Mark Lavender v Simon J Roberts Farrier Service

[2011] FWA 8901

[2011] FWA 8901

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Lavender
v
Simon J Roberts Farrier Service
(U2011/9300)

COMMISSIONER DEEGAN CANBERRA, 16 DECEMBER 2011

Termination of employment - Whether harsh, unjust or unreasonable - Small business.

Introduction

[1] This matter arises from an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) filed with Fair Work Australia on 28 June 2011 by Mr Mark Lavender (the Applicant) in respect of the termination of his employment by Simon J Roberts Farrier Service (the Respondent) on 14 June 2011.

[2] The Respondent filed a response to the application and a telephone conciliation conference was conducted on 27 July 2011. The matter was unable to be settled by conciliation and the matter was listed for arbitration. The Respondent did not object to Fair Work Australia’s jurisdiction to determine the application.

[3] In accordance with directions that were issued by Fair Work Australia, both parties filed submissions and witness statements. At the hearing the Applicant was represented by Mr Mark Bostock, and Ms Rhondda Nicholas represented the Respondent.

Background

[4] The Applicant commenced work with the Respondent as an apprentice farrier in March 2010.

[5] The Applicant was required to perform his duties under the supervision of Mr Simon Roberts at a number of different locations, which were geographically dispersed throughout regional New South Wales, for different clients of the Respondent. He was required to work closely with the horses of these clients on a daily basis, shoeing and trimming their hooves.

[6] Prior to engaging the Applicant, Mr Roberts had worked as a sole trader and, as such, had not engaged an apprentice in the past. He was assisted in running the business by his wife Ms Ailsa Roberts, who supported him by undertaking administrative tasks.

[7] On 19 March 2011 the Applicant was involved in an accident during which he sustained fractures to his left leg. This accident did not occur whilst the Applicant was at work.

[8] On 14 June 2011 Mr Roberts informed the Applicant that he was no longer employed by the Respondent, citing client dissatisfaction with the way he performed his work as one of the primary reasons for which his employment was being terminated.

The Applicant’s Evidence

[9] The Applicant filed a statement of evidence which he expanded on at the hearing and was cross examined.

[10] Whilst the Applicant maintained in his statement of evidence that Mr Roberts had not told him that the Respondent’s customers were dissatisfied with his work, the Applicant conceded during the hearing that he was aware that there were a number of clients that who had said to Mr Roberts “they would not like me working on their horses.” 1 The Applicant maintained, however, that he was unaware that Mr Roberts had any concerns with his performance throughout his apprenticeship2.

[11] Sometime after the Applicant’s accident, on 2 or 3 April 2011, the Applicant claims he went to Mr Roberts’ residence to collect his sick pay. The Applicant claims to have informed Mr Roberts that he would not be returning to work for three months. He also claimed that at this time he provided Mr Roberts with the medical certificate he received after his surgery.

[12] The Applicant stated that on 11 June 2011 he visited Mr Roberts at home to provide him with a medical certificate which stipulated that while he was permitted to return to work, he was restricted to two half days per week. In his opinion, Mr Roberts “did not appear to be pleased” that he could work only two half days per week 3.

[13] On 14 June 2011, the Applicant went to Mr Robert’s residence seeking payment to assist him with the costs of his attendance at TAFE the following week. While Mr Roberts was not home at the time, he called the Applicant later that evening. During this phone call, Mr Roberts informed the Applicant that he was no longer employed by the Respondent. According to the Applicant, Mr Roberts attributed the reason for the Applicant’s dismissal to there being not enough “horses that needing shoeing” and that his clients no longer wanted the Applicant to work on their horses. When pressed by the Applicant to divulge the identity of these clients, it was the evidence of the Applicant that Mr Roberts refused to do so.

[14] It was put to the Applicant in cross examination that Mr Roberts had spoken to him on at least three or four separate occasions about clients complaining, highlighting his attitude towards horses as being of significant concern for these clients. While the Applicant conceded that he had been spoken to by Mr Roberts about the client complaints, he denied that Mr Roberts had indicated that his attitude had been an issue for these clients.

[15] When questioned about his attitude in relation to horses, the Applicant indicated that he had a high tolerance for horses, though stated that ‘every now and again a horse may need a slight bit of education ...so that you can continue working on it.’ 4 When pressed, the Applicant accepted that this type of education was in fact a form of discipline, and that owners of horses would not have appreciated that kind of treatment of their animals. He conceded that there was at least one client’s property that he had returned to where the client had stipulated that she did not want the Applicant touching her horses.

[16] The Applicant was asked whether he was concerned about his employment, given that there were a number of clients of the business complaining about the way he was handling their horses. He stated that as far as he knew, ‘everything was going fine’. He further stated that he believed three clients, out of the 350 people who used the Respondent’s services, was ‘not a great number.’

[17] The Applicant was asked to make an assessment about his ability to work with horses. He indicated that in certain areas, he considered his ability to be ‘a little bit more superior’ to that of Mr Roberts, by virtue of the fact that he had been ‘out and around more.’ It was put that his assessment of his ability caused the Applicant to substitute his own judgement for that of Mr Roberts and also led him to ‘have a go’ at Mr Roberts on occasions, despite Mr Roberts being the employer and apprentice master. The Applicant denied that this was the case.

[18] It was put to the Applicant that in the seven weeks following his accident, the Applicant decided against returning Mr Roberts’ phone calls. The Applicant stated the reason for this was that he did not have any phone credit, and couldn’t afford to purchase more, and that he was away with his mother in Sydney. He stated that during this time he saw Mr Roberts at the property where he rents his accommodation, and thought that if Mr Roberts had needed to say something important to him than he would have come and seen him on that day.

The Respondent’s Evidence

[19] The Respondent filed a statement of evidence which was expanded on by Mr Roberts at the hearing. Mr Roberts was also cross examined.

[20] Mr Roberts claimed that towards the end of 2010 it became apparent to him that the relationship he had with the Applicant was deteriorating. Mr Roberts claims that he spoke to the Applicant on several occasions in late 2010 about his failure to follow his directions and instructions, and his rudeness towards the Respondent’s clients. He also indicated to the Applicant that the rough way he was handling the horses was contrary to that which was expected of an apprentice farrier.

[21] Mr Roberts stated that one of his clients, Ms Newman, telephoned him in late 2010 and requested that the Applicant not return to perform work for her again because the Applicant was impatient and rough with her horses. Mr Roberts claimed that when he told the Applicant of his conversation with Ms Newman the next day he replied ‘I don’t like her anyway.’

[22] When the Applicant returned from TAFE in mid February of 2011, Mr Roberts claims to have informed the Applicant of a conversation he had had with another client who was disgruntled with the rough way the Applicant was handling her horses. When the Applicant allegedly asked “What did I do wrong?” Mr Roberts replied that he needed to treat the horses with more respect and not be so rough with them.

[23] According to Mr Roberts, on 10 March 2011, he requested that the Applicant shorten the shoes of a horse on three separate occasions. The Applicant refused to do so and went and sat by the car. When Mr Roberts asked the Applicant to return to work, he refused to do so.

[24] The following day the Applicant bought a dog to work, which Mr Roberts claims was in contravention of his explicit instructions that no dogs be bought on site. Mr Roberts stated that he had stressed to the Applicant on numerous occasions the occupational health and safety risk that dogs presented, citing a dog’s tendency to unsettle horses as grounds for this risk.

[25] It was the evidence of Mr Roberts that on 12 March 2012, he had a conversation with a horse trainer from Goulburn who indicated that another one of the Respondent’s clients had concerns with the way that the Applicant handled her horses. Mr Robert stated that when he spoke to the Applicant about this, the Applicant responded ‘it’s not my problem’.

[26] Mr Roberts was informed by the Applicant’s girlfriend on 19 March 2011 of the leg injury that the Applicant had sustained. However, Mr Roberts claimed that the Applicant did not provide any medical certificates or an indicative time frame for a return to work until a conversation they had on 8 June 2011, when the Applicant informed Mr Roberts that he would be seeing a doctor the following week. Prior to this time, it was Mr Roberts’ evidence that the Applicant refused to speak with him. This was despite Mr Roberts calling the Applicant’s mobile phone and leaving messages for the Applicant on a number of occasions in April and May of 2011, and despite Mr Roberts waving to him when he passed the Applicant on the street in Goulburn. It was the evidence of Mr Roberts that the Applicant ignored him and continued walking.

[27] Mr Roberts acknowledged that the Applicant provided him with a medical certificate on 11 June 2011, which stipulated that the Applicant was medically permitted to return to work two half days per week.

[28] It was put to Mr Roberts in cross examination that three clients evidencing dissatisfaction with the Applicant’s work was a relatively small proportion of the total client base of the Respondent, which Mr Roberts agreed was about 350 people. Mr Roberts contended that the actual proportion of dissatisfied clients would be over half of the Respondent’s clients, though he stated that a lot of his clients didn’t want the Applicant to know about their dissatisfaction.

[29] It was further put to Mr Roberts that he should have educated and trained the Applicant in respect of the issues that arose. Mr Roberts stated that if the Applicant had wanted to be trained he should have watched him as he requested rather than sitting in the car playing with his phone.

[30] Mr Roberts was also asked why there was such a delay between Mr Roberts realising that that the Applicant’s position was untenable and his attitude unsalvageable, and him informing the Applicant of this. Mr Roberts indicated that it was his intention to speak to the Applicant, however the Applicant’s attendance at TAFE and the advent of his injury meant that he was unable to do so. 5

[31] In response to a question from the bench, Mr Roberts reiterated that he did not receive a medical certificate from the Applicant on 2 April 2011.

Evidence of Ailsa Roberts

[32] The Respondent called Ms Ailsa Roberts as a witness. It was the evidence of Ms Roberts that all of the Applicant’s entitlements had been paid upon cessation of his employment. Ms Roberts was not cross examined

Submissions for the Applicant

[33] It was submitted for the Applicant that prior to the Applicant injuring himself, Mr Roberts had not provided the Applicant with any indication that he was unhappy with the Applicant’s performance nor was he given any formal warnings. It was further submitted that if there were concerns about the Applicant’s performance, then a formal written warning should have been issued by Mr Roberts. As no formal written warning was issued, it was submitted that the termination was harsh, unjust or unreasonable.

[34] It was further submitted that Mr Roberts terminated the Applicant’s employment as a result of the Applicant’s temporary absence from work, while he was recovering from his leg fractures.

Submissions for the Respondent

[35] It was submitted for the Respondent that the disinclination of the Applicant to follow Mr Roberts’ instructions, combined with the behaviour he was exhibiting towards the Respondent’s clients and their horses, meant that Mr Roberts had decided to terminate the Applicant’s employment prior to the Applicant sustaining his leg injury. However, the intervening accident and resulting injury meant that Mr Roberts did not execute the termination in a timely manner.

[36] It was further submitted that Mr Roberts had discussed the performance of the Applicant with him a number of times at the end of 2010 and the beginning of 2011, in particular his poor attitude towards the Respondent’s clients and his rough handling of their horses had been repeatedly bought to the Applicant’s attention.

[37] It was also submitted that the Applicant’s disinclination to communicate with Mr Roberts in the period following his injury meant that Mr Roberts was entitled to conclude that the Applicant had abandoned his employment.

Consideration

[38] There was no suggestion that the Applicant in this case was not protected from unfair dismissal 6 . Although the Respondent is clearly a small business it was not put that the Small Business Code7 had been followed in effecting the termination. In those circumstances it is the criteria set out in s.387 of the Act which I must take into account in determining whether or not the dismissal was unfair.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(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 FWA considers relevant.

Consideration

[39] In many respects there is little difference in the evidence given by the Applicant and the Respondent about the circumstances of the termination. Where their evidence differed I prefer the evidence given on behalf of the Respondent by Mr and Mrs Roberts. The evidence of the respondent’s witnesses was clear and direct. I found the applicant to be an evasive witness when he was concerned that the answers to questions put to him may, if responded to truthfully, have harmed his case. I am satisfied that the Respondent’s witnesses answered all questions truthfully, even though where the answers did not always assist their position or put their actions in the best light.

[40] I accept the evidence of Mr Roberts that, prior to the applicant’s accident, he had determined to terminate the applicant’s employment as a result of client complaints and his own dissatisfaction with the applicant’s work performance and attitude. I also accept his evidence that he did not move to end the employment relationship following the applicant’s accident because he did not consider it was the right thing to do when the Applicant had been injured.

[41] I am satisfied that the Respondent decided, in June 2011, to carry out the earlier decision to terminate the applicant’s employment, both for the reasons that earlier decision was taken and as a consequence of the Applicant’s attitude following the accident. I am satisfied that the Respondent made a number of attempts to make contact with the Applicant during his sick leave and that the Applicant made no effort at all to communicate with the Respondent until mid June. I accept the evidence of Mr Roberts that the Applicant did not provide any medical certificate until June 2011 and did not return any phone calls he had made. I am also satisfied that, until 8 June 2011, the Applicant gave Mr Roberts every reason to believe that he did not intend to return to his employment.

[42] In all the circumstances I am satisfied that there was a valid reason for the termination of the Applicant’s employment and that the reason related both to his capacity to perform his work and mainly to his conduct, in particular his attitude, both to Mr Roberts as his employer, and to the clients of the business. I find that the applicant failed to comply with directions given to him by Mr Roberts and performed his work in such a manner that complaints were made about him by clients of the business.

[43] I accept the evidence of Mr Roberts that he had, on many occasions, remonstrated with the Applicant both about his attitude to clients and about the manner in which he performed his work. I am also satisfied that the Applicant was able to respond to Mr Roberts’ concerns and, in general, did so by dismissing them and indicating that he was not concerned if customers complained. I am also satisfied that the Applicant had a very high opinion of his own abilities, which was not necessarily well-founded, and appeared to consider that in many respects his skills were superior to those of Mr Roberts. His dismissive attitude to Mr Roberts’ concerns appears to have resulted from his belief in his own abilities.

[44] On the evidence it appears that Mr Roberts did not formally warn the Applicant that his attitude and performance were putting his job in jeopardy. I am satisfied, however, that he made his concerns clear to the Applicant.

[45] The Applicant was the first, and only, employee engaged by the Respondent. Any deficiencies in the manner in which the Applicant’s employment was terminated are, in my determination, a direct result of that fact. The Respondent does not have access to human resources expertise. It is a partnership run by an unsophisticated husband and wife team with little experience in dealing with employees. Despite this I am satisfied that the Respondent treated the Applicant fairly, did not act without good cause, and gave him many opportunities to alter his behaviour during the period of his employment. No doubt the Applicant’s continuing poor attitude towards his employer during his extended sick leave contributed to the employer’s decision to terminate his employment prior to his return to work.

Conclusion

[46] In all the circumstances of this matter I am unable to find that the termination of the Applicant’s employment by the Respondent was harsh, unjust or unreasonable. The dismissal was not unfair and the application for a remedy is dismissed.

COMMISSIONER

Appearances:

Mr Mark Bostock, LAC Lawyers, for the Applicant

Ms Rhondda Nicholas, Nicholas Dibb Solicitors, for the Respondent

Hearing details:

2011.
Goulburn:
November 1.

 1   Transcript PN22

 2   Applicant’s statement at Paragraph 30

 3   Applicant’s statement at Paragraph 26

 4   Transcript PN61

 5   Transcript PN181

 6 S382. Fair Work Act 2009

 7 S388. Fair Work Act 2009

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