Adrian Watkin v Bill Buckle Autos Pty Ltd T/A Bill Buckle
[2018] FWC 5825
•23 OCTOBER 2018
| [2018] FWC 5825 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adrian Watkin
v
Bill Buckle Autos Pty Ltd T/A Bill Buckle
(U2018/5840)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 23 OCTOBER 2018 |
Application for an unfair dismissal remedy – various allegations of poor performance and misconduct – warning given – some allegations substantiated – valid reason found – procedural fairness - dismissal not unfair – application dismissed.
[1] On 6 June 2018, Mr Adrian Watkin (the applicant) applied to the Fair Work Commission for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of his employment by Bill Buckle Autos Pty Ltd T/A Bill Buckle (Bill Buckle) (the respondent) on 17 May 2018.
[2] The application was subsequently referred to me for determination. I conducted a telephone hearing in relation to an order to produce documents on 8 August 2018 and a substantive merits hearing on 12 September 2018. At the substantive hearing, the applicant represented himself and the respondent was represented by Mr G Dagg with the assistance of Ms H Cromie. Neither party sought permission under s.596(2) of the FW Act to be legally represented at hearing.
The evidence
[3] The applicant filed an outline of submissions dated 12 September 2018 and also sought to rely on a number of documents provided to the Commission under a Notice to Produce issued on 24 July 2018 (amended on 8 August 2018), which were tendered at the hearing. 1 Those documents included the following:
• copies of the respondent’s investigation report into the applicant and Mr Andrew Brown;
• various email and text message correspondence between the applicant, Mr Brown and Ms Cromie in relation to the allegations against the applicant and subsequent investigation;
• various documents in relation to the investigation of both the applicant and Mr Brown, including notes of Ms Cromie’s interview with the applicant, Mr Brown and Mr David O’Brien;
• a copy of an email from Mr Brown to various staff members dated 17 November 2017 raising an issue with performance of the business;
• various email and text correspondence between the applicant, Mr Brown and other employees in relation to a workplace incident that occurred on 18 August 2017;
• a copy of a written statement by Mark Collett and written notes by the applicant dated 18 August 2017 in relation to a workplace incident;
• a copy of an email from Mr Brown to various staff members dated 19 August 2017 in relation to compliance with the ‘Zooper Agreement’;
• a copy Mr Raywood’s interview notes with the applicant and various other employees dated 21 August 2017 in relation to a workplace incident;
• a copy of email correspondence between Mr Brown and Mr Raywood dated 18 August 2017 in relation to the applicant’s compliance with workplace policies.
[4] The applicant also relied on and tendered the various documents that constituted his reply material, 2 which he catalogued under the following headings:
• ‘Important Facts’: text and email correspondence in relation to the applicant’s termination, relationship with other staff members (in particular Mr Brown) and general performance. Included is a medical certificate dated 29 August 2018;
• ‘Zooper’: text and email correspondence in relation to the applicant’s concerns and compliance with the ‘Zooper Agreement’, as well as his relationship with other staff members (in particular Mr Brown);
• ‘Mark Rothschild’: text and email correspondence between the applicant and others in relation to Mr Rothschild’s conduct, performance and termination;
• ‘General Daily Demeanour’: text and email correspondence in relation to Mr Brown’s demeanour and conduct towards the applicant;
• ‘Evidence of increased workload’: email correspondence in relation to the applicant’s workload;
• ‘Micromanagement’: email correspondence from Mr Brown to the applicant in relation to various tasks;
• ‘David O’Brien’: text correspondence between the applicant and Mr O’Brien.
[5] The applicant was examined and cross-examined in relation to his evidence.
[6] The respondent relied on its outline of submissions which were also tendered at the hearing. 3 Annexed to the submissions were the following documents:
• the applicant’s letter of appointment dated 22 April 2016 and documents relating to the commencement of employment, such as the applicant’s tax file declaration;
• a copy of an email from Ms Cromie to the applicant dated 11 May 2018 setting out the various allegations that resulted in his dismissal;
• a copy of a ‘show cause’ letter from Ms Cromie to the applicant dated 15 May 2018;
• a copy of the notice of termination of employment letter from Ms Cromie to the applicant dated 17 May 2018;
• a copy of the unsigned written warning about his performance and conduct from Mr Brown to the applicant dated 23 October 2017;
• email correspondence between the applicant and Mr Brown dated 24 February 2018 in relation to a number of issues pertaining to their working relationship;
• a copy of Tracey Smiles witness statement dated 23 August 2018 also tendered at the hearing. 4
[7] Mr Cromie, Mr Moran, Mr O’Brien, Ms Smiles, Mr Brown, Mr Dagg and the applicant appeared before the Commission to give oral evidence.
[8] The applicant’s material, in summary, comprised of a number of documents that set out his grievances in relation to various Bill Buckle processes and procedures as well as his terse relationship with Mr Brown. Bill Buckle was heavily reliant on the investigation report that it relied on to dismiss the applicant.
Background
[9] The applicant has been employed by Bill Buckle since 2 May 2016 as a Used Car Sales Manager (UCSM). The applicant reported to Mr Brown, the Dealer Principal of Bill Buckle, until the date of his dismissal.
[10] Although there were multiple references to the applicant’s position description in the hearing, neither party submitted a written copy of the position description. The applicant’s letter of appointment dated 22 April 2016 was not helpful in this regard. Nonetheless, I have gleaned from the witness evidence and written material filed that the applicant was generally responsible for managing used car sale operations, 5 which included the appraisal and disposal of trades, purchase of stock, reconditioning, display and merchandising of used vehicles in the dealership.6 There was a managerial aspect to the applicant’s role; he was responsible for a small team of Used Car Sales Consultants (UCSC).7
[11] The applicant received a written warning dated 23 October 2017 in relation to issues concerning his performance and conduct. The warning, which the applicant refused to sign, reads as follows:
‘Adrian
RE: Written warning
Following on from today’s discussions with myself and Tracey Smiles you are now being issued with a formal written warning as follows:
Adherence to company processes and procedures as they relate to car care and finance introduction must be followed at all times. There has been a poor history of non-performance by your department, which impacts the company financially, in this regard and it must change immediately.
Secondly, you must cease from sending inappropriate emails to follow employees, particularly on issues that are not under your control. In the event that you are not happy with something outside your scope of authority you should bring it to my attention.
Finally, you need to show more respect to your fellow employees in your dealings with them and swearing is not to be tolerated. Staff deserve to be able to come to work and not be intimidated and spoken to poorly.
We will continue to monitor the above. In the even that the processes do not improve, or a similar repeat of today’s situation arises, this may well lead to termination.
I trust we don’t get to that situation and you take this warning with the seriousness it deserves.
Kind Regards,
Andrew Brown
Dealer Principal’
[12] The applicant was dismissed on 17 May 2018 for poor performance and misconduct. This followed an investigation by Ms Cromie with the assistance of Ms Smiles of various allegations made against the applicant. Bill Buckle has reiterated that the investigation was independent in the sense that Mr Brown, with whom the applicant had a terse relationship, was not involved.
[13] The applicant contacted Ms Cromie on 7 May 2018 to advise that Mr Brown had requested his attendance at a performance meeting and that he would like to lodge a complaint in relation to Mr Brown. Ms Cromie met with the applicant and Mr Brown in Sydney on 10 May 2018 to address their concerns. Mr Cromie then launched an investigation into the applicant, and on 11 May 2018 provided the applicant with the following written outline of the allegations:
‘Hi Adrian,
Thank you for your email. As discussed, throughout the course of my investigation into the allegations you raised against Andrew Brown, allegations have been identified in relation to your behaviour which need to be concurrently addressed.
I refer to our meeting today, on 11 May 2018, where I met with you to discuss alleged behaviour by you in order to give you an opportunity to respond. The specific allegations discussed are set out below:
1. It is alleged that as Used Car Manager you are accountable for the delivery and overview of used car deals and that vehicles have been delivered to customers without the required inspections being completed, placing customer safety at risk and the business at risk of reputational damage.
2. It is alleged that you have refused to perform components of your role, specifically not performing valuations of potential trade-ins resulting in the business requiring to engage a third-party.
3. It is alleged that you breached the Zooper Agency Agreement and were uncooperative in your dealings with another AP Eagers business in that you refused to return the calls of a Kloster business in the sale of a Rav4 / advised that you would not process the vehicle to them.
4. It is alleged that you have been inappropriate in your communications between departments, specifically that you were terse / rude in response to Sam Samarakoon on 3rd May stating your time was being wasted
5. It is alleged that you have breached Company Policy through refusing to complete 3 point calls for internet lead bookings leading to potential loss of financial income.
6. It is alleged that you have breached company procedure by failing to ensure the completion car care introductions of less than 50% (per pro-log data) resulting in reduced financial income for the business.
7. It is alleged that you have failed to follow a lawful and reasonable company directive in that you have continued to wholesale vehicles to Alliance without approval
8. It is alleged that on 10th April 2018, you referred to Raj Premachandra as ‘Blackie’ within a management meeting
We take these matters seriously, and should the above allegations be substantiated, this may lead to disciplinary action, up to and including termination of your employment. Please be assured that I have taken note of your responses provided today and your opinions raised in relation to these allegations. These will be taken into consideration during the course of making any determinations about the above raised matters.
At this time, I would also like to remind you of your obligations in relation to confidentiality, victimisation and retaliation. You must refrain from any contact or discussion in relation to this investigation with employees or anyone you suspect may have raised these allegations against you. Any unauthorised discussion in relation to
these allegations or any attempt to disrupt or influence the outcomes of the investigation may result in separate and subsequent disciplinary action, up to and including termination of your employment.
Adrian, I appreciate this is a difficult time for you and hence as earlier provided, please take consideration of the Employee Assistance Program (EAP). This is a confidential counselling service provided by Access EAP which you can access directly on 1800 818 728.
Should you have any further comments that you wish to add please provide this information by Monday 13th May.
Yours sincerely
Hazel Cromie
General Manager – People & Safety’
[14] The applicant met with Ms Cromie on 12 May 2018 to further discuss the investigation. Bill Buckle submits that the applicant was afforded the opportunity to bring a support person to the meeting but declined to do so. Following that meeting, Ms Cromie then wrote to the applicant on 15 May 2018 to advise that the allegations had been established on a balance of probabilities and requested the applicant show cause as to why his employment should not be terminated by 8.00am on 17 May 2018:
‘Dear Adrian,
RE: Continuation of Employment
I am writing to you to confirm the outcome of our meeting on 11 May 2018 regarding the Company’s investigation into allegations of inappropriate workplace conduct by you. I note that you declined the opportunity to bring a support person to our meeting.
As previously communicated to you via email the specific allegations are set out below:
1. It is alleged that as a Used Car Manager you are accountable for the delivery and overview of used car deals and that vehicles have been delivered to customers without the required inspections being completed, placing customer safety at risk and the business at risk of reputational damage.
2. It is alleged that you have refused to perform components of your role, specifically not performing valuations of potential trade-ins resulting in the business requiring to engage a third-party.
3. It is alleged that you breached the Zooper Agency Agreement and were uncooperative in your dealings with another AP Eagers business. Specifically, that you refused to return the calls of a Kloster business in the sale of a Rav4, advised that you would not process the vehicle to them and indicated unwillingness to allow them to have vehicles.
4. It is alleged that you have been inappropriate in your communications between departments, specifically that you were terse / rude in response to Sam Samarakoon on 3rd May stating your time was being wasted.
5. It is alleged that you have breached Company Policy through refusing to complete 3 point calls for internet lead bookings leading to potential loss of financial income.
6. It is alleged that you have breached company procedure by failing to ensure the completion car care introductions of less than 50% (per pro-log data) resulting in reduced financial income for the business.
7. It is alleged that you have failed to follow a lawful and reasonable company directive in that you have continued to wholesale vehicles to Alliance without approval.
8. It is alleged that on 10th April 2018, you referred to Raj Premachandra as ‘Blackie’ within a management meeting.
In our meeting on 11 May 2018 you were given the opportunity to respond to these allegations. Further to this, you were afforded the opportunity to provide an additional response by Monday 14th May 2018, however as yet, the business has not received any further correspondence from yourself.
As such, based on the evidence available, inclusive of your responses, witness accounts and company documentation, processes and procedures, all eight allegations have been substantiated on the balance of probabilities.
On review of your employment history, similar concerns have been addressed with you previously, specifically, in relation to car care and financial requirements, and inappropriate communication with employees. I note that you were issued a formal warning as a result, dated 23 October 2017.
The Company considers your recent conduct to amount to inappropriate behaviour and a failure to adhere to company process. You have failed to act in the best interests of the Company, employees and customers and to meet the standard of behaviour expected of a leader in our business.
As a result, the Company is seriously considering the continuation of your employment.
In light of this, you are being requested to provide the Company with a response as to why your employment should not be terminated during a phone conference to be held at 1pm on Thursday, 17 May 2018. You will be forwarded telephone conference numbers for this meeting no later than 8am on Thursday 17 May 2018 and you are welcome to have a support person present should you wish. You may also provide in writing any additional response that you consider should be taken into account by the Company by 8am on Thursday, 17 May 2018 to [email protected].
I confirm that after this time, we shall consider all available evidence and your responses before making a financial decision with regard to these matters. We remind you that this request is considered to be a reasonable and lawful direction.
…
Yours sincerely,
Hazel Cromie
General Manager – People and Safety’
[15] Bill Buckle submitted that the applicant filed response material within the stipulated timeframe but did not attend the scheduled phone conference. Bill Buckle then dismissed the applicant on 17 May 2018, which was communicated in a letter that read as follows:
‘Private & Confidential
Adrian Watkin
Used Car Sales Manager
Bill Buckle
Delivered via email to: [email protected]
Dear Adrian,
RE: Termination of Employment
I write to confirm the outcome of our meeting held on 11 May 2018, regarding the Company’s investigation into allegations of inappropriate workplace conduct by you. I note that you declined the opportunity to bring a support person to this meeting. During this meeting you were given the opportunity to respond to the allegations. On the afternoon of 11 May 2018 you requested further detail of these allegations in writing which was provided to you via email on the same day. You were asked to respond with any further information by Monday 13 May 2018, no additional information was received.
The outcome of the investigation was provided to you on 15 May 2018 and you were informed that the allegations were upheld. You were advised that the Company was also considering disciplinary action which may include the termination of your employment. Also, on this date you were requested to participate in a phone conference to advise why your actions do not constitute misconduct warranting termination of your employment. A phone telephone conference was scheduled for today 17 May 2018 at 1:00pm to discuss your response. You were also afforded the opportunity to respond in writing.
I note that you advised via email late on 16 May 2018 that you would not be in attendance on this phone conference. Upon receipt of your email on 17 May 2018, I advised that it is a reasonable and lawful direction to have you participate in the phone conference, and that should you fail to attend, this would result in a decision being made in your absence with the information that the business has available to it.
As previously communicated to you the Company considers your recent conduct to amount to inappropriate behaviour and a failure to adhere to company process. You have failed to act in the best interests of the Company, employees and customers and to meet the standards of behaviour expected of a leader in our business.
In determining the outcome, the business has taken into account your response from our meeting on 11 May 2018 and your written response dated 16 May 2018. I have also considered your previous misconduct history, witness accounts and Company documentation, processes and procedures. However, the responses you have provided do not sufficiently mitigate your unacceptable behaviour.
The business has therefore lost trust in your ability to manage your behaviours in line with the Company’s expectations and has lost trust and confidence in your continuing employment with Bill Buckle.
Accordingly, this letter is to give you notice that your employment with the business is terminated with immediate effect. The business will pay you two (2) weeks salary in lieu of notice and you will not be required to work during this time. You will be paid all accrued entitlements (less applicable taxes) and you will be advised of the details of your final pay separately.
….
Yours sincerely,
Hazel Cromie
General Manager – People & Safety’
[16] The applicant’s case, in summary, proceeded on three main propositions: the various allegations relating to poor performance and misconduct were unsubstantiated; even if the applicant was found to have breached company policy or acted inappropriately, it was unfair to terminate his employment because Bill Buckle did not provide him adequate support to fulfil his role; the real reason the applicant was dismissed was because Mr Brown did not like him.
[17] The respondent’s case was that the various allegations of poor performance and misconduct were substantiated and thus it had a valid reason to dismiss the applicant. Further, the respondent submitted that it afforded the applicant procedural fairness in relation to the investigation and provided him with an opportunity to show cause as to why his employment should not be terminated. In summary, the respondent submitted that it followed due process in dismissing the applicant.
[18] I will first deal with the evidence surrounding the allegations against the applicant as relied upon by the respondent to dismiss him from his employment, followed by the applicant’s evidence and witness testimony in response to each allegation.
1. Allegation – Safety inspections (Allegation 1)
[19] The first allegation was that the applicant had failed in his role as a UCSM through the delivery of vehicles to customers without the requisite safety checks. The respondent particularised the allegation as a failure to detect that Mr Rothschild, a UCSC under the applicant’s control, had not performed safety checks prior to selling various cars.
[20] Twelve instances were discovered where Mr Rothschild had not performed the requisite safety inspections. He either failed to attach the appropriate safety inspection documentation to the sale transaction, generated a made-up inspection number to create the impression that a safety inspection had occurred, 8 or forged the signature of a client.9 The issue was discovered when a customer complained, which prompted the applicant to review Mr Rothschild’s sale transactions.10 Mr Rothschild was ultimately dismissed. The respondent stated in its investigation report that the applicant was accountable for Mr Rothschild’s wrongdoing for the following reasons:
• Vehicle listings from twelve deals completed by Mr Rothschild were without the requisite safety inspections;
• The applicant’s position description indicated he was responsible ‘for the appraisal, purchase, reconditioning, display and merchandising of used vehicles in the dealership’;
• Daily reports were issued to the applicant in relation to the sale of used cars, including whether a safety inspection had been performed.
[21] The respondent did not submit documents relating to the twelve instances, the applicant’s position description nor the reports at the hearing.
[22] The respondent submitted that the applicant was accountable on the basis that he signed off on Mr Rothschild’s sale transactions. It was also submitted that the applicant should have detected the wrongdoing prior to the complaint from the daily reports in relation the sale of used cars, which indicate whether a safety inspection has occurred. Ms Cromie gave evidence that the applicant’s position description clearly articulated that he was responsible for all transactions within his department, which necessarily involves close scrutiny of all transactions, including safety inspections.
[23] It was the applicant’s evidence that he could not be held accountable for Mr Rothschild’s wrongdoing as he was entitled to rely on him in good faith, particularly so given there was no indication prior to the customer complaint that Mr Rothschild was not following standard procedure in performing safety inspections. The applicant stated that it was not obvious from the transaction documents that he was required to sign off on as to whether a safety inspections had been performed; Mr Rothschild’s wrongdoing was not readily identifiable (particularly the made-up safety inspection numbers). The applicant submitted that absent any reasonable suspicion to suggest non-compliance with company procedure, it was not his role to scrutinise each transaction of Mr Rothschild (or any other employee) in full to ensure that safety inspections were correctly performed.
[24] Mr Dagg put to the applicant that it would have been obvious that Mr Rothschild was not conducting safety inspections as the various costs associated with them were missing from the documents that made up the transaction, for which the applicant was clearly responsible. The applicant conceded that it would have likely been detectable had he the time to scrutinise each transaction but due to his various tasks and responsibilities, to expect him to do so was burdensome and unrealistic. 11
[25] In relation to the management of Mr Rothschild, the applicant said he was difficult to deal with and that the applicant ‘had next to no authority’ with him. 12 However, the applicant continued to ‘tick and flick’ his various transactions, including those with incomplete safety inspections.13 In any event, the applicant reiterated that to be expected to scrutinise each sale report to ensure that the requisite safety check had been completed would have been impossible.14 The applicant summarised his position as follows:
‘…I was responsible for the sales, as the sales manager, for the delivery of the vehicles but I mean, ultimately, to how I can absolutely follow every persons every movement and check, you would like to think that there’s some trust. The moment I found out about it I did something about it, I reported it. In fact, I’d reported many things he’d done before and nothing had happened’. 15
[26] In reply, the applicant submitted various documents in relation to Mr Rothschild. 16 The general theme of the material was to establish that Mr Rothschild was a difficult and dishonest employee, particularly those documents that related to Mr Rothschild’s alleged criminal past as well as complaints in relation to his performance.
2. Allegation – Zooper Agency Agreement (Allegation 2)
[27] The second allegation was that the applicant breached the ‘Zooper Agency Agreement’ and was uncooperative in his dealings with another AP Eagers Ltd (the parent company) dealership in that he refused to return the calls of a Kloster business in the sale of a Toyta Rav4. The Zooper Agency Agreement is a company procedure that permits a used car sales person located at any of the respondent’s dealerships to sell a vehicle located at another dealership. The respondent relied on the following to substantiate the allegation:
• An email from the applicant to Mr Brown dated 4 May 2018 to the effect: ‘No I’m not letting it go. They have not followed the correct process and I have told you on many occasions I am not working my ass off for other dealerships’ ‘I won’t be sending them that car to them’.
[28] The respondent did not provide or tender the email at the hearing.
[29] Ms Cromie gave evidence that the applicant became heated with her when she investigated the allegation, and indicated to her that the car belonged to the applicant rather than Bill Buckle. 17 In response to a question from the applicant as to whether Ms Cromie spoke to another employee about the applicant’s non-compliance with the Zooper Agency Agreement, she responded that she did not ask for specific details about each time the applicant had complied or failed to comply.18
[30] Mr Moran confirmed that the Zooper Agency Agreement was company procedure that was known to staff but did not offer a personal account about each time the applicant had complied or failed to comply. 19
[31] The applicant raised that the Zooper Agency Agreement was not in evidence and accordingly it was difficult for the respondent to substantiate the allegation. Nonetheless, the applicant conceded that he ignored a voicemail that a Toyota Rav4 was sold pursuant to the Zooper Agency Agreement because the car had not been serviced. The applicant summarised his position as follows:
‘…the car was still being prepped. None of this had happened, they just said they'd sold the car. Well, that's a breach in the Zooper policy first, because you can't sell the car without the authority or knowing that it's actually available or that we actually had a deposit, anything could have happened, there was none of that. So I wasn't in a hurry to return their phone calls, I agree, I didn't return their phone calls, but as far as I'm concerned, the Zooper agreement was breached from the moment they said the car was sold. I think it's referenced in there by one of the emails of the selling dealer. They got the car, I've given up every other car with Zooper, there's at least four cars, when I've been asked for them I've given up. There was a car they asked for and it was sold, and I had another one the same. I said, "Look, I've sold, but I've got one exactly the same, it's not ready yet, you can have that if you want." I wasn't a fan of the Zooper process, but if they wanted it they got it, but that car wasn't there. I wasn't there on the day that it happened, nobody was interviewed in reference to that, at all. The Zooper agreement was breached prior to me breaching anything, so there is no agreement’. 20
3. Allegation – Terse communication (Allegation 3)
[32] The third allegation was that the applicant had been inappropriate in his communications in that he was terse in response to Mr Samarakoon on 3 May 2018, stating that he had wasted the applicant’s time. The respondent quoted the following email extracts from the applicant in the investigation report to substantiate the allegation:
‘Sam before you start sending emails and making me do things a third and fourth time please check your details…’.
‘Now if someone could tell me how I am going to get back the time I have wasted yet again follow this same stuff up and responding to your email’.
[33] I asked to view the emails but was advised by Mr Dagg that he did not have a copy. Accordingly, the emails were not tendered at the hearing.
[34] Ms Cromie gave evidence that she did not interview Mr Samarakoon.
[35] The applicant did not dispute that he sent the emails. Instead, he gave evidence that he was frustrated at Mr Samarakoon having asked the same question multiple times. 21
4. Allegation – Three point calls (Allegation 4)
[36] The respondent alleged the applicant failed and/or refused to comply with a company policy that requires three point calls to be conducted in relation to internet lead bookings. Mr Moran gave evidence that a ‘three point call’ was a process for contacting a customer to bring forward their appointment in the dealership to ‘get their finances set’. 22
[37] The respondent submitted that the applicant was responsible as a UCSM for allocating ‘leads’ to his small team of sales consultants to then perform three point calls. The respondent indicated that the applicant had either failed to allocate leads or hold his team accountable for their non-performance of three point calls, which was evidenced through reports of lower ‘finance penetration’ in the applicant’s department. 23
[38] The respondent did not tender the financial reports or specific examples of the applicant’s non-compliance at the hearing.
[39] Mr Moran gave evidence that there was a correlation between financial penetration and following the three point call process. 24 Ms Cromie explained that she compared the finance penetration of the applicant’s department to other used car sales departments in the Bill Buckle group.25 Accordingly, the respondent could be satisfied that the applicant was not passing on leads to his staff to then perform three point calls.
[40] Mr Moran stated that it was difficult to determine whether the applicant was allocating leads. 26 In response to a question from the applicant, Mr Moran indicated that he could not identify any specific deals or areas where the respondent had lost business as a result of the applicant’s alleged non-compliance with the policy.27
[41] The applicant refuted the allegation. He gave evidence that he referred leads to his team and also performed three point calls when time permitted. The applicant also sought to cast doubt as to whether the financial penetration reports were sufficient to establish his non-compliance with the policy. 28 Furthermore, the applicant indicated that strict adherence to the policy was impossible due to his substantial workload. The applicant was suspicious that the real motivator for this allegation was Mr Brown’s personal dislike for him, and summarised his position as follows:
‘…I've never refused - the thing says I refused to do it, nobody's presented anything, there's no documentation, there's no testimony saying that I refused to do three point calls, there's no reason’. 29
5. Allegation – Car care inductions (Allegation 5)
[42] The fifth allegation that the applicant breached company policy by failing to complete car care introductions of less than 50% (per pro-log data), resulting in reduced financial income for the business. The investigation report states that the allegation was substantiated based on the following evidence:
• ‘Q1 Results demonstrate 16.73% referral penetration against average of 70% group wide
• Q1 Salesperson referral rates at 6.67% to 12.90%’.
[43] The respondent also stated that the applicant was responsible, as UCSM, for ensuring that staff under his control perform car care introductions. The respondent did not tender the financial reports or specific examples of the applicant’s non-compliance at the hearing.
[44] Ms Cromie gave evidence that the allegation was substantiated on the basis of the low finance penetration reports as well as her interview with a car care consultant, Marlene. 30 This indicated that the applicant and/or his staff were not introducing customers to the customer care consultants.
[45] Ms Cromie stated that the applicant did not think introductions formed part of his role as UCSM. 31 However, Ms Cromie acknowledged that it was not a written company procedure but rather ‘the way of doing business in the automotive industry’.32 Mr Moran gave evidence that the respondent had two car care consultants, which was a sufficient staffing level, and it was reasonable to expect the applicant to introduce new customers to them.
[46] It was the applicant’s evidence that car care is not a common feature of a used car sale. Nonetheless, the applicant indicated that he performed care care introductions when available to do so. 33
6. Allegation – Valuations (Allegation 6)
[47] The respondent alleged that the applicant refused to value potential trade in vehicles, which was a feature of his role as UCSM. The respondent relied on the following evidence to substantiate the allegation:
• email from Jordan Howarth dated 5 May 2018 (presumably to Ms Cromie) advising that the applicant had refused to value a used vehicle because ‘he had enough of doing it and was sick of them ringing him for more money on cars’.
• email from the applicant to Mr Brown dated 4 May 2018 stating as follows: ‘Can I assume you’ll be handling all the valuations from here because I won’t be’.
• Interview with Ms Cromie and Ms Smiles on 10 May 2018 where the applicant advised that he did not do valuations on the weekend of 5 – 6 May 2018.
[48] The two emails were tendered at the hearing. 34 Ms Cromie gave evidence that she was satisfied from the email correspondence, as well as her interaction with the applicant, that he had failed to perform valuations on at least two occasions.35
[49] The applicant conceded that he had communicated to Mr Brown that he would not perform valuations on two occasions. 36 The applicant indicated he was motivated out of anger by Mr Brown’s decision to allow a new car manager to do his own valuation.37 However, the applicant indicated that he continued to perform valuations, despite telling Mr Brown that he refused to do so.38 In response to my question, ‘you never actually didn’t do a valuation you were asked to do?’, the applicant summarised his position as follows:
‘Correct. I told him I wouldn’t. I told him he could do it himself if he’s such a big guy and can get all this money, he can do it himself’. 39
[50] Mr Dagg asked the applicant about his interview with Ms Cromie, in which she states that he indicated to her that he did not perform valuations on 5 – 6 May 2018. The applicant’s response to the question was unclear:
‘I absolutely said that, because I was still doing the valuations on the Toyota side, because they said, "I thought you weren't doing valuations", and I said, "No, I've never said I wasn't doing valuations. Fine, I'll keep doing them." But Volkswagen, the other side of the road, they did their valuations. Can I tell you, it was quite relaxing not doing the extra valuations. When you get 150 phone calls a day it's quite strenuous’. 40
[51] The applicant rejected Bill Buckle’s claim that it needed to engage a third party to perform valuations. 41
7. Allegation – Sale of vehicles to Alliance Motor Auctions (Allegation7)
[52] The respondent alleged that the applicant had failed to follow a lawful and reasonable directive in that he continued to wholesale vehicles to Alliance Motor Auctions without the approval of the Dealer Principal (Mr Brown) or Tender Manager (David O’Brien).
[53] It was Ms Cromie’s evidence that Mr Brown had made a directive not to sell any vehicles to Alliance for business reasons. 42 Ms Cromie indicated she had a list of vehicles that the applicant sold to Alliance but did not tender it at the hearing.43
[54] Mr O’Brien was interviewed as part of the investigation and indicated the applicant would have been aware of the directive to not sell cars to Alliance, though conceded that he was not present when Mr Brown was said to have informed the applicant of the directive. 44 Mr O’Brien could not recall when the directive was issued.45 He acknowledged that he was aware the applicant had continued to sell cars to Alliance after the directive had been issued but did not raise it as a concern with the applicant.46
[55] The applicant responded that at the very least he was allowed to sell European cars to Alliance and that Mr O’Brien was aware that the applicant was selling European cars as he was responsible for clearing the sale. 47
[56] The applicant also provided evidence that Alliance was technically an auction house; a medium through which to conduct sales. He attempted to draw a distinction between selling through Alliance and selling to it. 48 Nonetheless, the applicant conceded that he had sold cars to Alliance, but that he was allowed to sell European cars.49 The applicant explained the circumstances of the sale to Alliance. He claimed that he had purchased cars from Alliance which arrived in an unsatisfactory condition, and it was not possible to simply return them.50 Accordingly, the applicant was forced to resale the cars to Alliance.51
8. Allegation – Inappropriate comment (Allegation 8)
[57] The final allegation was a conduct issue relating to an incident on 10 April 2018, where the applicant referred to another staff member, Mr Raj Premachandra, as ‘Blackie’ in a management meeting. The respondent substantiated the allegation on the evidence of Mr Ross, who was present in the meeting.
[58] Ms Cromie indicated that Mr Brown raised the incident with her, which was substantiated by Mr Guli. 52 Though she did not speak to Mr Premachandra about the incident, Ms Cromie gave evidence that she had viewed an apology sent from the applicant to Mr Premachandra in relation to the incident, which was not tendered at the hearing.53 She also reiterated that a written warning was issued to the applicant on 23 October 2017, which partly related to respectful interactions with other employees.
[59] The applicant did not deny the incident occurred. However, the applicant indicated that he and Mr Premachandra had a joking relationship where the applicant referred to him as ‘Blackie’ and Mr Premachandra to the applicant as ‘Red’. 54 The applicant suggested Mr Guli was a friend of Mr Brown and the allegation was ‘a farce’.55
Credibility of witnesses
[60] I found the applicant to largely be a witness of credit. While the applicant was understandably highly emotional in cross-examination and when giving evidence, he answered spontaneously and made concessions. However, this does not mean that I have accepted all of the applicant’s evidence as truthful.
[61] I also found Ms Cromie, Mr Dagg, Ms Smiles, Mr Moran and Mr O’Brien to be credible witnesses, albeit that they were all quite clearly protective of the respondent. I was less convinced by Mr Brown, who was largely careful with his words and unwilling to make concessions even where I thought it was appropriate to do so.
Consideration
[62] It is not in dispute that the applicant is a person protected from unfair dismissal. In accordance with s.382 of the FW Act, I am satisfied that the applicant is so protected.
[63] I am satisfied that the application was made within the period required in s.394(2) of the FW Act and that the Commission has jurisdiction to determine this matter.
[64] I must now determine whether the applicant has been unfairly dismissed. Section 385 of the FW Act provides that:
‘A person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388’.
[65] I am satisfied that, the applicant has been dismissed, the respondent was not a small business and the dismissal was not a case of genuine redundancy. The issue to be determined therefore is whether the dismissal was harsh, unjust or unreasonable. In accordance with s.387 of the FW Act, I am required, in considering this issue, to 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 the FWC considers relevant’.
[66] I will consider each of these criteria in turn.
Valid reason: s.387(a)
[67] The consideration prescribed by s.387(a) is whether there was a valid reason, and the Commission must satisfy itself of the validity of the reason and its factual underpinning. A valid reason is one that is ‘sound, defensible and well-founded’. 56
[68] The Act requires me to consider whether there was a valid reason for dismissal. In the current matter there are eight allegations advanced for the dismissal of the applicant however it is not necessary for all of those reasons to be substantiated. I will now examine the eight allegations to determine whether some or all occurred and whether any constitutes a valid reason.
Allegation 1 – Safety inspections
[69] The respondent alleged that the applicant failed to detect that an employee under his control had not performed safety inspections prior to selling various cars. While the respondent did not tender the applicant’s position description, I accept that he was as UCSM accountable for ensuring safety checks had been completed and for also reviewing Mr Rothschild’s transactions. On one view, as UCSM, it is reasonable to expect the applicant to scrutinise all transactions within his department, despite his assertion that to do so would be burdensome. On the other view, the applicant was entitled to rely on Mr Rothschild to perform safety inspections and the uncontested evidence supports the position that Mr Rothschild was dishonest.
[70] The respondent did not tender evidence of the twelve transactions that it alleged the applicant had failed to appropriately scrutinise.
[71] While I accept that Mr Rothschild’s falsification of safety inspection documents would not have been readily identifiable, particularly him making up safety inspection numbers, I am of the view that had the applicant sought to interrogate the transaction documents rather than ‘tick and flick’, at the very least the fraudulent customer signatures and the missing costs associated with safety inspections would likely have been identifiable. This is given weight by the applicant’s own admission that upon review of Mr Rothschild’s work he noticed ‘abnormalities, even to the point where some signatures didn’t line up with customer signatures’ 57 as well as his concession that if he had sufficient time he may have identified the missing costings.58
[72] On balance, I prefer the view that the applicant failed to appropriately scrutinise Mr Rothschild’s transactions. Whether he can be held accountable for all twelve transactions specified in the investigation report is questionable, given the precise combination of missing/falsified documentation was not provided. Nonetheless, I am satisfied that this allegation has been substantiated.
Allegation 2 – Zooper Agency Agreement
[73] I am persuaded by the evidence before me that the applicant breached the Zooper Agency Agreement by failing to return various phone calls from another dealership in relation to the sale of a Toyota Rav4. By his own admission, the applicant was aware that there had been multiple calls and a voice mail left in relation to the sale of the Rav4 pursuant to the Zooper process. 59 The evidence indicates that he chose to ignore the calls.60
[74] The applicant submitted that the Zooper Agency Agreement was not tendered at the hearing and accordingly the allegation cannot be substantiated. While I agree that it would have been beneficial to view the policy, I do not accept that I cannot be satisfied that the Agreement was breached. Ms Cromie, Mr Moran as well as the applicant agreed that the Agreement existed and I am satisfied that all three witnesses were familiar with its operation.
[75] I do not accept the applicant’s evidence that the Zooper Agency Agreement was never enlivened – and therefore impossible to breach – on the basis that the Rav4 had not been appropriately serviced. I found the applicant’s evidence on this issue to be implausible. I think it is more likely that the applicant ignored the phone calls due to his disdain for the Zooper Agency Agreement, rather than concern for strict adherence to the policy. The applicant admitted in the hearing, 61 and in the tendered reply material,62 that he disliked the policy.
[76] I am satisfied that allegation 2 has been substantiated.
Allegations 3– Terse communication
[77] I am satisfied that the evidence establishes that the applicant was terse in his communication with Mr Samarakoon. While I did not have the benefit of viewing the entire email but rather an extract contained in the investigation report, the applicant conceded that he was frustrated at having been asked the same question multiple times.
[78] Accordingly, I am satisfied that allegation 3 has been substantiated.
Allegation 4 and 5 – Three point calls and customer care introductions
[79] I am not satisfied that the respondent has provided sufficient evidence to support a finding that the applicant failed and/or refused to perform either three point calls or customer care introductions.
[80] The evidence was lacking. The basis for the respondent substantiating the allegations was reference to lower finance penetration reports in the applicant’s department. The respondent did not tender this evidence and as such I cannot be satisfied that the allegations are substantiated based on reports that I have not viewed and also absent a convincing explanation as to precisely how the reports correlate to the allegations.
[81] In any event, Ms Cromie conceded that the respondent did not have a policy in relation to customer care introductions.
[82] Accordingly, I am not satisfied that allegations 4 and 5 have been substantiated.
Allegation 6 – Valuations
[83] I am satisfied from the evidence that the applicant was responsible for valuations of potential trade-in cars. Also, I am satisfied that the evidence establishes that the applicant communicated to Mr Brown and Ms Cromie that he no longer desired to perform valuations. However, whether the applicant had in fact failed to perform the valuations is less clear.
[84] On balance, I preferred the evidence of the applicant that he did not stop performing valuations of potential trade-in cars. I get the impression that the applicant communicated his intention to stop performing valuations to provoke a reaction from Mr Brown and Ms Cromie.
[85] At its highest, the evidence demonstrates that the applicant was terse and combative with Mr Brown and Ms Cromie. The respondent did not tender evidence of a specific incident where the applicant failed to perform a valuation.
[86] Accordingly, I am not satisfied that allegation 6 has been substantiated.
Allegation 7 – Sale of vehicles to Alliance
[87] I am satisfied from Ms Cromie and Mr Moran’s evidence that Mr Brown issued a directive for the applicant to stop selling cars to Alliance, likely including European cars. Furthermore, I accept that the applicant breached the directive. Although Ms Cromie did not tender the list of cars that the respondent alleged were sold to Alliance after Mr Brown issued the directive, it was not strictly necessary that she do so as the applicant admitted that he had sold cars to Alliance, albeit European cars with Mr O’Brien’s permission as well as unsatisfactory cars.
[88] While it is peculiar that Mr O’Brien was aware that the applicant had breached the directive but chose to remain silent, I do not place considerable weight on this fact as Mr Brown was the person who issued the directive. I also reject the applicant’s assertion that Alliance is a medium through which sales occur and accordingly it is not possible to directly sell to Alliance, which in my view is an attempt to draw an unnecessary distinction. The fact remains that the applicant sold cars to Alliance in breach of the directive.
[89] Accordingly, I am satisfied that allegation 7 has been substantiated.
Allegation 8 – Inappropriate communication
[90] The applicant conceded that he referred to Mr Premachandra as ‘blackie’ but sought to mitigate its seriousness by reference to the context in which it was made. It is untenable for the applicant to suggest the allegation was a ‘farce’ while also conceding to having made the remark, which can only be deemed inappropriate. I am satisfied that allegation 8 is substantiated.
Conclusion as to valid reason
[91] There were several reasons given for the dismissal of the applicant however it is well established that it is not necessary that all those reasons be substantiated in order to make a finding that a valid reason existed for the dismissal.
[92] I was not persuaded on the evidence before me that allegations 4, 5 and 6 had been substantiated. However, I am persuaded that allegations 1, 2, 3, 7 and 8 did occur. Based on the applicant’s breach of two policies and a management directive, as well as his inappropriate communication, particularly the racially inappropriate remark to Mr Premachandra, I am satisfied that these reasons combined provided the respondent with a valid reason for dismissing the applicant.
Notification of reason: s.387(b)
[93] The applicant was informed on 15 May 2018 that the allegations were upheld and that the respondent was considering his dismissal. The letter spelled out the allegations in full. On 17 May 2018 the applicant was provided with another letter that explained the reason for his dismissal, being that the allegations were upheld by an independent investigation. I am satisfied that the applicant was notified of the reasons for his dismissal and afforded procedural fairness throughout the process of the investigation.
Opportunity to respond: s.387(c)
[94] The applicant was given ample opportunity to respond to the allegations throughout the investigation process. For whatever reason, the applicant chose not to participate in the telephone conference on 17 May 2018.
Support person: s.387(d)
[95] The respondent provided the applicant with multiple opportunities to have a support person at the meetings that preceded the dismissal. Importantly, in the letter sent to the applicant dated 15 May 2018, Ms Cromie provides the applicant the opportunity to bring a support person to the telephone meeting scheduled on 17 May 2018.
Prior warnings: s.387(e)
[96] The applicant had been issued a written warning on 23 October 2017 in relation to his adherence to company processes and procedures, in particular car care and finance introductions, as well his interactions with other employees. The warning letter expressly states that the respondent may take further action, which may include terminating his employment. I note that the applicant refused to sign the warning.
[97] To the extent that the written warning relates to the applicant’s interactions with other employees, I have taken it into account.
Size of the respondent and access to specialized human resources expertise: ss.387(f) and (g)
[98] Bill Buckle is a large business with dedicated human resource staff. The procedures followed by the respondent were consistent with those to be expected of a large corporation. Ms. Cromie, an internal human resources manager, conducted an investigation with the assistance of Ms. Smiles, who also has human resources experience. The procedures followed by the respondent in dismissing him were conventional.
Other relevant matters: s.387(h)
[99] I have had regard to the length of the applicant’s service with the respondent. I note at the time of the dismissal, the applicant had been employed with the respondent for a period of two years.
[100] I have also taken into account the applicant’s contention that the dismissal was caused by Mr Brown’s personal dislike of him rather than a genuine concern about his performance and conduct. I have reviewed the voluminous email and text correspondence the applicant submitted on this point. It is apt to observe that the relationship between the applicant and Mr Brown was very poor. However, as set out above, five allegations are established against the applicant, and he had been issued a written warning in relation to his interaction with other employees. As such, I do not give significant weight to the applicant’s contention that his dismissal is better explained by Mr Brown’s personal dislike of him.
Conclusion
[101] I am satisfied that the dismissal of the applicant by the respondent was not harsh, unjust or unreasonable. Accordingly, the application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr A Watkin on his own behalf.
Mr G Dagg on behalf of the Respondent.
Hearing details:
Sydney:
2018.
September 12.
Printed by authority of the Commonwealth Government Printer
<PR700451>
1 Exhibit 2.
2 Exhibit 3.
3 Exhibit 4.
4 Exhibit 1.
5 Exhibit 4.
6 Ibid.
7 Ibid.
8 PN844.
9 PN846.
10 PN847.
11 PN851-852.
12 PN854.
13 PN855.
14 PN771.
15 Ibid.
16 Exhibit 3.
17 PN126.
18 PN135.
19 PN293.
20 PN804.
21 PN807.
22 PN266.
23 PN154.
24 PN311.
25 PN154.
26 PN279.
27 PN295.
28 PN320.
29 PN910.
30 PN182.
31 PN193.
32 PN194.
33 PN819.
34 Exhibit 2.
35 PN120.
36 PN772.
37 Ibid.
38 PN780.
39 PN781.
40 PN870.
41 PN874.
42 PN207.
43 PN213-216.
44 PN435.
45 PN433.
46 PN442.
47 PN921.
48 Ibid.
49 PN922.
50 PN831.
51 Ibid.
52 PN218.
53 PN219.
54 PN837.
55 Ibid.
56 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
57 PN769.
58 PN864.
59 PN804.
60 Ibid.
61 PN804.
62 Exhibit 3.
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