Appo v Ngulingah [2010] NSWIRComm 1027

Industrial Relations Commission of New South Wales

CITATION: Appo v Ngulingah [2010] NSWIRComm 1027

APPLICANT: PARTIES: Mr Nigel Appo RESPONDENT Ngulingah Local Aboriginal Land Council

FILE NUMBER(S): 1635 of 2009

CORAM: Ritchie C

Application for unfair dismissal. Conciliation unsuccessful. Directions given for the filing and serving of evidence. Applicant failed to file any evidence. Further Directions given to applicant. Applicant again failed to file any evidence. On day of Hearing applicant failed to provide any evidence. Hearing went by way of respondent's filed evidence and oral evidence. CATCHWORDS: Applicant short term employment of six months when terminated. Argument over date of termination. Commission found in favour of respondent with respect to date of termination. Applicant terminated for failure to follow reasonable instruction. Respondent had previously provided applicant with three written warnings. Applicant claimed he never received correspondence. Commission found that warning letters sent and received. Commission found that termination justified and that it would not intervene. Application dismissed.

LEGISLATION CITED: Industrial Relations Act, 1996

Adami v Maison De Luxe Limited (1924) HCA; (1924) 35CLR 143 Anthony v NSW Fresh Food & Ice Company (1946) 45 AR 64. CASES CITED: Izdes v LG Bennett & Co Pty ZLimited t/as Alba Industries (1995) 61 IR 439 Laws v London Chronicle (Indicator) Newspapers (Ltd) (1959) i WLR 698 Pastrycooks v Gartrell White (no3)

HEARING DATES: 25/05/10

DATE OF JUDGMENT: 8 June 2010

APPLICANT Mr Nigel Appo LEGAL REPRESENTATIVES: RESPONDENT Mr Jean Boussard

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: RITCHIE C.

8 June 2010

Matter No IRC 1635 of 2009

IN THE MATTER OF: Application of Nigel Stephen Appo re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

DECISION

[2010] NSWIRComm 1027

Background.

1 On 16 October 2009, Mr Nigel Stephen Appo (the applicant) filed an application for unfair dismissal against the Ngulingah Local Aboriginal Land Council (the respondent) under section 84 of the Industrial Relations Act, 1996 (the Act). 2 In his application the applicant had stated that he had commenced employment with the respondent as a supervisor on 23 March 2009 and his last day worked was 23 September 2009. The application was therefore two days out of time. 3 A teleconference was held on 4 November 2009 when as a consequence of the conciliation process being unsuccessful the Commission as presently constituted issued directions to the parties for the filing and serving of evidentiary material in accordance with Practice Directions 17. 4 The file was directed to the Newcastle Registry for administration. 5 The applicant failed to comply with the Directions given on 4 November 2009.

The applicant was contacted by correspondence dated 7 December 2009 from Newcastle Industrial Registry seeking advice as to his intentions in respect to the prosecution of the matter. The applicant contacted the Registry by phone on 20 January 2010 advising that he had been involved in a motor vehicle accident and therefore was unable to meet the directions. 6 On 9 February 2010 DP Harrison issued amended directions requiring the applicant to file and serve material to be relied upon by 19 March 2010. The matter was listed for disposition to conclusion at Lismore Court House on 25 May 2010. 7 The respondent had already filed their material on 10 December 2009. 8 The applicant failed to comply with the new directions. When asked on 25 May 2010 as to why he did not comply with the amended directions he advised that a couple of his witnesses had been in gaol at the time, one was out now and he did not know where the other one was. 9 A further conciliation was held, which was unsuccessful, and then a hearing of the matter at the Lismore Court House based on the material that had been filed by the respondent and the oral evidence of the two witnesses. Application out of time.

10 As previously stated based on the applicant's documentation, the application was filed some two days out of time. In his application the applicant stated that : Getting legal advice, I thought it was 21 working days, apparently not; finding right internet print sites for forms, consulting with family about possible outcomes, others etc

In accordance with Section 85 TIME FOR MAKING APPLICATIONS of the Act, an application under this part of the Act must be made within 21 days of the termination.

Section 85(3) [Commission may accept application lodged out of time] provides the Commission with the discretion to allow an application to be accepted that is made out of time.

I make further comment with respect to this issue later in this Decision.

Case for the applicant.

11 As previously stated the applicant filed no material to be relied upon nor did he seek to have marked as an exhibit any material on the day of the hearing. From the witness box the applicant was cross examined on the documents filed by the respondent which became exhibit 1 in the proceedings. 12 It was the applicant's evidence that he commenced with the respondent on 23 March 2009 as a supervisor in a land management programme. His weekly work programme was to meet with seven trainees at the respondents place of work and then to travel to Nimbin where the land management programme took place. This would take place on Monday, Tuesday and Wednesday commencing at 9.00am. On Thursday he was to carry out administration at the respondents office commencing at 9.00am. He worked a 4 day 28 hour week. 13 The applicant was shown Exhibit 1. He denied ever being served with this document. The applicant accepted that he had since moved from the address that he had on his Application for Unfair Dismissal. He accepted that he had failed to advise either the Commission or the respondent of his new address. He was given the opportunity to read the document. When asked he denied ever receiving a letter dated 23 June 2009 from the respondent (Mr Jean Boussard) (attachment 4) which stated that he had not shown up for work on 18 June. Normally he would not be receiving pay for the day but the letter stated he would be paid on this occasion with a final warning " as you are aware, any absence MUST be justified".

He denied receiving a letter from the respondent dated 17 July 2009 (attachment 5) from Mr Broussard stating that as he did not show up for work on 16 July he would not be paid. Attached to this letter was a copy of the previous warning letter. Again the letter stated that any absence must be justified. The second warning letter went on to state: " As the Supervisor of a work team of seven trainees, you have specific responsibilities to assume for the benefit of our Organisation. Thursdays, as you have been duly instructed, must be devoted, working in the Office at Conroy Street, to reporting, purchases, maintenance of the bus, etc.....under the guidance of your own supervisor Tracey KING. Also , you have been frequently late to work: on Mondays, Tuesdays and Wednesdays, please make sure that you arrive at 9 am so that you leave with your team at 9.15am latest for Nimbin where your Mentor from ENVITE is waiting. Please receive my comments with a positive op-en mind as our mutual concern must be your performance." 14 The applicant denied receiving a third warning letter dated 21 September 2009 (attachment 7 ). The letter stated the following : " On Wednesday 9 September, at 4.30pm, you were interviewed in this office by Tracey KING and myself, and the decision to demote you from the position of Supervisor to the role of Ranger was communicated to you , with immediate effect. I received your comments and noted your acceptance. You were at work in Nimbin on Monday 14 September and assumed you new position of Ranger. Please find attached your Statement of Duties and responsibilities as a Ranger that you are requested to duly fill in and return to this office at your earliest convenience." 15 Under oath the applicant also denied ever receiving a letter of termination dated 29 September 2009 (attachment 9). This differed from a statement he made on record when he stated that a letter was brought out to him whilst he was at Nimbin.

The letter stated the following: "We refer to the third warning letter sent to you on 21 September along with your statement of Duties and responsibilities in your new role of Ranger that you were requested to duly fill in and return to this office at your earliest convenience. Your refusals yesterday and today to accept instructions from your Supervisor and from ENVITE Mentor are a very serious breach to the terms of your employment with Ngulingah LALC. This insubordination adds to your continued distancing from the Team and to your general lack of communication which have been creating an uncomfortable feeling within the Team as reported by its members. On 9 September, when you were demoted from the position of Supervisor to be one the rangers with immediate effect, I gave you the possibility of amending yourself and I was personally hoping that you would seize it. Unfortunately you did not, and we feel that your erratic behaviour jeopardizes the cohesion of the Team and the life of the Project itself. You are besides putting our Organization at risk of failing to secure any future funding from DEEWHA. Your employment is therefore terminated from today Tuesday 29 September and you are invited to come to this office to receive your redundancy cheque which will include your leave loading as well as, although we do not have to pay them, your wages for yesterday and today." 16 The applicant agreed that on 21 October 2009 he received a final cheque of $949.48 from the respondent. 17 The applicant did not accept the contents of attachment 11.

This is a letter dated 29 September 2009, from Richard Burer -Mentor for the Ngulingah Nimbin Rocks Project-ENVITE Project Officer to Mr Boussard.

The letter states: " As requested I have compiled a summary of the activities of Nigel Appo (Coordinator) on the Nimbin Rocks Caring for Country project site on two days Monday 28 th September and Tuesday 29 th September 2009. Details follow. Monday 28 th September Nigel arrived at the site and failed to make contact with the team and/or mentor. Nigel was seen by team members, sleeping in a caravan on site. Nigel did not participate in work activities identified for that day. Nigel left the work site and property before the end of the working day with out consulting the mentor or notifying others on the team. Tuesday 29th September Nigel arrived at the site and failed to make contact with the team and/or mentor. Nigel did not participate in work activities identified for that day. 18 The applicant also did not agree with the contents of attachment 12 which read: "29/09/09 This morning Richard asked Nigel to join the team to do a risk assessment before work started. Nigel said no he didn't want to do it. Nigel then spent the day away from the team doing whatever he thought he could do. When Noel asked Nigel to join the team he then said he was helping Roy Gordon build a house and never helped the team all day. Eric Walker 19 The applicant did not agree with the contents of attachment 13 which read: 15/09/09 Lack of interest in training component and needed to be told by trainer to join group. Ignored me and failed to communicate with me after being encouraged to do so. Distanced himself from group. Would not do group document activity training, even though trainer had told all to do so, though did do it by himself. He also flooded the kitchen. Noel King 16/09/09 10.am: suspected arson of work shed at Nimbin Rocks. Field notes from previous day burnt throughout the shed including on and around petrol container in caged area. Person or persons with keys could only get in this area. 11:am inappropriate use of tools and distancing away from work groups. 12:30pm lunch -Continued distancing from the team and general lack of communication, plus creating uncomfortable feeling within the group. 1:15pm Made personal decision not to participate in after lunch work, and talked of going home and left after lunch. Noel King. 20 Attachments 14, 15 and 16 were copies of tax invoices from the Rural Buying Service Pty Ltd. Items purchased on 2 June 2009, 2 September 2009 and 8 September 2009 by the applicant for use at work. It was the claim of the respondent that the applicant did not get approval from Ms Tracey King prior to making the purchases. The applicant said he did. 21 Attachment 17 is an Account Statement from Penoil Self Serve. This is a petrol service station. The respondent stated that three purchases of unleaded petrol on 9 September 2009 could not be justified. The applicant stated that he was not the only person that held a credit card with that supplier. Case for the respondent.

22 The respondent was represented by Mr Jean Boussard who is their Chief Executive Officer. 23 Mr Boussard stated that through discussion and correspondence the respondent sought to change the ways of the applicant.

In evidence he went through exhibit 1 detailing the actions the respondent took. He was quite adamant that the applicant had received his warning and termination letters. Considerations and Decision.

24 Both parties represented themselves and whilst the Commission sought to assist the parties as much as possible it became a difficult process.

The failure of the applicant on two given opportunities to file and serve material that he wished to rely on became an almost insurmountable hurdle.

The Commission can only rely on the evidence that is placed before it be it written and or oral. 25 It was the applicant's case that he denied everything. He denied he ever received the respondent's correspondence dated 23 June 2009, (his first warning), correspondence dated 23 June 2009 (his second warning), correspondence dated 21 September 2009 (his third warning) and correspondence dated 29 September 2009 (his termination letter).

In responding to questions from the Commission he denied ever being late for work or ever being away from work other than the period 21/9/09 to 26/9/09 when he had a medical certificate.

In that the only period he was away from work was the period covered by the medical certificate he therefore denied that he was away from work on 18 June 2009 and 16 July 2009. 26 It was Mr Boussard's submission that the applicant was not present on those days and that no communication was received from the applicant for his absence on those days. It was also Mr Boussard's submission that only on one occasion, week ending 14 July 2009, did the applicant actually complete a full weeks work of 28 hours. 27 It was Mr Boussard's submission that the purchases made by the applicant found in attachments 14,15 and 16 were made without the prior authority of the applicant's direct supervisor Ms Tracey King.

I note the issue of purchases is raised in attachment 5. 28 Notwithstanding the applicant's view of his termination date as expressed in the original Application For Relief In Relation To Unfair Dismissal as being 22 September 2009 and his last day of work being 23 September 2009, it was the applicant's oral evidence in the proceedings that he was actually terminated on 9 September 2009 during the meeting he had with Mr Boussard and Ms King.

I do not accept this submission. The applicant continued to work and was paid and made a claim and was paid for sick leave up to and including 29 September 2009.

It is my finding that the applicant was terminated on 29 September 2009. Therefore the issue with respect to out of time claim does not require to be determined. 29 As per annexure 9 the respondent outlined to the applicant the reasons for termination. As expressed in the letter the failure of the applicant to accept instructions from his supervisor was considered by the respondent as a serious breach to the terms of his employment. 30 It has been a long held principle that an implied term of a contract of employment requires an employee to obey a lawful and reasonable instruction or direction of the employer. A failure to do so, or as in this case, a repeated failure to do so, may constitute a repudiation of the contract and lead to the employer dismissing the employee. In Adami v Maison De Luxe Limited [1924] HCA 45; (1924) 35 CLR 143, Isaacs ACJ said at pg 153: I state first the relevant principle, which, indeed, has already been indicated. It is incontestable that any conduct of an employee which is not merely inconsistent with some particular obligation involved, and possibly not striking at the root of the matter, but which is inconsistent with the relation established, is a just cause for the employer's termination of that relation. Habitual neglect or a definite refusal of a general kind to pursue the employer's lawful policy of business would afford such justification. In the same case, Gavan, Duffy and Starke JJ said at Page 155 to 156: Now it may well be — and the cases and the books suggest the conclusion — that where it is a condition of the contract that the servant shall obey all lawful orders of the master, then a wilful or deliberate and intentional disobedience of any of those orders is tantamount to a refusal to be bound by the terms of the contract, entitling the other party to treat it as at an end, and to dismiss the servant ( Turner v Mason (1); Pease and Latter's Law of Contract, 1st ed.., p. 218). But it is unnecessary to pursue this topic, and therefore most undesirable that this court should say anything to weaken the authority of Turner v Mason, for acts of the plaintiff here did amount to a distinct refusal to be bound by the terms of his contract, and his failure to obey instructions was such as to go to the foundation and root of the whole contract between the parties. The result is that the plaintiff was rightly dismissed in point of law, and the jury should have been so directed. 31 In Anthony v NSW Fresh Food & Ice Company Limited, (1946) 45 AR 64 Ferguson J, after noting the common law obligation resting on an employee to obey lawful orders of his employer, said this at pg 73: It is to be noted, however, that while this may be the position at common law, the obligation, if any, arises in the case now under consideration pursuant to the terms of the Ice Cream Manufacturers (State) Award. This award governs employment in an industry dealing with a perishable commodity and, like other awards, it confers benefits and imposes obligations upon employers and employees and all persons engaged in industry are bound under statutory authority by its terms. 32 More recently, in Izdes v LG Bennett & Co Pty Limited t/as Alba Industries (1995) 61 IR 439, Beazley J said at p 451: In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct. In Clouston and Co Ltd v Corry [1906] AC 122 , Lord James of Hereford stated at 129: "There is no fixed rule of law defining the degree of misconduct which will justify dismissal." In Laws v London Chronicle (Indicator) Newspapers (Ltd) [1959] 1 WLR 698 , Lord Evershed MR (Jenkins and Willmer LJJ agreeing) stated at 700: "The question must be - if summary dismissal is claimed to be justifiable - whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service."

33 In Pastrycooks Employees v Gartrell White (No 3) Hungerford J in reviewing these, and other authorities, stated (at 74): "Permeating all of those earlier cases on this aspect of the law was the concept that the act of misconduct or of disobedience had to strike at the fundamental aspect of the relationship of employer-employee so as to make it plain that the conduct complained of was such that the non-offending party may properly conclude that the offending party no longer intended to be bound by the provisions of the employment contract. In other words, so it seems to me, the test comes down to the question whether the employee's conduct has been so inconsistent with his duties under the employment contract that it strikes down any reasonable suggestion that the employer-employee relationship can be continued in the future".

34 It was the evidence of the applicant that as he had been terminated by the respondent on 9 September 2009 he didn't have to work. He was at Nimbin for other reasons and living on the site where the land work was being carried out. He just did what he wanted to do.

As stated previously in this Decision I do not accept that the applicant had been terminated on 9 September 2009. It is my finding that he had been demoted by the respondent and had accepted this action.

It is my finding that the applicant had been directed to work at Nimbin and had been paid. Why did the applicant provide a medical certificate to the respondent to cover an absence from work, if he was no longer employed with the respondent.

35 I am satisfied that from the evidence found in exhibit 1 and the evidence that fell from Mr Boussard that the applicant failed to carry out the lawful and reasonable instructions from his supervisor and mentor whilst carrying out the land management work at Nimbin.

It is clear that this failure led to both Mr Burer (his mentor),Mr Eric Walker and Mr Noel King becoming frustrated and having concern for the effect on the rest of the group of trainees. 36 I accept the evidence from Mr Boussard that he had cause to raise the various letters of warning and termination. The applicant had been an employee of very short period of time, yet during that period he had difficulty in attending for work on time and in a regular fashion . He had been given opportunities to correct his shortcomings.

I do not accept that such letters of warning and termination were raised to support at a later date the applicant's termination or to be evidence in these termination court proceedings.

I also find on the balance of probability that such correspondence was given to the applicant at the time. The applicant's denial of ever receiving such correspondence I do not accept. The applicant in my view simply failed to want to recognise his own shortcomings and make the necessary work adjustment. 37 In summary it is my finding based on the evidence that was before the Commission that the termination of the applicant by the respondent was neither harsh, unjust or unreasonable. 38 I therefore dismiss the applicant's case. This matter is now concluded.

D. RITCHIE 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.