Industrial Relations Commission of New South Wales CITATION: Andrew William Harrison v AE & CR Watts t-as Kirmelky Landscapes [2007] NSWIRComm 1081 APPLICANT Andrew William Harrison PARTIES: RESPONDENT AE & CR Watts t/as Kirmelky Landscapes FILE NUMBER(S): 1067 of 2007 CORAM: Tabbaa C CATCHWORDS: Unfair dismissal - resignation - excessive absences - non-production of medical certificates - representation - notice of requirement for cross-examination LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 02/10/07 DATE OF JUDGMENT: 21 December 2007 APPLICANT Applicant appeared unrepresented LEGAL REPRESENTATIVES: RESPONDENT Respondent appeared unrepresented DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES TABBAA C Friday 21 December 2007 Matter No. IRC 1067 of 2007 ANDREW WILLIAM HARRISON v AE AND CR WATTS trading as KIRMELKY LANDSCAPES Application by Andrew William Harrison re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 .......................................................................................................................................... D E C I S I O N 1 Mr Andrew William Harrison (the Applicant) filed an application on 27 June 2007 pursuant to the provisions of Section 84 of the Industrial Relations Act 1996 seeking relief for his alleged unfair dismissal by A E & C R Watts trading as Kirmelky Landscapes (the Respondents). 2 The matter was listed for conciliation and directions hearing before Connor C. on 25 July 2007. However, those conciliation attempts failed to resolve the claim. Standard directions were issued and the matter was re-allocated for hearing. LATE SUBMISSION OF STATEMENT IN REPLY 3 The Applicant was required to file his Statement in Reply by 18 September 2007. He did not do so. That Statement was tendered at the commencement of the proceedings on 02 October 2007. No explanation was provided for the late submission. Nevertheless, the Statement was accepted after allowing the Respondent an opportunity to read it. REPRESENTATION 4 Neither of the parties was represented. The Applicant was accompanied by his parents. His father, a Barrister by profession, assisted the Applicant at the commencement by tendering the Statement in Reply together with a case outline. He made it quite clear that following that tender he intended to "take a seat and remain silent". Mr O Harrison had to be reminded at various times during the proceedings of the fact that he was not representing his son. 5 Mr Watts, quite rightly in my opinion, raised an objection to assistance being provided to the Applicant citing the distinct disadvantage the Respondents would experience if such assistance continued. Mr Watts stated that he and his wife had discussed the claim when it was served on them. He told her that the conciliation proceedings would provide a good opportunity to talk to the Applicant regarding his reason for resigning. Mrs Watts had suggested investing in a solicitor as Andrew's father was a barrister but he believed that it would not be necessary as the Applicant had signed a Statutory Declaration that he was not going to be represented. That turned out to be untrue as his father had represented him during the conciliation proceedings and he did not have any opportunity to communicate directly with the Applicant. Mr Watts pointed out that when Connor C sent them to a conference room to confer, the Applicant hid behind a newspaper and his father continued to speak on his behalf, "Andrew does not want to work for you and you do not want him", declaring that the only suitable outcome for them was monetary compensation. He was left feeling disappointed and let down by the whole events of that day. 6 A notice of appearance was not filed indicating that the Applicant was to be anything but self-represented. At the hearing, the Applicant's father was sitting at the Bar table with him, attempting to run the case on behalf of his son and prompting him thereby not only putting the Respondents at a disadvantage but also having the effect of interrupting the flow of the proceedings as the Applicant constantly sought advice from his father. Mr O Harrison was also a witness in the proceedings on behalf of his son. He was therefore directed to cease acting as a representative for the Applicant. CROSS-EXAMINATION OF WITNESSES 7 Mr O Harrison stated that the Applicant intended to cross-examine all bar one of the Respondent's witnesses. The Respondents advised that they had not required their witnesses to be present as they had not received prior notice of that requirement. The parties were reminded of the provisions of Practice Direction 19: Proceedings shall be conducted on the written statements and other relevant documentation filed and served by a party, except where reasonable notice is given to the other party that a witness is required for cross-examination. In the absence of any period of reasonable notice being fixed by the Commission, cross-examination of a witness shall not be allowed unless at least seven days prior to the hearing notice has been given to the opposing party that a witness is required for cross-examination. The parties were advised that, in the absence of prior notice by either party to the other of the intention to cross-examine their witnesses, the witness statements would be accepted but only those in attendance would be required to be cross-examined. Both parties agreed to that course of action. 8 The following witnesses were called in favour of the Applicant: Mr Andrew William Harrison Applicant Mr Owen William Harrison Applicant's father Mrs Debra Harrison Applicant's mother In addition, statements were tendered from the following persons: Mr Daniel Thomas Harrison Applicant's brother Ms Jade Ede Applicant's girlfriend Mrs Ruth Ann Ede Mother of Applicant's girlfriend 9 The following witnesses were called in favour of the Respondent: Mr Anthony Earle Watts Partner Mrs Christine Ruth Watts Partner In addition, statements were tendered from the following persons: Mr Felix Vogelnest Client Mr Christopehr Dionisio Apprentice & Grandson of the Respondents Mr Marco Dionisio Apprentice & Son-in-law of Respondents Mrs Melissa Dionisio Mother of Christopher Dionisio & Daughter of the Respondents EMPLOYMENT HISTORY 10 Andrew William Harrison (the Applicant) tendered a statement in which he stated that when he completed his schooling at age 16, he found Kirmelky Landscapes in the telephone directory, made a call and arranged a job interview. He attended the job interview with his father at the conclusion of which Mr Watts offered him a position as 1st year apprentice Landscaper commencing on and from 15 February 2000. 11 Mr Watts had a different recollection of how contact was originally made. In his statement, he stated that the Applicant's father telephoned him on 18 February 2000 seeking an apprenticeship in landscape gardening for his son. An interview was arranged for 19 February 2000 during which he had advised the Applicant that there would be a three month probationary period prior to the apprenticeship papers being signed. The Applicant was required to guarantee attendance at TAFE and to pass to the best of his ability. For its part, the Respondent would teach him the practical aspects of the job. Mr Watts also stated that he had advised the Applicant that he was in the process of renovating his home and that, in between jobs, he would be required, along with all other employees, to help with that project. He had assured the Applicant that all construction work undertaken on his home as part of the renovations would be "one hundred per cent relevant to landscape construction". 12 The Applicant enrolled at Padstow TAFE in "Landscape/Horticulture". 13 The Applicant described to the Commission the variety of tasks he had learnt associated with landscaping. He pointed out, however, that during the first two years of his apprenticeship, approximately 50% of his time had been occupied in assisting in the total renovation of his employers' 3-storey home. He also detailed other personal tasks he had undertaken for his employers - including house minding, feeding their dogs and so on. 14 During cross-examination, Mr Watts did not deny that the Applicant had undertaken personal work for him pointing out, however, that the Applicant had been paid his full weekly wage and that the work was undertaken when there was no other work for employees to do. 15 The Applicant was emphatic that he had never received any warnings, either verbally or in writing, throughout his employment with the Respondent. 16 Initially, he pointed out that during the period of his apprenticeship, he had developed a good working and personal relationship with Mr Watts although he had received a lot of criticism from him. He then went on to state that he could not recall a single occasion when he was commended for a job well done or received encouragement from Mr Watts and described their relationship as fluctuating between good to poor. He complained that Mr Watts had embarrassed him in the presence of other persons and tradespeople on job sites by constantly criticising his work, even when he personally thought it was of a high quality. He stated that he would often go home upset when that happened and speak to his parents who encouraged him to persevere with his apprenticeship. Nevertheless, the Applicant insisted that those were mere criticisms of his work and not warnings. When asked to provide examples of what he classed as embarrassing criticisms, the Applicant contended that Mr Watts would question him, "Why have you done this?" and "Why didn't you do it this way?" He recalled that, approximately 12 months prior to his dismissal, Mr Watts had questioned his abilities pointing out that his father was a Barrister and his mother was a Teacher. He had responded by making Mr Watts aware that he was adopted as a baby. He added that he had become teary and walked out. 17 The Applicant stated that he had initially brought in medical certificates for sick leave he had taken. However, he ceased providing them because he formed the view that Mr Watts was not interested in them - either because he did not ask for them or because he asked the Applicant to give them to him later. 18 He pointed out that there was only one occasion when he had not shown up for work for reasons other than approved leave or sick leave. That was when his car broke down on a Sunday night on his way back from a weekend at Cowra. He had personally contacted Mr Watts and informed him. 19 He became a qualified tradesman in June 2005 and his employment with the Respondent continued both in relation to landscaping and other private chores including, he contended, running up to the T.A.B. to place bets for Mr Watts at least twice a month. THE EVIDENCE 20 It is important to note the Applicant's performance history with the Respondent as a backdrop to the incident that ultimately led to the cessation of the employment relationship. TAFE Performance Issues 21 Mr Watts stated that he had noticed that the Applicant seemed to be struggling with his studies throughout the second year of his course. He had attempted, on a number of occasions, to help him to cope. On the job, he would help him collect plant data, advise him on how to remember plant names and give him extra leave to concentrate on studying. He was therefore distressed to learn from the Applicant's TAFE report that he had failed a number of subjects. He was particularly distressed to learn of the Applicant's repeated absences from classes, a matter of which they were unaware and which would explain his failure. Upon the Applicant's return from a holiday break, he met with him to discuss the contents of that Report. It was made clear to the Applicant that he was being paid by the business to attend TAFE in order to learn the trade and pass the subjects. It was further explained to him that his failure meant that the business was unable to claim the government incentive designed to cover the cost of putting an apprentice through TAFE. In response to a demand for an explanation, the Applicant provided an array of excuses. He was told he would have to repeat the failed subjects at night. 22 Mr Watts stated that at the conclusion of that meeting, the Applicant assured him that he would apply himself at TAFE and would make an effort to pass the subjects he had failed. As it turned out, TAFE was not running night classes in that course at that time as no other students had failed. Mr Watts stated that he and Mrs Watts had discussed the situation and, given the Applicant's assurances and remorseful attitude, they decided to allow him to attend TAFE one day a week for a further year, at an additional cost to the business. 23 During cross-examination, the Respondents referred the Applicant to his TAFE College results for 20 December 2002 and, in particular, to the Occupational Health and Safety module which indicated that he had attended on three out of the nine days allowed for that subject. The Applicant explained that he had discontinued that subject after attending the third session but went back and completed it at night at his own expense. As it turned out, his success was not entirely attributable to his efforts: C. Watts: Q. Did you go back of a night time like you said in this statement here and do it? A. Yes. If you can turn to the next page, you can see that I've passed it. A WATTS: Q. Yes, but how did you pass it? A. How did I pass? By exam with Dave ...... Q. You didn't pass it by me signing a sheet in here saying that-- A. You may have had some involvement due to yourself, myself and dad going out to the TAFE to try and organise something. 24 Mr Watts contacted Padstow TAFE and obtained a copy of the Applicant's updated results in July 2004. He stated that he was appalled to discover that they did not reveal any real improvement on the results received eighteen months previously. The Applicant had failed to complete the necessary subjects. Not only did that mean that the business was ineligible to claim any of the apprenticeship incentives that were offered by the Australian Government, but it also meant that the business had being paying for the Applicant to attend TAFE and learn the trade for four and half years without a successful outcome. 25 Mr Watts stated that, once again, he met with the Applicant to discuss the situation. The Applicant again showed remorse for his poor performance at TAFE. Following discussions with his wife, the Applicant was offered the opportunity to continue working with the Respondent as a Landscape Assistant. 26 The Applicant was awarded a Certificate of Proficiency (Landscaping) and a Craft Certificate on 14 May, 2004 but failed to meet the requirements to gain a Certificate III in Horticulture. Shortly thereafter, Mr Harrison contacted Mr Watts regarding his son's TAFE performance. Mr Watts stated that he had explained the results to Mr Harrison. They had also discussed the Applicant's attendance record and attitude to work as Mr Watts was of the belief that the Applicant was not coping well. Mr Watts stated that he had received a further telephone call from Mr Harrison later on that day advising that he had been in contact with Padstow TAFE and arranged to meet with the head teacher of the course, Mr Dave Winner, the following week. He acquiesced to a request from Mr Harrison to attend that meeting with him. 27 Mr Watts recalled that Mr Winner was astonished when he examined the Applicant's poor attendance record. He stated that a pass was normally only awarded to students who attended at least ninety five per cent of classes. Despite his confirmation that the Applicant fell below the normal standard required of a pass student, Mr Winner was persuaded by Mr Harrison to award the Applicant a pass for his failed subjects and to allow him to be upgraded to the status of holding a trade certificate providing Mr Watts supervised his work experience and progressed him to the standard required. Mr Watts stated that, against his better judgment, he had agreed to take on that responsibility. He pointed out that, in addition to Mr Harrison being a persuasive communicator, he considered that there was no other alternative having already invested four years in the Applicant. 28 Once again, he allowed the Applicant leave to attend one final TAFE subject for six weeks. Eventually, in June 2005, more than five years after beginning his apprenticeship and after causing considerable financial losses to Kirmelky Landscapes, the Applicant was awarded a Trade Certificate as a Landscape Gardener. 29 In his statement, the Applicant conceded that he was a poor student, did not enjoy the theoretical aspect to his apprenticeship and found examinations and assignments very difficult, particularly when he had to learn the latin names of plants. He admitted that he had failed his first attempt at a number of the examinations and that his head teacher had refused to pass him. Finally, a combination of actions saw him successfully complete the course - Mr Watts had accompanied him to TAFE to support him in his appeal to the head teacher. In addition, his father had persuaded his head teacher to pass him. In order to obtain that pass, he had to comply with certain conditions - he had to sit a further exam, submit an assignment and attend some additional night classes. 30 As an example, the TAFE Report to Employer - End of Year 2003 indicated that the Applicant had not attended any of the 13 sessions for the subject "Drainage installation and maintenance". The Applicant agreed that it was obvious that no latin terms would have been used in teaching that subject. Commissioner: Q. So what's the explanation? Why didn't you go to those? A. Well, I believe I did, because to get zero out of 13 attendance, why was I passed? Q. Did you do assignments without attending the course? A. Pretty much most of the - pretty much every subject comes with an assignment and an exam at the end. I have a niggle that the drainage and installation was one of my night courses.... I honestly can't explain why drainage installation is zero out of 13. 31 The Applicant admitted that he had been paid for his attendance at TAFE yet he would absent himself without returning to work and without advising the Respondents of his non-attendance. The following extracts from the cross-examination is very telling: C WATTS: Q.... You get paid to go to TAFE, we pay you to go to TAFE. Why would you just take the day off. Why would you not even approach us and say to us, I can't do the TAFE, I'll at least come and work the day since you're paying me anyway? You don't consider that not responsible behaviour? What do you think? How do you think that makes us feel?.... Do you think that is responsible behaviour? A. No. Q. How do you think that makes us feel? A. How does it make you feel? Q. No, I'm asking you. A. Probably upset... COMMISSIONER: Q. If you did not want to attend TAFE, why didn't you tell them you were having difficulties? A. The reason that I didn't attend TAFE, it was I'd go to TAFE for four hours in the morning and you know, I wouldn't complete the rest of the day. Why? Plants, plant recognition was my failure at TAFE. Tony will agree with you that plants aren't my thing. I would fall behind in one class and then to go to the next class, I'd already failed the last class and the pressure of being 16, 17, 18, 19, I made the wrong mistake, simple as that. ..... it was just attendance, I didn't go. Q. So you were getting paid for time that they thought you were at TAFE and you were not at TAFE? A. For part of the day. C WATTS: Q. But Andrew, your attendance would have been recorded. A. Yes, obviously. 32 Further relevant cross-examination on his TAFE attendance: Q. ..... I got this when you were on holidays, during the school holidays the TAFE sent it to me,.... to my knowledge you'd been at TAFE the whole time. What's your excuse for not going? A. Being a teenager.... The pressure of TAFE, one. Pressures at home and pressures at work. They were my reasons. A WATTS: Q. What pressures? A. I started to fail, I started to slip, I tried to pick it up, I was going to night classes. I was at one point going to night classes three nights a week on top of working just to get myself ahead. I paid for this, the whole TAFE. But the maturity, you know, I went stupid. Q. But what I'm saying, Drew, is your attendance at TAFE and your attendance-- A. Ask me a question. Q. Your attendance is no better than it was at TAFE in the last two years. It's actually worse, isn't it? A. No. Q. So you have 22 days off you get paid for and that's not bad, that's normal? A. Well, that's 22 days you say. I don't have any pay slips, I don't have any - you know. Work Performance Issues 33 Mr Watts stated that the Applicant had used up all his sick leave entitlements during the first five years of his employment. The Applicant had produced medical certificates when he fell off his motorbike and injured himself and when he was absent for a week with a very severe bout of flu. Thereafter, the Applicant failed to produce any medical certificates. Mr Watts stated that he had no reason to believe, until recently, that the absences during that period were not genuine. 34 The deterioration in the situation occurred over the last two years of the Applicant's employment. Absenteeism became more frequent and more disruptive to the business. The Respondent noted a disturbing pattern of absences with the Applicant allegedly falling ill mainly on the days following weekends. Mr Watts provided a list of absences recorded in the business diary: Monday 18/7/05 : The Applicant telephoned on the same day to advise that he would not be attending work that day because he had a dental appointment. No medical certificate was provided. Monday 25/7/05 : The Applicant sent an SMS message stating that he would not be attending work that day because he was suffering from diarrhoea. No medical certificate was provided. Monday 1/8/05 - Wednesday 3/8/05: The Applicant sent an SMS message stating that he was ' sick as a dog ' and would be going to see his doctor. The Applicant did not attend for work on the following day and failed to make contact. When the Applicant attended for work on Wednesday 03 August, he failed to provide either a doctor's certificate or an explanation for his absence the previous day. The Applicant was warned by Mr Watts that he had to telephone in, not SMS, and provide evidence of the need for the absence, for example, a medical certificate. The Applicant became irate and left without performing his duties. He was not paid for 02 and 03 August 2005. Wednesday 10/8/05: The Applicant telephoned stating that he would not be attending work as he was having problems at home. Thursday 11/8/05: The Applicant sent an SMS message stating that he would not be attending work as he was sick. He turned up for work one hour late on the following day claiming that he was ill, confused and having problems at home. Mr Watts stated that when he warned the Applicant that his performance and attendance records were unacceptable and that he would need to pull himself together, the Applicant indicated that he was considering leaving, he was upset and depressed and as a result was not coping with being at work. Mr Watts stated that he had asked him to consider his future carefully and advise of his intentions regarding his work by the following Monday. Mr Watts stated that on Monday, 15 August 2005, the Applicant confided in him that he was adopted and although that was causing him problems in his home life, he wished to continue working with the business. During cross-examination, Mr Watts agreed that he had pointed out that the Applicant's parents were professional people but qualified the context in which that comment was made, " Yes, that's when we were at the Yowie Bay job when you said you were all mixed up and I said, you should go and see a doctor, because you were awfully screwed up ". The Applicant stated during cross-examination that he was unable to recall that he had exhibited unusual behaviour at that time in that Mr Watts had found him sitting in his car with his head between his knees and he had subsequently resigned his employment. He did, however, recall the emotional state he was in at that time but not why he was upset, " ....Being a teenager. Maybe things at home.... ". He could not recall Mr Watts suggesting to him to consult a doctor but did recall having a conversation with both the Respondents in their lounge late one evening and agreed that Mr Watts had not yelled at him because he had been taking too much time off work but rather, " You were nice ". It is interesting to note that the Applicant would have been 22 years of age at that time and not a teenager as he has stated. Tuesday 16/8/05: The Applicant sought, and was granted a week's leave without pay to deal with his personal issues. Mr Watts stated that upon the Applicant's resumption at work, his performance seemed to improve, albeit the improvement was short lived. Monday 3/10/05 & Tuesday 4/10/05 : The Applicant telephoned to advise that he would not be attending work because he had food poisoning. The following day, Tuesday 04 October, the Applicant sent an SMS message stating that he was still sick. No medical certificate was provided upon resumption. Monday 12/12/05 : The Applicant sent an SMS message stating ' sick as a dog '. No medical certificate was provided upon resumption. Monday 13/2/06 & Tuesday 14/2/06 : The Applicant failed to attend work and did not notify of his absence or reason thereof. He sent an SMS message at 11.20 pm on Monday advising that he would not be at work on the Tuesday. No medical certificate was provided upon his resumption. Mr Watts stated that he had reminded the Applicant that unless he provided telephone advice of any absence and a medical certificate if the absence was due to illness, he may not be paid for the period of his absence. Friday 17/3/06: The Applicant arrived at work 2 hours and 45 minutes late stating that he was sick. Mr Watts noticed that his eyes were bloodshot, he was sweating and coughing. He stated that the Applicant admitted to him that he was suffering from a hangover as a result of a late night out with friends the previous night. He had apologized, explained that he had gotten carried away and assured Mr Watts that it would not happen again. He was warned that he must not allow such behaviour to interfere with his work. As he was too ill to work, he was given his wage and sent home. Friday 12/5/06 - After an early lunch, the Applicant and Christopher Dionisio, an Apprentice, were despatched to Caringbah Shopping Village to fulfil work on a permanent maintenance job. Mr Watts stated that the Applicant was provided with detailed instructions as to what work was to be completed. After being at the site for around 20 minutes, the Applicant advised the Apprentice that he was sick and needed to consult his doctor. He did not contact the Respondents and did not return to the site that day. When the Apprentice finished what he was doing, he was unsure as to what work he had to do next and went in to tell his mother, Melissa Dionisio, an employee within the Centre. She telephoned Mr Watts who promptly attended the site to supervise and work with the Apprentice. When the Applicant attended for work on Monday 15 May, he was reprimanded for his unacceptable behaviour, failure to contact the Respondents about his illness and for leaving an apprentice unsupervised on a job. In response to a request by Mr Watts for a medical certificate, the Applicant advised that he had forgotten to ask the doctor for one. Mr Watts believed that the above incident constituted an abandonment of employment and, in itself, provided a valid reason for termination of his employment. Not only had the Applicant failed to provide evidence of his illness, but he had caused a great deal of stress to another employee and cost the business lost productivity. A statement was tendered from Mr Christopher Dionisio in which he stated that he had worked with the Applicant since commencement of his employment with the Respondent firm. He recalled that upon their arrival at the site, they commenced weeding part of the front section. After about 15 minutes, the Applicant advised him that he felt sick and left the site to allegedly go to consult his doctor. After he finished weeding that front section, he was unsure as to what he was to do next. He went into the Centre where his mother was working and told her what had happened. Mr Watts arrived a short while later and together they trimmed shrubs until knock off time. The Applicant had not returned to the site that day. He further stated that when the Respondents went way, the Applicant would not turn up for work for several days. The Applicant would tell him that he was going to the doctor. A statement was tendered from Mrs Melissa Danielle Dionisio , mother of Christopher Dionisio. She confirmed that her son came to see her in the bakery visibly upset. He told her that he and the Applicant had been undertaking work in the gardens when the Applicant suddenly told him that he was going to see his Doctor. A couple of hours had passed and he had not returned and her son did not know what to do next. She rang Mr Watts who arrived and picked up her son. Mrs Dionisio also stated that her son quite often told her that when Mr Watts was not with them the Applicant made him do all the work while he sat in his car watching. Her son also told her that he did not want to complain to Mr Watts because he did not want to make the working relationship with the Applicant more uncomfortable. The Applicant insisted that he had returned to the site that day, that Mr Watts did not attend the site that afternoon and recalled that the Apprentice had said to him words to the effect, " The Centre Manager came down here looking for you ". He was aware that Mr Watts and the Apprentice completed the maintenance of those gardens the following week. Monday 5/6/06 : The Applicant telephoned in to say that he would not be going in to work because he had food poisoning. No medical certificate had been provided. Monday 10/7/06: The Applicant telephoned in to say that he would not be going in to work because he was suffering from diarrhoea. No medical certificate had been provided. Saturday 9/9/06 - 20/9.06 : Mr & Mrs Watts took time off to visit family in Queensland. The Applicant and the Apprentice were left with instructions in the form of worksheets, a work schedule and their pay cheques. In addition, Mr Watts met with the Applicant to explain what work they were expected to complete whilst he was away. The work was to be undertaken on four sites and was fairly straightforward. He advised the Applicant that the work scheduled in his absence would provide an excellent opportunity for him to practice the skills that he missed out on at TAFE as a result of his failure to complete and pass two subjects - Site Establishment and Horticulture Practical Skills. Those subjects included topics such as site supervision and the ability to carry out the job in a correct manner. He was instructed to contact Mr Watts on his mobile telephone if they experienced any problems or if he was unable to work. Job #1: Monday 11/9/06: Kangaroo Point site. To re-grout a section of a recently paved driveway (approximately 2-3 hours work). The Applicant was required to work alone as it was the Apprentice's scheduled TAFE day. Upon his return, Mr Watts was advised that the work had not been carried out and no-one from the Respondent firm had attended the site. The following is an extract from the cross-examination of the Applicant on that issue: Mr Watts: ........ What happened there? It's two to three hours work. A. It was not done. Q. You were sick again, were you? A. No. That just was not done. I've been reprimanded for this, you've already told me off for this and then we moved on from it. We've had this out already. COMMISSIONER: Q. It has to be raised. All your work performance is up for review here, so you need to answer the question. A WATTS: Q. You were warned that if this happened-- A. I was never warned. Q. This was the third warning. A. I was never warned in writing or verbally. I've been told off, I've been yelled at, I've been shown my mistakes, I've admitted to making mistakes. I've never been writtenly warned or verbally warned. C WATTS: Q. Why did that not get done that day? A. Laziness. Job #2: Tuesday 12/9/06 & Wednesday 13/9/06: Gymea Bay site. To grout sandstone steps previously constructed, clean up the site and take cementing trowels and tools home (approximately 10 hours work). Job #3: Thursday 14/9/06: Caringbah Shopping Village (permanent maintenance contract). Weeding the gardens on the High Street side of the complex as was requested by management. Job #4: Thursday 14/9/06 - Tuesday 19/9/06: Watts' Residence site. To repair and construct small grate drain at bottom of side passage and pave small side passage with materials on site (approximately 2 days work). To cut a hole in down pipe, mix and form small grate drain, lay 2 grates and start pavers up passage (approximately 5 hours x 2 workers). Finish pavers up the side and cut and cement edge. Clean up and finish job. Friday 15/8/07: Set aside to finish any of the contracted work which may have been delayed due to poor weather and to set out job #4. When Mr & Mrs Watts returned on Wednesday 20 September 2006, the Applicant and the Apprentice were still paving and cementing edges on the passage way at their home. That caused Mr Watts some concern as they were due to undertake a new job at South Caringbah over the following two days. Mr Watts stated that the Applicant assured him that Jobs Nos 1 - 3 had been completed and no problems had been encountered. Mr Watts wrote out an invoice for the work at Caringbah Shopping Village and proceeded to deliver it. He was horrified to find, upon his arrival on site, that the High Street side of the complex was still overgrown with weeds and clearly had not been attended to. He returned to confront both employees to be told by his wife that the Applicant got into his car and left shortly after he left to deliver the invoice. When questioned, the Apprentice stated that the Applicant ceased work early the previous week indicating that the weeding would be attended to " next week ". The Apprentice also admitted to him that he had been left alone to undertake work at the Watts' home on Monday afternoon and all day Tuesday. In other words, the Applicant had abandoned his employment on 14, 15, 18 (half day) and 19 September 2006. The Applicant's actions, in his view, constituted serious and wilful misconduct and could have led to the loss of a permanent contract on which the Respondent heavily relied. The explanation the Applicant later gave him for his absence was that he was sick throughout this time yet he was unable to produce a medical certificate to verify that statement. He appeared very upset and broke down in tears when an explanation was demanded from him. Mr Watts stated that he told the Applicant that his actions were grounds for immediate dismissal. He asked him to continue working while he considered what action was warranted. At the end of the week, he advised the Applicant that he was to be given a final opportunity to clean up his act. If he ignored lawful instructions, refused to work or abandoned his duties again he would be instantly dismissed. He also pointed out to the Applicant that he needed to reassess his attitude towards his work. Mr Watts pointed out that his family was experiencing a very stressful period as his father-in-law was in hospital dying. The Applicant recalled that while he was weeding the gardens at Caringbah Shopping Village he became unwell and went home where he went to the toilet, showered and then returned to the job site approximately 1 - 1.5 hours later. He agreed that he had been reprimanded by Mr Watts in relation to the Caringbah Shopping Centre work but denied that Mr Watts had informed him that his actions were " grounds for immediate dismissal " or that he was told he was being given a final opportunity to pick up his act. He further denied being told that if he refused to work or abandoned duty again he would be instantly dismissed. The following is an extract of the Applicant's cross-examination on that issue: A WATTS: Q. On the Thursday you were instructed to go to Caringbah Shopping Centre and you were instructed to weed down the side of the shopping centre. That was never done either. Why didn't you do that? A. My mistake it wasn't done. Laziness. Q. And I didn't say, give you any warning or anything? A. You gave me no warning. You told me off. I was shown my mistake, but I was never officially warned or in writing. COMMISSIONER: Q. Mr Harrison, what do you call a warning? A. A warning is when I'm told it's a warning. Q. So-- A. He would just abuse me and I'd be shown my mistake, dah, dah, dah, dah, dah, you know, your wage won't go up, there's no hope - you know, nothing, you've got to pick up your act. But I was never warned. I was never warned that my job was on the line. A WATTS: Q. What do you call "pick up your act", "You'll never do any good unless you pick up your act" and-- A. A perfect example of the time I've been abused was you said to me, right, I think it may have been this occasion, I'm not sure, "What's wrong with you, Drew, your dad's a barrister, your mum's a teacher, what's wrong with you?" That is the point of abuse I would cop and put downs consistently. Q. That wasn't on this occasion. A. Being that my parents are adoptive parents, that was the attack. I get put down and put down and it's only in the last couple of years that I've grown a few hairs on my chest, you know, and have tried to fight back in an adult world. I can't argue with him, he's always right. C WATTS: Q. So you don't think that your admitting to us that the mistakes that you've made are due to lazy, you don't think that's the wrong thing to do? A WATTS: Q. You think ...... you can just not turn up for work and we have to pay you? A. No. Q. Well, what you just said, your laziness and you didn't do it, there's several days you just didn't turn up when we were there and you were supposed to turn up and you were paid for them. Why shouldn't I ask for the money back for that? ...... Mr Watts: .... Why did you leave Christopher there? Applicant: Because I was sick. I felt crook. Q. Did you go to the doctor? A. Did I go to the doctor? Yes. Q. Did you bring me in a doctor's certificate like I asked you the following week? A. I was never asked the following week, and no. Q. So you just left Christopher there, did you? What did you think Christopher was going to do? A. Christopher was not my responsibility. Q. You're the tradesman. A. Was I being paid to supervise? Q. A tradesman doesn't get paid to supervise. He's an apprentice, you're the senior person. You just don't walk out and leave him there. A. I was not responsible for Christopher, you were responsible for Christopher. Q. That's the trouble, that's the whole thing, you're not responsible for anything..... Don't you think you'd have the sense to, you know, like, look after a young chap that, you know, I'd sent you both up there and supervise him?... Just not take off on him? A. Yes, but he's an 18 year old. Q. He didn't know what to do. He wasn't at the time. A. It's pretty simply reading. The Applicant agreed that an apprentice should never be left unsupervised, however, he pointed out that the work they had been engaged on had not been of a dangerous kind. In any event, he contended he had been left unsupervised on many occasions throughout his own apprenticeship and " Mr Watts should have been supervising his apprentice ". The Applicant had cross-examined Mr Watts as to whether he had been entitlement to be paid an allowance for taking on the responsibility of supervising an apprentice. Mr Watts pointed out that there were three TAFE subjects which the Employer had responsibility to assess and liaise with the College about. One of those was the Applicant's ability to supervise and set out a job by himself. He pointed out that on each occasion such opportunity was given, the Applicant had either not turned up for work or left the job early. In his statement, Mr Marco Dionisio stated that one their duties was to weed and clean properties. He pointed out that they invariably had to go over the Applicant's work. The Applicant had admitted to him that " weeding is not his thing ". Marco Dionisio was of the strong belief that the Respondent lost many return business for that reason. Tuesday 17/10/06 & Wednesday 18/10/06: Mr Watts stated that as his father-in-law had passed away on Sunday 15 October, he gave his employees the day off on Monday 16 October in order to allow his family time to grieve and make the necessary funeral arrangements. The Applicant did not attend for work on Tuesday. He sent an SMS message ' sick as a dog . Gone to the doctors. " A further SMS message was received on Wednesday which merely stated " still sick ". A medical certificate had not been provided upon resumption. Monday 20/11/06 : The Applicant telephoned to advise that he would not be attending for work on account of food poisoning. No medical certificate was provided for that absence. Monday 26/3/07 - Wednesday 28/03/07 : The Applicant did not attend for work. He sent an SMS message late in the afternoon on Monday to advise that he was ill. He sent a further SMS message on Tuesday stating that he was still ill and would be going to see his Doctor. He sent yet another SMS message on Wednesday stating that he was still ill. Mr Watts stated that he had telephoned him to find out what was the nature of his illness and to ask why he was not calling personally as he was instructed to do. As a result, the Applicant came to work that Wednesday and completed half a day. He had not provided a medical certificate for that absence. He was again reminded of the requirement to ring in and to provide a medical certificate otherwise he risked dismissal for abandonment of his duties. Monday 30/4/07 : The Applicant did not attend for work. He forwarded an SMS message stating ' sick as a dog '. Monday 1/5/07 : The Applicant did not attend for work. He forwarded an SMS message stating ' up all night on the toilet '. Wednesday 30/5/07 - Friday 08/6/07 : Mr Watts stated that the Respondent had won a contract to undertake two tasks on a large waterfront block of land at Gymea Bay. One of the tasks involved the laying of 17 metres of sandstone paving next to the boat shed 154 steps down. That part of the contract was estimated to take approximately 2.5 days to complete. Mr Watts had estimated it on the basis that he and Applicant had previously laid and finished 80 square metres in six days and as a tradesman Mr Watts would lay 20 metres per day. The stone and tools were delivered to the site by barge on Wednesday, 30 May 2007. Mr Watts stated that once the area was prepared for paving, he had instructed the Applicant and the Apprentice, Christopher Dionisio, to commence laying the pavers from opposite ends and to meet in the middle. Marco Dionisio was assigned the labouring task - mixing sand and cement and helping to pass over the stones. The Applicant was advised of his expectation that the paving would be finished the following day and it would be grouted in and cleaned on the Friday. As the tradesman and most senior person on site, the Applicant was charged with the responsibility of securing the boatshed at finishing time and keeping the key as Mr Watts had to pick up landscape plans and survey the site of a nursing home. Mr Watts stated that the next morning he dropped off the Applicant to the top of the work site and instructed him and the other two employees to continue with the work and that he would meet them at the top of the site at 12 noon the following day with their pay cheques as he had to organize the quote for the Nursing home. At midday on Friday 01 June, when he asked the Applicant how the work was progressing and how close they were to finishing the grouting, he was told that they were going alright but that the grout was slow drying. He sent them back to the site on Monday to construct three steps and to finish off grouting the paving. Mr Watts visited the premises at 9 am on Tuesday 05 June to speak to the clients who wanted another section of the garden to be paved when they noticed that there was plenty of stone left. Mr Watts agreed that the extra paving would be done that day as the barge had been organised for the following day. As he proceeded down the steps to the work site, Mr Watts stated that he noticed two employees working and the third on the sea wall fishing. He sat for a while and observed the Applicant with a fishing line throwing pieces of bread into the water. He stood up and continued down the steps. The instant the Applicant saw him, he dropped the fishing line and picked up a shovel. He started telling Mr Watts that they were having problems. Mr Watts noticed that the stone paving that was supposed to have been completed by Thursday 31 May was only three-quarters done. The Applicant was expected to lay 5 or 6 metres a day, instead, he had laid 4 metres per day. Mr Watts stated that he yelled out at the Applicant words to the effect, " You get paid to work not to fish get that stone laid and grouted this is ridiculous a two and a half job has now taken four days. You get paid and I lose money ". Mr Watts said that when he later questioned the other two employees as to why the job had taken so long to complete, Christopher Dionisio said he had very little experience in stone paving and that he and Marco had to do it all by themselves. Mr Watts went home very upset and deferred the barge from Wednesday to Thursday. He stated that part of Wednesday 06 June was utilised in finishing the previous week's work and undertaking finishing touches to the job, including loading the truck at the boat ramp. On Thursday 07 June, no work was able to be undertaken and the barge had to be deferred due to storms and heavy rain. As a result of the heavy downpour on Friday 08 June, the barge was deferred to the Tuesday after the long weekend. His employees were provided with their pay cheques and asked to return to the site after going to the bank as rain was easing and he wanted more work to be undertaken in order that the contract work would be completed on Tuesday. At 12 noon, the Applicant stated that it was silly to wait around as it was still raining and promised to arrive early the following Tuesday so that work would be completed on that day. In his statement, Mr Christopher Dionisio confirmed that whenever Mr Watts left them alone together on a job, the Applicant would tell him what to do and did very little himself. He had not complained to Mr Watts about that because he had to work with the Applicant and wanted to maintain a working relationship with him. However, when Mr Watts asked him why that job, estimated to be completed in 2.5 days, took 4.5 days to complete, he had to tell Mr Watts that he had to lay all the stone area himself even though it was only the second time he had done that type of work. The job had taken twice as long to complete because Mr Watts was not physically on site. The Applicant agreed that there was no excuse for his behaviour. He pointed out, however, that Mr Watts " just swore and cursed " but insisted that he was " never verbally or written warned about my employment ". Incident Leading to the Dismissal 35 The Applicant pointed out that he usually spent the weekend at Gosford with his girlfriend, Jade Ede, who lived with her mother, Ruth Ede. If he travelled by train, he would return on the Sunday evening and if he travelled by car, he would return early on Monday morning. 36 He went to Gosford by train on Friday 08 June 2007 to spend the long weekend with his girlfriend. He spent Saturday and Sunday helping her and her mother to shift houses. He described the weather conditions as extreme reminding the Commission that it was in those conditions that the Pasha Bulker had run aground at Nobbys beach in Newcastle. 37 He stated that, by Sunday evening, 10 June 2007, he was feeling very sick, with a sore throat, a bad cough, a headache, the shivers and generally sore. He had also vomited. 38 The Applicant stated that his condition had worsened by Monday, 11 June 2007, and he had spent virtually all day lying on a couch in the lounge room. 39 The Applicant stated that he had used Ruth Ede's land line to telephone his mother that evening. He claimed to have said to her words to the effect, "Mum, I am really sick, I won't be able to catch the train home tonight. Could you give Tony a call and tell him that I won't be able to make it to work tomorrow?" 40 He stated that he had not personally made that call to Mr Watts because he was aware that Mr Watt's attitude would be one of criticism either in his words or his tone. He stated that Mr Watts usually lectured him for a long time repeating the same things over and over again. He did not feel well enough to have such a conversation that evening. However, during cross-examination, he stated that he could not recall that he had been instructed to personally ring Mr Watts whenever he could not make it in to work. On that occasion, he called his mother instead of Mr Watts because he had asked to use Mrs Ede's phone and rather than placing two STD calls, he believed that it would suffice if he called his mother and asked her to pass the message on to Mr Watts that he was "as sick as a dog". 41 In her statement, Ms Jade Ede confirmed that the Applicant had spent that long weekend with her and her mother. She stated that she had a good recollection of that weekend because she and her mother had shifted house and the weather had been bad the whole of the weekend. She stated that, by Sunday night, the Applicant looked very sick. She assumed that he had the flu because he was "sweating, coughing loudly and deeply, his eyes were watery and red and his skin felt like he had a fever". She further stated that the Applicant told both her and her mother, on Monday morning, that he was too sick to travel home. She recalled the exchange of words between him and her mother: "Ruth, do you mind if I use the phone to call Mum? I want to ask her to call my boss to let him know that I will be too sick to go to work tomorrow?" "That will be alright." She was aware that the Applicant's Vodafone account had been cancelled and that was why he required the use of her mother's land line. She was present when the Applicant made a brief call to his mother. She heard him say to her: "Mum, I am sick and I can't travel down tonight. Could you call Tony and let him know that I will not be coming to work tomorrow?" There was also mention about the wild weather. She had not heard his mother's response. 42 In her statement, Mrs Ruth Ede confirmed that the Applicant stayed at her home on most weekends, including the June 2007 long weekend, he had helped them to shift house that weekend, the weather was very bad and he went back home on Tuesday 12 June 2007. She stated that, by Sunday afternoon, the Applicant appeared to be quite unwell and was coughing badly, had vomited and felt very hot to touch. She stated further that his condition had worsened by Monday morning and he spent most of the day on the couch in front of the fire in the lounge room. Sometime on Monday night, she consented to a request from him to call his mother. She recalled him saying to her: "Ruth, do you mind if I use the phone to call Mum? I don't think that I could travel home tonight. I will ask her to call my boss to let him know that I won't be at work tomorrow." She left the room prior to him calling his mother and therefore had not heard the conversation. 43 Mrs Debra Harrison tendered a statement in the proceedings in which she confirmed that she had received a telephone call from her son on the evening of Monday, 11 June 2007 from his girlfriend's home on the Central Coast. She stated that he had sounded terrible on the phone and was coughing. He told her he was "sick as a dog" and asked her to ring Mr Watts and let him know that he would not be able to attend work the following day. She recalled that she had telephoned the Watts residence. She recognised his voice when Mr Watts answered and she said to him words to the effect, "This is Debra Harrison, Andrew's mum, he asked me to let you know he won't be in tomorrow as he is as sick as a dog". She recalled that she had further remarked, "Andrew says the chaos up there is dreadful, he doesn't even know if the bus and trains were running". During cross-examination, she stated that she had advised Mr Watts that the Applicant had called her from the coast even though she had not included that fact in her statement. Also during cross-examination, she stated that the "conversational remarks" about availability of public transport was her own observation based on the fact that it was a confusing weekend up the coast and she did not know whether the services from Gosford would be up and running. Mrs Harrison stated that Mr Watts had not made any mention of any key to her. 44 Mr Owen William Harrison, stated that he had overhead two telephone calls his wife was engaged in that evening. After she hung up on in-coming call from someone he presumed was their son, she had spoken to him briefly prior to using the telephone to call someone whom he thought was the Applicant's employer, Tony Watts. He was standing on the stairs at home when he overheard her side of the telephone conversation. She had said words to the effect, "Hello Tony, its Debra Harrison, Andrew's mother. Andrew is as sick as a dog. He has asked me to call you to let you know that he won't be at work tomorrow." He also heard her respond to something that was said to her with words to the effect, "We don't know whether the trains are running, things are apparently pretty chaotic up there." During cross-examination, he stated that he overheard his wife address Tony Watts by his name immediately her telephone call was answered. 45 Mr Watts stated that he was not in the room when the call from Mrs Harrison came at 8.40 pm that evening. His wife had answered the phone and spoken to her for a while. When he came to the phone, the message she had given him from the Applicant was to the effect that owing to the flooding where the Applicant was staying on the Central Coast there were no trains running and he would need to catch buses to work the next day and would be running late. For that reason, upon hanging up on Mrs Harrison, he had telephoned CityRail and was informed that the trains in that area were unaffected and were running normally. 46 Mrs Watts was consistent in her testimony, both as contained in her statement and during cross-examination. She stated that it was she who had answered the telephone call and passed it on to her husband when Debra Harrison asked to speak to him. She sat on the lounge next to her husband and overheard him discussing with Mrs Harrison the wild weather conditions on the Central Coast over the weekend. The conversation had then shifted to speculation as to whether or not the trains were running as normal from the Central Coast. She heard him say that as far as he knew they were because his sister and brother-in-law live there and his brother-in-law was still commuting to work by train without any problem. They had then resumed talking about the wild weather. She was certain that her husband had not made any comment about the Applicant being sick during that telephone conversation. She stated that when her husband hung up on Mrs Harrison, he told her that she had informed him that the Applicant would be late for work the next day as the trains were not running and he would have to catch buses. Mrs Watts pointed out that her husband had been most upset that the Applicant was going to be late as he had the only key to the boatshed that housed all their tools and equipment. He had mentioned to her that he had a barge booked for a certain time. She further stated that her husband told her that he was going to contact CityRail to check if the trains were running. He looked up the telephone number, rang CityRail and confirmed that the trains between Wyong and Sydney were running normally. In addition, they had both confirmed that fact on the internet. Mrs Watts made the point that had Mrs Harrison told them that the Applicant was not going in to work, they would not have bothered to check whether the trains were running on time, "It makes no sense that we would bother to check the train situation if we had been told that Andrew was sick and not coming in". 47 The Applicant stated that he was still feeling very sick when his girlfriend drove him to Gosford Station to catch the train to Kogarah on Tuesday, 12 June 2007. Ms Ruth Ede stated that she was aware that her daughter had driven the Applicant to Gosford station on the Tuesday night to catch the train home and he still appeared to be very unwell when he left. Mrs Harrison picked him up from Kogarah Station. She stated that she observed that he was suffering from the flu and later spread it to everyone in the household. Mr Harrison stated that when he saw his son at home that evening, he appeared to be very sick with flu-like symptoms, "His eyes looked red, his voice was thick and he was constantly coughing". His brother's statement, also confirmed that the Applicant was coughing, shivering and sweating. 48 Mr Watts stated that, in the meantime, he and his other employees waited in vain for the Applicant to arrive at work on Tuesday morning as he had the only key to the boat shed which stored all their tools and equipment. Mr Marco Dionisio confirmed that they were unable to complete the job at Gymea Bay because they had no access to any of the boats or tools which were stored in the boat shed. When no telephone call or message was received from the Applicant, the barge was cancelled and the employees were sent home for the day. Mr Watts stated that he recalled saying to his wife, "this is absolutely absurd, Andrew promised me he would be in early on Tuesday". After considering his options, he said to his wife that he had exhausted the warnings required to be given to the Applicant and was no longer going to condone his poor work ethic. He was a tradesman and should be displaying greater responsibility for his conduct and a commitment to his work. He advised her of his intention to tell the Applicant to find another job or work casually until he can demonstrate his integrity, an ability to perform his duties and obey instructions. 49 The Applicant stated that he was still suffering from the same symptoms when he awoke at about 6.15 am on Wednesday, 13 June 2007. He therefore sent an SMS message to Mr Watts to the effect that, "Sorry mate, still sick. Cannot make it in today". Mr Watts stated the SMS message read "sorry mate crook today call you by lunch after doctors". Mrs Watts confirmed that the text message was still saved on her husband's telephone. During cross-examination, the Applicant admitted that the text message read that he was going to the doctor. 50 The Applicant stated that approximately five minutes later, he received a text response from Mr Watts stating, "Drew you have the key to the boatshed we can not do anything". In response, the Applicant stated that he rang Mr Watts and said, "Tony I am really crook" at which point, he contended, Mr Watts interrupted him and said, "Bring me those keys and you can fuck off! I don't care how you do it. Bring me those keys!". The Applicant stated that he drove over to Mr Watts home and, as was the usual custom over the past seven years, he had knocked on the door, opened it and gone straight in without waiting for a response. He saw Mr Watts standing near his desk, walked up to him and handed him the keys and left without saying a word as he was upset by what Mr Watts had said to him over the telephone. The only words uttered were by Mr Watts who thanked him for the keys. 51 Not surprisingly, Mr Watts had a different version of that telephone conversation. He stated that he told the Applicant of their extreme disappointment with him and informed him that this time would be the last. Mr Watts had repeated what he told his wife the day before regarding the Applicant being demoted to the status of a casual employee for a probationary period. He admitted that he then told the Applicant to "bring the f**ing key in immediately before you go to the doctors". Mr Watts stated that when the Applicant arrived, he had stormed into the house, thrown the key on the table and stormed back out without a word. During cross-examination, Mr Watts insisted that his exact words to the Applicant had been, "Then you can make up your mind, you can either work casually until you prove yourself or you can F off and go and get another job with someone else that you can bludge off them". The following is the extract from the cross-examination of the Applicant relating to that conversation: A WATTS: ........ on the Wednesday morning, you SMS-ed saying that you were going to the doctors and that you'd be in late..... We got the phone number off the SMS and what [were] my initial words that I said to you on that day? A. "I don't care how you do it, just get those keys in here." Q. You said you were going to the doctors-- A. "And then you can F off. I don't care how you do it, just get those keys to me, then you can F off." Q. Didn't I ask you - say, "What happened yesterday, why didn't you ring in? Why hadn't I heard from you, we were expecting you yesterday morning"? A. Yes. Q. ............and then did you say to me, "I couldn't have made it anyway because the trains weren't running"? A. No. The Applicant confirmed, during cross-examination, that he had gone to the doctor on that day but did not obtain a certificate because he was never asked to supply one. He explained that the relationship between himself and his employers was a casual one and he had not expected to lose his job on account of non-production of a certificate. 52 The Applicant stated that when he knocked and went in to Mr Watts' home, as per his usual custom, at 6.55 am on Thursday, 14 June 2007, Mr Watts had greeted him with words to the effect, "You are no longer permanently employed. You can find employment somewhere else or work for me on a casual hourly basis... How dare you do this to me. I have lost money. I have lost sleep. Do you have anything to say?" The Applicant stated that he had been overcome with emotion. He told Mr Watts that he needed a cigarette, went outside and sat on the front fence. The Applicant stated that he had enjoyed an excellent relationship with Mrs Watts who followed him outside with a cup of coffee. He could see that she was in tears. He recalled that she had said to him "Just try to talk to him" to which he replied "It's very hard." Mrs Watts had agreed with him saying "I know its' very hard. You know what he's like" prior to going back into the house. Mr Watts, once again, had a different version. He stated that when the Applicant turned up that morning, he had asked him for a doctor's certificate which, once again, the Applicant failed to produce. He had asked the Applicant yet again why he continually refused to phone him as instructed. The Applicant had replied that he was sick and the trains were not running anyway. 53 The Applicant stated that approximately five minutes later, he went back into the house and said to Mr Watts, "I was sick on Tuesday and I still am sick. I wasn't able to work on that day.... I'm too sick for this today. I am going home. I have some thinking to do." He stated that Mr Watts had responded, "You do that". 54 Mr Harrison telephoned Mr Watts later that evening and asked him to reconsider his decision regarding his son's employment. Mr Watts stated that he had advised Mr Harrison of his son's absences and continual illness. HHHhMr Harrison did not include any reference to that telephone conversation in his affidavit. During cross-examination, Mr Harrison confirmed that the telephone conversation had taken place and had lasted approximately 20 minutes. His recollection of that telephone conversation was as follows: "A. I telephoned you and I said that Andrew has told me that he has been terminated and we had some discussion. You did most of the talking, as you normally do, and what I said to you was would you reconsider. You said to me, "I wasn't going to reconsider, but now that I've spoken to you, yes, I might reconsider. Could you ask Andrew to be here at 10 o'clock tomorrow". And I said, "Yes, I will ask Andrew to be there at 10 o'clock tomorrow". That was the substance of the conversation". He confirmed that at the conclusion of that telephone conversation, he had said to his son, " I have spoken to Tony. He said that he will reconsider. He has asked that you go in tomorrow morning at 10.00 am to talk to him ". 55 Initially, Mr Harrison stated that he could not recall any mention being made by Mr Watts, during that conversation, that he had received telephone calls from Vodafone and St George Bank chasing the Applicant for money. Later on in his cross-examination, he agreed that he and Mr Watts had discussed the Applicant's debts and that he had mentioned to Mr Watts that he had also been contacted by debt collectors regarding a debt to the St George Bank. He also agreed that he had expressed concern to Mr Watts that the Applicant had not saved any money from his pay resulting in his car running out of registration and Vodafone cancelling his telephone account. He confirmed that the Applicant's finances had been abysmal but denied that he told Mr Watts that "Andrew has been talking bullshit, bullshit, bullshit". Mrs Watts stated that she had been sitting beside her husband while he had that conversation with Mr Harrison and was able to hear that remark. 56 The Applicant stated that when he arrived at the Respondent's home at about 10.00 am on Friday 15 June 2007, Mr Watts had said to him, "Your father has called me and asked me to reconsider. I have decided not to reinstate you and the offer of casual hourly employment still stands. If you don't like that, you can go somewhere else." He further stated that Mr Watts went on to repeatedly say what he had said earlier - that the Applicant's actions had made him lose sleep and had cost him money. The Applicant stated that he had not said much, he either made the occasional noise or merely answered "yes" or "no". He stayed for approximately 30 minutes and then went back home feeling upset. Although it was his usual pay day, he had not received any pay. He was not paid for the public holiday on 11 June nor for the following two sick days nor for the day on which he considered himself dismissed, Thursday 14 June 2007. The Respondents had a different recollection of their meeting on that day. Mr Watts stated that the Applicant arrived at 10 am and met with him and his wife. Mr Watts asked why he did not consult his doctor as indicated on most occasions he was off work. Considering his atrocious attendance record over the past eighteen months, he pointed out to the Applicant that he may have a problem and may need medical assistance. He recalled that the Applicant was sobbing. He apologized to them explaining that it was "boys things". Mr Watts went on to add that after all the chances that he had given the Applicant, he had no alternative but to set strict conditions if employment was to continue. He told the Applicant that he would be employed on a casual basis for the next three to four weeks and that if he turned up for work every day and performed his duties properly, consideration would be given to reinstating him to a full time position. He also told the Applicant that if turned up for work every day, he would have the same weekly take home pay as he was previously receiving even if he was rained off. He was advised that if he accepted the offer, he would be required to turn up for work on the following Monday as normal: Mr Watts: Friday, 15 June when you came in after speaking to your father and you sat down and we had a talk. Did you not apologise to my wife and me? A. Yes. Q. For what you'd done? A. No, I just apologised. Q. What did you apologise for then? A. I apologised for walking in the day before and walking out again. Q. Didn't you apologise and say - did you say your problem was boy's things? A. No. Q. And you vehemently state under oath that I did not ask you for a doctor's certificate that morning? A. I state under oath, no. Mrs Watts confirmed that her husband had asked the Applicant, in her presence, to telephone him personally when sick and not to text message him on the mobile phone but the Applicant insisted on using that form of communication. She had also heard Mr Watts ask the Applicant to supply a doctor's certificate for more recent days off but the latter did not produce any. She confirmed that she had heard the Applicant admit to her husband during that conversation at their home on Friday, 15 June, that he was enjoying himself too much on the long weekend in June doing " boys things ". Mrs Watts stated that, in her view, her husband had been amazingly patient with the Applicant, given his sick leave record, his TAFE attendance record and failure to complete his TAFE course within the required time, , " How much do you put up with before enough is enough? " 57 The Applicant stated that he arrived at work at about 6.55am on Monday 18 June 2007 hoping that things might have changed. He said that Mr Watts talked to him for about 2 hours and then sent him home due to inclement weather. Mr Watts, once again, had a different recollection of events on that day. He stated that he and his employees, including the Applicant, had loaded the truck and proceeded to the Kogarah site which they completed at 10.45am, just before a heavy downpour commenced. He dropped the Applicant off near his home and the Applicant had thanked him. 58 The parties were in agreement that all employees, including the Applicant, were sent home on Tuesday, 19 June 2007 because of inclement weather. 59 The parties were in agreement that work was undertaken at Mr Watts' home until mid-morning on Wednesday, 20 June 2007 following which the employees were sent home once again because of inclement weather. 60 The Applicant stated that conditions on Thursday, 21 June 2007 were a repeat of the previous day. Mr Watts stated that all employees, including the Applicant, repaired and cleaned chainsaws and assembled the tools required for the next job before they were sent home because of inclement weather. 61 The Applicant stated that he sought advice from the Department of Industrial Relations that afternoon and, as a result, dropped a letter off to the Respondent's letter box that evening. The letter stated, amongst other things, that he was not prepared to work for Mr Watts on a "casual hourly basis". He stated that, thereafter, he neither reported for work nor was he contacted by the Respondent. Mr Watts stated that he had formed the impression that the Applicant had accepted the terms upon which he was returned to work and was therefore confused by the Applicant's actions: Q. ........ I said, you know, right, you're going on a trial period for next week, if you want to accept that, you come in next Monday. Why did you come in the next Monday? A. I was bemizzled with the whole thing that had gone on, working with you since a 16 year old kid, I looked up to you. I was bemizzled that I had been told to F off, had my permanent employment terminated. I honestly don't know why I came in. Q. So you came in-- A. Except for the fact of bemizzlement and where had my job gone. I was half under the impression, you know, hoping that it was all a dream, that it hadn't happened. Q. Don't you think if you would have tried a bit better, had better attendance and that's what we were aiming at from that Monday on, that everything would have been like a dream? A. No. Q. So you just came in both days casually? A. Well, I don't have a cent, what am I mean to do? I was hoping my job was just the way it was, full time employment, the way we used to be when I was a 16 year old. But obviously not. There was further cross-examination on the terms on which the Applicant had returned to work: Q. --in our discussion that day,.... I vehemently stated that if you want to accept that, that there be no difference and everything would go good, but the minute you don't turn up without notifying, that it will end. That's the only condition, that you would get paid exactly the same, even if it rained, ... and you turned up Monday and we went to work, and you were quite happy. I dropped you at home, didn't I? A. I think so. Q. Were you dissatisfied with the work that day? A. I was bemizzled with the work that day, but I wasn't dissatisfied with it. Q. In what way were you bemizzled? You carried out your work quite good that day. A. Could you remind me what we did that day? Q. Well, I think you should remember what you did that day. A. I'm the employee, not the employer. I can't remember the job. COMMISSIONER: Q. You knew how you felt on the day, but you don't know what work you were doing on the day? A WATTS: Q. We were working at Kogarah, does that ring any-- A. We were working at the antique place, were we? Putting up signs, not doing landscape work, I was quite happy with the day. And the reason I was given a lift home is the antique shop's 150 metres from my house, 200 metres from my house. But I was bemizzled, I wasn't sure what was going on. I may have been straight-faced, I may have done my work, I may have had a smile on my face, but I didn't have a clue what was going on. Q. And that's how you were at work a lot of times, wasn't it? A. No. 62 Mr Watts stated that on Friday, 22 June 2007 the weather had cleared. The Applicant failed to appear for duty. He and his other employees loaded the truck and went to a site at Lilli Pilli. Upon his arrival at home at 4pm, he found a letter in his letterbox from the Applicant resigning his employment and demanding monetary compensation. He attempted to telephone the Applicant but received a recorded message stating that the number had "incoming call restrictions". Mr Watts stated that after completing the days work on Monday, 25 June 2007, he once again tried to contact the Applicant and received the same message. 63 The Applicant stated that, on 23 July 2007, he received an undated letter from the Respondent terminating his employment. Appended to the Applicant's statement was a copy of that letter which was dated Tuesday, 26 June 2007. It stated in part: The incident on Tuesday 12th June constitutes serious and wilful misconduct in two ways. 1. Refusal of duty. 2. Damages the reputation, liability and profit of this organisation. Both are valid reasons for this business to terminate the relationship on the spot without any recourse under the N.S.W. & Federal Industrial Laws for small businesses (Other than PTY. LTD or Registered Companies)." SUBMISSIONS 64 The Applicant rejected the reasons given for his dismissal stating that his dismissal was harsh, unreasonable and/or unjust. 65 He submitted that he had a legitimate excuse for being absent on Tuesday, 12 June 2007. 66 It was further submitted that the TAFE records of 2002 should not play any part in determination of his claim. 67 He pointed out that the work he had undertaken over the seven years of his employment with the Respondents had nothing to do with the landscaping trade. It was work of a personal nature for Mr & Mrs Watts. 68 He was adamant that he had never been issued with a written or verbal warning by Mr Watts throughout the whole period of his employment in relation to sick leave or, indeed, on any aspect of his behaviour, and certainly not a final warning. 69 The Applicant denied that he had ever been asked to produce a medical certificate in the last two years. He pointed out that he would have produced a medical certificate following such absences if he had been required by Mr Watts to produce same. Although he could not verify how many times he was absent on sick leave, and although he did not keep any personal records of such absences, he did not accept that he had taken 24 sick days in 2 years. He stated that whenever he has been absent on sick leave, he had been genuinely too ill to turn up for work. 70 He stated categorically that he had never been provided with any pay advices or other records by either Mr Watts or Mrs Watts during the whole of the period of his employment with the Respondent firm, other than a group certificate at the end of each financial year. 71 The Applicant denied that he had ever supervised, or been asked to supervise, or been paid an additional hourly rate under the award to supervise, an apprentice. 72 The Applicant described the financial difficulties he had experienced while seeking alternative employment. He was denied assistance by Centrelink for the first eight weeks of unemployment because Mr Watts had advised that he had been terminated for serious and wilful misconduct. After approximately five interviews and numerous telephone calls, he had given up and, up to the date of the hearing, had not received any assistance from Centrelink at all. 73 He had received assistance from his parents in that they lent him approximately $200.00 per week until he obtained alternative employment. He had put his dirt bike up for sale in order to repay that loan. 74 He undertook a 94-hour Sectors Security Training Course conducted over 12 consecutive days and obtained a Licence. In addition, he had obtained full-time employment four weeks previously in the air water testing balancing or air conditioning trade and was earning a few dollars more than he did with the Respondents. He estimated that he would have earned $2000 since his dismissal and received no income at all for six weeks prior to that. 75 He pointed out that he had enjoyed landscaping work but was now totally turned off it. There was no way, either emotionally or physically, he could cope with working for the Respondents again and he believed that the feeling was mutual. 76 The Applicant pointed out that the Respondent had not offered to reinstate him nor did he wish to be returned to his former employment. He was claiming the full amount of monetary compensation for his unfair dismissal, including unpaid long service leave, three days' unpaid wages, unpaid holidays and any other sums that the Tribunal may see fit to award. 77 Mrs Watts stated that they had given the Applicant many opportunities to prove that he was a worthwhile employee but he repeatedly let them down which was extremely disappointing as they felt that they had been more than fair in their treatment of him. She pointed out that the Respondent business was a small business and was therefore not in a position to carry persons who did not earn their wages. 78 Mrs Watts stated that she had witnessed occasions when the Applicant spoke to her husband in a disrespectful way and she had counselled him not to accept such behaviour from the Applicant. That was confirmed in the statement from Marco Dionisio who stated that in the seven month period of his employment with the Respondent he had witnessed the Applicant constantly undermine Mr Watts. 79 She added that the Respondents had hoped that the Applicant would become a good landscaper and would assist Mr Watts with the business as her husband has a hereditary disease that affected his legs and he required help in the labour intensive side of landscaping. Unfortunately, the Applicant's employment had been a constant mix of highs and lows and he had neither demonstrated to them a dedication to his duties nor a commitment to the business. Her husband, she added, was an extremely good tradesman, with a vast landscaping knowledge and because he delivered a very high standard of work, they have much repeat business. She felt that it was very sad that instead of the Applicant absorbing all that knowledge, he had chosen to abandon a job that taught him valuable, life time skills. Despite all the Applicant's shortcomings, her husband, because of his generous heart and soft spot for people he cared about, decided to offer him casual employment until he proved his commitment to work. 80 In conclusion, Mrs Watts emphasised that it was not just one incident that had resulted in the cessation of the employment relationship. She pointed out that it was a culmination of so many incidents, of so many occasions when he had been given chance, after chance, after chance to change his ways. In any event, they had not terminated him. They were trying to find yet another means to make him realise that he had a commitment to them and vice versa, that it was a two way street and he was not fulfilling his part of the bargain. 81 Mr Watts submitted that the Applicant's inability to follow lawful and reasonable instructions to personally call when he was ill or expecting to be absent due to illness was inexcusable, particularly on the occasion when he had the only key to the boat shed and was not able to be contacted. This oft-repeated conducted, he submitted, had damaged the reputation, liability and profit of the business. The last episode, it was pointed out, was merely one of many occasions when he had displayed unacceptable conduct by refusing duty or abandoning his employment, particularly in the absence of the Respondents when he was supposed to be in charge. 82 Mr Watts stressed that the Applicant had received four "major" warnings and many "minor" warnings during which he had been cautioned to "pull himself together". He recalled that one of those cautions was at the time of the Caringbah Shopping Centre incident. At that time the Applicant was considering buying a unit and getting married. 83 Mr Watts pointed out that, at age 60, he was not an avid mobile telephone user and in any event, most of the sites they worked on were outside the range. He only used his mobile telephone to contact family members. His landline was what he mainly used for his business and he also had an answering service. The Applicant was repeatedly asked to make direct contact with them but he insisted on sending SMS messages. 84 He further pointed out that the Gymea Bay contract was very important to them. The clients were repeat business and he wanted to keep them and the weather was against them. As a result of the Applicant's conduct, they had been running late with the job, the Respondents had to pay its employees for time not worked because the Applicant had the key and because the time allocated for the job had stretched out beyond expectation. 85 After numerous warnings to the Applicant, his conduct on that site was the last straw and he had snapped. He echoed his wife's words that they were genuine people who looked after their employees. It was his genuine belief that when they sat the Applicant down that day and talked to him that the only way to get through to him was to put the offer to him of casual employment. He stressed to the Applicant, however, that his weekly rate of pay would not be affected so long as he attended for work, as required, every day, especially on Mondays. He had also pointed out that the Applicant was required to concentrate on his work and to put a little bit more effort in if he wanted a pay rise. 86 Mr Watts concluded by stating that his own income that year was only half as much as the Applicant made but he was satisfied with that because with their lifestyle they did not need much. They enjoyed their family and their ten grandchildren and were happy with the Applicant "but it was just getting too far out of hand". CONSIDERATION 87 Much of the evidence has been analysed above and there is no necessity to repeat it below. 88 The Applicant insisted, throughout the proceedings, that he had not received any warnings about his performance or conduct. A statement had been tendered from Mr Felix Vogelnest who stated that the Respondent firm had been contracted for many years to maintain his waterfront property and gardens on a regular basis. Approximately eighteen months ago he told Mr Watts that he did not want the Applicant to work on his property unsupervised because he was being charged an hourly rate and he had observed that the Applicant did not do any work when Mr Watts was not present on the site. During cross-examination, he admitted that Mr Watts had spoken to him about a complaint. Initially he could not recall the subject of that conversation: A. Well, when you get abused by Mr Watts, he doesn't - you know, he doesn't talk like nice and calmly like he does now, he gets in a huff. I was obviously in trouble for something and I wore it. I was in no position to question him, he was making an accusation to me. When pressed, he recalled that the client had expressed a problem with him working on his property but he had neither been provided with any clarification regarding the problem nor had he bothered to seek an explanation. When pressed further, the Applicant recalled that the accusation made against him was that he did not do any work when he was left alone on the property. He stated that he had not been warned about what would happen if there was a repeat performance nor could he recall apologising to Mr Watts. 89 The Applicant would not accept the figure put on how many sick days he had taken stating that he had no way of knowing as he had not kept a record and had never been provided with pay slips. During cross-examination, he admitted that he had received at least one payslip: Q. So you have 22 days off you get paid for and that's not bad, that's normal? A. Well, that's 22 days you say. I don't have any pay slips, I don't have any - you know. Q. Why did you screw up the pay slips when I give them to you at Christmas time? A. The one pay slip a year? I think I've got it at home in my drawer. One pay slip a year with my holiday pay. Q. Did you bring it with you? A. No, I don't have it with me. Q. Instead you just-- A. If I had pay slips during the year, I may have been able to determine that it was 22 days or it wasn't 22 days. Q. Well, did you get it out of your drawer and bring it? (No verbal reply) COMMISSIONER: Q. There was a question there. A. Can you ask me-- Q. Why did you not bring the pay slip in? A. Pardon? Q. Why did you not bring the pay slip with you? A. That's if it is at home. I didn't. A WATTS: Q. Yes, but didn't you say in your statement that you never received one pay slip? A. I did state that in my statement. Q. And now you're saying-- A. I was never received a weekly pay slip, that was what I was referring to. 90 Whilst I do not condone the fact that weekly pay slips were not provided to their employees, I accept the version put forward by the Respondent as to why such a practice was not adopted: A. Harrison: Q. Except for Christmas time, was I ever issued a pay slip during the time of the year for my week to week pay? A. Watts: A. No, because I asked you and I've asked all my employees and you said you don't want one because 90 per cent of the time you were paid by cheque and you said you didn't want one. You were always given one at Christmas time stating all your holiday loading, everything on your Christmas pay, and it hardly got to the door-- Q. When was it the occasion that I said I did not want a pay slip? A. This year it would have been when we were doing the job down at the DET down the road when your girlfriend had got put off work and you came and asked me all about how much do you think she should get and what should happen, and do you have to have pay slips. And I informed you, no, you don't have to have pay slips. And I asked you all, I sat you down and I said, well, do you want pay slips. I've asked you this and I've asked you practically every year and yet you all said no. 91 The Applicant conceded that the Respondent had requested him to call personally whenever he was unable to attend work due to illness. Nevertheless, he failed to do so on numerous occasions. The Applicant was asked not to forward SMS messages in that regard yet he persevered in doing so. 92 The Applicant vehemently denied that he was ever asked to produce a medical certificate describing the relationship between the parties as being a "casual" one. Well the relationship during the proceedings did not remain casual if they ever were - they were arbitration proceedings. The Applicant was aware that his medical record was in issue yet it had not occurred to him to obtain a copy of the relevant medical records from his doctor to justify his absences. 93 The offer made by the Respondents was, in my view, not one that would have affected the employment status of the Applicant. The manner in which it had been put forward was, in my opinion, awkward. However, I am satisfied, from the evidence, that the explanation given to the Applicant and his father was clear enough not to be misunderstood. The offer was clearly that over the following 2-3 weeks, the Applicant was required to work a full week and receive the same take home pay with an opportunity being available for a pay rise if he put in extra effort. However, if he was absent without notice to the Respondent, he would not be paid for such absence. In other words, the Respondents were no longer willing to fund his days off when taken without the authority of the employer or without a doctor's certificate. Those conditions would be reviewed at the end of that period: A WATTS: The statement was if he turned up every day, every day of the week for every week, he would get the same pay, but if he missed a day, like, he didn't turn up the Friday, didn't hear from him, so he broke what we'd arranged that Friday. And then I found a text message on my phone and in the afternoon went to the letterbox, but we had a job to go to which I was counting on for that day and he didn't turn up, so straightaway that was the arrangement broken. COMMISSIONER: So let me understand this, even though you said casual employee, if he had turned up every day for work-- A WATTS: If he'd turned up every day, my wife and me sat there and said to him he would not be - he'd get exactly the same rate of pay as is, but it's-- COMMISSIONER: But for those days he didn't turn up, he wouldn't be getting paid. A WATTS: And he was on trial for two or three weeks and he had to turn up on time, work properly and everything and then we'd review the situation. COMMISSIONER: You're still not prepared to accept that offer? APPLICANT: What offer? 94 The Applicant, in my opinion, had not been dismissed from employment. He had refused to accept that he would not be paid for time not worked. That offer was repeated in the Commission and rejected by the Applicant. 95 The Respondents have, in my view, put up for a very long time with abysmal performance and attendance records, which have cost the business dearly both in monetary terms and in reputation. There is no necessity to go over the evidence which has been outlined in detail above, save to say that wherever there has been conflicting evidence, I have preferred that provided by Mr & Mrs Watts over that of the Applicant and his witnesses. 96 There was no termination of the Applicant's employment by the Respondent. Matter No IRC 1067 of 2007 is hereby concluded by rejection of the claim. I Tabbaa COMMISSIONER 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.