Clinton Purdie v Goodview Stud Pty Ltd T/A a List Stud
[2024] FWC 2111
•8 AUGUST 2024
[2024] FWC 2111
The attached document replaces the document previously issued with the above code on 8 August 2024.
The respondent’s name has been amended in the main title.
Associate to Deputy President Millhouse
Dated 8 August 2024
| [2024] FWC 2111 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Clinton Purdie
v
Goodview Stud Pty Ltd T/A A List Stud
(U2024/3990)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 8 AUGUST 2024 |
Application for an unfair dismissal remedy – application granted – remedy to be determined.
Mr Clinton Purdie has made an application to the Commission for an unfair dismissal remedy under s 394(1) of the of the Fair Work Act 2009 (Cth) (Act). Mr Purdie alleges he was unfairly dismissed from his employment with Goodview Stud Pty Ltd trading as A List Stud. The respondent denies that Mr Purdie was unfairly dismissed.
For the reasons that follow, I have concluded that Mr Purdie’s dismissal was unfair.
Hearing and witnesses
Mr Purdie’s application was the subject of a hearing[1] before me on 21 June 2024. Mr Purdie gave evidence on his own behalf and also led evidence from Codie O’Neill, the respondent’s former Stud Manager.
The respondent appeared by its Director[2] or Chief Executive Officer,[3] Mr Siu Yee (Chris) Lee, who also gave evidence on its behalf. Evidence was also led from Mr Paramjit Singh. Mr Lee appeared together with a Cantonese interpreter.
Initial matters
For the purposes of s 396 of the Act, it is not in dispute, and I am satisfied that the application was made within 21 days of the dismissal taking effect; Mr Purdie was protected from unfair dismissal within the meaning of s 382 of the Act; the Small Business Fair Dismissal Code did not apply to Mr Purdie’s dismissal; and the dismissal did not arise by way of redundancy and so it was not a case of genuine redundancy.
It is not in dispute that the respondent is Goodview Stud Pty Ltd, which trades as A List Stud.[4] Noting that Mr Purdie’s Form F2 application for an unfair dismissal remedy refers to the respondent as A List Stud Pty Ltd, I consider it appropriate to exercise my discretion pursuant to s 586 of the Act to amend this to reflect the respondent’s correct legal and trading name as identified in the respondent’s Form F3 response to the application.
Context
The respondent is a thoroughbred broodmare stud, specialising in professional breeding and horse sales services. It operates a horse farm located in Baddaginnie, Victoria (Stud).
Mr Purdie submits that he commenced employment with the respondent on 25 March 2020.[5] The respondent’s position is that the employment commenced on 13 February 2020.[6] It is not in dispute that Mr Purdie was employed on a full-time basis as a clerical and administrative officer.[7] Purdie was summarily dismissed from his employment on 3 April 2024.[8]
Relevant background and factual findings
Employment arrangements
Mr Purdie was employed pursuant to a contract of employment which, although signed by the parties and witnessed by Codie O’Neill, is not dated.[9] The contract annexes a position description for the role of clerical and administrative officer, which provides as follows:[10]
· answering and directing phone calls
· taking and distributing messages
· organising and scheduling appointments and coordinating meetings
· handling inquiries and incoming work requests
· reviewing files and records to answer requests for information
· checking and distributing documents and correspondence
· receiving, sorting and distributing incoming mail
· maintaining filing systems and compiling records of office activities
· photocopying, scanning, faxing and sending emails
· preparing and sending outgoing mailings and packages
· typing documents and correspondence
· checking and entering data and updating and maintaining databases
· basic accounting functions such as checking invoices and banking functions
· managing petty cash
· monitoring and ordering inventory of office supplies
· keeping office area neat and tidy
By clause 3.10 of the contract, Mr Purdie was provided with accommodation at the Stud as part of his role.[11] The clause relevantly provides:
3.10 Accommodation
(a) The Employer will provide the Employee with accommodation (in the form of the use of a room (not shared) and the shared house facilities at the property A List Stud Farm [address], Baddaginnie Victoria.
(b) If the Employee is required to travel for the role, then the Employer will provide reasonable accommodation at:
(i)The “A List Stud” farm which will be located in the Hunter Valley New South Wales; or
(ii)A house, hotel or motel if it is not reasonable for the Employee to stay at one of the Employer’s farm residences (and reasonable accommodation means accommodation that is of similar standard to the farm accommodation).
As earlier noted, the Stud is a horse farm. It is accessed from the street via a set of front gates. Inside the farm is a residence in which Mr Purdie lived. Mr Purdie held keys to this house.[12] The Stud homes approximately 120 horses.[13] The respondent did not contest Mr Purdie’s evidence that there is a barn on the property which contains a “staff room,” being a “room that is a common room for anyone to go into.”[14] The staff room contains staff amenities including hot water, coffee, tea and “everything for a staff room.”[15]
Relevant events of 28 March 2024
In anticipation of receiving a delivery of approximately seven horses at around 2:00 am in the early hours of Friday 29 March 2024, Mr Purdie left the front gates to the property open on the evening of 28 March 2024. At or about 10:00 pm, Mr Purdie heard chains being wrapped around the front gate and a car drive into the property, which caused Mr Purdie to telephone the police.[16]
Mr Paramjit Singh commenced employment with the respondent on 28 March 2024 as a security manager.[17] He says he received authorisation to attend the Stud on the night of 28 March 2024 to provide security services.[18] When Mr Singh arrived at the Stud, the “gate was open” so he went “through it” and approached Mr Purdie at the residence. Mr Singh understood that Mr Purdie had telephoned the police.
Mr Singh sought to allay Mr Purdie’s concerns about his unexpected attendance at the Stud by producing a copy of the respondent’s 28 March 2024 letter, which Mr Singh did not believe Mr Purdie had yet seen. The letter was addressed to Mr Purdie and was sent from Mr Lee. It advised that urgent maintenance or improvement works would be carried out at the Stud from the following Monday, 1 April 2024. The letter advised that out of concern for Mr Purdie’s safety during this period, he was required to pack up his personal belongings and relocate to the Executive Highway Hotel in Benalla by 5:00 pm 30 March 2024. The letter proceeded by stating as follows:[19]
Temporary security arrangement of the farm
From 28 March 2024 until the completion of the maintenance/improvement works, our company has appointed the staffs of Security Team to station in the farm. Our company has the rights to refuse anyone to enter the farm. In addition, our company will change all door locks and place some pack locks to all entrance gates. All staffs and/or visitors are required to register in and out of the farm.
Please hand over the following things immediately:
1. Keys for Company Ute;
2. All horses ID cards;
3. Goodview Stud Pty Ltd’s debit card.
Mr Singh informed Mr Purdie that he had been authorised by the respondent to remain on the property to provide security services, in accordance with the 28 March 2024 letter. Mr Singh said that what started as a “misunderstanding” was “all sorted that night.” Mr Purdie confirmed that he received a copy of the 28 March 2024 letter from Mr Lee at or about 10:30 pm that night. Mr Singh said that the police departed, and Mr Singh locked the front gate.[20]
There is no evidence that Mr Lee spoke directly to Mr Purdie about these matters at any stage.
Relevant events of 29 March 2024
The following day, 29 March 2024, Mr Purdie left the property in his vehicle and when he returned, the front gates to the property were padlocked and Mr Purdie could see “no one around.” Mr Purdie said that he “walked into the barn into the staff room, grabbed a key that I assumed was a padlock for the front gate and unlocked the front gate and drove back into the farm.”[21] Once inside the residence, Mr Purdie gave evidence that he “started packing.”[22]
Mr Singh described “a conflict” with Mr Purdie on 29 March 2024. Mr Singh said that he was outside, “helping with the horses” and from a distance, he could see that the front gate was open. Mr Singh said he attended Mr Purdie’s residence and asked Mr Purdie how he opened the gate:[23]
And then from a distance I saw the gate just open. And then I ran back and check what happened. It was wide open. And I said to the – how did you – who – why did you open the gate? How did you open the gate? How come you have the key? And that time he didn’t really tell me what he did. Then I went to the room and checked – the key wasn’t there. So that is the time I think we reported him that he took the key and opened the gate. That was the time before he left – before he finally left. That was one incident happened when I was there.
When asked what happened with the front gate key, Mr Singh said:[24]
The police came and I think he agreed to it and then he gave back the key that day. He said – ‘Yeah, I took it.’ Yes. Took it from the room.
Mr Purdie does not contest that Mr Singh attended his residence and “asked for the key.” Mr Purdie said that he had a conversation with Mr Singh, who did not know why he had been instructed to padlock the front gates.[25] Mr Purdie said, “the key was handed back to Param and there was no police involved.”[26] However, Mr Singh contends that the police were called and attended the property.[27]
Mr Singh gave evidence that there were three keys to the front gate.[28] One was located on the fridge in the barn. The other two keys were located separately within bags inside the barn.[29] Mr Singh said that Mr Purdie was “coming and going all the time” so Mr Singh said to him:[30]
…if you want to go out just let me know and then when you’re coming back just let me know and I’ll open the door and close the door for you. If it’s a trouble I can’t keep it open but I can help you. Like I can keep it – when you leave I’ll close it. When you come back I’ll open it. The owner asked me to do it that way. Just don’t keep it open.
However, Mr Purdie’s evidence is that the key was located on the bench.[31] Further, Mr Purdie says that Mr Singh provided him with a copy of the key to the front gate so that Mr Purdie could access the property as he pleased.[32] Mr Singh denies this.[33]
Relevant events of 30 March and 31 March 2024
On 30 March 2024, the respondent sent further correspondence to Mr Purdie, via its solicitors, which relevantly provided that Mr Purdie was permitted to remain at the Stud until 12 noon on 31 March 2024:[34]
We understand that our client is your employer. According to the Employment Contract between you and our client, our client is required to provide you the accommodation. Referring to our client’s letter dated 30 March 2024 addressed to you, you suppose to leave the Stable by 5:00 p.m. on 31 March 2024, however, our client can allow you to stay in the Stable until 12:00 p.m. on 31 March 2024.
The correspondence repeated the request for Mr Purdie to produce to the respondent the car keys, horse ID cards and the respondent’s debit card and concluded as follows:
We would like to draw your attention that any personal belongings left behind at the Stable after 12:00 p.m. on 31 March 2024, will be treated as unwanted waster material and therefore, our company should the rights to deal with it without any further notice.
Noting that he had been directed to remove all of his personal belongings from the property by 12 noon on 31 March 2024,[35] and that anything left behind would be regarded as unwanted waste, Mr Purdie said that his family arrived with a truck on Saturday 30 March 2024.[36] Mr Purdie explained that he had a three-bedroom house full of furniture to pack.
Mr Purdie said that he departed the property with his parents at approximately 2:00 pm on 31 March 2024 and did not return. Notwithstanding the respondent’s invitation to reside at the Executive Hideaway Hotel in Benalla during the maintenance period, Mr Purdie explained that he instead moved to his parents’ home in Geelong, four hours travelling time from the Stud, because he was unsure whether the respondent was going to cover the hotel costs on his behalf.[37]
Mr Purdie gave evidence that he did not perform any of his employment duties after 31 March 2024 because he had “no access to anything. I was administration officer on the property and I was not allowed to enter the farm or anything…”[38] Consistent with this, I note that Mr Purdie had been directed to return to the respondent the debit card, which may relevantly bear upon Mr Purdie’s ongoing capacity to perform “banking functions,” being a requirement of his role. I further note that Monday 1 April 2024 was a public holiday in Victoria, being a day that Mr Purdie was entitled to be absent from work without deduction of pay pursuant to the terms of his employment contract.[39] In any event, the respondent did not require Mr Purdie to perform work for it after 31 March 2024. Mr Lee’s evidence was that “since there was an argument and the police were involved…there was no task arranged for him” on Monday 1 April or Tuesday 2 April 2024.[40] Accordingly, I am satisfied that Mr Purdie was not required to perform any of his employment duties after he departed the Stud on 31 March 2024 and that he did not do so.
The changed padlock
Mr Singh said that on the day Mr Purdie departed the property on 31 March 2024, Mr Purdie “came back and changed the lock.” Mr Singh said that he “knew” the lock was Mr Purdie’s because he had seen the lock when he first arrived at the property. Mr Singh telephoned the police to advise that “somebody had changed the lock” but that he didn’t know if that had “something to do with” Mr Purdie.”[41] Mr Singh later qualified this evidence to say that the new lock had been placed on Mr Singh’s lock, so there were “two locks in place.”[42] Mr Singh said that “the police didn’t have any ground to list this as a crime because somebody locked your gate it’s not a crime.”[43]
This issue did not form part of the respondent’s reasons for dismissal and was not developed further in the proceedings. Accordingly, I decline to make any findings in respect of this matter, nor do I consider it relevant to do so.
Attending to the horses
Mr Singh contends that on 29 March 2024, he formed the view that the horses were not being attended to. He said “there was no water. Nothing. No feed. Nothing. It was like everything was empty.”[44] Mr Singh said that although there was food in the barn, nobody was feeding the horses.[45]
Mr Singh said that Mr Lee sent a “friend” to the Stud on 30 March or 31 March 2024 to teach Mr Singh and the other two security guards how to water and feed the horses “until they find another arrangement.”[46] Mr Singh said he was advised by the friend that “it’s okay for one night to be manageable.”[47] Mr Singh accepted that Mr Lee’s friend may have been called Ejaz, who is said to be the respondent’s racing manager.[48] Mr Singh said that he took no steps to feed or water the horses himself until he was instructed how to do so.[49]
Mr Lee accepted that it was “not exactly” Mr Purdie’s role to feed the horses, “because he was doing other administration, but he could assist.” Mr Lee gave evidence that it was Codie O’Neill’s role to feed the horses, but he was “no longer working with us.” [50] Mr O’Neill gave evidence that his employment with the respondent has ceased, and he left the farm on 27 March 2024.[51]
Mr Purdie’s position is that the duty to water the horses does not fall within his employment contract. But in any event, Mr Purdie denies that he failed to give water to the horses.[52] Mr Purdie further states that any failure to ensure the horses had water during the maintenance period would have been due to miscommunication or logistical issues and not a deliberate act of neglect.[53]
Termination of employment
Mr Purdie contends that on 3 April 2024, he was informed by Mr Lee that his employment was terminated with immediate effect pursuant to a termination letter which relevantly states as follows:[54]
We would like to terminate our employment relationship with immediate effect. Based on the following incidents:-
1. Our company authorizes our staff namely, Param Singh to keep the farm keys. However, you stole Peter’s farm keys as your property. Case has been reported to the police for further investigation.
2. One of your job duties is to take care all our horses, however, we found out that you failed to give water to the horses, and we need to arrange other staff to give water to the horses.
Our company will issue another letter to you within the next 14 days in relation to the final payments.
In his Form F3 response to Mr Purdie’s unfair dismissal application, Mr Lee states:[55]
During the maintenance period of the Horse Farm, the Employer deployed 3 staff which stationed at the Horse Farm for 24 hours a day for managing the Horse Farm. At that time, all staff and the visitors were required to conduct registration for in and out of the Horse Farm. The deployed staff would keep the keys for opening and closing the front gate of the Horse Farm.
On 2 April 2024, the Applicant was unhappy the Employer’s arrangement, he sneaked in the deployed staff’s room and stole the keys for his own use, so the Applicant could enter or leave the Horse Farm without any registration.
In his witness statement, Mr Lee states:[56]
My colleague Param (I don’t know last name) who is newly employed by me takes after the keys. One of the keys to a gate that keeps horses in the property, and locks to my property which is worth $2million. Clinton (I don’t know his last name) stole the key from Param and tried to let the horses out.
In his oral evidence, Mr Lee acknowledged that he did not have any direct evidence that Mr Purdie stole the gate key, as the issue had been reported to him by Mr Singh.[57] Mr Lee explained that he was “not sure” about Mr Purdie’s “intention of opening the gate.”[58] Mr Lee speculated that it may have been that Mr Purdie was going to let the horses out, but acknowledged that this was just his guess, which could be wrong.[59] Regardless, Mr Lee maintained his position that he did not know if Mr Purdie had “other intentions” by stealing the key.[60] Mr Lee did not accept the proposition that a reason for Mr Purdie taking the key was to access his residence to pack his belongings in accordance with a direction given to him by the respondent.[61] Mr Lee said that Mr Purdie had the contact number for Mr Singh and could have called him to get access to the property.
As to the concerns relating to Mr Purdie’s alleged failure to feed or water the horses, Mr Lee gave evidence that as Mr Purdie was living on the property, he had a “responsibility to assist” with this role.[62] Despite this, Mr Lee acknowledged that Mr Purdie’s employment contract did not expressly require him to feed and water the horses at the Stud.[63]
Factual findings
I generally found Mr Purdie to be a credible witness and where his evidence differs to Mr Singh’s in relation to the events of 29 March 2024, I generally prefer and accept the evidence of Mr Purdie to that of Mr Singh. There were some minor inconsistencies with respect to the dates recorded in Mr Purdie’s witness statement, but these were resolved and for the most part, corroborated by the documentary evidence before the Commission. I generally consider Mr Purdie’s evidence on the issues to be determined in this application to be clear and convincing.
By contrast, there were several respects in which Mr Singh’s evidence contained significant inconsistencies, specifically concerning the events on 29 March 2024. In his witness statement, Mr Singh says that he saw Mr Purdie “open the room door at the barn to steal the key and open the lock at the main gate of the stud.”[64] In his oral evidence, Mr Singh said that this was a “typo” and he did not see Mr Purdie open the room door at the barn, steal the key, or open the front gate at all.[65] I find it difficult to accept that Mr Singh made a typographical error of this nature and I note that the truth about this statement came to light only upon clarifying questions being posed by the Bench. This matter raises a question about the credibility, and the reliability, of Mr Singh’s evidence about the events of 29 March 2024. Accordingly, I approach that evidence with caution.
In any event, Mr Purdie accepts, and I find, that he obtained a key to the front gate from the staff room in the barn, used that key to unlock the front gate, and entered the property on 29 March 2024 to access his residence. Mr Purdie’s evidence that there was no one present at the front gate when he arrived at the Stud is consistent with Mr Singh’s evidence that he was attending to the horses at this time. I find that this circumstance led Mr Purdie to walk into the staff common room, locate the key that was in a readily accessible place on the fridge or the bench, and unlock the front gate. Thereafter, Mr Purdie proceeded to his residence where he commenced packing his belongings, as directed. I consider that Mr Purdie has provided a persuasive explanation for why he had a key to the front gate in his possession when Mr Singh enquired of him why the front gate was open, and I accept Mr Purdie’s evidence that he returned the key to Mr Singh upon request.
There is a contest between the parties about whether the police attended the property on 29 March 2024 in relation to this event. Mr Purdie’s position is that there were no police involved. Mr Singh says that the police were called but he did not explain who called the police, or whether they attended the Stud. I consider this conflict to be resolved by Mr Lee’s evidence that he called the police himself.[66] This appears to be consistent with the correspondence before the Commission from Victoria Police dated 9 May 2024 which states that the police responded to information received from both Mr Purdie and Mr Lee on “separate occasions between 28/03/2024 to 02/04/2024.”[67] I accept Mr Lee’s evidence and therefore consider it probable that the police attended the property on 29 March 2024.
Mr Lee contends that Mr Purdie was “unhappy” with the maintenance period arrangements and on “2 April 2024” Mr Purdie “sneaked” into Mr Singh’s room and “stole the keys” so that he could “enter or leave the Horse Farm without any registration.” Further, Mr Lee says that Mr Purdie “stole the key from Param and tried to let the horses out.” I reject Mr Lee’s contentions for the following reasons.
First, the evidence has established that Mr Purdie left the Stud at or around 2:00 pm on 31 March 2024. I accept Mr Purdie’s evidence that he travelled with his family from the Stud to the family home in Geelong four hours away and that he did not, and has not, returned to the Stud. Mr Purdie’s evidence in this respect is corroborated by Mr Singh. Mr Purdie was not at the Stud on 2 April 2024.
Second, regardless of the date, Mr Lee’s contention that Mr Purdie snuck into Mr Singh’s room mischaracterises the events of 29 March 2024. The key was placed in an accessible location within the staff room in the barn. It was not Mr Singh’s private residence. There is no evidence that the barn was locked or that Mr Purdie was precluded from accessing it. Notwithstanding the direction that “all staff and/or visitors” were required to register in and out of the farm during the maintenance period, Mr Purdie did not consider this applied to him because he was a resident of the Stud.[68] He was not a visitor to the Stud and the respondent had not, in its 28 March 2024 letter to Mr Purdie, identified (a) any concerns with Mr Purdie’s performance or conduct prior to these events, or (b) any safety related issues connected to the urgent maintenance and/or improvement works which might give rise to a need to limit Mr Purdie’s movements on and around the property. Nor did the respondent advance any such concerns during the proceedings. Mr Singh gave evidence that he advised Mr Purdie that he would open and close the gate as Mr Purdie came and went. Mr Purdie did not contest this evidence and I accept it. In these circumstances, the evidence does not support a conclusion that Mr Purdie stole the key to circumvent the registration requirements. I accept and I find that Mr Purdie’s interest in the key was limited to ensuring access to his residence on 29 March 2024 at a time when the front gate was locked and unattended by the security personnel appointed late the previous evening.
Third, I do not accept that Mr Purdie stole the keys for the purposes of letting the horses out, as Mr Lee speculates. There is simply no evidence to support this contention and it cannot be sustained. Rather, the evidence supports a finding that Mr Purdie’s intention in using the key to unlock the front gate was to gain access to his residence and pack up his personal belongings, pursuant to the direction issued to him by his employer. To this end, I note Mr Lee’s evidence that he had no “concern about [Mr Purdie] getting his own property.” Mr Lee said that Mr Purdie “could go in and out any time as long as he notify our security guard, because there was security there all the time, 24/7. He just need to notify or let him know.”[69]
Having regard to the above matters, I do not accept the contention that Mr Purdie stole the front gate key. I am satisfied and I find that Mr Purdie obtained the front gate key from the staff common room (which he was entitled to enter) to gain admission to the Stud and access his residence during the period within which he was permitted to remain on the property to pack up his belongings.
I have also considered whether Mr Purdie failed to comply with a direction to register his return to the Stud on 29 March 2024 with Mr Singh or another member of the respondent’s security team. An employer has the authority to give directions to its employees and expect them to be obeyed, subject to such directions being lawful and reasonable.[70] The nature of the employment, the common practices which exist, and the general provisions of the instrument or contract governing the relationship assist in the determination of what is reasonable.[71]
In addition to requiring “all staff and/or visitors” to register in and out of the property, the 28 March 2024 letter concurrently directed Mr Purdie to pack his belongings and move out. At the time Mr Purdie entered the property on 29 March 2024, he had been directed to vacate the residence by 5:00 pm the following day.
It is not in dispute that Mr Purdie did not register his attendance immediately upon his return to the property on 29 March 2024. I accept Mr Purdie’s evidence that there were no security personnel situated at the front gate at that time. Accordingly, there was no facility made available for him to do so despite Mr Lee’s evidence that the front gate would be attended “24/7.” Even if this were not the case, the extent of the registration direction was a requirement to “register in and out of the farm.” The direction did not specify that the registration could only be completed at the front gate. The evidence establishes that Mr Purdie’s return to his home was not by stealth. He drove his car during daylight hours to the front gate, which was not monitored. Regardless, Mr Singh was aware that Mr Purdie had returned to the Stud because he attended Mr Purdie’s residence and spoke to him about the key. In my view, this registered Mr Purdie’s attendance in a manner sufficient to satisfy the broad and unparticularised registration requirements imposed by the respondent.
Further and in any event, having considered the respondent’s registration direction against the common practices in existence at the time this direction was issued, the nature of Mr Purdie’s employment and the terms of his contract, I do not regard the registration requirement to constitute a reasonable direction. As a resident of the Stud, Mr Purdie had a contractual right to be present at the property. This contractual right was ongoing, at least until 12 noon on 31 March 2024 (being the extended deadline communicated to Mr Purdie in the 30 March 2024 correspondence from the respondent’s solicitor). Accordingly, I am satisfied, and I find that Mr Purdie did not fail to comply with a lawful and reasonable direction of the respondent to register his attendance at the Stud.
Further, while not expressly contended by the respondent, I have also considered whether Mr Purdie recklessly left the front gate open when he entered the property on 29 March 2024. I accept the evidence of Mr Lee and Mr Singh that the respondent was concerned with ensuring that the front gate remained closed for the safety of the horses. However, there is no evidence as to the extent to which the gate was open, or the risk (if any) this presented to the horses on the property. It follows that there is insufficient evidence before me to reach a state of satisfaction that Mr Purdie was reckless or otherwise engaged in misconduct by leaving the gate open on 29 March 2024.
I turn now to consider the respondent’s broad and unparticularised allegation that Mr Purdie failed to give water to the horses. I do not accept this contention for the following reasons. First, Mr Purdie was employed as a clerical and administrative officer. The specific aspects of his role are set out in a position description attached to his employment contract and set out at [9] of this decision. Mr Purdie’s duties did not extend to attending to the horses. Accordingly, Mr Purdie did not fail to perform an express requirement of his role. Mr Lee accepted this proposition.
Second, Mr Lee contended that Mr Purdie had a moral obligation to ensure the health of the horses, in circumstances where he was a resident of the Stud. Mr Purdie denies that he failed to give water to the horses. Mr Singh’s evidence that he did not see Mr Purdie attend to the horses does not, in my view, undermine his evidence for the reasons given at [39]-[40], and I accept it. Mr Singh acknowledged in his evidence that he did not have a full understanding of the horses’ feeding schedule.
Third, Mr Purdie acknowledges that any oversight that occurred during the maintenance period may be attributable to the miscommunication occurring at this time. I also accept this evidence. There is no evidence of Mr Lee contacting Mr Purdie to discuss the logistics associated with the care of the horses between 29 March and 31 March 2024. Indeed, there is no evidence of Mr Lee speaking to Mr Purdie at all and the 28 March 2024 letter did not address any matters concerning the horses. On the contrary, the evidence demonstrates that Mr Lee instead discussed the care of the horses with Mr Singh. Mr Lee arranged for his “friend,” or the respondent’s racing manager, to attend to the horses during this period. Mr Singh’s evidence was that this person advised him that the horses would be fine until he arrived, and there is no evidence before the Commission that the horses suffered or were at risk of any suffering during this period.
In making these factual findings, I have considered the following evidence relied upon by the respondent:
(a)At the property was a John Deere 75 horse power 4WD tractor with 4-in-1 bucket and hay forks brand new worth approximately $100,000 that Mr Lee determined had been stolen in or about March 2024. While Mr Lee said that he believed that certain persons named in his statement “knew about my tractor” and that he had “seen the tractor” on his neighbour’s property, there is no reference to Mr Purdie by name or by general reference as a person with knowledge of this matter.[72]
(b)On 15 April 2024, a handwritten statement on a document titled “Victoria Police Initial Action Pad” contains a summary of an event that occurred at the Stud involving a person named Ejaz Hussain. The document does not mention Mr Purdie by name or by general reference.[73]
The respondent has not drawn any connection between this material and the matters to be determined in this application concerning Mr Purdie. Nor am I able to identify a relevant connection.
Was the dismissal harsh, unjust or unreasonable?
The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s 387 of the Act at paragraphs (a) to (h). My consideration of each is addressed below.
Section 387(a) - Was there a valid reason for the dismissal related to Purdie’s capacity or conduct (including its effect on the safety and welfare of other employees?)
The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to an employee’s capacity or conduct are well established. A valid reason is one that is “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”[74]
The Commission does not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer.[75] The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason. The reason for a dismissal need not be the same reason as was given to the employee at the time of dismissal.[76]
Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated.[77] Nor is it necessary, for the purpose of establishing a valid reason, to demonstrate misconduct sufficiently serious to justify summary dismissal.[78] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination:[79]
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.
Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw v Briginshaw,[80] the nature of the relevant issue necessarily affects the “process by which reasonable satisfaction is attained.”[81] Such satisfaction “should not be produced by inexact proofs, indefinite testimony, or indirect inferences,”[82] or “circumstances pointing with a wavering finger to an affirmative conclusion.”[83] The application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged.[84]
I turn now to consider the two reasons advanced by the respondent for Mr Purdie’s dismissal.
The first reason – Mr Purdie stole the gate keys
The first reason for Mr Purdie’s dismissal is that Mr Purdie stole the keys to the front gate of the Stud. I proceed on the basis that this is the event that occurred on 29 March 2024. I have earlier found, at [47] of this decision, that Mr Purdie did not steal the key to the front gate. Nor have I concluded that Mr Purdie intended to let the horses out or undermine their safety or security. The facts that underpin the first reason relied upon by the respondent for Mr Purdie’s dismissal have not been established. It does not give rise to a valid reason for the dismissal.
While not contended by the respondent, I have also considered and rejected the possibility that Mr Purdie failed to comply with a direction to register his attendance at the Stud.
The second reason – Mr Purdie failed to give water to the horses
The second reason for Mr Purdie’s dismissal is that Mr Purdie failed to give water to the horses. I have earlier rejected the contention that Mr Purdie failed to give water to the horses for the reasons at [53] to [55] of this decision. The second reason is not established on the evidence and does not give rise to a valid reason for Mr Purdie’s dismissal.
Section 387(b) – Was Purdie notified of the valid reason?
Section 387(b) requires the Commission to have regard to whether an employee was notified of that reason. Contextually, the reference to “that reason” is the valid reason (if any) found to exist under s 387(a) of the Act.[85] Notification of a valid reason for termination must be given to an employee before the decision is made to terminate their employment,[86] and in explicit[87] and plain and clear terms.[88]
The enquiry under s 387(b) requires consideration of whether Mr Purdie was notified of the reason for his dismissal found to be a valid reason in accordance with s 387(a). I have determined that there is no valid reason for Mr Purdie’s dismissal. It therefore follows that Mr Purdie was not notified of the valid reason for the purposes of s 387(b).
Section 387(c) – Was Purdie given an opportunity to respond?
Section 387(c) is concerned with whether an employee was, in substance, afforded an opportunity to respond to the reasons for the dismissal.[89] An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[90]
As a matter of logic, unless an employee has been notified of the reason for their dismissal, it is “difficult to envisage” that it could be found that the employee has been afforded an opportunity to respond to that reason.[91] Such is the case here. It is not open on the evidence to conclude that Mr Purdie was given an opportunity to respond to the reasons for his dismissal when he was not notified of them.
I find that Mr Purdie was not given an opportunity to respond to the reasons for his dismissal prior to the decision to dismiss being made.
Section 387(d) – Was there any unreasonable refusal by the respondent to allow Purdie to have a support person present to assist at any discissions related to the dismissal?
Mr Purdie was not on notice of any discussions that specifically related to his dismissal. In these circumstances, I consider that the matter identified in s 387(d) as to whether there was any unreasonable refusal to have a support person present does not arise for consideration, as no request for a support person was made.[92]
Section 387(e) - If the dismissal related to unsatisfactory performance, was Purdie warned about that unsatisfactory performance before the dismissal?
While the respondent indicated in its outline of submissions that Mr Purdie’s dismissal related to both “misconduct or serious misconduct” and “poor work performance,”[93] the substance of the respondent’s submissions concern Mr Purdie’s conduct.[94] To the extent that s 387(e) is relevant to this application, there is no evidence that Mr Purdie received any warnings from the respondent during his employment, and the respondent did not contend otherwise.
Section 387(f) and s 387(g) – The degree to which the size of the respondent’s enterprise, and the absence of dedicated human resource management specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal?
Where an employer is of substantial size and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.[95]
In this case, the respondent employed 19 employees at the time of Mr Purdie’s dismissal.[96] There is no evidence of it having a dedicated human resources department. Neither party submitted that these matters had a bearing on the procedures followed in effecting the dismissal.
I find that the size of the respondent’s enterprise and the absence of dedicated human resource management specialists or expertise may have impacted on the procedures followed in effecting the dismissal, leading to an outcome whereby Mr Purdie was dismissed without a valid reason and in the absence of notification or an opportunity to respond. However, I take into account that the 30 March 2024 correspondence issued to Mr Purdie by the respondent was sent by the respondent’s solicitors, indicating that the respondent sought some external advice about its communication with Mr Purdie.
Section 387(h) - Any other matters that the Commission considers relevant
Section 387(h) provides the Commission with broad scope to consider any other relevant matters. The Commission should consider all the circumstances and weigh the gravity of Mr Purdie’s conduct against any matters that might support his contention that the dismissal was harsh, unjust or unreasonable.[97]
It has long been established that the effects of dismissal on the personal or economic situation of the dismissed employee may be taken into consideration under s 387(h) of the Act.[98] Mr Purdie contends that the sudden nature of his dismissal has caused him emotional and financial hardship including because he simultaneously lost his place of residence. I have taken into account that Mr Purdie was directed to vacate his residence with the provision of only limited advance notice.
Is the Commission satisfied that the dismissal was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[99]
In many cases, the concepts “harsh, unjust or unreasonable” will overlap.[100] Having considered each of the matters specified in s 387 of the Act, taking into account all of the evidence and my factual findings, I am satisfied that the dismissal was harsh because of its consequences for Mr Purdie’s personal situation in circumstances where he was required to vacate from his residence; the dismissal was unjust because my findings demonstrate that Mr Purdie did not engage in the conduct for which he was dismissed; and the dismissal was unreasonable because Mr Purdie was not notified of, or given an opportunity to respond to the reasons for the dismissal, and such an opportunity may have altered the outcome.
Accordingly, I find that the dismissal was unfair within the meaning of s 385 of the Act.
Next steps
Being satisfied that Mr Purdie:
(a) made an application for an order granting a remedy under s 394;
(b) was a person protected from unfair dismissal; and
(c) was unfairly dismissed within the meaning of s 385 of the Act,
the Commission may order a remedy pursuant so s 390(1) of the Act.
Neither party filed the necessary evidentiary material in relation to remedy.[101] Accordingly, the parties are directed to attend a Mention at a date and time to be advised at which the question of remedy and its determination will be discussed.
DEPUTY PRESIDENT
Appearances:
B Newman of 1800 Advocates, for the applicant.
C Lee, for the respondent.
Hearing details:
2024.
Melbourne (by video link):
June 21.
[1] Fair Work Act 2009 (Cth) s 399(1); Transcript of proceedings dated 21 June 2024 (Transcript) PN55-PN59
[2] Exhibit 1, Digital Court Book (DCB) 67
[3] DCB69
[4] DCB15, DCB18, DCB115
[5] DCB4 at 1.1; DCB8 at 1a
[6] DCB61 at 1.2, however see DCB32 at 17.1(g) which specifies the employment commenced on 1 March 2021
[7] DCB8 at 1b-1c
[8] DCB63-64 at 2.2
[9] DCB18-38
[10] DCB19 at 1.2 and “Annexure”
[11] DCB9 at 2c; DCB23 at 3.10
[12] Transcript PN250
[13] Transcript PN713
[14] Transcript PN92
[15] Transcript PN93
[16] Transcript PN110
[17] Transcript PN366
[18] Transcript PN367
[19] DCB42
[20] Transcript PN381
[21] Transcript PN161
[22] Transcript PN162
[23] Transcript PN413, see also PN436
[24] Transcript PN416
[25] Transcript PN168
[26] Transcript PN165
[27] Transcript PN554-PN558
[28] Transcript PN468-PN473
[29] Transcript PN509-PN510, PN518
[30] Transcript PN400
[31] Transcript PN86, PN92
[32] Transcript PN173
[33] Transcript PN479
[34] DCB44-45
[35] Transcript at PN137-139
[36] Transcript PN162
[37] Transcript PN144
[38] Transcript PN145
[39] DCB24 at [7.2]
[40] Transcript PN326, PN331
[41] Transcript PN418-PN420
[42] Transcript PN422
[43] Transcript PN422
[44] Transcript PN563
[45] Transcript PN567, PN654
[46] Transcript PN600
[47] Transcript PN626, PN642-PN647
[48] Transcript PN647; see also DCB112 which refers to a person by this name
[49] Transcript PN610
[50] Transcript PN258
[51] Transcript PN220
[52] DCB11 at 5c
[53] DCB50 at [15]
[54] DCB40
[55] DCB121 at 3.2
[56] DCB109-110 at [10]
[57] Transcript PN279
[58] Transcript PN239
[59] Transcript PN309
[60] Transcript PN240
[61] Transcript PN245
[62] Transcript PN313
[63] Transcript PN315
[64] Exhibit 2
[65] Transcript PN433, PN533
[66] Transcript PN247
[67] DCB57
[68] Transcript PN117-PN119
[69] Transcript PN248
[70] R v Darling Island Stevedore & Lighterage (1938) 60 CLR 601 at p 621-2
[71] Briggs v AWH [2013] FWCFB 3316 at [8]
[72] DCB109 at [4]-[9]
[73] DCB112-113
[74] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
[75] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
[76] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185 at [45] citing Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 377-8
[77] Hatwell and Another v Esso[2018] FWC 2398 at [76]
[78] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Gelagotis v Esso Australia Pty Ltd[2018] FWCFB 6092 at [116]
[79] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [23]-[24]
[80] Briginshaw v Briginshaw (1938) 60 CLR 336
[81] Ibid at 363
[82] Ibid per Dixon J at 362
[83] Ibid per Rich J at 350
[84] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 per Dixon J at 216
[85] Bartlett v Ingleburn Bus Services Pty Ltd[2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd[2020] FWCFB 533 at [55]
[86] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
[87] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
[88] Ibid
[89] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7; Central Queensland Services Pty Ltd v Tara Odgers[2020] FWCFB 304 at [42]; Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
[90] Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services[2020] FWCFB 6429 at [19] and [21]; Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at [75]
[91] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]
[92] Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542]
[93] DCB74 at 3c, DCB81 at 5
[94] See, eg DCB121 at 3.2
[95] Jetstar v Meetson-Lemkes[2013] FWCFB 9075 at [68]
[96] DCB62 at 1.7
[97] B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191; 238 IR 1
[98] Ricegrowers Co-operative v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001) at [26]
[99] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7]
[100] Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 131 ALR 422; (1995) 69 ALJR 797; (1995) 185 CLR 410 at [128]
[101] See, eg, A1 Distributions v Humphries[2016] FWCFB 7206 at [28]
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