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. 35 Approximately three months after they had commenced employment, buoyed by the fact that fertility and production were up, and in the knowledge that they had started as novices and acquired a greater degree of competency in the interim, they decided to seek a pay rise. That was rejected by Mr. Lonsdale who indicated that the pay was adequate for the work being performed and therefore they could consider their rent-free accommodation as a pay rise. 36 Ms Marjoram pointed out that she had put in more hours than her regular rostered hours. Initially, when she was only required to work to 11.30 am, she had spent another 30-60 minutes working to gain more knowledge and closing up. In view of that rejection, Mr. Crowther had suggested to her that she obtain additional paid employment rather than put in extra unpaid hours at the farm. She obtained casual employment with a dentist working two afternoons a week. 37 She agreed that Mr. Lonsdale had provided them with an extra employee, his son, Stuart, to assist with the maturing sheds during the period 14 April to 23 April 2003. She gave evidence that Mr. Stuart Lonsdale had ignored her instructions and had been "horrible" to her. He did all of the things that they were being accused of doing wrong - he smoked in the tea room and in the sheds except that, at that time, the Applicants were not aware that it was wrong. She recalled that, in anticipation of a visit from Ms Brown, she had given him a list of duties to undertake in certain sheds. He was to tick them off as he did them and report back to her that afternoon. She became aware that he had left the farm when his car was gone. She rang him up at home to ask him what the list of duties were and he replied that he had not completed any. She had instructed him to advise her whenever he was going to leave the site in the future and they continued to converse along that vein. His response to her was that she was not his boss, that his Dad was his boss, told her to get f.....d and told her that she was a bitch. After she hung up the telephone, she rang Mr. Grant Lonsdale and told him what his son had said to her. His response was that he was at home with his son at the time and had listened to the entire conversation but had not heard his son use any of those words. 38 Ms Marjoram was paid $400 gross per week for the period 07 December, 2002 to 22 April, 2003. In conjunction with an increase in her hours of work, she had received $600 gross per week for the period 23 April, 2003 to 13 June, 2003. 39 Mr. Crowther was paid $600 gross per week for that entire period. 40 On or about 01 April, 2003, Ms Marjoram fell pregnant. She recalled that Mr. Lonsdale did not appear very pleased when they advised him of the pregnancy on 30 May, 2003. She recalled the following conversation between them: Kirsty: "What is the procedure for maternity leave?" Grant "There is no such policy here because I am a small business. However, I know plenty of women who have the baby on a Friday and are back on the Farm to work on Monday with the baby in a cradle". 41 There were no further discussions about maternity leave with Mr. Lonsdale after that initial conversation. 42 Ms Marjoram stated that she noticed a dramatic change in Mr. Lonsdale's attitude towards them from then on. She believed that he was deliberately making the work difficult for them by undermining their management authority in the presence of the contract labourers. One such example was the deliberate flouting of their strict quarantine rules in full view of the labourers. 43 Finally, at approximately 5 pm on 13 June, 2003, Mr. Lonsdale called them into a meeting and terminated their services effective forthwith. She recalled the exchange that took place as follows: Kirsty: Why are you firing us? Is it because I am pregnant? Grant: Yes Kirsty: So it's because I am pregnant? Grant: Oh no, it's because of lack of performance. Kirsty: You can't just fire us on the spot like this. Grant: Well if you want, I can give you something in writing. Or you can submit your resignation and I will give you a good reference. Simon: There's no way we're quitting, we didn't do anything wrong. 44 They were advised that they were no longer allowed to enter the duck compound but would be provided with reasonable time to find alternative accommodation. 45 The termination was confirmed in writing to them on 24 June, 2003. 46 Her father had intervened on their behalf and negotiated with Mr. Lonsdale for the payment of a severance payment of four weeks. However, Mr. Lonsdale held back one week's pay until they had moved out of the property. When they vacated the property on 01 July, 2003, they ensured that it was in a cleaner state than when they had moved in. They were paid the remaining one week's pay. 47 In relation to her partner's work performance, Ms Marjoram contended that she had witnessed numerous occasions when Mr. Lonsdale had rejected requests by Mr. Crowther for tools to undertake the necessary maintenance work required on the farm. 48 Mr. Lonsdale had made no mention to her about unacceptable drinking practices at the workplace. She did not deny that it did occur but explained that when Mr. Crowther and the others on the farm put in a really long day to get a shed finished, they would have a beer or two after work but it was never anything excessive. 49 Mr. Simon Peter Crowther tendered a statement in the proceedings the terms of which were identical to the statement of Ms Marjoram in relation to the terms of employment and the termination of the employment relationship. 50 Mr. Crowther pointed out that his primary role, along with Ms Marjoram, was to manage the duck farm. However, he had been required to undertake additional duties of a maintenance nature from time to time by Mr. Lonsdale. He insisted that he had never been informed that he had not been performing his maintenance duties satisfactorily. He had not become aware of that allegation until the conciliation conference held in relation to their dismissal. 51 He contended that he had not been provided with adequate tools to undertake maintenance work to the holes in the sheds and the feed lines, despite making a request for such tools. In addition, he had not supplied the Applicants with any petrol to fuel the rotary hoe. In relation to the specific allegations he responded as followed: # He denied that he had modified farm equipment. He explained that he had moved a weight block off a tractor in order to comply with WorkCover directions. # Mr. Lonsdale had refused, because of the expense involved, to hire an electrician to fix the feed lines. It was only when he and a contract labourer, Mark Bowie, received electric shocks when attempting to fix the feed lines that Mr. Lonsdale gave approval for a qualified electrician to be called in. # The Minimum Standard Procedures require rotary hoeing of the sheds to be undertaken every second day. Mr. Lonsdale had instructed him to undertake that task once a week or once a fortnight. Even that was difficult to comply with considering the lack of fuel. 52 A signed statement from Mr. Andrew Brice was tendered in the proceedings stating that he had been employed at Bidewell Farm from about January to March 2003 to assist Mr. Crowther. His primary task was the cleaning of the sheds which involved pulling heavy steel grates from the ground, pulling out feed lines and drinkers, removing drains and so on, cleaning and sanitising and putting them back in place. 53 He confirmed that their task was made more difficult by the fact that the tools required for the task had been removed from the farm by Mr. Lonsdale and he had insisted that Mr. Crowther made do with whatever else he had on the farm to undertake the task. 54 He stated that they had experienced constant problems with the tractors because Mr. Lonsdale had not maintained them in a serviceable condition. 55 Tasks had been allocated very little time and for that reason, he found himself working well in to the night on numerous occasions with Mr. Crowther to meet unrealistic deadlines. Despite all that, nothing was ever good enough to meet Mr. Lonsdale's standards although the representatives of the client, Nick Elton and Kate Brown had commented during an inspection of the farm on how well they thought the Applicants were performing. In his personal opinion, he had witnessed Mr. Crowther attempting to run the farm to the best of his ability even under the adverse conditions imposed by the Respondent. 56 A signed statement from Ms Clare Lean was tendered in the proceedings stating that she had been employed at Bidewell Farm from about January to October 2003. 57 She stated that she had witnessed the Applicants experiencing difficulties in maintaining farm equipment given the absence of adequate tools and obtaining safer working conditions for the workers. 58 She recalled that they were getting injured themselves moving the bins, full of eggs and carcasses, without a ramp. Ms Marjoram had worked on Mr. Lonsdale tirelessly for many months to have a ramp erected. Mr. Crowther had even offered to build one himself. However, Mr. Lonsdale had kept putting them off with promises that it had already been arranged until it was ultimately erected after the termination of the Applicants. 59 She had been a witness to the numerous occasions when Mr. Crowther had requested resources for the farm, told by Mr. Lonsdale that they were on order, and then discovered that they had not been ordered. She stated that Mr. Lonsdale seemed to be too busy all the time to help them out. 60 She was also aware that the Applicants had been confused as to whose instructions they were to follow. Mr. Lonsdale's instructions differed markedly from those of Ms Brown, the client's representative. She was aware that Mr. Lonsdale had adopted a negative attitude towards the Applicants while Ms Brown provided them with positive feedback. 61 In summary, she had observed the Applicants attempting to manage the Farm to the best of their ability but hampered by Mr. Lonsdale's unavailability and lack of interest in their performance. 62 A signed statement from Mr. Grant Lonsdale was tendered in the proceedings stating that one of his responsibilities as a Contractor to Inghams was to oversight the day-to-day management of staff, the Breeder Duck flocks, general shed maintenance and egg collection/productivity on the Bidewell Duck farm. 63 He had entered into a management agreement with the applicants as one entity to manage that duck farm. He had verbally terminated the applicants and followed it up with written notification left at the house as neither of them had been available to receive it. 64 Mr. Lonsdale stated that Ms Marjoram had been an excellent appointment and would have been re-instated immediately as her supervision of the other female workers and the egg handling duties had resulted in an increase in egg fertility. 65 Mr. Crowther had been allocated the responsibility for looking at the sheds housing which was a multi-faced and vitally important task involving, amongst other things, opening the sheds, feeding the ducks, maintaining the drinkers, rotary hoeing the litter on the floor of the shed, securing the shed and the premises as a whole, Quarantine (footbaths had to be taken by persons entering and exiting the sheds), keeping other animals out of the shed, and maintaining the temperature control within the shed. The client, Inghams, also monitored the situation. 66 During the first two months of employment, in addition to several telephone conversations every day, he held weekly meetings and bi-weekly meetings of 2 to 3 hours duration with the applicants to provide support, assistance and encouragement. During the following two months, he had allowed the managers more independence to develop their leadership and management styles but was always available to encourage them and assist them with problem-solving. He had also provided assistance in the form of additional staff during that transitional period. He had allowed Ms Marjoram to participate in the recruitment, selection and rostering of casual staff. 67 It was after that time that problems commenced to develop: a. The applicants had stated on their job applications that they were non-smokers and did not consume alcohol. Mr. Lonsdale received several reports of drinking at the workplace and Mr. Crowther and the staff under his supervision had been found smoking within the confines of the workplace. Both Applicants were familiar that such behaviour contravened Ingham's policy. b. Despite being counselled about the inappropriateness of their dog being allowed to enter the sheds, particularly in relation to quarantine and safety requirements and the potential for harm, the applicants had allowed that practise to continue as evidenced by the presence of dog excreta in the duck sheds. c. Explicit instructions had been issued in relation to security of the sheds. Yet when he had accompanied officers of Inghams on inspections of the farm, they had found security breaches such as gates being left open, shed doors not securely shut and holes in sheds were either not fixed or poorly maintained. d. It was contended that Mr. Crowther had damaged equipment beyond what was considered to be normal wear and tear. He estimated that it had taken approximately 7.5 hours on 31 March, 2003 to fix a tractor damaged by Mr. Crowther. e. Mr. Lonsdale became aware that significant occurrences on the farm were being kept hidden from him including duck deaths, broken equipment, malfunctions with the waste water pump and water problems in the sheds. 68 Mr. Lonsdale conducted an inspection of the farm with the applicants on 20 January, 2003 during which work priorities were identified and assurances received that deadlines for completion/rectification would be met prior to an inspection by Inghams. Although he later became aware that those timeframes were not being met and he was beginning to have concerns about their ability to manage, he, nevertheless, had been prepared to invest more time into the development of the applicants. 69 Despite the fact that the applicants were aware of the urgency of the rectification work, the deadlines had not been met by the time he conducted a further inspection on 11 April, 2003. Mr. Crowther was instructed that the drinkers and wet areas had to be fixed and ready for inspection on that same day. 70 Mr. Lonsdale provided an additional staff member during the period 14 April - 23 April, 2003 to relieve the applicants of the responsibility for the management of the maturing sheds and to free them up to catch up with the backlog of work in other areas. 71 A further inspection conducted on 23 April, 2003 revealed that the applicants had not made much progress in relation to the backlog of work. In addition, there had been a breach of security. He accepted the Applicants' suggestion, effective from the following day, that Ms Marjoram's hours be increased by a further 3 hours per day to enable her to resign from her other job and spend more time on the farm. 72 The problems did not abate. A further inspection on 15 May, 2003 revealed additional and ongoing issues in addition to which the following incidents were noted: On 25 April, birds had come on to the lay late; On 29 April, a problem had been encountered with ordering stock of feed and shavings; and, on 30 April, eggs totalling 1200, were thrown out because routine practices had not been maintained and sample eggs were not kept for break-out check of fertility. 73 Mr. Lonsdale stated that he had become aware of Ms Marjoram's pregnancy on 28 May, 2003. During the discussion he held with her, he had assured her that although there was no entitlement to maternity leave provisions, he was prepared to be flexible with regard to time off for the birth and later the introduction of reduced working hours or allow her to be accompanied by the baby on some of her duties. 74 On 04 June, 2003, Mr. Lonsdale met with Katie Brown, Ingham's Site Manager, who, until then had faith in the Applicants' ability to manage the farm and had provided assistance to them in that regard. On inspection of the farm, they had noted that there was no improvement in the management of the flock. The Commission was provided with a list of the housekeeping and safety issues noted during that inspection. When he confided in Katie that he had concerns about the well being and management of the flock, she had confessed to him that she felt the same way and that the lack of progress had been causing her sleepless nights. 75 Mr. Lonsdale provided a detailed list of the failures of the Applicants, including the failure to perform certain duties, to provide feedback (including provision of weekly reports), to observe quarantine, to secure the property, and to maintain the rented premises. Details were also provided of the misuse and damage to equipment and the use of the Respondent's account by Mr. Crowther to purchase items for personal use. 76 The Applicants had been terminated on 13 June, 2003. Ms Brown was one of the persons present during an inspection on 25 June of the residence inhabited by the Applicants on the property. Dog excreta and urine stains had been noted on the carpeted areas. The Applicants had moved out of that property on 02 July, 2003. 77 Mr. David George Scott, previously employed by the Respondent as a Maintenance Employee, tendered a sworn statement in the proceedings in which he stated that at the time Mr. Crowther held the position of Maintenance Manager, he had noted the on-going repairs problems which he could easily have fixed had Mr. Crowther made a telephone call to him on his mobile telephone. Details of the type of maintenance issues were provided. 78 Mr. Scott gave examples of the reckless way in which a very important piece of machinery, a tractor, had been driven that it became too dangerous to drive and the farm had lost the use of that tractor. He gave a further example of the neglect of the waste water pump which resulted in a serious environmental problem every time the overflow went into the neighbouring vegetable farm. His failure to monitor it on a daily basis had caused the pump to burn out. 79 As Mr. Scott would work on the farm some times for three months at a time, he was aware that the Applicants went off site during working hours. 80 He stated that doors were often carelessly left open resulting in native birds getting into the sheds. Mr. Crowther would reluctantly assist him in getting them out when Mr. Scott brought it to his attention. 81 Mr. Scott had designed the drinkers and described it as a simple procedure to adjust the cable in order to ensure that they did not overflow or clog up with muck. They were required to be checked every morning. He stated that he had on some afternoons found them so clogged up that water could not get in. In his opinion, it took weeks of neglect to get to that situation. 82 Mr. Scott had noted other concerns in relation to the farm: Quite frequently the automatic feed line was not adjusted to control the volume of feed thereby resulting in spillage; the spillage was not cleaned up; Drainage lines were not kept clear; Quarantine requirements were for a change of clothing to take place prior to going into the sheds. He had found clothes of the Applicants on the ground, in the back of the tractor and in the sheds; Despite the "No Smoking" signs, Mr. Crowther had smoked in the lunchroom and in the office; Despite quarantine requirements, the Applicants' bull mastiff was always in the compound and, on some occasions, he had seen the dog in the sheds with the ducks because the gates were never locked. 83 Initially, he and his wife had attempted to befriend them. They had encouraged them to go out with them and involved them in dancing. They had visited the Applicants at the house. He described the rented premises as being filthy all of the time with clothing all over the floor of the house, the floor was always dirty and the house had a bad smell. He confirmed that the dogs had been allowed to sleep in the house and had actually pushed him and his wife out of bed when they slept over. The relationship had only lasted for about a week because the Applicants were not interested in making any effort and their total hostility towards Mr. Lonsdale, whom he had worked with for about six years, stifled any chance of a continuing friendship. 84 He contended that Ms Marjoram had been tired and weepy and at least once a week would complain to him that Mr. Crowther was not pulling his weight and would not get out of bed. 85 He stated that, during a conversation he had with Mr. Crowther, the Applicant had threatened that he was "... not going to be talked down to by Grant" and that, if he were to be dismissed, he would ensure that everyone else lost their jobs too. 86 Mr. Scott had witnessed Mr. Crowther inebriated on occasions. On one such occasion, he could not get out of bed to tend to the first delivery of baby birds. He had surveyed the scene and announced to Mr. Scott and the others that he was going back to bed. 87 He had noted that the Applicants had paid more notice to directions from Ms Brown than to directions from Mr. Lonsdale. She had attended the farm, on behalf of Inghams, at least once a week and he had actually witnessed her instructing the Applicants to call Mr. Lonsdale as a last resort if they were not able to contact her or some others in relation to any problems with the new birds. He was aware that it was Ms Brown's first position as Liaison Officer with Inghams and her first experience with day-old birds. She had instructed the Applicants to have the temperature at a constant 36 degrees which, from his experience, was too hot. 88 Mr. Scott had also witnessed her complaining, at least weekly, to Mr. Crowther about the state of the farm. The same complaints were raised all the time - the sheds being dirty, wet floors, holes in the walls. On each occasion, Mr. Crowther had promised to get on to them. 89 Mr. Scott communicated with Mr. Lonsdale every afternoon and received instructions which differed markedly from those that Ms Brown issued to Mr. Crowther. 90 During cross-examination, Mr. Scott confirmed that egg production, the area for which Ms Marjoram had responsibility, had been "terrific". 91 The two previous managers of the Bidewill Farm had left their employment on bad terms. 92 He agreed that Mr Crowther was not an experienced duck farmer and that the only source of training available to him during that time was from Mr. Lonsdale, Mr. Scott and Inghams. 93 He confirmed that he had also seen Mr Lonsdale's son smoking on the farm. 94 On two occasions when he was out on the farm, he had observed Mr. Crowther unable to perform his duties because he was worse for wear after having been out on the town the night before. 95 He agreed that the increase in egg production would not be only attributable to the efforts of Ms Marjoram – it would involve an interaction of the efforts of both applicants. The husbandry of the sheds was more important in that it gave the birds a better and less stressed life resulting in increased production. 96 He agreed that he had words with Mr. Lonsdale about the latter's breach of quarantine requirements. 97 He recalled that during a conversation with the Applicants in the lunch room, Ms Marjoram mentioned that she had spoken to Mr. Lonsdale about her pregnancy and he did not seem worried about it. He had advised her that she could carry on working. Submissions. 98 It was submitted on behalf of the Applicants that each was an Applicant in their own right. Apart from the management agreement that describes them as a manager together, all other indicia point to them being individual employees. They received separate payslips, were paid separately and taxed on a PAYG basis. Superannuation contributions were paid for each of them under the Superannuation Guarantee Scheme and both were covered by Workers' Compensation insurance. They had been given a month's notice of termination. 99 Although neither of the Applicants had any experience in duck farming, the evidence indicates that egg production, the most significant aspect of duck farming, succeeded on any test. 100 Mr. Lonsdale, while he could not recall the conversation in which Ms Marjoram alleged that he confirmed that he was dismissing her on account of her pregnancy, did not deny that it occurred. Mr. Scott's evidence in that regard cannot be regarded as being independent. 101 Both reinstatement and re-employment were not viable propositions as Mr. Lonsdale had lost the management of the farm. Ms Marjoram, during conciliation, had been offered a return to work but that was not feasible as she now lived 1 hour and 15 mins away from the farm and has a young child. It was submitted that it was not a serious offer. She was sacked because she was living with Mr. Crowther whose performance was deemed to be poor but one cannot be blamed for another person's mistakes. 102 It was submitted that Mr Crowther's alleged poor performance was no justification for termination in light of the evidence relating to: his lack of relevant experience; the lack of adequate training the lack of adequate supervision; and the lack of adequate support. 103 It was concluded that the only reason for their dismissal was Ms Marjoram's pregnancy. 104 Even if it were conceded that some aspects of Mr Crowther's performance were cause for concern, they were not sufficiently significant or serious to jeopardise his continued employment. 105 Some of those issues relied on by the Respondent to justify the dismissal were known to the Respondent. He was already aware of some of the issues and had not raised them with the Applicants as sources of concern and was, himself, guilty of similar conduct in some instances. For example, Mr Lonsdale had observed the Applicants smoking and had not expressed any view about it to them. In addition, he had not applied the quarantine restrictions strictly to himself. 106 Mr. Lonsdale admitted that he had not issued any warnings or provided any counselling to either of the Applicants. 107 The Respondent sought to rely on the alleged dissatisfaction of the client to justify the dismissal. Yet Ms Brown could not even recall the meeting of 04 June during which such dissatisfaction had allegedly been discussed with Mr. Lonsdale. 108 Ms Brown gave evidence that while she had concerns about the farm's operation, she had not sheathed home blame to the Applicants. 109 The Applicants sought the maximum compensation payable under the Act. 110 The Applicants expressed an intention, in the event that the Commissioner finds in favour of the Applicants, to seek an Order as to costs. 111 It was submitted on behalf of the Respondent that there appeared to be two bases for the applications. Firstly, the Applicants contended that the dismissals, on the grounds of performance, cannot be sustained for two reasons – they had not received any negative feedback and the farm was operating at it best production rate. It was pointed out that the Applicants merely contended that they never received any negative feedback – they did not specifically complain of lack of any warning. Secondly, they specified that the dismissal was harsh because it denied Ms Marjoram an opportunity to accrue an entitlement to maternity leave. 112 Although the Applicants were claiming redress in the form of six months monetary compensation each, they had failed to provide the Commissioner with any information about efforts made to obtain alternative employment and to mitigate their damages. 113 Ms Marjoram had been offered re-employment at the conciliation conference held on 04 August 2003 and declined it only on the basis of the travel time which was not excessive, in the Respondent's view. In addition, neither of the Applicants had made approaches to the Respondent seeking their jobs back. 114 It was submitted that it was an abuse of the objectives of the Act to seek compensation when the matters were not prosecuted diligently and efficiently. It had taken them 3 months to prepare their statements and they have produced two written statements from friends at the hearing. For its part, the Respondent had produced evidence in the form of an Affidavit from Mr. Lonsdale and an Affidavit regarding Ms Brown and in a reference by Ms Brown regarding a litany of performance issues. 115 The Commissioner's attention was drawn to the illogicality of the Applicants' argument. They contended that their management of the farm was a success yet they complained of lack of equipment, training, experience and support. 116 The Applicants complained that there was a lack of adequate supervision and in his submissions, Mr. Young stated that Mr. Lonsdale's availability was limited. Yet in her statement Ms Marjoram stated that she had witnessed, on numerous occasions, Mr. Crowther asking Mr. Lonsdale for tools. 117 Invoices had been tendered attesting to the fact that Mr. Crowther had the independent capacity to purchase equipment at Tahmoor Hardware. During examination of Mr. Crowther he explained that periods when he was accused of being off the site during work hours would have been periods when he was shopping at the hardware store. 118 In relation to the allegation of inadequate training and assistance, it was pointed out that Ms Marjoram gave evidence to the effect that there were four meetings in their first two months of employment, contact every 2-3 days with Mr Lonsdale and contact with Ms Brown and Mr Elton from Ingham's. Later, she had conceded that there were 6-7 meetings during which they had got down to the nitty gritty. 119 In there was a failure on the part of Mr Lonsdale to provide assistance, it may be because he was not aware of the problem. Ms Marjoram decided that she was accountable to Inghams as opposed to the Respondent. She acknowledged that she sent a weekly report to Ms Brown and often to Mr Lonsdale. In addition, when the Respondent spoke to her about birds laying late, she had discussed it with Ms Brown and taken her advice not to worry about it. Nevertheless, Mr Lonsdale had engaged four extra women to provide her with assistance – an indication that he had no intention of exploiting Ms Marjoram's capacity for extra work. 120 The Applicant's contended that they had not been provided with adequate training yet, when pressed during cross-examination, had no notion at all of what adequate training would have been. 121 Mr. Lonsdale had no hesitation in commending Ms Marjoram for doing a good job in the area she chose to work in and acknowledged that egg production had increased. However, the Applicants were employed as a manager and the scope of their responsibilities was far greater than just egg production. 122 It was pointed out that the Applicants had benefited from measures and structures that had already been in place when they were engaged. The concern was that unless quarantine was observed, holes in the sheds repaired and waterers and feeders maintained properly, they would have led to a decline in egg production. 123 Questions had been raised as to whether warnings were given to the Applicants. Mr. Crowther conceded that Mr. Lonsdale had made certain criticisms from time to time as had Mr. Scott. Mr. Scott further gave evidence that Ms Brown had also made regular complaints to Mr. Crowther. In other words, Mr. Crowther had continual notice of defects in both the structures and the processes. That amounted to a warning that his job was at risk as was the comment to him by Mr. Lonsdale; "I said to him, if you don't fix these things up they will come back to bite you in the future". CONSIDERATION 124 The submission on behalf of the Applicants that each of them was an employee in their own right is accepted. 125 It is further accepted that neither of the Applicants had any experience in duck farming. Ms Marjoram indicated that she had studied up on it from information she had obtained through the Internet. In addition, the Applicants were able to consult with Mr. Lonsdale, Mr. Scott, Mr. Elton and Ms Brown as to what was required of them. I do not accept that the Applicants were left on their own to manage as best as they could. Ms Marjoram gave evidence of the number of meetings held with Mr. Lonsdale, particularly during the first two months of their employment. She also gave evidence of the fact that she had witnessed Mr. Crowther on numerous occasions talking to Mr. Lonsdale about tools he required. 126 I accept the submission made on behalf of the Respondent that the Applicants cannot, in one breath, complain that they lacked support, equipment and training and, in another breath, take credit for the increase in egg production on the farm. 127 There was no dispute between the parties as to the fact that Ms Marjoram had performed her duties to the satisfaction of the Respondent. 128 As for Mr. Crowther, the evidence indicates that his performance left a lot to be desired. He complained that he lacked the tools to undertake his duties. Yet when confronted with the allegation that he went off site during working hours, he contended that it would have been during his trips to the hardware store. Ms Brown confirmed that there were occasions when she had not been able to find the Applicants anywhere on the farm. She further gave evidence that she had commented several times on the fact that drinkers were not maintained. In addition, she sometimes found on her visits that there was not feed for the birds - the feed hoppers were empty, the litter was very wet and so on. Ms Brown had also witnessed native birds in the sheds. 129 Ms. Brown confirmed that the farm did not meet the minimum standard set by Inghams in all areas. 130 I accept the evidence of Mr. Scott in relation to those occasions when Mr. Crowther was worse for wear after having been out on the town the previous evening. 131 The evidence was quite clear that the Applicants had considered themselves to be accountable to Inghams rather than their immediate employer, Mr. Lonsdale. That was evident from the evidence which indicated that weekly reports were forwarded, without fail and in the first instance, to Ms Brown. Care had not been taken to ensure that Mr. Lonsdale received all of his reports. 132 In addition, there was evidence from Ms Marjoram that, on at least one occasion, she had telephoned Ms Brown immediately after Mr. Lonsdale left her, to check on a complaint he had raised with her about birds laying late. She had, on her evidence, ignored the complaint after allegedly been assured by Ms Brown not to worry about it. 133 I accept the submission on behalf of the Respondent that the increase in egg production had probably been the flow-on effects from measures and structures that had already been in place when they commenced on the farm. 134 Nevertheless, the evidence indicates that Mr. Lonsdale had failed to take any action in relation to drinking and smoking on the farm. There was no evidence that Mr. Lonsdale had taken any action to ensure that such behaviour was ceased immediately. In fact, his own son, according to the evidence, which was not rebutted, had smoked openly on the farm. Mr. Lonsdale admitted that he had not issued any warnings nor provided any counselling to either of the Applicants. He had not provided any leadership or role model for the Applicants. 135 On that basis, the termination of the employment of both Applicants had been unfair. In addition, the termination of the employment of Ms Marjoram had been harsh. It is noted that Ms Marjoram had been offered re-instatement to her former position. It is understandable, in the circumstances, why the offer would be rejected. 136 Reinstatement and re-employment are no longer available as the respondent has lost the contract for management of that farm. 137 Monetary compensation is applicable in the circumstance I have described above. ORDER 138 The respondent shall pay to Ms Marjoram a sum equivalent to five weeks' pay calculated on the basis of the average weekly pay at the time of cessation of her employment. 139 The respondent shall pay to Mr Crowther a sum equivalent to two weeks' pay calculated on the basis of the average weekly pay at the time of cessation of his employment. 140 The payment shall be made within 21 days of the date of the Decision. 141 I order accordingly. 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.