Australasian Meat Industry Union of Employees (Queensland Branch) for Neilson v Brenton Beef Processing Pty Ltd (No. B195 of 2005) [2005] QIRC 120 (2005) 180 QGIG 141

[Extract from Queensland Government Industrial Gazette, dated 16 September, 2005, Vol. 180, No.3, pages 141-153] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Australasian Meat Industry Union of Employees (Queensland Branch) for Ryan Neilson AND Brenton Beef Processing Pty Ltd (No. B195 of 2005) COMMISSIONER THOMPSON 31 August 2005 Application for reinstatement – Witness evidence – Not an excluded person – Termination harsh, unjust and unreasonable – Reinstatement or re-employment impracticable – Compensation ordered. DECISION Preamble An application was filed on 11 February 2005 by the Australasian Meat Industry Union of Employees (Queensland Branch) (the Union) on behalf of member Ryan Neilson seeking reinstatement as a Boner with Brenton Beef Processing Pty Ltd (the respondent). Mr Neilson, according to the application, had been engaged as a casual employee since December 2003 and until his termination on 24 January 2005. Applicant The application relied upon evidence of four (4) witnesses in support of the application, with those being Mr Neilson, Mr Damien Koski, Mr Bradley Surridge and Mr Peter Lyons. Neilson Mr Neilson, in evidence, confirmed that he commenced employment with the respondent as a slicer in December 2003 being told at that time his status was that of a casual employee. The method of payment for members of the boning team was that of piecework rates with no payment being offered for sick or annual leave. He and other members of the boning team were advised that whilst considered casuals, they were required to attend for work everyday and if a day off (unpaid) was required, they must have prior approval from their supervisor Mr Shane Anderson. Mr Anderson had the right to refuse such a request. On 17 January 2005, he spoke to Mr Anderson about having Friday 21 January 2005 off to attend a Cricket match for which tickets had been obtained by a member of his family, some time prior to the request. His request was acceded to, although later that day he was approached by Mr Anderson who stated that the Friday would be a busy day and was he still wishing to have the day off. When he answered in the affirmative, his evidence was that Mr Anderson replied “fair enough”. Later that day he offered a spare ticket for the Cricket to Mr Surridge who accepted the offer. Having given some thought to the work situation and wanting to do the “right thing” by the other fellows at work, he spoke, the next morning (Tuesday), to Mr Anderson and offered to come in on the Friday to work through until lunch time. Mr Anderson is said to have stated “it would be good if you could do that”. He discussed the situation later that day with Mr Surridge and advised him to also seek approval from Mr Anderson to take the Friday off. He observed Mr Surridge and Mr Anderson having a discussion and was later informed by Mr Surridge that it was “okay” for him also to have the time off to attend the Cricket match. -- 1 of 15 -- 2 Mr Anderson did not raise the issue of the time off again until the Friday morning when he approached Mr Neilson and said that “it would not be a good idea for him to leave work at lunchtime”. He informed Mr Anderson that arrangements had been made with his family based on his prior approval. At “smoko” that morning, Mr Anderson advised that if he left work at lunchtime he would be sacked. At paragraph 13 of his affidavit, he detailed his then comments to Mr Anderson: “I told Shane that it was too late for me to change the arrangements I had made with my family. I said that he had told me earlier that I could go, and it was not fair to change things at the last moment.”. At lunchtime, both he and Mr Surridge ceased work and whilst in the change room, were approached by Mr Anderson and requested to hand over their gear. Further, they were told that Mr Tony Carroll, the Manager of the respondent company, wanted to speak to them. The evidence of Mr Neilson was that Mr Carroll abused both of them for leaving work early and for letting their mates down. They were taken back by the language levelled at them by Mr Carroll. He was somewhat dumbfounded and did not say much in reply. Both he and Mr Surridge presented for work on Monday 24 January 2005 and were told by Mr Anderson and Ms Brenda Carroll (Mr Tony Carroll’s wife) that there was no more work for them and to leave the premises. In concluding his evidence-in-chief, Mr Neilson stated that his average weekly income was around $821.92 gross over the period of his employment. He also provided particulars of income received since termination which included unemployment benefits and a number of casual engagements. In cross-examination, Mr Chris Murdoch, of Counsel, put a number of questions to the witness including:  employment status – casual – daily hire (page 9, line 1 of transcript): “Commissioner: So just in terms of that, is it really up to you whether you got out of bed and come to work on any particular day, I mean, were you that free in terms of the employment arrangement? Neilson: No. Well, no, because there was still a job that I had, I still had to work every day. So it wasn’t necessarily entirely up to me because if I didn’t turn up to work I would not have a job basically. Commissioner: So it was daily hire, casual employment? Neilson: Yeah. Commissioner: But you’re saying you were required to – – ? Neilson: Be there every day. Commissioner: – – present for work each day? Neilson: Yes.”.  fluctuations in work levels;  undertaking in November 2004 to over increased work load;  contact log – detailing employment record;  warning letters;  verbal warnings;  quality of work; -- 2 of 15 -- 3  request for leave on 21 January 2005 subject to replacement being found (page 18, line 14 of transcript): “Murdoch: And he [Anderson] also said to you on the Monday that if he could arrange a replacement you could go but if he couldn’t get a replacement you couldn’t go? Neilson: No, he never said that, no. Murdoch: He never said that to you? Neilson: No.”.  exchange with Mr Carroll on 21 January 2005;  monies earned since ceasing employment with the respondent;  allegations relating to throwing of meat and kicking bones; and  termination of previous employment (prior to commencing with the respondent). Koski The witness, a former employee of the respondent, commenced work on 4 May 2004 and remained in employment up to and including 7 February 2005. He worked as a slicer in the same boning team as Mr Neilson. His evidence went to a conversation with Mr Neilson on one Monday in January in which he was informed that Mr Neilson would be going to a Cricket match on the next Friday and that Mr Surridge would be taking up the option of an extra ticket on offer to also attend the game. He recalled that later in the week he heard Mr Neilson talking to Mr Anderson about his attendance and heard Mr Anderson make a comment along the lines of “do what you got to do”. On the Friday during the smoko break, he heard Mr Anderson tell both Mr Neilson and Mr Surridge that if they went to the Cricket they would not have a job anymore. After discussing the matter with both fellow employees (Neilson and Surridge), he advised that they had given plenty of notice and saw no reason why they should not go as planned. Mr Koski gave evidence also in relation to the work load at the respondent’s business after November 2004. Cross-examination included reference to giving notice prior to taking time off and the conversation he overheard between Mr Neilson and Mr Anderson. Surridge This witness, also a former employee of the respondent, commenced work as a meat packer in October 2004 and finished up at the same time as Mr Neilson. During the course of his employment, he moved from meat packer to slicer in the boning team and, depending upon work available, he would be “dropped from the team” by virtue of being the “last on” in the boning team. In January 2005, Mr Neilson spoke to him about a ticket for Australia v West Indies one day Cricket match at the Gabba which was to be played on a Friday. He was informed by Mr Neilson that he had spoken to Mr Anderson about having the Friday off and at the same time was offered an extra ticket he had for the game. An approach was made to Mr Anderson immediately by the witness seeking approval to also have the Friday off, which was granted. Both Mr Neilson and the witness decided to come in on the Friday and work to lunchtime due to the busy work situation. -- 3 of 15 -- 4 During that morning, Mr Anderson approached both men telling them that Mr Carroll had said that it was “not a good idea” for them to leave work at lunchtime. They were approached in the washrooms by Mr Carroll and Mr Anderson as they were leaving and an altercation took place which the witness described Mr Carroll being angry over the situation. The witness stated that Mr Neilson had informed Mr Carroll that permission had been given by Mr Anderson earlier in the week to take the time off. On the Monday, both he and Mr Neilson turned up for work but were told they had been sacked. Cross-examination went to matters including:  not offered work since 21 January 2005;  meeting in November 2004 relating to increased workload;  offer of ticket (page 48, line 33 of transcript): “Murdoch: Now, when were you first offered these tickets for the cricket? Surridge: As in – my statement states either on the Monday or Tuesday before their game on the Friday afternoon.”.  hours worked for week ending 21 January 2005;  approval from Mr Anderson for time off (page 49, line 38 of transcript): “Murdoch: And what did you say? Surridge: I said, ‘Shane, is it okay if I have Friday afternoon off to go to the cricket?’ Murdoch: And what did he say to you? Surridge: Well, reluctantly he said yes – well not yes but he said ‘Yes’, like, you know, sort of a nod of approval, yes type thing and – – Murdoch: And so he reluctantly nodded approval? Surridge: Yes, well he could – you could tell that he didn’t really want to let us go but at – in the same breath he sort of – he said yes as well. Murdoch: Well, a moment ago you said he reluctantly nodded. Now you’re saying he said yes. What did he do? Surridge: Well, he – just his body language and the way he came across he – you could just tell that he wasn’t real happy about it – – Murdoch: Mmm? Surridge: – – but he didn’t say no either. Murdoch: They didn’t say – he didn’t actually say yes, did he? Surridge: He said – he nodded and said ‘Yes, that’s fine’.”.  offer by Mr Carroll to reimburse the cost of the ticket (page 53, line 45 of transcript): “Murdoch: And it’s the case, isn’t it, that Mr Carroll offered to pay for the ticket? Surridge: It’s not in my statement, no. Murdoch: Sir, that’s not what I’m asking you? Surridge: I don’t recall – I don’t recall that. -- 4 of 15 -- 5 Murdoch: So you don’t recall it but it could have happened, couldn’t it? Surridge: Quite simply. But at the time he may have said that. I may have just not listened or whatever. I just – I don’t recall that. No.”. Lyons The final witness for the applicant had been employed by the respondent for a period of approximately eleven months and like the previous witnesses was no longer in the employ of the respondent. His evidence was that he recalled a number of conversations involving Mr Neilson and Mr Anderson in the week of the Cricket match. In questioning from Mr Murdoch, the witness stated that he was within a “couple of feet” of where the conversations took place and that he had picked up only some of what had been said between the parties. Respondent The respondent’s case was supported by the evidence of five (5) witnesses being Mr Carroll, Mr Jay Kinsela, Mr Anderson, Ms Carroll and Ms Alice Watson. Mr Carroll Mr Carroll, the Managing Director, gave evidence that at the point of engagement, employees are casual in accordance with the provisions of the relevant Award. Note: At that time (Neilson’s commencement), the Meat Industry (Other Than Export) Award – State 2002 applied. Employees, including Mr Neilson, were advised that there was no obligation on them or the employer to maintain the employment beyond any given day. In November 2004, he addressed a meeting of boners and slicers about an increase in work and gave the employees two options: “(a) to try and get more staff to share the load, or (b) if they would like to do the work then they would be paid the money.”. Mr Neilson was present at the meeting where it was decided unanimously to accept option (b). On the morning of 21 January 2005, he was approached by Mr Anderson who told him that Mr Neilson was “going early” and taking Mr Surridge with him so as to attend the Cricket. He advised Mr Anderson that it was “not on” as other employees would have to stay back to finish the work. At around 11.30 a.m. Mr Anderson told him that both employees were leaving, at which time he decided to go to the washroom for the purpose of getting them to remain at work. A fairly heated discussion took place during which time he offered to pay the cost of the Cricket tickets if both employees would remain until 3.00 p.m. When his offer was rejected, he made the following comment to each of the employees: “If you are not going to change your mind, hand in your safety gear and call me Monday to see if we have any work for you”. They were further told “if you want to work, go back into the boning room or go. It is your choice”. He stated that at the time of both employees leaving, he had not made the decision to not to offer further work. Such decision was made over the weekend. In terms of Mr Neilson’s work performance and conduct, his evidence was that both Mr Kinsela and Mr Anderson has previously raised a series of complaints. -- 5 of 15 -- 6 He concluded his evidence by indicating that a return to employment by Mr Neilson would not be welcomed by a number of current employees. Mr Craig Buckley, on behalf of the applicant, cross-examined the witness on numerous matters including:  November 2004 meeting;  arrangements for time off (page 63, line 53 of transcript): “Buckley: Well, can you tell me what – or what instructions have you given the boning and slicing team about having time off? Carroll: If they require time off, obviously people do from time to time and they were prepared to give us some notice, we would hold their job for them or try to. Buckley: Was there ever a – did you ever specify precisely how much notice they had to give? Carroll: No. Buckley: All right. So, it was a case – well, did you tell them something like that they should try and give as much notice as they could? Carroll: Sure.”.  piecework rates;  advice from Mr Anderson relating to the time off (page 65, line 1 of transcript): “Buckley: When he spoke to you, did Mr Anderson tell you that the two of them had given at least some days’ notice that they were going to the cricket? Carroll: No.”.  work on offer for both employees after 21 January 2005 (page 68, line 25 of transcript): “Buckley: If they had not gone to the cricket on Friday afternoon they would have been offered work on Monday, isn’t that right? Carroll: Quite possibly. Yes.”.  matters considered in the decision to offer no further work to Neilson;  complaints by other employees relating to Neilson’s conduct and performance;  advice to Anderson re not offering work to Neilson (page 71, line 53, and page 72, line 10 of transcript): “Buckley: What did you tell him? Carroll: I told him that Ryan and Brad were not to start. Buckley: Did you tell him why? Carroll: Why? No, I just told him they – – Buckley: So you didn’t provide any more detail than that? Carroll: No. . . Commissioner: Can I just ask you a question? You’ve given evidence that you considered over the weekend a number of reasons as to why Ryan Neilsen shouldn’t be given further work? Carroll: Yeah. Commissioner: What was the reason then you chose not to offer Bradley Surridge work on the same day? -- 6 of 15 -- 7 Carroll: Cause he chose to leave. Commissioner: So it wasn’t anything to do with this? Carroll: No, I said he – he questioned – – Commissioner: He chose to leave on the Friday, is that what you’re saying? Carroll: Yes. Commissioner: So that’s why Bradley Surridge wasn’t offered work on the Monday? Carroll: Yeah.”. Kinsela Mr Kinsela, a current employee of the respondent, gave evidence of being approached by Mr Carroll on 12 January 2005 to speak of concerns he had about working for the employer. In the course of the meeting, he stated that he was having a lot of problems working with Mr Neilson who he felt was, at times, endangering his, and other employees’ safety. He gave examples of Mr Neilson slowing the chain, becoming angry and violent, throwing a large section of product (approximately 10 kilos in weight), kicking bones, and being generally abusive towards other staff. Mr Carroll was informed of the witnesses’ intention to seek other employment if the matter was not addressed. Cross-examination of Mr Kinsela was brief and went to matters including:  method of approval for time off;  meeting with Mr Carroll about Mr Neilson; and  problems with “hard” beef. Anderson Mr Anderson, the boning team Supervisor, gave evidence in respect of a number of work related incidents involving Mr Neilson in January 2005. On 4 and 5 January 2005 his evidence was that the Quality Assurance manager, Ms Watson, had raised concerns over Mr Neilson’s work performance and attitude towards other employees. He spoke to Mr Neilson on 6 January 2005 about his performance and complaints received from other employees and gave evidence that shortly thereafter, Mr Neilson abused his fellow employees for “dobbing him in”. Mr Anderson stated that on Friday 14 January 2005, Mr Neilson approached him to see if it was okay to attend a cricket match on 21 January 2005. The response, according to the witness, was that it would not be a good idea because of the production requirements for that week. Mr Neilson is alleged to have replied to the refusal in the following terms: “I don’t give a fuck what you say, I am going anyway”, in addition to making similar comments in respect of what Mr Carroll’s position may have been on the request. The witness recalled Mr Neilson mentioning, some weeks previously in passing, that he wanted to attend the cricket match. Mr Neilson again approached the witness on Monday 17 January 2005 about having the day off and was told by Mr Anderson that if he (Anderson) could arrange a replacement then the leave would be approved, otherwise he would be expected to work. A replacement was not found. -- 7 of 15 -- 8 In his affidavit (tendered in the proceedings), Mr Anderson denied much of the content in the statement of Mr Neilson. In respect of his dealings with Mr Surridge over the day off, he stated in paragraph 19 of his affidavit: “I have had read to me the undated statement of Bradley Surridge. With respect to paragraph 6 of that statement I stated that I said to Brad words to the effect ‘You know the story. If Ryan Neilson can go you can go too because the gang won’t need a slicer. It doesn’t look like Ryan will be going so if he goes when he shouldn’t and you go too, you know the consequences’. Bradley Surridge came to me later in the day and said words to the effect ‘Do you think I should go?’ I told him to make up his own mind.”. Other evidence went to the alleged conduct of Mr Neilson which had caused the witness some angst from time to time. Mr Anderson was subjected to extensive cross-examination which included:  meeting of November 2004 (page 94, line 38 of transcript): “Buckley: And during that meeting did Mr Carroll explain that it was still possible for people to have time off provided they gave enough notice? Anderson: He’s always said they can have time off as long as they gave enough notice and we find a replacement for them.”.  concerns about Mr Neilson’s performance;  approval sought by Mr Neilson and Mr Surridge to attend the cricket match (page 106, line 18 of transcript): “Buckley: But then whether Mr Surridge could go or not didn’t have anything to do with whether Ryan could go, did it? Anderson: Well, he just asked me if he could go and I said if Ryan was going ‘I suppose you can go because I won’t’ – ‘I won’t need you here.’ It was more or less – he knew the story was going that Ryan might not be going and I’m saying, ‘Well, if Ryan decides to go, you may as well go too,’ because by the time the 19th come along I was a bit sick and tired of discussing the matter.”.  on disciplining Mr Neilson for having time off (page 109, line 1 of transcript): “Commissioner: So it really wasn’t a warning or wasn’t really a discipline then, was it? Anderson: It was just, ‘You’re having too much time off’, yeah. Commissioner: ‘So that maybe in the future when you ask for it off, I won’t give it to you’, that type of discussion? Anderson: That type of discussion.”.  Mr Neilson’s request to have the day off to attend the cricket (page 109, line 30 of transcript): “Buckley: All right. On that occasion you said to him – you came up to him and told him it would not be a good idea for them to leave work at lunch time? Anderson: I would have mentioned those words, yes. Buckley: Mr Neilson protested at the time, didn’t he? Anderson: Yes. Buckley: He said to you that he’d already organised with his family to go? Anderson: That’s right. Buckley: And he said to you that you’d already given him permission to go? Anderson: He did say that. -- 8 of 15 -- 9 Buckley: He did say that. And what response did you make? Anderson: I didn’t give him permission to go. I said he could go as long as I found a replacement, and I haven’t found a replacement. Buckley: Well so it was after that that you went and spoke to Mr Carroll, is that right? Anderson: It would have been after that conversation but I don’t know what time it was.”.  meeting between Mr Carroll and the two (2) employees in the change room;  replacement of Mr Neilson on the afternoon of 17 January 2005; and  decision to terminate Mr Neilson. Ms Carroll The Financial Controller of the respondent company since November 2003 and also responsible for operations management and human resources, Ms Carroll gave evidence initially in respect of the workforce situation. Significant changes occurred with staffing to the extent that for a standing workforce of 35 on the floor, the company issued almost 200 group certificates for the 2004/05 financial year. At the end of each shift, employees required for the following day are advised prior to leaving the premises. Mr Anderson has the responsibility for giving such advice to employees. At paragraph 10 of her affidavit, she gave evidence on the procedures in place for those unable to attend for work: “During induction of new employees they are advised that in the event they are unable to attend for work on any given day it is appreciated if this advice can be given no later than the commencement of the day’s production. Equally, the employer is to advise of the non requirement of labour at the end of each day’s production if that is to be case. It is not unusual for either the employee or the employer to cease the employment relationship during or at the end of the day’s production.”. In respect of the Contact Log covering the employment of Mr Neilson, it was her evidence that his was far more extensive than any other employee. Ms Carroll tendered a further affidavit containing time sheets and copies of written warnings given to Mr Neilson. The written warnings, which were not countersigned by Mr Neilson, were dated 14 July 2004 and 18 October 2004. Neither of the written warnings dealt with absenteeism. Cross-examination of the witness included matters such as:  decision not to offer Mr Neilson further employment;  Mr Neilson’s earnings whilst in the employ of the respondent; and  Contact Log. Watson Ms Watson, the Quality Assurance Manager, with the respondent, gave evidence as to her role which was to ensure the quality of the product produced by the business. Included in her duties was the responsibility of talking to staff on the boning room floor in respect of their performance and work habits. In carrying out this function, it was her experience that only Mr Neilson reacted poorly to any comments she would offer. She claimed that Mr Neilson refused to be guided to learn and was very aggressive. -- 9 of 15 -- 10 Dates on which matters in relation to Mr Neilson’s performance were discussed and were identified as 5 September 2004 and 4, 5, 6 and 10 January 2005. All workers on commencement were provided with a copy of the Brenton Beef Processing Employee Hand Book. At paragraph 14 of her affidavit, she described what she call an “on-going battle” with Mr Neilson: “Working with Ryan was an on-going battle. He didn’t want to listen or learn the correct way to bone out the product. Ryan Neilson was always an angry person and I had a lot of problems trying to communicate with him.”. Cross-examination in the main centred around various exchanges with Mr Neilson and other employees in relation to methods of work undertaken when boning beef. Other issues related to the aggression shown by Mr Neilson and the reliance placed upon the diary notes of the witness. Written Submissions Applicant The submission, in the first instance, went to the issue of jurisdiction which had been foreshadowed by the respondent as a matter that an argument would be made by them in the course of submissions. It was argued that the sections of the Industrial Relations Act 1999 (the Act) which precluded persons that were short term casuals and engaged for a specific period or task were not applicable in the circumstances to Mr Neilson. Mr Neilson was paid on a piecework basis without casual loading and, despite the description of “casual”, he was required to attend for work on a daily basis and seek permission to take (unpaid) leave. If the Commission was to accept that Mr Neilson was a casual employee, it was clear that the evidence before the proceeding identified him as having been employed on a regular and systematic basis for over one year. On the issue of a specific task, it was submitted that the Act was intended, in this respect not, to apply to daily hire employees. At page 3 of the written submission on the term “casual employment”, it was stated: “The Applicant notes that the law recognises that the term ‘casual’ employment is used to describe a variety of employment situations: Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385. The Applicant submits that Mr Nielson’s employment effectively falls into the ‘second class’ of casual employee described in the Ryde- Eastwood case (at pp. 401-2) where ‘. . .there is a continuing relationship which amounts to an ongoing or continuing contract of employment. . .’ ”. On whether the dismissal was unfair, the submission focussed on the reason for the dismissal being that of leaving the workplace on 21 January 2005. The Employment Separation Certificate issued under the signature of Ms Carroll identified, in no uncertain terms, as that being the case. If the evidence of Mr Carroll was to be accepted by the Commission that Mr Neilson’s departure from work on 21 January 2005 was the “last straw”, then that was clearly inconsistent with the basis for which the decision to dismiss Mr Surridge was effected. The termination of Mr Neilson had to, in the circumstances, be harsh, unjust and unreasonable on the grounds that Mr Anderson had granted permission for Mr Neilson to attend the cricket match, he had made arrangements with his family to attend only to have such permission withdrawn on the morning of 21 January 2005. Both Mr Neilson and Mr Surridge denied that the approval given by Mr Anderson was conditional upon a replacement being found. The evidence overall was consistent with Mr Anderson having granted permission for Mr Neilson to take leave on the afternoon of 21 January 2005 and subsequently denying having done so when confronted by Mr Carroll’s opposition. The “last straw” argument relied upon by the respondent, if accepted, would have provided even a greater number of factors indicating that the dismissal was unfair. -- 10 of 15 -- 11 Mr Neilson, according to the submission, had not been properly warned about the conduct, capacity or performance complained of by the respondent. In fact, a number of the allegations levelled against Mr Neilson, in the course of the proceedings, were matters of which he was unaware whilst in the employ of the respondent. The submission questioned the substance of allegations made against Mr Neilson by challenging the evidence of Mr Kinsela, Mr Anderson and Ms Watson. In summarising the issues around the work performance of Mr Neilson, the submission, at page 11, stated: “Therefore, the Applicant submits that to the extent that some of Mr Nielson’s work performance could legitimately be criticised, there was nothing to distinguish him from other boners at Brenton Beef Processing. Despite the efforts of the Respondent’s witnesses to portray Mr Nielson as somehow an exceptional case, the Applicant submits that the criticism raised of Mr Nielson were just as applicable to other boners present, against whom no disciplinary action was taken. This supports a conclusion that the subsequent dismissal of Mr Nielson was unjust and unreasonable.”. In terms of remedy, it was submitted that reinstatement would not be impracticable in the circumstances, however if the Commission was to determine otherwise, then the maximum amount of compensation (six months wages) available under the Act, less monies earned, should be awarded by the Commission. Respondent The submissions of the respondent covered a range of issues under the headings of:  Introduction  Nature of Mr Neilson’s employment  Reason for no further offers of work  No breach of the Industrial Relations Act 1999  Valid Reason  Reinstatement is impracticable. Much was made of the employment arrangement that existed between the parties and, in particular, the casualisation of the workforce. At paragraph 6 of the submission, it stated: “A casual workforce is employed because:  the market is of a fluctuating nature. As a result, the Respondent cannot guarantee minimum hours every day; and  the Respondent, as a new company, had concerns about holding leave liability which it might not be able to pay it out if the Respondent were to fold.”. Mr Neilson was employed on a daily hire arrangement and whilst the employer tried to obtain work for each day, there were no guarantees given. In November 2004, all boners and slicers (including Neilson) agreed to share a greater workload rather than have additional staff employed. The decision not to offer further work to Mr Neilson was due to his unsatisfactory performance over time and for reasons advanced at paragraph 11 of the submission: “(i) he walked off the job on 21 January 2005 without the permission of his direct supervisor or the managing director in circumstances where the Applicant: (a) had been expressly told that he did not have permission to leave; (b) was aware of the high production level on 21 January 2005; (c) was aware that his early departure would increase the workload and workday of other employees; (d) was aware that his absence would only be approved if a replacement could be found and he was aware that a replacement had not been found. -- 11 of 15 -- 12 (ii) he had a long history of unsatisfactory performance that, despite warnings, had not improved.”. The submission argued that Mr Neilson was a “short-term casual” and on being hired by the day, is therefore excluded from seeking reinstatement. The fact that the respondent had an argument with Mr Neilson in respect of having a day off was not, in itself, inconsistent with him being a casual employee. Mr Neilson had not given evidence of an expectation of continuing employment and could not have reasonably held such an expectation. The Commission was led to the daily hire basis of the employment where it was stated that no contract of employment existed beyond the end of each day. In those circumstances, he can be considered to have been employed for a specific period, that being each day. The decision not to offer further employment to Mr Neilson was not harsh, unjust or unreasonable when he had left his employment in the course of his shift without the permission of the employer. If the Commission was not to regard Mr Neilson as a daily hire employee, then the situation is even worse. He could be considered as effectively abandoning his employment. The lack of harshness, unjustness or unreasonableness is apparent when his long history of unsatisfactory performance is considered. The actions of the respondent were, in all circumstances, defensible and based upon well founded reasons. The Commission was urged to accept the evidence of Mr Anderson in that he, at no time, gave Mr Neilson permission to attend the cricket. Such an action would make sense when the workload of the business, at the time, was taken into account. The evidence of Mr Neilson on his exchanges with Mr Anderson contained significant inconsistencies. It was further submitted that Mr Surridge’s evidence also lacked credibility on the same issue. The contact log provided a detailed list of Mr Neilson’s prior transgressions and his failure to take heed of warnings given is clear. Mr Carroll had acted appropriately in not offering Mr Neilson any further work. A range of authorities supporting the position of the respondent were offered and included:  Processing Pty Ltd (Supra) and Australian Aquaculture Pty Ltd v Banks (No. 2) 176 QGIG 67;  Heinz v Ramsey Meat Packaging Services Pty Ltd (PR 939681);  Murakami v QPSUE (2001) 167 QGIG 186;  Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 465 per Mc Hugh and Gummow JJ;  Melody Cooper v Queensland Theatre Company (1996) 152 QGIG 1241 at 1245; and  Steward v Creek Gold Pty Ltd (2003) 174 QGIG 104. Another decision sited was AMIUE(Q) v Brenton Beef Processing Pty Ltd (B245 of 2005) which the Commission was informed was a matter distinguishable from the current application. In terms of remedy, it was argued that the Commission could not be confident that if Mr Neilson returned to his previous position, he would improve his behaviour or would interact well with his co-workers. It would therefore be impracticable to reinstate Mr Neilson. If the Commission was to consider an award of compensation, then any such award should be minimal and take into account monies that Mr Neilson had earned since 25 January 2005. -- 12 of 15 -- 13 The application, according to the respondent, should be dismissed. Oral Submissions The parties came before the Commission on 23 August 2005 and spoke at length to the written submissions previously provided in the proceedings. Further authorities were tendered by the parties. Conclusion The Commission, in the first instance, was required to determine whether Mr Neilson was, in accordance with the Act, an excluded person and, therefore, not entitled to pursue an application for reinstatement. The evidence before the Commission from each of the parties was common, to the extent that Mr Neilson’s employment was that of a casual. The period of employment had been for a period of time just in excess of one year. The Act, at s. 72(8) provides a definition of a short-term casual employee as: “(8) In this section – short term casual employee means a casual employee, other than a casual employee who – (a) is engaged – (i) by a particular employer on a regular and systematic basis; and (ii) for several periods of employment during a period of at least 1 year; and (b) apart from the employer’s decision not to offer the person further employment, had a reasonable expectation of further employment by the employer.”. It was further agreed that, for the majority of his employment, Mr Neilson was paid a piecework rate which did not include a casual loading provision and that he was not entitled to accrue, or take, paid annual or sick leave. There appeared to be an expectation for Mr Neilson to attend for work each day and, in fact, at the meeting convened by Mr Carroll in November 2004, all employees, including Mr Neilson, were required to give a strong commitment to continue regular attendance (daily) due to an increased workload. At that meeting, employees were advised that those seeking to have a day off (unpaid) would need to obtain prior approval. The concept of “daily hire” as advanced by the respondent, in that each party was “free” from the end of each working day, seems to be at odds with the work practices in place. When one looks closely at the Act, and the employment arrangements for Mr Neilson, it is impossible to find that he was not engaged by a particular employer on a regular and systematic basis for several periods of employment during a period of at least one year. There was no reason to believe that Mr Neilson could not reasonably hold the expectation of further ongoing employment prior to the incident of 21 January 2005. Evidence from the respondent identified the mode of employment (casual) being preferred for reasons relating to the ability of a new company to meet the obligations of accrued entitlements, if the business failed. On the submission advanced by the respondent that the Commission should distinguish this application from the matter B245 of 2005, the Commission acknowledges the basis upon which such an argument could be advanced, however there are circumstances identified within that decision that must also be applicable to Mr Neilson’s employment. The daily hire argument, advanced by the respondent, is rejected by the Commission and it is therefore found that Mr Neilson’s application for reinstatement is entitled to proceed to be dealt with on the merits of the case. -- 13 of 15 -- 14 In terms of the application, it is not disputed that Mr Neilson left work part way through a shift after being advised by the Managing Director of the ramifications of doing so. If the Commission was to solely make judgement based on the exchange between Mr Neilson and Mr Carroll immediately prior to his leaving the worksite on 21 January 2005, then the application would surely fail. There was, however, a need to consider matters of a greater breadth than that of just the final exchange. It is safe to assume that the community, as a whole, would have an awareness that the cricket match at the centre of the dispute, being an Australia versus the West Indies day/night game played at the “Gabba” was a “sell out” event with the tickets sold some months in advance. It goes without saying then that Mr Neilson would have known well before 21 January 2005 that he would be attending the game on that day. His evidence went to the ticket being a Christmas present. Mr Anderson acknowledged that well prior to 21 January 2005, Mr Neilson had made general comments about attending the game. Competing positions were advanced as to whether permission for Mr Neilson to take leave for 21 January 2005 had been granted or otherwise by Mr Anderson. The evidence of Mr Neilson was consistent with him being in no doubt that when initially he approached Mr Anderson on 17 January 2005, his request was approved. As the week wore on, he did not dispute that Mr Anderson had started to raise some concerns about workload, but his evidence was that the approval was never withdrawn. Other witnesses recalled Mr Neilson advising them of discussions with Mr Anderson about having time off to attend the match. In the case of Mr Carroll, there is little doubt that in respect of the arrangement for the time off, he was “kept out of the loop” by Mr Anderson until the morning of 21 January 2005. Mr Surridge, whilst at times less than concise in his recall to the manner of Mr Anderson’s response to his request to have 21 January 2005, did provide to the satisfaction of the Commission evidence that prior to agreeing to purchase a “spare ticket” from Mr Neilson that he did have Mr Anderson’s approval to take 21 January 2005 off work. It could safely be concluded that, at least up to 19 January 2005, both Mr Neilson and Mr Surridge had reasonable cause to believe that their leave requests were to go ahead. The Commission accepts that on the Thursday (20 January 2005) Mr Anderson was experiencing second thoughts about having granted the approval and raised with the employees concerned those thoughts. Mr Neilson and Mr Surridge responded to the concerns of Mr Anderson by what only could be described as a reasonable action by deciding to attend for work on 21 January 2005 and work through until just prior to lunch. It is of note that at the time Mr Neilson ceased work on 21 January 2005, his hours of work had surpassed forty (40) for the week. In choosing to accept the evidence of Mr Neilson over that of Mr Anderson on the matter of leave, it must follow that when Mr Carroll was approached by Mr Anderson on the morning of 21 January 2005, he was not informed of the previous arrangements and, therefore, reacted to a situation where both Mr Neilson and Mr Surridge were leaving work early without any form of approval. The exchange between Mr Carroll, Mr Neilson and Mr Surridge appears to have been less than pleasant and clearly became the catalyst for the decision to not offer further work beyond that day. The “last straw” argument relied upon as justification for the decision not to offer further work to Mr Neilson is not accepted on the basis that Mr Surridge was also terminated, yet he did not have a “history” as was the case with the other employee. The respondent’s evidence was that the refusal to remain at work on 21 January 2005 was the reason for the Surridge decision and, on the balance of probabilities also the case with that of Mr Neilson’s treatment. -- 14 of 15 -- 15 The Commission finds that on the evidence before the proceedings, Mr Neilson had sought from Mr Anderson and was granted prior to 21 January 2005, leave to attend the cricket match on the said day. To then withdraw that approval at the “eleventh hour” and subsequently not offer further work from that point onwards had the effect of a termination of the employment arrangement. That termination, in the circumstances was harsh, unjust and unreasonable. Remedy Whilst the “last straw” argument was not accepted by the Commission as justification for withdrawing the offer of further and ongoing work to Mr Neilson, it is not without some merit when considering whether or not reinstatement would be a practicable outcome. The contact log containing historical data relating to Mr Neilson’s employment identified numerous incidents and warnings involving Mr Neilson in the course of his employment. It would be difficult to form the view that he was a “model” employee. In consideration of reinstatement, the primary remedy available under the Act, I have formed the view that it is unlikely that a “coming together” of the parties would have a lasting effect for any number of reasons. In particular, I have taken note of comments advanced at page 17 of the respondent’s written submission which stated: “Further, reinstatement would be futile. The Respondent is now subject to the Federal Award and thus its daily hire employees employment can be terminated at the end of each day. It would be pointless to reinstate a person whose employment could be lawfully terminated after one day.”. Additionally, I am not convinced that Mr Neilson would fit comfortably back in surroundings that would include Mr Kinsela, Mr Anderson and Ms Watson. It would be more appropriate for consideration to be given to the awarding of an amount of compensation. Mr Neilson, over the period of his employment, averaged a gross weekly income of eight hundred and twenty-one dollars ($821.00) and whilst he has found a variety of work since 21 January 2005, it has not been at the same rate of pay or as regular. The Commission, in deciding an appropriate amount of compensation, must take into consideration any monies received by the former employee since the separation of the employment. In determining the quantum, the Commission has placed reliance upon the actual rate paid to Mr Neilson, rather than an award rate due to the fact that piecework rates were applicable for the period of employment. Accordingly, the respondent is ordered to make the payment of six (6) weeks’ wages at the gross rate of $821.00 per week, being an all up amount of $4,926.00. The payment is to be made within twenty-one (21) days of the release of this decision and income tax is to be deducted in accordance with relevant Australian Taxation Office provisions. I order accordingly. J.M. THOMPSON, Commissioner. Hearing Details: 2005 27 and 28 July 23 August Appearances: Mr C. Buckley, of Counsel, directly instructed by Australasian Meat Industry Union of Employees (Queensland Branch), Applicant. Mr C. Murdoch, of Counsel, instructed by Biggs and Biggs, for the Respondent. Released: 31 August 2005 Government Printer, Queensland The State of Queensland 2005. -- 15 of 15 --