Dr Heinrich Kestermann v RAP Investments Pty Limited trading as Mandalong Studs

[2013] FWC 6547

[2013] FWC 6547

FAIR WORK COMMISSION

DECISION

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

Dr Heinrich Kestermann
v
RAP Investments Pty Limited trading as Mandalong Studs
(U2013/6453)

COMMISSIONER CARGILL SYDNEY, 17 SEPTEMBER 2013

Termination of employment.

[1] This decision arises from an application by Dr H Kestermann (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by RAP Investments Pty Limited trading as Mandalong Studs (the respondent or Mandalong). The applicant’s dismissal occurred on 29 January 2013 and his application for relief was lodged with the Fair Work Commission (FWC) on 12 February 2013.

[2] The matter was dealt with by a Conciliator on 11 March 2013 but did not settle. It was heard by me on 1 July and 2 August 2013. The applicant represented himself. The respondent was represented by Mr Lawrence of counsel who appeared with permission.

[3] The applicant gave evidence. He provided a witness statement dated 24 April 2013 which was marked Exhibit Applicant 1. A further statement dated 14 June 2013 was marked Exhibit Applicant 2. The applicant’s oral testimony is at PN 402-1097 of Transcript.

[4] The following witnesses gave evidence on behalf of the respondent:

Mr R. Allan Owner of Mamre Produce. Although an order requiring Mr Allan to attend and give evidence was issued at the request of the applicant, his evidence was really in support of the respondent’s case. A letter in the nature of a statement dated 19 April 2013 was marked Exhibit Respondent 1. Mr Allan’s oral testimony is at PN 197-386 of Transcript;

Mr R. Pisaturo Managing Director of the respondent. He provided two witness statements. The first, dated 24 May 2013, was marked Exhibit Respondent 4. The second, dated 1 July 2013, was marked Exhibit Respondent 5. Mr Pisaturo’s oral testimony is at PN1105-1404 of Transcript;

Ms S. Wilson She is Mr Pisaturo’s secretary. Ms Wilson provided two witness statements. The first, dated 17 May 2013, was marked Exhibit Respondent 6 and the second, undated, was marked Exhibit Respondent 7. Ms Wilson’s oral testimony is at PN 1495-1710 of Transcript.

FACTS AND EVIDENCE

[5] The reasons for the applicant’s dismissal are said to be his unsatisfactory work performance, poor attitude, failure to comply with directions, damage to property, truancy and theft. The following facts and evidence should be considered in that context.

[6] The respondent conducts a cattle breeding business at Mandalong Park, a property at Erskine Park in western Sydney. It also keeps racehorses at the property. There are a number of residential cottages on the site one of which was occupied by the applicant during the period of his employment. The respondent has at all relevant times employed fewer than 15 employees. At the time of the applicant’s dismissal it employed five employees.

[7] The applicant commenced his employment with Mr Pisaturo trading as Mandalong Studs in September 2009. From 1 July 2010 the applicant was employed by the respondent as named in paragraph 1 above. The applicant was employed as a handy person and his duties included looking after the lawns, carrying out general maintenance, keeping an eye on the irrigation system including fixing any leaks, feeding the horses and general labouring. The applicant was employed under Mr Pisaturo’s supervision. He was employed as a casual employee.

[8] The applicant agreed that Mr Pisaturo had spoken to him about the importance of Mandalong’s appearance. He agreed that his duties of looking after the lawns and using the whipper snipper were high priorities for Mr Pisaturo. The applicant’s evidence is that, after a period of time, Mr Pisaturo set different priorities for him with an emphasis on maintaining the irrigation system especially to ensure that water usage was reduced. It is the applicant’s evidence that he didn’t have sufficient time in which to carry out all of his duties.

[9] It is Mr Pisaturo’s evidence that the applicant did not satisfactorily complete his duties which caused Mandalong to look untidy and neglected. He says there were occasions during which the applicant had not used the whipper snipper for many months. Mr Pisaturo’s evidence is that the applicant refused to cut the grass around one of the cottages which was near the front of the property and which consequently needed to look particularly well maintained. The applicant denied that he refused to mow around this cottage.

[10] It is Mr Pisaturo’s evidence that, for about 12 months prior to the applicant’s dismissal, he had spoken to the applicant almost every week about work that he had not done including a failure to fix water leaks, not cutting and maintaining the grass or weeding. The applicant agrees that Mr Pisaturo spoke to him on an informal basis during this period asking him to lift his standards and giving him directions about his duties. The applicant denies that these discussions were held as often as stated by Mr Pisaturo.

[11] It is Mr Pisaturo’s evidence that the applicant’s performance improved for a short period each time he counselled him but that it then returned to unsatisfactory levels.

[12] The evidence of Ms Wilson is that the applicant struggled to maintain Mandalong to its usual standard. Her evidence is that, while the applicant was responsible for its maintenance, the property looked the worst she had ever seen. Ms Wilson’s evidence is that other residents used to complain to her about the standard of the applicant’s work. She says that, when she tried to mention these complaints to the applicant, he made it clear that he wasn’t going to receive any instructions from her.

[13] Ms Wilson’s evidence is that she had many conversations with Mr Pisaturo during which he would complain that the applicant was not doing what he was supposed to. She urged Mr Pisaturo to speak to the applicant as he would not listen to anyone else. Ms Wilson’s evidence is that Mr Pisaturo would leave the office and, on his return, tell her that he had spoken to the applicant again.

[14] On 28 July 2012 there was an exchange of emails between the applicant and Mr Pisaturo, pages 6 and 7 in Exhibit Applicant 1. Although the main subjects of the emails were the applicant’s rate of pay and his dog, there is some mention of his performance. Mr Pisaturo states that the maintenance of the farm was going down and down especially in relation to looking after the fences. The applicant responds that regarding his performance he leaves it to Mr Pisaturo’s judgement. Mr Pisaturo responds that, if the applicant is not happy with his job, he should leave as soon as possible.

[15] It is Mr Pisaturo’s evidence that the applicant also failed to satisfactorily compete his duties concerning the reporting of and fixing leaks in the irrigation system. He says this resulted in a cost of many thousands of dollars in water charges. It is also Mr Pisaturo’s evidence that the applicant failed to properly maintain the equipment he used including the ride-on mower.

[16] The applicant denies that he didn’t properly attend to fixing water leaks and his evidence is that all of the equipment for which he was responsible had been serviced regularly. The applicant provided copies of invoices for repairs to several pieces of equipment belonging to Mandalong which was done during the period 13 January 2011 to 14 September 2012, Exhibit Applicant 3.

[17] It is Mr Pisaturo’s evidence that he received numerous complaints from staff and contractors concerning the applicant’s attitude and manner towards them. Some of these complaints alleged that the applicant had intimidated the complainant. Mr Pisaturo attached statements from a number of persons to his own witness statement, Exhibit Respondent 4. However, with the exception of Ms Wilson, none of those who made the statements was called to give evidence. The applicant objected to their statements being put into evidence and I declined to receive them.

[18] It is Ms Wilson’s evidence that she observed the applicant causing distress to one of the elderly residents at Mandalong and displaying an aggressive attitude towards one of the other employees. Ms Wilson’s evidence is that, on one occasion in December 2012, the applicant burst into her office and abused her in a raised voice. She was upset at being spoken to in this fashion.

[19] It is Mr Pisaturo’s evidence that the applicant’s dog attacked livestock at Mandalong. He had been informed that the dog also killed wild ducks and farm cats at the property. It is also Mr Pisaturo’s evidence that he was told that the dog had attacked one of the other employees and Mr Pisaturo’s son. The applicant agrees that he was directed to lock up his dog. He denies that he let the dog roam freely while Mr Pisaturo was absent from the property and also denies that the dog chased visitors, employees or stock.

[20] Mr Pisaturo gives evidence that the applicant took periods of leave of up to three weeks without prior notice. He also alleges that the applicant left the property during working hours without permission and rarely worked a full week during the period of his employment. The applicant’s evidence is that he took approximately four weeks leave in the middle of each year. He provided a statement from his airline frequent flyer account to support this evidence. The applicant also noted that, because he was a casual, he was not paid for his leave.

[21] The applicant’s evidence is that, on 31 August 2012, he joined The Australian Workers’ Union (AWU).

[22] It is Mr Pisaturo’s evidence that he again counselled the applicant about his performance just prior to 23 January 2013. The applicant agrees that Mr Pisaturo spoke to him around this time about things that needed to be done at Mandalong. On 23 January Mr Pisaturo received an email from the applicant in response to their discussion, Annexure C to Exhibit Respondent 4, Annexure A to Exhibit Respondent 7 and pages 4 and 5 in Exhibit Applicant 1. In the email the applicant acknowledged that he “may not use the whipper snipper as often as I should”. He went on to state that he had to set priorities and was doing more work than when there had been four people employed at Mandalong. The applicant asked to be treated with respect and dignity.

[23] It is the applicant’s evidence that it had been almost impossible to have a meaningful dialogue with Mr Pisaturo because of the latter’s severe hearing impairment. The applicant says that his use of emails was an attempt to keep discussions rational and constructive.

[24] Mr Pisaturo’s evidence is that he called the applicant into his office on 24 January to discuss the email of the previous day and the applicant’s performance. He says that, during this meeting, he told the applicant that the work was not being done and that, unless it was done, the applicant would have to go. Mr Pisaturo says that the work he was discussing with the applicant was cutting the lawns.

[25] It is Ms Wilson’s evidence that, on 24 January, Mr Pisaturo showed her the email he had received from the applicant. He told her to call the applicant in as he needed to speak to him. Ms Wilson’s evidence is that the applicant and Mr Pisaturo then had a conversation in the tea room at the office. She overheard part of the conversation. It is her evidence that Mr Pisaturo told the applicant that he wasn’t doing what the job required and that, if he wasn’t happy to do the job, perhaps he could go and find another.

[26] The applicant denies being called into the office or having any discussion about his work performance on 24 January 2013.

[27] Mr Pisaturo was then absent from Mandalong for a few days. It is his evidence that, when he returned on 27 January, he observed that only half of the grass had been cut and the whipper snipper had not been used. The applicant’s evidence is that he cut half of the grass on 28 January and intended to finish that task on the following day then do the whipper snippering after that.

[28] At 10.30pm on 28 January the applicant sent Mr Pisaturo an email, Annexure N to Exhibit Respondent 4. In that email the applicant informed Mr Pisaturo that, although he had been trying to reach a compromise with him about his employment status and Mr Pisaturo’s unreasonable attitude, it was now “time for action”. The applicant informed Mr Pisaturo that he needed some time off to finalise proceedings against the respondent and also told him that he had joined the AWU.

[29] On 29 January Mr Pisaturo and the applicant met in Mr Pisaturo’s office. Ms Wilson was also present. It is Mr Pisaturo’s evidence that he asked the applicant why the grass had not been cut or the whipper snipper used. The applicant told him that he had to fix a water leak as that was Mr Pisaturo’s priority. They inspected what the applicant had done. Mr Pisaturo’s evidence is that the leak had not been fixed. He then told the applicant that he “had better leave. Go find a new job”. The applicant informed him that he could only be dismissed in writing.

[30] It is Mr Pisaturo’s evidence that he then asked Ms Wilson to type up a letter of termination which he gave to the applicant. There are several copies of that letter in evidence: Exhibit Respondent 3; Annexure A to Exhibit Respondent 5; and, Annexure B to Exhibit Respondent 7. It is also attached to the applicant’s submissions. The letter is in the following terms:

“I hereby terminate your casual employment as from today 29/01/2013 as your services are no longer required.

You will be paid one extra week to the 05/02/13 to be paid in to your nominate bank account.

You may remain if you require in my supplied accommodation for a further two (2) weeks, however to be vacated no later than 12/02/13” (salutations omitted)

[31] Ms Wilson’s evidence is that, on 29 January, she overheard Mr Pisaturo asking the applicant why the lawns were still not done to which the applicant replied that he had to fix a water leak. She says that Mr Pisaturo then asked the applicant why the trimming had not been done for months. Both gentlemen left the office. Ms Wilson’s evidence is that, upon their return, Mr Pisaturo told the applicant that he was unhappy with the standard of work and that the applicant’s attitude made it difficult to keep him on.

[32] During cross-examination Ms Wilson testified that the discussion between the applicant and Mr Pisaturo became very heated and she thought that the applicant was being threatening towards Mr Pisaturo. She was especially concerned for Mr Pisaturo because of his age. Ms Wilson intervened to bring an end to the discussion as she believed it was becoming very emotional and aggressive.

[33] The applicant denies that, during this meeting on 29 January, Mr Pisaturo asked for any explanation as to why the grass mowing and whipper snippering had not been completed. He says that the discussion about, and inspection of the water leak, happened during the previous week. The applicant’s evidence is that Mr Pisaturo did not give him a chance to speak but simply told him to go as he had had enough. The applicant says that Mr Pisaturo told him to “get out you don’t need a letter.”

[34] The applicant contacted the AWU. His evidence is that he didn’t receive the letter of termination until after the intervention of the union. An AWU representative telephoned Mr Pisaturo and it is Mr Pisaturo’s evidence that the union representative told him that he “had better” give the applicant an additional two weeks’ notice. Mr Pisaturo agreed to do that. The applicant agreed that he was paid a total of three weeks’ notice and permitted to remain in the cottage at Mandalong for two weeks following his dismissal.

[35] At some point after the applicant’s dismissal Mr Allan told Mr Pisaturo that the applicant had used Mandalong’s account to buy dog food for his own dog. It is Mr Pisaturo’s evidence that this was the first time that he was informed of this. The applicant had been authorised to make purchases at Mamre Produce for Mandalong and to put those purchases on Mandalong’s account but was not authorised to put his own purchases on the account.

[36] Mr Allan’s evidence is that, in July 2010, Mr Pisaturo purchased two 20kg bags of dog food and commented that it should keep the dogs going for a while. Mr Allan says that, the following day, the applicant attended the store and also ordered two 20kg bags. Mr Allan mentioned Mr Pisaturo’s purchase and the applicant told him to put one bag on Mandalong’s account and he paid for the other for his own dog.

[37] Mr Allan provided a document he had prepared which shows the dog food sales on Mandalong’s account for the period January 2009 to June 2013, Exhibit Respondent 2. The document sets out the dates of purchase, invoice numbers, quantities and the name of the person who signed for the goods. The total dog food purchase for 2009 was 156kg, for 2010 it was 640kg, for 2011 it was 560kg, for 2012 it was 478kg and for the period January to June 2013 it was 140kg.

[38] The applicant vehemently denies the allegation concerning the dog food. He agrees that he regularly bought dog food at Mamre Produce but says that the goods for Mandalong went on the account and he paid cash for the items for his own dog.

APPLICANT’S SUBMISSIONS

[39] The applicant provided written submissions dated 22 April 2013. He also made oral submissions.

[40] The applicant stated that he had been looking for meaningful activity in his retirement when he found, and obtained, the position at Mandalong. Although he was not a farmhand by profession, he had tried his very best to succeed in the job. He took ownership of the job and achieved very good results. The applicant stated that he had been very busy, with increasing responsibilities, and had to work independently and set his own priorities as Mr Pisaturo was frequently overseas or at his city apartment. The applicant stated that, during the whole period of his employment, he had worked diligently for 37 hours a week.

[41] The applicant referred to Mr Pisaturo’s severe hearing impairment and submitted that, from time to time, he had displayed an impulsive attitude. The applicant submitted that there had been no formal assessments or reviews of his performance however he had promptly followed all instructions and had received positive feedback. He stated that he and Mr Pisaturo had developed a pleasant personal relationship and that, until the end of 2012, he had enjoyed his time at Mandalong.

[42] The applicant stated that Mr Pisturo’s attitude towards him had changed drastically in early 2013. He became irritated and was unreasonably critical of the applicant’s performance. Mr Pisaturo also made critical remarks about the applicant’s performance in the presence of a new employee. The applicant submitted that he had never been provided with any opportunity to improve his performance.

[43] The applicant submitted that, in view of his age, he had not intended to remain at Mandalong “forever” but had planned to stay until February 2014. The applicant submitted that he had been extremely shocked by his dismissal and had been placed in a very difficult situation. He had been thrown from a happy, meaningful job into “doing nothing”. Despite his best efforts he has been unable to find other employment which he believes is because of his age. The applicant stated that he had been providing financial assistance to his family overseas including support for two seriously ill sisters. As a result of his dismissal he is unable to continue with that arrangement.

[44] The applicant submitted that he had been receiving counselling to deal with the stress caused by his dismissal. He attached to his submissions a letter from Advantage Psychology confirming that he had attended sessions with them.

[45] The applicant submitted that there was no valid reason for his dismissal. He suggested that the real reason for the dismissal was that Mr Pisaturo wanted his grandson to live and work with him at Mandalong. The applicant submitted that his dismissal was harsh, unjust, unreasonable and unfair and that his case warranted a very significant remedy. The applicant is not seeking reinstatement. He stated that he doubted Mr Pisaturo’s honesty and could not work with him again.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[46] A written outline of submissions on behalf of the respondent was provided prior to the hearing on 1 July. Mr Lawrence also made oral submissions.

[47] Mr Lawrence submitted that the applicant had been an unreliable witness who had been argumentative, inconsistent and confused in his evidence. Mr Lawrence submitted that the applicant had refused to make reasonable concessions, had been less than frank and that much of his evidence had been self-serving or misleading. In contrast Mr Pisaturo had been frank and honest in his testimony which had also been consistent with the objective facts. Mr Lawrence submitted that Ms Wilson was a reliable witness as was Mr Allan. He submitted that the evidence of the respondent’s witnesses should be preferred to that of the applicant.

[48] It is submitted that there were valid reasons for the applicant’s dismissal. The applicant had failed to properly undertake the duties for which he was principally employed and, at times, had failed to undertake them at all. He performed his duties in an unsatisfactory manner, harassed other employees and contractors, failed to follow reasonable instructions, caused damage to Mandalong, presented an ongoing risk to the property, was regularly truant from his employment and stole from his employer.

[49] It is submitted that, in effecting the applicant’s dismissal, the respondent had complied with the Small Business Fair Dismissal Code which applies to it. It is noted that the termination was not a summary dismissal and is further noted that the respondent had given the applicant reasons why he was at risk of being dismissed, had advised him of that risk if he did not improve and had provided him with the opportunity to improve. Mr Lawrence submitted that, in the circumstances, the absence of a written warning was not important.

[50] The respondent submits that the emails of 28 July 2012 and 23 and 28 January 2013 demonstrated that the applicant had been well aware that the matters in respect of which he had been counselled were of such a nature that would lead to his dismissal if he did not change his behaviour. It is also submitted that, despite this awareness, the application failed to modify his behaviour or improve his performance.

[51] Mr Lawrence made several submissions concerning the alleged theft of the dog food by the applicant. He submitted that the applicant had agreed that he had not been authorised to use the Mandalong account for his own purchases. Further, the applicant had not challenged Exhibit Respondent 2 and had failed to provide a proper explanation for the spike in purchases of dog food during the period of his employment.

[52] Mr Lawrence submitted that, in the circumstances, it was not unreasonable to conclude that the applicant had engaged in misconduct. He referred to the decision of the High Court of Australia in Concut Pty Ltd v Worrell [2000] HCA 64 at paragraphs 27, 29, 38 and 51 as to an employer’s ability to rely upon misconduct which is not discovered until after dismissal in order to resist an application in respect of that dismissal.

[53] Mr Lawrence submitted that the applicant’s dismissal was not harsh, unjust or unreasonable and consequently, not unfair. He submitted that, in the event that I found otherwise, it should be noted that the applicant had been paid three weeks’ pay in lieu of notice which was more than adequate and reasonable in the circumstances. Mr Lawrence noted that the applicant did not seek reinstatement and submitted that it would be unworkable.

CONCLUSIONS

[54] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits are considered. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[55] As will have been apparent from paragraph 1 of this decision the application was made within the 21 day time period required in section 394(2). There is no suggestion that the applicant was not a person protected from unfair dismissal or that the dismissal was due to redundancy, whether genuine or otherwise.

[56] There is however a question as to whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code). Section 388(2) of the Act provides that a person’s dismissal was consistent with the Code if, at the relevant time, the employer was a small business employer and that employer complied with the Code in relation to the dismissal. The respondent is a small business employer within the terms of section 23 of the Act.

[57] The termination of the applicant’s employment did not constitute summary dismissal. Consequently the relevant parts of the Code which need to be considered are as follows:

“Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[58] I accept that Mr Pisaturo had concerns about various aspects of the applicant’s performance specifically his failure to maintain Mandalong to the standard expected by Mr Pisaturo. In my view Mr Pisaturo was entitled to set the standard for the maintenance and appearance of his property. I also accept that Mr Pisaturo had raised his concerns with the applicant from time to time.

[59] However I am not satisfied that the concerns were properly put to the applicant such that he understood that he was at risk of being dismissed. In the email exchange of 28 July 2012 Mr Pisaturo informed the applicant that, if he was not happy with his job, he should leave. That does not suggest dismissal but resignation.

[60] I accept the evidence of Mr Pisaturo and Ms Wilson that there was a discussion between the applicant and Mr Pisaturo on 24 January 2013. As noted in paragraph 25 above, Ms Wilson’s evidence is that Mr Pisaturo told the applicant that, if he wasn’t happy to do the job, perhaps he could find another. Again that suggests resignation not dismissal. I note that Mr Pisaturo’s evidence of what he said to the applicant was more akin to suggesting that dismissal was a possibility. However I am more inclined to accept Ms Wilson’s recollection of what was said rather than that of Mr Pisaturo. She was a bystander to the conversation, not caught up in the emotion of the discussion and, in my view, likely to have the more accurate recall of the events.

[61] I note that there is no evidence that the applicant had ever been informed of the other reasons relied on by the respondent such as damage to property and truancy. The issue concerning the dog food did not come to Mr Pisaturo’s attention until after the dismissal so could not have been put to the applicant prior to that event.

[62] I have concluded that the applicant’s dismissal was not consistent with the Code. I now turn to the provisions of section 385 of the Act. That section provides that a person has been unfairly dismissed if FWC is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[63] Paragraph (a) is clearly met. I have found that the dismissal was not consistent with the Code. Paragraph (d) is not relevant in this matter. Consequently it is to paragraph (b) that my attention must be directed. In considering whether the dismissal of the applicant was harsh, unjust or unreasonable it is relevant to refer to the comments of McHugh and Gummow JJ in Byrne and Frew v Australian Airlines Pty Ltd (1995) 61 IR 32 at 72:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[64] Section 387 of the Act sets out factors which must be taken into account by FWC in deciding whether a dismissal is harsh, unjust or unreasonable. Those factors are as follows:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which 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; and

(h) any other matters that FWC considers relevant.”

[65] I shall address each of these factors in turn.

[66] The immediate reason for the termination of the applicant’s employment was his failure to carry out his duties in respect of the maintenance of Mandalong to the standard required and as directed by Mr Pisaturo. As stated in paragraph 58 above I consider that Mr Pisaturo was entitled to set this standard. In circumstances where the maintenance of the property especially the mowing of the lawns and the trimming of the edges was one of the applicant’s principal duties and responsibilities, his failings in this regard amount to a valid reason for his dismissal.

[67] The respondent also relies on several other factors as the basis for the dismissal including the allegations of damage to property, truancy and misuse of the account at Mamre Produce such as to amount to theft. As I have already found that there was a valid reason for the dismissal, strictly speaking, I do not need to consider these factors. However it should be noted that I consider that there is insufficient evidence before me on which I could reach safe conclusions on these allegations.

[68] The applicant was notified of the reason for his dismissal during the meeting on 29 January 2013. However the reason was given to him at the same time that he was informed of the termination of his employment. I am not satisfied that the applicant was provided with a proper opportunity to respond.

[69] There was no unreasonable refusal to allow the applicant to have a support person present at the meeting of 29 January.

[70] The applicant had been previously warned about his performance, however as I have already noted, I do not accept that those warnings had ever properly suggested that his employment was at risk.

[71] The respondent is a small business. In effect Mr Pisaturo is the business. There is nothing to suggest he accessed any human resource management specialists in relation to the dismissal. Clearly these factors have impacted on the procedures followed in effecting the dismissal.

[72] One of the bases for the applicant’s complaint is that he did not receive any formal performance assessments during the period of his employment and did not receive anything in writing until the time of his dismissal. In many, if not most, employment arrangements it is preferable for serious performance concerns to be reduced to writing so that both parties are aware of the particular issue and what is required to address it. However, the absence of anything in writing is understandable in the context of the size and nature of the business in this particular case.

[73] I consider the fact that the applicant was provided with three weeks’ pay in lieu of notice when, strictly speaking, as a casual he was not entitled to such an amount, to be a relevant matter. I note that two-thirds of this amount was paid consequent upon the intervention of the applicant’s union on his behalf. The applicant was also permitted to remain in his cottage at Mandalong for two weeks following his dismissal.

[74] In all of the circumstances and having taken account of each of the factors in section 387 and my findings thereon I have determined, on balance, that the termination of the applicant’s employment was harsh. It follows from this determination and the other matters addressed in paragraphs 62 and 63 above, that the applicant’s dismissal was unfair.

[75] Sections 390, 391 and 392 of the Act deal with remedies for unfair dismissals. I am satisfied that the provisions of section 390(1) and (2) have been met in this case. Subsection (3) provides that an order for compensation must not be made unless FWA is satisfied that reinstatement is inappropriate.

[76] The applicant is not seeking reinstatement nor do I consider that it would be in any way appropriate in the circumstances.

[77] Pursuant to section 390(3)(b) I consider that, in all of the circumstances of this case, it is appropriate to make an order for the payment of compensation. I confirm that such an order is in lieu of reinstatement of the applicant. Section 392(2) requires that, in determining an amount for the purposes of such an order, FWC must take into account all the circumstances of the case including:

“(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.”

[78] There is no evidence before me as to the effect of any order on the viability of the respondent’s enterprise. There is nothing to suggest that I should adjust the order which I propose to make because of the effect it may have on the viability of Mandalong.

[79] The applicant had over three years’ service with the respondent and its predecessor. This supports the making of an order for compensation.

[80] There is always a speculative element involved in assessing the remuneration that a person would have or would have been likely to have received had it not been for their dismissal. In view of the escalating degree of Mr Pisaturo’s dissatisfaction with the applicant’s performance I consider that he would not have remained in the respondent’s employment for very much longer. I estimate that the continued period of employment would have been three weeks.

[81] I accept that the applicant has attempted to mitigate his loss. I agree that his age is probably a factor in his lack of success so far.

[82] Although there was no evidence to this effect it would appear that the applicant has not been in receipt of any remuneration in terms of paragraph (e) since the dismissal. There is nothing before me on which I can make any meaningful finding in terms of paragraph (f). I do not consider that there are any other relevant factors under paragraph (g).

[83] Having taken all of these matters into account as well as all of the circumstances of the case I have determined that I should make an order for three weeks’ compensation. This is to be based upon a gross weekly rate of $700. An order to this effect accompanies this decision.

[84] Finally, I indicate that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all around” had been accorded to both the applicant and the respondent as provided in section 381(2) of the Act.

COMMISSIONER

Appearances:

Dr H Kestermann, the applicant.

Mr C Lawrence of Counsel for the respondent.

Hearing details:

Sydney.

2013

July, 1.

August, 2.

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