Bradley Curran v Nick Scali Limited
[2024] FWC 1585
•18 JUNE 2024
| [2024] FWC 1585 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bradley Curran
v
Nick Scali Limited
(U2024/108)
| DEPUTY PRESIDENT DEAN | CANBERRA, 18 JUNE 2024 |
Application for unfair dismissal remedy – compensation ordered.
Mr Bradley Curran (Applicant) commenced employment with Nick Scali Limited (Respondent) in November 2018 as a Showroom Manager. He was dismissed on 15 December 2023 on grounds of unsatisfactory performance. The Applicant has made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he was unfairly dismissed.
The application was heard on 15 and 16 April 2024. At the hearing, the Applicant appeared on his own behalf. Ms P Flynn of HintonFlynn Legal appeared with permission for the Respondent.
The Applicant gave evidence in support of his application and called evidence from Ms Tanaya Pickering, a former employee of the Respondent. The Respondent called evidence from the following persons:
· Ms Jocelyn Gartner (Head of People & Culture)
· Mr Gunil Burgis (Showroom Assistant Manager)
· Mr Alan Gould (Group Head of Retail Operations and the Applicant’s manager)
Reasons for dismissal
The Applicant was given a termination letter on 19 December 2023 which is in the following terms:
“Dear Brad
RE: Termination of Your Employment
l refer to your telephone conference call with Alan Gould (Head of Retail Operations) on Friday, 15 December 2023. As you know, I was also on the telephone conference call.
As explained to you at the start of the telephone conference call, Nick Scali Limited (the company) had serious concerns about your employment due to matters that had recently come to the company’s attention.
You were told that the company's concerns related to the period from July 2023 to November 2023, and involved the following:
· Your failure to follow the company's usual process regarding clocking on and off using the company's finger scanning system. In particular, you were told that the company's records indicate that you did not follow the usual process on a number of occasions during the period 3 July 2023 to 20 November 2023, and that on those occasions where you did not scan off, the system automatically clocked you off at 11.30 pm;
· You regularly left the Nick Scali Fyshwick Showroom with no explanation to the showroom team, or with permission from the company, The unexplained absences from the showroom ranged from between 30 minutes on occasion, to longer durations, including where you would not return to the showroom by the end of the day,
· Your poor communication with the showroom team and with management. For example, you would leave the showroom without telling team members how long you expected to be gone, and you did not promptly return calls from corporate head office on days that you were rostered to work. These matters are troubling to the company, and brought your reliability and leadership into question,
· Your failure to follow the same processes and procedures that applied to staff in your showroom (such as following the usual process for clocking on and clocking off, and the requirement to obtain the company’s prior permission or authorisation, before leaving the showroom), and as a result, not being a role model to other staff members in your capacity as Showroom Manager.
You were given an opportunity to respond to each of the company’s concerns.
In relation to the company's first concern, you disagreed that you failed to follow the company's usual process regarding clocking off, but at the same time, you said you may have been ‘absent minded’ on some occasions when you did not clock off.
In relation to the company's second concern, you said that when you left the showroom early, it was for the purpose of recruiting staff and/or going to the Plush showroom nearby. You said this even though
· you are able to telephone the Plush showroom if need be; and
· in the context of recruitment, the company has an internal recruitment team.
In answer to the company's concerns that you were absent from the showroom 2 or 3 times per week during the period in question, you said you felt the suggestion was ‘absolute nonsense’ but you did not provide any further explanation to the company for its consideration.
When you were given an opportunity to respond to the company's concern about your poor communication with the Fyshwick showroom team when leaving the showroom, and with management/head office, you acknowledged you had been spoken to about this previously and were asked to improve. You also admitted it often took you a long time to return calls, and you understood that doing so was frustrating for the caller.
In relation to the company’s fourth concern, you did not provide any further explanation for not following the same processes and procedures that applied to staff in the Fyshwick showroom, but you said you felt you were doing the best you could in your role as Showroom Manager.
The company considered the responses you gave in answer to the concerns it raised with you during the conference call, and the information available to it. This letter confirms that you were told at the end of the conference call that on balance, and after considering all of the information available to it, the company decided to terminate your employment effective Friday, 15 December 2023 (Termination Date) for the following reasons:
1. Your failure to follow the company’s usual process regarding clocking on and off was unacceptable;
2. Your absences from the Fyshwick showroom were unexplained unauthorised, and were unacceptable, particularly given your role as Showroom Manager;
3. Your poor communication with staff of the Fyshwick showroom about your whereabouts, and your failure to return calls from management/head office in a timely manner was unacceptable and not in accordance with what is expected of you in the role of Showroom Manager; and
4. Your failure to follow the company’s usual processes and procedures at the Fyshwick showroom (which included using the fingerprint clocking on and clocking off system, obtaining the company's prior permission or authorisation before leaving the showroom, and returning calls from management in a timely manner):
(a)was unacceptable and undermined the company’s confidence in your ability to perform the position of Showroom Manager;
(b)demonstrated, when considered together, you were unreliable in your performance of the position of Showroom Manager; and
(c)was contrary to the company’s expectation that Showroom Managers always act as good role models for showroom staff.
As explained to you during the conference call, you are entitled to 5 weeks’ salary in lieu of notice on termination of your employment plus your accrued but untaken annual leave. The equivalent of 5 weeks’ superannuation contribution will also be paid to your superannuation fund.
Given your period of service, you are also entitled to your pro-rata long service leave.
For the avoidance of doubt, you will be paid the following amounts within 7 days of the Termination Date:
· $1,756.23 gross, being your salary for the period 11 December 2023 to the Termination Date;
· $7,761.45 gross, being your accrued but untaken annual leave up to the Termination Date;
· $7,826.92 gross, being your pro rata long service leave up to the Termination Date; and
· $8,781.15 gross, being 5 weeks’ salary in lieu of notice;
less applicable tax.
Brad, please note that you are required to immediately return all company property in your possession, including all confidential information and intellectual property. The company expects that you will comply with those obligations, despite the termination of your employment.
Your sincerely
Jocelyn Gartner
Head of People & Culture
Nick Scali Limited”
The termination letter sets out the reasons given to the Applicant for his dismissal, which are the focus of the background and factual findings set out below.
Background and factual findings
The Applicant commenced employment with the Respondent on 5 November 2018 in the position of Showroom Manager in Queensland.
He advised the Respondent he was keen to progress within the business and was subsequently promoted to managing a ‘platinum’ level showroom, the highest level showroom for the Respondent, in Fyshwick ACT in April 2021. This position also required him to manage another showroom, that being a clearance store also located in Fyshwick.
The Applicant signed a new employment contract in connection with this new role (the Contract).
The Contract required the Applicant to comply with its policies and procedures, and use its time and attendance system, which was at that time called Time Target and subsequently changed name to Humanforce. The relevant clause relating to time and attendance is as follows:
“(c)You will be required to use the Company’s time and attendance system in place from time to time. The current system that the Company has in place is TimeTarget, which utilises Hitachi Vein Scanners. The following requirements apply to your use of TimeTarget.
(i) You will be required to use the scanner each time that you commence and cease work during each working day, in order to record the hours that you work;
(ii)You must be honest in your use of TimeTarget and record the start of your day (i.e. when you are at work and ready to perform your duties), and the end of your day (i.e. when you are at work and you have completed your duties);
(iii) If you need to attend to personal matters before the start of your work day, such as preparing and eating breakfast, or changing into work clothes, then you must not scan your attendance on TimeTarget until after you have attended to such personal matters;
(iv) At the end of your work day, you must scan out of TimeTarget before you attend to personal matters, such as changing out of work clothes;
(v) If you arrive early to work, your attendance should not be recorded in TimeTarget more than 10 minutes before you are required to start;
(vi) You should promptly scan out of TimeTarget at the end of your work day.
Failure to comply with these requirements may result in disciplinary action, including termination of your employment.”
There was a dispute about the extent to which the biometric scanner in each store worked, which was not resolved by the evidence. The parties agreed that if the scanner was not working then the Respondent’s IT department would be notified.
The Applicant was cross examined about his use of HumanForce, including emails that had been sent to all managers across the business about the importance of scanning on and off each day. The Applicant was asked about an email he received on 28 December 2022 in which his manager, Mr Gould, questioned him about certain hours he had worked the previous two days. The Applicant explained that he had been unwell and needed to split his hours as he had worked for part of the day and was absent due to illness for part of the day. He gave evidence he could not split his shift in HumanForce himself and this needed to be done by a more senior manager.
Mr Gould gave evidence that each time the Applicant did not scan out of HumanForce he would be required to provide an explanation to either Mr Gould or another senior manager. He also gave evidence that managers could not change or manipulate their own start and finish times. Mr Gould said that the Applicant’s reasons for not scanning out were often that he forgot or that the scanner was not working. While Mr Gould said he was concerned with these reasons, there is no suggestion that these reasons were not accepted by the Respondent.
It seems that in November 2022, the Applicant took on responsibilities as a Cluster Manager in addition to his duties as a Showroom Manager. This included responsibility for Nick Scali Warrawong and Plush showrooms. There was a dispute about whether he had this responsibility from November 2022 or early 2023, but nothing turns on this date. These showrooms are located around 3 hours’ drive from the ACT.
It was put to the Applicant in cross examination that he was not required to attend showrooms other than Nick Scali Fyshwick, notwithstanding he was responsible for them. He gave evidence, which I accept, that he was required to attend the other showrooms as part of his management responsibilities.
It was put to the Applicant that he had a conversation with Mr Gould in January and June 2023 in which Mr Gould asked him to ensure that he returned phone calls from Mr Gould promptly. The Applicant did not recall these conversations. Even if these conversations did take place, they are not sufficiently serious as to warrant dismissal without being properly warned first.
The Applicant was questioned about occasions where he was alleged to have left the Fyshwick showroom without telling anyone where he was going. His evidence, which I accept, was that there were around two occasions when he did not tell his assistant manager, Mr Burgis, where he was going because he was involved in recruitment activities and Mr Burgis would be upset if he knew. Further, Mr Gould knew he was undertaking recruitment for various stores. The Applicant was adamant that these were the only occasions when Mr Burgis was not informed of his whereabouts.
The Applicant gave evidence there were some occasions he had to leave work when he had severe hayfever. He said on these occasions he told Mr Burgis he was leaving. He said he could not stay in the showroom because customers may have thought he had COVID.
On 24 August 2023 the Applicant sent an email to Mr Gould in the following terms:
“Hi Alan,
I have looked at my current situation and considered if there is a future in senior management for myself at Nick Scali. John Austin had indicated that success in the ACT would result in a Senior role within a maximum of 18 month commitment. I have been waiting since Nov 22 for a new contract based on a State responsibility and have been extremely patient.
The direction that MF approvals should be completed by Lindsay is not positive sign that the business values my judgement and integrity. I therefore request that I return to my original contract duties and resign from the Cluster role I was assigned in Oct 22. I will get together a brief on each showroom for Lindsay and update Master roster with Josephine.
I have been fully committed to the success of the brand and will replace myself before leaving the business. I trust that I will have your support with references for any future positions I apply for in the interim.”
Five days later, on 29 August 2023, the Applicant was offered a role as State Regional Manager East & South NSW, and he signed a new employment contract (the new contract). The new contract included an express condition that the new role would “come into effect after the commencement of a replacement Showroom Manager at Nick Scali Fyshwick”.
Mr Gould gave evidence that the promotion was offered despite concerns about the Applicant’s communication, leadership and organisation skills, but he felt there was no option but to promote him. However, in cross examination, Mr Gould agreed with the proposition that the new contract was offered due to the achievements of the Applicant. I do not accept that if the Respondent’s concerns were genuine and serious, there was no option but to promote the Applicant.
It was put to the Applicant that the new contract was also subject to a condition that it be performed from Sydney, however no such term is included in the new contract. While the Applicant agreed he was to relocate to Sydney (and wanted to be located there), he denied that this was a precondition to the new contract taking effect.
Mr Gould also gave evidence of a number of other preconditions to the new contract taking effect, none of which are specified in the new contract. Given one precondition was included, I consider it more likely than not that the other alleged conditions were not preconditions to the contract taking effect, hence those matters not being included in the new contract.
Between 27 November 2023 and 10 December 2023 the Applicant was on authorised leave and was in England as his daughter had been hospitalised there due to a serious medical condition. It was not disputed by Mr Gould that the Applicant took this leave at very short notice to be with his daughter. Mr Gould was on leave at the time the Applicant commenced leave, and so the General Manager Retail Operations, Mr Karnib, approved his leave application.
The Applicant was cross examined about the tasks he was required to do immediately prior to commencing his leave. Mr Gould gave evidence that he was told by Mr Karnib that the Applicant had been asked to ‘sort out’ the salary of the manager at the Warrawong store, and organise the relocation of the manager at Plush Fyshwick, but did not do so. I note Mr Karnib was not called to give evidence as it seems his employment ceased at around the same time as the Applicant. The Applicant’s evidence was that he did deal with both issues before he commenced his leave.
The Applicant returned to Australia on 11 December 2023. Mr Gould also returned from leave that day.
In relation to his return from leave, the Applicant was due to return to work on Monday 11 December 2023. He gave evidence that he was under duress when booking his flights because of his daughter's illness. He said he misread the flight time and landed in Australia at 6.50pm rather than 6.50am. The Applicant gave evidence that he realised his error while in England, and he communicated this to Mr Karnib by text message prior to boarding his flight home. He also gave evidence he tried to change his return flight when he realised his error but was unable to do so. I accept the Applicant’s evidence that he communicated this to Mr Karnib prior to his departure from England.
The Applicant also gave evidence which I accept that his flight arrived in Sydney too late to catch the last bus from Sydney airport to Canberra, so he stayed in Sydney that night and caught the first bus to Canberra on the morning of 12 December 2023. He sent a text message to Mr Karnib on the morning of 12 December confirming he had missed the last bus the night before and was on the bus to Canberra that morning, and he would take an RDO that day and work the rest of week.
The Applicant had a text exchange on 11 December with the secretary of the CEO of the Respondent, Ms Giusa, who told the Applicant not to go back to work until he spoke with Mr Gould on the morning of 12 December 2023. He was subsequently asked to attend a meeting with Mr Gould and Ms Gartner on 13 December 2023 in Sydney.
During the meeting on 13 December 2023, Mr Gould’s evidence is that he told the Applicant he had not properly dealt with some issues prior to his leave which caused unnecessary confusion for staff, and that “head office” had to get involved. Further, Mr Gould told the Applicant he had concerns about the Applicant’s communication such as failing to return calls in a timely manner and staff not knowing where the Applicant was.
The Applicant denied these matters, saying that his team knew where he was, and when he was out of the showroom it was to visit other stores he had responsibility for or when he was undertaking recruitment activities. The Applicant was told that because of these issues the Respondent was concerned that he would not be able to perform the role of State Manager, and so his new contract was withdrawn and he was to be offered a role as a showroom manager in a smaller Sydney store.
The Applicant noted that his new contract was already in place as his replacement for the Nick Scali Fyshwick Showroom Manager had been found and had commenced work in the role the previous week. This was not disputed by Mr Gould in cross examination.
Mr Gould gave evidence that at the conclusion of this meeting with the Applicant on 13 December he called Mr Burgis (in Mr Burgis’ capacity as the Assistant Showroom Manager at Fyshwick) to ask him about the Applicant’s attendance at work over the last 6 months. Mr Gould said Mr Burgis told him the Applicant was leaving work early around 3 to 4 times each week. Mr Gould said this prompted him to review the Applicant’s HumanForce records which he said contained ‘irregularities’.
When cross examined, Mr Gould said he did not speak to anyone other than Mr Burgis about the Applicant’s attendance, and so did not corroborate what Mr Burgis had said with any other employee at Fyshwick.
The evidence of Mr Burgis in cross examination was that there were around 12 occasions in the 12 month period of 2023 that he was unclear about the Applicant’s whereabouts. Mr Burgis also gave evidence that the Applicant was contactable via his mobile phone when he was out of the Fyshwick showroom.
The difficulty with the Respondent’s reliance on the HumanForce records is that Mr Gould gave evidence that he (or other senior managers) approved any variations or missing timesheets. A Timesheet Comments Report was put into evidence by the Respondent which sets out ‘comments’ about particular timesheets of the Applicant from July to December 2023. Each timesheet on the report is ‘authorised’ by either Mr Gould or another senior manager. The comments are put in by the Applicant to explain the timesheet where necessary. The comments include matters such as ‘forgot to sign on/off’, ‘went home early due to sickness’, ‘warrawong attendance’ etc. Given each variation was authorised by a senior manager within the relevant pay period, it is difficult to accept that the Respondent was not aware of any timekeeping issues involving the Applicant at the time they were occurring.
Had the Applicant been leaving early 3-4 times per week, either the HumanForce records would have shown his early sign out time or if he had not signed out then this would have also been evident in these records. The records in evidence do not support a finding that the Applicant left work early 3-4 times per week without a justifiable reason.
On 14 December 2023 the Applicant sent an email to Mr Gould in response to issues raised with the Applicant the previous day.
The Applicant was verbally advised of his dismissal on 15 December 2023 at a telephone meeting with Mr Gould and Ms Gartner that took place at approximately 5pm. The Applicant says this meeting took less than 15 minutes. I accept this time estimate given the evidence of the Respondent about the contents of the telephone meeting.
Ms Gartner gave evidence about the 15 December telephone meeting. She said Mr Gould expressed his serious concerns about the Applicant’s attendance at the showroom which had only come to light in the previous two days. She said she had looked at HumanForce which showed that the Applicant had not scanned off on a number of occasions. Ms Gould said the Applicant denied this, other than when he had been very sick with COVID or on a few occasions when he may have been ‘absent minded’. He said he did visit other showrooms for which he was responsible, and the occasions he did not inform the Fyshwick showroom staff where he was going was when he was engaging in recruitment activities (including for his own replacement as Showroom Manager Fyshwick) and could not tell other staff about this.
The Applicant complained that he was not given sufficient details, such as the dates he was alleged to have been out of the showroom without authorisation, in order to be able to provide a proper reply to the allegations. He said that other than being able to say the allegations were ‘nonsense’ and that he disagreed with the allegations, there was no other response he could provide without more information and some time to be able to check where he was on the particular date.
Mr Gould agreed in cross examination that the Applicant asserted the allegations were ‘absolute nonsense’ but disagreed that that response should have warranted further investigation. Mr Gould agreed he was convinced that Mr Burgis was dependable with the information he had provided to Mr Gould.
I agree with the Applicant that he was not given the detail that was required for him to be able to provide a proper reply, nor was he given a reasonable amount of time to be able to do so. Had the Applicant had a proper opportunity to consider and reply to the allegations, it is conceivable that he could have explained some or all of the timesheet issues to the satisfaction of the Respondent, however he was not given the opportunity to do so.
The termination letter was provided to the Applicant on 19 December 2023. The dismissal took effect on 15 December and the Applicant was given 5 weeks’ pay in lieu of notice.
Other matters for which findings are necessary
It had been the Applicant’s intention to support Mr Burgis to be promoted into the Showroom Manager role at Nick Scali Fyshwick, and this was known to Mr Burgis. A decision was made by more senior managers not to promote Mr Burgis as the manager of this location, and the Applicant was tasked with finding a manager. I accept it was appropriate for the Applicant not to advise Mr Burgis when undertaking recruitment activities for the role that Mr Burgis wanted but would not be receiving, at a time when Mr Burgis was likely not aware he would not be promoted to this role. I also accept the Applicant’s evidence that his manager tasked him with recruiting a replacement prior to having its internal recruitment team involved, and in doing so, either knew or ought to have known that the Applicant might need to leave the Fyshwick showroom to undertake this task.
The Respondent sought to make significant the fact that the Applicant visited other showrooms. This included criticising him for attending the Plush Fyshwick store, which he was responsible for, and which was a five minute walk from his showroom. I find that it would be difficult for the Applicant to properly discharge his management duties without visiting the showrooms he was responsible for.
I am satisfied that the new contract had taken effect at the time the Applicant was dismissed. Mr Gould agreed with this proposition in cross examination. The Applicant’s salary should have been adjusted in line with the new contract from 4 December 2023, that being the date the new Showroom Manager of the Nick Scali Fyshwick store commenced. His salary from that date and his termination payment should have been made on the rate applicable in the new contract, and the compensation awarded by the Commission is made on this basis.
Given the Respondent offered the Applicant a promotion to a State Manager role in August 2023, I do not accept that any matters that may have been raised with the Applicant that related to his performance prior to that date were serious matters, as he would not have been promoted if there were serious concerns about this performance.
Was the dismissal unfair?
A dismissal is unfair if the Commission is satisfied on the evidence that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
There is no dispute that the Applicant was dismissed, and subsections (c) and (d) do not apply.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
a.whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b.whether the person was notified of that reason; and
c.whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
d.any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
e.if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
f.the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
g.the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h.any other matters that the FWC considers relevant.
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[1] as follows:
‘... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’
The onus is on the Applicant to prove his dismissal was harsh, unjust and/or unreasonable.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]
Valid reason - s.387(a)
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]
There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision-making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
Having considered the evidence and the findings made earlier, I am satisfied that there was no valid reason for the Applicant’s dismissal. I am not satisfied the matters relied on by the Respondent were sufficiently serious as to warrant his dismissal absent a warning of the type required by s.387(e) of the Act.
In relation to signing off at the end of his work day, I am satisfied the evidence does not show the Applicant was leaving work early 3-4 times per week. The evidence is clear that any discrepancies in the timesheets or failure to sign off were reviewed by either Mr Gould or a senior manager who must have accepted the Applicant’s explanation at that time. As a result, I do not accept that the Applicant’s start or finish times were only discovered by the Respondent on 13 December 2023.
I am not satisfied that the evidence supports a finding that the Applicant’s absences from the Fyshwick showroom were unexplained and/or unauthorised given my earlier findings.
I do not accept that it was unreasonable for the Applicant to occasionally visit the other showrooms he was responsible for.
I do not consider the allegation of ‘poor communication’ in relation to not returning phone calls of Mr Gould promptly to be serious enough to warrant dismissal without a proper warning. Likewise, given Mr Burgis’ evidence, I do not consider the Applicant failed to communicate with staff about his whereabouts on any regular basis. I accept the evidence of the Applicant, which was not contradicted by Mr Burgis, that when the Applicant was out of the showroom he was able to be contacted on his mobile phone.
Overall, I am not satisfied there is a valid reason for the Applicant’s dismissal.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[6] in explicit terms[7] and in plain and clear terms.[8] In Crozier v Palazzo Corporation Pty Ltd[9] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”[10]
An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.[11] This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[12]
The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to the Applicant before his dismissal was effected.
I am not satisfied that the Applicant had a proper opportunity to respond to the Respondent’s concerns. The telephone meeting on 15 December did not include any specificity as to important information such as the dates the Applicant was alleged to have left early. Had he been provided with dates and a reasonable period of time, he could have checked his own records to ascertain his whereabouts. The meeting itself was only around 15 minutes in length. This was not a proper opportunity to respond to the matters raised by the Respondent.
Unreasonable refusal by the employer to allow a support person - s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
The Applicant was not offered a support person, however the question for the Commission is not whether he was offered a support person but whether he was unreasonably refused a support person. The Applicant did not request a support person and I find he was not unreasonably refused a support person.
Warnings regarding unsatisfactory performance - s.387(e)
A warning for the purposes of s.387(e) must clearly identify:
a. the areas of deficiency in the employee’s performance;
b. the assistance or training that might be provided;
c. the standards required; and
d. a reasonable timeframe within which the employee is required to meet such standards.[13]
The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”[14]
I am satisfied and it is not in dispute that no warning was given to the Applicant that his employment was at risk prior to his dismissal.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
There is no evidence that the size of the Respondent and any absence of dedicated human resource expertise impacted on the procedures followed by it in effecting the dismissal.
Other relevant matters - s.387(h)
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
I do not consider there are any other matters that are relevant in this case.
Conclusion as to unfairness
Having carefully considered each of the required matters, I am satisfied that the Applicant has discharged his onus of proving that his dismissal was harsh, unjust and unreasonable, and therefore unfair.
Remedy
Having found that the Applicant’s dismissal was unfair, it is necessary to consider what, if any, remedy should be granted to him. The Applicant seeks the remedy of compensation.
Under section 390(3) of the Act, I must not order the payment of compensation unless:
a.I am satisfied that reinstatement is inappropriate; and
b.I consider an order for payment of compensation is appropriate in all the circumstances of the case.
In this case, I am satisfied that reinstatement is inappropriate, and an order for payment of compensation is appropriate given the unfairness of the dismissal.
In considering what is appropriate compensation in the circumstances, I must consider the factors which are set out in s.392(2) of the Act and which are set out below.
Remuneration received, or likely to be received (s392(2)(c))
In terms of the remuneration received, or likely to be received (s392(2)(c)), it is difficult to determine how long the Applicant’s employment would have continued. Had a proper process of warning for unsatisfactory performance taken place and a reasonable period of time given for him to address the matters raised by the Respondent, I consider he would have remained employed for another 4 months. In this period he would have received 4 months salary at the new contract rate, being $165,000 per annum.
Remuneration earned and income likely to be earned (s392(2)(e) and (f))
The Applicant received five weeks pay in lieu of notice and had not earned other income as at the date of the hearing.
Length of service (s392(b))
The Applicant was employed for five years, and I consider that this period does not support reducing or increasing the amount of compensation ordered.
Viability (s392(a))
In terms of viability (s392(a)), there is no evidence before the Commission as to the effect of an order for compensation might have on the viability of the Respondent.
Mitigation efforts (s392(d))
The Applicant applied for other positions but had been unsuccessful in obtaining another role as at the date of the hearing. I am satisfied that he took appropriate steps to mitigate his loss.
Other relevant matters (s392(g))
In terms of other relevant matters (s392(g)), there are no other matters relevant to this consideration. Specifically, I do not consider it necessary to discount or increase the amount for ‘contingencies’.
Shock, distress etc (s392(4))
The amount of compensation does not include a component for shock, humiliation or distress.
Conclusion
Having considered each of these factors, I am satisfied that it is appropriate to order a remedy of compensation in the amount of four months’ salary based on the new contract rate of pay, less appropriate taxation and less the amount of five weeks’ pay in lieu of notice that has already been paid to the Applicant.
Four months’ salary based on $165,000 per annum is $55,000, and the payment in lieu of notice already made to the Applicant was $8,781.15, leaving a total of $46,218.85 gross to be paid to the Applicant within 14 days of the date of this decision.
An order to this effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
B Curran on his own behalf.
P Flynn of HintonFlynn Legal for Nick Scali Limited.
Hearing details:
2024.
By video:
April 15, 16.
[1] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[4] Ibid.
[5] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[6] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
[7] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[8] Previsic v Australian Quarantine Inspection Services Print Q3730.
[9] (2000) 98 IR 137.
[10] Ibid at 151.
[11] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[12] RMIT v Asher (2010) 194 IR 1, 14-15.
[13] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
[14] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
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