Banks v Australian Aquaculture Pty Ltd [2004] QIRC 32 (2004) 175 QGIG 981

12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 981 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Gregory Francis Banks AND Australian Aquaculture Pty Ltd (No. B1275 of 2003) VICE PRESIDENT LINNANE 26 February 2004 Unfair dismissal application – Whether applicant was a “short term casual employee” – Applicant not a casual employee and therefore not excluded from making application for reinstatement – Applicant dismissed for conduct, capacity or performance issues – Applicant not sufficiently warned about any conduct, capacity or performance issues – Dismissal found to be harsh, unjust or unreasonable – Reinstatement and re-employment impractical – Conduct of Applicant after dismissal considered – Compensation awarded – Compensation reduced for period when Applicant was not actively seeking employment – Industrial Relations Act 1999 s. 72(1)(c), s. 72(8) and s. 77. DECISION [1] This is an application by Gregory Banks (Applicant) seeking reinstatement to his former position as aquaculture handyman with Australian Aquaculture Pty Ltd (Respondent) pursuant to Chapter 3 of the Industrial Relations Act 1999 (Act). [2] The Applicant commenced employment with the Respondent on or about 31 March 2003. He completed a form on being interviewed for the position (Exhibit 6). He was terminated by Mr Peter Marchesin, sole director of the Respondent, on or about 23 July 2003. In his written statement (Exhibit 16), Mr Marchesin states that the Applicant was terminated for the following reasons: • the Applicant did not do the work assigned to him; • the Applicant did not do the work in a timely manner; • the Applicant demonstrated his unsuitability for the type of work; and • the Applicant’s behaviour towards his superiors was poor and unacceptable. [3] On termination the Applicant did not receive any pay in lieu of notice. [4] The Respondent asserts that the Applicant was a short term casual employee and was thus excluded from making application for reinstatement: see s. 72(c) of the Act. That then is the first issue for determination. Was the Applicant a “short term casual”? [5] Section 72(1)(c) of the Act provides as follows: “(1) Section 73(1) does not apply to – … (c) a short term casual employee, unless the dismissal is for a reason mentioned in section 73(2)(i), (j), (k) or (m); …”. [6] Section 73(2)(i), (j), (k) or (m) have no application in this matter. [7] Section 72(8) defines the term “short term casual employee” as follows: “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.”. [8] For the employment of the Applicant to fall within the definition of “short term casual employee” within s. 72(8) of the Act three criteria must be met. Firstly, the Applicant must be a casual employee. Secondly the Applicant must not be a casual employee who is engaged by the employer on a regular and systematic basis for several periods of employment during a period of at least one year. Thirdly, the Applicant must be a casual employee who, but for the Respondent’s decision not to offer him further employment, had a reasonable expectation of further employment by the Respondent. [9] Unless the Applicant is a casual employee the exclusion in s. 72(1)(c) has no application. The first issue for determination then is whether the Applicant was a casual employee. [10] The true nature of any employment relationship depends on the facts of each case. As Starke J said in Doyle v Sydney Steel Company Limited (1936) 56 CLR 545 at 551: “The description “casual worker” is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact …”. -- 1 of 7 -- 982 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 March, 2004 [11] Whilst the legislative provisions of the Workplace Relations Act 1996 and the relevant regulation made under that legislation uses different terminology to that found in the Industrial Relations Act 1999, the decision of the Full Bench of the Australian Industrial Relations Commission in Yasmin S.B.Cetin v. Ripon Pty Ltd trading as Parkview Hotel (Print PR938639) has some relevance. At paragraph 59 of that decision the Full Bench said: “In our view all the facts and circumstances bearing upon the nature of the engagement should be considered in determining the true character of the employment. Consistent with the approach of Moore J in Blue Line Cruises, the informality, uncertainty and irregularity of an engagement supports a conclusion that the employment has the characteristic of being casual. Conversely regular and systematic engagements with a reasonable expectation of continuing employment are usually not characteristic of casual employment.”. [12] Further the Full Bench stated: “In the matter before us the parties characterised Ms Cetin’s employment as casual and her employment was classified as casual under the Award. But in our view it would be wrong in principle to treat the character ascribed by an award to particular employment, and adopted by the parties, as conclusively determining the character of the employment for the purpose of regulation 30B(1)(d). Nor is the fact that Ms Cetin was paid a casual loading in lieu of sick leave, annual leave and public holidays determinative of whether or not she was a casual employee for the purpose of regulation 30B(1)(d). Each of these incidents is a consequence of the characterisation chosen by the parties. Rather than being conclusive, each of these matters is simply a factor to be taken into account in determining the true character of the employment. As Lee J observed in Gurran v Tarbook Pty Ltd: ‘If the parties to an employment contract have attempted in the terms of their contract to describe their relationship in a manner that does not accord with the facts, the relationship established by the facts will prevail.’”. [13] The evidence before me is clear as to the following: • The Applicant, at interview, was informed by Mr Marchesin that he was to work Monday to Friday inclusive and that he was required to work the hours of 8.00a.m. to 5.00p.m. on each of those days. Mr Marchesin stated that, at the initial interview with the Applicant on 19 March 2003, the Applicant was advised that he would start work at 8.00a.m. and end at 5.00p.m. and that he would have one hour for lunch and other breaks. He was further informed that he was expected to arrive on time and leave at the “quitting time” and that he was to do the tasks assigned to him. • During the course of the interview the Applicant was informed of the potential for continuing work once the construction of the aquaculture project was completed; • The Applicant did in fact work during the period 31 March 2003 to 23 June 2003 and on each of those weeks he worked Monday through Friday and on each of those days he worked 8.00a.m. to 5.00p.m., except for one day he had off work sick i.e. in all but one week the Applicant worked a forty hour week. • The Applicant was informed at interview that he was being employed as a casual employee. • The Applicant referred to himself as a full-time casual employee. • The Applicant was informed at interview that he was to be paid an hourly rate of $12.70. • The Applicant worked on six public holidays during his employment i.e. the public holidays that fell on a Monday to Friday. He was advised by Mr Marchesin that he need not work on such days but if he did not work he would not be paid. • On each of those public holidays the Applicant received $12.70 per hour i.e. the same rate as any other day of his employment. • The Applicant was not paid for the one day he had off work sick. • The construction of the Respondent’s aquaculture project was not yet completed at the time of hearing this application i.e. close to five months after the Applicant’s dismissal. [14] The circumstances surrounding the Applicant’s employment lead me to the view that the Applicant was not a casual employee. He was engaged as a full-time employee to work on the construction of the project. Whilst the employment of the Applicant may have been a temporary one (i.e. until the completion of the construction of the project), that did not make the nature of his employment one of a casual employee. [15] The indicia pointing to the engagement of the Applicant being casual are as follows: • the Applicant was informed that his employment was of a casual nature; • the Applicant was paid on an hourly basis; • the Applicant was paid a casual loading on his hourly rate of pay; • the Applicant was not paid any annual leave or sick leave; and • whilst the Applicant worked on public holidays that fell on a Monday to Friday he was paid the same rate of pay that he received on non- public holidays. [16] A number of these incidents was as a consequence of the characterisation chosen by the parties i.e. that the Applicant’s engagement was as a casual employee. [17] The indicia to the contrary are as follows: • The Applicant was informed prior to commencing employment of the days of the week and the hours of each day that he was required to work. • Those days and hours did not vary i.e. Monday to Friday inclusive and 8.00a.m. to 5.00p.m. on each such day. • The work performed i.e. general labouring work connected with the construction of the project, did not vary greatly. • At the time of his engagement the Applicant had a reasonable expectation that, subject to performance issues, he would be employed at least until the completion of the construction of the aquaculture project which Mr Marchesin suggested would be late January 2004. -- 2 of 7 -- 12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 983 [18] Taking into account all the circumstances of the engagement, I consider the indicia of work on regular days and regular hours per day i.e. 40 hours per week worked between the hours of 8.00a.m. and 5.00p.m. Monday to Friday, outweighs the characterisation of the relationship by the parties and the other indicia supporting the notion of casual employment. [19] I thus find that the Applicant was not a “short term casual employee” and therefore is not excluded from making application for reinstatement under Chapter 3 of the Act. Was the dismissal unfair? [20] The Applicant responded to a newspaper advertisement for an agricultural handyman position in or about March 2003. The Applicant was interviewed by Mr Marchesin on 19 March 2003. In his application form the Applicant said “no” to the question “have you ever worked on an aquaculture farm”. On the same form the Applicant advised the Respondent that he did not have “backhoe” experience and stated that he did have “concrete” experience. [21] In the course of the interview the Applicant was advised of the hourly rate of pay and he agreed to that salary. Mr Marchesin in his statement said that the Applicant was informed at the interview that he would be “building ponds, installing filtration systems, installing various greenhouses, setting up breeding systems for freshwater and marine fish, corals, invertebrates and plants, conditioning sheds, moving plant equipment from Cairns to Kuranda” (Exhibit 16). It was the Applicant’s belief that he was employed to “help to establish the aquaculture business” and that he was employed to perform labourer duties. [22] The Applicant had formed the view that, in the last week of his employment with the Respondent, he was being required to supervise other workers. The evidence did not substantiate the Applicant’s view. Mr Marchesin was his supervisor and Mr Marchesin at no stage informed him that he was to undertake supervisory duties. It was some conversations with the other employees which led the Applicant to this view. On the evidence I find that the Applicant was never expected to supervise other workers whilst employed by the Respondent. [23] The employment lasted from 1 March 2003 to 23 July 2003 i.e. 16 weeks. [24] Whilst Mr Marchesin in Exhibit 16 outlined four reasons for the termination of the Applicant, the evidence seemed to concentrate on two issues. Firstly, the Applicant’s continual questioning of the rate of remuneration being paid to workers at the aquaculture construction. The second issue was the time taken by the Applicant to perform certain duties assigned to him by Mr Marchesin. [25] The questioning of the rate of remuneration had some history. According to Mr Marchesin’s evidence the issue first arose about one month after the Applicant commenced employment with the Respondent. At that time another employee organised a meeting of the workers on site. At that meeting the wage rate was discussed and it was indicated to Mr Marchesin that Wageline had suggested an award from a different industry should apply – presumably the Building Construction Industry Award – State 2003. Mr Marchesin states that he investigated the issue further with Wageline and checked the information he had previously been given by Wageline. [26] After that Mr Marchesin states that he met with the workers and handed each of them a sheet of information about his discussions with Wageline. It was Mr Marchesin’s evidence that the Applicant was in attendance at that meeting and received a copy of the information sheet which contained the contact names and telephone numbers of the Wageline personnel. Whilst the Applicant conceded that he did attend this meeting he denied receiving any such documentation at this time. His evidence on this point was supported by Mr Gregory Wheeler. Mr Wheeler was also employed by the Respondent as an aquaculture handyman during the time of the Applicant’s employment. At the time of giving evidence for the Applicant however Mr Wheeler was unemployed having been terminated by the Respondent towards the end of November 2003. [27] Mr Marchesin’s evidence was that he had a further discussion with the Applicant after they had moved the equipment from the building to the farm wherein he explained to the Applicant that the Respondent was then involved in the “setting up phase” of the aquaculture project and that the job he was employed to perform involved “handyman tasks”. At this time Mr Marchesin says that he informed the Applicant that if he was unhappy with the wage he was receiving and duties he was required to perform, that he could leave the Respondent’s employment. [28] On 21 July 2003 (2 days prior to the termination) Mr Marchesin says in his statement (Exhibit 16) that the Applicant approached him “in front of the new employees” and “demanded that he and all the other employees be paid according to the award for construction employees”. Mr Marchesin says that the Applicant provided him with a copy of the award downloaded from the Wageline computer system. Mr Marchesin said in his statement that the Applicant stated that he was representing all the employees and that the Applicant accused him of “deliberately” underpaying all the workers. Mr Marchesin says that he advised the Applicant that he would call Wageline and would get a copy of any award that applied to aquaculture. [29] Mr Marchesin said that he was amazed that the Applicant would again question the salary arrangements as the use of $12.70 per hour rate of pay had been explained to him on previous occasions. [30] The Applicant, on or about 25 July 2003 recorded his version of this meeting in his diary (Exhibit 1). The account generally accords with his oral evidence and is as follows: “Approached Peter Marchesin at site office to discuss employee concern. We were not being paid by the proper award and our reluctance to further use the backhoe without the proper licence. Greg Wheeler and Daryle Serenhaysen there as a witness. A discussion then proceeded where we were informed by Peter that we were being paid under the Agriculture Handyman’s Award. I then asked if we could see this award. Peter then asked if we were calling him a liar. I replied on three separate occasions that this was not the case. We just wished to view the award we were being paid under and that doing this would put a stop to any concerns we had on this pay issue. Peter then said he would get a copy of this award for our viewing. We then returned to work.”. [31] According to the Applicant’s oral evidence this meeting occurred as a result of issues being discussed by four of the Respondent’s employees. The issues had been discussed amongst themselves for some couple of weeks and they came to a head during smoko on 21 July 2003. The issues were the wage rate being paid to them, the driving of the backhoe by unlicensed drivers, the fact that there was no first-aid kit, that there were no circuit breakers on any of the electrical boxes and that electrical work was being undertaken by persons unqualified to perform such work. [32] On the morning of 21 July 2003 three of the workers, including the Applicant, went down to the site office to speak with Mr Marchesin. According to the Applicant’s evidence Mr Marchesin, his secretary and three new employees were in the office at the time. The Applicant approached Mr Marchesin and suggested to him that the three of them would like to talk to him about some concerns they had. According to the Applicant, Mr Marchesin responded by saying “yeah, not a problem” and they walked outside. The Applicant could not remember who suggested they move outside away from the three new employees but the discussion occurred away from these new employees. The Applicant’s version of this event is supported by other witnesses. On the evidence before me I find that this discussion did not occur “in front of the new employees” as alleged by Mr Marchesin. -- 3 of 7 -- 984 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 March, 2004 [33] The Applicant said that he raised the workplace health and safety concerns with Mr Marchesin and then discussed the wage rate. On this point the Applicant said that he had been given information from Wageline which contradicted the information given to the workers by Mr Marchesin. It was the Applicant’s evidence that Mr Marchesin also said that he was considering engaging a private contractor to complete the filtration part of the project. According to the Applicant this did not concern him as he thought he would be performing labouring duties for any such contractor engaged. There was nothing said which caused the Applicant to think that the contractor would replace him. It was the Applicant’s evidence that the discussion got quite heated particularly when Mr Marchesin accused the workers of calling him a “liar”. [34] This meeting concluded with Mr Marchesin advising the workers that if they did not want to operate the backhoe they need not do so. Further Mr Marchesin said that he would again contact Wageline about the wage rate issue. The three employees then went back to work. [35] It was Mr Marchesin’s evidence that he again visited the Applicant that afternoon and pointed out to him that he was not working as a “construction worker in the construction industry”. According to Mr Marchesin, the Applicant then demanded that his work be monitored and that he be paid according to awards for the various jobs he was performing. [36] Once again the Applicant, on or about 25 July 2003, recorded his version of this meeting in his diary (Exhibit 1). Generally this accorded with the Applicant’s oral evidence of the event and is as follows: “Peter approached myself and other employees regarding our award wages concern. He informed us that there was no award that covered our type of employment and he had been informed by Wage Line that since there was no award he, as our employer, have the right to decide how much he paid us. He then asked me to sign a untitled document. I stated to Peter that this document was not a complete list of our duties e.g. site and job planning, equipment ordering and material ordering, backhoe operation and repairs and taking charge of other employees and being responsible for their workplace health and safety. Peter then asked if I was refusing to sign this document. Fearing I may lose my employment I complied and signed it. I then asked if Peter would sign the copy he was giving me. He replied ‘No.’ I then returned to work.”. [37] The Applicant’s oral evidence is that Mr Marchesin approached him about the Wageline documents (copy of an award) that he had provided to Mr Marchesin earlier in the day. There was then a discussion on the type of work that the Applicant was performing. It was the Applicant’s evidence that Mr Marchesin also stated that he was unhappy that the Applicant had taken the lead in the discussion earlier that day. [38] The Applicant’s evidence was that Mr Marchesin at this meeting informed him for the first time that he was unhappy with his work performance. According to the Applicant’s evidence this was the first occasion that Mr Marchesin had expressed any dissatisfaction to him about his work performance. [39] The evidence before me suggests that both the Applicant and Mr Marchesin had telephone contact with Wageline. It is unknown what each told Wageline about the duties being performed. Suffice to say it would seem that they received different advice from Wageline. The Applicant was not satisfied with the information given to him by Mr Marchesin when he was receiving different information from Wageline. I can understand the frustration being experienced by Mr Marchesin with his efforts to determine a wage rate being regularly questioned. It is however the right of any employee to question the correct rate of pay for the duties being performed. It is unfortunate that the parties did not engage in a different strategy to determine whether or not an award applied e.g. an inspection of the work site and the duties being performed. In this application it is not necessary for me to decide the issue. [40] The second issue relied upon by Mr Marchesin during the course of the evidence was the time taken by Applicant to perform certain duties i.e. to complete the filtration part of the project. [41] In this regard Mr Marchesin’s evidence was that approximately one month before the Applicant was dismissed from employment he “noted increased dissatisfaction on his part and slowness in doing assigned tasks”. According to Mr Marchesin he “chatted” with the Applicant and told him “how important it was” for him to “promptly set up the concrete pad for the filter areas”. Mr Marchesin said that he “relayed” to the Applicant on several occasions that he needed to have the concrete pad in as soon as possible. [42] It was also the evidence of Mr Marchesin that on 21 July 2003 (two days prior to dismissal) he told the Applicant that he was “extremely unhappy with the time he was taking to prepare the site for the concrete pad”, that it was “taking far too long” and that he “urgently needed to have the work done” and that he would contract with companies to do the work rather than try and use the Applicant. [43] Mr Banks had represented himself as having experience in concrete work yet, according to Mr Marchesin, the Applicant demonstrated an inability to perform simple tasks such as “levelling a site for the pouring of cement, the placement of rebar” and demonstrated “confusion in following simple instructions”. According to Mr Marchesin, the Applicant spent an “inordinate amount of time in trying to level an area for a concrete pad” and consequently the project was delayed. [44] It was the Applicant’s evidence that he turned up for work each day and did the work assigned to him by Mr Marchesin although the Applicant conceded that often he would not see Mr Marchesin for a week or two and sometimes longer. He said he was given an overall direction by Mr Marchesin. [45] As for the timeliness of the work performed, the Applicant concedes that Mr Marchesin told all workers that he was on time constraints and that he was wishing to get the project up and running so that he could start to receive an income from the project. The Applicant says that Mr Marchesin often said that “things weren’t going as planned” and it was the Applicant’s view that it seemed to be the “norm at the farm”. The Applicant said that Mr Marchesin would sometimes change his mind on the way he wanted work to be performed and that on occasions the necessary equipment to perform the work was not available. The evidence of James Partridge, the current supervisor at the Respondent’s construction project, would tend to support the Applicant’s evidence that it was common for Mr Marchesin to change his mind and direction on jobs that had been allocated to employees. [46] The Applicant’s evidence was that he had been engaged on the filtration part of the project for approximately one month prior to his termination. His evidence was that he experienced delays in the completion of the filtration part of the project as three quarters of the pit was very hard rock and there were a lot of problems in levelling the pit area and preparing it for the concrete floor. [47] It was the Applicant’s evidence that Mr Marchesin gave him no time lines for the completion of the work he was to perform. There was no contrary evidence in this regard. [48] The Applicant’s evidence was that there were a couple of occasions whilst he was employed on the filtration part of the project when Mr Marchesin approached him personally and questioned him as to why the work was not going as planned or why it was taking so long. The first such occasion was when there was a breakdown with the backhoe approximately one week into work on the filtration part of the project. Mr Marchesin found the Applicant using hand-tools on the job and inquired as to why he was not using the backhoe. The Applicant then informed Mr Marchesin that the backhoe was not working. -- 4 of 7 -- 12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 985 [49] Another occasion was when Mr Marchesin arrived and indicated that he wanted to order the reo-mesh for the concrete reinforcement of the bottom of the pit. According to the Applicant, Mr Marchesin asked him how the work was going and he responded by suggesting to Mr Marchesin that they get an excavator to help break up the bottom of the pit as the backhoe was not powerful enough to do the job. The Applicant stated that he advised Mr Marchesin at that time that it was too early to order the reo-mesh as the pit was not ready for it. The Applicant said that Mr Marchesin had indicated he originally expected this job would be completed in one week. [50] The Applicant could also recall a conversation with Mr Marchesin wherein Mr Marchesin said that the work was going too slow, that he had to have it done quicker and that he was going to get some more employees. Mr Marchesin’s evidence was that this discussion occurred around 7 July 2003. [51] Much evidence was adduced about the state of the filtration pit at the time of the Applicant’s dismissal. Much of the evidence was conflicting. I have formed the view that the filtration pit was not completed as at 23 July 2003. In actual fact the evidence of Mr Marchesin was that it was not completed until approximately 20 October 2003 i.e. three months after the Applicant’s dismissal. Yet it was the evidence of Mr Marchesin that it was very important to have this part of the project completed before anything else was undertaken. [52] Dismissal Meeting: Mr Marchesin stated that on 23 July 2003 he spoke with two employees and asked them what time the Applicant arrived for work on that day. Neither of these employees gave evidence in the hearing. As a result of the information he received Mr Marchesin accused the Applicant of arriving late for work on this day. Mr Marchesin says that the Applicant did not challenge him when confronted with the late attendance. Mr Marchesin again informed the Applicant that he had verified the rate of pay with a number of people including Wageline, a representative of his State Member of Parliament, his lawyer and a workers’ compensation lawyer and they had all advised him that what the Applicant was asserting was incorrect. [53] According to Mr Marchesin’s evidence, he then told the Applicant that he was going to have a “company come in and do the work” that the Applicant was assigned to perform and that he no longer had “need of his employment”. Mr Marchesin also stated that he told the Applicant during the course of this meeting that he had come in late for work on 17 July 2003 and accused him of being habitually late. [54] On this issue of lateness for work Mr Marchesin relied upon information conveyed to him by other workers. No other person gave first hand evidence of the Applicant being late for work on any occasion. [55] The Applicant again recorded in his diary his recollection of the meeting with Mr Marchesin on 23 July 2003 (account was written on or about 25 July 2003) as follows: “12/25 approached by employer, Peter Marchesin, while on lunch break. Asked by him to move away from other employees so as to conduct a private conversation. The following points were discussed; (1) why I had not instructed other employees to perform work duties. I replied that we were waiting for ordered materials and his direction on concrete formwork layout, (2) informed by Peter that he held me responsible for jackhammer hire expense ($168) approximately that was not required. I replied that after waiting two days for the jackhammer, myself and another employee, Daryle S, which stands for Serenhaysen proceeded to use equipment on hand and our perseverance had prevailed and the problem rock area had been overcome but we had only within half an hour prior to the arrival of jackhammer been able to achieve this and even a phone call from me to inform him of this would have been too late. I apologised for this and said I would endeavour to make sure that this did not happen again. I then asked Peter why he felt this was my responsibility. He ignored my question, instead stating he felt over the last couple of days I had not been happy and he had not been happy with me. I assumed this was because of our conversation two days earlier regarding award pay structure and my refusal to drive backhoe unlicensed. I replied that I was not happy nor were other employees and I’d like to sort out the problems. I then asked if I was being instantly dismissed. Peter replied ‘Yes.’ I then collected my personal belongings. A few minutes later I asked Peter if my wages were in the bank. He replied ‘yes, you are always paid on a Wednesday.’ I replied ‘No, that’s not always the case.’ He then stated it would be there when he was ready. I then left the premises immediately.”. [56] The Applicant’s oral evidence was that on 23 July 2003 he was waiting for Mr Marchesin to arrive to give him some direction on the formwork and to discuss with him the quotation that had been received for some formwork hire. He had indicated to the secretary that morning that he needed to speak with Mr Marchesin. When Mr Marchesin arrived he asked the Applicant to move away from other employees before the discussion between them commenced. According to the Applicant, Mr Marchesin said that he was disappointed about the jackhammer incident and that he felt that the Applicant was responsible for it and that the Applicant had deliberately cost him money. Mr Marchesin also accused him of deliberately going slow on the project which again was costing him money. Mr Marchesin then asked him what time he arrived for work that day and indicated that other employees had stated that he did not arrive until 8.20a.m. The Applicant said that he advised Mr Marchesin that was not true and that he had arrived at 8.00a.m. [57] The Applicant did concede that there were some days when he did not commence at 8.00am but stated that on those occasions there had been heavy rain and as he lived in a rainforest and used unsealed roads he may have been 10 or 15 minutes late for work on such occasions. The Applicant’s evidence was that if he arrived late for work he caught up the time by working through smoko or part way through his lunch break. In fact the evidence of Mr Wheeler (Exhibit 9) was that the Applicant was not habitually late for work and that if he was late due to rain on his access road he compensated by taking short breaks (smoko or lunch) to make up the time. This was consistent with the Applicant’s evidence. Further Mr Partridge’s evidence was that the Applicant was not habitually late for work. [58] During the discussion on 23 July 2003 Mr Marchesin also informed the Applicant that he was disappointed with his attitude without elaborating upon the attitudinal problem. Mr Marchesin said that he held the Applicant responsible for the slowness of the completion of the pit project. Mr Marchesin said that he again discussed the wage rate being paid to the Applicant, how he had accepted that wage when first interviewed for the position and how he had opportunities to consult with Wageline and to verify that there was no aquaculture award. He further informed the Applicant that he was “creating disharmony in the workplace and instilling friction between the workers and management with his baseless claims”. Ultimately Mr Marchesin informed the Applicant that he was being dismissed. The Applicant was not paid any monies in lieu of notice. The Applicant left the project site immediately thereafter. [59] A Separation Certificate dated 29 August 2003 (some 5 weeks after the dismissal) was issued to the Applicant (Exhibit 4) and that indicated that his employment was terminated due to: • shortage of work or redundancy; • unsuitability for this type of work; and • unsatisfactory work performance. [60] The evidence does not reveal any shortage of work on the construction of the project. -- 5 of 7 -- 986 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 March, 2004 [61] Section 77 of the Act sets out the matters the Commission must consider in deciding whether a dismissal was harsh, unjust or unreasonable. The first matter is whether the employee was notified of the reason for dismissal. The evidence is that Mr Marchesin did raise a number of issues during the discussion with the Applicant which led to his dismissal. [62] The second relevant matter given that the dismissal of the Applicant was said by Mr Marchesin to relate to his conduct, capacity and performance, is whether the Applicant had been warned about the conduct, capacity or performance. Mr Marchesin in Exhibit 16 stated that he had given the Applicant “numerous warnings” about his work performance. There was however no evidence as to the specifics of any such warnings or the timing or such warnings. [63] The evidence is clear that Mr Marchesin was concerned about the delay in the construction of the project. The Applicant agreed that Mr Marchesin had informed him that he was under very severe time constraints to get the project up and running. The Applicant also conceded that Mr Marchesin expressed disappointment that the project was going so slowly. However, at no stage prior to 21 July 2003 did Mr Marchesin specifically question with the Applicant the quality of his work. There is no evidence on which I am prepared to rely that would indicate that Mr Marchesin warned the Applicant about his conduct, capacity or performance prior to 21 July 2003. It was the Applicant’s evidence that Mr Marchesin placed no time frame on the performance of his work and Mr Partridge’s evidence was that he could not recall Mr Marchesin putting any time frames on the work to be done. [64] Given that the filtration pit was not completed until approximately 20 October 2003, the fact that it was not completed on 23 July 2003 does not appear to me to warrant the dismissal of the Applicant’s employment. It is conceded that following the Applicant’s dismissal work on the filtration pit did not recommence until 6 October 2003. The Applicant has given reasons for the delay in construction and they appear to be plausible. Perhaps it would have been preferable for Mr Marchesin to have given the Applicant more direction in terms of the time frame for the completion of the filtration pit part of the project. As Mr Marchesin stated, the Applicant was unable to level the pit in a timeframe that was suitable to him. The problem is there is no evidence before me that he advised the Applicant of the time frame that was suitable to him. [65] The third relevant matter to consider, given that the dismissal related to the applicant’s conduct, capacity and performance, was whether the Applicant was given an opportunity to respond to the allegations about his conduct, capacity or performance. Mr Marchesin had made a decision to terminate the Applicant prior to the meeting on 23 July 2003. Whilst Mr Marchesin raised certain matters with the Applicant in that meeting there was little in the way of specific allegations to which the Applicant could respond. [66] Even on Mr Marchesin’s evidence the Applicant was not, on 23 July 2003, informed that he was being terminated because he did not do the work assigned to him, because he did not do the work in a timely manner, because he had demonstrated his unsuitability for the type of work and because his behaviour towards his superiors was poor and unacceptable. Just to have informed him of this would not have been sufficient because unless each of the allegations were particularised the Applicant could not have been in a position to respond. [67] The Applicant in this instance was not aware of the precise nature of the Respondent’s concerns regarding conduct, capacity or performance and, as a result, could not have had a full opportunity to respond to those concerns: see Gibson v Bosmac (1995) 60 IR 1. I therefore find that the Applicant was not given an opportunity to respond to any allegation about his conduct, capacity or performance prior to dismissal. [68] In addition to these matters I consider the failure of Mr Marchesin to counsel the Applicant on his performance and to provide him with some assistance to improve his performance to be a matter of concern. It was not until two days prior to his termination that the Applicant became aware that Mr Marchesin was unhappy with his performance. Further, as the evidence revealed many of the workplace health and safety concerns of the Applicant were warranted with the Department issuing warnings to Mr Marchesin after the termination of the Applicant’s employment. [69] Having considered all of the evidence before me I have formed the view that the termination of the Applicant’s employment on 23 July 2003 was harsh, unjust or unreasonable. The dismissal was therefore unfair. Remedy [70] The primary remedy is reinstatement when a dismissal is found to be unfair. The evidence is that the Respondent now employs approximately six persons. It is thus a relatively small enterprise. Further I have formed the view that by the time of the Applicant’s dismissal Mr Marchesin had become exasperated with the Applicant’s questioning of him, particularly in respect of the wage rate. [71] Another factor to be considered in the assessment of whether reinstatement is practicable is the Applicant’s conduct since dismissal. [72] On 24 July 2003 (the day after his dismissal) the Applicant lodged a complaint with the office of Workplace, Health and Safety (Exhibit 12) listing the following matters: • “Electrical wiring by unqualified employees as directed by Employer; • driving and operating of bulldozer and backhoe by unlicensed employees as directed by Employer; • construction site no work place health and safety procedures in place e.g. steel cap boots, helmets, ear and eye protection for small tools; and • direction of staff to use chainsaw without appropriate licence.” [73] This complaint resulted in inspections of the aquaculture project site by officers of Workplace, Health and Safety, warnings to Mr Marchesin were subsequently issued. [74] The Applicant further corresponded with the Mareeba Shire Council about whether a Respondent’s structure in Atherton was covered by an application to the Council. The Applicant also contacted the Immigration Department in respect of an allegation about the employment of illegal immigrants. [75] I am of the view that, since his dismissal, the Applicant has attempted to cause the Respondent harm by complaining to each of these organisations. Some of the complaints were warranted. However, in the circumstances I have clearly formed the view that reinstatement would be impracticable. The trust relationship between the Applicant and Mr Marchesin is not likely to be reinstated. For the same reasons, re- employment would also be impracticable. [76] That then leaves the remedy of compensation. The maximum amount of compensation that could be awarded to the Applicant is $13,208 (i.e. 26 weeks @ $508 per week): see s. 79(2) of the Act. -- 6 of 7 -- 12 March, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 987 [77] It is the evidence of the Applicant that he commenced casual employment shortly after the day on which the s. 75 Conference was held i.e. 25 September 2003. He now works for a small tour operator, Currawong Wildlife Tours. His evidence is that sometimes he works three tours a week whilst on other weeks he works only one tour. Since gaining that employment he has earned on average $210.00 per week. [78] There is also the Applicant’s evidence that prior to 25 September 2003 he was trying to establish his own business. During that time he did not earn any income. Some discounting for the fact that the Applicant was not actively seeking employment during the period 24 July 2003 to 25 September 2003 will be made. Instead of seeking employment during this time the Applicant was trying to re-establish his own tour business. [79] On interview for the position in March 2003 the Applicant was given an expectation of employment during the construction phase of the project. According to Mr Marchesin he expected the construction phase to be completed in January 2004. I am also of the view that the Applicant and other employees were also given an expectation of work once the construction phase was completed. However, as Mr Marchesin indicated, he was using the construction phase to assess the performance of the Applicant and other employees. It is doubtful, given the history of the Applicant’s employment, that the Applicant would have been offered work on the aquaculture project itself. [80] In all of the circumstances I am of the view that, but for the dismissal which occurred on 23 July 2003, the Applicant could have expected to remain in employment at least until late January, 2004 i.e. a six month period from the date of dismissal. [81] Whilst employed by the Respondent the Applicant was in receipt of $508 per week. In the four months from 25 September 2003 to 22 January 2003 the Applicant would have received $8,636.00 (i.e. 17 weeks @ $508 per week) but for the termination. Given that the Applicant has been in receipt of approximately $210 per week in his current casual employment I estimate that the Applicant would have actually received $3,570 in income during that 17 week period. That leaves an amount of $5,066 that the Applicant has not received during that 17 week period. [82] Whilst the Applicant was not actively looking for employment prior to 25 September 2003 I am prepared to acknowledge that he most likely would have been unemployed for the first couple of weeks following dismissal. I have also considered the fact that the Applicant now appears to be employed as a true casual. In these circumstances I am prepared to compensate the Applicant a further two weeks’ pay i.e. $1,016. [83] I therefore order the Respondent to pay the Applicant an amount of $6,082 within twenty-two (22) days of release of this decision. Comment [84] During the course of the evidence in this matter it was revealed that certain Workplace Health and Safety concerns of the Applicant were addressed by officers of the Department of Industrial Relations resulting in certain warnings being issued to Mr Marchesin and individual employees. The evidence also revealed that at least two persons have, since receipt of those warnings, performed electrical work without having the necessary licence. Such conduct cannot be condoned. The licensing of electricians is done for a purpose and failure to adhere to the requirement to have a licensed electrician perform electrical work creates a workplace health and safety concern for all employees. I order accordingly, D.M. LINNANE, Vice President Hearing Details: 2003 17 and 18 December 22 December (Applicant’s written submissions) 24 December (Respondent’s written submissions) Appearances: Mr G. Banks on his own behalf. Mr P. Marchesin, Director of the Respondent. Released: 26 February 2004 -- 7 of 7 --