Calleja v South Johnstone Mill Limited [1998] QIRC 317 (1998) 158 QGIG 474

474 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 August, 1998 i_;illEFKSLAND INDUSTRIAL RELATIONS cmv1MlSS!ON n~nkplare Relations ,.:.\ct 1997 s. 2 l 8 ·- applkatiun for n~instaten.1e-nt South Johnstone J\1Hi Lirnit0d (No. /859of1997) COll{M!SSlO•\TR EDWARDS DFC!S!ON 3 August 1998 14 August, 1998 Cornmission also made reference to the fact that while the applicant was not kgally represen•e<l he had the benefit of legal advice and therefore !he Comn1is.sion would proceed -vvith caution. During lh.e hearing the Commi3sion gran1e.d an adjournment lo enable. Mr Call,;_ja to consider his position and seek advice. Cpon resumplion Jl,.fr M. Cooper. Solicitor, Arnell anG Cooper, Solicitors, Innisfail sought leave to address the Conunission rnrnntmtarily" Mr Cullen, on hehalf of South Johnstone Mill Lhmted. reilerated his or,position to legal re-presentation under s. 334 of the lVurkplace Rek1.tions i\ ct 1997 and outlined t'ie details of his rnmmun.i.cation with l\rnell and Cooper, Solicitorn. He advised that followmg t,';e ca!J..over he contacted Mr Arnell and informed him of !he result of the calhwer well dS obje.ction to legal representation. .Mr Cullen suggest:zi that ,\fr Calleja had ilie be.nefit of legal ad.1,.ice as weH as correspondence fro.rn Arndt and Cooper. In his submission Mr C<Xlper advised he had no knowledge of !he ;~)phcation and he appeared as a n1atter of courtesy to the Cornrnissii.1r1 ;:.;oncerning the role of NU· i\md1 who was unavailable. Mr Coc)f}£>r ;;nbrrritted that as ~Ar Calleja \:V:a.s uncertain of exa.rnination procedures, as weH as discovery of docurnents coml,ined with ihe situation h1-at appropriate pre-trial preparation had no! been undertaken, he requested an adjournment lvlr Cooper outlined Hmt lv1r Callej;, appeared to have been under the difficulty of having the case in some way documented by a lawyer but not having been atlv1.se<l as to what 1he issues were and the matters he needed to ;,<Jdress. Mr Cullen objeckd to the adjournment on t.h.e reason ihat there wa, always dear objection to legal representation and therefore Mr CJle_ia had full opportunity to decide how to conduct hi., case. Tne Commission proceeded with the hearing. "l waB accepting of the fact tl1at WG~lki have to it ahme but the friendiiness t,{ the fir~n ArneH 1~ Coc•per rr.eant that I wa..<.; not going to be ieft out in !he cold. That firm de.cidect to help me in my preparation having done all the spade work in the kad up to and upon !he tdeconfer~nce with Con1.rni~sioner Bhxlrnfieid on the 30/10/97. However, it was n~ver n1tended that J have. ~t Jegal representative ln Court. in their deB;re to help me and be of .,ome support Arnell & Coo;:,er assisted with rny .A.ffidavits and offered n:t<.: se-crt>.t~i:rial assist.anc0 at the hearing. 1 no rnore of thern nor d]d they offer rnore. regret that this hait-haki:d repre~entatirin .inc.onvenie1tced. the- Cc,ttrt. .Neithe.t mys,slf my Sdidtors k.n.ew any better. l ani apologetic a.'Jout a!l nt that. There wa.:: no jntentinn. on rn.y part hY cause any inconvc-nience or disruptu:.1.n ,viiliin tile pro-ceedings.:~. In vie,,Y of the ~ub.nn.ssfrm of 11; Coo_pe-r 1 1 consider that the a.s:--:i.~tanc.::. extended ·by 1\rneU & Co,Dper should have been BK,~-e de<tdy defini.Xi to 11t CuHic:n and lhe- Cornn.1i.8sk.m. arn atso V)H('A;:rne<l by the subrni%.ion of \fr Ca!l~ja thai, "neither royself n:;y Snhc.dors Yillew ;1,ny better.". ·111e Cornrnission ,:s..nd the- parti.es dea.dy understood ar1d accepted the po~1tion •Yf kgal repre-scntat.ion. As the rn,nte-r of legal MivJce. was not darific-:t.t the: Conuniss!on \.Vas ci !.ht:: b;;:;.hcf fuJ.t ~.,vtE~n f\.rn~c:-H & Co(iper prepared the affidavits they would have ntc:nti£.1ned to 1\1r Cullen that tl1e rk'.rsvn subruirting tb~ .affidavit be r,;..:quired to give: :;.v1de.nce. At no time Jid the Cornn)is.~irm. sct..-.,k an <q:K•logJ' frorn the apphcant It W3..\ thc- Co:rnrni.sston 's desire 1J1at the rnatter pnx..>.:.-ed .,~--ifh !he Corn1nission extending dssistance in terrns nf the decision •)f t.11.e- Acting Pres·ide-nt Travcland Tcwaruin v. Haze/ 154 QGIG 84--R6 ln rnld 1995 South Johnston:c- _fv1i1! Li1nlt(:d pui.:-::hased app--roxirn.ately 766 hectares of hmd so1,.1th.. west ().f Tully ,tpproxin1atdy 80 krn frorn the South Johnstone 1996 a furt¾er large parcel ,:,f Lmd was purch'1scd ~o the h.:)liling fron1 766 ju...;;t ovt'r 20{)0 ha \-vhlch i~ fw.1ned by South Jc1hn01one ·l\1 m Lirnited ,vitn a further 1600 ha lea~ed to others for farmmg. ~h CzJlejJ w~t~ appointed Ff~un ~1auager at \V arratrri 21 AugtL"'t 1995 with the h:~m1 of crnploymerrt noted in the ernployer•s letter of 1 Septe.mher .199') He \Vas dis:.fftlssed on 2,6 Septetnbe-r 1997. Initially \1r CaJh:ja ·~vas apIJf>.ink-d Fann M::rn.agcr reporting to l\'lr D. Sh~venson, (3-eneral ·r.Janaget< John3toue ?-"1iU .l.in1ited. ()n 20 January INDUSTRIAL GAZETfE 475 1997, lollowwg reorganisation of the reporJng structure, Mr VW. Gattera was i!ppointed General Manager in place of Mr Stevenson. in January 1997 because of the in<..1ea9e in the size of the fanning venture and due to the concern;; with many aspects of Mr Calleja• s rnanagement, !he Board transferred the duties of General Manager of the farming venture from Mr D.M. Stevenson to Mr V. Gattera. This rr.eant that Mr Calleja' s im:tw.diate supervisor was on site and was able to more dfoct1vely supervise the efficiency level of the farm and farm employees. l\,1r Calleja was officially informed of this appointrnent in a letter dated 24 January 1997. Mr Lizzio. Chairman of the Board indicaled that from his observations Mr Calleja reacted badly to the move. By affidavit and evidence, Mr Lizzio submitted that the Directors were dissatigfied with Mr Callep 's performance in regard to:- Contract plan.ters were allowed to do a substandard job when planting in 1995; In 1995 young cane was sprnyed for gra.,s with the chemical ''Velpar"; Tiie high rise spray tractor which the Board approved to purchase for a cost of $53,000 finished up cu.sting the company $90,000; Possible con:fiict of intern.~ with planting contractors engaged; Board decision in regard to use of chemicals not implemented; Cane billet, were planted so shallow; .Purchase of farm equipment; and Inability of Mr Calleja to work effec-Jveiy with the new General Manager. ln considering the areas of dissatisfaction highlighted by Mr Lizzio, Hie ConJIDis,10n has takrn into consideration the capacity of Mr Calleja to manage large scak farming operations. From the evidence of Mr De Munari t,\0:re is no doubt that !he Board appreciated :Mr Calleja' s hard work a.'ld de<licalion through long hours as well as ihe fact tha! he was a good farmer. The supervision of large scale operations demanded ma.'lagerial capacity commensurate wirh the size of the operation together with the capacity to co- ordinate and methodically organise t!,e workforce. 'fhe Commission acknowledges that a number of dire~·torn took an a,;.;tive interest in the new venture and on regular visits expressed views on either farrn.ing 1nethods c1r types of equipment A<. such Mr Calleja was subiect to the receipt of a number of diverse points of view. In all business operations !he Directors have a responsibility tu ensure that return on capital is mai!ltaint'.d at an optimum level. In making determinations Din,ctors must familiarise themselves with all aspects to ensure that the workforce is contented whilst recognising the demands of shareholders. I accept the evidence of Messrs Lizzio and De Munari, and for reasm1s given by Mr Lizzio, that the Board had concem, about the capacity of Mr Ca!lej.1 to opcrnre such a large fann and also his preparedness to work with lhe new General Manager. The growing of sugar is seasonal and an important aspect is managing the various stage.~ of the preparation of planning and monitoring harvesting. Delays at any stage may cawc considerable loss -r.{ inconte, In making a deterrnination the Board did nor have the benefit of an extended period cl review. So be lt. me Board had given Mf Calleja a long period of time lo ad;,pi to a .large scale farm and work undr.r a new General Manager. In co.1rn1der...t1on of the evidence. icspedally ihat of Mes;rs Lizzio and De Munari, I am satisfied that considerable tolerance was shown to Mr Calleja. T1ie Chairman adv1se<l ihe applicant by letter dated l September 1997 nf s\;-rious concent'3 about hi.-; rrAanage-rncnt of the farm. \.vfilist Lhere was om:J:1icting e,,dence regarding ilie opportunity given to Mr CaUeJa by the Bo~rrd ffi('.ehng was held on 26 Sept.:mber 1997. Based on the rli'.'cussions at that meeting the decision was made lo dismiss Ylr CalkJa. The Com1nia::sion is satisfied that in view of the corresp.:mde-nce, discussiori.s and the Board meeting that fairness was extended to a level which satisfies the provisions cf ih~ Workplace Relntions Act 1997, 27123_1.DOC -- 1 of 2 -- 476 ()u consideration of th;:, submi.~s.ton,,;,, e'\·idevce and Cornrnission sat1sfie<l that the dismissd tv:12, not h.:';fsh. lWIC3S(JD.3b]e. \fr C, C;ilkja tf.n his Cflvn and Cundy Mr R. Cu.1kn nf Au:,.."f.c.-11ian. s)f Ernployers {;n 0:;iw.'1f ot' the GAZETTE 1998 14 1998 GOVERNIV1E:-JT 1NDlJSTRLAL GAZETTE 477 -- 2 of 2 --