Mr Christopher Trickey v Whitstable Pty Ltd T/A Norwood House Receptions

[2013] FWC 6724

[2013] FWC 6724

FAIR WORK COMMISSION

DECISION

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

Mr Christopher Trickey
v
Whitstable Pty Ltd T/A Norwood House Receptions
(U2013/5933)

COMMISSIONER ROE MELBOURNE, 10 SEPTEMBER 2013

Termination of employment.

[1] The matter arises from an application filed on 25 January 2013 under s 394 of the Fair Work Act 2009 (the Act) by Mr Christopher Trickey (the Applicant) for relief in respect to the termination of his employment from Whitstable Pty Ltd T/A Norwood House Receptions (the Respondent). The Respondent was earlier incorrectly identified as Whichstable rather than Whitstable and Commissioner Lee corrected the name of the Respondent in earlier proceedings.

[2] The Applicant says that he was employed from 31 December 2011 until his dismissal on and from 6 January 2013. Mr Bussau the owner/manager of the Respondent provided a letter dated 8 January 2013 which stated: “As per our discussions on Sunday 6th January 2013, the arrangement of your living in the Residence - having free rent; electricity, gas etc in exchange for Caretaker duties - has not proved satisfactory for both parties. Your Caretaker duties, and any involvement in running of the Business, ceased on that day - your access from that day, limited to the Residence only.” The letter went on to request that the Residence be vacated by the end of the month at the latest. The letter concluded: “whilst it is unfortunate that arrangements here did not work out - you are wished every success in your future endeavours and ventures - both on a Business and on a Personal level.”

[3] Following an unsuccessful conciliation telephone conciliation conference on 22 February 2013 the Respondent objected to the matter proceeding on the grounds that they alleged that the Applicant was not an employee and had not been employed for the required minimum period in circumstances where the Respondent alleges it is a small business.

[4] The jurisdictional objections were heard by Commissioner Lee on 17 June 2013. The hearing date had been postponed at the request of the parties. The Commissioner issued a decision in transcript 1 and an Order2 dismissing the jurisdictional objection as follows:

“Further to my decision given in transcript on 17 June 2013, the Fair Work Commission orders that the jurisdictional objection raised by the respondent, that the Applicant is not a person protected from unfair dismissal (minimum employment period not served), be dismissed.”

[5] Commissioner Lee made the following findings:

● The period of employment performing some night duties such as answering the phone and retrieving keys for arriving guests from 31 December 2011 until 6 January 2013. The duties working in the office on each Monday and Tuesday began on 23 January 2012 and continued until the dismissal.
● The Respondent has not established that it is a small business and is not a small business.
● There was some dispute over the role and duties of the Applicant but it is clear that there was an employment relationship which was terminated on 6 January 2013 and confirmed on 8 January 2013.

[6] The Applicant received a letter from Mr Bussau dated 7 January 2013 which amongst other things stated that the Applicant “has been renting our house for the past 14 months” and that “he has proved to be a model tenant - not only keeping the house in good order, he has made several improvements to outside living areas, without being requested to.” The correspondence stated that: “Chris is leaving our premises on very good terms.”

[7] The Applicant gave evidence that the termination occurred when he asked Mr Bussau for payment so that he could purchase gardening stakes. There was a dispute which concluded with Mr Bussau advising Mr Trickey that he no longer worked for Norwood House.

[8] The Respondent reiterated the material provided in its reply dated 20 February 2013. It canvassed many of the same matters as had been before Commissioner Lee. The Respondent says that the Applicant was warned on a number of occasions to cease certain activities and failed to do so. The Respondent says that the Applicant threatened him with physical harm on 6 January 2013. The owner Mr Bussau says that he felt so abused and threatened that he had to separate himself from the Applicant by locking the office door. The Respondent says that the Applicant did assault Mr Bussau on 13 February 2013, approximately one month after the termination. 3

[9] The Respondent sought to argue that the Applicant had in fact resigned. This submission is contrary to the findings of Commissioner Lee and it is also untenable given the termination letter of 8 January 2013. It is also inconsistent with the evidence Mr Bussau gives in his statement about the discussion between himself and the Applicant on 6 January 2013: Mr Bussau gave evidence that he terminated the relationship at his initiative in that discussion. The position was then confirmed by the letter on 8 January 2013.

[10] At the commencement of proceedings I took the parties to these matters. The parties agreed that the Applicant is protected from unfair dismissal and that I am bound by the findings of Commissioner Lee and the parties agreed with my summary of those findings. I am satisfied and the parties agreed that the Applicant was dismissed at the initiative of the employer. The parties agreed and I am satisfied that my task is to determine whether or not the termination was unfair. The parties agreed that the relevant matters in the Respondent’s submission which need to be addressed are primarily those found in paragraphs 18-20.

[11] I have considered the evidence and submission of the parties. Evidence was given by the Applicant. 4 Evidence for the Respondent was given by:

● The owner/managers Mr Christopher Bussau 5 and Mrs Ida Bussau.6

Ms Ann Reynolds who worked for the Respondent for the month of August 2012 when the owners were away. 7

Mr Gregory Stephens who has worked for the Respondent since September 2012. 8

Ms Aurora Verson who is Ms Bussau’s mother and who does some catering work for the Respondent. 9

Ms Anna Dugec friend of the owners who has performed work for the Respondent from time to time over many years and who had contact with the Applicant through her work with the Respondent from August 2012. 10

[12] It is not contested that:

● The relationship between the Applicant and Mr and Mrs Bussau deteriorated during 2012.
● The Applicant was not paid for his work.
● The Applicant was not required to pay rent for the residence.
● The rent was not an authorised deduction from wages pursuant to Part 2-9 Division 2 of the Fair Work Act 2009.
● To some extent the decision to offer the Applicant rent free accommodation in return for the performance of certain regular work was made to assist a person in need. A mutual friend told Mr Bussau that the Applicant did not have accommodation and was in need of assistance.
● Neither Mr Bussau nor Mrs Bussau formally terminated the relationship until 6 January 2013. However, Mr Bussau gave uncontested evidence that he expressed the view that things were not working out well and that the Applicant should look for somewhere else from as early as January 2012.
● There was no written contract of employment, there was no written record of the duties required to be performed, and there were no written policies or procedures.
● There were no written warnings.

[13] The evidence of Mr and Mrs Bussau concerning the feedback they gave to the Applicant in respect to problems with conduct and performance was generalised. Having considered the totality of the evidence before me I am satisfied that when there were alleged problems with conduct or performance Mr and Mrs Bussau may have brought some of these issues to the Applicant’s attention but I am satisfied that they did not make it explicit that repetition of the conduct would put his employment in jeopardy. There was a lack of formality in the relationship and I am therefore satisfied that Mr and Mrs Bussau did not treat the Applicant as a person with the rights of an employee.

[14] With the benefit of hindsight Mr and Mrs Bussau gave evidence about what they saw as serious problems with the conduct and performance of the Applicant from early in the relationship. However, the behaviour of the owners does not reflect this. Mr and Mrs Bussau were absent overseas throughout the month of August 2012. During that period they relied upon the Applicant to look after the facility during the evenings and on Mondays and Tuesdays during the day. Despite their evidence about concerns about the Applicant’s conduct and performance including honesty the Applicant still had the run of the place and also some responsibility for the business during the evenings up until the time of his termination.

[15] There were numerous competing allegations in this case. Mr and Mrs Bussau were very upset by what they saw as the ungrateful behaviour of the Applicant. The situation had caused them both considerable stress. In my assessment the other witnesses for the Respondent all had a strong relationship with Mr and Mrs Bussau and felt strong loyalty to them and were strongly motivated to defend and support them. In this situation the witnesses for the Respondent, particularly Mr and Mrs Bussau, were not very precise about the details of particular events and tended to make sweeping statements. In particular I treat with considerable caution their evidence about the frequency of particular conduct by the Applicant and the frequency of events where the Applicant was advised his conduct was not acceptable.

[16] The following extracts from the statement of Ms Reynolds illustrate the nature and quality of the evidence from the witnesses for the Respondent:

“During my time there, however he (the Applicant) took bookings for both the Motel & Receptions, making countless mistakes doing so, causing all sorts of problems for the day staff. He was the subject of a lot of complaints for his poor manner.”

...

“During my time here Christopher Trickey did not buy very much for his personal needs. He stole and used food & drink supplies from the kitchen and bar. He stole and used supplies from the Motel storeroom such as toilet paper, tissues, fly sprays, washing powder, tea bags, coffee etc.”

...

“He did not care whether he hurt or inconvenienced anyone or not as long as he was free to do what he wanted. He very clearly has little or no moral fibre to him at all.” 11

[17] I am not satisfied that the mistakes during the month of August in bookings were “countless” or that there were “a lot of complaints” or “all sorts of problems”. The evidence of the Respondent witnesses during proceedings in respect to the alleged theft of supplies was quite inconsistent. I am not satisfied that Ms Reynolds was in a position to know how much the Applicant bought for his personal needs and she did not give evidence that she was a direct witness of the alleged theft of items. Ms Reynolds embellished her witness statement by describing how the Applicant had asked her to purchase supplies for him including a pot of honey when she was going to buy some items for the business. Ms Reynolds gave the impression that this was another example of his stealing. However, it was later revealed that Ms Reynolds never purchased the items and that the Applicant had never said that he was not going to pay for the items. The evidence of other witnesses for the Respondent was that the Applicant asked cleaning staff if he could have a roll of toilet paper and they agreed to this. The Applicant accepted that this had happened in respect to a roll of toilet paper and some tea bags.

[18] Another example is the alleged behaviour of the Applicant in attending a function. The Applicant went into a 60th birthday party in the reception centre to hear the Abba cover band Bjorn which was playing at the function. Mrs Bussau and Mr Stephens say that he was poorly dressed and uninvited. Mr Stephens says “Ida Bussau walked past and seeing that Mr Trickey had come into the reception centre asked him to leave. Mr Trickey ignored her request and stayed there until he was escorted out.” 12 The evidence of Mr Bussau was completely different. Mrs Bussau says that she was busy and gestured to the Applicant to leave and that later on she asked him to leave and he did so. The evidence was also vague and inconsistent in other details. The Applicant denies that he was poorly dressed or was asked to leave. I am not satisfied that any misconduct was established in relation to this incident.

[19] I consider from observing the manner in which the Applicant gave his evidence that he is not very sensitive to the perceptions of others and I was not convinced about the accuracy of his evidence when he rapidly recalled previously unmentioned details about a particular incident when questioned.

[20] Given my strong reservations about the reliability of the detail of the witness evidence from both sides in this matter and given that there are so many competing details I consider that no useful purpose will be served by detailing the evidence and submissions in respect to all of the allegations and counter allegations made. I will simply summarise the most important allegations and the conclusions I have drawn from an examination of the competing evidence.

Animals

[21] The Respondent alleges the Applicant turned a storage area into a chicken coup for his chickens without approval. I accept that Mr and Mrs Bussau were unhappy about the chickens and the chicken coup and expressed that dissatisfaction to the Applicant but I am not satisfied that they clearly told the Applicant that he could not have the chickens or build the chicken coup. The Applicant acquired a rooster. The Applicant denies that he was asked to remove the rooster. However, I am satisfied that the owners made it clear to the Applicant they disapproved of the rooster and felt it disturbed the guests and the Applicant did nothing about this.

[22] It was not contested that the Applicant allowed the chickens to frequently roam outside the yard of his residence and sometimes into the general areas used by staff and guests of the motel and reception centre. On occasion they were even inside the reception centre. I am satisfied that on occasions the Applicant did clean up the animal droppings but I am satisfied that this did not always happen. I am satisfied that the Applicant knew or should have known that this conduct was detrimental to the business. I am satisfied that the Applicant failed to take adequate steps despite being aware of the concerns of the owners to control the chickens and remove the rooster.

Attire

[23] The Applicant accepts that on occasion he was bare chested around the property and in the reception area. I am satisfied that the owners expressed their dissatisfaction with the standard of dress and that the Applicant repeated the conduct despite this. This may have generally occurred at times when there were not many guests around or likely to be around but the possibility that staff and guests may be offended or have an adverse view of the standards of the business cannot be excluded. I am satisfied that the Applicant knew or should have known that this conduct was detrimental to the business.

[24] The Applicant denies that he greeted a guest wearing only a towel. There is no direct evidence to sustain this allegation which is denied by the Applicant.

[25] The Applicant denies that he was out the front of the motel in the early morning in his underwear. The Applicant says he was wearing shorts. There was some conflict in the evidence about the nature of the underwear. As stated earlier I am satisfied that the Applicant was inappropriately attired on occasion and persisted in this despite being aware that the owners did not approve.

Diligence and attendance

[26] Given the failure of the employer to pay the Applicant, complaints about alleged instances of poor attendance lose some of their seriousness. However, I do accept the evidence of Ms Verson and Mr and Mrs Bassau that on occasion the Applicant neglected his duties to be present in the evenings and answer the phone. I am not satisfied that the Applicant was clearly counselled about this. The Applicant alleged that the telephone system was faulty which explained his failure to respond to calls. The owners denied that there was a problem with the telephone system.

[27] The Applicant rejects the evidence of Ms Reynolds about problems with attendance and gave evidence that Ms Reynolds’ hours also varied. The Applicant also rejected the evidence of Ms Dugec about failure to answer the bell and open the door when she arrived for work in the mornings. There was a conflict in the evidence concerning the time of the morning when this occurred. I am not satisfied that this aspect of the evidence revealed any serious breach of duty.

[28] Overall I am satisfied that on occasion the Applicant neglected his duties but I am not satisfied that he was clearly counselled about this.

[29] Mr Bussau and Ms Reynolds accuse the Applicant of providing quotes and other information to customers which was not accurate and which created more work for them and some complaints. I am satisfied that the Applicant performed these duties in order to be helpful to the business but I accept that Mr Bussau expressed his dissatisfaction with this to the Applicant on occasion. The evidence about the frequency of the problem was not reliable.

[30] There were allegations concerning the Applicant’s alcohol consumption and its affect upon his conduct and performance. I do not regard the evidence in respect to this matter as sufficient to draw any adverse conclusion.

[31] The Applicant accepts that on one occasion he did call a guest a whinger. I accept that Mr Bussau told him this was inappropriate.

Honesty and trust

[32] As explained earlier I am not satisfied that the allegations concerning theft of household items are established. There was similarly no direct evidence to support the vague allegations concerning accepting money for rooms.

[33] The Respondent makes serious allegations against the Applicant concerning the loss of money from Mrs Bussau’s handbag at the end of July 2012 and loss of money from the till in December 2012. I am satisfied that the accusation concerning either incident was not put to the Applicant until around the time of termination. The matters were not reported to the police until after the lodgement of the unfair dismissal claim. Mrs Bussau did not include these matters in her statement. The evidence of Mr and Mrs Bussau concerning this matter was totally inadequate to provide an adequate standard of proof for such a serious allegation.

[34] Mr Bussau gave evidence that the Applicant organised a function at the business. The guests paid the business for the function but this did not include the provision of wine. Mr Bussau alleges that the Applicant requested that wine be provided and said that he would pay for it later. Mr Bussau says he provided the wine but that the Applicant never paid for it. Mr Bussau says that the same thing happened in respect to the provision of a computer modem and the use of printing and internet. The Applicant has a completely different version of events. I am not satisfied that any dishonesty was clearly demonstrated by these events. In respect to the provision of the wine at the function it is more likely to have been a misunderstanding.

[35] The Respondent gave evidence concerning an incident in December 2013 when the Applicant was allegedly eavesdropping through a closed door on a conversation between Mrs Bussau and Ms Reynolds. The Applicant does not deny the incident although he denies he was lying on the floor listening.

[36] Mrs Bussau alleges that the Applicant made inappropriate comments to her and rang her at inappropriate times and made inappropriate comments about her to others. No action was taken about this matter. The evidence concerning the alleged comments about Mrs Bussau was supported by Mr Stephens. The Applicant denies the allegations made by Mrs Bussau. I cannot determine the truth of this matter. I accept the evidence of Mr Stephens that the Applicant made inappropriate comments about Mrs Bussau to him.

Rubbish and mess

[37] I am satisfied by the evidence of Mr and Mrs Bussau and Mr Stephens that the Applicant did place rubbish in a location next to the car park rather than in the area where the bins were located or in the courtyard of his residence. The Applicant did not deny that this occurred. I am satisfied that Mrs Bussau expressed her dissatisfaction about this to the Applicant.

[38] The Applicant is accused of leaving the residence in a mess when he finally left the premises. The Applicant says that the items claimed to be damaged were already in a state of disrepair when he moved in. The evidence does suggest that the residence was run down. I am not satisfied that any deliberate damage has been established.

The fence

[39] The Applicant wanted to significantly extend the yard around his residence. He decided to erect a fence close to the car park in order to achieve this. Mrs Bussau told the Applicant she did not agree to the fence being erected. The Applicant says that ultimately Mr Bussau said that it was OK for him to erect the fence. Mr Bussau strenuously denies that he ever gave approval and in fact says that he told the Applicant not to erect the fence. The Applicant says that Mr Bussau paid for certain items for the fence including the concrete and he says that the fence was erected over approximately six Sundays. Mrs Bussau says that there was one week between when she told the Applicant not to erect the fence prior to any construction and when she saw that the fence had been built and was angry and cut down part of the fence.

[40] The weight of evidence supports a finding that the Applicant did not have approval to build the fence. However, given the history of this matter and the nature of communications between the parties I am not satisfied that Mr Bussau clearly communicated that the fence was not to be built. However, I am satisfied that Mrs Bussau clearly communicated that the fence was not to be built. The Applicant effectively acknowledged Mrs Bussau’s opposition.

[41] There was a confrontation between the Applicant and Mrs Bussau on 27 December 2013 when the Applicant discovered that part of the fence had been cut down. In that conversation the Applicant swore at Mrs Bussau. Mrs Bussau says that she then told the Applicant she wanted him to leave and the Applicant responded “no I like it here”. I am satisfied that this was clear notice to the Applicant that Mrs Bussau intended to end the employment relationship and the accompanying residential arrangement. Mrs Bussau accepts that she also swore at the Applicant.

[42] Mrs Bussau says that there was another occasion many months earlier when the Applicant swore at her and hung up on her when she had unsuccessfully tried to ring him a number of times. The Applicant denies this incident.

[43] I am satisfied that the incident on 27 December 2013 was what led to Mr and Mrs Bussau deciding to bring the relationship to an end. They say that they agreed that they would do this in a meeting they would arrange with the Applicant on 8 January 2013.

The confrontation and dismissal of 6 January 2013

[44] On Sunday 6 January 2013 the Applicant asked Mr Bussau for $30 or $40 so he could purchase steel gardening stakes. In the evidence he gave before Commissioner Lee in June 2013 Mr Bussau gave this account of the events:

“And then this arrangement went through until January 2013. And what happened in January 2013 please?---Well, it wasn't so much what happened in January 2013. It was ongoing that we have many, many problems with Chris Trickey's presence on the premises, which included harassment of guests, wandering around the front of our business property in his underwear, a whole range of issues which was not satisfactory and we had on many a times asked him to find somewhere else, and on each occasion he said that he had nowhere to live, no money, couldn't find it. My wife said to him mid-December, she said you've got to leave, and he said to her in front of a lot of staff at I'm not going to leave, I'm never going to leave. And it culminated on 6 January I was going to talk to him the following Tuesday, this was a Sunday, and he came to me asking for money toward the so-called betterment or beautification of the backyard. I said look, I don't want you doing anything in the backyard there. He said why not. I said I would talk to you on Tuesday about why not, and he just went on and on, "You can't leave me like this, you have to tell me now". So I said, "Look, you have to find alternative accommodation. As you know, it's just not working out. It hasn't worked out from day one". And he just went beresk. He threatened me with physical and financial matters, to the stage where he kept about half a dozen times he kept coming back into the office. And so I had to lock him out of the office, which is what leads back into the residence. And I told him at that time if he can't work out, he will no longer be part of our business in any way, shape, or form, and he was locked out of the premises, out of our business from that day.” 13

[45] In his statement for these proceedings Mr Bussau says:

“He would not leave it alone. I was busy at the time but he just kept coming back into the office saying he could not/would not wait until Tuesday. I therefore sat him down and went over the things that we had discussed many times before - poor attitude, poor customer relations, refusal to obey instructions, inappropriate dress code, inappropriate behaviour, constant disappearances without notice, abuse of my wife - a manager of the business etc. As I had told him before, these things were simply not acceptable, therefore at the end of January, his obligations regarding answering phones etc for the business, and his free rental in the house would cease. I said to him that our agreement was aimed at being beneficial to both parties, but it had not worked; had never really worked. I told him that it was now over.” 14

[46] Mr Bussau then says that the Applicant reacted angrily and threatened him. He says that following this “I said to him, “right I am now going to lock you out of the office/ you are now no longer allowed anywhere in business areas/ you are only allowed in the residence.”” Mr Bussau says that the Applicant later calmed down somewhat and he apologised and asked Mr Bussau to reconsider. “I told him that we had been down this track many times, and no - there could be no change in the decision, that we should simply part as friends, and I said if he needed any help at all with finding flat etc that I would be more than willing to help him out- this was mainly about ensuring he left.” The position was then confirmed by the letter on 8 January 2013.

[47] The Applicant’s version of events given in the transcript before Commissioner Lee was:

“I asked him for $40 to buy some stakes from Bunnings to make the workplace safe out the back, and he was busy in the office. I said Chris, I've finished, I'm pretty happy with it, it's all levelled off, come out and have a look, and he didn't want to come out and have a look. And is said well can I have the $40 just to buy the stakes, it's for your benefit as well, and it looks good. And in the end I went and he said I'll be there in a minute, I'll be there soon, I'm busy doing the books. So I went back in and thought okay, I'm doing a bit of daylight, it was 11 o'clock. So I went back in again and said Chris, you know, can we get on with it, I want to go to Bunnings. He pretty well ignored me. He said, "Chris, I'm very busy at the moment". I said, "Chris, I just want to finish the job, everything's set up, I just want to wack some stakes in, can I have $40". I thought he would have given me $40 because earlier during the piece he gave me $40 or $50 for a clothes line which didn't exist which I put in myself. And he didn't do it. And then I went back in and said, "Chris, what's the problem, I can sense that there's something wrong". And he said, "I'll talk to you about it on Tuesday". And I said, "Well, I'm not a baby, tell me now what's the problem". And he said, "Look, I'll talk to you about it on Tuesday". I said, "Chris, I just want to finish landscaping, obviously something's wrong, come out and have a look at it". And eventually he came out and had a look at it like this and said, "Don't do any more". And I said, "Well, it's going to fall down" and he then went back inside. So I went back inside, "Chris, there's obviously an issue, can you please tell me about it". He said, "I'll discuss it with you on Tuesday". I said, "Chris, I don't want to wait until Tuesday, just tell me straight. Have I done something wrong? Are you unhappy with what I've done". He said, he hit the desk and said, "I will discuss it with you on Tuesday". And I said, "Mate, I want to know now what the problem is". And he said, "Officially from now you are fired and no longer work for Norwood House". And I said, "What for? What in the hell for". He said, "I was going to discuss it with you on Tuesday, now get out of the office". And I went back. I went back into the flat and sat there for half an hour thinking what have I done. Nothing had been discussed with me previously. They're quite happy for me to go and do all the other bits and pieces around the place. I went back in, I said, "Chris, I want to know why" and he said, "Get out of here". And then he locked the door on the office and said, "You are not to come into this office and work here anymore".” 15

[48] In his statement in these proceedings the Applicant does not suggest that Mr Bussau used the words “you are fired” and he also did not include reference to the fact that half an hour after he left the office he returned to the office and it was only after this that Mr Bussau locked the door.

[49] I find the detail of the evidence of both witnesses to be unreliable. I am not satisfied that Mr Bussau calmly detailed the reasons for the termination in the manner in which he includes in his statement but failed to include in his evidence before Commissioner Lee. I am satisfied that the Applicant did return to the office after he was told that the relationship was at an end and that he was angry. The gaps in the Applicant’s evidence in this respect taken in the context of the overall relationship and pattern of conduct lead me to accept the evidence of Mr Bussau that the Applicant did behave in an angry and threatening manner. However, for the reasons discussed earlier I am satisfied that Mr Bussau’s account is exaggerated and therefore I cannot be satisfied that this included threats of physical violence.

[50] I agree with the submissions of the Applicant that the glowing reference provided to the Applicant by Mr Bussau after this incident and the calm tone of the termination letter of 8 January 2013 and the absence of any action to notify the police do not suggest that serious threats were made.

Post termination incident of 13 February 2013

[51] Mr Bussau says that on 13 February 2013 he went to the residence and discovered that the Applicant had not yet left the premises as promised. The Applicant told Mr Bussau that he would be gone by the morning and Mr Bussau said that was not good enough. Mr Bussau was upset and annoyed. The back door had been taken off so that the fridge could be moved out. Mr Bussau said that if he changed the locks the Applicant would not be able to get in. Mr Bussau had hold of the door and moved it a small amount to show what could be done to seal the residence. Mr Bussau says that the Applicant pushed the door so that it knocked his head and he fell to the ground. He says that the Applicant did not come to his assistance. Mr Bassau provided photographic evidence of his injuries and Mr Stephens confirmed that Mr Bassau was injured.

[52] The Applicant says that Mr Bussau pushed him first and abused him verbally. The Applicant says that he dialled 000 but the police did not attend. Mr Bassau agreed that the Applicant may have said something about dialling 000. The Applicant says that he pushed Mr Bussau away. The Applicant says that the door did fall on top of Mr Bussau when he fell over. The Applicant says that Mr Bussau said he was OK and left.

[53] The evidence in this matter is quite confusing. I am satisfied that there was some physical contact between the parties and that there was an argument to which both parties contributed. I consider that any injury to Mr Bassau was likely to have been an accident rather than due to deliberate assault by the Applicant. However, the Applicant contributed to the situation. I am not satisfied that 000 was called given that emergency services did not attend. I am not satisfied that Mr Bassau assaulted the Applicant.

Conclusion regarding the relationship

[54] I am satisfied that the relationship between the Applicant and the owners of the business is irretrievably broken down. In the event that I find that the termination was unfair I am satisfied that reinstatement would be totally inappropriate. Both parties opposed reinstatement.

[55] I am also satisfied that following the incident of 27 December 2013 the Applicant was in no doubt that the owners were not happy with the relationship and wanted to bring it to an end. I am satisfied that Mr and Mrs Bussau expressed their dissatisfaction with the relationship and the conduct and performance of the Applicant on a number of occasions prior to 6 January 2013. However, prior to 27 December 2013 I am not satisfied that this was in the form of a clear warning that the employment was in jeopardy.

Criteria for determining whether a termination is unfair

[56] The legislation provides as follows:

“s387 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.”

Was there a valid reason for termination? (S 387(a))

[57] I am satisfied that there was a valid reason for termination of the Applicant. Although a number of the matters alleged by the Respondent have not been established and many have been exaggerated there were a number of significant issues with the conduct and performance of the Applicant. This included:

● The failure to adequately control and clean up after his animals. This was detrimental to the business and he failed to take action concerning this despite the Respondent making their dissatisfaction about this clear on a number of occasions.
● The failure to do anything about the rooster. This was detrimental to the business and he failed to take action concerning this despite the Respondent making their concern about this clear.
● The wearing of inappropriate attire which was detrimental to the business and repetition of this action despite being advised that it was inappropriate.
● The Respondent was dissatisfied with the quality of the work of the Applicant including undertaking duties which were not required and lack of reliability and inappropriate comments to a guest.
● Inappropriate eavesdropping on the owner.
● Inappropriate comments about Mrs Bussau to Mr Stephens.
● Inappropriate disposal of rubbish which was detrimental to the business.
● The construction of the fence without authorisation knowing that Mrs Bussau was strongly opposed to it.

[58] I am also satisfied that the Applicant responded to the termination on 6 January 2013 in a threatening and inappropriate manner even though I am not satisfied that this involved threats of physical violence.

[59] Individually these matters might not constitute a valid reason for termination but cumulatively they do.

Procedural matters. S387(b)-(g)

[60] For the reasons discussed earlier the Applicant was only told in general terms about the reasons for the termination on 6 January 2013. However, I am satisfied that Mr Bassau did state that things were not working out and had not worked out or words to that effect. I am satisfied that the Applicant knew a number of the matters which lay behind that judgement given that they had been previously raised with him culminating in the confrontation with Mrs Bussau on 27 December 2013. In these circumstances I consider this to be a factor, but not a strong factor, which stands in favour of a finding that the termination was unfair (Section 387(b)).

[61] The Applicant was not given an opportunity on 6 January 2013 to respond to the reasons for the termination which related to his capacity or conduct. However, the Applicant was effectively given notice of the termination by Mrs Bassau on 27 December 2013. The Applicant took no steps to respond to these issues prior to 6 January 2013. In these circumstances I consider this to be a factor, but not a strong factor, which stands in favour of a finding that the termination was unfair (Section 387(c)).

[62] The Applicant initiated the meeting and so there was no refusal to allow a support person to be present. However, there was no realistic opportunity for a support person to be present (Section 387(d)).

[63] The Applicant was advised about the inappropriateness of his conduct and performance on a number of occasions. However, there was no formal warning except for the statement of Mrs Bassau on 27 December 2012. I consider that the Applicant was clearly on notice from the conversation of 27 December 2012 that Mrs Bassau intended to end the employment relationship with him. There is no evidence that the Applicant took any steps to respond to the allegations made against him or the concerns of the employer between 27 December 2012 and 6 January 2012. In these circumstances I consider this to be a factor, but not a strong factor, which stands in favour of a finding that the termination was unfair (Section 387(e)).

[64] Commissioner Lee has found that the business is not a small business. It is however not a large business and it does not have any dedicated human resource management. In this case the Applicant was not paid. Any deductions for the provision of accommodation were not in accordance with the Act. I am satisfied that the absence of a proper relationship was a significant contributor to the absence of proper procedures associated with the termination. I am satisfied that the lack of expertise of the owners in this area contributed to this situation. I cannot condone the failure of the employer to enter into a proper employment relationship with appropriate payments. The employee cannot be held responsible for such an arrangement. It was the position of both parties that the arrangement was entered into to assist the Applicant. The factors here pull in different directions. Overall I consider this a neutral factor in determining whether or not the termination was unfair (Section 387(f) and (g)).

Other relevant matters. (S387(h))

[65] The confusion between the residential tenancy arrangement and the employment arrangement is a relevant factor in this case. The fact that the termination of the Applicant also meant that he would be without accommodation is also a factor in considering the harshness of the termination.

[66] The termination of the employment duties on 6 January 2013 was without notice. As stated earlier notice was effectively given by Mrs Bassau on 27 December 2013. However, the ending of the provision of free accommodation which was associated with the employment was ended with approximately one month’s notice. I consider in all of the circumstances of this case that I should regard this as a termination with at least one month’s notice.

[67] The serious breakdown in the relationship between the Applicant and the owners is also a relevant factor.

Conclusion as to whether the termination unfair

[68] The existence of a valid reason stands in favour of a finding that the dismissal was fair. The nature of the valid reasons and the period of time over which they occurred and together with the breakdown in the relationship mean that the termination was not a harsh or disproportionate response to the conduct and performance issues. I conclude this taking into account the personal circumstances of the Applicant and that the loss of employment also meant the loss of accommodation.

[69] There was some unfairness in the procedures adopted by the employer to execute the termination. In normal circumstances these defects would be significant enough to render the termination unfair. However, the circumstances of this case are unusual. I concluded that the issues of concern about the conduct and performance were well known to the Applicant and that he failed to address those concerns. I consider the serious breakdown in the relationship over time to be a relevant factor.

[70] In all of the circumstances the valid reasons and the other relevant factors outweigh any procedural unfairness. Even if I was to find the procedural matters rendered the termination unfair I would not consider compensation to be appropriate given the misconduct of the Applicant, including the behaviour on 13 February 2013 after the termination, and given that I estimate that the employment would only have continued for a very short period of time given the breakdown in the relationship.

[71] The termination of the Applicant was not harsh, unjust or unreasonable. An Order dismissing the application will be made.

COMMISSIONER

Appearances:

Mr J Fetter and Mr G Szlawski appeared for the Applicant.

Mr B Cook appeared for the Respondent.

Hearing details:

2013

Melbourne

September 4

 1   PN378 to PN398.

 2   PR537907.

 3   Respondent’s submission, at paras 18-20.

 4   Exhibit T2.

 5   Exhibit N7.

 6   Exhibit N5.

 7   Exhibit N3.

 8   Exhibit N4.

 9   Exhibit N2.

 10   Exhibit N1.

 11   Exhibit N3.

 12   Exhibit N4.

 13   PN83.

 14   Exhibit N7, at para 12.

 15   PN160.

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