The Fair Work Commission (FWC) has recently ordered the re-instatement of a dedicated pelican feeder in the San Remo region in southern Victoria who worked only one hour a week, finding that his dismissal was without valid reason and procedural fairness (Matthews v San Remo Fisherman’s Co Operative [2019] FWC 4877).

Prior to his dismissal, the employee had been employed by San Remo Fisherman’s Co Operative (the Co-Op) as a pelican feeder for about eighteen years. The Co-Op is an organisation that is involved in a range of activities in the San Remo region including the daily feeding of pelicans and the world’s smallest penguins – both popular tourist attractions.

The employee had also been a founding member of a separate entity known as the Pelican Research Group, which supports the welfare of local Australian Pelicans in the San Remo region. The Pelican Research Group had previously been permitted by the Co-Op to sell badges and receive donations at the end of each feeding session.

When the Department of Environment, Land, Water and Planning started making enquiries about whether the Co-Op was profiteering from wildlife, the Co-Op’s general manager decided to cease the sale of badges and collection of donations because of the associated risks. The general manager then requested that the employee provide details about the revenue raised from badge sales, although the employee was never made aware of the reasons why that information was needed. The employee therefore refused the general manager’s numerous requests on the basis that the revenue details were irrelevant to the Co-Op.

At a subsequent pelican feeding session, the employee was asked about the badges by a visitor. The employee then confronted the general manager concerned that the visitor was a ‘stooge’ placed in the feeding session to set him up.

The confrontation became heated and the employee swore at the general manager to the following effect, “what you did was very f***ing disrespectful”. The general manager retorted that it was “effing offensive that you would make such an accusation”.

The employee was then dismissed by email, with the reasons being his refusal to provide financial details of the badge sales, his offensive accusation that the general manager had sent a ‘stooge’, and the employee’s conduct in swearing at the general manager.

In the proceedings, the FWC was not satisfied that any of those reasons constituted a valid reason for dismissal. Specifically, it found:

  • that the failure to comply with the request for information was not of such gravity or importance as to constitute the rejection or repudiation of the employment contract; and
  • it was “an exercise of hair splitting” to suggest that the expression ‘effing’ had any less intent than ‘f***ing’, and in any event, the employee’s language was used in frustration and not directed with any aggression or threat, and it was in the context of a robust discussion between employees who otherwise had a good relationship.

On this basis, and in addition to its finding that the employee had not been provided any opportunity to respond to the reasons for his dismissal, the employee was found to have been unfairly dismissed.

The FWC considered it appropriate that the employee be re-instated noting his length of service and dedicated services to the welfare of pelicans, as well as the FWC’s view that the necessary trust and confidence in the employment relationship could be re-established.

Lessons for employers

Whilst the FWC conceded in this case that the matter was ‘somewhat trivial and insignificant’ noting the unusual nature of the employment, it also considered that any employee is entitled to pursue an unfair dismissal application regardless of the nature of their employment, provided that they satisfy the jurisdictional requirements.

It is, therefore, important that employers consider whether their reasons for dismissing an employee are valid and appropriate in all of the circumstances or whether, as was the case in this matter, less severe disciplinary action may be more appropriate.

Finally, we wish to share a light-hearted and humorous poem written by Dixon Lanier Merritt that the FWC considered paid sufficient tribute to the little-understood and rarely-studied pelican species:

A wonderful bird is the pelican,
His beak can hold more than his belican,
He can take in his beak,
Enough food for a week,
But I’m damned if I know how the helican!

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