Anthony Webb v Austral Pty Ltd t/as Porsche Centre Brisbane
[2011] FWA 8090
•29 NOVEMBER 2011
[2011] FWA 8090 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Anthony Webb
v
Austral Pty Ltd t/as Porsche Centre Brisbane
(U2011/4881)
SENIOR DEPUTY PRESIDENT ACTON | MELBOURNE, 29 NOVEMBER 2011 |
Application for unfair dismissal remedy.
Introduction
[1] Mr Anthony Webb made an unfair dismissal remedy application to Fair Work Australia (FWA) on 8 February 2011. Mr Webb was employed by Austral Pty Ltd, which trades as Porsche Centre Brisbane (PCB). Mr Webb was a new car salesperson for PCB with responsibility for the sale of the full range of Porsche motor vehicles, including the “Cayenne” luxury SUV lines. He was employed by PCB in February 2004 and dismissed on 31 January 2011.
Proceedings
[2] Mr Webb’s application was heard by FWA in June, September, October and November 2011. The parties filed submissions and witness statements or affidavits in respect of the application both before and over the course of those proceedings.
Background to the dismissal
[3] The background to Mr Webb’s dismissal was that on 9 January 2011, Mr Webb was in possession of a Porsche Cayenne SUV (the Porsche) with the consent of PCB. The Porsche was owned by Porsche Cars Australia (PCA), the Australian distributor of such cars. The Porsche was known as a “press car” as it was loaned by PCA to television and print motoring journalists and celebrities for reviews and promotions. The Porsche was in the custody of PCB for it to be cleaned, serviced and maintained in readiness for forthcoming media bookings. While the Porsche was in the possession of Mr Webb, extensive engine and related damage was caused to the car.
[4] The evidence before FWA indicated that Mr Webb is passionate about Porsche motor vehicles, that he had a two day training course in 2010 in respect of models the same as the Porsche in his possession on 9 January 2011 and that he is very knowledgeable about the product. Mr Webb’s evidence was that on 9 January 2011 he drove the Porsche from Brisbane to his father’s property in regional Queensland. His father’s property is normally about a one hour drive by car from Brisbane. Under cross-examination in June 2011, Mr Webb initially said he left Brisbane at “approximately 10.00 am” 1 to travel to his father’s property and it took him “about one hour”2 to get there. He then said that actually he thought he had arrived “about 12.00 o’clock”.3 Mr Webb’s mobile telephone records, which were filed in August 2011 at the request of FWA, indicate a telephone call was made from his mobile telephone from a location near Brisbane to his father’s mobile telephone at 1.43 pm on 9 January 2011 and another telephone call was made from his mobile telephone from a location near his father’s property to his father’s mobile telephone at 2.40 pm on 9 January 2011. In light of this, Mr Webb gave further evidence in November 2011 that he arrived at his father’s property around 2.45 pm on 9 January 2011.4
[5] Mr Webb’s evidence in June 2011 went on to indicate that during the trip to his father’s property it was raining and as he approached his father’s property he noticed there was water across a spillway near the property. Mr Webb said he drove through that water to arrive at his father’s property and then had lunch at the property. Mr Webb initially said lunch “took a couple of hours”. 5 However, under cross-examination in June 2011 he said he was at lunch at his father’s for “probably three or four hours”6 and lunch finished between 3.00 pm and 4.00 pm.7 In further evidence given in November 2011, Mr Webb said “lunch took a couple of hours”.8
[6] Mr Webb’s evidence in June 2011 continued as follows:
“27. During lunch ... it continued to rain and then, after lunch ... I decided that it might be best to leave earlier than we planned in case the water rose over the spillway and I was flooded in.
28. I drove the Cayenne down the road to the spillway. The water was already deeper. I walked into the running water to test its depth. I discovered that it was just to my knee. The water was flowing - but to [sic] so strongly that I couldn’t walk through it.” 9
[7] Mr Webb also said that the water was about 50 metres across. 10 He went on to state as follows:
“29. To be safe, I telephoned my father and asked him to come down to the spillway with his Toyota Hilux 4WD. I wanted to see whether he thought it was safe to take the Cayenne through the water. I asked him if he would drive through in the Hilux to check that the spillway wasn’t washed out or too rough underneath the water.
30. I also wanted to check if the Hilux could get through because the Cayenne was a little heavier and if the Hilux could get through, then the Cayenne should be safe to go through.
31. My father drove the Hilux through the spillway. He said that nothing was washed out or rough, and after discussing with my father, we decided that it would be safe to take the Cayenne (since it was a 4WD) through without any problems. I thought it was best to do so then rather than wait because if the water rose much more, we might have been stranded at my father’s place in [sic] the vehicle had to be returned to work the next day.
32. I proceeded to follow my father through the spillway. My father had driven his Hilux back through the spillway and then back again in front of me. The Cayenne made it through the spillway without any difficulty. I stopped the vehicle on the other side to speak to my father and while stopped, the Cayenne stalled.
33. My father said to me words to the effect ‘I don’t know why it stalled, but whatever you do, don’t try starting it in case water is sitting in the airbox. If you do and there is water, it could cause damage to the motor. Wait and have a mechanic check it out in’.” 11
[8] Mr Webb was cross-examined in June 2011 about the telephone call to his father to come down to the spillway with his Toyota Hilux 4WD (Hilux). During that cross-examination the following exchange took place between counsel for PCB and Mr Webb:
“PN453 And you asked your father to come down in his Hilux?---Mm'hm.
PN454 You rang your dad?---Yes.
PN455 You were down at the water and he's back up within the house?---Yes.
PN456 And then you got your mobile phone out and rang him?---Yes
PN457 And you asked him to come down?---Mm'hm.
PN458 He came down in his Hilux. The Hilux is a Toyota four-wheel drive ute? ---Yes.” 12
[9] Mr Webb’s evidence under cross-examination in June 2011 was that this water crossing occurred between 4.00 pm and 5.00 pm. 13 Under cross-examination in November 2011, Mr Webb’s evidence was that the water crossing occurred around 6.00 pm.14
[10] Mr Webb’s mobile telephone records do not indicate any telephone call having been made from his mobile telephone on 9 January 2011 after 2.40 pm. Under cross-examination in November 2011, the following exchange took place between counsel for PCB and Mr Webb on this matter:
“PN1802 MR FORBES: At paragraph 29 of the statement which you swore was true and correct you said, "To be safe, I telephoned my father and asked him to come down to the spillway with his Toyota Hilux four-wheel drive." Do you remember that?---I do.
PN1803 You've had the opportunity to review your mobile phone account and you would agree with me, wouldn't you, that there is no record of you having made a telephone call to your father after 2.40 in the afternoon on 9 January?---That's correct.
PN1804 In your evidence when I cross-examined you, you confirmed that you got out your mobile phone and rang your father from the spillway?---That's correct. To the best of my knowledge, I remember at the time using my mobile phone - - -
PN1805 Yes?--- - - - but it wasn't my mobile phone.
PN1806 So in your statement where you said that you rang your father and then subsequently in your evidence where you said that you got out your mobile phone and rang your father, are you now saying that that is not true?---I used my visitor's mobile - friend's mobile.
PN1807 I see?---(indistinct)
PN1808 You've not mentioned that before today, have you?---No.
PN1809 It's the case, isn't it, that that is about all you can say about the matter because there is no other explanation?---No, that's right.
PN1810 Do you have a clear recollection of that occurring?---You know, after the events and time that's elapsed, it has come back to me now that I did not have possession and I did use my friend's mobile phone to call my father. That's how he got down to the creek.
PN1811 When did that come back to you?---Just in the last couple of months.
PN1812 And you didn't see fit to make reference to that recollection in the affidavit you just filed today in this proceeding?---I guess not.
PN1813 So when you said under cross-examination that you got your mobile phone out, that was an untrue statement?---Well, I did believe that it was my phone at the time. Then after having examined the telephone records that must have been - it came back to me that I did ask to use my visitor's phone because I didn't have reception.” 15
[11] Mr Webb also said in his evidence in June 2011 that around 5.00 pm or 6.00 pm 16 he sent a text message to Mr James Simpson, General Manager (Sales) at PCB, asking Mr Simpson to call him and Mr Simpson telephoned him approximately five minutes later.17 Mr Webb further said that he then rang Mr Simpson back on his father’s landline telephone as there was bad reception on his mobile telephone.18 The mobile telephone records of Mr Simpson indicate that a telephone call was made from Mr Simpson’s mobile telephone to Mr Webb’s mobile telephone at 7.34 pm on 9 January 2011. The landline telephone records of Mr Lino De Zen, Mr Webb’s father, indicate that telephone calls were made from his landline telephone to Mr Simpson’s mobile telephone at 7.36 pm and 7.37 pm on 9 January 2011.
[12] In June 2011, Mr Webb said that:
“40. After this, I was not happy at the thought of leaving the Cayenne by the roadside all night. Later in the evening, I went back down to check on the vehicle and the water had stopped flowing over the spillway. So, I had my father tow the vehicle back to his house where it would be safe.
41. We took the air filters out of the vehicle to see if there was much water in them. We noticed that they were wet. My father and I put them in front of a fan so that they had the chance to dry out overnight.” 19
[13] Under cross-examination in June 2011, Mr Webb said the following about when the Porsche was towed to his father’s property:
“PN616 Or was it towed back before you called Mr Simpson?---I think it might have been but I'm not 100 per cent sure if it was or just - because when I tried to ring him from my mobile when I was outside and I went and towed the vehicle back up.
PN617 So you can't recall whether - - -?---I think we had it already up there at the time when I rang James.
PN618 So before you call Mr Simpson - - -?---I think I had the vehicle already up there.
PN619 - - - the car had already been towed back?---Yes.” 20
[14] In his evidence in November 2011, Mr Webb said the following in respect of the telephone calls with Mr Simpson and when the Porsche was towed to his father’s property:
“7. Looking at my father’s landline phone records, as I say in my original statement I had two telephone conversations with Mr Simpson that evening although I tried to contact him by sending a text before we eventually spoke. I would have used my father’s landline phone due to problems with reception on my mobile.
8. I believe that the first call in which we spoke occurred at 7.34pm and in that call I explained what had happened. I was not sure about the exact sequence of events when I gave my evidence at the hearing but having seen the phone records I believe that we had towed the vehicle back to the shed on my father’s property by the time I had the first telephone call with Mr Simpson.
9. Between the first telephone conversation I had with Mr Simpson and the second telephone conversation I had with him on the evening of 9 January 2011 I went and tried to start the vehicle as he had told me to do. As soon I hung up I went straight out to try to start the car.
10. When we towed the car back from the spillway we put it in the shed on my father’s property. The shed is about 40 m from my father’s house.” 21
[15] Under cross-examination in November 2011, Mr Webb said the following about the towing of the Porsche:
“PN1839 Is that right? You now say that having seen your phone records, you believe that the vehicle was towed back to your father's shed before you called Mr Simpson?---That's right.
PN1840 What is it about the phone records that tells you that you must have taken the vehicle or towed the vehicle back to the shed before you called Mr Simpson?---I'm unclear about the question; I don't understand.
PN1841 At paragraph 8 of your affidavit you say, "I was not sure about the exact subsequence of events when I gave my evidence at the hearing but having seen the phone records, I believe that we had towed the vehicle back to the shed on my father's property by the time I had the first telephone call with Mr Simpson"?---That's correct.
PN1842 You've just sworn that that true and correct?---Yes.
PN1843 I'm asking you, what is it about the phone records which causes you to believe that you must have towed the vehicle back to your father's shed?---I don't know, to be honest.
PN1844 It's the case, isn't it, Mr Webb, that you are simply trying to fit your evidence to the phone records?---No, I called my father to come down, we towed the vehicle back to the shed and then I called James.
PN1845 You see, in the statement that you swore back on 21 June that you swore was the truth, the whole truth and nothing but the truth you said - and I will just read it to you - at paragraph 33 - you've recounted in your statement about how the car stalled and so forth after you drove through the spillway. Then at paragraph 33 you said, "My father said to me words to the effect, 'I don't know why it's stalled but whatever you do, don't try starting it in case water is sitting in the air box. If you do and there is water, it could cause damage to the motor. Wait and have a mechanic check it out.'" Then you said, "I decided I should telephone James Simpson and asked him what he thought I should do. I have poor mobile reception at my father's house so I drove back to my father's house with my father and called James on his mobile phone number." You don't say anything about towing the vehicle back before you called Mr Simpson?---Yes, but we did.
PN1846 So you now have a clear recollection that the vehicle was towed back from the water, from the spillway, back to your father's house, before you called Mr Simpson?---Yes.
PN1847 But you didn't have a clear recollection when you gave your evidence in June?---Yes.
PN1848 And you didn't have a clear recollection when you made your affidavit in April? ---Yes.
PN1849 But you have a clear recollection now?---Yes.
PN1850 You see, at paragraph 40 of your previous statement - after you told us about telephone calls to Mr Simpson and so forth, at paragraph 40 you said, "After this, I was not happy at the thought of leaving the Cayenne by the roadside all night. Later in the evening I went back down to check on the vehicle and the water had stopped flowing over the spillway so I had my father tow the vehicle back to his house, where it would be safe." So - - -?---That's my recollection.
PN1851 So your previous recollection was that this all occurred later in the evening and your clear recollection now is that you towed the vehicle back before you called Mr Simpson?---Yes.
PN1852 Have you read your father's witness statement?---No, I haven't.
PN1853 You're not aware of the evidence he gave in this case?---I can't recall it, no.
PN1854 Your father said in his evidence - from paragraph 10 - he said, "I crossed the spillway safely. Anthony then crossed the spillway and did so successfully. Just after he was through, however, the Porsche stalled. He and I tried to start the car but it would not start." Do you agree with that evidence?---I don't recall - I don't believe we tried starting it until the vehicle was back in my father's shed.
PN1855 "And Anthony said to me words to the effect that he had better call his boss." Is that what occurred? Sorry?---Yes.
PN1856 Yes?---Yes.
PN1857 And your father says, "I drove Anthony back to my house to call his boss." Is that what happened?---Well, he did drive me back, you know, like we did go back together but we did tow back the Cayenne before then.
PN1858 You see, your father says at paragraph 14, "We left the Porsche on De Zen Road"?---We did go - like I said, we had to go back and get the tractor so we had to leave the Cayenne there. We went back to the property, my dad's house, in the Hilux to get the tractor.
PN1859 Yes?---Correct.
PN1860 Your father says, after saying, "We left the Porsche on De Zen Road. Anthony took the" - he says, "We left the Porsche on De Zen Road. Anthony took the visitors to their destination using my Hilux"?---The following night.
PN1861 Your father said, "That evening, after the rain had eased, Anthony and I went to the spillway and saw that the water had dropped and was not flowing over the road. Rather than leave the Porsche sitting by the roadside, we towed it back to my house where it would be safe overnight." Is that what happened?---We did do that, yes.
PN1862 Your father gave evidence that you called Mr Simpson before any of that occurred?---Well, I did attempt to but didn't have mobile phone reception.
PN1863 Your father says, "I drove Anthony back to my house to call his boss. He telephoned someone - I assumed it was his boss - to tell his boss that the car had stalled." From following the sequence of his statement, he says that occurred before you towed the car back. Do you agree with what your father says and what you previously stated or do you now say that the car was towed back before you called Mr Simpson?---My recollection, after looking at the phone evidence, is that that changed obviously the time that the events occurred. I thought it was a couple of hours earlier rather than a couple of hours later. I was just trying to recall the best information I could and I guess my father forgot, having been six months after the event - or seven months.
PN1864 When I cross-examined you back in June, I asked you about a video that you took on your iPhone and I think you conceded that you did take a video on your iPhone at the time?---Yes, I did.
PN1865 And that that video has now been deleted?---Correct.
PN1866 You said under cross-examination that you also took a photo or two?---I did ...
PN1872 I'm not sure how this works, your Honour, but there were some documents that have been I think scanned and sent up to Brisbane. There should be three photographs ...
PN1886 MR FORBES: Mr Webb, those three photographs you've seen before? Yes?---Yes
PN1887 Did you take each of those photographs?---No, I only took the one showing the flood.
PN1888 You took the photograph which shows water over the road?---Yes.
PN1889 That is a photograph that was taken through the front windscreen of the Porsche vehicle?---That's correct.
PN1890 On your mobile phone?---Yes ...
PN1897 MR FORBES: That photograph, Mr Webb, was a photograph - I just want to be clear on this - that you took?---Yes.
PN1898 On your mobile phone?---Yes.
PN1899 From the edge of the spillway?---Yes.
PN1900 To show the water that you were proposing to cross?---No, that was taken before we towed the vehicle. We turned the vehicle around and that was taken before we towed the vehicle through the water - probably an hour or so before we towed the vehicle through the water on the way back to my father's property. That's approaching my father's property, not leaving my father's property ...
PN1901 That is - - -?---So that's - - -
PN1902 That's the point, isn't it, Mr Webb, that's approaching your father's property?
---That's correct.
PN1903 I put it to you that that photograph was taken before you attempted to cross the water on the way to your father's property?---That's incorrect.
PN1904 The vehicle is facing your father's property?---Yes.
PN1905 How did the vehicle find itself facing your father's property if it had stalled after going through the water towards the highway?---That's easy. As I said before, we turned the vehicle around and we towed the vehicle back with the tractor. So that was after we turned around, before we towed it through the water. The water was slightly - you know, it was going down I guess, and that was, you know, before we - as I said before, as we came through with the tractor I said, "I better get a photo of this just in case we need it."
PN1906 What for?---For this exactly, to show the water, to show the situation.
PN1907 There's no tractor visible?---That's correct.
PN1908 There's no Hilux visible?---That's right.
PN1909 The car has been turned around?---Yes.
PN1910 And you've taken a photo from inside the car?---Yes.” 22
[16] In re-examination in November 2011, Mr Webb said:
“PN1991 MS MILNER: Mr Webb, can you just tell us, having a look at R10 and thinking about the contents of your affidavit and you're telling us about Mr Simpson, can you recall about what time that photograph was taken?---I would say about 6 pm.
PN1992 I understand the evidence that you've given Mr Forbes is that after that your father connected the vehicle to his tractor and towed it back to the shed?---Again. He did connect it again. It had already been connected for us to do a three point turn to turn the vehicle around and before the tractor - because the water was still up, we waited a little while for the water to go down just a little bit and then we proceeded to continue to tow the Porsche back to my father's shed.
PN1993 So you didn't tow the vehicle back through the water immediately after - - -?
---No.
PN1994 - - - this photo was taken?---Not immediately, no.” 23
[17] Mr De Zen gave evidence in June 2011 that on 9 January 2011 Mr Webb arrived at his property at about 12.00 o’clock, 24 they had lunch until 2.00 pm to 3.00 pm,25 Mr Webb then left about 4.00 pm26 and Mr Webb telephoned him a few minutes later and asked him to come down to the spillway with his Hilux.27 Mr De Zen recounted that the Porsche crossed the spillway and stalled, he then said:
“10. ... He and I tried to start the car but it would not start.
11. Anthony said to me words to the effect that he had better call his boss. I drove Anthony back to my house to call his boss. He telephoned someone (I assumed it was his boss) to tell his boss that the car had stalled and to ask what he should do.
12. I did not listen to the detail of Anthony’s telephone conversation. When the telephone conversation was over Anthony said words [sic] the effect that he would stay the night and see if tomorrow it would start after the car had a chance to dry out (we thought may be some water got into the air filters).
13. Anthony said words to the effect that his boss had said to try and start the car tomorrow after it has had a chance to dry out. If the car would not start, then to arrange to have it towed back to Brisbane.
14. We left the Porsche on De Zen Road. Anthony took the visitors to their destination using my Hilux.
15. That evening, after the rain had eased, Anthony and I went to the spillway and saw that the water had dropped and was not flowing over the road. Rather than leave the Porsche sitting by the roadside, we towed it back to my house where it would be safe overnight.” 28
[18] Under cross-examination in June 2011, Mr De Zen said that Mr Webb did not try to restart the Porsche shortly after it stalled 29 and later said he could not recall whether there was any attempt to restart the Porsche before it was towed to his property.30 He also said that he and Mr Webb towed the Porsche to his property after Mr Webb had spoken to Mr Simpson.31
Relevant legislation
[19] Section 390(1) of the Fair Work Act 2009 (Cth) (FW Act) provides that FWA may order an unfair dismissal remedy if satisfied the applicant was protected from unfair dismissal at the time of being dismissed and the applicant has been unfairly dismissed. In this matter, there is no dispute that Mr Webb was protected from unfair dismissal.
[20] Section 385 of the FW Act provides that a person has been unfairly dismissed if FWA is satisfied that:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[21] There is no dispute between Mr Webb and PCB that he was dismissed from his employment by PCB on 31 January 2011. Nor is there any dispute that the Small Business Fair Dismissal Code and genuine redundancy are not relevant to this case.
[22] The parties do, however, dispute the issue of whether the dismissal was harsh, unjust or unreasonable. I turn then to deal with that issue and the matters I must take into account in respect of the issue.
Harsh, Unjust or Unreasonable
[23] Section 387 of the FW Act provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
Valid reason
[24] I have previously indicated that Mr Webb was dismissed by PCB on 31 January 2011. In a letter from PCB to Mr Webb dated 31 January 2011, PCB wrote:
“The reason for your dismissal for gross misconduct was due to your negligence in driving a Porsche Cars Australia vehicle through floodwaters causing in excess of $40,000.00 damage. This was a serious breach of Company policy as per the Employee Information and Policy Manual thus necessitating instant dismissal.” 32
[25] There is no dispute between the parties that extensive damage was caused to the Porsche while it was in the possession of Mr Webb on 9 January 2011.
[26] Mr Webb and Mr De Zen gave evidence about the circumstances in which the damage was caused to the Porsche. They were the only people present when the damage was caused to the Porsche who gave evidence. I have concluded their evidence is unreliable.
[27] My earlier recounting of Mr Webb’s evidence indicates that his evidence contained many inconsistencies. Mr Webb’s inconsistencies as to the time events took place might be excused as memory lapses arising from the effluxion of time. However, such an excuse is undermined by the numerous other inconsistencies in his evidence, including his June 2011 evidence that he used his mobile telephone to telephone his father to come down to the spillway with the Hilux and his November 2011 evidence that he used his friend’s mobile telephone for that call.
[28] Much of Mr De Zen’s evidence either reflected the earlier, but later disavowed, evidence of Mr Webb or was qualified on cross-examination.
[29] Mr Webb’s failure to provide a credible explanation of the circumstances that led to the extensive damage to the Porsche has led me to conclude that he must have been at least negligent with the Porsche in his possession on 9 January 2011, resulting in it being extensively damaged. In my view, such conduct by Mr Webb constituted a valid reason for his dismissal.
Notified of the reason and opportunity to respond
[30] Mr Webb was asked by Mr David Crosdale, Dealer Principal - PCB, at a meeting on 31 January 2011, which also involved Mr Simpson, to explain what had happened in respect of the Porsche. Mr Webb’s evidence was that he believed Mr Simpson had already given the details to Mr Crosdale so he began to explain in brief but was cut off by Mr Crosdale before he had finished explaining and summarily dismissed. Mr Webb’s evidence is he then asked Mr Crosdale whether Mr Simpson had told him the “whole story” and Mr Simpson nodded and Mr Crosdale replied “yes”.
Support person
[31] There is no evidence PCB unreasonably refused to allow Mr Webb to have a support person at any of the discussions relating to his dismissal. However, the manner in which the meeting on 31 January 2011 came about and was conducted effectively deprived Mr Webb of the opportunity to seek to have a support person at the meeting.
Unsatisfactory performance
[32] Mr Webb’s dismissal did not relate to unsatisfactory performance.
Size of employer’s enterprise and absence of dedicated human resource management
[33] PCB conceded it is a large enterprise with human resource management and, in effect, that the procedures it followed in effecting Mr Webb’s dismissal were not detrimentally impacted by its size or any absence of dedicated human resource management specialists or expertise.
Other relevant matters
[34] Mr Webb points out that the February/March 2011 edition of “The Porsche Magazine” has an article with a picture showing the Porsche he was driving on 9 January 2011 being driven through water on a trip from Melbourne to the Gulf of Carpentaria and which states that the driver on that occasion encountered considerable flooding. The evidence in this matter, however, reveals that on 9 January 2011 Mr Webb faced considerably more water than that depicted in the picture. Further, the article does not state that the driver drove through the flooding.
[35] Mr Webb also points out that some three weeks elapsed after 9 January 2011 before Mr Crosdale asked Mr Webb for an explanation about what had happened in respect of the Porsche. During that period employees of PCB reacted positively towards Mr Webb and PCB also allowed him to drive the cars it had. In my view, however, this delay and action needs to be considered in the context of Mr Crosdale being overseas until 27 January 2011 and PCB’s pre-occupation with moving its cars to higher ground in light of the impending Brisbane floods. Matters known to Mr Webb. In the circumstances, I do not consider PCB’s delay of some three weeks in dismissing Mr Webb can be regarded as PCB having condoned Mr Webb’s conduct in respect of the Porsche.
[36] It is relevant nonetheless that Mr Webb was a successful salesperson at PCB. He was employed by PCB for a relatively long period and was not the subject of any formal warnings from PCB in relation to previous conduct or performance. Further, although Mr Webb lost his driver’s licence in 2010, PCB did not regard that as grounds for dismissal at the time.
[37] It is also relevant that Mr Webb’s dismissal was said to be summary. Although he was given four weeks’ pay in lieu of notice on his dismissal. In addition, Mr Webb had just short of seven years employment with PCB. On seven years service he may have been eligible for pro-rata long service leave.
Conclusion
[38] I am not satisfied Mr Webb’s dismissal by PCB was harsh, unjust or unreasonable. The procedures PCB followed in effecting Mr Webb’s dismissal were deficient. However, having regard to the basis of the valid reason for his dismissal, such deficiency and the other relevant matters to which Mr Webb referred are not sufficient for me to conclude his dismissal was harsh, unjust or unreasonable.
[39] Mr Webb’s unfair dismissal remedy application is therefore dismissed. An order 33 to that effect is being issued at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
R. King and A. Milner, solicitors, for Anthony Webb.
J. Forbes, counsel, for Austral Pty Ltd t/as Porsche Centre Brisbane.
Hearing details:
2011.
Brisbane:
June, 21–22.
2011.
Melbourne and Brisbane by telephone conference:
September, 1.
October, 21.
2011.
Melbourne and Brisbane by video conference:
November, 9.
Endnotes:
1 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN352.
2 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN354.
3 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN355, PN361, PN356 and PN550.
4 Exhibit A5 at paragraph 3.
5 Exhibit A1 at paragraph 27.
6 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN371.
7 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN550.
8 Exhibit A5 at paragraph 4.
9 Exhibit A1 at paragraph 4.
10 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN417.
11 Exhibit A1.
12 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane.
13 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN549-500.
14 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN1836-1838.
15 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane.
16 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN582.
17 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN586.
18 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN585.
19 Exhibit A1.
20 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN616-619.
21 Exhibit A5.
22 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane.
23 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane.
24 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN1045.
25 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN1052.
26 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN1058.
27 Exhibit A4 at paragraph 7.
28 Exhibit A4.
29 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN1086.
30 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN1111.
31 Transcript in Webb v Austral Pty Ltd t/as Porsche Centre Brisbane at PN1102-1106.
32 Exhibit R9.
33 PR517116.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR517103>
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