Mr Gregory Wayne Jarvis v Anderson Plumbing & Roofing Pty Limited
[2010] FWA 8896
•22 NOVEMBER 2010
[2010] FWA 8896 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gregory Wayne Jarvis
v
Anderson Plumbing & Roofing Pty Limited
(U2010/5230)
COMMISSIONER ASBURY | BRISBANE, 22 NOVEMBER 2010 |
Application for unfair dismissal remedy - jurisdiction - operation of Small Business Fair Dismissal Code - meaning of “serious misconduct” under the Small Business Fair Dismissal Code - finding that dismissal was not consistent with Small Business Fair Dismissal Code - finding that dismissal was harsh in all of the circumstances - compensation awarded.
Introduction
[1] This decision arises from an application by Gregory Wayne Jarvis under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, in relation to the termination of his employment by Anderson Plumbing & Roofing Pty Ltd (Anderson’s).
[2] Mr Jarvis contends that his dismissal was unfair on the basis that it was harsh, unjust and unreasonable. Anderson’s contends that the dismissal was consistent with the Small Business Dismissal Code and in the alternative, that the dismissal was not unfair. The matter did not settle by conciliation and Mr Jarvis elected to proceed to arbitration. At a directions hearing on 8 March 2010 the parties agreed that both questions should be dealt with by way of a single hearing.
[3] A hearing was conducted in Maroochydore on 20 and 21 May 2010 and final submissions were made in writing concluding on 13 July 2010. Mr Jarvis was represented by Mr Fuhrman-Luck of Carroll, Alexander and Associates, and Anderson’s was represented by Mr Merrell of Counsel, instructed by Aitken Legal.
Background
[4] It is not in dispute that Mr Jarvis was employed by Anderson’s as a maintenance plumber, from 30 January 2006 until his dismissal on 21 December 2009 (or 22 December 2009 according to Mr Jarvis). It is also not in dispute that Anderson’s was a small business employer within the meaning of s.23 of the Act and Schedule 12A, Item 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Accordingly, at the date of the dismissal, the Small Business Fair Dismissal Code applied to Anderson’s. The dismissal was not a case of genuine redundancy.
[5] By virtue of s.385 of the Act, a person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed;
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[6] If Anderson’s establishes that the dismissal of Mr Jarvis was consistent with the Small Business Fair Dismissal Code, the dismissal is withdrawn from the general operation of s.385 of the Act and FWA cannot find that the dismissal was otherwise unfair on the basis that it was harsh, unjust and unreasonable.
[7] If Anderson’s does not succeed with the argument that the dismissal of Mr Jarvis was consistent with the Small Business Dismissal Code it is not automatic that a finding will follow that his dismissal was unfair on the basis that it was harsh, unjust or unreasonable. The onus shifts to Mr Jarvis as the applicant to establish that this was the case.
[8] The Small Business Fair Dismissal Code provides:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.
Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair, it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned either verbally, or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem having regard to the employee’s response.
Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer may be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia. Evidence may include a completed check list, copies of written warning(s), a statement of termination or signed witness statements.”
[9] The provisions dealing with the Small Business Fair Dismissal Code must be viewed in the context of Part 3-2 of the Act, in which they are found. That Part has as its object, ensuring that a “fair go all round” is accorded to both the employer and the employee concerned: s.381(2). The effect of section 385(c) is to deprive a dismissed employee of access to relief that is otherwise generally available to dismissed employees on the ground that their dismissal is harsh, unjust or unreasonable, in circumstances where the employer is a small business and has complied with the Code. The further effect of the Code is that where misconduct is serious so that the provisions of the Code dealing with summary dismissal apply, the employee is not entitled to the other provisions of the Code dealing with elements of procedural fairness, including:
- The right to be given a valid reason why he or she is at risk of being dismissed;
- A warning that there is a risk of dismissal if there is no improvement;
- An opportunity to respond to the warning and a reasonable chance to rectify the problem, having regard to the response; and
- The choice to be represented in discussions in circumstance where dismissal is possible.
[10] In my view, the object of “a fair go all round” requires that before the employee is subjected to the detriment of being deprived of the provisions of the Code relating to procedural fairness, and of access to the general provisions of the Act dealing with unfair dismissal, the misconduct must be of the kind set out in the examples which are said to include theft, fraud, violence, and serious breaches of occupational health and safety procedures. To be properly described as “serious”, misconduct must be: “significantly worse than negligence and serious in its culpable quality as misconduct, as distinct from the results”. 1 The term “serious misconduct” as it appears in the Code is not associated with the term “wilful”. Serious misconduct is judged on an objective basis, and it is therefore not necessary that the employee should intend to do wrong. If the employee knows of a specific relevant risk there may be misconduct depending on its seriousness. If the employee does not know of a specific relevant risk, then the negative element of misconduct requires a disregard or recklessness of possible risk.2
[11] If the dismissal is not removed from the operation of the general provisions of the Act relating to unfair dismissal, FWA must decide whether it was harsh, unjust or unreasonable. In deciding whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the following matters as set out in s.387 of the Act:
(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 the dismissal; and
(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.
[12] The criteria in s.387 go to both procedural and substantive matters, and FWA is required to weigh the evidence and material before it and to decide on balance whether a dismissal is harsh, unjust or unreasonable. A dismissal may be:
• | harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; |
• | unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or |
• | unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer." 3 |
[13] A valid reason for termination of employment is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” 4 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts5, and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.6 In determining whether a reason is valid:
“It is not the court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct...” 7
[14] The issues in dispute are:
- Whether Anderson’s complied with the Small Business Dismissal Code; and
- In the alternative, whether Mr Jarvis’ dismissal was harsh, unjust or unreasonable within the meaning of s.387 of the Act.
[15] It was also contended for Anderson’s that in the event that Fair Work Australia found that Mr Jarvis was unfairly dismissed, any compensation order should reflect the fact that Mr Jarvis was a casual employee. This was disputed on behalf of Mr Jarvis.
Evidence
[16] Evidence was given by Mr Jarvis on his own behalf. Evidence was also given in support of Mr Jarvis by his wife, Mrs Melissa Jarvis. Evidence for Anderson’s was given by:
• Mr Bob Anderson, Director;
• Mrs Larnie Anderson, Director;
• Mr George Johnston, owner and operator of Secrets on the Lake, a client of Anderson’s;
• Ms Lily Korst, employee of Anderson’s from October 2007 until December 2008;
• Mr Peter Stott, Plumber and contractor to Anderson’s for 5 years;
• Mr Ryan Hayes, Plumber employed by Anderson’s for over nine years;
• Mr Kent Blackwell, owner and operator of K & C Blackwell Builders, client of Anderson’s;
• Ms Kandice Piva, part-time employee of Anderson’s;
• Mr Dan Raby, Director/Owner of First Point Plumbing, sub-contractor to Anderson’s; and
• Ms Carly Maselli, employee of Anderson’s in 2008.
Matters leading to the dismissal of Mr Jarvis
[17] Evidence about the matters leading to the dismissal of Mr Jarvis can be summarised as follows. Mr and Mrs Anderson operate a plumbing business from a property at which they also reside. The property is approximately four acres in size, and the Shed from which the business operates is some 60 metres from the home of Mr and Mrs Anderson. There is a winding road made of gravel, concrete and bitumen down past the home to the shed. The road has two bends. There is a turning circle in front of the shed which is surfaced with gravel. Vehicles come and go throughout the day.
[18] Mr Jarvis commenced employment with Anderson’s as a maintenance plumber on 30 January 2006. Mr Jarvis contends that he was employed on a full time basis. Anderson’s maintains that Mr Jarvis was at all times a casual employee.
[19] Mr Jarvis said that in January 2008 he developed symptoms of depression and anxiety and sought medical attention. Medication was prescribed and Mr Jarvis began to see a therapist. There was no evidence from any treating medical practitioner that Mr Jarvis was suffering from anxiety and depression, or any other medical condition. It seems to have been accepted by Mr and Mrs Anderson that Mr Jarvis was suffering from anxiety and depression. Mr Jarvis said that he worked on a part-time basis for three months after the birth of his son in February 2008 and was referred to a psychologist during this time for further treatment. Under cross-examination, Mr Jarvis agreed that Anderson’s had full time work available for him and that he was working on a part-time basis because he was suffering from anxiety and depression, rather than because of a need to care for his child. Mr Jarvis rejected the proposition that his witness statement was an attempt to create the impression that he was working part-time as a result of the birth of his son or the need to provide child care, and agreed that child care was provided by his wife. Mr Jarvis said that he had a number of periods of time where he was absent from work or worked for fewer hours than required by Anderson’s because of issues associated with his condition.
[20] Mr Jarvis said that he considered Mr and Mrs Anderson to be close friends, and that he had been invited with his wife and child, to stay at the Fraser Island holiday home of Mr and Mrs Anderson and to their home for dinner. This was considered by Mr Jarvis to be an honour as only friends were invited to dinner and to the Anderson’s holiday home. Mr Jarvis also said that he received support and had personal discussions with both Mr and Mrs Anderson about issues such as his depression, treatment for that condition and the loss of his father. Mr and Mrs Anderson were also supportive and gave gifts on the birth of both the children of Mr and Mrs Jarvis, in February 2008 and October 2009.
[21] Under cross-examination, Mr Jarvis agreed that other employees were invited to the Anderson’s holiday home at the same time and that he and those employees were performing work at the home for which they were paid. Mr Jarvis also agreed that he had been to the Anderson’s home on one occasion for dinner and that he and his wife had not been the only guests.
[22] In December 2007, at a Christmas function held at the Anderson’s property and attended by other employees, Mr Jarvis pulled down his pants, bent over and exposed his genitals. Mr and Mrs Anderson both said in their evidence that they were appalled by this behaviour and that never before had a worker behaved in this manner. Mrs Anderson went inside the house. Mr Jarvis apologised the next day, and it was not pursued further on the basis that the Andersons were aware of Mr Jarvis’ depressive condition and the effect that alcohol could have on him. Mr Anderson agreed under cross-examination that he photographed Mr Jarvis during this incident and later showed the photograph to other employees.
[23] Mr Anderson said that throughout the course of his employment Mr Jarvis’ attitude vacillated between periods of civil behaviour and periods where he displayed acute agitation and aggressive behaviour. There were a number of clients who complained about the attitude displayed by Mr Jarvis, and Mr Anderson responded by not sending Mr Jarvis back to perform further work for those clients. Mr Anderson also said that he was aware that Mrs Anderson was concerned about the behaviour of Mr Jarvis and reported to him that she could not deal with him. This was particularly the case in the twelve months prior to his dismissal.
[24] According to Mr Anderson, Mr Jarvis’ availability to perform work as required became an issue because of his depressive condition, family commitments or not wanting to work. While Mr Jarvis was a good maintenance plumber, there were issues with his attitude towards Mrs Anderson, work colleagues, contractors and customers. Mrs Anderson said that Mr Jarvis displayed aggression and anger towards her when she attempted to raise issues involving complaints by clients. Mr Jarvis also ignored Mrs Anderson. This caused Mrs Anderson to avoid contact with Mr Jarvis and to have other employees deal with him in terms of allocating jobs.
[25] Ms Korst said that she witnessed Mr Jarvis speaking to other staff in an aggressive and intimidating manner. Ms Korst received complaints from clients about Mr Jarvis’ behaviour and said that on one occasion a client rang her in tears about this. Ms Korst also witnessed two discussions between Mr Anderson and Mr Jarvis, during which Mr Jarvis was warned about his behaviour. When cross examined about these matters, Ms Korst was able to provide details.
[26] Mr Hayes said that he witnessed Mr Jarvis speaking to Mrs Anderson in a manner that was rude, inappropriate and unnecessary. Ms Piva’s role was office support and management of maintenance jobs. This involves liaison with staff and clients, booking in and organising maintenance jobs and follow up. Ms Piva witnessed on several occasions non compliant, non responsive and aggressive behaviour on the part of Mr Jarvis. This caused Ms Piva to feel intimidated and reluctant to book Mr Jarvis for jobs. Ms Piva is Mrs Anderson’s daughter, and this fact was not stated in her witness statement, but was stated in oral evidence in chief.
[27] Ms Maselli said that during the year she worked at Anderson’s she was involved in working with plumbers and roofers to co-ordinate daily jobs. According to Ms Maselli, Mr Jarvis’ behaviour during this time was unpleasant and unacceptable. Ms Maselli said that Mr Jarvis was rude and abrupt towards her, other employees and the Andersons. Ms Maselli said that on occasion she was required to pull Mr Jarvis off a job and send him to another job on the basis that there was an urgent situation. Mr Jarvis would become angry at being interrupted, and behave as though standard tasks which were expected of a maintenance plumber were too difficult for him. Ms Maselli’s partner is Mrs Anderson’s son, and this fact was not stated in her witness statement, or her evidence in chief.
[28] Ms Maselli also said that she witnessed many one on one discussions between Mr Anderson and Mr Jarvis, during which Mr Jarvis was warned that his mood and unpleasantness towards Mrs Anderson were unacceptable and needed to stop. Ms Maselli maintained that these were warnings and said in cross examination that if she had been spoken to in the same way, she would have considered that she had been warned about her behaviour. Under cross-examination Ms Maselli said that she is the partner of Mrs Anderson’s son.
[29] Mr Johnston said that when he asked Mr Jarvis to come and correct a problem with some earlier repairs, Mr Jarvis was not co-operative and seemed sensitive, moody and disinterested. Mr Johnston asked Mr Anderson not to send Mr Jarvis to Secrets on the Lake again, and said that if he did so the company would take its business elsewhere. Mr Blackwell said that Mr Jarvis had a grumpy attitude and he asked for another plumber four weeks before Christmas.
[30] In his evidence in chief, Mr Jarvis maintained that his behaviour while performing work for Anderson’s was always civil and respectful and that he did not behave in an agitated or aggressive way. Mr Jarvis also maintained that his communications with Mrs Anderson were never inappropriate, disrespectful or aggressive. Under cross-examination Mr Jarvis conceded that he had been angry; and could have used an angry and raised tone of voice with Mrs Anderson; and could have been angry with Mr Anderson. Mr Jarvis also agreed that he could have spoken to Mrs Anderson in a raised and angry tone of voice, in the presence of other employees. Mr Jarvis conceded that he would sometimes get angry with Ms Maselli and Ms Piva and used a raised and angry tone of voice in discussions with them to express frustration when he was asked to do jobs other than those in the daily plan. There was evidence of an incident in 2007 when Mrs Anderson became upset with Mr Jarvis and later bought her a bunch of flowers.
[31] Mr Jarvis said that he could not recall behaving in a disinterested and moody way towards Mr Johnson when asked to fix a problem and denied displaying a grumpy and uncooperative manner when doing work for Mr Blackwell. Mr Jarvis agreed that he was angry, moody and aggressive with Mr Mumford because he would change his mind about how work was to be done, requiring Mr Jarvis to do that work again. Mr Jarvis also agreed that he had heard the saying: “the customer is always right” but said that he and Mr Mumford had an instant dislike for each other.
[32] On the evening of Monday 2 November 2009, Mr Jarvis received a telephone call from his brother, accusing him of killing their mother by not talking to his brother. This caused significant distress to Mr Jarvis such that on Tuesday 3 November Mr Jarvis left work at around 1.30 pm. Mr Jarvis said that he had been at work since 7.00 am that morning and had completed the jobs allocated to him for that day by 11.00 am. Because he was still upset by the telephone call from his brother, and felt that he was not medically fit to work, Mr Jarvis left the workplace at 1.30 pm after leaving a note on Mrs Anderson’s desk stating:
“How do you respond to a brother who accuses you of killing your mother by breaking her heart. I can’t fix anyone’s problems at the moment. I am really sorry. Greg.”
[33] Mrs Anderson said that after Mr Jarvis left the workplace, Mrs Jarvis telephoned at around 6.00 pm looking for him. The next day, Mr and Mrs Jarvis attended the workplace without prior arrangement, and had a discussion with Mrs Anderson during which Mrs Anderson said that the anger displayed by Mr Jarvis in the workplace was intolerable and that she could not put up with it any more. Mr Jarvis responded by saying: “Imagine how bad it is for Mel” (Mrs Jarvis). Mr Anderson was present for part of this discussion, but left before it was completed because he was required to attend prior appointments booked with clients. Mr Anderson agreed under cross examination that he left the meeting soon after it began.
[34] Mr Jarvis said that during this discussion, Mrs Anderson said that he was still the best maintenance plumber they had ever had and he returned to work the next day. In cross-examination, Mr Jarvis conceded that he left the note on Tuesday 3 November 2009 to inform Mrs Anderson that he would not be able to work that afternoon. Mr Jarvis also said that he saw Mrs Anderson before he left that day, and did not stop to explain to her his reasons for leaving the workplace. Mr Jarvis maintained that he had finished work for the day, but agreed that there may have been other jobs for him to perform that afternoon, and said that at 11.00 am he felt unwell and would not have been able to complete jobs after that time.
[35] Mr Jarvis agreed that he did not work the following day and that he and his wife attended a meeting with Mr and Mrs Anderson on 5 or 6 November 2009 in relation to this incident. It was put to Mr Jarvis in cross-examination that during that meeting, Mr and Mrs Anderson raised issues with his behaviour at work including getting angry. Mr Jarvis said that he could not recall this but that he did not deny that this matter was raised. The following exchange took place during cross-examination between Mr Merrell of Counsel for Anderson’s and Mr Jarvis:
“...During that conversation in the kitchen on 5 or 6 November 2009, it was made clear to you by Mr and Mrs Anderson that they were putting you on notice your anger and rudeness to Mrs Anderson in the workplace had to change. Is that right? You clearly understood that to be the case?---No I was unclear of that.
You were unclear about that. So you’re not denying that that sentiment was being put to you on the day. You’re just saying, “It wasn’t made clear to me.” Is that your evidence?---Yes.” 8
[36] Mr Jarvis said that he could not recall saying to Mrs Anderson: “Imagine how bad it is for Mel”. Mrs Jarvis said that she could not recall a discussion about Mr Jarvis’s attitude in the workplace being a problem. Mrs Jarvis could recall Mr Jarvis saying: “Imagine how bad it is for Mel” but said that this was in the context of him leaving the workplace and not being contactable.
[37] Mr Jarvis also said that he was experiencing poor management practices “by this time”, and that planned jobs would be changed without warning on some days and on others he would turn up without necessary equipment because of lack of information about a particular job. On one occasion Mr Jarvis went to a job and was told that it had been cancelled the night before. Mr Jarvis was not informed of the cancellation. On other occasions Mrs Anderson would ring Mr Jarvis at 9.00 am asking whether he had enough work for the day and whether he could fit more in, when she had given him his jobs for the day two hours earlier. According to Mr Jarvis, these were poor management issues and caused him to become frustrated and angry.
[38] Under cross-examination, Mr Jarvis agreed that in the context of his witness statement, “by this time” referred to 2 November 2009, but said that he was not sure that prior to this time no poor management practices had been shown, and that his statement was correct. Mr Jarvis also agreed that it is a feature of domestic and commercial plumbing maintenance work that there are emergencies and last minute changes, and that these come up without forewarning. Mr Jarvis further agreed that sometimes these changes would make him angry, and that his anger was directed at Mrs Anderson.
[39] On 15 December 2009, Mr Anderson had a discussion with Mr Jarvis while he was working on a job, and reminded him of another job he was required to attend. Mr Jarvis responded in a manner that Mr Anderson described as agitated and non-compliant. Mr Anderson insisted that Mr Jarvis attend the job and Mr Jarvis agreed to do so. Mr Jarvis said that he was feeling unwell as a result of diabetes and that it was very hot. Mr Jarvis agreed that he did not tell Mr Anderson his reasons for not wanting to do the job, and simply said that he would rather not do it.
[40] Mrs Anderson said that on that day, she was at home alone. Her car was not in the garage as it was at a mechanical workshop. Mr Jarvis would not have noted the absence of Mrs Anderson’s car until he reached the garage on the property. Mr Jarvis drove into the property at excessive speed and did not slow down when going over a speed bump in the drive way. Mr Jarvis then spun the wheels of his vehicle causing gravel to be spread and to hit the exterior walls of the workshop and office. Some gravel went into the workshop. Mr Jarvis hooked a trailer to his vehicle and left the property at excessive speed. According to Mrs Anderson’s witness statement, the whole incident took some ten to fifteen minutes, and for a period of one to two minutes the wheels of the vehicle spun in the gravelled area. In her oral evidence Mrs Anderson conceded that the period of time that the wheels of the vehicle spun in the gravelled area was probably thirty seconds rather than one to two minutes. This concession was made as a result of Mrs Anderson hearing Mr Jarvis give his evidence and observing an exercise conducted by Counsel for Anderson’s during cross-examination whereby Mr Jarvis was invited to count down a thirty second period by reference to a clock in the hearing room.
[41] Mr Jarvis maintained that his speed when entering the property did not exceed 15 km per hour. Mr Jarvis also said that he spun his wheels for 30 seconds and that some gravel was spread as a result. According to Mr Jarvis, there was no danger to anyone as a result of this conduct as there was no-one else at the property. Mr Jarvis agreed under cross-examination that this was an assumption on his part. A photograph was tendered showing gravel strewn in the front of the shed and extending into the shed. 9 Mr Jarvis said that his vehicle is a Ford Ranger 4WD.
[42] On 16 December 2009, Mr Anderson had a discussion with Mr Jarvis about the incident. According to Mr Anderson he had decided to dismiss Mr Jarvis but needed to deal with how to approach this subject. Mr Anderson asked Mr Jarvis about the incident and Mr Jarvis acknowledged that he was responsible for gravel being spread in the driveway and in the workshop. According to Mr Anderson he told Mr Jarvis that this behaviour involved displays of anger verging on violence and was not acceptable. Mr Anderson also said that he told Mr Jarvis that his behaviour could not continue and that it indicated he was unhappy working for Anderson’s. Mr Anderson suggested to Mr Jarvis that he consider alternative employment. Mr Jarvis refused to acknowledge that he was at fault. Mr Anderson said that Mr Jarvis’ anger was escalating and he formed the view that the conversation was going nowhere and left the workshop to go to appointments with clients.
[43] Mr Anderson agreed under cross-examination that he did not contact Mr Jarvis on the date that the incident occurred. In response to the proposition that if there were no cars parked near the shed it could be assumed that no-one was there, Mr Anderson said that there could be apprentices in the shed, and that there was an apprentice at that time who did not have a licence or a car. Mr Anderson also said that on the morning after the incident he said to Mr Jarvis: “The first thing you can do is clean your shit up.” Mr Jarvis got a broom and started sweeping. There was a short discussion and then Mr Anderson left. Mr Jarvis was still sweeping when Mr Anderson left. Later Mr Jarvis went in to the office and Mrs Anderson gave him his jobs for the day.
[44] After the incident of 15 December 2009, Mrs Anderson also had a discussion with Mrs Jarvis during which Mrs Jarvis explained that Mr Jarvis had “white rage” and “red rage” and would not be violent while displaying the latter, but could be while displaying the former type of rage. Mrs Jarvis agreed that she did have such a discussion with Mrs Anderson. In response to the proposition that she said that Mr Jarvis did not have red rage to reassure Mrs Anderson that he would not be violent towards her, Mrs Jarvis said she made the comment in the context of the November 3 incident and to reassure Mrs Anderson that Mr Jarvis would not hurt himself.
[45] On 18 December 2009 Mr Jarvis requested that he finish work earlier than the Christmas closedown which was scheduled to commence on 18 December. Mr and Mrs Anderson agreed to this request. After deliberating over the weekend, Mr and Mrs Anderson decided to dismiss Mr Jarvis. Mr Anderson had a telephone discussion with Mr Jarvis and attended at his home. According to Mr Anderson, Mr Jarvis became distressed and gave irrational responses to issues that were raised. Mrs Jarvis suggested that she could come to the office to distribute jobs to Mr Jarvis or that this could be done by buying a fax machine so that details of jobs could be faxed to Mr Jarvis. Mr and Mrs Jarvis agreed that they did make these suggestions during the discussion with Mr Anderson. Mrs Jarvis said that she made the offer to be a contact between Mrs Anderson and Mr Jarvis if Mrs Anderson did not want face to face contact, and to “keep the peace”. Mr Anderson said that these suggestions were unacceptable because they were not fixing the problem but just masking the issue. There was also a discussion during which Mr Anderson told Mr Jarvis that he should use his ten weeks of long service leave (presumably under an industry fund) to get well. Mr Jarvis told Mr Anderson that he only had two or three weeks of long service leave left. After leaving Mr Jarvis’ home, Mr Anderson was concerned that Mr Jarvis did not understand that his employment had been terminated. Mr Anderson said that he tried to terminate Mr Jarvis’ employment but failed, as Mr and Mrs Jarvis were extremely upset during discussions he had with them. Mr Anderson was also very distressed.
[46] Mrs Anderson telephoned Mrs Jarvis to convey that fact. According to Mrs Jarvis, Mrs Anderson said that she wanted to make it perfectly clear that Mr Jarvis was no longer an employee and went on to make the following comments:
• Mr Anderson had to be freed up;
• They had tried to factor in Mr Jarvis’s illness but it was now an unhealthy situation;
• She had to watch her own anxiety;
• Mr and Mrs Anderson felt bad as they did not like to have to let people go;
• They wanted Mr Jarvis to get well but Mrs Anderson wanted to be happy at work;
• Mrs Anderson wanted to have calm employees and a happy workplace and could not deal with the situation any longer; and
• It was not Mr Jarvis’ workmanship that was the problem but a personality issue between her and Mr Jarvis.
[47] Mrs Jarvis said that she asked Mrs Anderson if it was the case that regardless of whether or not Mr Jarvis got better, he would not be working for Anderson’s again. Mrs Anderson confirmed that this was the case.
[48] Mr and Mrs Anderson acknowledged that Mr Jarvis’ behaviour had not been dealt with as soon as it should have been, but maintained that the company was trying to be supportive. Mr Anderson said that when he attempted to speak to Mr Jarvis about his behaviour, and in particular his treatment of Mrs Anderson, Mr Jarvis did not accept that there was a problem. Mr Anderson also said that he did not listen to Mrs Anderson closely enough and was too busy to deal with the behaviour of Mr Jarvis, deciding instead to put up with it, on the basis that Mr Jarvis had a problem. The company also co-operated with Mr Jarvis’ need to work less hours for personal reasons such as the death of his father or the birth of his children, or when Mr Jarvis needed time off because of his depression.
[49] Under cross-examination, Mr Anderson agreed that from September 2009, he started monitoring Mr Jarvis with a view to terminating his employment, but also said that if the incident on 15 December had not happened Mr Jarvis would still be working for Anderson’s.
[50] Mr Stott said that a few days after Mr Jarvis’ dismissal he was at Anderson’s shed, and had a discussion with Mr Jarvis, who was unloading company tools and equipment from his vehicle. Mr Stott approached Mr Jarvis and said that he was sorry Mr Jarvis had been dismissed, and wished him the best. According to Mr Stott, Mr Jarvis said: “Oh well, it was my fault”. Mr Jarvis agreed that he made this comment, but said it was a throw away statement made because he did not want to talk to Mr Stott.
[51] At the point of his dismissal, Mr Anderson was on leave and expected to remain on leave for a period of four weeks. Mr Jarvis said that he had discussed starting his own business with Mr Stott shortly after his dismissal, but could not do so until he received a termination letter from Anderson’s. Mr Jarvis applied for a licence to operate his business on 10 January 2010, and registered a business name and a domain name on 14 January 2010. At the time this matter was heard, Mr Jarvis’ business had not made a profit, because of start up and running expenses.
Basis of Mr Jarvis’ Employment
[52] Mr Jarvis is the holder of licences as a Plumber and Drainer. He is also the holder of a Plumbing and Drainage and Gas Fitting BSA contractor licence. According to Mr Jarvis, at a meeting with Mr and Mrs Anderson at which he was offered employment, he was told that he would be required to work on blocked drains, septic tanks, roof leaks, tank installations and assist other employees as needed. The hours of work were said to be 40 per week, with a half hour meal time each day. Mr Jarvis was required to be in the shed by 6.50 am. Mr Jarvis was offered a rate of $30 per hour on the basis that they would “see how it goes after that”. It was agreed that Mr Jarvis would start work on 30 January 2006.
[53] According to Mr Jarvis, he was offered a full time position. On 24 February 2006, Mr Jarvis was given the following letter under the signature of Mrs Anderson:
“To Whom It May Concern,
Gregory Wayne Jarvis is employed by Anderson Plumbing and Roofing Pty Ltd. He is employed on a full time basis as a qualified plumber.
Greg’s average wage is $1,200.00 per week.
If you have any further questions we can be contacted on the above numbers.”
[54] Mr Jarvis agreed under cross-examination that he never applied for paid sick leave, annual leave or public holidays during the period of his employment with Anderson’s. Mr Jarvis also agreed that he was told that he would not be guaranteed work, but was told he would be given as many hours work as he wanted or as the company could give him. Mr and Mrs Anderson were accommodating about his illness and Mr Jarvis was not paid for time off associated with it. The number of hours worked by Mr Jarvis depended on his availability and the amount of work that Anderson’s made available to him. Those hours varied, and ranged from 20 to 40 hours per week, and in some weeks Mr Anderson did not work at all because of his illness.
[55] Mr Jarvis supplied and used his own vehicle, a Ford Ranger 4WD, in the course of his employment, and paid the running costs for that vehicle.
[56] Mr Jarvis was paid $30 per hour initially with that amount being increased to $33, $35 and then $38 per hour. In response to the proposition that he knew he was being offered casual employment Mr Jarvis said that his employment was full time. Mr Jarvis agreed that about one month after commencing employment with Anderson’s he asked Mrs Anderson for a letter to assist in applying for a housing loan. Mr Jarvis said that he told Mrs Anderson that he needed a letter setting out the terms of his employment and did not tell Mrs Anderson what to say in that letter. When asked why he had attached the letter to his witness statement and had not set out the circumstances under which he obtained the letter, Mr Jarvis said that he did not know why he had done this, and rejected the proposition that he was attempting to mislead the Tribunal.
[57] Mr and Mrs Anderson maintained that Mr Jarvis was employed on a casual basis and that this was stated at the point of engagement. Further the rate of $30.00 per hour was set so that Mr Jarvis would be paid above the rate in the relevant Award for casual employees. The terms of the Award were not in evidence in these proceedings.
Conclusions in relation to the dismissal
[58] In general, I did not find Mr Jarvis to be a particularly credible witness. It was apparent that Mr Jarvis put a particular spin on a number of matters, and omitted some significant background information from his evidence in chief, without adequate explanation. In my view this was an attempt to create the impression that there was an extremely close relationship between Mr Jarvis and Mr and Mrs Anderson. For example, Mr Jarvis created the impression in his witness statement that he and his wife had been honoured guests at the holiday home of Mr and Mrs Anderson. Under cross-examination it became apparent that Mr Jarvis was at the holiday home with other employees of Mr and Mrs Anderson, and was performing work at the holiday home, for which he was paid.
[59] Similarly Mr Jarvis gave the impression in his witness statement that he had been honoured to be a dinner guest at the Anderson’s home. The reality was that other persons had also been present, and this had occurred on only one occasion. Mr Jarvis said in his witness statement that he worked for three months on a part-time basis after the birth of his son, by agreement with Mr and Mrs Anderson, creating the impression that this was because of family responsibilities. Mr Jarvis said under cross-examination that he worked on a part-time basis because of his anxiety and depression. It is also the case that Mr Jarvis did not state in his evidence in chief that the letter from Mrs Anderson in relation to his employment was prepared at his request to assist with obtaining a home loan.
[60] Further, Mr Jarvis was adamant in his evidence in chief that he had not behaved aggressively or displayed anger to Mrs Anderson and other staff, and eventually conceded in cross-examination that he had on occasions behaved in an angry and aggressive manner as alleged. When cross-examined about these matters, Mr Jarvis was defensive and did not readily make concessions, in circumstances where concessions would have been appropriate. While Ms Piva and Ms Maselli did not include reference to their personal relationships with the Andersons in their witness statements, Ms Piva disclosed this information as part of her evidence in chief, and Ms Maselli readily stated the basis of her relationship when questioned about it during cross-examination. There is no basis for finding that both witnesses were other than credible.
[61] Ms Korst was an impressive witness. When cross-examined about not including details of customer complaints about Mr Jarvis and warnings given to Mr Jarvis in her witness statement, Ms Korst was able to immediately provide those details. Ms Korst was able to recall that a male client, recently widowed, had telephoned her in tears because of Mr Jarvis speaking to him rudely while performing work at a rental property occupied by him. Mr and Mrs Anderson also gave their evidence in a forthright manner and made concessions where they were appropriate. Where there is a conflict in the evidence, I have preferred the evidence of other witnesses to that of Mr Jarvis.
[62] I accept that on 15 December 2009, Mr Jarvis drove his vehicle, a large 4WD, at excessive speed while on the property of Mr and Mrs Anderson. I also accept that he spun the wheels of his vehicle for a period of some thirty seconds, causing gravel to fly into the workshop and surrounding areas, making a considerable amount of noise. I do not accept that Mr Jarvis would have driven at only 15 km per hour, when he had spun the wheels of his vehicle in the manner he concedes occurred. I am also of the view that if Mr Jarvis spun his wheels to such a degree that he could spread gravel to the extent shown in the photograph tendered on behalf of Anderson’s 10, then it is more probable than not that he also drove at excessive speed. It is entirely understandable that Mrs Anderson would have been shocked and frightened by this incident.
[63] I do not accept that Mr Jarvis was ill on that day. Mr Jarvis had no compunctions about telling Mr and Mrs Anderson when he was ill, and had left the workplace on other occasions when he felt ill. Mr and Mrs Anderson had been understanding about this and had never raised it as an issue of concern. Quite simply, Mr Jarvis was angry at being asked to undertake work he did not wish to perform. There is nothing to suggest that the work in question was anything other than work he could have been reasonably and lawfully directed to perform.
[64] Mr Jarvis’ conduct in spinning the wheels of his car was reprehensible and entirely inappropriate. However, in all of the circumstances I am unable to accept that the incident on 15 December 2009 constituted serious misconduct so that instant dismissal was justified, and the provisions of the Small Business Fair Dismissal Code relating to serious misconduct were enlivened.
[65] I have reached this conclusion for the following reasons. I accept that Mr Jarvis genuinely believed that there was no-one present in the workshop and that he did not intend to endanger any person. His conduct was negligent rather than serious in its culpable quality as misconduct. The result of the conduct was that stones were scattered and Mr Anderson’s response was to tell Mr Jarvis to sweep the stones up. It is not disputed that throughout the latter stages of his employment, Mr Jarvis was suffering from stress and anxiety. Other incidents involving Mr Jarvis displaying anger and aggression had not been dealt with by Mr and Mrs Anderson in a formal sense. I am also of the view that Mr and Mrs Anderson did not treat the incident of 15 December 2009 as serious misconduct, when it occurred. Mr Anderson did not seek to have a discussion with Mr Jarvis about the incident until Mr Jarvis started work on the following day. If Mr Anderson genuinely believed that this conduct was serious enough to justify summary dismissal, he would have at very least sought to have a discussion with Mr Jarvis on the day that the conduct occurred.
[66] If, on the following day, Mrs Anderson continued to be frightened by Mr Jarvis’ conduct, Mr Anderson would not have simply directed Mr Jarvis to clean up the mess he had made, and then left the workshop, leaving Mr Jarvis to deal with Mrs Anderson for the purpose of getting his allocated jobs. The conduct of both Mr and Mrs Anderson on the day following the incident is inconsistent with them having the view that it was so serious that summary dismissal was justified.
[67] Anderson’s did not rely on the provisions of the Small Business Fair Dismissal Code relating to dismissal other than summary dismissal for serious misconduct. The case was argued on the basis that if FWA found that the conduct on 15 December 2009 was not serious misconduct within the terms of the Small Business Fair Dismissal Code, then the question was whether the dismissal was unfair on the ground that it was harsh, unjust and unreasonable, rather than whether the other provisions of the Code applied.
[68] Accordingly, I find that the dismissal of Mr Jarvis was not consistent with the Small Business Fair Dismissal Code. This finding means that it is necessary to determine whether the dismissal of Mr Jarvis was unfair because it was harsh, unjust or unreasonable. In considering the criteria in s.387 of the Act, I have reached the following conclusions.
[69] I am satisfied that there was a valid reason for the dismissal of Mr Jarvis. In this regard, I accept that he had, for at least the last twelve months of his employment, engaged in rude and aggressive behaviour towards Mrs Anderson and administrative staff of Anderson’s whose job it was to allocate him work. I also accept that Mr Jarvis was rude to clients. I do not accept that there were deficiencies in the management of Anderson’s to the extent that Mr Jarvis’ behaviour was justified. There is nothing to suggest that the circumstances were anything other than those which impact on the operation of any small maintenance plumbing business. Emergent situations occur and there is nothing unreasonable about requiring maintenance plumbers such as Mr Jarvis to stop one job and start another, with little or no notice, in the event of emergent situations involving clients. It is apparent that Mr Jarvis behaved in an aggressive and unreasonable manner in response to issues which are part of the normal course of employment for maintenance plumbers.
[70] Even if it is accepted that Mr Jarvis suffered from anxiety and depression, it is apparent that Mr and Mrs Anderson took many steps to assist Mr Jarvis to deal the symptoms. Mr Jarvis was given time off, and for a period, his conduct was tolerated and allowances were made for him. The attitude of Mr and Mrs Anderson to employees suffering from illness is apparent from the evidence of Ms Korst. Ms Korst suffers from a chronic and debilitating illness, and gave evidence of being accommodated and afforded understanding and flexibility in the workplace, by Mr and Mrs Anderson.
[71] Mr Jarvis’ behaviour was volatile and erratic as evidenced by the incident on 3 November 2009, when Mr Jarvis left the workplace causing Mrs Jarvis to contact Mrs Anderson to ascertain his whereabouts. The incident of 15 December 2009 was a further manifestation of Mr Jarvis’ aggressive and inappropriate behaviour. When the anger and aggression displayed by Mr Jarvis both in the workplace and to clients, and the incidents of 3 November and 15 December 2009 are considered in their totality, it is understandable that the owners of a small business would reach the point where it was decided that enough was enough and that there was no option but to dismiss Mr Jarvis. The conduct of Mr Jarvis was such that it was impacting on the safety and welfare of other employees of Anderson’s and in particular Mrs Anderson.
[72] I am satisfied that Mr Jarvis was notified of the reason for the dismissal. On balance, in very difficult circumstances where both Mr and Mrs Jarvis were upset and distressed, Mr and Mrs Anderson took reasonable steps to inform Mr Jarvis of the reason for the dismissal. If there was a lack of clarity in earlier discussions between Mr Anderson and Mr Jarvis, there was none after the discussion between Mrs Jarvis and Mrs Anderson. While generally it is preferable for an employee to be directly notified of the reason for dismissal, it is understandable that in the circumstances of this case, Mrs Anderson did so through Mrs Jarvis. The options offered by Mrs Jarvis to the effect that she would be the go-between for the purposes of Mrs Anderson allocating jobs to Mr Jarvis, or that details of Mr Jarvis’ jobs could be faxed to him, demonstrate that the discussion related to a breakdown in the relationship between Mrs Anderson and Mrs Jarvis. Those proposals were in my view unworkable in the context of a small business, and it is reasonable that they were rejected by Mr and Mrs Anderson.
[73] Mr Jarvis did not seek to have a support person, other than his wife, present in the discussions which led to his dismissal. Mr Jarvis had previously chosen to involve Mrs Jarvis in discussions about his conduct in the workplace. There was no unreasonable refusal by Anderson’s in relation to this matter.
[74] There were issues associated with Mr Jarvis’ performance that he was not warned about. On Mr Anderson’s evidence, he stored those matters in his “memory bank” and did not discuss them with Mr Jarvis. I accept that there were discussions with Mr Jarvis about his behaviour towards Mrs Anderson, co-workers and clients. Mr and Mrs Jarvis were unconvincing in their evidence on this point, stating that they did not dispute that such discussions occurred, but could not remember them.
[75] However, there is no evidence that Mr Jarvis was clearly told that if his behaviour did not improve, his employment would be terminated. In my view, given past failures on the part of Mr and Mrs Anderson to deal with Mr Jarvis’ behaviour, and their knowledge of his depression, it was unfair to proceed to dismiss Mr Jarvis without telling him that his job was in jeopardy.
[76] In coming to this conclusion, I have considered the degree to which the size of the enterprise impacted on the procedures followed in effecting the dismissal, and the lack of dedicated human resource specialists to assist in dealing with Mr Jarvis. I have sympathy for Mr and Mrs Anderson. As small business owners faced with an employee known by them to be suffering from depression, and displaying aggressive and volatile behaviour, it is understandable that they would not have wanted to upset Mr Jarvis or to contribute to his condition by giving him a warning. However, in all of the circumstances, fairness required that such a warning be given, before Mr Jarvis was dismissed. Fairness also required that Mr Jarvis be told in no uncertain terms, before he was dismissed, that his behaviour would no longer be tolerated.
[77] There are other matters I consider relevant in deciding whether the dismissal was unfair. The dismissal was effected in the week before Christmas. Mr Jarvis has two small children and his wife is on maternity leave. Mr Jarvis was known to be suffering from depression. The dismissal was summary and Mr Jarvis was not paid notice on termination. The comments made by Mr Anderson about Mr Jarvis using his long service leave to get well, indicate that Mr Anderson knew that Mr Jarvis would have some difficulty gaining employment because of his depression.
[78] At that time of the year, and in the context of the economic conditions which then existed, it was unlikely that Mr Jarvis could obtain alternative employment. This can only have been exacerbated by the fact that Mr Jarvis was suffering from depression. These factors, combined with the lack of formal warnings about the conduct of Mr Jarvis, in my view, result in the dismissal of Mr Jarvis being unfair, on the ground that it was harsh.
Remedy
[79] Having found that Mr Jarvis’ dismissal was unfair, it is necessary to determine the appropriate remedy. Mr Jarvis does not seek reinstatement and started his own business in mid January 2010. Given these factors, and the circumstances leading to the dismissal, reinstatement is not an appropriate remedy. I consider that in all of the circumstances of this case, an order for compensation should be made. Considering the circumstances I am required to take into account in determining an amount of compensation, as provided in s.392(2) of the Act, I have come to the following conclusions.
[80] Mr and Mrs Anderson have a viable business and I am of the view that the order I intend to make will not impact in this regard. Mr Jarvis was employed by Anderson’s for some four years.
[81] On balance I am satisfied that Mr Jarvis was employed as a casual employee. There are many descriptors used to describe employment that is not casual. While “full time” is one such descriptor, the terms “permanent” or “weekly” may also be used. However the fact that employment is described as “full time” is not determinative of whether or not it is casual employment. That a casual employee works the same hours as a full time employee is also not determinative of employment status. The letter of 24 February 2006 states that Mr Jarvis is employed on a full time basis, and goes on to state his “average” weekly wage, indicating that this can differ from week to week. The letter also reflects Mr Jarvis’ evidence about what he was told at the point of engagement: that the hours of work would be forty hours per week, and his agreement with the proposition in cross-examination that Anderson’s made as much work available to him as he was prepared to perform.
[82] It is also the case that Mr Jarvis was not paid leave during the entire four year period of his employment, and did not seek such payment. This is notwithstanding that he took extensive periods of sick leave throughout that time. Tellingly, Mr Jarvis did not claim payment for periods of sick leave. Further, Mr Jarvis was going on a period of unpaid leave over the Christmas period, when he was dismissed, and made no complaint in his evidence about lack of payment for this period. This is consistent with Mr Jarvis accepting that he was employed on a casual basis.
[83] The letter of 24 February is no more than the letter that an employer would write, to assist an employee to obtain finance for a housing loan. The letter does not assert that Mr Jarvis is a permanent employee and is not inconsistent in its terms, with Mr Jarvis being a casual employee. It is disingenuous of Mr Jarvis to attempt to use that letter in the manner he has in these proceedings, and indicative of his propensity to put a spin on the facts he has disclosed to the Tribunal.
[84] Had Mr Jarvis not been dismissed, he would not have been entitled to remuneration for the period of his leave from 18 December 2009 until he returned, presumably in late January 2010. Mr Jarvis has made attempts to mitigate the loss of earnings suffered because of his dismissal. However, Mr Jarvis had not, at the time this matter was heard, earned any income from his business or from alternative employment. In my view some Award of compensation should be made to cover losses in the period before Mr Jarvis got his business up and running.
[85] I have also considered all of Mr Jarvis’ conduct during the period of his employment, and the incident of 15 December 2009, and I am of the view that it is unlikely that the employment relationship between Anderson’s and Mr Jarvis would have continued for much longer. I am also of the view that Mr Jarvis’ misconduct contributed to the decision to dismiss him, and his compensation should be reduced accordingly. But for the misconduct the amount of compensation would have been eight weeks wages.
[86] I have decided to award compensation in the amount of four weeks wages, calculated on the basis of $1,539.00 per week, which is the highest amount that Mr Jarvis earned in the month prior to his dismissal. I Order that Anderson Plumbing and Roofing Pty Ltd pay to Gregory Wayne Jarvis the sum of $6,156.00 less taxation deductions as required by law, within fourteen days of the date of release of this decision.
COMMISSIONER
Appearances:
Mr J. Fuhrman-Luck of Carroll Alexander and Associates on behalf of the Applicant.
Mr J. Merrell of Counsel instructed by Aitken Legal on behalf of the Respondent.
Hearing details:
2010.
Maroochydore:
May 20, 21.
Final written submissions:
13 July 2010
1 Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 42 per Derrington J.
2 Ibid at 41.
3 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468 per McHugh and Gummow JJ.
4 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
5 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
6 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
7 Walton v Mermaid (1996) 142 ALR 681 at 685.
8 Transcript 20 May 2010 PRN 682-683.
9 Exhibit 6.
10 Exhibit 6.
Printed by authority of the Commonwealth Government Printer
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