Adam James Harley v Aristocrat Technologies Australia Pty Ltd
[2010] FWA 62
•7 JANUARY 2010
[2010] FWA 62 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Aristocrat Technologies Australia Pty Ltd
(U2009/10373)
COMMISSIONER DEEGAN | CANBERRA, 7 JANUARY 2010 |
Termination of Employment.
[1] The matter arises from an application filed on 15 July 2009 under s.394 of the Fair Work Act 2009 (“the Act”) by Mr Adam James Harley (“the applicant”) for relief in relation to the alleged termination of his employment by Aristocrat Technologies Australia Pty Ltd (“the respondent”).
[2] Following an unsuccessful conciliation conference, the matter proceeded to arbitration.
[3] Directions were issued by Fair Work Australia and the matter heard on 8, 9 and 23 October. At the hearing, Mr Bryce Cross of counsel appeared on behalf of the applicant and Mr John Murphy of counsel appeared for the respondent.
[4] The applicant gave evidence and evidence for the respondent was given by its employees:
- Mr John Frize NSW Metro Sales Manager
- Mr Ray Brown NSW/ACT Sales Manager
- Ms Sylvie Duncan Human Resources Manager and
- Mr Sean Evans General Manager
[5] The majority of the evidence was given by affidavit and each witness was available for cross-examination.
[6] In this matter the employer is not a small business and there is no issue of redundancy. There are two matters for consideration. The first is whether the applicant has been dismissed within the meaning of s.386 of the Act. If the dismissal is within that section then the second matter must be determined, that is whether the dismissal was unfair within the meaning of s.385 of the Act.
BACKGROUND
[7] The applicant, who held the position of Business Development Executive (BDE), had been employed by the respondent marketing electronic gaming machines since mid 2004. He resigned from his employment on Thursday 1 July 2009.
[8] On 30 June 2009 the applicant was handed a letter 1 of the same date signed by Mr Sean Evans, General Manager, Australia and New Zealand of the respondent which stated:
Over the past several months, we have raised several serious issues regarding your performance with you, most recently on 30th March 2009. On this last occasion, you were advised that any further breaches would result in serious action being taken, including possible termination.
On Tuesday 16th June 2009, we went through with you further customer complaints that had been raised and you proceeded to contact those customers directly which is unacceptable. We are viewing all of the aforementioned issues very seriously, and are considering terminating your employment pending a further meeting with you.
I note you have also raised issues of harassment and bullying by Ray Brown. These issues have been investigated and have been found to be unsubstantiated.
You are advised that you will be provided with the opportunity to answer and respond to these allegations, with a representative present should you wish. This meeting will be held on Wednesday 1st July 2009 at 3.00 pm at North Ryde, and you will be asked to show just cause as to why your employment should not be terminated. You will not be required to attend work between now and this meeting and you are required to leave your company provided laptop and blackberry with me immediately. Should you fail to attend this meeting, a decision may be made in your absence.
[9] On 1 July 2009 the applicant responded to that letter by handing Mr Evans a letter stating that he would not be attending the meeting scheduled for that day and tendered his resignation.
[10] It was the evidence of the applicant that he had performed his duties as a BDE in a competent manner throughout his employment with the respondent and was consistently one of the best performing sales people. He claimed that he was forced to resign his position with the respondent as a result of a “chain of events” and the receipt of “unfair and unjustifiable feedback” on his performance.
[11] Evidence was given that the applicant had had a series of meetings with his direct supervisor and the State manager concerning his performance. At each meeting he was given a letter which specified each of the concerns and a time within which he was required to address the matters raised. These meetings took place on 12 August 2008 2, 9 February 20093 and 30 March 2009.4
[12] It was the evidence of the applicant that the matters raised in each of the meetings were minor, unfair or unwarranted and a result of a course of “bullying and harassment” of him engaged in by the State manager, Mr Ray Brown. It was his evidence that Mr Brown appeared to be targeting him for an unknown reason and that he had raised this concern with the respondent on a number of occasions.
[13] According to the applicant’s evidence Mr Brown’s attitude to him was quite apparent, noticed by other employees and clients and remarked upon by his direct supervisor. Mr Brown would ignore him at functions and rarely acknowledged him unless it was to complain about some minor aspect of his performance. The applicant gave evidence that Mr Brown had attempted to prevent him taking seven days leave to represent Australia in an international rugby tournament despite the leave having been approved by his direct supervisor. Of most concern to the applicant was that he had applied for the leave two to three months before the trip but that Mr Brown had revoked the permission only days before he was due to leave, which would have been a major problem for the team for which he had committed to play. Mr Brown granted the leave but only after the applicant had taken his concerns to Mr Brown’s superiors.
[14] It was also put for the applicant that his performance as a BDE was good in the 12 month period (June 2008-June 2009) given the difficult circumstances under which all the BDEs were operating as sales of gambling machines had been impacted by the global financial crisis, the introduction of a smoking ban and the launch of some poor products in that time. Despite this he was criticised for not meeting his sales targets, when it was generally acknowledged that these were impossible to meet in the circumstances and when no other BDE was able to meet their targets but not subjected to the same criticism. It was claimed that the criticism of the applicant’s performance was valid as he had given a commitment to meeting his objectives when attempting to have Mr Brown’s refusal of his leave reversed. The applicant claimed that it was apparent to all concerned (including Mr Brown) that his targets (and those of all the BDEs) were impossible to meet in the circumstances.
[15] The applicant considered that the matters raised in each of the performance meetings were either very minor or unfair. Some of the matters raised related to events up to six months earlier which he considered had been resolved. He had responded to each of the matters and took the view that his responses had been accepted by his direct supervisor Mr Frize.
[16] Following the third meeting on 30 March 2009, in early April the applicant was so concerned by the “harassment” which he considered was initiated by Mr Brown that he raised his concerns with Mr Sean Evans, a manager senior to Mr Brown. 5 Despite this no action was taken to deal with his concerns. Mr Evans seemed to believe that the applicant and Mr Brown should resolve their problems themselves.6
[17] On 16 June the applicant met with Mr Jowett for coffee. Mr Jowett mentioned that a complaint had been made against him by a customer and the applicant informed Mr Jowett of his concerns about Mr Brown (who had apparently told Mr Jowett of the complaint). As a result Mr Jowett scheduled a meeting for the applicant with Mr Evans and Ms Duncan, the Human Resources Manager. This meeting occurred in the afternoon of 16 June. At the meeting, the applicant detailed his concerns about Mr Brown’s attitude to him.
[18] Following the meeting the applicant sent an email 7 to Mr Evans, Ms Duncan (copied to Mr Jowett and Mr Jamie Odell, Chief Operating Officer) in which he reiterated his concerns about Mr Brown, informed them that the customers whom Mr Brown had claimed were complaining had denied any dissatisfaction with him and responded to a number of the other complaints made about him by Mr Brown at the performance meetings.
[19] The next occasion the applicant was contacted by Mr Evans was when he was given the letter of 30 June. At the same time he was requested to hand over his laptop and his mobile phone and leave the premises. After considering his position he prepared the letter of resignation which he handed to Mr Evans prior to the meeting scheduled for 1 July.
JURISDICTION
[20] Section 386 of the Act provides:
Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
[21] As there is no question that the applicant resigned his position as a BDE with the respondent the question for determination is whether the applicant was forced to resign because of the conduct or a course of conduct engaged in by the employer.
[22] In light of all the evidence in this matter I have reached the view that the applicant was forced to resign his employment.
[23] I have considered the evidence of the applicant, which I accept in full. The applicant’s evidence was clear and concise. He was not evasive and answered truthfully all questions, including those which did not reflect favourably on him. Where there is any discrepancy between the evidence of the applicant and that of any other witness I prefer the evidence of the applicant.
[24] I found the evidence of Mr Brown less than convincing. His answers were evasive or non-responsive. His answers about the distance between his position and that of the applicant were not consistent with the hands on management style he adopted in relation to matters of leave and performance. He was involved in, and appeared to be the instigator of, all of the performance meetings held with the applicant. On the basis of the evidence of Mr Frize, in particular his oral evidence, it is apparent that he had very few real concerns with the applicant’s performance and was not in full agreement with Mr Brown’s dealings with the applicant. It was apparent that Mr Frize, in giving his evidence, was torn between his loyalty to the applicant (and in my view the truth) and his concern to support the respondent and not jeopardise his employment. For the most part, when pressed, his answers were a true account of the facts of the case. Ms Duncan was an unsatisfactory witness whose evidence was, although generally honest, indicative of an incomplete understanding of her role.
[25] For reasons which I deal with in detail in considering whether the applicant was unfairly dismissed, I have reached the view that the applicant was subject to a course of harassment at the hands of Mr Brown and that the respondent failed in its duty to deal with the applicant’s complaints concerning his treatment by Mr Brown. I have also determined that given the attitude of the respondent to his complaints, the lack of any real investigation and the offhand dismissal of them in the respondent’s letter of 30 June, the applicant was forced into a position where he had no choice but to resign. It was clear from the terms letter of 30 June 2009 that he was unlikely to receive a fair hearing at the meeting on 1 July. In addition, given he had been required to return his laptop and mobile phone in advance of that meeting, it was apparent that the decision to terminate his employment had been made. The course of conduct engaged in by the respondent had left the applicant with no choice but to resign.
[26] As the applicant was forced to resign as a direct consequence of the course of conduct engaged in by the respondent there is a dismissal within the meaning of s.386(b) of the Act and Fair Work Australia (FWA) has the necessary jurisdiction to deal with the application.
WAS THE DISMISSAL UNFAIR?
[27] As already noted the applicant has been dismissed within the meaning of the Act, this is not a matter of a genuine redundancy and the Small Business Code has no application so the dismissal will be unfair if it is harsh, unjust or unreasonable. 8
[28] Section 387 of the Act provides as follows:
Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
Valid reason
[29] In deciding whether there was a valid reason for the dismissal it is necessary to consider whether the matters raised by the respondent about the applicant’s performance provided sufficient reason.
[30] Those matters were set out in the letters of 11 August 2008, 9 February 2009, 30 March 2009 and 30 June 2009 and included
- The use of his mobile phone
- His late completion of a training module
- His attitude to the Newcastle Hub and the Credit department
- His failure to meet his objectives in the last quarter of 2008
- Storage
- Customer Satisfaction Ashfield RSL
- Customer satisfaction concerning a lack of calls
[31] So far as the applicant’s use of his mobile phone was concerned I accept the evidence that, in accordance with the prevailing policy of the respondent (of which few if any of the respondent’s witnesses seemed to be aware, including the HR Manager, Ms Duncan, who prepared the relevant letters to the applicant) he paid for his personal calls when requested. His evidence was that he cut down his calls as required and no evidence was called by the respondent to refute his claim. That he took his mobile phone to Bermuda on the rugby trip was understandable. He paid for all his personal calls. What is hard to understand is Mr Brown’s request that he not do so. Such a demand does not sit well with Mr Brown’s stated reasons for attempting to prevent the applicant taking leave at that time, or his supposed concern for sales. It is indicative of Mr Brown’s unreasonable attitude to the applicant. In the circumstances the applicant should have been encouraged to take the phone and be available for clients. While the applicant was paying for personal calls in accordance with company policy, the requirement that he leave his phone behind was both unreasonable and petty.
[32] Clearly the applicant did not complete one mandatory training module on time. He explained that he had had a problem with his computer and his explanation was not seriously challenged by the respondent’s evidence. The evidence of Mr Frize supported that of the applicant. In the absence of any pattern of behaviour of this type this one-off complaint gives the impression of dredging for something to complain about.
[33] While I am prepared to accept that the applicant’s attitude to the credit department may have merited some response from the employer it is clear on the evidence that this behaviour occurred prior to the meeting in August 2008, and that no further complaint was made in any later meeting. The applicant appears to have heeded the advice given to him by management. So far as his attitude to the deficiencies of the Newcastle Hub is concerned I do not accept that a remark that he was “perplexed” 9 by their continual mistakes was beyond the bounds of reasonable comment, particularly given the importance of accuracy to the business, the clients and his performance. Mr Brown’s attitude to the applicant’s use of the word “perplexed” is again more of an indication of his overall unreasonable and petty attitude to the applicant than some real deficiency in the applicant’s conduct or performance. The matter seems to have been escalated beyond its level of importance in order to give Mr Brown some reason to complain about the applicant when it was clear that his sales performance would not provide a reason.
[34] The applicant’s failure to meet his sales objectives for the last quarter of 2008 was a major part of the complaint about his performance. As already noted it was based on the applicant’s written commitment to meet his objectives when he was pressing to have Mr Brown’s refusal of his leave overturned. The commitment given by the applicant in early November 2008 must be seen in the context in which it was given and the overall sales environment.
[35] So far as the context of the commitment is concerned I accept the applicant’s evidence that he formally applied for leave to undertake the rugby trip and believed that his leave had been approved by his direct supervisor Mr Frize. I also accept his evidence that it was not until 30 October, a matter of days before he was due to leave, that Mr Frize informed him that Mr Brown had not approved the leave and that he could not go. The letter sent by the applicant to attempt to have Mr Brown’s refusal changed is, in my view, a clear and contemporaneous account of the events which occurred. I accept that Mr Brown changed his mind about the leave but I consider that it was only as a result of the letter that the applicant wrote (and copied to Mr Brown’s superiors) that Mr Brown’s attitude to the leave changed. Mr Brown may have realised that his attitude to the leave was unreasonable and have been concerned that more senior management might also be of that view. I do not believe that his change of attitude was any indication that he was not harassing the applicant.
[36] The evidence 10 (including that of Mr Brown and Mr Frize) supports the applicant’s claim that his failure to meet his objectives in the final quarter of 2008 was a result of circumstances beyond his control. In full knowledge of this Mr Brown included this failure in the list of complaints made against the applicant in February 2009. Under cross-examination Mr Brown was forced to admit that no BDE met their targets for that quarter and that the BDE he originally claimed had met his targets had failed to do so by a larger amount than the applicant.11 Mr Brown also acknowledged that the overall result for the quarter was very good in the circumstances.12 When viewed as part of the overall result the applicant’s contribution must also be rated as very good as the proportion made of his target was greater than the proportion of the overall target met for the quarter. Once again Mr Brown’s unwillingness to acknowledge this fact, and to complain about the applicant’s failure, is an indication of the unreasonableness of his attitude to the applicant.
[37] The applicant’s evidence was that there was no substance to the complaint concerning storage and that this had been crossed off the list at the meeting on 30 March 2009. While Mr Frize denied that he had crossed the storage matter off the list he conceded that there was no substance to the complaint. 13
[38] So far as the various complaints from customers were concerned the applicant refuted the Ashfield RSL matter 14, noting that that client had been transferred to another BDE towards the end of 2008.While Mr Frize denied this, his evidence was not clear and it was apparent that the applicant’s understanding was most likely correct. Mr Frize eventually accepted that the transfer had occurred towards the end of 2008 although his calendar showed it was March 2009.15
[39] In relation to other customer complaints, where actually specified, they appeared to be very few and of a minor nature. None of them appeared to merit the sort of performance counselling and warning letters given to the applicant. My understanding of Mr Frize’s evidence was that he took the same view. 16 He stated on a number of occasions that he had no problems with the applicant’s performance or “numbers”17 and would have taken a different approach to that adopted by Mr Brown.18 He did not write the letters, they were prepared by “HR” prior to the meetings and without any consideration of the applicant’s responses to the matters raised. What was appended to the applicant’s record was a number of allegations with no indication of the responses he had made to the matters raised. It was clear from the evidence that the matters were, for the most part, either wrong, minor or related to events which occurred months prior to being raised.
[40] The final issues raised about the applicant’s performance were put to him on 16 June 2009 at the meeting attended by the applicant, Mr Evans and Ms Duncan. It was put that a number of customers had complained about the applicant. The applicant was surprised to learn which of the customers had made complaints as he considered he had a good relationship with each of them. 19 The applicant disputed the allegations and told Mr Evans and Ms Duncan that Ray Brown had a vendetta against him. Mr Evans told the applicant that his complaint about Mr Brown would be investigated.20
[41] On the same afternoon the applicant sent an email to Mr Jowett (copied to Mr Evans) referring to his meeting with him that morning and noting that he was sensitive to the fact that he “always seem to be on the wrong side of Ray no matter what I do”. On 19 June the applicant sent an email to Mr Evans and Ms Duncan (copied to Mr Jowett and Jamie Odell) on 19 June 2009 noting that he had contacted a number of customers who had expressed their satisfaction with him and indicating that he believed he was being undermined by Mr Brown and Mr Frize. He requested that an objective person contact these customers and others for their feedback on his performance. He also noted that a number of clients who were supposedly dissatisfied with him had changed to other BDEs twelve months or more before the date of the email. In that email the applicant noted that Mr Evans and Ms Duncan were “coming back” to him in early July 2009.
[42] In the “show cause” letter of 30 June, Mr Evans noted that a number of performance matters had been raised with the applicant “most recently on 30 March 2009” and that he had been warned that any further breaches could result in serious action including termination. The letter referred to the meeting of 16 June 2009 and the customer complaints and then stated “you proceeded to contact those customers directly which is unacceptable”. Additionally the letter referred to the applicant’s complaints about Mr Brown stating that they had “been investigated” and had been “found to be unsubstantiated”. The letter advised the applicant he would have a chance to respond to the allegations at a meeting the next day but was not required to work in the meantime and should deliver his laptop and blackberry to Mr Evans immediately.
[43] Clearly the letter of 30 June was requesting the applicant to show cause: why he should not be terminated for contacting customers about the complaints they had supposedly made about him. He had told the company that he had done that and asked them to investigate further on 19 June 2009. No action was taken following the applicant’s email of 19 June until the letter of 30 June. Mr Evans’ evidence was that he may not have read the email of 19 June until 24 June as he was on leave. The email was copied to Ms Duncan, Mr Jowett and Mr Odell but no action was taken or initiated by any of those persons even though it was clear the applicant had contacted customers. Mr Frize’s evidence was clear that he had no difficulty with the applicant talking to customers about concerns they may have had with him 21. Overall the evidence supports the conclusion that no-one copied into the applicant’s email of 19 June was particularly concerned by the applicant’s actions in contacting the customers when initially advised that he had done so. Certainly the only person who had ever indicated that the applicant should not contact customers who had made complaints about him was Mr Brown, and this was only in the context of the particular customer having denied making any complaint to Mr Brown.
[44] I am prepared to accept that at least some customers may have made complaints, real and imagined, against the applicant. Some of those complaints may have been a result of his actions and some may have been the fault of others. Certainly it was the evidence of Mr Evans 22 that customers had made complaints about Mr Brown and Mr Frize.
[45] I am reluctant to put any great weight on the customer complaints given that the evidence was not direct, and that I accept that Mr Brown had been “targeting” the applicant and that it was he who raised these alleged complaints. For understandable reasons the respondent was reluctant to summons the relevant customers who, apparently, were not prepared, voluntarily, to give evidence. A number of those who supposedly complained about the applicant were, however, prepared to sign references for him 23, apparently with the knowledge that the references could be used in the dismissal proceedings.
[46] Another reason that I put little, or no, weight on the alleged customer complaints is because the respondent took no action to do an independent investigation of them. According to Mr Evans this was because they had already been approached by the applicant so their views would be tainted. I find this reason unacceptable. An investigation, as requested by the applicant, should have been carried out. Mr Brown’s unsubstantiated allegations should not have been accepted without further evidence given the applicant’s complaints about him, both in June and in April.
[47] A proper investigation should also have been conducted into the applicant’s allegations about Mr Brown. It was clear on the evidence of Ms Duncan that she was either uninterested in investigating the complaints properly or had no idea how to conduct such an investigation. That Ms Duncan notified senior management that the applicant’s claims were unsubstantiated having interviewed no-one (including the applicant and Mr Brown) about those claims is beyond belief. The very odd survey of other BDEs that she did conduct (concerning their relationship with Mr Brown) was of no assistance and could not have enabled her to reach such a conclusion.
[48] Taking all the above into account I find that there was no valid reason for the termination of the applicant’s employment. Clearly he performed his role as a BDE well under very trying internal, and external, circumstances. I accept that he was subjected to a deal of harassment about petty matters and treated poorly by Mr Brown despite performing as well as, or better than, most of the other BDEs.
Was the applicant notified of that reason
[49] It could be said that the letter of 30 June 2009 notified the applicant of the reason for the dismissal. It referred to the earlier performance meetings and indicated that the applicant’s contact with customers who had supposedly complained about him was “unacceptable”. This would only have some weight had the reasons for the dismissal been valid.
Opportunity to respond
[50] Similarly although the letter of 30 June 2009 purported to allow the applicant an opportunity to respond to the matters raised this was clearly an opportunity in form only, with any response by the applicant likely to meet with the same attitude as did his response to the meeting on 16 June 2009.
Support person
[51] There was no evidence that the applicant was either offered or unreasonably denied a support person at any of the performance meetings except the final meeting on 1 July 2009.
Warnings about unsatisfactory performance
[52] Clearly letters of warning were given to the applicant but these were unwarranted in the circumstances.
Size of the employer’s enterprise
[53] The respondent is a large multi-national company that has no excuse for the deficiencies in procedure which accompanied the termination of the applicant’s employment.
Absence of dedicated human resource management specialists or expertise
[54] The applicant has dedicated human resource management specialists and, again, has no excuse for the appalling manner in which this entire matter was handled.
Other relevant matters
[55] I have taken into account the fact that the applicant had diligently performed his duties with the company for a period in excess of 5 years. In his April 2008 Remuneration Review, only four months prior to his first “warning” letter the applicant’s salary and sales commission were increased. The letter notifying the applicant of the outcome of the review was signed by Mr Ray Brown as NSW/ACT Sales Manager and included a comment that the applicant’s “personal contribution is highly valued” and thanking him for his contribution in 2007.
[56] I have also had regard to the matter of the applicant claiming to be sick for three days in order to take a trip to Byron Bay connected with his wedding plans. This is not a matter that was known to the respondent at the time of the termination. The applicant was candid in his evidence about this episode. I accept his version of events and am satisfied that Mr Frize gave tacit approval to his conduct as he was aware that, given Mr Brown’s attitude to the applicant he would not have granted the leave sought by the applicant (albeit for only 3 days). Mr Frize denied that he approved of the applicant’s conduct but the evidence was clear that he knew where the applicant was but took no action to bring the matter to the attention of the company. My view of this matter is that it was appalling that both the applicant and Mr Frize were reduced to resorting to such subterfuge as a consequence of Mr Brown’s unreasonable and unwarranted attitude to the applicant.
CONCLUSION
[57] Taking into account all the matters set out above it is my view that the applicant’s dismissal was unfair.
REMEDY
[58] Sections 390, 391 and 392 of the Act deal with the matter of remedies for unfair dismissals.
[59] Pursuant to s.390 I am satisfied that the applicant is a person protected from unfair dismissal and has been unfairly dismissed. The applicant has made an application under s.394.
[60] The applicant is seeking reinstatement to his former or another equivalent position. The respondent does not wish to have the applicant reinstated. A period of six months has passed since the applicant’s dismissal and as at 23 October 2009 the applicant had not gained new employment. Given the number of employees of the company that have had an involvement with this matter and the applicant’s stated desire prior to his termination to “move on”. 24 I am satisfied that reinstatement is not appropriate in this case. In particular, I do not consider it in the applicant’s interests that he return to a position ultimately responsible to Mr Brown. There was no evidence that any other position, not responsible to Mr Brown, was either available or appropriate to the applicant’s skills and qualifications.
[61] Although I am satisfied that reinstatement of the applicant is inappropriate I am satisfied that the applicant should be compensated in lieu of reinstatement.
[62] In relation to the matters set out at s.392(2) I find:
- There is no evidence that any order I make will affect the viability of the respondent’s business and given the size of the company it is extremely unlikely
- The applicant was employed for a period of 5 years by the respondent
- It is difficult to determine the amount of remuneration the applicant would have received had his employment not been terminated (given that a large part of his remuneration was dependent upon sales) but the respondent has suggested that a figure could be agreed 25
- I am of the view that had the applicant’s employment not terminated he probably would have remained employed by the respondent for at least another year, as his other employment opportunities would have been reduced as a result of the global financial crisis, and his sales performance was such that there would have been no reason for him not to remain employed
- The applicant’s evidence was that he had attempted to find other employment but had been unsuccessful
- The applicant had earned no remuneration from other employment as at the final hearing date (23 October 2009) but this may have changed since that date.
[63] I have also taken into account that, given the global financial crisis, the applicant’s employment ended at a very difficult time for persons engaged in sales.
[64] I do not believe that the applicant’s misconduct in claiming to be sick in order to obtain the leave necessary for the Byron Bay trip should be taken into account as this matter did not contribute to the employer’s decision to dismiss the applicant. 26
[65] I intend to make an order that on or before 29 January 2010 the respondent is to pay to the applicant a sum equivalent to six months remuneration (as agreed between the parties or as determined by FWA, if necessary ) in lieu of reinstatement. That amount is to be reduced by any amount earned by the applicant from other employment prior to 29 January 2010. The order is published separately.
Appearances:
Mr Bryce Cross of counsel for the applicant
Mr John Murphy of counsel for the respondent
Hearing details:
Sydney
8-9, 23 October 2009
Decision Summary
TERMINATION OF EMPLOYMENT – merit – performance – harassment – s394 Fair Work Act 2009 – salesperson dismissed for alleged poor performance – respondent asserted that clients had complained about applicant and that applicant had inappropriately contacted such clients regarding their complaints – however respondent failed to investigate alleged complaints – no valid reason – satisfied applicant performed as well as, or better than, other salespersons under very trying internal, and external, circumstances – satisfied applicant was harassed and treated poorly by manager – warnings were given - however warnings were unwarranted – reinstatement inappropriate – applicant employed 5 years – respondent to pay 6 months compensation less any amounts earned by applicant since termination from other employment. | ||||
Harley v Aristocrat Technologies Australia P/L | ||||
U2009/10373 | [2010] FWA 62 | |||
Deegan C | Canberra | 7 January 2010 | ||
Citation: Harley v Aristocrat Technologies Australia P/L [2010] FWA 62 (7 January 2010) | ||||
1 Exhibit H1, annexure L.
2 Exhibit H1, annexure D.
3 Exhibit H1, annexure H.
4 Exhibit H1, annexure I.
5 Exhibit A8, paragraph 8.
6 Exhibit A8, paragraph 8.
7 Exhibit H1, annexure K.
8 Fair Work Act 2009, s.385.
9 Exhibit H1, paragraph 17.
10 PN890, PN1453, PN 1456, PN2268.
11 PN2226-2246.
12 PN2276; PN2249.
13 PN1524.
14 PN1492; PN1493; PN1507.
15 PN1493.
16 PN 1457; PN1462; PN 1524 ; PN1627.
17 PN1300-PN1304.
18 PN1627.
19 Exhibit H1, paragraph 57.
20 Exhibit A8, paragraph17.
21 PN1624-1625
22 Exhibit A8, paragraph 10.
23 Exhibit H1, annexures J and R.
24 Exhibit A8 “SE1”.
25 PN3393.
26 Fair Work Act 2009, s.392(3).
Printed by authority of the Commonwealth Government Printer
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