Ammerman v Aqua Marine Pty Ltd [1995] QIRC 645 (1995) 150 QGIG 1496

1496 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [1 December, 1995 ####################################################### QUEENSLAND INDUSTRlAL RELATIONS COMMISSION I ndustrial Relations Act /990 s. 295 - application fo r re insta te ment Troy Robert Ammerman AND Aqua Marine Pty Ltd (No. B/388 of 1995) CH IEF lNDUSTRIAL COMMISSIONER HA LL 17 November 1995 Application for Rei nstatement - Casual Employee - Poor Performance - Offer and Acceptance of Indefinite Engagement - Waiver - Dismissal - Employer Swearing to Fact of Alleged Valid Reason - No Particularity - No Procedural Fairness - Di smissal Declared Un lawful - Struggling Business - Reinstatement Jmpractical - Compensation Awarded. DECISION The Re spondent is a body co rporate under the law and is the proprietor of a slipway at Hope Harbour on the Gold Coast whereat it conducts the business of repairing small seagoin g vessels ranging in size from "run abouts" to yachts. Amongst the services which the Respondent offers is the cleaning of hull s and propellers and the treatment the reof wi th anti-fou li ng pre parat ions. With in t.he slipway the performance of the work involved in rendering that service appears to brand the worker as a worker o f the lowest caste. The fo reman with direct responsibility for the su perv ision of those rendering the service is Mr Stacey. The overall management of the slipway is ve sted in Mr Lund. It is, I should say. Mr Lund's managerial style to deal wi1h employees on ly through their im med iate supervisor. In early April 1995 the Ap plicant called at the sl ipway and enquired of Mr Lund whether there was work available for him. There was not and Mr Lund told him so. However, being impressed wit.h the Applicant's initiative, Mr Lund took particulars of his telephone number, and indicated to him that if work suited to the Applicant became ava ila bl e an offer of employment would be made. Some sho rt time later such work d id become available and the App licant was engaged by the Respondent. It is conunon grou nd tho1t the Appl icant was engaged as a casual at the rate of $ J 0.00 pe r hour. There is a dispute between the Applicant and the Responden t as to whether the engagement was subject to a probat ionary period of 1wo weeks. ll is unnecessary to resolve the dispute. The App licant was not term in ated within the first two weeks of his engagemen t. The App li cant was not terminated two weeks after being engaged. The App licall! continued to serve the Respondent as a casual until early Ju ly when he was o ffered and a ccepted an indefin ite engagemen t and a wage of$ I I .00 per hour. In fact, although the Applicant was unaware of it, the policy of the Respondent was to take on new staff on a casual basis subject to a probationary period of two weeks and at the en d of the two week period Lo offer the employee an indefin ite engagement or. alternatively, to inform the employee that no further work would be offe red to the employee. The reason fo r abandonment of that pol icy in the case of the Applicant lay in a d isagreement between Mr Lund and Mr Stacey. Mr Stacey considered the Applican t's pe rform ance to be unsatisfactory and that the Applican t should not be offered further work. Mr Lund was disposed to give the Applicant every opportunity to come to terms with acceptance of a place in t.he workforce. The Applicant I should say knew nothing of the disagreement. Mr Stacey gave evidence at the hearing. I entertain not the least dou bt ihat Mr Stacey entertained the bona jide belief that the Applicant's perfonnance was in adequate and unsatisfactory. In my view there was a bas is for that belief. ft is true that the conduct o f personne l relations at the s lipway is robust rather than so phisticated. I accept the point of Mr Quinn of Counsel, who appeared for the App li cant, that it wou ld have been better if. instead of telling t.hc Applican t that he was too slow, Mr St acey had se t definite time spans fo r particular jobs, or at least told the Applicant what would be acceptab le time spans for a particular j ob. 1-! owever, I also accep t that an experienced supervisor may honestly and reasonably conclu de that a particular employee is taking longer to pe r fo rm particular jobs than employees who have perfonned the work in the past. I accept also that minor imperfections co uld and d id expos e the Respondent to the loss of time and productivity. lt is not adequate to say that if all that was required to correct the defect was a dab of paint the matter should be treated as de rninimts. The evidence is that to app ly the dab of paint it was necessary to fetch a brush, reopen a paint tin and su bsequently to clean the brush. At times it would tak e the Applicant twenty (20) minutes. Failure properly to clean a hu ll, on occasion, led to jobs having to be redone after the pain ting was complete. Unsightly brush marks, li kely to be unacceptabl e to a customer, involved s imilar loss of lime. The ongoing worry was that Mr Stacey would fail to identity a vesse l which had not been properly prepared prior to paint ing wi th the result that a customer wou ld call upon the R espon de nt 's warranty sometime in the futu re. There is also the factor of the cost of' materials used in perform ing j obs more tlian once. I th ink, on the whole, that the Applicant's perfonnance was unsatisfactory and in adequate. Jn my view I think that the App li cant was aware of Mr Stacey's view. Asked in examination-in-chief. "And how frequently would you desc ribe - would you say Mr Stacey was hav ing to say pull you up on these oversigh ts?", the Applicant replied ·•Practically every time. Nearly all tl1e time." It seems to me that if the Applicant though t at all about what was taking place he must have rea li sed that Mr Stacey was dissatis fi ed wi t.h his work. Whether Mr Stacey ever brought it home to the Applicant that his employment was in j eopardy is another matter. Save fo r one incident and s ave fo r general exhortations to the workforce to improve, Mr St.accy seems to have made no attempt to warn the Appl ican t. Thal is perhaps not surprising in an environment in which Mr Stacey's superior, Mr Lund, had so conducted h imself that Mr Stacey could only reasonably have concluded that he had no authority to ac t on su ch a warning. In any event, none of that matters. Jn early July, the Applicant was engaged on an indefini te hiring and granted a sa lary increase . At common Jaw the earlier breach was waived at that point, though it might have been revived by subsequent misconduct. Further, by those acts, the Respondent represen ted to the Applicant that his perform ance had (fi nally) been adjudged satisfactory. What the Applicant did not know was that his engagement had been preceded by disagreement between Mr Lu nd an d Mr Stacey which reached the point of an argument. Mr Stacey wished to bring the Applicant' s se rvices to the Res pondent to an en d. Mr Lund, wh il s t ac knowledging th at the Applicant's pe rformance was not what it might have been, was determ ined to take the cou rse or offering him an indefinite engagement and a salary increase, no t because Mr Lund considered e ither of those steps to be just ified by the App licants perfonnancc, but in the hope that it would encou rage the Applican t to do better. Mr Lund, as manager, had his way. The Applicant was not to ld wha! his objective was. 1726 1_1.DOC f I l December, 1995) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1497 Shortly after his engagement on an indefini te hiring the App li cant was away from work for a period with a bad back. He returned to find that there had been an involuntary separation of another em ployee in consequence of a d isagreement with Mr Stacey. He returned to rece ive a general warn ing to all staff by the sec ti on supervisor, Mr Stacey, to the effect that things were go ing to change. He also received a personal warning that if he'"- -<lidn ' t pick up his act, in what we were do ing - you know, as far as productivity goes, wri ting down the materia l then we too would have to fire hirn - - " On about 20/21 July - til e ev idence is that it was Friday 20 .J uly whereas in fact 20 Ju ly was a Thursday - the Appl icant was given two weeks notice, which he worke d. Mr St.acey has sworn to the fact that notwithstand ing the warning whi ch l have set forth the App lican ts performance d id no t improve. He was unable to tell me what acts or omissions ca used him to fonn that view. In those circumstances l cannot find there was any factual basis for the reasons for the d ismissa l. Moreover, Mr Stacey did not disclose to the Applicant t.he facts which had g iven ri se to the decision to dismiss him. In the premises the Applicant was not given reasonab le opportunity to defend against the allegations made against him with in the meaning s. 292 (i). There is eve ry reason to believe that the Applicant would ha ve attempted t0 make use of such an opportunity. Whilst working out the two week notice period, the Applicam sought out Mr Lund and attempted to persuade him to withdraw the notice o f dismissal. Mr Lund told t.he Applicant the decision had been made. Indeed it had. It had been made at a meeting of Mr Lund and Mr Stacey prior to Mr Stacey g iving notice to tl1e Applicant. The Appl icant was no Lat that meeting and he had no op portunity to defend himself. In t.he c ircumstances ouL lined above the only proper course is to declare that the Re spondent unlawfully dismissed the Applicant. Reinstatement is not here practica l. Business has not been kind to the Respondent. TI1e Responden t cu rrently has t wo e mployees. A reinstat.ement orde r restores an Appl ican t to the Applicant's previous position. It does not gu arantee future tenu re. The consequence of ordering reinstatemen t of the App licant today is that the Appl icant would be dismissed tomorrow. In these circumstan ces I must form the v iew, as best I can, as to the s um of money which, to the extent that the payment of a s um o f money may do, w ill put the Applicant in the same position as ifhe had no t been d ismissed. Mr Quinn has submi tted that the correct !i gure is an amoum equivalent to six months salary. I do not consider that tliat argument may be sustained. If the Appl icant had no t been dism issed in July he would have been d ism issed by now as the Respondent shed staff. Quite when he would have been dismissed I cannot of cou rse de termine. The Respondent has not led the necessary evidence. However, f think it probable that he would have been one of the firs t employees made redundant. Mr Stacey was very dissatisfied with his performance. Mr Lund was not sa ti sfied wi th i t. His experience and range of ski ll s was limited. Doing the bes t I can I have come to the conclusion that the correct figure is $4400. For completeness, I add that in calculating that figure I draw the inference from the Appl icants evidence that he took reasonab le steps to mitigate his loss. or de r that the Respondent pay the sum of $4 400 to the Applican t wi thin twen ty-two days of this decision. Dated this seven teenth day of No vember 1995. D.R. HALL, Chieffn dustrial Commissi oner Appearances: Mr R Quinn instructed by Drake Walker and Leahy Solicitors for the Appl icant. Mr D Rogers o f Corrs Chambers Westgarth Solicitors for the Respond en t Operative Date: NIA Decision - Compensation awarded. Released: 17 November 199 5 ####################################################### 17261 I.DOC ◄ -- 1 of 1 --