In Pomering v Ronpom Pty Ltd T/A Millers Turf Farm [2017] FWC 1948, a family-managed farm was the scene of an unfair dismissal. Mr Pomering was the sole director and shareholder of the respondent employer, Millers Turf Farm (“Mr Pomering Senior”). The applicant for the unfair dismissal claim was Mr Pomering Senior’s son (“Mr Pomering Junior”). Mr Pomering Junior was the General Manager of Millers Turf Farm until his immediate dismissal by his own father. The mother was a witness in the proceedings.
The Sudden Dismissal
On 19 August 2016, Mr Pomering Junior received a letter from his father that his employment at the farm would be immediately terminated. The letter gave 3 reasons for the immediate termination, alleging that:
- Mr Pomering Junior made an unauthorised transfer of funds totalling $5000.00 from the company’s bank account into his personal account;
- Mr Pomering Junior removed a company computer from the work premises without authorisation; and
- Mr Pomering Junior removed $990.00 in cash from the company’s delivery vehicle without authority.
Mr Pomering Junior’s Arguments
Mr Pomering Junior argued that he was not notified or questioned about any of the 3 alleged reasons that led to his termination before the termination.
As to reason 1 above, Mr Pomering Junior didn’t deny that he made the $5000.00 transfer to his own account. However, Mr Pomering Junior gave evidence that authorisation from his father or the employer company was not required. The particular account in Mr Pomering Junior’s name was used almost exclusively to pay for expenses incurred in relation to the farm’s business, and his father knew this very well. Further, many other similar transfers had been made before without objection from Mr Pomering Senior.
As to the second alleged reason for the termination, Mr Pomering Junior also did not deny that he removed the computer from the premises. However, the reason for the removal was to allow a fried with IT expertise to securely delete his personal files from the computer. Mr Pomering Junior admitted that he had not mentioned the computer’s removal to his father beforehand, but he explained that he did not consider that he needed permission for the removal as he was the one responsible for the day-to-day operations of the business, being the General Manager.
As to the third alleged reason, Mr Pomering Senior did not press this at the hearing before the Fair Work Commission and did not argue that it was a valid reason for the dismissal. Therefore, the Fair Work Commission did not consider this issue.
It was implied, however, that Mr Pomering Senior’s sudden withdrawal of that third reason was detrimental to his credibility. The Fair Work Commission also noted that Mr Pomering Senior earlier claimed that he requested a financial statement from his son as to the $5000.00 transfer before the dismissal. Mr Pomering Senior also earlier claimed that he had asked his son to return the computer before the dismissal. However, Mr Pomering Senior would later concede that he did not actually make such requests before the sudden dismissal.
The Fair Work Commission’s Decision
Given the lack of credibility of Mr Pomering Senior and the Commission’s acceptance of Mr Pomering Junior’s evidence and reasons for transferring the funds and removing the computer, the Fair Work Commission found that the son’s dismissal was harsh, unjust or unreasonable. It found that there no valid reason for the dismissal, and there was also noprocedural fairness because the son was not questioned about the alleged reasons for dismissal beforehand.
The father was ordered to pay compensation to his son. The Commission noted that reinstatement of the son to his former role with the father would be inappropriate due to the poisonous relationship that had formed between them.
Lessons to be Learnt
Our employment law solicitors state that this is a reminder that employers, even those that are family, may falsely claim that an employee committed misconduct to justify a dismissal of that employee. It is important to follow the law for termination of employment. This frequently occurs when there are poisonous relationships involved. Unfortunately, such false misconduct claims can impact on the employee’s future employment prospects. Therefore, an employee who has been unfairly dismissed should seek advice as to making a claim. The employee would then have the opportunity to clear the air and set the record straight.
Please contact one of our solicitors, who practice in employment law,regarding any termination of employment issue you may have.
