Beveridge v PVB Investments Limited (Beveridge) is the Employment Relations Authority’s most recent reminder that even informal employment arrangements carry rights and obligations, and – in these – undertaking a fair process remains key, even in the context of criminal allegations.
Facts
In Beveridge, the sole director and shareholder of PVB Investments Limited (PVB), Mr Burlace, was originally good friends with Mr Beveridge. The latter had worked for Mr Burlace in various capacities over the years, with Mr Beveridge most recently running the kitchen at an inn owned by PVB and residing at a farm property owned by Mr Burlace.
While there was no written agreement governing Mr Beveridge’s employment, he was paid regularly and the Authority readily accepted there was an employment relationship between PVB and Mr Beveridge. On reaching this finding, the real issue before the Authority was not whether he was employed, but whether he had been dismissed when the employment relationship ended abruptly after the Police found 12 marijuana plants in a locked shed near Mr Beveridge’s residence.
Following this, Mr Burlace and Mr Beveridge spoke, and Mr Burlace suggested Mr Beveridge could not come to work anymore but was reassured that he would talk to the police. However, when Mr Beveridge arrived at his next scheduled shift and explained he had spoken with the Police and wanted to give a formal statement, he was told to “bugger off before the police get here.” Mr Beveridge then left and later emailed raising concerns his employment had ended.
Dismissal issue
The Authority confirmed a dismissal is the “termination of the employment at the initiative of the employer, being an unequivocal act that amounts of a sending away.”
The employer does not necessarily have to intend termination for a dismissal to occur. Rather, dismissal is assessed objective on the facts – would a reasonable person in the employee’s position have considered that their employment had been terminated?
Here, Mr Burlace said he only intended to give Mr Beveridge a “cooling off” period. The intention was that he could return to work after he had “squared matters up with the police” and Mr Beveridge had essentially resigned by not returning. The Authority did not accept this claim.
Instead, the Authority found that while the men were good friends, being told to “bugger off” was abnormal and a dismissal in the employment relationship. Further, the Authority said that Mr Burlace could have clarified what he meant but never did, even when Mr Beveridge’s later correspondence confirmed he believed he’d been dismissed.
The crucial point was that Mr Burlace had not done what a fair and reasonable employer could have done in the circumstances. No process had been followed to investigate the issue and provide Mr Beveridge the opportunity to respond, and despite Mr Burlace being aware of possible criminal concerns, these were only concerns (that ultimately did not lead to a charge) so there was no substantive justification at the time of dismissal.
Remedy
To remedy the situation, Mr Beveridge was granted the following remedies:
- $10,000 as compensation for humiliation, injury to feelings and loss of dignity.
- 13 weeks’ lost wages.
- Lost wages for holiday pay.
If you have any questions about the above, please contact a member of our specialist Employment Law team.
Author: Evelynn Turin
