Mrs Julie Bilton v Grandview Poultry

[2016] FWC 7691

[2016] FWC 7691

FAIR WORK COMMISSION

DECISION

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

Mrs Julie Bilton
v
Grandview Poultry
(U2016/2349)

Mr David Bilton
v
Grandview Poultry
(U2016/2351)

COMMISSIONER ROE MELBOURNE, 28 OCTOBER 2016

Application for relief from unfair dismissal.

[1] David and Julie Bilton were continuously employed by Grandview Poultry for almost five years. During the early years of employment at Grandview David Bilton was the manager of poultry Unit 1 and Julie Bilton was a farm hand but in the later years David and Julie Bilton were assistant managers of poultry Unit 2. They were both dismissed on 10 May 2016 at the initiative of the employer. Grandview Poultry is a small business but it is not suggested that the dismissal was in accordance with the small business fair dismissal code. Although the dismissal was described by the employer as being for “operational reasons” it is not suggested that the dismissals were for reasons of redundancy.

[2] The Applicants gave evidence and a large number of testimonials were also provided as to the character of Mr Bilton and his standing in the community. Evidence was given by the director of the company who was the decision maker in respect to the dismissals, Mr Harry Kipouropoulos. Evidence was also given by three other managers of the company: Mrs Jenni Kipouropoulos the wife of the director; Mr Clint Cooper who was an assistant manager of Unit 1 when Mr Bilton was its manager and who then became the manager of Unit 1 when Mr Bilton became the assistant manager of Unit 2; and Mr Yianni Drosis who was employed late in 2015 as the manager of Unit 2.

[3] David and Julie Bilton reported directly to Mr Harry Kipouropoulos. However, their position description required them to assist the manager of Unit 2, Mr Yianni Drosis (in the final six months of their employment), in a number of functions and to act under the direction of Mr Drosis in respect to a number of responsibilities. As Mr Bilton had more experience in the management of poultry operations he was also expected to assist Mr Drosis in developing expertise in his role.

The events leading to the dismissal.

[4] There were no issues about the conduct or performance of David and Julie Bilton raised by management during the period of the employment prior to an incident on 23 April 2016. David Bilton produced uncontested evidence that during 2015 he worked every day of the year, inclusive of weekends and public holidays, except for a period of leave from 2 March to 10 March inclusive and on 17, 18, 19 April, 18 July, 28 August, 4 September, and 25 and 26 December. Mr Drosis gave evidence that Mr Bilton finished work early on 20 April 2016 and that Mr Bilton had told him that this was to have his car serviced. Mr Bilton produced uncontested documentary evidence that in fact he had a medical appointment on that day. Mr Bilton said that the appointment had been made several months earlier and that he only left work a little early. I prefer the evidence of Mr Bilton in respect to this matter. Given the uncontested documentary evidence of Mr Bilton’s work hours and commitment I am not satisfied that there is any basis for concern about Mr Bilton’s work ethic or performance. Mr Drosis gave evidence that Mr Bilton worked in the evening of 21 April and that not all required tasks were attended to and further that Mr Bilton did not come to work on 22 April 2016. The facts concerning this allegation were not explored at the hearing; however, even if I accepted these allegations they would not alter my overall conclusion. Mr Bilton was not asked to respond to these allegations during the period of his employment or at the time of his termination. There was no suggestion of any issue concerning Mrs Bilton’s performance.

[5] On 23 April 2016 there was a confrontation between Mr David Bilton and Mr Drosis. This was witnessed by Mr Cooper. The confrontation was short and Mr Bilton attempted to contact Mr Harry Kipouropoulos and when that was unsuccessful left the site. Within a few minutes of the confrontation Mrs Jenni Kipouropoulos instructed the Bilton's by phone to go home and take leave whilst the issues were sorted out. On 26 April she instructed the Bilton’s to take annual leave until 9 May 2016 so that management could get to the site and understand what was going on and settle things down. The dismissal occurred at a meeting on 10 May 2016.

[6] Neither David nor Julie Bilton performed any work for the company between 23 April 2016 and the dismissal on 10 May 2016.

[7] Mr Drosis was upset about the confrontation and on 25 April 2016 offered his resignation to Mrs Kipouropoulos. In response Mrs Kipouropoulos said “I told Yianni that David and Julie were taking some time off until we could sort the issue out.” 1 Mr Kipouropoulos and Mr Drosis gave evidence that it was not clear whether Mr Drosis was going to remain for some time after this. A final decision was taken by Mr Kipouropoulos and Mr Drosis that Mr Drosis would remain as the manager of Unit 2 sometime prior to the dismissal meeting on 10 May 2016.

[8] Mr Bilton gave evidence that at various times in the period between 23 April 2016 and 10 May 2016 various people including Mr and Mrs Kipouropoulos and Mr Cooper had told him that Mr Drosis had resigned and was going to leave. The employer witnesses denied that they ever told Mr Bilton that Mr Drosis had resigned. It is not necessary to resolve this conflict in the evidence as I am satisfied that there was significant doubt about whether or not Mr Drosis was going to remain in employment and this was communicated to Mr Bilton by a number of people. Mr Cooper agreed that on Friday 6 May 2016 it was still unclear whether or not Mr Drosis was going to remain in employment and that Mr Cooper told Mr Bilton that he was unsure as to what was happening with Mr Drosis.

[9] Attempts were made to organise a meeting between Mr Bilton and Mr Kipouropoulos on May 5 or 6 but these were unsuccessful. There was a telephone conversation between them on 3 May 2016. Mr Bilton says that he was asked if he would be prepared to step up to the plate in the absence of Mr Drosis and he says that he responded in the affirmative. Mr Kipouropoulos did not confirm this aspect of the conversation. Mr Bilton attended the site on May 6 to attempt to meet with Mr Kipouropoulos to discuss the issues of concern. Mr Bilton offered to assist with any work requirements. Mr Kipouropoulos was too busy and too tired to have the discussion at that time and it was postponed until 10 May 2016. The Bilton's were dismissed at the meeting on 10 May 2016.

The April 23 confrontation.

[10] Mr Drosis says that he sought to have a meeting with Mr Bilton on 23 April 2016 in order to give Mr Bilton a written warning for conduct and performance. He advised Mr Kipouropoulos on 22 April 2016 that “today he didn’t even come to work and also failed to call in. For six month’s I am putting up with his underperformance but now thinks (sic) have started compromising the quality of the business.” I am satisfied that Mr Drosis gave Mr Bilton no opportunity to respond to these matters prior to determining that a warning should be issued. In circumstances where Mr Bilton was an experienced poultry manager who had been assisting Mr Drosis in his new role this was extremely unfair. I am also satisfied that Mr Drosis was attempting to alter some work practices which had been utilised by the Bilton’s over a significant period of time. It is possible that this may have caused some resentment and initial resistance.

[11] Mr Bilton was not given any advice about the purpose of the meeting on 23 April 2016. At the commencement of the meeting Mr Drosis sought to record the conversation using his mobile phone. Mr Bilton took strong exception to this. Mr Bilton says that Mr Drosis refused to stop the recording. I am satisfied that in the circumstances Mr Bilton’s response was reasonable. There was no proper basis for Mr Drosis to escalate matters in such an extreme manner. Mr Bilton left the meeting. He attempted to reach Mr Kipouropoulos on the telephone. He decided that it was best to avoid further confrontation and to leave the site until he was able to talk with Mr Kipouropoulos. He returned shortly after this with Mrs Bilton to pick up his lunch box. Mr Drosis and Mr Cooper say that at this point Mr Drosis asked Mr Bilton “if he was refusing to acknowledge the warning”. Mr Drosis conceded that this was the only time that a warning had been mentioned and that no warning was in fact given to or shown to Mr Bilton. Mr Drosis also accepted that given that Mr Bilton was in a hurry and passing through to get belongings it is possible that Mr Bilton would not have heard the comment regarding the warning. Mr Bilton gave evidence that there was no reference to a warning. Mrs Bilton says that she heard Mr Drosis yelling but she could not understand what he said.

[12] All parties agree that as the Bilton’s were in the process of leaving the site after this confrontation Mr Bilton swore at Mr Drosis. Mr Cooper and Mr Drosis say that Mr Bilton said “you can go and get fucked” in response to the proposed warning. Mr Bilton says that he said “you can do your own fucking sheds” as he was leaving the site. Mrs Bilton says that this is what she heard Mr Bilton say. Mr Bilton gave evidence that swearing is commonplace at the work site and that there is no policy concerning this issue and the issue had never been raised by management during his employment. The issue of swearing was never raised with Mr Bilton during the period after the 23 April 2016 confrontation and it was not raised in the dismissal letter or at the dismissal meeting. Mr Drosis conceded that he swore at other employees on occasion. I am not satisfied that Mr Bilton’s swearing on this occasion (regardless of which version of the words was used) is a valid reason for dismissal or disciplinary action in the circumstances.

[13] Mrs Bilton was not directly involved in the confrontation. I am not satisfied that there was a proper basis for her to leave the site with Mr Bilton. However, within a few minutes of leaving the site Mrs Kipouropoulos instructed the Bilton's to go home and subsequently authorised their absence for the remaining period of their employment. Mrs Bilton leaving the site was misconduct but in context not sufficiently serious misconduct as to justify termination of employment. The employer does not suggest that this was the reason for the termination of her employment.

The background to the 10 May 2016 dismissal meeting.

[14] For the reason discussed earlier I am satisfied that during the period from 23 April until the dismissal meeting on 10 May the Bilton's were of the view that it was likely that Mr Drosis would not be continuing as the manager of Unit 2. Mr Bilton had two informal discussions with Mr Cooper in which the issue of what was happening at the site was discussed. Mr Cooper accepted that this was work gossip between colleagues. Mr Cooper was not Mr Bilton’s manager and they had worked together for a number of years initially when Mr Bilton was the manager and Mr Cooper was the assistant manager. Mr Cooper says that Mr Bilton made it clear in a telephone conversation on 27 April that he was unhappy with Mr Drosis and that he would not put up with the sort of thing that happened on 23 April. He also said that he was going to ask Mr Kipouropoulos to convert Mrs Bilton to full time employment and to replace his vehicle. When Mr Cooper gave evidence he said that Mr Bilton said he would not do pick-ups (of dead birds) unless he had a new van whilst in his written statement he said that Mr Bilton had said he would not do pick-ups as an additional and separate demand. He also alleges that Mr Bilton said that they would not be coming back to work if Mr Drosis was still there. Mr Cooper says that these points were essentially reiterated when they had a chance meeting at the Bendigo cinemas on 6 May 2016. Mr Cooper communicated both conversations to Mr Kipouropoulos.

[15] Mr Bilton says that both conversations with Mr Cooper occurred and accepts that there was discussion about what was happening on site and in particular what was happening with Mr Drosis. He accepts that he expressed dissatisfaction with what Mr Drosis did on 23 April 2016 but strenuously denies saying that they would not return to work if Mr Drosis was still there. When Mr Cooper gave evidence he said that Mr Bilton had said that he would not work “under Mr Drosis” whereas in his written statement he said that Mr Bilton had said that they wouldn’t return if Mr Drosis was still there. I am satisfied that there is some lack of clarity in Mr Cooper’s evidence about the content of the two conversations between Mr Cooper and Mr Bilton.

[16] I suspect that in his conversations with Mr Cooper Mr Bilton may have expressed his dissatisfaction with Mr Drosis very strongly. As is common in informal discussions with work colleagues irritations are expressed in more forceful and absolute terms than in the reflected positions which are finally expressed to management. This may have understandably led Mr Cooper to draw the conclusion that the Bilton's would not be likely to return to work successfully with Mr Drosis. In other words it is possible that Mr Bilton is correct and that he did not specifically say that they would not work with Mr Drosis but that Mr Cooper understandably got this impression. I did not find any basis to conclude that Mr Bilton or Mr Cooper were dishonest as witnesses. For this reason I prefer this explanation to concluding that either Mr Cooper or Mr Bilton are not telling the truth.

[17] There was no doubt from the evidence of Mr and Mrs Kipouropoulos that the issue of whether or not Mr Drosis and the Bilton's could work successfully together was their main concern. They directed the Bilton's to take leave while they considered this situation and how it might be resolved. In the end they decided that they wanted to retain Mr Drosis. Mr Kipouropoulos gave evidence that he was heavily influenced in his decision making by two factors:

a. The inconvenience caused by the Bilton's leaving the site on 23 April 2016; and

b. The information provided by Mr Cooper that the Bilton's would allegedly not work with Mr Drosis.

[18] Mr Kipouropoulos conceded that most of the inconvenience caused during the period from 23 April 2016 until 10 May 2016 was because the Bilton's were directed to take leave during the period. The Bilton's cannot be held responsible for that. It was a reasonable decision by Mr and Mrs Kipouropoulos to tell the Bilton's not to come into work without loss of pay whilst they investigated and sorted out the problem between Mr Drosis and the Bilton's. This is particularly the case given that it is a small business and Mr and Mrs Kipouropoulos are not at the site on a daily basis. The delays in investigating and sorting matters out were to some extent beyond the control of Mr and Mrs Kipouropoulos. They were very busy with managing the requirements of the business and this made setting up a suitable meeting with the Bilton's difficult.

[19] I am satisfied that when Mr Kipouropoulos arrived at the termination meeting on 10 May 2016 he had decided that Mr Drosis was to remain as a manager and he believed that the Bilton's would not be prepared to remain on the job in those circumstances. He had reached this conclusion because of what Mr Cooper had told him. Mr Kipouropoulos says that he was open to a different outcome and to discussing a working arrangement which would continue the employment of Mr Drosis and the Bilton's. However, I am satisfied that Mr Kipouropoulos was unreasonably and unduly prejudiced by what Mr Cooper had told him. As a consequence he never asked Mr Bilton to explain what had happened on 23 April and what the nature of his concerns about Mr Drosis’ behaviour were and he never asked Mr Bilton how the issue which had arisen with Mr Drosis might be resolved.

The 10 May 2016 dismissal meeting.

[20] All parties agree that at the meeting on 10 May 2016 the following occurred, although they disagree about the order of the third and fourth element:

• Mr Kipouropoulos expressed his dissatisfaction at the problems caused to the business by what happened on 23 April 2016.
• Mr Kipouropoulos said that Mr Drosis was remaining as a manager.
• Mrs Bilton said that “well that’s us out then”.
• Mr Kipouropoulos said that the Bilton's employment was being terminated.
• Mr Bilton asked at the end of the meeting what the settlement terms were.
• Mr Kipouropoulos said that they would get their entitlements but nothing more.

[21] The Bilton's say that early in the meeting Mr Kipouropoulos said that the Bilton's were given their age going to retire shortly and that he was restructuring the workforce and going with a younger manager. The Bilton's say that Mrs Bilton said “well that’s us out then” only after it was clear that they were being dismissed because Mr Kipouropoulos was restructuring and going with the younger manager. Mr Kipouropoulos and Mr Cooper deny that impending retirement was raised and they say that Mrs Bilton said “well that’s us out then” prior to any mention of dismissal.

[22] The Bilton's did not challenge the dismissal or seek to change Mr Kipouropoulos’ mind. Mr Bilton says that this was because he was shocked. I am satisfied that Mr Kipouropoulos did not ask the Bilton's for an explanation or ask them if there was a possible solution to the problem.

[23] I am not satisfied that the Bilton's resigned their employment. I am satisfied that Mr Bilton made a number of efforts during the period between 23 April and 10 May to meet with Mr Kipouropoulos. He offered to assist with necessary work. I have no doubt that Mr Bilton expressed in both words and deeds his desire to continue in employment with Grandview Poultry. I am satisfied that Mr Bilton attended the meeting on 10 May with the intention of continuing his employment with Grandview Poultry and open to sorting out any obstacles to this occurring.

[24] For the reasons discussed earlier I am satisfied that Mr Cooper and Mr Kipouropoulos approached the meeting expecting that when the Bilton's were told that Mr Drosis was remaining they would not wish to continue in employment. I therefore consider it likely that Mr Kipouropoulos combined the statement that Mr Drosis was staying with some words that suggested that the Bilton's might be leaving and that there would be a restructure with the younger manager. Even if I am wrong about this matter and the order of events was as put by Mr Kipouropoulos and Mr Cooper, I am not satisfied that Mrs Bilton’s statement “well that’s us out then” can be taken to be a definitive refusal by Mr and Mrs Bilton to work with Mr Drosis. Mr Kipouropoulos gave evidence that he believed that it was. It might have been such a refusal but without further enquiry and opportunity for explanation such a conclusion cannot reasonably be reached. Without further inquiry Mrs Bilton’s comment may simply have reflected her understanding that it was Mr Kipouropoulos’ intention that they would be gone as a consequence of Mr Drosis staying.

[25] I am satisfied that neither party was listening carefully. Mr Kipouropoulos and Mr Cooper assumed that the Bilton's would not work with Mr Drosis and the Bilton's thought that they would be staying and Mr Drosis would be going. When the Bilton's heard that Mr Drosis was staying they were shocked and accepted that a possible implication was that their employment would be coming to an end as a consequence. When Mrs Bilton appeared to behave as Mr Kipouropoulos had expected the Bilton's would, Mr Kipouropoulos did not consider it necessary or productive to explore the matter any further.

Was the dismissal unfair?

[26] In deciding whether or not the dismissal was unfair I am required to consider the following:

“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.”

[27] The employer argues that the refusal of the Bilton's to work with Mr Drosis was a valid reason for dismissal. I accept that if the Bilton's had refused to work with Mr Drosis then this would be a valid reason for dismissal related to their conduct. I also accept that Mr Kipouropoulos believed that when Mrs Bilton said at the 10 May 2016 termination meeting “well that’s us out then” she was refusing to work with Mr Drosis on behalf of both herself and her husband. However, for the reasons discussed earlier I am not satisfied that this statement in context was such a clear refusal and Mr Kipouropoulos did not test whether or not it was in fact a clear refusal to work with Mr Drosis.

[28] I am not satisfied that there was a valid reason for termination.

[29] I am satisfied that the Bilton’s were told that they were being dismissed because Mr Drosis was being retained as the manager and they could or would not work with him. This was described by the company as “operational reasons”. However, for the reasons discussed this was not a valid reason.

[30] I am not satisfied that the Bilton's were given procedural fairness. They were not given a meaningful opportunity to respond or to influence the decision maker before the decision to terminate was made. For reasons discussed earlier I consider that to some extent this was due to misunderstandings and to over-reliance on second hand information.

[31] The Bilton's were not refused a support person. They were not specifically told that the meeting could lead to termination of employment and so they did not have a realistic opportunity to arrange representation. However, this is not a requirement under Section 387(d).

[32] It is common ground that the dismissals did not relate to unsatisfactory performance.
[33] I am satisfied that the small size of the business and its lack of human resource management expertise did contribute to some of the lack of procedural fairness in this case.

[34] Other matters which I consider relevant are:

• The fact that only a small number of employees were engaged in the poultry unit and Mr Drosis and the Bilton's as the manager and the assistant managers were the key employees meant that the maintenance of effective relationships between them was critical to the business. The business was also facing a significant challenge in moving from broiler production to RSPCA certified production.
• Because the Bilton's were not aware that the meeting of 10 May 2016 could result in termination of employment they were effectively denied the opportunity to be represented or supported.

[35] I have balanced the issues associated with the small business with the other factors and conclude that the dismissals were unfair. They were unjust and unreasonable due to the lack of valid reason and the lack of procedural fairness and opportunity to respond and influence the decision maker.

Remedy

[36] Neither Mr Bilton nor Mrs Bilton is seeking reinstatement. Mr Bilton has found other employment. I accept that it would be difficult to restore the relationship in respect to Mrs Bilton. I accept that reinstatement is inappropriate in the circumstances.

[37] I consider it appropriate to make an order for compensation in both these cases. Both employees have suffered an injustice and financial loss. Any compensation I might order will not exceed the compensation cap of half the high income threshold.

[38] I am also not permitted to include an amount of compensation for shock, distress or humiliation caused by the manner of the dismissal (Section 392(4)). I have not included any such amount.

[39] I am required to consider the following matters in determining compensation (Section 392(2)):

“Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC 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
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(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
(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
(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

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

[40] I consider the situation of the two employees separately.

Compensation for Mr Bilton.

[41] Mr Bilton was employed by Grandview Poultry for just under five years. His rate of pay was $821.43 per week plus super. He says that he was vigorous in looking for alternative employment throughout the period following the dismissal. He provided a list of places he says he approached. The unemployment rate in the Maryborough region is high and this combined with his age of 60 years made it difficult to find employment. He was successful in obtaining new employment 21 weeks after the dismissal. He received four weeks’ pay upon termination as required by the NES.

[42] Grandview Poultry did not submit that any order I might make would affect its viability.

[43] The five years of service is significant and this stands in favour of an award of compensation.

[44] In estimating the period of employment had the dismissal not occurred I take into account Mr Bilton’s length of service and his age and his evidence that he intended to remain with Grandview Poultry for some years and I have balanced that against the fact that relationships between employees can particularly affect the length of service of employees in a small business. I do not consider that the evidence established that there had been any long term problem in the relationship between Mr Bilton and Mr Kipouropoulos. I consider that the evidence established that the relationship between Mr Drosis and Mr Bilton was problematic but it did not establish that the relationship was irreparable. Although Mr Bilton had a disagreement with Mr Drosis and would have preferred if he did not return to work I consider it likely he would have continued in employment with Mr Drosis as a manager if he had been given the opportunity to do so. I accept that Mr Kipouropoulos had good reasons to be concerned that this might not work out and that this could have been disruptive to his business which was reliant on a small number of people. In the context of this small business I consider that there was a strong possibility that the relationship may not have been able to be repaired. I therefore on balance estimate that the employment would have continued for a further eight weeks plus the four weeks’ notice Mr Bilton would have been entitled to under the NES; a total of 12 weeks.

[45] In the 12 weeks following the dismissal Mr Bilton did not earn any income from employment other than the 4 weeks’ notice pay which must be deducted.

[46] I am satisfied that Mr Bilton made adequate efforts to mitigate his loss. Grandview Poultry did not challenge his evidence in this respect.

[47] The 12 week period since the dismissal has expired. As Mr Bilton has found new employment he will not suffer any further loss during the period between the making of the order for compensation and the actual compensation. I will not make any adjustment to the compensation for this period.

[48] The only uncertainty in this matter is the estimate of the period of likely employment. I therefore do not consider that any deduction for contingencies is necessary.

[49] I do not consider that there are any other relevant matters.

[50] Submissions were made concerning whether or not there should be a discount for misconduct which contributed to the decision to dismiss. Grandview Poultry referred to the events of 23 April and in particular the unauthorised leaving of the site, the swearing and taking Mrs Bilton from the site with him. I consider that Mrs Bilton’s absence is a matter for Mrs Bilton not Mr Bilton. I do not consider the swearing contributed to the decision to dismiss. The unauthorised absence from the site was short and I have found was reasonable in all the circumstances in respect to Mr Bilton. I therefore do not consider that I am required to make any deduction for misconduct.

[51] The resulting compensation is eight weeks pay. One week’s pay is $821.43 plus 9.5% superannuation. I will order that compensation of $7,195.73 be paid within twenty one days with appropriate taxation to be deducted in accordance with law.

Compensation for Mrs Bilton.

[52] Mrs Bilton was employed by Grandview Poultry for just under five years. Her rate of pay was $821.43 per week plus super. She says that she was vigorous in looking for alternative employment throughout the period following the dismissal. She provided a list of places she says she approached. The unemployment rate in the Maryborough region is high and this combined with her age of 57 years made it difficult to find employment. She has not been successful in obtaining new employment since the dismissal. She received four weeks’ pay upon termination as required by the NES.

[53] Grandview Poultry did not submit that any order I might make would affect its viability.

[54] The five years of service is significant and this stands in favour of an award of compensation.

[55] In estimating the period of employment had the dismissal not occurred I take into account Mrs Bilton’s length of service and her age and her evidence that she intended to remain with Grandview Poultry for some years and I have balanced that against the fact that relationships between employees can particularly affect the length of service of employees in a small business. I do not consider that the evidence established that there had been any long term problem in the relationship between Mrs Bilton and Mr Kipouropoulos. I consider that the evidence did not establish that the relationship between Mr Drosis and Mrs Bilton was problematic. The issues between Mr Bilton and Mr Drosis cannot be transferred to Mrs Bilton. Mrs Bilton’s statement at the meeting on 10 May 2016 suggests that it is possible that if the relationship with Mr Bilton could not be repaired in the medium term then Mrs Bilton may also not have continued in employment. I therefore on balance estimate that the employment would have continued for a further three months plus the four weeks’ notice Mrs Bilton would have been entitled to under the NES; a total of 17 weeks.

[56] In the 17 weeks following the dismissal Mrs Bilton did not earn any income from employment other than the 4 weeks’ notice pay which must be deducted.

[57] I am satisfied that Mrs Bilton made adequate efforts to mitigate her loss. Grandview Poultry did not challenge his evidence in this respect.

[58] The 17 week period since the dismissal has expired. Mrs Bilton is not likely to earn any income during the period between the making of the order for compensation and the actual compensation. I will not make any adjustment to the compensation for this period.

[59] The only uncertainty in this matter is the estimate of the period of likely employment. I therefore do not consider that any deduction for contingencies is necessary.

[60] I do not consider that there any other relevant matters.

[61] Submissions were made concerning whether or not there should be a discount for misconduct which contributed to the decision to dismiss. Grandview Poultry referred to Mrs Bilton’s statement during the termination meeting and also to her leaving the work site without authorisation or reasonable cause on 23 April. The unauthorised absence from the site was short but it was not reasonable in all the circumstances. I therefore consider that leaving the site on 23 April 2016 was misconduct which in the case of Mrs Bilton did contribute to the decision to dismiss. I consider that a deduction of 20% is appropriate.

[62] The resulting compensation is therefore 13x0.8 = 10.4 weeks. One week’s pay is $821.43 plus 9.5% superannuation. I will order that compensation of $9,354.44 be paid within twenty one days with appropriate taxation to be deducted in accordance with law.

COMMISSIONER

Appearances:

Mr R Loyer represented the Applicant’s.

Mr R Martin represented the Respondent.

Hearing details:

2016

Melbourne

October 18

 1   Statement of Mrs Kipouropoulos at para 5.

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