[2019] FWC 4901
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Carmen-May Olver: Mrs Linda Waldron
v
Perrotts Cartage Pty. Ltd. T/A Coast Cat Excavations
(U2019/2476; U2019/2485)

COMMISSIONER HUNT

BRISBANE, 3 SEPTEMBER 2019

Application for an unfair dismissal remedy – jurisdictional objection that applicants not dismissed at respondent’s initiative – jurisdictional objection dismissed – dismissal harsh, unjust and unreasonable – reinstatement not appropriate – compensation ordered.

[1] Mrs Carmen-May Olver and Mrs Linda Waldron have each made applications to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Perrotts Cartage Pty. Ltd. T/A Coast Cat Excavations (Coast Cat; the respondent) with respect to their alleged dismissals by the respondent.

Background and jurisdictional objection

[2] Mrs Olver and Mrs Waldron each lodged their applications to the Commission on 6 March 2019. The applications state that they were each notified of their dismissal from Coast Cat on 19 February 2019, with the dismissal taking effect on 27 February 2019. Both applicants allege that the reason given to them by Coast Cat for their dismissal was because of a lack of work.

[3] Due to the similarities between the applications, and the fact that Mrs Olver and Mrs Waldron are married to each other, I determined that it was appropriate for these matters to be dealt with and heard together. This decision is issued in respect of both applications.

[4] The applicants commenced employment with Coast Cat on or about 1 October 2013, working as casual labourers pursuant to the Building and Construction General On-Site Award 2010 (the Award). After a period of time, both applicants were provided with notice of their right to consider being made a permanent employee, however each elected to continue to be employed as a casual employee.

[5] Coast Cat made jurisdictional objections to both applications on the grounds that the applicants had not been dismissed at Coast Cat’s initiative or at all.

[6] Attempts to resolve these matters through conciliation were unsuccessful. These matters were listed for hearing before me in Brisbane on 21 June 2019. Mrs Olver and Mrs Waldron appeared on their own behalf. The following persons appeared on behalf of Coast Cat.

  Mr Mark Williams, former Supervisor of Coast Cat;

  Mr Robert Butler, former Supervisor of Coast Cat;

  Mrs Michelle Perrott, co-owner of Coast Cat.

[7] After obtaining the views of the parties, I decided to conduct the matter as a determinative conference.

[8] The applicants did not call any witnesses to give evidence in support of their applications. The following persons appeared and gave evidence for Coast Cat:

  Mr Mark Williams;

  Mr Robert Butler;

  Ms Michelle Perrott;

  Ms Lorna Kelly;

  Mr Antony Jacobson;

  Mr Jackson Waugh;

  Mr Craig Bradstreet;

  Mr Jesse Kelly.

[9] Prior to the determinative conference, Coast Cat filed one further witness statement, given by Mr Dakota Madison, who along with Mr Jesse Kelly had worked with the applicants on 18 and 19 February 2019. In his statement Mr Madison explained that he had experienced difficulties with the applicants which resulted in him leaving the worksite. Prior to the determinative conference, Coast Cat attempted to contact Mr Madison regarding his attendance to give evidence regarding these matters. Coast Cat was unable to contact Mr Madison, and informed my chambers that he could not be contacted and may be unavailable to give evidence.

Use of the Kanga and issues in February 2019

[10] Coast Cat uses several different excavation machines within its business. Mrs Olver and Mrs Waldron were both responsible for the operation of one of those machines; a ‘Kanga’ excavator (the Kanga). The applications deal in depth with the operation of Kanga machines. It is helpful to set out the parties’ evidence about Kanga operation here, as well as to provide a brief description of a Kanga machine.

[11] Kanga machines are smaller than many other excavation machines, such as bobcats or backhoes, and the operator is required to use their own body weight in addition to the control system to effectively use a Kanga. A Kanga operator is not enclosed within a cabin while operating the machine, and instead stands on a small platform at the rear of the Kanga. Operating a Kanga involves some danger to the operator and to other persons in proximity to the Kanga. Even persons familiar with the operation of other excavation machines require further training before they can safely and competently operate a Kanga. Mrs Olver and Mrs Waldron were the predominant Kanga operators within Coast Cat, and all parties agreed that ‘where the Kanga went, so did Mrs Olver and Mrs Waldron’.

[12] Whilst Mrs Olver’s legal name is Carmen-May, she goes by the name of Sharon.

Evidence of Mrs Olver and Mrs Waldron

[13] The applicants filed witness statements regarding their applications and appeared and gave evidence at the determinative conference. The evidence given by Mrs Olver and Mrs Waldron prior to and during the determinative conference was very similar, which is unsurprising given the similarities of their applications. It is helpful to set out both applicants’ evidence jointly.

[14] The applicants’ hours of work varied between 6:00am – 6:00pm Mondays through Fridays, and they occasionally worked Saturdays. Typically the applicants worked 50 hours per week.

[15] Both applicants were preparing to be off work on authorised leave between 21 – 26 February 2019. On 18 February 2019 they were instructed to train two new Coast Cat employees on the Kanga, and it was expected that those employees, Mr Madison and Mr Kelly would then operate the Kanga in the applicants’ absence.

[16] The applicants’ evidence is that Mr Kelly did not turn up to work on time and did not follow their instructions that day. The applicants reported this concern but no action was taken that day.

[17] On 19 February 2019 they were again tasked with training Mr Madison and Mr Kelly on the Kanga. Mrs Waldron stated during the course of the day she received the following text message from Mr Perrott, Director of Coast Cat:

Perrott:
(19/02/2019)

Make sure Jesse is getting a go on that Kanga so they can cover while you’re away

Waldron:
(19/02/2019)

As I told Rob he is

They were told to put up cage and silt at last job while we went and dropped off a cage, they turned up at this job and said they forgot to do it

They won’t listen

[18] Mrs Olver and Mrs Waldron stated that Mr Madison and Mr Kelly were given opportunity to use the Kanga for about four hours, but their work progressed slowly. Mrs Waldron stated that after four hours she took over operation of the Kanga and both Mr Madison and Mr Kelly ‘walked off the job without notification’.

[19] At approximately 4:15pm on 19 February 2019 Mr Butler texted Mrs Waldron and asked whether all of their work for the day had been completed. She replied by text that there had been one ‘site clean’ that they had not been able to complete in time.

[20] Mrs Waldron stated that they returned to Coast Cat’s yard on the afternoon of 19 February 2019 and were met there by Mr Butler. Mrs Waldron clarified at the determinative conference that she and Mrs Olver always returned to Coast Cat’s yard at the end of a work day. Mrs Waldron stated that after she and Mrs Olver returned she was met by Mr Butler and Mr Williams, and Mr Butler asked her what had happened with Mr Madison and Mr Kelly for them to leave the job. Mrs Waldron stated that Mr Butler told her that she and Mrs Olver had been setting up Mr Madison and Mr Kelly to fail at operating the Kanga.

[21] During this conversation Mrs Waldron said to Mr Butler words to the effect, “Well, I might call a sick day tomorrow. I can’t handle the stress.” 1 Both applicants then left the workplace. On the drive home, the following text messages were received from Mr Butler:

Butler:
(19/02/2019)

Hi Sharon,

Please leave me the site checklist tomorrow morning so I can get the typed up.

Thanks Robert [sic]

Butler:
(19/02/2019)

Hi Sharon,

Tomorrow morning please slide under the front door the site checklist so I can get the typed up and laminated.

Thanks Robert [sic]

[22] When she arrived home, Mrs Waldron sent the following text message to Mr Butler and the following text exchange took place:

Waldron:
(19/02/2019)

Hi I think we will have a mental health day tomorrow, can’t handle the stress, and the death stare we got from Laurna [sic] there was no need for

Butler:
(19/02/2019)

Well you will both be sadly missed.

Waldron:
(19/02/2019)
(5:52pm)

So are you sacking us

[23] Mr Butler did not respond to Mrs Waldron’s text message. Mrs Waldron sent the following text to Mr Perrott:

Waldron:
(19/02/2019)
(6:05pm)

I think Rob just sacked us is that right.?

[24] Mr Perrott did not respond to Mrs Waldron’s text message.

[25] With an expectation to return to work on 27 February 2019, Mrs Waldron sent the following text messages to Mr Butler:

Waldron:
(26/02/2019)
(4:45pm

What’s our job for tomorrow

Butler:
(27/02/2019)
(7:30am)

Hi Linda

Have no work for you, you are welcome to see Phil & I in the office tomorrow afternoon

Regards Robert

Waldron:
(27/02/2019)
(7:30am)

Hi Robert

What time do you and Phil want this meeting?

[26] Mrs Waldron’s evidence is that Mr Butler did not respond to her text message. Mrs Waldron sent the following text to Mr Perrott:

Waldron:
(27/02/2019)
(9:46am)

Rob said we were having a chat with you today regarding work what time do you want us there

[27] Mr Perrott did not respond to Mrs Waldron’s text message.

[28] While on leave, on 25 February 2019, Mrs Waldron stated that she received a telephone voice message from Drago from Terra Homes, a Coast Cat client, informing her that he had heard that she no longer had a job with Coast Cat. She mused to Mrs Olver that it looked like they no longer had jobs at Coast Cat. 2 Mrs Olver stated that she was informed by Drago that Coast Cat attempted to perform work on site for him on 27 February 2019 with two “boys”, and when they ended up breaking pipes and bringing a bobcat that was too large for the site, Drago then contracted with both the applicants to perform the work for him in March 2019.3

[29] Having concluded that they had each been dismissed, the applicants made their application to the Commission for unfair dismissal on 6 March 2019.

[30] Mrs Waldron stated that she started her own business, ‘Kanga Girls’ after 27 February 2019 performing excavation and related works with a Kanga machine which she purchased following 27 February 2019. Mrs Olver has performed some work for Kanga Girls. The business was established on 6 March 2019.

Cross-examination and evidence in response to Respondent’s evidence

[31] Mr Butler gave evidence that during the meeting on 19 February 2019, where Mrs Waldron stated that she might have a sick day the following day, she was drinking a beer and opened another beer during the meeting. It was at around 5.30pm. She denied that she had been holding several other beers in her hand, denied that Mr Butler had asked her to stop drinking during their discussion and denied that she had become abrupt, argumentative or belligerent. Mrs Waldron stated that it was not unusual for her to have opened a beer at around 5:30pm at Coast Cat’s yard. 4

[32] I put to Mrs Olver and Mrs Waldron the evidence of Mr Butler that Mrs Waldron had said to him on 19 February 2019 words to the effect, “We’ll have a sick day tomorrow and then start up our own business in competition.” Mrs Waldron recalled that she had commented about having the next day off, but denied that she had said anything about starting a business in competition with Coast Cat, or had had any intention to start a business at that time. 5

[33] I asked the applicants to clarify when they thought they had been dismissed. Mrs Waldron stated that she considered it to have been on 25 February 2019 when she heard from Drago that he had heard that they no longer worked at Coast Cat.

[34] I noted that Drago had not been called as a witness in these proceedings to give this evidence himself. However, I indicated to the parties that an issue had been raised as to whether the Kanga had been scheduled to perform work on 27 February 2019.

[35] Mrs Waldron submitted that typically if Coast Cat didn’t want employees any longer, they wouldn’t answer calls. 6

[36] The applicants further submitted that they had been advised that whilst they were on leave, the Kanga had been damaged while being towed on a trailer by one of Coast Cat’s utes. It was submitted that the Kanga should have been available for them to operate on their return from leave on 27 February 2019.

[37] I directed Coast Cat to produce copies of the diaries it used to record bookings for the Kanga to be used for the period of 27 February 2019 – 1 March 2019. Details regarding the use of the Kanga on and after 27 February 2019 are set out below in Mr Butler’s evidence.

[38] Mr Butler put to Mrs Waldron that after her final text message of 19 February 2019, “Hi Robert, what time do you and Phil want this meeting?”, he had called Mrs Waldron and had said that she should contact Mr Perrott to organise the time for a meeting as Mr Perrott had more constraints on his time than Mr Butler. 7

[39] Mrs Waldron confirmed that on 27 February 2019 she had texted Mr Perrott and inquired about a time for a meeting between her, Mrs Olver, Mr Butler and Mr Perrott. Mrs Waldron denied that Mr Butler had called her between the dates of 27 February 2019 – 1 March 2019 and had told her to organise the meeting with Mr Perrott. Mr Butler put to Mrs Waldron that Mr Perrott did not usually respond to text messages, and far more often communicated by phone calls. Mr Butler stated that if he texted Mr Perrott he would ordinarily receive a phone call in return. Mrs Waldron stated that she had received a text message from Mr Perrott on 19 February 2019, and alleged that at the very least Mr Perrott was texting her. 8

[40] A number of current and former employees of Coast Cat provided evidence to the Commission and gave evidence by telephone that the applicants were very difficult to work with. The applicants raised during the course of the determinative conference that there were similarities between statements given by the employees and former employees of Coast Cat, particularly that the statements referred to Mrs Olver as ‘Carmen’ or ‘Carmen-May’ which is Mrs Olver’s given name. Mrs Olver goes by the name ‘Sharon’ instead of her given name, and most of Coast Cat’s employees would only know her as ‘Sharon’. As a result of this matter, Ms Lorna Kelly of Coast Cat was called to give evidence about the steps she took to prepare statements given by Coast Cat employees. Ms Kelly’s evidence appears below at [82] – [84].

[41] In response to Mr Jacobson’s evidence that the applicants had refused to let Mr Jacobson gain experience on the Kanga, the applicants stated that they had been instructed by Mr Perrott at the time not to let anyone else use the Kanga. They denied having knowledge of any intention on Coast Cat’s part to order a second Kanga. 9
[42] Mr Waugh gave evidence about a labourer, Jordan, requesting not to work with the applicants again as a result of their behaviour. Mrs Waldron stated that she had not been working on the day in question as she had been off on workers’ compensation. On the day in question, she had taken a call from Jordan who was distraught as he could not find the address he needed to attend to meet with Mrs Olver. Mrs Waldron had told him to call Coast Cat’s office to obtain the correct site address.

[43] Mrs Olver stated that Jordan did eventually turn up to the site and was distressed when he arrived due to his late arrival and having not yet had lunch. Mrs Olver stated that she told Jordan to have lunch. After finishing their first job she and Jordan moved to their next job at a different address. They continued at that job, which was physically demanding, until about 6:00pm when it started to become dark. Jordan became stressed as time went on as he needed to go home. Mrs Olver stated that he became aggressive towards her and ‘started to yell’ and ‘puffed up his chest’. Mrs Olver stated that she told Jordan to ‘go away’ because he wouldn’t calm down, after which Jordan left the site. 10

[44] In response to Mr Kelly’s evidence regarding the Hope Island site they attended on 18 February 2019, Mrs Olver stated that she could not recall having a discussion with Mr Kelly about remaining on site with the permission of the security guard. 11

[45] Mrs Olver and Mrs Kelly disagreed with Mr Kelly’s evidence that they had referred to Mr Butler by inappropriate names. 12

Mitigation of loss

[46] Mrs Olver and Mrs Waldron gave evidence about the current state of the Kanga Girls business and their efforts to mitigate their loss.

[47] Mrs Olver stated that she had searched for further employment in newspapers and online but had not found further work following what she considered to be her dismissal by Coast Cat. Mrs Olver suffers from an ongoing medical condition which is exacerbated by stress, and the stress of her present circumstances had ‘brought out’ her condition and was making it more difficult for her to look for alternative work. Mrs Olver was assisting Mrs Waldron with the Kanga Girls business as much as she could, including occasionally operating the business’ Kanga. Mrs Olver could not give a precise estimate of the average hours per week she may work for Kanga Girls as the amount of work she performed varied due to her condition. 13

[48] The applicants confirmed that the ABN for the Kanga Girls business was registered on 6 March 2019. Both applicants had concluded on or very shortly after 27 February 2019 that they had been dismissed from Coast Cat and had worked to set up the Kanga Girls business on that assumption. Mrs Waldron reiterated that she had not considered starting the Kanga Girls business until after assuming she had been dismissed from Coast Cat. 14

[49] On 7 March 2019 the applicants borrowed money from Mrs Waldron’s mother to purchase a Kanga machine for the Kanga Girls business. On 6 March 2019, Mrs Waldron had given her bank advance notice of the transfer, due to the amount of money to be transferred.

[50] Prior to the conference, I directed the applicants produce to my chambers copies of their personal banking records showing their income since leaving Coast Cat and starting the Kanga Girls business. The banking records were produced to my chambers, and redacted copies of those banking records were served on all parties.

[51] During the determinative conference the applicants produced numbered invoices for work completed through the Kanga Girls business. There were 50 invoices produced which the applicants state match amounts paid into their bank account.

Evidence of Mr Butler

[52] Mr Butler stated that at the time of the applicants’ alleged dismissal he was employed by Coast Cat as a Supervisor and was responsible for allocating work to both of them. At the time of the determinative conference he was no longer employed by Coast Cat.

[53] On 18 February 2019 he gave the applicants their jobs for 19 February 2019, and told them that two other Coast Cat labourer employees would be following them in a second vehicle that day. He instructed the applicants to teach those labourers how to operate the Kanga, and how to drive an ‘Isuzu’ truck used by Coast Cat, so that those labourers could operate those machines while the applicants were on leave. Mr Butler stated that he suggested to Mrs Olver and Mrs Waldron that they should each travel in a vehicle with each of the labourers.

[54] Throughout 19 February 2019 he received several phone calls from Mr Madison and Mr Kelly, the two labourers, complaining that Mrs Olver and Mrs Waldron were bullying, harassing and badgering them, as well as making degrading comments towards them and calling them names. Mr Butler stated that he made several phone calls to the applicants regarding their issues with Mr Madison and Mr Kelly, and through those calls became aware that the applicants refused to instruct Mr Madison and Mr Kelly on the Kanga and the Isuzu truck or to brief them on client requirements and expected outcomes.

[55] Around lunchtime on 19 February 2019 he received a call from Mr Madison who informed him that he had walked off of site as a result of the applicants’ conduct. Mr Butler instructed Mr Madison to return to the site and pick up Mr Kelly and then return to Coast Cat’s premises to discuss their complaints. Mr Butler stated that Mr Madison and Mr Kelly returned to Coast Cat’s premises and gave written statements regarding the events of 19 February 2019 and refused to work with Mrs Olver and Mrs Waldron again.

[56] Mr Butler instructed the applicants that upon their return to the Coast Cat premises at the end of the day to meet with him and Mr Williams to discuss their issues with Mr Madison and Mr Kelly, amongst other things.

[57] Mr Butler stated that when Mrs Waldron entered the office she was drinking a stubbie of beer and had approximately four other bottles within a six-pack in her other hand. 15 Mr Butler asked Mrs Waldron to stop drinking while they discussed the allegations against them, which Mrs Waldron refused. Mr Butler stated that Mrs Olver and Mrs Waldron were abrupt, argumentative and belligerent towards himself and Mr Williams during their meeting.

[58] Mr Butler stated that Mrs Waldron commented that they would have a sick day tomorrow, being 20 February 2019, and then would start their own business in competition with Coast Cat. Mr Butler recalled that as Mrs Olver and Mrs Waldron left the office, Mrs Waldron said words to the effect, “We might take a mental health day tomorrow.” Mr Butler stated that he had given Mrs Olver and Mrs Waldron their jobs for 20 February 2019 before they left the office. During the evening of 19 February 2019 he received Mrs Waldron’s text message regarding taking a mental health day, set out above at [22].

[59] The applicants did not attend for work on 20 February 2019. The next time that Mr Butler heard from either Mrs Olver or Mrs Waldron was on 26 February 2019 when he received Mrs Waldron’s text message asking about the next day’s jobs, which he responded to as set out above at [25]. Mr Butler stated that neither he nor Coast Cat generally had any further contact with Mrs Olver and Mrs Waldron after 26 February 2019. Mr Butler stated that Mrs Olver and Mrs Waldron had not been dismissed from Coast Cat.

Cross-examination and further evidence given at conference

[60] In answering questions from me, Mr Butler recalled that the meeting of 19 February 2019 had started at some time between 4:30pm – 5:00pm. Mr Butler stated that it was not normal practice for employees to drink on Coast Cat’s premises at the end of a day and certainly not before 5:00pm. Mr Butler stated that he himself had drunk on Coast Cat’s premises on only one occasion which had been after 5:30pm. 16 Mr Butler conceded that he may not have participated in drinking at Coast Cat’s premises when other employees had done so on previous occasions.17

[61] I asked Mr Butler what Mrs Waldron had said for him to consider that she had been ‘abrupt, argumentative and belligerent’. Mr Butler could not recall any particular words that had been used, but stated that Mrs Waldron had been dismissive and argumentative. 18

[62] When asked by me, Mr Butler stated that he had not had any conversation with Drago suggesting that Mrs Olver and Mrs Waldron no longer worked for Coast Cat. 19

[63] Mr Butler confirmed that the applicants had predominantly operated the Kanga during January and February 2019.

[64] The applicants put to Mr Butler that a traffic accident had occurred while they were on leave which had involved the Kanga being towed on trailer by a Coast Cat ute, which Mrs Olver and Mrs Waldron believed demonstrated that the Kanga had been used while they were on leave.

[65] As described above at [37] I directed Coast Cat during the course of the conference to produce copies of its diaries used to record bookings for the Kanga for 27 February 2019 – 1 March 2019. I also directed Coast Cat to produce information about any traffic accident that the Kanga may have been involved in and when such an accident had occurred.

[66] Coast Cat produced copies of its diaries showing bookings for the Kanga from 27 February 2019 to 1 March 2019 and Mr Butler spoke to those documents. Coast Cat’s documents showed that the Kanga was not booked for use on any of 27 February, 28 February or 1 March 2019. Following the conference, Coast Cat produced to my chambers (and which was forwarded to the applicants) records of the Kanga’s bookings and usage from 27 February 2019 to 31 March 2019, excluding weekend days, which is set out in the table below. I assume that the reference to ‘repairs’ on 15 March 2019 may be related to the traffic incident.

Date:

Other details:

27/02/2019

Not used

28/02/2019

Not used

01/03/2019

Not used

04/03/2019

Not used

05/03/2019

Not used

06/03/2019

Not used

07/03/2019

Not used

08/03/2019

Not used

11/03/2019

Not used (wet weather)

12/03/2019

Used – slab backfill

13/03/2019

Used – slab backfill

14/03/2019

Used – slab backfill

15/03/2019

Not used – repairs

18/03/2019

Not used

19/03/2019

Not used

20/03/2019

Used – slab backfill

21/03/2019

Used – slab backfill

22/03/2019

Used – slab backfills

25/03/2019

Not used

26/03/2019

Used – slab backfill

27/03/2019

Not used

28/03/2019

Not used (wet weather)

29/03/2019

Not used

[67] I asked Mr Butler about any efforts he had made to arrange a meeting with Mrs Olver and Mrs Waldron following Mrs Waldron’s text message of 26 February 2019 to Mr Butler asking about a time for the proposed meeting with Mr Butler and Mr Perrott. Mr Butler stated that he recalled having telephoned Mrs Waldron on or about 27 February 2019, and had told her that she should contact Mr Perrott to organise a time for a meeting as Mr Perrott had more restricted availability than Mr Butler. Mr Butler recalled that Mrs Waldron had said to him that she would ‘try Phil’. Mr Butler confirmed that he had been unable to produce any phone records confirming that he had called Mrs Waldron. 20

[68] Mr Butler stated that the intention behind the proposed meeting between him, Mr Perrott and the applicants had been to discuss the applicants’ conduct towards Coast Cat’s younger labourers, the ‘mental health day’ that Mrs Olver and Mrs Waldron had taken on 20 February 2019, and Coast Cat’s lack of work for the applicants. 21 None of those matters were discussed as the proposed meeting was never held.

[69] I put to Mr Butler that the proposed meeting could have occurred had either he or Mr Perrott set a time for the meeting. Mr Butler acknowledged that neither he nor Mr Perrott had set a time for the proposed meeting, but conversely Mrs Olver and Mrs Waldron had not called him, Mr Perrott or Coast Cat’s office line to confirm a time for the proposed meeting. 22

Evidence of Mr Mark Williams

[70] Mr Williams stated that at the time of the applicants’ alleged dismissal he was employed as a Supervisor for Coast Cat. At the time of the determinative conference, Mr Williams was no longer employed by Coast Cat. During his employment with Coast Cat he shared an office with Mr Butler.

[71] Mr Williams was present with Mr Butler at Coast Cat’s offices on 19 February 2019. At a time between 5:00pm – 5:30pm Mrs Olver and Mrs Waldron entered the offices for a meeting with Mr Butler, which Mr Williams was also present for.

[72] Mr Williams stated that Mr Butler attempted to raise with the applicants issues regarding their behaviour towards other Coast Cat employees and their failure to provide Mr Butler with written instructions regarding their duties which would need to be completed by other employees during their period of leave. Mr Williams stated that Mr Butler tried to explain that the information and Kanga training they had been instructed to provide was to ensure that Coast Cat’s operations continued smoothly during their period of leave.

[73] Mr Williams stated that the applicants displayed belligerent and disrespectful attitudes towards Mr Butler during their discussion. Mr Williams recalled that they threatened to take a sick day on 20 February 2019. Mr Williams recalled that Mr Butler said to Mrs Olver and Mrs Waldron words to the effect that their attitude and poor co-operation would need to improve after they returned from leave. Mr Williams stated that dismissal was not discussed or mentioned in any way.

Cross-examination

[74] In answering questions from me, Mr Williams stated that he did not recall Mrs Waldron having said during the meeting of 19 February 2019 that she and Mrs Olver would start their own business. 23

[75] Mr Williams recalled that either Mrs Olver or Mrs Waldron had beer with them during the meeting of 19 February 2019. He did not clarify whether one or both of Mrs Olver and Mrs Waldron were drinking beer during the meeting. Mr Williams stated that it was a normal practice for Coast Cat employees to have a drink at the end of a day’s work from time to time. 24

[76] I questioned Mr Williams about what had been said on 19 February 2019 about Mrs Olver and Mrs Waldron taking the next day off of work. Mr Williams recalled that reference had been made to having the day off on 20 February 2019, but did not recall the words ‘mental health day’ having been mentioned during the meeting of 19 February 2019. 25

[77] When asked by me, Mr Williams stated that he had not had any conversation with Drago suggesting that Mrs Olver and Mrs Waldron no longer worked for Coast Cat. 26

[78] In answering questions from me, Mr Williams confirmed that the applicants had predominantly operated Coast Cat’s Kanga during January and February 2019. 27

Evidence of Mrs Michelle Perrott

[79] Mrs Perrott appeared at the determinative conference and gave evidence for Coast Cat. Mrs Perrott did not file a witness statement regarding these proceedings prior to the determinative conference.

[80] Mrs Perrott gave evidence about the intended purpose of the proposed meeting between Mr Butler, Mr Perrott and the applicants.

[81] Mrs Perrott gave evidence about the state of Coast Cat’s business as at the date of the determinative conference. Mrs Perrott stated that as at 21 June 2019, Coast Cat employed approximately 20 employees. Coast Cat’s employees were fairly evenly divided between office staff and employees working on plant. Mrs Perrott stated that Coast Cat was still experiencing a downturn in business and many of its machines were not utilised to their full extent. 28

Evidence of Ms Lorna Kelly

[82] Ms Lorna Kelly was contacted by phone to give evidence on behalf of Coast Cat at the determinative conference, regarding the steps she had taken to prepare statements on behalf of Coast Cat’s employees and former employees which had been submitted as the evidence of Coast Cat. Ms Kelly did not give a witness statement prior to the determinative conference.

[83] Ms Kelly stated that before the applicants made their application, Coast Cat had already had one handwritten statement regarding the conduct of Mrs Olver and Mrs Waldron, made by Mr Antony Jacobson. Ms Kelly stated that the four other statements produced by Coast Cat, that of Mr Madison, Mr Kelly, Mr Bradstreet and Mr Waugh, were made after Ms Kelly contacted those persons and asked them to make statements regarding Mrs Olver’s and Mrs Waldron’s applications. Those statements were produced either in writing by the respective employees which Ms Kelly later typed up, or Ms Kelly typed them up in the first instance during discussions with the relevant employees. 29

[84] Ms Kelly stated that Mr Jacobson had originally provided a signed, handwritten resignation letter to Coast Cat, which Ms Kelly had copied into a typed up version. Coast Cat later produced a copy of Mr Jacobson’s handwritten resignation letter. Mr Jacobson’s evidence regarding the resignation letter appears in his evidence below.

Evidence of Mr Antony Jacobson

[85] Mr Antony Jacobson appeared by phone and gave evidence at the determinative conference. Mr Jacobson did not give a witness statement in respect of this matter prior to the determinative conference. As noted in Ms Kelly’s evidence above, Coast Cat submitted in its material a copy of a resignation letter that Mr Jacobson had provided to Coast Cat prior to these proceedings. During the conference I and the parties referred to a typed, unsigned copy of Mr Jacobson’s resignation letter. Following the conference, Coast Cat produced to my chambers a copy of Mr Jacobson’s handwritten, signed resignation letter dated 3 October 2018, which my chambers forwarded to the applicants.

[86] Mr Jacobson confirmed that he resigned from his employment on 3 October 2018. He effected his resignation by providing his handwritten resignation letter to Mr Perrott. He worked for Coast Cat for a further two weeks after resigning. 30

[87] Mr Jacobson’s resignation letter stated in part: 31

“…I must bring to your attention the rude and abrupt attitude of the 2 female employees Sharon and Linda that I have worked alongside. They constantly team up and put others down, they hurled abusive remarks, swore at me constantly and didn’t want to train or teach me the job. They don’t follow procedures and just do it their own way. I apologise in bringing this matter up after resigning but feel you need to my resignation is due to the bullying I have received from Sharon and Linda whilst working for you. I wish good luck to the future staff if they have to work alongside these women as I had to.”

[88] The copy of Mr Jacobson’s resignation letter produced to me during the conference was a typed-up copy prepared by Ms Kelly. Notably, Ms Kelly’s typed-up version referred to Mrs Olver as ‘Carmen Olver’ whereas Mr Jacobson’s original letter referred to Mrs Olver as ‘Sharon’.

[89] During the conference, Mr Jacobson confirmed that he had resigned due to the behaviour he experienced from Mrs Olver and Mrs Waldron. Mr Jacobson stated, “I got abusive messages, I got abusive phone call from them. And like, you know, I go to work to do my job. I don't go to work to get abused and stuff like that. Just constantly putting you down. They wouldn't teach you. You couldn't do the job as good as what they could do. You couldn't push the wheelbarrow as good as they could do.” 32

[90] In cross-examination, Mrs Waldron put to Mr Jacobson that he had actually resigned from Coast Cat because he had found better paying work driving a forklift. Mr Jacobson stated that his other work had been part of the reason for his resignation, but maintained that part of the reason for his resignation had been the behaviour of Mrs Olver and Mrs Waldron.

[91] Mrs Waldron put to Mr Jacobson that they had not needed to train Mr Jacobson on the Kanga during his employment and he had only been tasked with assisting Mrs Olver and Mrs Waldron. Mr Jacobson responded that the applicants had known that Coast Cat had intended to order a second Kanga machine but had still not let Mr Jacobson gain any experience on the Kanga.

[92] In answering questions from me, Mr Jacobson confirmed that although he knew that Mrs Olver’s given name was ‘Carmen’, he always referred to her as ‘Sharon’. 33

Evidence of Mr Jackson Waugh

[93] Mr Jackson Waugh gave a witness statement in respect of these matters and appeared and gave evidence by phone at the conference. 34

[94] Mr Waugh manages ‘Recycling Developments’ which he stated is a related entity of Coast Cat. In his role he regularly receives requests from Coast Cat supervisors requesting the use of labourer employees to be used in Coast Cat’s operations. Mr Waugh stated that those labourer employees were usually tasked with assisting Mrs Olver and Mrs Waldron by performing ‘hard-labour’ work for them, and would be instructed by them.

[95] Mr Waugh stated that on several occasions he had been asked by labourers returning from work with the applicants to not be assigned to work with them again, as they had treated the relevant labourer with ‘utter disrespect’ and had bullied the labourer. Mr Waugh recalled an occasion where one of his labourers, Jordan, had walked off of site while working with Mrs Olver and Mrs Waldron and had returned to the ‘Recycling Developments’ yard. Jordan had been extremely upset about the treatment he had endured from the applicants and requested never to be sent out with them again.

[96] Mr Waugh gave further evidence about the incident with Jordan during the determinative conference. He stated that Jordan suffered from some anxiety and has Asperger’s syndrome. On the day in question, Jordan had returned to the Recycling Developments yard very distressed about Mrs Olver’s and Mrs Waldron’s treatment of him, and Mr Waugh had sent him home that day. Jordan later left Recycling Developments on mutual grounds. 35

[97] Mrs Waldron put to Mr Waugh that she had not been working on the day in question as she had been off on workers’ compensation. Mrs Olver put to Mr Waugh her evidence regarding Jordan leaving the site after dark and after he became aggressive towards Mrs Olver, as set out above at [43]. Mr Waugh stated that he was called by Jordan at approximately 4:00pm – 4:30pm, who told Mr Waugh that he had left the site. Mr Waugh maintained that Jordan must have left the site before dark. Mr Waugh stated that Jordan was ‘one of the most placid people he had met’ and doubted that Jordan would have ‘puffed up his chest’ at Mrs Olver. 36

[98] In cross-examination Mr Waugh confirmed that he had written out a statement in these proceedings but the typed-up version of the statement which was submitted to the Commission had been produced by Ms Lorna Kelly. Mr Waugh confirmed that he did not know who ‘Carmen-May’ or ‘Carmen’ Olver was and only knew Mrs Olver as ‘Sharon’, despite the fact that his statement referred to Mrs Olver as ‘Carmen’. 37

Evidence of Mr Craig Bradstreet

[99] Mr Craig Bradstreet gave a witness statement in respect of these matters and appeared and gave evidence by phone at the conference. 38

[100] Mr Bradstreet stated that he was employed as a supervisor with Coast Cat from 10 August 2018 to 7 January 2019, after which Mr Butler took over his role. While Mr Bradstreet was a supervisor with Coast Cat he was Mrs Olver’s direct supervisor. Part of Mr Bradstreet’s role was to delegate work for Coast Cat’s bobcat, labourers and small excavators including the Kanga, and which included allocating Mrs Olver with jobs to be completed each day. 39 Mr Bradstreet stated that Mrs Olver was required to inform him of any jobs not completed in a day, and she was also required to call Mr Bradstreet at the end of every day in case there were any additional jobs to be completed that day. In every case, Mrs Olver was required to call Mr Bradstreet before returning to Coast Cat’s yard.

[101] Mr Bradstreet stated that he found Mrs Olver was often angry, impolite and ill-mannered to him. Mrs Olver often failed to tell Mr Bradstreet which jobs had and had not been completed and often returned to Coast Cat’s yard without contacting him, which prevented him from assigning her additional work in the case that she completed all of her jobs early. Mr Bradstreet stated that she often made excuses as to why particular jobs couldn’t be completed which meant jobs carried over to other days, and often failed to appraise Mr Bradstreet of which jobs had and had not been completed. 40

[102] Mr Bradstreet stated that during his time as a supervisor he was aware of ‘four confirmed cases of bullying towards other staff members’ on the part of Mrs Olver; three of whom later resigned.

[103] In response to questions put by me, Mr Bradstreet confirmed that Ms Kelly assisted him to prepare his statement, although it was given in his words. Mr Bradstreet confirmed that he knew Mrs Olver as ‘Sharon’, despite his statement referring to her as ‘Carmen’.

[104] In cross-examination by Mrs Olver, Mr Bradstreet stated that the applicants were typically allocated between 5 – 10 jobs to complete per day. Mrs Olver put to Mr Bradstreet that each job took on average approximately two hours, and Mrs Olver and Mrs Waldron therefore were sometimes unable to complete all of their allocated jobs.

[105] Mr Bradstreet stated that he had discussed many times with the applicants that they were allocated jobs in decreasing order of importance, and that the first jobs allocated to them were important to complete on the day they were allocated. Mr Bradstreet stated that Mrs Olver and Mrs Waldron were allocated 5 – 10 jobs per day on the basis that they didn’t need to complete all of those jobs that day, and on the understanding that they may not be able to complete one or more of those jobs. Mr Bradstreet stated that the applicants would often attend a job only to inform Mr Bradstreet that they couldn’t do the job without labourers and would move on to the next job. 41

[106] In answering Mrs Waldron, Mr Bradstreet stated that the four cases of bullying he referred to in his statement had related to Jordan, Mr Jacobson, Mr Madison and Mr Kelly. Mr Bradstreet also referred to a fifth labourer, ‘Rodney’ whom Mr Bradstreet said had been ‘a little bit disappointed a couple of times he went to work with [Mrs Olver and Mrs Waldron]’. 42

[107] The applicants put to Mr Bradstreet that he could not have been aware of any bullying towards Mr Madison as Mr Madison had left Coast Cat in February 2019 and Mr Bradstreet himself left Coast Cat in January 2019. Mrs Olver and Mrs Waldron put to Mr Bradstreet that they had only worked with Mr Madison on two days, being 18 and 19 February 2019, and Mr Bradstreet could not have known of any alleged bullying of Mr Madison while he was at Coast Cat. 43 I indicated that I would give the relevant weight to Mr Bradstreet’s statements regarding alleged bullying of other Coast Cat employees.

[108] Mrs Olver put to Mr Bradstreet that by the time she had finished most days she had already worked for approximately 12 hours, and it was not reasonable for her to see if there was any further work she could complete that day since it was usually becoming dark when she finished and the Kanga could not be operated in the dark. Mrs Olver put to Mr Bradstreet that near to the end of day she was usually focussed on completing her final job given the length of her ordinary working days.

[109] Mr Bradstreet stated that the main problem he had had with Mrs Olver was her poor communication towards him and her failure to keep him appraised of what work she had and had not completed on any given day, and going home or returning to the Coast Cat yard without informing him that she had finished for the day. 44

[110] Mrs Olver asked Mr Bradstreet what he understood the word ‘abrupt’ to mean. Mr Bradstreet understood ‘abrupt’ to mean rude, short and without the time to explain what’s happening’. 45

[111] Mrs Olver and Mrs Waldron put to Mr Bradstreet that they had clearly communicated with Mr Bradstreet and Coast Cat about the status of their allocated jobs, including requirements for jobs to be completed if they could not complete them. The applicants put to Mr Bradstreet that a problem had been that Mr Bradstreet had not understood the nature of Mrs Olver’s and Mrs Waldron’s work with the Kanga.

[112] Mr Bradstreet stated that during his employment with Coast Cat he had planned to create a second team of employees that could operate the Kanga. Mr Bradstreet agreed that Coast Cat had had difficulty in training other employees on the Kanga, and stated that every time Coast Cat had sent an employee to be trained by Mrs Olver and Mrs Waldron on the use of the Kanga, the trainee would be bullied by Mrs Olver and Mrs Waldron.

[113] Mrs Olver put to Mr Bradstreet that it was impossible to effectively train someone on the use of a Kanga while on a worksite due to the nature of how the machine is operated and restrictions on how far away persons must remain from a Kanga while in operation. Mrs Olver put to Mr Bradstreet that the only effective way to learn to operate a Kanga was to allocate a specific time for training in a wide, open location, such as a paddock, not while on a job site. Mr Bradstreet stated that Mrs Olver and Mrs Waldron were supposed to have trained younger Coast Cat employees on the procedures of how they did their job, not necessarily the operation of the Kanga. Mrs Olver put to Mr Bradstreet that she and Mrs Waldron had done everything they could to teach younger Coast Cat employees about the procedures of their job.

[114] Mr Bradstreet maintained that no Coast Cat employee had been able to be trained on the use of the Kanga due to Mrs Olver’s and Mrs Waldron’s alleged bullying. When asked by Mrs Olver, Mr Bradstreet could not articulate how Mrs Olver and Mrs Waldron allegedly bullied any Coast Cat employee; he had only been told by the relevant Coast Cat employees that they had been bullied. When asked by Mrs Olver, Mr Bradstreet conceded that Mrs Olver and Mrs Waldron had not been ‘called in’ about any allegations of bullying against them, partly because Coast Cat still needed the Kanga to be operated by Mrs Olver and Mrs Waldron. 46

Evidence of Mr Jesse Kelly

[115] Mr Jesse Kelly gave a witness statement in respect of these proceedings. 47 Prior to the determinative conference, Coast Cat informed my chambers that Mr Kelly would be unavailable for cross-examination. During the conference, Coast Cat stated that the reasons he was unavailable were because he was needed at work, because Coast Cat had thought a conflict of interest would arise as Mr Kelly is the son of Ms Lorna Kelly, and because Coast Cat thought that Mrs Olver and Mrs Waldron just wanted to bully Mr Kelly again while giving evidence. I indicated to the parties that merely because Mr Kelly was required at work was not reason enough for him not to give evidence, and that he should be contacted and cross-examined if he was available. Mr Kelly was contacted by phone and gave evidence at the determinative conference.

[116] Mr Kelly was employed by Coast Cat as a labourer at all relevant times and remains employed by Coast Cat. Mr Kelly stated during the determinative conference that he had occasionally worked with Mrs Olver and Mrs Waldron over approximately eight months before February 2019. 48

[117] Mr Kelly stated that he had been instructed by Coast Cat to work with the applicants on 18 and 19 February 2019 and observe, listen, learn and be taught how to operate the Kanga by them. He stated that Mr Madison had also been instructed to work with the applicants to learn how to drive the Isuzu truck which was used to tow the Kanga.

[118] Mr Kelly stated that prior to 19 February 2019, he had been told by Mr Madison that Mr Madison had been getting bullied by the applicants for weeks; calling him names, making horrible comments and throwing his belongings around a work site.

[119] Mr Kelly stated that on 19 February 2019 he and Mr Madison were both bullied and harassed by Mrs Olver and Mrs Waldron, including purposefully being given incorrect information about the work they were to do, and ensuring their failure at certain tasks. Mr Kelly stated that he had never been so belittled or spoken to as rudely in his life as he was treated by the applicants.

[120] Mr Kelly stated that he was ‘stuck’ between Mr Butler instructing him to operate the Kanga and drive the truck, and the applicants refusing to let him operate the Kanga or drive the truck. Mr Kelly stated that Mr Butler called Mrs Olver and Mrs Waldron several times on 19 February 2019 ‘telling them off’ and instructing them again to teach him and Mr Madison as directed, but the applicants continued to refuse to teach Mr Kelly and Mr Madison.

[121] Mr Kelly stated that the applicants’ verbal abuse to him and Mr Madison escalated until Mr Madison left the work site in a ute. Mr Madison later returned to the site to pick up Mr Kelly. By the time Mr Madison returned, he too was also ready to walk off site as a result of Mrs Olver’s and Mrs Waldron’s alleged behaviour.

[122] Mr Kelly returned to the Coast Cat site with Mr Madison and they both met with Mr Perrott. Mr Kelly told Mr Perrott that he refused to work with Mrs Olver or Mrs Waldron again.

Cross-examination and further evidence given at conference

[123] During the determinative conference, Mr Butler asked Mr Kelly whether he had ever been present when Mr Butler had called Mrs Waldron, and Mrs Waldron had referred to Mr Butler by a different name, and what those names may have been? Mr Kelly agreed that he had been present on several such occasions and Mrs Waldron had at times referred to Mr Butler as ‘Robbie Buttfucker’, ‘Knob’ and other vulgarities which Mr Kelly could not remember. 49

[124] Mr Butler asked Mr Kelly whether he recalled a job he and Mr Madison had attended with Mrs Olver and Mrs Waldron on either 18 or 19 February 2019 at a property at Hope Island, QLD, and a discussion he and Mr Madison had had with a security guard at that site? Mr Kelly recalled that job and stated that while on site, a security guard for the property had approached him and Mr Madison, and informed them that if they needed to leave any later than they had been scheduled to remain on site, that they should let the security guard know and he would open the property’s gates so they could leave. Mr Kelly stated that he and Mr Madison relayed to Mrs Olver and Mrs Waldron that the security guard had given them permission to stay on site.

[125] In cross-examination, Mrs Olver put to Mr Kelly that the policy of the property they had attended on Hope Island was such that they needed to start to leave the property at 4:30pm and to have left the property by 5:00pm, so as not to disturb the property’s residents. Therefore the security guard could not have told Mr Kelly and Mr Madison that they could remain on site. Mr Kelly maintained that the security had told him they could stay on site, whether the security guard had been correct to allow that or not.

[126] Mrs Olver put to Mr Kelly that they had not been close to finishing the job they were completing at Hope Island and they could not have finished the job in the approximate extra one hour of time that they may have had available if the security guard had allowed them to remain on site. Mr Kelly recalled that he thought they may have been able to finish the job had they stayed for an extra hour, but conceded that he was not at the time experienced with the Kanga and could not accurately estimate how long the job may have taken to complete. 50

[127] Mrs Olver asked Mr Kelly whether he had made his witness statement and typed it up by himself? Mr Kelly stated that he had typed out his witness statement by himself at his home and without assistance. Mrs Olver put to Mr Kelly that he had referred to her as ‘Carmen’ within his statement and asked why he had used that name in his statement and not ‘Sharon’. Mr Kelly stated that he had heard the name ‘Carmen’ being thrown around Coast Cat’s office at the time he was making his statement and had used that name to refer to Mrs Olver on the understanding that ‘Carmen’ was her true name. 51

[128] Mrs Olver asked Mr Kelly how often he had operated the Kanga since February 2019? Mr Kelly stated that he had operated the Kanga ‘the majority of the time’ since there was no-one else to operate the Kanga. Particularly, Mr Kelly recalled that he had operated the Kanga on 20 February 2019 when Mrs Olver and Mrs Waldron had taken their ‘mental health day’. 52 Mr Kelly could not recall any other specific dates that he had operated the Kanga.53

[129] During re-examination by Mr Butler, Mr Kelly recalled that there had been some mechanical problems with the Kanga and the ute which was used to tow the Kanga, and there had been a resulting period of several days during which the Kanga was not used. 54

[130] During re-examination Mr Kelly gave further evidence about the events which precipitated Mr Madison walking off site on 19 February 2019. Mr Kelly stated that early in the day Mrs Olver and Mrs Waldron had pulled Mr Kelly aside and said to him, “We like you, you’re a keeper, but we do not like Dakota.” As the day progressed, Mr Kelly had witnessed Mrs Olver and Mrs Waldron belittling Mr Madison. Mr Kelly recalled that Mrs Waldron had said to Mr Madison words to the effect, “Go pick that up you little cunt”, “What the fuck are you doing?”, and other similar comments. Mr Kelly stated that Mr Madison withstood those comments for a time but eventually he said to Mrs Waldron that he had “had enough” and to “fuck off” before he left the work site in the ute. Mr Kelly recalled that he had been operating the Kanga at the time that Mr Madison left the site.

[131] Mr Kelly stated that after Mr Madison left the site he asked Mrs Olver and Mrs Waldron what had happened and they had said that Mr Madison ‘was just being an idiot’ and he considered that they downplayed the event. Mr Kelly stated that he called Mr Madison and then Mr Butler, who had told Mr Kelly not to make the situation worse, to call Mr Madison and have him pick Mr Kelly up and then to return to Coast Cat’s yard to discuss the matter. 55

[132] Further in cross-examination, Mrs Waldron put to Mr Kelly that he could not have heard what was said around the time Mr Kelly left the site as he had been operating the Kanga and the Kanga was too loud for the operator to hear a conversation. Mr Kelly stated that the Kanga’s ‘revs aren’t that high’ and he had heard the discussion as Mr Madison left the site.

[133] When asked by Mrs Olver, Mr Kelly stated that Mrs Waldron had been ‘standing over the top’ of Mr Madison while Mrs Olver was instructing Mr Kelly on the use of the Kanga. Mrs Olver put to Mr Kelly that Mr Madison had been standing on the elevated slab at the time, while Mrs Waldron had been standing on dirt about one foot below the slab, and so could not have ‘stood over’ Mr Madison. Mr Kelly stated that Mrs Waldron had had at least one foot on the ‘rebate’

Evidence of Mr Dakota Madison

[134] Mr Dakota Madison gave a witness statement in respect of these proceedings. 56 Since giving his statement Mr Madison had left the employ of Coast Cat. Mr Madison was not available for cross-examination and did not appear at the conference. I indicated to the parties that I would give the relevant weight to Mr Madison’s statement given that he was not available for cross-examination.

[135] Mr Madison stated that he was employed by Coast Cat as a labourer from 23 November 2018 until 22 February 2019.

[136] Mr Madison stated that during his employment he was on some days required to work with Mrs Olver and Mrs Waldron. Mr Madison stated that when he worked with Mrs Olver and Mrs Waldron, they continually swore at, yelled at, ridiculed, bullied and harassed him, and occasionally gave him incorrect instructions on purpose to ensure that he failed at tasks. Mr Madison stated that on one occasion, Mrs Olver and Mrs Waldron threw his lunch esky across a work site in anger, which had contained Mr Madison’s diabetes medication. Mr Madison stated that the applicants’ conduct towards him continued to escalate until 19 February 2019.

[137] On 19 February 2019 he was working with Mrs Olver and Mrs Waldron, who had been instructed to teach him and Mr Jesse Kelly how to use the Kanga and how to drive a truck owned by Coast Cat and used routinely by the applicants, prior to them going on leave. Mr Madison stated that the applicants refused to teach him and Mr Kelly about the use of the Kanga, despite them being called several times during the day by Mr Madison’s supervisor instructing Mrs Olver and Mrs Waldron to conduct the training.

[138] Mr Madison stated that the applicants became increasingly angry over the course of 19 February 2019, and would not stop swearing at him and bullying him. Eventually, Mr Madison ‘couldn’t take it anymore’ and he walked off of the worksite. He removed Mr Kelly’s belongings from the ute they had driven to the site and he left the site. Mr Madison called his supervisor and told him that he had left the site due to Mrs Olver’s and Mrs Waldron’s conduct. Mr Madison’s supervisor advised him to return to the site to pick up Mr Kelly before returning to Coast Cat’s yard to speak with the supervisor and Mr Perrott.

[139] Mr Madison and Mr Kelly returned to Coast Cat’s yard where he met with Mr Perrott. Mr Madison told Mr Perrott about the abuse he had suffered from the applicants. Mr Madison stated that he told Mr Perrott that he would never work with Mrs Olver and Mrs Waldron again and he would look for a different job before working with them again.

Legislation

[140] Section 385 of the Act sets out when a person will have been unfairly dismissed, and states:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[141] Section 386 of the Act sets out the meaning of ‘dismissed’ and states:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[142] Coast Cat is not a small business, and the applications have been made within the statutory time limit. It is not a case of genuine redundancy. It is necessary for the Commission to determine if there has been a dismissal in accordance with s.386 of the Act. If there has been, the further considerations are detailed below.

[143] Section 387 of the Act sets out the criteria that must be taken into account when considering whether a dismissal was harsh, unjust or unreasonable, and states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[144] The type of conduct that may fall within the words ‘harsh, unjust or unreasonable’ was outlined by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 57 as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[145] If I determine that there has been a dismissal in accordance with s.386 of the Act, I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 58

Submissions of the Applicants

[146] Mrs Olver and Mrs Waldron made submissions prior to the conference, and gave further oral submissions during the determinative conference.

s.386 – Was there a dismissal at Coast Cat’s initiative?

[147] Prior to the conference the applicants submitted that they had been dismissed as a result of the text messages set out above at [22] – [26] and Mr Butler’s and Mr Perrott’s failure to respond to Mrs Waldron’s texts asking whether she and Mrs Olver had been sacked. They submitted that Mr Butler’s text providing that Coast Cat ‘had no work for them’ confirmed that they had been dismissed.

[148] During the determinative conference I asked Mrs Waldron what actions Coast Cat had taken to dismiss her? Mrs Waldron stated that she and Mrs Olver had gone from working approximately 50 hours per week prior to 19 February 2019 to being told that there was no work for them following their period of leave. Mrs Waldron stated that she had understood Mr Butler’s text to mean that Coast Cat had no work for her or Mrs Olver at all. 59

[149] Mrs Waldron stated that she and Mrs Olver had been willing to meet with Mr Butler and Mr Perrott, but had received no response from them after inquiring about a time to meet with them. Mrs Olver and Mrs Waldron maintained that they had been dismissed at Coast Cat’s initiative.

s.387(a) - Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[150] Mrs Olver and Mrs Waldron submitted that there was no valid reason for their dismissal; they had simply gone from working 40 – 50 hours per week to being informed that there was no work for them. Mrs Waldron denied that she and Mrs Olver had acted inappropriately, bullied or harassed any other employee of Coast Cat and denied that those matters had been put to them as reasons for hers and Mrs Olver’s dismissal. 60

s.387(b) - Whether the person was notified of that reason

[151] Mrs Olver and Mrs Waldron submitted that they were not notified of any reason for their dismissal other than there was no work for them.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[152] The applicants did not specifically address this criterion in their submissions. I note Mrs Olver’s and Mrs Waldron’s submissions that they were not given any reasons for their dismissal, and Coast Cat’s submissions that no meeting was held regarding the issues involving the applicants before the end of their employment.

s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[153] The applicants did not specifically address this criterion in their submissions. However, all parties agree that there was no discussion relating to the applicants’ alleged dismissal.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[154] The applicants submitted that they had never received a verbal or written warning or had any problems with other staff. 61 Mrs Waldron disagreed that the discussions on 19 February 2019 regarding the applicants’ treatment of Mr Madison and Mr Kelly amounted to Coast Cat informing her and Mrs Olver of concerns about their conduct.62

s.387(f) - Whether Coast Cat’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[155] The applicants did not address this criterion in their submissions.

Remedy

[156] As described above at [51], the applicants produced copies of invoices issued by the Kanga Girls business from 7 March 2019 to 14 June 2019. I noted that the invoiced amounts would include costs for running the Kanga Girls business, which would not have been included in the applicants’ pay rate during their employment with Coast Cat. Mrs Olver and Mrs Waldron submitted that they charged $35.00 per hour for their services through the Kanga Girls business, and approximately 75% of that cost should be attributed to labour costs. 63

[157] Mrs Olver submitted that reinstatement would be an inappropriate remedy for her and Mrs Waldron in this matter. Mrs Olver submitted that Coast Cat continued to allege that there ‘was no work for them’ despite their willingness to reinstate her and Mrs Waldron. Mrs Olver submitted that Coast Cat would ‘just get rid of us’ if they were reinstated. 64

[158] The applicants submitted that they had each been employed by Coast Cat for approximately five years. They submitted that they would remain employed by Coast Cat had they not been dismissed.

Submissions of the Respondent

[159] Coast Cat made limited written submissions prior to the conference and gave further oral submissions during the determinative conference.

s.386 – Was there a dismissal at Coast Cat’s initiative?

[160] Coast Cat’s submissions prior to the conference were limited to maintaining that the applicants had not been dismissed at Coast Cat’s initiative. Coast Cat submitted that Mr Butler had texted Mrs Waldron on 26 February 2019 asking her and Mrs Olver to come in to Coast Cat’s office the next afternoon to speak with him and Mr Perrott, but Mrs Waldron and Mrs Olver had simply not turned up.

[161] Coast Cat’s submissions regarding this matter during the determinative conference were articulated by Mr Butler, and appear in Mr Butler’s evidence above at [52] – [69]. Coast Cat submitted that neither of the applicants had taken any significant step to attempt to arrange a meeting with Mr Butler and Mr Perrott after returning from leave, and that they had simply resigned from Coast Cat and started their own business. 65

[162] I noted to Coast Cat that its jurisdictional objection that the applicants had not been dismissed at its initiative created a difficult position for Coast Cat; to argue on the one hand that there were no dismissals but also to argue in the alternative that if the applicants were dismissed, then such dismissals were not harsh, unjust or unreasonable. I sought Coast Cat’s submission on each of the criteria set out in s.387 of the Act.

s.387(a) - Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[163] Coast Cat did not address this criterion in its written submissions prior to the determinative conference, and maintained during the determinative conference that it could not respond to this criterion as no dismissal had occurred. 66 Mrs Perrott stated during the conference that Mrs Olver’s and Mrs Waldron’s previous jobs were ‘still there’ and they could return to work, although Coast Cat did not have a lot of work booked in.67

s.387(b) - Whether the person was notified of that reason

[164] Coast Cat did not address this criterion in its written submissions prior to the determinative conference, and maintained during the determinative conference that it could not respond to this criterion as no dismissal had occurred. 68 During the determinative conference, Mr Butler and Mrs Perrott stated that there had not been any notification of dismissal.69

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[165] I noted that even though Coast Cat submitted that there had been no dismissal, I could consider relevant to this criterion the evidence before me that Coast Cat had had some issues with Mrs Olver’s and Mrs Waldron’s conduct on 18 – 19 February 2019. Mrs Perrott acknowledged that there had been a lot of issues that had not been addressed with the applicants and other staff. Mrs Perrott submitted that there had not been time to address those issues with Mrs Olver and Mrs Waldron due to their ‘mental health day’ on 20 February 2019, and their subsequent period of leave, following which they did not return to Coast Cat and no meeting occurred. 70

s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[166] Coast Cat submitted that there had been no discussion regarding Mrs Olver’s and Mrs Waldron’s dismissal, so this criterion had no bearing on these matters. 71

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[167] Coast Cat submitted that there were three unresolved issues involving the applicants that had still needed to be resolved at the time their employment ended. Had Mrs Olver and Mrs Waldron returned to work, a ‘process’ would have been initiated on the day that the applicants were scheduled to return to work and that ‘process’ remained unresolved.

s.387(f) - Whether Coast Cat’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[168] Coast submitted that it did not have access to dedicated human resources personnel or expertise at the time of the applicants’ alleged dismissal. 72

s.387(h) - Other matters

[169] Coast Cat submitted that its business and other machinery usage had experienced a general downturn during the early months of 2019 and it had not been only the Kanga that was not used extensively during late February and March 2019. 73

Remedy

[170] Mrs Perrott stated during the determinative conference that the applicants’ jobs were still there, and they could be reinstated to their former positions if they wanted to be. 74

[171] Coast Cat confirmed that if Coast Cat’s issues with the conduct of the applicants could have been resolved satisfactorily, they would still be working for Coast Cat. 75

[172] Coast Cat submitted that any order of compensation ‘would put them back a little bit’ but did not specifically address the financial impact of an order of compensation on the viability of its enterprise. When asked by me, Mrs Perrott stated Coast Cat had an associated entity. 76

[173] Coast Cat agreed that the applicants had worked for Coast Cat for approximately five years, although submitted that there had been a period of time during 2014 that their hours had been significantly reduced due a downturn in Coast Cat’s business. 77

[174] In relation to the applicants’ mitigation of loss and their earnings through the Kanga Girls business, Coast Cat conceded that I should take into account the costs of running a business when considering Mrs Olver’s and Mrs Waldron’s charge out rate in the Kanga Girls business. 78

Consideration

[175] I must first consider whether Mrs Olver and Mrs Waldron were dismissed from their employment at Coast Cat’s initiative before I can consider whether the alleged dismissals of Mrs Olver and Mrs Waldron were harsh, unjust or unreasonable.

[176] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) 79 (Mohazab), a Full Bench of the Industrial Relations Court of Australia, as this Commission then was, considered that a termination is at the employer’s initiative when:

  the employer’s action ‘directly and consequentially’ results in the termination of employment, and

  had the employer not taken this action, the employee would have remained employed.

[177] In O’Meara v Stanley Works Pty Ltd 80 (O’Meara), a Full Bench of the Australian Industrial Relations Commission, as this Commission then was, considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:

“[23] …some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”

[178] While the question of whether an act of the employer results directly or consequentially in the termination of employment is an important consideration, I must consider all of the circumstances in this scenario including the conduct of the applicants and of Coast Cat. 81

[179] For these matters, I must determine whether the applicants were dismissed as a result of the text messages involving Mrs Waldron, Mr Butler and Mr Perrott from 19 February 2019 to 27 February 2019, and perhaps particularly Mr Butler’s text message of 27 February 2019 to Mrs Waldron, “...Have no work for you, you are welcome to see Phil & I in the office tomorrow afternoon…”.

[180] Mr Butler’s text message must be considered in the context of the other text messages between him and Mrs Waldron, and Mrs Waldron’s text messages to Mr Perrot, and the discussions of 19 February 2019 regarding the applicants’ conduct towards Mr Madison and Mr Kelly. Either during or following the meeting of 19 February 2019, Mrs Waldron, on behalf of herself and Mrs Olver informed Coast Cat that they would be taking a ‘mental health day’ on 20 February 2019. Mr Butler responded to Mrs Waldron, “Well you will both be sadly missed.” Shortly thereafter Mrs Waldron sent a text message to Mr Butler asking whether she and Mrs Olver had been sacked. After receiving no response from Mr Butler she asked the same question in a text message to Mr Perrott, who also did not respond.

[181] None of the parties attempted to discuss the applicants’ employment for the majority of the time that the applicants were on leave. At approximately 4:45pm on 26 February 2019, the day before the applicants were scheduled to return from leave, Mrs Waldron inquired of Mr Butler what their jobs were for the next day. It was not until the next day, on the morning of 27 February 2019 that Mr Butler responded to Mrs Waldron that Coast Cat had no work for her (and it is to be taken to include Mrs Olver).

[182] Mrs Waldron immediately replied to Mr Butler and asked what time he and Mr Perrott wanted to meet with her and Mrs Olver. After receiving no reply from Mr Butler, Mrs Waldron attempted to clarify the time for the proposed meeting with Mr Perrott, but again received no reply.

[183] I note Mr Butler’s evidence that he called Mrs Waldron on or about 27 February 2019 after Mrs Waldron’s text to Mr Butler asking what time he and Mr Perrott wanted to meet with her and Mrs Olver and told Mrs Waldron that she should call Mr Perrott to arrange a time for the meeting. I note that Mrs Waldron denied having received a phone call from Mr Butler on or about 27 February 2019. Mr Butler was unable to provide any records of a telephone call to Mrs Waldron, and I accept Mrs Waldron’s evidence that no phone call was made by Mr Butler.

[184] In any event, Mrs Waldron sent a text message to Mr Perrott on 27 February 2019 asking when she and Mrs Olver should attend Coast Cat’s yard for the proposed meeting, which Mr Perrott did not respond to.

[185] I have determined that Mr Butler and Mr Perrott effectively ignored the applicants on their return from leave by not organising with them a meeting to discuss various issues, including Mr Butler’s concerns relevant to the treatment of younger workers. I accept on the evidence before the Commission that the Kanga was not in use during the relevant period 27 February – 6 March 2019, and there was no work available for the applicants.

[186] I do not accept, however, even taking into consideration the employment was casual employment, that Coast Cat could simply ignore the applicants and await their lack of interest in returning to conclude that the applicants resigned their employment. The applicants had been regularly and systematically employed for a period of five years, and they genuinely had a reasonable expectation of continuing work. The applicants reasonably concluded that they were being ignored by Coast Cat.

[187] I determine that there was a dismissal at the initiative of Coast Cat and that it took effect on 27 February 2019.

Was each of the applicants’ dismissal unfair?

s.387(a) - Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[188] Having heard the evidence of the reasonable number of young workers who spoke to the very poor treatment of them by the applicants, I am certain that on the afternoon of 19 February 2019, Mr Butler was considering it important to take appropriate steps to address these concerns. The applicants were expected to work 20 February 2019, and then take a small amount of days off work. When neither of them attended for work on 20 February 2019, having given notice of their non-attendance, it is not unreasonable to conclude that the matters to be addressed would have been addressed on their return to work on 27 February 2019.

[189] Numerous complaints had been made to Coast Cat about the applicants’ conduct. Mr Butler was aware of some of the complaints, but it is not clear on the evidence that he had before him all of the information presently before the Commission.

[190] I have had regard to the evidence of the various complainants, and excluding Mr Madison because he was unavailable for cross-examination, I accept that the applicants treated the labourers poorly, and they were incredibly protective over the duties operating the Kanga. In essence, it appears to me that the applicants wanted to make themselves indispensable on the Kanga, and made it very difficult for younger, inexperienced labourers to gain the relevant and necessary experience that Coast Cat wanted them to obtain.

[191] During the hearing I had the following exchange with Mrs Waldron: 82

THE COMMISSIONER: 

“What do you say, particularly you, Ms Waldron, about your attitude towards other employees?  I've observed that you were quite confrontational with the witnesses.  Where they disagreed with your evidence you couldn't be told.  It's all right to object to the evidence, but you've got a multitude of people who say that it was difficult to work with you.

MS WALDRON: 

Yes.

THE COMMISSIONER: 

It has been put that you couldn't accept that on 19 February, so if the employer had addressed that with you, would you have overcome their concerns?  You just said now that there was never any problems, never any complaints by other employees but that's not the case.

MS WALDRON: 

Well, not that I knew of there wasn't anyway.

THE COMMISSIONER: 

I understand that, yes.

MS WALDRON: 

Yes, so no one's approached me about my attitude or anything anyway, so as I - - -

THE COMMISSIONER: 

They did on 19 February and you dismissed their concerns and said that you needed a mental health day the next day.

MS WALDRON: 

No, they didn't approach me about my attitude or anything like that.  All they did was said that we set the boys up to fail and I'm like 'But we didn't'.  They wouldn't listen and we've told them again and again and again and - - -

THE COMMISSIONER: 

Well, if Mr Butler didn't agree with you, then that's the respondent's position.  You may not be right about that so the employer held concerns, it had a meeting with you both and it wasn't satisfied on that day.  Their evidence is that it wasn't resolved.  It was going to be resolved on your return.

MS WALDRON: 

I didn't see any of that, so I disagree with all that.”

[192] While it was submitted for the applicants that the witness statements must have been prepared by Coast Cat because of the use of the name Carmen-May, or Carmen, instead of Sharon, I consider that Ms Kelly most likely substituted some of the references to Sharon to Carmen-May or Carmen on account of the application being made in the name of Carmen. I have placed greater weight on the oral evidence given the various witnesses where they stated that it was incredibly difficult to work with the applicants.

[193] Whilst I consider the complaints against the applicants to be very serious, including the effect on the safety and welfare of other employees as is required by s.387(a) of the Act, I do not consider that at any early stage in the employer’s investigation of the matter, there was a valid reason for the dismissal. Nor do I consider the temporary lack of work for the Kanga a valid reason for the dismissal.

s.387(b) - Whether the person was notified of that reason

[194] It appears to me that Coast Cat was content with ignoring the applicants on their return from leave, other than a curt text response stating that there was no work and inviting them for a meeting that did not eventuate.

[195] Stating that there is no work for the applicants on 27 February 2019 is not, by itself, a notice of dismissal. Both applicants were invited to further meet with the respondent. But the act of ignoring further requests as to when the meeting would take place is the act of the dismissal. I accept that there was some notice of the reason, but it did not include the entire reason of the dismissal, which I have determined included the respondent’s dissatisfaction with the applicants over their conduct to young labourers.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[196] The applicants were provided with an opportunity to respond during the brief meeting on 19 February 2019 to some of the concerns of Coast Cat relevant to how the less experienced labourers were being trained on the Kanga. I accept that it was not uncommon for a beer or two to be consumed during the last part of the working day, even if Mr Butler himself did not regularly partake.

[197] Having observed Mrs Waldron’s tendency during the determinative conference to be argumentative, I accept that during the meeting of 19 February 2019, she was, as was claimed by Coast Cat, abrupt, argumentative or belligerent.

[198] I find that during the meeting of 19 February 2019, both applicants were provided with an opportunity to respond to the concerns Coast Cat had relevant to the training of the less experienced colleagues. The concerns were, however, narrow in nature, and focussed on Mr Kelly and Mr Madison only. None of the allegations of the broader group of current or former employees were put to the applicants to allow them to respond.

s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[199] No request was made by either of the applicants for a support person, and therefore there was no unreasonable refusal by Coast Cat. This is a neutral consideration.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[200] It became apparent during the determinative conference, and I accept the submissions of the applicants that the concerns of the former and current employees were not properly put to them until 19 February 2019. On a fair assessment, it appears to me that Coast Cat was heavily reliant on the applicants for their superior handling of the Kanga, and they delayed addressing with them their conduct to other employees on account of not disrupting their only qualified operators.

s.387(f) - Whether Coast Cat’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[201] I accept Coast Cat’s submission that it did not have access to dedicated human resources personnel or expertise at the time of the applicants’ dismissal. Nevertheless, it is entirely appropriate and a reasonable expectation to invite the applicants, a couple, to a meeting to discuss any performance or conduct concerns.

[202] It is quite callous to simply ignore the applicants on their return from leave, knowing that they would both be reliant on income from Coast Cat for their combined living expenses. This is true even if there was no immediate work for the Kanga. This could and should have been explained in person.

s.387(h) - Other matters

[203] It was put by Mr Butler that during the meeting of 19 February 2019, Mrs Waldron stated that “they” would be leaving anyway to set up their own business. Taking into account Mr Williams’ evidence, I do not accept that this was said by her at this meeting, and if it was, I consider that it would have been appropriate to discuss at the meeting that Mr Butler indicated might happen on 28 February 2019, but did not occur.

Conclusion

[204] Having taken the above into account, I conclude that the dismissal of each of the applicants was harsh, unjust and unreasonable. Accordingly, I find that each of the applicants was unfairly dismissed.

Remedy

[205] Section 390 of the Act reads as follows:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[206] Mrs Waldron and Mrs Olver are persons protected from unfair dismissal for the Act’s purposes, and they each are a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether either or both of them can be reinstated.

[207] Neither applicant seeks reinstatement, and despite Coast Cat’s submission that it would be comfortable with reinstatement of the applicants, I am satisfied in all of the circumstances that reinstatement is inappropriate. This is clearly the case where the applicants have heavily invested in capital equipment, and Coast Cat has stated that it has limited work available.

[208] I now turn to consideration of compensation.

Compensation

[209] Section 392 of the Act provides:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

Authorities

[210] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.83 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;84 Jetstar Airways Pty Ltd v Neeteson-Lemkes85 and McCulloch v Calvary Health Care (McCulloch).86

[211] I have had regard to the above authorities, and I have considered the submission of each party.

The effect of the order on the viability of Coast Cat

[212] Mrs Perrott stated that while Coast Cat has only around 20 employees, it has another associated entity. I do not consider that the order that I may make will have any significant effect on the viability of Coast Cat.

The length of each of the applicant’s service

[213] Both Mrs Waldron and Mrs Olver had around five years’ service with Coast Cat. This is not an insignificant period of time.

The remuneration that each of the applicants would have received, or would have been likely to receive, if she had not been dismissed

[214] All parties submitted that if, on the return from leave, the applicants could have satisfactorily resolved the concerns Coast Cat had, the employment would still be continuing.

[215] Having observed Mrs Waldron’s argumentative nature during the determinative conference, and the serious allegations that would be put to both applicants, it is difficult to believe that the employment of Mrs Waldron would have continued for any lengthy period of time. With respect to Mrs Olver, I accept Mr Kelly’s evidence that he was pulled aside and told by Mrs Olver and Mrs Waldron that he was a “keeper”, but that they did not like Mr Madison. This kind of conduct from experienced employees to less-experienced employees is not conducive to continuing employment.

[216] The two applicants were tasked with training up inexperienced labourers to operate the Kanga, and they were clearly unwilling to do so in a cooperative manner. I accept that they regularly treated the younger with workers with a contemptuous attitude.

[217] I accept Mr Bradstreet’s evidence that he had significant concerns with the applicants, particularly with Mrs Olver’s communication of completed and incomplete jobs.

[218] In my view, the employment would not have continued beyond the end of March 2019, with concerted efforts that would have been made by Coast Cat to address with each of the applicants their belligerent conduct towards the younger, less experienced workers.

[219] Having reviewed the occasions when the Kanga was in use throughout late February and all of March 2019, the applicants would have worked a further seven days. The Kanga was largely not used during the month of March.

[220] Information provided to chambers following the determinative conference nominates the hourly rate as $27.01. I have estimated the average number of hours worked per day as ten hours on the information before me.

[221] The remuneration that each of the applicants would have received, or would have been likely to receive if she had not been dismissed is $27.01 x 10 hours x 7 days = $1,890.70 gross.

The efforts of each of the applicants (if any) to mitigate the loss suffered because of the dismissal

[222] The applicants promptly set themselves up in business and purchased capital equipment. I am satisfied that each of the applicants took appropriate measures to mitigate the loss suffered because of the dismissal.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[223] Mrs Waldron, on behalf of Kanga Girls invoiced approximately $2,810.50 inclusive of GST for the month of March 2019. It is necessary to make a deduction for GST, which reduces the amount to $2,555.00

[224] There was discussion during the determinative conference as to how much of the work performed by Kanga Girls should be apportioned to labour, as opposed to capital equipment. 87 There was also discussion as to who performed the work on behalf of Kanga Girls throughout March 2019, but I was not provided with a clear answer. Mrs Olver stated during the determinative conference that her condition had caused her to be relatively unwell, and accordingly, on the information before me, I shall attribute the work of Kanga Girls in March 2019 to Mrs Waldron only.

[225] Taking into account the cost of capital expended in establishing the business, I have decided to settle on 60% of the earnings of Kanga Girls throughout March 2019 to be attributed to Mrs Waldron’s remuneration. That is an amount of 60% x $2,555.00 = $1,533.00.

[226] I determine that Mrs Olver did not earn any remuneration for the period since the dismissal to 31 March 2019 when I consider that the employment would have likely to have ended.

The amount of any income reasonably likely to be so earned by each of the applicants during the period between the making of the order for compensation and the actual compensation

[227] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[228] No submissions were made on this consideration.

Misconduct reduces amount

[229] Section 392(3) requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[230] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.88 

[231] Whilst I have been critical of each of the applicants’ conduct, I have decided against drawing a conclusion that it constituted misconduct. On the evidence before the Commission, I find that Mrs Waldron did refer to Mr Butler in inappropriate terms as set out in [123]. It is not clear, however, that this was taken into consideration in the decision to terminate Mrs Waldron. Nor is it clear that Mr Kelly reported to Mr Butler the foul tirade that I accept that Mrs Waldron’s stated to Mr Madison at [130], and that it contributed to the employer’s decision to dismiss Mrs Waldron.

[232] Without Mr Madison available for cross-examination, I am not prepared to accept the evidence that ‘both’ of the applicants threw his lunchbox, which included his diabetes medication.

[233] I make no deduction for misconduct.

Shock, distress etc. disregarded

[234] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to each of the applicants by the manner of the dismissal.

Compensation Cap

[235] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicants, or to which the applicants was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[236] The high income threshold immediately prior to the dismissal was $145,400, and the amount for 26 weeks was $72,700. The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[237] No application was made for any order to be made by instalments and in the circumstances of the order, and the size of the respondent, I do not consider it appropriate to order payment by instalments.

Order of compensation

[238] I have determined that Coast Cat is to pay to Mrs Waldron the amount of $1,890.70 less $1,533 = $357.70 gross less tax as required by law within 14 days of the date of this decision.

[239] I have determined that Coast Cat is to pay to Mrs Olver the amount of $1,890.70 gross less tax as required by law within 14 days of the date of this decision.

[240] In addition, Coast Cat is to pay superannuation at the rate of 9.5% on the amount of $357.70 for Mrs Waldron, and $1,890.70 for Mrs Olver. For the sake of clarity, that is an amount of $33.98 for Mrs Waldron, and $179.62 for Mrs Olver. This too must be paid within 14 days of the date of this decision.

[241] An Order [PR711969] to that effect will be issued with this decision.

Seal of the Fair Work Commission with member’s signature.

COMMISSIONER

Appearances:

C Olver and L Waldron for the applicants.

M Williams, R Butler and M Perrott for the respondent.

Hearing details:

Brisbane

21 June

2019.

Final written submissions:

Applicant’s outline of arguments, 13 May 2019.

Respondent’s outline of arguments, 22 May 2019.

Printed by authority of the Commonwealth Government Printer

<PR710321>

 1   PN68.

 2   PN165.

 3   PN200.

 4   PN77 – PN99.

 5   PN102 – PN103; PN142.

 6   PN413.

 7   PN337 – PN343; PN402 – PN408.

 8   PN377 – PN381.

 9   PN987 – PN995.

 10   PN1103 – PN1112.

 11   PN1419 – PN1422.

 12   PN1527 – PN1532.

 13   PN551 – PN558.

 14   PN638 – PN671.

 15   PN108 – PN109.

 16   PN106 – PN115.

 17   PN128.

 18   PN118 – PN119.

 19   PN185 – PN186.

 20   PN332; PN395 – PN397.

 21   PN507 – PN513.

 22   PN517 – PN524.

 23   PN124 – PN125.

 24   PN126 – PN127.

 25   PN130 – PN137.

 26   PN187.

 27   PN238 – PN240.

 28   PN846 – PN863.

 29   PN738 – PN762.

 30   PN968 – PN971.

 31   Resignation letter of Antony Jacobson, 3 October 2018, R1.

 32   PN972.

 33   PN1008 – PN1012.

 34   Statement of Mr Jackson Waugh, 1 May 2019, R4.

 35   PN1090.

 36   PN1104 – PN1112.

 37   PN1115 – PN1136.

 38   Statement of Mr Craig Bradstreet, undated, R5.

 39   PN1172.

 40   PN1161.

 41   PN1193.

 42   PN1194.

 43   PN1200 – PN1229.

 44   PN1236 – PN1240.

 45   PN1243.

 46   PN1247 – PN1261.

 47   Statement of Mr Jesse Kelly, 7 May 2019, R7.

 48   PN1327.

 49   PN1334.

 50   PN1416.

 51   PN1437 – PN1450.

 52   PN1451 – PN1456.

 53   PN1472 – PN1473.

 54   PN1482 – PN1489.

 55   PN1491 – PN1498.

 56   Statement of Mr Dakota Madison, 7 May 2019, R6.

 57   (1995) 185 CLR 410, [465].

 58   Sayer v Melsteel [2011] FWAFB 7498 at [20].

 59   PN479 – PN484.

 60   PN605 – PN610.

 61   PN1669 – PN1671.

 62   PN1686 – PN1695.

 63   PN1642 – PN1649.

 64   PN1657 – PN1660.

 65   PN524; Respondent’s Outline of argument: objections, 8 May 2019, pg 18.

 66   PN567 – PN568.

 67   PN526.

 68   PN569 – PN573.

 69   PN572 – PN573.

 70   PN574 – PN579.

 71   PN578 – PN579.

 72   PN584 – PN586.

 73   PN588 – PN600.

 74   PN1655.

 75   PN1676 – PN1680.

 76   PN1661 – PN1665.

 77   PN1667.

 78   PN1650.

 79   [1995] IRCA 645.

 80   O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 81   Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100]; Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200]; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 82   PN1686 – PN1695.

83 (1998) 88 IR 21.

84 [2013] FWCFB 431.

85 [2014] FWCFB 8683.

86 [2015] FWCFB 2267.

 87   PN1642-PN1651.

88 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].