Mr Barry Vella v Boxgrove Pastoral Company

[2011] FWA 6093

[2011] FWA 6093

FAIR WORK AUSTRALIA

DECISION

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

Mr Barry Vella
v
Boxgrove Pastoral Company
(U2011/7659)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 19 SEPTEMBER 2011

Summary: unfair dismissal remedy - pastoral industry - non compliance with Small Business Fair Dismissal code - whether harsh, unjust or unreasonable - compensation

[1] This is an application by Mr Barry Vella (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy. The Respondent was Boxgrove Pastoral Company (represented by its owner, Mr Jock Logan).

[2] On 27 April 2011, Mr Logan dismissed the Applicant from his position as station manger of a cattle property in Central Queensland called Panhandle Station. It appears the dismissal took effect on 10 May 2011, following a two week notice period during which the Applicant, along with his wife, vacated the accommodation provided to them on the station.

[3] The Applicant had been employed as the station manager of Panhandle Station for some 15 years, before it was purchased by the Respondent in September 2009. The evidence led by the Applicant was that at the time of the sale of Panhandle Station to the Respondent, its former owner had paid out his (the Applicant’s) accrued entitlement to holiday pay and his outstanding wages (but not his entitlement, it appears, to long service leave).

[4] Apart from Panhandle Station, the Respondent also owned and operated a neighbouring cattle station, called Pyramid Station.

[5] At the time of the purchase of Panhandle Station, Mr Logan offered employment to the Applicant. It appears from the evidence that at the time, Mr Logan did not articulate any job description or otherwise indicate the manner in which the Applicant was to carry out his duties. As best can be derived from the evidence, Mr Logan agreed to pay the Applicant the same amount (and in the same way) as he had been paid previously, when he had been employed by the former owner. The Applicant accepted the new position with the Respondent, but only after deliberating, as he said, for some two weeks.

[6] The employment relationship appears to have been sustained without any great tension for a period of 18 months. Then, on 27 April 2011, Mr Logan verbally informed the Applicant that “I think you should leave”.

[7] The Applicant contended that this announcement came as a shock to him as until then he had no appreciation that his employment was in jeopardy.

[8] The Applicant did not contest or otherwise challenge Mr Logan’s decision at the time of the dismissal or at any time prior to leaving the station. Nor did he seek any explanation. The Applicant simply packed his belongings, and those of his wife, and vacated the premises on 10 May 2011 (later lodging this application).

[9] In the course of these proceedings Mr Logan gave a number of reasons for the dismissal.

[10] One of the reasons was that the Applicant had mustered cattle in two inner paddocks by way of hiring a helicopter (and pilot). Mr Logan believed this conduct was inappropriate because he was usually consulted about such matters (and the Applicant agreed this was so) and, in any event, Mr Logan had his own helicopter available at the adjoining Pyramid Station, only some 60 kilometres away, which could have been utilised.

[11] When the Applicant was pressed as to why, given the circumstances, he did not consult with Mr Logan, he put it down (in effect) to a misjudgement at the time. He did not claim that he was under no expectation to consult with Mr Logan.

[12] Mr Logan also claimed that the Applicant took the initiative to recruit a permanent employee from a labour hire firm without consulting him. Mr Logan claimed that such conduct, in effect, was irrational given that he had been seeking to obtain resource synergies by utilising labour and capital between Panhandle Station and the adjacent Pyramid Station.

[13] While Mr Logan never articulated this strategy to the Applicant, given his experience, the Applicant conceded that it was obvious that the Respondent would adopt such an approach.

[14] Finally, it also appears that the Applicant engaged a ringer from a local property on a casual basis to assist him in mustering the cattle. The ringer he engaged was a person in whom Mr Logan had nominal trust and confidence. Seemingly, the ringer and Mr Logan had fallen into some form of disagreement at an earlier time. It is fair to say that the evidence suggests that Mr Logan took the view that this called into question the Applicant's judgement, while the Applicant simply overlooked Mr Logan's sensitivities about this concern and utilised the available labour.

[15] For the purposes of s.387(a) of the Act, therefore, it appears to me that the Respondent did not possess a valid reason for the dismissal of the Applicant.

[16] The Applicant’s conduct did not lead to the Respondent incurring unnecessary costs of any significant degree. The cost of utilising the helicopter seems to have amounted to between $1200 and $1500. In any event, the real issue for Mr Logan was not the costs issue at all, but the absence of consultation.

[17] The initiative to recruit a new permanent employee did not proceed once Mr Logan was informed of the Applicant’s conduct. Again, the issue here was a lack of consultation.

[18] The engagement of a person (who Mr Logan believed was undesirable) to assist in the muster for a 2 or 3 day period did not lead to any loss, nor was it a mischief of any great weight. I note, however, that the Applicant was well aware of the difficulties in the relationship between the ringer and Mr Logan but did not consider there were any sensitivities to which he needed to have regard.

[19] While such conduct might have been a source of annoyance to Mr Logan, this was not a matter that was of such a degree that it warranted the dismissal of the Applicant.

[20] Even if I were to conclude on the evidence that there had been an element of intentionality in relation to the Applicant's lapses in consulting Mr Logan, as important as these might have been, they were not of sufficient gravity (if only at this point) to rupture the employment relationship.

[21] Further, given that the losses to the business arising from the Applicant’s conduct were at the low end, the damages were negligible, and there were no other prior behaviours of any relevance at all, it does not seem that the Applicant’s conduct, even if taken in sum, could have fatally wounded the Respondent’s trust and confidence in the Applicant.

[22] At best, the Applicant’s conduct warranted a serious disciplinary reaction, but not of the measure enacted by the Respondent.

[23] It is for these reasons that I have concluded that there is no valid reason for the dismissal of the Applicant.

[24] For purposes of s.387(b) of the Act, it is unchallenged that at the time of the dismissal, the Respondent had not taken any steps to give notice of the reasons for the dismissal. The Respondent simply invited the Applicant to finish up.

[25] For purposes of s.387(c) of the Act, it is unchallenged that the Respondent provided no explanation for the dismissal at the time. Therefore the Respondent provided no opportunity for the Applicant to respond to the reasons known to the Respondent, which went to the Applicant’s conduct.

[26] For purposes of s.387(d) of the Act, no issues arise as to whether the Respondent refused a reasonable request by the Applicant to be assisted by a support person. This is because the manner of the dismissal did not permit an opportunity for the Applicant to be so assisted in the first instance.

[27] As the issues under consideration go to the Applicant’s conduct, there is no requirement for me to consider the application of s.387(e) of the Act, which relates to the performance of the Applicant’s duties. Admittedly, however, when an employee is in a managerial-type role, the requirement to consult with a more senior person about expenditure-related issues might be seen to be ‘performance’ related. If the facts of this matter were to be taken as such, the conclusion on the evidence is that the Respondent provided no warnings to the Applicant and gave him no opportunity to improve his unsatisfactory performance before the dismissal.

[28] For the purposes of s.387(f) and s.387(g) of the Act, I note that the Respondent is a small business employer as defined in s.23 of the Act. In this regard, it was unchallenged that at the time the dismissal took effect, the Respondent employed some four employees (of any mode of employment). Demonstrably, the Respondent was small in size and had no dedicated human resource specialists. The Respondent’s submissions in this regard were of little assistance. It is enough to say that the Respondent’s decision making was unassisted by any professional advice, which arose no doubt from the size of its undertaking (in terms of employee numbers).

[29] I take this point to indicate that as a small business for purposes of s.23 of the Act, the Respondent was subject to the Small Business Fair Dismissal Code ("the Code"). This was not a case of summary dismissal for purposes of the Code. Because of this, I have approached the application in the context of the ordinary statutory provisions under s.387 of the Act (and otherwise for purposes of remedy).

[30] Section 387(h) of the Act requires me to consider other matters that might be relevant to the application. There are no such relevant matters pressed in this case.

Conclusion

[31] On the basis of the above discussion, it appears to me that the Applicant’s dismissal was harsh, unjust or unreasonable. Despite the Applicant’s conduct warranting some measure of censure or discipline, in my view it did not establish a valid reason for the dismissal. Further, the manner in which the Respondent carried out the dismissal paid no regard to the elemental procedural obligations to give a reason for the dismissal and to extend to the Applicant even a modest opportunity to provide an explanation for the conduct. I conclude so irrespective of the fact that the Respondent was a small business employer.

Remedy

[32] Having so concluded, I now turn to consider the Applicant’s remedy for his unfair dismissal. I note initially that the Applicant did not seek reinstatement, but instead sought a measure of compensation and restitution of unpaid entitlements. I very much doubt that in circumstances where an Applicant expressly does not seek reinstatement or re-employment that it would be appropriate to set this preference aside. Inferentially at least, an Applicant who does not seek to resume employment with his or her former employer is unlikely to assist in bringing about a productive and cooperative relationship in the future.

[33] Having concluded that reinstatement is not appropriate, I now turn to the requirements of s.392 of the Act, which concern the criteria for determining the amount of compensation that I may require the Respondent to pay the Applicant.

[34] Firstly, for purposes of s.392(2)(a) of the Act, I find that it is unlikely that any order I might make in these regards would affect the viability of the Respondent’s enterprise or undertaking.

[35] Section 392(2)(b) of the Act requires me to consider the duration of the Applicant’s employment with the Respondent. The Applicant’s period of employment was approximately 18 months. This is not a long period of service with the Respondent and does not make out a compelling case for compensation on its own.

[36] Section 392(2)(c) of the Act requires me to determine the remuneration the Applicant would have earned if he had not been dismissed. This, of course, is a consideration which requires an element of speculation on my part.

[37] But having heard the Applicant’s evidence and having considered his various misjudgements in relation to the Respondent’s expectations, I very much doubt the period of anticipated employment would have been for a period beyond a further three months.

[38] I have not been assisted by the Applicant in relation to the requirements of s.392(2)(d), (e), (f) or (g) of the Act. The Applicant’s materials and the cogency of the arguments put were wanting in many respects.

[39] Section 393 of the Act requires me to consider whether the Applicant’s conduct contributed to his dismissal. I have previously set out the Applicant’s conduct which attracted Mr Logan’s ire. It appears to me that the Applicant well appreciated the operational synergies being sought by the Respondent but through a lapse in judgement, did not make decisions about resources which conformed with these recognised operational objectives. Whilst the Applicant’s conduct did not warrant his dismissal, it did contribute directly to the Respondent’s decision making about the sustainability of his employment.

[40] In view of this, I consider that I should deduct 50 percent from any compensation order owing to the Applicant’s conduct.

[41] I therefore order the Respondent to pay to the Applicant an amount equivalent to six weeks’ salary. It would appear that the Applicant was paid $2000.00 gross per fortnight. Therefore, the amount that the Respondent must pay to the Applicant is $6000.00 gross (subject to the usual taxation).

[42] I order that this amount be paid to the Applicant within 14 working days following the issuance of the order in this matter. For purposes of completion, I add that no issues arise for purposes of s.392(5) of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr L. Baker for the Applicant.

Mr J. Logan for the Respondent.

Hearing details:

2011.
Townsville Supreme and District Court Complex.
31 August.

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