Australia: Unfair dismissal cases: John Abercrombie v Davidson Farm

Workplace Directions
Last Updated: 7 February 2011
Article by Emma Reilly
John Abercrombie v Davidson Farm Services Trust [2010] FWA 8884 (30 November 2010)

Failure to properly warn leads to unfair Dismissal

The applicant had been employed on a casual basis from 21 January 2004 as a bagging machine operator in the respondent's business, which concerned the growing and harvesting of bananas. In October 2009, the applicant suffered from a work-related double hernia and went onto light duties. He underwent surgery in May 2010. In July 2010 the applicant's doctor provided a medical certificate stating that he was fit to resume normal duties. Despite this, he was kept on light duties by the respondent following a complaint of continuing discomfort from the defendant.

In mid-July 2010, the applicant attended a meeting where he was told his employment was terminated due to poor performance, including violation of company policy and Workplace Health and Safety rules. Two written 'warnings' followed, which provided a description of his unacceptable conduct.

The worker alleged unfair dismissal and applied to Fair Work Australia for remedy, contending that he was terminated due to the complications arising from his surgery.

The respondent submitted that the applicant was dismissed for performance issues including failing to secure his hair, smoking and poor attendance at his work station.

The applicant contended that the warnings he was given were not consistent with the terms of the applicable industrial instrument, the Tully Banana Services Pty Limited Enterprise Agreement 2009 ('the Agreement'). This was because the instrument referred to the need to provide two verbal warnings and a written warning, with a timeframe within which to improve performance, before an employee is dismissed. The Agreement did state that 'in serious cases' an employee might be dismissed only after two warnings.

The applicant contended that the warning he was given in relation to his pony tail falling loose was only given to him on the morning of his dismissal and he acted to rectify the situation promptly and apologised.

He also claimed that no one in a supervisory position in the workplace ever counselled him or warned him about keeping his pony tail tied up, at least in so far as a warning comprised an indication that his employment was in jeopardy because of his conduct.

There was evidence of a 'tool-box' meeting prior, where the applicant was identified as a person for whom it would be important to make sure hair was netted.

A previous employee gave evidence that other employees, including management, wore their hair unsecured or without a hat or hair net, and that the applicant was singled out unfairly.

The applicant gave evidence that his attendance at the work station was affected by his need to urinate more due to his medication.

Senior Deputy President Richards accepted that the respondent terminated the applicant for performance issues, rather than medical issues. It was also found that there were valid reasons for termination. However, the applicant was not provided with procedural fairness, because he was not warned that the performance issues were jeopardising his employment. As such, the respondent was ordered to pay the applicant the equivalent of six weeks pay.

Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Limited t/a Mt Thorley Operations / Warkworth [2010] FWAFB 10089 (24 December 2010)

Full bench finds dismissal harsh for breach of safety rule

At first instance, Commissioner McDonald found that the termination of Mr Lawrence was not harsh, unjust or unreasonable. Mr Lawrence appealed to the full bench of Fair Work Australia, consisting of Vice President Lawler, Senior Deputy President O'Callaghan and Commissioner Roberts.

The applicant had been employed for some 28 years at a mine outside of Newcastle. On 8 February 2010 he unlocked safety locks affixed by contractors, in order to operate a pump.

He had assessed the situation and thought there was no danger in doing so, as there were no people along the line of the pump.

The respondent had 'Golden Rules' about safety, which if breached, could lead to termination. 'Golden Rule' number one was:

'Never work on equipment without first applying your personal isolation lock(s) as per the isolation procedures'. The applicant's actions were in contradiction to the 'Isolation Procedures', which stated: 'Personal locks may never be removed other than by their owner, other than in the presence of and under the supervision of the General Manager or his / her appointed nominee, and in accordance with a documented procedure'.

At first instance, Commissioner McDonald considered the following in deciding whether the termination was harsh, unjust or unreasonable: 'the applicant's length of service (28 years); his unblemished employment in that long time; his hardworking attitude; he had worked in a safety critical job as shot firer for most of that 28 years; he had not breached a 'Golden Rule'; his age (55 years); his financial and personal circumstances; prior to removing the contractors' locks, he had traversed the length of the pipeline and could see that no one was working on the pipeline – just before he turned on pump number one; the applicant's conduct in removing the locks was out of character; and he was remorseful'. Despite these considerations, it was found that the respondent had a valid reason for termination, and that the termination was not harsh, unjust or unreasonable.

On appeal, it was noted that a valid reason for termination did not mean that the termination could not still be found to be harsh, including with reference to the leading statement of principle elucidating the meaning of the expression 'harsh, unjust or unreasonable' in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at p 465-6:

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

It was held that the applicant did not breach 'Golden Rule' number one, but he did breach the 'Isolation Procedures' referred to therein. Breach of those procedures was stated within to lead to 'investigation' and 'may lead to disciplinary action'. Termination of Mr Lawrence's employment on that basis in the circumstances as a whole was considered by the majority of the full bench to be manifestly harsh. The applicant was reinstated, although penalised regarding arrears of wages due to his culpability in the circumstances of his dismissal.

Interestingly, Senior Deputy President O'Callaghan disagreed with the majority decision that permission to appeal should be granted and that the appeal should be upheld. This was because Commissioner McDonald, at first instance, had considered the difference between breaching a 'Golden Rule' and breaching the 'Isolation Procedures', and there was no appealable error.

A timely reminder

Both of the above recent unfair dismissal decisions reiterate the importance of having a sound basis for termination and providing detailed warnings in that regard, for a dismissal to be upheld and not determined as 'harsh', 'unjust' and 'unreasonable'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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