Andrew Salmon v Flexi Home Storage Solutions

[2013] FWC 2327

[2013] FWC 2327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Salmon
v
Flexi Home Storage Solutions
(U2012/14885)

COMMISSIONER WILLIAMS PERTH, 23 APRIL 2013

Termination of employment.

[1] This matter involves an application made by Mr Andrew Salmon (the applicant or Mr Salmon) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Flexi Home Storage Solutions (the respondent).

Background

[2] The respondent is in the business of designing and manufacturing custom made kitchens, office furniture and wardrobes.

[3] The applicant was employed as a Sales Person/Designer.

[4] The respondent employs a number of project managers who receive jobs in the form of a sales proposal and design from a sales person/designer who has previously met and consulted with a customer. This is referred to as debriefing of the job.

[5] If a debrief goes properly the project manager then accepts the job and has the responsibility for seeing the job proceed through manufacturing, delivery and installation.

[6] If the project manager however finds errors in the design or some other problem with the paperwork then the job may be rejected. This causes a problem for the sales person/designer who then has to rework the job to rectify the errors and may have to return to deal with consequential issues with the customer.

[7] The applicant was first employed by the respondent in October 2009 and his employment ended in October 2012.

[8] The applicant submits that he was dismissed by the respondent. The respondent denies that the applicant was terminated at the initiative of the employer however in the alternative submits that the dismissal was fair in all the circumstances.

[9] Mr Salmon gave evidence on his own behalf. Witnesses for the respondent were Mr Craig Teede (Mr C. Teede) Director and Operations Manager, Ms Emma Garrad Receptionist, Mr Ross Grida Sales Manager, Mr Andrew Moon a Project Manager for the respondent, Mr Craig Lowrie the System Operation Manager, Mr Kenton Teede (Mr K. Teede) Director and Chief Executive Officer and Mr Kelvin Mansfield Director and Financial Controller.

The evidence and findings

[10] Having reviewed the evidence of all of the witnesses the following relevant factual findings are made.

[11] The applicant was generally a well regarded sales person and was one of the best performing in that role within the business.

[12] In early January 2012 the applicant had some health problems which the respondent’s management were aware of and assisted him with however it seems subsequently these impacted on his behaviour at work.

[13] From the middle of 2012 his behaviour in the workplace and performance had deteriorated and there were a number of examples of him behaving in an angry or an aggressive manner towards other employees.

[14] Around the middle of June 2012 Mr Mansfield and Mr C. Teede meet with the applicant to discuss their concerns about his behaviour and general performance. Mr C. Teede told the applicant that they were not happy with his performance and behaviour and that it could not continue. The applicant concedes that he was told that his past behaviour was not acceptable and would not be tolerated.

[15] The applicant concedes that at that meeting he was given a verbal warning and this was clear to him 1.

[16] On 8 October 2012 Mr Moon was doing a debrief with the applicant regarding a kitchen. Mr Moon rejected the job because it had defects in the design and had been oversold by $2 500. The defects included that the 3D images did not match the design, and there was no sink in the 3D images and the design had a stone bench top with a large radius which they are unable to do and the design did not include any appliance detail.

[17] When Mr Moon told Mr Salmon that the job was rejected Mr Salmon started to shout at him and waved his arms around.

[18] Mr Moon in a distressed state reported what had occurred to Mr Mansfield and Mr K. Teede. Whilst the three men were discussing the incident Mr Salmon came into the office and Mr Mansfield then spoke to both Mr Moon and Mr Salmon and admonished Mr Salmon telling him that his conduct and behaviour was not acceptable and could not be tolerated and that he should apologise to Mr Moon. At the end of this meeting Mr Salmon left calling the others “a bunch of useless wankers”.

[19] The applicant concedes his behaviour towards Mr Moon at this time was totally unacceptable 2.The applicant did apologise to Mr Moon unreservedly via email the next day.

[20] A few weeks before the employment ended at a sales meeting the applicant had behaved inappropriately. During the meeting he was not interested and appeared totally disconnected and left the meeting before it had ended storming out and slamming the door.

[21] The Sales Manager Mr Grida spoke to the applicant and informally warned him that he was going to lose his job because of his behaviour.

[22] On 22 October 2012 Mr Lowrie was conducting one-on-one training with Mr Salmon regarding a new product. Mr Salmon was not interested in the training and wanted Mr Lowrie to help him with a design he had on his laptop computer. When Mr Lowrie refused to help him and insisted on continuing with the training Mr Salmon became aggressive and was yelling and shouting at Mr Lowrie. Mr Lowrie then told Mr Salmon to leave his office.

[23] Mr Lowrie felt intimidated by Mr Salmon’s behaviour and went and spoke to Mr Mansfield and Mr K. Teede about what had happened. Mr Salmon joined the meeting and both parties agreed to return to training. Mr Lowrie then completed the training with Mr Salmon for the following 20 minutes without incident.

[24] A day or two later it was reported to Mr Mansfield that after Mr Salmon had seen Mr Lowrie he had come to the reception area/showroom, flung the door open and stormed in. There were three staff members in the area at the time. Mr Salmon was very aggressive and Ms Garrad who was one of those present was shocked by his behaviour and felt quite scared. Mr Salmon said he wanted to tie Mr Lowrie up by his feet and drag him behind his car. Mr Salmon agrees that he also said “This is the reason why guns are legal in America”.

[25] In addition around this time the CEO Mr K. Teede was concerned because the applicant’s sales were down, he was overdrawn on his commission account with the respondent, he had made no car payments on the motor vehicle the respondent had arranged for him, he was not completing some of his paperwork correctly and he was acting in a disruptive manner in meetings.

[26] A meeting of was held with the applicant on 25 October 2012.

[27] In attendance was Mr Mansfield, Mr K. Teede, Mr Grida and the applicant.

[28] The applicant’s evidence about this meeting is that Mr K. Teede did most of the talking and he explained that the applicant’s behaviour was causing waves in the company and that they had problems. Mr Salmon agrees that Mr K. Teede mentioned the incident with Mr Moon, the incident with Mr Lowrie and what occurred in the reception area/showroom.

[29] The applicant denies that Mr K. Teede said anything like “We have to get over this problem otherwise we’re going to have to let you go”.

[30] The applicant’s evidence is that Mr K. Teede said “We are going to have to let you go”.

[31] The applicant agrees that Mr Mansfield asked him to sit down but says in his evidence that this was after he had been sacked.

[32] Contrary to the applicant’s version of what occurred at this meeting the evidence of Mr K. Teede was that he explained to Mr Salmon that there were serious problems with his behaviour and work ethic. He reminded Mr Salmon of the verbal warning in June 2012 and discussed the recent incidents with Mr Moon and Mr Lowrie and told him this could not be tolerated. Mr K. Teede says he then told Mr Salmon he had been disruptive in meetings and didn’t seem interested in listening and learning about new products the company was developing which he was required to sell. Importantly Mr K. Teede’s evidence was that he then told Mr Salmon that if we couldn’t reconcile his behaviour and attitude then they would have to let him go.

[33] His evidence was that as soon as he said this Mr Salmon stood up and said he knew when he was not wanted and left. Mr Mansfield tried to tell them to sit down to discuss the issues but Mr Salmon refused.

[34] Mr K. Teede’s evidence was that there was no dismissal and his intention was to try and get Mr Salmon back to a position where he could work constructively for the respondent.

[35] Mr K. Teede was adamant in cross examination that this is what had occurred and was unshaken on the central point that he had not dismissed Mr Salmon but rather Mr Salmon had walked out of the meeting.

[36] Mr Grida’s evidence in cross examination was that the words said by Mr K. Teede were “We need to let you go” but that this was said in the context of Mr K. Teede saying “If we can’t get you back on track we’re going to have to let you go”.

[37] Mr Mansfield’s evidence was that Mr K. Teede was explaining to the applicant that his behaviour and conduct over the recent weeks had reached a level that it could no longer be tolerated because it was now impacting on other staff and that the company would have to let the applicant go if he kept it up. His evidence was that up until this point the applicant had been quiet but he then stood up and said that if that was the case he would leave. Mr Mansfield’s evidence was that he then asked the applicant to sit down so that they could talk through the issues but the applicant walked out saying there was no point.

[38] Reviewing the evidence of the four persons whom were present at the final meeting, three of those witnesses say that what happened was the applicant was told that if the problems the respondent had recently had with him could not be resolved the respondent would have to let him go. Given the weight of the evidence supporting this version of the discussion I accept that this is what occurred. What was said to the applicant was not that he was to be let go then and there, and so dismissed, but that this would be the outcome if the past behaviours continued. The respondent was endeavouring to achieve a reconciliation so that the past problems did not continue and it could retain the applicant in employment. However the applicant stood up from the meeting table and refused to sit down and discuss the matters further when asked to.

[39] It was the applicant’s actions, by leaving the meeting, that brought the relationship to an end.

[40] The respondent provided a separation certificate to the applicant on which the reasons for separation, “Unsatisfactory work performance” and “Misconduct as an employee” have been ticked. One of the other reasons for separation provided for on the form “Employee ceasing work voluntarily” was not ticked.

[41] The form was completed by Mr Mansfield.

Consideration

[42] The objection by the respondent to this application is that the applicant was not dismissed and consequently there is no jurisdictional basis for this application to be made.

[43] Section 386 of the Act defines the word dismissed as below:

“386 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[44] The question then is whether the applicant’s employment with his employer was terminated on the employer’s initiative.

[45] At the final meeting on 25 October 2012 the Chief Executive Officer Mr K. Teede having explained the concerns about the applicant’s past behaviour made it plain to him that if this continued they would have to let him go, meaning they would have to dismiss him. The respondent was attempting to find a way to retain the applicant in employment and to ensure these problems did not occur in the future. The applicant however stood up from the meeting table and refused to sit down and discuss the matters further when asked to. It was the applicant who ended the meeting; he left the room and did not return to work again.

[46] The boxes ticked on the separation certificate by Mr Mansfield are highlighted by the applicant as demonstrating a dismissal by the employer. Mr Mansfield is not a lawyer whom might appreciate the way such records may be relied on by others to bolster a particular legal argument. The two reasons he ticked, unsatisfactory work performance and misconduct, were honest explanations of the reasons for the separation however he could also have ticked a further box saying the employee ceased work voluntarily and all three of these would be correct statements of the multiple reasons why the parties had separated. The boxes ticked on this certificate do not in any event alter the facts as to what happened at the meeting on 25 October 2012.

[47] Consequently my conclusion is that the applicant’s employment was not terminated on the employer’s initiative. The respondent employer did not dismiss Mr Salmon.

[48] I also note for completeness that there is no basis to argue that Mr Salmon was forced to resign from his employment because of the conduct of the respondent. Mr Salmon chose to leave his employment and was not forced to do so.

[49] That being the case there is no jurisdiction for this application to be made and accordingly this matter will be dismissed.

[50] If however I am wrong on this jurisdictional point for completeness I will consider, if there was a dismissal, whether it was harsh, unjust or unreasonable.

[51] The matters the Commission must take into account in considering whether an employee has been unfairly dismissed a specified in section 387 of the Act.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

[52] In this case I am satisfied that there was a valid reason for the dismissal of Mr Salmon related to his conduct. Mr Salmon’s aggressive behaviour towards Mr Lowrie and separately the making of threats about Mr Lowrie in the presence of other staff shortly after that incident were each valid reasons for dismissal of the applicant.

[53] If indeed the applicant was dismissed in the meeting on 25 October 2012 then he was notified of the reason for his dismissal during that meeting. During that meeting he was given an opportunity to respond to the reasons for his dismissal but the applicant refused to discuss the issues at all and left that meeting.

[54] The employer has approximately 27 employees and does not have dedicated human resource management specialists or expertise in the enterprise.

[55] The procedures followed in effecting the dismissal were not deficient in these circumstances.

[56] Other matters relevant were that the applicant had been employed for approximately three years and up until the last six months of his employment had been a valued employee which was recognised by the respondent. The applicant had suffered from some health problems from early in 2012 which may to some extent have explained some of his poor behaviour however no substantive submissions nor medical evidence were put to the Commission on this point. The evidence however is that the respondent had positively worked with the applicant to help him deal with his health difficulties over this time. In any event while this background may have explained some of the applicant’s behaviour it would not necessarily excuse it.

[57] It is also relevant that there had been a verbal warning given to the applicant about his interaction with other employees in June 2012. Following this was the second incident involving Mr Moon where again the applicant behaved aggressively towards a colleague and this had been discussed with the applicant in early October 2012.

[58] In short there had been a pattern of behaviour by the applicant where he had been behaving aggressively towards other staff members. The respondent’s concern about this had been brought to his attention and he was aware his actions were inappropriate and would not be tolerated.

[59] Considering all of these matters then there is no basis on which the Commission could conclude that the dismissal of the applicant, if indeed this is what occurred, was harsh, unjust or unreasonable. The applicant was not unfairly dismissed.

[60] That being the case the application will be dismissed and an order will be issued to that effect in conjunction with this decision.

COMMISSIONER

Appearances:

A Salmon on his own behalf.

P Mullally, representative for the respondent.

Hearing details:

2013.

Perth and Darwin (video hearing):

March 1.

 1   Transcript at PN65, PN83 and PN93.

 2   Ibid., at PN109.

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