Leon Harold Carkeek and Philip Cayeux trading as Les Filass Farms [1995] IRCA 169

IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 176 of 1994 B E T W E E N: LEON HAROLD CARKEEK - Applicant and PHILIP CAYEUX trading as LES FILASS FARMS - Respondent BEFORE: JUDICIAL REGISTRAR WHEELER DATE: 16 December 1994 PLACE: PERTH REASONS FOR JUDGMENT - EX TEMPORE In this matter the facts are that between 1989 and 1991 the applicant worked on a poultry raising property, currently owned by the respondent, on a sporadic casual basis. The respondent purchased the property toward the end of 1990. In July 1991 the applicant began to work on a permanent basis for the respondent. There is some dispute as to the hours of work at that time but it appears that dispute is not relevant for the purposes of this application. At that time and for some six months subsequently the respondent's son, Arnaud, managed the property in the sense of being responsible for the growing of the poultry. In early 1992 - and there is some dispute as to precisely when - the applicant began work full-time for the respondent as a permanent live-in employee managing the physical aspects of the poultry production. There was some dispute as to whether he should be described as the "manager" of the property, and again that appears not to be relevant for present purposes. The position on the respondent's property was that the poultry was owned by the processor and supplied to the grower who was responsible for raising it till the chickens were approximately six to seven weeks old. They were then collected by the processor, the sheds were cleaned out and renewed ready for the next batch of chickens. The payment to the growers, as those who raised the poultry were described, was on the basis primarily of what has been referred to as feed conversion; that is, a batch of relatively high weight poultry for a relatively lower quantity of feed was to be regarded as an efficient or average batch, depending upon the relevant ratios, while those which used more feed to produce a lesser weight of chicken were regarded as inefficient. Under the contract with the processor black marks were awarded to growers for a batch deemed to be inefficient and removed if the subsequent batch was not inefficient. There were consequences for the growers of a number of consecutive black marks, they ranging - depending upon the number of marks - from the placement of a lesser number of chickens, with the consequent potential for a reduced income, to the ultimate sanction of termination of the contract. It is not in dispute that in May 1994 the respondent received the third of three successive black marks. By letter, dated 31 May 1994, the respondent gave the applicant two weeks written notice of termination of his employment. The dispute in this matter has centred around two issues. The first is whether there was a valid reason related to the applicant's capacity or the operational requirements of the respondent for the dismissal or, to put it in the context of this case, was it the applicant's doing that the batches were found to be inefficient and was it therefore necessary in order to preserve and to improve the respondent's operation to terminate the employment of the applicant. The second issue resolved around questions of procedural fairness. As to the first issue, that is the valid reason, the onus is on the respondent to prove a valid reason for the termination of the applicant's employment. It is not, however, in this case necessary to resort to questions of onus, there are here two competing accounts and questions of credibility are crucial. Having considered the evidence, primarily the evidence given by the applicant and the respondent respectively, I reject the account given by the respondent and accept that given by the applicant which was - if I can summarise it - to the effect that he did his best to ensure that the farm was efficiently run but that it was not possible, with the resources made available to him by the respondent, to produce batches which were substantially better than those in fact produced. The primary reason for that decision, that is to reject the account given by the respondent and to accept that of the applicant, centres around important inconsistencies within the respondent's evidence and between his evidence and the contemporary documents, which lead to the conclusion that his evidence should be rejected on that central issue. By way of example, in his affidavit, sworn 3 August 1994 and tendered as exhibit 2 in this matter, the respondent deposes in paragraphs 45 and 46 as follows: 45. In January 1994 I gave the applicant a warning again that the batches must be upgraded and that it was not proper for his children to do the checking of the sheds. 46. The point I was making was that the applicant had three children living with him, one was about 16 years of age or thereabouts and one was 13 years of age or thereabouts, and I had observed two of them doing temperature monitoring inspections on several occasions. However, in his letter to the processor, dated 11 March 1994 and tendered in this matter as exhibit L, the respondent says on page 1: I did not agree that we are lacking of manpower because I've got one employee with his family, myself and casuals ... And on the second page in the first point made on that page: I do not agree that staffing is inadequate. I am employing casuals as needed on top of one full-time employee with his family and myself. As to the work the respondent himself did on the property the respondent's affidavit, to which I have referred, contains this paragraph 65: The applicant was the employed permanent worker. I was and am the manager of the whole farm and did and do all the paperwork and financial and other controls, including statistics and collating all necessary results and following the progress in the books. These essential recordings were done entirely by myself. In his evidence yesterday the respondent asserted that he also did manual work about the property. He gave, by way of example, maintenance and repair of equipment and fetching of supplies. In my view, the tenor of his evidence was intended to suggest that he was employed not only in management but to a significant degree also in manual activities about the property. This I do not find to be correct. The view which I take of the evidence is that the respondent's role was much more in keeping with that suggested by paragraph 65 of his affidavit, that is that although he may have performed some manual tasks he was essentially engaged in paperwork and supervision. On the central question, of the inefficient batches and the concern which the respondent asserts that he felt and displayed in relation to the way in which the applicant was running the farm, there are a number of paragraphs - which I will not pause to read - of the affidavit of 3 August 1994 which suggest that for a considerable period of time, commencing some time in 1993, the respondent was concerned about the applicant's management of the property and blamed that management for the production of inefficient batches. I mention, by way of example, paragraphs 36 to 41, 44 and 45 and 59. However, it should be noted in the letter of 11 March 1994, exhibit L, that in relation to the way in which the farm was being run generally the respondent said to the processor, and I quote from point 2 on page 2: I strongly disagree with your statement and the farm did certainly not deteriorate during the last two years. That was a statement which the respondent agreed with again in the course of his evidence yesterday, that that was the position as he was putting it to the processor at the time. It is particularly significant in this context, in my view, to note the letters to Australian Poultry Limited, which have been tendered in evidence. Each of them suggests that the respondent was attempting to deal with concerns made known to him by Australian Poultry Limited about the general maintenance and conduct of the farm. It is striking that although different explanations have been advanced in the letters for different difficulties nowhere is the applicant and his conduct given as an explanation and although the respondent, in those letters, details the steps he is taking in order, and will take, to deal with certain difficulties, nowhere is the potential replacement of the applicant canvassed. Those are three examples of inconsistencies within the respondent's evidence and between his evidence and the documents, many of them produced by him. There are others which I will not list exhaustively. I have had regard also to the evidence of Mr Paton and Ms Underdown, employees of the processor, whose evidence was to the effect that the respondent's property appeared, in their experience, on their inspection to be understaffed. The applicant, in their contact with him, appeared to be interested in improvement of the property and keen. While, as the respondent points out, their visits which could last in the vicinity of approximately an hour, meant that they had only limited exposure to what was happening all the time on the property, nevertheless in the light of their evidence as to their exposure to other poultry farming properties I accept that evidence and give it some weight. It supports the conclusions which I would, in any event, have drawn from comparison of the evidence of the applicant with that of the respondent. I note that the relief sought has three aspects. Firstly, the applicant seeks an order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act. Secondly, the applicant seeks reinstatement and, thirdly, the applicant seeks compensation. I have considered the question of reinstatement. However, I note that the applicant was employed at the relevant time in a live-in position, with long hours which probably made it necessary for him to live in, in a small business which necessarily involved a substantial degree of contact with the respondent. Having regard to the way this matter has developed it would appear inappropriate to reinstate - indeed impossible to reinstate - the applicant in that previous full-time live-in position nor, I understand from his counsel, does the applicant seek reinstatement precisely in that position. It has been suggested that the applicant would be interested in what was termed a day job, working in a daily capacity for the respondent. I note that section 170EE(1)(a)(ii) allows the court to make an order appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination. However, in my view, an order in those terms is not practicable in this case and for the reason that the evidence was that, in relation to properties of this kind, there is generally a manager or an owner/owner who has the type of supervision which the applicant said he had in this case. The other tasks around the property, which are required to be done, vary depending upon whether a batch has just been removed, has just been installed or whether it is part-way through being produced and the labour demands are therefore variable. It appears that it is not possible to assess precisely what the operational requirements of the respondent's property will be at any given time, and it is not possible to say that there is a position rather than a casual and sporadic employment to which the applicant could be appointed. Certainly the duties would be very different, the hours would be very different and it is inappropriate for the court to attempt to run the respondent's business for him in the sense of fashioning a particular position suitable for the applicant. I therefore do not propose to order reinstatement. As to the question of quantum, the evidence was that the applicant was paid initially at a rate of $400 per week and the salary was increased in July 1993 to $460 gross per week. He also had provided a house in which he lived and had the benefit of electricity and water. The respondent's evidence, in paragraph 40 of his affidavit of 3 August 1994, was to the effect that the total remuneration package made available to the applicant was approximately $660 per week. The applicant's evidence was that since the date of his dismissal he had sought but been unable to find alternative employment. Presently he occupies himself by looking after his children. He was not cross‑examined as to his efforts to find alternative employment. The calculation performed in arriving at six months remuneration at approximately the rate stated in the respondent's affidavit yields a sum of around or just over $17,000. I therefore make the following orders: (1) that there is an order that the termination of the employer's employment of the employee is declared to have contravened Division 3 of Part VIA of the Industrial Relations Act; (2) it is ordered that the respondent pay compensation in the sum of $16,000 to the employee. RECORDED : NOT TRANSCRIBED THE J.REGISTRAR: I think all I can say at the moment is, firstly, I am not convinced there is jurisdiction to grant a stay pending hearing of the cross-application although there may be. Secondly, if there were jurisdiction the view that I take of the interrelationship of the issues makes it inappropriate for me to grant a stay at present and I think if you want to seek a stay, Mr Duckham, you will have to bring a second application for that by motion but I am afraid that is unlikely to be dealt with now until next year. I certify that this and the 27 preceding pages are a true copy of the reasons for judgment of Judicial Registrar Wheeler. Associate: Date: 16 December 1994 Representative of the Applicant: M Rennie Solicitors for the Respondent: B Duckham Counsel appearing for the Respondent: Date of hearing: 15 December 1994 Date of judgment: 16 December 1994