This matter involves a “pelican feeder” who worked one hour per week ($29.00) who was reinstated to his former position; but not before Commissioner Gregory analysed the matter VERY thoroughly and quoted informative authorities on:

  • The works of Dixon Lanier Merritt;
  • The validity of a reason for dismissal;
  • Out-of-hours conduct;
  • Definition of the spoken word “effing”;
  • Trust and confidence;
  • Reinstatement; and not forgetting
  • The reference that the applicant was not “feathering his own nest”.

The “stay” application defined when a stay order can be issued. Did not or would not “enliven the public interest” because In part) of the trivial amount involved.

Introduction

Decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4877.htm

Appeal: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc5422.htm

The applicant in this matter was employed on a casual basis since 2001 and was working on the Tuesday of each week at the time of his dismissal. The respondent is involved in a range of activities, one of which includes daily feeding of the local pelicans. The feeding sessions take place at twelve noon and finish at 1.00 pm each day and are conducted by various employees engaged on a casual basis. They have the unusual but appropriate job title of “pelican feeder.”

At the time he was dismissed he was receiving an hourly rate of $29.00, meaning that his total weekly income was also $29.00.

As Commissioner Gregory put it:

“Mr Matthews is also a member of what is known as the Pelican Research Group. It is a voluntary group which looks to support the welfare of the local Australian Pelicans (“Pelecanus conspicillatus”) who frequent the San Remo region. They are, apparently, a little understood and rarely studied species of bird. Pelicans are often also the subject of jokes, primarily related to the size of their bill, although the American poet and humourist, Dixon Lanier Merritt, arguably viewed them more favourably when he wrote:

“A wonderful bird is the pelican,

His beak can hold more than his belican,

He can take in his beak,

Enough food for a week,

But I’m damned if I know how the helican!”

The applicant was dismissed from his employment after being involved in an argument on the previous day with the General Manager. The applicant had been employed by the respondent for 18 years.

The applicant’s wife appeared on behalf of the applicant (ie “free”), whilst the respondent had legal representation (ie “$’s”).

The respondent confirmed the dismissal by e-mail and the reasons given for his dismissal were:

  • Continued refusal to disclose complete financial details of funds raised at the Pelican Feeding.
  • Your claim that “the whole group of us (pelican feeding staff) agreed that it was our information and not to be given to anyone else”. This has since been refuted by other staff.
  • Accusing the General Manager of sending a “stooge” to ask you about badges at the Pelican Feeding. With the GM taking offence to the accusation.
  • Greeting the GM with the comment “What you did was very f**ken disrespectful from the word go” was “another example” of the applicant’s continued poor conduct and attitude.

Consideration

In consideration of the facts before him, the Commissioner noted:

“This application can, on one view, be seen as somewhat trivial and insignificant, given that Mr Matthews was only employed in the somewhat unusual occupation of “pelican feeder” for one hour on one day in each week. However, it is also acknowledged that any employee is entitled to pursue an unfair dismissal application after they have been dismissed, regardless of the nature of their employment arrangements, providing they satisfy the relevant jurisdictional requirements.

“The circumstances are also somewhat unfortunate, given that it is clear from the evidence that [the applicant] has, over a long period of time, been the acknowledged leader of a dedicated group in the local…community who have worked to support the region’s pelican population, as well as the daily pelican feeding activities carried out in conjunction with the [respondent]. It appears that these activities have provided valuable support for the welfare of the local pelicans, and have also been beneficial to the interests of the respondent. [The applicant] has also been prepared to take new staff under his wing, and to assist in the training and development of other pelican feeders. However, his relationship with the respondent was turned on its head when he was dismissed from his employment in September last year”.

The Commissioner then tested the evidence against established precedents used many times in the Fair Work Commission relating to unfair dismissals. With the Commissioner summarising these precedents:

“These authorities make clear that the existence of a “valid reason” is often the most important consideration of the matters in s.387 that the Commission must have regard to. It is also clear that a “valid reason” must be one that is “sound defensible and well founded” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter”. [My emphasis].

Reference was made to “out of Hours” conduct:

In this matter, the out-of-hours conduct referred the sale of badges that was undertaken by the volunteers at the end of each feeding session. By this stage I believe the Commissioner was injecting humour. By stating:

The circumstances involved in the matter of Rose led Vice President Ross, as he was then, into a detailed exposition about the extent to which an employee’s conduct outside of work can provide a valid reason for their termination. After extensively reviewing the shift in the nature of the employment relationship since the era of master and servant Vice President Ross concluded:

“It is clear that in certain circumstances an employee’s employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

  • the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
  • the conduct damages the employer’s interests; or
  • the conduct is incompatible with the employee’s duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.

Absent such considerations an employer has no right to control or regulate an employee’s out of hours conduct. In this regard I agree with the following observation of Finn J in McManus v Scott-Charlton:

“I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified.”

“The Vice President then continued to review a series of previous decisions in which the conduct or misconduct of employees in their private life was found to have impacted on their employment. Most of the examples referred to involve conduct or behaviour that is significantly different and evidently more serious in nature than anything involved in the present matter. For example, the Vice President referred to a case in which a police officer was found loitering in the grounds of a girls’ school, while off duty and wearing only his underpants…[My emphasis].

Vice President Ross came to the following conclusion:

“I do not doubt that the applicant’s behaviour on 14 November 1997 was foolish and an error of judgment. He made a mistake. But employers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life. The circumstances in which an employee may be validly terminated because of their conduct outside work are limited. The facts of this case do not fall within those limited circumstances.”

The Commissioner finding:

“The decision in Rose makes clear that an employee has an obligation to avoid damaging the interests of their employer through conduct in their private life, but at the same time it also makes clear that the conduct complained of must be both incompatible with their duty as an employee, and likely to cause serious damage to the employment relationship. I am not satisfied, when viewed objectively, that [the applicant’s] conduct in refusing to reveal the revenue generated from the badge sales can be said to fall into this category. The following circumstances are relevant in this context:

  • the [respondent] had previously been prepared to allow the sale of badges at the conclusion of the feeding sessions, without any expectation that any of the revenue generated would go to the [respondent];

  • the pelican feeders had immediately stopped selling the badges at the feeding sessions when directed to do so by [respondent] management;

  • there is no suggestion that the Pelican Research Group had done anything wrong, or was looking to feather its own nest, by retaining the revenue from the badge sales. [My emphasis].

Definition of “effing”

The commissioner then turned to the incident of swearing by the applicant towards the respondent’s GM:

“However, I am aware that some online dictionaries have a divergence of view about the meaning of the two words. While online dictionaries such as “Urban Dictionary” cannot be deemed to be authority on the definition of words in the ‘dictionary sense’ some contributors have made what I consider to be enlightening entries in relation to the definition of “effing.” For example, some contributors draw little distinction between the two words, with one contributor’s definition of the word “effing” stating “Derivation of the word f**king, “effing” means literally f**king,” with another stating “used in place of the f-bomb.”

“…other online dictionaries take a slightly different view and, for example, a Google search of “effing” produces the online dictionary definition of “effing” in the following way:

“Used as a euphemism for f**king, for emphasis, or to express annoyance. Give me an effing break! He is an effing awful prime minister.”

“Regardless, the use of swear words in the course of a conversation between an employee and his/her Manager is not condoned or encouraged although it is also acknowledged, based on my experience of dealing with matters that come before the Commission, that the use of such language in similar discussions is not unusual. It also appears that [the applicant] used the f-word as an adjective to emphasise his frustration, and his language was not directed at the respondent’s GM in an aggressive or threatening way. The conversation can also be seen as a robust discussion between two mature and experienced individuals, who had known each other for some time, and previously had a good relationship. It also appears that the respondent’s GM gave ‘as good as he got’ during the course of the conversation”.

Conclusion

The Commissioner found that the applicant was unfairly dismissed on the basis that his dismissal was at least harsh and unreasonable.

Trust and Confidence

In reinstating the applicant to his former position, The Commissioner referenced Perkins v Grace Worldwide (Aust) Pty Ltd where the Full Court of the Industrial Relations Court of Australia came to the following conclusion:

“Trust and confidence is a necessary ingredient in any employment relationship… So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based…

“Each case must be decided on its own merits … In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive

Commissioner Gregory had little sympathy for the respondent, stating that

“It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing…But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making.”

The Commissioner also quoted the decision in Australian Meat Holdings Pty Ltd v McLaughlin a Full Bench of the Commission found that:

“We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessary conclusive.”

The reinstatement

In ordering reinstatement, the Commissioner did not order backpay, with the reinstatement to be undertaken within 14 days with no loss in continuity of service.

The Application for a “stay” being denied by Vice President Hatcher of the Fair Work Commission

The principles applying to the determination of stay applications which are applied by the Fair Work Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. Paragraph [5] of that decision states:

“In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

The VP stating that:

“My preliminary assessment, based upon the materials I have identified, is that I am not satisfied that the appeal is arguable with some reasonable prospects of success. My reasons for that conclusion are as follows. Being an appeal from an unfair dismissal decision…[the Fair Work Act] provides that the Commission must not grant permission to appeal…unless the Commission considers it to be in the public interest to do so”.

The VP was not persuaded that there are reasonable prospects that the Commission would be persuaded that the granting of permission to appeal in respect of this appeal would be in the public interest; emphasising that in respect of the public interest, we are considering interests that are broader than those of the parties directly. In that respect, I note the following matters:

  • “…with the greatest respect to all those involved”, this decision has an unusually and perhaps uniquely insignificant subject matter. It involved employment to which attached some $29.00 in remuneration per week. “I consider that having regard to the subject matter of the case, it is intrinsically unlikely that it would attract the public interest”.
  • Nothing was put that indicates the appeal raises any issues of principle, novelty or general application.
  • There was a delay of about 5 or 6 months between the hearing of the matter and the date the decision was issued, raising issues of procedural fairness.
  • I do not consider that any of those grounds actually disclose any error of fact let alone a significant error of fact. Rather, they criticise and seek to challenge various evaluative judgments or value judgments made by the Commissioner in his exercise of his discretion.
  • One ground of alleges that the Commissioner in various ways failed to properly weigh the evidence, but it is well established that the weight to be assigned to particular considerations in a case does not amount to a proper contention of appealable error unless it can be demonstrated that the evidence was simply not taken into account at all.

The VP also “tested” an example of events that occurred after the initial decision stating:

“I can simply say that I do not consider there is any merit to the proposition that appealable error in a decision can be demonstrated by reference to matters of fact which occurred after the decision was issued”.

The VP rejected the application, noting that as part of the application the employer (now the applicant) was to back pay the employee, which totals some four to five months. Plus, no doubt, some hefty legal fees.

Referencing one of William Shakespeare works: “Much Ado About Nothing”.