[2012] FWA 10013

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FAIR WORK AUSTRALIA

DECISION

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

Charles Borg
v
NSW Greyhound Breeders, Owners & Trainers' Association
(U2012/7123)

DEPUTY PRESIDENT SAMS

SYDNEY, 5 DECEMBER 2012

Application for unfair dismissal remedy - jurisdiction -whether casual employee employed on a regular and systematic basis - regularly designated race meetings on specific days of the week for regular and systematic hours - person protected from unfair dismissal - failure to follow lawful and reasonable directions - valid reason for dismissal - length of service particularly relevant - denial of procedural fairness - dismissal procedurally unfair - order for reinstatement sought - reinstatement not appropriate - compensation ordered.

[1] Mr Charles Borg (the ‘applicant’) is 80 years of age and was employed by the New South Wales Greyhound Breeders, Owners and Trainers’ Association (the ‘respondent’) for over 40 years. For 20 of those years, the applicant had been the Kennel Supervisor at Wentworth Park Greyhound Race Track. His role involved supervising the operations of the kennel and managing around nine casual employees associated with the Friday and Saturday night greyhound race meetings. His hours of work usually commenced around 4:30pm on Friday and 5pm on Saturday, finishing up at around 11:30-11:45pm. He would work at various other times; for dog trials, at Easter and on occasional extra days doing odd jobs. He had no set roster, but was expected to be on hand to ensure the kennels were appropriately staffed and supervised. Every few years he would take five weeks off to go on holiday overseas. During these absences, another employee would supervise the kennels.

[2] In early March 2012, the respondent’s management decided to appoint a new Kennel Supervisor, Mr Martin Wright, and thereby rearrange the applicant’s work so he was to be supervised by Mr Wright and be subject to his direction. The applicant’s ongoing employment was dependent on his cooperation in this regard. While his remuneration and conditions were not reduced or altered at the time, this situation was to be reviewed in March 2013.

[3] However, following an unpleasant incident between the applicant and Mr Wright on 23 March 2012, the applicant was dismissed on 28 March 2012. There is evidentiary conflict about various conversations between the applicant and management representatives prior to his dismissal, to which I shall return to later, although these are not particularly decisive to my consideration of the matter.

[4] The terms of the applicant’s dismissal letter were as follows:

[1] On 13 April 2012, the applicant filed an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). He seeks reinstatement, or alternatively, the maximum amount of compensation available under s 392 of the Act.

[2] The respondent has raised a preliminary objection to the application on the grounds that the applicant was a casual employee who was not employed on a ‘regular and systematic basis’, as defined in s 384(2) of the Act and that he was therefore not a person protected from unfair dismissal. Notwithstanding this objection, I am otherwise satisfied that the applicant was a person protected from unfair dismissal in that he was covered by a modern award, pursuant to s 382(b) of the Act (the Racing Clubs Events Award 2010), and has certainly completed a minimum employment period (s 382(a)) and was dismissed at the initiative of the employer (s 386). Save for the earlier jurisdictional objection, which I will determine in due course, the applicant invokes subsection (b) of s 385 to claim his dismissal was ‘harsh, unjust and unreasonable’, both substantively and procedurally.

[3] The matter was originally listed for hearing in the August arbitration roster of Fair Work Australia but due to the unavailability of key witnesses was relisted, by consent, for hearing on 25-26 October 2012.

THE EVIDENCE

[4] The following persons provided written and oral evidence in the proceedings:

The applicant’s evidence

[1] In describing his working conditions and duties, the applicant said that he could not remember ever missing a night at work, except occasions when he was on holiday or when he was hospitalised for a triple bypass operation 17 years ago. At that time, the respondent had sent him flowers in hospital. Last year, when he turned 80, the respondent named a greyhound race after him and he felt very special and proud of this recognition.

[2] The applicant said that the first time the respondent raised the issue of changing his job was in late 2011, when Mr Browne told him to pick any other job he wanted. However, he expressed no interest in changing his job and it was simply left at that.

[3] In late February or early March 2012, Mr Scott and Mr Browne approached the applicant and requested he attend a meeting. He did so on 2 March. When he went to see Mr Scott and Mr Browne, he was told that Mr Wright was to be the new Kennel Supervisor, and although they promised the applicant the same wages and conditions, this arrangement would be reviewed in a year. The applicant questioned what he had done wrong and insisted that he didn’t want to change his job. Mr Scott assured him he had done nothing wrong, but that management wanted Mr Wright to be the new supervisor. Mr Browne told him he could do the ‘return gate’ and wash the dog rugs, but not attend to the ‘big gate’.

[4] The applicant said he was upset and confused. After 40 years of service, he had not expected this, particularly as he had done nothing wrong. Greyhound racing had been a big part of his life for a long time and he was worried that if he didn’t agree to Mr Scott’s proposal, he would lose his job. After some discussion, an agreement was reached in the following terms:

[1] At first, the applicant felt he was being rushed into taking the above letter, but he eventually did so the next day. He had known Mr Wright as a steward who had previously worked for the respondent. He queried being directed by Mr Wright when, on the days he worked, Mr Scott and Mr Browne were the managers on course. Nevertheless, the applicant believed everything went well in the handover period to Mr Wright.

[2] However, on Friday 23 March 2012, when Mr Wright instructed the applicant to do a particular job, he refused and replied that Mr Scott and Mr Browne had told him to do a different job (the return gate). At about 10pm Mr Browne came down to speak to him and they had a heated conversation to the following effect:

    Applicant:

You told me to do the return gate, so that’s what I’m doing.

    Browne:

You have to do what Martin tells you to do.

    Applicant:

You and Chris told me that I should do the rugs and the return gate and that’s what I’ve been doing. Listen Jeff, I did everything for you. I worked hours and hours and you never paid me. Why are you doing this to me?

    Browne:

Go home Charlie

The applicant said he was very upset by Mr Browne’s words, as he thought he and Mr Browne were friends.

[3] In any event, the applicant said he worked normally the following day (Saturday), Sunday and Monday. On Wednesday 28 March he called Mr Scott and they had the following conversation:

    Applicant:

Brenton, Wayne told me that he likes to work with me. He asked me ‘why did they do this to you?’ I don’t know why you got Martin.

    Scott:

I’ve been through all the information and I’m writing a letter to you to dismiss you.

    Applicant:

Dismiss me?

    Scott:

You refuse to work in the kennel. Don’t come to work on Friday. You can still work on the trials.

    Applicant:

Why don’t you forget all about it and things can go back to normal.

    Scott:

No.

[4] The applicant called back and spoke to Mr McKay about still doing the trials. Mr McKay went and spoke to Mr Scott and was told to tell the applicant ‘no’. The applicant received the termination letter on Friday 30 March 2012 (see para [4]).

[5] On 3 April 2012, the applicant went to the workplace to hand in some paperwork for a workers’ compensation claim he made due to a hernia he had suffered from moving heavy signs at work. He saw Mr Scott and asked for his job back. However, Mr Scott refused.

[6] The applicant said he was devastated by his dismissal after 40 years of hard work and after doing everything that was asked of him. He had worked since he was 14 years of age and had never been unemployed. He wanted his job back so as to be part of greyhound racing again.

[7] In a supplementary statement, the applicant updated his financial circumstances as follows. On 25 June 2012, he underwent surgery for a work related hernia. From the date of his dismissal to the date of his surgery, he received no income (12 weeks). From the date of his surgery, he received weekly compensation benefits from QBE of $420 a week from 10 September 2012 for 11 weeks, and thereafter had only received Centrelink benefits. It was agreed that the applicant’s weekly wage at the time of his dismissal was around $500.

[8] In oral evidence, the applicant said that the first time he spoke to a solicitor was in respect to this application and he had not mentioned a solicitor to Mr Browne when the agreement changing his job was reached on 7 March 2012.

[9] The applicant said that he stopped doing the night trial supervision when he went overseas a few years ago, and his replacement, Mr Richard Abacherli, continued to do the job, even after he returned. The applicant could not remember many of the conversations he had with the respondent’s witnesses. However, he denied criticising Mr Wright to Mr McKay.

[10] In cross examination, the applicant said that because he didn’t trust anyone else, he never left the kennels while at work. Nevertheless, he accepted that the stewards are in charge of ensuring the integrity of the races. He agreed that the management had always been fair to him and he had never had any problems with Mr Scott, Mr Browne or Mr McKay prior to March 2012. He also acknowledged that in 2000, Mr Browne assumed overall responsibility for the control of the kennel staff.

[11] The applicant acknowledged that, when his role changed, he was paid the same wages, worked under the same conditions, retained the same start and finish times and retained an entitlement to a free meal each night he worked. Even so, he was upset and confused that his job was changed after 40 years of service and having done nothing wrong. He also believed the change was made too quickly.

[12] The applicant conceded that he resented Mr Wright for taking over his role, although he didn’t have much to do with him. He believed he was responsible to Mr Browne and Mr Scott. The applicant was unclear as to conversations it was said he had with Mr Wright. However, he denied refusing to do what Mr Wright had asked of him. He said he only had one heated conversation with Mr Browne on 23 March 2012. He now believed Mr Browne had wanted to quickly get rid of him as soon as he turned 80.

[13] In a meeting with Mr Scott on 27 February 2012, the applicant agreed Mr Scott had not ‘sacked’ him and he said he just wanted to be fair to him and keep him on, but he had to cooperate with the changes. He met Mr Scott and Mr Browne on 2 March 2012 to discuss the change of role. He was offered a different role with the same pay and conditions, providing that he did not disrupt the effective running of the kennels.

[14] It was the applicant’s evidence that, because he had been there longer than the stewards, he didn’t trust them, including Mr Wright. He could not remember any conversations with anyone other than Mr Browne. He denied criticising Mr Wright to Mr Scott in a phone conversation on 28 March 2012. He could not recall the conversation with Mr Scott about his lack of cooperation and his ‘sacking’. He refuted the assertion that Mr Scott had offered to keep him on the trials. However, he had told Mr Scott that if he went from racing, he went from ‘the lot’. He agreed he said to Mr Scott ‘Well if you don’t want me anymore, you can sack me’ and Mr Scott had replied, ‘Charlie nobody is going to sack you’.

The respondent’s evidence

[15] Mr Scott outlined the role of the respondent as the major greyhound racing club in Australia. He said that an average Saturday race meeting attracts approximately $2 million in off course betting and consequently there is a duty on the Club to maintain the security of the greyhounds to ensure they are not interfered with. This is the primary responsibility of the kennel supervisor.

[16] In addition the kennel supervisor must:

[17] Mr Scott said the applicant had always been a casual employee and paid as such. Mr Scott believed a casual employee, who is not a regular and systematic casual, is one who is more a permanent, rather than a part time employee.

[18] Mr Scott said he initially broached the subject of changing the applicant’s role so to ensure a proper succession plan for the position. Mr Scott’s version of the first conversation with the applicant was as follows:

[1] Mr Scott believed the applicant was not taking in what he had said and so he arranged for Mr Browne to organise a meeting with him on 2 March 2012. He was prepared to offer the applicant the same wages with fewer duties, subject to him not disrupting the effective running of the kennels. Although Mr Scott wanted the change to be effective immediately, the applicant would not agree and a handover was agreed to over four race meetings. Mr Scott then went down to the kennels to inform the staff of the supervisory changes.

[2] Mr Scott said that during the period from 16-28 March 2012, he monitored the applicant’s performance to ensure he was working effectively under Mr Wright’s supervision. However, he was advised by Mr Browne of an incident on 23 March in which the applicant refused to take direction from Mr Wright. He was also advised by Mr McKay of inappropriate statements by the applicant about Mr Wright and he received an email from Mr Wright which made allegations of the applicant’s misrepresentation, insubordination and refusal to take direction.

[3] By 28 March 2012, Mr Scott had formed the view that the applicant was unable to work under the supervision of Mr Wright and he intended to speak to him again about the matter. However, the applicant phoned him that day and Mr Scott deposed as follows:

Mr Scott then advised the applicant that he would confirm his termination in writing and did so on 29 March 2012.

[4] In oral evidence, Mr Scott said that the new and emerging demands of the position of Kennel Supervisor convinced him of the need to have a full time person in that role, to be performed by someone that did not have any physical limitation in performing the duties. He said that when he offered the reduced role to the applicant, his intention was to be fair and reasonable to a long serving employee. An agreement was reached with the applicant, with no pressure on him to agree. However, he could not speculate on what might have happened if there had been no agreement.

[5] Mr Scott deposed that the offer was conditional on the applicant not being disruptive to the effective running of the kennels. However, this was put in the context of the increased demands on the Kennel Supervisor, the handling of risk management, the increased interaction with stewards and a greater focus on human resource management. He needed to be upfront with the applicant as to what was expected of him as a result of the changes. He understood that, after 40 years, the applicant would be upset by the changes. However, he had tried to manage the process in a responsible and fair way.

[6] Mr Scott further explained that when the applicant told him on 27 February that ‘if you didn’t want me, sack me, I’ll go’, he knew he would be facing a problem with someone that would struggle through the transition. He was willing to consider any alternatives, but the applicant didn’t offer any. In any event, an agreed arrangement was reached. He spoke to and observed the applicant at various times between 16-28 March. However, given the circumstances, this was not unusual. He was also receiving feedback from supervisors and line managers.

[7] As to the incident on 23 March 2012, Mr Scott said that he had wanted the issue to settle down over the weekend and he would address it by taking preliminary statements from Mr Wright, Mr Browne and Mr McKay. He conceded that he had not sought a statement from the applicant, but was developing the view that he would not work effectively under Mr Wright’s supervision.

[8] Mr Scott had intended to discuss the Friday night incident with the applicant as the circumstances were ‘pretty damning’. The applicant had been asked to do something by a supervisor, and he had not complied. A line manager had intervened and the applicant was uncooperative. Nevertheless, Mr Scott wanted to hear his side of the story. However, the opening comments of the applicant in the phone call that day, confirmed to him that the transition had not been effective. It was the applicant’s view that the incident was not very serious and just a minor ‘hiccup’ between two people. He had said ‘Let’s forget it and move on’. Mr Scott told him it was clear he was not moving on and he could not work with Mr Wright. The applicant became emotional when he wouldn’t accept the trials role. Mr Scott said that he was left with no alternative, but to terminate the applicant’s employment. It was Mr Scott’s evidence that the applicant even told him he had not read their letter of agreement of 7 March 2012.

[9] Mr Browne referred in his written statement to a conversation with the applicant on 9 March 2012 when he refused to accept the letter outlining the change to his position. The applicant had said: ‘I have been talking to my solicitor who told me not to sign anything or take anything. I want to remain as a kennel supervisor for 12 months and then I will retire.’

[10] Mr Browne said that on 23 March 2012, Mr Wright phoned him to advise that the applicant had refused to do anything other than the catching pen gate (which was a job normally performed by another employee who had returned to work following shoulder surgery). Mr Browne had suggested that given this injury, the other employee should not do the catching gate. Mr Wright agreed and asked him to come down and talk to the applicant. When Mr Browne tried to do so, the conversation became heated, so he asked him to come outside the kennels to talk. After an initial refusal, the applicant eventually came out and said ‘I will not have anything to do with Martin’. When Mr Browne told him he must obey Mr Wright’s directions, the applicant replied ‘I haven’t signed anything. Just sack me’. He appeared angry and distressed and kept speaking to himself, over and over. When he reminded him of their agreement, he insisted he hadn’t signed anything and said ‘just sack me’. Mr Browne replied that he was not sacked. Mr Browne said that in the conversation with the applicant on 23 March 2012, he was speaking loudly and not just because the kennels were usually a loud place. Mr Browne acknowledged that the applicant didn’t swear, or make any threats, but he did say he would not have anything to do with Mr Wright. Mr Browne then spoke to Mr Wright and they agreed to get through the weekend and deal with the problem in the following week.

[11] In reply to the applicant’s statement, Mr Browne said that when he commenced employment in 2000, the applicant was responsible for arranging kennel staff, but after two or three years he assumed that responsibility because of concerns with the existing arrangement. Mr Browne added that when he also referred to the applicant doing the ‘return gate’ it was just an example of what he could do, but always under the supervision of Mr Wright. In oral evidence

[12] Mr Wright deposed that from the time he commenced his duties as Kennel Supervisor he experienced difficulties with the applicant. The applicant had made an attempt to make him look bad, was dismissive of him and refused to follow his directions. It was expected that staff were to acknowledge the supervisor before work and at the end of the work for the night. While other staff had complied, the applicant had not. The applicant had also disregarded his direction not to stand by the scales, but to assist in kennelling. Mr Wright conceded, in cross examination, that he did not subsequently raise either of these matters with the applicant. There was also a requirement for kennel staff to sign in before commencing work, but the applicant had refused to do so after the matter was raised with him. In addition, Mr Wright said he often observed the applicant talking to other staff, when he should have been working.

[13] Mr Wright said that when he told the applicant he would be rotating staff across different roles, the applicant insisted that he would only be doing what Mr Scott and Mr Browne had told him to do (the small/run back gate and racing vest collection). When Mr Wright queried this, it was confirmed that the applicant was required to do such duties as Mr Wright assigned to him.

[14] As to the incident on 23 March 2012, Mr Wright said that the applicant refused to undertake other duties and Mr Wright sought to have Mr Browne attend the kennels to meet personally with the applicant. The applicant refused to meet Mr Browne and said there was no need for a meeting. When Mr Wright said he should attend, and it wouldn’t take long, he again refused. A heated exchange occurred between Mr Browne and the applicant in the presence of trainers. They both then went outside.

[15] It was Mr Wright’s evidence that he had verbally reported the difficulties he was having with the applicant to Mr Scott, Mr Browne and Mr McKay prior to sending an email to Mr Scott on 26 March 2012. Mr Wright believed the applicant was undermining his authority and impeding team development.

[16] In oral evidence, Mr Wright agreed it was his responsibility to deal with all kennel staff issues directly with the employee concerned. He had raised the issue of the applicant’s refusal to follow directions, but had not mentioned to him that staff were expected to acknowledge the supervisor before and after the shift. He had also directed the applicant not to stand by the scales. He had complied for a short while, then completely disregarded his direction not to do so. Mr Wright also raised with the applicant his refusal to sign in before commencing a shift, but he continued not to do so.

[17] Mr McKay described how another employee took over from the applicant as the trial supervisor in 2010. On 7 March 2011, there was an incident where the applicant refused to accept the new trial supervisor’s instructions and was abusive and used foul language. Mr McKay rang the applicant to express his disappointment and to warn him his behaviour was unacceptable. The applicant had acknowledged that his conduct was unsatisfactory and he assured Mr McKay he would behave in the future. In oral evidence, Mr McKay agreed that the applicant was not taken off the trial nights and he continued to work with Mr Abacherli without any serious problems.

[18] Mr McKay said that, prior to the applicant’s role changing, he had numerous discussions with the applicant about a ‘handover’ of his kennel supervisor duties. He had mentioned retirement to him and that a ‘handover’ plan was necessary. He hoped a mutually suitable arrangement could be worked out. However, the applicant believed he was doing a good job and did not want things to change. He had said if management wanted him to leave, he would.

[19] On 2 March 2012, Mr McKay had a conversation with the applicant about his duties and the applicant’s desire to do the catching pen gate and rug washing (for which he was paid a separate rate). Mr McKay said that, on four occasions, the applicant had criticised Mr Wright by saying things like: ‘He is no good, GRNSW got rid of him.’ Mr Wright had also expressed his frustration with the applicant and had said he didn’t think he wanted to remain in the job, if the applicant’s undermining of his authority continued.

[20] Mr McKay said he had general conversations with the applicant about doing other jobs, as everyone is asked to do so. Mr McKay was concerned that Mr Wright had told him that the applicant was undermining his authority and he might not be there much longer, if it continued. He understood these sentiments were conveyed to the CEO. As he merely needed to be aware of the problem, he did not speak directly to the applicant about Mr Wright’s complaint. However, he spoke regularly to the applicant and informed him he needed to work with Mr Wright and to stop saying things about him which were untrue. While not specifically warning the applicant about his job, the gist of their discussion was that if it didn’t work out, the applicant wouldn’t have a job.

SUBMISSIONS

For the applicant

[21] Ms E Meyer submitted that there was no valid reason for the applicant’s dismissal and even if there was, the dismissal was ‘harsh’ considering the applicant’s long period of unblemished service.

[22] Ms Meyer put that the applicant did not refuse to follow instructions from Mr Wright or Mr Browne as he was generally required to follow the directions of management. He did so by following the verbal instructions of Mr Browne and Mr McKay to wash the dog rugs and work at the return gate. On the night of the incident of 23 March 2012, he did not cause any disruption to the race night, as the heated discussion with Mr Browne occurred after the running of the last race.

[23] Ms Meyer asserted that the applicant’s conduct did not amount to misconduct, let alone serious misconduct. She noted that no action was taken by management until three days after the incident. In addition, Ms Meyer said that the incident must be seen in the context of the applicant’s demotion, without notice, two weeks earlier. The respondent’s actions in terminating the applicant after the incident were unreasonable. Management should have recognised that the applicant would be upset with such a demotion after 40 years of service. A more appropriate response to the incident would have been to either warn the applicant or arrange a meeting with him and Mr Wright to mediate the issues between them.

[24] Ms Meyer said that despite the applicant’s termination letter referring to feedback as to how he adjusted to the transition, no feedback was ever sought from him. This was unfair and the process lacked transparency. The unfairness was exacerbated by the applicant’s summary dismissal, over the phone, without warning, and without giving him an opportunity to respond or explain his version of the incident. Ms Meyer observed that the respondent is a large employer and has been in operation for 76 years in a highly regulated environment, requiring transparency and procedural fairness in its dealings with staff. Ms Meyer submitted that the applicant’s age and the unlikelihood of him securing alternative employment were significant factors in this case. It would seem that the respondent’s references to succession planning suggest that the applicant was demoted because of his age - a matter of age discrimination.

[25] Ms Meyer said that the applicant seeks an order for reinstatement from FWA. He has many years of experience in the industry, wants to remain in the industry and is willing to continue working for the respondent in the demoted position. Ms Meyer argued that there was no loss of trust and confidence in the employment relationship which would render the applicant’s reinstatement inappropriate; See: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. If the Tribunal considers that reinstatement would be inappropriate, Ms Meyer put that the applicant should receive an order for maximum compensation. She noted that if the applicant’s position had been changed so much as to make him redundant, he would have received 25 weeks pay according to the National Employment Standards (NES) and the relevant Award (20 weeks redundancy pay and 5 weeks notice). He would have continued to work for at least another year. Ms Meyer submitted that it would be extremely difficult for him to mitigate his losses. He is currently on the full age pension. He will be required to declare any award of compensation to Centrelink. Ms Meyer added that the amount of compensation should not be reduced because of any misconduct, because the incident on 23 March 2012 was just a heated conversation that involved no swearing or threats.

For the respondent

[26] Mr D English said that the position of Kennel Supervisor is vitally important for the integrity of the greyhound racing industry and the respondent had an obligation to ensure its operations were of the highest standards of integrity and security. Given the applicant’s age, it was entirely appropriate for the respondent to secure a proper succession plan. The change involved no financial disadvantage to the applicant, while his responsibilities were reduced. This was conditional on him being prepared to accept the supervision of the new Kennel Supervisor. He had agreed to the new arrangements, but then continually breached them. The respondent had no confidence that the applicant would fulfil his obligations and was left with no alternative but to dismiss him.

[27] Mr English submitted that there was a valid reason for the applicant’s dismissal as his insubordination and refusal to take directions adversely impacted on the kennel staff and the effective operation of the kennel; See: Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371. The applicant was aware of the importance of his continued co-operation. He was advised of his dismissal by Mr Scott on 28 March 2012 and it was confirmed, in writing, the next day.

[28] The applicant was given an opportunity to respond to the incident, but used the phone call to Mr Scott to further denigrate Mr Wright. He was offered, and refused, the opportunity for casual work in relation to the trials. Mr English put that, from 7 March 2012, the applicant was squarely on notice that he must cooperate in the effective operation of the kennels.

[29] Mr English said the respondent opposed the applicant’s reinstatement as he had demonstrated an inability to work under supervision. The respondent’s loss of confidence and trust in the applicant renders reinstatement impossible. The respondent also opposed any order of compensation. In further oral submissions, Mr English said that in the witness box the applicant was ambiguous about what role he wanted to be reinstated back to. He re-emphasised that the respondent had always acted fairly in its dealings with the applicant. When he would not accept his obligations, the respondent was left with little choice.

CONSIDERATION

Was the applicant’s employment as a casual employee on a regular and systematic basis?

[30] The respondent’s jurisdictional objection relates to the provisions of s 384 of the Act which provide as follows:

[31] The respondent submitted that the applicant was always, as were all the other kennel staff, employed on a casual basis and paid as a casual employee. Further, it was said that the applicant could choose when and how often he would work. This was demonstrated by the periods he was absent overseas, and at other times, without obtaining the approval of the employer. It was further submitted that any regular or systematic employment arose from the peculiar operation of the respondent’s activities, rather than from any agreement or arrangement between the applicant and the respondent.

[32] On the other hand, the applicant maintained he was employed on a permanent basis and the exclusion in s 384(2) of the Act is not whether the applicant was a casual, per se, but whether he was employed on a regular and systematic basis. The applicant’s submissions referred to a number of authorities as to the definition of true casual employment; See: Reed v Blue Line Cruises (1996) 73 IR 420; Hamzy v Tricon International Restaurants t/as KFC (2001) 115 FCA 1589; Williams v MacMahon Mining Services Pty Limited [2010] FCA 1321 (‘Williams v MacMahon’). The employer’s own evidence was that applicant’s employment was not subject to fluctuating rosters as Friday, Saturday and Monday night race meetings were known well in advance. The applicant was expected to be at work when he was required by the respondent’s race and trial schedules.

[33] It is helpful to understand the true nature of the applicant’s employment by reference to a number of authorities on the subject; albeit the earlier authorities were decided under a different statutory regime. In Robert James Power t/a Beta Frozen Products [2001] AIRC 772, a Full Bench of the Australian Industrial Relations Commission said at paragraph 9:

[34] Another Full Bench in Cetin v Ripon Pty Ltd [2003] AIRC 1195 (‘Cetin’) said at paragraph 59:

[35] Senior Deputy President Watson in Bailey v Red Earth Nominees Pty Ltd [2005] AIRC 933 referred to Cetin (supra above) and said at paragraphs 24 and 25:

[36] In the Federal Court Barker J said in Williams v MacMahon:

[37] With these considerations in mind, I have great trouble in grappling with the concept that an employee who was engaged for over 40 years at regularly designated race meetings, on set days of the week, for regular and specific hours, was not an employee protected from unfair dismissal.

[38] In my view, the respondent’s jurisdictional objection is not only very weak, but somewhat disingenuous. After all there was no contrary evidence to the applicant’s statement that he worked from 4.30 on Friday and 5pm on Saturday and finished work around 11.30pm - 11.45pm on race days. These race days are not only well known to the employees in advance, but they have been regular race days for years in New South Wales and commonly known Australia-wide, to those who have an interest in greyhound racing.

[39] Lest it be misunderstood, it must be emphasised that the relevant test under the Act, is not, as the respondent seemed to suggest, that the applicant was engaged as a casual and paid as a casual. If this was so, the statute would have plainly said so. Moreover, the test is not that there was evidence of some agreement or arrangement between the applicant and the respondent. Nowhere in the statute is there reference to the regular and systematic operation of the respondent’s activities as being the applicable test, as distinct to the true nature of the employment relationship. In the words of the Full Bench in Cetin there is nothing about this employment relationship which was ‘informal, uncertain or irregular’.

[40] In addition, it should not be forgotten that the whole tenor of the respondent’s evidence was to convince the Tribunal that it had always adopted a sympathetic and caring attitude to the applicant and sought to sensitively and carefully handle his transition from the kennel supervisor’s role. In some respects, this is true - at least before 2012. It is little wonder, therefore, that the applicant had a real and genuine expectation of ongoing employment; a feature of a permanent employment relationship, rather than one which could be ended at the whim of either party.

[41] For the foregoing reasons, I am satisfied that the applicant was a casual employee engaged on a regular and systematic basis and is therefore a person protected from unfair dismissal under the relevant provisions of the Act.

Was the dismissal harsh, unreasonable or unjust?

Preliminary observations

[42] I am prepared to accept the respondent’s submission that management had sought to carefully and sensitively manage the applicant’s transition, although the removal of the applicant’s kennel supervisory duties was effectively a demotion. He was a very long serving employee, whose understandable physical limitations (given his age) did not necessarily fit with the duties of kennel supervisor in a modern workplace environment. New responsibilities and increased demands on the kennel supervisor probably needed a fresh approach. However, as I shall later develop, the same careful sensitivity was not replicated in the lead up to, and including, the applicant’s dismissal.

[43] That said, in my view, the applicant was not prepared to change his practices of 40 years. Of course, I readily acknowledge that major change, after 40 years service was unlikely to be warmly embraced. It most certainly was not in this case. I accept the evidence that the applicant’s reaction was to say: ‘if you don’t want me - sack me’. As I have said, the changes proposed were a demotion, notwithstanding he suffered no loss of wages and conditions and had reduced duties. Nevertheless, in my opinion, the respondent was perfectly entitled to hire a new kennel supervisor and that the applicant was obliged to follow his directions. The problem was that it was obvious the applicant did not take kindly to being supervised, let alone being supervised by a former steward, being Mr Wright. He said he did not trust stewards. However, the decision of whether or not to follow the directions of Mr Wright was not one the applicant was entitled to make.

[44] As I have emphasised, the applicant was a very long-serving loyal, employee and, up to his demotion, it seems he had an exemplary employment record. There was little evidence to suggest the contrary. He loved his job and working with greyhounds was a big part of his life. In other circumstances, he could have expected to finish his career in a blaze of glory and praise for a job well done. It is little wonder then that he was absolutely devastated at losing more than a job, but a passion that was such an overwhelming part of his life. In my judgment, these matters bring sharply into focus the harshness of the applicant’s dismissal. I shall come back to this matter in due course.

[45] I now turn to the specific matters I am required to take into account under s387 of the Act. This section is expressed in the following terms:

[46] The meaning of ‘valid’ reason in subsection (a) of s 387 is to be found in the following extract from Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 where Northrop J at page 373 said:

[47] Subsections (b) (c) (d) and (e) of s 387 are matters going to whether the procedure adopted by an employer was fair. In this case, as I will shortly explain, I consider that the respondent’s actions denied the applicant procedural fairness. The requirement on an employer to afford procedural fairness to a dismissed employee is no inconsequential matter. Nor can the employer merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations; particularly where it was said, as it was here, that the applicant had engaged in misconduct. Moore J in Wadey v YWCA Canberra (1996) IRCA 568 identified these principles as follows:

[48] Finally, the overarching consideration in unfair dismissal applications is the statutory instruction in s381(2) of the Act to ensure that:

Was there a valid reason for the applicant’s dismissal?

[49] While Ms Meyer argued that there was no valid reason for the applicant’s dismissal, I do not apprehend her submissions went as far as to say that the employer was not entitled to insist that the applicant obeyed and complied with the reasonable directions of Mr Wright. In my view, the applicant’s refusal to follow directions on 23 March 2012 was not an isolated incident and Mr Wright’s evidence - which I accept - was that the applicant had consistently ignored, or failed to follow his directions. Indeed, the applicant’s contempt for Mr Wright was obvious from the applicant’s own evidence. It follows that I cannot accept that the 23 March 2012 incident was just a minor hiccup between two persons.

[50] It has been a long held industrial principle that an implied term of a contract of employment requires an employee to obey a lawful and reasonable instruction or direction of the employer. Obviously, the two key tests which arise from time to time is whether the instruction or direction is both lawful and reasonable. Often the test of ‘reasonableness’ is not so easily determined, as minds may differ as to what is reasonable, given a particular set of circumstances.

[51] The ‘reasonableness’ test is said to be what the ordinary objective bystander might consider as reasonable. It follows that a failure to follow a lawful and reasonable direction of the employer, or in this case, a repeated failure to do so, may constitute a repudiation of the contract by the employee and lead to the employer dismissing the employee. In this regard, I refer to a relatively old High Court case which still remains good law on this subject. In Adami v Mason DeLuxe Ltd 1929 HCA 45; 35 CLR 143 at pages 155-156, their Honours Gavan, Duffy and Starke JJ said:

[52] More recently, in Izdes v LG Bennett & Co Pty Limited t/as Alba Industries (1995) 61 IR 439, Beazley J said at p 451:

[53] Lest there be any doubt, I am well satisfied that Mr Wright’s directions to the applicant were both lawful and reasonable. The applicant’s failure to obey his directions constituted a repudiation of the employment contract which satisfied the test of the employer having a valid reason for his dismissal.

[54] Regrettably, as I earlier observed the applicant was simply unwilling to accept the supervision of Mr Wright. He was not only obliged to do so by the contractual terms of the employment relationship, but he had specifically agreed to do so, albeit reluctantly, following his agreement with management of 7 March 2012. By 28 March 2012, it was plain that the situation was becoming untenable. The applicant was a threat to the effective operation of the kennel and to Mr Wright’s authority. His attitude was undermining of management and could not be allowed to continue. While his evidence to the Tribunal was refreshingly frank, it did little to engender any confidence that he would ever change his behaviour and attitude towards Mr Wright. He was asked in cross examination: ‘So you resented Mr Wright, didn’t you? You resented Mr Wright being in charge?’ His answer unashamedly was yes. Drawing these conclusions together, I am satisfied that the respondent had a valid reason for the applicant’s dismissal.

Issues of procedural unfairness

[55] The applicant was notified of his dismissal by telephone on 28 March 2012, when Mr Scott told him that he had no choice but to dismiss him (subsection (b) of s 387). I accept the applicant’s first comments in the call were to further denigrate Mr Wright. On the other hand, I did not believe he was expressly asked to explain his version of the incident on 23 March 2012. I consider that Mr Scott was in too much of a hurry to establish the foundation for dismissing the applicant, without firstly:

[1] In my opinion, there are a number of obvious and serious criticisms of the respondent’s handling of the applicant’s dismissal. While I recognise the applicant initiated the call, dismissing an employee, particularly someone of such long standing, by telephone, was insensitive and inappropriate. I strongly caution employers against this means of communicating a dismissal to an employee.

[2] There is no dispute that while Mr Scott had taken statements from Mr Browne, Mr McKay and Mr Wright, he sought no statement from the applicant. This was unfair and a denial of natural justice. It is unclear whether the applicant was actually informed that the managers had made statements critical of him and I doubt that he was provided with the details of the statements’ contents.

[3] It seems clear enough that Mr Scott had effectively made up his mind shortly after the weekend of 24-25 March 2012 to dismiss the applicant after receiving these statements. Mr Scott frankly conceded as much. In addition, being aware of the recent history of the applicant’s relationship with Mr Wright, Mr Scott determined that the circumstances were overwhelmingly against the applicant. Whether the evidence was overwhelming, or whether seeking a statement from the applicant and inviting him to a disciplinary meeting would have changed the outcome, is really not the point. Frankly, I doubt that it would have. That said, there is a positive obligation on an employer to give an employee an opportunity to defend himself or herself; See: Wadey v YWCA, supra above. This was obviously not done and, in the statutory context, can lead to only one conclusion. The respondent was in plain breach of subsections (c) and (d) of s 387 of the Act.

[4] Curiously, it was also apparent that there did not appear to have been any urgency from management in dealing with the applicant’s alleged misconduct on Friday, 23 March 2012. He was not suspended pending an investigation. Indeed, he worked normally the next day, Saturday, Sunday and Monday. Given this lack of urgency, Mr Scott’s rush to judgement seems either convenient or opportunistic. In any event, there can be no doubt the applicant was denied procedural fairness. Notwithstanding this finding, I am nevertheless satisfied that the applicant was warned about his unsatisfactory performance; namely, his refusal to follow Mr Wright’s directions and he chose to ignore the warnings. He was squarely on notice as what was expected of him in the agreement he accepted on 7 March 2012 (subsection (e) of s 387).

[5] As to subsections (f) and (g) of s 387, the employer has over 250 employees and a Saturday off-course betting turnover of $2m. Although it was said that the employer does not have any dedicated human resource management specialists or expertise, it does seem curious that an employer of that size and significance did not seek some advice on how to appropriately handle the applicant’s dismissal. This observation should not be seen as a particular criticism of any of the management who gave evidence in the proceedings. I accept they honestly believed they were doing the right thing by the applicant. It is more likely a reflection of a very tricky and highly unusual set of circumstances. These circumstances may well have benefited from some specialist advice.

[6] The other matters I consider relevant to this matter (ss (h) of s 387) may be discerned from my earlier comments in this decision. For the aforementioned reasons, I conclude that the applicant’s dismissal on 28 March 2012, was procedurally unfair and therefore, unjust within the meaning of s 387 of the Act. I turn now to remedy.

What is the appropriate remedy?

[7] Section 391 requires the Tribunal to consider whether it would be appropriate to order the applicant’s reinstatement. It reads as follows:

[8] There is one overriding factor which tells against a reinstatement order being made. I cannot be confident that the applicant would accept his demotion, or more importantly accept the supervision of Mr Wright. His own evidence did not give me any comfort in this regard. He did not seem to accept that the incident on 23 March 2012 was an example of his disdain and disrespect towards Mr Wright. His description of the incident as ‘a minor hiccup’ between manager and employee is an incorrect understatement of the incident. It was indicative of his entire approach to having been demoted and his refusal to accept Mr Wright’s directions. The extent of the lack of trust and confidence in the applicant as revealed by the evidence, cannot ground his reinstatement, as being appropriate. I find accordingly.

[9] This leads then to whether compensation under s 392(1) should be ordered in this case and to what extent. Fair Work Australia must take into account the following factors when determining an appropriate amount of compensation.

[10] There was no submission put (nor do I think there could be one put) as to the viability of the employer’s enterprise being affected by an order of compensation, even at the maximum amount. It may be safely assumed that the employee’s viaibility is not relevant in this case (s 392(2)(a)).

[11] The applicant’s length of service (s 392(2)(b)) is obviously a relevant factor in this case. I would observe that, in my 14 years on the Bench, I have not encountered an unfair dismissal case involving an employee with such lengthy service.

[12] As to the remuneration the applicant would likely to have earned but for his dismissal, (s 392(2)(c)) it was Mr Browne’s evidence that the applicant had told him that he only intended to work for another year, leaving around March 2013. I accept Mr Browne’s evidence in this respect. I would consider that but for the need to change the kennel supervision, and the applicant’s reluctance to accept any change, he would have likely to have remained in employment until around March 2013. I note that he has more recently been on workers’ compensation, but is now fit to return to work on normal duties.

[13] Given the applicant’s age, I accept that it would be virtually impossible for him to mitigate his loss by seeking alternative employment. This is a relevant factor in my decision (s 392(2)(d)).

[14] I do not consider it appropriate to take into account the applicant’s receipt of workers’ compensation in the period after his dismissal. In my view, workers’ compensation is not ‘remuneration earned by the person from employment or other work’ for the purposes of s 392(2)(e). In any event, the order I propose, even if I was to take that amount into account, does not exceed the 26 weeks remuneration earned by the applicant prior to his dismissal.

[15] The other matters I have taken into account are that firstly, I accept the respondent’s evidence (Mr Browne and Mr Scott) that the applicant said on more than one occasion ‘Just sack me’. While I accept this was probably said in the ‘heat of the moment’ and in the context of losing his position as kennel supervisor, the respondent, at least at the time of the agreement made with the applicant on 7 March 2012, had no intention to, nor had it decided to dismiss him.

[16] Secondly, I do not accept Ms Meyer’s submission that if the applicant had been made redundant, he would have received 25 weeks pay (See para [55]). The applicant was not made redundant. His position was still required to be performed and was performed by Mr Wright. The applicant was dismissed for a valid reason and with cause.

[17] This leads me to have regard for the applicant’s misconduct as being a contributing factor and a valid reason for his ultimate dismissal. I hasten to add that I would not describe the applicant’s conduct as ‘serious’ or ‘wilful’ but misconduct nevertheless. I have taken this into account in determining an appropriate compensatory order. On one view a dismissal on notice might have been appropriate in this case (all other things being equal).

[18] For completeness, I take no account of any shock, distress, humiliation or any other analogous hurt caused by the applicant’s dismissal (subsection 4 of 392). The order I propose does not exceed the 26 weeks of remuneration the applicant received prior to his dismissal; that is the cap on any compensation order as set out in subsection 5 of s 392.

[19] Having regard for all of the circumstances in this case, and in applying the test of a ‘fair go all round’, I propose to order that the applicant receive compensation for his unfair dismissal of 16 weeks pay. During the course of the proceedings, I was informed that the applicant received around $500.00 a week and I shall use that figure to calculate the amount so ordered. If there is any disagreement about this approach, I grant liberty to apply within 7 days of today to either party. Otherwise these proceedings are concluded. An order giving effect to my decision in this matter will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Ms E Meyer, Solicitor, for the applicant.

Mr D English, Solicitor, for the respondent.

Hearing details:

2012.

Sydney:

October 25

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