WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00819

DELIVERED : WEDNESday, 12 OCTOBER 2016

FILE NO. : U 33 OF 2016, B 33 OF 2016

Applicant

AND

E.J Fillaudeau and J.J Maindok TRADING AS FILLAUDEAU'S

Respondent

CatchWords : Industrial Law (WA) - Termination of employment - Harsh, oppressive and unfair dismissal - Principles applied - Summary dismissal for alleged misconduct - Lack of warnings - Applicant harshly and unfairly dismissed - Compensation awarded - Contractual benefits claim - Claim for payment in lieu of notice and annual leave accrual - Applicant entitled to benefits claimed - Applications upheld - Declaration and order made

Legislation : Industrial Relations Act 1979 (WA) s 23A, s 29(1)(b)(i), s 29(1)(b)(ii)     

Result : Applications upheld

Representation:

Applicant : Mrs S Bonifassi (as agent) 

Respondent : Mr G McCorry (as agent)

Case(s) referred to in reasons:

AWI Administration Services Pty Ltd v Birnie (2001) 81 WAIG 2849

BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191

Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224

Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66

Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635

Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8

Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299

Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893

Golding v PIHA Pty Ltd [2004] WAIRC 12971; (2004) 84 WAIG 3639

Hotcopper Australia Ltd v Saab [2001] WAIRC 03827; (2001) 81 WAIG 2704

Lynam v Lataga Pty Ltd [2001] WAIRC 02420; (2001) 81 WAIG 986

Margio v Fremantle Arts Centre Press (1990) 70 WAIG 2559

Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 156

Newmont Australia Ltd v The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677

Re Loty and Holloway v Australian Workers’ Union (1971) AR (NSW) 95

Sealanes (1985) Pty Ltd v Foley [2006] WAIRC 04110; (2006) 86 WAIG 1239

Shire of Esperance v Mouritz (1991) 71 WAIG 891

The Governing Council of Kimberley Training Institute v The State School Teachers’ Union of WA (Inc) [2016] WAIRC 00104; (2016) 96 WAIG 241

The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203

The Undercliffe Nursing Home v the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Reasons for Decision

Background

1         Mr Bonifassi started full-time work as a waiter at the respondent’s restaurant (Fillaudeau’s) on 20 August 2015.  About three months later he signed an employment contract with Fillaudeau’s, which stated that he was employed as a Bar Manager (employment contract) (Exhibit A1).  He was dismissed on 1 February 2016. 

2         On 26 February 2016, Mr Bonifassi referred applications to the Commission claiming that his dismissal was unfair and that he had been denied contractual benefits.  Fillaudeau’s denies that the dismissal was unfair and that it owes any benefits to Mr Bonifassi.

3         Mr Bonifassi says his dismissal was unfair because he was given no reasons for dismissal, no warnings and no notice.  Fillaudeau’s says that it dismissed Mr Bonifassi because of a series of events culminating in Mr Bonifassi’s summary dismissal for serious misconduct. 

4         Mr Bonifassi seeks 2 months’ compensation, one month in lieu of notice and 11.4 hours of annual leave.

5         During the hearing, Mr Bonifassi gave evidence, called Mr Pierre Corbion as a witness and tendered 12 documents.  Mr Corbion is Fillaudeau’s Events Manager.  Fillaudeau’s called Mr Fillaudeau and Ms Maindok as witnesses and tendered two documents. 

6         Mr Bonifassi was represented by his wife.  Fillaudeau’s was represented by an industrial agent.  

Questions to be decided

7         I must decide whether or not Fillaudeau’s:

1. unfairly dismissed Mr Bonifassi; and
2. denied contractual benefits to Mr Bonifassi.

8         I turn to the question of unfair dismissal first.

The law – unfair dismissal

9         The test in a claim of harsh, oppressive or unfair dismissal is whether the employer has exercised its legal right to dismiss so harshly or oppressively against the employee as to amount to an abuse of that right: The Undercliffe Nursing Home v the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385, 386 (Brinsden J).  It involves considering whether the employee got ‘a fair go all round’: Re Loty and Holloway v Australian Workers’ Union (1971) AR (NSW) 95, 99 (Sheldon J).  The test is objective and the onus of proof is on the employee. 

10      A failure to have a fair process can lead to a finding that the dismissal was harsh, oppressive or unfair: Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635 but a lack of procedural fairness may not always have this result: Shire of Esperance v Mouritz (1991) 71 WAIG 891, 899 (Nicholson J).  In Garbett v Midland Brick Company Pty Ltd [2003] WASCA 36; (2003) 83 WAIG 893 EM Heenan J notes that the distinction between substantive and procedural issues can be useful but the ‘decision for the Commission, or a court in any particular case, is simply whether the individual termination of employment was harsh, oppressive or unfair and that test must always be applied without any gloss’ [72].

11      The Full Bench in Margio v Fremantle Arts Centre Press (1990) 70 WAIG 2559 held that ‘[a]n employee should, so far as is practicable, not be dismissed without warning as to the possibility of dismissal’ (2561).

12      Where misconduct is alleged, there is a burden on the employer to demonstrate that the alleged incident occurred and also to evaluate any mitigating circumstances: Garbett [72].  How the employer satisfies this burden depends on the test that is applied.  The Full Bench observed in Newmont Australia Ltd v The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677, 679 that the employer must show on balance that the misconduct occurred.  The Industrial Commission of South Australia observed in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 that it is enough if the employer demonstrates that, before dismissing the employee, it conducted a full and extensive investigation, it gave the employee every reasonable opportunity and sufficient time to answer all allegations, and that, having done those things, the employer honestly and genuinely believed, and had reasonable grounds for believing, that the employee was guilty of the misconduct alleged.  In The Minister for Health v Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 the Full Bench observed that the Bi-Lo test is applied ‘where the misconduct alleged is theft, other acts of dishonesty or matters where the gravity of an offence is such that damage can be done to an employer’s business’ [56].

13      To be misconduct, the employee’s conduct must be incompatible with the fulfilment of his duty, or involve a conflict between the employee’s interest and his duty to his employer, or impede the faithful performance of the employee’s obligation, or be destructive of the necessary confidence between employer and employee: The Governing Council of Kimberley Training Institute v The State School Teachers’ Union of WA (Inc) [2016] WAIRC 00104; (2016) 96 WAIG 241 [97], referring to Dixon & McTiernan JJ in Blyth Chemicals Ltd v Bushnell [1933] HCA 8; (1933) 49 CLR 66, 81-82.

Evidence – credibility

14      To the extent that the evidence conflicts, I generally prefer Mr Bonifassi’s evidence to that of Mr Fillaudeau and Ms Maindok.  This is because Mr Fillaudeau’s and Ms Maindok’s evidence was frequently inconsistent, either with their own testimony during examination-in-chief or cross-examination or with Fillaudeau’s letter of termination.  Mr Bonifassi’s testimony was consistent.  It was also supported by his documents and Mr Corbion’s evidence in a number of important respects.

Termination letter

15      Fillaudeau’s sent Mr Bonifassi a letter dated 1 February 2016 (termination letter) (Exhibit A5), referring to a long list of issues it says were discussed at a meeting on that day, namely Mr Bonifassi’s:

1. ‘theft’ of the American Express (Amex) surcharge;
2. ‘theft’ of a Gladwrap roll;
3. personal hygiene;
4. cleanliness of workspace;
5. refusal to work as required under his contract, such as carrying out food and drinks;
6. lateness;
7. attitude towards Fillaudeau’s owners;
8. damage to Fillaudeau’s plants and equipment;
9. requests for time off work;
10. behaviour towards female staff and guests; and
11. service of 40 ml rather than 30 ml of alcohol to a customer (also referred to as ‘theft’).

16      The termination letter describes incidents which occurred between November 2015 to January 2016 and states that Mr Bonifassi was summarily dismissed for serious misconduct.  It is not clear from the letter which of the incidents is the serious misconduct for which Mr Bonifassi was summarily dismissed, though I understand from Fillaudeau’s submissions that the Amex surcharge incident was the main basis for his dismissal. 

17      Mr Fillaudeau gave evidence that he did not give Mr Bonifassi an official warning about the behaviour outlined in the termination letter because Mr Bonifassi did not want to work at Fillaudeau’s anymore.  He said Mr Bonifassi had told him ‘two weeks prior’ that Mr Bonifassi was going to quit.  This was not put to Mr Bonifassi in cross-examination. 

18      Mr Fillaudeau gave evidence that Mr Mr Bonifassi wasn’t given any written warnings before 31 January 2016 because Fillaudeau’s thought  that Mr Bonifassi was ‘just…having a bad week’, that it was ‘the wrong timing’ and that ‘he [sic] will…not occur again’.

19      In cross-examination, Mr Fillaudeau said that Fillaudeau’s dismissed Mr Bonifassi without any notice because Mr Bonifassi refused to carry out food and drinks to tables.  He then clarified that Mr Bonifassi was dismissed for an extensive list of problems that arose in the two weeks before dismissal. 

20      In its submissions, Fillaudeau’s says that its reasonable belief that Mr Bonifassi and Mr Corbion had ‘conspired to waive the Amex surcharge’ justified Mr Bonifassi’s summary dismissal.  It says that there are ample grounds to justify Mr Bonifassi’s dismissal. 

Dates in the termination letter

21      The termination letter mentions incidents that happened on Tuesday 1 December 2015 and Wednesday 27 January 2016. 

22      Mr Bonifassi gave evidence that he did not work on those dates because the restaurant was closed on Monday evenings, Tuesdays and Wednesdays.  Mr Corbion gave evidence that the restaurant was closed on Tuesdays and Wednesdays.

23      Mr Fillaudeau conceded that these dates in the termination letter may be wrong, because he could not find his diary when he wrote the termination letter.  He said he was sure that the events described as occurring on 1 December 2015 in the termination letter occurred on a Monday.  He agreed that Mr Bonifassi was not at work on 27 January 2016.

24      I find that the reference to 1 December 2015 and 27 January 2016 in the termination letter likely means 30 November 2015 and 28 January 2016, respectively.

Reason for dismissal – lateness

25      The termination letter mentions Mr Bonifassi’s ‘lateness at work on a regular basis’ and states that on 1 December 2015 Mr Bonifassi ‘took a cigarette break without permission’ and on 27 January 2016 Mr Bonifassi ‘show[ed] up late to work again without an excuse or apologies’.

Mr Bonifassi’s case 

26      Mr Bonifassi gave evidence that he was not late to work.  He said that there was no clock in, clock out system or roster at Fillaudeau’s.  He started work at 10:30 am, took a break at 3 pm and was back at work at 5:30 pm until the business closed. 

27      Mr Corbion’s evidence was that he never gave Mr Bonifassi a roster.

Fillaudeau’s case

28      Mr Fillaudeau gave evidence that after Mr Bonifassi signed his employment contract with Fillaudeau’s, Mr Bonifassi started showing up late to work.  He clarified that what he meant was that Mr Bonifassi would arrive on time but would then go to the toilet for half an hour or go out for a cigarette.  He said he spoke to Mr Bonifassi about this.  

Consideration

29      Mr Bonifassi’s lateness was not put to him in cross-examination. 

30      I make no finding that Mr Bonifassi was late to work on a regular basis.

31      Even if Mr Bonifassi had been, I do not find Fillaudeau’s warned him about lateness.  Further, in the circumstances, I do not consider it to be a valid reason to dismiss Mr Bonifassi.  

Reason for dismissal – leave    

32      The termination letter mentions that Mr Bonifassi twice asked for time off work.  On 27 November 2015 Mr Bonifassi asked for 4 December 2015 off work ‘to spend it with [his] wife and kids’, which was refused.  The letter states that on 4 December 2015, Mr Bonifassi called in sick because he had gastritis, but that Mr Bonifassi returned to work on 5 December 2015, did not provide a medical certificate and was ‘not sick like someone with gastritis’.  On 28 January 2016, Mr Bonifassi took the morning off work ‘to look after [his] kid’. 

Mr Bonifassi’s case

33      Mr Bonifassi said that ‘three weeks before’ 4 December 2015, he verbally requested 4 December 2015 off work because his wife and children were returning from France.  Fillaudeau’s did not approve his leave.  On 4 December 2015, he was sick with gastritis.  At 4:30 am Mr Bonifassi sent a text message to Mr Fillaudeau letting Fillaudeau’s know that he was not coming to work.  Mr Bonifassi said he was not asked for, and did not provide, a medical certificate. 

34      Mr Bonifassi gave evidence that in the morning on 28 January 2016 he called Fillaudeau’s to let the restaurant know he needed to take the morning off work to look after his unwell child.  He went into work on that day at about 5:30 pm.

Fillaudeau’s case

35      Mr Fillaudeau said that on 4 December 2015, when Mr Bonifassi texted at 4:30 am to say that he had gastritis, Mr Fillaudeau knew that Mr Bonifassi was picking up his wife and children from the airport.  He said that Mr Bonifassi knew it was the restaurant’s busiest day of the year, and that is why Mr Fillaudeau refused Mr Bonifassi’s leave request. 

36      Mr Fillaudeau said that he expected that a person with hospitality experience would have provided a medical certificate after an illness such as gastritis to confirm that he or she was not sick anymore and could serve food and drinks. 

37      Mr Fillaudeau conceded he did not ask Mr Bonifassi for a medical certificate on either 4 December 2015 or 28 January 2016 when Mr Bonifassi asked for personal leave.

Consideration

38      I do not think Fillaudeau’s could reasonably conclude that Mr Bonifassi was not unwell on 4 December 2015.  Taking a day of personal leave, in the circumstances, would not give rise to a reason to dismiss Mr Bonifassi. 

39      Fillaudeau’s cannot reasonably rely on Mr Bonifassi’s failure to provide a medical certificate on these two occasions as a valid reason for dismissal, particularly in circumstances where Mr Fillaudeau did not ask Mr Bonifassi for a medical certificate on either occasion. 

40      Mr Bonifassi’s evidence, supported by a translated series of text messages between him and Mr Fillaudeau, in which part of Mr Fillaudeau’s message is translated as ‘we give holidays by the week so [Mr Bonifassi] has to take the week’ (translated text messages dated 21 December 2015) (Exhibit A9), and not disputed in cross-examination by Fillaudeau’s, leads me to find that Fillaudeau’s had an unreasonable approach in relation to the taking of leave generally. 

Reason for dismissal – personal hygiene and cleanliness of workspace

41      The termination letter mentions Mr Bonifassi’s ‘underperforming standard of hygiene and cleaning of [Mr Bonifassi’s] work space’ and ‘lack of personal hygiene (cigarette smell)’.  The letter states that on 1 December 2015, Mr Bonifassi was asked ‘to take a mint after smoking’ and on 27 January 2016 Mr Bonifassi’s ‘hygiene standard’ was ‘not as standard’ and that he was asked ‘to do something about the cigarette smell as well’.

42      The letter states that:

1. on 1 December 2015 Mr Bonifassi was asked ‘to maintain the hygiene standard at [his] post (the bar), which was very dirty, sticky and smelly’;
2. on 27 January 2016 Mr Bonifassi left the restaurant and the bar ‘without cleaning’ and with ‘broken glass everywhere behind the bar’;
3. on 28 January 2016 the owners, Ms Maindok and Mr Fillaudeau, cleaned Mr Bonifassi’s workspace, the bar, and ‘found numerous mouse dropping[s], dirt and broken glasses’; and
4. on 31 January 2016, at closing time, Mr Bonifassi did not clean the bar, did not vacuum the floor and left broken glasses.

Mr Bonifassi’s case

43      Mr Bonifassi says that he took mints or coffee beans to hide the smell of having smoked cigarettes.  He says that he also used hand sanitiser.

44      Mr Bonifassi gave evidence that he cleaned the bar after his shift on Monday (25 January 2016) but because he did not return to work until the evening of Thursday 28 January 2016, he did not know what was discovered that morning. 

45      On 31 January 2016 Mr Bonifassi was left alone at the restaurant in the evening, with no customers.  He cleaned the coffee station, the bar area and the bench and left.  He didn’t vacuum the floor because a casual employee cleaned the floor earlier that evening. 

46      Mr Corbion’s evidence was that Mr Bonifassi’s work space was the same as everyone else’s and it was no cleaner or dirtier.

Fillaudeau’s case

47      Mr Fillaudeau gave evidence that Mr Bonifassi would smell of cigarettes after he smoked and that Mr Bonifassi was asked to take mints or something to hide the smell of cigarettes. 

48      Ms Maindok gave evidence that on about 28 January 2016, she cleaned the fridges and discovered mouse droppings behind wine bottles which looked like they had been there for a while.  Mr Fillaudeau said that the restaurant had not had mouse droppings behind the bar in years.

49      Mr Fillaudeau said after Mr Bonifassi’s shift on 28 January 2016, Mr Bonifassi did not clean the bar. 

50      Mr Fillaudeau said Mr Bonifassi was left alone at the restaurant on Sunday 31 January 2016 to clean the bar and close the restaurant, because there were no customers.  He said when he returned on Monday 1 February 2016, there were mouse droppings, broken glasses and stickiness behind the bar underneath the fridge. 

51      Mr Fillaudeau said that the cleaning the area behind the bar and behind the coffee machine was Mr Bonifassi’s job.  Ms Maindok said that Mr Bonifassi, as the bar person, is responsible for state of the bar area.

52      Mr Fillaudeau said that Mr Bonifassi would only wipe down the benches, rather than clean the bar properly.  Ms Maindok said every week, the bar should be cleaned with soap and water, and every evening the floors should be mopped and vacuumed.  She said that because Mr Bonifassi was not cleaning the bar area, she would usually clean it herself and Mr Corbion would sometimes clean it.  She said that while she was on maternity leave, Mr Corbion may not have checked whether Mr Bonifassi was cleaning the bar properly.  She said she issued a verbal warning about the cleanliness of the bar when she returned from leave, though she did not say who she spoke to about the issue. 

Consideration

53      I accept that Fillaudeau’s asked Mr Bonifassi to hide the smell of having smoked cigarettes, and that Mr Bonifassi used mints, coffee beans and hand sanitiser to do so.

54      Mr Bonifassi was not cross-examined about his personal hygiene during work or the cleanliness of his workspace.

55      Given the evidence and lack of opportunity during cross-examination for Mr Bonifassi to respond to Fillaudeau’s position that his workspace was unclean, I do not find that Mr Bonifassi’s workspace was unclean.  In any event, even if it had been, Fillaudeau’s did not raise the issue with him and give him a chance to improve. 

56      In the circumstances, Mr Bonifassi’s personal hygiene and the condition of his workspace were not valid reasons to dismiss him. 

Reason for dismissal – glad wrap

57      The termination letter refers to Mr Bonifassi’s ‘theft of gladwrap roll from [Fillaudeau’s] kitchen’ and states that on 20 December 2015 Mr Bonifassi stole a glad wrap roll and used it to wrap the chef’s car. 

 Mr Bonifassi’s case

58      Mr Bonifassi says that he glad wrapped the chef’s car as a prank, because the chef had earlier put oil on the front window and door handle of Mr Bonifassi’s car.  He returned the leftover glad wrap to Fillaudeau’s kitchen. 

59      Mr Fillaudeau told him that Mr Fillaudeau had seen him do this on the security camera footage.

Fillaudeau’s case

60      Mr Fillaudeau said that he discovered that Mr Bonifassi took the glad wrap from Fillaudeau’s via a Facebook photo, which showed Mr Bonifassi carrying the glad wrap roll. 

61      During the hearing, Fillaudeau’s did not question Mr Bonifassi about the glad wrap incident and Fillaudeau’s agent said Fillaudeau’s was not relying on it.

Consideration

62      In my view, it was quite unreasonable for Fillaudeau’s to characterise this incident as theft in its termination letter.

63      I find the use of glad wrap was a prank, a trivial matter and not a valid reason to dismiss Mr Bonifassi. 

Reason for dismissal – behaviour to female staff and customers 

64      The termination letter states that on 21 January 2016 Mr Bonifassi was told by the owner that he should ‘watch [his] language and manners towards the female staff and guests’ and was warned that the owners ‘would not be able to carry on [his] contract with such attitude’.

Mr Bonifassi’s case

65      Mr Bonifassi gave evidence that he had never been rude to the female staff and that he had never had a problem with the staff, so he did not know what the incident in the termination letter referred to.   

66      In cross-examination, Mr Bonifassi denied that he had looked female customers up and down in an appreciative manner, or that he made any comments about them. 

67      He said he had never been warned or told about any complaints in relation to this issue. 

Fillaudeau’s case

68      Ms Maindok gave evidence that on 21 January 2016 she saw Mr Bonifassi ‘ogling’ female customers as they walked into the restaurant and heard him make appreciative comments about them.  She said she was called over by the female customer and was asked to not let Mr Bonifassi go to that table because the customer felt uncomfortable. 

69      Ms Maindok asked Mr Bonifassi to ‘keep it a bit more toned down’, to which he replied ‘oh, come on darling, don’t be jealous’ and walked away from her.  Ms Maindok said because of the constant confrontation with Mr Bonifassi, she avoided the issue and continued working. 

70      She said she did not warn to Mr Bonifassi about his behaviour, because they had previously been friends.  She said she should have given him a warning. 

71      In cross-examination, Ms Maindok said that she gave Mr Bonifassi a verbal warning, but not a written warning.  She said she has never given Mr Bonifassi a written warning. 

Consideration

72      I accept that Ms Maindok did not give Mr Bonifassi a written warning about his behaviour to female staff and customers.  Her evidence of what she said to Mr Bonifassi would not amount to a verbal warning.  It was also inconsistent with the termination letter. 

73      Even if Ms Maindok gave Mr Bonifassi a verbal warning, I do not consider it likely the warning was to the effect that Mr Bonifassi’s employment contract might be terminated if the behaviour continued, as stated in the termination letter. 

74      The inconsistency between Ms Maindok’s evidence on this issue and the termination letter leads me to make no finding about whether the conduct occurred.  In any event, in the circumstances I do not consider that it would amount to a valid reason to dismiss Mr Bonifassi. 

Reason for dismissal – attitude at work and refusal to carry out food and drinks

75      The termination letter refers to Mr Bonifassi’s refusal to ‘do what is asked to fulfil your contract’, namely to carry out drinks and food to customers.  It also mentions his ‘lack of good attitude (smiling while at work, a basic requirement for [a] hospitality worker)’.

Mr Bonifassi’s case

76      Mr Bonifassi tendered references from Bar Lafayette and Valentino’s Café (Exhibit A6).  The references commend Mr Bonifassi’s ‘strong communication and interpersonal skills’ and notes his ability to deal with customers ‘with a smile and cheerful demeanour’. 

77      Mr Bonifassi gave evidence that he would smile at the front of the restaurant, but that he would not smile in the kitchen because he wasn’t allowed to talk in the kitchen. 

78      In cross-examination, Mr Bonifassi said that he did not refuse to carry out food and drinks, saying ‘what the point [sic] to go in my black shirt, black pants with my…resign letter for notice and leaving’.

79      Mr Corbion gave evidence that Mr Bonifassi refused to fill up the water bottle for the kitchen ‘a few times’, but that ‘bar-wise’ he was a great worker.  Mr Corbion said Mr Bonifassi had good communication with customers.  

Fillaudeau’s case

80      Mr Fillaudeau gave evidence that Mr Bonifassi was initially employed for three months as a waiter.  He said there were no complaints about Mr Bonifassi in the first three months.  After Mr Bonifassi signed his contract, he started showing up late to work, refused to carry out drinks and there were issues with mouse droppings and a sticky bar.

81      Mr Fillaudeau said that Mr Bonifassi was not willing to work out his notice period, because he refused to carry plates and drinks. 

82      Ms Maindok gave evidence that Mr Bonifassi wouldn’t take instructions from her and she had difficulty communicating with him.  She would talk to him about his work ethic, but he would ignore her.  She said ‘I can just tell [Mr Bonifassi] nothing, pretty much.  I’m – I don’t have the experience or the expertise to, um, be able to give any advice or instructions to Nicholas Bonifassi’.

83      Ms Maindok said she expected staff to smile when they were in front of customers, but not otherwise. 

Consideration

84      I accept that Ms Maindok found it difficult to communicate with Mr Bonifassi.  However, as his employer, it is unreasonable for her to shy away from giving him a warning, to not give him a chance to respond or improve and then to dismiss him. 

85      Given the evidence and lack of opportunity during cross-examination for Mr Bonifassi to respond to Fillaudeau’s position that he lacked a ‘good attitude’, I do not find that Mr Bonifassi had a poor attitude at work.

86      I find that Mr Bonifassi did not refuse to carry out food and drinks to customers.  I understood Mr Bonifassi’s evidence during cross-examination to be that if he refused to carry out food and drinks, he would not have gone to the restaurant on 4 February 2016 in a black shirt and black pants with his resignation letter, giving Fillaudeau’s one month’s notice and stating that he would work out his notice period or would otherwise accept payment in lieu.

87      In any event, even if these issues were made out against Mr Bonifassi, and I do not find that they were, they would not be a valid reason for dismissal given the lack of warnings and opportunity for Mr Bonifassi to improve.   

Reason for dismissal – speaking to other staff and aggressive behaviour

88      The termination letter mentions that Mr Bonifassi was aggressive toward and challenged the owners and management of Fillaudeau’s and was also aggressive to ‘plants and equipment when asked to do some work’.  The letter states that on 1 December 2015 and 29 January 2016 Mr Bonifassi was asked not to talk to other staff in the kitchen and that after the second time, Mr Bonifassi ‘shouted and walked in the restaurant and called the owner by a swear word in front of the other owner, waiting staff and customers at the till’.

Mr Bonifassi’s case

89      Mr Bonifassi denied that he had ever been aggressive to the owners or management at any time.   

90      Mr Corbion said Mr Bonifassi did not challenge him at work, and that Mr Corbion had never given Mr Bonifassi warnings at work.

91      Mr Bonifassi says that on 29 January 2016 Mr Fillaudeau told him to ‘shut the fuck up’ after Mr Bonifassi spoke to the chef.  Mr Bonifassi replied ‘putain, c’est le monde a l’inverse’, which he said meant ‘fuck, it’s crazy, it’s a world upside down’.  Mr Bonifassi says he was in the kitchen at the time, not in the front of the restaurant. 

92      In cross-examination, Mr Bonifassi denied that he was told to stop speaking to staff in the kitchen before 29 January 2016.  He denied that he damaged equipment or anything else at the restaurant.

Fillaudeau’s case

93      Mr Fillaudeau said on 29 January 2016 Mr Bonifassi was speaking to the chef about non-work-related issues.  Mr Fillaudeau told Mr Bonifassi to go back to work.  He saw Mr Bonifassi walk out to the front of the restaurant and, through the window in the door to the kitchen, shout something and flick the plants. 

94      He denies having told Mr Bonifassi to ‘shut the fuck up’.  He says Mr Bonifassi called him ‘the c-word in French’, in front of staff and customers and Ms Maindok, although he concedes he did not hear this.  He saw Mr Bonifassi flick the plants.

95      Mr Fillaudeau said that he did not give Mr Bonifassi a warning about his behaviour, because he decided to give Mr Bonifassi a ‘first chance’.  He told Mr Bonifassi not to call him names. 

96      Ms Maindok gave evidence that she saw Mr Fillaudeau speak to Mr Bonifassi and heard Mr Fillaudeau say to Mr Bonifassi ‘I’ve already told you once.  Come on, we’ve got to move’.  She did not hear Mr Fillaudeau say ‘shut the fuck up’.  After she left the kitchen, she saw Mr Bonifassi ‘bursting out of the kitchen door and [he] went something…“ah, connasse” or something like this’, which meant the c-word in French.  In cross-examination, she said Mr Bonifassi ‘definitely said that’.  Mr Bonifassi then flicked a plant nearby in an ‘immature fashion’.  Ms Maindok said to Mr Bonifassi ‘would you mind not to be like that, would you mind to tone it down a bit’ and Mr Bonifassi walked off, muttering under his breath. 

Consideration

97      Whether Mr Fillaudeau told Mr Bonifassi to ‘shut the fuck up’ or not, I accept he likely robustly told Mr Bonifassi to stop talking to staff in the kitchen, leading to Mr Bonifassi saying ‘putain, c’est le monde a l’inverse’. 

98      The reason I prefer Mr Bonifassi’s evidence to Ms Maindok’s evidence about this issue is because his was definite and consistent.  Ms Maindok’s evidence was not.  Mr Fillaudeau did not hear what Mr Bonifassi said.  

99      I accept that Mr Bonifassi flicked the plant.  Given Mr Fillaudeau and Ms Maindok did not give Mr Bonifassi a warning about the incident, I find they did not consider it to be a particularly serious matter.  Ms Maindok’s evidence of what she said to Mr Bonifassi would not amount to a verbal warning.  I find the behaviour did not warrant dismissal. 

Reason for dismissal – the pousse-café

100   The termination letter states that on Saturday 30 January 2016 Mr Bonifassi served a pousse-café with 40 ml of alcohol instead of the legal requirement of 30 ml and that when the owner asked Mr Bonifassi about this, his answer was ‘it is better that way’. 

101   It was apparent from the termination letter and Fillaudeau’s cross-examination of Mr Bonifassi and its submissions that Fillaudeau’s considers this incident caused a serious and imminent risk to the health and safety of Fillaudeau’s guests. 

Mr Bonifassi’s case

102   Mr Bonifassi gave evidence that on 30 January 2016 he received his first order for a pousse-café.  He decided to make the coffee and pour the shot of cognac on the side.  He said when Ms Maindok came to collect the drink, she said ‘normally we put the cognac inside the coffee’.  Mr Bonifassi replied he thought it looked more professional to serve the shot of cognac beside the coffee.  Ms Maindok then took the drink and served it without measuring the cognac.  They did not discuss the quantity of cognac being served.

103   In cross-examination, Mr Bonifassi said he could not remember if he free-poured or measured the cognac. 

Fillaudeau’s case 

104   Ms Maindok gave evidence that none of the bottles at Fillaudeau’s have pourers on them.  She said Fillaudeau’s provides jiggers which staff are supposed to use to measure alcohol quantity. 

105   That day, she noticed Mr Bonifassi had free-poured the cognac.  She questioned the presentation of the drink and also the amount of alcohol in the glass.  In cross-examination, she said she told him she did not like him free-pouring and asked him to use the measures provided. 

106   Ms Maindok said she did not think Mr Bonifassi poured too much or too little cognac, she just knew that he had free-poured.  She did not check the quantity of cognac at the time, and she served the pousse-café to the customer.

107   She said that she checked the quantity of cognac served ‘afterwards, when this case got brought up and all these things started coming up’, by pouring water into a similar glass, up to the level she thought the cognac had been poured to.  She and Mr Fillaudeau then measured the quantity of water, which was 40 ml. 

108   Mr Fillaudeau said that Mr Bonifassi was asked numerous times not to free-pour alcohol although he did not provide further details about this. 

Consideration

109   The letter of termination does not mention free-pouring, only that the quantity of cognac was 40 ml instead of the required 30 ml.

110   I accept that Mr Bonifassi free-poured the cognac.  However, I find he did not serve too much cognac.  I understand Ms Maindok’s evidence to be that she measured the quantity with water after Mr Bonifassi made his claim of unfair dismissal.  The termination letter notes that Mr Bonifassi served 40 ml.  I find at the time it was written, Fillaudeau’s had not measured the amount. 

111   Ms Maindok’s evidence that she did not think Mr Bonifassi poured too much is inconsistent with the termination letter and her evidence that she questioned him about the amount of alcohol. 

112   Further, Ms Maindok can hardly rely on Mr Bonifassi’s free-pouring to dismiss him, in circumstances where she chose to serve the drink.  That Fillaudeau’s characterises Mr Bonifassi’s actions in making the pousse-café as ‘engaging in theft and breaking liquor laws’ as well as ‘causing a serious and imminent risk to health and safety’ is quite unreasonable. 

113   I find that the incident with the pousse-café on 30 January 2016 was not a valid reason for dismissal. 

Reason for dismissal – the Amex surcharge

114   The termination letter refers to ‘the theft of the American express fee’ and states that on Sunday 31 January 2016 a customer called Peter visited the restaurant and pointed at Mr Bonifassi, identifying Mr Bonifassi as the waiter who did not charge him an Amex surcharge in return for a 10%  cash tip. 

Mr Bonifassi’s case

115   Mr Bonifassi gave evidence that the customer called Peter visited Fillaudeau’s and suggested that instead of the customer paying an Amex surcharge, he would leave a 10%  cash tip.  Mr Bonifassi told Peter that he did not have authority to make that decision and called over the floor manager, Mr Corbion, to speak to Peter.  Mr Bonifassi said on that occasion, Peter did not pay an Amex surcharge and left a tip in the tip jar.  Mr Bonifassi said Peter visited the restaurant a second time and did the same thing.

116   Mr Bonifassi gave evidence that on Sunday 31 January, he saw Peter come to Fillaudeau’s to buy a voucher.  When Peter went to pay for the voucher, he asked for the Amex surcharge to be waived.  Mr Bonifassi said the owners were ‘pretty surprised’, as they did not know the Amex surcharge had been waived for Peter in the past.  Mr Bonifassi said he was setting up alfresco area outside at the time and, when Peter was asked by the owners who had waived the Amex surcharge in the past, Peter may have pointed at him.  Mr Bonifassi said this may have been because Mr Corbion was on holiday at the time, so he was the only waiter Peter had spoken to previously about the Amex surcharge who was in the restaurant at the time. 

117   When Peter left, Mr Fillaudeau approached Mr Bonifassi and asked him about Peter’s request to waive the Amex surcharge.  Mr Bonifassi explained what had happened the previous times Peter visited the restaurant, when Mr Corbion waived the Amex surcharge for Peter, who paid a tip instead of the Amex surcharge.  Under cross-examination, Mr Bonifassi reiterated that this conversation occurred straight after the customer left the restaurant.

118   Under cross-examination, Mr Bonifassi said that Mr Corbion made the decision to waive the Amex surcharge and that Mr Bonifassi had never been authorised to, and did not, waive the Amex surcharge on any occasion.  Mr Bonifassi said he never received tips directly from the customer.

119   Mr Corbion’s evidence was that he alone made the decision to waive the Amex surcharge.  He waived the Amex surcharge for Peter twice, but could not recall the exact occasions.  He received a verbal warning from Ms Maindok on 4 February 2016, but no written warnings.

Fillaudeau’s case

120   Ms Maindok gave evidence that on 31 January 2016, Peter asked her to waive the Amex surcharge.  She said she asked Peter who had waived the Amex surcharge for him in the past and Peter indicated Mr Bonifassi, who was standing at the front door.  Her evidence was that she thought Mr Bonifassi overheard the conversation and started moving and cleaning. 

121   Mr Fillaudeau gave evidence that on 31 January 2016 the customer Peter pointed to Mr Bonifassi, who was working outside on the veranda.  He said Mr Bonifassi saw Peter point at him and walked off.  He gave evidence that Peter said ‘that guy take [sic] off the surcharge but I usually leave a 10%  tip in cash instead’.  

122   Mr Fillaudeau denies that he spoke to Mr Bonifassi about the Amex surcharge on 31 January 2016. 

123   Mr Fillaudeau gave evidence that on Monday 1 February 2016 he raised the waiving of the Amex surcharge with Mr Bonifassi.  He said Mr Bonifassi did not apologise and said that it was ‘good business’ for Fillaudeau’s because the customer came back.  Mr Bonifassi did not offer to reimburse the restaurant.  Mr Bonifassi did not say that it was not his fault, he said that it was a decision made by Mr Corbion.

124   Mr Fillaudeau gave evidence that on 4 February 2016, after he dismissed Mr Bonifassi, he spoke to Mr Corbion about the Amex incident.  Mr Corbion said that he did waive the Amex surcharge but at no time did he authorise Mr Bonifassi to do so.  Mr Fillaudeau said Mr Corbion showed remorse and was apologetic, so he only received a verbal warning. 

125   Fillaudeau’s referred to [19] to [22] of BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191.  In this case, the summary dismissal of an employee whose conduct was described as ‘carelessness and minor dishonesty’ was justified because the employee occupied senior managerial position, could reasonably be expected to set an impeccable example and his dishonest conduct ‘was bound to undermine the relationship of trust that ought to exist between employer and employee’.

Consideration

126   I accept Mr Bonifassi’s evidence that he was not authorised to and did not waive the Amex surcharge.  Further, that he never received a tip in hand from the customer.  Mr Bonifassi’s evidence was definite and clear.  It was also supported by Mr Corbion’s evidence and Mr Bonifassi’s letter to Fillaudeau’s dated 4 February 2016 beginning ‘As per our conversation’ (apology letter) (Exhibit A3). 

127   I accept Mr Bonifassi’s evidence that the customer may have pointed to Mr Bonifassi because Mr Corbion was not present and Mr Bonifassi was the only waiter the customer had previously spoken to about waiving the Amex surcharge. 

128   I find Mr Corbion decided to waive the Amex surcharge for the customer and did so on several occasions. 

129   While I accept that Mr Fillaudeau and Ms Maindok suspected their staff may have conspired to increase tips by waiving the Amex surcharge, I do not find such a suspicion was based on reasonable grounds. 

130   Mr Fillaudeau did not conduct a proper inquiry in response to the allegation.  Given Mr Bonifassi’s denial, Mr Fillaudeau should have spoken with Mr Corbion before concluding his staff were involved in a conspiracy.  That would have been the fair and reasonable thing to do.  Accordingly, I do not consider that Fillaudeau’s has met its evidentiary onus. 

131   I find the tips were shared in the usual way, between all the staff. 

132   Mr Fillaudeau seemed to consider Mr Bonifassi’s lack of remorse to be evidence of his guilt.  Mr Bonifassi’s version of events is entirely plausible and was supported by Mr Corbion’s evidence and the apology letter.  Mr Bonifassi was not apologetic because he did not engage in any misconduct.

133   I consider Phippard distinguishable from this case.  In Phippard, the employee was found to have engaged in dishonest acts.  In this matter, I do not find that Mr Bonifassi acted dishonestly and, importantly, he did not waive the Amex surcharge.  As I have said, I do not find the glad wrap prank and service of the pousse-café to be theft or to involve dishonesty. 

Date of termination

Mr Bonifassi’s case

134   Mr Bonifassi said that on Monday 1 February 2016 at about 10:30 am, Mr Fillaudeau sat down with him and gave him an ultimatum – Mr Bonifassi could either resign straight away with no notice, or else Mr Fillaudeau would go to the police about the Amex incident.  Mr Bonifassi did not understand why Mr Fillaudeau wanted to fire him and explained that the decision to waive the Amex surcharge was Mr Corbion’s decision.

135   Mr Bonifassi said that Mr Fillaudeau gave him three days to think about his decision, because Mr Fillaudeau said he did not want to go to the police.  After the meeting, Mr Fillaudeau asked Mr Bonifassi to take off his shirt and apron and leave them behind the bar.  Mr Bonifassi did so and left the restaurant through the kitchen and walked to his car, shirtless. 

136   For the security of his family, Mr Bonifassi decided to resign in order to get the benefit of this one month notice period under his employment contract. 

137   On 3 February 2016 Mr Bonifassi requested a meeting via text message with Mr Fillaudeau to discuss their previous meeting.  Mr Fillaudeau replied ‘not sure what you want to discuss and it seems unnecessary to meet’ and ‘we sent you a letter as requested’ (text messages on 3 February 2016) (Exhibit A4).  Mr Bonifassi said he was not sure what the reference to the letter meant, as he had not received anything in writing confirming he should not return to work. 

138   Mr Bonifassi wrote a letter to Fillaudeau’s advising of his intention to resign and giving one month’s notice (resignation letter) (Exhibit A2).  He also wrote the apology letter, explaining that Mr Corbion made the decision in respect of any waived Amex surcharge and, to show his good faith, offered to pay Fillaudeau’s $30 to cover the Amex surcharge in return for Mr Fillaudeau not going to the police.  These letters were both dated 4 February 2016.

Fillaudeau’s case

139   Fillaudeau’s notice of answer stated that on 1 February 2016:

e.  [Mr Fillaudeau] asked [Mr Bonifassi] in words to the effect ‘you can give me one month’s notice providing you do what you are asked to do.’  [Mr Bonifassi] responded in words to the effect ‘No, just pay me more.’  [Mr Fillaudeau] replied in words to the effect ‘OK I will go to the Police’.  

f.  [Mr Fillaudeau] then summarily terminated [Mr Bonifassi’s] employment by saying words to the effect ‘Ok you have no more work here’ and ‘Ok return your shirt and apron.’  [Mr Bonifassi] forthwith ripped his shirt off, damaging it, and walked through the restaurant in front of customers and staff, through the kitchen and left the premises. 

140   As set out at [123], Mr Fillaudeau gave evidence that on Monday 1 February 2016 he spoke to Mr Bonifassi about waiving the Amex surcharge.  He said Mr Bonifassi did not apologise and said that it was ‘good business’ for Fillaudeau’s because the customer came back.  Mr Bonifassi did not offer to reimburse the restaurant.  Mr Bonifassi did not say that it was not his fault, he said that it was a decision made by Mr Corbion.

141   Mr Fillaudeau said he told Mr Bonifassi that it was best they stopped working together because Mr Bonifassi was not apologetic about the Amex incident.  He told Mr Bonifassi to either resign immediately or he would go to the police. 

142   Mr Fillaudeau said that while Mr Bonifassi was collecting his personal items in the restaurant, he told Mr Bonifassi that he needed to return his uniform (shirt and apron) once they were cleaned.  Mr Fillaudeau said both those items have the restaurant’s logo and that he didn’t want Mr Bonifassi to leave with them.  He said Mr Bonifassi ripped off his shirt, started shouting and ran through the kitchen without a shirt. 

143   Mr Fillaudeau denies that he gave Mr Bonifassi three days to think about things, or that he asked for a resignation letter.  He said he fired Mr Bonifassi on 1 February 2016 and wrote the termination letter to Mr Bonifassi that evening. 

144   Ms Maindok said she overheard the conversation between Mr Fillaudeau and Mr Bonifassi on 1 February 2016 and did not understand why Mr Bonifassi did not tell Fillaudeau’s when the Amex surcharge was first waived.  She said ‘it was like it was kept secret so he could pocket the tips himself’.

145   She said she saw Mr Bonifassi rip open his shirt and say ‘shove the job up your arse’ and walked away shouting and yelling.

Consideration

146   There is conflicting evidence about what happened on 1 February 2016. 

147   Both parties’ evidence was that Mr Bonifassi met with Mr Fillaudeau, who gave Mr Bonifassi a choice to either resign, or Mr Fillaudeau would go to the police for alleged theft. 

148   Mr Bonifassi’s evidence was that Mr Fillaudeau asked him to take off his shirt and apron and leave them behind the bar.  Mr Fillaudeau’s evidence was that he asked Mr Bonifassi to return the shirt and apron after they were cleaned.  That is inconsistent with his evidence that he did not want Mr Bonifassi to leave with the uniform.  Fillaudeau’s notice of answer does not mention Mr Fillaudeau asking Mr Bonifassi to clean the shirt and apron.  Its wording suggests to me that Mr Fillaudeau expected Mr Bonifassi to return the shirt and apron immediately.

149   Both Mr Bonifassi’s and Mr Fillaudeau’s evidence was that Mr Bonifassi walked through the kitchen, and not, as stated in Fillaudeau’s notice of answer, ‘through the restaurant in front of customers and staff’ after he returned his shirt and apron.   

150   Mr Bonifassi says that Mr Fillaudeau gave him three days to decide whether to resign, or Mr Fillaudeau would go to the police.

151   Mr Fillaudeau says that did not happen.  He says he dismissed Mr Bonifassi on that day.  Mr Fillaudeau asked Mr Bonifassi to return his shirt and apron with Fillaudeau’s logo, wrote the termination letter to Mr Bonifassi that evening and sent Mr Bonifassi a text message on 3 February 2016 in response to Mr Bonifassi’s request for a meeting, which said ‘not sure what you want to discuss and it seems unnecessary to meet’ (Exhibit A4).

152   I accept that Mr Fillaudeau gave Mr Bonifassi an ultimatum, either that Mr Bonifassi resign immediately or be fired and Fillaudeau’s would go to the police. 

153   I accept that Mr Fillaudeau asked for the shirt and apron to be returned immediately, because Mr Fillaudeau wanted Mr Bonifassi to leave and not return to work.  I find Mr Fillaudeau summarily dismissed Mr Bonifassi on 1 February 2016. 

Meeting on 4 February 2016

Mr Bonifassi’s case

154   Mr Bonifassi gave evidence that on 4 February 2016 he went to Fillaudeau’s to give Mr Fillaudeau his resignation letter and begin working out his notice period.  When Mr Fillaudeau saw him, Mr Fillaudeau told him that Mr Fillaudeau didn’t want to see him at the restaurant anymore and that he should go home.  Mr Bonifassi asked for an email to confirm he was fired, so that he was entitled to one month’s pay.  Mr Bonifassi tried to hand Mr Fillaudeau the resignation letter and the apology letter  and Mr Fillaudeau said to him ‘it doesn’t matter, I fired you two days ago’.  Mr Bonifassi said that Mr Fillaudeau was not prepared to let him work out his notice period. 

155   On 8 February 2016, the day before his wedding, Mr Bonifassi received the termination letter. 

156   Mr Bonifassi said he was confused by the termination letter.

Fillaudeau’s case

157   Mr Fillaudeau gave evidence that he posted the termination letter on Tuesday 2 February 2016.  He said it was not a warning letter, but a dismissal letter. 

158   Under cross-examination, Mr Fillaudeau agreed that he posted the termination letter on Wednesday 3 February 2016 and not Tuesday 2 February 2016.

159   Mr Fillaudeau gave evidence that on Thursday 4 February 2016 Mr Bonifassi, who Mr Fillaudeau considered was no longer working for Fillaudeau’s, was waiting at the front of the restaurant, saying he wanted to work his month’s notice and handing over the resignation letter and the apology letter.  Mr Fillaudeau said to Mr Bonifassi, ‘if you mean them sign them’, so Mr Bonifassi signed the two letters (Exhibit R1 and Exhibit R2).  Mr Fillaudeau offered to let Mr Bonifassi work out his notice period if Mr Bonifassi agreed to carry out food and drinks, but Mr Bonifassi refused and said ‘no, just pay me more if you want me to do that’. 

160   Ms Maindok said she eavesdropped on the meeting between Mr Fillaudeau and Mr Bonifassi on Thursday 4 February 2016.  She recalls Mr Fillaudeau said ‘if you want to continue here you need to carry out the food and drinks’ and Mr Bonifassi replied ‘you don’t pay me enough for this’. 

161   Mr Fillaudeau gave evidence that he went after Mr Bonifassi as he left and said ‘you know, it’s really silly, because I could go to the police.  And, ah, put this, of course, to them.  But, ah, I don’t want to do it because you are on a visa and you have, ah, kids, you know.  So I don’t think it’s correct’.  Then he went back inside and raised the Amex surcharge issue with Mr Corbion. 

Consideration

162   As I said in [126], I find Mr Bonifassi never waived the Amex surcharge.  There was no conspiracy. 

163   I find that Mr Bonifassi’s offer to compensate Fillaudeau’s was not evidence of his guilt but, as Mr Bonifassi says, was an act of good faith to prevent Mr Fillaudeau from going to the police. 

164   I do not accept Mr Fillaudeau wanted Mr Bonifassi to work out a notice period, based on his own evidence and the termination letter which states three times that in the circumstances his continued employment during a notice period would be unreasonable.  When Mr Bonifassi offered to work out his notice period, I find Mr Fillaudeau sent him home. 

165   In all the circumstances, I find Fillaudeau’s summarily dismissed Mr Bonifassi on 1 February 2016.  It likely wanted him to resign immediately, under threat of police involvement.  When Mr Bonifassi did not resign, Mr Fillaudeau told him to think about it.  From the oral evidence, resignation letter and text messages on 3 February 2016, it is clear to me that Mr Bonifassi was willing to work out his notice period and Fillaudeau’s would not let him. 

166   I find it implausible that Mr Fillaudeau was prepared to let Mr Bonifassi work out his notice period, in circumstances where he believed Mr Bonifassi had conspired to steal from him.  There were also inconsistencies with Fillaudeau’s notice of answer as set out in [139] above, which stated that on 1 February 2016 Mr Fillaudeau offered to let Mr Bonifassi work out his one month’s notice period and Mr Bonifassi refused.  

167   At no time did Mr Fillaudeau’s evidence suggest he was willing on 1 February 2016 for Mr Bonifassi to work out his notice period. 

168   Mr Fillaudeau’s evidence that on 4 February 2016 he was prepared to let Mr Bonifassi work out his notice period is inconsistent with Fillaudeau’s argument that Mr Bonifassi’s behaviour justified summary dismissal and Mr Fillaudeau’s evidence that he again threatened Mr Bonifassi with going to the police. 

Conclusion – unfair dismissal

169   I find that Mr Bonifassi’s dismissal was harsh and unfair in the circumstances.  He did not get ‘a fair go all round’.  Fillaudeau’s exercised its legal right to dismiss so harshly and oppressively against Mr Bonifassi as to amount to an abuse of that right. 

170   He was given no warnings and no real opportunity to explain or improve.  Mr Bonifassi did not engage in theft.  Fillaudeau’s did not conduct a proper inquiry and did not have reasonable grounds to conclude Mr Bonifassi had engaged in theft.  Mr Bonifassi’s conduct did not warrant summary dismissal.  Mr Fillaudeau threatened to call the police in an attempt to force Mr Bonifassi to resign. 

The law – compensation for unfair dismissal 

171   The Commission’s powers in relation to unfair dismissal claims are set out in s 23A of the Act.  The Commission can order an employer to pay an employee compensation for loss or injury caused by an unfair dismissal only if it considers reinstatement or re-employment impracticable: s 23A(6) of the Act.  The amount of compensation cannot exceed 6 months’ pay: s 23A(8) of the Act.

172   The principles which apply to assessing compensation for unfair dismissal are well-settled.  Some of these principles are set out in Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8 by Sharkey P, with whom Coleman CC and Kenner C agreed, at 8-9.

173   First, the Commission must make a finding as to the loss and/or injury which Mr Bonifassi suffered by reason of the dismissal.  If no loss or injury is established, there is nothing to compensate. 

174   The Commission must then assess the proper amount of compensation for loss and/or injury, in light of all the relevant circumstances but disregarding the cap prescribed in s 23A of the Act.  If the amount is in excess of the cap, the Commission reduces the amount to be awarded to an amount equal to the permissible maximum. 

175   ‘Loss’ is a broad concept that includes, but is not limited to ‘actual loss of salary or wage, loss of benefits or other amounts which would have been earned, paid to or received by the dismissed employee but for the dismissal’: Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299, 303.

176   ‘Injury’ is also a broad concept, incorporating ‘all manner of wrongs’ and includes, for example, humiliation, injury to feelings and ‘being treated with callousness’: Capewell (303).

177   For compensation to be awarded for injury, the injury must ‘fall outside the limits which can be taken to have normally been associated with a harsh, oppressive or unfair dismissal’.  This requires evidence that the applicant has suffered ‘loss of dignity, anxiety, humiliation, stress or nervous shock’: AWI Administration Services Pty Ltd v Birnie (2001) 81 WAIG 2849, 2862 (Coleman CC & Smith C).  There will be an element of distress in most dismissal cases: Lynam v Lataga Pty Ltd [2001] WAIRC 02420; (2001) 81 WAIG 986 [56].

178   In deciding the amount of compensation, the Commission must consider the applicant’s efforts to mitigate his loss as a result of the dismissal: s 23A(7) of the Act.

179   The employee has a duty to mitigate his loss or injury, but the onus of proof for failure to mitigate rests on the respondent: Bogunovich (1999) 79 WAIG 8, 8-9.  Whether the employee mitigated his loss is relevant to determining whether the dismissal caused any loss: Sealanes (1985) Pty Ltd v Foley [2006] WAIRC 04110; (2006) 86 WAIG 1239 [99]-[105].

180   The purpose of compensation under s 23A is to compensate an unfairly dismissed employee for losses caused, not to punish the employer or to confer a windfall on the employee.  This means compensation ‘must be in respect of a lawful entitlement and/or as compensation for a demonstrated loss or injury caused by the harsh, oppressive or unfair dismissal’: Garbett [85].  Compensation is not compensation if it does not, as much as possible, put the person who suffered the loss or injury back into the position which, but for the loss or injury, the person would have been in: Bogunovich (1999) 79 WAIG 8, 8.  

181   In Golding v PIHA Pty Ltd [2004] WAIRC 12971; (2004) 84 WAIG 3639, Harrison C awarded $500 for injury where the applicant was summarily dismissed without warning and supervised while she was required to pack up and leave the respondent’s premises.  Harrison C considered the respondent’s treatment of the applicant callous, and accepted that the applicant was shocked, humiliated and upset by her termination.  

Compensation for unfair dismissal

182   Mr Bonifassi does not want to be reinstated.  He asks for two months’ compensation and an apology letter from Mr Fillaudeau and Ms Maindok.  I explained to Mr Bonifassi at the hearing that the Commission is not able to order Fillaudeau’s to apologise to him. 

183   Mr Bonifassi also asks for one month’s payment in lieu of notice and 11.4 hours of annual leave.  This will be dealt with in the denied contractual benefits matter below.

Mr Bonifassi’s case

184   Mr Bonifassi gave evidence that, since he was dismissed from Fillaudeau’s, he has been looking for work.  Mr Bonifassi tendered a document which showed jobs he applied for on SEEK (Exhibit A10).  The earliest date in Exhibit A10 was 22 February 2016.  Under cross-examination, Mr Bonifassi said that he applied for jobs on SEEK before 22 February 2016, but that records were not kept before that date. 

185   Mr Bonifassi began working at the Sentinel Bar and Grill (Sentinel) on 7 March 2016 or 10 March 2016.  He worked there on a casual basis, earned about $23 per hour and worked between 30 hours to 35 hours per week, Monday to Friday.  He stopped working at the Sentinel on around 3 August 2016.

186   Mr Bonifassi’s application states that his salary at Fillaudeau’s was $44,000 per year (before tax), and he worked 38 hours per week.  His hourly rate as shown in his payslips from Fillaudeau’s, with payment dates 27 January 2016 (January payslip) (Exhibit A7) and 9 February 2016 (February payslip) (Exhibit A8) was $23.28 (to 2 decimal places).  Mr Bonifassi said that he earned less at the Sentinel than he earned at Fillaudeau’s.  He said he used to earn about $1,500 per fortnight at Fillaudeau’s.  At the Sentinel, he was earning about $1,000 per fortnight, which was $400 less per fortnight (after tax).

187   Mr Bonifassi gave evidence and submitted that his financial losses were about $1,200 per fortnight and included:

1. parking in the Perth CBD;
2. petrol;
3. childcare for his children; and
4. transport costs on buses, trains and his car.

188   Mr Bonifassi did not provide any evidence in support of those losses, such as receipts. 

189   On around 3 August 2016, Mr Bonifassi started work as a senior waiter at a different restaurant.  He works there on a casual basis, earning about $24.50 per hour and working between 32 hours and 36 hours per week. 

190   Mr Bonifassi tendered a Bankwest document showing transactions from 14 March 2016 to 5 July 2016 (Exhibit A11).  He made transfers from his savings account in France on 26 April 2016, 9 May 2016, 4 July 2016 and 5 July 2016.  He said that the Bankwest document was not a full record of his bank transactions. 

191   Mr Bonifassi gave evidence that he transferred money from France in order to pay his bills in circumstances where he also had to cover the costs of his wedding, two children and mortgage.  He submitted that a total of $3,500 was transferred from France and that his family gave him a further €2,000 because Mr Bonifassi and his family could not live on Mrs Bonifassi’s wage alone.

192   Mr Bonifassi submitted that after his dismissal, he did not work for a month and a half.  He found work on 10 March 2016. 

193   Mr Bonifassi did not give evidence about non-monetary loss, but submitted that he felt harassed, psychologically bullied and humiliated by Fillaudeau’s.  He was accused falsely without basis.  His professionalism was belittled.  His dismissal one week before his wedding, with two young children, a mortgage and lack of stability and a secure job caused him stress and he developed depression. 

Fillaudeau’s case

194   In cross-examination, Mr Bonifassi conceded he did not know how much he had earned since his employment ended.  He said he did not think to print bank records as evidence about what he earned at the Sentinel. 

195   Fillaudeau’s submitted that Mr Bonifassi did not suffer any loss, or any loss suffered was ‘miniscule’. 

Consideration

196   I am satisfied that the working relationship between Mr Bonifassi and Fillaudeau’s has broken down to such an extent that an order for reinstatement or reemployment would be impracticable. 

197   I find Mr Bonifassi mitigated his loss.

198   I accept Mr Bonifassi’s evidence that he was out of work for 6 weeks.

199   I find Mr Bonifassi’s loss includes the 6 weeks during which he was out of work.  Based on his evidence and his employment contract, that equates to $5,307.84, being $23.28 x 38 hours x 6 weeks.

200   I accept Mr Bonifassi was paid $23.28 per hour at Fillaudeau’s and ‘$23 something’ as a casual at the Sentinel. 

201   Given Mr Bonifassi’s evidence lacked detail and supporting documents it is difficult for me to make a finding about the reduction in Mr Bonifassi’s salary, compared to his salary at Fillaudeau’s, while he was employed at the Sentinel.  As a casual, it is likely he did not get the benefit of annual leave or personal leave, but Mr Bonifassi did not give evidence or make submissions about that. 

202   While I accept there may have been some loss of earnings between 10 March 2016 to about 3 August 2016, I am unable to make a finding about it. 

203   I am not prepared to award compensation for the loss Mr Bonifassi says he suffered in relation to childcare, petrol, parking and transport.  This is because I do not consider I can make a finding on the evidence about what those losses were. 

204   For these reasons, I find Mr Bonifassi’s loss to be $5,307.84 being his loss of earnings during the 6 weeks he was out of work.

205   I accept that Mr Bonifassi was stressed and humiliated because of the way Fillaudeau’s treated him.  I find that Mr Bonifassi suffered injury as a result of his dismissal. 

206   I consider that the circumstances of this case, which include Mr Bonifassi being required to return his uniform immediately and leave work partially unclothed, being accused of theft without Fillaudeau’s having conducted a proper inquiry into the matter, being threatened with police being called and being summarily dismissed one week before his wedding, are such that it is appropriate for me to award Mr Bonifassi $1,000 in respect of injury. 

The law - denial of contractual benefits

207   The principles that apply to denial of contractual benefits claims are well settled.  Mr Bonifassi must prove that his claim is an ‘industrial matter’, he was an ‘employee’ of Fillaudeau’s, the benefits he claims are due to him under his contract of service, the benefits do not arise under an award or order of the Commission and that Fillaudeau’s denied him the benefits: Hotcopper Australia Ltd v Saab [2001] WAIRC 03827; (2001) 81 WAIG 2704 [34].

Denial of contractual benefits

208   In this case, it is not disputed that the matter is an ‘industrial matter’, that Mr Bonifassi was an ‘employee’ of Fillaudeau’s, and that the benefits he claims are due under his contract, which was a contract of service. 

209   I must decide whether Mr Bonifassi was denied benefits that were due to him.

210   Mr Bonifassi says Fillaudeau’s owes him one month’s wages in lieu of notice and 11.4 hours of annual leave.  Fillaudeau’s says it does not owe Mr Bonifassi any contractual benefits. 

Mr Bonifassi’s case

211   Mr Bonifassi’s employment contract relevantly states:

7. Leave entitlements

a)  Annual leave

You are entitled to four weeks of annual leave after each twelve months of service with our Partnership.  Annual leave is to be taken at the time agreed between you and the management.

…

10. Termination of employment

a)  In order to terminate your employment with Fillaudeau’s you are required to give the company one month notice in writing.

b) In order for us to terminate your employment with the company is required to give you one month’s notice of termination or pay one month’s wage in lieu de notice. [sic]

212   Mr Bonifassi gave evidence that he is entitled to one month’s notice, that he was not paid in lieu of notice and that neither the January payslip nor the February payslip show payment in lieu of the one month’s notice.

213   Mr Bonifassi gave evidence that he is entitled to the 11.4 hours of annual leave shown on the February payslip, which he says he did not take.  In his notice of application, Mr Bonifassi claims compensation for ‘17.5 hours gross’.  At the hearing, Mr Bonifassi confirmed that this was a typographical error and it referred to the 11.4 hours of annual leave. 

214   Mr Bonifassi referred to the translated text messages dated 21 December 2015 and gave evidence that Fillaudeau’s only allowed annual leave to be taken by the week, not the day.  He submitted that, given this policy, he could not have taken 11.4 hours of annual leave. 

215   Mr Bonifassi agreed that he had been paid as though he took the 11.4 hours of annual leave, but gave evidence that he had never taken annual leave while employed at Fillaudeau’s.

216   Mr Bonifassi submitted that he was missing payment of 11.4 hours of his normal base salary, because he never took that time as annual leave and was therefore missing an increased unused annual leave payment. 

Fillaudeau’s case

217   In cross-examination, Mr Fillaudeau gave evidence that he wanted Mr Bonifassi to work out his one month’s notice, but that Mr Bonifassi refused to carry out drinks and food.  When questioned whether he should pay the one month’s wages in lieu of notice, he said ‘if [Mr Bonifassi’s] working I should, but if he refused to work I can’t’.

218   Fillaudeau’s submits that because Mr Bonifassi refused to perform work as required under his contract, he is not entitled to payment in lieu of notice because he hasn’t satisfied an essential condition of his contract.  It said Mr Bonifassi wasn’t ready, willing and able to work that period of notice.

219   Mr Fillaudeau gave evidence that he did not know what the 11.4 hours on the February payslip meant.  He asked Fillaudeau’s accountant, who said she was not sure what it meant either and would fix it.  The first time he heard of the annual leave issue was during these proceedings. 

220   Fillaudeau’s submitted that the 11.4 hours of annual leave have been paid, so there is no substance to Mr Bonifassi’s argument.  Fillaudeau’s did not put on evidence that Mr Bonifassi had taken annual leave, nor did it cross-examine Mr Bonifassi about the issue.

Consideration

221   I find Mr Bonifassi had a contractual benefit to one month’s notice or payment in lieu.  As I state at [165], I accept that Mr Bonifassi was willing to work out his notice period but Fillaudeau’s would not let him.  I find Fillaudeau’s did not pay Mr Bonifassi in lieu of notice. 

222   I accept that Mr Bonifassi did not take the 11.4 hours of annual leave.  I make that finding based on Mr Bonifassi’s and Mr Fillaudeau’s evidence, Mr Bonifassi’s January payslip and February payslip and Mr Bonifassi’s resignation letter which refers to 66.68 hours being owed.  Therefore, Mr Bonifassi should have been paid for his ordinary hours in his last pay period and also for the untaken 11.4 hours of annual leave. 

223   Accordingly, Mr Bonifassi’s claim that he has been denied contractual benefits of one month’s wages in lieu of notice and 11.4 hours of annual leave is made out. 

224   To order Fillaudeau’s to pay Mr Bonifassi one month’s wages in lieu of notice and compensation for loss of 6 weeks’ wages as set out at [204] would be double compensation, which should be avoided: Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 156 [63]. 

225   I will therefore order Fillaudeau’s to pay Mr Bonifassi one month’s wages in lieu of notice and 11.4 hours of annual leave in respect of his denied contractual benefits claim. 

226   The 11.4 hours of annual leave equates to $265.40, being $23.28 x 11.4 hours.

227   Taking into account that I will order Fillaudeau’s to pay Mr Bonifassi one month’s wages in lieu of notice, I will order Fillaudeau’s to also pay Mr Bonifassi 2 weeks’ wages and $1,000 to compensate Mr Bonifassi for the loss and injury caused by his dismissal.  In total, Fillaudeau’s must pay Mr Bonifassi $6,573.24 (gross).

Conclusion

228   Mr Bonifassi’s dismissal was harsh and unfair and he was denied his contractual benefits of one month’s notice and 11.4 hours of annual leave.

229   For these reasons, I order that E.J Fillaudeau and J.J Maindok trading as Fillaudeau’s pay Mr Bonifassi the sum of $6,573.24 (gross).

230   A declaration and order now issues.