Daniel Breglia v B.V. Skelton Pty Ltd T/A Skelton Sherborne

[2013] FWC 13

[2013] FWC 13

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Breglia
v
B.V. Skelton Pty Ltd T/A Skelton Sherborne
(U2012/8141)

COMMISSIONER WILLIAMS PERTH, 11 JANUARY 2013

Termination of employment.

[1] This matter involves an application made by Mr Daniel Breglia (the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent to this application is B.V. Skelton Pty Ltd T/A Skelton Sherborne (the respondent).

[2] The respondent is a freight forwarder which specialises in moving heavy equipment around the world.

[3] The applicant was employed by the respondent in the position of Import/Transport Coordinator in July 2011.

[4] The applicant’s employment was terminated on 9 May 2012 in a meeting with Mr Bob Gairdner the Chief Operating Officer. A letter confirming his termination was provided to him the following day which says that the reasons for his termination which were discussed with him in that meeting were:

“...your failure to follow instructions, your actions and decisions rendering you absent from work without notification and/or approval, and your failure to perform your duties as required to the satisfaction of the company....”

[5] At the hearing of this matter the applicant gave evidence as did Ms Julie Magnone the Chief Executive Officer of the respondent.

The applicant’s evidence and submissions

[6] The applicant’s evidence was that he was dismissed on the spot on the day after he returned from jury duty. His evidence was that on the day of jury duty his mobile phone had no power so he was not able to call to say that he would not return to work. His evidence was that the battery kept dying in his company mobile phone and the company knew that.

[7] In response to the company’s complaints about his performance he says the month before his dismissal he was given a $10 000 pay increase and told he was doing an outstanding job. His evidence was he has no written warnings nor any verbal warnings.

[8] He says he was questioned by the respondent as to why clients were not hearing back from him but this was explained and sorted out.

[9] He says the company was not paying suppliers which held cargo at the yard until payment was received which was brought up by staff and that this was the reason he could not complete his duties and that he carried out his duties to the best of his ability with the restrictions that were in place.

[10] He says he was only ever told he was doing a good job but agrees he was questioned about certain issues in the month before being dismissed.

[11] The applicant says that this was not enough time for him to be able to show he had changed.

[12] He submits that if there were performance issues he would not have received a pay rise.

[13] He says that he was notified by Mr Gairdner of the reasons he was being dismissed but that Mr Gairdner had made his mind up so when he was told he was to be dismissed he did not try to counter any reasons for his dismissal.

[14] The applicant did not ask to have anybody involved in the final meeting to support him.

The respondent’s evidence and submissions

[15] Ms Magnone says she had instructed Mr Gairdner to terminate the applicant’s employment on Tuesday, 8 May 2012. She says she made this decision after receiving feedback from various Acting Branch Managers from March 2012 onwards and feedback from various customers and other employees at the Perth Branch and after consulting with the owner of the company Mr Skelton.

[16] Ms Magnone’s evidence was that a previous Branch Manager Mr Higgins had recommended an increase to the salary of all members of the Perth Branch office to bring them into line with industry salary levels. At that time the respondent had not been made aware of any major performance issues with respect to the applicant. On the basis of the recommendation from Mr Higgins increases for the applicant and one other member of the Perth Branch office were agreed.

[17] Her evidence was that on 8 March 2012 she discussed with the applicant via a video conference the increase to his salary level and that this had been recommended by Mr Higgins.

[18] After the departure of Mr Higgins in early March 2012 the respondent had not hired a permanent Perth Branch Manager and all Perth employees were advised that Ms Magnone would take on the role of Manager of the Perth operations until a permanent replacement was found. The Perth staff were also advised that the managers and supervisors from various divisions of the company whom would travel from Brisbane to Perth from time to time would manage the day-to-day operations of the Perth Branch with her full authority.

[19] From this time onwards Ms Magnone became aware of feedback from customers that there were ongoing issues with a lack of response and a lack of action on the part of the applicant in satisfying various customers’ needs. She recorded each of these customer issues and complaints 1.

[20] Her evidence was that each time one of these issues were raised she had recorded what was reported by the customer and the Acting Perth Branch Manager at her request addressed the matter with the applicant and counselled him on the respondent’s expectations.

[21] Her evidence was that the issues were often the same. She instructed the Acting Branch Manager to investigate the matters, speak with the applicant and counsel him on his actions in not returning customer phone calls, not responding to customer or supplier emails, not actioning requests or remembering to advise transport companies to deliver goods or collect empty containers. This all led to the company incurring thousands of dollars in lost profits and damaged the company’s reputation with those customers and caused many customers to cease using the services of the respondent due to the applicant’s actions or inaction.

[22] Ms Magnone’s evidence was that she also received complaints from two other employees in the Perth Branch office that they would often have to cover the applicant’s work and answer customer queries and complaints when the applicant simply was not returning phone calls or emails. Both employees told her this was an ongoing issue and had been previously discussed with former Branch Managers.

[23] With regard to the counselling discussions her evidence was that the applicant was given the opportunity to respond to the customer complaint or issues that had been raised. For example with regard to non-return of phone calls or emails from customers the applicant had advised that he was regularly out of the office inspecting cargo on the wharf or delivering documents and therefore could not do this work. Her evidence was that the applicant was supplied with a company mobile phone and a hands-free accessory and that this phone was email and internet enabled and the company also supplied him with a laptop with a Telstra 3G mobile internet card so that he could also access his email on his computer at any time or place.

[24] Ms Magnone’s evidence was that as late as Friday, 4 May 2012 she was receiving phone calls from a customer stating that the applicant had failed to return four phone calls, plus emails, in relation to a delivery matter and that this was costing the customer additional money.

[25] Her evidence was that in addition to the poor performance issues regarding customer complaints in the last three weeks of his employment there were occasions where the applicant left the office early in the afternoon with only a few documents to deliver which were not urgent and could have been completed later that day and that he would then remain “offline” and not take any calls, with his mobile phone turned off, and did not return any calls left on his phone message bank nor did he respond to emails.

[26] Her evidence was that having been alerted to this by customers she tried calling the applicant’s mobile, left messages and send him an email and also checked with the other employees in the Perth office as to what time the applicant had left and what document deliveries were scheduled that afternoon. Following this she discussed with the applicant that this was unacceptable behaviour.

[27] With respect to the applicant attending jury duty Ms Magnone says he had been advised that he was to report to jury duty on the Monday and that once he had been advised whether the court would require his services for the day or for the remainder of the week he was to report back to Mr Gairdner. At Ms Magnone’s direction Mr Gairdner had contact with the applicant whilst he was at the court on the Monday and the applicant advised that they were waiting to hear the outcome of jury selection for that day and he was told that if he was excused he was to report back to the respondent’s office to complete his duties.

[28] There was however no further communication from the applicant on that day to the respondent and his phone was sending calls straight to message bank.

[29] When the applicant reported for work the following day he confirmed he had been excused from jury selection at 1.00 p.m. on the Monday and rather than reporting for work he had gone home and had not returned any of the respondent’s phone calls, his customers’ phone calls or responded to any emails. When this was raised with him he responded that he did not have a car with him in the city on the Monday and did not have his laptop with him that day and when he went home he had fallen asleep. The applicant was advised that a staff member could have collected him from the city which is only a 5 to 10 minute drive from the company’s office or he could have caught a train or ferry to the office and worked that afternoon.

[30] Following this incident Ms Magnone says that after many months of customer complaints and feedback from other employees and after the counselling sessions with the applicant she decided that the company could no longer accept his poor performance and the costs to the company of this both financially and to its reputation.

[31] She submits that the respondent had given the applicant sufficient counselling in relation to these complaints and the time and the resources to rectify his shortcomings.

[32] Her evidence was that altogether the company has 21 employees and does not have any dedicated human resource management specialists nor expertise.

Consideration

[33] Section 387 of the Act, set out below, specifies the matters that Fair Work Australia must take into account when considering whether the applicant’s dismissal was harsh, unjust or unreasonable.

“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.”

[34] The evidence is clear that the applicant’s performance over an extended period had been unsatisfactory. I find that there had been a number of complaints from different customers to the respondent about the applicant’s failure to be available to take their phone calls or to return their phone messages and to respond to their emails.

[35] I also find that the applicant had been provided with the appropriate tools for him to meet the requirements of these customers in this regard in terms of a mobile phone and a laptop both of which were able to receive and send email whilst the applicant was out of the office.

[36] I also find that the applicant had on occasions without excuse left the office early.

[37] I also find that contrary to the express direction of the respondent’s Manager after the applicant was excused from jury duty at about 1.00 p.m. on Monday, 7 May 2012, he did not contact the respondent’s office to advise that this was the situation nor did he return to the office to resume his normal duties. The applicant’s explanation for this that his mobile phone battery had run out and that when he was at home he fell asleep are in no way acceptable excuses for his failure to contact the respondent and return to the office as he had been directed and would have been normally expected in any event.

[38] Each of these matters being the applicant’s poor performance and not responding to customer phone and email contact, leaving the office early and not returning to the office on the afternoon of 7 May 2012 and not advising the respondent as he was directed to of his situation were valid reasons for the applicant’s dismissal.

[39] I am satisfied that the applicant was notified by Mr Gairdner of the reasons the employer was considering dismissing him during their discussions on 9 May 2012. There were two discussions between them about the applicant’s dismissal and I am satisfied the applicant did have an opportunity to respond to those reasons but chose not to do so further because he believed Mr Gairdner had made his mind up.

[40] There was no refusal by the respondent to allow the applicant to have a support person present to assist in the discussions relating to his dismissal.

[41] I am satisfied that on a number of occasions various managers including the Chief Executive Officer Ms Magnone had counselling discussions with the applicant about his unsatisfactory performance before he was dismissed and to that extent he had been warned about that unsatisfactory performance. Whilst it might have been desirable for the respondent to have given the applicant formal written warnings or a record of these counselling discussions there is no obligation on the respondents to do so.

[42] The respondent’s enterprise is relatively small and there are no dedicated human resource management specialists or expertise within the enterprise which I am satisfied has impacted significantly on the procedures followed in effecting the dismissal. This can be seen in the fact that other than the letter of termination and the record of various customer complaints the procedure of counselling and warnings that was followed has not been documented.

[43] The applicant’s employment with the respondent was slightly less than 12 months.

[44] For an extended period the respondent has raised with the applicant complaints from customers about his failure to respond to their contacts but notwithstanding the numerous discussions about this the applicant’s performance in this regard has not improved. Further the applicant’s actions in leaving the office early on occasions without good excuse and in failing to return to the office or contact the employer on the afternoon of Monday, 7 May 2012 having been excused from jury duty is consistent with this lack of commitment to his employment generally.

[45] In this case the applicant has not discharged the onus upon him to demonstrate that his dismissal was harsh, unjust or unreasonable in all of the circumstances.

[46] The dismissal of the applicant was not unfair.

[47] This application will be dismissed and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

D Breglia on his own behalf.

J Magnone on behalf of the respondent.

Hearing details:

2012.

Perth:

October 30.

 1   Exhibit R1, “July Magnone’s notes”.

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