Mr Richard Martin Davey v David Clarke t/as Australian Coastal Flora
[2024] FWC 1666
•26 JUNE 2024
| [2024] FWC 1666 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Richard Martin Davey
v
David Clarke t/as Australian Coastal Flora
(U2024/2523)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 26 JUNE 2024 |
Application for an unfair dismissal remedy – agricultural sector – property manager – alleged misconduct – small business – whether dismissal Code compliant – reasonable belief formed on some but not all allegations - dismissal not unfair – application dismissed
On 4 March 2024, by application dated 1 March 2024, Richard Davey (the applicant or Mr Davey) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy.
Mr Davey claims his dismissal on 15 February 2024 was harsh, unjust or unreasonable. He seeks compensation.
The respondent is a natural person, David Clarke trading as Australian Coastal Flora (the employer or the respondent).
Australian Coastal Flora oppose the application. It says that the dismissal was not unfair because it was a small business employer which complied with the Small Business Fair Dismissal Code (Code). In the alternative, it submits that the dismissal was not otherwise unfair, and no issue of remedy applies.
Conciliation was conducted on 8 April and again on 8 May 2024, but the matter did not resolve.
I issued directions on 17 April 2024.
In advance of the hearing, I received materials from Mr Davey and Australian Coastal Flora.
On 27 May 2024, after receiving the employer materials, I issued a production order on my own motion under s 590(2) of the FW Act. This required the employer’s Chief Executive Ms Jury to produce all notes said to have been taken during a telephone call with the applicant on 18 January 2024. Two sets of notes were produced on 31 May 2024 and subsequently brought into evidence.[1] It became apparent during cross examination of Ms Jury on 12 June 2024 that diary notes had also been made which had not been produced. These were subsequently produced on 13 June 2024 prior to closing submissions. The diary notes were inconsequential. No party sought their admission into the body of evidence. In the circumstances, whilst noting technical non-compliance with my production order but otherwise substantial compliance, I advised the respondent that I would excuse the technical non-compliance.
In advance of the hearing I granted permission for Australian Coastal Flora to be legally represented, notwithstanding objection by Mr Davey who was self-represented.[2] I provided a measure of assistance to Mr Davey during the hearing to ensure his case was presented and that of the respondent tested.
I heard all issues (whether dismissal Code compliant, whether dismissal otherwise unfair, and remedy) by in-person hearing on 11, 12 and 13 June 2024.
I received evidence from the following persons:
Called by applicant
- Richard Davey, manager (applicant)[3];
- Corey Boin, casual employee[4];
- Lidia Diaz, contractor and domestic partner to Mr Davey[5]; and
- Ashley Wright, contractor[6] (not required for examination).
Called by respondent
- Linda Jury, contractor and chief executive[7];
- Peter McMillan, husband of Ms Jury[8]; and
- David Clarke, business owner and respondent[9] (by video from the Unted Kingdom).
Whilst most factual matters are not contested, there is a significant factual dispute material to the determination of this application concerning a telephone conversation between Mr Davey and Ms Jury on 18 January 2024. I make specific findings on that matter below. Other factual disputes are of a lesser nature or not necessary to be resolved.
It is appropriate to make some general observations on the evidence.
The primary protagonists in this matter are Mr Davey, Ms Jury and Mr Clarke.
Mr Davey gave evidence in a cautious and measured manner, reflective of his general demeanour throughout the proceeding. He was willing to make some concessions (but not concerning the events of 18 January). To the extent he did so this added to the overall weight I attribute to his evidence.
Mr Davey’s sense of personal offence at the allegations of misconduct was palpable, being charges he described in his closing address as “very, very serious”. It was clear from Mr Davey’s evidence that the dismissal and its consequences have caused distress beyond that expected on the loss of a job. His relationship with Mr Clarke, which had been personal as well as involving his interest in land management, was significantly damaged. His relationship with Ms Jury, short as it was, had been work-related only, but was also clearly strained. I take into account that litigating and giving evidence in these circumstances was not easy for Mr Davey. However, I approach some aspects of Mr Davey’s evidence, and particularly the events of 18 January, with caution because both his sense of hurt and stoic conviction that he had acted in the best interests of the project clouded his capacity to acknowledge error on his part.
I also take into account that Mr Davey and Ms Diaz are long term domestic partners, and that their relationship was not simply one of manager and contractor. Mr Davey’s evidence that he supported the property developments proposed by Mr Clarke is to be assessed on its merit, but some caution is required in considering his evidence that he did not allow Ms Diaz’s concerns about development in coastal environments, accessing water tables or interfering with indigenous heritage or dreamtime, to impact his employment obligations.
Ms Jury gave evidence in a calm and professional manner. She was however somewhat prone to generalisation and in some instances a lack of attention to detail; for example, her witness statement claimed that she was “employed” whereas it was apparent from her evidence that she was engaged as a contractor and, further, that her engagement by Mr Clarke at Australian Coastal Flora was part time and simply one of six businesses that she was engaged to oversee for him as Chief Executive.
That said, Ms Jury’s recall of the events of 18 January 2024 was clear, unshaken in cross examination, consistent with contemporaneous notes and corroborated.
Where there are differences in evidence between Mr Davey and Ms Jury, particularly with respect to the events of 18 January 2024, I prefer the evidence of Ms Jury.
Mr Clarke gave evidence clearly and respectfully. His general recall was reasonable and on those matters his evidence was plausible. However, Mr Clarke had some difficulty recalling precise dates of conversations or emails sent or received without his memory being refreshed or recourse made to relevant documents. Noting this caveat, I consider Mr Clarke’s evidence a reliable basis on which to make findings of fact. Whilst poles apart on the fairness of what occurred, there is no substantial divergence between the factual evidence of Mr Clarke and that of Mr Davey.
Mr McMillan is the husband of Ms Jury. His evidence was solely related to one event - the telephone conversation of 18 January 2024 between Ms Jury and Mr Davey which he heard in part. I take into account his personal relationship with Ms Jury and a natural desire to support her evidence. That said, Mr McMillan was an impressive witness, whose evidence was confidently given and consistent throughout. He was a witness of credit.
Mr Boin’s evidence was largely limited to events in January 2024 when Mr Davey asked him to use a skid steer (bobcat) on the property. His evidence was straightforward and plausible. He was truthful and did not embellish his version of events.
Ms Diaz gave evidence conscientiously, though account must also be taken of the fact that she is a domestic partner of Mr Davey and would also naturally wish to support his case. However, as a contractor in her own right, the evidence she gave of relevant events in the workplace was plausible. Whilst holding, as she is entitled, views and convictions about land management and indigenous heritage and dreamtime, I do not consider her evidence unreliable on those accounts.
Some of the evidence before me was hearsay. Unless it concerned uncontested facts, hearsay is of no probative value and of contextual relevance only. Other evidence strayed into opinion. I take account of opinions expressed only to the extent that they are akin to submissions before me.
One aspect of the evidence of Mr Davey was objected to on the ground of privilege.[10] As this issue is not relevant to the factual findings I make, I need not deal further with that matter.
The pre-hearing materials submitted by Mr Davey included two audio recordings; one of a disciplinary meeting on 12 February 2024, and one of a telephone call between Mr Davey and Mr Clarke on 2 February 2024.
The audio of the disciplinary meeting on 12 February 2024 was admitted into evidence by consent.[11]
After being informed of the provisions of the Surveillance Devices Act 2016(SA), Mr Davey did not press for admission of the audio recording of the telephone call with Mr Clarke on 2 February 2024. Not being before me, I have no regard to it.
Facts
I make the following findings.
Australian Coastal Flora
Australian Coastal Flora is a registered business name of a project founded by David Clarke in March 2018 on a 100-acre property known as Curly Bush on the western tip of the foot of Yorke Peninsula, in regional South Australia.
The purpose of the project is to grow edible native plants and develop an eco-tourism venture on the property, including accommodation and related facilities.
The property is a coastal location, with its western border inland from sandhills some five hundred metres from the sea. Farming properties adjoin other boundaries.
Australian Coastal Flora is one of multiple business interests Mr Clarke has in Australia and the United Kingdom.
At times relevant to this matter, the project remained in its relative infancy. A shed and oval had been developed, as well as some plantings. No eco-tourism accommodation had been erected; though a planning process with local authorities had commenced. Land and particularly weed management was a significant issue. For the proposed development to proceed, water would need to be accessed from underground water tables and stored.
To manage the property (including plantings) and assist with bringing the project to fruition, Mr Clarke employed a manager who, from time to time, engaged a small number of local employees and contractors.
Employment of Mr Davey
Mr Clarke knew of Mr Davey from having played cricket together in Adelaide years prior to entering an employment relationship.
Mr Davey had a personal and professional interest in land care and management. He also had some familiarity with the region.
In November 2022, after a three-month period in which Mr Davey familiarised himself as a contractor with the property and project, Mr Clarke offered Mr Davey the role of Manager (of Curly Bush and another smaller property). Mr Davey accepted the role and resided with his long-term partner, Ms Diaz, in a nearby town at the base of Yorke Peninsula.
A written employment contract was entered between Mr Clarke and Mr Davey at around the time of engagement. A signed version could not be located by either party for the purpose of these proceedings, although an unsigned copy was tendered by Australian Coastal Flora.[12] Whether the unsigned version reflected precisely the executed agreement is not material to this matter. It suffices that it is not in contest that Mr Davey was:
- employed as Manager of the project and property;
- it was a full-time role;
- it was for a period of up to five consecutive twelve month terms (four terms renewable after the first twelve months); and
- a phone and laptop were provided (though it is in contest whether other promises such as a car were made but not honoured).
Relationship between Mr Davey and Mr Clarke
Mr Clarke was a resident of Adelaide. The property was in a remote location four hours drive from Adelaide. It was not Mr Clarke’s sole business interest, and he was only infrequently on site. Mr Clarke placed a high degree of trust in Mr Davey to do what was required of him, to have employees and contractors do what they were paid to do, and to act in Mr Clarke’s overall best interests. Mr Davey recognised this and provided regular reports to Mr Clarke.
Communication between Mr Davey and Mr Clarke occurred by phone, text, email and, when Mr Clarke attended the property, in person. Many of these emails are in evidence.
In the first twelve months Mr Davey primarily attended to plantings and land management. He also assisted Mr Clarke in making local representations (including to council in July 2023) on project plans. With Mr Clarke’s consent, he engaged a number of contractors including his partner Ms Diaz, as well as employing a young local (Mr Boin) as a casual employee.
The evidence supports a finding that whilst from time-to-time disagreements on issues existed between Mr Davey and Mr Clarke, there was open communication, mutual dependency and a largely productive relationship.
However, from September 2023, Mr Clarke started to harbour concern and frustration with some issues. He believed that Mr Davey had expressed to Mr Clarke’s partner that he (Mr Davey) could not work at Curly Bush if the development went ahead in the form proposed by Mr Clarke.[13]
Separately, by email on 16 September 2023,[14] Mr Clarke stated that he was “discomforted by your remarks” (to the group’s administrative officer) and bluntly questioned if Mr Davey was “still fully committed to being the site Manager for Australian Coastal Flora”.
A responding email on 18 September 2023 (by Mr Davey) and reply by Mr Clarke (26 September 2023)[15] are further examples of each expressing disappointments, frustration and somewhat different views on the usage of chemicals on site and on the proposed location of a water tank.
Mr Davey’s first twelve-month employment anniversary occurred on 9 November 2023. Despite his concerns, Mr Clarke allowed Mr Davey’s employment to continue into the second year with a pay increase as provided for by the contract.[16]
Engagement of Ms Jury
In November 2023 Mr Clarke decided, as he would be moving to the United Kingdom, to engage a person to provide, in his absence, overall management of and governance services to his Australian business interests (of which Australian Coastal Flora was one of about six).
Mr Clarke knew Ms Jury and had previously worked alongside her in other ventures.
In December 2023 Ms Jury was engaged as an independent contractor to be Chief Executive of Mr Clarke’s Australian business interests. She entered a contract to this effect and commenced on 1 January 2024. However, during the preceding six weeks, she made time to become familiar with Mr Clarke’s business interests including Australian Coastal Flora. This included an introductory visit, with Mr Clarke, to the property on 2 December 2023.
Upon engagement, and although her contract work as Chief Executive of the group was full time, Ms Jury and Mr Clarke estimated her work on Australian Coastal Flora matters to occupy about one third of her time.
At all relevant times Ms Jury remained a resident of Adelaide.
Site visit on 2 December 2023
Ms Jury travelled with Mr Clarke to the property on 2 December 2023. Here she was introduced to Mr Davey and Ms Diaz.
She toured the property and, amongst other things, noticed some dead plantings and plantings without guards. Her first impressions were that the property was untidy.
After visiting the site Mr Clarke took Ms Jury, Mr Davey and Ms Diaz to lunch at a local hotel.
There is a dispute between Ms Jury and Mr Davey whether, whilst Mr Clarke was paying the bill, Mr Davey stated that he planned to acquire the property from Mr Clarke one day and for one dollar. Though Ms Jury’s evidence was that this was said (denied by Mr Davey) and she claimed to have been taken aback by the remark, it does not form part of the allegations against Mr Davey. I need not deal further with that matter.
Arising from the site visit, Mr Davey knew that Ms Jury would, from 1 January 2024, be the person to whom he would report and, to the extent necessary, take direction because, as Chief Executive, she was acting on Mr Clarke’s behalf.
Ms Jury formally commenced on 1 January 2024.
On 5 January 2024 Mr Clarke sent all staff and contractors (including Mr Davey) a formal email “introducing” Ms Jury.[17]
1 January to 18 January 2024
On 6 January 2024 Ms Jury travelled to the property for a planned visit (notified to Mr Davey on 3 January).[18]
Whilst at the property Ms Jury was approached by a local in a vehicle who introduced himself as a neighbouring landowner. The local advised Ms Jury that there was excessive spread of Lincoln weed on the property and that it had to be eliminated. Until then, Ms Jury was unaware of the problem. She immediately researched the issue and concluded that it was a noxious weed, and that the local council required its eradication.
On 7 January Ms Jury sent an email to Mr Davey, copied to Mr Clarke, about her discussion with the neighbouring landowner and subsequent research. It included the following:[19]
“While onsite yesterday a local man stopped and expressed his concerns regarding the ‘excessive’ spread of Lincoln weed.
….
We have an excessive…spreading crop of the declared weed and are now forced to actively commence a critical eradication spraying programme to provide evidence that we are effectively controlling the weed.
Thanks
Kind regards
Linda”
Mr Davey responded by email five days later (12 January) in his weekly report. On the issue of weed management he stated:[20]
“RD is getting Corey to mow rather than spray as he advised that the sandy soil requires the weed to prevent soil erosion”; and
“Blanket spraying has not occurred due to not having the tractor for the period of a few weeks.”
Ms Jury and Mr Davey had a follow up phone call on 12 January (confirmed by email by Ms Jury) that stated Mr Davey would, that day, spot hand spray Lincoln weed around the oval.[21]
Ms Jury again attended the property on 15 January 2024. Her visit was unannounced. Mr Davey was found resting on a bed in the shed. Ms Jury considered this unusual but did not allege neglect of duties. Mr Davey thought it inappropriate that Ms Jury turned up announced. He told her words to the effect:[22]
“Next time you need to give me prior warning and make an appointment to come here.”
Ms Jury responded by indicating that the property was a place of business and she considered there to be no issue with her attending unannounced for business purposes.
Following the visit, Mr Davey sent an email on 15 January 2024 stating that “a few of the matters on the list” (sent on 12 January by Ms Jury) “don’t quite match up to my thoughts”. In particular, Mr Davey asked Ms Jury to “do some research” on the effect of glyphosate and dicamba (chemicals) around or close to edible native plants, adding that the research should be about “effects not laws”.[23]
Other discussions and emails were exchanged between Ms Jury and Mr Davey in the period prior to 18 January 2024. In addition to Mr Davey continuing his past practice of a weekly written report (to both Mr Clarke and Ms Jury), Ms Jury had set up a daily telephone hook-up with Mr Davey at 10am, which almost always occurred.
Some email communication concerned remuneration paid to Ms Diaz. Mr Davey had increased her hourly rate of remuneration, and then advised Mr Clarke. Mr Clarke had not challenged that decision, nor did Ms Jury.
18 January 2024
On 18 January 2024, the usual 10am telephone call occurred between Ms Jury and Mr Davey.
The call lasted approximately fifty minutes. After about fifteen minutes it turned confrontational.
I find that Mr Davey became aggressive in tone and started raising his voice after Ms Jury challenged him about (in her view) the inappropriateness of Mr Davey having allowed Mr Boin, a sixteen-year-old, to use a skid steer; especially since she believed the machine had been used on Mr Davey’s personal property and then returned with a steering problem. She told Mr Davey that the property was “not a playground”, the machine was hazardous and Australian Coastal Flora has workplace safety obligations that could not be set aside.
I find that for the remainder of the call Mr Davey remained heated. I find that Mr Davey swore on multiple occasions to Ms Jury and was insubordinate. I also find that Mr Davey used words that were reasonably understood as threatening and intended to be so. I find that Mr Davey was not provoked, and that Ms Jury remained outwardly composed.
I make these findings for the following reasons.
Firstly, I prefer the evidence of Ms Jury to Mr Davey with respect to this call. As noted, Ms Jury’s recall of the events of 18 January 2024 was clear, unshaken in cross examination, consistent with contemporaneous notes and corroborated.
I take into account that Mr Davey denied the conduct, advanced a benign version of the words said to have been threatening, and presented throughout the hearing in a mild and respectful manner. A finding of aggressive, rude and threatening behaviour is, on its face, inconsistent with Mr Davey’s demeanour and measured tone at the hearing and earlier during the 12 February disciplinary meeting (the audio of which is in evidence). Whilst somewhat perplexing that Mr Davey allowed himself to become so heated and threatening on 18 January 2024, this is what occurred. That Mr Davey has not allowed himself to accept that he did so is regrettable.
Secondly, I accept Mr McMillan’s evidence about the call which corroborates Ms Jury’s evidence. The call, from around the period that it became heated, was witnessed by Mr McMillan. Ms Jury took the call from home and her practice was to have the call on speaker phone. Mr McMillan was home that day. He had entered Ms Jury’s office to ask whether she wanted some morning tea when he heard a raised voice on the speaker phone. He was concerned at what he was hearing and remained in the call until its conclusion. I accept his evidence that he not only witnessed all that was thereafter said by Mr Davey, but also that he witnessed his wife writing notes (as, he stated, was her habit). I also accept his evidence that after the call Ms Jury was upset and shaken, and that he told Ms Jury that the threats had to be taken seriously and, in his view, reported to the police because they concerned a firearm.
Thirdly, Ms Jury took contemporaneous handwritten notes of the call as it was occurring. These are in evidence.[24] They corroborate her oral evidence.
The version of the call presented by Mr Davey, including that he did not say what he is alleged to have said, is implausible. Not only is it inconsistent with the notes, the evidence of Mr McMillan and the evidence of Ms Jury but it is also inconsistent with Ms Jury’s subsequent conduct (speaking to Mr Clarke about the call). To accept Mr Davey’s denials is to infer that there had been an elaborate conspiracy between three people (Ms Jury, Mr Clarke and Mr McMillan) to have him sacked. I do not accept this to be so. Mr Davey’s denials are not accepted.
I find that during the telephone conversation Mr Davey made the following statements in a raised voice and with varying levels of aggression, amongst others:
In response to Ms Jury expressing concern that Mr Boin had been allowed to use the skid steer, Mr Davey stated words to the effect:
“I will do what I want”.
In response to Ms Jury instructing Mr Davey to not permit Mr Boin to again use the skid steer, Mr Davey stated:
“You want your name up in lights”
“You have only got this job because you are tapping David”
“You think you are at the top of the pyramid, so…fucking knock you off”
“David is a liar, and all of the locals are sick of him throwing his millions around. He promised me work cars, a boat and workers accommodation. Where is it?”
“He’s trying to impress his millionaire mates and tells lies. He’s a fucking liar”.
The discussion then turned to the proposed development and the water tank which Mr Clarke wanted erected at a high point on the property.
Ms Jury’s evidence was that Mr Davey stated:
“Five minutes after that water tank goes up there will be holes shot in it and anyone who gets in the way. You should not be coming on the property unless there is a prior arrangement and warning to me.”
Mr Davey’s evidence was that he simply stated, “if the tank goes up someone will put a bullet through that”.
For the aforementioned reasons I prefer Ms Jury’s version.
I find that shortly after making the statement about bullet holes being shot in the water tank and anyone who gets in the way, Mr Davey then told Ms Jury:
“Fucking back off and stay away. The locals hate you and you are not welcome in this area. Fucking stay away.”
I find that on more than one occasion Mr Davey swore at Ms Jury whilst warning her to stay away.
I find that the call ended when Mr Davey hung up on Ms Jury.
I find that immediately following the call Ms Jury was shaken and required calming and comfort from her husband.
In the afternoon following the telephone call with Mr Davey, Ms Jury received an unsolicited telephone call from a person who identified themselves as a local. That person told Ms Jury that if a water tank gets erected on the property it would have holes shot in it. The caller told Ms Jury that dark forces exist in the area and that she should stay away.
Receiving this call and its threatening message further shook an already shaken Ms Jury.
Discussions between Ms Jury and Mr Clarke
Following the telephone discussion with Mr Davey, and the subsequent call, Ms Jury contacted Mr Clarke (in the United Kingdom) and spoke to him that day.
She reported the developments and indicated that she felt threatened and bullied. Their conversion concerned mainly what Ms Jury reported about a threat by Mr Davey of bullets being fired into the tank, that Ms Jury was told to stay off the property, the foul language and that her husband felt that this should be reported to the police.
Mr Clarke expressed concern and stated that such conduct was intolerable and would be followed-up.
During the week that followed a further discussion occurred by telephone between Ms Jury and Mr Clarke. Ms Jury remained upset about the call and informed Mr Clarke that Mr Davey had also, according to her, made statements that she only got the job because she was “tapping” him and that he (Mr Clarke) “was a liar” and not liked by the locals.
Mr Clarke expressed disgust at the insinuation of a sexual relationship between them and indicated that he would be reporting the firearm threat to the police. He indicated that upon his return to Australia he would speak directly to Mr Davey.
Events of 22 and 23 January 2024
Mr Davey continued to work at the property in the fortnight following the 18 January telephone call with Ms Jury.
After Ms Jury reported to Mr Clarke that she was experiencing resistance from Mr Davey regarding the weed spraying, on 22 January Mr Clarke telephoned Mr Davey and instructed him to spray the weeds.
Following that phone call, at 2.35pm on 22 January 2024, Mr Davey sent Mr Clarke (copied to Ms Jury) an email requiring a direction to spray the weeds before he would do so. The email read:[25]
“Howdy guys,
As just mentioned on the phone to you David, I need yours and/or Linda's written confirmation to go ahead and spray Curlybush with chemical, as this differs from our original plan. Responsibility for any damage or side effects then sits with you.
Please let me know the areas you want sprayed and what chemical with, bearing in mind previous attempts and lincoln weeds tolerance to glyphosate.
Spraying will not commence until I have this in writing sorry. Today is far too windy, I have a duty to choose the correct days given the location and history.
Thank you.
Regards
Rich”
Upon reading this email, on 23 January 2024 Ms Jury emailed Mr Davey reminding him that he had been required in writing on 6 January to commence spraying and had been asked on 16 January to recommend alternate solutions to blanket spraying and “this has not happened”.[26]
On 23 January, upon reading Mr Davey’s email of 22 January, Mr Clarke sent Mr Davey a bluntly worded response:[27]
“Dear Ritchie,
This is an extraordinary email to send to your employer and I am disappointed to receive it.
I pay you and Lidia very well - there has been nothing wrong with any one of the many dollars that I have given you. Each has been perfect.
The question is whether you have the property in perfect condition in return.
If it is not you may have breached your fiduciary duties to me. You should take this seriously because when I pay well I am entitled to good performance in return.
Your email is unacceptable.
If the property is not in tip-top order I will let you know and you will be well advised to lift your game.
Very best,David”
Mr Davey decided to respond to Mr Clarke by email that day (23 January):[28]
“Thanks for your reply and don’t take things the wrong way please. And your threats are uncalled for… Please trust we have yours and Curlybush’s best interests at heart and always will. We have been down this path before you and I. I have been very open and honest from the beginning about my views of using chemicals on this property and you have been mostly very understanding.
….
Appreciate some more clarity please on the direction we are heading at Curlybush? Is it still your project, is it Linda’s vision or as I hear sometimes does “make it yours Rich” still apply?... Compassion and respect for the property is wavering… There has been no breaches from this side, only transparency and love of the land…
Let’s all lift our game.”
Later that day Mr Clarke advised Mr Davey “to rein in costs” and that Ms Diaz would no longer be employed as a contractor and asked him to give her notice. Mr Davey did so and provided 14 days’ notice. Mr Clarke subsequently queried why two weeks’ notice had been provided to Ms Diaz, a contractor. Mr Davey explained his reasons.
Mr Davey’s credentials to use an Australian Coastal Flora card to purchase supplies from a local supplier was cancelled on 24 January 2024. He was instructed to purchase future supplies on invoice to be sent to Ms Jury.
Site visit by Mr Clarke 30 January 2024
On 30 January 2024 Mr Clarke, having returned to Australia, travelled to the property and spoke to Mr Davey.
Mr Clarke told Mr Davey that his threat to use a firearm and warn Ms Jury off the property was intolerable. Mr Clarke demanded Mr Davey’s resignation. Mr Davey stated that he had not personally threated to use a firearm, that doing so would have been out of character and that he was simply relaying information that other locals had stated to him might occur and which he and Ms Jury needed to be aware of.
Mr Clarke did not accept this explanation. The discussion ended with Mr Clarke indicating that the matter would be taken further.
Mr Clarke also ended Mr Boin’s employment whilst on site on 30 January 2024.
Mr Clarke reported the alleged threat to local police.
Mr Clarke then consulted his solicitors.
Bullying complaint by Mr Davey
The following day, 31 January 2024, Mr Davey by email wrote to Mr Clarke and Ms Jury indicating that he considered that he was being bullied by having false allegations made against him and by being pressured to resign.[29]
On 9 February 2024 Mr Davey lodged a stop bullying application in the Commission (dated 5 February).
The application was discontinued on 19 February 2024 after Mr Davey was dismissed.
Suspension
On 2 February 2024 Mr Clarke telephoned Mr Davey and informed him that he was suspended from employment, directed to leave the property at the end of the day, and that a formal letter was being sent.
A letter of suspension was sent that day (2 February). It read in part:[30]
“The concerns generally relate to threatening and inappropriate comments allegedly made by you, breaches of confidentiality, breach of WHS obligations, and failure to comply with lawful and reasonable directions issued to you by ACF.”
It foreshadowed a letter of allegations.
Letter of allegations
On 7 February 2024 Australian Coastal Flora sent Mr Davey a lengthy letter of allegations which invited him to a disciplinary meeting on 12 February and offered an opportunity to put a response in writing by 11 February. The letter stated, in part:[31]
“If the allegations are substantiated, disciplinary action will almost certainly be taken against you, up to and including the immediate termination of your employment for serious misconduct.”
Mr Davey was given the opportunity to respond to the letter of allegations in writing but chose not to.[32]
Disciplinary meeting
A disciplinary meeting was held on 12 February by video. Mr Davey was in attendance, as was Mr Clarke and Ms Jury.
An audio of the meeting taken by Mr Davey, with the consent of the other attendees, is in evidence.[33]
A transcript of the meeting as taken by Australian Coastal Flora is in evidence.[34]
The allegations were put to Mr Davey one by one. He responded to each of them.
At the conclusion of the meeting, Ms Jury indicated that Australian Coastal Flora “will consider the responses you have provided to us and then we will get back to you with an outcome”.[35]
Dismissal
On 14 February 2024 Australian Coastal Flora sent Mr Davey a letter from Mr Clarke. The letter stated:[36]
“Private and Confidential
Mr Richard Davey
By Email
14 February 2024
Dear Richard
NOTICE OF TERMINATION OF YOUR EMPLOYMENT
I refer to:
1.Your employment at Australian Coastal Flora (ACF);
2.The letter of allegations provided to you on 7 February 2024 (allegations); and
3.The verbal responses you provided to the allegations when we met with you via Teams on 12 February 2024 (your response).
I have carefully considered the allegations and your response.
Based on the information available to me, I have found that the allegations against you have been largely substantiated.
On the balance of probabilities, and the evidence available to me, I have found that allegations 2, 3, 4, 5, 7, 8, 11, 13, 14 and 15 (as particularised in the letter of allegations) have been substantiated.
While I acknowledge you have denied much of the conduct you are alleged to have been involved in, I have preferred the evidence of other witnesses.
While all the behaviour you have been found to have engaged in is not appropriate, and/or unsafe, I am most concerned about your failure to follow reasonable directions, and the threatening statements you have made to Linda.
I have found that you said to Linda words to the effect of:
"five minutes after that water tank goes up there will be holes shot in it and anyone who gets in the way. You should not be coming onto this property unless there is a prior arrangement and warning to me".
You also threatened that Linda should "back off and stay away".
Any threat made towards your manager goes to the heart of the employment relationship, and I have no trust and confidence in your ability to undertake the duties of your employment in an appropriate or safe manner. However, the fact that the threats made also referred to inappropriate and unlawful use of a firearm makes the continuance of your employment entirely untenable.
Your conduct amounts to serious and wilful misconduct and consequently your employment at ACF is being terminated.
As the termination is for serious and wilful misconduct, you are not entitled to any notice. Your employment will end effective today, 15 February 2024.
You will be paid any accrued leave entitlements and wages up to the last day of employment. Your final pay will be made to your bank account on or around 20 February 2024.
Please return any property belonging to ACF that remains in your possession to Ashley Wright at M&G Automotives Warooka, before 19 February 2024.
I also take this opportunity to remind you of your ongoing contractual obligations to ACF including in relation to confidentiality and intellectual property.
Please direct any queries in relation to this letter or your employment to Linda Jury.
Yours sincerely
David Clarke
Proprietor
Australian Coastal Flora Pty Ltd”
(emphasis in original)
Mr Davey’s employment ceased on 15 February 2024 on the terms of the letter. He was paid until that day but not beyond.
Events post-dismissal
Following dismissal, Mr Davey continued to reside in a nearby town.
In the four months following dismissal he looked for other jobs preferably in the region and associated with his interest in land management.
Jobs in the region are scarce. Mr Davey formally applied for one job. He was unsuccessful. He considers that the allegations of serious misconduct levelled by Australian Coastal Flora counted against him.
For its part, Australian Coastal Flora engaged a new manager and contractors.
Mr Davey filed this application eighteen days after dismissal. His application sought reinstatement, a “financial agreement” to end his contract and a written apology. At the hearing, Mr Davey did not press the claim for reinstatement. He sought compensation.
Submissions
Mr Davey
Mr Davey submits that the Code was not complied with because Mr Clarke could not have believed on reasonable grounds that he had engaged in serious misconduct warranting immediate dismissal.
Mr Davey denies that he threatened Ms Jury on 18 January. He submits that he never personally threatened to use a firearm or shoot the water tank. He submits that Mr Clarke was acting on the mistaken belief that he (Mr Davey) had told Ms Jury that he would personally do the shooting. He submits that his reference to the water tank was simply conveying information he had heard from locals which Ms Jury needed to be aware of.
Mr Davey denies that he told Ms Jury to stay off the property, denies that he swore at Ms Jury, denies that he accused Ms Jury of getting the job by sleeping with Mr Clarke, denies that he called Mr Clarke a liar and denies that he ignored Ms Jury’s instruction to keep Mr Boin off the skid steer.
Mr Davey submits that as he did not say what was alleged, Mr Clarke could not have reasonably formed the view that he had.
Mr Davey says that the other allegations made against him are incorrect or taken out of context, and that Mr Clarke knew or should reasonably have known this to be so. In particular he submits that:
- he did not refuse to spray Lincoln weed, but rather acted responsibly in seeking written confirmation from the owner or Chief Executive that this is what he was required to do, in light of his concern about potential impact of chemical spray on plantings. Mr Davey considers this request to have been the trigger for Mr Clarke to unreasonably form a hostile view towards him;
- he did not breach workplace health and safety obligations because Mr Boin’s use of the skid steer was a training lesson, supervised by him and not repeated once he was directed to keep Mr Boin off the machine; and
- he did not improperly increase Ms Diaz’s remuneration because the increased sum was ratified by Mr Clarke and Ms Jury.
Mr Davey submits that as the dismissal was not Code compliant, it was unfair because there was no valid reason. This was so as he did not engage in misconduct because the allegations were either fabricated or his conduct had been taken out of context.
Mr Davey submits that the dismissal was procedurally unfair because it was predetermined and the process of suspension, the allegations letter and the disciplinary meeting were a sham. He submits his explanations were not genuinely listened to.
Mr Davey submits that he should be paid an amount of compensation that fully compensates him for his economic and personal loss arising from dismissal, including reputational damage. He also seeks an apology.
Australian Coastal Flora
Australian Coastal Flora submit that the dismissal was not unfair because it was a small business employer which complied with the Code.
It says that it complied with the Code because Mr Clarke believed on reasonable grounds that Mr Davey had engaged in serious misconduct warranting immediate dismissal.
In particular, Australian Coastal Flora submit that Mr Clarke had reasonable grounds to believe that Mr Davey had engaged in serious misconduct during the telephone call with Ms Jury on 18 January 2024 because:
- Mr Clarke was entitled to believe the truthfulness of Ms Jury’s version, especially after Mr Clarke had heard (and disbelieved) Mr Davey’s version;
- Mr Clarke was entitled to consider the words used by Mr Davey about the water tank, and anyone in the way of it, being shot as threatening and intended to threaten when considering the words themselves, their aggressive tone and the warning immediately following that Ms Jury should stay off the property;
- telling Ms Jury, the Chief Executive, to not go onto the property was insubordinate and unreasonable;
- swearing at Ms Jury was insubordinate and unreasonable;
- telling Ms Jury that she had only got the job because she was “tapping” Mr Clarke was insubordinate and unreasonable; and
- telling Ms Jury that Mr Clarke was a liar was insubordinate and unreasonable.
In the alternative, Australian Coastal Flora submit that the dismissal was not unfair because it was for a valid reason. It submits that the above conduct occurred and was serious misconduct in its own right, both individually and collectively, as it had the effect of undermining trust and confidence in the employment relationship between Australian Coastal Flora and Mr Davey. Mr Davey’s conduct also sought to undermine the relationship between the owner and the Chief Executive.
Australian Coastal Flora submit that other conduct by Mr Davey, including unsafe workplace practices concerning Mr Boin, refusal to follow lawful directions to spray Lincoln weed, and increasing Ms Diaz’s remuneration without prior consent, were also valid reasons.
Australian Coastal Flora submit that the dismissal was procedurally fair because whilst Mr Clarke rightly believed, after the telephone call on 18 January 2024, that Mr Davey should resign, he required a process by which Mr Davey was able to consider the allegations and put his viewpoint before a final decision was made. His explanations were actively considered because many, but not all, allegations were found to have been substantiated.
Finally, Australian Coastal Flora submit that no issue of remedy arises and the application should be dismissed.
Consideration
I am satisfied that Mr Davey was a person protected from unfair dismissal within the meaning of s 382 of the FW Act. He served the required minimum employment period (s 382(a)). His annual rate of earnings did not exceed the high-income threshold (s 382(b)(iii)). His employer was a “national system employer” because Mr Davey’s employment relationship with Mr Clarke (a natural person) was covered by Part 3-2 of the FW Act following a referral of power by the Government of South Australia in 2009.[37]
It is not in dispute that Mr Davey was employed by a small business employer.
It is not in dispute that Mr Davey was dismissed, with dismissal taking effect on 15 February 2024.
No jurisdictional issues arise.
The matter in issue is whether the dismissal was unfair. Two issues arise:
- was the dismissal consistent with the Small Business Fair Dismissal Code? If so, the dismissal cannot be an unfair dismissal (s 385(c)); and
- if (but only if) the dismissal was not Code compliant, was the dismissal harsh, unjust or unreasonable. If so, the dismissal was an unfair dismissal (s 385(b)).
Only if the dismissal was an unfair dismissal am I required to consider what (if any) remedy should be ordered.
Small Business Fair Dismissal Code
Section 388 provides:
“388 The Small Business Fair Dismissal Code
(1)The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2)A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a)immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b)the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
The Code provides:
“The Code
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 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 will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
Serious misconduct has the meaning prescribed by the FW Regulations[38] (s 12). Regulation 1.07 refers to:
“wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment.”
This includes conduct which has the effect of fundamentally undermining the trust and confidence necessary to an employment relationship.
It is not in dispute that Mr Davey was summarily dismissed. The issue is whether the provisions of the Code dealing with “Summary Dismissal” were complied with.
The approach to applying these provisions of the Code has been set out by a Full Bench of the Commission:[39]
“[29]... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”
The evidence clearly establishes that Mr Clarke held a belief at the time of dismissal (15 February 2024) that Mr Davey had engaged in serious misconduct. That belief was first formed immediately following the 18 January 2024 telephone call after speaking to Ms Jury, his Chief Executive.
That belief led Mr Clarke to form the view, at least by 30 January 2024, that the employment relationship was untenable and that it was in the best interests of both parties that Mr Davey resign. That view was confirmed on 30 January 2024 when, after speaking to Mr Davey, Mr Clarke disbelieved his denials.
That view remained after Mr Clarke gave Mr Davey the opportunity to consider the allegations, respond in writing and then respond orally during the disciplinary meeting on 12 February 2024. Mr Clarke continued to disbelieve Mr Davey’s denials.
Was Mr Clarke’s belief based on reasonable grounds?
In Pinawin it was stated by the Full Bench:
“[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”
For the following reasons I conclude that Mr Clarke’s belief was based on reasonable grounds.
Firstly, Mr Clarke was entitled, subject to hearing Mr Davey’s version of events, to believe his Chief Executive and to continue to do so after hearing from Mr Davey. He had no reason to call Ms Jury’s credit into question. Ms Jury was not reporting a conversation second or third hand. She had been a direct party to the 18 January 2024 conversation.
Secondly, Mr Clarke had commissioned an investigation into the conduct in order to inform a final decision and provide Mr Davey an opportunity to respond. Moreover, Mr Clarke directly involved himself in the investigation. He was not merely told of it or its outcome second or third hand. He personally telephoned Mr Davey to advise of the suspension, the allegations letter was sent under his name, and he personally attended the disciplinary meeting (with Ms Jury) on 12 February 2024 and listened to what Mr Davey said.
Thirdly, Mr Clarke was in a position to know whether the allegation that he was “tapping” Ms Jury and had engaged her as Chief Executive because of a sexual relationship was true or not.
Fourthly, it was an objectively reasonable conclusion by Mr Clarke that the misconduct directly and materially undermined the trust and confidence necessary for Australian Coastal Flora to maintain an employment relationship with Mr Davey. In the words of the Full Bench in Pinawin, the conduct bore a sufficient connection with the “employee’s duty of fidelity and good faith” to constitute reasonable grounds. Not only did the conduct undermine the capacity for an effective ongoing relationship between manager and Chief Executive, it also undermined the capacity for an effective relationship between manager and owner, particularly given the high level of trust that had been devolved to Mr Davey to manage a remote property where both owner and Chief Executive were frequently absent.
I take into account that not all of the conduct alleged was found to be substantiated. I also take into account that some of the substantiated conduct could not, objectively considered, be characterised as serious misconduct.
In this respect I refer to three matters.
Firstly, Lincoln weed. I do not consider that a reasonable belief could have been formed that Mr Davey engaged in serious misconduct with respect to the management of Lincoln weed. Whilst it is open on the evidence to find that Mr Davey did not agree with blanket spraying, it is not open to find that he opposed spot or controlled spraying and refused to do so. I agree with Australian Coastal Flora that Mr Davey’s email to Ms Jury on 15 January 2024 was unreasonable pushback against her instruction to commence spraying and to come up with alternatives. Rather than do so, Mr Davey told Ms Jury to herself conduct further research. Whilst Mr Davey’s email to Mr Clarke on 22 January 2024 was again pushback, it was not wholly unreasonable that he sought clear written instruction to proceed. Considered overall, whilst Mr Davey was walking a thin line on pushing back against instructions to spray the weed, his conduct on that issue could not objectively sustain a reasonably held belief of serious misconduct.
Secondly, Mr Boin using the skid steer. The evidence establishes that Mr Davey allowed Mr Boin to use the skid steer on 17 January 2024. However, the evidence also establishes that this was a training session, supervised by Mr Davey and was not repeated once he was directed to keep Mr Boin off the machinery. The decision to train a sixteen-year-old on the machine was somewhat unwise given that Mr Davey had previously been instructed by Mr Clarke that Mr Boin should not drive a tractor on site for safety reasons given the serious risk of injury from equipment rollover or malfunction on farming properties.[40] However, Mr Davey did not proceed with his planned second day of skid steer training. I do not find that Mr Davey’s conduct was serious misconduct on this account or could objectively sustain a reasonably held belief of serious misconduct.
Thirdly, increasing payments to Ms Diaz. The evidence establishes that Mr Davey agreed to increase the hourly rate to Ms Diaz, and only advised Mr Clarke and Ms Jury after the event. However, the evidence also establishes that Mr Davey was, until Ms Jury’s appointment, entitled to engage employees and contractors, and that he promptly asked Mr Clarke to ratify the remuneration decision. Given that Ms Diaz was his long-term partner and that a remuneration increase meant spending Mr Clarke’s money not his, it was unwise for Mr Davey not to seek Mr Clarke’s prior agreement. The potential conflict of interest ought to have been clear. However, confirmation shortly after was sought from the owner and given. Though unwise, I do not find that Mr Davey’s conduct was serious misconduct on this account or could objectively sustain a reasonably held belief of serious misconduct.
However, whilst I have not found that these three matters could support a reasonably held belief of serious misconduct, I am comfortably satisfied that Mr Clarke formed a reasonable belief of serious misconduct with respect to Mr Davey’s conduct during the telephone call on 18 January 2024 and his subsequent denials.
I take into account that Mr Davey submits that Mr Clarke’s views about what was said on 18 January 2024 were mistaken. In part, this is correct. Mr Clarke was operating, at least until the letter of allegations, on the belief that Mr Davey had personally threatened to use a firearm to shoot holes in the water tank. This was not exactly what Mr Davey had said. He did not say who would shoot holes. He did not say that only others would. He did not say that he would, nor that he would not. Mr Davey may have been referring to what others had told him and may have intended to indicate that others (not he) might be the shooters, but in his heated state on the day this nuance is not what he relayed to Ms Jury.
Irrespective of who was inferred as a potential shooter, I have found that what was said by Mr Davey, in the context of the words used, the loud and aggressive tone and the immediate demand that Ms Jury “fucking stay away” from the property, was threatening and intended to be so. It was not a benign passing on of information. Mr Clarke reasonably held the view that Ms Jury had been threatened.
I find that Mr Clarke’s belief of serious misconduct by Mr Davey was sufficient to justify immediate dismissal and was based on reasonable grounds.
For these reasons, the dismissal was consistent with the Code. Accordingly, the dismissal was not unfair.
Harsh, unjust or unreasonable
Should it have been the case that Mr Davey’s dismissal was not consistent with the Code, I would not have found the dismissal to be harsh, unjust or unreasonable.
I briefly set out my reasons on that issue.
Section 387 of the FW Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”
In light of my findings that certain conduct by Mr Davey, and in particular what was said by him during the telephone conversation with Ms Jury on 18 January 2024 did in fact occur, there was a valid reason for dismissal (s 387(a)).
I have found that Mr Davey’s statement in the telephone call about bullets being likely to be shot in the water tank if it was erected was, in the context of his aggressive tone and immediately subsequent statement that Ms Jury “fucking stay away” from the property, both unreasonable and a threat intended to induce fear. It was of itself serious misconduct undermining the necessary trust and confidence required for Australian Coastal Flora to maintain an employment relationship with Mr Davey. It was a valid reason for dismissal.
Further, in the absence of any evidence before me establishing their truth, statements by Mr Davey to the effect that Ms Jury had only secured her job by “tapping Mr Clarke”, that Mr Clarke was a “liar” and the foul language directed at Ms Jury during the telephone call individually and collectively constituted a valid reason. They too had the effect of undermining Mr Clarke’s trust and confidence in Mr Davey.
In addition, once Mr Clarke directly heard Mr Davey deny (as he did on 30 January and again on 12 February) that he had said what I have found he said to Ms Jury, the denial being untruthful also constituted a valid reason for dismissal.
I take into account that I have not found some of the reasons advanced by the employer to have been valid reasons or been established to the standard of proof required in these proceedings. However, it matters not that the employer advanced or substantiated other matters because the proven conduct was serious misconduct and a valid reason.
A valid reason weighs against a finding of unfair dismissal.
As for notification of the reason for dismissal (s 387(b)), Mr Davey was notified by letter of 15 February 2024. He disagreed with the dismissal but knew the reason (serious misconduct). This is a neutral consideration.
As for the opportunity to respond (s 387(c)), I am well satisfied that Mr Davey was afforded procedural fairness. He was suspended, given a letter of allegations and provided an opportunity at a subsequent disciplinary meeting to put his response. At the conclusion of the disciplinary meeting Mr Davey himself said words to the effect “There is nothing more that I would like to add. I think you have covered it all and I have been given a fair chance to respond”.[41] In his evidence Mr Davey stated that he was “comfortable with the procedure” at the disciplinary meeting.[42]
I take into account that on 30 January 2024 Mr Clarke asked for Mr Davey’s resignation. Mr Davey submits that this is evidence of predetermination making the subsequent process a sham. I do not agree.
Whilst the evidence supports a finding that Mr Clarke considered the employment relationship untenable from at least 30 January, and that he disbelieved Mr Davey’s denials about the 18 January conversation, Mr Clarke conditioned his response by indicating that he wanted to provide Mr Davey a procedurally fair process. He immediately instructed Ms Jury and his solicitors to ensure that occurred. It is what occurred. I accept Mr Clarke’s evidence that whilst he was disposed to dismiss from 30 January, he did not finalise his decision until after hearing and again disbelieving Mr Davey’s denials and explanations on 12 February.
I am well satisfied that Mr Davey had the opportunity to explain his conduct including the words he used to Ms Jury on 18 January 2024. Those words were recorded accurately in the letter of allegations sent under Mr Clarke’s name, and they were the words Mr Davey denied using as part of his explanation. I have found that Mr Davey used the words alleged by Ms Jury as reflected in the letter of allegations.
There was no denial of procedural fairness.
Mr Davey had the opportunity to bring a support person (s 387(d)) and chose not to do so. There was no unfairness on this account.
In relation to s 387(e), the dismissal was conduct related. I have not found any performance related issue that constituted a valid reason. Mr Davey correctly points to aspects of the employer’s allegations which concern performance and submits these were appropriately explained. I have not found performance issues to have been a valid reason. Disagreements between Mr Davey and Mr Clarke over day-to-day management of the property (and in particular concerning the development and the eradication of Lincoln weed) occurred but I have not found that Mr Davey did not generally do the job required of him to the best of his ability or to a satisfactory level. As the dismissal was not performance related this is a neutral factor.
As for ss 387(f) and (g), the employer was a small business with no dedicated human resource management. However, the employer had access to professional lawyers, and they were engaged to advise on the matter prior to dismissal. This is a neutral consideration.
No other matters arise (s 387(g)).
In Parmalat Food Products Pty Ltd v Wililo a Full Bench of the Commission observed:[43]
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
No relevant let alone significant mitigating factor applies in this matter.
Considered overall, the serious misconduct coupled with an appropriate measure of procedural fairness would have led me to conclude that the dismissal was not harsh, unjust or unreasonable.
Accordingly, no issue of remedy would have arisen should the Code have not been complied with.
Conclusion
I have found that the dismissal of Mr Davey by Australian Coastal Flora was consistent with the Small Business Fair Dismissal Code and therefore not unfair.
I have also found that if the Code had not been complied with the dismissal was not harsh, unjust or unreasonable given the serious misconduct and procedural fairness provided.
As the dismissal was not unfair, the application must be dismissed. An order giving effect to this decision is issued in conjunction with its publication.[44]
DEPUTY PRESIDENT
Appearances:
Mr R. Davey, on his own behalf.
Mr J. Roder of counsel, with permission, on behalf of Australian Coastal Flora with Mr L. Holland, Ms G. Sivashankar and Ms M. Positano.
Hearing details:
2024.
Adelaide (Hearing).
11, 12, 13 June.
[1] R2 and R3
[2] Decision by email 5 June 2024
[3] Statements A3, A4, A5, A6
[4] Statement A1
[5] Statement A2
[6] Statement A21
[7] Statement R1
[8] Statement R4
[9] Statement R5
[10] Audio recording 11 June 2024 at 2h 03m
[11] A7
[12] R6
[13] R5 paragraph 14
[14] A3 email 5
[15] A3 email 6
[16] A3 email 7
[17] A3 email 13
[18] A3 email 12
[19] A3 email 15
[20] A3 email 16
[21] ibid
[22] R1paragraph 18; A3 email 16
[23] ibid
[24] R2
[25] A3 email 18
[26] ibid
[27] ibid
[28] ibid
[29] A3 email 19
[30] R5 DC4
[31] R5 DC6
[32] Audio recording 11 June 2024 5hr 52m
[33] A7
[34] R1 LJ5
[35] Ibid
[36] A11 (included in bundle)
[37] s 14 and s 30D FW Act
[38] Fair Work Regulations 2009 (Cth) (FW Regulations)
[39] Pinawin T/A RoseVi.Hair.Face.Body v Domingo (2012) 219 IR 128 (Pinawin); see also Ryman v Thrash Pty Ltd T/A Wishart’s Automotive Services[2015] FWCFB 5264, [41]
[40] Audio recording 11 June 2024 4hr 51m
[41] R1 LJ5
[42] Audio recording 11 June 2024 5hr 54m
[43] [2011] FWAFB 1166, [24]
[44] PR776398
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