Ric Newson v South West NRM Limited T/A South West NRM
[2016] FWC 7063
•9 DECEMBER 2016
| [2016] FWC 7063 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ric Newson
v
South West NRM Limited T/A South West NRM
(U2016/9372)
COMMISSIONER SIMPSON | BRISBANE, 9 DECEMBER 2016 |
Application for relief from unfair dismissal – Jurisdictional Objection that contract of employment for a specified time dismissed – 2013 Contract never made – 2007 Contract subject to on-going funding – Funding of position no longer available – Dismissal not unfair – Application dismissed.
Background
[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Ric Newson (The Applicant) who alleges that the termination of his employment with South West NRM Limited T/A South West NRM (South West) was unfair.
[2] The application was filed on 13 July 2016. The matter was listed for hearing on 25 November 2016. Mr Newson was represented by Mr Frank Jongkind Solicitor of Frank Jongkind & Co and South West was represented by Mr Gil Muir of Employer Services Pty Ltd. Mr Jongkind appeared by video-link from the Charleville Court House and Mr Muir appeared in person in Brisbane. Both parties were granted leave to be represented. 1
[3] Mr Newson submitted he commenced employment with South West in September or October 2003 2, and from 2008 was employed as an on-going employee of the company. He submitted that his termination on 30 June 2016 was a dismissal, which was unfair due to lack of warning in relation to performance issues or conduct.
Small Business Employer
[4] It was not contested that South West is a small business employer however given the particular facts of this matter South West submitted and I accept the code is not relevant in this matter. 3
Jurisdictional Objection
[5] South West submitted that Mr Newson was party to a fixed term contract of employment that operated from 1 July 2013 and expired on 30 June 2016 (The 2013 Contract). On that basis South West argues that Mr Newson was not “dismissed” and his employment came to an end at the completion of the fixed term period within the meaning of s.386(2) of the Act.
[6] In this regard the South West relied upon s.386(2)(a) of the Act which reads:
“(2) … a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season;”
[7] South West further submitted that there was no “substantial purpose” to avoid its obligations under s. 386(3).
[8] In the alternative, South West argued that if it was wrong about Mr Newson being bound by the 2013 Contract, he was bound by an earlier contract which commenced in 2007 (the 2007 Contract) and was subject to continuity of government funding. South West submitted that there was no longer government funding for Mr Newson’s role, and thus it was entitled to rely on the 2007 Contract to terminate his employment.
The 2013 Contract
[9] South West could not produce a signed copy of the 2013 Contract.
[10] South West submitted that despite not signing the 2013 Contract, Mr Newson received improved benefits within the terms of the 2013 Contract, and at no time refused to accept those benefits. South West NRM submitted that Mr Newson did not repudiate those benefits nor did he return them, and kept receiving the benefits, which were not inconsequential, until 30 June 2016 when his employment ceased.
[11] On 11 May 2016 Mr Mark O’Brien sent a letter to Mr Newson signed on behalf of the South West NRM Board advising him that it had determined not to offer a further contract and the employment would cease on 30 June 2016.
[12] The 2013 Contract included at Clause 6 a termination date of 30 June 2016. An unnumbered clause in the contract headed “Term of Employment”, found at the bottom of page 2 read:
“Term of Employment
The term of employment is fixed for a period of time specified in Item 5 of the Information Schedule.
The term of employment will terminate on the date specified in Item 6 of the Information Schedule (“the Termination Date”). Subject to satisfactory performance and availability of funding, the term of the position may be extended.”
[13] The unnumbered clause, “Entire Agreement”, found at the top of page 7 provided that the Contract superseded all prior agreements, understandings and negotiations in relation to its subject matter.
[14] The 2013 Contract contained different terms to arrangements that had applied to the employment of Mr Newson consistent with an earlier contract of which a signed copy was produced by Mr Newson.
[15] The Commission was directed to specific terms in the 2013 Contract including Item 6 (Remuneration) of $72, 644.58 per annum including a $1,500.00 Remote Area Housing Assistance Benefit.
[16] These benefits were to be contrasted by South West with the 2007 Contract, which specified in Item 9 a remuneration of $60,000.00 per annum. Both contracts contained working hours of 72.5 hours per fortnight.
[17] South West also referred to matters listed in Item 11 under the heading “Other Benefits” that it said were superior to the 2007 Contract. These included Superannuation of 12% (2.5% above statutory minimum), compared to the 9% under the 2007 Contract increased to 9.5% under SGC; Company to pay $220.00 directly to Mr Newson to cover cost of rent on a modest house compared to the 2007 Contract where rent was paid directly by the Respondent to the landlord; CPI salary increase (if appropriate) on the 1 July each year, compared to the 2007 Contract where no such express provision was contained.
[18] South West submitted that the acceptance of improved benefits was not one way only. The end date of 30 June 2016 was also an outcome.
[19] Mr Newson vigorously opposed the jurisdictional objection, and submitted that he was employed under the 2007 Contract that was not for a specified period of time, but open ended.
[20] Mr Newson submitted that during his employment, he only signed two contracts. The first shortly after he commenced, and the second negotiated with Geoffrey Edwards the former CEO of South West in September 2007. His evidence was he had never been presented with another contract to sign. 4 Mr Newson identified the witnesses to the signing of the 2007 Contract as Jodie Dollery and Keith Walker, which appears consistent with the signatures on the copy of the 2007 Contract attached to his statement.5
[21] Mr Newson submitted that because he was never presented with the 2013 Contract, none of his conduct could logically be attributed to accepting the 2013 Contract. He further submitted that even if he was shown the contract and refused to sign it, this would indicate refusal of its new terms.
[22] Mr Newson’s Form F2 Application denied the acceptance of improved benefits and denied acknowledgement of the outcomes of the 2013 Contract, namely the specified end date of 30 June 2016.
[23] Mr Newson denied that the 2013 Contract had improved benefits, as it took away his permanency. He also submitted that there was no evidence to show his pay had increased. He also said it was irrelevant what contracts may have existed between South West and other employees.
[24] Mr Newson accepted that the 2007 Contract did not contain increases in superannuation of 12%, or specific increases in wages. He accepted the method by which he was reimbursed for the rental property changed such that he was paid the sum of $220 directly. He agreed his hourly rate had increased after 2013 from $37.66 to $38.91 per hour and a remote allowance of $57.70 per fortnight.
[25] Mr Newson maintained that these payments did not amount to a net increase overall because they $220 part payment for house rental was less beneficial then the full cost of rent being paid previously. 6
[26] When it was put to Mr Newson that he knew full well that he was receiving benefits he was not entitled to under the 2007 Contract, he replied that he was given no option other than to take the rent subsidy, pay tax on it and then pay the rent himself. 7
[27] In regard to the increase in his superannuation contribution to 12% Mr Newson said the employer never approached him and said they had increased his superannuation contribution. 8
[28] Mr Mark O’Brien, the existing Chair of South West provided an Affidavit wherein Mr O’Brien explained the funding cycles and stating that;
“...to the best of my knowledge, every employee of an NRM in Australia (other than those organisations operating as Government Statutory Authorities) are employed under fixed term contracts, timed in conjunction with the external funding timetable.” 9
[29] Mr O’Brien further stated:
“It would be wrong to suggest to any employee that they have unlimited tenure as funding models can change from model to model and in some cases funding for a particular initiative can cease at the end on the funded program.” 10
[30] Specifically referring to Mr Newson, Mr O’Brien states:
“In regard to the Applicant he was treated no differently to all other employees and enjoyed the benefits of the Contract commencing on 1 July 2013 and ending on 30 June 2016. All other staff of SWNRM are employed on fixed term contracts for the reasons advanced above. Naturally staff have been employed after the Applicant entered into the 1 July 2013 contract and are engaged on fixed term contracts.” 11
[31] Underpinning the decision not to offer a fresh contract, Mr O’Brien explained:
“11. For the Applicant, his contract and the emphasis on his duties is a case in point. As far back as September 2015, it was identified that his position and his particular skills were no longer needed and furthermore there was no direct funding for his position. The Board of SWNRM determined that it would in good faith continue on his contract until the 30th June 2016 although he was being paid from general funds not from allocated Program Funds.
12. It further determined that it would not offer a fresh contract once the current contract ended on 30 June 2016 in accordance with its express terms.” 12
[32] Mr O’Brien was asked during his oral evidence if he had conversations with Mr Newson concerning the 2013 Contract. Mr O’Brien responded that when Bernard Holland (a former CEO of South West) was there and went through the first, maybe second round of review, a number of people agreed to terminate their contracts and a number of people agreed to take a reduced remuneration or to change their job descriptions. Mr O’Brien said he attended a meeting in the office with Mr Holland attended by many of the staff on contract including Mr Newson. 13
[33] Mr O’Brien said Mr Newson agreed to nothing. 14 Mr O’Brien claimed Mr Newson said that “well, you’ll do whatever you want to do” and he wouldn’t sign it. When pressed as to why Mr O’Brien did not include this evidence in either of his affidavits, he maintained the conversation with Mr Newson was the same conversation had with all staff informing them that the funding was going to reduce significantly and everybody’s contracts will have to be reviewed. Mr O’Brien evidence was to the effect that he thought that Mr Newson was employed under the 2013 Contract.15
[34] Mr O’Brien later said the following concerning the meetings with staff in 2013;
“..—Well, as I’ve tried to put into some sort of perspective for you, I think there was 16 staff we spoke to. The result of all of those conversations really were opportunities for them to say what was on their mind and for me to be there to comfort them, representing the company, and not just the CEO. Now please, Frank, don’t make any more out of that than there is. I don’t mind which contract you go to. I’m chair of the company. We have complied with whatever one of those three contracts you choose to say applies. At the end of the day they all finish at the 30 June 2016 because there is no funding. You know, it’s just that simple.” 16
[35] Mr O’Brien repeated his evidence that he didn’t mind which contract applied, the answer is the same. 17
[36] Mr Jongkind raised the fact that the termination letter of 11 May 2016 made no reference to the lack of funding being the reason for the termination of Mr Newson. 18 Whilst this is so, it is not surprising given it appears clear from the evidence the employer held the view that Mr Newson was employed under the 2013 Contract and not the 2007 Contract, and it therefore believed it was not required to rely on the funding issue for the employment to come to an end.
[37] Mr Muir also raised an issue concerning uncertainty about the contract that Mr Newson asserts did apply to him as at 30 June 2016. Mr Muir referred to the Statutory Declaration of Mr Geoffrey Edwards that was filed as an attachment to the Form F2 application. 19 The Statutory Declaration included as an attachment a copy of a contract with a commencement date of 1July 2008, and not 1 July 2007 which is the commencement date of the contract attached to the statement of Mr Newson.20
[38] Mr Newson said he didn’t know why there was a contract with a start date of 2008, but said that he became aware South West no longer held a copy of the original contract, and so he contacted Mr Edwards and asked him if he would send a copy with a declaration that said it was the original contract, and that is what came through to him later. He said he later found a copy of the original contract that he had kept at home. 21
[39] I have considered the evidence and submissions on the apparent inconsistency between the contract dated 2008 and 2007. I am satisfied on the basis of the Statutory Declaration of Mr Edwards, and the evidence of Mr Newson, a contract was made on 25 September 2007 between the parties. This is consistent with the emails also attached to the Statutory Declaration of Mr Edwards, the evidence of Mr Newson and the 2007 contract which contains the signatures of both Mr Newson and Mr Edwards.
[40] Having found the 2007 Contract was made it is necessary to determine whether the 2013 Contract replaced the 2007 Contract to determine which of the two contracts applied to Mr Newson at the time of his dismissal.
[41] In order for a contract to be enforceable there must be an intention between the parties to create a legal relationship, the terms of which are enforceable, an offer by one party and acceptance by the other, consideration, the parties must be capable of making the contract, the parties must genuinely consent to the terms of the contract and the contract must not be entered for any purpose which is illegal. 22
[42] On the available evidence I cannot be satisfied that an offer was even put to Mr Newson in the terms of the 2013 Contract for him to accept. Mr Newson was emphatic no such offer was ever made and he had never seen the 2013 Contract before these proceedings.
[43] Mr O’Brien’s evidence appeared to suggest the 2013 Contract was raised with Mr Newson in the course of individual meetings with employees in 2013 that he attended as an observer, and as part of the process of advising staff of the need to restructure the organisation.
[44] However his evidence was vague to the extent that he did not expressly say he saw a copy of the contract provided to Mr Newson and its terms explained. Further Mr Newson has been clear in these proceedings in his view that his 2007 Contract was for an indeterminate period. In other words he believed he was a permanent employee. He also gave evidence that while he was paid conditions that were consistent with the conditions contained in the 2013 Contract, he maintained these were inferior in overall terms to his 2007 Contract because his rent was no longer paid but instead he was paid a rent subsidy that left him worse off. In addition to my earlier finding that I am not satisfied on the evidence the 2013 Contract was offered to Mr Newson, even if I were to be wrong on that I am not satisfied its terms were accepted, or genuinely consented to. If the contract was offered, the evidence supports the conclusion that Mr Newson rejected it and did not consent to it as he believed that its terms were inferior to his existing contract.
[45] I accept, as submitted by Mr Muir, that a contract does not need to be signed to be made, and in certain circumstances by not challenging the terms of a contract it can be the case that implied acceptance of the benefits constitutes implied acceptance of an offer. However the circumstances in this case are distinguishable from the case referred to by South West NRM in Bates and Secretary, Department of Employment 23where the Administrative Appeals Tribunal found that an employee was entitled under the Fair Entitlements Guarantee Act 2012 to have entitlements calculated on part-time hours. Contrary to the facts in that matter there is evidence before me that tells against implied acceptance.
[46] For the reasons set out above I am satisfied that at the time the employment ended on 30 June 2016 the 2007 Contract still operated. I am satisfied the 2013 Contract was never made.
The 2007 Contract
[47] Mr O’Brien gave evidence to the effect that if the Commission was not satisfied that the 2013 Contract applied, then South West was still entitled to terminate the 2007 Contract as it did not have the funds for the role Mr Newson was fulfilling. 24 The matter of the effect of the terms of the 2007 Contract is a matter of some complexity which I will deal with below.
[48] South West challenged the notion that the 2007 Contract operated on the basis that Mr Newson’s employment was of an ‘indeterminate’ nature. It submitted, that although the 2007 Contract does not list an actual termination date, its term of employment could not be said to be for an indeterminate period if regard is had to certain of its provisions.
[49] South West relied on the following provisions:
- Under “Date of Commencement” it is provided that it was subject to “availability of funds”.
- Under Item 6, Termination date (page 1) it is provided, “Subject to continuity of government funding”.
- At page 3 (clauses are not numbered) it is provided:
“Terms of Employment
The term of employment is fixed for a period of time specified in Item 5 of the Information Schedule. The term of employment will terminate on the date specified in Item 6 of the Information Schedule (“Termination Date”). Subject to satisfactory performance and availability of funding, the term of the position may be extended.”
- Under “Renewal of Appointment”, it is provided that:
“At least two months prior to the Termination Date, the position will be reviewed, taking into account –
(a) performance indicators;
(b) the allocation of funds from the Federal Government and other funding bodies; and
(c) any other factors determined by the Board as being relevant.
The Chief Executive Officer of South West Ltd will determine whether it is appropriate to offer the Employee reappointment to the position.”
[50] South West NRM submitted that Mr Newson’s position was always subject to the underpinning consideration of funding.
[51] South West NRM rely on the decision in Department of Justice v Lunn 25 where it was explained that a genuine contract for a specified period terminates by the passing of time at the end of the period rather than by termination at the initiative of the employer. In Andersen v Umbakumba Community Council26 von Doussa J further found that in order to be a contract for a specified period of time the dates of commencement and completion of the contract must be unambiguous.
[52] Given the manner in which the 2007 contract was framed, I am not satisfied that it falls within the ambit of section 386(2)(a) because the period of time was not determined in the contract, instead it was subject to future events which were unknown at the time the contract was made.
[53] As I understand South West’s position it has not argued that in event I find against it concerning its jurisdictional objection concerning section 386(2)(a), this was still not a case of termination at its initiative. Instead I understand it is argued section 387 needs to be considered on that basis that given the terms of the 2007 contract the termination would not be unfair. On that basis I intend to proceed on the basis that South West argue the employment was terminated at the employers initiative, but that it was entitled to terminate because Mr Newson’s position was no longer funded.
[54] In opening submissions Mr Muir submitted that South West would not be arguing it had complied with each of the elements of section 387 (if the matter was to proceed to that point). I put the proposition to Mr Muir that in the event that the matter progressed to consideration of section 387 that the availability of funding issue would be considered under section 387(h) to considered whether the dismissal was unfair. Mr Muir agreed that would be South West’s argument. 27
[55] The 2007 Contract described Mr Newson’s role as ‘Information Manager’. The alleged 2013 Contract, found not to have been made, purported to described his role as ‘Senior Projects Officer’. In oral evidence when asked the kinds of work he was doing for South West, Mr Newson answered IT Maintenance issues, maintaining a flood wall systems for four regional councils, electrofishing, carp trapping and survey work as needed and GIS mapping. 28 He also said that he had fulfilled almost every role in the office at some time or other.29 He agreed with the proposition that to his knowledge South West NRM was continuing to do those things up to 1 July 2016.30 Mr Newson claimed the time he spent in the office compared to in the field was roughly evenly split.31 He said of his time in the office roughly one day a week was on IT work.32
Funding Issue
[56] Mr Newson accepted that South West received government funding, and that funding can vary between governments in power. 33 Mr Newson rejected the statement of Mr O’Brien34 that there was no direct funding for his position.35
[57] Mr Newson said in his first statement 36 that Federal Government money is not the only source of funding for South West, State and Local government money is accessed along with CGBF grants and there are many other sources of grants including Meat and Livestock Australia, QANTAS and RACQ for projects over varying timeframes from 12 months to five years.
[58] Mr Newson was asked if he could point to any direct funding for his position around the time of September 2015. He answered ‘Eco System Service money’. He said that Mary-Anne Healy had told him that equated to 50 to 60% of his salary. 37
[59] He claimed the major and substantial portion of his duties as at September 2015 was flood warning systems maintenance and eco services work. He accepted he did some IT work.
[60] Mr O’Brien said in his initial affidavit that he was a qualified accountant and former Mayor of Murweh Shire for eight years. He said he had been chair the Chair of South West for seven years. He said he had also during those seven years been a board member of the Queensland Collective representing the 14 (NRM’s) operating in Queensland. He said as part of that particular role he had participated in numerous endeavours relating to NRM’s and State and Federal Governments particularly in regard to funding to support various programs. 38 Mr O’Brien said that South West is one of 56 regional bodies throughout Australia.
[61] Mr O’Brien said the formal NRM structure is funded by five year Federal Funding cycles and three year State Government Funding cycles. 39 Mr O’Brien said that to the best of his knowledge, every employee of an NRM in Australia (other than those Organisations operating as Government Statutory Authorities) are employed under fixed term contracts, timed in conjunction with the external funding timelines.40 Mr O’Brien said it would be wrong to suggest to any employee that they have unlimited tenure as funding models can change from model to model, and in some cases funding for a particular initiative can cease at the end of the funding program.41
[62] Mr O’Brien said that employment contracts usually refer to “reduced government funding” as a pre-condition for terminating contracts. Mr O’Brien said this is because within the overall funding arrangement, emphasis may change from time to time, and skills that were needed for a period within the five year cycle for an example may not be needed for the whole cycle. 42
[63] Mr O’Brien provided an explanation in his first statement 43 as to why he said as far back as September 2015 it was identified that Mr Newson’s position and his particular skills were no longer needed and there was no direct funding for his position.
[64] In responding to the statements of Mr Newson and Ms Parker, Mr O’Brien provided a second affidavit 44 that set out that there were several board meetings held on 23 September, 23 October (pre-board) and 28 October 2015 and direct CEO and Chair meetings on 6 October, 19 October and 26 October 2015. Each of the meetings was for planning staffing structure under the reduced funding model with specific emphasis on the role and duties performed by Mr Newson.45
[65] Mr O’Brien said that at the 28 October 2015 meeting an existing whiteboard was used to record Board resolutions and Mr O’Brien said he took a photograph of the white board which he attached to his second statement. 46 Mr O’Brien said that it was resolved by the Board to outsource the “IT” functions undertaken by Mr Newson.47
[66] Ms Susan Parker gave evidence in support of Mr Newson and filed an affidavit. 48 Ms Parker was employed by South West as a casual administration support person. Ms Parker resigned from her employment with South West on 18 July 2016.49
[67] Ms Parker indicated in her oral evidence that she was the record keeper for board meetings and said that the white board was not used at the meeting of 28 October 2015. 50 Mr Jongkind foreshadowed an intention to seek to introduce evidence being minutes of board meetings; however Mr Muir indicated he was instructed by Mr O’Brien that at the meeting of 28 October 2015 and subsequent meetings where the white board was utilised, staff, including Ms Parker were not present and no minutes were kept.51 Mr Jongkind did not press the introduction of the minutes into evidence on that basis.52
[68] Mr O’Brien clarified in oral evidence that in order to be as accurate as he could with his affidavit he went to his diaries and on the days that they had board meetings or board associated meetings he tried to be clear to indicate about how often they meet about those matters. He said in hindsight, after Ms Parker’s evidence he could have said, board meetings plus meetings of board members, but those meetings were held on days when there were board meetings. 53
[69] Mr O’Brien said in relation to the diagram attached to his evidence as a photo of the white board, that there were two iterations of the diagram. The first was on butcher’s paper that Ms Healy used at an early board meeting, and then it was put onto a big whiteboard so that it could be talked about each time at each meeting. 54
[70] Mr O’Brien said that until 2013, the Federal and State Government funded South West $250,000 each, called core funding, and so until 2013 South West had $500,000 a year, which include provision of things such as opening the office, IT and Global Information Systems for mapping.
[71] Mr O’Brien said that they could also apply for funding to deliver a program, and get on average a further 18% of the value of specific funding for overheads. Mr O’Brien said from 2013 the $500,000 of core funding was taken away and the 18% funding was reduced to 10%. He said in the year or two before 2013 he was very clear with the board and publicily that the funding regime was changing and South West risked having to close.
[72] Mr O’Brien said a process of reorganising occurred within the organisation and he said the attachment to his statement of the white board diagram was a summary of when the board got to the end of 2015. He said it was at this point Mr Newson’s position was identified as not being able to be funded. 55
[73] Mr O’Brien said he argued that he wanted Mr Newson’s contract to be allowed to run until 30 June even though it could have been ceased earlier because he had family responsibilities. 56 It was also Mr O’Brien’s evidence that South West and Condamine Alliance now share a CEO, a business manager and a media person in order to save money, otherwise South West would have had to close.57
[74] Mr O’Brien explained that back in 2003 when Mr Newson was first employed, GIS was fairly new and complicated however, now every student coming out of university can do GIS, and it is described on the whiteboard as “staff skills needed at any point in time” and therefore it no longer requires a dedicated person. 58
[75] In relation to the early warning flood system which the diagram indicates to be outsourced, Mr O’Brien said this was not a state or federal program, but a program negotiated with four shire councils where South West provided a service to them. Mr O’Brien said in the year leading up to the ending of Mr Newson’s employment the councils contacted him regularly complaining about the way they were being charged and advised they weren’t going to pay South West and not going to do it that way anymore. Mr O’Brien said South West is not being paid and it was a big chunk of what Mr Newson said he did. 59
[76] It was put to Mr O’Brien that Mr Newson’s duties included electrofishing, and he was asked if this function continues to be a function of South West and he responded not to his knowledge. 60 Mr O’Brien also said ‘Caring for Country’ was no longer in existence.
[77] Mr O’Brien gave evidence that South West now shares resources with another organisation because of the financial pressure that is on all NRM’s now in Queensland. He said he believed South West now employed in the order of eight employees. 61
[78] Mr O’Brien said that IT was now contracted out with other NRM organisations in Queensland. 62
[79] Mr O’Brien was asked why retraining Mr Newson was not contemplated if it was thought he could perform the duties that were available to be performed. Mr O’Brien responded that the funding had been reduced and the employer did not have the capacity to retrain Mr Newson, and secondly his contract was being ended. 63
[80] Mr O’Brien said that for the best part of the last 12 months there has not been a financial ability to fund the work that Mr Newson used to be funded to do. 64
Alleged Bullying
[81] Mr Newson claimed to have been the subject of bullying from the latter half of 2015. 65 Mr Newson accepted he did not raise issues of bullying with any authority outside South West but had made complaints to the General Manager at the time.66
[82] Mr Newson in his statement referred to a number of events to support his claim that he had been the subject of bullying. This included a claim that an IT review conducted by a consultant Mr David Pilot in late 2015 was targeted at him. 67 He also said he was given a first warning for using a company vehicle for private use on 16 November, 2016 and on the same day had a claim for TOIL rejected. He noted his 2007 employment contract provided for the use of a motor vehicle during business hours.68
[83] Mr Newson also referred to a second warning he was given on 3 March 2016 failing to attribute an article in the South West NRM newsletter published in December 2015 to the articles author. The author of the article had written to South West on 22 December 2015 complaining of that the article had not been attributed to him. 69
[84] Mr Newson sought to compare his treatment with that of another employee who he claimed had kept herbicides in his office which he considered a workplace health and safety issue and he removed the herbicides and advised the General Manager. He said he later found herbicides in the office of the employee again on a later date. 70
[85] Mr Newson also raised the issue of an employee who stored a large number of photos on the computer Z drive which was taking a large amount of storage space and was causing a risk of the Z drive crashing. Mr Newson also said the employee kept files on his desktop rather than an accessible network location where it could be backed up. Mr Newson said he asked the employee to move the photographs and the files but the employee did not. Mr Newson said on Wednesday 20 April 2016 he saw the Z file was full and removed the photographs to a safer location on the P drive. Mr Newson said when the employee returned to work he immediately moved the photographs back to the Z drive. On 20 April Mr Newson received an email from the General Manager Mary Anne Healy saying as follows:
“Ric
I acknowledge your email and yes I have heard from Darren. Regardless of your role around keeping the system running, I am concerned with you accessing people’s personal files. If you were that concerned you should have raised it with me. It is my role to decide what is acceptable and what constitutes a “free for all”.
I am directing you to take leave effective immediately, until 9am Tuesday 3rd May where I instruct you to meet with me and the Chair in my office. Until then you are not to be on the premises of South West NRM, nor are you to access the SWNRM computing system, emails or internet via the system.
You are instructed to respond by text that you have received this email.
Thank you
Mary-Anne”
[86] Mr Newson said the first two warning were trivial and no action was taken on the more serious herbicide issue. 71 Mr Newson accepted that over the second warning he breached copyright protocols, however said he had apologised to the author of the article and the author told him he accepted the apology and did not wish to proceed with any formal action.72
[87] Mr Newson said he rarely interacted with Mr O’Brien. 73 It appeared from his evidence that the reason Mr Newson maintained Mr O’Brien wanted to dismiss him was because he was at the forefront of the Respondents defence of his application in the Fair Work Commission. Further he said Mr O’Brien signed the termination letter.74
[88] Mr Newson also referred to the manner he was escorted from the office by Mr O’Brien, and also matters concerning him having to move out of his house. 75 Mr Newson also believed after September 2015 there were many occasions he would simply do what he always had done and Ms Healy would tell him that was not the way to do it and now the job was someone else’s.76
[89] Mr O’Brien said that he had read the fresh affidavits submitted for Mr Newson and that he completely refuted and rejected allegations that were made that South West or he had engaged in workplace bullying of Mr Newson. 77
[90] Ms Parker’s evidence included the following;
“..When I see bullying, flat out bullying, I don’t have anything against Mark, he’s quite a nice person, he’s always pleasant to me, but when somebody treats another person the way that Mark was treating Ric, I stand up and I say something and that’s why I’m here today…” 78
[91] It was Ms Parker’s evidence that both Mr O’Brien and Ms Healy had always been pleasant to her. 79
[92] Ms Parker said she did not raise her concerns with Mr O’Brien because she was a casual. 80 She said that while Mr O’Brien made comments she felt were somewhat inappropriate, it was Mary-Anne Healy she mainly witnessed bullying from.81 Ms Parker accepted that she did not know about the contractual relationship between Mr Newson and South West.82
[93] Ms Parker agreed with the proposition that Mr Newson hardly ever interacted with Mr O’Brien. 83 Ms Parker said she only ever witnessed what she described as indirect (bullying) and gave the example of when Mr O’Brien came to the office and had asked that she advise him if Mr Newson came to the office. Ms Parker indicated this occurred in late June.84 It is apparent this was well after Mr Newson had first been advised of the ending of his employment on 11 May 2016.
[94] Ms Parker provided an affidavit of 41 paragraphs detailing what she regarded as events supporting her view that Mr Newson had been subjected to bullying by Ms Healy and Mr O’Brien. I do not intend to repeat this evidence however I have considered Ms Parkers and Mr Newson’s evidence concerning the allegations of bullying. I am not satisfied that when Ms Parker and Mr Newson’s evidence is viewed in the full context of all other evidence that it is a proper basis for me to be persuaded that Mr Newson had been specifically targeted for dismissal based on matters unrelated to the funding issue. Each of the allegations arose in their own context. I have been satisfied on the evidence of Mr O’Brien that a decision was taken by the Board to go down a path of restructuring for fairly obvious financial reasons and these was crystallising in October 2015. October 2015 predates many of the issues that have been raised by Mr Newson and Ms Parker in support of the claim that Mr Newson had been specifically targeted. I am satisfied that the reason South West Board endorsed the correspondence of 11 May 2016 being sent to Mr Newson was a decision to discontinue his position based on reduced funding.
Harsh Unjust or Unreasonable
[95] It was submitted for Mr Newson that he was dismissed on the very specific basis that his contract had expired when in fact that was not true. Further there was no ground given for his dismissal on 11 May other than the expiry of the contract, and for South West to now say there were other reasons is not credible, and further Mr Newson had been subjected to a considerable amount of bullying. 85
[96] Mr Muir submitted in closing for South West that if I was to determine that the 2007 Contract applied, then Mr O’Brien’s evidence, which was largely unchallenged, was that there was no funding for the position that Mr Newson held, and in fact Mr Newson was able to benefit from the fact that South West was operating under the incorrect belief that he was employed under the 2013 Contract as his employment continued for 9 months after it could have been ended. On that basis it was put that the dismissal was not harsh, unjust or unreasonable. 86
[97] Given the facts of this case and my finding that the underlying reason for termination was based on a restructuring of the organisation caused by reduced funding (despite this not being a reason contained in the letter of 11 May 2016) Mr Newson was not dismissed for a reason relating to his capacity or conduct so the matter under paragraph 387(a) of whether there was a valid reason does not arise.
[98] Mr Newson was not dismissed for a reason related to his capacity or conduct so the matter of notification of such a reason under paragraph 387(b) does not arise. As the dismissal was not for a reason relating to capacity or conduct paragraph 387(c) does not arise.
[99] There was no evidence Mr Newson was denied a support person at any discussion which may have occurred about the dismissal. Paragraph 387(e) does not arise as the dismissal was not related to unsatisfactory performance. South West is a small business and does not have a dedicated human resources specialist and this may have impacted on the procedures followed in effecting the dismissal.
Section 387(h)
[100] The following factors are relevant and weigh against the dismissal being unfair.
(a) The 2007 Contract clearly contemplated Mr Newson’s on-going employment with South West being subject to “availability of funds” and “Subject to continuity of government funding”. The evidence of Mr O’Brien, which was largely uncontested, was that during the period between 2013 and 2016, South West was required to manage a significant reduction in its level of core funding, and restructuring was required to ensure the business could continue to operate.
(b) It was largely uncontested that the bulk of Mr Newson’s former role is no longer performed at all. At the time the employer made the decision in October 2015 that it no longer required the role Mr Newson performed to be performed by anyone, Mr O’Brien gave evidence to the effect, which I accept, that Mr Newson should continue to be employed until 30 June 2016 despite his role no longer being required. The date of 30 June was identified at the time no doubt because South West NRM was operating under the incorrect assumption that the 2013 Contract applied when it did not. Had South West adopted the view that the 2007 contract did apply, it would have been open for it to seek to rely on the ‘subject to funding’ clauses in the 2007 Contract to seek to conclude Mr Newson’s employment earlier.
(c)The evidence supports the conclusion that South West did not have another role that it could transfer Mr Newson into.
(d) Mr Newson was given in the order of seven weeks’ notice of the decision to terminate his employment as he was advised of the decision on 11 May 2016 to take effect on 30 June 2016. The issue of a redundancy entitlement does not arise as South West NRM is a small business employer. I have not been persuaded that it should follow from the alleged bullying that an inference should be drawn that Mr Newson was dismissed for reasons other those related to the funding issue and subsequent restructuring. Regardless, the notice given by South West was more generous than what is required by the National Employment Standards.
[101] Having regard to the above matters I am not satisfied Mr Newson’s dismissal was harsh, unjust or unreasonable, and on that basis the application is dismissed.
COMMISSIONER
Appearances:
Mr F. Jongkind of Frank Jongkind & Co for the Applicant
Mr G. Muir of Employer Services for the Respondent
Hearing details:
2016
Brisbane
November 25
1 Transcript PN 9.
2 Transcript PN 111.
3 Transcript PN 282.
4 Transcript PN 133-139.
5 Exhibit 1, Affidavit of Ric Newson sworn 14 September 2016, Attachment RN 1.
6 Transcript PN 183-185.
7 Transcript PN 190.
8 Transcript PN 197.
9 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [7].
10 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [8].
11 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [9].
12 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [11] and [12].
13 Transcript PN 529.
14 Transcript PN 530.
15 Transcript PN 535.
16 Transcript PN 556.
17 Transcript PN 567 and 571.
18 Transcript PN 575.
19 Exhibit 4, Statutory Declaration of Mr Geoffrey P Edwards signed 19 October 2016.
20 Exhibit 1, Affidavit of Ric Newson sworn 14 September 2016, Attachment RN 1.
21 Transcript PN 155.
22 Re Advance Australian Workplace Solutions Pty Ltd (AIRCFB 25 October 1999).
23 [2016] AATA 577 (5 August 2016).
24 Transcript PN 552.
25 (2006) 158 IR 410 [10].
26 (1994) 126 ALR 121, 125-126.
27 Transcript PN 36-41.
28 Transcript PN 115.
29 Transcript PN 116.
30 Transcript PN 120.
31 Transcript PN 130.
32 Transcript PN 131.
33 Transcript PN 234-235.
34 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [11].
35 Transcript PN 237.
36 Exhibit 1, Affidavit of Ric Newson sworn 14 September 2016 at [10].
37 Transcript PN 261.
38 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [2].
39 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [5].
40 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [7].
41 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [8].
42 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [10].
43 Exhibit 5, Affidavit of Mark O’Brien sworn 23 August 2016 at [11] and [12].
44 Exhibit 6, Affidavit of Mark O’Brien sworn 2 November 2016.
45 Ibid at [5]-[7].
46 Exhibit 6, Affidavit of Mark O’Brien sworn 2 November 2016 at [8], Attachment MOB 3.
47 Exhibit 6, Affidavit of Mark O’Brien sworn 2 November 2016 at [9].
48 Exhibit 3, Affidavit of Susan L Parker sworn 25.10.16.
49 Exhibit 3, Affidavit of Susan L Parker sworn 25.10.16.
50 Transcript PN 325-327.
51 Transcript PN 371.
52 Transcript PN 378.
53 Transcript PN 461.
54 Transcript PN 462.
55 Transcript PN 467.
56 Transcript PN 468.
57 Transcript PN 475.
58 Transcript PN 485-486 and PN 596.
59 Transcript PN 488 and PN 596.
60 Transcript PN 512.
61 Transcript PN 587.
62 Transcript PN 596.
63 Transcript PN 603.
64 Transcript PN 631.
65 Transcript PN 126.
66 Transcript PN 211.
67 Exhibit 2, Affidavit of Ric Newson sworn 25.10.16 at [4].
68 Exhibit 2, Affidavit of Ric Newson sworn 25.10.16 at [9].
69 Exhibit 2, Affidavit of Ric Newson sworn 25.10.16 at [11].
70 Exhibit 2, Affidavit of Ric Newson sworn 25.10.16 at [12] and [13].
71 Transcript PN 217 – 220.
72 Transcript PN 223.
73 Transcript PN 248.
74 Transcript PN 252.
75 Transcript PN 275-276.
76 Transcript PN 278.
77 Exhibit 6, Affidavit of Mark O’Brien sworn 2 November 2016 at [10].
78 Transcript PN 349.
79 Transcript PN 398-399.
80 Transcript PN 350.
81 Transcript PN 394.
82 Transcript PN 400.
83 Transcript PN 411.
84 Transcript PN 415.
85 Transcript PN 643.
86 Transcript PN 693.
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