Tony Airulo and the Australian Workers Union v Mt Lawley Bowling Club
[1996] IRCA 91
•13 March 1996
DECISION NO: 91/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim for UNLAWFUL TERMINATION - greenkeeper - PROCEDURAL FAIRNESS - failure to follow advice of expert - inadequate instructions from employer - COMPENSATION
INDUSTRIAL RELATIONS ACT 1988 Ss 170DC, 170DE(1), 170DE(2), 170EA, 170EE
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233
TONY AIRULO AND THE AUSTRALIAN WORKERS UNION -v-
MT LAWLEY BOWLING CLUB - WI 95/1873
BEFORE: BOON JR
PLACE: PERTH
DATE: 13 MARCH 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1873
BETWEEN: TONY AIRULO
- Applicant
AND: THE AUSTRALIAN WORKERS
UNION
- Applicant
AND: MT LAWLEY BOWLING CLUB
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 13 MARCH 1996
MINUTE OF ORDERS
THE COURT ORDERS AND DECLARES THAT:
The respondent breached the provisions of Section 170DC of the Industrial Relations Act in respect of the termination of the applicant's employment.
The respondent pay to the applicant the sum of $1,880 within 28 days of the date of this order.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1873
BETWEEN: TONY AIRULO
- Applicant
AND: THE AUSTRALIAN WORKERS
UNION
- Applicant
AND: MT LAWLEY BOWLING CLUB
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 13 MARCH 1996
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988. The applicant, Tony Airulo, with the assistance of the Australian Workers Union, is seeking compensation for the alleged unlawful termination of his employment by the respondent, the Mt Lawley Bowling Club.
It is alleged that the Mt Lawley Bowling Club contravened the provisions of the Industrial Relations Act in a number of ways when it terminated Mr Airulo's employment. In the first place, it is said that Mr Airulo was not given an opportunity to defend himself against allegations made against his conduct or performance, contrary to Section 170DC of the Act. In the second place, it is said that there was no valid reason connected with Mr Airulo's capacity or conduct for the termination, and that the termination was in all the circumstances harsh, unjust or unreasonable, contrary to the provisions of Section 170DE of the Act.
The respondent on the other hand says that Mr Airulo was counselled and warned in relation to his work performance on a continuing basis from November 1994 until his termination in July 1995 and that he was afforded an opportunity to be heard. Secondly, it is said that there were valid reasons for the termination connected with Mr Airulo's conduct and performance. It was said on behalf of the Mt Lawley Bowling Club that the decision to terminate Mr Airulo's employment was based on the following reasons:
(a)Mr Airulo's alleged repeated misconduct in his falsification of official club records, in particular details of work carried out and the recording of incorrect times of attendance;
(b)his non attendance at work on the days and times specifically directed by the club;
(c)his refusal to comply with the lawful directions of his employer and his refusal to carry out instructions based on expert advice to rectify major problems with the club's greens;
(d)his inefficiency and general lack of interest in his duties;
(e)the steady downturn and deterioration in the condition of the greens; and
(f)his lack of response to advice, counselling and warnings.
BACKGROUND
Mr Airulo is a young man aged 25 years. He has trade qualifications in horticulture and turf management. He commenced in a position as an apprentice greenkeeper at the Hilton Park Bowling Club in 1989 and finished his apprenticeship in April 1993. Upon the completion of his four year apprenticeship he was employed by the Mt Lawley Bowling Club from 26 April 1993 as its sole greenkeeper.
The Mt Lawley Bowling Club has three bowling greens. Its membership consists of approximately 240 people, many of whom are retired. It is common ground that the greenkeeping industry is a small one.
THE WRITTEN TERMS AND CONDITIONS OF EMPLOYMENT
When Mr Airulo commenced his employment with the Mt Lawley Bowling Club, both Mr Airulo and representatives of the club signed some written terms and conditions of employment. The terms and conditions read as follows:
"GENERAL AIM: To produce and maintain top quality greens at all times for the best enjoyment of members of the Club and their visitors.
TERMS AND CONDITIONS:
.To work under the direction of the Management Committee of the Club or of their appointed representative.
.To produce each year (not later than 30th June in each year) a Programme of Works for the approval of the Management Committee and to facilitate the Club's bowling programme. The Greenkeeper to meet with the Greens Sub-committee (as appointed by the Management Committee) at least on a monthly basis to review such Programme of Works and any other matter pertaining to the good order of the greens.
.To prepare a financial budget for each year for presentation to and approval of the Management Committee by 15th March in each year.
.Broadly, to have at least two good quality greens available for play at alltimes (sic), except on days required for watering purposes or such other work as approved by the Management Committee. It is clearly understood that three greens are to be prepared and in good playing condition when required for special events such as Club Championships and Open Events or as required by the Management Committee.
.Hours of work are to be flexible. In summer months, greens are to be prepared (including cutting and rolling) immediately prior to the commencement of all major events (such as Club Championships Open Events and etc.) or as required by the Management Committee. This may include work, as required, on Sundays and Public Holidays and it is clearly understood such hours of work are to be included in the overall wages/hours structure, without penalty rates etc. In winter months, it is permissable (sic) to work shorter hours or to have selected time/days off (with the agreement of the Management Committee) to compensate for any additional work/hours undertaken during the summer season.
.Periods of annual leave are to be arranged with and agreed by the Management Committee.
.To maintain a log book of all equipment belonging to the Club and under the control of the Greenkeeper, including full description serial number etc., and to include any repairs or maintenance undertaken on such equipment. Any repairs (other than general day to day maintenance) are only to be undertaken with the approval of the Management Committee or of the Chairman of the Greens Sub-committee as their appointed representative.
.The above Terms and Conditions may be varied or added to from time to time by the Management Committee should it become necessary, in their view, for the better management and control of the Club greens."
It is common ground that Mr Airulo and the Mt Lawley Bowling Club enjoyed a good relationship until about November 1994. The evidence is that at around that time the club first raised concerns about Mr Airulo's work performance and in particular the state of the bowling greens. It is also common ground that from about November 1994 and in particular in the early part of 1995 the condition of the greens at the club started to deteriorate. This culminated in the club seeking the expert advice of Mr Steve Goddard, one of Perth's leading greenkeepers.
THE GODDARD REPORT
Mr Goddard gave evidence that he has been involved with the greenkeeping industry for 17 years. He is employed at the Victoria Park Bowling Club but from time to time is called upon to give advice to other clubs as a consultant. In March 1995 he was approached by the President of the Mt Lawley Club, Alan Bunting.
Although Mr Bunting complained to Mr Goddard about problems with the pace of the greens, Mr Goddard timed the "A" green and found that it was running at approximately 14½ seconds, which he said would be regarded as a medium pace green in the bowling fraternity.
Mr Goddard's report said that he had found signs of severe wear and tear on the "A" green and that it was in need of vital renovation work. Mr Airulo told Mr Goddard that the "A" green been in play for some two years and it was Mr Goddard's view that two years was an exceedingly long period of time for any green to be in play. Mr Goddard said that the general practice is to renovate each green on a yearly basis to remove all dead material so that the green can undertake the new season with healthy live grass. Mr Goddard's report said that the "A" green appeared to be infested with couch mite. Similarly, the "C" green also had a massive problem with couch mite. Mr Goddard recommended the application of a chemical "Rogor" to control the problem. Mr Goddard's report also suggested that the "A" and "C" greens "be fertilised with 15 kg of a 5-1 mix on a fortnightly basis Up until mid May then apply through winter 7-10 kg of the same mix every three to four weeks". Mr Goddard's report said that the 5-1 mix consisted of five parts sulphate ammonia and one part muriate of potash. He recommended that the A green be renovated by mid August.
Mr Goddard's evidence in Court was that couch mite is a parasite which sucks on the sap of the leaf of the plant and causes a distorted growth of the plant so that it stunts the growth of the grass. It can contribute to thin areas developing on the greens. Mr Goddard's evidence was that he was not surprised that Mr Airulo had not been aware of the couch mite problem. Mr Goddard said that unless a greenkeeper has come into contact with couch mite he would not be aware of the problem. Mr Goddard knew of a number of experienced greenkeepers in the industry who had not come into contact with couch mite. It was a difficult problem to detect unless the greenkeeper had had some experience with it.
In relation to the "B" green, Mr Goddard noted that it had been renovated but the top dressing of the green was not up to standard for a bowling green surface in as much as it appeared that the soil had not been worked into the surface properly or efficiently to derive a perfectly smooth surface. The evidence from Mr Airulo was that he had engaged a contractor to undertake top dressing of the "B" green but there had been problems with the equipment and the job was not done properly. At the time that it was done Mr Airulo was too busy himself to supervise the contractor. Mr Goddard's report recommended that a soil analysis be done to determine the nutrition levels of the and to make the necessary adjustments. He recommended the application of 21 kg of 5-1 mix every seven to ten days until an even coverage of grass was achieved. He recommended that more consistent cutting be carried out on the "B" green and that the grass not be allowed to mat up. He also recommended that the "B" green be laser levelled by Goddard Enterprises as soon as possible.
In relation to renovation of greens, Mr Goddard's evidence was that the general practice is to renovate the bulk of the greens and in Mt Lawley Bowling Club's case, two greens, by mid August each year. If the renovation was started at mid August, which according to Mr Goddard was the earliest time it could be carried out, it would take approximately eight weeks to have the greens back in play. Mr Goddard said that he was aware that the Mt Lawley Bowling Club conducted a major tournament in September and he pointed out to the President that this "doesn't auger well for the greenkeeper to undertake to renovate the greens at that time of the year to go into the season with strong greens".
Mr Goddard's report stated "It also appears that you are understaffed on your greens. It is my recommendation that an extra full time person is required. It is physically impossible for one person to maintain three greens". In his evidence Mr Goddard cited the situation at his own club where they have four greens and three people on the greenkeeping staff. Mr Goddard said that the three people do approximately 120 hours of work a week on the greens in order to maintain the standard that is required by the Victoria Park Bowling Club. That works out to some 30 hours per green "so in a three green club it's obvious that you're looking at 90 hours of work". Mr Goddard said that in peak season when one is undertaking a job such as renovation work the number of hours would increase to 150 for four greens.
Mr Goddard suggested in his report that the greenkeeper submit a twelve month greens programme as soon as possible "so that the match committee could work around the greens programme not vice versa". Mr Goddard said that the greens programme would entail setting out when the greens are to be renovated and the length of time they would be out of play. Mr Goddard concluded "With proper planning and sound renovation work carried out and with proper staffing levels your greens should improve". In his evidence, Mr Goddard said that no person would be able to achieve a high standard of results trying to work around a playing programme set by the match committee. He said that in that situation the match committee generally does not allow sufficient time for greens renovation work to be undertaken properly. In the case of Mt Lawley Bowling Club, the major tournament was the Consistency Singles which was held in September. The evidence was that that was the one time of year that the club needed to use all three of its greens at one time. Mr Goddard's evidence was that he wouldn't like to see any club use all the greens at that particular time of the year because it does not allow the greenkeeper to carry out the vital renovation work at the ideal time of year.
CRITICISMS OF MR AIRULO'S WORK PERFORMANCE BY THE BOWLING CLUB
Falsification of Club Records
Mr Airulo's evidence was that when he started work at the club he bought a work diary in which he recorded his hours of work and a description of the work he carried out each day. Mr Airulo said that he did this as he had been taught that it was good greenkeeping practice. Mr Airulo said that he was not asked to do this by the club. When the diary expired in the middle of 1994, Mr Airulo approached the club and asked it to buy him a new diary. This was done. Mr Geoffrey Waters, who has held several positions with the club including president and chairman of various sub-committees, gave evidence that he personally bought the diary. Mr Waters said the reason they gave Mr Airulo the diary was to record his hours and what work he had done on the greens. Mr Waters said that he does not know if he specifically asked Mr Airulo to keep records, but normally a greenkeeper does do this. Although it is the club's position that Mr Airulo was instructed by the club to keep a record of his hours of work and the work he carried out each day, Mr Airulo gave evidence that he was never told to do this by the club.
Mr Reuben Segal, a member of the greens committee of the club, gave evidence that until there were problems with Mr Airulo's work performance the club did not require him to record his hours of work as Mr Airulo was free to work any hours he wanted so long as he was doing his job properly. This position is consistent with the written terms and conditions of employment already referred to.
Mr Bunting gave evidence that when the diary was purchased he told Mr Airulo to enter the times he worked in the book as the club wanted to know the times he was working. Mr Bunting said that he first became concerned at around the end of November 1994 to December 1994 that Mr Airulo was not working the hours listed in the book. Mr Bunting said that he told Mr Airulo "I want the truth, not lies, in that book".
On balance, I find that Mr Airulo was not instructed by the club to keep a record of his work hours and the work he did on each green each day.
The club contends that Mr Airulo falsely recorded his times of attendance in the work diary issued to him and the work he carried out on the greens. It is submitted on behalf of the club that this amounts to falsification of official club records and justifies the termination of Mr Airulo's employment. I have already found that Mr Airulo was not instructed to keep a record of his hours and details of his work, although that is why the diary was purchased. Further, there is nothing in the evidence which would lead me to conclude that Mr Airulo's work diary was ever intended by anyone to achieve the status of "official club records". The evidence simply does not support the respondent's position in this regard.
Non-attendance at Work
It is the club's position that Mr Airulo did not attend at work on the days and hours entered in his work diary. In this regard, it must be pointed out that the written terms and conditions of employment did not require Mr Airulo to attend at any specific hours. As I see it, the position was, at least until just prior to Mr Airulo's termination, that Mr Airulo was free to work whichever hours he chose provided he kept the greens at the club in good condition for playing.
Mr Airulo gave evidence that when he first started with the club he worked very hard because he wanted to make a good impression. He said that once the pennants season starts in summer, the pace is really serious and the workload increases as the summer gets hotter. Mr Airulo said that in the summer of 1993-1994 he was working about 70 hours a week. He said that in the first year he worked about 16 or 18 Sundays for the year instead of the nine or ten Sundays he had been led to believe when he took on the job. Over the whole period of his employment with the club he never had a complete weekend off. There was just too much work for him to do. Mr Airulo said he would come in early and have a break at morning tea time but he often ate his lunch standing up while he was doing other things. Sometimes when the weather was very hot, Mr Airulo said he would have worked a number of hours in the morning and a number of hours in the afternoon with a two hour break in the middle of the day. Mr Airulo's evidence in relation to the hours recorded in the diary was somewhat confusing. Although he gave evidence that the number of hours recorded in the diary were accurate, the transcript shows that at one stage Mr Airulo was asked "Let us say you turned up at 7.30, worked four hours, had two hours off in the heat of the day, and then came back and did four hours. What would you write in the diary for that day?". Mr Airulo's response was "I would just say that I worked straight through, but I would obviously take off the two hours". Mr Airulo then went on to say that he recorded the actual hours he worked in the diary. In relation to the winter of 1995, Mr Airulo was unsure how many hours per week he was working on average at that stage. He said that his hours depended on what was happening from week to week. Mr Airulo said that at that time he would have worked anything from 25 hours a week to 55 hours a week. It appeared that this was consistent with the general practice in the greenkeeping industry in winter.
The club brought forward a number of witnesses in an attempt to establish that Mr Airulo did not attend at work on the hours listed in the diary. For example, Mr Segal said that Mr Airulo wasn't turning up on time and wasn't putting enough time in at work. He said, however, that he himself wasn't there all week but "others were who could tell the Court the same thing". Mr Segal said "All I know is when he should have been there he wasn't there, not when you would normally expect him to be there, he wasn't there". He said that he spoke to Mr Airulo about his attendance in July 1995 and Mr Airulo always had some excuse for turning up late, such as his bike breaking down or his car battery was flat. Mr Segal said that on Mondays "Dad's Army" would get to the club about at about 9 o'clock in the morning and Mr Airulo would not turn up until about 10.30 am. This is denied by Mr Airulo.
Mrs Mavis Jones gave evidence on behalf of the club that she lived opposite the club and during the summer she would attend there between 6.00 and 6.30 in the morning. She went there to water the pot plants. Her evidence was that many times when she went over there she could not get into the club house to get the watering cans because Mr Airulo had not yet arrived to open the club. However, when it was put to her that as a general rule Mr Airulo may have started work between 6.00 and 7.00 am over that period, she said "Yes, I think that would be right". Mrs Jones said later that it was not very often that she saw Mr Airulo at the club in the mornings.
Mrs Helen Hamilton, the ladies' captain with the club, gave evidence that on 8 November 1994, a ladies' pennants day, Mr Airulo arrived late. Mrs Hamilton said that she normally got to the club between 8.00 and 8.30 am. She said that on that day Mr Airulo was nowhere to be seen at that time. He certainly wasn't working on any greens. Mrs Hamilton said that she had no idea what time Mr Airulo arrived on that day because she would have been in the club rooms. Mrs Hamilton said that she could only say that she didn't see Mr Airulo anywhere when she arrived so she presumed he arrived later than she did. This evidence was not particularly helpful because Mr Airulo's evidence was that sometimes he arrived early and then left some hours later to buy some morning tea, and sometimes he worked in the sheds at the club.
Mr Waters gave evidence that he was at the club at between 9.15 and 9.30 am each day. On many occasions he was the one who opened the door himself because Mr Airulo was not present at that time. Mr Waters said that he was at the club for over 30 hours per week and quite often Mr Airulo was not there for those 30 hours that he himself was there. Mr Waters said that he would not believe that Mr Airulo had worked up to 70 hours a week over summer.
The club made reference to various dates referred to in Mr Airulo's work diary upon which witnesses for the club gave evidence that Mr Airulo's entries were false. As some of those entries dated back many months prior to the hearing of this matter, it was not surprising when Mr Airulo himself was unable to state with any accuracy what in fact had happened on those dates. It appears that he had not been challenged at the time about his alleged non-attendance at work. The difficulty I have with all of the evidence from the respondent in relation to this matter is not only that it goes so far back in time, but also that Mr Airulo was not, according to his written conditions of work, required by the club to attend at any particular time or for any particular number of hours.
Refusal to Carry Out Instructions
Apart from issues relating to instructions given by the club in the short period prior to Mr Airulo's termination, the club's complaints about Mr Airulo's alleged refusal to carry out lawful instructions may be separated conveniently as follows:
(a)Double Cutting the Greens
Evidence was given by Mr Segal, Mr Waters and Mr Bunting that Mr Airulo was often told that the bowling greens were to be double cut at all times. These gentlemen were all of the view that Mr Airulo often did not double cut the greens prior to matches. The evidence was that if a bowling green is single cut, then lines are apparent on the playing surface. Mr Goddard gave evidence that with double cutting, it was possible that particular lines on the surface of the grass were cut four times, and it was therefore important to vary the cut to avoid this. Mr Airulo gave evidence that it was difficult to vary the lines of cutting at the Mt Lawley Bowling Club properly because there were only power sources for the lawnmowers at two corners of the green rather than four. Mr Airulo's evidence was that greens had to be cut and rolled even when not in play. He said that he always double cut the greens prior to play, although sometimes he would double cut the green on the evening before a match and then single cut the green on the morning of the match. This is why lines would sometimes appear on the green and would lead bowling club members to think that the greens had only been single cut when in fact he had double cut them on the previous evening. It is the respondent's contention that Mr Airulo should have double cut the greens on the morning of each match.
On 8 November 1994 there was a complaint by Mrs Helen Hamilton in relation to the condition of the greens on that day. Mrs Hamilton alleged that the greens had not been double cut and that there were ridges in the surface of the greens. Mr Airulo said that on that day he had been having a problem with the back roller on his mower. He had to wait for a friend of his to come over and help him realign the back cylinder of the mower. He had not realised what the problem was until after he had cut the green. Mr Airulo said that on the day in question he had given the green two single cuts, as distinct from a double cut.
It appears from the evidence that Mr Airulo did not always double cut the greens prior to matches. This, however, must be seen in the context of the understaffing identified by Mr Goddard.
(b)The Recommendations of the Goddard Report
The Club contends that Mr Airulo did not follow the recommendations of the Goddard report to the letter as he had been instructed to do. In the first place, it is alleged that he did not apply the chemical "Rogor" as recommended by Mr Goddard. Mr Airulo said that "Rogor" was unavailable in Western Australia and he used a substitute brand, one which was identical in nature to the brand called "Rogor". This did not come to light until the hearing of this matter. I accept Mr Airulo's evidence, which is unchallenged, that the chemical he did use was identical in nature to "Rogor". In these circumstances, I do not consider that Mr Airulo can be criticised for using the substitute.
In the second place, the respondent said that Mr Airulo did not follow Mr Goddard's recommendations in relation to the fertilising of the greens. I have already referred to the fact that Mr Goddard's report recommended the application of a 5-1 mix of sulphate ammonia and muriate of potash in relation to the "A" and "C" greens on the basis of "15 kg on a fortnightly basis up until mid May then 7-10 kg of the same mix every three to four weeks", and in relation to the "B" green, "21 kg every seven to ten days until an even coverage of grass was achieved". Mr Bunting and Mr Waters also referred to the fact that as a result of reports obtained from Agro Nutritional Research Laboratory, which conducted soil analyses of the greens, Mr Airulo was specifically instructed by the greens committee not to continue using fertilisers containing copper or zinc and also not to apply phosphorus to the greens. Mr Airulo could not remember being instructed by the greens committee not to continue the practice of using fertilisers containing copper and zinc. He said that the mix he used contained minute amounts of phosphate. Mr Airulo said it was quite common to receive instructions of a technical nature from the chairman of greens, as he had his own ideas. Mr Airulo said he had some disagreements with the chairman but he said that if there was a disagreement he used to bow to the club's wishes. In relation to the recommendations of the Goddard report, Mr Airulo said that he probably put slightly more than 15 kilos on the "A" green. The transcript shows as follows:
"Why? ... Because I was using a slow release and I was using some more of the old stock of fertiliser I had. So I was putting on less but more frequently. Virtually every time I was watering. I wasn't really getting the reaction I was wanting. Like I wasn't really getting much growth.
Surely with slow release fertiliser you would put more on less frequently rather than the reverse? ... Yes, but I had a mixture of stuff. I was putting some quick release stuff on but I was also putting on some slow release too.
Together? ... Yes.
Why were you doing that? ... Actually it's just better - it's good turf management.
That is part of your trade studies, is it? ... Yes, it's just good. You get fast growth in the short term but you've got an undercurrent. It's like a safety net. It's good to know that you've got some slow release there because it doesn't really do anything but it just helps contribute to the overall picture.
In terms of its recommended fertilising programme for A green, to what extent do you believe you carried that out? ... To the best of my ability.
If you were to have done exactly what he suggested, what would that have involved. Would you have had to purchase additional supplies? You said you were using old stock? ... Yes, I did buy some new fertiliser too.
You had to get rid of what you already had? ... Yes.
What is the difference, is it a difference in the mix? He has recommended a 5-1 mix? ... This mixture, all that it is is nitrogen and potassium. He likes to get his fertilisers and he likes to do his own mixing, but you can buy the fertilisers pre-mixed and the stuff I was getting was from BSAF and it was just, the NPK was in there but they were all in the molecules.
What was in there? ... The NPK, nitrogen, potassium and phosphate.
As far as you are concerned you complied with Steve's recommendation for fertilising for A green? ... Yes."
The club's witnesses made it clear that they instructed Mr Airulo to follow Mr Goddard's report to the letter. This was because the greens were in a very bad state and they had employed a leading greenkeeper as a consultant to identify the problems and their solutions. It appears from the piece of transcript that I have quoted that Mr Airulo did not follow Mr Goddard's recommendations in relation to the fertilising of the A green to the letter because he considered it good greenkeeping practice to put less fertiliser on more often. It appears to me that this somewhat defeats the purpose of employing a man of the experience of Mr Goddard to provide his opinion. Mr Goddard was not asked his opinion of the consequences of Mr Airulo's actions in this regard. Mr Goddard gave evidence before Mr Airulo did. However, I consider that Mr Airulo was at fault in not following the club's reasonable instructions in this regard.
(c) The Preparation of a Greens Programme
Mr Goddard recommended that Mr Airulo submit a 12 month greens programme as soon as possible so that the match committee could work around the greens programme, not vice versa. Mr Airulo's evidence was that he discussed this recommendation with Mr Waters, the greens committee chairman. The outcome of the discussion was that Mr Airulo prepared several rough drafts of a greens programme but that he could never get the club to specify its requirements for play so that it was impossible for him to devise a long term programme. He pressed Mr Waters a few times but he did not take it beyond the chairman of greens. Witnesses from the club said that this allegation was ridiculous because Mr Airulo knew from early on in the year or by mid-year at the latest what the club's play requirements were. The overwhelming impression I got from Mr Airulo was that he did not give this matter any priority and that he was not forceful enough to pursue it. To that extent I find some fault lay with Mr Airulo. On the other hand, it was obvious to me that the club was not prepared to change the timing of the Consistency Singles Tournament in September so that the greens could be renovated at the optimal time suggested by Mr Goddard. It was clearly Mr Goddard's view that it was in the best interests of the greens for the club to change the timing of the Consistency Singles. Further, although Mr Airulo's terms and conditions of employment set out that he was required to devise a greens programme, the club did not pursue the matter with Mr Airulo until there were problems with the condition of the greens and after Mr Goddard had provided his report.
Inefficiency and Lack of Interest
It is alleged on behalf of the respondent that from late November 1994 Mr Airulo appeared to lose interest in his work and that this reflected in the continuing deterioration of the condition of the greens. The respondent's written submissions state as follows at pages 9-10:
"Club witnesses testified that the neglect by Mr Airulo of his directed duties were exampled (sic) by;
(a)The steady downturn in the quality of Greens.
(b)The infestation of Greens by winter grass, algae and fungus.
(c)His failure to take proper steps to prevent or eradicate the problems with the Greens.
(d)The infestation of greens by couch mite and his failure to recognise the problem or take the appropriate steps to rectify.
(e)Insufficient mowing of greens.
(f)Greens not mown correctly ie. requirement to be double cut.
(g)Lack of proper planning and/or inefficient programming.
(h)His refusal and/or inability to follow directions and expert advice regarding spraying, fertilising, mowing and rolling."
Mr William Purdie, the treasurer of the club, said that what was wrong with Mr Airulo's work performance was his marked lack of enthusiasm and his lack of punctuality. Mr Airulo, however, said that the workload was just too much for him. He only had about two or three days off by way of leave over the entire period of his employment with the club.
In about June of 1995 Mr Airulo attended a meeting of the West Australian Greenkeepers Bowls Association. His evidence was that a couple of union representatives attended the meeting and a lot of talk was generated about people being paid non award rates. As a result of this meeting, the union wrote a letter to the Mt Lawley Bowling Club in relation to Mr Airulo's rate of pay. Mr Airulo felt that he was underpaid for the amount of work he was being required to do.
It does appear from the evidence that Mr Airulo worked harder during his first year of employment than he did during the second year of employment. If Mr Airulo did lose some enthusiasm for his work, this must be seen in light of the understaffing problems identified by Mr Goddard and the fact that Mr Airulo had very few days off work since he started his employment at the club. However, the condition of the greens was deteriorating rapidly and I can understand the club's concerns if Mr Airulo did not appear to work with enthusiasm.
Deterioration of the Greens
It is common ground that the condition of the greens at the Mt Lawley Bowling Club deteriorated from about the summer of 1994. The witnesses for the club laid the blame for the deterioration of the greens entirely at the feet of Mr Airulo. Several witnesses, including Mr Evans, Mr Segal and Mr Bunting, felt that if the greens were in poor condition it was automatically the greenkeeper's fault. I do not accept that that is necessarily true. It was Mr Goddard's opinion that even experienced greenkeepers might not be able to diagnose the existence of couch mite. It appeared that a lot of the problems with the greens at the club were as a result of the infestation with couch mite. Once there is such an infestation, the evidence was that the greens will deteriorate markedly until the treatment has had time to take effect. I do not find fault with Mr Airulo for failing to diagnose the couch mite problem. I do, however, as I have said above, find some fault with him for not following Steve Goddard's recommendations strictly.
Lack of Response to Warnings
It is the club's position that Mr Airulo was given many warnings in relation to his work performance and that he did not respond to those warnings. This will be dealt with in more detail below in relation to the requirements of Section 170DC. Mr Airulo's position is that he was not counselled or warned that his employment was in jeopardy.
MATTERS COMPLAINED OF BY MR AIRULO
The main matters complained of by Mr Airulo in relation to his employment with the club included the fact that he was overworked and that the problem relating to staffing levels was never properly addressed by the club; the fact that he was unable to prepare a yearly greens programme because the club did not provide him with a list of its play requirements, and the fact that he was paid a flat rate no matter what hours he worked and that the club required him to work at least 38 hours in winter prior to his termination despite the fact that this was contrary to the written terms and conditions of his employment.
I have already dealt with the question of the preparation of a yearly greens programme. The question of Mr Airulo's wages was considered by him to be a factor in the termination and that will be dealt with more fully below.
As to the question of staffing levels, I have already referred to Mr Goddard's evidence that it was physically impossible for one person to undertake the work required by the Mt Lawley Bowling Club and to do it at a high standard. Mr Goddard recommended the employment of another full time person. The club's response to the allegations of understaffing was two-fold. In the first place, it was said that the club had always managed to get by with only one greenkeeper in the past. This was because of the assistance given to the greenkeeper by "Dad's Army". "Dad's Army" was a group of club members who attended regularly on Monday mornings and assisted the greenkeeper, particularly with the maintenance of the surrounds. Occasionally "Dad's Army" would work on special programmes such as the replacement of slabs along the banks of the club. Some "Dad's Army" members helped to roll the greens and to set them up in readiness for play. The second part of the response of the club in relation to the understaffing problem was that they had attempted to employ somebody under the Jobstart programme but that Mr Airulo had refused to take the person on as a trainee.
Mr Goddard's evidence in relation to "Dad's Army" was that the assistance given by "Dad's Army" would not affect his recommendation in relation to understaffing. This was because the greenkeeper must still undertake the cutting and rolling work on a regular basis. "Dad's Army" generally only did its work on Mondays.
Mr Airulo gave evidence that "Dad's Army" helped him with the surrounds, and some repairs to the machinery. Mr Airulo himself did the daily maintenance to the machinery. "Dad's Army" did not, however, give regular daily assistance to him. The greens remained his domain. Mr Airulo said that many of the members of "Dad's Army" were too old to undertake the heavy work associated with the maintenance of the greens.
Mr Iskra gave evidence on behalf of the club that he had been a member of "Dad's Army" for seven or eight years. "Dad's Army" carried out its tasks on Mondays from about 9.00 o'clock to 12.00 or 1.00 o'clock.
Mr Iskra said that one of the members of "Dad's Army" on a regular basis did the rolling of the greens for Mr Airulo in preparation before bowling. Some helped him out with the watering of the greens. They also helped when there was a problem with a leakage in the pipes. The seals had to be renewed by Mr Iskra and this solved the problem. Mr Iskra said that "Dad's Army" did all the painting of the numbers, the scoreboards, the pegs on the side of the greens and the marking of the greens.
Although I am satisfied that "Dad's Army" provided very valuable help to Mr Airulo on Mondays and on some other occasions throughout the week, I consider that this assistance fell far short of the type of assistance recommended by Mr Goddard in his report. "Dad's Army" is simply not a replacement for an extra full time staff member who can concentrate on the greens.
The Mt Lawley Bowling Club alleges that Mr Airulo was unco-operative in not agreeing to the employment of a Jobskills trainee. It is common ground that the club suggested the employment of such a trainee in response to Mr Goddard's recommendation for the employment of an extra staff member. It is also common ground that Mr Airulo did not want to employ such a trainee because he did not consider that he had sufficient time to train such a person. Mr Airulo said that he sought the advice of Mr Goddard when the club suggested the employment of a Jobskills trainee and Mr Goddard had warned him against this because he would not have time to train the person adequately. Training the Jobskills person would take Mr Airulo away from his duties for considerable periods. Mr Airulo also felt that he did not have enough time to supervise the person in his or her work. I do not consider that Mr Airulo was unreasonable in his stand in relation to this matter. He had enough work to do without being involved in the training of another person. I accept the club's position that it could not afford to employ another full time member of staff on a wage which was not subsidised. This was a difficult position for the club but the fact remains that on the expert evidence before this Court Mr Airulo was being required to carry out much more work than could reasonably be required of one person.
THE TERMINATION
It is common ground that the relationship between the parties deteriorated, certainly from early 1995. According to witnesses from the club, when Mr Airulo was spoken to about his work performance early in 1995, his performance improved for a short time but then deteriorated after February. The club brought forward witnesses relating to alleged conversations with Mr Airulo during which he was counselled about his work performance. These conversations included counselling on 9 November 1994 and 1 February 1995 when Mr Bunting and Mr Waters met Mr Airulo to discuss the written complaints lodged by Mrs Hamilton. Mr Airulo remembered having conversations in relation to the condition of the greens but not in relation to his work performance.
Mr Bunting and Mr Waters also gave evidence that they spoke to Mr Airulo in mid January of 1995 about the condition of the greens. Club members were concerned about the condition of the greens and according to the witnesses Mr Airulo was told to rectify the problems. Mr Bunting gave evidence that on 20 March 1995 during discussions with Mr Airulo about the Goddard report, he counselled Mr Airulo regarding his work performance and the possibility of dismissal should the problems not be rectified. Mr Bunting's evidence was that he told Mr Airulo several times that he risked termination if his work performance did not improve. He said that in relation to the complaint lodged by Mrs Hamilton on 31 January 1995, he said to Mr Airulo that they had told him in November that they wanted double cutting for all pennants. Mr Airulo replied that he did double cut. Mr Bunting said that he told Mr Airulo that he had two weeks to "shape up or ship out". Mr Bunting said that he swore at Mr Airulo. He said that if the greens were not better in a fortnight he would be terminated. Mr Airulo has no recollection of any such conversation and said that he would remember it if he was told that his job was in jeopardy. Further evidence was given by Mr Bunting and Mr Segal that they met Mr Airulo in mid April 1995 as a follow up to the Goddard report and that he was once again told to follow Mr Goddard's recommendations. It is alleged that Mr Airulo was told that his employment would be in jeopardy if he did not do so.
Mr Segal gave evidence that at around April 1995 the club first seriously considered the possibility of dismissing Mr Airulo and getting another greenkeeper. According to Mr Segal, the club thought that they would persevere a bit and not be too hasty about it. Mr Bunting said that he wanted to terminate Mr Airulo's employment in May but that Mr Purdie talked him out of it. Mr Purdie's evidence was that this happened in mid June. Mr Bunting wanted to terminate Mr Airulo's services there and then. Mr Purdie's evidence was that he told Mr Bunting that he would have to be careful and make sure that he was doing the right thing. Mr Bunting's reaction was that the club couldn't wait much longer. He said that the club "had to have results or something had to happen". Mr Bunting gave evidence that the committee was concerned about the hours Mr Airulo was working. Mr Bunting himself had a look at Mr Airulo's work diary to see what was written there. There were several entries, including one for Saturday 27 May, about which Mr Bunting disagreed with what Mr Airulo had written in relation to his hours of work. Mr Bunting wrote "bullshit" on that page and signed it. He did that on several pages. At some later stage someone, who was not identified, whited out the words written by Mr Bunting. Mr Airulo was unaware that members of the committee had looked at the diary and that Mr Bunting had written comments in it.
The club's dissatisfaction with Mr Airulo's work performance was brought up at a meeting of the greens committee on 3 July 1995. Mr Bunting chaired the meeting. Mr Airulo was about 15 minutes late for the meeting. According to Mr Bunting, the committee discussed Mr Airulo's termination. This was not done in Mr Airulo's presence. It is common ground that at this meeting Mr Airulo was told that henceforth the club required him to work 38 hours per week. A timetable of hours he was to work was read out to him at the meeting and a written copy of that timetable was handed to him the following day. The club's position is that it told Mr Airulo unequivocally that he was to work according to the timetable.
Mr Airulo's evidence was that the club probably gave him the work schedule because it was at the peak of winter and the club was having organised games daily and he had not been working "full on" as he would be in "summer mode". Mr Airulo said there was no concern expressed at the meeting about his work performance. Mr Airulo said that he didn't realise that the club wanted him to work exactly the hours stipulated in the schedule. He assumed that the club wanted 38 hours worked in a week. He expected to work beyond those hours if the need arose. Mr Airulo acknowledged that Mr Segal had expressed concern that he may not have been working 38 hours in some weeks. He acknowledged himself that in some weeks he had not worked 38 hours per week. Mr Airulo's evidence in relation to the document was that he thought because it was a new committee they were unsure of the usual practice regarding greenkeepers and wanted to feel their way into the job.
Mr Bunting gave evidence that the club was not happy with Mr Airulo's work hours and they decided to set a trap. Mr Airulo was given a written work schedule and on each day a member of the club would check the hours Mr Airulo worked. For example, it was Mr Bunting's turn to check on Wednesday 5 July. Mr Bunting got to the club at 9.00 am. According to the new work timetable, Mr Airulo should have been at the club but was not there. Other witnesses from the club similarly gave evidence that Mr Airulo did not keep to the working hours set down in the timetable. It is unclear to me exactly what hours Mr Airulo did work during that week because nobody was there from the club for all of the hours worked by Mr Airulo. For example, on Wednesday Mr Bunting was only there for a short time.
According to Mr Bunting, he first spoke to Mr Purdie about terminating Mr Airulo in May. Mr Purdie said that the club had nobody to take Mr Airulo's place. The club advertised for a new greenkeeper in a newspaper on 1 July 1995. The advertisement was anonymous in that it did not specify which club was seeking a greenkeeper, and gave a Post Office box number to which to reply. Mr Bunting agreed with Mr Airulo's representative during cross examination that "Tony was gone for all money when you spoke to Mr Purdie". He also agreed that it was just a matter of finding a replacement, and that they had decided in June that Mr Airulo "had to go". Mr Bunting admitted that he didn't tell Mr Airulo of any move to hire a replacement. He said, however, that Mr Airulo would have to have been aware as "he reads all the minutes". It appeared to me, however, that the relevant minutes were carefully worded so that it was not at all clear that any move was being made to replace Mr Airulo. For example, the minutes of the annual general meeting held on Sunday 18 June 1995 state in part that:
"J Einfeld raised the subject of inferior greens. President Bunting drew attention to the annual report where a full assessment of the greens had been printed and assured the members that plans were in hand for new arrangements as to upkeep of greens".
That statement is fairly ambiguous, but the club is relying in part on those minutes as satisfying the procedural fairness requirements of the Act. Mr Bunting said that on 10 July 1995 he spoke to Mr Purdie and told him to terminate Mr Airulo's employment. Mr Airulo was ill on Monday 10 July. Mr Purdie gave evidence that on the following day, 11 July 1995, he asked Mr Airulo to come into the office. Mr Purdie said that he told Mr Airulo "If you want to have the members of the union here I will not say a word to you and we will just have the meeting whenever you wish". Mr Airulo replied that he would talk to the union. Mr Purdie said:
"I told him the situation, that his work in the management committee's decision was not up to standard and after these numerous warnings it still was not up to standard and it was getting worse, if anything. As a friend I said to him in my opinion he would be better to resign because he would get a certificate of service then so that if he wanted to apply for another job as a greenkeeper he would have at least the chance of getting a job".
According to Mr Purdie, Mr Airulo's reaction was that he was going to go away to see the union and come back and tell him whether he was going to resign or be terminated. Mr Purdie said that he was surprised that Mr Airulo turned up for work on the following day and went to his shed as usual. Mr Purdie went to Mr Airulo and told him that as he hadn't come to him to say whether he would resign, he was terminated.
Mr Airulo has a different recollection of the events surrounding the termination. Mr Airulo said that it was a broad conversation and that they got sidetracked a lot but that basically it was to do with the letter written to the club by the union.
As mentioned before, the union had sent the club a letter and Mr Purdie said to him " 'Why have you gone to the union, we've bent over backwards to help you, and it's like shooting yourself in the foot by writing to the union'. He mentioned something about unions having a way of finding out every little legal loophole that there is, you know, so he was concerned about that, and he goes: 'Alan Bunting's really unhappy with you for going to the union' - and then he mentioned: 'This letter's come at a bad time, because we put an ad in the paper a week ago, and we've got a couple of guys who say they can do your job cheaper'." Mr Airulo said that he was surprised about this and that Mr Purdie then asked whether he wanted the union present for the conversation. Mr Airulo then said "What do you mean". Mr Airulo said that it just felt like an informal chat about the union letter so he said that he didn't want the union present. Mr Airulo said that that is when "all the stuff came out about getting another greenkeeper". Mr Airulo said that at first he wasn't quite sure if Mr Purdie was talking about an assistant or a head greenkeeper, but then later in the conversation it appeared that it was his job that Mr Purdie was talking about. He said Mr Purdie didn't give him a definite answer if he was going to be sacked or not. Mr Airulo's impression was that it had something to do with going to the union. Mr Airulo said that they talked quite a bit, including about the Consistency Singles and other work. According to Mr Airulo, Mr Purdie came back at 3.00 o'clock in the afternoon and told him that he had the option of resigning or being sacked. Mr Airulo said that he went back to work thinking he had "a sort of chance" of retaining his job. Mr Purdie then telephoned him at home at about 5.30 pm that day and said that the club had come to a decision and that he was terminated. He was told that the new greenkeeper was starting on Thursday. Mr Airulo said that on the Wednesday he went to work and handed in his keys and went to get his things out of the shed. On the following days he attended at the club's premises with his union representative.
Mr Airulo's version of the events of 11 July differ markedly from those of Mr Purdie. Mr Purdie denies that he said anything about the union letter to Mr Airulo at the time. He also denies that he rang Mr Airulo at home at 5.30 on the Tuesday evening and said that he would not have been at the club at that time. However, it is clear from the minutes of the committee meeting held on Tuesday, 11 July that Mr Purdie was present at the club at that time. The committee interviewed prospective greenkeepers on the afternoon of Tuesday, 11 July and appointed a greenkeeper officially on that evening.
THE CREDIBILITY OF THE WITNESSES
The version of events given by witnesses for the Mt Lawley Bowling Club in some respects differ markedly from the version of events given by Mr Airulo. In a lot of cases this was probably due to the passage of time, as the club brought up matters some considerable distance in the past about which Mr Airulo could not be expected to have a clear memory as they were not discussed with him at the time.
Mr Airulo impressed me as a pleasant, likeable but unusual young man. The impression I gained was that he was trying to be truthful in giving his evidence but often he was somewhat vague. He is certainly not a forceful personality. He appeared to have his "head in the clouds" in that he was somewhat removed from the events of every day life. Because of this, I had some concerns about the accuracy of some of his testimony.
Many witnesses were called to give evidence on behalf of the club. In general terms, I was given the impression of people who took great pride in their club. It is obvious that the club members work very hard to maintain their club and greatly enjoy the recreation time it provides. It is entirely understandable that these people would be concerned about the deterioration in their bowling greens. I had concerns about the evidence relating to Mr Airulo's alleged non-attendance at work, however, because a lot of the time the witnesses for the club made broad generalisations such as "he was never there" . There was no single person called on behalf of the club who attended the club at all of the times that Mr Airulo said that he worked. Nobody can say how many hours Mr Airulo actually worked in a week. Further, many of the witnesses called by the club gave evidence that they knew of certain events, and it later transpired, upon close questioning, that they had no direct knowledge of these events themselves. Further, many of the witnesses relied on the fact that they "would have" said or done something.
I had a few concerns about Mr Bunting's evidence. He seemed very sure of exactly what was said by him to Mr Airulo in conversations relating back to November 1994 and early 1995. However, when he was questioned by Mr Lourey in relation to the telephone conversation he had with Mr Lourey on 10 July 1995, he claimed not to recall any details of the conversation, particularly those details which may have constituted damaging admissions against the club. Mr Bunting said that certain of those matters put to him may have occurred but that he could not recall as it was so long ago. I consider that that is extremely unlikely given the important nature of the conversation and given the fact that Mr Bunting seemed to have almost perfect recall of other matters favourable to the club's case.
It is apparent to me from the evidence that one of the problems in relation to this matter was that there was inadequate communication between Mr Airulo and the club. As I have said, Mr Airulo is not a forceful personality and it is probable that he was unable to adequately communicate his needs to the club. Further, the club did not adequately or properly communicate with Mr Airulo in relation to its expectations of him. This is apparent from the difference between the way Mr Airulo interpreted certain situations and the club's position in relation to them. One of the sources of difficulty seems to have been that when various members of the club's committee approached Mr Airulo in relation to the care of the greens, he would listen patiently but disregard what he took to be their advice, as opposed to their instructions to him, because he felt that he was the professional who had the best knowledge of greenkeeping and whose responsibility it was to oversee the upkeep of the greens. This is entirely understandable. It is a question of where one draws the line. It is apparent to me that in many of the conversations Mr Bunting had with Mr Airulo, for example, Mr Bunting was aggressive and by his own admission swore at Mr Airulo. That is hardly an effective means of communication. Neither was Mr Bunting's action in writing "bullshit" in the pages of Mr Airulo's diary rather than speaking to Mr Airulo directly. Then again, various other members of the committee, including Mr Segal, thought of Mr Airulo as a friend and gave him friendly advice which they considered to be in his best interest. Mr Airulo appeared to have taken that as advice rather than as instruction. As Mr Goddard said in his evidence, "It's a situation where it depends upon the greenkeeper's ability to communicate with his committee".
In relation to the number of hours worked by Mr Airulo it is difficult for me to make a finding, because of the concerns I have raised above.
THE REQUIREMENTS OF THE INDUSTRIAL RELATIONS ACT
Section 170DC
Section 170DC of the Industrial Relations Act says that an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made or the employer could not reasonably be expected to give the employee that opportunity. The requirements of Section 170DC have been interpreted by Chief Justice Wilcox in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233. His Honour said at page 243:
"Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as 'natural justice' or, more recently, 'procedural fairness'. The relevant principle is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well established in public administrative law. .... it represents part of what Australians call 'a fair go'. In the context of Section 170DC, it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself 'against the allegations made'; that is, the particular allegations of misconduct or poor performance that are putting the employee's job at risk. Section 170DC(a) is not satisfied by a mere exaltation to improve."
Further on, at page 243-244, his Honour said:
"For Section 170DC(a) to be satisfied, it would have been necessary for the respondent to determine what aspects of Mr Nicolson's conduct or performance were such as to justify possible dismissal and put those matters squarely to him, under circumstances where he had a fair opportunity to defend himself. That would have had to be done at a relevant time, close to the date of dismissal. It would not suffice that something was said to Mr Nicolson four weeks earlier, after which he was allowed to go on with his work as before."
Mr Johnstone for the respondent has urged me to disregard these dicta and states in his written submissions at page 15:
"While no disrespect is intended towards his Honour, it should be noted that his views in Nicholson (sic) vs Heaven and Earth Gallery are his own and have yet to be tested by a full court or higher Authority".
Mr Johnstone said that:
"The views of the Chief Justice, would seem to encourage employers to adopt a hatchet approach with their employees rather than attempting to work through the issues and achieve a result acceptable to both parties."
I am unsure what Mr Johnstone means by that latter comment. However, it is clear that this Court as presently constituted is bound by the decision of Wilcox CJ. Although the respondent's position is that Mr Airulo was given ample opportunity to be heard, it is clear to me that the club decided to terminate Mr Airulo's employment without regard to the requirements of Section 170DC. Although Mr Airulo may have received some warnings in the past, these occurred a long time prior to the date of termination. In my view, the alleged warnings also amounted to little more than a general exhortation to improve. It was apparent to me the club took some pains to hide from Mr Airulo the fact that he was to be terminated and that an alternative greenkeeper was being sought. No doubt this was because of the club's concern that it would be left without a greenkeeper for a period of some weeks if Mr Airulo suddenly resigned. At the time that the decision to terminate Mr Airulo's employment was made he was given no opportunity to be heard. Even if one accepts Mr Purdie's account of the events of 11 July 1995, it would have been useless for Mr Airulo to have had his union representatives present as the decision had already been made and the club was in the process of appointing a new greenkeeper. I have no doubt that in terminating Mr Airulo's employment, the Mt Lawley Bowling Club breached the provisions of Section 170DC of the Act.
Section 170DE
It is alleged on behalf of Mr Airulo that there was no valid reason for the termination as required by the provisions of Section 170DE(1). I consider that Mr Airulo's conduct in not following the club's instructions to adopt the recommendations of Mr Goddard to the letter amounted to a valid reason for termination. This is because of the severe deterioration of the bowling greens and the fact that Mr Goddard was called in as an expert. It is further argued on behalf of Mr Airulo that the termination was in all the circumstances harsh, unjust or unreasonable within the meaning of Section 170DE(2). I agree that certain aspects of Mr Airulo's employment were unfair. He was expected to carry a very heavy workload. The club knew when it employed him that he had only just completed his apprenticeship. He was paid as an inexperienced tradesperson and the club now criticises him for incompetence. Mr Airulo was undoubtedly required to do more work than could be said to be reasonable. However, once the club had sought the advice of Mr Goddard he should have followed the advice to the letter. For this reason I am not satisfied that the provisions of Section 170DE have been breached.
THE APPROPRIATE REMEDY
Section 170EE of the Act sets out the remedies the Court may grant. Although reinstatement is intended to be the primary remedy, Mr Airulo is employed elsewhere and is no longer seeking reinstatement. I consider that to order reinstatement would be impracticable. In these circumstances, this Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate. This Court is now required to make an order of compensation if it considers it appropriate in all the circumstances of the case. Further, in relation to breach of Section 170DC, I must take into account the dicta of Wilcox CJ in Nicolson v Heaven and Earth at page 246 where his Honour said:
"... in assessing compensation for a breach of Section 170DC, it is appropriate to consider what would have been likely to occur if that breach had not occurred".
Because of the club's obvious dissatisfaction with Mr Airulo's performance, and the continuing deterioration of the greens, I consider it unlikely that Mr Airulo's employment would have lasted more than a month or two beyond the date of his termination. In all the circumstances of the case, bearing in mind that Mr Airulo was paid two weeks' wages in lieu of notice, I consider that it is appropriate to award Mr Airulo compensation in the amount of four weeks' pay. In assessing this amount, I have taken into account that it is likely that Mr Airulo would not have been employed by the club for more than another one or two months in any event; the fact that Mr Airulo failed to follow the recommendations of the Goddard report to the letter; the fact that Mr Airulo was inexperienced and youthful and working under extremely difficult circumstances; and the fact that Mr Airulo has since termination been successful in obtaining alternative employment. The orders are:
1.The Court declares that the respondent breached the provisions of Section 170DC of the Industrial Relations Act in respect of the termination of the applicant's employment.
2.The respondent pay to the applicant the sum of $1,880 within 28 days of the date of this order.
I certify that this and the preceding 33 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate
Date:
Representative for the applicant: Mr M Lourey
Australian Workers Union
West Australian Branch
Representative for the respondent: Mr I Johnstone, member of
Mt Lawley Bowling Club
Hearing date: 14 & 15 November, 13, 14 & 15 December 1995 &
22 & 23 January 1996
Judgment date: 13 March 1996
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