Boulic v Robot Building Supplies
[2010] FWA 6905
•9 SEPTEMBER 2010
[2010] FWA 6905 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Yann Boulic
v
Robot Building Supplies
(U2010/7056)
COMMISSIONER RYAN | MELBOURNE, 9 SEPTEMBER 2010 |
Application for unfair dismissal remedy - compensation.
Decision Summary
[1] I find that Mr Boulic was unfairly dismissed from his employment.
[2] I find that reinstatement is not appropriate.
[3] I order that compensation of $2,075.00 be paid by Robot Building Supplies to Mr Boulic.
Decision
Preliminary
[4] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[5] I will deal with each of the matters in turn.
Section 396(a)
[6] The application was made on 17 March 2010 and Mr Boulic had been dismissed on 4 March 2010. Therefore, I find that the application was made within the period required in subsection 394(2), namely, within 14 days after the dismissal took effect.
Section 396(b)
[7] The terms of the Commercial Sales 2010 [MA000083] applied to Mr Boulic in relation to his employment with Robot Building Supplies. Therefore, I find that the applicant was protected from unfair dismissal within the meaning of s.382 of the Act.
Section 396(c)
[8] This section has no relevance in these matters as the Small Business Fair Dismissal Code is not applicable to Robot Building Supplies.
Section 396(d)
[9] This section has no relevance in these matters as it is agreed by both parties that the termination of employment of Mr Boulic was not a redundancy situation.
Unfair Dismissal
[10] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia (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.”
[11] Sections 385 (c) and (d) have no relevance in these matters.
[12] Whether a person has been dismissed for the purpose of section 385(a) is to be determined in accordance with section 386.
Was Mr Boulic Dismissed
[13] Section 386(1) provides that:
“A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[14] Sections 386(2) and (3) have no relevance in this matter.
[15] Section 386(1) defines dismissed in the alternative. The distinction that occurs between paragraphs (a) and (b) does not appear to have been intended by Parliament to be read as a strong disjunction (i.e. where only one of the disjuncts may pertain). Rather, “the case law relating to the meaning ‘termination at the initiative of the employer’” and “the common law concept of constructive dismissal” admits a degree of overlap between ‘termination at the initiative of the employer’ and ‘constructive dismissal’. That is, an employer’s repudiation of a contract of employment, which is accepted by an employee (e.g. by resigning), will be a termination at the initiative of the employer and a constructive dismissal (provided that the employee had no reasonable alternative to resigning).
[16] From the many authorities on this subject it appears that there must be a “critical action” or “critical actions” of the employer which was intended to bring the “employment relationship” to an end and perhaps action which would on any reasonable view probably have that effect..In identifying both the critical action of the employer and its intent “it is a matter of objectively looking at the employer’s conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.” The examination of the employers conduct must also take into account that the employer is under an implied obligation that it “will not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.” The examination must also have regard to the need to both draw the “line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer”, and rigorously apply the distinction.
[17] It is with the guidance of the many authorities that I consider the circumstances surrounding Mr Boulic’s resignation of employment.
[18] Mr Boulic resigned from his employment from Robot Building Supplies on 17 January 2010. He did so in writing and with the effective date of resignation being 5th March 2010.
[19] Mr Boulic has claimed that the termination of his employment by Robot Building Supplies was an unfair dismissal.
[20] Mr Boulic commenced employment with Robot Building Supplies on 22 February 2007 as a Product Marketing Coordinator.
[21] Issues concerning Mr Boulic’s failure to meet sales targets were raised with him in late 2009 including on 18th December, the last working day before Mr Boulic commenced a period of annual leave.
[22] Mr Boulic was due to return from annual leave on 19 January 2010. However due to air traffic controller strikes in France, where Mr Boulic was holidaying with family, he was unable to return to Australia until 26th January 2010. Mr Boulic had notified Robot Building Supplies by email on 18 January that he was being delayed in France due to the air traffic controllers strike.
[23] Mr Boulic’s travel records which were part of his application in this matter show that he left Nantes (approximately 400km southwest of Paris) by train at 6.00am on 25 January 2010 arriving at Charles De Gaulle International Airport in Paris at about 9.00am. Mr Boulic then departed France at 11.00am on 25 January, arrived in Abu Dhabi at 8.45pm, had a 2 hour stop-over, departed Abu Dhabi at 10.35pm on 25 January and arrived in Melbourne at 7.15pm on 26 January 2010. Mr Boulic left Tullamarine Airport at 7.49pm by SkyBus for the city and then he got a tram or bus at 8.30pm for travel to his home in East Brighton, arriving about 9.00pm on 26 January 2010.
[24] Mr Boulic returned to work on the morning of 27th January 2010 and at 9.00am was called into a meeting with Mr Purches (General Business and Marketing Managerm Robot Building Supplies) and at which Mr Bennett (HR Consultant to Robot Building Supplies) was also in attendance.
[25] It is clear from the evidence given by both Mr Bennett and Mr Purches that the purpose of the meeting with Mr Boulic on the morning of 27 January 2010 was to give him 2 formal written warnings. The decision to give Mr Boulic the 2 warnings appears to have been made before the meeting on the 27th January 2010. From the evidence of both Mr Bennett and Mr Purches it appears that no real attempt was made by Mr Purches to give Mr Boulic an opportunity to present any defence to the issues raised by Mr Purches. Nor does the evidence suggest that Mr Purches intended to consider anything put to him by Mr Boulic before Mr Purches issued the warnings.
[26] Mr Purches recounted in his evidence the discussion between himself and Mr Boulic at that meeting. The relevant part of his evidence is at paragraphs 17 and 18 of his witness statement 1:
“17. We met in my office and we had a conversation to the following effect:
Yann: I was late because of the strikes in the airport and because of the strikes the aeroplanes were not flying, i went to the airport the day I was due to fly out I was told the flight would be on 10 February 2010, but i managed to change and get one earlier.
Me: I’m not happy about you being late back. It’s a breach of your contract not to turn up for work when you are required. Before Christmas, we had a discussion about the fact that you weren’t happy about what you were doing and that you weren’t performing. We need to have further discussion about that. You are struggling in the area, what are you going to do to bring it back up? I’m going to give you a warning for coming back late and I am considering giving you a warning for your performance.
Yann: I don’t want a blemished record. What are my options?
Me: Well, basically, you accept the warning or you give us your notice.
Yann: I need to think about it, I need to thank about it.
Me: We are here now and we need to make decisions now.
Yann: OK, well I’ll give my notice now, but based on some terms i have got a wife and child.
Yann: A longer notice period.
Me: OK, that’s not a problem. 5 March is an option.
Peter: I will help you with interview techniques and look at your CV.
Yann: If I can’t get another job, can we bring it up to 12 March?
Me: that’s fine.
18. The Applicant then went away and drafted a resignation letter.”
[27] Mr Bennett recounted the discussion at the same meeting at para 12 of his witness statement 2:
“12. During the meeting, a conversation took place between the Applicant and Jason to the following effect:
Jason: Why were you delayed in returning from your annual leave?
Yann: I sent you an email and I telephoned you Jason.
Jason: I didn’t expect you to take 9 days to get here. You know that I had frequent discussions with you last year about your poor sales performance. Have you thought about that over your break?
Yann: I couldn’t get out of France for the reasons I told you about.
Peter: Couldn’t you have upgraded your flight to Business Claas?
Yann: Yes, I could and I would have got here sooner, but I wasn’t prepared to go to that cost.
Jason: I am not satisfied. I will give you a warning for your later return from annual leave, because once again it has affected your performance. I also intend to give you a warning, as I said I would for your poor performance from last year.
Yann: Are these formal warnings?
Jason; yes, they will be formal written warnings.
Yann: What are my options?
Jason: You are going to get your warnings, or alternatively, you can resign.
Yann: I really don’t like doing these sales anyway. I don’t want to be on the road.
Jason: Your figures are terrible.
Yann: I want to resign, as I have an unblemished employment record. I don’t want to leave straight away. I want to discuss terms of settlement. I want to discuss and how I leave the company. I would like you help Peter with outplacement. I want to write up some terms around how I will leave and I want to get your agreement.
Jason: OK, but I want that today Yann.
Yann: I am concerned about my wife and child, in terms of getting another job.
Jason: Peter will help you with outplacement.”
[28] Mr Bennet gave evidence that his recount of the conversation of 27th January 2010 was absolutely accurate and that it was, as best as he knew it to be, a word perfect transcription of the conversation 3. Mr Purches gave evidence that whilst his recount of the conversation was not a word perfect transcription it was an accurate recount of the conversation4.
[29] Both Mr Purches and Mr Bennet gave evidence that when confronted with getting 2 warnings that Mr Boulic asked about his options and that in response Mr Purchese said accept the warnings or resign.
[30] Mr Purches’s recount acknowledges that Mr Boulic specifically said that he needed time to think about his options and that Mr Purches insisted that decisions be made immediately.
[31] Mr Bennett does not mention this exchange in his recount and Mr Bennett gave evidence that his recount was absolutely accurate. Under cross examination Mr Bennett conceded that Mr Boulic had asked for time “to consider things before making an informed decision.” 5
[32] Mr Boulic’s evidence was that he told Mr Purches and Mr Bennett that he wanted until at least Monday 1 February 2010 to make up his mind. Mr Bennett gave evidence that no request for a 3 day cooling off period was made by Mr Boulic.
[33] At the end of the meeting Mr Bennett and Mr Boulic discussed the terms of Mr Boulic’s resignation with Mr Bennett drafting terms of a resignation letter. Mr Boulic returned to his work station and over the next couple of hours of the morning of 17 January Mr Boulic prepared a resignation letter using Mr Bennett’s draft. Mr Bennett on 2 occasions went past Mr Boulic’s work station and made hand gestures to Mr Boulic to get him to hurry up with the resignation letter.
[34] The resignation letter was dated 19 February 2010 but was tendered to Mr Bennett and Mr Purches on the morning of the 27 January 2010. The date on the letter was corrected to read 27 January 2010.
[35] Mr Boulic continued to work out the notice period.
[36] On Monday 15th February Mr Boulic attempted to withdraw his resignation at the same time he advised Mr Purches that he had sought advice about his resignation and that he intended to make an unfair dismissal claim. Mr Boulic asked for a compensation payment of between 18 and 22 weeks as settlement of his claims.
[37] Mr Boulic did not finish working out his notice period as Robot Building Supplies elected on the 4th March 2010 to end the employment relationship early by paying out the remainder of the notice period.
The Issue
[38] The choice given to Mr Boulic at the meeting on the morning of the 27 January 2010 was resign or accept 2 warnings. It was not a “resign or be fired” scenario, but the effect of the statement by Mr Purches was “resign or accept 2 warnings now and be fired at the next available opportunity”.
[39] A critical factor which neither Mr Purches nor Mr Bennett considered in their dealings with Mr Boulic on the morning of the 27 January was the fact that he had only arrived back from France late the previous evening. Mr Bennett conceded that it wasn’t until the day of the hearing that he became aware of this fact. No enquiries were made of Mr Boulic on the morning of the 27 January 2010 as to when he had arrived back in Melbourne.
[40] To put Mr Boulic’s travel into perspective I have set out in the following table the local times and dates associated with Mr Boulic’s travel and the corresponding Melbourne time.
Local time | Melbourne time | |
Depart Nantes | 6.00am 25/1 | 4.00pm 25/1 |
Arrive Paris | 9.00am 25/1 | 7.00pm 25/1 |
Depart Paris | 11.00am 25/1 | 9.00pm 25/1 |
Arrive Abu Dhabi | 8.45pm 25/1 | 3.45am 26/1 |
Depart Abu Dhabi | 10.35pm 25/1 | 5.30am 26/1 |
Arrive Tullamarine | 7.15 pm 26/1 | 7.15 pm 26/1 |
Arrive Home | 9.00pm 26/1 | 9.00pm 26/1 |
Attend Work | am 27/1 | am 27/1 |
[41] From the table it can be seen that Mr Boulic was travelling for at least 29 hours (I have not included travel time from Mr Boulic’s family home to the Nantes railway station) and doing so against the sun which causes the greatest disruptions to a person’s body clock and thus causing significant “jetlag”.
[42] Even without the issue of the timing of the meeting on the 27th January vis a vis Mr Boulic’s travel arrangements the process initiated by Mr Purches, and in which Mr Bennett was an active participant, was conduct calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.
[43] I consider that, in light of the fact of Mr Boulic’s travel arrangements and the effect this had on him, the conduct of Mr Purches in the meeting on the morning of 27 January and the conduct of Mr Bennett in drafting a resignation letter and then hovering around Mr Boulic and gesturing to him to complete a written resignation letter, and the conduct of both Mr Purches and Mr Bennett in getting the written resignation letter corrected as to its date and signed and presented by Mr Boulic the process initiated by Mr Purches, and in which Mr Bennett was an active participant, was unambiguous, was clearly conduct which was likely to damage or destroy the relationship of confidence and trust between Mr Bouilic and Robot Building Supplies P/L and was, when objectively looked at such that Mr Boulic could not be expected to put up with it. On any reasonable view the conduct by Mr Purches and Mr Bennet was intended to bring the employment relationship to an end.
[44] Therefore I find that Mr Boulic was dismissed.
Section 387
[45] In order to declare whether or not the termination of the applicant’s employment was harsh, unjust or unreasonable, FWA is required to take into account the factors set out in s.387 of the Act. Those factors are 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.”
[46] I will deal with each of these in turn.
Valid reason – s.387(a)
[47] Two issues were raised by Mr Purches in the meeting with Boulic on 27th January and which led to his dismissal. The first was in relation to alleged poor performance and the second was in relation to returning to work late.
[48] When Mr Boulic left work on 18th December to commence his period of annual leave Mr Purches spoke to him as he was leaving and asked him to use the holiday period to consider whether or not he wanted to continue in sales. The 2 versions of this conversation as contained in the witness statements of Mr Purches and Mr Aquino do not convey any suggestion that Mr Boulic was being required to consider his performance.
[49] Earlier conversations between Mr Purches and Mr Boulic in relation to his poor sales performance were not conducted in a manner which would suggest that Mr Boulic was about to receive a warning or that his sales performance would lead to his dismissal.
[50] The circumstances surrounding Mr Boulic’s failure to return to work on the required date were thoroughly canvassed in Mr Boulic’s written submissions and which were adopted by him as his evidence in this matter. Mr Boulic was a victim of an air traffic controllers strike in France. Mr Boulic had made considerable efforts to get home on time but was thwarted by weather conditions in France. Mr Boulic made reasonable efforts to get home as quickly as possible. Mr Boulic advised Robot Building Supplies P/L of his travel difficulties whilst he was in France. Mr Boulic’s delay in returning to work was both excusable and reasonable in all the circumstances.
I determine that neither of the two issues raised by Mr Purches constitute a valid reason for dismissal.
Notification – s.387(b)
[51] Mr Boulic was notified of the reasons relied on by Mr Purches at the meeting on the 27th January 2010.
Opportunity to respond – s.387(c)
As the accounts of the meeting on the 27th January 2010 make clear, Mr Boulic was not given an opportunity to respond to the reasons given by Mr Purches. When Mr Boulic requested time to consider his options he was denied that opportunity. Mr Purches did not intend to permit Mr Boulic any time to consider matters.
Support person – s.387(d)
There was no unreasonable refusal by the employer to allow Mr Boulic to have a support person present. However as the record of the meeting shows no opportunity was given by the employer to Mr Boulic to even consider the matter of a support person. I draw the conclusion that a support person may have effectively derailed the actions of Mr Purches and Mr Bennett in getting Mr Boulic to resign.
Warnings regarding performance – s.387(e)
Mr Boulic was spoken to about his poor sales figures in late 2009 but no warnings had been given to him. It is clear that the way in which the matter of his poor sales performance had been raised with Mr Boulic could not be considered to be a warning about unsatisfactory performance.
Size of the employer’s enterprise – s.387(f)
Robot Building Supplies P/L is a medium sized business in Victoria with 4 stores. I do not consider that the size of the employer’s enterprise would impact on the procedures followed in effecting the dismissal because of the availability of specialist Human Resource advice..
Human resource expertise – s.387(g)
[52] Mr Peter Bennett, an independent human resources consultant, gave evidence that he was contracted to work for Robot Building Supplies 2 days per week. Mr Bennett was directly involved in the meeting on the 27th January 2010 and in the process of getting the resignation letter from Mr Boulic. I have taken this into account.
Other matters – s.387(h)
[53] There are no other matters which I consider relevant.
Harsh, unjust or unreasonable
[54] In all of the circumstances and, having taken account of each of the factors set out in s.387, I have reached the conclusion that the termination of Mr Boulic’s employment was harsh, unjust and unreasonable.
REMEDY
[55] The relevant statutory provisions governing any remedy that may be ordered by the Tribunal for unfair dismissal are set out in Division 4 of Chapter 3, Part 3–2 of the Act. When the Tribunal may order a remedy is set out in s.390 of the Act which is as follows:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[56] I turn first to deal with the requirements of s.390(1).
[57] On the basis of my findings in paragraphs 7 and 54 I am satisfied that the requirements of s.390(1)(a) and (b) have been met. As Mr Boulic has made an application under s.394 of the Act, I am satisfied that the requirements of s.390(2) have been met.
[58] Section 390(3) provides that FWA must not order payment of compensation unless FWA is satisfied that reinstatement is inappropriate and that compensation is appropriate in all of the circumstances.
[59] Having considered carefully all aspects of these matters, on balance, I am satisfied that reinstatement of the applicant is inappropriate and that compensation is the appropriate remedy.
Section 392
[60] Section 392 sets the parameters for making an order that compensation be paid.
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. Disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[61] In compliance with s.392(1) the order to be issued in this matter will be that Robot Building Supplies pay compensation to Mr Boulic.
[62] Section 392(2) sets the criteria that must be taken into account in determining the amount of compensation to be ordered. I will deal with each criteria in turn.
Effect of the Order on the viability of Robot Building Supplies - 392(2)(a)
[63] Robot Building Supplies P/L is a medium sized business with 4 stores in Victoria and any order for compensation to be paid to Mr Boulic will not adversely affect the viability of Robot Building Supplies P/L’s enterprise.
Length of Mr Boulic’s service - 392(2)(b)
[64] Mr Boulic was employed for a period just over 3 years.
Remuneration Mr Boulic would have received if not dismissed - 392(2)(c)
[65] Mr Boulic’s annual remuneration was $53,950.00. If he had not been dismissed Mr Boulic would have continued to earn this amount.
Efforts to Mitigate Loss - 392(2)(d)
[66] In closing submission in this matter Mr Boulic advised that as at the date of the hearing he had not been able to obtain any employment since his dismissal. Nothing was put to the Tribunal which would suggest that Mr Boulic has not been trying to mitigate his losses.
Amount of remuneration earned - 392(2)(e)
[67] No remuneration has been earned by Mr Boulic between the date of dismissal and the conclusion of the hearing.
Amount of income reasonably likely to be earned - 392(2)(f)
No income is reasonably likely to have been earned by Mr Boulic since his dismissal.
Any other matter - 392(2)(g)
[68] I note that in determining an amount of compensation for an order under subsection 392(1) any amount of compensation must not exceed the cap set by s.392(5). I have considered and applied the decisions given in relation to s170EE of the Industrial Relations Act which was in similar terms to s.392.
“The provisions of s 170EE [of the former Industrial Relations Act 1988] which enable compensation to be ordered are not intended to punish an employer for contravening the Act on the basis that a less serious contravention should attract a small amount of compensation while a more flagrant contravention should attract a greater amount of compensation. The purpose of s 170EE(3) is to compensate an employee … .” (Bean v Milstern Retirement Services Pty Ltd, [1995] IRCA 274, 2 June 1995, Moore J). See also PrintLinx Pty Ltd v Hughes, PR910359 at pn 28, 17 October 2001, Ross VP, Lacy SDP, Holmes C.
[69] In determining the amount of compensation in this matter I have attached significant weight to the fact that Mr Boulic was underperforming in his sales role. Issues relating to Mr Boulic’s poor sales performance were raised with him at a meeting in August 2009 and again, although only briefly and somewhat informally, on the last day of work before he commenced his period of leave. The evidence makes clear that Mr Boulic did not like the sales work and wanted to be moved from doing direct sales. The evidence of the comparative sales figures of Mr Boulic and other staff support the assertion of Robot Building Supplies P/L that Mr Boulic was significantly underperforming in sales. If Mr Boulic had not been unfairly dismissed on 27 January he would at the very least have been subject to performance management. I note that Mr Purches had intended to give Mr Boulic a written warning on the 27th January 2010 in relation to poor sales performance. However it is clear in my mind that this warning arose out of Mr Purches anger and Given the admissions by Mr Boulic in relation to his dislike for the sales work and his desire to do different work, it is reasonable to presume that Mr Boulic may not have improved his sales figures to the level required by Robot Building Supplies. The logical outcome of this is likely to have been either termination of employment at the initiative of Robot Building Supplies or an agreed termination of employment at a later date probably within several months of having received the warning.
[70] Whilst it is speculation about the conduct of the parties if the dismissal had not occurred, it is, in my view, speculation which is both reasonable and relevant to determining the amount of compensation.
Reduction for Misconduct - 392(3)
[71] S.392(3) requires that I must reduce the amount of compensation I would otherwise order by an appropriate amount if I am satisfied that misconduct of Mr Boulic contributed to Robot Building Supplies decision to dismiss Mr Boulic.
[72] Misconduct is not a defined term in the Act. However, s.12 of the Act provides that “serious misconduct has the meaning prescribed by the regulations.” Regulation 1.07(1) of the Fair Work Regulations provides that:
“1.07(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.”
[73] The common law is replete with cases which have examined the concept of serious misconduct. In North v TV Corp, Smithers and Evatt JJ said:
“It is of assistance to consider the expression “misconduct” by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression “misconduct” as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employee should not be bound to continue the employment.
This situation would arise if there were conduct inconsistent with the fulfilment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law.” 6
In Pillai v Messiter, Kirby P said:
“...in the United States, “misconduct” generally means wrongful, improper or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts. Similar approaches to the meaning of the word “misconduct” have been taken in Australia, outside the context of professional discipline: see, eg, O’Connor v Palmer (No 1) (1959) 1 FLR 397. The primary dictionary meanings confirm that this is also the way “misconduct” is used in everyday speech.” 7
Butterworths Australian Legal Dictionary defines misconduct in the same terms as used by Kirby P.
[74] What flows from this is that misconduct for the purposes of s.392(3) would mean wrongful or unlawful conduct, motivated by premeditated or intentional purpose or by obstinate indifference to the consequences of one’s acts but which is not so seriously in breach of the standards of fairness and justice that the employer should not be bound to continue the employment.
[75] The conduct of Mrs Boulic which in Mr Purches’s view warranted a written warning was Mr Bouilc’s late return from his holiday to France. On any reasonable assessment of the evidence in this matter relating to Mr Boulic’s non return to work on the required date such conduct would not amount to misconduct. Mr Boulic’s late return from his holiday did not warrant any warning from his employer.
Disregarding shock, distress etc - 392(4)
[76] I have, in calculating the amount of compensation to be ordered under s.392(1), disregarded any shock, distress or humiliation, or other analogous hurt, caused to Mr Boulic by the manner of the dismissal.
Compensation cap - 392(5)
[77] Applying the terms of s.392(5) the compensation cap in relation to Mr Boulic will be $26,975.00.
Conclusion on Compensation
[78] Having taken into account each of the criteria in s.392(2) and having regard to the operation of s.392(3), (4) and (5) I determine that the amount of compensation to be ordered to be paid under s.392(1) by Robot Building Supplies P/L to Mr Boulic is the sum of $2,075.00
[79] An order giving effect to all of these matters will be issued separately.
COMMISSIONER
Appearances:
Mr Boulic on his own behalf
Ms Crawford of the Australian Industry Groupfor the Respondent
Hearing details:
2010
Melbourne:
7 and 8 July
1 Exhibit R2
2 Exhibit R1
3 Transcript at PN443 and PN445
4 Transcript at PN583-591
5 Transcript at PN347
6 North v TV Corp 11 ALR 599 at 609
7 Pillai v Messiter [No2] (1989) 16 NSWLR 197 at 200
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