Coleman v Doak T/A Jandakot Helicopters

[1996] IRCA 310

DECISION NO:  310/96 

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - helicopter pilot - whether VALID REASON for termination - whether HARSH, UNJUST OR UNREASONABLE.

Industrial Relations Act 1988 Ss 170EA, 170EDA(1)(a)(b), 170DE(2), 170DC, 170EE.
Civil Aviation Act 1988, S 28BE

Craig Ronald COLEMAN -v- Derek William DOAK trading as JANDAKOT HELICOPTERS 
WI 2273 of 1995

BEFORE:       R. D. FARRELL JR
PLACE:          PERTH
DATE:            10 July 1996

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA                   )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )         No. WI 2273 of 1995

BETWEEN:  Craig Ronald COLEMAN
  -         Applicant

AND:  Derek William DOAK
  (trading as JANDAKOT   HELICOPTERS)
  -         Respondent

MINUTE OF ORDERS

BEFORE:               R. D. FARRELL JR

PLACE:                  PERTH

DATE:  10 July 1996

THE COURT DECLARES AND ORDERS THAT:

1.         The applicant pay to the respondent the sum of $8,390.75 which was not but     ought to have been paid to the respondent pursuant to a contract for           tuition.

2. The respondent pay to the applicant the sum of $5,600.00 in compensation pursuant to Section 170EE(2) of the Industrial Relations Act 1988.

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

WI2273 of 1995

BETWEEN:

Craig Ronald COLEMAN
Applicant

AND:

Derek William DOAK,
trading as Jandakot Helicopters
Respondent

REASONS FOR DECISION

10 July 1996  R. D. FARRELL JR

1. This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful summary dismissal from employment of the applicant Craig Ronald “George” Coleman, (“Mr Coleman”), by the respondent Derek William Doak, (“Mr Doak”), who conducts the business known as Jandakot Helicopters. Reinstatement was not sought, and I am satisfied that it was not practicable.

1. There were also claims brought in the associated jurisdiction of the court. Mr Coleman claimed that he had not received payment to which he was entitled for work performed by him for Mr Doak. Mr Doak claimed that he was owed fees for training given by him to Mr Coleman. I am satisfied that these claims form part of the controversy between the parties and it was accepted that I should resolve these claims as part of the determination of these proceedings.

History of Employment

1. Mr Coleman and Mr Doak had been friends for about 10 years. Their friendship began when Mr Doak taught Mr Coleman to fly a helicopter some years ago. In more recent times, Mr Coleman had moved interstate when his wife, who was in the Navy, was transferred to Queensland. Mr Coleman worked there chiefly as a diving instructor. In the meantime, Mr Doak acquired the business name, “Jandakot Helicopters”, and established a business which consisted of instructing students to fly helicopters and also conducting some charter flights. Jandakot Helicopters was the only helicopter instructor in Perth, and Mr Doak was sometimes very busy.

1. In late 1994, Mr and Mrs Coleman returned to Perth. Mrs Coleman was still with the Navy. They had accumulated various debts, and Mr Coleman was in search of employment. He had not been flying helicopters for some 4 years, but he had taken a refresher course before returning to Perth so that his helicopter qualifications were “current” and he was able to fly helicopters and to seek employment in that field.

1. Mr and Mrs Coleman renewed their friendship with Mr and Mrs Doak on their return to Perth. At about this time, Mr Doak was interested in the possibility of engaging another instructor to assist him in the instruction duties at Jandakot Helicopters. There were no qualified instructors available in Perth. Mr Doak realised he would therefore have to train somebody to become an instructor, and then employ him or her in that role.

1. Mr Doak decided to take on Mr Coleman. He says he did so because Mr Coleman was a friend, and needed the job. There were, Mr Doak says, many better-qualified candidates for the position. He points out that, while Mr Coleman’s pilot licence was technically current, he did not have much recent flying experience, having worked in other fields for the previous 4 years. Mr Coleman’s total flying hours were insufficient to qualify to be an instructor. Nor was Mr Coleman able to pay in advance for the tutoring necessary to graduate as a helicopter instructor. It was therefore necessary for Mr Doak to extend credit to Mr Coleman to cover the cost of the lessons. While Mr Doak says that he was satisfied that Mr Coleman would be a competent pilot, he says he did raise with him at the outset, when they were discussing the proposition, the possibility that Mr Coleman might be too “casual” for the job. Mr Doak says there were more experienced pilots available and there were pilots who would have been able to pay for their tuition without requiring credit. He says he nevertheless gave the opportunity to Mr Coleman because he was a friend.

1. It must be recognised that the fact that Mr Doak already knew Mr Coleman would have been a factor recommending Mr Coleman for the position. Mr Doak knew Mr Coleman’s temperament. He knew he was a competent pilot, from his own previous experience with him. He had reason to expect that they would get along together and be able to work well together. These would have been matters that would have quite properly have been taken into account by Mr Doak in making a pragmatic, commercial decision to engage Mr Coleman, and may well have outweighed the disadvantages Mr Doak has identified.

1. The reference given by Mr Doak to Mr Coleman back in 1989, which describes Mr Coleman as “an honest and hardworking person”, “very easy going and conscientious”, and “an asset to any business”, which describes his flying standard as “above average” and which refers to Mr Doak’s inability to “lure him back to work for me”, lends support for this view.

The Agreements as to Wages and Tuition Fees

1. The matter in which a favour was clearly extended to Mr Coleman by Mr Doak was the provision of credit by Mr Doak to Mr Coleman to finance Mr Coleman’s tuition by Mr Doak as an instructor. Mr Coleman required 40 hours instruction in order to obtain his Instructor’s Licence. It was agreed that the training would be provided by Mr Doak and charged at $270.00 per hour. It was understood that Mr Coleman’s final endorsement would take 3 hours and would be charged at $520.00 per hour. Mr Coleman acknowledged in his evidence that, at the time he entered into the agreement, he was able to calculate the amount he was agreeing to pay back to Mr Doak.

1. Mr Doak says he would normally have charged a $2,000.00 fee for the necessary tuition in theory which he gave to Mr Coleman. He says he did not do so because Mr Coleman was a friend. On balance, I am not satisfied that this discount was not given at least partly due to ordinary commercial motivations. It seems to me to be likely that some sort of discount would have been given to any employee engaged by Mr Doak, all of whom would have required training from him.

1. It was also agreed that Mr Coleman would initially work on charter flights to get his hours up to the point where he could qualify to be an instructor. Mr Coleman’s chartering work would be paid at the rate of $30.00 per hour. Once he received his Instructor’s Licence, his instructing work would be paid at $35.00 per hour for the first 150 hours and $40.00 per hour thereafter. Initially, there was to be no fee paid for instruction for solo flights, ie. where the instructor observes the student from the ground. However, it was agreed shortly after the arrangement commenced that solo instruction should be paid at the rate of $20.00 per hour.

1. The agreement as to the rate of repayment of Mr Doak’s tuition fees was that Mr Coleman be paid in full for the first 10 hours worked and then that 50% of his wage in excess of 10 hours in each week be deducted and offset against the amount owed for the instruction.

1. The procedure by which the wages were calculated was that Mr Coleman submitted an invoice every Friday morning claiming for the hours he had worked in the previous week. The wages were then calculated by Mrs Doak based upon that invoice and were paid into his account every Friday.

The “Triple M” Job

1. Mr Coleman began his employment on 12 December, 1994. He did some charter work, including bringing another helicopter from Coffs Harbour to Western Australia and also took the tuition to obtain his Instructor’s Licence. He qualified as an instructor in February 1995, and thereafter began instructing students.

1. Mr Doak had a contract with a radio station, “Triple M”, to fly a radio announcer who gave a traffic report every morning. Mr Doak needed to start work at 6.30am every morning to make those flights. Mr Coleman agrees that he raised with Mr Doak the possibility of taking over some of this flying, to relieve the pressure from Mr Doak. Mr Coleman says he proposed he do “a few hours” each week. Mr Doak agreed. Mr Coleman says he then did the “Triple M” flight regularly, flying about a hundred hours over the next 8 or 9 months. Mr Coleman concedes that it was not initially proposed that he be paid for the “Triple M” flights. However, he says he hadn’t expected to conduct all the flights and claims that he could have been earning $35.00 an hour instructing students during the time he was doing the “Triple M” flights. He says the “Triple M” job was boring and that sometimes he didn’t enjoy it. However, he says it was something he couldn’t get out of; he felt if he refused to do it, it could have created problems. He says that he asked Mr Doak on two occasions whether he could be credited some money for the “Triple M” work off his tuition account, but Mr Doak had firmly rebuffed the suggestion.

Allegations of Unsatisfactory Performance

1. Meanwhile, various short comings and irritations arising from Mr Coleman’s conduct and performance at work were coming to Mr Doak’s attention. According to Mr Doak:

   ·Mr Coleman did not meet the dress standard Mr Doak expected of him. At least one and possibly two dress shirts with epaulets were issued to Mr Coleman, together with some polo-type T-shirts. Mr Coleman contends that he was given an inadequate number of shirts and could not therefore wear the issued shirts every day. On balance, I accept that this was the case, though there was no evidence that Mr Coleman ever drew this problem to Mr Doak’s attention. Mr Doak says that Mr Coleman often wore grey “stubbie” type shorts, usually with a T-shirt, and with socks down around his ankles and running shoes. Sometimes he wore a tracksuit. This evidence was broadly supported by Ms Julie Cousens, who had an administrative role with the business, and by some of the students. Clearly, Mr Doak would have preferred that Mr Coleman wear long trousers, but there is no evidence that this was specifically made clear to Mr Coleman at any stage. Mr Doak says he initially raised the issue of Mr Coleman’s casual dress with him in a friendly, half-joking manner.

   ·Mr Coleman used the phones in the office for personal calls. There were two phones; one phone was in the reception area, and the other was in Mr Doak’s office. Ms Cousens also gave evidence of this practice, and the impact it had on the office.

   ·Mr Coleman also had a habit of leaving his office key behind when he left the office so that, if he returned late, he found himself locked out. This meant either Mr Doak or Ms Cousens would have to return to the airfield to let him in, to their personal inconvenience.

   ·Mr Coleman became less likely to do helpful things around the office, such as cleaning up after himself. Again Ms Cousens gave evidence in support of this claim.

2. Mr Doak says he initially raised his displeasure with these shortcomings in general conversation with Mr Coleman, without any formality. This is not surprising, given the nature of their relationship.

1. As time went by Mr Doak also noticed that, while Mr Coleman was “a good safe pilot”, he sometimes showed a tendency to make unnecessary manoeuvres. He described these manoeuvres as “cowboyish”, rather than dangerous.

1. Mr Doak also gave evidence that, over time, Mr Coleman’s dealings with the students became less professional. I accept, based upon the evidence of Mr Doak and Ms Cousens, that Mr Coleman started spending a lot of time away from the office and at the BP refuelling office. Mr Doak had no difficulty with him being at the refuellers when he had no other duties. However, Mr Coleman increasingly began arranging for students to be sent over from the office to meet him at the refuellers rather than walk the 100 metres to the office to meet the students there. He also increasingly concluded his dealings with the students after the flight at the refuellers rather than accompanying them back to the office. Mr Coleman’s briefings and debriefings were sometimes abbreviated or, on occasions, missed altogether. Sometimes Mr Doak felt it was necessary to go and speak with students himself so that they felt they had been “debriefed” after a flight with Mr Coleman. Mr Doak asked Mr Coleman to ensure that at least an hour’s fuel was maintained in the fuel tanks of the helicopter at the end of each instruction flight to ensure that the helicopter would be ready for the next flight without delay. It appears that Mr Coleman sometimes neglected to do this, resulting in the next flight being delayed. On balance, I do not accept the explanation Mr Coleman offered for the failures to refuel. Mr Coleman also sometimes failed to complete student records immediately after the flights, though Mr Doak concedes that this was a failure of which he was also sometimes guilty, and no great reliance was placed on it.

1. In September 1995, Mr Coleman became preoccupied by difficulties with his marriage. On 13 September 1995, Mr Doak paid for an airline ticket so that Mr Coleman could visit his wife, who had travelled interstate. The difficulties continued and manifested themselves in Mr Coleman’s work performance. He began engaging in long and emotional phone calls on the office phones, in circumstances where the calls were disruptive to the office, and on occasion, overheard by students.

October Meeting Between Mr Doak and Mr Coleman

1. Mr Doak says that in October, he believed the situation had reached a critical point. Mr Doak wanted to make sure that Mr Coleman knew where Mr Doak stood. Accordingly, they had a meeting in Mr Doak’s office behind closed doors. Mr Doak had prepared a list of concerns. Mr Doak told Mr Coleman that:

   ·the time Mr Coleman was spending at the refuellers was excessive and unnecessary when he had duties to perform at the office.

   ·Mr Coleman’s habit of leaving the keys behind and, as a consequence, sometimes getting locked out of the office - most recently within the previous two days - was not acceptable, as it inconvenienced the other staff.

   ·Personal phone calls were not to be made from the office. Mr Doak suggested that Mr Coleman use his own mobile phone. When Mr Coleman complained that the mobile phone was too expensive and offered instead to pay for the calls, Mr Doak told him that was not the point. He explained he did not want the line tied up on personal calls. He suggested that if Mr Coleman did not want to use his mobile phone, then he should use the public phone outside the office.

   ·Mr Doak was concerned about Mr Coleman’s general standard of flying and that he “did not have his mind on the job”. Mr Doak told Mr Coleman that if he needed time off he could have it. Mr Coleman responded that he would stop flying if he felt he had a problem.

   ·Mr Coleman’s dress standard needed to improve.

2. Mr Doak also discussed with Mr Coleman his concerns about Mr Coleman’s general demeanour with students, and the quality of his briefings, debriefings, discussion and general interaction with the students.

1. Mr Coleman denies that the meeting took place as Mr Doak described, and denies that he was formally warned of these matters. I prefer Mr Doak’s evidence on this point. Mr Coleman says that, in any event, such warnings should have been in writing.

1. Mr Doak says that following this meeting, the problem of Mr Coleman’s failing to refuel the helicopter improved. There was no evidence of any additional “lockouts”. However, I accept that while Mr Coleman’s dress standard improved for a few days, it then relapsed. I accept that Mr Coleman persisted in using the office phone for private calls, though he began leaving money to cover the calls. I also accept that there was no sustained improvement in the matters going to Mr Coleman’s interaction with the students.

The Termination of Mr Coleman’s Employment

1. About a week to 10 days after this meeting, Mr Doak formed the view that Mr Coleman was so preoccupied with his marital difficulties that he was not able to fly safely. There was no reference to any specific matter which led Mr Doak to come to this view. Mr Coleman denies this view was correct; he says he was “handling it”.

1. Mr Doak says that safety is crucial in helicopter piloting, and that 95% of helicopter accidents are the result of human error. He points out that he has a duty to exercise care and diligence under Section 28BE of the Civil Aviation Act 1988, which requires him, as a holder of a Certificate under the Act, to take all reasonable steps to ensure that every activity covered by the Certificate is done with a reasonable degree of care and diligence, including adequate control and supervision of employees.

1. Mr Doak was aware that Mr Coleman had to spend 2 or 3 weeks with the Naval Reserve at some time in the future. He told Mr Coleman that he wanted him to spend those 2 or 3 weeks with the Naval Reserve as soon as possible and left it for Mr Coleman to organise it. In the meantime, Mr Coleman continued flying.

1. A few days later, Mr Coleman left a handwritten invoice on Mr Doak’s desk. In that invoice, Mr Coleman added up the hours he had spent on the “Triple M” flights and asked that it be deducted at the rate of $35.00 per hour from the tuition fees owed by him to Mr Doak.

1. Mr Doak was angry and upset when he found the invoice on his desk. He says he felt it showed that Mr Coleman no longer had any regard to any arrangements they had made. Mr Doak did not accept that he owed Mr Coleman money for the “Triple M” flights.

1. When Mr Coleman came in to work the next morning, Wednesday 11 October 1995, they had a discussion about the invoice. Mr Doak concedes that he conveyed his anger to Mr Coleman in the course of that discussion.

1. Mr Doak then told Mr Coleman that he was putting to one side the invoice and the amount owed on his fees. He said they were irrelevant. He went on to say Mr Coleman had just shown him that he had no regard for any understanding they had. He said there had been no improvement in relation to the matters which he had raised at the previous meeting. He told Mr Coleman that he was therefore terminating their agreement and that he wanted Mr Coleman to leave immediately.

1. Mr Coleman did not contradict Mr Doak’s account of this final meeting, saying that he did not have much recollection of what happened at the meeting.

Later Complaints

1. Mr Doak has received complaints from students about Mr Coleman, though in most cases he only became aware of the detail of the complaints after Mr Coleman’s dismissal. Mr Doak sought to rely on these complaints as additional justification for the dismissal. The Court heard evidence from three of the students.

1. Each of these students had had experience of instruction with both Mr Coleman and Mr Doak. It is apparent from their evidence that they preferred Mr Doak’s instruction to that of Mr Coleman. That in itself is not surprising, as Mr Doak was a much more experienced instructor and had no doubt profited from that experience. I accept that many students conveyed this preference to Mr Doak before Mr Coleman’s dismissal, in one case to the point of refusing to fly with Mr Coleman again.

1. The common themes of their complaints about Mr Coleman’s instruction was that he tended to make them feel nervous, that he interfered with the flying too much by taking over the controls more readily than Mr Doak would, and that he spent too high a proportion of the time flying the helicopter himself, so that they did not feel they had sufficient opportunity to learn.

1. I accept that Mr Coleman would sometimes attempt to instruct students on matters too early in their instruction and before they were able to cope with them. That appears to have been the case with one of the students, Mr Tim Donnelly. In particular, Mr Donnelly gave evidence of two incidents upon which Mr Doak sought to rely as constituting misconduct.

Allegations of Misconduct

1. The first incident involved Mr Coleman doing what Mr Donnelly described as “360’s”. According to Mr Donnelly, Mr Coleman had the helicopter hovering between 2 and 5 feet from the ground and began to spin it around until Mr Donnelly “didn’t know where the horizon was”. Mr Donnelly said he felt dizzy as a result of this manoeuvre. He couldn’t see the point of it. Mr Doak’s opinion was that such a manoeuvre was dangerous. He said that, had he been aware that it had happened, he would have told Mr Coleman in the strongest terms not to do it again and might even have sacked him on the spot.

1. Mr Doak conceded that the manoeuvre described by Mr Donnelly was similar to that used to demonstrate rotor failure, which failure results in the tail swinging around abruptly, but added that such a spin would never be a 360 degree spin in instruction, and that the manoeuvre should not have been performed until Mr Donnelly was more experienced.

1. I accept that it was an inappropriate manoeuvre and was thus an example of the unsatisfactory performance by Mr Coleman of his duties. However, I accept that, as an inexperienced student, the spin may have seemed more extreme to Mr Donnelly than it in fact was. I am not sufficiently persuaded, on the evidence before me, that it was dangerous and would amount to misconduct on Mr Coleman’s part.

1. Similarly, Mr Donnelly gave evidence of the helicopter taking off in circumstances when there was fog over the windscreen and he and Mr Coleman had to stick their heads out of the window to see. Again, considering the evidence of Mr Donnelly and Mr Coleman, and allowing for Mr Donnelly’s lack of experience, I am not persuaded that visibility was so low as to be dangerous such that taking off in those circumstances constituted misconduct.

Mr Doak’s Claim for Tuition Fees

1. Mr Doak’s entitlement to be repaid the agreed value of the tuition provided by him to Mr Coleman was not challenged in principle by Mr Coleman, subject to arguments as to particular items and to errors in calculation. The parties consented to the Court dealing with the matter under its associated jurisdiction.

1. Mr Coleman contested a Civil Aviation Authority charge of $428.00, but I am satisfied that any other student would have been required to pay that charge and so find that Mr Coleman was also liable to pay it. While Mr Doak appeared to concede at one point in cross-examination that this amount should be deducted, the cross-examination at this point was somewhat confusing, and it was contended in closing by the respondent that the $428.00 figure was correctly calculated.

1. The accounts maintained by Mrs Doak record amounts charged and repaid, though there are clearly some errors of addition. Based on my own calculations by reference to those accounts, the amount remaining due to Mr Doak from Mr Coleman would be $8,390.75. Accordingly, on the evidence before me, I find that the amount remaining due to Mr Doak from Mr Coleman is $8,390.75.

1. The remaining issue is when Mr Doak was entitled to payment of that sum. The agreement concerning the tuition fees provided for repayment at a rate which was related by formula to Mr Coleman’s earnings at Jandakot Helicopters. There was no evidence of any express agreement as to when any outstanding debt was to be repaid if that employment ceased. I am satisfied that it is necessary to imply a term into the contract to give it business efficacy. The appropriate term to be implied is that the right to payment accrued once performance was rendered, subject to the express agreement as to repayment which applied for so long as Mr Coleman was employed by Mr Doak, and that Mr Coleman was entitled to a reasonable period to comply once the obligation to pay in full had accrued.

1. I am satisfied that Mr Coleman had had a reasonable period to comply as at the date of the hearings. I will therefore order that the $8,390.75 be paid.

Mr Coleman’s Claim For Payment for the “Triple M” Work

1. Mr Coleman concedes that under the initial proposition whereby he was to take on some of the “Triple M” work, there was to be no obligation on the part Mr Doak to pay him for that work.

1. The terms of such oral arrangements can be varied. The change in the arrangements for payment for “solo instruction” is an example of such a variation. However, such variations can only take effect by agreement.

1. Mr Doak refused to agree to such a variation. Mr Coleman confirms that Mr Doak had twice firmly rebuffed Mr Coleman’s suggestions that he be credited money for the “Triple M” work off the tuition fee account. If Mr Coleman believed that the “Triple M” arrangement had become something different from that which he had agreed to, then he could have stopped doing the work, or at least stopped doing all of it.

1. Because Mr Coleman said nothing at the time, and only retrospectively claimed payment, he not only purported to unilaterally vary the terms of their contract, but failed even to alert Mr Doak of what he was purporting to do. Mr Doak says he would have preferred to make the flights himself if the alternative was to cost him $35 per hour. He was not given that choice. This is particularly significant given that Mr Coleman was presenting weekly invoices for work done throughout this period.

1. In the circumstances, I find that no obligation arises for Mr Doak to pay Mr Coleman for the work done for “Triple M”. Accordingly, that part of Mr Coleman’s claim brought in the associated jurisdiction of the Court is dismissed..

Whether There was a Valid Reason for Termination

1. Section 170EDA(1)(a) confers the onus on the employer to prove that there was a valid reason for the termination of the employee’s employment connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

1. Mr Doak contends that there were a number of factors connected with Mr Coleman’s capacity or conduct which all “fed into” the reason for Mr Coleman’s dismissal. He contends that he raised those matters with Mr Coleman during the October Meeting and that Mr Coleman was dismissed because, in most respects, his performance had not subsequently improved.

1. A special difficulty arises in this application. It would be artificial to have no regard to the effect of the friendship between Mr Doak and Mr Coleman upon their employment relationship. It is clear on the evidence that, for most of Mr Coleman’s period of employment, the men interacted as friends rather than as employer and employee. I accept that Mr Doak gave Mr Coleman credit for his tuition because of their friendship, rather than mere commercial considerations. Similarly, when Mr Doak had difficulties with Mr Coleman’s performance, they were initially raised informally in the course of conversation, and sometimes in a light-hearted manner. Mr Coleman initially went into the “Triple M” arrangement at least partly to help Mr Doak out, and he then felt unable to extricate himself from the arrangement without causing problems in their relationship. When Mr Coleman began to have marital difficulties, Mr Doak gave him time off and advanced money for his airfare to help him resolve them.

1. However, by October 1995, Mr Doak’s perception of Mr Coleman’s performance and capacity was such that Mr Coleman’s continued employment had come under threat in Mr Doak’s mind, notwithstanding their friendship.

1. Mr Doak therefore conducted a formal meeting with Mr Coleman. He says the meeting’s purpose was to ensure that Mr Coleman knew where Mr Doak stood. In the course of the meeting, Mr Doak warned Mr Coleman about a list of perceived shortcomings. Although Mr Coleman denies that he was warned about many of these matters, I have accepted Mr Doak’s account of what occurred at this meeting.

1. I have accepted that the problems with Mr Coleman’s performance persisted after the meeting, with some exceptions. In addition, Mr Doak came to the view about a week after the meeting that Mr Coleman had become so preoccupied with his marital difficulties that he was no longer able to fly safely.

1. It was this combination of circumstances, he says, which led him to dismiss Mr Coleman.

1. I am satisfied that some of the continued shortcomings in Mr Coleman’s performance were such that they constitute a valid reason for dismissal connected with Mr Coleman’s capacity or conduct.

1. The instances of unsatisfactory performance, such as:

   ·Mr Coleman’s general demeanour with students;

   ·the unsatisfactory quality of his briefings and debriefings, including his intermittent failure to give them, and;

   ·the excessive time he was spending at the refuellers when he had duties to perform at the office

could constitute a valid reason for termination.

1. Similarly, the persistent use of the office phones for personal phone calls where there was a clearly established and consistently applied policy which was known to Mr Coleman that they not be so used could constitute a valid reason for termination.

1. However, while I accept that presentation and professionalism are important where clients are paying $275 per hour for tuition, I am not satisfied that the standard of dress required of Mr Coleman was communicated to him with sufficient specificity to render his failure to meet those standards a valid reason for termination.

1. I draw a distinction between Mr Doak’s disapproval of Mr Coleman’s style of flying  and Mr Doak’s eventual concerns about safety, when he became convinced that Mr Coleman’s “mind was not on the job”.

1. I was not satisfied on the evidence before me that any flamboyant aspects of Mr Coleman’s flying style interfered with the quality of his instruction of the students. I do not find therefore that that was a valid reason for termination.

1. Mr Doak’s judgment that it was unsafe to continue to permit Mr Coleman to fly, which Mr Doak attributed to Mr Coleman’s “mind not being on the job” as a result of his marital difficulties, raises different issues. I accept that Mr Doak genuinely and reasonably formed the view that there was an inability on the part of Mr Coleman to perform his obligations under the employment contract. However, the problem might well have been a temporary problem. Was this apparently temporary problem a valid reason for Mr Doak to invoke the permanent solution of dismissal? The position might be thought to be analogous to an employee’s temporary inability to perform due to illness or injury, to which Section 170DF of the Act has application. The option of the granting of leave, whether paid or unpaid, was clearly more appropriate in these circumstances, and I am satisfied that the decision to dismiss was harsh and unreasonable for the purposes of Section 170DE(2). I am also of the view that, because of the apparently temporary nature of the incapacity, it did not constitute a valid reason for dismissal in these circumstances. Mr Coleman’s incapacity to fly safely would become a valid reason for dismissal if it became apparent that it would not resolve itself within a reasonable time.

1. I do not need, for the purposes of this decision, to consider those aspects of unsatisfactory performance the detail of which came to Mr Doak’s attention after the dismissal.

Whether the Termination was Harsh, Unjust or Unreasonable

1. The next matter for determination is whether the termination is harsh, unjust or unreasonable.

1. Section 170EDA(1)(b) confers the onus on the employee to prove that, because the termination is harsh, unjust or unreasonable, there was not a valid reason for the termination.

1. An issue arising in the circumstances of this dismissal was whether Mr Coleman had been given adequate warning that his performance and conduct were deficient, so that he had a proper opportunity to rectify the situation.

1. I accept that the October meeting was an attempt on Mr Doak’s part to communicate with Mr Coleman on a more formal basis, as employer and employee. I accept Mr Doak’s account of what occurred at this meeting. However, given the nature of their interactions up to that point, and given the stress which Mr Coleman was under at the time, I am not satisfied that the meeting would have had the outcome of putting Mr Coleman on notice that a failure by him to improve his performance in the areas discussed would potentially have the immediate effect of putting his job in jeopardy. Mr Doak says he used words like, “it’s not acceptable that you continue on if you don’t improve”. Even allowing for Mr Doak’s efforts to introduce greater formality than usual into the meeting, I am satisfied that words of the sort spoken by Mr Doak in the context of a much longer discussion were not understood by Mr Coleman to mean that his continued employment was at risk.

1. Mr Coleman claims the warnings, if they were given, should have been in writing. There is no absolute requirement that warnings be in writing. An oral warning may, in the circumstances of a particular case, be completely effective. However, in this case, given the circumstances leading up to the warning and given the type of language employed, I accept that the oral warning was not effective. A written warning would have conveyed still greater formality, and would have more clearly conveyed Mr Doak’s intentions to Mr Coleman.

1. In view of Mr Doak’s failure to provide an adequate warning to Mr Coleman, I therefore find that the termination of Mr Coleman’s employment was in breach of Section 170DE(2) of the Act.

Whether the Employee had the Opportunity to Defend Himself Against the Allegations Made.

1. I also find that, in the heated circumstances of the meeting at which Mr Doak advised Mr Coleman of his dismissal, Mr Coleman was not given an opportunity to defend himself against Mr Doak’s allegation that there had been no improvement in relation to the matters which had been raised at the previous meeting. There was therefore also a breach of Section 170DC of the Act.

The Significance of the Invoice

1. Mr Coleman alleges that the reason for his dismissal was his presentation of the invoice seeking what he, albeit mistakenly, believed was an entitlement to payment, and that this was not a valid reason for the purposes of Section 170DE(1).

1. Mr Doak’s response is that the invoice was merely the “straw that broke the camel’s back”, but that it wasn’t the main problem.

1. It is noteworthy in this context that, when Mr Doak came to the view after the October meeting that Mr Coleman was no longer able to fly safely, his initial reaction was not to dismiss Mr Coleman, but rather to give him time off, by bringing forward his Navy Reserve course.

1. The only thing which changed between Mr Doak’s initial reaction and his eventual decision to dismiss Mr Coleman was the presentation of the invoice by Mr Coleman.

1. Mr Doak says he felt the invoice showed that Mr Coleman no longer had any regard to any arrangements they had made. Mr Doak regarded the friendship between the men as the foundation of those arrangements. While he did not put it in these terms, Mr Doak’s evidence indicated that whereas he had up to that time reacted to Mr Coleman’s behaviour and performance with a leniency arising from their friendship, Mr Doak felt no further obligation to extend leniency after Mr Coleman presented the invoice. He therefore felt free to treat Mr Coleman as he would any other employee with Mr Coleman’s shortcomings. It was on that basis that Mr Doak decided to dismiss Mr Coleman.

1. However, as I have already found, the dismissal was in breach of the Act even if Mr Doak’s explanation of his motives were accepted.

2. I note that it was in Mr Doak’s financial interests to keep the employment relationship on foot. I also note his evidence that there was some delay before a replacement instructor could be engaged. Mr Doak’s decision to dismiss Mr Coleman might therefore be seen to have been to his detriment.

Remedy

1. In assessing compensation, I have not accepted the argument of the Respondent that, in considering “all the circumstances of the case”, as I am required to do for the purposes of applying Section 170EE, I should take into account the fact that Mr Doak had done Mr Coleman a “favour”, by employing him, and that Mr Coleman had acquired valuable qualifications, skills and experience in the course of his employment. As I have found, the only favour done by Mr Doak in employing Mr Coleman was the extension of credit, and my order that the money be repaid neutralises that issue. To the extent that Mr Coleman acquired qualifications, skills and experience, Mr Doak received tuition fees and service.

1. However, in assessing compensation, I must have regard to what would have happened had there been no breach of the Act. In the circumstances of this case, Mr Coleman is likely to have been required to take leave, until he had sufficiently recovered from his personal stress to safely resume instructing. This leave would probably have been leave without pay. It is likely that the incidents of unsatisfactory performance in relation to Mr Donnelly may have come to Mr Doak’s attention and have been the basis for further disciplinary action. Similarly, further warnings are likely to have been issued in relation to some of the matters which were the subject of the October meeting and had not improved.

1. I have therefore taken into account the possibility that the employment may well have soon been terminated in accordance with the Act in any event, and have therefore restricted the compensation awarded to an amount equal to 2 months of Mr Coleman’s average income.

1. The applicant’s contention that he earned on average about $700.00 gross per week was not challenged. Accordingly, I will order that an amount of $5,600 be paid in compensation pursuant to Section 170EE.

I certify that this and the preceding 22 pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.

Associate:
Dated:

APPEARANCES

Counsel appearing for the applicant:       Mr I.A.Wilson

Solicitors for the applicant:  Wilson & Rogers

Counsel appearing for the respondent:               Mr G.M. Jordan

Solicitors for the respondent:                   Pearman Grantham

Dates of Hearing:  22 & 23 April 1996

Date of Judgment:  10 July 1996