What’s in a warning? Employee wins unfair dismissal case involving a pet dog and a whipper snipper

An employee has won an unfair dismissal case after it was found that, despite presenting evidence of discussions and emails, the employer failed to provide adequate, clear warnings.

The employee, Dr H Kestermann, worked on a casual basis for RAP Investments, which trades as Mandalong Studs, a cattle breeding business based in NSW. He commenced employment in September 2009 and was dismissed in January this year.

His duties included lawn mowing, whipper snipper duties, general maintenance, watching the irrigation and feeding horses.

The reasons given by the company for the dismissal included unsatisfactory work performance, poor attitude, failure to comply with directions, damage to property and truancy.

Kestermann applied to the Fair Work Commission for unfair dismissal.

Mandalong Studs managing director Mr R. Pisaturo argued that the employee did not satisfactorily complete his duties which caused the property to look neglected.

Evidence was given regarding disputes about the frequency that the grass had been cut, how often the whipper snipping had been done, and over the behaviour of the applicant’s pet dog on the farm. It was argued that the pet dog had attacked livestock and had lashed out at other employees, which the applicant denied.

Pisaturo said he had spoken to Kestermann every week for a year and sent emails pertaining to duties that needed to be done.

The applicant agreed that discussions had occurred on an “informal basis” asking him to lift his standards and give directions about duties. However, he denied that these discussions were not held as frequently as the company claimed.

A formal termination letter was said to be issued, with the offer of an extra week of pay and the option to stay on the property in accommodation for a further two weeks. However, the applicant argued he did not receive this letter until after union intervention. The offer of two-weeks’ notice was amended to three weeks.

The company said that they had complied with the Small Business Fair Dismissal Code, however Fair Work disagreed.

“I am not satisfied that the concerns were properly put to the applicant in such a way that he understood that he was at risk of being dismissed. In the email exchange of July 28, 2012, Mr Pisaturo informed the applicant that, if he was not happy with his job, he should leave. That does not suggest dismissal but resignation,” Fair Work reported.

The lack of formal performance assessments was also noted by Fair Work. It was deemed that the applicant was not given the opportunity to respond to the issue.

Kestermann did not wish to be reinstated, but the employer was ordered to compensate the applicant with three weeks’ pay.

TressCox Lawyers partner Rachel Drew told SmartCompany that in this case the employer appears to have been “unlucky” in the outcome of the decision.

“They appear to have made a number of attempts to bring the issues to the employee’s attention,” she says.

“They didn’t go far enough to ensure that performance was discussed, and to show that this was of a serious nature and that it could lead to dismissal.”

Drew says the evidence presented to Fair Work shows there were different views of the same conversations, which could have been avoided with more documentation.

“This shows the importance of reducing conversations to writing, at the time of the issue,” she says.


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