[17] The decision to dismiss the Applicant was conveyed to him before any opportunity was given to him to respond to any allegation about the menu and/or costings. As it turns out the Applicant had prepared menus and given them to Ms Place. Mr Doward seemed unaware of this fact.

[18] Whilst the Respondent was a small employer it is still incumbent on such employers to give employees a “fair go” before dismissing them and particularly before summarily dismissing them. The Applicant was only informed of the reason for dismissal when he asked for the reasons.

[19] In all the circumstances I find the dismissal of the Applicant to have been harsh, unjust and unreasonable and therefore unfair.

Remedy

[20] The primary remedy for an unfair dismissal is reinstatement/re-employment: see s. 78 of the Act. It is only when reinstatement/re-employment is found to be impracticable that compensation can be considered. As I have mentioned previously the Respondent is a small employer. Prior to the engagement of the Applicant, Mr Doward performed the role at the Respondent’s take-away establishment. The engagement of the Applicant was to free up Mr Doward so that he could concentrate on merchandising and the refurbishment of the premises. Since the termination of the Applicant Mr Doward has returned to perform the role previously undertaken by the Applicant. I have also found that the Applicant could have prepared, at the very least, preliminary costings of the new menu.

[21] In all the circumstances I find that reinstatement is impracticable. For the same reasons I find that re-employment is impracticable.

[22] Whilst I accept that the Applicant has been looking for full time employment since the date of his dismissal I also note that the Applicant acknowledges that he could have obtained work as a casual chef. Instead he has been attempting to retrain. Whilst that is a worthy ambition it is not one for which a former employer should fully compensate a dismissed employee.

[23] The dismissal occurred on 14 July 2004 i.e. approximately six months ago. The Applicant has been in receipt of unemployment benefits of $395.00 gross per fortnight since dismissal. Prior to dismissal he was in receipt of $1,400.00 per fortnight. He has thus lost an amount of $1,005.00 per fortnight. The maximum amount of compensation pursuant to s. 79 of the Act that I could order is thus $13,065.00 i.e. 13 fortnights at $1,005.00.

[24] I find that, on the balance of probabilities, it would have taken the Applicant one month to obtain a position as a casual chef. One of those weeks should have been paid to the Applicant in lieu of notice i.e. for the first week following dismissal the Applicant should have received $700.00. For the following three weeks I find that the Applicant is entitled to compensation in the amount of $1,507.50 i.e. 3 weeks @ $502.50 per week.

[25] I accept that work as a casual chef would not have provided the Applicant with the $700.00 per week that he had been receiving whilst employed at the Respondent. Mr Doward’s evidence is that the amount of $700.00 per week was well in excess of what he was required to pay the Applicant. In those circumstances I am prepared to order a further amount of $1,000.00 in compensation for that additional loss over a further period of time.

[26] I therefore order the Respondent, Neatt Investments Pty Ltd, to pay the Applicant, Dion Thompson, an amount of $3,207.50 in compensation for the unfair dismissal. The monies are to be paid within twenty-two days of the date of release of this decision.

D.M. LINNANE, Vice President.
Hearing Details:
2004 27 October
4 November / Appearances:
Mr D. Thompson on his own behalf.
Mr J. Doward for the Respondent.
Released: 17 January 2005

Government Printer, Queensland

ÓThe State of Queensland 2005.