Martin Ellis v Manbulloo Ltd
[2011] FWA 600
•31 JANUARY 2011
[2011] FWA 600 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Martin Ellis
v
Manbulloo Ltd
(U2010/10895)
VICE PRESIDENT LAWLER | MELBOURNE, 31 JANUARY 2011 |
Unfair dismissal application.
[1] This is an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy filed by the applicant, Mr Martin Ellis.
[2] The respondent, Manbulloo Pty Ltd, operates mango farms in Queensland and near Katherine in the Northern Territory. Ms Piccone is the Managing Director of the respondent and regarded by employees as the “owner” of the business. Mr Nardi is the General Manager of the respondent. Both Mr Nardi and Ms Piccone are residents of Queensland and only visit the Katherine farm from time to time (in Ms Piccone’s case, less frequently than Mr Nardi).
[3] Although the Katherine farm is a relatively large mango farm the number of employees are relatively small - in the order of six or seven permanent employees with a significant number of casual employees at times, particularly during the harvest.
[4] The respondent acquired the Katherine farm in about mid 2005. Prior to that time Mr Ellis had worked as a casual labourer, mainly during harvests. Shortly after the respondent acquired the Katherine farm Mr Ellis was employed by the respondent as a permanent labourer.
[5] Mr Ellis was dismissed by letter dated 18 June 2010 for two instances of alleged misconduct: for threatening physical violence to his direct manager, Mr Will Lloyd, and for making a serious threat of what may be described as sabotage to the respondent’s business.
[6] Mr Lloyd had been employed as a labourer on the Katherine prior to late 2009. In late 2009 the then manager of the Katherine Farm, Mr Peter Sinnott, ceased his employment and Mr Lloyd took over as manager of the Katherine farm.
[7] Mr Ellis had raised issues over the correctness of his pay on numerous occasions with Mr Sinnott and also with Mr Lloyd after Mr Lloyd took over as manager.
[8] A meeting between Mr Ellis and Mr Nardi had been scheduled for 16 June 2010 to discuss Mr Ellis’ pay issues and also a warning he had received in relation to late attendance.
[9] It is clear that Mr Ellis had repeatedly raised various complaints and other issues with Mr Lloyd. It is clear that many if not most related to things that occurred before Mr Lloyd commenced as the Katherine farm manager. Mr Lloyd, probably incorrectly, disclaimed any reasonability in relation to things that occurred before he became farm manager. I say “probably incorrectly” because a present manager can have responsibility in relation to matters that occurred prior to the manager’s commencement if those matters have an ongoing relevance. It is clear that at least some of the matters being raised by Mr Ellis fell in that category. It is tolerably clear that Mr Ellis, and not without some justification, exhibited a negative disposition towards Mr Lloyd on account of the position he adopted.
[10] Events occurred on 11 June 2010 that caused Mr Lloyd to write a letter and send it by email to Mr Nardi. That letter was in the following terms:
“To John, Marie,
Due to the safety of myself and my family I am writing this letter to you.
Martin Ellis has repeatedly been harassing me at the start of every day when he comes to work, which I can cope with. But now he is threatening me and my family.
He came up to me today the 11th June 2010 and said that I did not tell him that he had to ring John Nardi at HO and that I gave the letter to him after 3.30pm on the 9th of June 2010. This is not true as I went to the block where he was working and gave him the letter and told him verbally that he had to ring you. I gave Martin the letter at 3.20pm.
He then came up to the office and was still jumping up and down and also accused me of writing the letter from Natalie. Then he started on the discloser note at the bottom of the email from John. Martin then left to go home and in doing so he spun his tyres in his car where he parks down near the quarters and then came back to the office area again and stood down stairs for a short time. Sandi pulled up in her car and Martin got back into his car and once again spun his wheels as he drove off. Covering Sandi with dust.
As Martin rang up sick on the 10th of June 2010 I could not tell him that the company does not tolerate that behaviour and driving manner.
So today the 11th June 2010 I told him about his driving manner was not [acceptable] on the farm and to drive properly.
Then he started with I am nothing but a liar and also stated that he cannot wait to get the gloves off once all this has been Resolved. I had been told previously by one of the workers that he only had this month to go and he would be off parole and he then will punch me out.
11.45 am Martin just came up to the office and asked what block to go in I told him to go to block 27 and then Martin stated off the record he wanted a personal conversation outside. I told him I don’t have to go anywhere so he turned around and said we will sort it out at the end of the airstrip at 5pm today. I said I am not going down to the airstrip at 5pm and his remark was point proven and rubbed his eyes as if crying implying that I was scared.
Back to this morning he put boron all over the place and I requested him to do his job properly he ignored me. Then drove off like a lunatic in the work vehicle and when he came back he still had not settled down. Once again I asked him to slow down and do the job properly as the boron was an important fertilizer and he still drove like a lunatic. We end up taking Martin off the fertilizer and put him on sprinklers up in block 26.
When Terry took over the fertilizer Martin had broken the fuel tap off and the choke switch off the pump that he was using.
When Martin asked me if I had witnesses to him doing burn outs I said yes and told him it was my wife and then turned around and said the OLD GIRL and I said she has a name and it is Sandi he then turned around and said I can call her any fucking name I like you cannot do anything about it. Then Martin said that we bought a pool table to buy friends as Kiwis don’t have friends alls they do is fuck sheep and laughed. I tried to explain to him that I have been living in Australia longer than in New Zealand. Martin’s response to this was you are still a fucken sheep fucker.
So in closing I think he is a very unstable man, if we cannot resolve the issues on Wednesday 16th June 2010 and Martin is still going to be employed by Manbulloo I would like to have some time off and rethink my position with Manbulloo at Katherine.”
[11] In his oral evidence, Mr Lloyd elaborated on the reference to sorting “it” out at the end of the airstrip. He said that Mr Ellis referred to sorting out “the man’s business”. Mr Lloyd, with knowledge of what might be described as Mr Ellis’ “reputation”, interpreted this as a threat - that Mr Ellis proposed to assault him.
[12] Mr Nardi spoke to Mr Lloyd by phone and gave evidence, that I accept, that Mr Lloyd sounded distressed.
[13] Mr Nardi informed Ms Piccone of Mr Lloyd’s concerns. Ms Piccone decided that she should also attend the meeting on 16 June 2010.
[14] The meeting on 16 June 2010 was attended by Mr Ellis and his wife and by Mr Nardi and Ms Piccone. Mr Ellis taped almost all of the meeting and did so openly. A copy of that recording was tendered in evidence. It has a duration of 1 hour and 35 minutes. It commences at what is clearly the start of the meeting. The alleged threats to Mr Lloyd were raised by Mr Nardi 1 hour and 18 minutes into the meeting. Prior to that time the meeting dealt with Mr Ellis’ complaints in relation to his pay, safety issues and attendance issues. Mr Ellis essentially repeated the allegations made by Mr Lloyd (a position he maintained in the hearing). Ms Piccone gave evidence that Mr Ellis turned off the tape before the meeting concluded. This is corroborated by the recording itself which ends abruptly before any of the niceties that usually accompany the end of a meeting.
[15] Ms Piccone’s evidence was that after Mr Ellis turned off the tape, he said to her: “You’re not a very nice person and I hope you have a weevil good day.” Mr Nardi said “Did you just say, ‘Hope you have a weevil good day’?” Mr Ellis began walking out of the room. Ms Piccone walked beside him and said: “What did you just say, Martin?” Mr Ellis said: “I hope you have a weevil good harvest.” 1 Mr Nardi gave evidence that corroborated this account.
[16] Mr Ellis denied making any such statement and instead gave the following evidence:
“...At the end of the meeting I said to Marie Piccone, to herself - at the time my wife and John were in discussion - I said, “You’re an evil person, Marie”, because I honestly felt that after all the work I’ve done around the place and putting in, that I’d been getting treated badly. I called her an evil person. Marie then immediately said, “What did you say?” and by this stage it’s the passing - like, there was me being nasty to Marie and I shouldn’t have done it - it was the passing, “I’m leaving”, right? We get outside and John and Marie are saying, “What did you say, Martin?” and I repeated what I said. I reported the exact words outside. I said, “You are an evil person, Marie” - or “I think you’re an evil person, Marie”, and I think you’ll hear in Will’s testimony he actually nearly says what I say...”
[17] Mrs Ellis gave evidence corroborating Mr Ellis’s evidence.
[18] In acknowledging that he said to Ms Piccone that she was an “evil person”, Mr Ellis was apparently trying to suggest that Ms Piccone and Mr Nardi were mistaken in what they heard (“evil” and “weevil” are very similar sounding words). I do not accept any such suggestion. I am satisfied that Ms Piccone and Mr Nardi were not mistaken and that Mr Ellis said the words “have a weevil nice day”. It struck me as improbable that if Mr Ellis were acting in good faith that he would describe Ms Piccone as “evil” - she presented as a remarkably decent person and on Ms Piccone’s evidence, which I accept, Mr Ellis had never made any complaint to her prior to 16 June 2010 other than on one occasion at a bus stop. I struggle to see on what basis Mr Ellis could reasonably have come to the view that Ms Piccone was an “evil person”.
[19] In relation to the alleged threat to Mr Lloyd, I prefer the evidence of Mr Lloyd to the denial of Mr Ellis and find that Mr Ellis said words to the effect of those alleged by Mr Lloyd. I am satisfied that those words were intended to be threatening and were interpreted by Mr Lloyd accordingly.
[20] In relation to the alleged threat of sabotage, I prefer the evidence of Mr Nardi and Ms Piccone to the evidence of Mr and Mrs Ellis. I find that Mr Ellis said the words attributed to him by Ms Piccone.
[21] In relation to my preference of Mr Lloyd, Mr Nardi and Ms Piccone to the evidence of Mr Ellis (and, in the case of the threat of sabotage, Mrs Ellis) I note the following:
(a) I found Mr Lloyd to be a credible witness. I found both Mr Nardi and Ms Piccone to be impressive witnesses. Each of them struck me as giving scrupulously careful and truthful evidence to the best of their ability.
(b) Mr Lloyd made a contemporaneous written complaint in relation to Mr Ellis’ conduct on 11 June 2010. Mr Lloyd’s oral evidence was not only corroborated by that contemporaneous written complaint, it is also corroborated by the evidence of Mr Nardi, that I accept, that Mr Lloyd sounded distressed when the two men spoke shortly after the incident.
(c) Mr Foster, another labourer on the farm, gave evidence that I accept that he saw Mr Ellis confront Mr Lloyd earlier in the day on 16 June 2010, invading his personal space in an aggressive manner and pointing his finger.
(d) I was less than impressed with the evidence of Mr Ellis.
[22] Section 387 of the FW Act specifies the criteria that FWA must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable. I turn to consider those criteria.
Section 387(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)
[23] A valid reason is one that is “sound, defensible or well founded”. 2 I am satisfied that each of the threats to Mr Lloyd and the threat of sabotage constituted valid reasons for Mr Ellis’ dismissal.
[24] In relation to the threat of sabotage, some additional comments are appropriate. Mango growing in Queensland is affected by a particular pest known as the mango seed weevil. At present mango growing in the Katherine area is free of mango seed weevil and, as such, there is an export market for mangos from the Katherine area that would not exist if farms in that area were to become affected by mango seed weevil. It was clear from the evidence of Ms Piccone that if mango seed weevil were introduced to the Katherine farm it would have a disastrous effect on the respondent’s business. The threat of sabotage made by Mr Ellis was about as serious a threat as could be made in relation to the respondent’s business.
Section 387(b): whether the person was notified of that reason
[25] Mr Ellis was notified of the reasons for his dismissal in the letter of 18 June 2010.
Section 387(c): whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[26] Mr Ellis was given an opportunity in the meeting of 16 June 2010 to respond to the alleged threats to Mr Lloyd (albeit that that matter was raised at the meeting without prior notice). Mr Ellis was not given an opportunity to respond to the alleged threat of sabotage.
Section 387(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
[27] There was no refusal by the respondent to allow Mr Ellis to have a support person present to assist at any discussions relating to the dismissal. Mrs Ellis attended as a support person at the meeting of 16 June 2010 and was permitted to participate in the meeting.
Section 387(e): if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[28] The dismissal did not relate to unsatisfactory performance.
Section 387(f) and (g): 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 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
[29] The respondent is a relatively small business. There is an absence of dedicated human resource management specialists or expertise in the respondent’s enterprise. These matters were likely to impact on the procedures followed in effecting the dismissal, particularly to the extent that the dismissal was founded on the threat of sabotage. That said, I think that Mr Nardi and Ms Piccone made a genuine attempt to accord Mr Ellis procedural fairness in relation the allegation of the threats to Mr Lloyd. In relation to the threat of sabotage I think it likely that Mr Nardi and Ms Piccone proceeded on the basis that they did not need to give Mr Ellis an opportunity to respond because both had witnessed the threat first hand.
Section 387(h): any other matters that FWA considers relevant.
[30] I have had regard to Mr Ellis length of service, his age, the undoubted difficulty that he will have in finding ongoing employment and the undoubtedly adverse impact that the dismissal has had and will have on the financial circumstances of Mr Ellis and his family.
[31] I have taken account of the tardy way in which Manbulloo’s more junior staff responded to Mr Ellis’s complaints in relation to his pay. I also accept that Mr Ellis raised safety issues on a number of occasions and, indeed, had involved the relevant occupational health and safety authority. I also accept that the safety issues raised by Mr Ellis were typically not addressed in a timely fashion. I accept that Mr Ellis’ safety issues with one of the water trucks (truck number 8) were not dealt with at all. However, in that regard I also find that Mr Ellis generally raised safety issues with the Katherine farm manager (Mr Sinnott and Mr Lloyd). I do not accept that he escalated those issues to Ms Piccone other than on one occasion. I am not satisfied that Mr Ellis’ complaints in relation to his pay and in relation to safety issues was a material factor in the decision of Mr Nardi and Ms Piccone to dismiss Mr Ellis.
[32] Mr Ellis identifies as an Aboriginal Australian. There was a suggestion in the evidence that Mr Lloyd exhibited racist attitudes to Mr Ellis. I do not regard the one incident relied on by Mr Ellis as demonstrating that Mr Lloyd had a racist attitude towards Mr Ellis. In any event, there was no suggestion that Mr Nardi and Ms Piccone, the senior managers who made the dismissal decision were motivated by racist considerations. I am satisfied that made the decision to dismiss Mr Ellis in good faith on the basis only of the misconduct that they were satisfied had occurred.
Conclusion
[33] Having regard to the relative seriousness of the misconduct in this case and, in particular, the threat of sabotage, I am not satisfied, in all the circumstances of this case, that Mr Ellis’ dismissal was harsh, unjust or unreasonable. On the contrary, particularly having regard to the threat of sabotage, it was untenable for Manbulloo to continue Mr Ellis’s employment. I am satisfied that the dismissal was based on valid reasons that have been established in the evidence and none of the other circumstances are such as to render the dismissal harsh, unjust or unreasonable.
[34] The application for an unfair dismissal remedy is dismissed.
VICE PRESIDENT
Appearances:
M. Ellis on his own behalf with Mrs. N Ellis.
J. Nardi for Manbullo Ltd.
Hearing details:
2010.
Katherine:
October 12.
1 Transcript PN1097
2 Selvachandran v. Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 per Northrop J
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