Alan Brenzi v Christopher James Ellison and Debbie Maree Ellison
[1995] IRCA 720
•24 October 1995
DECISION NO: 720/95
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether the applicant was afforded PROCEDURAL FAIRNESS - whether termination was HARSH, UNJUST OR UNREASONABLE
INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170DC
ALAN BRENZI -v- CHRISTOPHER JAMES ELLISON AND DEBBIE MAREE ELLISON - WI 95/1773
BEFORE: BOON JR
PLACE: PERTH
DATE: 24 OCTOBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1773
BETWEEN: ALAN BRENZI
- Applicant
AND: CHRISTOPHER JAMES ELLISON
AND DEBBIE MAREE ELLISON
- Respondents
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 24 OCTOBER 1995
THE COURT ORDERS THAT:
The respondents pay to the applicant the sum of $5,900 by way of compensation for the unlawful termination of his employment within 21 days of the date of this order.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1773
BETWEEN: ALAN BRENZI
- Applicant
AND: CHRISTOPHER JAMES ELLISON
AND DEBBIE MAREE ELLISON
- Respondents
BEFORE: BOON JR
PLACE: PERTH
DATE: 24 OCTOBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988 arising out of the alleged unlawful termination of the applicant's employment with the respondents.
The applicant alleges that the provisions of the Industrial Relations Act were breached in a number of ways. Firstly, it is alleged that he was not given an opportunity to respond to allegations against his conduct or performance within the meaning of Section 170DC of the Act. The respondent on the other hand contends that the applicant was given plenty of opportunity to discuss the events surrounding the termination.
Secondly, it is stated by the applicant that the termination occurred without a valid reason within the meaning of Section 170DE(1) of the Act, and further that in any event the termination was harsh, unjust or unreasonable within the meaning of Section 170DE(2) of the Act. The respondents say that there was a valid reason for the termination. The respondents say that there was a risk that the applicant would be seriously injured in the course of his employment if he continued to do the job for which he was employed. The respondents say that the only matter at issue was the safety of the applicant.
BACKGROUND
The applicant, Alan Brenzi, is 51 years of age. Before he accepted his position with the respondents he had secure employment as a truck driver. Mr Brenzi's former employment involved very long hours and although he earnt $45,000 a year he was interested in alternative employment which involved less pressure.
The respondents, Christopher and Debbie Ellison, own a property at Serpentine on the outskirts of the Perth metropolitan area. Mr Ellison's evidence was that the property consisted of 131 acres on which he kept a mixture of cattle and horses. There are approximately 17 horses on the property of which some are owned by the Ellison family and some are agisted on behalf of others. Mr and Mrs Ellison and their four children aged between two and eleven years, moved into a house on the property in November 1994. Mr and Mrs Ellison wanted to raise their children out of the city to encourage a closer family bond. Mr Ellison works full time as the General Manager and Director of four companies. Mrs Ellison also has business commitments and is the primary person responsible for the care of their four children.
Mr and Mrs Ellison needed someone to develop and manage the property on their behalf. Some mutual friends of the Ellisons and the Brenzis suggested that Mr Brenzi may be interested in applying for the position. Mr and Mrs Brenzi were introduced to Mr and Mrs Ellison and the two couples sat down and discussed the position and what it would entail. The position involved managing and developing the property for the breeding of cattle and marron and also the agistment of horses. Mr Brenzi advised Mr and Mrs Ellison that although he had experience dealing with other animals he had no experience at all in dealing with horses. According to Mr Brenzi, Mrs Ellison said that that was not important as all that he had to do was feed the horses. Mr and Mrs Ellison decided to take some time to think the matter over. Mr and Mrs Brenzi discussed the matter between themselves and decided that they wanted to accept the position if it was offered to Mr Brenzi. Mr Ellison's evidence was that he and Mrs Ellison at first decided against employing Mr Brenzi primarily because he did not have any experience with horses. However, according to Mr Ellison, the mutual friends convinced the Ellisons to interview the Brenzis once more. Mr Ellison gave evidence that the mutual friend misled him as to Mr Brenzi's competence. There is no evidence, however, that Mr and Mrs Brenzi were in any way involved in any attempt to mislead Mr and Mrs Ellison. Further, even on Mr Ellison's own evidence, it is clear that he was aware that Mr Brenzi had no experience with horses.
Mr Ellison's evidence was that based on the caring nature of Mrs Brenzi which came across in the interview and the apparent good character of Mr Brenzi, he and Mrs Ellison decided to employ Mr Brenzi. Mr Brenzi started work on around the 17th or 18th April 1995. His letter of appointment signed by Mr Ellison stated that the conditions included a base salary of $300 per week plus out of pocket expenses of $100 per week. In addition, Mr and Mrs Brenzi were provided with a two bedroom cottage supplied at no charge and their power was to be paid by Mr and Mrs Ellison. Their telephone expenses (not including long distance personal calls) were to be paid by the respondents. There was provision for payment of superannuation, annual leave, insurance, long service leave and remuneration reviews on an annual basis. The letter of appointment goes on to say
"We expect you and Tricia to make the property your home, both at work and after hours and to treat it as such. Facilities will be developed to allow your family and friends to visit and to stay occasionally in conjunction with our occasional visitors.
We will develop where possible self sufficiency on the property with vegetables, meat, and fruit etc., at your discretion.
We would also like to develop an arrangement where Tricia is available to help with the house and family and to assist Debbie in conjunction with her business commitments both during the day and sometimes after hours.
This position is generally based on both parties developing a relationship of understanding and total trust which will only happen with time and for this type of arrangement it is not possible to write and cover everything.
We thank you for accepting the position and look forward to a long and satisfying association."
It was apparent from the evidence of both parties that the intention was for Mr and Mrs Brenzi to live on the farm on a long term basis. This was attractive to both Mr and Mrs Brenzi. It was the intention that Mrs Brenzi would eventually leave her own full time employment in order to work part time for Mrs Ellison around the house.
Mr Ellison gave evidence that his working hours were such that he had very little contact with Mr Brenzi except on Saturday afternoons. He said that he became concerned after about four weeks about Mr Brenzi's fear of horses. Mr Ellison's assessment is that Mr Brenzi is terrified of horses. He based this assessment on Mr Brenzi's movements and the way he acted around the horses. Mr Ellison is very experienced with horses and he says he has an understanding of the way people behave around animals. Mr Ellison said that he watched Mr Brenzi for about another one or two weeks and discussed the matter with his safety consultant, Mr David Watkins. Mr Watkins also gave evidence at the hearing. He has extensive experience in relation to industrial safety. On the basis of their discussion, Mr Watkins and Mr Ellison decided that if Mr Ellison continued to employ Mr Brenzi he and Mrs Ellison might be in breach of the Occupational Health, Safety and Welfare Act 1984 of Western Australia. In particular they had regard to Section 19 of the Act which relates to the duties of employers to provide a safe working environment for employees.
Mr Ellison's evidence was that his single total concern was the fact that Mr Brenzi was moving in and out of the paddocks with the horses. As Mr Brenzi was alone with the horses, if he were to be kicked in the head or chest, he could be seriously injured or killed and there would be no assistance available to him. Mr Ellison said that if a person is not aware or experienced with horses the horses could kick that person.
Mr Ellison said that he was emotional about safety. On one occasion a horse escaped from one of the paddocks and kicked his young son in the head. His son nearly died as a result of that kick. Mrs Ellison was also kicked on another occasion. Mr Ellison said that he was particularly concerned about Mr Brenzi because when a person is afraid of an animal the animal can sense it and it is more likely that the animal will react.
Mr Ellison and Mr Watkins decided that it was not appropriate to retrain Mr Brenzi as there was no suitable training available. Mr Ellison's evidence was that there is no training available which will take away a fear of animals. One needs to have grown up with animals in order to not fear them.
Mr Brenzi gave evidence that on or about 5 June Mr Ellison approached him and said "I'm going to have to let you go for safety reasons - I can see you getting hurt". Mr Brenzi said that a short conversation ensued during which Mr Ellison said that he was afraid that Mr Brenzi would be hurt by the horses. Mr Brenzi was very upset and walked away and told his wife. He and Mrs Brenzi later had a short conversation with Mr and Mrs Ellison during which Mr Ellison said that he was worried about Mr Brenzi's safety and that he would let him know of his decision on the following Thursday night. Mr Ellison was away on the following Thursday and on 17 June Mr Ellison once again said to Mr Brenzi that he was going to have to let him go. He said that he would pay Mr Brenzi a week in lieu of notice and that he would have to move out of the cottage in due course. Mr Brenzi said that there was no conversation prior to 5 June about horses and safety.
It is common ground between the parties that Mr Ellison was very satisfied with every other aspect of Mr Brenzi's work around the farm. Mr Ellison's evidence was that on both occasions on which he discussed the termination with Mr Brenzi the conversation was fairly lengthy and the two of them discussed the issue until neither of them had anything more to say. Mr Ellison said that he told Mr Brenzi that he had no problems with his work performance or his character but that he thought he might be breaching the State legislation if he continued to employ him. Mr Ellison said that he put to Mr Brenzi that he was terrified of horses. Mr Brenzi denies that he is terrified of horses. He said he went into the paddock with them twice a day as required under the terms of his employment. In any event, Mr Brenzi's employment was terminated by Mr Ellison on 18 June 1995.
Mr Ellison said that to him it was black and white in that to allow Mr Brenzi to continue to work was to be putting his life at risk. Mr Brenzi disputes Mr Ellison's concern for safety and cited a number of instances which he observed involving Mr Ellison's alleged unsafe practices around the farm.
ASSESSMENT OF THE WITNESSES
There was nothing about the demeanour of any of the witnesses which would cause me to doubt their evidence. In most respects the evidence of the applicant and the respondents coincided. It became apparent that Mr Brenzi was very hurt and upset by the termination. Mr Ellison, who is more articulate than Mr Brenzi, gave his evidence in a confident and clear manner.
WAS THERE A BREACH OF SECTION 170DC OF THE ACT?
Mr Brenzi and Mr Ellison differed in their estimate of the time taken to discuss the reasons for the termination. To the extent that there is a difference, I prefer Mr Ellison's version. This is primarily because Mr Brenzi was upset at the time the termination was discussed. Having said that, however, I do not consider that Mr Brenzi was given a fair opportunity to be heard in relation to the matter. This is because it was obvious that Mr Ellison had made up his mind to terminate Mr Brenzi's employment and nothing Mr Brenzi could or did say would have swayed him from his point of view. For this reason, I consider that there was a breach of Section 170DC of the Act.
WAS THERE A BREACH OF SECTION 170DE OF THE ACT?
Even if I am wrong about a breach of Section 170DC, I consider that Mr Brenzi should be successful in his application as there was a breach of the provisions of Section 170DE of the Act.
Although Mr Brenzi doubts that Mr Ellison's concern for his safety was the real reason for his termination, I have no doubt that Mr Ellison was concerned that Mr Brenzi would be injured in the course of his employment. I applaud him for his concern and I do not wish these Reasons for Judgment to be taken as meaning that safety in the workplace is unimportant. I consider, however, that Mr Brenzi's termination was harsh, unjust or unreasonable because of several reasons.
In the first place, Mr Ellison knew at the time he employed Mr Brenzi that Mr Brenzi had no experience with horses. I don't accept that he can now say that there is no point in trying to train Mr Brenzi as a person needs to have grown up with horses to have no fear of them. I consider that there could have been some resolution to the problem other than the termination of Mr Brenzi's employment, given that his duties in feeding the horses formed only a part of his overall duties on the farm.
Secondly, it was apparent to me from Mr Ellison's evidence that even an experienced person would also be at risk of serious injury if left alone with the horses. Mrs Ellison, who is very experienced around horses, was herself kicked by one of them. Although I accept that an inexperienced person may be at a greater risk than an experienced person, it appears that there will always be a safety issue involved if a person is dealing with the horses alone.
Mr Brenzi gave up secure full time employment to take up the position with Mr and Mrs Ellison. There is no evidence that he was involved in any attempt to mislead the Ellisons as to his capabilities or experience and at all times made it clear that he had no experience around horses. In these circumstances, I consider that the termination of his employment contravened the provisions of Section 170DE of the Act.
REMEDY
Mr Brenzi is not seeking reinstatement. His evidence is that he can't trust Mr Ellison anymore and is not prepared to work for him again because of the events leading up to termination. In these circumstances I consider that reinstatement would be impracticable.
After termination Mr Brenzi received Social Security benefits for a month. On 17 July he started work as an egg collector on a casual basis for which he received approximately $600 per fortnight. The egg farm was situated in Baldivis. He left that employment on 22 September 1995 as his step daughter became seriously ill. She was suddenly diagnosed as having a serious heart condition and Mr and Mrs Brenzi had to return to Perth to care for her. Mr Brenzi is looking for other work. He estimates the value of the benefits received by him in his employment with the Ellisons, that is, the rent, power and telephone costs as amounting to $150 per week. That evidence was not challenged. Mr Brenzi appeared fairly confident of being able to find alternative employment in the near future. I estimate that he will be unemployed for a period of one month. In these circumstances, I consider that the appropriate award of compensation is as follows:
(a) For the period 18 June 1995 to 17 July 1995
$550 x 4 weeks $2,200
(b) For the period 17 July 1995 to 22 September 1995
$550 - $300 = $250 x 6 $1,500
(c) One further month of unemployment = $2,200
______
$5,900
In these circumstances I make the following orders:
The respondents pay to the applicant the sum of $5,900 by way of compensation for the unlawful termination of his employment within 21 days of the date of this order.
I certify that this and the preceding eight pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate
Date:
Appearances
The applicant and the respondent appeared in person
Hearing date: 29 September 1995
Judgment date: 24 October 1995
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