[2012] FWA 10267 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Samuel Weerheim
v
S&J Scotts Dairies
(U2012/11663)
DEPUTY PRESIDENT HARRISON |
NEWCASTLE, 6 DECEMBER 2012 |
Application re unfair dismissal remedy - breach of Small Business Fair Dismissal Code - Compensation awarded.
[1] Mr Samuel Ferdinand Weerheim (the Applicant) was employed by S & J Scotts Dairies (the Employer) from September 2010 to 19 July 2012.
[2] From 1 December 2010 Mr Weerheim was appointed Dairy Manager. A letter of engagement dated 18 January 2011 1 sets out the responsibility for the Lumeah and Wantana dairies; Thornbro, a hay and silage farm; and elsewhere as required.
[3] The letter of engagement prescribes that employment is pursuant to the Pastoral Award (MA000035) (“the Award”) and applicable legislation which includes but is not limited to the National Employment Standards of the Fair Work Act 2009 (“the Act”).
[4] The application in this matter was filed on 24 July 2012, conciliation was unsuccessful and the matter then subject to hearing on 13 November 2012.
Representation
[5] Ms Zoe Daly appeared with and on behalf of the applicant.
[6] Mr Simon Clayer, Solicitor of ClarkeKann Lawyers, sought leave to appear on behalf of the Employer pursuant to s.596 of the Act. Mr Clayer’s appearance was opposed.
[7] Mr Clayer submitted that the matter involved complex issues of fact and law and additionally Mr John Scott, Company Secretary and Director of the Employer, was medically unable to represent himself.
[8] Mr Clayer tendered correspondence from Dr Peter Brown of Brook Medical Centre, Muswellbrook 2 confirming that Mr Scott had contracted Q Fever for which he was hospitalised in August 2012 and that this could well be to his disadvantage if required to represent himself.
[9] I was satisfied on the consideration of all relevant material that representation be allowed.
[10] Mr Clayer submitted that the application be dismissed as the Employer is a small business and had followed the Small Business Fair Dismissal Code.
The Code
[11] The Small Business Fair Dismissal Code (“the Code”) was declared by the Minister pursuant to s.388 of the Act, which states:
388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[12] The Code was declared on 24 June 2009 and came into operation on 1 July 2009. The Code states:
Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
[13] It is accepted that the Employer is a small business. The issue between the parties is whether the Code has been followed.
[14] The evidence of Mr John Scott is that he complied with the Code. Attached to Mr Scott’s witness statement 3 is the Small Business Fair Dismissal Code Checklist (“the Checklist”) in which Mr Scott records that he terminated the employment of Mr Weerheim due to unsatisfactory performance of his duties and answers the questions posed in the following terms4.
[15] To the question:
8. Did you dismiss the employee because of the employee’s unsatisfactory conduct, performance or capacity to do the job?
Mr Scott ticked “Yes”.
[16] To the next question:
If Yes
a. Did you clearly warn the employee (either verbally or in writing) that the employee was not doing the job properly and would have to improve his or her conduct or performance, or otherwise be dismissed?
Mr John Scott answered “Yes”; adding “On the 1st, 9th + 10th July”.
[17] To the question:
b. Did you provide the employee with a reasonable amount of time to improve his or her performance or conduct?
If yes, how much time was given?
Mr Scott ticked the “Yes” box and wrote “Yes - 19 days”.
[18] To the question:
c. Did you offer to provide the employee with any training or opportunity to develop his skills?
Mr Scott ticked the “No” box and wrote “see below” with an arrow pointing to the following comments:
* In order to help Sam fulfil his tasks, he was just given the Lumeah dairy to manage from the 1st July 2012.
[19] To the question:
d. Did the employee subsequently improve his or her performance or conduct?
Mr Scott ticked the “No” box.
[20] To the question:
e. Before you dismissed the employee, did you tell the employee the reason for the dismissal and give him or her an opportunity to respond?
Mr Scott ticked the “Yes” box.
[21] To the question:
f. Did you keep any records of warnings made to the employee or of discussions on how his or her conduct or performance could be improved?
Mr Scott ticked the “Yes” box and wrote “Diary entries”.
[22] Mr Scott’s evidence is that he first employed Mr Weerheim as a casual milker in September 2010 and then offered him a permanent position as Dairy Manager in January 2011.
[23] Mr Scott deposed that Mr Weerheim was paid $490 per week above the award rate, lived in a house on one of the properties at reduced rent, was provided with a fuel card and generous cash bonus of $400 per week based on production and milk quality.
[24] Mr Scott’s evidence is that Mr Weerheim’s performance was good at first but deteriorated over the winter of 2012.
[25] This is supported by the evidence of Mr Bill Scott (not related to Mr John Scott), a consultant employed by StockCo Limited to provide commercial advice to clients in Australia.
[26] Mr Bill Scott is based in Victoria and regularly travels to inspect properties and advise clients. He deposed that on his visit to the Employer’s properties on 22 April 2012 and prior he regarded farm management by Mr Weerheim to be good and Mr Weerheim to be enthusiastic and effective in his duties; but when he visited on 28 May 2012 production had fallen below target. His evidence is 5:
… I noticed that Sam was surprised when I raised things he would have known about had he been doing his job.
7. These included things like weeds in the new pasture, fences not keeping stock in, stock in the wrong mob, paddocks being grazed to very different residual levels. He blamed contractors for missing areas when spraying for weeds.
8. It appeared to me that Sam had lost interest in his job.
[27] Mr Weerheim conceded that he made a number of formal complaints to relevant authorities concerning the operation of the dairies. He referred a number of safety issues to Workcover, which it is put investigated but did not issue an infringement or improvement notice.
[28] Mr Weerheim sent a text memo to all staff on 27 July 2012 advising them to stop work until safety issues were addressed.
[29] Mr Weerheim made a complaint to the RSPCA concerning welfare of the cattle.
[30] Mr Weerheim denied that he made a complaint to John Flood Real Estate Agency that the house provided at Thornbro was unsafe to live in.
[31] Mr Weerheim denied that he made a complaint to StockCo asserting that Mr John Scott was falsifying cattle numbers.
[32] Mr Weerheim deposed that he requested Mr Bill Scott to be a witness for him. This request was refused on the basis of the commercial relationship between Mr Bill Scott and Mr John Scott.
[33] Mr Bill Scott’s evidence is that he declined Mr Weerheim’s request to be a witness for him as he was not prepared to say things that Mr Weerheim wanted him to say, such as that Mr John Scott was misrepresenting stock numbers and had not paid entitlements. The allegation in respect to the stock numbers led to Mr Bill Scott making an immediate trip from Victoria to Muswellbrook to verify stock numbers, which he put were found to be correct.
[34] Mr Weerheim accepted that on two occasions he contacted the manager of the Bengalla Mine, which owns the property upon which the dairy is located, to complain about occupational health and safety matters.
[35] Mr John Scott asserted that all allegations were without foundation.
[36] Mr Weerheim maintained that the allegations had substance; and put that they led to some remedial action by Mr John Scott, including additional feed for the cattle.
[37] Mr John Scott put that Mr Weerheim took leave from 24 June 2012 to 30 June 2012 and he managed the Lumeah Dairy; it was then that he noticed first hand how badly the property had deteriorated.
[38] Mr John Scott deposed that he met with Mr Weerheim on 1 July to discuss his reasons regarding the run down of the property and decline in milk production and in particular quality, which had deteriorated to levels which the manufacturers would refuse to collect.
[39] Mr John Scott’s evidence is that he received a daily email and text message from the manufacturers which he set up to automatically forward to Mr Weerheim; and he also had a group text on his phone to forward the information to all staff.
[40] Mr John Scott put that he told Mr Weerheim that he had possibly the worst performing herd in the district, deposing that 6:
16. To rectify this I gave Sam three specific tasks to fulfil. They were as follows:
a. He had to roster himself on for two milkings per week, plus a further two shifts to bring the cows into the dairy.
b. I told him to split the herd into two, one a fresh herd and one a stale herd (this is common practice in the dairying industry).
c. I wanted him to establish the whereabouts and condition of numerous electric reels and posts that had gone missing and to have the paddocks correctly electrified.
17. To assist Sam to achieve the above I relieved him of managing the rest of the farm to allow him to focus solely on the Lumeah Dairy and these important tasks. I also stressed the point that the current status of the Lumeah Dairy was unsustainable and that it had to change in order for him to keep his job.
[41] The evidence of Mr John Scott is, despite assurances from Mr Weerheim that all this would be fixed in a week, later that day Mr Weerheim tendered his resignation, which was accepted, and the recruitment process to obtain a replacement commenced.
[42] Mr John Scott’s evidence is that the resignation was later withdrawn and the withdrawal accepted on the basis that the above tasks be met. This evidence is supported by Mr Bill Scott who deposed that John Scott called him and asked for assistance in finding a replacement. Mr John Scott deposed that a person he thought might be available was not.
[43] Mr Weerheim denies that there was ever a resignation or any discussion of resignation between himself and Mr John Scott.
[44] The evidence of Mr John Scott is that a week later Mr Weerheim told him that he could not run two herds. This, Mr Scott put, was definitely achievable and basic dairy practice. It was at this time Mr Scott noted that Mr Weerheim had not rostered himself to do the two milkings a week as required. When challenged Mr Weerheim indicated that he would be in the dairy every day but did not meet the directive.
[45] Mr John Scott deposed that he held a second meeting with Mr Weerheim on 10 July 2012. At this meeting Mr Scott put he went through a list of issues which reflected how poorly the dairy was performing.
[46] These are noted in Mr John Scott’s diary on the page for 10 July 2012 7, as follows:
Sam
Tidiness around dairy
Skip bin
House - No good.
Irrigator sitting in water.
Elec Fences. Roster
Phil
Tails on cows
Cows exiting
Fence reels - must know
To speed recovery I will do Leumeah (House
[47] Mr John Scott put these were notes he made prior to the meeting to remind himself of the issues to raise with Mr Weerheim and are particularised in his Statement in the following terms 8:
26. At this meeting I went through a list of issues which reflected how poorly the dairy was performing. They were as follows:
a Tidiness around the dairy had deteriorated. Sam had been putting his own recyclables into the work bin which was not allowed and also set a poor example for other employees living on site.
b. There was an irrigator sitting in water which hadn’t been attended to.
c. Electric fences were still not up and operational, a must when containing cattle.
d. The fence reels were still unaccounted for.
e. Tails of the cows were still not being trimmed.
[48] When questioned Mr John Scott put that he did not make a note of the warnings to Mr Weerheim in his diary as he did not need a reminder to tell Mr Weerheim that his employment was at risk.
[49] Mr John Scott deposed that on Sunday, 15 July 2012 Mr Weerheim sought and was given approval to take four days off from Monday, 16 July 2012 to Thursday, 19 July 2012 which was confirmed in an email from Mr Weerheim on Sunday, 15 July 2012 thanking Mr Scott for the days off 9.
[50] In cross examination on this point Mr Weerheim insisted that he was at the staff meeting on 16 July 2012, putting that he could not recall all of the detail of that day but did remember the meeting.
[51] During his absence Mr John Scott deposed that he noticed the cattle at Lumeah were running as one herd not two as he had required; and that the other issues including rostering for milking and tidiness had not been attended to.
[52] Mr John Scott deposed that he met with Mr Weerheim on the morning of 19 July 2012 at which he put Mr Weerheim was fully prepared for his dismissal with a list of grievances about Mr Scott and his position.
[53] Mr John Scott deposed that he acknowledged that Mr Weerheim had been a good manager, however failure to nullify the issues and not following instructions meant dismissal; and then, as an act of goodwill, he suggested to Mr Weerheim that he inform the staff that the reason for him finishing was that “we don’t get along anymore”.
[54] Mr John Scott deposed that he completed the Checklist on 20 July 2012.
[55] On 15 August 2012 Mr John Scott received advice from the Fair Work Ombudsman of a complaint lodged by Mr Weerheim on 26 July 2012 that he had breached the Act and the Award.
[56] On 24 August 2012 Mr John Scott received advice from the Fair Work Ombudsman that its investigation had not revealed a breach of the Act or the Award 10.
[57] Mr Weerheim’s evidence, supported by that of his partner Ms Daly, is diametrically opposed to that of Mr John Scott.
[58] Mr Weerheim’s evidence is that he put an offer to Mr John Scott to manage the properties on the basis that he was paid a Christmas bonus of $20,000 to cover overtime, which he deposed Mr John Scott accepted, also offering to increase his salary to $50,000 per annum.
[59] Mr Weerheim denied that he had been given a warning on 1 July 2012 or was required to undertake the specific tasks referred to by Mr John Scott.
[60] Mr Weerheim deposed that he had suggested separating the herd but Mr John Scott had forbid it as it would incur additional cost.
[61] Mr Weerheim deposed that the meeting of 10 July 2012 simply did not happen. Supported by the evidence of Ms Daly, it is put that she and Mr Weerheim left the property on the afternoon of 9 July 2012 to go to Sydney to celebrate Ms Daly’s birthday; they remained in Sydney for the whole of the 10 July 2012 returning to the property on 11 July 2012.
[62] Mr Weerheim deposed that he and Mr John Scott had a good working relationship.
[63] Mr Weerheim deposed that he attended a routine team meeting on 16 July 2012, described in his Statement in the following terms 11:
8. I asked John after the team meeting with the employees and managers on 16.07.2012 if he could pay my superannuation, overtime and public holidays so I could afford to pay for my childrens law court lawyer. John said ‘I will not pay you any overtime or public holidays, and your superannuation will be paid when I can afford it, you must wait like everyone else.’ He then told me to have three days off, which I stated I don’t need. I took two days off.
9. On 19.07.2012 John asked to meet me at Wantana, He then said to me, ‘we need to part ways’.
I said ‘what is the reason for that?’
he said ‘Because we don’t get along anymore’,
I said, ‘why are you saying that when we have been getting along just fine and we have not been having any problems, and you said on Monday at the farm meeting in front of Laura Payne, and on several occasions in front of Brendon Picton that I go above and beyond my duties, I am the best manager you ever had, that you are extremely happy with my work ethic, how I deal with the employees very well, and manage the farm and the herds beyond your expectations’,
he said, Well, you have got the sack and that’s all there is to it’.
[64] Mr Weerheim deposed that he was shocked by the termination of his employment which came without warning.
[65] Mr Weerheim calculated the amount of unpaid overtime at $47,407.50.
[66] Mr Weerheim deposed that his attempts to recover the overtime were unsuccessful as he failed to make the claim in the required time. Clause 31.4 of the Award provides:
No employee will be entitled to payment for overtime, or equivalent time off instead, unless the employee makes a claim to the employer or their authorised representative either within two weeks after the overtime is alleged to have been performed or by the next date of payment of the employee’s wages, whichever is the later.
[67] Mr Weerheim put that he believed he had been misled by Mr John Scott into delaying his claim by promise of the Christmas bonus.
[68] Mr John Scott denied this allegation.
[69] This is not a matter which falls within the jurisdiction of these proceedings. However I note that it is an issue which bears negatively on the employment relationship.
[70] I also note Mr Clayer’s submission which refutes the assertion by Mr Weerheim that his employment was terminated because of his claim for overtime as there was in his submission no legitimate claim and accordingly no basis of motive on the part of Mr John Scott.
Consideration
[71] This matter descends to one of the credibility of the evidence.
[72] I accept the evidence of Mr Bill Scott that he noticed deterioration in the property and the attitude of Mr Weerheim between April and May 2012. This is supported by milk production and quality reports 12.
[73] There is no doubt that Mr Weerheim was disappointed with what he perceived as Mr John Scott’s failure to meet arrangements in respect to payment of overtime worked, superannuation and public holidays; and the relationship soured.
[74] Both litigants argue that the events the other relies upon could not have occurred on the dates deposed as they were not present.
[75] The taking of leave in the days prior to 19 July 2012 gives rise to some doubt. The leave, said to be from Monday, 16 July 2012, was approved by Mr John Scott. It appears inconsistent on the part of both Mr Weerheim to ask for leave, and Mr Scott to approve it, in the face of a warning that particular matters be corrected or termination would result. This is supportive of a conclusion that no specific warning was issued.
[76] The Code provides an advantage to small businesses provided it is followed, the essence of which is a warning to the employee and opportunity to rectify behaviour.
[77] The test to be applied is that of the balance of probabilities (see Briginshaw v Briginshaw 13).
[78] I am unable to come to the necessary comfortable satisfaction that a specific warning was afforded to Mr Weerheim.
[79] I am concerned that the diary entry of 10 July was completed prior to the event and does not include reference to a warning. Mr John Scott’s evidence that he did not need to remind himself to give the warning is unhelpful; the diary entry is only of use as a record of events, the value diminishes when it becomes no more than an aide memoir of intention.
[80] Mr John Scott completed the Checklist the day following Mr Weerheim’s dismissal. The Checklist records a warning, however, it is in respect to events of 19 July and no time is afforded to Mr Weerheim to rectify conduct.
[81] There is substance in the argument that, even if a warning was given on 1 July and 10 July, Mr Weerheim had limited time at work to be assessed.
[82] I have difficulty with Mr John Scott’s evidence that he did not provide a warning in writing as, being a small business, he did not operate that way. This is entirely inconsistent with the detailed and comprehensive letter of engagement provided to Mr Weerheim 14 and the evidence of daily text messages and emails to Mr Weerheim and staff concerning milk quality. .
[83] I further note that July 2012 was only a short time prior to Mr John Scott being hospitalised and diagnosed with Q Fever, which his medical report puts may well affect concentration.
[84] On balance I prefer the evidence of Mr Weerheim and Ms Daly.
[85] I determine that the Employer has failed to follow the Small Business Fair Dismissal Code and find that the termination of employment was harsh, unreasonable and unjust, making it unfair.
[86] In specific consideration of s.387 of the Act I find there was not a valid reason, within the meaning of that term in the Act, for termination of employment; the applicant was not notified of that reason, or given an opportunity to respond.
[87] There was no unreasonable refusal by the Employer to allow a support person.
[88] In regard to s.387(e) the Applicant was not warned in respect to unsatisfactory performance.
[89] In respect to s.387(f) and (g) the Employer has the benefit of the Code and accordingly these considerations do not have a material effect in the matter.
Remedy
[90] Neither reinstatement nor re-employment are sought.
[91] Having regard to the length of service and the circumstances of the termination I assess compensation at $5,000 (five thousand dollars) less taxation at the appropriate rate. An Order to this effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Ms Zoe Daly (Applicant)
Mr Simon Clayer
Solicitor
ClarkeKann Lawyers (Respondent)
Hearing details:
2012
Newcastle
13 November
1 Attachment to Exhibit 2, Statement of Evidence of Applicant
2 Exhibit 1
3 Exhibit 6
4 Exhibit 6 Attachment 6
5 Exhibit 7
6 Exhibit 6 pt 16
7 Exhibit 6 Attachment 3
8 Exhibit 6 pt 26
9 Exhibit 3
10 Exhibit 6 Attachment 7
11 Exhibit 2 pts 8, 9
12 Exhibit 6 Attachment 2
13 (1938) 60 CLR 336
14 Exhibit 2 Attachment 1
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