Industrial Relations Commission of New South Wales CITATION: George Warmington and Mark Harris [2008] NSWIRComm 1069 APPLICANT George Warmington PARTIES: RESPONDENT Mark Harris FILE NUMBER(S): 503 of 2008 CORAM: McLeay C CATCHWORDS: Unfair dismissal - dairy hand - dismissal denied by respondent - no supporting witnesses called - confusion in evidence - past history of threats to dismiss - insufficient evidence to determine whether dismissal occurred - case not made out LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 Jones v Dunkel and Others (1958-59) 101 CLR 298 HEARING DATES: 29 July 2008 DATE OF JUDGMENT: 15 August 2008 APPLICANT Self represented LEGAL REPRESENTATIVES: RESPONDENT J Wormington of Counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 15 August 2008 Matter No IRC 503 of 2008 George Warmington and Mark Harris Application by Mr Warmington re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2008] NSWIRComm 1069 1 This is an application by George Warmington for unfair dismissal from the position of dairy hand on a dairy farm operated by Mark Harris. The application showed that Mr Warmington was employed full time from 30 August 2006 until 4 April 2008. 2 Mr Harris stated in evidence that he had employed Mr Warmington as a casual dairy hand in November 2006. Mr Warmington commenced a traineeship on 2 April 2007, which he completed in February 2008. He continued to be employed until 4 April 2008, after which time Mr Warmington did not return to work. Mr Harris stated that he did not dismiss Mr Warmington. The events of 4 April 2008 3 Mr Warmington stated that he was dismissed by Mr Harris on the evening of Friday 4 April 2008 when Mr Harris said words to the effect "Pack your bag and go." This was the twelfth continuous day of work for Mr Warmington who was looking forward to a weekend off. He said that he refused to clean the clusters when Mr Harris asked him to do so, because he was tired at the end of a long stretch of work and that it was unreasonable to be asked to do a further couple of hours work at that time. 4 Mr Harris said that he had reminded Mr Warmington to clean the lines, an automated task which required only the press of a button. He said that Mr Warmington had forgotten this task on a number of occasions. Mr Warmington described the cleaning of lines as "part of the routine" that he did after milking twice a day. Cleaning the clusters required scrubbing the equipment manually. It was a task which usually was undertaken prior to the afternoon milking. On the occasion in question, Mr Harris said he simply pressed the button himself when Mr Warmington left for the evening. 5 Mr Harris denied dismissing the applicant. He said he was unaware of a disagreement with Mr Warmington, and was taken by surprise when he did not turn up for work on the following Monday morning. He had no way of contacting Mr Warmington, but expected him to arrive for work the following day. He said it was only when Mr Warmington did not arrive on the Tuesday morning that he realised he was not coming in at all. Mr Harris suffered financial loss because he had to stay and do the milking himself instead of going out to do the job he had been contracted to do. Background events 6 What is agreed between the parties is that Mr Warmington worked an ongoing pattern of twelve days on and two days off, those two days being every second weekend. The job consisted of bringing in the cows each morning, milking, washing down, calf feeding, attending fresh calvers, afternoon milking and associated duties. 7 Numerous occasions were itemised by Mr Warmington when he was threatened with dismissal by Mr Harris. He provided details of occasions when Mr Harris had told him to do particular tasks "or I'll sack you". Mr Warmington said that on each previous occasion he had done as he was told because he valued his job and wanted to keep it. He felt that he had been bullied by Mr Harris but did not complain because he wanted to keep his job. On 4 April he felt he was being pushed too far. Taking all the circumstances into account, Mr Warmington said he was unfairly dismissed. Mr Harris denied having told Mr Warmington he would sack him. 8 Mr Harris claimed that Mr Warmington was given rent free accommodation in a house on the farm for a period of approximately 12 months. When Mr Warmington challenged him on this evidence, Mr Harris said that Mr Warmington worked one day a fortnight in exchange for his accommodation. 9 The evidence showed that Mr Harris had made an offer of settlement during conciliation, but Mr Warmington had not accepted it as a genuine offer. Mr Harris did not return his call when he rang to ask for details. Mr Warmington has applied for 24 jobs since his employment with Mr Harris was terminated. He is hopeful that a potential job offer on a dairy farm will come through, but he mentioned various difficulties that had affected the rural job market, including high grain costs and water restrictions. Consideration 10 There was an amount of exaggeration in the evidence on both sides. The Commission was not assisted by the lack of corroborating witnesses. Both the applicant and the respondent referred to other people they could have brought as witnesses. That neither chose to do so causes some difficulty in determining the truth of several points where the evidence diverged. Suffice to say, a number of grey areas remain in the evidence. 11 Mr Warmington claimed he worked public holidays; Mr Harris said he did not. Mr Harris said that his wife was primarily responsible for feeding calves; Mr Warmington said that Mrs Harris was rarely there. Mr Warmington said he regularly worked 12 to 14 hours a day; Mr Harris said that Mr Warmington milked in the morning and afternoon and had the middle of the day to do whatever he wished. Insufficient evidence was presented to determine any of these differences. 12 Mr Warmington's lack of familiarity with legal proceedings was the cause of some issues not proceeding in accordance with his expectations. However, it does not override the necessity to satisfy the onus on him to prove that he was dismissed. 13 During the proceedings I expressed some frustration at the lack of witnesses in the case. Both Mr Warmington and Mr Harris gave evidence, but declined to call additional witnesses who could have corroborated their stories. They referred to witnesses - Mr Warmington's girlfriend and Mr Harris's wife, among others - who were not called to give evidence. The long established standard is set out in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 where the case of Browne v Dunn was reconsidered. Hunt J said: It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67. 14 The decision of the High Court in Jones v Dunkel and Others (1958-59) 101 CLR 298 made it clear that if there is a witness who could support a particular case who is not called, the presumption must be drawn that they would not have assisted that case. 15 Much of both Mr Warmington's and Mr Harris's case relied on credibility of the witnesses. In the normal course, the presumption is drawn that the evidence of witnesses not called would not assist the party's case. In this case, that presumption does not assist either party. 16 The sincerity of the applicant was not in question. There was, nonetheless, some confusion in his evidence. For example, when asked about a particular document he had tendered in evidence, Mr Warmington stated that he wrote the document and someone else typed it for him, when it actually was a document prepared by the respondent. 17 As a second example, Mr Warmington said he was not a trainee, but that he did sign up to a TAFE course to 'just brush up' on his skills. It became evident that legally, Mr Warmington was a trainee for part of the period of his employment with Mr Harris, although his previous experience in the industry was known to them both. I did not accept his initial denial of his status as a trainee as an untruth. I accepted that he did not see himself as a trainee because of his experience, but agreed to enter into a traineeship to refresh his knowledge. He signed the necessary papers, undertook supervision by a TAFE teacher on site and accepted the lower rate of pay inherent in agreeing to a traineeship. 18 There was also some confusion expressed about the time of the discussion between Mr Warmington and Mr Harris on 4 April. Mr Warmington stated in his written evidence that the conversation occurred at 7.30pm, although in oral evidence he admitted it could have been any time between 6.30pm and 7.30 pm, as Mr Warmington did not wear a watch. Mr Harris stated that the conversation occurred about 6pm. He corrected his written evidence before it was tendered, which had originally referred to the discussion occurring after the morning milking. 19 In other aspects of his evidence, Mr Warmington spoke with great clarity. In describing the events of his last day at work, he said Mr Harris spoke to him in a nasty tone and ordering him to wash the clusters. He said: This is on the Friday night, 7.30 in the evening, I've been up for – I got up at about 4.30 in the morning, I bring the cows in, I do a bloody good job and he comes in and he says, "I want you to" – really quite nasty this time, really quite, quite brutal, really sort of like, this is it. He comes in and says to me, "I want you to wash the clusters, I want you to remain behind and wash the clusters". I was all ready for the weekend, I was going to my girlfriend, she's cooking for me, we planned things. I think we were going fishing – Sunday we were going fishing, the first time I actually had time to take Lucy fishing because I hadn't had much time to spend with Lucy at all which I had to work so hard, I didn't see the child to grow up. The child's grown up and I've missed it. Working so hard. I sat down, "No, I'm not going to do it". I was very polite by it, I'm a polite person, I said, "No, I'm not doing it" and he goes, "If you don't do it, I'll sack you, you can pack your bags and go", so I said, "I'm not doing it, I'm not doing it, I'm going home, it's 7.30 in the evening, it's getting a bit late, I'm going home, it's 7.30, I'm going home now, I've done 12 days, I've got two days off, I'll have to be up again early next – on Monday morning", so I said, "I'm not doing it" and he goes, what he says, he's written down here, "If you don't clean the clusters, you can pack your bags and go". I goes, "Well, I'm not doing it", so he replies to me, "You can pack your bags and go then" – I sat there, I thought – that's that, so I went home and I thought, I've been sacked, so I thought, what can I do about it and then someone said, what you should do is like go to the Industrial Relations, they're not allowed to – set down rules that you're not allowed to, there's a verbal warning I believe now, there's two written warnings, a verbal warning, I do believe is true and then an actual final warning and then you actually are dismissed. There are set down rules of procedure, I didn't know this. As I said, I think that was a bit unfair, I think I was unfairly dismissed. 20 Later, he stated: I've been threatened with the sack on four occasions. This time I said I wasn't going to do it and he sacked me. 21 On the other hand, Mr Harris gave evidence as follows: I did not dismiss the applicant form his employment. On 4 April 2008 the applicant had finished the afternoon milking. He had not rinsed the lines as he was required to do in accordance with the Food Safe requirements. This issue had been an ongoing problem with the applicant and it had been raised with him on many prior occasions. The applicant simply forgot to rinse the lines. I said to the applicant, "are you going to rinse the lines?" The applicant replied, "no, I'm going home". I then said to the applicant, "you won't last long here doing that". The applicant did not reply, walked out and did not return to work. 22 There was no reason to doubt the sincerity of Mr Warmington. He described Mr Harris as 'quite a nice bloke', who became grumpy with painkillers after a near-fatal accident. Following the accident, Mr Warmington said that he worked thirty five days straight, without any days off, to hold the farm together while Mr Harris recovered. He described several occasions when Mr Harris threatened him with the sack if he did not perform certain tasks. Mr Warmington followed Mr Harris's instructions each time that he had previously been threatened with the loss of his job, because he did not want to lose it. 23 Mr Warmington had expressed concern about a report which Mr Harris had, which was about Mr Warmington and which was of a private nature. Having given evidence that he "would not have" given the document to Mr Harris, he then stated that he did not give it to him. Mr Harris said that Mr Warmington gave it to him a couple of months after he started work. 24 In some aspects, Mr Harris's evidence was confusing also. For example, he referred to "we" did the cleaning, then said he did not do it himself, then said "we do" again. When questioned who he meant by "we", he replied: George. That was his job to keep the clusters clean. George had a job to assist with calves, hunt the cows around and milk. He didn't do any tractor work, he done no feeding, he done nothing else, that was his specific jobs. 25 In cross-examination of Mr Harris by Mr Warmington, the following exchange took place: WARMINGTON: I actually was stopped there, coming up to the weekend, actually watching the water go around to make sure it was being washed properly, being concerned about the plate count. So, in telling the Commission - - - HARRIS: Yes. WARMINGTON: - - - on an effect that it's just a switch of a button is what you wanted me to do - - - HARRIS: It is, George. It is a switch of a button. WARMINGTON: - - - you're telling the Commission is that what you really wanted me to do was to scrub the clusters and stay for a further two hours of work. HARRIS: And if I had have asked you to scrub the cluster, so be it. Like, that still was your job, which hadn't been done as well. WARMINGTON: So, why are you telling the Commission what you asked me to do was just a switch of the button when really what you wanted me to do was spend another two and a half hours at work, cleaning and scrubbing the clusters by hand? HARRIS: It doesn't take two hours, there's a pressure cleaner provided at the dairy. 26 This evidence did not provide clarification of the circumstances that led to the termination of Mr Warmington's employment. It was not a direct, but rather an implied, denial by Mr Harris that he had asked or directed Mr Warmington to clean the clusters. 27 I have no doubt that he had been bullied by his employer on previous occasions. The detailed examples given by Mr Warmington were not refuted by Mr Harris. Throughout the evidence there was disagreement between the witnesses as to the amount of time taken to complete the various tasks undertaken by Mr Warmington in the course of his employment. Mr Harris seemed to believe that Mr Warmington paying for his accommodation with his labour was the same as being provided with accommodation rent free. This indicates that Mr Harris seriously undervalues Mr Warmington's labour. 28 Mr Warmington made reference to a wages claim which he is making against Mr Harris. The outcome of the current proceedings is not dependent on whether or not wages were paid correctly. Little evidence was presented regarding wages, because it was understood by the parties that this claim would be pursued in another jurisdiction. Conclusion 29 It appears there were no witnesses to the conversation between the parties on the evening of 4 April. The style of communication between them was evidenced during the proceedings in the example given above. I am satisfied that Mr Warmington firmly believed he was dismissed by Mr Harris at the end of the working day on 4 April. Whether or not it was Mr Harris' intention to dismiss him is a question that cannot be answered on the evidence. 30 On this basis, it must be concluded that the case for dismissal has not been made out. 31 The matter is concluded. 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.