Vincent Cusson v Westbrick Pty Ltd T/A Mataranka Homestead Tourist Resort

[2015] FWC 1268

[2015] FWC 1268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vincent Cusson
v
Westbrick Pty Ltd T/A Mataranka Homestead Tourist Resort
(U2014/13513)

VICE PRESIDENT LAWLER SYDNEY, 6 MARCH 2015

Application for relief from unfair dismissal.

[1] The Respondent company, Westbrick Pty Ltd, operates Mataranka Homestead Tourist Resort, Mataranka Hotel and Blackdown Station. Mataranka is some 170 km south of Katherine, Northern Territory. It is a remote tourist/backpacker destination that has distinct seasons. The principals of the Respondent are Mr Steve Garner and Ms Debrah Moore, his partner. They are often absent from Mataranka. Their manager, responsible for the day-to-day management of the respondent’s businesses in Mataranka was Mr Steve Chisholm.

[2] Mataranka’s remote location makes it difficult for the Respondent to attract and retain certain types of employee. I accept the evidence of Mr Garner, the principal of the Respondent, that he has found it particularly difficult to find a book keeper who is prepared to work in such a remote location.

[3] The Applicant commenced employment with the Respondent in July 2013. He was initially employed on a casual basis, however, his employment was made permanent and the subject of a written contract in February 2014.

[4] The Applicant’s employment came to an end in October 2014.

[5] On the Applicant’s case, the precipitating event was the loss of “bonus points” provided by one of the Respondent’s principal suppliers. The points can be redeemed for goods and had a value somewhere between $1000 and $1800.

[6] The Applicant’s witness statement records:

“Events leading to my dismissal

4. On a Thursday in October 2014, I had a discussion with Mr Steve Chisholm. He told me that reception had received a call from Geoff from PFD Foods (our main food supplier) in regards to a customer reward points program. The points accumulated with the company purchases were about to expire the next day (4pm on the Friday). The normal procedures in this case would be to let the owners of the business know about the points in order for them to redeem them and place an order in this regard. I was never made aware that these reward points were about to expire until that day at around 8:15 PM. I asked Mr. Chisholm if I should call Ms. Debrah Moore to make her aware of the situation or if I should wait until the next morning since it was quite late at night. He told me this could wait.”

[7] The date of this conversation is unclear on the evidence. It was either Thursday 25 September 2014 or possibly Thursday 2 October 2014. The Applicant’s statement continues:

“5. On the next day, I sent a text message to Ms. Debrah Moore early in the morning to let her know that she should make an order in regards to those points. Since the management of the reward point is not part of my normal duties I merely saw myself as giving her a message in regards to this. I didn’t hear from her until about lunchtime so around mid-day I called Ms. Moore and asked her if she received my messages. The line was quite bad but It was clear that she was made aware of the expiring reward points since she started texting me and asking me for assistance in order to claim those online. I provided as much help as I could. At some point Debrah indicated to me that she was logged in and ready to place her order and that everything was OK. I concluded that I did not have to worry about the matter anymore.

6. On the next day (a Saturday) Ms. Debrah Moore sent me an e-mail asking me to contact Geoff (sale rep for PFD Foods) to inquire to him about which e-mail address she should e-mail our freebies order to. Obviously she did not successfully place the order like I thought she did. Since it was the weekend I told her I would contact Geoff on the next Monday.

7. On Monday I contacted Geoff as requested by Ms. Moore. Shortly after Geoff informed me by e-mail that unfortunately he could not do anything in that regard since the points were definitely expired. I thanked Geoff by e-mail for his help in that matter and sent a copy of Geoff’s response to Ms. Moore to her personal e-mail address.

8. On Friday October 10th, 2014 around 12:15, Debrah called me on my personal phone. The call lasted about 15 minutes. She told me that:

a. She had just read the e-mail that I had transferred her from Geoff from PFD Foods.

b. She was very unsatisfied by the outcome of this situation.

c. She asked me to clarify for her when I was made aware that these points were about to expire and to specify to her what happened from my point of view.

d. I explained to her exactly what I just wrote in my statement (previous paragraphs). I also told her that I believe to have followed every reasonable step to avoid her loss.

e. She told me she was considering me to be personally responsible and liable for the loss of the points, which she evaluated to be of a value of about $1000.

f. She asked me to compensate her financially for the loss of reward points. She told me I would have to pay her the $1000 or I would be fired.

g. I told her that I had no personal responsibility in the event, that I believed to have acted in the best of manners and that I would not pay her as requested. I told her that requesting such amount from me was completely illegal. She seemed very angry and hung up on me.”

9. I continued to work in the office as usual since I had a lot of work to do. I also called Mr. Chisholm on his phone to talk to him about the situation. Considering the anger of Ms. Moore expressed to me on the phone I actually though she might actually want to fire me. I asked Mr. Chisholm if he could clarify the situation for me. He was in Katherine for the day but was on his way back. I worked for about 40 minutes after this phone conversation until he came in the office. I told him what happened and how disappointed I was of Ms. Moore’s behaviour. He told me that I could take the rest of the afternoon off to clear my thoughts.

10. On the same day, at night, around 9PM as saw Mr. Chisholm at staff quarters and asked him if he wanted me to go to work the next day as usual. He told me to do so.”

[8] It is likely that these last events occurred a week earlier than claimed by the Applicant. The statement continues:

“11

a. On Saturday the 11th of October 2014 (the next day) I went to work as usual at 7:00 AM (as per my timesheet, A10). I went about my usual morning routine (counting the tills, updating sale reports and then having a coffee and discussing operational issues with the Mr. Chisholm).

b. Around 8AM Mr. Chisholm received a phone call. He left the room and came back in the office and told me that Mr. Garner had just called him and that I was asked to leave my work premises until further notice. I asked Mr. Chisholm for more detailed but told me that he had none and that I should just go to my room and wait until Mr. Garner called me.

c. Just before I left the premises Mr. Chisholm asked me to give him a few passwords that he might need to do my job and asked me a few questions in regards to the work I usually do. He asked me to show him how to access several files in the computer and how to open the safe where the money from sales and for the ATMs was stored. He was also accompanied with Ms. Selma Elfki who was an employee of the reception at that time. I was very cooperative and provided Mr. Chisholm with any information he might need and answered all of his questions. I told Mr. Chisholm that I would make myself available to go back to work as soon as they would need me. My intent was mainly to facilitate the businesses activities while showing my good will to my employer in this difficult situation. Afterward I went back to my room at the staff quarters, merely a few hundred meters from the office.

d. I was very confused by all this. I had the feeling that I was being asked to completely step aside from my job and didn’t understand why since I had done nothing wrong.

[9] On 15 October 2014, after unsuccessfully attempting to contact the Applicant by phone, Ms Moore sent an SMS to Applicant stating:

“You are no longer welcome at Mataranka Homestead. You have until 4pm today to pack up and leave. If you ignore this text and are still on the premises after 4pm I will have the local police issue a trespass notice and you will be arrested. If you have any questions call me. Deb.”

[10] Not unreasonably, the Applicant took this to be notice of his termination. He packed and left.

[11] Mr Garner gave persuasive evidence that the episode involving the loss of the “bonus points” was not the reason for his dissatisfaction with the Applicant. Rather, his concerns arose from verbal advice he received from his manager, Mr Chisholm, that the Applicant:

(a) had informed Mr Chisholm that he intended to leave and take a break,

(b) had demanded that he be paid $30,000;

(c) had made a threat to wipe the Respondent’s business computer if the Respondent did not agree to pay the $30,000 the Applicant had demanded (“the Threat”); and

(d) that he may return to work at Mataranka, but that if he did so, he wished to revert to working on an hourly rate, in particular a rate of $50 an hour.

[12] As an aside, I note the Applicant’s contract provided for an annual bonus of $50,000 per year and for a pro rata bonus for any part year on termination (other than for serious misconduct) and that, on the face of the contract the Applicant was entitled to resign and receive a bonus in respect of the period from February to October 2014.

[13] On being informed of the Threat, Mr Garner instructed Mr Chisholm to check for the “security keys” (keys to the ATM and a code generator for internet banking). Mr Chisholm made a check of the safe and the office and could find neither the ATM keys nor the code generator. Mr Garner instructed him to go to the Applicant’s room and find the keys. Mr Garner then immediately arranged for the Respondent’s bank accounts to be frozen.

[14] Mr Chisholm went to the Applicant’s room and was told something that suggested the Applicant was already aware that the Respondent’s bank accounts had been frozen. The Applicant had the ATM keys and stated that the code generator was at the side of the computer in the office.

[15] I accept the Applicant’s evidence that it was usual practice for him to carry the ATM keys around with him (the replenishment of ATMs being part of the Applicant’s duties) and that the code generator had been beside the computer (and simply not observed by Mr Chisholm when he searched for it).

[16] Mr Chisholm had also discovered that passwords for relevant files on the Respondent’s office computer had been changed.

[17] In response to these events, Mr Garner told Mr Chisholm to instruct the Applicant to leave the office and remain in his quarters until he, Mr Garner, could get back to Mataranka and sort matters out. That instruction was given to the Applicant at about 9am on Saturday 11 October 2014.

[18] Mr Chisholm sought from the Applicant, and was provided, a list of passwords. The Applicant did not deny changing the passwords and claimed instead that he had provided all relevant passwords. I accept the evidence of both Mr Chisholm and Mr Garner that relevant files remained inaccessible because they did not have the passwords and that, eventually, it had been necessary to take the computer to a city to overcome the problem.

[19] Following these events, the Applicant remained in his quarters, effectively on suspension.

[20] On 14 or 15 October 2014, Mr Chisholm was advised by several of “the girls”, backpackers who were working as casual employees, that they had been informed by the Applicant that there was doubt about whether they would get paid. This information caused Mr Chisholm concern (lest those employees abandon their employment and leave the Respondent understaffed) and he conveyed this information to Mr Garner.

[21] Mr Garner’s evidence, which I accept, is that it was this last event that led him to decide, in consultation with Ms Moore, that the Applicant should be instructed to leave Mataranka, resulting in the SMS message of 15 October 2014, set out above.

[22] The Applicant agreed discussing the possibility that staff may not be paid with a single female co-worker, but on the basis that he was confined to his quarters and would not be able to prepare the pays.

[23] It is clear that Mr Garner was the ultimate decision maker in the Respondent’s business. I accept Mr Garner’s evidence that he did not intend to terminate the Applicant’s employment but only wanted to ensure that there was no further agitation of the casual staff prior to his (Mr Garner’s) return to Mataranka and the discussions that he intended and hoped would result in the Applicant’s issues being addressed and his employment continuing. Mr Garner was not overly concerned about the loss of the “bonus points”. He regarded the Applicant as a good employee and the difficulty and cost associated with finding a replacement far out-weighed the value of the bonus points that had been lost. I note that the Respondent has still not been able to replace the Applicant and that the absence of the book keeper at Mataranka has caused difficulty for the Respondent’s businesses.

[24] Nevertheless, it was reasonable for the Applicant to interpret the SMS as a termination of his employment. Whether or not employment is terminated is a matter to be assessed objectively by reference to the words and actions of the parties. A reasonable person in the position of the Applicant would have interpreted the SMS as notice of termination, as the Applicant did.

[25] The Applicant denied making the Threat to wipe the Respondent’s computer. The Applicant admitted changing passwords but claimed that he had given a list of all passwords to Mr Chisholm. The Applicant contended that Mr Chisholm’s evidence was unreliable because his employment was at risk if he did not back Mr Garner.

[26] I reject the submission that Mr Chisholm’s evidence is unreliable and should not be accepted. I found Mr Chisholm to be a compelling witness and I accept his evidence without hesitation. He fundamentally corroborated Mr Garner’s evidence.

[27] I am satisfied that the Applicant genuinely believed that the SMS was a response to the “bonus points” issue and genuinely believed that he did not bear responsibility for the loss of those points in the manner apparently suggested by Ms Moore. However, I am satisfied that the “bonus points” issue was not the operative reason for the sending of the SMS and that the SMS was sent in the circumstances explained by Mr Garner.

[28] I am satisfied on the evidence that the Applicant did attempt to blackmail the Respondent by making the serious threat referred to above and that this did constitute serious misconduct and a valid reason for his dismissal. I am also satisfied that the Applicant altered the passwords in order to increase the effectiveness of his threat, and did not provide all of the passwords when directed to do so. This also amounted to misconduct that is an aggravating circumstance.

[29] I have had regard to each of the matters set out in section 387. I have found that there was a valid reason for the dismissal. The Applicant was not given an opportunity to respond to the allegation because, as has been explained, Mr Garner did not intend that his employment be terminated. The Respondent operates a relatively small business that does not have dedicated human resource specialists and this undoubtedly affected the way in which the Respondent acted in the circumstances. I have taken account of the other matters relied upon by the parties.

[30] In all the circumstances I am satisfied that the dismissal was not harsh, unjust or unreasonable.

[31] It follows the application for relief must be dismissed and I do so.

VICE PRESIDENT

Appearances:

Mr V Cusson, the Applicant, appeared for himself

Mr S Garner appeared for Westbrick Pty Ltd

Hearing details:

2015

Sydney

17 February

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