[2021] FWC 5035

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angela Hastings
v
Vantage Holdings Australia Pty Ltd
(U2021/809)

DEPUTY PRESIDENT ASBURY

BRISBANE, 16 AUGUST 2021

Application for an unfair dismissal remedy.

Overview

[1] Ms Angela Hastings (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by Vantage Holdings Australia Pty Ltd T/A Vantage Building Group (the Respondent/Vantage). On 9 August 2021 I issued an Order requiring compensation to be paid to the Applicant on the basis that I found that she had been unfairly dismissed. These are my reasons for that decision.

[2] The Applicant was employed by the Respondent from June 2017 and was dismissed on 14 January 2021. At the time of her dismissal, the Applicant was employed as a New Homes Sales Consultant on a full-time basis.

[3] The Applicant’s terms of employment were set out in a written contract dated 23 April 2020. The Respondent stated in its Form F3 – Employer response that the Applicant’s employment was covered by the Miscellaneous Award 2020. the Applicant contends that she was covered by the Real Estate Industry Award 2020. It is not necessary to determine this issue on the basis that there is no dispute that the Applicant was covered by a modern award.

[4] The Applicant was dismissed for a number of reasons which were variously described by the Respondent as rude behaviour towards her managers, extreme disrespect to the Respondent’s Director and an ongoing failure to acknowledge performance and behavioural shortfalls. The Applicant contends that she was unfairly dismissed as there was no valid reason for her dismissal, and she had not been given any prior warnings in relation to her conduct or performance or offered an opportunity to improve. The Applicant also states that she was not provided with written notice of termination or an employment separation certificate.

[5] Section 396 of the Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties regarding these matters, and I find that:

(a) the application was made within the period required by s.394(2);

(b) The Applicant was a person protected from unfair dismissal on the basis that notwithstanding that her income may have exceeded the high income threshold she was covered by a modern award;

(d) the dismissal was not a case of genuine redundancy.

[6] Consistent with s.397 of the Act, I decided to conduct a hearing on the basis that there were disputed issues of fact and I considered this to be the most appropriate means to resolve them. A hearing was conducted on 14 April 2021 for the purpose of dealing with the question of whether permission should be granted for the Applicant to be legally represented. The substantive hearing was conducted on 19 and 20 April, and closing submissions were made on 6 May 2021.At the hearing, the Applicant was represented by Ms P Willoughby of Counsel, instructed by Mr W Davis of Stonegate Legal, and the Respondent was represented by Ms E Kirkby of Master Builders Queensland. The Respondent as a member of the Master Builders Queensland was represented as of right. Permission was granted for the Applicant to be legally represented on the basis that I was satisfied that the matter involves some complexity, legal representation would allow the matter to be dealt with more efficiently and no issues of fairness arose.

[7] The Applicant gave evidence on her own behalf at the hearing. 1 Evidence was also given for the Applicant by:

• Ms Donna McIntosh, Real Estate Salesperson and former Salesperson for the Respondent from June 2019 to May 2020; 2

• Ms Michelle Comerford, self-employed and friend of the Applicant; 3

• Ms Kate Mayne, Sales Agent and former Sales Manager of the Respondent from August 2016 to May 2020; 4 and

• Mr Brad Kopcikas-Yates – New Home Sales Consultant and former employee of the Respondent from 2016 until October 2020. 5

[8] Evidence for the Respondent was given by:

• Kendra Bullock, HR and Interior Design Manager for the Respondent; 6

• Tonia Ivanni, Sales Manager for the Respondent; 7

• Susan Winter, Sales and Contracts Coordinator for the Respondent; 8

• Shawnee Collier, Marketing Coordinator for the Respondent; 9

• Sarah Scott, Salesperson for the Respondent; 10 and

• Shane O’Brien, Director of the Respondent. 11

[9] Ms McIntosh and Ms Comerford attended the hearing but were not required for cross-examination and their statements were tendered without objection.

Evidence

Background

[10] The Applicant stated that she commenced employment with Vantage in June 2017 as a New Homes Sales Consultant and was employed in that capacity until her dismissal on 14 January 2021. The Respondent’s evidence is that the Applicant commenced employment in July 2017. The Applicant was paid under a debit/credit arrangement an “advance” of $915.00 per week and statutory superannuation contributions, which were “debited” against commissions earned. The Applicant’s evidence is that in the year prior to her dismissal, she earned around $200,000.00.

[11] The Applicant was initially employed on a full-time basis, but was demoted in 2018 by the then Sales Manager, Ms Mayne, to a part-time role as sales host, due to underperformance and not meeting sales KPI’s. In mid-February 2019, the Applicant was reinstated as a full-time salesperson.

[12] The Applicant initially understood that she was employed under the Miscellaneous Workers Award, but now understands the correct award to be the Real Estate Award. The Respondent asserted that on advice given by the Office of the Fair Work Ombudsman, the Applicant was covered by the Miscellaneous Award. There was an employment contract tendered by the Respondent that neither party signed but which both acted generally in accordance with. A condition of the employment contract was that the display home in the Harmony Estate would be used as an office by the Applicant and the display was to be open from 10.00 am to 4.00 pm, and “manned” by the Applicant from 9.00 am to 5.00 pm. Despite this, the Applicant said that she occasionally left at 4.00 – 4.30 pm for a variety of reasons, including:

• Attending meetings with potential clients at land sales offices;

• Facilitating client contract signings at their homes or place of work;

• Visiting estate land sites to view land and take photos to send to the Vantage Construction Manager for approval;

• Meeting clients on their land and showing them through built homes;

• Visiting Land sales offices to discuss upcoming land releases and build rapport; and

• Attending Developer meetings and land release updates.

[13] The Applicant stated that she enjoyed her job and engaged well with all staff and clients. The Applicant also stated that she had had good online reviews from clients and that she could obtain references from many clients.

[14] Ms Mayne gave evidence about the Applicant’s demotion to a part-time role for failure to meet KPI’s, stating that she was under a lot of pressure to achieve sales and the Company’s Directors had said to her that if she did not release the Applicant from employment, they would. Ms Mayne also said that she was under pressure not to offer the Applicant a contract at all, however the Applicant secured the part time contract by writing to the Directors and pleading her case.

[15] In her oral evidence, the Applicant said that after she had worked for the Respondent for one year, her contract ended and as she was not meeting sales targets her contract was not going to be renewed. The Applicant wanted to stay with the Company and emailed the Directors and Ms Mayne, her sales manager at the time, and requested them to consider placing her in a four day per week hostess role on the basis that she would still sell. At the end of 2018, the Applicant was offered a return to her full-time role by Ms Mayne, located in the Harmony Estate. 12 At that time the Applicant was averaging 3 sales a month which was her target. Ms Mayne said that that after being put back into a full-time position, the Applicant was achieving her sales and her performance was great. The Applicant also said that in the last 6 months of her employment, she doubled her sales.

[16] The Applicant said that the criticism that she was failing to obtain the details of all visitors to the display homes was recent. The Applicant maintained that she had done everything possible to welcome and assist visitors to the display, and all known enquires were dealt with as soon as possible and to suit the visitor’s availability.

[17] The Applicant said that another recent criticism was that she did not communicate with the Respondent’s contract administration team. The Applicant denies this allegation and notes that frustrations had emerged as clients were not always available, and sometimes contract signings were postponed because of clients. The Applicant also said that she has never had a complaint from a client and has only had one performance review/probation period meeting which was six months after she commenced with the business. Further, in her oral evidence, the Applicant stated that her managers, being Ms Mayne until April 2020, and Mr Matt Burness and Ms Tonia Ivanni after that date, had never given her a warning nor performance managed her.

[18] Ms McIntosh said that the Applicant was always helpful and encouraging, and that the Applicant would often discuss with her ideas of how to get more buyers interested. Ms McIntosh notes she had also accepted a further role with Vantage from about July 2020, and from October 2020 she was working with the Applicant at Harmony. Her evidence is that a typical Saturday with the Applicant involved fielding dozens of enquiries, and they were extremely busy and attempting to meet the volume of clients. Ms McIntosh states the Applicant would always go out of her way to ensure clients were looked after, make appointments at less busy times and walk them through the process. Ms McIntosh also said that she has witnessed the Applicant’s customer service and sales skills first-hand and was shocked to hear the Applicant had been dismissed for lack of service to the company and clients. Further, Ms McIntosh said that she found the work environment to be toxic and disruptive, and that Mr O’Brien would make erratic decisions and often change his mind about what he wanted.

[19] Mr Kopcikas-Yates said that the Respondent did not offer sufficient support or training to achieve KPIs, and salespeople were often overworked. However, he always knew the Applicant to be an outstanding customer-focused sales professional, who exceeded her KPIs. Ms Mayne said that during her time as Sales Manager for Vantage, she always found the Applicant to be punctual, pleasant and well presented. According to Ms Mayne, the Applicant built a business rapport with developers, her colleagues, and customers alike and was always highly regarded within the industry for her knowledge and work ethic. Ms Mayne also said that that she never received a complaint from a customer or the Estate Sales or Management team at Harmony and that in her opinion, the Applicant always went above and beyond her duties to help at other Vantage Homes Display openings or events.

[20] In oral evidence, Ms Mayne said that in 2018 when it was decided not to renew the Applicant’s contract, Ms Mayne was under a lot of pressure to achieve sales as a whole and she was told that if she did not “release” the Applicant from her employment, the Company would. The Applicant was able to plead her case to the Directors and was offered a four day a week job to see if she could improve her performance. The Applicant did well during this time and was offered a full-time role when it became available.

[21] Ms Bullock said in her evidence that Ms Mayne did not consider the Applicant to be an exemplary employee and tendered an email sent by Ms Mayne to the Applicant on 29 September 2018 in the following terms:

“WTF?? This was part of your role as hostess 4 days a week – to ensure displays look good …

So far this month 0 sales and dead plants …

Not happy”. 13

[22] In cross-examination, Ms Mayne was shown the email sent to the Applicant on 29 September 2018 and said that this was a bit of a joke, and she was pointing out that the Applicant had to fight to get her job back by pleading to the Directors of the Respondent and that the Applicant needed to give it her best. Ms Mayne was also shown a warning letter that she received in relation to her performance as sales manager and agreed that she resigned her employment the day she received that letter. 14

[23] Ms Bullock also said that the Applicant had a tendency to leave other employees to “pick up her slack”, including by other employees contacting clients for information on behalf of the Applicant or performing data entry for the Applicant. According to Ms Bullock the Applicant would also leave a display home filthy at the end of display. Ms Scott said that the Applicant had in the past told her to put false appointments into the diary, so that the Applicant could leave a display home early.

[24] As to administrative and contract tasks, Ms Collier said that in the past, there had been an issue with sales staff not providing all required information for contracts. After this issue was raised, all sales staff provided the required details, except for the Applicant, who consistently failed to do so. Ms Collier said that the Applicant would often be short with her, and would insist she had uploaded all relevant information, even though it was not showing in the system. The Applicant would regularly request contracts with short notice and would often give excuses about why she needed the quick turnaround, including lying about clients having plans to be away. Further, Ms Collier said that the Applicant’s clients frequently requested post-contract variations, at a rate well in excess of other sales staff. The Applicant’s clients also had expectations that they could have changes made and were upset when they were charged an unexpected administration fee.

[25] Because Ms Collier has sales management experience, she was asked to attend display homes and give feedback. When Ms Collier went to displays run by the Applicant, they were dirty and unkept, with mouse droppings in the bed and marks on walls. On 13 June 2020, Ms Collier made a report about these matters in the form of an email and sent it the General Manager of the Respondent, Mr Burness. 15 Ms Collier also tendered emails where the Applicant had communicated requests for things to be done to administrative and contracts staff and had failed to provide sufficient details for them to undertake the tasks as requested.16 Further, Ms Collier said that she had heard and observed the Applicant requesting clients to request changes at a colour consultation, which is after contract signing and approval, and not an appropriate time for changes. Ms Collier also reported this issue to Mr Burness by email dated 15 June 2020.17 Ms Winter supported Ms Collier’s evidence as to the Applicant failing to give required information for contracts. Ms Winter also said that the Applicant was reluctant to follow processes and would be “uncomfortably aggressive” when asked to comply with them.

[26] Under cross-examination, Ms Collier agreed that she was not the Applicant’s manager. Ms Collier also agreed that she had gathered the documents attached to her witness statement a few weeks ago. 18 Ms Collier also agreed that it was possible that the Applicant had misunderstood what she was told by clients rather than the Applicant being dishonest and accepted the possibility that the Applicant gave her the wrong information due to a misunderstanding. Ms Collier also confirmed that the customers in question had not alleged that the Applicant was lying but had simply indicated that they were not going away at the time that the Applicant said they would be away and that the customers seemed surprised to hear that Ms Collier thought that they would be away.19

[27] Mr O’Brien said that the sales team are required to have a focus on customer experience “from start to finish” and that an important role of sales staff was to take details of potential clients in the display home, because if they did not, it would create an impression of disinterest and opportunity for later follow up would be lost. Ms Bullock said in her oral evidence that Ms Ivanni was hired as a new Sales Manager in October 2020, with the objective of improving the service levels of consultants. In relation to the concerns that caused the Company to hire Ms Ivanni, Ms Bullock said:

“--- The company felt that they hadn't had sufficient management direction before, that their sales process needed improvement, that they needed someone, I guess to nurture their sales technique, that some of the sales technique might have been missing. Some of the other issues was that we didn't feel that we were capturing all the people that were coming into the displays and that we probably - we felt that we weren't getting enough sales out of the display homes for the product that we had on display.” 20

[28] Ms Bullock also said that she had conversations with Ms Ivanni about the Applicant’s performance and said that Ms Ivanni was “up and down” about whether the Applicant was “on board” with where the Company was trying to get the sales team and that Ms Ivanni reported that the Applicant would say that she was on board and then a week or so later, the Applicant’s commitment would drop off again. 21

[29] Ms Ivanni’s evidence was that upon commencing with the Company, she identified that the Applicant routinely failed to provide sales information to the contracts team, sought to fast track projects under false pretences and would leave work for others to complete. Ms Ivanni said that it was apparent the Applicant had an attitude of “doing her bit on the day”, with no follow up. Ms Ivanni said that when staff were advised of the requirement to take a name and number for every visitor, the Applicant had said “you’re joking right I am not going to take everyone’s details”. Ms Ivanni said that this is only one example of the Applicant’s negativity and “push back” on changes in the company.

[30] As a further example, Ms Ivanni said that the Applicant repeatedly used promotions that had been withdrawn. Ms Ivanni said that this was extremely frustrating as no other salesperson was using the out-of-date promotions, and the Applicant had been told repeatedly not to do so. Ms Ivanni tendered an email chain of 3 November 2020, in relation to the use by the Applicant of a promotion referred to as “Our Gift to You” 22 which involves free items being given to purchasers as an incentive to enter into a contract. In the email chain, commencing with an email sent at 2:47 pm, Ms Winter, the Respondent’s Sales and Contracts Co-ordinator, states that: “This one is good to go, apart from having another Our Gift To You that you need to get approval for…”. Ms Ivanni was copied into this email. At 3.15 pm on 3 November 2021, the Applicant emailed Ms Ivanni asking for approval for “this one”. Ms Ivanni’s response sent at 3.51 pm, asks the Applicant to send a list of all customers this upgrade has been promised to, and states that her conversations with the Applicant have been that all offers need to be approved prior to offering them. Ms Ivanni’s email goes on to state that:

“Over the last 4 weeks no one else has asked for approval of this offer except yourself on a regular basis. So, either you are unable to sell homes without giving away something, in which case you are in need of sales training or, you don’t understand the terms of the deal. Which is it?”

[31] In an emailed response sent at 4.51 pm, the Applicant said:

“I don’t appreciate the tone of your email, you have known me for 5 minutes and you have the audacity to say I can’t sell homes.

This promotion has been with the Company since I started and all Sales Consultants have taken advantage of this, and now all of a sudden you need approval?

I think we may need to have a chat in person in regards to your email.”

[32] Ms Ivanni said that when she pointed out in an email to the Applicant that she should be able to close a sale without relying on expensive promotions, the Applicant became angry and approached HR to mediate a dispute between them. Ms Ivanni said that there was no dispute, and she was questioning the Applicant’s reliance on props as was her responsibility as her manager. Ms Ivanni also said that it is her belief that if you are good at what you do, you did not need to use a promotion all the time and that it was intended to be a sweetener to get a deal across the line. Ms Ivanni said that approximately one month after she commenced employment with the Respondent she told sales staff: “We are just going to can it. Try to sell without it.” In her oral evidence Ms Ivanni said:

“--- Yes. And there were some that I said to her, 'That's fine then if you promise that to somebody.' But I kept saying, 'From here on end let's stop using it.' I wanted to give her a little bit of leeway but there was still the can I do the my gift to you? Can I do the my gift to you? One I think was both the 2000 and the my gift to you.

And was that exclusively where a quote had been issued before the instruction not to use these? Or was it ongoing - - -? --- Some were before and some were ongoing, yes – that I could see.” 23

[33] Ms Ivanni also said in her oral evidence that she saw a pattern of behaviour involving the Applicant where there were a lot of emails going back and forth in which Ms Winter was stating to at the Applicant that she had not done something properly with respect to information provided to the contract administrators. In response to a question about whether Ms Ivanni had ever had a conversation with the Applicant about not being at display homes at required times, Ms Ivanni said that her tactic was to start fresh and to plant ideas before changing something. 24

[34] In cross-examination, Ms Ivanni said that the Applicant’s sales performance was adequate in the three months after Ms Ivanni started employment and the Applicant met her target of four sales per month, sometimes making up to six sales. Ms Ivanni had approximately two one-on-one meetings with the Applicant during this time and did not coach the Applicant because the Applicant said that she did not need coaching. Ms Ivanni attended the display the Applicant was working at two or three times during this period. Ms Ivanni agreed that she did not give the Applicant a warning or put her on an improvement plan.

[35] Ms Ivanni could not give an exact date when the “Our Gift To You” promotion was withdrawn and agreed that sometimes clients would come in knowing about the promotion and ask for it and where the promotion was in a quote provided before the promotion was withdrawn, it would have to be honoured. In re-examination Ms Ivanni said that the use of the promotion that she approved was where it was included in a quote and not otherwise.

[36] Ms Bullock also tendered the email chain between Ms Ivanni and the Applicant in relation to the “Our Gift To You” promotion, with an additional email when the chain was forwarded to her by the Applicant on 3 November 2020. In that additional email the Applicant requested that Ms Bullock set up a “conflict resolution meeting” involving Ms Bullock, Ms Ivanni and the Applicant. The Applicant contends in the email that she had received oral approval from Ms Ivanni to use the “Our Gift To You” promotion to lock in six contracts and that when Ms Ivanni’s official approval had been sought, she had sent the email questioning the Applicant’s sales ability. The Applicant also referred to her emailed response and said “sorry I was not happy when I received this. 25

[37] Ms Bullock also tendered other internal emails said to evidence other issues with the Applicant’s work performance including the Applicant attempting to rush administrative work on the basis that clients were going on holidays when this was not the case 26 and emails from Ms Winter about various administrative issues with contracts and other documents involving the Applicant.27 Ms Bullock said that one of the issues the Respondent had with the Applicant was that she was not honest and would be dishonest to prioritise her requirements. This was said to be shown by the emails tendered by Ms Bullock where the Applicant had attempted to push for a short notice weekend task to be undertaken for a client on the basis that the client was away when this was not the case.

[38] Under cross-examination, Ms Bullock agreed that it is the Company’s responsibility to ensure that employees are trained, directed and supported. Ms Bullock also agreed that the previous Sales Manager Ms Mayne, ceased employment because the Respondent was not happy with her performance of the role of sales manager and that for a five month period after Ms Mayne left, there was no sales manager. Ms Bullock also agreed that Ms Ivanni started in the position of sales manager in October 2020 and within three months the Applicant’s employment was terminated.

[39] In relation to the “Our Gift To You” promotion, Ms Bullock agreed that the Applicant told her that she had approval from Ms Ivanni for the promotion to be given to her customers. In response to the proposition that Ms Ivanni’s email to the Applicant of 3 November 2021 was aggressive and that the Applicant had requested Ms Bullock’s assistance to mediate the relationship, Ms Bullock said that she did not arrange mediation because she believed that the email was reasonable management action. Ms Bullock also said that she spoke to Ms Ivanni who sent an email to the Applicant informing her that she did not intend the email to “come across as whatever it was” and that she had asked the Applicant not to offer the promotion and she was still using it. 28

[40] Under cross-examination, Ms Bullock agreed that she did not given the Applicant a warning about making false statements to obtain fast tracked administration work and that the Applicant may have misunderstood what she was told by clients about being unavailable rather than lying. 29 In relation to the cleanliness of display homes, Ms Bullock agreed that the mess in a display home depicted in a photograph appended to her witness statement, was left by a team of removalists who were moving items from one display home to another during a closure of display homes because of COVID-19. However, Ms Bullock maintained that the Applicant was helping the removalist team to take everything out of the display home.

[41] Ms Scott said in her evidence that as a new salesperson she was open to the opinions of the Applicant as she had no previous sales experience. Ms Scott also said that after sales meetings the Applicant would telephone her and make disrespectful comments about Ms Ivanni such as “we shouldn’t be doing this stuff” and “Tonia [Ivanni] just sits in the office, what would she know” and “what’s with this lady and her forms”. Ms Scott also said that the Applicant told her to put false appointments into the diary so that she could leave the display home early.

[42] Under cross-examination, Ms Scott agreed that she did not report that the Applicant had spoken disrespectfully about Ms Ivanni at the time this occurred. Ms Scott also said that she prepared her statement. Ms Scott was referred to a document filed with her statement headed “Hellosign Audit Trail” indicating that the statement was sent to her by Ms Bullock on 30 March 2021 at 04:05:47; viewed by Ms Scott at 04:09:05; and signed by Ms Scott at 04:09:47. Ms Scott did not dispute the proposition that the statement was sent to her by Ms Bullock and that she signed it after looking at the statement for 42 seconds. 30 In re-examination Ms Scott said that the statement had previously been sent to her in draft form on the day that it was signed, and agreed that she had an opportunity to look at its content before signing the statement and was happy with that content.

[43] Ms Winter said in her evidence that her dealings with the Applicant caused frustration as the Applicant consistently did not provide required information to contracts administration staff and had to be followed up repeatedly to provide details. Ms Winter also said that the Applicant would repeatedly say that she had uploaded information into the system when this was not the case. Ms Winter tendered a range of email correspondence evidencing attempts to obtain information from the Applicant; resulting delays to client builds; repeated requests and reminders about certain documents; and use of promotions and discounts after they had been discontinued. The material tendered by Ms Winter included an email trail evidencing the Applicant denying knowledge of a promotion having been discontinued months earlier, in circumstances where the cancellation was discussed and confirmed at a team meeting attended by the Applicant.

[44] Under cross-examination, Ms Winter agreed that she was not the Applicant’s manager and had no knowledge as to whether the sales manager had ever spoken with the Applicant about the issues identified in her statement. Ms Winter confirmed that she gathered the documents attached to her statement approximately one month before the hearing. 31

[45] The Applicant’s evidence is that the allegations about her using out of date promotions are not true. The Applicant states that while the Respondent eventually cancelled the promotion, some clients still had the promotion in their quote, and she therefore thought that where the quote had not reached its 30-day expiry, she should honour the promotion. Further the Applicant stated that all contracts were reviewed by Vantage management and approved before signing. The Applicant’s evidence is that she did not promote the use of the Our Gift To You” promotion after it was ceased. The Applicant also said that the further “recent criticism” about her lack of communication with the administrative team, was to the best of her knowledge, not true.

[46] In her oral evidence, the Applicant said that the “Our Gift To You” promotion had been in effect “on and off” since 2017 when she commenced employment and had expired a couple of times. When Ms Ivanni commenced employment, the promotion had not expired and then the promotion was cancelled, so that it was difficult to keep track.

Meeting on 11 January 2021

[47] The events which led to the termination of the Applicant’s employment commenced on Monday 11 January 2021. Mr O’Brien states that he received feedback from people who attended the display homes run by Ms Scott and the Applicant on Saturday, 9 January 2021, to the effect that they had been ignored by the sales team. Ms Ivanni confirmed that the Applicant was located at “Harmony” and the other salesperson, Ms Scott, was located at “Aura”. Mr O’Brien said that he decided to meet with Ms Scott and the Applicant, to express that the culture of customer service was being enforced from the top. Ms Ivanni’s evidence about the events which led to the 11 January meeting was as follows:

“Can you explain why that meeting was called? --- Yes. So I had previously had one of the accounting staff come to us and say that her friend wanted to purchase and she was interested in buying through Vantage and we offer like a referral system to staff if they refer someone in. And I said to her, ‘That's great. Give me her name and numbers.’ And I did send to both Angela and to Sarah, who's at Aura, her details – her name, and phone number – and I said, ‘Can you keep a lookout for this girl. She is a friend of Cassie's make sure that – you know – give her great customer service.’ I noticed nothing happened for a while and then I saw Cassie and I said, ‘What happened with your friend? Did she end up buying?’ And she said, ‘Yes, I didn't want to say anything but – yes, she did.’ And she bought somewhere else because she went into the displays and she wasn't acknowledged on the way in or the way out and not followed up and she said that she went to – I think it was McCarthy Homes at the time and said the lady there was just so open-arms. Got colouring pencils out for the kids. Warm and she said – like I rang this lady – I said, ‘Can you tell me exactly what happened?’ Because I said to Cassie, ‘Can I ring her?’ And she said, ‘Look, I just’ – she said, ‘We wanted to buy with Vantage and we didn't actually like the home we bought as much but this lady was so welcoming and understanding and just couldn't do enough for us. And we just thought that's worth so much.’ Yes.

So that you mentioned that that was at two different display homes? --- Yes. Yes. So that was – she went through Aura and she went through Harmony.” 32

[48] Under cross-examination, Ms Ivanni was shown the email dated 13 January 2021 33 setting out examples of issues with the Applicant’s work performance and agreed that the email referred to an email sent to the Applicant on 20 November 2020 about “friends of Cassie from accounts and referred potential buyer” coming through the displays and to look after them. Ms Ivanni agreed that this matter was not raised until the meeting on 11 January 2021 which was some time after the event.34 Ms Ivanni also agreed that none of the other issues listed in that email were previously raised with the Applicant.

[49] Mr O’Brien said that he and Ms Ivanni first had a discussion with Ms Scott who acknowledged that there had been repeated instruction to take client details and agreed to do so in the future. Mr O’Brien says that Ms Scott appeared to appreciate the feedback and advice on how to improve her sales techniques. Ms Ivanni’s evidence supports this, and she states that Ms Scott has since improved her service levels and sales.

[50] Ms Scott’s evidence also confirms that the meeting ended in a friendly manner and that she accepted the views that Mr O’Brien expressed. Ms Scott said that the issues raised at the meeting were that she had not taken the names and contact details of clients which Ms Ivanni had asked sales staff to do either by using a sign in sheet or a QR Code. Ms Scott said that in the meeting she acknowledged that this had not been done despite a clear instruction. Ms Scott also said that it was clear to her that she had been incorrect in listening to the Applicant about her criticism of the new processes and of Ms Ivanni and she communicated this to Mr O’Brien and Ms Ivanni at the meeting. Further, Ms Scott said that Ms Ivanni told her that she was happy to spend 2 – 3 hours per week with Ms Scott providing extra training in order to improve Ms Scott’s sales. According to Ms Scott her sales skill improved as a result of this additional training. Ms Scott said that clients given to her after the Applicant left employment, who were part way through the sales process, have had documentation with missing information, wrong plans, wrong lots, incorrect advice about upgrades and clients had missed deadlines.

[51] Ms Ivanni said that the meeting with the Applicant went in an entirely different direction to the meeting with Ms Scott and that the Applicant entered the room looking tense and aggressive. Ms Ivanni started the meeting by explaining the situation with the buyers who had come through and had not been acknowledged. Ms Ivanni said that Mr O’Brien spoke about how the Company had been implementing a new culture which had been spoken about at meetings attended by the Applicant, that it was expected that sales team members would follow direction and that this was non-negotiable.

[52] Ms Ivanni said that the Applicant got defensive and stated that she got great reviews from her clients and that Mr O’Brien and Ms Ivanni were focusing on one sale that she missed. Ms Ivanni said that the Applicant was told that they were trying to have a discussion and that there was no need for the Applicant to get defensive. Ms Ivanni also said that she told the Applicant that the Applicant received the most complaints in the office about not calling people back and that she is aggressive with the internal team.

[53] According to Ms Ivanni, the Applicant was asked several times by Mr O’Brien why she was getting defensive and Mr O’Brien told the Applicant it was not the right attitude and was “pissing him off”. Ms Ivanni said that the Applicant said that Ms Ivanni just sat in head office all day “banging out emails” and did not know what the Applicant did. In response, Ms Ivanni said that she stated to the Applicant: “Angela just be really clear, you don’t manage me, I manage you” and that this was not Ms Ivanni’s first time as a sales manager.

[54] Ms Ivanni maintained that during the meeting on 11 January and throughout the Applicant’s exchange with Mr O’Brien, the Applicant did not appear fearful, and was “leaning in to conflict”, telling Ms Ivanni and Mr O’Brien that they did not know their jobs and denying that they had the capacity to make an assessment of her performance. Ms Ivanni also said that Mr O’Brien did not raise his voice and was not aggressive. According to Ms Ivanni, Mr O’Brien spoke firmly but did not slam his fist on the desk as alleged. Ms Ivanni confirmed that Mr O’Brien did tell the Applicant that if she cannot get on board with what they are trying to do here, then she was not right for their business and could “f off”. Ms Ivanni stated that the Applicant replied with words to the effect of: “well clearly I'm not and will leave and you can go fuck yourself Shane” and walked out of the meeting. Ms Ivanni said that based on the Applicant’s actions and statement, she believed the Applicant had resigned and she advised Ms Bullock of that. Mr O’Brien also said that he believed the Applicant had resigned.

[55] Ms Ivanni confirmed in her oral evidence that the meeting on 11 January 2021 was called as a result of concerns about reports from the friend of a member of the Respondent’s accounting staff – Cassie – who complained of not being given service when she visited the display at Harmony, with her husband and children. Ms Ivanni said that she rang the customer to check details of her complaint and was told that she had bought from a competitor because she received better treatment on the day she visited the display with her children. 35 Ms Ivanni agreed under cross-examination as to the names of the customers and that the Applicant had in fact acknowledged that customer entering the display house but had been with another customer at the time. Ms Ivanni also agreed that the customer who complained had stated that she was acknowledged when she entered the display home but that her details were not taken, and this was the extent of the Applicant’s failure.36

[56] In her oral evidence, Ms Ivanni said that Mr O’Brien was not banging the table and did not raise his voice, but that his demeanour indicated that he was frustrated. In relation to Mr O’Brien swearing during the meeting, Ms Ivanni said:

“Did he swear? --- Yes. Yes.

And what was the context of him swearing? --- Oh, everyone knows Shane. It's ‘Fuck this.’ And ‘Fuck that.’ He's a builder and – you know – so he was just sort of more like, ‘Like, this is starting to fucking really piss me off.’ Yes, he did swear. But it wasn't an aggressive like – you know – like, ‘Go get fucked. You bitch.’ Or anything like that. It wasn't anything like that. Yes. He did at the end. He got upset. But not aggressively.

And did the applicant swear? --- Yes.

And what did she say? --- You can go fuck yourself, Shane. Yes.

And what part of the meeting was that? ---- Towards the end. Yes. Yes.” 37

[57] Under cross-examination, Ms Ivanni agreed that Mr O’Brien swore first but did not accept that he swore at the Applicant and said that: “He swore at her in a matter of fact way, saying ‘I’m getting frustrated Ange’. Like, yes, it wasn’t an attack.” Ms Ivanni also had the following exchange with Counsel for the Applicant in relation to Mr O’Brien swearing:

“In fact what Shane said to her was, ‘I don't like your fucking attitude, girlfriend. Why are you getting so defensive?’ Correct? --- I don't remember that being said like that, no.

And he said, ‘If you don't like it here you can fuck off. This is my business’, didn't he? --- He said, ‘This is my business’, definitely.

And as she left he called after her, ‘well, fuck off then.’ Correct? --- After she said, ‘You can go get fucked, Shane’, and got up and stormed out.” 38

[58] In relation to the decision to terminate the Applicant’s employment, Ms Ivanni had the following exchange with Counsel for the Applicant:

“So did you believe that her behaviour was consistent with ongoing employment? --- Yes, I did. I didn't think it was consistent with ongoing work

So you decided on 11 January that you were going to terminate her employment because her conduct was inconsistent, didn't you? --- No, we went into that meeting to - like, after the meeting, do you mean?

After the meeting? --- No, we didn't decide in that moment that we were going to terminate her employment; no.

Okay? --- We just - to be honest, at the end of the meeting we were quite shocked and gobsmacked that it went that way.

So the performance issues that you've raised, you didn't start to gather those until after the event. Correct? --- Well, no, they've been - they were ongoing through the three months, but I was only

But you'd never raised it with her? --- No, I hadn't, because I was going to give her the three months and then after that I was going to gather this information and say, "Look, I've observed you for three months and I think now even" - this is where we were going to start with that conversation.

So on 11 January you changed your mind and you decided to address these issues? --- We decided to address that particular issue, and then afterwards we said, "Well, look, we really" - but she had resigned after the meeting - during the meeting.” 39

[59] Mr O’Brien also said that the Applicant appeared tense and aggressive when she entered the room and stated that before she even sat down, the Applicant said words to the effect of “what am I here for” and sat with her arms crossed. Mr O’Brien said that he and Ms Ivanni started the meeting as they had with Ms Scott, explaining that they had feedback from a friend of a staff member, who had gone through the display home on Saturday and who was not acknowledged or spoken to. Mr O’Brien explained this was not acceptable, as they were trying to build their customer service. Mr O’Brien said that the Applicant quickly became defensive and angry, denying that she had not taken names of persons who visited the display home.

[60] Mr O’Brien also said that the Applicant started attacking Ms Ivanni’s management, accusing her of not going to the displays often enough to know what is going on, and stating that Ms Ivanni did not know how to manage a sales team. Mr O’Brien said that he told the Applicant to stop, that this was not about Ms Ivanni, it was about her needing to improve her sales performance.

[61] Further, Mr O’Brien said that he explained that this was about their reputation and that one poor experience can ruin years of building good will. According to Mr O’Brien, the Applicant then accused him of not knowing how to run a business, and he told her that she had crossed the line. Mr O’Brien said that he also confirmed that the meeting was only about the Applicant needing to improve her work, and that if she did not want to do this, she could leave. According to Mr O’Brien, the Applicant stood up and said:“alright I am fucking leaving”. Further, Mr O’Brien said that on exiting the meeting, the Applicant told him to “go fuck himself” or words to that effect.

[62] In oral evidence, Mr O’Brien said that it was a concern that the Applicant had not taken details of a potential customer because all salespersons know that they may get “mystery shopping” to understand the Company’s performance in the market place and in this case, a “mystery shopper” gave poor feedback. In relation to the meeting on 11 January 2021, Mr O’Brien said that the intention was to educate the Applicant about what the was trying to do in terms of customer service, to differentiate the Respondent’s business in the market. 40

[63] Mr O’Brien agreed that he did say to the Applicant words to the effect of: “I don’t like your fucking attitude girlfriend” 41 (although stating under cross-examination that he may not have used the term “girlfriend”)but maintained that he did not bang his hand on the table. Mr O’Brien also maintained that when the Applicant left the meeting on 11 January 2021, he believed that the Applicant had resigned. Mr O’Brien was asked what he said to Ms Bullock when she informed him that the Applicant denied resigning, and said: “No real surprise, based on behaviour previously, but I was a bit disappointed.” Mr O’Brien said that he then told Ms Bullock: “contact Fair Work and understand what we’ve got to do from here.”42

[64] Under cross-examination Mr O’Brien agreed that the issue raised at the meeting on 11 January 2021 was the Applicant’s failure to get contact details from a potential client. Mr O’Brien rejected the proposition that he told the Applicant that she failed to get contact details on 8 January (the weekend before the meeting) when the event happened on 20 November 2020. Mr O’Brien also rejected the proposition that his evidence meant that the information given to the Applicant in the show cause letter was false and said that the Company had been educating salespeople that no matter who comes through the door, they should be greeted and told that the salesperson would be with them in a minute. Mr O’Brien did not agree that on the occasion raised with the Applicant she had acknowledged the customers. Mr O’Brien did not know how many people went through the property on the weekend in question and said that all salespersons work alone and this issue is not relevant.

[65] Later, Mr O’Brien said that he did not expect that a salesperson would walk away from a client in front of her to take details from another person who may or may not be interested in a home, but rather that the person that is coming through the door should be acknowledged. 43 In relation to this issue, Mr O’Brien had the following exchange with Counsel for the Applicant:

“In the meeting you told Angela it was your friend, didn't you? --- Yes, because - - -

That was a lie, wasn't it, because it was Cassie's friend? --- I'm not a - love, I'm not on trial here. Yes, it was a lie - it was not a lie. It was just a - I don't want to get someone else in trouble so I directed the trouble to me. Why would I want to get a staff member that is helping my business, finding flaws from others, to not fix?

A moment ago you told the Commission it was a mystery shopper? --- That's how we mystery shop, with others.

That was a lie too, wasn't it? You didn't pay them to mystery shop your business? --- I don't pay mystery shoppers. They're people we know.

Okay? --- Sorry, but do you know much about building home and sales?

I'm not the one who is on trial here, Mr O'Brien? --- Okay.” 44

[66] Mr O’Brien confirmed that he had not placed the Applicant on a performance improvement program and said that this was because he could not find salespeople. Mr O’Brien rejected the proposition that he got angry because the Applicant corrected him when he told her that the potential customer had gone to another builder, by stating that the builder in question did not have a home in the village. Mr O’Brien maintained that the feedback was that the customers went to another builder who gave the customer’s children an iPad and sat them down and treated them differently to the treatment they received from the Applicant.

[67] Mr O’Brien also had the following exchanges with Counsel for the Applicant:

“You never - - -? --- All we were trying to do in that meeting - you're trying to turn this - you're very good barrister. Well done. What we were trying to do is just educate - I wasn't - it wasn't a personal attack. This is what happened.” 45

and later:

“There was no McCarthy Homes in the Harmony - - -? --- Excuse me, as I just said - please don't talk to me like I'm an idiot, love.” 46

[68] In response to the assertion that he felt that the Applicant was challenging him and he did not like that, Mr O’Brien said that he did not like being spoken to poorly. Mr O’Brien denied that he was the first person to swear but agreed that at the end of the meeting he did state to the Applicant: “If you don’t like it here you can fuck off. This is my business” and that he probably said the words attributed to him by Ms Ivanni. Mr O’Brien maintained that the Applicant swore first but rejected the proposition that he decided to dismiss her the moment she walked out the door, stating that he believed the Applicant had resigned.

[69] In re-examination, Mr O’Brien maintained that what he was talking about at the meeting on 11 January 2021 was an event that had occurred on the previous weekend and that he decided to address it immediately after he received the feedback. In this regard, Mr O’Brien said: “We mystery shop all the time.” 47

[70] The Applicant’s evidence is that Mr O’Brien used words to the effect of “you cost the company money, you cost the company a sale”. She states that Mr O’Brien was in an angry state when informing her of this and that Mr O’Brien raised his voice and banged his fist on the desk. The Applicant said that she tried to defend herself, and to explain to Mr O’Brien why she was unable to get the details of people visiting the display. The Applicant was with other clients at the time and had about 90 people through the display that weekend, while she was there on her own. The Applicant also said that she had people sitting and waiting for her and she did the best that she could in the circumstances.

[71] Further, the Applicant said that after she tried to explain herself, Mr O’Brien became aggressive and swore at her saying words to the effect of: “I don’t like your fucking attitude, girlfriend” and asked why she was getting defensive. The Applicant said that she got up and left the meeting, after being verbally abused and bullied, and that she did so to remove herself from an unsafe situation where she felt extremely threatened and overwhelmed by the way she was spoken to. The Applicant also said that she left the room to avoid any physical altercations, as this is how she felt the situation was going. The Applicant contended that as she left the room, Mr O’Brien yelled: “fuck off then”. The Applicant denies swearing back at Mr O’Brien during the exchange. In the alternative, the Applicant contends that if she did swear at Mr O’Brien, it would not be grounds for dismissal.

[72] In her oral evidence, the Applicant said that she was told at the meeting on 11 January 2021 that Mr O’Brien had some friends who had gone through the display home the weekend before and that while the Applicant acknowledged them when they entered, she was sitting down with someone and those persons had gone through the display and left, before the Applicant had taken their names. The Applicant said that she responded by telling Mr O’Brien that it was a busy weekend and some 90 people had gone through the display. The Applicant also said that she told Mr O’Brien that she had tried to get everyone’s details but that this was difficult. The Applicant conceded that she got defensive. Mr O’Brien then told the Applicant that the persons he was referring to had gone next door to another company’s display home and had received such great customer service that they were building with that company. The Applicant said that she queried Mr O’Brien on the basis that the company he named did not have a display home in the village where she was working. The Applicant said that at this point Mr O’Brien became aggressive and made the comments set out in her witness statement and the meeting became heated causing her to leave as she felt it was an unsafe situation. 48

[73] Under cross-examination, the Applicant accepted that she became defensive during the meeting but denied that she was told by Mr O’Brien and Ms Ivanni to calm down. The Applicant also denied that she went on the attack during the meeting or that she told Mr O’Brien that his management and his business are “shit”. The Applicant also denied that she told Mr O’Brien that he could “go and fuck himself”. 49 Ms Comerford gave evidence that the Applicant came to her home at around 10.30 am on 11 January 2021, and was distressed, shaking and teary.

[74] Ms Bullock’s evidence was that at approximately 10.30am on 11 January 2021, the Respondent’s Receptionist asked her to go and see Mr O’Brien, who was in his office with Ms Ivanni. Ms Bullock was told that the Applicant had resigned. Ms Bullock asked what had happened, and was told by Mr O’Brien and Ms Ivanni that the Applicant would not listen to their concerns about her failure to take client details despite instruction to do so and had attacked their management abilities. Ms Bullock says Mr O’Brien told her that the Applicant had said his management was “crap and the company was crap” and had told him to “go fuck himself” as she left the meeting.

[75] Ms Bullock said that she is aware of the concept of “heat of the moment resignation” and wanted to confirm that the Applicant had resigned prior to processing any termination. Accordingly, Ms Bullock sent the Applicant an email stating that she understood she had resigned and seeking confirmation of this. Ms Bullock says that she received a response from the Applicant stating that she had not resigned. That response was tendered by Ms Bullock and is in the following terms:

“This is not correct, I feel the information that has been given to you has been misinterpreted.

What has occurred this morning is I was called into a meeting with Shane and Tonia, during this meeting I was verbally attacked, bullied, intimidated and abused with absurd language by Shane O’Brien in a highly unprofessional manner.

I walked out as I felt very stressed and unsafe in that environment so I removed myself from that situation.

By no means have I resigned, I have worked too hard for this.” 50

[76] Under cross-examination, Ms Bullock agreed that the incident on 11 January 2021 brought her concerns about the Applicant to a head and that she had not warned the Applicant about those concerns before that date. Ms Bullock also agreed that a performance plan had not been instituted in relation to any concerns with the Applicant’s work performance. In relation to the view expressed in her witness statement that the Applicant was unwilling to acknowledge the need for performance improvement and that this made her employment untenable, Ms Bullock agreed that the Applicant had not been warned about her performance at that point but said that there had been email communication between the Applicant and Ms Ivanni that helped in the formation of that opinion. 51

[77] Ms Bullock also agreed that the Applicant had stated in an email dated 11 January 2021 that she felt attacked, bullied, intimidated and abused and that Ms Bullock did not respond or offer support to the Applicant and did not investigate this claim. Ms Bullock accepted that both Ms Ivanni and Mr O’Brien agreed that Mr O’Brien swore at the Applicant during the meeting and that the Applicant interpreted this as bullying. Ms Bullock also accepted that it would be appropriate for the Applicant to have walked away from the meeting if her version of “what went down” at the meeting was correct. In response to the proposition that the Applicant believed she was in an unsafe situation, Ms Bullock said that the Applicant was saying this “after the fact”. 52 Ms Bullock confirmed that her understanding that the Applicant told Mr O’Brien that he had a shit business, was derived from what Mr O’Brien told her after the meeting of 11 January, and that this could have been a generalised summary of Mr O’Brien’s perception.

[78] Ms Ivanni said that she was surprised when Ms Bullock informed her that the Applicant denied resigning and that she had a discussion with Ms Bullock and Mr O’Brien about how the Applicant’s multiple performance issues might be addressed. Ms Ivanni said that during this discussion it was agreed that the Applicant’s behaviour in telling Mr O”Brien to “go and fuck himself” particularly in the context of a blanket refusal to accept a need for performance improvement, was inconsistent with ongoing employment. Ms Bullock was requested to prepare a show cause letter that outlined the areas where the Respondent would need to see improvement if the Applicant was going to remain employed. Ms Ivanni also said that Ms Bullock informed her that after receiving the show cause letter the Applicant asked for specific examples of performance shortfalls and she provided some examples for Ms Bullock to pass on to the Applicant for discussion at a meeting on 14 January 2021.

[79] Mr O’Brien’s evidence is that he told Ms Bullock he expected the Applicant to apologise for her behaviour in the meeting of 11 January 2021, and to demonstrate an openness towards performance improvement if she intended to remain employed. He said that he advised Ms Ivanni and Ms Bullock that they should meet with the Applicant and determine if she was remorseful, and if they felt that she would work with them productively in future. Mr O’Brien said that Ms Bullock and Ms Ivanni had authority to decide whether or not to terminate the Applicant’s employment on the basis of her response in a show cause meeting. In his oral evidence, Mr O’Brien said that when he was informed that the Applicant denied that she had resigned, he understood that Fair Work would be contacted to understand “what we’ve got to do”. 53

[80] Ms Bullock said that after her discussion with Ms Ivanni and Mr O’Brien about what would be needed to make the Applicant’s employment workable, it was apparent to her that they had two problems: the ongoing performance issues that the Applicant refused to acknowledge, and her extreme disrespect to both Mr O’Brien and Ms Ivanni. Ms Bullock said that while she had reservations whether the employment relationship could be recovered, she nevertheless decided to give the Applicant an opportunity to put her views on the future of her employment by issuing the Applicant a show cause letter.

The show cause letter

[81] An email termed by the Respondent as a “show cause” letter was issued on 11 January 2021 under the signature of Ms Ivanni. That letter (tendered by Ms Bullock) stated that at a meeting with the Applicant on 11 January 2021, to discuss feedback from a potential client’s recent display home visit, the Applicant would not listen to the concerns of Ms Ivanni and Mr O’Brien and had stated that she was an excellent salesperson and did not need to change her approach. The show cause letter went on to state that:

“As you are aware, it was the impression of Shane and myself that when you abruptly left the meeting your words ‘fuck off I am leaving then’ in the context of the discussion were understood to be a resignation. You have advised that this was not your intent. However the question of your fit for the team remains unanswered, particularly given your foul and disrespectful language used toward out (sic) director.

I require you to attend a meeting on Tuesday 12 January at 11 am with Kendra and myself to answer the following questions:

1. Are you willing to following management directions and accept oversight in the delivery of your role?

2. Do you accept your behaviour on Monday was unacceptable?

3. Are you willing and able to deal respectfully with management and co-workers?

4. Why should the company have confidence that the employment relationship has not been irreversibly harmed as a result of your actions in Monday’s meeting.” 54

[82] Ms Bullock said that the Applicant replied by email requesting specifics of when she had not met company expectations, which she was provided with by email. Ms Bullock also said that a meeting was scheduled at a time convenient to the Applicant to address the concerns raised. As the Applicant stated that she did not feel comfortable going back to head office with Mr O’Brien there, the meeting was scheduled for 14 January 2021, at a park. In her oral evidence Ms Bullock said that her intention in sending the show cause letter was to see whether the Applicant would show remorse for having aggravated and escalated the meeting on 11 January. Ms Bullock also said that the Applicant’s response to that letter was essentially to answer “yes” or “no” to the question set out in the show cause letter and that this did not show the Respondent there was any change in the Applicant’s position.

[188] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to the Applicant. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

[189] The established approach to assessing compensation in unfair dismissal cases was set out in Sprigg v Paul Licensed Festival Supermarket 91 and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases as follows:92

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 5: Apply the legislative cap on compensation.

Remuneration the Applicant would have received, or would have been likely to receive, if she had not been dismissed (s 392(2)(c))

[190] Calculations of damages or compensation involve an element of speculation in determining an employee’s anticipated period of employment. This is because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 93

[191] The difficulty in the present case is the lack of evidence about the economic state of the residential housing industry at the time the Applicant was dismissed and the failure of the Respondent to address this issue by calling evidence, despite being given an opportunity to do so. At the conclusion of the hearing in April there was an adjournment of almost three weeks, as the parties wished to refer to the transcript of proceedings before making closing submissions. I requested the representatives of both parties to have discussions during the adjournment and attempt to determine a weekly amount as a reference point if it was necessary for me to calculate compensation. The parties subsequently advised that they had been unable to reach agreement on a discount to be applied to any award of compensation to reflect negative changes that the Respondent contended had occurred in the residential construction market since the Applicant’s dismissal.

[192] The Respondent in its oral closing submissions said that these changes should be taken into account in determining any compensation. I put to the Respondent’s representative that there was no evidence before the Commission in relation to negative changes to the residential construction market referred to in the Respondent’s oral closing submission. I also pointed out that there was an apparent disconnect between the submission that the residential construction market is suffering negative effects for the purposes of assessing compensation and the assertion put to the Applicant in cross-examination that the residential construction industry was “red hot” and that there were plenty of jobs that she could have applied for 94. Given that the hearing of this matter was conducted in April 2021, it was implicit that the assertion that the market was “red hot” related to that point in time. In reply to this question, the Respondent’s representative stated that the assertion was an error and that it was intended to assert that the market was doing well until February 2021 when a Government incentive known as Home Builder concluded. 95

[193] I am not satisfied that there should be a discount to the calculation of the amount of lost remuneration, based on conditions in the residential construction market in the estimated period of employment. There is no evidence to support such a discount. Further, there is information to the contrary on the website of the Master Builder’s Queensland, dated December 2020, which indicates that there was some extension to the Home Builder grant.

[194] I am satisfied that if the Applicant had not been dismissed on 14 January 2021, she would have remained employed by the Respondent for a further 12 weeks. I make this finding based on the fact that Ms Ivanni had been appointed relatively recently and was in the process of determining what needed to occur in order to improve the performance of the Respondent’s salespersons generally. While Ms Ivanni’s evidence was that her approach to this task was to observe salespersons and work proactively with them rather than issuing them with warnings, there were issues with the Applicant’s work performance which could properly have been raised by Ms Ivanni. In this regard, some of the issues raised in the meeting on 11 January 2021, while not being of sufficient weight to justify dismissal, were legitimate performance issues that could have been the subject of a performance improvement program.

[195] I am also of the view that notwithstanding that the Applicant’s conduct at the 11 January meeting was a reaction to that of Mr O’Brien, the Applicant would not have responded well to any performance issues raised by Ms Ivanni. This is apparent from the Applicant’s earlier reaction to the email Ms Ivanni sent to her about the use of the “Our Gift To You” promotion. Further, the level to which the meeting on 11 January 2021 degenerated and the antipathy between Mr O’Brien and the Applicant, is not consistent with ongoing employment for a period of greater than 12 weeks.

[196] In the 12 week period from 14 January 2021, the Applicant would have earned an amount of $45,271.32 based on her average weekly commission of $3772.61 for the 28 week period from 1 July 2020 to 14 January 2021 and superannuation contributions of 9.5%.

Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))

[197] At the point the matter was heard the Applicant had not obtained alternative employment and had no income from other non-refundable sources.

Viability (s 392(2)(a))

[198] No submission was made on behalf of the Respondent that any particular amount of compensation would affect the viability of the Respondent’s business. My view is that no adjustment will be made on this account.

Length of service (s 392(2)(b))

[199] The Applicant’s length of service with the Respondent (over 3 years) does not justify any adjustment to the amount of compensation.

Mitigation efforts (s 392(2)(d))

[200] The Applicant did not take reasonable steps to obtain alternative employment following her dismissal. The Applicant applied for 12 positions but did not apply for any positions in the field she had worked in. In her evidence the Applicant said that there was no reason for her failure in this regard. The Applicant did not dispute the proposition put to her in cross-examination that there were many sales positions available in the residential construction industry at the time her employment ceased and up to at least April 2021 when her application was heard.

[201] I have decided that it is appropriate to reduce the amount of compensation by an amount of 20% to reflect the Applicant’s failure to mitigate her loss. This reduction results in an amount of $36,217.00.

Any other relevant matter (s 392(2)(g))

[202] It is necessary to consider whether to discount the amount of compensation ($36,217.00) for contingencies. This step is a means of accounting for the possibility of the occurrence of contingencies to which the Applicant was subject, which might have brought about some change in earning capacity or earnings. 96 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

[203] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision. 97

[204] Because I am considering an anticipated period of employment which had already passed at the time the hearing of this application concluded, there is no uncertainty about the Applicant’s earnings, capacity or any other matters during that period of time. The Applicant’s submission that a 35% deduction should be made for contingencies would have been relevant in the event that I determined an anticipated period of employment that extended beyond the date the matter was determined. In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $36,217.00 for contingencies.

[205] I do not intend make any deduction for wages paid to the Applicant in lieu of notice, on the basis that those wages would have been required to be paid in any event if the Applicant’s employment had continued for the period I have estimated that she would have remained in employment. If the Applicant was dismissed for performance issues of the type identified by the Respondent, notice would have been payable on termination of her employment. Further, I accept that the notice payments made to the Applicant were deducted from commission amounts paid after her employment ended. While this may have been consistent with her contract of employment those details were not in evidence and it is unclear whether the Applicant was covered by a modern award that provided for the debit credit arrangement that was applied to the Applicant’s remuneration.

[206] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount to be taxed according to law.

Misconduct (s 392(3))

[207] The Applicant did not engage in any misconduct, so my view is that this has no relevance to the assessment of compensation and no deduction should be made on this basis.

Shock, distress or humiliation, or other analogous hurt (s 392(4))

[208] I note that in accordance with s 392(4) of the Act, the amount of compensation I have calculated does not include a component for shock, humiliation or distress.

Compensation cap (s 392(5)-(6))

[209] The amount of $36,217.00 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which the Applicant was entitled in her employment with the Respondent during the 26 weeks immediately before her dismissal. In those circumstances, my view is that there is no basis to reduce the amount of $36,217.00 by reason of s 392(5) of the Act.

Instalments (s 393)

[210] The Order for compensation was issued on Monday 9 August 2021 and no application has been made to date by the Respondent for any amount of compensation awarded to be paid in the form of instalments.

Conclusion on compensation

[211] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is no basis for me to reassess the assumptions made in reaching the amount of $36,217.00. 98

Conclusion

[212] For the reasons I have given, my view is that a remedy of compensation in the sum of $36,217.00 (less taxation as required by law) to be paid to the Applicant and superannuation contributions of $3,440.92 to be paid into the Applicant’s nominated superannuation fund is appropriate in the circumstances of this case. An Order 99 to that effect was issued on 9 August 2021.

DEPUTY PRESIDENT

Appearances:

Ms P Willoughby of Counsel instructed by Stonegate Legal for the Applicant.

Ms E Kirkby of Master Builders Queensland for the Respondent.

Hearing details:

19 & 20 April; 6 May.

2021.

Brisbane.

Printed by authority of the Commonwealth Government Printer

1 Witness Statement of Angela Hastings Exhibit A3.

2 Witness Statement of Donna McIntosh Exhibit A1.

3 Witness Statement of Michelle Comerford Exhibit A2.

4 Witness Statement of Ms Kate Mayne Exhibit A6.

5 Witness Statement of Brad Kopcikas-Yates Exhibit A8.

6 Exhibit R1 Statement of Kendra Bullock dated 1 April 2021.

7 Exhibit R2 Statement of Tonia Ivanni.

8 Exhibit R3 Statement of Susan Elizabeth Winter.

9 Exhibit R4 Statement of Shawnee Collier.

10 Exhibit R5 Statement of Sarah May Scott.

11 Exhibit R6 Statement of Shane O’Brien.

12 Transcript PN135 – 147.

13 Exhibit R1 at Attachment A.

14 Transcript PN398 – 402.

15 Exhibit R4 – Statement of Ms Shawnee Collier Attachment C.

16 Ibid – Attachments A and B.

17 Ibid – Attachment D.

18 PN1150 – 1153.

19 Transcript PN1157 – 1162.

20 Transcript PN450.

21 Transcript PN452.

22 Exhibit R2 – Witness Statement of Ms Tonia Ivanni, Attachment B.

23 Transcript PN798- 799.

24 Transcript PN788.

25 Exhibit R1 – Witness Statement of Ms Kendra Bullock, Attachment C.

26 Ibid – Attachment C.

27 Ibid – Attachment D.

28 Transcript PN560 – 565.

29 Transcript PN589 – 583.

30 Transcript PN1352 – 1357.

31 Transcript PN1092.

32 Transcript PN801 – 802.

33 Exhibit R1 Statement of Ms Bullock – Attachment H.

34 Transcript PN950 – 951.

35 PN801.

36 PN950 – 954.

37 Transcript PN818 – 822.

38 Transcript PN97 – 978.

39 Transcript PN985 – 991.

40 Transcript PN1377.

41 Transcript PN1387.

42 Transcript PN1397.

43 Transcript PN1431 – 1443.

44 Transcript PN1425 – 1430.

45 Transcript PN1445.

46 Transcript PN1468.

47 Transcript PN1507 – 1508.

48 Transcript PN161 – 164.

49 Transcript PN270 – 273.

50 Ibid – Attachment F.

51 Transcript PN604 – 609.

52 Transcript PN666 to 671.

53 Transcript PN1438.

54 Exhibit R1 – Witness Statement of Ms Kendra Bullock, Attachment G.

55 Exhibit A5; Transcript PN200 – 217.

56 Transcript PN672 – 689.

57 Ibid – Attachment H.

58 Transcript PN708 – 711.

59 Transcript PN284 – 287.

60 Transcript PN491.

61 Transcript PN1000, 1007.

62 Transcript PN333 – 339.

63 Transcript PN342 – 345.

64 Transcript 6 May 2021 at PN193.

65 Transcript 6 May 2021 at PN194.

66 [2012] FWA 8300.

67 Transcript 6 May 2021 PN110.

68 Transcript 6 May 2021 at PN120.

69 Transcript 6 May PN113.

70 Transcript 6 May 2021 at PN115.

71 Transcript 6 May 2021 at PN116.

72 Transcript 6 May 2021 at PN121.

73 Transcript 6 May 2021 at PN122.

74 Transcript 6 May 2021 at PN123.

75 Transcript 6 May 2021 at PN124.

76 Transcript 6 May 2021 at PN118.

77 Transcript 6 May 2021 at PN119.

78 Transcript 6 May 2021 at PN132.

79 Ibid.

80 Transcript 6 May 2021 at PN144.

81 Transcript 6 May 2021 at PN148.

82 Transcript 6 May 2021 at PN163.

83 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

84 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

85 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

86 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

87 Bista v Glad Group Pty Ltd[2016] FWC 3009.

88 Heran Building Group Pty Ltd v Anneveldt[2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.

89 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

90 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]

91 (1998) 88 IR 21

92 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431

93 Double N Equipment Hire Pty Ltd v Humphries[2016] FWCFB 7206 at [16]-[17]

94 Transcript 6 May 2021 PN182 to PN183.

95 Transcript 6 May 2021 PN at PN185 to 187.

96 Ellawala v Australian Postal Corporation Print S5109 at [36]

97 Enhance Systems Pty Ltd v Cox PR910779 at [39]

98 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]

99 PR732621.

Angela Hastings v Vantage Holdings Australia Pty Ltd

[2021] FWC 5035

16 AUGUST 2021

REASONS FOR DECISION

Conclusion on compensation