Raymond King v SA Van Grootel Pty Ltd T/A Shady Willows Holiday Park
[2020] FWC 3621
•13 JULY 2020
| [2020] FWC 3621 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Raymond King
v
SA Van Grootel Pty Ltd T/A Shady Willows Holiday Park
(U2019/14823)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 13 JULY 2020 |
Application for relief from unfair dismissal – various jurisdictional objections: applicant had not completed the minimum employment period, application lodged out of time and dismissal consistent with the Small Business Fair Dismissal Code (the Code) – dismissal found to be consistent with the Code, other jurisdictional objections dismissed – application dismissed.
[1] Mr Raymond King (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 30 December 2019 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by SA Van Grootel Pty Ltd T/A Shady Willows Holiday Park (the Respondent) on 9 December 2019 was unfair.
[2] The Respondent in its Form F3 – Employer response to unfair dismissal application contended that Mr King had been summarily dismissed on 7 December 2019 and raised two jurisdictional objections. Specifically, the Respondent contended that Mr King’s employment did not meet the minimum employment period and that it was a small business employer and that it complied with the Small Business Fair Dismissal Code (the Code). The application was not the subject of a conciliation conference as the Respondent advised the Commission on 21 January 2020 that it wished to have its jurisdictional objections dealt with in the first instance.
[3] On 22 January 2020 Vice President Catanzariti wrote to Mr King requesting inter alia that Mr King provide a statement by 4:00pm on 29 January 2020 explaining why he considered that he had met the minimum employment period. Mr King replied on 29 January 2020 indicating that he felt that he had met the minimum employment period of one year, inclusive of his period of employment as a casual employee.
[4] Mr King’s application was subsequently allocated to the Commission as presently constituted, with Directions initially issued on 18 March 2020. Revised Directions were issued on 25 March 2020.
[5] On 31 March 2020 the Respondent filed a Form F4 – Objection to unfair dismissal application which raised an additional objection, i.e. that Mr King’s unfair dismissal application was lodged outside the 21 day statutory timeframe specified in the Act.
[6] The jurisdictional objections were heard on 14 May 2020. At the hearing Mr King appeared on his own behalf, while Mrs Adrianne van Grootel, a Director of the Respondent, appeared for Respondent.
[7] Mr King provided a witness statement. Mrs van Grootel and Mr Simon van Grootel, also a Director with the Respondent, provided witness statements for the Respondent. None of the parties were required to give oral evidence.
[8] For the reasons outlined below, I have determined that:
(i) Mr King had completed the minimum employment period and that his unfair dismissal application was filed within time. As such, the Respondent’s jurisdictional objections in that regard are dismissed; and
(ii) Ms King’s dismissal was consistent with the Code. Accordingly, Mr King’s unfair dismissal application will be dismissed.
Background
[9] Mr King commenced employment with the Respondent as a casual employee 2 July 2018 and continued to be employed in that capacity until 18 December 2018. On 19 December Mr King and his wife, Mrs Cathy King, commenced employment with the Respondent as full time Park Managers at the Shady Willows Holiday Park (the Park – a caravan park located in Batemans Bay, NSW). The owners of the Park, Mrs and Mr van Grootel, both live and work in Sydney.
[10] In early June 2019 Mrs van Grootel received correspondence from a former employee regarding an underpayment issue. On 9 June 2019 Mrs van Grootel emailed Mr King regarding the matter, with Mr King responding the following day. On 17 June 2019 the former employee forwarded to Mrs van Grootel email communication between herself and Mr King regarding the underpayment issue. Mrs and Mr van Grootel had a telephone conversation with Mr King regarding the matter on 22 June 2019 and on 24 June 2019 emailed the following warning letter to him:
“I am writing to you about your conduct during your employment with SA VAN GROOTEL PTY LTD (the employer).
On 22nd June 2019 you had a phone meeting with us (Simon and Adrianne). At this meeting you were advised that your conduct has been unsatisfactory, and that immediate improvement is required. In particular you were advised that payments made to others using company cash is to cease. Your tone and manner in verbal and written communications with staff, former employees, customers, suppliers and others you deal with under the employment of SA VAN GROOTEL PTY LTD is to be professional and courtesy [sic] at all times. Any issues raised to you as the onsite manager that can’t be resolved within the normal bounds of your role are required to be raised with Adrianne or Simon immediately.
In the meeting you were asked if you had anything to say or to respond to the situation and you agreed that you had not handled the matter appropriately, and you would make sure it didn’t happen again.
…
This is your first warning letter. Your employment may be terminated if your conduct does not improve.
Simon will arrange to attend the Park in the coming weeks and will review your progress. If you wish to respond to this formal warning letter please do so by contacting me on … or by replying in writing.” 1
[11] Mr King was issued another warning on 9 October 2019 in the following terms:
“Hi Ray and Cathy,
It is now Wednesday and the files below that I requested be sent by Sunday I have still not received. Just as Simon’s messages for the police application for the incident report to be emailed has remained ignored.
I must make it clear that the continual instances of ignoring our emails or not providing the information as requested, along with changing statements is unacceptable.
Simon and I are reviewing feedback and noting the continued lack of completing tasks as requested. This behaviour is not acceptable and may result in termination of your employment.” 2
[12] On 25 November 2019 Mrs and Mr van Grootel telephoned Mr and Mrs King to discuss their concerns regarding several issues, including Mr King’s lack of response regarding questions about the management of accounts and the discrepancy in cash banked as well as Mr King’s lack of professionalism in communications. During that telephone call Mr van Grootel advised Mr and Mrs King that their employment was terminated with two weeks’ notice. Later that day the following termination letter was emailed to Mr and Mrs King:
“Dear Ray and Cathy,
Termination of your employment
As per our phone conversation today, Monday 25th November 20919 at 5.30pm, we are writing to you about the termination of your employment with SA VAN GROOTEL PTY LTD trading as Shady Willows Holiday Park due to continued non-performance and numerous other matters relating to the effective management of the park which make situation no longer tenable.
A formal warning letter was provided on the 24th June approximately six months into the tenure, that clearly stated concerns that needed to be addressed and improved upon, namely the clear instruction that under no circumstances should any cash payments be made to others and also that all communication on behalf of SA Van Grootel Pty Ltd is to be of a professional standard.
As per numerous emails over recent months, it is clear that cash payments continued and there have been a number of examples of communication both to customers and ourselves which have been far from professional.
Over the past several months we have struggled to get clear and timely responses to numerous queries relating to operational matters and clarification required. These have included expense questions, audits of RMS [Reservation Management System] vs banking reports, NCAT items and as well general maintenance updates. As per our email on the 26th September 2019 we clearly stated that the lack of timely responses was not acceptable. This was reinforced by email on the 9th October where stated the behaviour was not acceptable and may result in termination of your employment.
The replies in turn have varied from nothing for several days despite clear response timelines advised, through to countless text messages (18+) in a few hours and then recently extremely unprofessional emails as recently as 8th November where Ray, you stated that that it is not our position to be requesting quick responses and that perhaps we should be doing the things you had been asked to do on a number of occasions.
In this email of the 8th November 2019 we again clearly articulated cash payments or payments in lieu were still being made despite the previous warning letter.
When we offered you both the roles of park managers this was a joint position. It has become clear from your communication whilst we expect that many of the administrative questions sit with Cathy, Ray you have stated you have to review everything.
We consider that your performance is still unsatisfactory and have decided to terminate your employment for the following reasons where you have failed to meet the required job description:
− Unauthorized use of cash;
− Failure to manage communication to external & internal stakeholders in a professional manner; and
− Work effectively with management by providing timely and clear responses.
As a result the situation has become untenable and based on the agreed Letter of Offer dated 19 December 2018, we hereby provide notice that your employment will end on Monday the 9th December 2019. We will confirm a handover timetable in the coming week.” 3 (Emphasis and errors as per original)
[13] On 29 November 2019 Mr King sent a text message to Mrs and Mr van Grootel which included the following:
“Re: in reference to the “termination letter
I’d ask that you both review the content of the letter and offer that it be re-dacted and that a “mutual separation of our employment agreement” be done in place of the current.
The current letter being totally unacceptable and of a nature that we will be forced to vigorously defend against it’s content and validity.
Have a think about it.
It is totally unnecessary for you to exit the relationship in that manner, moreover it can be proven to be untruthfull and malicious.” 4 (Errors as per original)
[14] Mr King also emailed Mr van Grootel on 29 November 2019, with Mr van Grootel responding the next day advising inter alia that there would be a handover to the incoming managers prior to 9 December 2019. 5
[15] On 5 December 2019 Mr van Grootel advised Mr and Mrs King that a handover to the new park managers had been scheduled for 7 December 2019, with the handover to include handover of management of the office and reconciliation of and signing over of petty cash. 6 Mr King sent the following email to Mrs and Mr van Grootel that evening:
“Adrianne & Simon
As i mentioned before, we are entitled to:
1. Paid leave in lieu of working public holidays = 11 days paid leave owing + loading.
Hospitality Award 2010 – section 27.1 (c) = $1,923.00 approx
2. Crane cost of $500.00, of which we will supply a receipt and if need a statutory declaration of the work carried out.
3. The final pay out figures to be written on your business letterhead and itemised for each employee, with the ability for each party to agree to and sign.
I will also supply a current first aid certificate ( pretty sure i gave it to you before ).
The handover, regardless of the date can only be carried out once the above has been signed and agreed to and we have received our payment.
If we are able to agree, then Saturday 10am would be okay for the handover upon confirmation of the payment transfer.
However, we will not vacate or agree to access of the residence until Monday the 9/12/2029 [sic 2019] by 7 pm at the earliest and will also need to include the signed and agreed document and all the entitlements have been paid by the 9/12/2019 including work on the 9/12/2019.” 7 (Formatting as per original)
[16] Mr van Grootel attended the Holiday Park on 7 December 2019 for the handover. An incident occurred in which it is alleged that Mr King switched off the computers and refused to give Mr van Grootel the password to log in to the Park’s computer system. The incident saw the police called to the Park, with the police instructing Mr King to provide Mr van Grootel the password for the computer. Mr van Grootel states in his witness statement that he immediately sent the following email to Mr and Mrs King:
“As advised the Police have been notified. Based on your refusal to follow legal direction to hand over company property and your refusal to answer questions regarding concerns of misappropriation of funds we notify you and Cathy that you are summarily dismissed immediately. You will be required to leave the premises with your belongs [sic] immediately. Final pay will be made in due course” [sic]. Letter confirming summary dismissal will be provided to you via email today.” 8
[17] Later that day the following notice of termination (the summary dismissal letter) was sent by email to Mr and Mrs King:
“This letter serves as notice of summary termination of your employment effective immediately.
You were issued with notice of termination of employment on notice by way of letter dated 25 November 2019. You were also issued with a letter of warning dated 24 June 2019.
Today, you were expected to assist with the handover to the new managers of the park. Additionally, you were issued with a lawful direction to provide all passwords to the company’s computer system and property. You indicated that you will not be complying with this request and refused to provide Simon Van Grootel with the passwords. This effectively locks the company out of the company’s systems and property.
You were also directed to sit down and discuss / explain accounting irregularities and missing company money. You were recently placed on notice that the company was investigating these matters and would be discussing them with you. These irregularities include missing revenue, purchase of assets without authority, missing client property, uncollected revenue and a number of other matters. Today, you advised Simon Van Grootel that you will not be answering any questions in relation to these matters.
It is the company’s reasonable view that you have misappropriated money (theft and potentially fraud), failed to act in the best interest of the company and have been grossly negligent in the carrying out of your duties under your contract of employment.
Given your unwillingness to assist the company resolve these concerns and answer questions that company has not [sic] alternative, but to terminate your employment summarily (effective immediately). The NSW Police will also be asked to investigate these matters and assist the company.
You will be paid your entitlements on termination of employment.” 9
[18] As previously mentioned, Mr King’s unfair dismissal application was received by the Commission on 30 December 2019.
The Respondent’s case
[19] The Respondent’s submissions regarding each of its jurisdictional objections are set out below in the context of dealing with those objections.
[20] Mrs van Grootel provided two witness statements 10. In her first statement Mrs van Grootel provided an overview of events leading up to the engagement of Mr and Mrs King as Park Managers in December 2018. Among other things, Mrs van Grootel deposed that in the first few months of their employment as Park Managers it appeared that work was being completed as required but that during April 2019 she decided that communications going forward should only be in writing as things discussed in telephone conversations with Mr King appeared to be forgotten or changed. Beyond that, Mrs van Grootel provided a detailed chronology/overview of various issues that arose regarding Mr King’s conduct and the written communications exchanged with Mr King as Park Manager until his summary dismissal on 7 December 2019. In her second statement, Mrs van Grootel responded to aspects of Mr King’s witness statement and written submissions.
[21] Mr van Grootel in his witness statement 11 also provided an overview of issues that arose during the course of Mr King’s employment. Among other things, Mr van Grootel:
• described his concerns regarding a deterioration in the condition of the Park (Mr van Grootel’s concerns were based on his observations whilst visiting the Park on a number of occasions in 2019), particularly in respect of maintenance;
• highlighted the difficulty he encountered in getting prompt and clear responses from Mr King in respect of the issues he raised with him;
• referred to the lack of progress regarding the siting and installation of two new cabins at the Park, despite having provided instructions to Mr King regarding these issues;
• deposed that on 13 October 2019 the Respondent received an overdue account from Betta Electrical for the purchase of a laptop computer and LED television on 18 April 2019, adding that further investigation revealed that Mr King had purchased the laptop for personal use using the Respondent’s account;
• acknowledged that Mr King subsequently provided evidence of having arranged payment for the laptop computer in two instalments in June and July 2019;
• described the events of 7 December 2019 which led to the summary dismissal of Mr and Mrs King;
• stated that on 7 December 2019 Mr and Mrs King were advised by the police to vacate the premises by 9 December 2019, adding that they did so;
• mentioned that after Mr King’s dismissal the Respondent received invoices from a local supplier for $1,200 for trailer hire, pointing out that the expenditure had not been authorised; and
• deposed that Mr King used one of the Respondent’s vehicles on 8 December 2019 without consent, with the police called regarding that matter.
The Applicant’s case
[22] Mr King submitted among other things that he had been notified of his dismissal via a telephone conference on 24 November 2019 and in writing the following day, with his dismissal taking effect on 9 December 2019. As to why he considered his dismissal unfair, Mr King submitted that:
• he was not given the correct particulars of the incidents as per the termination letter of 25 November 2019;
• he was not given any support in relation to the termination process; and
• the Respondent did not act accordingly in relation to his workplace injury which would have ensured that he received the correct support.
[23] Mr King in his witness statement 12 deposed that:
• his unfair dismissal application had been filed within the statutory timeframe based on the termination date of 9 December 2019;
• at no time during his telephone conversation with Mrs and Mr van Grootel on 22 June 2019 was he advised that his conduct relating to any other person and or business/supplier was unprofessional;
• he was not afforded any right of reply or counselling in respect of the warning he received on 24 June 2019;
• there was no evidentiary material to support the Respondent’s claim that he was not willing to communicate with them in relation to any accounting irregularities, missing money or a handover to the new Park Managers with access to computers and passwords;
• the reasons for the warning letter of 9 October 2019 were inaccurate and did not take into account other significant factors;
• he had sent a text message to Mr van Grootel on 25 November 2019 indicating that the working relationship was not as effective as it should be and inter alia suggesting a conference call to clear the air and address some pending issues; and
• he had been hospitalised due to a workplace injury from 7 August to 18 September 2019.
Consideration of the jurisdictional objections
[24] I will consider each of the Respondent’s jurisdictional objections separately commencing with whether Mr King met the minimum employment period, then whether his application was filed outside the 21 day statutory timeframe and if so whether there were exceptional circumstances warranting the Commission allowing a further period for Mr King to make his application and finally whether the dismissal was consistent with the Code. If any of the jurisdictional objections are made out, Mr King’s application will be dismissed. Depending on which (if any) of the jurisdictional objections are made out, it may not be necessary to consider the Respondent’s other objection(s). Should none of the jurisdictional objections be upheld, the application will be listed for conciliation in the first instance.
1. Did Mr King complete the required minimum employment period?
The Statutory framework
[25] The relevant sections of the Act dealing with whether a person is protected from unfair dismissal and the minimum employment period are sections 382 to 384 which provide as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) …”
Consideration
[26] It was not disputed that the Respondent employed five persons (including Mr and Mrs King) at the time of Mr King’s dismissal and was therefore a small business employer for the purposes of the Act. Accordingly, the minimum employment period for Mr King is one year. I note that the Hospitality Industry (General) Award 2010 13 (as it was at the time of Mr King’s dismissal) covers caravan parks. It was also not disputed that Mr King’s full time employment with the Respondent commenced on 19 December 2018. Mr and Mrs King were given two weeks’ notice of termination on 25 November 2019 (see paragraph [12] above). As such, based on his full time employment with the Respondent, Mr King did not complete the one year minimum employment period specified in s.383(b) of the Act. However, it was also not disputed that preceding his full time employment with the Respondent Mr King worked for the Respondent as a casual employee for the period 2 July to 18 December 2019. The issue to be determined is whether this period of casual employment counts towards Mr King’s period of employment as per s.384(2) of the Act. If the period does count towards Mr King’s period of employment this would mean that he had been employed for a period totalling almost 17 months at the time he was given notice of termination, which exceeds the one year minimum employment period.
[27] In its Form F3 the Respondent stated that whilst employed as a casual employee Mr King worked “in a regular and systematic manner” 14 but that during that period he could not have had a reasonable expectation of continuing employment. In its written submissions the Respondent contended that Mr King had a very tenuous working relationship with the Park Managers who hired him, adding that there were times when they told him not to come in. At the hearing, the Respondent reiterated these contentions, adding that Mr King had no real reason to expect ongoing employment given his tumultuous employment with the then Park Managers. More specifically, the Respondent submitted that as a casual employee Mr King had lots of verbal discussions and arguments with the then Park Managers and highlighted emails from the then Park Managers which were attached to Mrs van Grootel’s first witness statement. Those emails inter alia referred to issues concerning Mr King and the Park’s computers. The Respondent further reiterated that there were times when Mr King was told to either leave early or not come in the next day.
[28] In her first witness statement Mrs van Grootel deposed among other things that whilst employed as a casual employee Mr King worked an average of around 22 hours per week, adding that she understood Mr King’s primary role was to staff the reception area for up to two days per week while the then Park Managers took a break. Mrs van Grootel also deposed that she understood that on occasions the then Park Managers asked Mr King to undertake additional tasks such as garden maintenance. In her witness statement Mrs van Grootel referred to emails which she received from the then Park Managers raising issues regarding Mr King, including an email of 24 November 2018. Among other things that email stated as follows:
“With the issues with Ray [Mr King] we had decided to give him a trial period as I need to have time off and we didnt discuss with you the problems we were having because they can usually be sorted in house.
I dont know if you have been giving Ray permission to do things but I am seeing things from our end and he is making his own rules on so many areas. Letting people into cabins and giving discounts that shouldnt be given as we are the cheapest place in town especially for pet friendly accommodation.
… He has some good ideas that can be used but I dont want things changed without him asking first. We cant have him playing around with the computers as this is the second time all our storage folders have been deleted and other things have been put on the computer.
We had a complaint from our TV repair man because he was really rude to him …
But the worst one was the altercation with Brent [one of the then Park Managers] when he was swearing at him and told him he would punch him out. We should have sacked him on the spot because it was uncalled for … I suppose he told you we dont want him going into out house on our days off. We have set him up with a kettle and fridge and he can use toilets downstairs. This was done because he was seen coming out of our bedroom which he had no right to be in and also just making our home his private area …
If I need to discuss anything with Ray I do but he should know how to deal with any issue by now unless it is something that we need to do. I could go on but the decision is yours but you only see his good side. We have seen both.” 15 (Textual errors as per original)
[29] Mr van Grootel in his witness statement deposed that Mr King was employed for two days per week to allow the then Park Managers their two rostered days off and that the Park had always employed a casual office manager for two to three days per week for this purpose. Mr van Grootel also stated that over the period September to November 2018 the Respondent received a number of concerns from one of the then Park Managers about Mr King’s actions, such as making changes to the computer system and also going into the Park Managers’ residence unnecessarily. In addition, Mr van Grootel referred to the above email of 24 November 2018 from the then Park Managers, adding that the Respondent was of the impression that the then Park Managers were close to dismissing Mr King but that as the Respondent had separate concerns regarding the then Park Managers they (the Respondent) thought they were being defensive.
[30] In his response 29 January 2020 response to Vice President Catanzariti’s correspondence regarding the minimum employment period issue (see paragraph [3] above), Mr King stated among other things that:
“I was employed as a casual reception/office person and my rostered days on were Wednesday and Thursday of every week and I was instructed by the park manager that this role would be ongoing.
The position of casual reception/office person enabled the Park Managers to have two days of each week (their weekend) and without the role filled the park managers would not be able to take their respective leave.
It was also only a few months before I was asked by the park managers to do an extra day work out on the grounds of the park, to which I agreed.
It was my understanding from discussions with the park managers that the extra work was at the request of the park owners, and this continued regularly most weeks.
…
Prior to the new role of park manager, I was always led to believe that my casual role was ongoing and was intracule to the business functions of the park.
That is, for management of the park to function correctly the park managers were required to have two days off per week and that my role was to relief them.” (Errors and formatting as per original)
[31] Mr King did not address this jurisdictional objection in his written submissions or in his witness statement, though he did state in his submissions that he worked a minimum of 22 hours per week as a casual employee.
[32] At the hearing, Mr King, when asked by the Commission about the Respondent’s contention that as a casual employee he did not have an expectation of ongoing employment, submitted that he was “worried on a couple of occasions” as a result of his treatment by one of the then Park Managers. However, Mr King also submitted that the indications were that work was increasing as he was asked to come in on additional days to work around the grounds, e.g. undertake maintenance work in the toilets and add soil to the gardens. Mr King further submitted that the indications were that this was likely to be an ongoing arrangement. In addition, Mr King posited that there was an expectation of ongoing work, whether performed by him or someone else, as the owners needed someone to relieve the then Park Managers for two days each week. Beyond that, Mr King submitted among other things that:
• based on a discussion he had with Mr van Grootel while employed as a casual employee he felt that everything was “OK”;
• the deletion of the computer files was an accident resulting from a malfunctioning mouse;
• he had to use the guest toilets (as opposed to the Park Managers’ residence) and if he needed water he needed “to go down and get those sort of things”;
• he had never been relieved earlier than his expected finish time; and
• in a casual sense, work was increasing and he always had an expectation of work and continuing work, especially after being offered additional shifts.
[33] The material before the Commission indicates that throughout his casual employment Mr King was engaged to work two days per week to staff the Park’s reception area and allow the then Park Managers to have two days off. This work amounted to around 22 hours per week and was supplemented with Mr King being asked on occasions to work additional shifts undertaking work in the Park grounds. As such, I am satisfied that Mr King was employed on a regular and systematic basis as per s.384(2)(a)(i) of the Act throughout his period of casual employment with the Respondent.
[34] As to whether during his period of casual employment Mr King had a reasonable expectation of continuing employment by the employer on a regular and systematic basis as required by s.384(2)(a)(ii) of the Act, I note that the Full Bench in Bronze Hospitality Pty Ltd v Janell Hansson (Hansson) 16 made the following observations regarding the construction of that provision:
“[29] We make some observations about the construction of s.384(2)(a)(ii). First, ‘during’ can mean either ‘throughout the course of’ or ‘at a point in the course of’. In our view, the first of these meanings is intended. The sub-provision is an exception to an exception; a period of casual service does not count, unless two requirements are met. Both of these requirements concern states of affairs that can develop over time. This context points to the word ‘during’ connoting a continuous period, rather than a point in time. Further, the alternative construction would mean that a casual employee need only have a reasonable expectation of continuing employment for any fleeting period in the course of the casual employment. There is no apparent rationale that would support this being the intended meaning. Finally, we note that the explanatory memorandum to the Fair Work Bill states simply that ‘service as a casual employee does not count towards the period of employment unless it was on a regular and systematic basis and the employee had a reasonable expectation of continuing engagement on a regular and systematic basis.’ This wording is consistent with the interpretation we favour, and inconsistent with a ‘point in time’ meaning. The effect of this is that a particular period of service as a casual employee only ‘counts’ in respect of periods when the casual employment was regular and systematic and the employee had a reasonable expectation of continuing employment.
[30] Secondly, the continuing employment that is to be the object of the reasonable expectation is employment as a casual employee. So much is clear from the reference to ongoing employment on a ‘regular and systematic basis’. However, if an employee has an expectation of future permanent employment, this might be relevant to whether the employee also had an expectation of continuing casual employment pending the commencement of permanent employment.” 17 (Emphasis as per original and endnotes not included)
[35] The limited material before the Commission regarding the issue of whether Mr King had an expectation of continuing employment by the employer on a regular and systematic basis indicates that:
• the Park had always employed a casual office manager for two to three days per week to allow the Park Managers to have two days off;
• the then Park Managers had decided to give Mr King a trial period and during his period of casual employment had several concerns regarding Mr King’s conduct which they raised with the Respondent (see above email of 24 November 2018);
• the then Park Managers expressed the view that they should have dismissed Mr King as a result of an altercation he had with one of them;
• Mr King was worried on a couple of occasions about his continuing employment as a result of his treatment by one of the then Park Managers; and
• Mr King was on occasions asked to undertake additional tasks such as garden maintenance by the then Park Managers.
[36] It is not entirely clear from the material before the Commission whether the previous Park Managers raised their concerns regarding Mr King’s conduct with him or indicated that his continued casual employment was at risk. However, Mr King’s reference in his submissions to the computer issue and the need to use the guest toilets suggests that they did raise some of their concerns with Mr King. That view is reinforced by Mr King’s submission that he was worried on a couple of occasions regarding his employment. This suggests that during his period of service as a casual employee, Mr King may not have had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis. However, significant contra indicators are that Mr King was on occasions asked by the then Park Managers to undertake additional tasks such as garden maintenance and that the Respondent, based on Mr van Grootel’s evidence, dismissed the then Park Managers concerns regarding Mr King as them being defensive. In other words, there is nothing to suggest that the Respondent (as opposed to the then Park Managers) had contemplated terminating Mr King’s casual employment.
[37] Taking into account all these considerations, I am on balance satisfied that during his period of casual employment Mr King had a reasonable expectation of continuing employment by the Respondent on a regular and systematic basis.
[38] That conclusion means that Mr King’s period of casual employment counts towards his period of employment with the Respondent, resulting in his period of employment being almost 17 months. Accordingly, Mr King has completed the required minimum employment period. The Respondent’s jurisdictional objection is therefore dismissed.
2. Was Mr King’s unfair dismissal application filed out of time?
[39] As can be seen from paragraphs [16] and [17] above, Mr King was summarily dismissed on 7 December 2019 which was a Saturday. Twenty one days after that date was Saturday, 28 December 2019. As already noted, Mr King’s unfair dismissal application was received by the Commission on Monday, 30 December 2019.
[40] The Full Bench in Mr Gregory Stedman v Transdev NSW Pty Ltd T/A Transdev Buses 18 observed that when calculating time limits under the Act, s.40A of the Act is relevant. Section 40A provides as follows:
“40A Application of the Acts Interpretation Act 1901
(1) The Acts Interpretation Act 1901, as in force on 25 June 2009, applies to this Act.
(2) Amendments of the Acts Interpretation Act 1901 made after that day do not apply to this Act.”
[41] Section 36 of the Acts Interpretation Act 1901 (Cth) (the AI Act), as it was in force on 25 June 2009, provided:
“36 Reckoning of time
(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.
(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.” (Underlining added)
[42] As the last day for Mr King to file his unfair dismissal application fell on Saturday, 28 December 2019, by virtue of s.36 of the AI Act Mr King was able to file his application “on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place”. In short, this means that the last day on which Mr King could file his unfair dismissal application was Monday, 30 December 2019. This was the date that Mr King’s application was received by the Commission. Accordingly, Mr King’s application was filed within the statutory timeframe. In those circumstances, the Respondent’s jurisdictional objection in this regard is dismissed and it is not necessary to deal with the parties’ respective submissions regarding that objection.
3. Was Mr King’s dismissal consistent with the Code?
[43] As previously mentioned, it was not disputed that the Respondent employed five persons (including Mr and Mrs King) at the time of Mr King’s dismissal and was therefore a small business employer for the purposes of the Act. Accordingly, the Code applies in this case. Further, it is clear that Mr King was summarily dismissed with immediate effect on 7 December 2019 (see paragraphs [16] and [17] above). As such, it is the Summary Dismissal section of the Code which is relevant in this case.
The statutory framework
[44] The Commission exercises its powers in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. Those provisions from Part 3-2 of the Act which are relevant in this case are set out below.
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
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.
[45] The Code declared by the Minister pursuant to s.388(1) of the Act is as follows:
“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.”
Consideration
[46] The Full Bench in Grandbridge Limited v Mrs Diane Wiburd (Grandbridge) 19 set out the issue to be considered in determining whether a dismissal was consistent with the Summary Dismissal section of the Code as follows:
“The proper inquiry raised by the Code is relevantly, whether at the time of the dismissal the employer genuinely believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The Code focusses attention on the employer’s belief which must be based on reasonable grounds, not on whether the employee’s conduct as a matter of fact and law justified immediate dismissal.” 20
[47] The decision in Grandbridge drew on the decision in Jeremy Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services (Ryman) 21 in which the Full Bench stated as follows:
“[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.” 22
[48] Drawing on the decisions in Grandbridge and Ryman, in determining the Respondent’s jurisdictional objection the Commission needs to decide whether it genuinely believed on reasonable grounds that Mr King’s conduct warranted immediate dismissal. As also stated in Grandbridge, the question to be determined is not whether the employee’s conduct as a matter of fact and law justified immediate dismissal.
[49] The meaning of reasonable grounds was considered by Deputy President Sams in Peter Williams v P & J Cole Investments Pty Ltd t/a Savins Radiator Services 23 where he observed as follows:
“[76] In my opinion, the meaning of ‘reasonable grounds’ in the Code is that the grounds are ‘reasonable’ when viewed from the standpoint of what a reasonable person would conclude as grounds which are credible, sensible, logical or plausible; see also: Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited [2011] FWA 8288 (‘HWE Mining’).” 24
[50] I respectfully agree with and adopt the approaches outlined in the above decisions.
[51] The Respondent contended that there was considerable evidence that Mr King’s conduct was not in keeping with the interests of the business, adding that Mr King had been given numerous warnings regarding his behaviour, manner and use of company cash and expenses without approval. The Respondent further contended that Mr King’s manner in communicating with his employer was arrogant and disrespectful and resulted in making the working relationship untenable. The Respondent also submitted that Mr King was given many opportunities to respond to its queries and requests for clarification regarding discrepancies around financials, positing that Mr King evaded responding until 7 December 2019 when he advised Mr van Grootel that he would not be answering any questions in relation to these matters.
[52] The Respondent in its written submissions referred to the decision in John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo. 25
[53] At the hearing, the Respondent reiterated that in the months prior to his summary dismissal Mr King had been given ample evidence and opportunity to respond to cash and EFTPOS differences in RMS. The Respondent also stated that its external accountant had looked at its analysis of the accounts and confirmed that there were irregularities and that its analysis was correct. The Respondent further reiterated that Mr King was given a substantial amount of time and evidence not only in relation to discrepancies between its bank account and RMS but also in respect of issues such as the illegal use of the Respondent’s cash to purchase a laptop computer and the unauthorised expenditure of amounts over $400. The Respondent added that there were numerous occasions that Mr King could have sat down and discussed these issues and that he “point blank” refused to discuss these issues with Mr van Grootel on 7 December 2019. The Respondent also disputed that Mr King had provided the required passwords, adding that it had to contact other systems such as Booking.com to change passwords.
[54] As to the events of 7 December 2019, Mr van Grootel deposed in his witness statement that he arrived at the Park at around 9:30 am and went into the office and said to Mr King that he had some further questions regarding cash payments that were being made to residents of the Park and asked if he could explain what was going on. Mr van Grootel further deposed that Mr King responded to the effect that “[i]f you want to play these games, watch out because I can play them too” and then proceeded to turn off the office computer and instructed Mrs King to do the same to the front desk RMS computer, effectively locking the Respondent out of the system. Mr van Grootel stated that he then advised Mr and Mrs King that their actions were completely unacceptable and that as a result their employment was immediately terminated, adding that Mr King retreated to the Park Manager’s residence at which time Mrs van Grootel called the police to attend. Mr van Grootel stated that the police arrived at around 10:00 am and inter alia instructed Mr King to provide the password to the computer. 26
[55] Mr King did not address this objection in his written submissions, though he did contend in his submissions that he had not been given any clear evidence by the Respondent regarding the serious allegations it had made regarding his performance. Mr King also contended that the particular incidents referred to in the termination letter (Mr King did not specify whether he was referring to the letter of 25 November or 7 December 2019) were incorrect and untrue. As previously mentioned, Mr King deposed in his witness statement that there was no evidentiary material to support the Respondent’s claim that he was not willing to communicate with them in relation to any accounting irregularities, missing money or a handover to the new Park Managers with access to computers and passwords.
[56] Key aspects of Mr King’s oral submissions regarding this jurisdictional objection included that:
• on 7 December 2019 Mr van Grootel entered the premises, adding that he had a brief discussion with Mr van Grootel who indicated that he wanted to know what was going on, reiterated some of the allegations of dishonesty and wanted the computer passwords;
• while he did not have a problem with any of that, he said to Mr van Grootel that he really needed to provide some proof in respect of the allegations and, given their seriousness, suggested that the Respondent initiate an independent audit in respect of the allegations;
• he did turn one computer off, adding that he told Mr van Grootel that he did that so to ensure that any changes made to files from when the computer was rebooted could not be attributed to him;
• the business was fully functional once the computer was rebooted;
• on previous visits to the Park Mr van Grootel had taken photos of all the computer passwords for the business’ system, adding that the passwords were displayed on a laminated A4 sheet which was posted on the wall;
• the police were called to the Park;
• he was concerned about the handover because of the Respondent’s allegations of dishonesty against him;
• he was aware of the handover in advance of its scheduled date and while he intended to participate, he also wanted to clarify several issues with the Respondent before doing so (see Mr King’s email of 5 December 2019 at paragraph [15] above); and
• he did not accept the summary dismissal letter given to him on 7 December 2019 as he did not accept there was a valid reason for his dismissal in the absence of proof regarding the Respondent’s allegations of dishonesty.
[57] In response to an invitation from the Commission to comment on the third paragraph of the summary dismissal letter of 7 December 2019 which stated “You were also directed to sit down and discuss / explain accounting irregularities and missing company money … Today, you advised Simon Van Grootel that you will not be answering any questions in relation to these matters” (see paragraph [17] above), Mr King stated that:
• he refused to discuss these issues because Mr van Grootel was not providing any proof in respect of the allegations;
• he was not happy to sit down and have a discussion with Mr van Grootel along the lines of “what’s this money/what’s that money?” or “what’s this for/what’s that for?” because he did not know what the discussion was going to be about, adding that he gave Mr van Grootel the opportunity to identify exactly what he wanted to talk about but it seemed that Mr van Grootel wanted to have a general discussion about broad allegations of theft or dishonesty without providing any specifics;
• he did not think it was an appropriate discussion to have in the absence of an external audit or any paperwork;
• he thought such a discussion would be a waste of time because Mr van Grootel had nothing specific to say, adding that he did not know what Mr van Grootel was going to say and that he did not really give Mr van Grootel the opportunity to do that;
• he further thought such a discussion would be pointless as he did not really see what would result from the discussion, opining that nothing positive for either side would come out of such a discussion in the absence of Mr van Grootel having any paperwork regarding the Respondent’s concerns;
• he had previously had discussions with Mrs van Grootel regarding irregularities in the accounts, adding that there were irregularities when the system was put in place and that he was resetting the system every couple of months to indicate where the business actually was;
• at no time was he given the opportunity to sit down with the Respondent, positing that the appropriate time to do so was once the results of an external audit had been received;
• he did not dispute that the Respondent had previously raised concerns with him regarding the accounts, adding that at all times the Respondent had access to RMS which was used in relation to the accounts for the business;
• if an employer wanted to dismiss an employee for dishonesty, they needed to prove it; and
• he was not a dishonest person nor was his wife.
[58] Putting aside the inconsistencies in Mr King’s comments regarding the third paragraph of the summary dismissal letter (e.g. Mr King stated that he gave Mr van Grootel the opportunity to identify exactly what he wanted to talk about but later said that he did not know what Mr van Grootel was going to say and that he did not really give Mr van Grootel the opportunity to do that), his comments confirm that he did not comply with Mr van Grootel’s direction to discuss the Respondent’s concerns regarding the accounts. Mr van Grootel’s direction was in my view a lawful and reasonable direction, particularly in circumstances where Mr King did not dispute that the Respondent had previously raised concerns with him regarding the accounts. Against that background, the Respondent’s view that Mr King’s failure to comply with Mr van Grootel’s direction justified immediate dismissal is in my view reasonably based.
[59] The summary dismissal letter also referred to Mr King’s failure to comply with Mr van Grootel’s direction on 7 December to provide all passwords to the Respondent’s computer system and property. Mr King deposed in his witness statement there was no evidentiary material to support the Respondent’s claim that he was not willing to among other things communicate with them in relation to a handover to the new Park Managers with access to computers and passwords. However, based on the material before the Commission it appears that Mr King only provided the passwords to Mr van Grootel after the police attended the Park on 7 December 2019. Supporting that conclusion are:
• Mr van Grootel’s evidence regarding the events of 7 December 2019, which I note was not challenged by way of cross examination by Mr King; and
• Mr King’s submission that he did turn one computer off on 7 December while Mr van Grootel was at the Park.
[60] I also note that Mr King did not explicitly contend in his oral submissions that he voluntarily provided the passwords to Mr van Grootel as requested. Further, Mr King’s contention that Mr van Grootel had previously taken photos of the passwords, that the passwords were posted on the wall and the reason he gave for turning off the computer do not excuse his failure to comply with was by any stretch of the imagination an entirely reasonable request by Mr van Grootel. I am therefore satisfied that the Respondent’s view that Mr King’s failure to comply with Mr van Grootel’s direction to provide all passwords justified immediate dismissal was reasonably based.
[61] Beyond the above, the summary dismissal letter stated that it was the Respondent’s reasonable view that Mr King had inter alia misappropriated money. The reasonableness of that view is demonstrated by the following email exchange between Mrs van Grootel and Mr King. Mrs van Grootel sent Mr and Mrs King an email on 22 October 2019 which read as follows:
“We have been reviewing the RMS reports and deposit slips posted to us recently. We note that over the period provided to us, there is a discrepancy between the RMS deposit slips and the cash & cheques that are actually banked in the CBA account. This amounts to $5301.
With the cash receipts that you have provided us for the same period (April – September $3524.98) there is $1776 cash unaccounted for.
Please advise ASAP where that cash has been allocated/accounted for.” 27
[62] At the foot of the email was a table setting out for each month from April to September 2019 the following amounts – Deposit slip cash, Cash in CBA, Difference Cash, Total EFT RMS and Total CBA. The table identified the difference between RMS and CBA as $18,662. 28
[63] In the absence of a substantive response, Mrs van Grootel sent a further email to Mr and Mrs King foreshadowing that she would be following up on outstanding items in the next few days. Mr King subsequently sent an email to Mrs van Grootel’s email on 8 November 2019 which included the following in respect of the issues raised in her email of 22 October 2019:
“I did send as response about the audit trail, i don’t know why you didn’t get it ?
…
Anyway, I do not know how you have come to those figures for the RMS/CBA and come its 6 months down the track and only now are you bringing it to our attention ?
I mean $18,662.00 ? really, i absolutely know that’s wrong.
What we are missing, or its being lost at your or in the mail is some receipts to the amount of approx. $700.00 and that’s only recently.” 29 (Text and formatting as per original)
[64] On any objective reading, Mr King’s response is not only unsatisfactory but fails to provide an adequate explanation as to the reasons or possible reasons for the discrepancy. Mr King complained in his oral submissions that the Respondent did not provide any proof of its allegations of accounting irregularities and missing company money, yet Mrs van Grootel’s email of 22 October 2019 provides a clear indication of one of the Respondent’s key concerns and invites Mr King to respond. Mrs van Grootel’s email also points to the Respondent’s concern being based on a reasonable investigation of the accounts. In those circumstances, drawing on the language in Ryman, the material before the Commission supports a finding that the Respondent genuinely held a belief that Mr King’s conduct was sufficiently serious to justify immediate dismissal and that its belief was based on reasonable grounds.
[65] In summary, the above analysis supports a finding that the Respondent genuinely believed that Mr King’s conduct, both on and before 7 December 2019 and having regard to the two written warnings given to Mr King, was sufficiently serious to justify his immediate dismissal and that the Respondent’s belief was based on reasonable grounds.
Conclusion
[66] For all the above reasons, I have determined that:
(i) Mr King had completed the minimum employment period and that his unfair dismissal application was filed within time. As such, the Respondent’s jurisdictional objections in that regard are dismissed; and
(ii) Mr King’s dismissal was consistent with the Code. Accordingly, Mr King’s unfair dismissal application will be dismissed. An Order to that effect will be issued in conjunction with this decision.
Appearances:
R. King on his own behalf.
A. van Grootel for the Respondent.
Telephone Hearing details:
Canberra.
2020:
May 14.
Printed by authority of the Commonwealth Government Printer
<PR720883>
1 Exhibit 1 at Attachment “I”
2 Ibid at Attachment “N”
3 Ibid at Attachment “FF”
4 Ibid at Attachment “JJ”
5 Ibid at Attachment “PP”
6 Exhibit 2 at Attachment “QQ”
7 Ibid
8 Exhibit 3 at paragraph 50
9 Exhibit 1 at Attachment “KK”
10 Exhibits 1 and 2
11 Exhibit 3
12 Exhibit 4
13 MA000009
14 Form F3 – Employer response to unfair dismissal application at Item 2.2
15 Exhibit 1 at Attachment “C”
16 [2019] FWCFB 1099
17 Ibid at [29]-[30]
18 [2015] FWCFB 1877
19 [2017] FWCFB 6732
20 Ibid at [14]
21 [2015] FWCFB 5264
22 Ibid at [41]
23 [2020] FWC 2174
24 Ibid at [76]
25 [2012] FWAFB 1359
26 Exhibit 3 at paragraphs 49 and 50
27 Exhibit 1 at Attachment “W”
28 Ibid
29 Ibid at Attachment “EE”
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