Alan Burgess v Louis Dreyfus Commodities Pty Ltd T/A LDC

[2016] FWC 8447

[2016] FWC 8447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alan Burgess
v
Louis Dreyfus Commodities Pty Ltd T/A LDC
(U2016/10226)

COMMISSIONER SIMPSON BRISBANE, 21 DECEMBER 2016

Application for relief from unfair dismissal – Jurisdictional Objection no dismissal – Applicants evidence concerning conversation preferred – Objection dismissed – Dismissal Unfair – Reinstatement inappropriate – Compensation Ordered.

Background

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Alan Burgess who alleges that the termination of his employment with Louis Dreyfus Commodities Pty Ltd T/A LDC (LDC) was unfair.

[2] Mr Burgess submitted he commenced employment at LDC in April 2011 as a casual forklift driver until his termination on 11 August 2016.

[3] LDC’s position was that he worked from May 2011 to November 2011, April 2012 to December 2013, March 2014 to December 2014, April 2015 to September 2015 and November 2015 to August 2016, with two week breaks in each of December 2015, January 2016 and February 2016. 1 It was accepted Mr Burgess was employed as a casual. There is no dispute Mr Burgess satisfied the minimum employment period required in order to bring the application and I am satisfied he meets the definition of a regular and systematic casual entitled to bring an application.

[4] Mr Burgess claims that his dismissal was unfair because throughout his employment he was given responsibilities outside his job description and was never given any warnings in relation to his performance. LDC asserts that Mr Burgess left on his own accord after an argument between Mr Burgess and his supervisor Mr Gavin Melbin.

[5] The matter proceeded as a determinative conference conducted at the Toowoomba Magistrates Court on Tuesday 29 November 2016. Mr Burgess represented himself with some assistance from his partner Ms Holzheimer. LDC was represented by Mr Haq, a Human Resources Manager with LDC.

[6] Mr Burgess was the only person to give evidence in support of his application, and LDC called Mr Melbin, Mr Harvey, Mr Cesari and Mr Turner, each employees of LDC at the time to give evidence.

BACKGROUND

[7] Mr Burgess said that he has driven the loader since April 2011 and it was taken for granted that he would be unloading the trucks of cotton bales each season. 2 He said during 2014, 2015 and 2016 he was given the keys to the warehouse site, all except the office so he could start early and work late to unload the trucks.3

[8] Mr Burgess said that he was never given a higher rate of pay than any other workers or any authority to go with the added responsibility. 4 Mr Melbin agreed Mr Burgess was not given a higher rate of pay but said he received more overtime than anyone else, and he was the first hired and last let go at the end of the season.5

[9] Mr Burgess said shed doors were being left open, lights left on, the oil shed left unlocked and the fuel bowser turned on. Mr Burgess said he would lock everything up before he went home. Mr Burgess said when he finally went to Mr Melbin to raise that the 2016 workers needed to be trained in how to do their jobs and they hadn’t been fully inducted he claimed he overheard Mr Turner say “He’ll be happy he’s gone in there whinging.”

[10] Mr Burgess claimed Mr Melbin said to him “We haven’t got time.” 6 Mr Melbin said he didn’t hear any staff call Mr Burgess a whinger. Mr Melbin claimed that sometimes shed doors were left open, lights were left on, the oil shed left open and fuel bowser left on so Mr Burgess could continue to work on the small forklift sorting bales until the last truck would turn up. Mr Melbin said Mr Burgess would be paid until he went home so he was being paid when he shut the sheds, always on overtime.7

[11] Mr Melbin said he can’t remember Mr Burgess saying that the new staff needed to be trained. He said they were fully inducted and their training was on the job the same every year. 8

[12] Mr Melbin gave evidence concerning what he described as the facts and dates regarding Mr Burgess from his diary notes, Tool Box meetings, SHE meetings and Near Miss Reports. Mr Melbin said that Mr Burgess did the vast majority of the front end loader work unloading cotton bales off trucks and building bales stacks at the Dalby Warehouse. Mr Melbin said that Mr Burgess had always been available for all the overtime to start early and finish late unloading trucks.

3 May and 23 June 2016

[13] Mr Melbin said that on 3 May and 23 June 2016 he made diary entries that recorded a team tool box meeting occurred and issued raised included on 3 May – safe block stacking, safe bale stacking, falling bales, and on 23 June – block stacking from trucks, being careful, slowing down, and no overhanging bales. 9

5 July 2016

[14] Mr Melbin claimed in his statement he recorded a near miss report on 5 July of bales falling, a stack collapsing, and an immediate team meeting being called to discuss safe operating procedures for bale stacking. Mr Melbin said all staff were included in the discussions. 10 Mr Burgess said bales fell on 5 July 2016 because of busted straps. Mr Burgess said the meeting was not held immediately but in the next break.11

5 August 2016

[15] Mr Melbin claimed in his statement he recorded a near miss report on 5 August 2016 of bales falling, stacks collapsing and an immediate team meeting being called where less speed, more care required, complacency creeping in were discussed. Mr Melbin claimed Mr Burgess was spoken to by himself and Mr Turner about how to remedy the situation. Mr Melbin said Mr Burgess was adamant it was not his fault that stacks were collapsing and it must have been the other loader drivers fault. Mr Melbin claimed he told Mr Burgess he wasn’t blaming anyone but Mr Burgess was the experienced driver and needed to be responsible for the stack. 12

Mr Burgess recalled a conversation on this day where Mr Melbin said to him “How come the stack looks like it’s leaning?” Mr Burgess said that he replied that the only time that had happened was from Beardmore Gin where they only load from one side of the truck not both. He said it was only later he found out Mr Cesari turned the bales like that. 13 Mr Burgess claimed there was no meeting on 5 August 2016, and a meeting was held the following Monday morning. Mr Burgess denied he was spoken to individually by Mr Melbin or Mr Turner.

6 August 2016

[16] Mr Burgess said that on 6 August 2016 some bales fell from the stack. He said he was unloading a truck at the time and saw it in his mirror. Mr Burgess said at knock off time he heard another employee say to Mr Melbin “It’s his fault he goes like the clackers.” 14

7 August 2016

[17] Mr Burgess said that on Saturday 7 August 2016 (this appears to be in error as 7 August was a Sunday) he was unloading a truck when Mr Melbin asked him “How can we make these stacks safe without them falling?” Mr Burgess said that he replied he thought the bale was caught up behind another bale on an angle and when the front grab was taken out the bale fell down onto its bottom and shot the others above out. Mr Burgess claimed that Mr Melbin said to him that it was his responsibility to make sure the bales were safe. Mr Burgess said he had no idea how it was his sole responsibility when others have been working on the stack and Mr Turner was in charge of the yard. Mr Burgess said he had unloaded thousands of bales in the season without incident. 15

9 August 2016

[18] Mr Melbin said he recorded a diary entry that he spoke to all staff about bale stack safety, and that he spoke to Mr Burgess on an individual basis regarding improving the stack. 16 Mr Burgess denies this happened and says he was asked by Mr Melbin in the morning if he would unload again because he wanted Phil in the semi.17

10 August 2016

[19] Mr Burgess said that on Wednesday 10 August 2016 he was unloading again. Mr Burgess said that afternoon at 5pm Mr Melbin came up to him when everyone else had gone, and said:

“Phil came and got me to look at the stack he unloaded and said how square it is. I want the same out of you because it’s your reputation on the line.”

Mr Burgess said he was then left on his own to lock up because once the truck is unloaded everyone in the office takes off. Mr Burgess said he was getting extremely anxious, confused and upset as one minute he was doing an excellent job, and the next he is hauled over the coals. 18

[20] Mr Melbin said late on the afternoon, around 5pm on 10 August 2016 he spoke to Mr Burgess when Mr Burgess was driving the front end loader unloading bales from the last truck of the day about making the block stack as safe as possible. Mr Melbin claimed he told Mr Burgess to take as much time as he needed to get it right, and not to rush, and it didn’t matter about the truck driver being in a hurry to be unloaded. Mr Melbin claimed he told Mr Burgess he was the best loader driver they had and he had a reputation to keep up. Mr Melbin said he then left Mr Burgess to unload the truck. 19

[21] Mr Melbin said he was trying to get Mr Burgess to improve his bale stacking. Mr Melbin said he was trying a different approach with Mr Burgess to try and get him to work in a safe manner. Mr Melbin claimed that the numerous other times he had talked with Mr Burgess about stack safety had not worked so he hoped talking to him this way would work. 20

[22] Mr Burgess said he was only ever asked twice what he thought made the bales fall. He said he has never changed the way he unloads or stacks since 2011 and this is the only year he had been accused of so much and was singled out. 21

11 August 2016

[23] Mr Burgess said that before 7am on Thursday 11 August he put the yard keys on Mr Melbin’s desk and said:

“I don’t want to unload any longer, Phil can do it and I will do the forklift and heister.”

Mr Burgess claimed Mr Melbin jumped off his chair and said “I’m sick of your whinging get out the gate.” Mr Burgess said Mr Melbin was getting louder “Get out the gate”. Mr Burgess said he said “I’ll do the forklift.” Mr Burgess said Mr Melbin yelled “Get out the gate”. Mr Burgess claimed he then said “I will get my gear out of the loader.” Mr Burgess said that Ronnie (Mr Cesari) and Mick (Mr Harvey) were in the lunch room and would have heard Mr Melbin. Mr Burgess said he got his gear and lunch bag, said goodbye to Kim and went out the gate. 22

[24] Mr Melbin’s version in his statement was that early the next morning Mr Burgess came into his office and threw his keys on the desk. Mr Melbin said there were a bunch of keys listed in the key register as “Alan’s keys.” Mr Melbin said that there were 6 keys in the bunch;

● Front gate
● Warehouse shed key
● Fire gate key
● Oil room key
● Workshop key and
● Cage key.

[25] Mr Melbin said that Mr Burgess had been given these keys to let himself in so he could start work early and finish late unloading trucks. Mr Melbin said that after he had thrown the keys on the desk Mr Burgess said to him that he didn’t have a reputation as the best loader driver, he only comes to work to do his job and as far as he was concerned Phil could do all the front end loader work from now on. 23

[26] Mr Melbin’s evidence was that ‘Phil’ was the back-up loader driver, truck driver and forklift driver who is now doing the majority of the loader work. Mr Melbin said that Mr Burgess’ duties were loader and forklift driver. 24

[27] Mr Melbin said that he told Mr Burgess that he wanted him on the loader as Mr Melbin wanted Phil to do other duties. Mr Melbin said he told Mr Burgess staff safety was the issue and “we” couldn’t have the stacks collapsing. Mr Melbin claimed that Mr Burgess became very animated and shouted at him that the stacks were safe. Mr Melbin said that Mr Burgess told him he had unloaded hundreds of thousands of bales and he had never had a problem before. Mr Melbin said he told Mr Burgess the stacks weren’t safe as the bales were falling.

[28] Mr Melbin said that it was then that Mr Burgess shouted at him that he was getting his gear out of the front end loader and he stormed out of Mr Melbin’s office. Mr Melbin said that he had not heard from Mr Burgess since. 25

[29] Mr Burgess denied yelling or raising his voice. He said after he was told to “Get out the gate” he did raise his voice a notch higher as you do when someone is yelling at you. Mr Burgess said that was the only conversation they had before he left. 26 In oral evidence Mr Burgess stood by his earlier statements regarding his version of the exchange between Mr Melbin and himself.27 Mr Burgess maintained that the longer discussion referred to in the statement of Mr Melbin regarding Phil occurred on the Monday of that week.28 Mr Burgess maintained the discussion regarding the stacks collapsing was on the Saturday morning.29

[30] Early during his oral evidence Mr Melbin said the following;

“----Yes. Al kept saying something about – on his statement, “Get out the gate, get out the gate.”

Yes? --- Now I don’t remember saying anything about going out the gate. I may have said, because I’ve said it to other guys before, if you don’t like it, there’s the gate. That’s a common saying and that’s what may have been said but I don’t recollect saying that. But as far as me saying, “Get out the gate get out the gate”, I’ve got no – I’ve got no recollection of that and that wouldn’t be language I would use if I was going to dismiss someone.” 30

[31] Further in his evidence Mr Melbin said as follows;

“---But Al has always been, to me, an honest, fair gate (sic). If he’s saying something about the gate, if I had said anything about there’s the gate, it would have been if you don’t like, there is the gate. So that’s it.” 31

[32] This is a case where a central issue for determination involves making a finding concerning competing versions of a conversation between two persons with no other witnesses. Having compared the evidence of Mr Burgess and Mr Melbin in deciding which of the respective versions of the conversation is more likely to be accurate, I prefer Mr Burgess’ version. Mr Burgess was consistent throughout his written and oral evidence concerning the conversation and did not waiver.

[33] Mr Melbin’s version of the conversation in his written evidence was quite detailed however almost immediately in his oral evidence conceded he may have used words not the same, but similar to words attributed to him by Mr Burgess in his statement concerning the critical issue of what was said on the morning of 11 August 2016. Mr Melbin also conceded he did not remember if he said these things or not.

[34] Mr Melbin evidence was also that Mr Burgess had always been honest and fair with him. 32 It is also plausible that the more detailed discussions that Mr Melbin claimed to have occurred on the morning of 11 August concerning the duties of ‘Phil’ and the issue of the stacks did in fact occur on other days in the preceding week as claimed by Mr Burgess, and not as part of conversation on the morning of 11 August 2016. This would make sense given it is difficult to reconcile how different the versions of the same conversation were, with Mr Burgess’ evidence having the conversation as very brief, whereas Mr Melbin’s version was longer and ranged into these other areas.

[35] Given Mr Burgess was adamant on this issue, and Mr Melbin had conceded he did not remember if he said words similar to those claimed by Mr Burgess to have been said on the morning of 11 August 2016, I am also inclined to prefer Mr Burgess’ version that the other topics were not discussed on the morning of 11 August 2016 as claimed by Mr Melbin. For the same reasons I am also inclined to accept Mr Burgess’ version of the tone Mr Melbin would have used in telling Mr Burgess to “Get out the gate”.

[36] Having accepted Mr Burgess’ version of the conversation, I also accept that the language used and the manner in which it was said by Mr Melbin amounted to a termination of Mr Burgess’ employment. The expression “Get out the gate”, especially when repeated and said in forceful terms, and also said at the very beginning of the day, would be widely understood to amount to communication of a termination of employment.

[37] Mr Burgess said that he was shocked and upset. He said he expected an apology or at least to be asked why he didn’t want to unload any longer after asking on two occasions. Mr Burgess said that after not hearing anything from Mr Melbin he approached the Fair Work Commission about unfair dismissal. 33

[38] I have considered the evidence of Mr Harvey, Mr Cesari and Mr Turner. I do not intend to address this evidence in any detail however have drawn the conclusion that significant weight should not be attached to any of that evidence in determining the true nature of the conversation between Mr Burgess and Mr Melbin because none of these witnesses could give direct evidence concerning that conversation. I was interested to hear the evidence, particularly of Mr Harvey and Mr Cesari to ascertain whether an inference should be drawn from that evidence concerning Mr Burgess’ intentions in entering the meeting of the morning of 11 August, or on his demeanour afterwards, but ultimately have concluded on the evidence no such inference should be drawn.

HARSH, UNJUST OR UNREASONABLE

[39] I am not satisfied that LDC had a valid reason for termination. It is apparent that Mr Burgess was attempting to make an arrangement with his employer that he would no longer perform the role of stacking and un-stacking bales and would instead perform other duties such as driving the forklift given the controversy that had been playing out in the workplace over the issue. The discussion on the morning of 11 August 2016 had not yet progressed to a point where it could be said Mr Burgess was refusing a lawful direction. It is apparent Mr Burgess’ decision to seek to return the keys and to indicate to Mr Melbin that he did not wish to do the stacking resulted in him being summarily terminated.

[40] I am satisfied that it is highly likely that had Mr Melbin simply refused Mr Burgess’ demand to no longer be required to perform the bale stacking and un-stacking then in all likelihood Mr Burgess would have resiled from this position given other evidence that he enjoyed his work and would have understood the reality of his having limited alternative employment options. However the discussion was never allowed to progress to that point given Mr Melbin’s summary termination of Mr Burgess.

[41] It is also apparent given the evidence Mr Melbin did not harbour a view that Mr Burgess’ capacity was in issue. All of the evidence points to the employer wanting Mr Melbin to continue to perform the duties he had previously been performing, albeit with a greater emphasis on ensuring the bales were stacked in a safer manner.

[42] The evidence does not demonstrate that Mr Burgess was notified of the reason for his dismissal. It could have reasonably been inferred on the day of 11 August that it was either because he did not want to continue to perform the stacking and un-stacking role or that Mr Melbin had grown tired of his so called “whinging” however the employer did not make clear the reason at the time.

[43] Mr Burgess was not given an opportunity to respond to the decision to terminate his employment. Mr Burgess was not afforded the opportunity to request attendance of a support person. The decision did not pertain to unsatisfactory performance, but as stated above appeared to be a response to Mr Burgess’ desire to cease to perform the stacking and un-stacking function.

[44] The Form F3 filed by LDC said it employed 150 employees at the time of termination and it engaged internal human resources specialists. It is also relevant that the termination is having a harsh impact on Mr Burgess given his age and limited level of literacy which is a significant barrier to gaining other employment.

[45] Having considered each of the matters to be taken into account in section 387 I am satisfied that the dismissal was harsh, unjust and unreasonable.

REMEDY

[46] I am not satisfied an order for reinstatement is appropriate in this case given the employment was casual and the work was seasonal with no guarantee of on-going work in the following season. Reinstatement would also seem not to be practical given Mr Burgess expressed concerns about a number of the persons he would be working alongside if he was to return to the workplace next year.

[47] He maintained he would have continued to be employed until two weeks before Christmas because LDC was still stacking bales and putting them in sheds and shipping bales out in containers, and they usually knock off two weeks before Christmas. 34

[48] Mr Haq said his records showed in the previous year of 2015 Mr Burgess worked to 12 November. 35 Mr Haq said he believed Mr Burgess’ hourly rate was $23.88 per hour at the time of termination however he would need to confirm that.36 Mr Haq said in the last couple of weeks before his termination he was working 50 hours a week with anything over 38 hours being paid at overtime rates.37 This was consistent with Mr Burgess’ evidence.38 The Form F3 Employer Response to the application said Mr Burgess’ base rate was $19.56 plus 25% casual loading equates to $24.45 per hour. I will adopt this figure for the purpose of calculating compensation.

[49] Mr Burgess did say in the period from September in the previous year he was working from 7am to 3pm, and on some days until 2pm of there were no more trucks running. 39

[50] The Employment Separation Certificate described Mr Burgess’ average gross weekly wage as $853.88 per week. Mr Haq said this was the average of what he was paid every week. 40 Based on an hourly rate of $24.45 this is an average of approximately 35 hours a week.

[51] I intend to project the period of time that Mr Burgess would have remained employment with LDC to be in the order of a further 12 weeks. Whilst this assessment involves some conjecture it is apparent considerable tension existed between Mr Burgess on the one part and Mr Melbin and Mr Turner on the other, including over the issue of the stacking of the bales, however Mr Burgess was generally regarded as a good worker and would in my view have tried to reach an accommodation with his employer over the issues between them to retain his employment. He had worked each previous season stretching back to 2011.

[52] Given Mr Burgess was working overtime in excess of 38 hours a week at the time of termination; it also appears however from the evidence that the number of hours falls away in the latter part of the season. On that basis I intend to project the weekly remuneration that Mr Burgess would have received had he remained in employment at a rate of an average of 38 hours per week for a further 12 weeks. This amounts to a sum of $929.10 a week and $11,149.20 over 12 weeks.

[53] I make no further deduction for contingencies. The period of 12 weeks is less than the period in which work would have remained to be performed in the 2016 season.

[54] Mr Burgess said he had been unable to obtain any other employment since his termination. He said he had applied for jobs that did not require literacy skills. He said he has been unable to obtain even farm work because of his lack of computer skills. 41 I am satisfied he has attempted to mitigate his loss and make no deduction on that basis.

[55] There is no evidence the viability of LDC will be impacted by such an order for the payment of $11,149.20. Mr Burgess had earned no other income other than Centrelink payments as at the time of the hearing and there appeared little likelihood of Mr Burgess gaining other income between the time of the making or an order and actual compensation being paid.

[56] The figure of $11,149.20 does not exceed the compensation cap. The sum will be subject to appropriate taxation. A separate order will issue with this decision requiring LDC to pay Mr Burgess the sum of $11,149.20 gross taxed according to law within 14 days.

COMMISSIONER

Appearances:

A. Burgess appearing on his own behalf

M. Haq appearing for the Respondent

Hearing details:

2016
Toowoomba

November 29

 1 Exhibit 7, Statement of Gavin Melbin (undated) at [1].

 2 Exhibit 1, Statement of Alan Burgess (undated) at [1].

 3 Exhibit 1, Statement of Alan Burgess (undated) at [2].

 4 Exhibit 1, Statement of Alan Burgess (undated) at [3].

 5   Exhibit 8, Statement of Gavin Melbin dated 9 November 2016 at page 2.

 6 Exhibit 1, Statement of Alan Burgess (undated) at [4].

 7   Exhibit 8, Statement of Gavin Melbin dated 9 November 2016 at page 2.

 8   Ibid.

 9   Exhibit 8, Statement of Gavin Melbin dated 9 November 2016 at [3] and [4].

 10 Exhibit 8, Statement of Gavin Melbin dated 9 November 2016 at [5].

 11 Exhibit 2, Reply to Gavin Melbin Witness Statement (undated) at [3].

 12 Exhibit 8, Statement of Gavin Melbin dated 9 November 2016 at [6].

 13 Exhibit 1, Statement of Alan Burgess (undated) at [9].

 14 Exhibit 1, Statement of Alan Burgess (undated) at [10].

 15 Exhibit 1, Statement of Alan Burgess (undated) at [11].

 16 Exhibit 8, Statement of Gavin Melbin dated 9 November 2016 at [7].

 17 Exhibit 2, Reply to Gavin Melbin Witness Statement (undated) at [7].

 18 Exhibit 1, Statement of Alan Burgess (undated) at [14].

 19   Exhibit 7, Statement of Gavin Melbin (undated) at [2] and Exhibit 8, Statement of Gavin Melbin dated 9 November 2016 at [8].

 20 Exhibit 7, Statement of Gavin Melbin (undated) at [3].

 21 Exhibit 2, Reply to Gavin Melbin’s Statement (undated) at [3].

 22 Exhibit 1, Statement of Alan Burgess (undated) at [15].

 23 Exhibit 7, Statement of Gavin Melbin (undated) at [4].

 24   Ibid.

 25 Exhibit 7, Statement of Gavin Melbin (undated) at [4].

 26 Exhibit 2, Reply to Gavin Melbin’s Statement (undated) at [4].

 27   Transcript PN 108 and 197.

 28   Transcript PN 185-187.

 29   Transcript PN 191-192.

 30   Transcript PN 275-277.

 31   Transcript PN 278.

 32   Ibid.

 33 Exhibit 1, Statement of Alan Burgess (undated) at [16].

 34   Transcript PN 175-177.

 35   Transcript PN 227.

 36   Transcript PN 481.

 37   Transcript PN 490.

 38   Transcript PN 179.

 39   Transcript PN 231-232.

 40   Transcript PN 501.

 41   Transcript PN 174 and PN 238.

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