Mr John Abercrombie v Davidson Farm Services Trust

[2010] FWA 8884

[2010] FWA 8884

FAIR WORK AUSTRALIA

DECISION

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

Mr John Abercrombie
v
Davidson Farm Services Trust
(U2010/11000)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 30 NOVEMBER 2010

Summary: unfair dismissal - performance and compliance with safety policies.

[1] The Applicant in this matter, Mr John Abercrombie, made application under s.394 of the Fair Work Act 2009 (“the Act”) seeking a remedy in relation to his alleged unfair dismissal by Davidson Farm Services Trust (“the Respondent”). Mr Tully had performed services as a casual employee from 21 January 2004 until time of his dismissal on 17 July 2010. During this time, the Applicant carried out duties principally as a bagging machine operator in the Respondent’s business, which concerned the growing and harvesting of bananas.

[2] The Applicant contends that he suffered a work-related injury, that being a double hernia, in late October 2009, which required him to work on light duties in the packing shed. The suggestion is that the persistence of the Applicant's complications arising from his surgery caused the Respondent to terminate his employment.

[3] The Applicant states that he underwent surgery in May 2010 and returned to work in June 2010, again on light duties.

[4] On 1 July 2010 the Applicant's medical practitioner provided a medical certificate stating that he was fit to resume normal duties. 1 The Applicant did not agree. He was of the view that he was still suffering discomfort from the operation and sought an opinion from an alternative medical practitioner. The implications of the Applicant's claimed continuing physical frailties had implications for this matter, and these are discussed below in the context of the evidence.

[5] It should be noted that despite the medical certificate declaring the Applicant was fit to resume normal duties, the Applicant was not required to perform the full range of normal duties. Instead, the Respondent kept the Applicant on light duties until the time of the termination of his employment. This was because the Applicant had expressed concerns to his employer about his continuing discomfort after 1 July 2010.

[6] The Applicant states that he was directed to attend a meeting with the Respondent on 16 July 2010. The meeting was attended by the Applicant and Messrs Mark Smith and Barry MacKay for the Respondent. The Applicant states that he was informed at this time that his employment was terminated. The Applicant contended that he was informed that his work performance was wanting. The Applicant contends that he inquired as to whether he could dissuade the Respondent from its course of action. Mr MacKay informed him that he had made up its mind.

[7] The Applicant then states that Mr MacKay asked him, at the time of the abovementioned interview, to sign two documents. One of these was said to be a reference to a verbal warning he had received that morning. The second was a reference to written warning. The Applicant signed both. He claims he did so as he was under “stress” and suffering from “shock”.

[8] The Applicant contended that the warnings he was given were not consistent with the terms of the applicable industrial instrument, that being the Tully Banana Services Pty Ltd Enterprise Agreement 2009 (“the Agreement”). This was because the instrument referred to the need to provide two verbal warnings and a written warning and to provide a timeframe within which to improve performance before such time as an employee is dismissed. The Agreement at clause 2.7 thereof, however, also states that “in serious cases” and employee might be dismissed only after two warnings.

[9] Further, the Applicant contends that the warning he was given in relation to his pony tail falling loose was only given to him in the morning and he acted to rectify the situation promptly and apologised to his employer. He also claimed that despite the evidence given below, no one in a supervisory position in the workplace ever counselled him or warned him about keeping his pony tail tied up, at least in so far as a warning comprised an indication that his employment was in jeopardy because of his conduct.

[10] The Applicant admits, however, that there had been a toolbox meeting conducted in June 2010 (as the evidence appear to place it) in which staff were advised by Mr Smith to secure their hair, and that he had been singled out by Mr Smith at that time as an employee to whom this policy should have particular salience. The evidence of Mr Kyle Jackson, a former employee of the Respondent, who appeared as a witness for the Applicant, corroborated this meeting, along with Mr Smith’s direction.

[11] Mr Jackson’s evidence, however, went further than this. Mr Jackson stated other employees, including management, wore their hair unsecured or without a hat or hair net, and that the Applicant was singled out unfairly. 2 Mr Jackson referred to Ms Kassie Wheeler, a supervisor, as having worn her shoulder length hair without any restraint, and as having, further, climbed under moving equipment as she moved about the work area. Mr Jackson also claimed that another employee, Ms Vicki Henrichs, wore her shoulder length hair without restraint.

[12] The Applicant did not, I should add, set out to support Mr Jackson’s evidence. The Applicant stated merely in his evidence in chief that he was only aware of one other employee who performed duties intermittently on a relief basis who performed duties with his hair down.

[13] So far as there had been a concern about his attendance at his work station, which was the subject of the second disciplinary warning, the Applicant stated that he was required because of bleeding and swelling from his surgery to take pain killers and urinate frequently. Beyond this, the Applicant claimed that he had never had any warnings or counselling from anyone in a supervisory role in relation to the performance of his duties or attendance at his work station, or, as is further alleged, in relation to smoking in the work area.

[14] The Respondent contends that the Applicant was dismissed for reason that he had been given two disciplinary notices or warnings and had been provided ample time to rectify his behaviour before he was dismissed.

[15] The Respondent stated that the Applicant did have a WorkCover claim but that it was closed on 1 July 2010 and he returned to normal duties with a medical clearance (despite keeping the Applicant on light duties after this time).

[16] After such time as the Applicant’s employment was terminated on 16 July 2010, he was handed two warning notices.  3

[17] The first warning related to the violation of company policy and safety rules. The warning documentation cites “poor work” and “performance” issues relating to the Applicant leaving his work station, arriving late to his work station and “several warnings” for his hair not being tied up and protected.

[18] The second warning records the following incident:

“John was not compliant with packing shed conditions - restrain hair at all times.”

[19] The incident to which this warning referred was evidenced in these proceedings by Mr Craig Althaus, who was employed as the Workplace Health and Safety Manager. Mr Althaus stated that he had informed the Applicant on 16 July 2010 that his hair was unrestrained and that this was a breach of the Respondent's Workplace Health and Safety policy.

[20] Mr Mark Smith for the Respondent gave evidence that the Applicant’s work performance had been “very poor” before and after his surgery. Mr Smith contended that the Applicant’s attendance had not been “up to standard” and that he had been given “several” verbal warnings about policy violations such as smoking in the packing area, breaching rules about hair. Mr Smith stated that the Applicant was dismissed because he “continued to breach work policy statements”. 4

[21] Mr Smith’s oral evidence was to the effect that he had warned the Applicant on one prior occasion earlier in 2010 as to having his pony tail exposed beyond below his hat. He had again brought the issue to the Applicant's attention at a staff meeting - referred to above - in June 2010.

[22] Mr Smith claimed that the Applicant had been subject to counselling in the first half of 2010 for smoking in the work area (and not in the designated area).

[23] Apart from that, Ms Smith claimed he had on one occasion brought to the Applicant's attention his tardiness in resuming work after the lunch break.

[24] Mr Darryl Hutchins provided a brief statement dated 9 August 2010 stating he had told the Applicant a “number of times [...] not to smoke in the shed and he still did it.” Mr Hutchins also claimed the Applicant “would walk around and not do his job”. This latter observation was supported by the evidence of Ms Agnes Solien. But in both instances it is not possible to discern any warning was given to the Applicant that his employment was in jeopardy as a consequence of his conduct. Indeed, the Applicant opined that he had initiated a discussion with Mr Hutchins as to the precise area in which he could smoke, and that this was not an incident that could be construed as having been a warning in any sense.

[25] Ms Solien claimed that she had seen the Applicant walk away from his work station and that she had spoken to him about his hair in the context of safety reasons. Ms Solien had also observed the Applicant smoking in the work area. 5

[26] Ms Wheeler also gave evidence that the Applicant had worn his hair down and that she had cause to direct him to remedy the issue. She recalled one particular instance in the period March - May 2010 in which she asked the Applicant to conceal his pony tail when it was hanging down. Ms Wheeler also stated that she wore her hair in a tight bun and did not keep it at shoulder length in the work areas.

[27] Ms Wheeler’s evidence also went to the Applicant’s work performance. In this regard it was claimed that the Applicant was “always making excuses” to avoid having to sort and cluster, which was a more onerous duty. Ms Wheeler also claimed the Applicant performed work at a slow pace when bagging, which caused a back log. Ms Wheeler claimed that the Applicant had been warned about this.

[28] Ms Wheeler also claimed that the Applicant's work attendance was “poor” and that he did not advise the Respondent of his absence or the reasons for not being available for work.

[29] I note that Respondent's Workplace Health and Safety Policy requires a safety induction. It is not challenged that the Applicant completed this safety induction. The Respondent’s safety policy, amongst other things, states the following in section 9, under the heading of “Machinery Operation”:

Never wear loose jewellery or clothing when operating machinery. Long hair or beards must be tied up or back to avoid being caught in machinery.

[30] There is some reinforcement of this safety requirement in section 14 of the Respondent's safety policy.

[31] Section 12 of the Respondent's safety policy, under the heading “Smoking” states:

Smoking is not permitted in:

Mackay Bananas vehicles or mobile plant or machinery

Production areas, and

Eating areas. (My emphasis)

[32] This policy was the subject of a further reinforcement on 1 July 2010. The Applicant was inducted in relation to the Respondent's safety protocols and signed off on the same.

CONSIDERATION

[33] Section 387 of the FW Act reads as follows:

387 Criteria for considering harshness etc.

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

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

Section 387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[34] The issue of the proper control of hair in the Respondent's work place is an important matter. Mr Jackson, who appeared as a witness for the Applicant, gave evidence that was uncontroverted that Mr Smith demanded “strict compliance” with the hair policy for reason of the seriousness to which an employee was exposed to accidents in the workplace where there was moving overhead machinery.

[35] There had been prior safety incidents involving loose fitting clothes and unrestrained hair which had heightened the Respondent's awareness of this concern. Some of them had not been serious, but one incident in 2007 had been particularly serious.

[36] The Applicant gave evidence that he was aware of the Respondent's safety policies. He received a re-induction into those safety procedures on 1 July 2010, only 16 days prior to being observed as being non-compliant.

[37] It is established on evidence that the Applicant was repeatedly informed that the manner in which he kept his pony tail was not complaint with employer’s policies. It may not have been put to him expressly as such, but the Applicant was informed by various means (direct communication and gestures) that he had to adjust his appearance in order to work safely in the workplace. The Applicant may not have construed these to be warnings in relation to his employment status, but they did comprise reasonable methods by which his employer directed him to comply with its safety policies. Whether these methods communicated also the degree of the Respondent’s concern is a different matter, and one which is discussed further below.

[38] A failure to comply with an employer’s express policy prescriptions in relation to safety concerns which are well advised and have a sound basis provides a valid reason for the termination of an employee’s employment. This is the case here.

[39] I do not consider the evidence in relation to other breaches of the employer’s policies in relation to smoking in the work area to be a relevant consideration. There is no course of conduct making for a pattern of non-compliance of the Respondent's policies and the Respondent's claims are not all made out in substance on the evidence before me.

[40] There was a further claim. That was that the Applicant had failed to be a productive employee in that he exhibited a pattern of behaviour in which he did not attend his work station in a punctual manner. Again, these may have been genuine concerns, but evidence led by the Respondent was anecdotal and lacked any particularisation. It is also difficult on the evidence to differentiate claims of being dilatory from the Applicant's apparent urgency to urinate which was said to be a by-product of his double hernia and unsuccessful surgery.

s.387(b) whether the person was notified of that reason

[41] It appears from the Applicant's evidence that he was given a reason for the dismissal at the time his dismissal was communicated to him. The reasons appear to have been generic in nature and to have referred to the Applicant's poor work performance. He was not given notice of the dismissal prior to the dismissal decision.

c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[42] The Applicant was not provided with an opportunity to respond to the reasons for dismissal. It appears from the evidence that the Applicant was firstly dismissed then shown two counselling documents which he was invited to respond to (and requested to sign).

[43] The opportunity to respond to the counselling documents does not constitute compliance with this section of the Act.

(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

[44] The Applicant was dismissed summarily and was not provided an opportunity to have a support person. Only in that context can it be said that there was no non-compliance with this section.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[45] It appears to me that Applicant was principally dismissed for reason of his conduct in not complying with the safety procedures in relation to restraining his hair. There were some issues of poor performance in respect of his unwillingness to perform all duties in the work shed and the way in which he dealt with the bagging process. But there is no substantive evidence that the Respondent ever warned the Applicant that his performance was unsatisfactory before his dismissal, let alone gave the Applicant any opportunity to improve his performance in the context of his employment being in express jeopardy.

(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

[46] Nothing was put to me in respect of the size of the employer, let alone any impact it had upon the procedures effecting the dismissal.

(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

[47] Nothing was put to me in respect of the absence of any human resource expertise on the part of the employer, let alone any impact it had upon the procedures effecting the dismissal.

(h) any other matters that FWA considers relevant.

[48] Whilst I have found that the Respondent had a valid reason for the Applicant's dismissal, there are wider considerations before the ultimate finding as to whether the Applicant’s dismissal was harsh, unjust or unreasonable.

[49] One such consideration is the manner in which the Respondent communicated its concerns about the state of the Applicant’s pony tail. At no stage did the Respondent directly state to the Applicant that the manner in which the Applicant's pony tail was restrained was inadequate such that it put his employment in jeopardy. Indeed, the manner in which the Applicant was asked to conform to the safety policy often was informal, and sometimes amounted to no more than a gesture to tuck the pony tail under his cap. 6

[50] In such an informal environment, it was open to the Applicant to consider that the Respondent's directions indicated that it construed his conduct to amount to a minor infraction of its policies, and that his employment was not at risk as a result.

[51] Indeed, it was not until the Workplace Health and Safety Manager, Mr Althaus, approached the Applicant about his hair on the day of the dismissal that the direction was given any formality and the Applicant must reasonably have inferred that the issue was a serious one that had implications for his employment. There is no surprise that at this time the Applicant said that he apologised for his oversight and quickly addressed the situation (by tucking his pony tail under his hat).

CONCLUSION

[52] This is a finely balanced matter. The Respondent had a valid reason for the Applicant's dismissal on grounds the Applicant repeatedly failed to observe its safety policies.

[53] Equally, however, the Applicant was denied any procedural fairness in relation to:

• the manner in which he was notified of any particularised reasons for his dismissal (which came after the dismissal decision was taken); and



• the absence of any opportunity to respond to the reasons for his dismissal.

[54] In the absence of any express warnings about his conduct and the performance of his duties, and without any sense of risk to the tenure of his employment, the Applicant was taken by surprise by the Respondent’s decision to terminate his employment.

[55] This was a case (unlike others) in which the Applicant's explanation for his conduct (particularly around his movements around his work station, claims about his lack of productivity and the extent to which he smoked in any non designated areas) might arguably have given his employer pause to reconsider its intentions as they then were.

[56] Perhaps more importantly, however, was the informal nature of many of the communication to the Applicant of his various departures from the Respondent's policies and expectations about his performance. The evidence suggests, the Applicant’s conduct was not sufficiently guided by his employer and the consequences of his infractions for his employment were at no time ever made expressly apparent to him (until the Workplace Health and Safety Manager directed him on the morning of the day on which his employment was terminated).

[57] It is not always the case that such circumstances might excuse an employee’s conduct in relation to the requirement to comply with an employer’s policies.

[58] There are other matters to which I will have regard.

[59] The Applicant had been suffering for some time (since October 2009) with the effects of a double hernia and from surgical complications, which appears to have been a work related injury. This appears to have impacted upon his mental health.

[60] The Applicant was a casual employee of the Respondent for a reasonable length of time - amounting to between six and seven years.

[61] I am persuaded in all of the circumstances to find that the termination of the Applicant's employment was harsh, unjust and unreasonable.

REMEDY

[62] I do not consider it appropriate to reinstate the Applicant to his previous position. A question arises in relation to his current fitness to return to work given health issues that have arisen in the months since his dismissal. There are also numerous issues of conflict with his previous employer that dissuade me from reinstating the Applicant, particularly noting that I have found the Respondent had a valid reason for dismissing the Applicant.

[63] In terms of making an order of compensation, the Act relevantly states:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

[64] There is no evidence before me that any order I might make might put at risk the viability of the employer’s enterprise.

(b) the length of the person’s service with the employer; and

[65] The Applicant was employed for between six and seven years as a casual employee.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

[66] There is some measure of necessary speculation in estimating the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed. Mr Althaus (the Workplace Health and Safety Manager) for the Respondent gave evidence that in his view the Applicant would have continued to be employed by the Respondent but for the dismissal, and would have continued to perform his duties as he was prior to 16 July 2010.

[67] The Respondent’s representative also provided submissions that it believed the Applicant was capable of performing further duties. These submissions were received in response to my request for further comment on the Applicant's medical certificate. 7

[68] It appears to me that in the circumstances of this case, the Applicant would have remained in employment for no more than a period of eight weeks. There were a wide range of issues bearing on the Respondent's evaluation of the Applicant at the time of his dismissal and I have little confidence that the Applicant might have avoided falling into further, irredeemable conflict with his employer. Further, I note that health issues may have also intervened a contingency at a subsequent point (but reasonably so only after the eight week period to which I have referred above).

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

[69] In the circumstances in which the Applicant has found himself I draw no adverse inference from the Applicant's failure to mitigate in the period since his employment.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

[70] The Applicant has been in receipt of Centrelink payments only since the dismissal.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

[71] There is no relevant consideration in this respect.

(g) any other matter that FWA considers relevant.

[72] There are no other relevant considerations in this respect.

[73] Section 392(3) of the Act reads as follows:

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

[74] The Applicant misconducted himself in so far as he did not comply with the Respondent’s safety procedures. These matters are set out earlier in this decision and they evidence some persistent under-appreciation of the Respondent’s safety procedures. By so conducting himself he contributed to the dismissal. I will reduce the amount I would otherwise have ordered by two week’s salary for reason of this misconduct.

[75] Sections 392(4), (5) and (6) of the Act read as follows:

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[76] The amount that I will order the Respondent to pay to the Applicant falls short of the statutory cap and does not include a component for shock, distress or humiliation.

[77] Section 393 of the Act reads:

393 Monetary orders may be in instalments

To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[78] There is no submission that the compensation order that I will make should be paid by instalments.

CONCLUSION ON REMEDY

[79] I order that the Respondent pay to the Applicant as compensation in lieu of reinstatement an amount equivalent to six weeks’ salary subject to ordinary taxation.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr. J. Abercrombie for himself

Mr. P. Westbury for the Respondent

Hearing details:

2010.

Cairns Supreme, District and Magistrates Court Complex.

November 16.

 1   Annexure 5 of Respondent's submissions

 2   Statement of Mr K Jackson filed 23 September 2010; Transcript of Proceedings dated 16 November 2010

 3   Transcript of Proceedings dated 16 November 20101 at PNS 125 - 132

 4   Statement of Mr Mark Smith dated 12 October 2010

 5   Statement of Agnes Solien dated 13 October 2010

 6   For example, see Transcript of Proceedings dated 16 November 2010 at PNS 563, 590

 7   Correspondence from Mr P Westbury to Fair Work Australia dated 18 November 2010

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