[2016] FWC 8018

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ephraim Potash
v
Sherrin Rentals Pty Ltd
(U2016/5370)

COMMISSIONER CRIBB

MELBOURNE, 10 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] Mr Ephraim Potash (the Applicant) has made an application, under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in relation to his dismissal by Sherrin Rentals (the Respondent, the company).

[2] The application was listed for conciliation on 18 April 2016 but was not settled. A hearing took place on 20 June 2016. Mr Potash, together with Mr M Manley, former State Manager with the company gave evidence. On behalf of the company, Mr S Sellings, State Manager and Mr B Hill, General Manager gave evidence.

[3] Mr Potash was represented by Mr M Comito, solicitor, whilst the company represented itself through Mr Hill.

1. Introduction

[4] It was agreed between the parties that Mr Potash commenced employment with the company on 31 March 2014 as a Branch Administration Assistant. On 6 November 2015, Mr Potash commenced in a new role of Rental Coordinator. The appointment was accompanied by a salary increase. 1 The parties also agreed that Mr Potash received a warning on 8 February 2016 and that Mr Potash was dismissed on 26 February 2016.2

[5] There were a number of matters which were in dispute between the parties. These included whether there was a performance meeting on 25 January 2016; whether Mr Potash was given a second formal warning on 15 February 2016 and the reason for the dismissal. In addition, Mr Potash disputed the warning of 8 February 2016.

2. Legislative requirements

[6] Section 387 of the Act sets out the criteria that the Commission must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides as follows:

“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.”

[7] I will consider each of the criteria in turn.

Section 387(a) - valid reason for the dismissal?

(a) Was there a performance meeting on 25 or 28 January 2016?

Witness evidence

Mr Potash

[8] It was Mr Potash’s evidence that:

There was a meeting between himself and Mr Sellings on 28 January 2016. The nature of the meeting was to reaffirm his tasks and duties and the expectations of the Rental Coordinator. 3

There was no discussion about his performance nor was he told his performance was substandard at that meeting or that the company had received complaints about him. 4

The words “warning” and “performance counselling” were not raised with him during the meeting. 5

He was told to accept the booking regardless of getting instructions from Mr Sellings or Ms Galea. 6

When he became Rental Coordinator, there was a meeting with Mr Sellings and Mr Manley where it was made clear that the new position would be a challenge and that the first six months would be critical in showing that he could achieve what was required. 7

He denied that this was because there had been some weaknesses in his past performance. 8

He denied that, in his previous position, he had had meetings with Mr Manley or Mr Sherrin in relation to his performance regarding debt collection and telemarketing. 9

He confirmed that he had received a copy of the letter dated 25 January 2016. 10

He disagreed that the last two paragraphs of this letter reflected that it was a performance meeting and that the other paragraphs referred to problem areas with his performance. 11

In relation to the last paragraph that said that his greatest challenge was liaising with customers and managing suppliers, he disagreed that that was feedback about his performance. This was because he did not believe that his performance in these areas was unsatisfactory. 12

He believed that the last paragraph accurately reflected the challenge of the role and that he had been performing it at a satisfactory level. 13

Mr Sellings

[9] Mr Sellings gave evidence that:

He wrote the letter dated 25 January 2016. 14

The letter was written in relation to performance issues with Mr Potash and these were performance issues which had been verbally discussed on many occasions. It was stated that the logic behind the letter was to sit down formally to go through them and understand them and provide a clear direction for Mr Potash. Each item was discussed in detail. The purpose of the letter was very positive and to offer support to Mr Potash. 15

In the letter, the company was wishing to make it very clear that improvements were required and that Mr Potash was very clear about what the company was asking Mr Potash to do in relation to his communication with customers. 16

In relation to the letter, it was confirmed that this was what Mr Potash was being trained to do. It was also stated that, the observation that Mr Potash over explained why the company may not be able to supply, started way before January 2016 and was still ongoing. 17

When he commenced with the company on 12 January 2016, the performance of employees including Mr Potash was not discussed with him by Mr Sherrin. 18

From when he started with the company, he had concerns about Mr Potash. This was following having settled in (a week or two) and then having observations followed by concerns. 19

The purpose of the discussion on 25 January 2016 was to provide Mr Potash with clear directions/guidance on his responsibilities. 20

It was not a meeting about warning Mr Potash that he was not undertaking his role satisfactorily. 21

Prior to writing the letter of 25 January 2016, he had had several conversations with Mr Potash and, during the course of any day, he had had discussions about specific events, asking that it be done in a particular manner. He could not provide the specific dates of these discussions. 22

During the meeting on 5 January 2016, he had a discussion with Mr Potash about him being recent, not new, to the role. 23

He was very clear during the meeting that the role was not being performed satisfactorily. The letter dated 25 January 2016 confirmed all of the conversations to that point. 24

What led him to have the meeting on 25 January 2016 was Mr Potash continually answering the phone with no answers. Although he was not on the other side of the telephone calls, he had very cautiously asked questions. He had interpreted the conversations very clearly and openly and had responded with what he believed was the correct instruction to Mr Potash from that point. 25

The first direction he provided Mr Potash was in relation to the first paragraph of the letter (Attachment A) that he should first field and accept the order regardless of whether the item was available i.e. Mr Potash was directed to receive the call and take the order. 26

The element of discretion that Mr Potash had in performing the role of Rental Coordinator was to take the order. That was stated to be the first thing that was to be done. 27

The variables on any order are infinite e.g. the equipment may not be in the yard but it may be coming in etc. 28

He explained that, when an enquiry comes in, the customer is thanked and told that they will get back to them. The company then gets back to the customer in a timely manner and says either that the order/delivery is confirmed or that the equipment is not available and the company cannot supply it. 29

When the call came in about a piece of equipment which wasn’t available because the customer needed it within 24 hours, Mr Potash should have accepted the order rather than saying that it was available/unavailable. The order needed to be accepted because of the variables. 30

The enquiry might ask for the equipment in 24 hours but, if the company says that it won’t have it for 48 hours, the customer may accept it. The problem was that Mr Potash was saying No without going through a process. 31

He had told Mr Potash that he expected him to adapt to the new method of dealing with customers. 32

He had discussed the other issues in the letter dated 25 January 2016 at length. Mr Potash confirmed his understanding and a willingness to improve (Mr Potash was prepared to give it a red hot go). 33

He observed Mr Potash giving it his best efforts. 34

Mr Potash had an understanding of what the model numbers of the equipment were but he was far from experienced with equipment. 35

There were two employees in the administration department when he started with the company and he was aware that there were previously three employees. 36

His understanding was that Mr Potash’s role had changed (his previous role was absorbed into Head Office) and that Mr Potash was offered a new role which was created. He would have expected Mr Potash’s workload to have increased with the new role i.e. Mr Potash would have been busier. 37

The second clear instruction in the first paragraph of Attachment A was that there be a discussion with Ms Galea and himself. This had been followed by subsequent verbal instructions to Mr Potash. 38

The decision-making process has always been to take the order (first instruction) and then to discuss it (second instruction). 39

(b) Warning given on 8 February 2016

Witness evidence

Mr Potash

[10] Mr Potash gave evidence that:

He was given a warning on 8 February 2016 by Mr Sellings. 40

This discussion concerned him having told a customer that they did not have a piece of equipment ready for hire at short notice (the following morning). He had offered the customer an alternative in the meantime. It was recalled that the customer was adamant that they required that particular side excavator for that particular day. Mr Sellings had told him that he should have discussed it with him beforehand. 41

Despite his response to Mr Sellings, he was given a warning for telling a customer that they did not have equipment and that it could not be delivered the next day. 42

He was able to respond verbally to the warning during the meeting. He had explained the reasons why he had said what he had said to the customer. 43

It was usual to tell a customer that a piece of equipment was available on a particular day when it was not available. This was because he would have three or four days grace compared with 15 hours as was the case in relation to the warning of 8 February 2016. 44

He was advised to ask Ms Galea (Operations Manager) or Mr Sellings in the future. 45

The only formal discussion about his performance was on 8 February 2016. 46

He would routinely request guidance and assistance as issues arose, from Mr Sellings and Ms Galea. These were not discussions trying to support his work performance. 47

There was one complaint about him between 8 February 2016 and his dismissal. He was advised of the complaint by Ms Galea. 48

The complaint related to a call he received at 2.00 a.m. from a customer, when he was on call, wanting to organise a service call-out as one of the machines had broken down and the operator was stuck in the air near power lines in the CBD. 49 He believed that there was an issue with the truck but was not specific on what the issue was.50

He had tried a number of times to make contact with the field service operator. Given the time of the day, it was difficult to make contact with that person. 51

He had not been trained that someone near live power lines would be a critical level for the company. 52

Ms Galea advised him that, in future, he was to keep on ringing and ringing and ringing. 53

Given the time of the morning, you can only do so much and he did the best he could under the circumstances at the time. 54

He took all calls when on call regardless of the time. 55 He agreed that the company’s main business pitch to customers was that they offered a live 24 hours/7 day service.56

He was not aware that there were other complaints from customers about his service. 57

He was not aware of an issue where a customer rang with a flat battery which meant that they could not start work and the company forgot to ring them back. 58

He agreed that the first paragraph of the 25 January 2016 letter was a clear direction to accept an order regardless of whether or not it was available. 59

He did not think that he had breached that direction because of the time frame of when the enquiry was made. This was also because he believed in his own, and the company’s integrity, so that telling a customer that they did not have a piece of equipment was more important than telling them that they could supply the equipment regardless. 60

He believed as Rental Coordinator that it was his decision to make - that there was not enough time for the equipment to go out (less than 12 hours or 15 hours). He did give the customer the option of alternate excavators but the customer specifically requested a particular size and wanted it to be delivered first thing in the morning. 61

It was acknowledged that the 25 January 2016 letter did not give him the ability to not do what was set out in the first paragraph of the letter. 62

It was agreed that Mr Sellings had clearly explained to him company policy regarding inbound enquiries. 63

Mr Sellings

[11] Mr Sellings gave evidence that:

He confirmed that he issued Mr Potash with a warning in his office on 8 February 2016. 64

As there were still issues with Mr Potash’s performance following the meeting on 28 January 2016, it was elevated to a written warning on 8 February 2016. 65

The warning was a direct result of Mr Potash’s “No” approach to customers and sales staff without discussing the enquiry with either himself or Ms Galea. It directly resulted in a lost hire and subsequent conversations between himself and Mr Potash. 66

He was interested in what Mr Potash had to say but the instruction was very clear and Mr Potash had not followed the simple direction to take the order. 67

Mr Potash’s response was to say that he hadn’t had a warning in a long time and then he got up. 68

Mr Potash did not dispute the warning with him. Mr Potash did sign the warning. 69

In relation to the incident with Electrix and their operator being stuck in the air near power lines, it was stated that Mr Potash had taken the initial call from the customer. However, the client continued to call, and, after several attempts, Mr Potash turned his phone off. This was despite Mr Potash being on call. 70

He had received complaints about Mr Potash but had followed them up on the day and then spoken constructively with Mr Potash. 71

Witness evidence

Mr Potash

[12] Mr Potash gave evidence that:

There was no meeting on 15 February 2016 with Mr Sellings and no warning was given. 72

He was not spoken to about an incident regarding allowing a 13 tonne excavator to be hired by ACI for five days without a rental agreement, prior to his dismissal. 73

He first became aware of this incident after his dismissal and the first time he saw the warning was in relation to his unfair dismissal claim. 74

A piece of equipment can only go out if there is a rental agreement produced which is done the night before. Mr Potash disputed that the excavator had gone out without a rental agreement. 75

He did not specifically remember doing a rental agreement for this particular hire as he did hundreds of them. 76

He thought that the company had said that there was not a rental agreement done for this particular hire in order to justify the alleged second warning. 77

In relation to the document (Attachment D) that the company relied on, it was said to be the log on the system when an invoice for hire was generated (10 February 2016). 78

The document showed that the equipment was delivered to the customer on 1 February 2016 and that the customer notified the company on 5 February 2016 that it no longer required the equipment. On 10 February 2016, an invoice for the hire was issued to the customer. The document did not contain any information regarding the rental agreement. 79

He did not think it was possible to generate a rental agreement after an invoice. 80

It was not possible to issue an invoice if there was no rental agreement as the system would not allow it. This was because information on the invoice was generated from the rental agreement. 81

Attachment E of the company’s submissions was said to be a copy of the actual invoice that the customer would have received. The date of the invoice was confirmed to be 5 February 2016 but Mr Potash could not understand why because the date on the computer log was 10 February 2016. 82

He did not know if it was possible to backdate an invoice and if he did backdate this particular invoice. It was confirmed that Attachment D had his name on it but he said that he had never seen that screen before as it was not a screen that he normally worked in. 83

He denied ever delivering equipment without a rental agreement (including to Eastern Plant Hire and ACI). 84

He denied that Ms Galea had spoken to him about equipment being out on hire without a rental agreement. 85

He was aware that company procedures strictly prohibited delivery of equipment without a rental agreement. 86

He had not forgotten that he had been given a second warning because he would have signed it. 87

Mr Sellings

[13] It was Mr Sellings’ evidence that:

He was very clear that he had a meeting with Mr Potash in his office on 15 February 2016. 88

Prior to the second warning, there was a continual theme from Mr Potash which was that, when he was talking to customers, Mr Potash would quickly jump to “we can’t do this” rather than doing what he had asked him to do which was to take a booking. All he was asking Mr Potash to do was to say yes to the point where it was understood from a management team and then the management team could work out timeframes or other equipment that might be suitable and respond accordingly. 89

During the meeting with Mr Potash, the second warning was in front of Mr Potash on Mr Sellings’ desk. As Mr Potash was quite emotional at this point, he did not want to push Mr Potash to sign it. He recalled saying to Mr Potash that it is what it is and it had to be done and let’s get on with it. 90

The second warning was sitting right there so Mr Potash could have seen it. Mr Potash should have seen it but Mr Potash was very upset. 91

Mr Potash had not read the second warning but he was very clear with Mr Potash that he was being given a warning. 92

He was very clear with Mr Potash that this was his second warning and was almost apologetic about it, being so close to the previous one. However, he had just spoken to Mr Potash about the same issue and then it was just blatant. He was upset about the fact that he had to do this with Mr Potash. It is a very important process and these were serious issues, so, he issued the second warning and then just wanted to get on from this. 93

Mr Potash understood that it was a warning because he had explained it very clearly to Mr Potash. They had discussed in detail the excavator in question, the hiring question and how bad it was for the company. 94

He had issued the warning because he and the company had been very clear that nothing goes out of the yard without a rental agreement. 95

During the meeting, he and Mr Potash spoke about the ACI incident and that he had discussed this topic before in relation to the Eastern Plant Hire incident. 96

It is a fundamental requirement of the business that no equipment is let out without it being in a rental agreement - for insurance purposes amongst other things. 97

The process of hiring out equipment started with an order which went into the system. Once the equipment has been allocated to the order, the order is then written into a rental agreement. Once in a rental agreement, the order has passed the company’s internal credit checking system which means that the customer is able to be rented to. In this case, the customer was not able to be rented to so the order was never processed into a rental agreement. 98

The order remains on the system as a booking but not a rental. What brought it to the company’s attention (Ms Galea) was that the equipment was ready to be picked up. When they looked at the system, it had not been put on a rental. This was absolutely Mr Potash’s role. 99

Ms Galea had raised with him the fact that there was a machine out there that did not have a rental agreement and that the rental agreement was raised after it had been off hired and ready for transport back to the company. 100

A rental agreement for this equipment was processed five days after the hire was completed (on 10 February 2016) and after the account had been lifted from stop credit. The invoice was then said to have been backdated to match the off hire date. 101

An invoice can be backdated. However, with the ACI incident, that equipment hire was never put into a rental agreement as it was not allowed to because of the stop credit. It also never appeared on the system as a rental even though it went out. 102

A rental agreement is needed before an invoice can be created. In this case, an invoice was created once the excavator was returned as it was necessary to adjust the invoice for petrol etc. The rental agreement was generated after the fact. 103

He knew that a rental agreement had not been written because the company’s computer system showed that. 104

The dates on Attachment D clearly show that this was done after the hire was done and that there was no rental agreement before the equipment went out. This was because the invoice could not have been generated on 10 February 2016 unless a rental agreement had been done after the equipment was returned. The system showed that the invoice was done on 10 February 2016. 105

Five days after all of this happened, the account would have been cleared for credit and so a rental agreement could be generated and straight to an invoice. 106

He could clearly rule out the possibility that the rental agreement was not sent to the client when the equipment left because it had not been generated at that point in time. 107 He was sure that a rental agreement was sent to the customer - after 10 February 2016.108

He can say that a rental agreement was generated after 5 February 2016. The basis on which he could say this was his understanding of the system and the process. 109

He was absolutely sure that, at the time the equipment left the yard, there was no rental agreement. 110

He did not have the rental agreement with him. 111

He did not know why it happened but said that it was a clear breach of the company’s directions. He was not suggesting any dishonesty. 112

There was another incident not long before this incident – with Eastern Plant Hire. It was stated that this was caught on the day but it was let go without it being read into a rental agreement. 113

With this incident, the machine was ordered and the float (and machine) was released. The process should have been that, once the machine was ordered, it is put into a rental agreement. Once it is approved, it is then loaded onto transport and sent out. In this instance, it was not put through the process before the machine was sent out. 114

(d) Meeting on 26 February 2016

Witness evidence

Mr Potash

[14] It was Mr Potash’s evidence that:

He was told by Mr Sellings that he was being let go because he was not coping with the position. No specific incidents were mentioned. 115

He became upset and asked if he could revert back to his original position Mr Selling’s response was No as they were sticking to a two-person office. 116

He did not receive a letter of termination but was paid one week’s notice. 117

Mr Sellings

[15] Mr Sellings gave evidence that:

He met with Mr Potash on 26 February 2016 as a result of continually picking up Mr Potash on the same things. There had been no real improvement in Mr Potash’s performance - probably a decline in his performance. 118

The continual performance issues were that Mr Potash, as the face of the business, was saying to customers that he couldn’t look at it/we didn’t have it. The customers were said to have continually got No from Mr Potash. This was said to have been very critical to the company as it relied on hiring out equipment for its revenue. 119

This issue had been raised with Mr Potash pretty much every day in a constructive way. This was explained to have been that he would hear, if he was listening, Mr Potash saying something negative to a customer. He would then consult with Mr Potash and Mr Potash would be okay for a bit but would then fall back into “we’re busy”. 120

He believed that he had been extremely clear with Mr Potash about what he and the company expected - starting with the letter dated 25 January 2016. 121

There was a general discussion about Mr Potash’s performance being unsatisfactory because there had been no improvement in Mr Potash’s performance. 122

It was a conversation that he had reached a decision and that they were finished. 123

He had consulted with the General Manager but it was his decision. 124

The purpose of the meeting was to terminate Mr Potash’s employment and the conversation was short as Mr Potash was quite upset. 125

He had made up his mind just prior to 26 February 2016. 126

He had been very clear with Mr Potash on the way through and had pleaded with him to do the things they were asking of him. He had explained the reasons why Mr Potash was being asked to do things a certain way. 127

With the second warning, he was very clear about the requirement for Mr Potash to follow the procedure. Mr Potash was told that, if he did not do this, he would be out/we would have to part company. 128

With the second warning, and he had told Mr Potash that this was a second warning and that it was very important. He had also said that the next time we do this, we’re done. 129

It was not a training issue with Mr Potash but he did not rule out training. 130

Mr Potash was very clear on how to operate the system and what to do. 131

Mr Potash did not offer to step down to his other role. The other role did not exist as it was subsumed into Queensland Head Office. 132

There are currently three administration persons but Mr Potash’s role has not been reactivated. Rather, the extra person was due to extra flow through the company as the company has recently picked up substantially. 133

He did not agree that Mr Potash would have benefited from an extra person because that was not the issue with Mr Potash. He said that everyone/anyone would benefit. 134

(e) Mr Manley

[16] Mr Manley gave evidence that:

He had been employed as a State Manager with the company and had resigned in December 2015. 135 There was a period of about six weeks when Mr Manley was still with the company and Mr Potash was in the Rental Coordinator role.136 During this period, he did not work closely with Mr Potash.137

There were no performance concerns in relation to Mr Potash’s first role with the company. 138 He had not raised concerns with Mr Sherrin or Mr Hill about Mr Potash’s performance.139

He did not receive any negative feedback about Mr Potash’s performance in the new role. 140

He denied that he had raised concerns about Mr Potash’s failure to take up telemarketing as requested. Rather, it was stated that Mr Potash took up telemarketing and was rewarded for doing that at a high level. 141

He agreed that this was following several meetings with himself and Mr Sherrin about Mr Potash taking it up and that it was part of his position. He said that it was taken up when time allowed. 142

He did not accept that having had to have several meetings with Mr Potash to get him to take up telemarketing was not a performance issue. This was because Mr Potash was put in another role and this was an additional task he was to do. 143

He confirmed that debt collection was Mr Potash’s main role and that it was removed and moved to Head Office. As there was a need to fill in that time in Mr Potash’s core activity, the idea that eventuated was telemarketing. 144

He recalled that, initially, Mr Potash was not warm to the idea of telemarketing. However, Mr Potash was said to have warmed to it and had done a very good job for which he was rewarded. 145

He had raised the fact that Mr Potash was not warm to telemarketing with Mr Sherrin. 146 It was not a complaint about Mr Potash’s performance as it was a new role (telemarketing) and the company was trying to put it all together.147

When Mr Potash moved into the new role of Rental Coordinator, he had said that Mr Potash would need to be assisted in that role. He did raise concerns about Mr Potash’s capability of taking on that role as it was a busy role. 148

After the meeting with Mr Sherrin, both he and Mr Sherrin sat down with Mr Potash and went through the position. 149 He disagreed that they outlined any concerns as the company would not have put Mr Potash into a role if they had concerns about Mr Potash’s abilities. Mr Sherrin would have been aware of any concerns about Mr Potash’s performance. It was stated that the company was giving Mr Potash a promotion by offering Mr Potash the new role and a pay rise. Mr Potash was said to have been up for the challenge and was keen and eager to take on the role.150

Although there was no Position Description for the new role, Mr Potash was well aware of what the job entailed. 151

As with any role, he had advised Mr Potash that he had six months to prove himself in the new role. 152

With respect to Attachment E, it was said to be an invoice and that it did not show anything about a rental agreement. 153

He had not seen a backdated invoice whilst State Manager. He did not have the means to backdate an invoice. The Financial Controller could be requested to do so. 154

The company’s software system requires rental agreements to be generated prior to an invoice being produced. Therefore, an invoice cannot be produced unless a rental agreement is first generated. 155

He was not aware of equipment ever being delivered without a rental agreement whilst State Manager. 156

If a customer was on stop credit, that had to be lifted before an invoice could be raised. 157

In relation to whether he had received any negative feedback from customers about Mr Potash, he initially said No; then No, none which would result in disciplinary action and then No. 158

He confirmed that, in late 2014, he had a meeting with Mr Hill and two other employees at Electrix but disagreed that concerns had been raised about Mr Potash. 159

He has a personal friendship with Mr Potash. 160

(f) Mr Hill

[17] It was Mr Hill’s evidence that:

Mr Potash would not have been in the business for 18 months in his former position if he was not doing it fairly. 161

He agreed that new aspects of Mr Potash’s role as Rental Coordinator were to ensure that drivers of rental equipment had jobs scheduled for the next day and also arranging for the supply of items in a timely manner. 162

Prior to becoming Rental Coordinator, Mr Potash had been assisting in these areas but was not accountable for them. As Rental Coordinator, he became accountable. 163

Mr Potash was promoted in November 2015 after several discussions about Mr Potash’s suitability to do the role and whether he was capable of stepping up. In conjunction with Mr Potash, a conclusion was reached that he would be capable of doing so. 164

Mr Manley and Mr Sherrin had enforced the fact that Mr Potash needed to step up and show the company what he could do within a six-month trial period. Mr Potash was told that the first six months in the new position would be critical to his success. 165

Mr Potash did undertake training which was provided by the National Operations Manager at least every month, together with Mr Sherrin. The training was in relation to the full aspects of the position and it included how Mr Potash was to deal with customers. 166

In relation to the rental agreement issue, Mr Potash would have the basic ideas about the equipment but the customers and the company’s sales team are the ones who know exactly what is required. 167

Mr Potash did not have discretion in how he performed his role because he would follow the procedure and seek advice from the Operations Manager, the State Manager or the sales team. 168

In the event that equipment was available and there was a no hitch situation, it was a matter of Mr Potash taking an order like they would in McDonald’s. Mr Potash would then complete the transaction. 169

Mr Potash was under a clear direction to complete a black-and-white transaction. If it became grey, if there were queries or questions, he would then go to the expert for that equipment. 170

This direction was given verbally to Mr Potash before 25 January 2016 and was documented at the meeting on 25 January 2016. The 25 January 2016 document set out in writing what was spoken about prior to, and up to, that meeting. 171

He was not involved in the decision to terminate Mr Potash’s employment. 172

He was aware that, when Mr Potash took on the new role of Rental Coordinator, the number of administration employees reduced from 3 to 2. 173

As of two weeks ago, there were now three administration employees due to a dramatic increase in business. 174

There were no complaints received about Mr Potash but Mr Manley left the business around that time. 175

He had produced the attachments for the hearing but has not produced the disputed rental agreement. This is because it is not possible to extract a rental agreement. It is possible to extract the log of the transaction and this is what has been done. What we should have done, but did not, is also provide the information that the company in question was on stop credit at the time as this would have undoubtedly proven that there was no rental agreement. He did not believe that there was any possibility that that rental agreement had been done. 176

He could not rule out the possibility but only because of his limited involvement in this issue. 177

Supporting the view that there was no rental agreement was Mr Selling’s knowledge and the fact that Mr Potash’s direct supervisor, Ms Galea, took that to Mr Sellings as a concern - that the gear was out of the yard without a rental agreement.

The rental agreement does not need to be sent to the customer, rather, it needs to be generated in the company’s system to prove that the unit is on hire. It then triggers the company’s insurance policies. 178

The company will often drop gear to sites where the customer is not there so the important thing is that the company has evidence in their system that the unit is not on hire to a direct customer and that was what was needed. 179

With his knowledge of the system and what he has seen, the rental agreement was done after the fact. 180

Mr Potash’s usual practice was, or would have been, to generate a rental agreement. 181

He did not think for one minute that Mr Potash would have done anything dishonest. It was an oversight that would have been triggered many times before it was eventually detected, with many opportunities to correct that oversight. 182

It was an oversight that happened and it happened twice. 183

An additional person would not have assisted Mr Potash in policy and procedure or in failing to follow direction. He agreed with Mr Sellings’ evidence that everyone would benefit from help from time to time. 184

If there was an opportunity for Mr Potash to go back into his old role that would have been a possibility. Obviously, the fact that Mr Potash was failing to follow policies and procedures would have limited that opportunity. 185

(g) Submissions

(i) Applicant

[18] On behalf of the Applicant, it was submitted that there was no valid reason for Mr Potash’s dismissal. It was understood that the Respondent’s contention was that Mr Potash’s employment was terminated for performance reasons and that the Respondent relied on two warnings given to Mr Potash. 186

[19] It was submitted that Mr Potash disputed the first (and second) warning and that he had signed the first warning as having received it. 187 In relation to the first warning, it was argued that Mr Potash’s response to the particular customer was reasonable because the customer was adamant that they required a particular size of excavator at a particular time of day. Mr Potash had offered the customer an alternative which was available.188

[20] With respect to the Respondent’s contention that Mr Potash did not follow the clear direction regarding customer inquiries, it was stated that Mr Potash’s evidence was that he believed that he had discretion to give the client the option of alternative excavators. Mr Manley’s evidence, in this regard, was said to support Mr Potash’s approach. 189

[21] In terms of the written memo, dated 25 January 2016, it was submitted that, even if the Commission accepted that Mr Potash was given a written directive on 25 January 2016, Mr Potash’s conduct in relation to the customer was reasonable. Therefore, it was stated that the warning given to Mr Potash in this context, was unreasonable, given the pressing circumstances of the customer at that time. Further, it was argued that neither Mr Sellings nor anyone else had heard the customer’s requirements to properly determine whether Mr Potash’s response was reasonable. 190

[22] Mr Manley’s evidence was referred to in relation to his approach with a customer when equipment was not available. This was described as managing the customer’s expectations to see the best way of working with the customer and offering alternatives. It was also stated to be Mr Manley’s evidence that it would be misleading to tell a customer that an item was available when it was not. 191

[23] With respect to the second warning, it was Mr Potash’s evidence that he was not presented with his warning and that he had not seen it until it was produced by the Respondent as part of this case. It was submitted that, on the balance of probabilities, the Respondent has not established that the second warning was properly communicated nor understood by Mr Potash. This was said to be supported by Mr Sellings’ evidence that Mr Potash did not read the warning and was upset. It was contended that Mr Potash was not properly informed of the second warning, or, if Mr Potash had been, Mr Potash did not properly understand the warning or its consequences. Therefore, the Applicant argued that the Respondent could not rely on the second warning as part of a valid reason for Mr Potash’s dismissal. 192

[24] In regard to the issue of the rental agreement, it was stated that Mr Sellings was not able to produce the relevant rental agreement. It was said that Mr Sellings was only able to say that, from his understanding of the computer system, a rental agreement was produced after the hire. It was stated that it was Mr Sellings’ (and Mr Hill’s) evidence that he (they) had limited knowledge of the computer system and, in particular, the generation of a rental agreement. 193

[25] The Applicant argued that Mr Sellings’ evidence was not reliable about whether or not a rental agreement was generated by Mr Potash at the time of the hire. 194 This was because it was Mr Sellings’ evidence that he had been notified by Ms Galea that a unit had left the yard without a rental agreement. It was stated that Ms Galea was not called to give evidence and that her evidence would have been relevant to this issue. The Commission was invited to draw an adverse inference from the failure of the Respondent to call Ms Galea.195 It was also argued that it was Mr Hill’s evidence that the rental agreement issue was within Ms Galea’s knowledge.196

[26] Further, the Applicant submitted that Mr Sellings accepted that the document relied on by the Respondent (Attachment D) did not demonstrate that a rental agreement was not generated at the time of the hire but when an invoice was created. 197

[27] In addition, Mr Manley’s evidence was highlighted regarding Attachment D where he confirmed that the document related to the production of an invoice and not a rental agreement. 198

[28] The Respondent’s contention, that Mr Manley’s evidence was that a meeting took place between Mr Manley, Mr Sherrin and Mr Potash to convey concerns with Mr Potash’s appointment to the position of Rental Coordinator, was disputed. It was stated that Mr Manley’s and Mr Potash’s evidence did not support the Respondent’s contention. 199 In addition, it was stated that Mr Manley’s evidence was that Mr Potash would need assistance in his new role, rather than Mr Manley having raised concerns about Mr Potash’s ability to fulfil the new role.200

[29] The Applicant also submitted that Mr Potash was not given at least six months within which to prove himself in the new role. Consequently, it was argued that the termination was unreasonable. 201

[30] Further, the Applicant submitted that there was no evidence of other unsatisfactory work performance other than the incidents referred to in the disputed warnings. 202

(ii) Respondent

[31] It was submitted by the company that Mr Potash’s dismissal was reasonable and just. 203 The Respondent argued that Mr Potash and Mr Manley gave evidence which confirmed that a meeting was held with the General Manager and State Manager prior to Mr Potash’s acceptance of the position. It was stated that, during the meeting, concerns about Mr Potash’s appointment were conveyed to Mr Potash and that Mr Potash was told that it would be a challenge for Mr Potash and that the initial period would be critical.204 The Respondent also contended that Mr Manley, in his evidence, had said that he did raise concerns with management regarding Mr Potash’s ability to fulfil the new role.205

[32] The Respondent contended that Mr Potash had a clear understanding of the job description including knowledge of policy and procedure. Mr Manley was said to have confirmed examples of Mr Potash previously not following clear company direction. 206

[33] It was also stated that Mr Potash had confirmed that he was present at a meeting with Mr Sellings on 25 January 2016 and that he had received written notes summarising clear directions and providing him with feedback on his performance. 207

[34] The Respondent submitted that the first formal warning, dated 8 February 2016, was reasonable and the result of a clear breach of a written direction to Mr Potash. However, despite the written direction, it was stated that Mr Potash took it upon himself to act otherwise. 208

[35] It was contended that a second formal warning was issued to Mr Potash on 15 February 2016 and that Mr Sellings made it very clear that it was a warning and a serious matter and the consequences of any further breaches. 209 The Respondent stated that both Mr Hill and Mr Sellings gave evidence that equipment was delivered by Mr Potash without a rental agreement. It was recalled that Mr Potash’s evidence was that Attachment D was not a document with which he was familiar or used.210

[36] Finally, the Respondent stated that other examples of unsatisfactory work performance, were presented to, and acknowledged by, Mr Potash. 211

Considerations and conclusions

[37] It was submitted by the company that Mr Potash was dismissed for poor work performance and that there was a valid reason for Mr Potash’s dismissal. The company relied on a memo dated 25 January 2016, together with a meeting on either 25 or 28 January 2016; a first written warning dated 8 February 2016; a second written warning on 15 February 2016 and a subsequent lack of improvement in Mr Potash’s work performance. This resulted in Mr Potash being dismissed on 26 February 2016.

[38] On the other hand, the Applicant challenged whether the memo dated 25 January 2016 provide clear directions about how he was to perform his job. In terms of the first warning, Mr Potash disputed that warning on the basis that the way he had dealt with the customer in question was reasonable and that he believed that what he had told the customer was within his discretion as Rental Coordinator.

[39] With respect to the second written warning, it was Mr Potash’s evidence that he had not ever seen the second written warning until it was provided by the Respondent in relation to this case. Mr Potash also disagreed that there was a meeting with Mr Sellings on 15 February 2016 about the non-generation of a rental agreement at the required time.

[40] I have carefully considered all of the material before me and I make the following findings:

Meeting on 25 or 28 January 2016 and the memo dated 25 January 2016

[41] It was common ground between the parties that a meeting occurred on either 25 or 28 January 2016 between Mr Potash and Mr Sellings. There was a difference of view between the parties about the nature of the meeting and whether or not the memo, dated 25 January 2016, contained directions to Mr Potash in relation to how he should perform his role.

[42] It was Mr Sellings’ evidence that what led to the meeting on 25/28 January 2016 was his observation that Mr Potash was continually answering the phone and giving “No” answers to customers. This seems to have been described in the memo as “… observe that you can often over explain why we may not be able to supply upon initial enquiry”. 212

[43] The memo appears to provide Mr Potash with feedback about his performance and it notes Mr Potash’s strengths and also Mr Potash’s greatest challenge. The memo also stated that everyone was there to support Mr Potash in his role and that, between all of them, they would get it right. 213

[44] Although set out in a polite and constructive way, it is my view that the memo clearly directed Mr Potash as to what he was required to do, in relation to inbound enquiries, amongst other things. The memo asked Mr Potash to “first field and accept the order regardless if we have it available” and, if it is a product in the company’s range, to “accept the order in the first instance and confirm the details of supply or non-supply thereafter”. 214

[45] It was Mr Sellings’ evidence that he had also clearly given Mr Potash a second direction which was that, after he had taken the order, he was to discuss the enquiry with Ms Galea or himself. Mr Sellings’ evidence is accepted in this regard.

[46] Therefore, I find that, as a result of the meeting between Mr Potash and Mr Sellings on 25 or 28 January 2016, together with the memo dated 25 January 2016 which was given to Mr Potash, Mr Potash was issued with directions to field and accept orders regardless of whether the item was available and then to discuss the order with Ms Galea or Mr Sellings.

First written warning dated 8 February 2016

[47] Mr Potash received a first written warning, on 8 February 2016, for having told a customer that the company did not have the piece of equipment that the customer required and at the time that customer required it. It was the company’s view that, in responding to the customer in this way (saying No in the first instance), Mr Potash had failed to follow the directions he had been given to accept the order, whether or not the item was available, and then to discuss it with Ms Galea or Mr Sellings.

[48] For his part, the Applicant argued that, as he had not been directed to accept the order regardless of availability and then discuss it with Ms Galea or Mr Sellings, the first warning was unreasonable. Further, Mr Potash contended that it was within his discretion as Rental Coordinator to have responded in the way he did.

[49] As it has been found, in paragraph [46], that Mr Potash was directed to accept an order regardless of availability and then discuss it, it would follow that Mr Potash did not have discretion to do otherwise. Therefore, I have formed the view that the first written warning was reasonable. It was not disputed by Mr Potash that, when the customer in question requested a particular size of excavator to be delivered at a particular time (the next morning), he had told the customer that they did not have that piece of equipment ready for hire at short notice. It is noted that Mr Potash offered an alternative to the customer in the meantime. However, Mr Potash’s response to this customer was not consistent with the direction he had been given to accept the order regardless of availability.

Second written warning on 15 February 2016?

[50] There was a dispute between the parties about whether or not there was a meeting on 15 February 2016 between Mr Potash and Mr Sellings. Mr Potash contended that he had never been given the second written warning (as in given the actual document). It was Mr Potash’s evidence that the first time he had seen this warning was when it was provided by the Respondent as part of this case. Mr Potash also contended that neither Mr Sellings nor anyone else had ever talked to him about the incident that led to the warning. Further, the Applicant argued that the Respondent had not established the basis for the warning i.e. that the excavator had been hired out for five days without a rental agreement.

[51] With respect to whether or not the excavator in question was hired out on 1 February 2016 without a rental agreement, I have formed the view that it is probable that this is what happened. On the basis of the evidence, it would seem that the process for orders was that the first step was the order being recorded in the system. Once the equipment had been allocated to the order, the order was then written into a rental agreement. Before an order could be written into a rental agreement, it must pass the internal credit checking system. If the order (customer) passes this credit check, the customer can be rented to and a rental agreement is generated. The purpose of the rental agreement, amongst other things, was to trigger the company’s insurance. An invoice cannot be created unless a rental agreement has been generated.

[52] The document on which the Respondent relied was a copy of an invoice screen. 215 It was common ground that the screen did not show any information regarding the rental agreement. Mr Sellings explained that the screen showed that the excavator was delivered to the customer on 1 February 2016 and that it was off hired on 5 February 2016. The screen was also said to show that Mr Potash created the invoice on 10 February 2016 and that the invoice was dated (back) to the date the excavator was returned i.e. 5 February 2016. As the equipment had been returned, it was necessary to produce an invoice with adjustments for petrol etc.

[53] It was Mr Sellings’ and Mr Hill’s evidence that the particular customer was on stop credit at the time, which meant that it was not possible to generate a rental agreement. In order for an invoice to have been produced on 10 February 2016, the account would have been cleared for credit so that a rental agreement and then an invoice could be produced.

[54] It would have been of assistance if Ms Galea had given evidence in relation to this issue. That Ms Galea did not is likely to have been the result of the Respondent not having legal assistance with this case. It is noted that the company had not been planning on calling Mr Sellings to give evidence and that Mr Sellings was requested by the Commission, at the beginning of the hearing, to attend the Commission to do so. Mr Hill’s comments in relation to what information the company should have provided is apposite. This included providing information regarding the particular company being on stop credit. 216

[55] Also missing was the disputed rental agreement. It was Mr Hill’s evidence that it was not possible to extract the rental agreement from the system. 217 There was nothing in Mr Hill’s evidence and demeanour as a witness which causes me to doubt his sworn evidence in this regard.

[56] So, taking all of the above into account, it is probable that a rental agreement was not issued at the time the excavator was sent to the customer as the customer was on stop credit which prevented a rental agreement being generated. The excavator was hired out to the customer for five days and returned to the yard on 5 February 2016. As it was necessary for the customer to be issued with an invoice on the return of the excavator, it is probable that, on 10 February 2016, Mr Potash generated an invoice for the customer. As an invoice could not be produced unless a rental agreement had been generated, sometime between the return of the excavator on 5 February 2016, and 10 February 2016, a rental agreement appears to have been generated i.e. after the excavator was returned to the company.

[57] It was Mr Potash’s evidence that he was aware that company procedures strictly prohibited the delivery of equipment without a hire agreement. Therefore, I find that there was a reasonable basis for the company’s decision that Mr Potash should be given a warning in relation to this issue. This is because it was a serious contravention of company policy.

[58] So, was there a meeting between Mr Potash and Mr Sellings on 15 February 2016? On the balance of probabilities, I find that it is most likely that there was such a meeting. I also find that, it is probable that, during this meeting, Mr Potash was given a verbal second warning. It would seem to be bizarre that two parties could have opposing views about whether a particular meeting took place or whether one of the parties was ever spoken to/warned about a particular incident, on the date of the alleged meeting or at any other time. Mr Potash’s evidence was that, not only did the meeting on 15 February 2016 not occur, Mr Potash was not spoken to by Mr Sellings or anyone else in the company about the incident, let alone being given a second warning. For Mr Sellings’ part, it was his evidence that the meeting occurred, during which Mr Potash was given a second warning.

[59] I have not been persuaded that Mr Potash was never spoken to about the incident prior to his dismissal. The incident was a serious one for the company as it broke one of its fundamental requirements that equipment did not leave the yard without a rental agreement. Given Mr Sellings’ managerial approach, it would seem unlikely that the incident would have occurred unremarked upon. As it is also in keeping with Mr Sellings’ management style, I find that it is likely that Mr Sellings explained clearly to Mr Potash, and that it was understood by Mr Potash, that Mr Potash was being given a second warning and what that meant. Therefore, I find that, on balance, it is probable that Mr Potash was given a second warning (verbally) in relation to the rental agreement incident and that Mr Potash understood that it was a second warning and its consequences.

[60] With respect to whether Mr Potash was given a copy of the second warning, I am not satisfied that Mr Potash was given a copy. It appears from the evidence that Mr Potash became upset during the meeting and that Mr Sellings did not feel that it was appropriate to ask Mr Potash to sign it.

[61] Therefore, I find that there was a reasonable basis for the company to give Mr Potash a second warning in relation to Mr Potash releasing equipment to a customer without a rental agreement. Further, on balance, I find that it is probable that Mr Potash was given a second warning (verbally) on 15 February 2016 by Mr Sellings as it is probable that there was a meeting on 15 February 2016. It is also most likely that Mr Potash understood that he was being given a second warning verbally and the consequences of a second warning.

Other performance issues

[62] It was submitted by the company that there had been complaints made about Mr Potash. These included an incident with Electrix when the customer’s employee was stuck in the air near live power lines. It was Mr Potash’s evidence that he had done everything that he could, at 2.00 a.m. in the morning, to contact the field service officer. It was the company’s view that, as an important point of difference in the market for the company was that it provided a live 24 hour service, for Mr Potash to have turned off his phone when the customer was continuing to ring, was inappropriate.

[63] Mr Sellings also gave evidence that equipment had gone out to Eastern Plant Hire, without a rental agreement. This was denied by Mr Potash.

[64] It appears to be common ground that the Electrix incident occurred and essentially what happened. From Mr Potash’s evidence, it appears that Mr Potash knew that providing a live 24/7 service was a point of difference in the market for the company. Therefore, what occurred with the Electrix incident was not consistent with the service that was to be provided to customers.

[65] Mr Potash also gave evidence that he was not aware of an issue when a customer rang with a flat battery which meant they could not start work and they forgot to ring the customer back.

Dismissal on 26 February 2016

[66] It was Mr Sellings’ evidence that there had been no real improvement in Mr Potash’s performance so he made the decision that Mr Potash and the company needed to part ways. It was said that Mr Potash’s performance issues concerned Mr Potash continually saying “No” to customers.

[67] Taking all of the above into account, I find that there was a valid reason for Mr Potash’s dismissal relating to Mr Potash’s work performance. Mr Potash had been warned in relation to not following the company’s process in relation to customer inquiries and also for allowing equipment to leave the yard without a rental agreement.

Section 387(b) and (c) - notified of the reason and opportunity to respond

[68] It was submitted on behalf of the Applicant that notification of the reason must be given to the employee before the decision to terminate the employment is made and the reason must be plain and clear. 218 Mr Sellings was said to have given evidence that the purpose of the meeting on 26 February 2016 was to terminate Mr Potash’s employment and that he had made that decision probably the day before the meeting. It was stated that Mr Sellings’ evidence was also to the effect that he had only had a general discussion about Mr Potash’s unsatisfactory performance and that he did not provide any specific examples during the meeting.219

[69] The Applicant contended that there was no notification of a valid reason to Mr Potash as there was no valid reason for Mr Potash’s dismissal. If the Commission finds that there was a valid reason for Mr Potash’s dismissal, it was contended that Mr Potash was not notified of the reason in clear terms during the meeting. This was said to be because Mr Sellings had already made the decision to dismiss Mr Potash prior to the meeting on 26 February2016. In addition, as Mr Potash was not given any specific examples on which the company relied, Mr Potash was denied an opportunity to respond to any reason. 220

[70] It was also argued that Mr Sellings’ discussions leading up to the meeting were not sufficient to inform Mr Potash of the exact reasons for his dismissal. Mr Potash’s evidence was that he did not consider any discussions about his performance between 8 February 2016 and 26 February 2016 to have been performance/disciplinary discussions. Rather, they were said to have related to guidance and support. 221

[71] Further, Mr Potash did not have any understanding that there existed a second warning as he had not been given a copy of the warning. 222 In addition, it was contended that Mr Potash was not asked questions about why a rental agreement was not generated.223

[72] Therefore, it was submitted that Mr Potash was not notified of any valid reason for his dismissal nor given an opportunity to respond to any reason at the time of his dismissal. This was because Mr Sellings had already made up his mind before the meeting on 26 February 2016.

[73] It was Mr Sellings’ evidence that, following the second warning on 15 February 2016, there had been no real improvement in Mr Potash’s performance and that he was continually picking up Mr Potash about saying “No” continually to customers. Mr Sellings also said that, during the meeting on 26 February 2016, he had told Mr Potash that his work performance was unsatisfactory and that there had been no improvement. This discussion took place within the context of two previous warnings about Mr Potash’s performance and a continuing discussion with Mr Potash about his negative approach to customers and the need to follow the process. Therefore, I find it is unlikely that Mr Potash was unaware of the company’s concerns about his work performance, leading into the meeting on 26 February 2016.

[74] However, I am not satisfied that, during the meeting on 26 February 2016, Mr Potash was told specifically why Mr Sellings believed that Mr Potash’s work performance was still unsatisfactory or why Mr Sellings was of the view that there had been no improvement. On the material before me, it appears that Mr Potash was not given any details about his further unsatisfactory performance. Therefore, I find that Mr Potash was not notified in any detail of the reason for his dismissal.

[75] With respect to whether Mr Potash was given an opportunity to respond to the reason for his dismissal, there is no evidence before me that would suggest that Mr Potash was given an opportunity to respond to the reason. It was Mr Sellings’ evidence that he had made up his mind, just prior to the 26 February 2016 meeting, to dismiss Mr Potash. So, for Mr Sellings, that was the purpose of the meeting on 26 February 2016. It was common ground that Mr Potash became upset. However, that does not negate the requirement that an employee be given an opportunity to respond to the reason for the dismissal.

Section 387(d) - support person

[76] As Mr Potash did not request to have a support person for the meeting on 26 February 2016, this section is not relevant in this matter.

Section 387(e) - warnings related to unsatisfactory performance

[77] It has already been found that Mr Potash was given two warnings in relation to his work performance. The first warning concerned Mr Potash’s negative approach to customers and not discussing enquiries with Ms Galea and Mr Sellings. The second warning related to allowing an excavator to be hired without a rental agreement.

Section 387(f) and (g) - size of the employer and specialist human resources

[78] It was argued by the Applicant that the Respondent is not a small employer and so the size of the enterprise would not likely have impacted adversely on the procedures to be followed by the company in affecting the dismissal. The Applicant also stated that there was no evidence given about the absence of dedicated human resource specialists and so, this factor was said to be not applicable. 224

[79] The Respondent made no specific submissions in relation to these subsections of the Act. There is no evidence before the Commission about whether or not the company has a dedicated human resource specialist. Therefore, in relation to section 387(g), the Commission is unable to make a finding.

[80] With respect to section 387(f), the Applicant is correct that the Respondent stated in its Form F3, that it had 77 employees. As the Respondent is not a small employer, it cannot be said that its size would be likely to have had an impact on the procedures followed in affecting Mr Potash’s dismissal.

Section 387(h) - any other matters

[81] It was submitted on behalf of the Applicant that Mr Potash’s performance, prior to Mr Sellings commencing in his role, was satisfactory. Mr Manley’s evidence that he had not received any negative feedback about Mr Potash’s performance in his new role and that Mr Potash was highly recommended and customers enjoyed working with him, was highlighted. 225

[82] The Applicant argued that the Respondent did not adequately consider Mr Potash’s performance in his role prior to Mr Sellings starting employment nor Mr Potash’s performance in his previous role. It was submitted that this was a relevant factor that the Respondent ought to have considered. 226

[83] In addition, the Applicant contended that the Respondent agreed that Mr Potash was giving his best efforts to undertake the role of Rental Coordinator; Mr Potash did not intentionally perform to an unsatisfactory level and that the Administration department had reduced from three to two people (including the Applicant). 227

[84] It was further submitted that the Respondent did not give Mr Potash a sufficient nor reasonable opportunity to adapt to the instruction which was given to him on 25 January 2016 and to improve the way in which he was dealing with customers. It was stated that Mr Potash’s employment was terminated about a month after the direction was given. Further, it was argued that there was not any evidence that Mr Potash made continual mistakes in relation to rental agreements (except with respect to ACI). This was said to be in the context that the Applicant produced many rental agreements. 228

[85] Mr Manley’s evidence was highlighted regarding Mr Potash having been given a trial period of six months in which to perform the new role. It was stated to be unreasonable that Mr Potash was dismissed before the six-month period had elapsed. 229

[86] Finally, it was submitted that, having regard to these other matters, on balance, Mr Potash’s dismissal was harsh, unjust or unreasonable. 230

Conclusions

[87] In all of the circumstances of this matter, and having taken account of each of the factors set out in section 387 of the Act, I have determined, on fine balance, that Mr Potash’s dismissal was not harsh, unjust or unreasonable.

[88] On the one hand, there was a valid reason for Mr Potash’s dismissal due to unsatisfactory work performance. Mr Potash had received two warnings in relation to his work performance for serious matters. This followed the company having been clear in its expectations of Mr Potash, as set out in the memo of 25 January 2016 together with the discussion with Mr Sellings on 25/28 January 2016. As Rental Coordinator, Mr Potash worked in a critical customer facing role for the business. In all of the circumstances, the company’s decision for Mr Potash to not see out the full six months would seem to be within reason.

[89] On the other hand, Mr Potash was not notified in any detail of the reason for his dismissal nor given an opportunity to respond to the reason for his dismissal during the meeting on 26 February 2016.

[90] It therefore follows that, pursuant to section 385 of the Act, Mr Potash was not unfairly dismissed. Accordingly, Mr Potash’ application is dismissed. An order 231 to this effect will be issued separately.

Appearances:

M Comito of Ryan Carlisle Thomas for the Applicant

B Hill from the Respondent

Hearing details:

2016.

Melbourne:

June 20.

Final written submissions:

Applicant,15 July 2016

Respondent, 8 August 2016

Applicant, 19 August 2016

1 Exhibit A2 at paragraphs 3 - 6 and Attachment 2 and Exhibit R2 at paragraphs 1 - 3

2 Exhibit A2 at paragraphs 12 - 13 and Exhibit R1 at paragraphs 12 and 17 and Attachment B

3 Transcript PN 130 - 135, 246, 268, 364 and 368

4 Ibid PN 136 - 138, 246, 266 and 364

5 Ibid PN 366 - 367

6 Ibid PN 152

7 Ibid PN 237 - 239

8 Ibid PN 240

9 Ibid PN 241 - 242

10 Ibid PN 244 and Exhibit R1 at Attachment A

11 Ibid PN 250 and 255

12 Ibid PN 262 - 265

13 Ibid PN 269

14 Ibid PN 686 and Exhibit R1 at Attachment A

15 Ibid PN 687 - 688 and Exhibit R1 at paragraph 10

16 Ibid PN 689, 1033 and 1044 - 1045

17 Ibid PN 695

18 Ibid PN 773 - 779 and 840

19 Ibid PN 781 - 701

20 Ibid PN 795 - 797, 800, 820 and 822

21 Ibid PN 821

22 Ibid PN 798 - 799, 813 and 839

23 Ibid PN 802 - 803

24 Ibid PN 805 - 808

25 Ibid PN 814 - 818

26 Ibid PN 823 - 824

27 Ibid PN 825 - 828

28 Ibid PN 827

29 Ibid PN 834 - 835

30 Ibid PN 836 - 837

31 Ibid PN 838

32 Ibid PN 847

33 Ibid PN 849 - 853 and 877

34 Ibid PN 855

35 Ibid PN 1046

36 Ibid PN 856 - 857

37 Ibid PN 858 - 862 and 865 - 875

38 Ibid PN 888 - 890

39 Ibid PN 892 - 893

40 Ibid PN 139 and 141

41 Ibid PN 140 and 144

42 Ibid PN 149 and 271

43 Ibid PN 143

44 Ibid PN 145 - 148

45 Ibid PN 150

46 Ibid PN 163

47 Ibid PN 165 and 169 - 170

48 Ibid PN 173 - 174 and 177

49 Ibid PN 175 - 176

50 Ibid PN 175 - 176 and 340

51 Ibid PN 175 - 176 and 340

52 Ibid PN 345 - 346

53 Ibid PN 179

54 Ibid PN 181 and 341

55 Ibid PN 338

56 Ibid PN 339

57 Ibid PN 347

58 Ibid PN 348

59 Ibid PN 273 - 275 and Exhibit R1 at Attachment A

60 Ibid PN 276 - 277

61 Ibid PN 281 - 283

62 Ibid PN 284 - 285

63 Ibid PN 293 - 294

64 Ibid PN 878 and 901 - 902

65 Ibid PN 696 and Exhibit R1 at paragraph 12 and Attachment B

66 Ibid PN 882

67 Ibid PN 904 - 913

68 Ibid PN 903

69 Ibid PN 915 - 917

70 Exhibit R1 at paragraphs 15 - 16

71 Transcript PN 745

72 Ibid PN 153 - 154, 159 - 160, 302 and 309 - 310

73 Ibid PN 157

74 Ibid PN 158, 161 - 162, 182 and 301

75 Ibid PN 185 - 186 and 188

76 Ibid PN 189

77 Ibid PN 190

78 Ibid PN 193 and Exhibit R1 at Attachment D

79 Ibid PN 196 - 199

80 Ibid PN 200 - 201

81 Ibid PN 202 - 203

82 Ibid PN 207 - 210

83 Ibid PN 314 - 323 and 374 - 375

84 Ibid PN 333 - 334

85 Ibid PN 335 - 336 and 376

86 Ibid PN 337

87 Ibid PN 312 - 314

88 Ibid PN 738 - 739 and 920

89 Ibid PN 690 and 1049

90 Ibid PN 737, 740 - 741 and 925

91 Ibid PN 742

92 Ibid PN 920 - 923 and 926

93 Ibid PN 748 and Exhibit R1 at paragraph 13

94 Ibid PN 926

95 Ibid PN 975

96 Ibid PN 743

97 Ibid PN 698 - 736

98 Ibid PN 699 and 948

99 Ibid PN 700 - 701, 708 and 1051

100 Ibid PN 1058 - 1059

101 Ibid PN 718 - 721 and Exhibit R1 at paragraph 14

102 Ibid PN 722 and 929

103 Ibid PN 933 - 945 and 928 - 930

104 Ibid PN 931

105 Ibid PN 949 - 952 and 955

106 Ibid PN 958 - 959

107 Ibid PN 960 - 961

108 Ibid PN 967

109 Ibid PN 964

110 Ibid PN 969 and 1050

111 Ibid PN 954

112 Ibid PN 702, 972 and 976

113 Ibid PN 713, 715 - 716 and 723 - 726

114 Ibid PN 726

115 Ibid PN 211 - 213

116 Ibid PN 215 - 216

117 Ibid PN 220 - 223 and 351

118 Ibid PN 753 and 1060

119 Ibid PN 755

120 Ibid PN 758

121 Ibid PN 760

122 Ibid PN 977 - 979

123 Ibid PN 980 and 983

124 Ibid PN 981 - 983

125 Ibid PN 984 - 985 and 1002

126 Ibid PN 986 - 987

127 Ibid PN 989 - 991

128 Ibid PN 993 - 1001

129 Ibid PN 1004

130 Ibid PN 1005 - 1006

131 Ibid PN 1008

132 Ibid PN 1008 - 1009

133 Ibid PN 1010 - 1912

134 Ibid PN 1013 - 1017

135 Ibid PN 414 and 416 and Exhibit A3

136 Ibid PN 524 and 425

137 Ibid PN 526

138 Ibid PN 420

139 Ibid PN 438 - 439

140 Ibid PN 429

141 Ibid PN 440

142 Ibid PN 441 - 442

143 Ibid PN 443

144 Ibid PN 444 - 448 and 578 - 579

145 Ibid PN 449 - 450

146 Ibid PN 451 - 452

147 Ibid PN 454 - 456

148 Ibid PN 504 - 506

149 Ibid PN 508 and 549

150 Ibid PN 508 - 513 and 544 - 548

151 Ibid PN 550 - 552

152 Ibid PN 515 - 516, 520 and 553 - 556

153 Ibid PN 432 - 433

154 Ibid PN 527 - 528

155 Exhibit A3 paragraph 8

156 Transcript PN 529 - 530

157 Ibid PN 531

158 Ibid PN 458 - 460

159 Ibid PN 495 - 503

160 Ibid PN 521

161 Ibid PN 1113

162 Ibid PN 1118 - 1129 and 1147

163 Ibid PN 1130 - 1131

164 Ibid PN 1132 - 1134

165 Ibid PN 1135 - 1136

166 Ibid PN 1138 - 1141

167 Ibid PN 1150 - 1151

168 Ibid PN 1152

169 Ibid PN 1153

170 Ibid PN 1154 - 1155

171 Ibid PN 1156 - 1162

172 Ibid PN 1167

173 Ibid PN 1168

174 Ibid PN 1169 - 1171

175 Ibid PN 1178

176 Ibid PN 1181 - 1183

177 Ibid PN 1184

178 Ibid PN 1186 - 1190

179 Ibid PN 1191

180 Ibid PN 1194 - 1198

181 Ibid PN 1203

182 Ibid PN 1204 - 1205

183 Ibid PN 1206

184 Ibid PN 1210 - 1213

185 Ibid PN 1236

186 Closing Submissions of the Applicant, dated 15 July 2016, at paragraphs 7, 9 and 10

187 Ibid at paragraphs 11 and 13

188 Ibid at paragraph 13

189 Closing Submissions in Reply on behalf of the Applicant, dated 19 August 2016, at paragraph 5

190 Closing Submissions of the Applicant, dated 15 July 2016, at paragraphs 14 and 30

191 Ibid at paragraph 15

192 Ibid at paragraphs 18 - 21 and 31

193 Closing Submissions in Reply on behalf of the Applicant, dated 19 August 2016, at paragraph 6(a)

194 Closing Submissions of the Applicant, dated 15 July 2016, at paragraphs 22 - 25

195 Ibid at paragraphs 26 - 27 and 31 and Closing Submissions in Reply on behalf of the Applicant, dated 19 August 2016, at paragraph 6(b)

196 Ibid at paragraph 8 and ibid at paragraph 6(b)

197 Closing Submissions in Reply on behalf of the Applicant, dated 19 August 2016, at paragraph 6(c)

198 Closing Submissions of the Applicant, dated 15 July 2016, at paragraph 29

199 Closing Submissions in Reply on behalf of the Applicant, dated 19 August 2016, at paragraph 1

200 Ibid at paragraph 3

201 Ibid at paragraph 2

202 Ibid at paragraph 7

203 Closing Submissions of the Respondent, dated 8 August 2016, at paragraph 5

204 Ibid at paragraph 6

205 Ibid at paragraph 7

206 Ibid at paragraph 10

207 Ibid at paragraphs 11 - 12

208 Ibid at paragraphs 13 - 14

209 Ibid at paragraphs 17 - 18

210 Ibid at paragraphs 16 - 20

211 Ibid at paragraph 21

212 Exhibit R1 at Attachment A at paragraph 1

213 Exhibit R1 at Attachment A

214 Exhibit R1 at Attachment A at paragraphs 1 and 2

215 Exhibit R1 at Attachment D

216 Transcript PN 1181 - 1183

217 Ibid PN 1181

218 Closing Submissions of the Applicant, dated 15 July 2016, at paragraph 33

219 Ibid at paragraph 35

220 Ibid at paragraph 36

221 Ibid at paragraph 37

222 Ibid at paragraph 37

223 Ibid at paragraph 38

224 Ibid at paragraphs 42 - 43

225 Ibid at paragraphs 44 - 45

226 Ibid at paragraph 46

227 Ibid at paragraphs 47 - 49

228 Ibid at paragraphs 50 - 52

229 Ibid at paragraph 53

230 Ibid at paragraph 54

231 PR587411

Printed by authority of the Commonwealth Government Printer

Ephraim Potash v Sherrin Rentals Pty Ltd

[2016] FWC 8018

10 NOVEMBER 2016

DECISION