David Leslie Bradford Mapstone v DICETECH Pty Ltd

[1996] IRCA 47

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4792 of 1995

B E T W E E N :

DAVID LESLIE BRADFORD MAPSTONE
Applicant

AND

DICETECH PTY LTD
Respondent

Before:           Judicial Registrar Murphy
Place:              Melbourne
Date:              21 February 1996

REASONS FOR JUDGMENT

Pursuant to section 170EE(2) of the Industrial Relations Act (“the Act”) the applicant seeks reinstatement to his position as a sales assistant with the respondent, a small family owned and run chain of retail shops selling sporting goods.

The legal issues in the proceeding were whether the parties had discharged their respective obligations pursuant to sections 170DE and 170DC of the Act.

The applicant is trained as a sales assistant
The applicant is aged 20 and prior to commencing employment had little experience in the retail trade.  He responded to an advertisement in the window of one of the respondent’s stores for work as a sales assistant.  The respondent employs some 30 full and part-time sales assistants in its five retail stores, located in the southern and eastern suburbs of Melbourne. 

The applicant was interviewed by Mr Mark Hanna, a director of the respondent who has responsibility for personnel matters.  The applicant impressed Mr Hanna.  He played football and was interested in other sports.  Mr Hanna was of the view that with appropriate training he could be “moulded” to become part of the customer orientated team of the respondent.  Mr Hanna told the applicant that he would have two weeks training at the Tooronga store and then be assigned to either the Wheelers Hill or Chadstone store.

The applicant commenced work at the Tooronga store on 19 June 1995.  The store manager was Mr Bradley Walker.  Mr Walker had been employed by the respondent for over four years, including two and a half years as a manager and had a deal of experience in training staff for the respondent.

Over the first few days at Tooronga Mr Walker took the applicant through store procedures and trained him in selling the respondent’s goods.  The applicant had been told by Mr Hanna to bring an exercise book with him to note what he was being told.  Mr Walker quizzed the applicant from time to time on his product knowledge.  By 27 June Mr Walker had formed the view that the applicant was not absorbing his instructions.  Further, his nervousness and hesitant attitude to customers led Mr Walker to the conclusion that he was not suited to the retail trade.  Mr Walker sent a memorandum (Exhibit R2) to Mr Hanna, and they discussed the matter.  Mr Hanna advised Mr Walker that “due to Industrial relations pressure I feel we must give him his first warning”.  After sending the above advice, Mr Hanna attended at the store to discuss the applicant’s performance.

Mr Hanna gave evidence that he proceeded to give the applicant a first warning on 29 June.  The contents of the warning were not reduced to writing.  Mr Hanna, however, prior to seeing the applicant, had prepared a memorandum (Exhibit R8) detailing the matters he intended to raise with the applicant.  The matters that Mr Hanna said he raised with the applicant in the meeting included customer approach, his use of product knowledge and his telephone manner.  Mr Hanna claimed that he told the applicant that “this was a warning” three times in the course of the conversation.  He said that the applicant hardly responded to the matters that he had raised except to become teary-eyed and state that it was “my first job” and “give me a chance”.  When the applicant appeared to be reacting adversely to the warning, Mr Hanna backed off.  Mr Hanna maintained however that he said to the applicant “this is a warning ..... I don’t want to threaten you but you have to improve.”

At the end of Exhibit R8 were four typewritten questions, with handwritten answers.  Mr Hanna gave evidence that in the process of warning the applicant he had asked the questions and had completed the answers soon after in the carpark.  The notes record the applicant’s response as that he was “nervous” and asking Mr Hanna to “give him a chance”.  The notes record that the applicant said :

“I’m very nervous.  Brad’s training has been great he’s covered all areas - once again give me a chance”.

The applicant admitted a discussion with Mr Hanna on 29 June but denied that the word “warning” was ever used.  He said:  “I knew there was (sic) problems”.  The applicant maintained that Mr Hanna stated that he should know more about the products after Mr Walker’s training, he should be more assertive and speak clearly.  The applicant admitted that he understood what Mr Hanna had said.  The applicant denied saying to Mr Hanna “give me a chance”.  He maintained that Mr Hanna said “I wouldn’t want to fire you”.  The applicant described it as “more of a pep talk to try and boost my confidence”.

After the “warning” of 29 June Mr Walker was advised by Mr Hanna, in a Memorandum dated 29 June 1995, to re-train the applicant in all aspects of his position.  The memorandum read:

“  First Warning
Brad, could you please Re-train David in the following areas,
           Customer Approach
           Selling process
           Phone manner
           Product Knowledge
David seems very nervous to me please give him encouragement and support and lots of praise on areas that you can.  I feel we must give him the benefit of the doubt.  I know this disagrees with your opinion but I feel he will settle down.”

Mr Hanna participated to some extent in the training of the applicant as the latter participated in a general training session that Mr Hanna was undertaking at the store.

Mr Walker carried out the instructions in the Memorandum but after doing so remained of the view that the applicant was not suitable for retail.  He recorded this in a Memorandum to Mr Hanna on  6 July 1995.   Mr Walker’s conclusion was that even with further training “I still feel he is not suited for a retail position and would still struggle to meet the criteria required to succeed in this job”.  Mr Walker followed up this conclusion with advice to the applicant that more would be expected of him at the Wheeler’s Hill store.

The applicant agreed that Mr Walker at one stage told him that he would have to improve.  He replied that he would try his best to improve.  In early July Mr Hanna and Mr Walker agreed that the applicant would be transferred to the Wheelers Hill store where he would receive further training and be exposed to more customers. 

Apart from the context and content of the “warning” the main issue in dispute between the parties as to what happened at the Tooronga store was whether, in training the applicant, Mr Walker had made any reference to the Staff Manual (Exhibit R1).  Mr Walker stated that he trained the applicant from the manual, referred him to it, had it open on the counter and available in the back room.  Mr Mark Hanna said he saw Mr Walker referring the applicant to the manual.  The applicant said that he never saw the manual.  He said that Mr Walker, in training him, merely discussed various products and techniques with him without any reference at all to a manual.

The Applicant moves to the Wheelers’ Hill Store
The applicant commenced at the Wheeler’s Hill store on 16 July.  The store manager was Mr Boxall who stated that from his commencement he found that the applicant’s product knowledge was inadequate.  Mr Boxall checked with Mr Walker as to what training had been undertaken and found that the applicant should have known a number of matters that he did not.  Mr Boxall, after discussions with Mr Hanna, took it upon himself to start afresh with the applicant and “begin an extensive training in all areas in order to bring him up to an acceptable standard” (Exhibit R4).  In evidence he said that he set out to assist the applicant to bring himself up to be “a really good sales person”.   Mr Boxall trained the applicant “non-stop” for a few days.  He went over all the problems previously raised and asked the applicant if he had any questions.  The applicant said he understood. At one stage the applicant prepared a half page list of areas he needed help in and Mr Boxall proceeded to explain each of those areas.

Mr Boxall said that after the further training the applicant’s performance had improved.  The applicant was able to approach customers but still could not get a conversation going.  Mr Boxall had to step in to assist the applicant in achieving sales and dealing with customers.  Mr Boxall would encourage him but then he would “go back into a hole again”.  Mr Boxall said that it usually takes a full-time sales person a week to get to an acceptable level.  At times the applicant had reached the level but then fell back.  Mr Boxall said “he let the customer control the situation” and wasn’t confident to a “level which was acceptable”.

A further warning
By 23 August the situation had not improved and Mr Boxall spoke to Mr Stewart Hanna, who was a director of the respondent and nominally responsible for the Wheelers Hill store.  Both Mr Mark Hanna and Mr Stewart Hanna were based at the Wheeler’s Hill store and had the opportunity to observe the performance of the applicant from time to time as they came and went at the store.  In addition Mr Stewart Hanna spent about half his time actually serving in that store.  Mr Stewart Hanna discussed giving a warning to the applicant with Mr Mark Hanna. 

Late on the afternoon of 23 August he took the applicant aside and explained the areas where the applicant’s performance was deficient.  The areas referred to were his telephone manner, including inability to take messages, wrong ticketing on stock, and the sales process.  Mr Stewart Hanna explained to the applicant where he saw problems and gave him ways to rectify the problem.  Mr Stewart Hanna said he “warned him.....(I) gave him a strong reference that if his work did not improve it would affect his job security”.   Mr Stewart Hanna’s evidence was that the applicant understood the warning, “knew it was serious” and got emotional.  The applicant said to Mr Stewart Hanna that he would improve and that Mr Stewart Hanna would observe a difference when he returned from a trip to Sydney that was to take place soon after.

Mr Stewart Hanna reduced what he had told the applicant to writing in a memorandum (Exhibit R12) that he forwarded to Mr Mark Hanna.  The applicant was not given a copy of the memorandum.  It read :

“Prior to me going to Sydney at the end of the day I pulled David aside and had a lengthy chat to him.  I was hoping that by allowing him to have a frank discussion with me in private that he might understand our position and what we expect from him.
I spoke in general about the obvious things that he seems to have trouble with, which covered Phone manner, Stock control and Ticketing, Work levels and Staff standards was (sic) also covered.  I tried to explain in simple terms of what standard he needs to reach to be able to work effectively as a team member with Jarrod (Boxall) the manager.  With that I gave him examples of what I thought he could do to improve.
He stood still and nodded in agreement with what I said and when I asked him what he thought about “Room to improve” he agreed.  I then gave him an accurate indication that if he doesn’t find the ability to improve after Jarrod and prior to that Brad’s (Walker’s)  detailed training that his Job status would be affected greatly.  He understood this to be a warning and said that by the time I returned from Sydney that I would see an improvement.
I hope this can help the situation and let me know of any changes please.”

The applicant did not really dispute Mr Stewart Hanna’s account of what happened on 23 August.  He admitted that he “knew his job was on the line”.  He said he became distraught.  The applicant denied that Mr Stewart Hanna had referred to a second warning.  He said that in comparison to the June discussion with Mr Mark Hanna that it was “.....a lot harder, I thought.  I thought (it) was... more of a warning”.  He agreed that he would improve his performance. 

Mr Boxall gave evidence that on about six occasions he had told the applicant on a “mate to mate”  basis that his performance had to improve and that if “he didn’t (his job) would be on the line....” or “he wouldn’t be with us much longer”.   Mr Boxall in a memorandum to Mr Mark Hanna dated 29 August 1995 (Exhibit R6) confirmed that the applicant “has been warned...  at least six times about his performance in the work area”.  The applicant accepted that on three or four occasions Mr Boxall had said to him that he had to improve or “you won’t be around here much longer”. 

The disputed warning
The applicant gave evidence that on Friday 25 August Mr Mark Hanna came up to him at the Wheelers Hill store and referred to Mr Stewart Hanna’s discussion on 23 August.  He had said “well, I’m just making this official - an official warning.” 

He had gone on to say that the applicant “really should be doing a lot better”  (and) “ I wouldn’t want you to lose your job”.  Mr Mark Hanna agreed that this conversation occurred.  He maintained, however, that on Tuesday 29 August he had given the applicant a third and final warning.  He produced a handwritten memorandum of that date (Exhibit R9) which he said recorded what he said to the applicant on that day.  The memorandum read :

“After discussions with Jarrod and Stewart its (sic) evident that your skill levels have not improved since your second warning by Stewart Hanna.
This is your final warning on your performance levels listed below.
Point 1  Customer Approach Service
Jarrod should not have to push you to serve customer (sic)  You are a sales assistance (sic) its the core of your job. You need to greet and say goodbye to customers.
You cannot sell shoes that are to (sic) big or the wrong type to customers.
Point 2 Phone Manner
You lack excitement and are very hard to understand on the phone.  You cannot continue to give incorrect messages on the phone.
Point 3 Store Procedures.

(1)       ticketing stock incorrectly is acceptable (sic)

(2)       still not able to use till after being retrained 3 times on it.
What do you think?

I’m getting there give me a chance.

Can you improve on all these levels including warning 1 and 2.

Yes.

David this is your final warning if there is any way I can help you achieve your goals please inform me.
Mark Hanna.”

The applicant was adamant that no conversation along the lines alleged by Mr Mark Hanna ever occurred on 29 August.  The only conversation he would admit to was the confirmation by Mr Mark Hanna on 25 August of Mr Stewart Hanna’s warning of 23 August.

The applicant also specifically denied that Mr Mark Hanna ever raised with him prior to his termination the issue of selling the wrong size or type of shoe to customers.  The applicant agreed however that Mr Boxall had intervened in a sales transaction he was undertaking to change the type of shoe being sold.  The matter is of some significance as it is at the centre of an incident that occurred on 1 September.

Mr Boxall corroborated, to some extent, Mr Mark Hanna’s evidence about a warning on 29 August.  On that day Mr Boxall wrote a memorandum to Mr Mark Hanna (Exhibit R6) noting the prior warnings to the applicant by himself and the Hanna brothers.  He noted the two weeks training that he had given the applicant and the “insignificantly minimal improvement in his work.”  He recommended that the applicant’s position be terminated.

It was in response to this memorandum that Mr Mark Hanna said he gave the applicant  the final warning referred to above.  Mr Boxall, in unchallenged evidence, said that he was aware that the applicant had been given a final warning by Mr Mark Hanna.  After the warning Mr Boxall said to the applicant :  “This is it.  There’s .... no more chances.  Either you make it or you break it from here.” Mr Boxall said the applicant seemed very confused.  After that there was no real improvement in the applicant’s performance .... “he had his mind elsewhere”.

The incident on 1 September
On 31 August the applicant sold a woman a pair of cross-trainer shoes.  On 1 September the customer returned to the store and sought to return the shoes because they were unsuitable.  The customer claimed the shoes were too big and that rather than cross-trainers she wanted tennis shoes.  There was considerable dispute as to what ensued.  The customer first approached the applicant.  When it was ascertained that the shoes had been worn Mr Boxall became involved.  It was the evidence of Mr Boxall that when the customer had demanded her money back the applicant had not replied. Mr Boxall then intervened and advised the customer that the respondent had a policy of no refunds where goods had been used.  The customer had become upset and Mr Stewart Hanna had become involved.  It was ascertained that the cross-trainer shoes were not suitable for purely tennis, as demanded by the customer, and were in any event one and a half sizes too big.  Eventually Mr Boxall, at Mr Stewart Hanna’s direction, had fitted the customer with a replacement pair of tennis shoes and she left.  The applicant had taken no part in the whole transaction and had made no comment or apologised to the customer.  At some stage Mr Mark Hanna had also entered the store and observed part of the transaction.

The applicant’s version of what happened was that when the customer had returned to the store and advised that the shoes were unsuitable he had told her, in Mr Boxall’s presence, that she had selected the shoes herself and been told by him the previous day that the shoes were cross-trainers and not specifically tennis shoes.  Further the customer was happy with the size of the shoes.  Mr Boxall was unable to recall the applicant giving that explanation in his presence.  The evidence of both Mr Boxall and Mr Stewart Hanna was that the applicant did not defend the sale the previous day.

The applicant was unable to satisfactorily explain how the customer had ended up with a pair of shoes so big.  His evidence that the customer had chosen the shoes and had wanted to take them was consistent with the previous criticism of the applicant’s performance that he had failed to take control of the sales transaction.  In the case of this customer this demanded that she be fitted with a tennis shoe of the correct size, not an oversized cross-trainer.

The dismissal
The tennis shoe incident took place at about midday.  Shortly after that Mr Mark Hanna and Mr Stewart Hanna called the applicant to the office at the back of the store.  A discussion ensued that took about 20-30 minutes.

In the conversation Mr Mark Hanna asked about the incident that morning and hardly received a response.  He then mentioned the previous warnings and performance problems of the applicant.  He said that the respondent had concluded that the applicant was not suited for retail and that his position could not go on.  The applicant was asked for a response.  During the conversation, which Mr Stewart Hanna said had an optimistic focus, the applicant was asked about his other interests and given encouragement to look for another career.

Mr Mark Hanna said that during the conversation the applicant broke down in tears.  At that point Mr Mark Hanna said that the meeting should break and that the applicant should have lunch and a chance to compose himself and respond to the respondent’s conclusions after lunch.  At some stage in the conversation the applicant was told that, subject to anything further he might have to say, he was to finish at 5.30p.m. that day.  The applicant denied that this was what happened.  He admitted that he was asked for his response to the matters relating to his unsuitability for retail, and he indicated that “there’s really nothing to say”.  He denied that the matter was left unresolved before lunch and that he was expected or invited to respond later.  Mr Stewart Hanna confirmed, in general terms, Mr Mark Hanna’s account of the conversation. 

After the conversation the applicant left the store and returned after lunch. There was no further discussion about his future that day and both Mr Mark and Mr Stewart Hanna said that they were surprised that the applicant did not raise the matter further with them.

On the following Monday the applicant delivered a letter (Exhibit R10) protesting that his termination was “reactive and without substantive foundation”.

A few days later the applicant had a telephone conversation with Mr Mark Hanna during which he claimed that the latter told him that he had made up his mind four weeks previously that he didn’t have a job.  Mr Mark Hanna denied this aspect of the conversation.

The applicant’s performance and the response

In cross-examination neither Mr Boxall nor Mr Walker were really challenged in their evidence that the applicant, despite training, was not able to perform adequately as a sales assistant.  The evidence was uncontested that various aspects of his performance had been informally raised with him on numerous occasions.  He had been retaught matters that Mr Walker said usually were mastered by other trainees in a week or two.

The applicant was first trained by Mr Walker and then re-trained by Mr Boxall.  As far as all the respondent’s witnesses were concerned the applicant did not achieve a satisfactory level of performance despite this training, re-training and numerous incidents of encouragement by them. 

Mr Mark Hanna gave evidence that as a result of experience and advice from management consultants the respondent did not use a system of written warnings to improve staff performance.  The evidence was that a system of written warnings was seen as having a negative effect on the morale of staff members.  The respondent’s managers had undergone performance enhancement training and were trained to encourage staff by positive reinforcement.  He maintained the system of oral warnings was consistent with this.

It was not difficult to identify the precise deficiencies in the applicant’s performance that led to the warnings, and both of his managers to the conclusion that he was unsuitable for a retail position.  Mr Walker, who had quite some experience in staff training, recorded his opinion in memoranda dated 27 June and 4 July.  Mr Boxall recorded (Exhibit R4) that after three days observing the applicant his performance was unsatisfactory.  He confirmed this in a memorandum on 29 August (Exhibit R6) 

In evidence were extracts of diaries kept by Messrs Walker and Boxall.  For reasons which were not entirely satisfactorily explained the originals were not produced.  Mr Walker extracted from his diaries pertinent details relating to the applicant’s performance and reproduced them in another document.  Mr Stewart Hanna did the same thing from diaries kept by Mr Boxall and from his own recollection of events.  Both Messrs Walker and Boxall swore that the extracts recorded correctly the entries in their diaries.

In evidence were memoranda (Exhibit R2) from Mr Walker relating to the applicant’s performance dated 27 June and 4 July.  Also in evidence were memoranda (Exhibits R2 and R5) from Mr Mark Hanna dated respectively 29 June and 22 July to Mr Walker and Mr Boxall confirming that  the applicant was to be re-trained in aspects of his position.  In addition there was the memorandum of 29 June of Mr Mark Hanna that he said was the basis of his first warning to the applicant.  Also in evidence was a memorandum (Exhibit R12) dated 23 August by Mr Stewart Hanna which recorded what he said was a warning, and a memorandum (Exhibit R9) dated 29 August of Mr Mark Hanna that he said he wrote after giving a final warning to the applicant. 

The applicant in his evidence, and in his attack on the respondent’s witnesses through his counsel, did not seek to deny that his performance was found deficient by the respondent.  He claimed that the unchallenged picture presented by the respondent’s witnesses in evidence was “a bit harsh”.  He accepted however that Mr Boxall would compliment him and say “there is a little need for improvement in areas”, but said that he just thought that was common.  The applicant at no stage challenged the evidence of Messrs Walker and Boxall that he at all times was asked if he had any questions in relation to what he was being shown by them.

The picture that emerges from the evidence, particularly the contemporaneous documentary evidence, is that the applicant was given extensive training, assistance and encouragement to learn the tasks required of him.  The exact requirements imposed on the applicant do not appear onerous.  He was required to know the store procedures, to have a cheerful manner on the telephone and to customers, and was required to approach customers, engage them in conversation and using his product knowledge, sell them goods. 

It was only faintly suggested that the duties were of a level of complexity that demanded a training program more elaborate than that provided.  The opinions and conclusions of both Mr Mark Hanna and Mr Stewart Hanna that the applicant, based on his performance, was not suited to the respondent’s retail environment were not attacked as untenable or unreasonable.

The evidence was that the respondent was a successful customer focused organisation that expected high standards of its staff, and that the applicant, in the unanimous view of the respondent’s witnesses just did not meet the standards of the organisation.

Credibility of Witnesses
Before making findings on the various contested questions in these proceedings it is necessary to consider the credibility of witnesses.  First it is worth noting that the documentary evidence, always of assistance in resolving contested evidentiary issues, is of different types.

There were a number of memoranda exchanged between Messrs Boxall and Walker, and Mr Mark Hanna relating to the applicant’s performance.  These documents are contemporaneous and have a ring of truth about them. They corroborate the evidence of all the respondent’s witnesses that there were problems with the applicant’s performance.  Mr Stewart Hanna’s memorandum dated 23 August recording his verbal warning is in the same category.

The diary extracts, while not original documents, read convincingly.  They provide further corroboration for the respondent’s evidence about the performance deficiencies of the applicant.

It is the documents recording Mr Mark Hanna’s “warnings” that are the most contentious.  Counsel for the applicant, in effect, submitted that Mr Mark Hanna’s evidence in relation to the two warnings he said he gave should not be accepted.  He submitted that the documents did not reflect the contents of what happened on either 29 June or 29 August. 

In relation to the “warning” of 29 June the applicant accepted in cross examination that two of the answers recorded by Mr Hanna in that memorandum were actually given by him.  The applicant contested however that the term “warning” was ever used and did not accept that the “warning” was as serious as Mr Mark Hanna made it out to be.

The contest in relation to the memorandum of 29 August and the alleged warning on that date was even more stark.  Counsel for the applicant submitted that Mr Hanna had prepared the document at some later time and that no conversation, as recorded in that document, occurred on that date.

While Mr Mark Hanna was prone to exaggeration, and at times reconstruction of events, he did not present as a liar who would manufacture a document to, in a sense, create a “paper trail” of two written warnings to ensure that he discharged his obligations as a personnel manager and under the Act. Mr Mark Hanna gave a credible explanation as to why the respondent utilised a system of oral warnings rather than written warnings. His evidence was, however, that he was familiar with his obligations under the Act. This familiarity is recorded in a memorandum to Mr Walker dated 28 June.

The documented evidence of the applicant’s lack of performance, resulting in corrective action by the respondent, makes Mr Hanna’s version of events on 29 August more credible.  If the applicant was performing so badly, and Mr Boxall had recommended that he be terminated, it is difficult to understand why Mr Mark Hanna would not take some action.  Further Mr Boxall, a very credible witness, corroborated Mr Hanna’s evidence when he gave unchallenged evidence about a conversation with the applicant after the final warning.

The applicant, however, did not appear as a witness who should be disbelieved.  It was obvious however that the actions taken by Mr Mark Hanna and Mr Stewart Hanna in relation to his employment had a serious impact on him at the time.  The only conclusion that can be reached is that this has clouded his memory of a number of the disputed events.   It follows that on contested evidentiary issues I prefer to accept the evidence led by the respondent over that of the applicant.

Findings on valid reason
The respondent carries the onus of proof that it had a valid reason, in the sense of  a “sound, defensible or well-founded” reason, related to the applicant’s conduct or performance to terminate the applicant’s employment (ss170EDA(1)(a) and 170DE(1) of the Act and Selvachandran v Peteron Plastics Pty Ltd  (Industrial Relations Court of Australia, Northrop J, 7 July 1995)).  This requires findings as to both the issues on which the respondent relied and the manner in which the respondent proceeded to dismiss the applicant.  Here the respondent argued that the reason for the termination was the applicant’s poor performance.  It was argued that that reason was valid given the evidence of poor performance and the respondent’s warnings about that to the applicant.

The Court accepts the evidence of the respondent’s witnesses that the respondent, despite training, re-training and encouragement, had serious concerns about the applicant’s performance virtually from the time that he commenced employment.  The Court accepts that the duties of a sales assistant were able to be grasped by other trainees in a week or two.  The applicant, despite being trained by Mr Walker, encouraged by Mr Mark Hanna and Mr Stewart Hanna and being re-trained by Mr Boxall, continued to perform unsatisfactorily.  I am satisfied that the areas of the failure in performance are set out in the memoranda by Mr Stewart Hanna dated 23 August and Mr Mark Hanna dated 29 August. 

The Court accepts that on 29 June, in response to the difficulties that were then evident in relation to the applicant’s performance, Mr Mark Hanna warned the applicant about his performance.  I find that subsequent to that Mr Walker also told the applicant that when he transferred to the Wheeler’s Hill store his performance would have to improve. 

The Court further finds that two further warnings, on 23 August by Mr Stewart Hanna and 29 August by Mr Mark Hanna, were also given by the respondent.  The Court rejects the evidence of the applicant that no warning was given on 29 August.  It finds that both the applicant and Mr Mark Hanna were mistaken when they asserted that there was a warning on 25 August.

The evidence of some action by Mr Mark Hanna on 29 August was corroborated by Mr Boxall and is consistent with Mr Mark Hanna taking action in response to Mr Boxall’s memorandum on that day recommending the termination of the applicant.  The Court rejects the suggestion that Mr Mark Hanna’s memorandum (Exhibit R9) confirming what was contained in the oral warning on that day was fabricated or created after the termination.  The Court finds that the memorandum was made to provide a record of the oral warning, such an action being consistent with Mr Mark Hanna’s knowledge of the obligations of employers in relation to disciplining of staff. 

The Court accepts that both the warnings on 23 and 29 August were given because the applicant’s performance did not meet what, I am satisfied, were the reasonable expectations of the respondent.  The applicant was unable to satisfy me, as submitted by his Counsel in his final address, that a period of three months was needed before the applicant could reasonably be expected to perform to a satisfactory level as a sales assistant.   I accept the evidence led by the respondent’s witnesses, who were all experienced in training staff, that the requirements of a sales assistant were mastered by other persons within one to two weeks.  The Court does not find it necessary to determine whether the applicant was afforded access to the Store Manual (Exhibit R1) by Mr Walker.  It finds that irrespective of the position of the manual the applicant received adequate oral instructions from the respondent.

The Court also finds that, in addition to what could be described as one formal warning by Mr Stewart Hanna and two by Mr Mark Hanna, the applicant was also told on at least six occasions by his manager, Mr Boxall, that unless his performance improved his position would not long endure.  Although these unofficial warnings were made on a “mate to mate” basis, in the context of the applicant’s knowledge that the respondent found his level of performance unsatisfactory, they are relevant to the way the respondent approached the performance deficiencies of the applicant, and can be relied upon in the overall circumstances as constituting more than “mere exhortations to improve”  (Cf Nicolson v Heaven & Earth Gallery Pty. Ltd. (1994) 1 IRCR 199, 210).

On 1 September an incident occurred when a customer returned a pair of tennis shoes.  I am satisfied that the applicant had on the previous day sold the customer shoes that were the wrong size and type.  On 1 September when the customer returned to the store the applicant did not defend his actions of the previous day.  The customer was later fitted with a suitable pair of shoes and left.  I find that fitting the correct size and type of shoes had been a subject covered in the warning by Mr Mark Hanna on 29 August.

Following this incident, which the respondent correctly viewed as another manifestation of unsatisfactory performance, the applicant was called to a meeting at which the applicant’s future was discussed with him.  I find that the applicant said little in response to Mr Mark Hanna’s suggestion that he was unsuitable for the retail trade. In cross-examination the applicant admitted that he said “maybe I’m not the right person for it”.

I am satisfied that the discussion was extensive and that the applicant was asked to respond to the suggestion by Mr Mark Hanna that this was not the position for him.  I find that the applicant at that stage broke down and at that point was invited to have lunch, compose himself and respond later.  Such a finding is consistent with the positive way that the respondent had approached the applicant’s performance problems in the past.  It is consistent with the impression given by the respondent’s witnesses, corroborated by the documentary evidence, that they were genuinely interested in giving the applicant a fair go in his employment. The applicant returned to the store after lunch but did not respond to the invitation that had been proffered to him.  He finished work that day at 5.30 p.m.

Given the nature of the tasks required, the training provided, the time that the applicant had been employed, and the warnings, informal and formal, I am satisfied that the respondent had a valid reason, related to the applicant’s performance when it, on 1 September, terminated his employment.  The applicant was not performing in his position as a sales assistant and given the matters just mentioned the respondent was entitled to dismiss him for that reason. The respondent has discharged its onus of proof and not breached s170DE(1) of the Act.

An opportunity to respond ?
Counsel for the applicant argued, in the alternative, that the manner in which the dismissal took place infringed s170DC of the Act because the applicant was not given a proper opportunity to defend himself.

The obligations imposed on employers by s170DC of the Act must be considered in the context of the workplace under consideration and the background circumstances of the actual dismissal: “It must be remembered that the section (s170DC) is to be applied in practical situations of employer and employee.”:  Johns v Gunns Limited (1995) 60 IR 258, 269.

Here I have found that the reason for the dismissal was the applicant’s poor performance.  The last incident of poor performance was the affair with the tennis shoes on 1 September.  My findings in relation to valid reason show, however, that the applicant’s performance had been an issue since soon after he commenced employment.  As a result of the failures in his performance he had been formally warned on three occasions and informally warned by Mr Boxall on at least six occasions.

I accept that on 1 September the applicant was asked what he had to say about Mr Mark Hanna’s conclusion that he was not suitable for the retail trade.  He did not respond in any meaningful way.  He had the opportunity to do so.  He had earlier had the opportunity to respond when he was warned on 23 and 29 August.  In Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 Wilcox CJ said :

“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, this is enough to satisfy the requirements of  (s170DC)”.

The applicant was aware of the employer’s concerns in relation to his performance before he was dismissed.  The opportunity was given to him on 1 September to provide a response to Mr Hanna’s conclusion, that given the history of his unsatisfactory performance, he was unsuitable for retail.  He chose not to, or was unable to, respond.  He was offered the opportunity to respond after lunch.   Here I am satisfied that the applicant had an adequate opportunity to respond on that day and failed to avail himself of it.  I accept the evidence of both Mr Stewart Hanna and Mr Mark Hanna that they expected the applicant on that afternoon to provide a response to them. 

It follows from these findings that I am not satisfied that the applicant has discharged his onus of proof that the respondent has breached s170DC of the Act.

Harsh unjust or unreasonable.
My findings on the two previous issues of valid reason and procedural fairness are relevant to the next issue on which the applicant carries the onus of proof, namely that the dismissal was in breach of s170 DE(2) of the Act.

I have already found there was no procedural unfairness here.  I have also found there was a valid reason to dismiss the applicant because he failed to perform in the circumstances outlined above.  In short the applicant was unable to “cut the mustard” as a sales assistant with the respondent despite an adequate opportunity to prove his ability. 

It was put that the dismissal contravened s170DE(2) of the Act because the applicant had been given insufficient time to improve his performance. The Court rejects this and accepts the evidence of Mr Boxall and Mr Walker that other persons they had trained were able to reach the required standard within one to two weeks. Here the applicant had been trained on a number of occasions over a much longer period than that and still difficulties arose with his performance. These difficulties were adequately documented by the respondent in the material before the Court.

In Gibson (above at 8) Wilcox CJ said that the word “unreasonable” should be looked at from the point of view of both parties. Here the respondent’s decision to dismiss the applicant was not unreasonable. The applicant’s explanation for his failure to perform the level required by the respondent was not satisfactory. The decision of the respondent was taken after the applicant had more than a reasonable opportunity in the form of training, assistance and warnings, to show that he was able to perform in his position. He failed to do that and for these reasons has not shown that his dismissal was harsh unjust or unreasonable. He has failed to discharge his onus of proof. As a breach of the Act has not been made out the application must be dismissed.

Unpaid wages
The respondent admitted that it had failed to remit to the applicant two days wages, that were owing to the applicant at the time of his termination.  The amount outstanding is $162.10 and an order will be made for that amount.

MINUTES OF ORDERS

THE COURT ORDERS:

1.The application for a remedy pursuant to section 170EA of the Act is dismissed.

2.The respondent is ordered, within 21 days, to pay to the applicant the sum of $162.10.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding twenty (20) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:                   
Dated:  21 February 1996

Solicitors for the Applicant:               Maurice Blackburn & Co.
Counsel for the Applicant:                 Mr N J Kenyon

Solicitors for the Respondent:  Halperin & Co Pty.
Counsel for the Respondent:             Mr  P D Page

Date of hearing:   19, 25 January 1996
Date of judgment:  21 February 1996

DECISION NO:  47/96

C A T C H W O R D S

INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - PROCEDURAL FAIRNESS - OPPORTUNITY TO RESPOND - HARSH, UNJUST OR UNREASONABLE dismissal - junior sales assistant failing to perform after training and warnings.

Industrial Relations Act 1988 ss.170DC, 170DE, 170EA, 170 EDA, 170EE

CASES:

Johns v Gunns Limited (1995) 60 IR 258.
Gibson v Bosmac Pty Ltd (1995) 60 IR 1.
Selvachandran v Peteron Plastics Pty Ltd  (Industrial Relations Court of Australia, Northrop J, 7 July 1995)

Nicolson v Heaven & Earth Gallery Pty. Ltd. (1994) 1 IRCR 199

DAVID LESLIE  BRADFORD MAPSTONE -v- DICETECH PTY. LTD.

No. VI 4792 of 1995

Before:  Judicial Registrar Murphy
Place:  Melbourne

Date:  21 February 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI  4792 of 1995

B E T W E E N :

DAVID LESLIE BRADFORD MAPSTONE
Applicant

AND

DICETECH PTY. LTD.
Respondent

MINUTES OF ORDERS

Judicial Registrar Murphy  21 February 1996

THE COURT ORDERS:

1. The application for a remedy pursuant to section 170EA of the Act is dismissed.

2. The respondent is ordered, within 21 days, to pay to the applicant the sum of $162.10.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.