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[2005] NSWIRComm 357
Industrial Relations Commission (NSW)
2005-11-02
Harrison DP
Original judgment source is linked above.
CITATION: Alley v Camnex Pty Limited T/as Combined Nursery Sales [2005] NSWIRComm 357
Phillip Reginald Alley PARTIES: Camnex Pty Limited T/as Combined Nursery Sales
FILE NUMBER(S): IRC 416 of 2005, IRC 418 of 2005
Applications pursuant to s 84 unfair dismissal and s 213 relief from victimisation - Dispute re bonus - award compliance - request for award conditions - warning issued as to conduct disputed - no basis in fact for warning - demand for return to managerial position refused - demotion CATCHWORDS: Held - refusal to reinstate to predispute position constructive dismissal - warning without substance or investigation and constructive dismissal result from request for award entitlements and statutory right to weekly pay detail - applicant victimised - termination of employment harsh urneasonable and unjust - reinstatement not practical - compensation awarded
LEGISLATION CITED: Industrial Relations Act 1996
Brandon Rhodes and Others and J J Richards and Sons Pty Ltd [2001] NSWIRComm 1063 Davis and Amalgamated TV Services 81 IR 364 Public Service Association of New South Wales and Teterycz 82 IR 172 Colosimo and Banana Traders of Australia Pty Ltd T/as P Chew and Co [2003] NSWIRComm 72 Clark v Pittwater RSL Club Limited (1998) 84 IR 309 CASES CITED: Tania Lever and Aboriginal Children's Services Ltd [2002] NSWIRComm 347 Brennan and DeVos [2005] NSWIRComm 1080 Donovan and Anor v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385 Swaran Lata Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202
HEARING DATES: 07/26/2005; 07/27/2005; 08/11/2005; 08/29/2005; 08/31/2005
APPLICANT Solicitor Mr L Hagan Baker Borthwick Solicitors LEGAL REPRESENTATIVES:
RESPONDENT Solicitor Mr Mulcahy Mulcahy Lawyers
Phillip Reginald Alley and Camnex Pty Limited t/as Combined Nursery Sales
Application for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996
Phillip Reginald Alley and Camnex Pty Limited t/as Combined Nursery Sales
Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996
1 These matters were subject to arbitration proceedings on 26 and 27 July 2005 and written submissions received from the applicant on 11 August 2005, the employer on 29 August 2005, and the applicant in reply on 31 August 2005. 2 Mr Phillip Reginald Alley was employed by Camnex Pty Ltd trading as Combined Nursery Sales ("the employer"). The employer operates nurseries in Victoria and in northern New South Wales propagating plants for sale in commercial quantities. Mr Alley was employed at the northern New South Wales nursery, located at Teven near Byron Bay, from 1 October 1993. 3 Mr Alley was first engaged as a nursery apprentice on completion of his school certificate. Mr Alley successfully completed a four year apprenticeship and continued employment until termination of that employment in the first quarter of 2005. 4 There is conjecture between the parties as to the actual date of termination of employment. The applicant requested a period of long service leave from 17 January to 15 March 2005, which was approved. These proceedings were commenced on 25 January 2005 and subject to conciliation before Commissioner Murphy in February and March 2005. 5 Mr Alley maintains that his employment was terminated actively or constructively on 12 January 2005, the date of the warning letter and demotion from the position of Assistant Manager, including the withdrawal of private use of the company vehicle. 6 In the course of conciliation proceedings the applicant sought reinstatement to the position of Assistant Manager, which was not accepted by the employer, leading to a declaration by the applicant on 4 March 2005 that he had been constructively dismissed from his employment with effect from 21 January 2005. 7 The evidence of Mr Baker, General Manager of the employer, is that he authorised an offer of continued employment to Mr Alley in the same job at a tradesperson's rate (TR p 117) which was made by the employer and refused on the basis that the continued employment was inferior to the pre-dispute position occupied by the applicant. 8 The employer contends that the applicant abandoned his employment from 16 March 2005 by his failure to report for duty on expiration of the period of approved long service leave. 9 The conciliation proceedings were attended by a substantial volume of correspondence between legal representatives of the parties tendered without objection in the third statement of Mr Alley (Ex 5). This correspondence may be described as combative and, while it reveals some uncomplimentary telephone discussion, there is no evidence of an attempt to address and resolve the issues in any manner directed by the disputes procedure contained in the award. 10 Correspondence from Mulcahy Lawyers on behalf of the employer, found in attachment F to exhibit 5, states inter alia: We acknowledge receipt of your facsimile dated 24 February 2005.
Your client is being paid in accordance with his request to be paid in accordance with the award.
Your client by his own actions has demonstrated that he does not wish to be a part of the management team and accordingly has been demoted.
Your client has not been terminated nor do the circumstances amount to a constructive dismissal but has engaged in a calculated process to bring about his own demise so as to obtain a benefit that he would not be entitled to if he had simply resigned. This submission has already been made to Commissioner Murphy.
THE EVIDENCE 11 Mr Hagan also brought evidence from Mrs Claire Alley, the applicant's wife; Mr Nigel Marshall, an employee of the employer from September 1998 to September 2004; Mr Mathew Maguire currently employed by the employer as a third year nursery apprentice; Mr Daniel Ross, an employee of the employer at Teven Nursery from late 2000 to December 2004; and Mr Andrew Standen, a former employee of the employer. 12 Mr Mulcahy brought evidence from Mr David Baker, General Manager of the employer; Mr Andy Creagh, Manager of the Teven nursery; Mr Joseph Kerry, employed by the employer as a nurseryman from 13 March 2000; and Mr Paul Jeffrey, employed at the Teven nursery as Assistant Manager. Mr Paul Alley 13 Mr Alley obtained a Certificate of Nursery Trade in December 1996 and a Certificate of Proficiency on 15 October 1997. During the course of his employment with the employer Mr Alley undertook a Farm Chemical User Training Program, leading to a license to purchase, store and use chemicals. 14 Mr Alley deposed that Mr Creagh, the Nursery Manager, appointed him to the position of Assistant Manager approximately six months prior to the completion of his apprenticeship. 15 Mr Alley deposed that Mr Creagh occupied himself with administrative functions largely carried out away from employee work stations and accordingly it was rare for Mr Creagh to be involved in direct supervision. Mr Alley put that he was required to supervise other employees and undertake additional work, such as general maintenance, cleaning up at the end of the work day, or early set up before other employees arrived. 16 Mr Alley gave evidence of Mr Creagh teaching him to operate a grass slasher on a Saturday, then slashing mush of the 40 hectare property for 4-5 hours that day with additional pay. Mr Alley put that, being his first job, he was grateful for the opportunity of advancing quickly through the organisation and the extra responsibility and experience. 17 Mr Alley put that he was required to define staff duties on a day to day basis; direct work to suit weather conditions, pick up and delivery times of plant stock, chemicals and other material used in the workplace. Mr Alley deposed that he also undertook purchasing on behalf of the nursery and other managerial tasks. 18 Mr Alley's evidence is that he continued to be paid as an apprentice, deposing that Mr Creagh advised him he would receive a pay rise on the completion of his apprenticeship. 19 Mr Alley's evidence is that he undertook the additional duties without payment over a number of years. This period included some time living in a house on the nursery grounds, described by he and his wife as old and dilapidated. 20 In his statement of evidence (Ex 3) Mr Alley deposed that his extra duties included weekend and after hours watering at least every second weekend, which involved a trip of over 30 kilometres on a winding and mostly gravel road. 21 Mr Alley deposed that he was first offered the opportunity to live in the on-site accommodation (a farmhouse) for caretaking and security purpose in 1999 when Mr Creagh was moving out to Lennox Head. Mr Alley put that he was not charged any rent, however, for the privilege of the farmhouse accommodation he was expected to do even more unpaid overtime which involved all weekend watering and all after hours watering, Monday to Friday, and the loading of large transport vehicles which sometimes arrived at 2.00am. 22 Mr Alley deposed that prior to moving into the farmhouse he took a week of annual leave during which he and his then girlfriend, Claire, (now his wife) undertook repair, maintenance, cleaning and rubbish removal. Mr Alley put that Mr Creagh was aware that he and Claire were living together at the time the offer of occupancy of the farmhouse was made, however, three weeks after they moved in Mr Creagh informed him that no girlfriends were allowed, asking: "When can you get her to move out?" Mr Alley put that this was unacceptable to him, they both moved out and rented a house in town. 23 Mr Alley's evidence at para 22 of exhibit 3 is: Thereafter a group of other employees, both male and female, moved into the farmhouse for shared accommodation on the basis that they pay no rent, but undertake the daily after hours watering for the nursery and presumably also provide security and supervision in a caretaking role as I had done in the four weeks that I had lived there. 24 Mr Alley put that he was still responsible for the slashing and general maintenance around the nursery, as well as weekend watering on a six week cycle with other employees, and required to fill in when the other employees were unavailable. 25 Mr Alley's evidence is that he subsequently discovered that his appointment to the position of Assistant Manager was correctly classified as a Senior Nursery Tradesperson pursuant to the Nurseries Employees (State) Award 323 IG 1041 ("the Award"). The definition of Senior Nursery Tradesperson is found in Cl 1, Definitions of the award. It is convenient to restate the award definitions here: 1 . Definitions
(a) Senior Nursery Tradesperson means a person appointed as such who has completed an approved nurseryperson's trade certificate course conducted at a TAFE college (or its equivalent) and who has a minimum of 5 years' practical experience within the nursery industry. This employee shall be in charge of other employees and shall work with them and direct any work which is normally done within the industry and be responsible for productivity and quality and may be required to conduct sales. (110 percent)
(b) Nursery Tradesperson means a person who has completed an approved nurseryperson's trade certificate course conducted at a TAFE college (or its equivalent) and who has a minimum of 3 years' practical experience within the nursery industry. This employee may work unsupervised and shall work with and/or direct not more than three other employees in any work which is normally done within the industry and may be required to conduct sales. (100 per cent)
(c) Mobile Nurseryperson shall mean an employee who has no formal nursery qualifications and who may be engaged in the cartage of plants and the wholesaling or maintenance of plants and surroundings for the employer's clients. (93 ) per cent)
(d) Trainee Nurseryperson shall mean an employee who is enrolled in and attending an appropriate course in his/her own time at a TAFE college and who is principally engaged on tradesperson duties, as defined, under the direct supervision of a tradesperson. (88 per cent)
(e) Micro-propagation Processor means an employee who works in a laboratory doing plant propagation, plant dissection or other work as part of a plant micro-propagation process, or any other work in a sterile environment (88 per cent).
(f) Nursery Hand means an employee who has no formal qualifications and, without continuous supervision, carries out general nursery and labouring duties and may be required to conduct sales. (83 per cent)
Wages And Remuneration 26 There is substantial dispute between the parties in respect to wages and remuneration which is subject to proceedings for recovery of monies before the Chief Industrial Magistrate, part heard at the date of these proceedings. 27 Mr Alley deposed that he had never received pay slips to inform him of the detail of his pay. 28 Mr Alley's evidence is that in July 2004 Mr Creagh informed him and others that they would receive a $19 per week wage increase from 19 July 2004. Mr Alley put that he later discovered that the pay rise was that determined by the 2004 State Wage Case (2004) 132 IR 190, but he was never paid any increase. 29 Mr Alley deposed that he had been paid a performance based pay rise in December 2003, putting that Mr Creagh informed he and another employee, Nigel Marshall, that they would receive a pay rise of $100 per week for "effort in the business". Mr Alley's evidence is that the pay rise that eventuated was $50 per week.
Christmas Bonus 2004 30 Mr Alley's evidence is that a Christmas bonus of approximately one week's pay was paid annually in the years preceding 2004. 31 Mr Alley's evidence is that in December 2004 he raised payment of the Christmas bonus with Mr Creagh and was told that there would be no bonus that year, "because things are tough with the drought and sales are down in Melbourne." 32 Mr Alley's evidence is that as Assistant Manager and direct supervisor he was concerned that staff would not remain committed to the employer if the Christmas bonus was not paid, and accordingly he made further enquiries of Mr Creagh concerning payment of annual leave loading. 33 Mr Creagh replied that he would have to talk to the General Manager, Mr David Baker, located in Melbourne. 34 The Christmas shutdown intervened. On return to work on 5 January 2005 Mr Creagh informed Mr Alley and other staff that: "Dave (Mr Baker) and Bruce (a principle of the business) are up (from Melbourne) tomorrow. We will sit down with you guys and sort out the leave loading thing and talk about you guys who think you are getting shafted." 35 Mr Alley deposed that in preparation for the meeting he studied a publication identified as the Nursery and Garden Industry Employment Guidebook ("the Guidebook") (Ex 8) and the Award, discovering that many award entitlements were not being met by the employer. 36 The evidence records that Mr Alley consulted the award by Internet; and the Guidebook, produced by the Nursery and Garden Industry NSW & ACT Association for the information of members, was available at the workplace. The guidebook is current to 19 July 2004 and shows the rate of pay for a Senior Nursery Tradesperson of $602.90 per week (after the 2004 SWC) for 38 hours per week, which Mr Alley compares to his wages of $750 per week for 45-50 hours work.
37 Mr Alley also had the use of a company vehicle for business and private use. Private use was limited to the local area and a petrol allowance of $50 p.w. was effected by reimbursement. 38 Mr Alley put that he met with the five other employees, informed them of his research and together they compiled a list of points to raise at the meeting and appointed Mr Alley as their spokesperson. 39 Mr Alley's evidence is that, immediately following some introduction, Mr Baker put that non-payment of the annual leave loading was his fault as it is not paid to staff in Melbourne, adding that he would arrange payment of four weeks annual leave loading on his return from holidays the next week. 40 Mr Alley's evidence is that Mr Baker then put that he and Mr Creagh were very approachable and if there were any other problems they were more than happy to sit down and discuss them. 41 Mr Alley then raised the issues identified by him and the other employees. 42 The issues, as set out in original handwritten notes (Exhibit 7, also Attach 5 to Exhibit 3), are: · Hours of Work · Overtime · Weekend Watering - Rates of Pay · Christmas Watering - Rates of Pay for Public Holidays · Leave Loading · Leave Records · Pay Slips - to be provided weekly · Change/Meal Room - Room to be used exclusively as a meal room not meal room/office. · Sick leave · OH&S - Written Health and Safety Policy to be displayed - Must provide Sunscreen, Hats, Long Sleeve Shirts and Pants, Showers/Eye Wash for Chemical Shed 43 There was also an issue of a toilet which was said by Mr Alley to be incapable of flushing. The employer defends this claim, putting that there was another toilet in working order and that the one complained of was served by a pump which employees did not switch on, preferring to hand flush the toilet with a bucket of water. 44 Mr Alley's evidence is that Mr Baker became angry, saying: "If you guys want to go by the award, we will go by the award and you will get nothing." 45 The evidence of Mr Alley is that the next day, 7 January 2005, Mr Creagh who had not attended the meeting of 6 January 2005 with Mr Baker, approached him saying: "I need to talk to you as well as the other staff. You have gone about things the wrong way. There are ways and means of doing things and you have shot yourself in the foot." 46 The evidence of Mr Alley is that Mr Creagh called all employees together and went through some of the issues raised with Mr Baker, including the non-flushing toilet. Mr Alley's evidence is that there is a flushing toilet in the farmhouse which is generally off limits to staff. Mr Alley deposed that Mr Creagh said: "What do you blokes want? A frigging beautician as well?" Mr Alley deposed that Mr Creagh said to him: "Phil, if you think you are hard done by, have a think about the car you drive that is worth at lease $15,000 a year". 47 Mr Creagh then informed them that they had chosen a bad time to raise these issues as Mr Baker was going through a divorce and had been diagnosed with a serious illness in recent weeks. Mr Alley put that this had not been made known to any of the staff prior to this time. Mr Alley's evidence is that Mr Creagh asked him to remain after the others had left, then informing him that: · he was no longer to use the company motor vehicle for private use and asked that he hand over the keys; · he was no longer Assistant Manager; and · he would be $150 per week worse off. 48 Mr Alley deposed that Mr Creagh became quite agitated and angry, whilst he remained calm making no other comment than: "That's fine. All I was asking for was what is written in the award"; and informing Mr Creagh that he was only acting as spokesperson on behalf of all the other employees, adding that they all sat down and worked out the issues, including Mr Jeffrey, who went against them in the meeting. 49 Mr Alley's evidence is that subsequent to the discussion of 7 January 2005 with Mr Creagh he took the following action: · On 8 January 2005 he dictated the statement (now Ex 4) onto audio tape for his wife to subsequently type out · On 9 January 2005 he and his wife attended the Nursery to video tape aspects of the workplace to be used as evidence of safety concerns for a report to WorkCover. · On 12 January 2005 he applied for long service leave from 17 January 2005 to 15 March 2005 which was approved by Mr Creagh. At the same time Mr Creagh issued him with a warning letter. 50 The warning letter to Mr Alley is in evidence in a number of places, most conveniently tendered by Mr Hagan as exhibit 9. The letter states: "It has come to my attention, that after our discussion on the 7/10/05, pertaining to behaviour that management found unacceptable for a person in your position, that you have continued to undermine my authority. These matters include that of lowering staff morale and also pushing the issues of the award wage and working conditions which have been explained to yourself and other staff members and promptly resolved.
I find this behaviour totally unacceptable and am giving you this opportunity to explain your actions.
If these actions are to be continued, I have no other option than to inform you that your employment with this company is being scrutinized for termination." 51 Mr Creagh asserts that he read the letter and discussed it with Mr Alley. Mr Alley's evidence is that he was given the letter in an envelope with a caution that he must think about what he had done, that the letter had been prepared by a solicitor at no cost to Camnex, putting that Mr Creagh said: "there are changes to unfair dismissal laws coming in soon so just be careful, you can show that letter to anyone you want, I don't care it is a solicitors letter so it is all above board."
52 Mr Alley deposed that Mr Creagh put to him that the employer did not have to give him long service leave but would do so as he must be under a lot of pressure at home, adding that Mr Alley was not to seek or undertake work for another employer during this time. Arrangements were made at Mr Alley's request for him to be paid weekly during his long service leave as opposed to a lump sum on the commencement thereof. 53 On 14 January 2005 Mr Alley requested and was given correspondence (exhibit 10) on Combined Nursery Sales letterhead, over the signature of Mr Paul Jeffrey as Assistant Manager, in the following terms: To whom it may concern:
Phillip Alley has been employed by combined nursery sales since 1.10 1993
He is a senior nursery tradesman and has a current gross weekly salary of $602.90
If you require any more information please contact me on the above or below numbers. 54 Mr Alley deposed that he sought this correspondence to assist in the purchase of a vehicle to meet his travel requirements following withdrawal of private use of the employer's vehicle. Mr Alley deposed that he ultimately purchased a secondhand vehicle by extension of his residential mortgage and did not use the correspondence provided by Mr Jeffrey. 55 On 14 January 2005 Mr Alley instructed his solicitor, Mr Hagan (his father-in-law) of Baker Borthwick Solicitors, to write to his employer in response to the letter of warning. This letter of three closely typed pages (Attach. D to Ex 4) advises that Mr Alley was shocked, dismayed and disturbed by the warning letter, stating in part: "Our client categorically denies any "undermining of authority" of the Manager, or "lowering staff morale". We note that the Manager has not been present at the workplace with staff since the meeting of 7 January 2005 in any event, until 12 January 2005, to observe anything. Furthermore, the only comment to our client passed to staff since the meetings, was positive. He told them that they would now receive all entitlements in accordance with their award, and the OH & S matters would be investigated." 56 On 21 January 2005 correspondence in reply was directed to Mr Hagan over the signature of Mr Creagh (Attach. E to Ex 4). The reply advised that the letter of 14 January 2005 from Mr Hagan contained numerous inaccuracies and misrepresentations which did not respond to the complaints concerning Mr Alley's behaviour, noting that: "Your client has been warned that his conduct is detrimental to his employment and your correspondence does little to further his cause. The official warning dated 12 January 2005 will not be withdrawn." 57 On 24 January 2005 correspondence was forwarded to the employer from Baker and Borthwick, giving notice in writing of a formal complaint to WorkCover (Attach. B to Ex 5). This correspondence details the issues of complaint, concluding with formal notice to the employer: "should you further threaten our client as a result of his necessary notification our client will report you to the relevant authorities". 58 On 25 January 2005 the applications in these matters were filed with Industrial Registrar. 59 In cross examination by Mr Mulcahy Mr Alley confirmed that his evidence in proceedings before the CIM was that he worked two hours per day overtime undertaking duties that included cleaning of the toilets, meal room and office area, which he now complained were not properly maintained. 60 Mr Alley put that the cleaning involved hosing out and throwing a bit of disinfectant around, adding that repair of the broken toilet, a work basin tap and elimination of rats in the meal room (despite laying baits) was beyond his capacity as Assistant Manager and accordingly he referred the issues to Mr Creagh, who did not attend to the problems. 61 Mr Alley denied that Mr Creagh had instructed him to buy sunscreen on the company credit card held by Mr Alley. 62 In cross examination Mr Alley confirmed that prior to 7 January 2005 he worked 45 hours per week, and to the best of his knowledge was paid $750 per week and use of a motor vehicle in the local area. Mr Alley denied that, when Mr Creagh advised him that he would get less if he was paid in accordance with the award, he responded that he wanted to be paid in accordance with the award. 63 The following exchange between Mr Mulcahy and Mr Alley is found in transcript (p 35 26/07/05): Q. Well you understood that after the meeting with Mr Creagh on the 7th, that you were going to be paid for a 38 hour week from then on? A. Yes. Q. Instead of a 45 hour week? A. Yes. Q. And you understood that the privilege of the car was going to be withdrawn? A. Yes. Q. And you understood that Camnex was going to pay you in accordance with the award? A. Yes.
64 In response to Mr Mulcahy, Mr Alley confirmed that he had sought alternate employment with an employer identified as Rentokil. Mr Alley put that he had participated in an interview and tour of the nursery and had been offered a position at the same level as he then held with the employer. Mr Alley put that he then approached Mr Creagh seeking a pay rise to remain with the employer, which Mr Creagh declined. Mr Alley put that he did not take up the Rentokil offer as it did not give him any advancement in his career. 65 Mr Alley refuted Mr Mulcahy's assertion that he was unhappy in the employer's employ as there was no prospect of advancement for him in that position. Mr Alley put that he was well aware that Mr Creagh had no intention of leaving and that he could not progress beyond his position, though was not unhappy about this. 66 Mr Alley's denial of the allegation of advocating a "go slow" and assertion that the employer would not meet award obligations are unshaken in cross examination.
67 The evidence of Mr Alley is that he has actively sought alternative employment to mitigate his loss. 68 Mr Alley deposed that he regularly consulted job advertisements in local newspapers. Mr Alley's evidence is that he obtained some limited employment at the Casino Meatworks and the Northern Star Newspaper, was unsuccessful in an application to another nursery in the area, and ultimately decided to purchase a lawn mowing and landscaping business in which he is now self-employed. 69 The employment with Casino Meat Company Ltd and the nursery application arose as issues of controversy in the proceedings. 70 Mr Alley's evidence is that a cricketing friend of his informed him of the opportunity for work at the Meatworks and he obtained and completed an application form (Ex 12). Mr Alley first deposed that this took place around 21 January 2005, after he had commenced long service leave. In cross examination Mr Alley was obliged to concede that he had most likely obtained the application form over the weekend of 8/9 January 2005 and had completed it prior to 11 January 2005, the date on which it was witnessed by a Justice of the Peace. Mr Alley acknowledged that he attended the offices of a real estate agent in Alstonville at approximately 5.00 pm on 11 January 2005 for this purpose. Mr Alley attended the Meatworks on 17 January 2005 for an interview. 71 Mr Alley deposed that he worked a few shifts at the Meatworks but gave it up because the hours of work and travel required him to leave home at 4.30am each morning, returning at 5.00 pm, the remuneration was inadequate and that he had enrolled in a TAFE course. Mr Mulcahy asserted that Mr Alley had told a supervisor that the work was too hard for him. Mr Alley acknowledged that he had worked with the named supervisor, but denied Mr Mulcahy's assertion. There is no other evidence in respect to this issue. 72 Mr Alley applied for employment with another nursery operator in the area, identified as Alpine Nursery. Mr Alley deposed that he participated in two successful interviews and was informed that he would be offered employment subsequent to a check of his employment history with Mr Creagh. It is Mr Alley's evidence that he heard nothing more from the prospective employer, leading to the assertion that Mr Creagh had further victimised him by adverse comment. 73 Mr Creagh denies this assertion. There is no other evidence on which to make a finding.
74 Mr Alley refuted an assertion by Mr Mulcahy that he had decided to leave the employer's employ (TR 26//07/05 p44): Q. So Mr Alley, I'm suggesting to you that you'd made up your mind to leave the employment of Camnex prior to you even been given a warning letter? A. No. Q. Well can you explain to me why you applied for employment at the abattoir? A. Yes, I'd been demoted and my pay and hours had been reduced to a point where I could hardly survive on the money they were offering, I had a wife and a young child at home to feed and a mortgage to pay. Q. You say that you had been demoted and your pay reduced? A. Yes. Q. But that didn't happen did it? A. Yes. Q: When did it happen? A. I'm unsure of the time. Q. Well did it happen the following week? A. Not to my knowledge. Q. But you still continued to make this application on 17 January? A. Yes. Q. Well I'm suggesting to you Mr Alley that you knew that you were going to have a dispute with your employer and so you were organising yourself some alternative employment? A. No. 75 In re-examination Mr Alley put that his wife had stopped work in mid-2004 prior to the birth of their first child in August 2004 and his employment with the employer became the sole income, which he would not put at risk. 76 In cross examination Mr Alley confirmed that he was not required to pay any rent, electricity or telephone accounts during his occupancy of the on-site accommodation. Mr Alley refuted an assertion by Mr Mulcahy that the accommodation and private use of the motor vehicle were in consideration of additional duties. Mr Alley put that the only issue put to him surrounding the occupancy of the on-site accommodation was one of security and that there had been no discussion of additional duties at the time he was afforded use of a company vehicle. 77 The culmination of this cross examination is found in transcript (26/07/05, pp 51 and 52): Q. Well I'm putting it to you that in March 2000, there was a meeting between you and your employer and Mr Jeffrey, where you were told that in return for increased pay, a motor vehicle and a two year occupation of the house on a rotating basis, i.e. two years you, two years Paul Jeffrey, you'd be required to do some additional work and that you agreed to that? A. No. Q. All right, okay. So the employer just gave you these things? A. Yes. Q. That's a very generous employer isn't it? A. Yes. Q. So on 7 January, I'm suggesting you had a meeting with Mr Creagh, where you said to him, I no longer want to be part of this deal I don't want to work longer hours, I don't want the car, I don't want the use of the house, I just want to be paid under the award? A. No that's not true. Q. It's not true, is any of that true? A. No. Q. Did you say, I just want to be paid under the award? A. Yes I believe we did. Q. So what did you mean by that? A. We were working 45 hours a week so it was - and we got to be paid in accordance with the award and the weekend watering, Christmas watering that we weren't paid for. Q. And did Mr Creagh say, all right you will be paid in accordance with the award, did he say that? A. Not to my knowledge. Q. So when you said. I just want to be paid in accordance with the award, what did he say? A. Can't recall. Q. Did he say something? A. Can't recall. Q. Well you made a lot of notes about other conversations, you can't recall what Mr Creagh said to - I just want to be paid in accordance with the award? A. No I can't. Q. Well I'm suggesting to you Mr Alley, that you can remember? A. No. 78 Mr Alley denied any arrangement that put himself and Paul Jeffrey on an equal footing. At p 33 of transcript Mr Alley put that, with his demotion in January 2005 and Mr Jeffrey's promotion to his position, Mr Jeffrey was "just another worker". 79 Mr Alley confirmed that he was not required to work in excess of 38 hours per week after 7 January 2005 and he was paid in accordance with the award as a Nursery Tradesperson. In re-examination Mr Alley put that he was not consulted about the award classification but did not expect to be demoted. 80 Mr Alley asserts that Mr Jeffrey has not completed his trades course and consequently would be classified as a Nursery Hand under the award. 81 Further, in cross examination Mr Alley confirmed that he had made complaints to WorkCover and that those complaints had been investigated, including a site visit by WorkCover Inspectors. Mr Alley also confirmed that he had obtained a copy of the WorkCover report under the Freedom of Information Act. Mr Alley confirmed that the WorkCover report did not show anything seriously amiss at the Teven nursery. Mr Alley confirmed that he subsequently complained to the New South Wales Ombudsman that there had been no penalty imposed upon the employer. Mrs Claire Alley
82 The evidence of Mrs Alley is by affidavit (Ex 13) and affidavit in reply (Ex 14). Mrs Alley was subject to cross examination by Mr Mulcahy. 83 Mrs Alley deposed that she and her husband discussed and considered the offer of continued employment with the employer, which she characterised as: · Demotion from Assistant Manager to Nurseryperson · Reduced pay from $585 per week net plus $50 fuel allowance and use of company vehicle to and from work to $456 per week with no vehicle or fuel allowance · No assurance of continued employment 84 Mrs Alley deposed that continued employment with the employer was rejected on the basis that they could not meet their financial obligations on the reduced salary. 85 Mrs Alley's evidence is that her husband's health had suffered due to the conduct of the employer, including unfounded accusations and threats, and that the refusal to reappoint him to his former position of Assistant Manager led them to the conclusion that the offer was not genuine and the risk to his job security meant it was better for him to pursue an alternate career with the support of accrued leave entitlements. 86 Mrs Alley provided detailed financial analysis of income available from Austudy support, Family Allowance and casual work against their detailed living expenses. This analysis concludes that net income from employment as a tradesperson and family allowance at $534.82 per week is less than their weekly expenses of $576.51; compared to Austudy, Parenting Payment, Family Allowance and current casual work at the Northern Star Newspaper of $579.00, to demonstrate the deficiency of the offer of employment as a tradesperson. 87 In exhibit 14 Mrs Alley deposed that her husband often took telephone calls at home concerning his responsibilities at the nursery, including staff members calling to advise their inability to attend work due to illness, or other matters. 88 Mrs Alley confirmed that Mr Alley experienced concern over the non-payment of a Christmas bonus, saying to her: "They would have known when they did the Christmas pays that they were not going to pay it and did not bother to give us any notice." 89 Mrs Alley's evidence is that her husband told her on 5 January 2005 that Mr Creagh had informed the staff of a meeting with Mr Baker the next day, concluding: "But then Andy snickered." Mr Alley then stated he was going to check the award conditions that night, telling her he was going to use the internet, which she put was a necessary communication as the home telephone line is also their internet line. 90 Mrs Alley deposed that she received a phone call from her husband during his lunch break on 7 January 2005, saying words to the effect: Andy has asked for the keys to the car, can you pick me up this afternoon at about 4.30. I'll phone you if its any later. 91 Mrs Alley's evidence is that she collected Mr Alley from work that afternoon about 5.50pm. Mrs Alley's evidence at para 20 of exhibit 14 states: When Phil got into the car, I saw that he had a white envelope in his hand. He said words to the effect: 'Andy's just given me a warning letter. I haven't read it yet'. He then tore open the envelope, read the letter, and then passed the letter to me to read. 92 Mrs Alley was not challenged on this evidence in cross examination. 93 Mrs Alley gave evidence of the condition of the farmhouse on the two occasions that she had occupied it with Mr Alley. 94 Mrs Alley's evidence is that on the first occasion it was well known to Mr Creagh that she was helping Mr Alley clean the farmhouse and intended to live there, but nothing was said until a few weeks after she moved in and then she and Mr Alley both moved out. 95 It is Mrs Alley's evidence that the occupational experience as a Property Manager employed in the local real estate industry led her to the conclusion that the property was not fit for tenancy, however, she agreed to move in a second time on the understanding that repairs would be undertaken. This did not occur. Mrs Alley deposed that she wanted to move out earlier, however, their house had been leased for a two year period. It is Mrs Alley's evidence that she insisted they move out as soon as their own house became available on expiry of the lease. 96 Mrs Alley's evidence is that whilst living in the farmhouse Mr Alley received many phone calls, some of which she took, from employees unable to undertake their rostered watering duties and asking Mr Alley to fill in; and that trucks arrived in the evening during dinner, and at times at 2.00am, which Mr Alley attended to immediately. 97 Mrs Alley was subject to cross examination in respect to the conditions of occupancy of the on-site accommodation. Mrs Alley replied to questioning from Mr Mulcahy that she was aware that occupancy required her husband to undertake caretaker duties which included after hours watering every evening in summer and ground maintenance by grass slashing. Mrs Alley put that she did not know what was involved in the night watering, putting that Mr Alley left the house to attend to this. She was unable to respond to Mr Mulcahy's assertion that this consisted of turning on a pump near the house. Mr Nigel Marshall 98 The evidence of Mr Marshall is that he completed a four year apprenticeship with the employer, continuing as a tradesman until he left, disaffected with wages and working conditions. 99 The evidence of Mr Marshall is that his hours of work were 8.00am to 4.30pm Monday to Friday with a half hour lunch break. Mr Marshall deposed that about two months into the fourth year of his apprenticeship his working hours altered to 7.00am to 4.30pm and he was paid an additional $50 per week. 100 Mr Marshall deposed that Mr Creagh established a weekend watering roster on an annual basis which was offered to all staff. Mr Marshall put that payment for weekend watering was $50 cash in hand for each four hour attendance at the Nursery on a Saturday or Sunday during summer. Mr Marshall put: "If you were rostered for both Saturday and Sunday you would get $100 cash from Andy about every six weeks." 101 Mr Marshall deposed that about once per week he (and others) would be requested to work past 4.30pm to load a truck. Mr Marshall deposed that sometimes the staff were given time off in lieu but no records were kept. 102 Mr Marshall deposed that Mr Alley was on the weekend watering roster and involved in loading trucks but was not aware of the payment arrangements for Mr Alley. 103 Mr Marshall put that he was unhappy with his pay and that he, Mr Alley and Mr Jeffrey, approached Mr Creagh, who ultimately agreed to a $100.00 per week increase. 104 Mr Marshall deposed that he eventually received a $30.00 per week increase and when questioned Mr Creagh informed him that the balance of $70.00 had been taken up in tax. 105 Mr Marshall deposed that the he had never received a payslip informing him of the detail of his wages. 106 Mr Hagan tendered a hand written note (Ex 17) which Mr Marshall identified as written by Mr Creagh and given to him. The note states:
"Nigel 5.8.04 Award wage $561.20 Your gross wage $650.00 Car $150.00 + per week Note NO fringe benefits paid on car = no tax" 107 Mr Marshall described his experience in employment with the employer in his affidavit (Ex 16) in the following terms: 18. The nursery was 30 minute drive from home, the work repetitive, and the wages were low for the hours. The working conditions were ordinary. It was often hot work in the sun or in the propagation houses where temperatures would soar until work was unbearable. I would get migraines from the heat and when I went home and checked the temperature on the TV news it was 37 or 38 degrees but out there on the gravel or in the hot house it would have to have been 40 degrees plus. I was eventually given sunscreen, when everyone complained. Phil started buying it from Bi-Lo on his credit card for everyone. He also bought toilet paper and soap.
The toilet did not work. You had to get a bucket of water to flush it. The wash basin tap seldom worked.
We were asked to dismantle a fibro glasshouse without any protective gear.
The electrical fuse box had a fire. All that was done was putting some duck tape over the exposed wires.
No-one was really game to complain about the working conditions. Staff that made noises usually left and were quickly replaced by young apprentices.
Because Phil was effectively directing work and organising things except when Andy was on site, he did take some of those complaints. He said things like 'I will tell Andy' , or, 'I will ask Andy to do something'. Very little was done. I believe the management was slack. Andy would come most days about four time a week but start about 9 or 10 after Phil had already organised our work.
I resigned in about September last year because I did not think there was really any future for me there. There was no argument between me and the management, nor was my performance ever to my knowledge an issue. It just was not a rewarding place to work and my biggest complaints were the wages and working conditions. 108 Mr Marshall's evidence is that in his experience all new employees were engaged as first year apprentices. Mr Marshall conceded that all apprentices completing the course and wishing to continue employment with the employer were given employment as tradesmen. 109 In cross examination Mr Marshall confirmed that he sought detail of payment to him from time to time and would receive a note similar to exhibit 17 and at other times a formal letter. 110 In response to Mr Mulcahy, Mr Marshall confirmed that his supervisor was Mr Jeffrey and that he would only work with Mr Alley when Mr Alley was required to assist loading trucks. 111 Mr Marshall's evidence is that from time to time he would ask Mr Creagh for additional work which was made available and paid for. 112 In cross examination Mr Marshall confirmed that from time to time he sought time off to pursue personal matters such as a "football trip" and acknowledged that the employer was generous in that regard. 113 Mr Marshall confirmed that the lunch room and office area were cleaned daily and at weekends by the person rostered to do weekend watering and other tasks. Mr Marshall put that he had cleaned the lunch room at the request of Mr Creagh or Mr Alley. 114 Mr Marshall confirmed that he resigned of his own accord and at the time had thanked Mr Creagh for everything he had been taught on the job putting to Mr Creagh that he did not really want to leave but wanted to try something different. 115 Mr Marshall confirmed that he was good friends with Mr and Mrs Alley and would like to help them if he could. 116 In re-examination Mr Marshall put that he had never received a formal letter setting out his wages, his presumption of generosity of the employer in allowing time off was prior to understanding of his award entitlements and that while he would assist Mr and Mrs Alley if he could, he would not lie to do so. Mr Daniel Ross
117 Mr Hagan tendered a statement by Mr Ross (Ex 18). Mr Ross was not required for cross examination. 118 The evidence of Mr Ross is that he was employed by the employer from late 2000 to December 2004 completing a four year apprenticeship under the instruction of Mr Alley in that time. 119 Mr Ross deposed that about two months after completion of his apprenticeship he resigned following a dispute with Mr Creagh over his family responsibilities. 120 Mr Ross deposed that Mr Creagh reprimanded him for being called away from work by his partner to assist her to take a sick child to a doctor; having a day off to mind a child while his partner was at the hospital with their youngest child, then 3 months old, who suffering breathing difficulties; and another occasion when his car broke down on the way to work. On the latter occasion Mr Creagh sent Mr Jeffrey to collect him from the break down, which Mr Ross put he was trying to repair with a set of tools brought to him by his partner. Mr Ross' evidence is that Mr Jeffrey insisted that he attend the workplace immediately and leave repair of his car until after work. 121 Mr Ross deposed that the next day he was unable to get to work as his car was still not fixed; he telephoned Mr Creagh who was unhappy and unsupportive of his predicament. Mr Ross concluded the conversation by putting to Mr Creagh: "I've pretty much had enough anyway." Mr Ross did not return to work for the employer after that. 122 Mr Ross deposed that he found a better paying job closer to his residence. 123 Mr Ross deposed that the respected Mr Alley who he regarded as fair to him and did his best "to stick up for us" not like Mr Creagh. 124 The evidence of Mr Ross is similar to that of Mr Marshall in respect to pay slips, weekend watering roster and work beyond 4.30pm finishing time to load trucks. 125 Mr Ross put that he believes that he was under paid one week of annual leave on termination. Mr Matthew Maguire 126 At the time of giving evidence Mr Maguire was employed as a third year apprentice nurseryman by the employer. Mr Hagan tendered an unsigned statement by Mr Maguire (Ex19) which he affirmed on oath. 127 Mr Maguire deposed that he has been employed by the employer since February 2005, working 8.30am to 4.30pm with half hour lunch break Monday to Friday. It is Mr Maguire's evidence that until Mr Alley drew his attention to the award he believed he was required to work a 40 hour week. Mr Maguire's evidence is that since late January 2005 a practice of finishing work at 2.00pm with no lunch break has been observed. 128 Mr Maguire's evidence is that he has never received a pay slip or seen a copy of the award. 129 Mr Maguire was critical of Mr Creagh and Mr Jeffrey and fulsome in his admiration of the professional conduct of Mr Alley, whom he put represented his interests to management and ensured that sunscreen, toilet rolls, paper towels and dishwashing liquid were available for staff. 130 The evidence of Mr Maguire is that there was anger over the non-payment of the 2004 Christmas bonus which was discussed by employees on return from the Christmas break. Mr Maguire described these discussions at point 22 and 23 of Ex19 in the following terms: 22. That day Phil, Joe, Scott and I sat around the table at smoko and lunchtime, talking about work issues. I recall over the past two years of my employment that various staff have raised the issues of no payslips, late pays, late pay increases, the missing hose from the fuel tank, Andy spraying chemicals on windy days when we are outside working, and so on. Someone raised working with asbestos. Phil was asked about various issues by different staff, and he offered to look into their queries that night.
218 Mr Kerry commenced employment with the employer on or about 13 March 2000. Mr Kerry started as an apprentice in the nursery trade but did not complete his apprenticeship. 219 The evidence of Mr Kerry is that for the entire period of his employment he has regarded Mr Jeffrey as his boss, having little to do with Mr Alley other than loading semi trailers in the winter months. 220 Mr Kerry's evidence is that he was very upset when he was told on the last day of work in December 2004 that there would be no Christmas bonus that year. Mr Kerry deposed that he had hoped to use his bonus to buy Christmas presents. Mr Kerry's evidence is that he approached Mr Alley and all other employees to do something about it. Mr Kerry deposed (TR p208) that he was going to consult his aunt who is a solicitor about the non-payment of the Christmas bonus and lack of payslips. 221 Mr Kerry gave evidence of the discussion between employees on return from the Christmas break and of Mr Alley informing them of award entitlements not met by the employer. Mr Kerry denied that these discussions were "meetings", putting that they were a lunchtime chat during which Mr Alley read from the award. Mr Kerry deposed that he was still upset about non-payment of the Christmas bonus and went along with Mr Alley, though did not appoint Mr Alley as his representative to management. 222 Mr Kerry gave evidence of the meeting with Mr Baker and the following day with Mr Creagh. Mr Kerry's evidence supports that of Mr Alley to the effect that Mr Baker agreed to payment of annual leave loading, stating he was unaware of it because it was not paid in Melbourne. 223 Mr Kerry deposed that he then raised some questions in respect to his superannuation, which he put were answered to his satisfaction two days later. 224 At para 9 of his affidavit (Ex 26) Mr Kerry put: … …I also remember Scott talking about wanting to be provided with a pay slip and then Phillip Alley brought out a long list of demands, mainly dealing with minor problems. At the time I thought it was very petty and I thought he was trying to cause problems. The list of complaints went on and on. I remember Paul Jeffrey shaking his head and I was trying not to smile because it was all so ridiculous. I remember David Baker asked for a copy of the list of complaints. I also remember Phil Alley complained about the lack of bonus and David reminded him of the car that Camnex provided for his use. At that time, Phillip Alley offered the return of the car by placing the keys upon the table, however to the best of my recollection, Phillip Alley drove the car home that night. 225 Mr Kerry put that he was not very happy about the turn of events as he would lose three hours pay each week. 226 Mr Kerry deposed that he has been paid annual leave loading for the holidays taken at Christmas 2004, he is currently paid for a 38 hour week, and he receives eight hours overtime in accordance with the award when required to work on weekends. 227 Mr Kerry deposed that he was aware that many of the complaints raised with Mr Baker at the meeting in early January 2005 have been fixed. 228 Mr Kerry gave evidence of prior practice where employees worked one or two hours less per week in winter and an hour extra time to load semi trailers in summer, which was compensated as time off in lieu, usually arranged as an early finish on a Friday. 229 Mr Kerry gave the following evidence (at para 12 of Ex 26) in respect to the "go slow": "The week after the meetings with David Baker and Andy Creagh I remember working with Phillip Alley, Paul Jeffrey and others in the top shed getting ready for a semi trailer. I remember we worked two days in a row, getting ready to load and actually loading the semi trailer. I remember Phillip Alley telling all the workers to drag out the loading time so that we would get overtime. I specifically remember Phillip Alley saying this as I was standing in the doorway to the shed at the time and thinking that I would rather finish the job and go surfing. I remember thinking we could have loaded the truck by 3.30 at the latest, but the job was not finished until 4.50 pm which I thought was approximately one and a half hours longer than it should have taken. I remember Phillip Alley suggesting that we should all go slow on more than one occasion." 230 Mr Alley denies the assertion. 231 In cross examination Mr Kerry was obliged to concede that the only persons present were he and Mr Alley and that he could not now recall the exact words used by Mr Alley. 232 Mr Kerry's evidence that loading of the truck took 1 hour 20 minutes longer than necessary is not supported by the evidence of Mr Creagh, who deposed that he supervised the loading of the truck which, on his observation, was completed efficiently in the time his experience suggested was reasonable for the job. Mr Paul Jeffrey 233 The evidence of Paul Jeffrey is that he has been employed by the employer in the position of Foreman in charge of production and maintenance at the Teven nursery from late 1999 or early 2000. 234 Mr Jeffrey's evidence is that shortly prior to Christmas 2004 staff were advised that the usual Christmas bonus would not be paid due to the company having a poor trading period. Instead, all employees were provided with hams and a case of beer. Mr Jeffrey recalls that some employees, in particular Mr Alley, were unhappy as they were counting on the money. 235 On return from the Christmas break Mr Jeffrey recalled seeing Mr Alley in the lunchroom reading from the award. 236 Mr Jeffrey's evidence is that he resides in the on-site accommodation and accordingly does not take meals with the other employees in the lunchroom, preferring to attend his residence for that purpose. 237 Mr Jeffrey described the meeting with Mr Baker, which he put dealt with the bonus issue by explanation from Mr Baker that, while staff might deserve a bonus, the company was unable to pay although the situation might change. 238 Mr Jeffrey deposed that Mr Baker asked if there were any other issues, which brought on an enquiry about annual leave loading from a person Mr Jeffrey was unable to recall. Mr Baker replied that he was unaware of the entitlement as it did not exist in Victoria but it would be paid on verification of the obligation to do so. Mr Jeffrey deposed that Mr Kerry then queried his superannuation contributions and was invited to send detail of his concern by facsimile to Mr Baker in Melbourne at a later date. 239 Mr Jeffrey deposed that Mr Alley then raised a list of issues which he put surprised Mr Baker who asked whether any of the others agreed. Mr Jeffrey's evidence is that Mr Maguire supported Mr Alley, the others remained silent, and he voiced his dissent. 240 Mr Jeffrey's evidence is that a flushing toilet was available, sunscreen was supplied, and he thought it strange that Mr Alley would make a list of demands having regard to all the company had done for him in free rent and free motor vehicle. 241 Referring to his own situation, Mr Jeffrey put that when he took over occupation of the on-site residence from Mr Alley he was required to assume the duties of caretaker, and that he had no doubt that free rent, electricity and telephone far outweighed the additional work he was required to do as caretaker. 242 In referring to the "go slow", Mr Jeffrey's evidence is found at para 14 of his witness statement (Ex 27) in the following terms: "Following the meeting with Dave on 6th January 2005 and another meeting held by Andy Creagh with all the staff on 7 January 2005, Phillip Alley became very aggressive towards his employer and made comments to the extent that he was going to cost his employer a lot of money. This was mentioned frequently. I also remember that on or about Monday 10 January 2005 we were all working in the top shed when Phillip Alley suggested that a "go-slow campaign" should be commenced so that everyone would be paid overtime when the work was not completed within normal hours. At the same time Phillip Alley said to me in the presence of others that the company would not pay overtime for watering and that as a salaried employee, I would be required to perform 20 hours per week additional watering for no additional pay. I reported the comments made by Phillip Alley to me and the other workers to Andy Creagh that afternoon who was very upset that Phil Alley was undermining his authority by making such comments and encouraging the workers to go slow. 243 Mr Jeffrey identified the others present as Messrs Kerry, Lavelle and Maguire, none of whom supported Mr Jeffrey in his allegation. 244 Mr Jeffrey confirmed that he signed a reference for Mr Alley identifying Mr Alley as an Assistant Manger as he saw no harm in assisting Mr Alley to obtain a loan to buy a car. SUBMISSIONS
The Applicant 245 Mr Hagan put that Mr Alley was subject to a constructive dismissal which was harsh, unreasonable and unjust, so as to attract remedy pursuant to Part 6 of the Industrial Relations Act 1996 ("the Act"). 246 Mr Hagan relies upon the conduct of the employer to support his submission that the motivation for termination of Mr Alley's employment was that he sought rights pursuant to the Award. 247 Mr Hagan seeks reinstatement and compensation of 26 weeks pay at the rate of $800 per week, a total of $20,800 in respect to the application for relief from unfair dismissal. 248 I note that the application and the evidence of Mr Alley is that his gross weekly wage at the time of termination of employment was $750 per week plus a $50 per week fuel allowance. 249 The relief sought in the application pursuant to s 213 of the Act is particularised in the application in the following terms: A. The applicant claims an order for:
Re-instate the employee to the position of Assistant Manager
Withdraw all adverse letters and threats of dismissal with apology from manager and also director with a written reference to employee in terms acceptable to the employee
Restore employee's pay to $750.00 per week and $50.00 per week travel allowance and provide weekly pay-slips
Restore hours to 40 per week to include 2 hours at overtime rate per award (new total $768.75 per week) and pay all additional hours and callouts per award
Appropriate restraints on the employer against future victimisation
Payment of all unpaid annual leave not allowed to be taken (16 weeks) and production of leave records
Payment of Long Service Leave without threat of withdrawal
Reasonable time off for employee to seek alternative employment and to compensate any shortfall in pay resulting from that alternative employment for as long as the shortfall continues but allowing for award increases.
Interest and costs of this Application (These orders should be set out in terms of section 213(2)).
and claims an order for payment of the sum of $97,368.22 plus interest being for:
Your client by his own actions has demonstrated that he does not wish to be part of the management team and accordingly has been demoted.
You and your client have gone out of your way to make him an unattractive employee. 260 Mr Hagan submitted that the demotion and reduction in pay were at the initiative of the employer. Mr Hagan put that the applicant's conduct cannot be said to be the initiator as the issues of award compliance and occupational health and safety concerns are appropriate in the circumstances, as well as being protected conduct. 261 Mr Hagan relied upon the decision of Sams DP in Colosimo and Banana Traders of Australia Pty Ltd T/as P Chew and Co [2003] NSWIRComm 72 as authority that a reduction in benefits constitutes termination of employment. 262 Mr Hagan relied upon the decision of Sams DP in Tania Lever and Aboriginal Children's Services Ltd [2002] NSWIRComm 347 for authority that the proposed new position is too far removed from the previous position to be considered a minor variation. 263 Mr Hagan submitted that the immediate demotion of the applicant, including humiliation before other staff and replacement by Mr Jeffrey who has less experience and is less qualified as he has not completed the TAFE trade course, is within the scope of Clark v Pittwater RSL Club Limited (1998) 84 IR 309. 264 Mr Hagan relied upon the decision of a Full Bench of the Commission (Wright J, President, Marks J and McLeay C) in Clark in which it was held that an alteration of duties without agreement of the employee constituted dismissal from employment. 265 Mr Hagan put that the applicant's request for long service leave cannot be taken to imply consent to the demotion and reduction in remuneration. Mr Hagan submitted that the employer is obliged to grant long service leave when it falls due and only where the employer and employee agree, can the giving and taking of long service leave be deferred. 266 Mr Hagan submitted that it was prudent for the application to leave the workplace and attempt conciliation, offering the employer an opportunity to resile from the position adopted, and that long service leave offered the best alternative as there was a dispute between the parties as to the quantum of annual leave entitlement. 267 Mr Hagan submitted that conciliation failed and the position between the parties was made worse by the employer on 21 January 2005 when, he put, constructive dismissal occurred. 268 Correspondence dated 21 January 2005 (Att. E to Ex 4), forwarded in response to a letter from Mr Hagan dated 14 January 2005, advises: Your client has been warned that his conduct is detrimental to his employment and your correspondence does little to further his cause. The official warning letter dated 12 January 2005 will not be withdrawn.
269 In the alternative, Mr Hagan submits that employment was constructively terminated on 12 January 2005 when the employer made a unilateral and material variation to the terms of the contract of employment in both status and remuneration, sufficient for the long service leave to be considered an entitlement due on termination. 270 Mr Hagan submitted that underpayment of the long service leave, by direct deposit without pay advice, should be taken as further evidence of the employer's complete repudiation of the employment contract and failure to appreciate its statutory obligations. 271 Mr Hagan refuted an assertion by the employer that the application for long service leave implied consent to the demotion, putting that the long service leave application is properly viewed as Mr Alley receiving his rights and giving opportunity for the employer to reconsider its position. 272 Mr Hagan submitted that the employer was obliged by law to grant the long service leave, putting: The employer's payments towards long service leave at the time were also at a rate in contravention of the statute and award. The payments were made by direct bank deposit, without pay-slip or explanation after the employee left work on 17/1/05. As long service leave it ought to have been paid at the current ordinary rate as defined ($750.00 p/w gross) or, if greater, the average of the last five years ($667.00 p/w gross or $528.00 p/w net). The payment actually made ($456.00 p/w net) on 21/1/05 was intended to be his demoted pay. It was also a repudiation of the employee's leave entitlement rate. 273 Mr Hagan submitted that the applicant's efforts in seeking alternative work are proper and reasonable mitigation and to not contradict his application for reinstatement. Mr Hagan put that the casual employment is not an irrevocable commitment, nor could TAFE studies be regarded as a fixed obligation preventing a return to employment with the employer. 274 Mr Hagan relied upon the decision of Commissioner Connor in Brennan and DeVos [2005] NSWIRComm 1080 in which the Commissioner summarised the principles of constructive dismissal at para 23: 23 For that remedy of monetary compensation under S.89(5) to be available to a Part 6 applicant, it is necessary to establish, firstly, whether Mr Brennan actually walked out on his job, i.e. resigned or, alternatively, whether he was dismissed by Mr DeVos or constructively dismissed. A constructive dismissal may arise from an ostensible resignation in the following three situations: (i) where the resignation is forced by duress [ Allison v. Bega Valley Council (1995) 63 IR 68 and Mohazab v. Dick Smith Electronics Pty Limited (1995) 62 IR 200;
(ii) where the resignation constitutes a refusal of an employer to accept a unilateral decision of his employer to demote him or act to the detriment of his employment [ Russian v. Woolworths (South Australia) Pty Limited (1995) 64 IR 169]; or
(iii) where the resignation is a "squeezing out, i.e. making an employer's position so intolerable that he is forced to resign [ Nettlefold v. Kym Smoker Pty Limited (1995) 64 IR 169]. Secondly, if I conclude that Mr DeVos actually or constructively dismissed Mr Brennan, it is necessary to establish whether that dismissal was unfair - "harsh", "unreasonable" or "unjust", to use the language of S.84(1) [ Busways v. Johnson (1994) 55 IR 255 at p.261]. 275 The Commissioner applied these principles to the facts in Brennan, which involved a disputed termination in the course of a heated argument, at paras 24, 26, 27 and 28 of his decision, restated here: 24 Mr Murray [for the respondent] described the purported dismissal of Mr Brennan by Mr DeVos as an "...engineered situation...", meaning that, when Mr Brennan's substantial claim for underpayment of wages and other entitlements made against Mr DeVos fell on stony ground, it had been Mr Brennan's intention to bring his employment to an end. He was, to that extent, setting Mr DeVos up for an unfair dismissal claim. That certainly was the view of Mr DeVos' wife and, no doubt, her subsequent telephone call to Mr Mitchell informing him that he had not, in fact, been dismissed was made with that prospect in mind. I am satisfied that her offer of continued employment to Mr Brennan was simply to avoid the Part 6 application she saw coming from Mr Brennan. But that may have been too late.
26 But once she had done so, Mr Brennan's dismissal lapsed and his ultimate decision not to resume work was his own decision, taken in spite of the letter dated Tuesday, 7 September, 2004 he received from Mr DeVos and his wife. Nevertheless, that "resignation" by Mr Brennan must be considered in the context of the conversation with Mr DeVos on Monday, 6 September, 2004. If Mr DeVos was offering Mr Brennan $6,000.00 in settlement of his claim (a substantial compromise if Mr Brennan's claim were to have any merit) and informing him that in future he would offer him work for "...a couple of days a week...", he was moving the goal posts in Mr Brennan's employment.
27 Mr DeVos does not deny making comments of that nature but he claimed that Mr Brennan only worked casually on that basis and that he was only offering Mr Brennan "...the same thing...". The evidence before me suggests otherwise. Mr DeVos' evidence was to the effect that, whilst there may have been a certain flexibility in the working arrangements he had with Mr Brennan, often he had full weeks of work at a time and Mr Brennan was employed on that basis. If Mr Brennan had already only been working for "...a couple of days a week..." for Mr DeVos, it would not have been necessary to reiterate that fact in the conversation between the two men.
28 In other words, Mr DeVos was unilaterally changing Mr Brennan's contract of employment to his detriment - one of the classic situations which fall under the concept of constructive dismissal - and that is one of Mr Kelly's [for the applicant] claims in his submissions. I am satisfied that Mr DeVos constructively dismissed Mr Brennan. The termination of Mr Brennan's services flowed out of a claim which Mr Brennan made for what he perceived as wage justice and, whether his claim had merit or not, he was entitled to make it. It is unfair that his services were terminated in the circumstances described to me in the hearing and for his working hours to be changed to his detriment without further discussions between the parties. 276 Mr Hagan referred to the decision of Deputy President Sams in Donovan and Anor v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385 and Swaran Lata Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202 as authority for concurrent determination of an application for relief from unfair dismissal pursuant to s84 of the Act and relief from victimisation pursuant to s213 of the Act, and the discretionary nature of remedy. 277 At p 37 of his decision in Donovan, Sams DP said: 112 As a result of some research, I have found no decisions which deal directly with concurrent proceedings for victimisation and unfair dismissal and how the remedies under both sections might be determined in the event of findings in favour of an applicant. That being said, it would seem beyond doubt that the remedies available under both sections can be pursued, concurrently by an applicant against the same respondent.
113 The corresponding provisions in the 1991 Act, (which are not relevantly different to the 1996 Act) were considered by Schmidt J, in Nisbett v Kilfoyle t/as Kilfoyle Earthmoving (1996) 67 IR 214. Her Honour said at p 218: Both sections 246 and 482 of the Act provide for remedies of reinstatement and compensation. That the circumstances of an alleged dismissal may properly give rise to proceedings under either or both section 246 or section 284 of the Act is obvious, (see Entertainment Distributors). It is of course the case that the Act provides both remedies and does not require an individual to make any election between them. Both may be pursued. 278 Later in Donovan the Deputy President made an order in respect to both the s84 and s213 matters in excess of the 26 week statutory limit on a s86 application without apportioning any specific amount to each application. At para 121 the Deputy President said: … there is an overlap in the factors to be taken into account in an unfair dismissal case and a victimisation case of this type… …this overlap makes it impossible to strictly delineate the relief that is available under both sections of the Act in the event an applicant succeeds under both headings. 279 In Kumar the Deputy President assessed the victimisation case separately after awarding the maximum compensation of 26 weeks in the unfair dismissal application. 280 Mr Hagan submitted that the preparation of Mr Alley's first statement on 8 January 2005 and his pursuit of alternate employment are not factors against him. 281 Mr Hagan put that on demotion on 7 January 2005 Mr Alley was entitled to commence his defence; and to pursue legitimate industrial and safety issues. 282 Mr Hagan noted that the alternative employment explained in 2004 was not taken up and put that, while the approach to the Casino Meatworks took place prior to the warning of 12 January 2005, it came after demotion and loss of earnings on 7 January 2005. Mr Hagan put that subsequent to demotion, Mr Alley was entitled to investigate alternative employment, which cannot be construed as premeditation of termination of employment and litigation. 283 In addressing the letter of warning, Mr Hagan noted that there is a difference between the evidence of Mr Alley, who put that he was given the letter in a sealed envelope without comment, and that of Mr Creagh, who deposed that the warning letter was kept flat in a folder until he produced it and read it out to Mr Alley before giving it to him. 284 Mr Hagan put that the evidence of Mrs Claire Alley that Mr Alley opened the envelope containing the warning letter in their car when she picked him up from work that day, and the fold marks on the document consistent with it being in an envelope, support the applicant's evidence. 285 Mr Hagan submitted that there is consistency in the evidence of Mr Creagh and Mr Alley that he was only acting on behalf of all employees. Mr Hagan put that such a reply is inconsistent with an allegation of encouraging a "go slow". 286 Mr Hagan submitted that the evidence is that the warning letter of 12 January 2005 was carefully considered by management, drafted and checked by Mulcahy prior to being handed to Mr Alley and cannot now be minimised by a claim of inexperience on behalf of the manager or poor choice of working. Mr Hagan put that in these circumstances if the "go slow" allegation is proven to be false, or so unreliable that the employer had no justification to use it, then it reflects the true intention of the employer. 287 In addressing the failed attempt by Mr Alley to obtain alternative employment at Alpine Nursery, Mr Hagan noted the evidence of Mr Creagh that he was contacted by Alpine Nurseries and informed them that Camnex and Mr Alley were engaged in litigation, putting that the effect was that Mr Alley heard no more despite having been told that he would be employed subject to a routine employment check. 288 Mr Hagan submitted that the employer reclassified Mr Alley to the position of nursery tradesman from 21 January 2005 and maintained that position in conciliation proceedings on 2 March 2005. Mr Hagan put that if the correct classification is found to be a senior nursery tradesperson, the reclassification is both illegal and unequivocal victimisation. Mr Hagan submitted that it would also constitute an unreasonable offer in conciliation with significant costs consequences. 289 Mr Hagan put that it is not open to the employer to "nominate" the classification, as advanced by the employer, but a matter of satisfying the award definition. 290 Mr Hagan put that Mr Alley satisfied all of the criteria of the award definition for senior nursery tradesperson, putting that in fact he had been paid at a higher rate from 1997 in exchange for "additional duties". 291 Mr Hagan submitted that, irrespective of title, the applicant had been given the task of supervising staff including the training of apprentices; putting that this level of supervision is further indication of a senior nursery tradesperson in accordance with the award. 292 Mr Hagan referred to the evidence of Mr Baker that he was overwhelmed by the extent of the list of issues raised by Mr Alley on 6 January 2005 and that it was put without notice. Mr Hagan put that despite giving employees no notice of the non-payment of a Christmas bonus or the meeting of 6 January 2005, and the fact that all of the issues raised were legitimate and required rectification, Mr Baker was angry with Mr Alley, reducing he and all others, with the exception of Mr Jeffrey, to 38 hours per week with attendant loss in earnings. 293 Mr Hagan submitted that the evidence of Mr Creagh, though inconsistent and vague in parts, was contrived to support that of Mr Baker. Mr Hagan put that Mr Creagh's evidence was that non-payment of the Christmas bonus may have come about as an oversight as Mr Baker had gone on leave some weeks prior to Christmas and had made up the Teven nursery pays in advance. Mr Hagan submitted that this was a more plausible explanation then believing the drought and trading results, neither of which were substantiated in evidence. 294 Mr Hagan submitted that the evidence of Mr Creagh and Mr Baker confirms that the decision to demote Mr Alley was taken by them on 6 January 2005, subsequent to Mr Baker's meeting with employees. 295 The reduction of hours to 38 per week was put to Mr Alley (and others) by Mr Creagh the following day, 7 January 2005, but Mr Alley was not informed that his demotion was to nursery tradesperson. 296 Mr Hagan submitted that demotion to senior tradesperson is consistent with Mr Creagh's advice to Mr Alley that he would lose $150 per week, i.e. from $750 to $602.90, a loss of $147.10 per week. The relevant award rate for a nursery tradesperson is $563 per week, which would be a loss to Mr Alley of $187 per week, which Mr Hagan characterised as a loss of almost $200 per week. 297 Mr Hagan put that it is open to the Commission to find that the original demotion was unspecified to a senior tradesperson. Then either the General Manager, who determined the wages, decided the tradesperson's rate, or it was a subsequent decision implemented by direct deposit on 21 January 2005 when management decided to further demote the applicant. 298 Mr Hagan submitted that the employer acting with hostility and recrimination toward Mr Alley. Mr Hagan put: The employer's conduct was manifestly detrimental and deliberately so:
The actions to demote and cut pay were therefore taken at the 'initiative of the employer' and are on their face so harsh and unreasonable as to be impossible for the Applicant to accept. The Applicant's new conditions were well below the relevant award classification (Senior Tradesperson) as understood by him as well as Mr Jeffrey ( Mr Jeffrey's letter of 1411105), as well as being in breach of his implied contract of employment pursuant to the Nursery Guidebook. The Applicant cannot be considered to be instigating or orchestrating anything because querying award and working conditions was a reasonable response to a refusal by management to pay annual leave loading. … … The attitude of the General Manager and to a lesser extent the Manager revealed in cross examination was to treat the employees as without rights to the complete whim and discretion of the management. The General Manager lauded a management plan and generous and objective approach to long-time employees, but the evidence was otherwise. A culture of playing one of against another, rewarding obsequious behaviour rather than productivity and candid feedback, giving "lurks and perks" such as cash in hand, undeclared fringe benefits and Christmas bonuses instead of ensuring basic award provisions were met. It was cheaper to lure the staff with non-wage perks then to pay the real costs of overtime. There was clear motive for the hostility shown by the Respondent towards the Applicant.
The second arm of constructive dismissal in the above authorities tests whether the employee impliedly or expressly consented to his re-employment. The Applicant's evidence is that he expressly refused:
1 the Applicant challenged the first letter of the Employer by his comprehensive solicitor's letter dated 14 January 2005. That letter specifically sought reinstatement, restoration of pay and withdrawal of the threat of dismissal. The letter was unilaterally rejected in subsequent letters of the employer (see letter 21 January 2005);
2 the Applicant ultimately lodged the Applications and continually sought reinstatement to the original position and that was consistently rejected by the employer on the basis that there was no termination or dismissal so there was no need for re-instatement and that the "demotion" was not negotiable.
The Employer 299 The employer acknowledges that non-payment of the Christmas bonus in 2004 was, in retrospect, inconsiderate and unfortunate, conceding that this caused some disharmony in the workplace. 300 The employer denies that Mr Alley was unfairly dismissed or that the pursuit of award rights was motivation to disadvantage Mr Alley so as to constitute victimisation. 301 The employer asserts that Mr Alley contrived a strategy to engage the employer in litigation in retaliation for the non-payment of the Christmas bonus, submitting that this strategy was devised over the Christmas break which Mr Alley and his family spent with his wife's family, which includes Mr Hagan, now acting on behalf of Mr Alley. 302 The employer submits that the applicant's statement (exhibit 3) of 58 numbered paragraphs over 15 typed pages, dated 8 January 2005, leads to a conclusion that the applicant had legal advice at least by 8 January 2004. At page 3 of his written submissions Mr Mulcahy put: 2. It was never explained why the statement was dated 8 January 2005 when the actual document was not signed on that day.
What is important, however, is that both the statement and the proposed annexures were in existence by at least Saturday 8 January 2005 being the next day after the Applicant's hours were reduced.
It is submitted that at least part of Exhibit 3 namely the schedules of alleged underpayment of holidays, underpayment of holiday loading and underpayment of overtime were compiled prior to 8 January 2005.
It is submitted that as at 8 January 2005 (or before) the applicant had formed an intention to bring a substantial ($100,000) claim for underpayment and could expect to be in dispute with the Respondent from that time on. 303 The employer submits that the intention to make the underpayment claim and enter dispute with the employer was formed prior to the applicant returning to work on 5 January 2005, putting that the applicant's conduct in the meeting with Mr Baker on 6 January 2005, the demands made in respect to the award and safety, and the "go slow" strategy were deliberate acts by the applicant directed to entrapment of the employer, described by Mr Mulcahy in his submissions as a "set up". 304 The employer supports this submission by reference to the employment application for the Casino Meatworks dated 11 January 2005, prior to the application for long service leave and the "warning letter" of 12 January 2005. 305 The employer further supports the argument of entrapment on the basis that the applicant gave no advice or communication concerning the claim for underpayment of wages at any time during the course of discourse in January 2005. The employer did not become aware of the claim for underpayment of wages until 23 January 2005, subsequent to the applicant's departure on long service leave. 306 The employer denies that the applicant was victimised or disadvantaged in his employment by a reduction in hours to 38 per week and consequent reduction in remuneration to the award rate, submitting that it was acting in accordance with a request by the applicant on 7 January 2005 to be paid in accordance with the Award. The employer submits that the applicant sought this change to his employment arrangements, to which it agreed. 307 At page 6 of his written submissions Mr Mulcahy put that: 33. The Respondent submits that as a result of the Applicant's request for a 38 hour working week and payment in accordance with the Award, the Respondent both reduced the Applicant's both working hours and his remuneration accordingly. The Respondent submits that the Applicant was warned as to the consequences of his request made at the meetings on 6 and 7 January 2005 (see paragraph 56 of Exhibit 3). In response to the Respondent's warning that the Applicant would receive less remuneration the Applicant stated "That's fine. All I was asking for was what is written in the Award". The Respondent submits that the variation in the Applicant's working hours and payment was not a unilateral decision by the Respondent but the employment contract was altered by way of agreement on 7 January 2005. 308 The employer submits that the exchange between Mr Creagh and Mr Alley on 7 January 2005 in which Mr Creagh informed the applicant that he had "shot himself in the foot", was in fact an opportunity for the applicant to resile from his insistence that his hours be reduced to 38 hours per week, which was not taken up. 309 The employer submits that there was no actual dismissal of the applicant, who proceeded on approved long service leave on 14 January 2005 with an expectation to return to work on 16 March 2005. The employer submits that the expected return to work by the applicant on 16 March 2005 was confirmed in conciliation proceedings before Commissioner Murphy on 2 March 2005. 310 The employer submits that the applicant did not return to work on 16 March 2005, effectively abandoning his employment from that date. 311 The applicant was paid weekly up to the conclusion of the period of long service leave. 312 The employer submits that the applicant was not constructively dismissed and denies that there was a repudiation of the contract of employment by a reduction in hours and removal of the motor vehicle benefit. 313 The employer submits that there was an agreement between the parties in 2000, resulting in additional remuneration and benefits, including motor vehicle usage, in return for additional duties. The employer put that on 7 January 2005 the applicant sought to withdraw from this arrangement in favour of working award hours at award conditions and rates of pay, to which the employer agreed. 314 Mr Mulcahy put that Clark has no application in this matter as Mr Alley was not required after 7 January 2005 to perform duties any different to those performed prior to that date; putting that: The Respondent simply required the Applicant to perform the minimum 38 hours under the award. 315 Mr Mulcahy submitted that Colosimo is distinguishable from the present matter as the reduction suffered in that matter was from 5 days per week to two days per week, which was held to be a repudiation of the contract. Mr Mulcahy submitted that in the present case: Quite the opposite is true, with the respondent enforcing what the applicant claims to be the contract of employment, namely a requirement to only work 38 hours per week. 316 Mr Mulcahy submitted that the written warning of 12 January 2005 did not relate to events of 6 and 7 January 2005 in which the applicant sought award entitlements, but to the conduct of the applicant after that time. 317 Mr Mulcahy submitted that the assertion by the applicant that he was constructively dismissed on the basis that the warning letter was not withdrawn, and at the same time his above award wages and privileges were not reinstated, ignores the employer's right to discipline employees for misconduct; and the fact that the applicant was on long service leave, as a result of which the applicant had performed no work for the employer since 14 January 2005. 318 Mr Mulcahy put that: The Applicant submits that he was not required to return to his employment unless he was reinstated to his pre-7 January 2005 wages and supplementary benefits but at the same time did not resile from his position whereby he was only prepared to provide 38 hours labour per week. It is submitted that the Applicant's position is untenable as he claims that he is entitled to reward for work he is unwilling to perform. 319 Mr Mulcahy put that the oral and written warnings issued to the applicant on 12 January 2005 were on the basis of reports received on 10 January 2005 that the applicant had encouraged workplace disharmony by asserting that the employer would not meets its award obligations and advocating a "go slow" which undermined the authority of the Manager, Mr Creagh. 320 Mr Mulcahy submitted that Mr Creagh's evidence of the meeting between himself and Mr Alley on 12 January 2005 should be preferred to that of Mr Alley. 321 Mr Mulcahy put that contemporaneous notes made by Mr Alley confirm that a meeting took place between 5.30 and 5.50pm on 12 January 2005, which specifically deny that the written warning was read out to him. 322 The evidence of Mr Creagh is that he had obtained legal advice that it was necessary to explain the reasons for the formal warning and provide Mr Alley with an opportunity to respond and that he followed this advice. 323 Mr Mulcahy submitted that if the meeting had been confined to the issues asserted by Mr Alley it would have been over in five minutes, not the twenty minutes recorded by Mr Alley. Mr Mulcahy further submitted that a meeting of 20 minutes duration is consistent with explanation of the warning letter as deposed by Mr Creagh. 324 Mr Mulcahy submitted that the "go slow", as reported by Mr Jeffrey on or about 10 or 11 January 2005, was a substantive basis of the warning of 12 January 2005 but not specifically referred to in the written warning given to Mr Alley because:
(i) Mr Creagh, the author of the warning letter, was not trained in legal letter writing,
(ii) the employer was unaware the applicant had already formed an intention to be in dispute in respect to the underpayment of wages claim, and
(iii) the employer believed it was only issuing a written warning for the purpose of dealing with the applicant's misconduct in accordance with fair and proper employment practice. 325 Mr Mulcahy submitted that the applicant lacked consistency in claiming the benefits of the award, whilst previously enjoying the benefits of a salary package including above award payments, a fully maintained motor vehicle and use of the farm cottage. 326 Mr Mulcahy submitted that it was clear that the applicant had agreed to a salary package and his denial of that agreement is inconsistent with the acceptance of the benefits the employer says formed part of the salary package. 327 Mr Mulcahy submitted that issues of credit weighed against the applicant, putting that: · His denial of the salary package and additional duties is inconsistent. · The letter sought from Mr Jeffrey to assist in the purchase of a vehicle was drafted by Mr Alley, not Mr Jeffrey, was false and misleading, not used for the stated purpose but created for the purpose of litigation with the employer to establish an award rate of pay as a senior nursery tradesperson. · Mr Alley's evidence of his application to Casino Meatworks is inconsistent and reveals an attempt to conceal the early dates of his interest and application so as to contradict the employer's allegation that the dispute between the applicant and the employer was contrived. · The application for employment to Alpine Nurseries, a long term customer of the employer, was not directed to obtaining employment as there is no evidence of any other applications to a nursery, but directed to placing the employer in a poor light. Mr Mulcahy submitted that Mr Alley gave no evidence of his own explanation to Alpine as to why after 14 years he sought alternative employment, putting that Mr Alley was well aware that an enquiry would be made to the employer who would be obliged to tell the truth, that Mr Alley was still in its employ and that industrial issues were afoot. 328 Mr Mulcahy submitted that much of the evidence brought by the applicant was indirect and should not be preferred over that of Messrs Baker and Creagh. 329 Mr Mulcahy submitted that Mr Baker genuinely believed that he was acting in accordance with Mr Alley's wishes when he instructed Mr Creagh to reduce Mr Alley's hours to 38 per week. 330 Mr Mulcahy submitted that the employer was not aware until 23 January 2005 that Mr Alley planned to be in dispute with the employer and accordingly did not make contemporaneous notes of events now said to be material. 331 Mr Mulcahy submitted that the evidence of Messrs Baker and Creagh was given in a forthright and truthful manner, Mr Baker conceding that he had been angry with the way in which Mr Alley had presented the list of issues on 6 January 2005; and that the evidence was more consistent with Mr Baker being annoyed. 332 Mr Mulcahy submitted that Mr Creagh had no incentive to give evidence that conflicts with Mr Alley as he held the senior position at the Teven nursery prior to Mr Alley's employment and his position was not in jeopardy, despite what Mr Mulcahy submitted was: The applicant's numerous attempts to undermine Andy Creagh's position in the company through allegations of underperformance. 333 Mr Mulcahy submitted that the evidence of Mr Kerry should be accepted. Mr Mulcahy put that Mr Kerry: "presented as an impressive witness who gave evidence motivated by a desire to rectify unjust and unfair accusations against his supervisors and the respondent itself. 334 Mr Mulcahy put that the evidence of Mr Kerry confirmed that Mr Jeffrey supervised the majority of employees and that Mr Alley oversaw one, possibly two, employees in the propagation area. 335 Mr Mulcahy submitted that the uncertainty of when and where Mr Alley advocated the "go slow" arose from Mr Kerry not being aware that Mr Alley planned to be in dispute with the employer and accordingly no contemporaneous notes were made. It is Mr Mulcahy's submission that Mr Kerry had also suffered a reduction in hours to 38 per week and had an interest in being paid overtime, putting that the evidence of Mr Kerry that Mr Alley advocated a "go slow" on either Monday 10 January, or Tuesday 11 January 2005 is sufficiently accurate so as to be accepted. 336 Mr Mulcahy submitted that the evidence of Mr Jeffrey that Mr Alley had been aggressive toward the employer on the non payment of a Christmas bonus was of significance; and that there had been a clear indication from Mr Alley to Mr Jeffrey in December 2004 that legal advice would be sought prior to resumption of work on 5 January 2005. 337 Mr Mulcahy submitted that the applicant has not made out a case for relief from victimisation, putting that there is no evidence that Mr Alley was a member or an official of an industrial organisation of employees, or otherwise elected representative of the employees. 338 Mr Mulcahy submitted that Mr Alley was not victimised, putting that there is uncontested evidence that payments were made in accordance with the award following notification, and that hours and consequent remuneration were only reduced at Mr Alley's request. 339 Mr Mulcahy submitted that there was no change in Mr Alley's duties nor was there any complaint whatsoever from Mr Alley as to the employer's conduct concerning his employment generally between 7 January 2005 and Mr Alley's departure on long service leave on 14 January 2005. 340 Mr Mulcahy submitted that the warning letter of 12 January 2005 could not be characterised as victimisation. 341 Mr Mulcahy submitted that if Mr Alley had been victimised then what he described as "classic complaints", such as segregation from the other employees, abusive conduct from more senior employees and other workers, withdrawal of non-remuneration privileges and the allocation of demeaning work, would be expected. Mr Mulcahy submitted that these complaints were not made as no such conduct took place, so reinforcing his submission that Mr Alley was not victimised. 342 Mr Mulcahy submitted that Mr Alley has failed to mitigate his loss by: · making no attempt to reconcile with the employer, on the contrary pursuing complaints to WorkCover which it is submitted were designed to further antagonise the relationship between Mr Alley and the employer; and · minimal effort and success in alternative employment prior to becoming self employed. 343 Mr Mulcahy submitted that it was Mr Alley's intention at all times to become self employed and it was his plan to supplement his fledgling business with casual employment and the proceeds of this litigation. 344 In concluding his submissions Mr Mulcahy put: The Respondent seeks leave to make further submissions on costs which as a preliminary matter the Respondent believes should be awarded on an indemnity basis having regard to the Respondent's submission that the Applicant planned to be in dispute with the Respondent and has failed to mitigate in respect of that dispute. 345 In reply Mr Hagan submitted that award classification is subject to satisfaction of the award definition, not "as deemed" by the employer, putting that Mr Alley met the award definition of Senior Nursery Tradesperson. Mr Hagan put that Mr Alley had been in receipt of over award benefits represented by his salary of $750 per week, fuel allowance and use of a company vehicle, which the employer could not unilaterally withdraw, or use the device of a reduction of hours to 38 per week to extinguish. 346 Mr Hagan submitted that the employer was advised of this by the Guidebook, which states (Ex 8, s 9 at p 3): Contract of Employment … if you give employees more generous benefits it is likely that these will become part of the contract of employment. An employee can seek to enforce these conditions in court. In order to change the conditions you will need either the agreement of the employee in writing or a provision in the contract of employment which permits you to change the contract unilaterally. 347 Mr Hagan put that the employer had neither the written consent of Mr Alley nor provision in the contract to alter it unilaterally. 348 Mr Hagan submitted that the employer could not rely on the assertion that Mr Alley had requested a reduction of hours; he did not ask for award entitlements for himself and other employees which cannot be said to be a request for reduced classification, hours of work and remuneration. 349 Mr Hagan put that the contract of employment entitled Mr Alley to be paid $750 per week for 38 hours, putting that the only legitimate reduction would be by absorption of future State Wage Case increases by agreement. 350 Mr Hagan takes exception to the inferences that, on the basis of his relationship as father-in law to Mr Alley, Mr Alley's statement of 8 January 2005 is too well prepared and comprehensive to be the work of the applicant and his wife without legal advice, and so part of a conspiracy to engage the employer in litigation. 351 Mr Hagan affirms a professional response, putting that he was not consulted nor had he given advice prior to the demotion of Mr Alley by the employer on 7 January 2005. 352 Mr Hagan put that, especially there was no legal advice sought prior to the list of award issues raised with the employer. Mr Hagan put that he was not retained to advise Mr Alley prior to 8 January 2005, adding that there is no shred of evidence to infer otherwise. 353 Mr Hagan put that the plot timing advanced by the employer is spurious and without foundation, submitting that there is no way Mr Alley could anticipate the events of early January and that the suggestion that he, as Mr Alley's solicitor, would assist or permit the filing of a falsely dated statement is incomprehensive and offensive. 354 Mr Hagan put: It is submitted in reply that it was the Respondent who was premeditated and totally convinced of its superiority and power over the Applicant. The Respondent's Manager Mr Creagh knew the Applicant's father-in-law was a solicitor, having attended the Applicant's wedding. Mr Baker was also an invitee. It was the Respondent who flaunted its legal advice when on 12 January 2005, Mr Creagh said (page 2 Applicant's Statement 23 January 2005): "There are changes to unfair dismissal laws coming in soon so just be careful. You can show that letter to anyone you want. It's a solicitor's letter so it is all above board." … … It is not the Applicant who has "set up" the Respondent and "engineered a dispute" as submitted by the Respondent in paragraph 11. It is the Respondent who has engineered its own downfall by refusing the many opportunities provided by the Applicant and staff to resolve and de-escalate dispute: 1. By not agreeing to pay the staff leave loading when first complained
By issuing a formal written warning threatening dismissal to the Applicant only, for "pushing award issues" instead of offering due process and first verbal warning ( see Nursery Guidebook Chapter 4 "Termination and Dismissal Guidelines" page 4)
By not withdrawing the threat of dismissal when offered more than reasonable opportunity to do so by the Applicant in his letter and for the cooling-off effectively afforded to the Respondent by the Applicant taking long service leave and not immediately commencing proceedings when entitled
By issuing instead a letter confirming its position and describing the Applicant's detailed letter in answer : "which contains numerous inaccuracies and misrepresentations, which do not respond to my complaints concerning your client's behaviour ... does little to further his cause", instead of opening dialogue
By refusing the opportunity of conciliating a return to work on reasonable terms when offered before the Commission.
None of the above could be said to have been contrived by the Applicant. CONSIDERATION 355 The facts relied upon in both the application for relief from unfair dismissal and relief from victimisation are so intertwined it is necessary to consider both issues concurrently. 356 Non-payment of the 2004 Christmas bonus accompanied by a failure on the part of the employer to communicate this to employees until the last day of work in 2004 caused considerable aggravation in the workplace, not confined to Mr Alley. The unrefuted evidence is of anger and dissatisfaction by all employees and an expressed intention to seek legal advice by Mr Kerry.
357 The employer has recognised that this issue could have, and should have, been dealt with in a more appropriate manner. 358 There are inconsistencies and contradictions in the evidence of almost all witnesses. The issues of credit favour the applicant who, on examination of the evidence, was accepted as a representative by employees to express their dissatisfaction with non-payment of Christmas bonus and pursuit of award entitlements. 359 Some of Mr Alley's fellow employees turned on him when it emerged that the employer would reduce their wages as a consequence of being required to address its award obligations and comply with industrial regulations of such basic nature as providing weekly pay slips. 360 Mr Alley sought payment in accordance with the Award. He did not refuse to carry out any of the functions required of him. 361 It cannot be held that in so doing Mr Alley repudiated earlier arrangements of dubious validity and uncertainty involving additional unspecified duties and benefits. There is nothing in the list of issues raised which suggests a refusal to undertake any work or a refusal to work as directed, and certainly nothing which seeks a reduction of hours or remuneration. 362 Mr Alley did not ask to revert to 38 hours per week, but to have the work he did and the hours he worked reconciled with the award classification and payment. 363 At the time he made this request Mr Alley was unable to determine whether he was being paid over or under the award as he had never received a pay slip from the employer setting out the calculation of his remuneration. 364 The defence offered by the employer that the reduction in Mr Alley's remuneration was in accordance with his request to be paid the award entitlements is a disingenuous construction of events. Whilst it may be convenient for the employer to attempt to lay the cause of his loss on Mr Alley, this is not sustainable on the evidence. 365 Mr Alley has never received a letter of appointment or statement of duties. His salary was set by the employer without negotiation, as were the motor vehicle and housing benefit conferred by the employer without any negotiation, statement or understanding of the value.
366 Mr Baker's evidence is that other employees who were not in junior management positions were given housing and motor vehicle benefits. It is impossible to determine whether the on site accommodation was a real benefit to Mr Alley, or whether his presence as an occupant was advantageous to the employer. 367 Mr Alley did not occupy the accommodation at the time of the relevant events in January 2005 and accordingly any value that may be attributed to the accommodation was not applicable to him. The Warning Letter of 12 January 2005 368 The submissions of Mr Mulcahy that the warning letter was issued in accordance with fair and proper employment practice is unsustainable. 369 Fair and proper employment practice would require an investigation of the allegations, particularly in light of the difficulties between Mr Alley and Mr Jeffrey, Mr Creagh's informant. The submission that the warning letter did not mention the "go slow", a principle motivation for its existence, is not explained by Mr Creagh's lack of experience and is inconsistent with the argument that I should accept Mr Creagh's evidence that he read the letter point by point to Mr Alley and offered him an opportunity to respond as he had received advice from Mr Mulcahy that he should do so. 370 Mr Creagh's evidence is that he had the warning letter with him for most of the day. It was open to Mr Creagh and prudent for him to have a witness to the discussion with Mr Alley, and consistent with fair and proper employment practice to inform Mr Alley that issues of conduct were to be raised and Mr Alley given the opportunity to be assisted by a representative or have a witness to the discussion. Mr Alley was not informed of the subject matter nor given a chance to seek assistance. 371 The fact that the warning letter was given to Mr Alley when the opportunity was presented by Mr Alley seeking out Mr Creagh to inquire about his long service leave further supports a conclusion that the warning letter was handed to him in the manner deposed by Mr Alley. 372 The warning letter is not specific in the allegation that Mr Alley advocated a go-slow, or put to other employees that the employer would not meet award obligations. The specifics of these allegations came later and fail under scrutiny. There is no sustainable evidence that Mr Alley impugned the employer's intention to meet award obligations or that Mr Alley advocated a go-slow. 373 The evidence by employees is without corroboration, no two versions are the same. The evidence of Mr Kerry that the loading of the truck was slow is refuted by Mr Creagh who put that the job was done in reasonable time. This supports the finding of the falsity of the allegation and strengthens the conclusion that, faced with the hostile reaction of the employer towards Mr Alley, he was abandoned by his colleagues, some of whom then sought to curry favour with the employer by making false allegations. 374 Mr Alley was denied procedural and substantive fairness. The specific allegations were not put to him and the employer failed to conduct a proper investigation into those allegations. 375 A close analysis of the employer's conduct reveals a depth of industrial ineptness commencing with mishandling of the Christmas bonus issue, failure to meet the basic obligation of providing pay slips, and a warning without investigation or substance.
Disputes Procedure 376 From at least 25 January 2005 when these proceedings were notified, the parties were in dispute over a number of workplace matters, all capable of resolution in accordance with the disputes settlement procedure prescribed by the award, which culminates in arbitration. 377 It is regrettable that the disputes procedure was not invoked and the issues progressed in a pragmatic industrial manner as would be expected from a properly informed employer attending to its responsibility towards its employees. Effective application of the disputes procedures is often obtained with assistance from a responsible trade union and experienced employer association. 378 The evidence leads to the conclusion that the hostile attitude of the employer prevented a resolution of issues. The employer intensified its attack on Mr Alley and included his representative, Mr Hagan; whilst at no time offering any reconciliation of hours worked and wages paid with the award or conducting any objective investigation into the "go slow" allegation. 379 Mr Creagh's evidence that he remonstrated with Mr Alley that he had gone about things in the wrong way, and would be $150.00 pw worse off as a consequence, is direct evidence of the employer's detrimental action toward Mr Alley. 380 It is of significance that Mr Creagh did not take up the issues in the "correct way" and work towards a resolution. The employer mounted a sustained attack on Mr Alley in retaliation, fostering and perpetuating a combative approach. 381 There is unrefuted evidence from Mr Baker that Mr Alley was paid $750 p.w. plus the use of a motor vehicle and fuel allowance. There is further unrefuted evidence from Mr Baker that subsequent to Mr Alley raising award and safety issues Mr Alley's duties did not change, only his remuneration and position in the "management team" were altered. This alteration in remuneration was significantly to Mr Alley's detriment.
Long Service Leave 382 The application for long service leave by Mr Alley and his request for payment weekly cannot be held to be an acceptance by Mr Alley of his reduced remuneration. I find that the long service leave and weekly remuneration was a strategy by which Mr Alley hoped to restore his employment with the employer by providing a cooling off period and opportunity for discussion. 383 This strategy was, in my view, genuine on behalf of Mr Alley. 384 The strategy of reconciliation in the period of long service leave was scuttled by the employer continuing a hostile and repudiatory attitude towards Mr Alley, and subsequently Mr Hagan, and exacerbated by the initial payment of long service leave to Mr Alley at the tradesperson's rate, which Mr Baker described as a mistake which he corrected. This mistake was most unfortunate and somewhat inexplicable given that compliance with lawful obligation was in high profile at the time. It is, in my view, entirely understandable that Mr Alley saw this further reduction in his remuneration as another act of hostility and recrimination by the employer. Conspiracy Theory 385 I do not accept the conspiracy theory advanced by the employer that Mr Alley had decided to enter into litigation and bring his employment to a financially lucrative end. 386 It is impossible to accept that Mr Alley could anticipate the employer's decision not to pay a bonus in 2004, which provided the catalyst for dissension and sent the employees seeking refuge in the award. The extent of non-compliance is also in the hands of the employer who, on the evidence, took an attitude of disregard to its obligations. 387 The efforts of Mr Alley to find alternative employment cannot be held against him. Mr Alley's pursuit of a better position in late 2004, which resulted in him continuing in his employment at the Teven Nursery, is no more than an exercise of right in a free society. Mr Alley's pursuit of further alternative or additional employment came after the reduction in his remuneration by the employer.
Termination Of Employment 388 The demotion and reduction in remuneration were at the initiative of the employer in reaction to the lawful request for award compliance and occupational health and safety issues bought to its attention by Mr Alley. 389 Having regard to the principles enunciated in Alison v Bega Valley Council (1996) 63 IR 68, analysis of the evidence leads to the conclusion that the employer's conduct was the real and effective initiator of the termination of employment. 390 The offer of continued employment as a tradesperson was not an offer of continued employment in the pre-dispute position, but an offer at such a reduced level of remuneration and status so as to have no connection with the position from which Mr Alley was dismissed; which further supports the conclusion that the employer no longer desired Mr Alley to continue in the pre-dispute employment. 391 I determine that Mr Alley was constructively dismissed from his employment by the employer. I find that this termination of employment was harsh, unreasonable and unjust.
Victimisation 392 In Davis a Full Bench of the Commission (Cahill J, VP, Hill and Maidment JJ and Redman C) defined victimisation at 381 to mean: "to cause an employee to suffer some injury, hardship or loss, or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment." 393 There is clear evidence that Mr Alley was "demoted" from the management team and had his remuneration significantly reduced in retaliation to his raising of issues of compliance with the award. 394 The evidence leads to the conclusion that Mr Alley's request that industrial and safety issues be addressed was the substantial and operative reason for the employer's detrimental treatment of Mr Alley. REMEDY
395 I find that neither reinstatement nor re-employment are practical and determine that compensation is the appropriate remedy. 396 In assessing compensation I note that the claims for unpaid overtime, unpaid annual leave and unpaid leave loading are subject to proceedings before the Chief Industrial Magistrate who will also consider the question of the appropriate award classification. I do not consider any of these amounts in this matter, nor do I need to consider the question of the appropriate award classification. The evidence is clear in this matter that prior to his demotion and ultimate dismissal in retaliation for raising award and safety matters, Mr Alley was paid a base wage of $750.00 per week. Matter No IRC 418 of 2005 - s84 Unfair Dismissal 397 Having regard to the length of service and degree of unfairness, I conclude that compensation of 26 weeks pay is appropriate at the rate of $750 per week, being that applied by the employer for payment of long service leave, resulting in an amount of $19,500 (nineteen thousand five hundred dollars). Matter No IRC 416 of 2005 - s213 Victimisation
398 I find that reinstatement is not practical. I assess compensation at $20,000.00 (twenty thousand dollars). 399 I so order. 400 Matters No IRC 416 and 418 of 2005 are so concluded. oo0oo
Phillip Reginald Alley and Camnex Pty Limited t/as Combined Nursery Sales
Application for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996 ORDER Pursuant to section 21 of the Industrial Relations Act 1996 Camnex Pty Limited trading as Combined Nursery Sales is ordered to pay Mr Phillip Reginald Alley the sum of $20,000 (twenty thousand dollars) within 21 days of the date of this decision.
Phillip Reginald Alley and Camnex Pty Limited t/as Combined Nursery Sales
Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDER Pursuant to section 86(3) of the Industrial Relations Act 1996 Camnex Pty Limited trading as Combined Nursery Sales is ordered to pay Mr Phillip Reginald Alley the sum of $19,500 (nineteen thousand five hundred dollars) within 21 days of the date of this decision.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Alley
Camnex Pty Limited T/as Combined Nursery Sales
[2001] NSWIRComm 1063
(1998) 84 IR 309
(2004) 132 IR 190
(1995) 63 IR 68
(1995) 62 IR 200
(1995) 64 IR 169
(1994) 55 IR 255
(1996) 67 IR 214
(1996) 63 IR 68