Crowther and Marjoram v Grant Lonsdale Management Pty Limited [2005] NSWIRComm 1167

Industrial Relations Commission of New South Wales

CITATION: Crowther and Marjoram v Grant Lonsdale Management Pty Limited [2005] NSWIRComm 1167

APPLICANTS Simon Peter Crowther Kirsty Ann Marjoram PARTIES: RESPONDENT Grant Lonsdale Management Pty Limited

FILE NUMBER(S): 3692 and 3903 of 2003

CORAM: Tabbaa C

CATCHWORDS: Husband and wife managers - live-in accommodation

HEARING DATES: 04/22/2005; 04/23/2005; 06/24/2005

DATE OF JUDGMENT: 10/17/2005

APPLICANTS: Mr J Young of Counsel Ms M Chung LEGAL REPRESENTATIVES: Solicitor

RESPONDENT: Mr R Capner Solicitor

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: TABBAA C

17 October 2005

Matter No IRC 3692 of 2003

SIMON PETER CROWTHER and GRANT LONSDALE MANAGEMENT PTY. LIMITED

Application by S.P. Crowther re: unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996

Matter No IRC 3903 of 2003

KIRSTY ANN MARJORAM and GRANT LONSDALE MANAGEMENT PTY. LIMITED

Application by K.A. Marjoram re: unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996. DECISION

[2005] NSWIRComm 1167 D E C I S I O N 1 Mr. Simon Peter Crowther filed a claim under Section 84 of the Industrial Relations Act, 1996 on 04 July, 2003 alleging that the respondent had unfairly dismissed him on 13 June, 2003. Mr. Crowther contended that he had been employed from 07 December, 2002 until his dismissal as a Property Manager. 2 Ms Kirsty Ann Marjoram filed a claim under Section 84 of the Industrial Relations Act, 1996 on 15 July, 2003 alleging that the respondent had unfairly dismissed her on 13 June, 2003. Ms Marjoram contended that she had been employed from 07 December, 2002 until her dismissal also as a Property Manager. 3 The matters were joined and listed for conciliation and directions hearing on 04 August, 2003 at which time conciliation attempts failed to resolve the claims and a filing schedule was issued. 4 The matters were set down for hearing on 22 and 23 April, 2004 and again on 24 June, 2004. 5 Mr. J. Young, Counsel, with Ms M. Chung (Solicitor assisting) entered an appearance on behalf of the Applicant and called evidence from: Kirsty Ann Marjoram Applicant Andrew Brice Stable Hand Simon Peter Crowther Applicant Claire Lean Previous Employee of the Respondent 6 Mr. R.Capner, Solicitor, entered an appearance on behalf of the Respondent and called evidence from: Grant Lonsdale Sole Proprietor David George Scott Maintenance Employee Katherine Brown Field Service Employee (by subpoena) BACKGROUND 7 The Applicants were de facto spouses. Previously, Mr. Crowther had worked as a landscape gardener and Ms Marjoram had worked as a dental nurse. They decided on a change of lifestyle and were successful in their application for the role of Managers of a duck farm near Picton. They were provided with rent-free accommodation on the property and they both signed a management agreement. The term of employment was open-ended with the only requirement being for one month's notice. 8 They were paid individually on a PAYG basis. Ms Marjoram commenced on about $400 a week less PAYG tax, inclusive of superannuation and with a deduction for workers compensation contribution. Her rate of pay was later increased to $600 a week. Mr. Crowther was paid $600 a week for the whole period. 9 Inghams owned the duck farm. The Respondent company had the management contract for a number of sites and employed the Applicants to run the Ingham's site 10 The clients did not pretend to have any experience managing duck farms, however, the farm's egg production, which apparently is a significant issue in terms of running a duck farm, improved. 11 The Respondent conceded that it had no qualms about the performance of Ms Marjoram. Nevertheless, on 30 May, 2003, she told Mr. Lonsdale that she was pregnant and a fortnight later the Applicants were advised that their position was terminated. 12 Ms Marjoram contended that she had specifically asked Mr. Lonsdale whether the dismissal was a result of her pregnancy. She alleged that his initial reply had been positive but was then quickly changed to cite the reason as pertaining to performance. 13 The Applicants were provided with a month's notice to vacate the premises and were paid a month's pay. 14 The Applicants contended that the real reason for their dismissal was Ms Marjoram's pregnancy. It was argued, however, that even if performance issues were held to be the cause, the evidence would indicate that Applicants had not been afforded an opportunity to better their performance. Further, even if they could have performed better, they had not been afforded any counselling, warnings and so on. EVIDENCE OF THE APPLICANTS 15 Ms Kirsty Ann Marjoram tendered a statement in the proceedings in which she stated that she was engaged to the other applicant in the proceedings, Mr. Simon Peter Crowther. Both were 22 years of age. She was a qualified Dental Nurse and had turned down an offer of promotion to Head Nurse at a Dental Centre to take up employment with the Respondent. 16 The Applicants entered into a 3-year employment agreement with the Respondent commencing 07 December, 2002 to manage Bidewell Duck Breeder Farm in Bargo, New South Wales. The farm, used for the purpose of breeding and hatching duck eggs, was owned by Inghams Enterprises Pty Limited (Inghams) and operated by the Respondent an independent contractor. 17 The primary duty of the applicants was to manage a team of about eight (8) to ten (10) contract labourers in the breeding and hatching of duck eggs. In addition, Mr. Crowther was responsible for the general maintenance of the Farm property. 18 The duties to be undertaken by the Applicants were outlined in a document attached to the employment agreement headed 'Inghams Enterprises Pty Limited Minimum Standard Procedures for Duck Breeder Farms 2002' (Minimum Standard Procedures). In addition to those standards, the Applicants had been provided with verbal instructions by Grant Lonsdale from time to time which clarified and/or amended those duties. 19 Also provided to the Applicants was a document headed 'Occupational Health and Safety for Employees of Grant Lonsdale Management Pty Limited November 2002'. 20 Prior to taking on this role, the Applicants had no experience in managing duck farms. That had been disclosed to Mr. Lonsdale who promised to provide the Applicants with training, assistance and the equipment necessary to undertake their duties. It was contended that the Respondent had failed to abide by his promises. Despite the lack of training and equipment, the Applicants increased the overall productivity of the Farm, in terms of both the number of eggs produced and in terms of fertility of hatching eggs, by over 5 per cent. 21 Ms Marjoram gave evidence that during the first two months of employment Mr. Lonsdale held possibly four or five weekly or bi-weekly meetings with them to support and assist. In addition, they were in telephone contact with him every two to three days. 22 During some of the visits by Mr. Lonsdale, a representative from Inghams would be present. The Monday following their engagement, Ms Kate Brown arrived on site to teach her how to use the computer system. Thereafter, she would conduct an inspection of the farm on a weekly or fortnightly basis. Overall, she appeared to be quite pleased with its operation but would often provide them with a list of matters to be attended to and would inspect the farm to ensure that they were done during the next visit., "....in general, over the term of our employment she always told us that she was very happy with our performance, and very happy with how well we were learning, and how well we were progressing in our jobs". 23 In addition to that, the Applicants had been in telephone contact with Ms Brown every day or every other day and she had never expressed any dissatisfaction with their performance. 24 Mr. Elton was another representative of Inghams who they had contact with on site. He, also had never expressed any dissatisfaction with her performance. 25 Ms Marjoram recalled that Mr. Lonsdale had, during their first two months of employment made criticism of certain aspects of their work. However, he had never, at any time during the course of their employment, advised them of any major concern in their performance that was putting their jobs at risk. She pointed out that they had no experience in duck farming and whenever they required assistance they attempted to contact Mr. Lonsdale but, in the main, they had limited access to him as his mobile telephone was unanswered, or turned off or out of range when he often drove turkeys out to different farms. That was the reason why they relied heavily on Ms Brown. Sometimes she would research the issue on the Internet and at other times, she would seek advice from one of the women she worked with as she had been on the farm for about 12 months. She stated that Mr. Lonsdale appeared to be too busy all the time to help them out and gave an example relating to the provision of an incubator for the farm. 26 She became very concerned when Mr. Lonsdale told her, on 25 April, 2003, that the baby birds that had been moved down to the adult shed were not coming on the lay as quickly as they were expected. He had met with Ms Brown and Nick Elton and they were not happy about that. She rang Ms Brown immediately after he left and was assured by the latter that it was not a matter to be worried about as it was not a major issue. 27 Both Mr. Lonsdale and Ms Brown had complimented them on the increased egg production and fertility of the ducks. Mr. Lonsdale told her that they were doing well and Ms Brown had faxed over their results with a handwritten comment on the bottom saying, "Awesome work, guys, keep it up." 28 As to the issues raised by Mr. Lonsdale relating to their performance, Ms Marjoram responded in the following way to those matters pertaining to her. She confirmed that Mr. Lonsdale had seen her smoking but contended that he had never made any comment to her about it. She accepted that she had gone off site during working hours but explained that it was for the purpose of picking up supplies for maintenance work or to stock the tea room. Initially, when she was only working from 7.30 - 11.30 am (as were the women over whom she had charge), she would undertake that task at the end of her shift. 29 She explained that native birds would get into the sheds as the women pulled the trolleys through the big gates to collect the eggs. In addition, a few would get in through the gaps between both sides of the gates as it was an old farmhouse. She recalled the only occasion when the issue of native birds had been discussed with her. Mr. Lonsdale saw three or four pigeons in the sheds. She had shooed two of them out. In the meantime, Mr. Lonsdale had become impatient and indicating that what she was doing was a waste of time, picked up a spade and proceeded to smash them against the walls of the shed. She had considered his actions as constituting a breach of quarantine rules having pigeons plastered all over the sheds. 30 As to the alleged failure to supply weekly reports, she explained that she had complied with the requirement to email a report to Ms Brown every Monday morning. However, she estimated that on about three or four occasions, she had not bothered to provide the same information to Mr. Lonsdale in the format that he required. She had merely faxed him a copy of the report to Ms Brown. Mr. Lonsdale had not made any criticism of that except to ask for the reports for two weeks he was missing. 31 As to the state of their accommodation on the property, Ms Marjoram described the house on the property as an old house. The carpets were fairly new but not well kept. The kitchen was falling apart and Mr. Lonsdale had assured them, at the time of the interview, that he was in the midst of organising to install a new kitchen. Despite two or three reminders to him, it was not replaced during the course of their employment. She confirmed that the Applicants had kept a dog in the house. As both of them were city people and they had experienced security breaches at night until locks were installed on all the gates, they got a pup and he had a few accidents while in the process of being toilet trained. She pointed out, however, that the house had been cleaned and the carpets steam cleaned the day before they moved out. Mr. Lonsdale's criticism probably referred to the state of the house when he came there and saw that they were in the middle of packing. 32 As to the allegation that the counterbalance was off on a tractor, she explained that it had been removed to allow Mr. Crowther to correctly measure the tractor prior to speaking to Mr. Lonsdale about getting a roll cage put on the machinery on the farm. 33 Ms Marjoram denied that extra staff had been engaged to assist her. She pointed out that two women left at the same time as they had been engaged. In addition, the eggs had to be collected every day of the week. She was finding it hard to roster staff for every day of the week as they wanted to have some time off. She had therefore approached Mr. Lonsdale to engage more staff in order to equitably roster the work. They had engaged another two, possibly three, employees. In relation to Mr. Crowther, two additional staff were engaged to assist him in cleaning out a shed, sanitising it and re-erecting it in a different design. One left immediately after the job was completed. 34 In terms of remuneration, the applicants were to jointly receive $1,000.00 gross per week, rent-free accommodation on the Farm, superannuation contributions and workers compensation coverage.