Christopher Hlavati v Brighton CJ Investments Pty Ltd T/A Motorworld Australia

[2013] FWC 8892

[2013] FWC 8892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Hlavati
v
Brighton CJ Investments Pty Ltd T/A Motorworld Australia
(U2013/10126)

COMMISSIONER BISSETT MELBOURNE, 22 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] Mr Christopher Hlavati has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he was unfairly dismissed.

[2] Mr Hlavati was employed by Motorworld Australia (Motorworld or the Respondent) as a sales person. He commenced his employment on or about 14 May 2012 and he was dismissed on 24 May 2013.

[3] I am satisfied that the Applicant is protected from unfair dismissal. His dismissal was not a redundancy and the Small Business Fair Dismissal Code is not relevant.

[4] Mr Hlavati represented himself in proceedings whilst the Respondent was represented by Mr David Piva, a director of Motorworld.

[5] The matter was dealt with by way of a determinative conference. This provided a greater opportunity for me to elicit relevant information from the parties to assist in making a decision.

Submissions

[6] Mr Hlavati gave evidence and made submissions with respect to his dismissal. His evidence is that he believes he was dismissed because he raised concerns about his salary and allowances with the Fair Work Ombudsman (FWO).

[7] His evidence is that on 15 May 2013 he spoke to Mr Piva 1 of the Respondent and was told by Mr Piva that he would be put into a position at the Brighton dealership and that he would be given a company provided car. He says that this was reaffirmed by Mr Piva on 21 May 2013.

[8] Mr Hlavati says that he spoke to Mr Piva about his wages and allowances at meetings on 16 May and 21 May 2013. After this he says Mr Piva became hostile and requested details in writing. He made two attempts to present his concerns in writing and in person on 22 and 23 May 2013 but both attempts were rejected by Mr Piva.

[9] At 12.30 pm on 23 May 2013 he says he was contacted by an inspector from FWO who advised she would be contacting his employer that day about his concerns with respect to his wages and allowances. At 2.30 pm the inspector rang back and said she had spoken to the employer and that a date and time would be set in the near future for mediation.

[10] At 3.00 pm on 23 May 2013 Mr Hlavati received an email from Mr Piva confirming a meeting with Mr Hlavati the next morning at 9.00 am. Mr Hlavati offered to provide Mr Piva with paperwork but was told to bring those documents the next day.

[11] At 9.00 am on Friday 24 May Mr Hlavati met with Mr Piva. Mr Jarrod Briscoe, another employee was also present as a witness. Mr Hlavati was told that his employment was being terminated for not selling enough cars. He was told he was to finish immediately.

[12] Mr Hlavati’s evidence is that he was given a target number of ten sales each month but that this was within the overall target for the particular site he was working in at the time. He says that the site reached its target and therefore he was achieving what was required of him.

[13] Mr Hlavati says that performance issues had not been raised with him, nor was he given any warnings that his current performance could lead to him losing his job. He did agree that his performance was discussed with him but it was never specifically put to him either orally or in writing that his job was under threat if he did not improve.

[14] Mr Hlavati initially says that in the last few months of his employment he met 75-85% of his target. On sighting the employer material detailing his performance, which showed him meeting between 20 and 60% of target in the last few months, Mr Hlavati agreed that this was accurate.

[15] Mr Hlavati says that at the time his employment was terminated Mr Bob Elkington said to him that it was because he had raised issues with the FWO.

[16] Mr Piva gave evidence that he terminated Mr Hlavati’s employment for poor performance based on the information provided to him by Mr Elkington and Mr Peter Korsak. He says he did not raise the issues of performance with the Applicant when he met with him a week earlier because he was not the Applicant’s direct supervisor.

[17] Mr Piva says that he did not tell the Applicant he would be put in a position at the Brighton dealership and never promised him that he would be given a car as part of his remuneration package. He says the Applicant approached him with respect to advancing in the company and Mr Piva indicated that a position such as that at Brighton might suit the Applicant.

[18] Mr Piva agrees that no written warnings were given to the Applicant and that whilst sales were going well at the sites where the Applicant worked this was generally due to the manager he was working with.

[19] Mr Korsak supervised the Applicant when he commenced with the Respondent. He says that he provided coaching in sales techniques and disciplines required in the industry. He says that the Applicant did not meet the sales targets set for him and that a number of issues with respect to his performance were raised with the Applicant but he failed to address these.

[20] Mr Korsak says that he told the Applicant a number of times, but particularly in January of 2013, that if he worked at any other dealer he would have lost his job for failing to meet his sales targets.

[21] Mr Elkington managed the Applicant in the last few months of his employment. He says that the Applicant never met his target as he failed to put in the necessary work, including follow up. He says he provided the Applicant with assistance and advice but the Applicant chose not to follow that advice.

[22] Mr Elkington says he recalls raising issues to do with the Applicant’s performance with him on a regular, almost daily, basis.

[23] He also says that he told the Applicant what was expected of him and that if he did not improve he would not have a job in the industry.

Was the Applicant unfairly dismissed?

[24] In determining if Mr Hlavati was unfairly dismissed I need to determine first if his dismissal was harsh, unjust or unreasonable. In making such a determination it is necessary that I consider each of the matters raised in s.387 of the Act:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Section 387 (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct

[25] It was expected that Mr Hlavati would achieve a sales target of 10 car sales per month. This compared to an industry benchmark of 15 sales per month.

[26] I am satisfied that the Applicant was aware of the targets set for him.

[27] In the 12 months he was employed by the Respondent he sold, on average, 3.25 cars per month. 2

[28] On any view the performance of the Applicant was nowhere near the expectations and target set by the Respondent. This persistent failure to achieve the level of sales required of him provides a valid reason to dismiss the Applicant based on his performance.

Section 387 (b) whether the person was notified of that reason

[29] Mr Hlavati says he was advised at the meeting at which his employment was terminated that the reason for his dismissal was that he was not selling enough cars.

[30] To this extent I find that the Applicant was told of the reason for his dismissal.

Section 387 (c) whether the person was given an opportunity to respond to any reasonrelated to the capacity or conduct of the person

[31] Mr Hlavati says that he was not given an opportunity to respond to the reason for his dismissal. He was told his employment was terminated and that he should leave immediately.

[32] This account is not disputed. On this basis I find that Mr Hlavati was not given an opportunity to respond to the reason for his dismissal.

Section 387 (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

[33] Mr Hlavati says he was not told of the purpose of the meeting on 24 May 2013 and hence was not aware that he might need a support person.

[34] Whilst I find that the Applicant was not advised of the purpose of the meeting prior to the meeting taking place there is no evidence that he sought a support person and that this was unreasonably refused. The Applicant did not ask to stop the meeting or to be given time to get a support person.

Section 387 (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[35] The dismissal in this case related to unsatisfactory performance.

[36] I am satisfied that the Applicant was advised of the performance standards expected of him. To this extent I accept the evidence of Mr Korsak and Mr Elkington.

[37] Whilst the Applicant sought to deflect questions of his performance and sought to concentrate on performance of the location where he worked, I am satisfied that he failed to meet the performance standards expected of him.

[38] I am also satisfied that the Applicant was advised on a number of occasions by Mr Korsak and Mr Elkington that his performance needed to improve.

[39] On the evidence before me however I cannot find that the Applicant was clearly and unambiguously told that if he failed to meet his individual performance targets his employment was in jeopardy.

[40] I am satisfied that Mr Korsak told the Applicant that, with his performance, he might not survive in other companies. This however falls short of warning the Applicant that his unsatisfactory performance at this company could lead to his dismissal. This warning however may have had the opposite effect of making the Applicant feels secure in his employment.

[41] I am also satisfied that Mr Elkington told the Applicant that if his performance did not improve his employment could be in jeopardy. In this respect I prefer Mr Elkington’s evidence to that of the Applicant. I cannot however find that Mr Elkington or anyone else for the Respondent clearly put in any way that could not be misinterpreted that if the Applicant failed to sell 10 cars a month over a specified period of time that his employment may be terminated.

[42] I understand and appreciate that the Respondent showed faith in the Applicant and thought that he could improve in the number of sales he achieved per month. The Applicant however had a right to have clear targets set and information given in a way that could not be misunderstood that a failure to meet the standards required could result in the termination of his employment.

[43] I am satisfied that the Applicant was given assistance and support by his managers to improve his performance.

Section 387 (f) & (g) the degree to which the size of the employer’s enterprise and 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

[44] Nothing was put to me on these matters.

Section 387 (h) any other matters

[45] The Applicant says that his employment was terminated because he made a complaint to the FWO regarding his wages and allowances. His cites as evidence that his employment was terminated the day following a FWO inspector contacting the Applicant.

[46] Mr Piva was not questioned on this and no evidence of any probative value was put to me on the matter.

Conclusion

[47] In reaching my conclusion I have taken into account all of the information and evidence before me.

[48] Ultimately the Applicant was not given a fair go in that he was not fully aware of the performance requirements placed on him or the consequences of failing to meet these requirements. He also believed that his employment was secure as he thought he was to be transferred to the Brighton site and get a work provided car.

[49] If performance standards and achieving sales targets is so important to the Respondent (and I accept that it is reasonable for it to be so) it needs a more formalised system, particularly with employees new to the industry, which clearly establishes individual and group performance requirements of the position and regular monitoring and formal feedback to such employees. This did not occur in this case.

[50] For all of these reasons I find that the dismissal of the Applicant was harsh and unreasonable given the lack of formal warnings given to the Applicant.

[51] I therefore find that the Applicant was unfairly dismissed.

Remedy

[52] The Applicant seeks compensation for lost wages. I am satisfied in the circumstances that reinstatement is not appropriate.

[53] In deciding the amount of compensation I have had regard to all of the criteria in s.392(2) of the Act.

[54] I am satisfied that the award of compensation will not adversely affect the viability of the Respondent’s business.

[55] On the evidence before me I am satisfied that, had the Applicant not been dismissed, he would have only remained employed by Motorworld for another two months. The Applicant’s performance was well below the level required of him. Had the Respondent applied a robust performance management process to the Applicant I am not convinced that his performance would have improved to the point where the Respondent would retain him as an employee. He was given training and mentoring by more experienced employees of the Respondent over the 12 months of his employment but failed to show any substantial improvement.

[56] The Applicant says that he was earning $39,000 per annum with the Respondent. Had he been employed by the Respondent for a further three months he would have earned $6,500.00.

[57] His evidence is that he gained a new position two months after he was dismissed and is earning $700 per week as a part time optical dispenser. This will have no bearing on the compensation amount awarded because this employment started after what I believe would have been the period of the Applicant’s employment with the Respondent.

[58] The lost remuneration for the employee is therefore $6,500.

[59] I will reduce this amount by 15% for contingencies resulting in an amount of $5,525.00.

[60] The Applicant says he applied for about 30 jobs before he gained his current position. I am therefore satisfied that the Applicant took reasonable steps to mitigate his loss and make no further deduction for a failure to do so.

[61] The amount I have calculated is below the compensation cap and no payment has been made for shock, humiliation and distress.

[62] I therefore find that the Applicant should be paid an amount of $5,525.00 less the relevant taxation amount. The amount is to be paid within 14 days of the issuance of the order.

[63]An order to this effect will issue in conjunction with this decision.

COMMISSIONER

Appearances:

Mr C Hlavati on his own behalf.

Mr D Piva for the Respondent.

Hearing details:

2013.

Melbourne;

November 11.

 1   Whilst the Applicant’s written submissions referred to his discussions with ‘the employer’ it became evident during proceedings that it was Mr Piva he had these interactions with.

 2   Respondent submission, dated 16 September 2013.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR544457>