Gregory Miller v Sandfort Pty Ltd ATF the Sandfort Trust T/A Massland Group

[2016] FWC 5392

[2016] FWC 5392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Miller
v
Sandfort Pty Ltd ATF The Sandfort Trust T/A Massland Group
(U2016/2389)

COMMISSIONER SIMPSON BRISBANE, 14 SEPTEMBER 2016

Application for relief from unfair dismissal – Objection that Respondent complied with Small Business Dismissal Code – Applicant not warned – Code not complied with – Evidence does not support valid reason for dismissal – Compensation ordered.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Gregory Miller who alleges that the termination of his employment with Sandfort Pty Ltd ATF The Sandfort Trust trading as Massland Group (Massland) was unfair.

[2] The application was filed on 20 May 2016. The matter was then listed for hearing 12 August 2016. The Applicant and Respondent represented themselves.

[3] Mr Miller commenced employment with Massland on 27 August 2014 and he was terminated Friday 13 May 2016.

[4] I explained to the parties the power for the matter to proceed as a conference under s.398 of the Act and both parties were comfortable with the matter proceeding as a determinative conference and this course was adopted.

[5] Mr Miller filed a witness statement 1 and was the only witness in his case and Massland relied on a witness statement from Ms Kylie Ann Eggins2, the General Manager of Massland who also gave oral evidence, and Mr Mark Rolton the Chief Executive Officer of Massland, who was subject to an order to attend to give evidence following an application for such an order being made by Mr Miller. Massland also filed statements from Mrs Tracey Upton and Ms Emily Geary however those persons did not attend to give evidence and subsequently I afforded those statements little weight in reaching my conclusions.

SMALL BUISNESS EMPLOYER

[6] Massland submitted that it is a small business, employing eight employees. Mr Miller accepted that Massland was a small business employer and I am satisfied that the Small Business Dismissal Code (the Code) applies in this case.

[7] This was not a case of summary dismissal as it was accepted that when Mr Rolton the Chief Executive Officer of Massland advised Mr Miller he had been dismissed, he also requested that Mr Miller work out a period of notice and this was agreed. 3 The Code says the following in regard to dismissals other than summary dismissals.

“Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters

In discussions with the employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that the warning has been given (except in cases of summary dismissal). Evidence may include a checklist, copies of written warning(s), a statement of termination or signed statements.” 4

CONSIDERATION

[8] Mr Miller was employed as a permanent part-time Accountant/Bookkeeper by Massland.

Employment of Marina Miller

[9] Mr Miller’s wife Ms Marina Miller was employed by Massland on 1 March 2016 and terminated on 29 March 2016. Ms Miller was employed on a probation period in Sales and Massland says she did not achieve any sales and that was the reason for her termination. Both Mr Rolton and Ms Eggins gave evidence to the effect that they believed the termination of Ms Miller affected Mr Millers attitude toward his employer.

Friday, 18 March 2016

[10] Mr Miller and Mr Rolton gave different versions of a telephone conversation that occurred between them on 18 March 2016.

[11] Mr Miller said that Mr Rolton was not in the office at the time and he rang Mr Miller on the phone about monthly accounts that Mr Miller said he had set up for Mr Rolton. Mr Miller said there were no monthly accounts before he had set them up. 5 Ms Eggins disagreed with that.

[12] Mr Miller said that Mr. Rolton was upset because he believed the figures weren’t correct, and Mr Rolton was yelling abuse at him over the telephone. 6 Mr Miller claimed he had to raise his voice to ask Mr Rolton not to speak like that.7 Mr Miller said in his oral evidence he raised his voice because Mr Rolton was yelling abuse at him and was out of control.8

[13] The Form F3 Employer Response to Unfair Dismissal Application filed by Massland said that Mr Miller had been spoken to on numerous occasions over a period of approximately six months about inaccuracies in the monthly cash flows he produced, and this was an extreme frustration for Mr Rolton as the information was relied upon to make critical financial decisions.

[14] Mr Miller said that he remembered being spoken to on two occasions concerning Cashflow Projections. 9 Mr Miller said there are numerous events that can alter Cashflow Projections, such as delays in obtaining DA’s, investors having trouble obtaining finance, not exercising options on time, incorrect forecasting of event attendees, and not paying tax on time. Mr Miller said Mr Rolton gave forward projections himself. Mr Miller said he had lost count of the number of times Mr Rolton had to change the timing of receipts and payments that had to be moved forward. Mr Miller said that he recalled when he started employment with Massland Mr Roltons assistant was doing the Cashflow Projections and he believed it was a constant source of frustration for her.10

[15] Mr Miller said Mr Rolton claimed the figures were wrong and asked Mr Miller why he could not get them right. Mr Miller said he replied that they were financial accounts, they were correct and that there was a dispute about a GST amount. 11

[16] Mr Miller said that Mr Rolton had used a feasibility that had a sale price for property, and he was using a GST amount in that feasibility in the sales and the GST amount is not 10% because it comes under a different section. Further Mr Rolton was counting GST as income and that was why the figures were not aligning with his feasibility figures. 12

[17] Mr Rolton gave evidence that the accounts he was being given by Miller were wrong and he said he challenged Mr Miller on why he could not get them right. Mr Rolton said that given the yelling and that he had never had such abuse, and being in the role he was, he decided to take the lead on terminating Mr Miller.

[18] Ms Eggins gave evidence that on Friday 18 March 2016 Mr Rolton phoned her and said:

“…not sure if you heard but Greg just raised his voice at me which is totally out of line. All I was doing was asking him some questions and how he determined the information and how I wanted him to produce.”

[19] Ms Eggins said that she replied that “I did hear as well and as numerous staff members as his voice was extremely loud” to which Ms Eggins said Mr Rolton replied “Really? This is not good.”  13

[20] Ms Eggins said she understood the phone call between Mr Rolton and Mr Miller was to discuss some issues with a feasibility which then led to further discussions about monthly cash flows not being produced accurately each month.

Tuesday, 22 March 2016

[21] Ms Eggins said that on Tuesday, 22 March 2016 Mr Miller approached her in her office and asked for a chat. There is no dispute that the meeting occurred at Mr Miller’s initiative. Ms Eggins claimed that Mr Miller said to her that he felt that the CEO had changed toward him and if he continues he (Mr Miller) “will walk”. Ms Eggins said that she told Mr Miller he was reading too much into it and the CEO is simply trying to get accurate answers as he makes important decisions based on what Mr Miller produces and was consistently receiving inaccurate data/information. Ms Eggins also said that at this meeting with Mr Miller she told him that he needed to keep his job and his wife’s job separate as she thought he was letting it affect his work.

[22] Mr Miller agreed that he said to Ms Eggins that he felt that Mr Rolton’s attitude toward him had changed but he said he did not remember saying that he would walk, but may have. 14 Mr Miller said Ms Eggins was concerned that his heart was not in the job anymore, and he denied that at the time.15

Wednesday, 23 March 2016

[23] Ms Eggins said that on 23 March 2016 Marina Miller was asked by the CEO to work on the Saturday of the Easter weekend if she had not received a deposit. Ms Eggins said that Mr Miller voiced his concerns about this and said “…not appropriate for a Christian person to work over the Easter weekend”. Ms Eggins said that it was not appropriate for him to get involved.

[24] Mr Miller submits that he has never heard of anyone not in a critical care of employment being asked to work during Easter Holiday. Further, he submits Marina did work Easter Monday. Mr Miller said it was totally out of order, and that he had also been hoping his wife could travel with him to Sydney over Easter to see his parents and that had to be put on hold. 16

Tuesday, 29 March 2016

[25] On 29 March 2016 Mr Rolton phoned Ms Marina Miller and terminated her employment due to no sale being achieved by the dedicated deadline. Ms Eggins said that on this day she walked past Ms Miller’s desk and she was visibly upset and crying. 17

Wednesday, 30 March 2016

[26] Ms Eggins said that the Respondent keeps a white board which records sales and on 30 March 2016 another employee Mr Cady approached her and said Mr Miller walked into the Sales Department and put a “1” under his wife’s name to record a sale which he believed came through via a deposit overnight. Ms Eggins said Mr Cady told her Mr Miller made a comment to the effect of “…see, she’s got a sale – told you she would”. 18

[27] This was the day after Ms Miller had left and Mr Miller had the responsibility of checking the bank account each morning for property deposits. Ms Eggins claimed Mr Cady said he had to speak to this client five times and he had done the majority of the work.

[28] Mr Miller said the 10% deposit did come in the evening of the day his wife had been dismissed, and considering her dismissal was before a probation period had ended he was quite upset because he believed she could have done a very good job. 19 Mr Miller said he believed the issue was a storm in a tea cup.20

Thursday, 31 March 2016

[29] Massland submits a meeting on 31 March 2016 between Ms Eggins and Mr Miller was to discuss his behaviour and work performance.

[30] Ms Eggins said that at the request of Mr Rolton she met with Mr Miller in the boardroom to discuss his future with Massland and to discuss all matters of concern. Ms Eggins gave evidence that she said to Mr Miller:

“Mark has requested that I sit down and discuss your future with the company as he has some serious concerns about your work behaviour and accuracy.”

[31] Ms Eggins said she perceived what occurred at the meeting was a warning. 21

[32] Ms Eggins claims that Mr Miller began to raise his voice and become very emotional in the meeting. Ms Eggins evidence was she asked Mr Miller about the sale he had marked on the whiteboard. Ms Eggins said she told Mr Miller it had nothing to do with him and he shouldn’t have done it. Ms Eggins claimed that Mr Miller apologised. 22

[33] It was Ms Eggins evidence that she also said to Mr Miller that Mr Rolton had asked her to raise with him the fact that he couldn’t even look him in the eye and say good morning when he walked past. Ms Eggins put the following in an email to Mr Ralton about the meeting with Mr Miller sent on the same day:

“Hi

After we got off the phone, I met with Greg in the boardroom.

I went over the sale he marked on the board near Simon and questioned him as to why he did that. He said she worked Monday and the deposit came through yesterday afternoon and that you had originally said she needed to get a deposit through by Wednesday COB which Greg said she did. I said this has nothing to do with you and he shouldn’t have put on the board. I said Simon had to make 5x calls to get sale over the line and wasn’t a done deal at all. I said it was very unprofessional and not appropriate. He apologised and said he probably shouldn’t have done it.

I also went over his demeanour at the moment and not saying Good Morning to me yesterday (he said he thought I was on the phone), etc. He said he is still pissed off at the “abusive” phone call with you last week. I said I believed it was still to do with Marina to which he adamantly denies. He did fire up a bit and get quite upset (visibly had tears). He said he loves his job and believes he has always done a good job but won’t be spoken to in the way you spoke to him last week. He wants to stay on and I said I am not sure this is going to end well at which point, I discussed with him about what he delivers to you and the inaccuracies. He said it has taken him a while to work out the cash flows and what you require but said he can only report on what our accounting system says regarding profit and the bottom line. He said he can’t change this and often it doesn’t reflect what the feasibilities state. He said the figures don’t lie and you don’t agree with what he produces however what the accounting system says, is accurate. Greg said the books were a mess when he started and has done a significant amount of work to fix them to where they are now.

Greg says he has nothing against me or anyone else and said a CEO is someone you should look up to. At this point, I said well I look up to him, do you ? He said he did but still very upset by the phone call last week as has never been spoken to that way before and won’t be spoken to by anyone in that manner. He went on to quote a few things you had said.

In summation, Greg feels he is doing a good job and will continue to do so. I said I would discuss with you but that we need to resolve either way, whether that means him staying on or moving on. He said that is up to you.

Greg then left visibly upset and asked if he could go for a walk to which I said yes. He was only gone 10 minutes and has returned to his desk.

I am happy to do whatever you want me to do but I would ask that you give me at least a week to find a replacement and then we would need a handover period of at least 2-3 weeks.

Many thanks.
Kind regards,

Kylie Eggins

General Manager” 23

[34] Mr Miller said he believed this email version of the meeting exchanged between Ms Eggins and Mr Rolton is “basically correct”. 24 Mr Miller drew attention to the last paragraph of the email as support for an inference to be drawn that Mr Rolton had a plan to replace him without notifying him and that Ms Eggins was attempting to change Mr Rolton’s mind.

[35] Mr Miller accepted that Ms Eggins raised concerns with him in the meeting but not that his employment was in jeopardy. 25 When Ms Eggins asked Mr Miller directly whether he took the meeting on 31 March 2016 in the boardroom as a formal warning Mr Miller answered no.26 He gave the same evidence when the proposition was again put to him by Mr Rolton.27 Mr Miller said he regarded the meeting with Ms Eggins as a private matter between himself and Ms Eggins.28

[36] When the evidence is viewed in totality concerning the meeting on 31 March 2016 it is apparent Ms Eggins on behalf of Massland did not make explicitly clear to Mr Miller either the reason he was at risk of being dismissed, or that he was being warned that he risked being dismissed if there was no improvement in his conduct or capacity.

[37] It was certainly potentially open for Mr Miller to have drawn such an inference from the discussion, however he said he did not and I accept his evidence on that point. In the circumstances I am not satisfied that Massland complied with the Code because I am not satisfied Ms Eggins warned Mr Miller he was at risk of being dismissed.

[38] Given the finding that Massland did not comply with the Code because of a failure to warn Mr Miller it is not necessary to make a finding concerning whether any reason given for the warning claimed to have been given by Massland was a valid reason based on Mr Millers performance or conduct to determine compliance with the Code. However for completeness it is also my conclusion that if it was the case that Mr Miller had been warned in the course of the meeting on 31 March 2016, I would still not have been satisfied on the evidence that the reason for the warning based on the available evidence was a valid reason based on Mr Millers conduct or capacity and the Code would not have been complied with in any event. The reasons for forming that view are addressed below. It is therefore necessary to determine whether the dismissal was unfair in accordance with considerations under s.387 of the Act.

5 April 2016 – 12 May 2016

[39] Ms Eggins gave evidence that on 5 April 2016 Mr Rolton contacted her and asked that she find a suitable replacement for Mr Miller. Ms Eggins said that she conducted interviews out of the office on 12 April 2016, and on 10 May 2016 Mr Rolton met with two potential replacements.   

[40] Mr Miller said that there was no other discussion with him regarding matters concerning his conduct or performance between the meeting on 31 March 2016 and the termination meeting of 13 May 2016 However he appeared to indicate that Ms Eggin had given him cash flow documents with writing all over them and he inferred from that, that Mr Rolton did not agree with his estimations. 29

Friday, 13 May 2016

[41] Ms Eggins claimed that on 13 May 2016 Mr Rolton requested that Ms Eggins appoint one of the two persons Mr Rolton had met and for the person to commence on Tuesday, 17 May 2016 at 9.30am, allowing Mr Rolton time to let Mr Miller know of his termination. 30

[42] Mr Miller said the first words Mr Rolton used during a conversation with him in the Boardroom at approximately 2pm on Friday 13 May 2016 were “I’m letting you go.” Mr Miller said he replied by asking what Mr Rolton meant and he replied “I’m terminating your employment.” Mr Miller said he asked why and he said Mr Rolton replied “I don’t have to give you a reason.” Mr Miller said his question was repeated with the same response.

[43] Mr Miller claimed Mr Rolton told him a person had contacted him regarding a position in the office and he had accepted the position and Mr Miller was no longer required.

[44] Mr Miller said Mr Rolton asked him to work the next two weeks as a transition period. Mr Miller said that he thought it was odd but reasoned that the person was not starting for two weeks so agreed. 31 In his oral evidence Mr Miller said he misunderstood what Mr Rolton had said and he had no idea that Massland had interviewed for his position four weeks earlier.32 When it was put to Mr Miller by Mr Rolton in cross examination that Mr Rolton had a conversation with him about a handover period to a future person Mr Miller said that he totally disagreed and he took it that he was to stay in the position until a new person arrived.33 He did not accept that the word handover was used by Mr Rolton.34 However he later appeared to indicate Mr Rolton had used the word handover but had not made clear what he meant.35

[45] I am inclined to accept Mr Miller’s evidence that he did not understand from what he had been told that he would be training, or working with his replacement. His evidence was consistent on this point and the undisputed evidence concerning his behaviour on the morning of Tuesday, 17 May 2016 tends to support the view that he was unaware he would be working with his replacement. It would also appear to me however that Mr Rolton did use the expression handover and assumed that Mr Miller understood from that term that he would be working with his replacement. It appears the two men left the discussion with a different understanding of what was to occur.

[46] It was also put to Mr Miller that he deleted Outlook files on his computer when he left, and he replied that he deleted insignificant ones. He denied deleting all the files. 36 There were no documents put before me demonstrating what files were deleted. I am not satisfied on the evidence that Mr Miller’s conduct in this regard would justify the decision to dismiss.

Tuesday, 17 May 2016

[47] Ms Eggins said she was not at work on 17 May 2016 but received advice that Mr Miller had reported for work that day but left shortly after. Mr Miller submits when he came in on the first day for the two weeks of extra work, a new employee had already commenced employment. He said he arrived to find the computer turned on and emails were on the screen set up in another person’s name and the telephone directory had been changed. 37

[48] Given this situation, Mr Miller submits he felt emotionally ill and left the office immediately. Mr Miller’s evidence was he said to another employee, “I can’t do this” and he went back to his office to collect his things. When leaving the office he said to the Office Manager, Emily Geary, that he was feeling ill and taking the day off. 38

[49] Ms Eggins said at 9.29am she phoned Mr Miller and he confirmed he had left the office because he had turned up and someone else’s name was on the phone list and an email address was set up. Ms Eggins said she confirmed an employee had started and claimed she said to Mr Miller that as Mr Rolton had requested he would be doing the handover. Ms Eggins said she asked Mr Miller to return to work and do the training and he replied that he could not. Ms Eggins said that she called Mr Rolton at about 9.41am and advised him of what had occurred.

[50] Mr Miller said that Mr. Rolton called him about 3pm and was both foul mouthed and abusive. Mr Miller claimed Mr Rolton wanted to meet him somewhere to have it out with him, and if he ever showed his face in the office again he would “have him”. Mr Miller said he took this abuse to mean that he wanted to inflict harm. Mr Miller claimed to fear for his own safety and considered going to the police station.

[51] Mr Miller was paid his balance of unused accrued annual leave. Massland submits that Mr Miller failed to carry out the handover with the new employees as was agreed between both parties.

[52] Mr Rolton denied he had a plan to terminate Mr Miller. When I asked Mr Rolton near the conclusion of his evidence the reasons he decided to dismiss Mr Miller he responded that it was his conduct first, and his accuracy second. 39

HARSH, UNJUST OR UNREASONABLE

Valid Reason

[53] Mr Miller consistently rejected the notion that his demeanour had changed because of the termination of his wife and attributed his more emotional state at work to the declining health of his parents at the time. Mr Miller also denied that his emotions played a significant part in affecting his performance and efficiency. 40

[54] Mr Miller gave evidence that he had two conversations with Mr Rolton stating on each occasion that there was no connection between his wife’s employment and his demeanour. Mr Miller maintained he also told Ms Eggins just before Easter about his father who was very ill at the time in Sydney and his mother who had declining health at the time and had since passed away. Mr Miller said his mother did pass away in June. Mr Miller maintained this was the reason for the change in his demeanour not his wife’s termination, but that it had not affected his work. 41

[55] When Mr Miller put to Mr Rolton that Mr Rolton had raised with him his wife’s termination affecting his work Mr Rolton accepted that such a conversation had occurred and also said he recounted some detail of Mr Miller replying that he was having trouble dealing with his parent’s health issues. 42 When considering all of the evidence concerning Mr Miller’s alleged change in demeanour, I am not satisfied it gives rise to a justification to dismiss him.

[56] In regard to the telephone conversation on 18 March Mr Millers evidence was consistent. Mr Rolton submitted that the reason I should accept his version of the conversation was that Mr Miller was “emotionally fuelled” in the context of his wife’s termination and he was very upset by that. 43 The difficulty with that answer was that Ms Marina Miller was not terminated until 29 March 442016 , some 11 days after the date of the conversation.

[57] On the basis of the available evidence I am not satisfied Mr Miller’s conduct generally, including the whiteboard incident, or in the course of his conversation with Mr Rolton on 18 March 2016 provided Massland with a valid reason for termination.

[58] Mr Miller submits that he was spoken to on two occasions regarding the Cashflow projections. Further, Mr Miller submits there are numerous variables when predicting projections.

[59] Mr Miller clarified that monthly cash flows did exist before he was employed but not monthly financials. It was put to him that monthly financials were done by an external accountant before his employment and he responded that he did not believe that they were monthly. 45

[60] Massland submits that Mr Miller consistently made incorrect cash flow projections for approximately six months. Mr Rolton put to Mr Miller that he would spend at least 50 to 75 minutes every four weeks critiquing Mr Millers work, and reminding him where data was on the Y drive. Mr Miller countered that there was no lack of accuracy in his reports. 46

[61] In regard to cash flows Mr Miller said they came back to him from Mr Rolton with alterations concerning figures Mr Rolton gave him. For instance he said income might come in one month but it was delayed, and so Mr Rolton would put it two months further on. Therefore that was an adjustment from Mr Rolton, so it could be said the initial figures that Mr Rolton gave to Mr Miller were incorrect as they were a projection.

[62] Mr Rolton gave an explanation in his evidence about how project feasibilities are stored on the Y drive and how he maintained Mr Millers reports were inaccurate. 47

[63] I have attempted to determine from the available evidence regarding the alleged inaccuracies in the monthly cash flows whether the allegations were made out and would constitute a valid reason for dismissal. I have had no documentation put before me by Massland to support its allegations in this regard. I am left with the competing assertions regarding this issue in the oral evidence. Given Mr Miller is a qualified accountant who stood by the accuracy of his reports, and also provided a plausible explanation in his oral evidence as to why monthly cash flows can vary based on projections changing, I cannot be satisfied on the assertions of Mr Rolton alone that an evidentiary case has been made out to provide Massland a valid reason for termination.

[64] For all of the reasons set out above I am not satisfied Massland had a valid reason for termination based on Mr Millers conduct of capacity.

Other considerations in section 387

[65] Unusually Mr Miller was not notified of the reason for his dismissal. It was uncontested that Mr Rolton, refused to supply any reason for Mr Miller’s termination despite Mr Miller asking a number of times. Mr Miller states Mr Rolton said “I don’t have to give you a reason.” Mr Rolton said in his oral evidence;

“...I didn’t really feel it was valid for me to furnish a reason. I actually thought that that was quite clear with given what had happened with his wife, Marina. I was a little bit cautious – I’m not across the FWA Act, that’s not my strong suit; you know, that’s more Kylie, office manager – so I was very, very reluctant to sort of say well here’s the reason why. I just wanted to terminate and take the pressure away from her, given the sort of volatile reaction that we had from Greg previously.” 48

[66] Mr Rolton confirmed again later in his evidence he did not give a reason for termination. 49

[67] Mr Miller was not given an opportunity to respond to any reason for termination because Mr Rolton would not supply Mr Miller a reason for his termination.

[68] The issue of Mr Miller being denied the opportunity to request a support person to be present to assist in discussions did not arise as Mr Rolton advised Mr Miller he was dismissed at the commencement of the meeting.

[69] As I have found earlier, Mr Miller was not warned about his unsatisfactory performance before the dismissal. In his oral evidence when asked would he do the same again Mr Rolton responded by saying he would hand down formal warnings. 50

[70] Massland is a small business and this is likely to impact on the procedures followed in effecting the dismissal, as is the absence of a dedicated human resource specialist or expert within the enterprise.

[71] Having weighed all of the considerations in s.387 of the Act I am satisfied the dismissal of Mr Miller was harsh, unjust and unreasonable.

REMEDY

[72] Mr Miller in his application stated that he was seeking payment of notice; reimbursement of the filing fee with the Fair Work Commission; an award for pain and suffering and an ex gratia payment for loss of income. Mr Miller accepted that he now understood the FWC did not have power to award compensation for pain and suffering. 51 There was no dispute that the contract of employment between Mr Miller and Massland provided that Mr Miller was required to work a four week notice period on termination unless agreed otherwise.52

[73] Mr Miller advised he did not seek reinstatement because he believed that would be unworkable, 53 and instead now sought 26 weeks compensation.54 It is apparent to me that the relationship between Mr Miller and Mr Rolton was very strained prior to the termination. I do not believe reinstatement would be an appropriate remedy.

[74] I accept the evidence that Ms Eggins gave to the effect that Mr Miller had told her in a meeting on 18 March 2016 that he “will walk” (which can reasonably be taken to mean would resign) if Mr Rolton continued to act in the same manner toward him. Whilst I have not been satisfied on the evidence that the manner in which Mr Miller was performing his role was a valid reason for dismissal, it was abundantly clear that Mr Rolton as CEO of Massland, a small business, was highly dissatisfied with Mr Miller.

[75] Mr Miller was employed for a period of 21 months which is not a particularly lengthy period and does not weigh in favour of an order approaching the maximum allowable. Given all of the circumstances I estimate the relationship was unlikely to be long lived. I estimate the remuneration Mr Miller would have received, or been likely to receive if he had not been terminated would have been no more than a further eight weeks wages, which at the rate of $1200 per week based on a 30 hour week at $40 per hour equating to $9,600. Massland would also have been required to make contributions to Mr Miller’s superannuation during that eight week period.

[76] Mr Miller said that he had begun to earn some income from casual employment as a cleaner two weeks prior to the hearing for 15 hours per week at a rate of $24 per hour. Two weeks prior to the date of hearing was 29 July 2016. This date was three weeks after a time in which I estimate his employment would have been likely to have ended in any event. He said he had not received any other income since his termination. I therefore make no deduction for the income earned by Mr Miller.

[77] Mr Miller said he had applied for between 150 and 200 other positions through the internet and personal contacts without success. I am satisfied on Mr Miller’s evidence he made genuine efforts to mitigate his loss and make no reduction on that basis. I make no discount for contingencies.

[78] I have decided to issue an Order that Massland pay Mr Miller compensation. The amount of $9,600 does not exceed the legislative cap on compensation. An order for Sandfort Pty Ltd AFT The Sandfort Trust trading as Massland to pay to Mr Gregory Alf Miller the sum of $9,600 dollars gross taxed according to law will be issued separately and concurrently with this decision.

COMMISSIONER

Appearances:

G Miller appearing on his own behalf

M Rolton and K Eggins appearing for the respondent

Hearing details:

2016.

Brisbane:

August 12

 1   Exhibit 1 Statement of Mr G A Miller.

 2   Exhibit 2 Statement of Ms Eggins.

 3   Transcript PN 23-26 and PN 41-44.

 4   The Small Business Dismissal Code.

 5   Transcript PN 91.

 6   Transcript PN 95.

 7   Exhibit 1 Statement of Mr G A Miller page 1.

 8   Transcript PN 204.

 9   Exhibit 1 Statement of G A Miller page 3.

 10   Exhibit 1 Statement of G A Miller page 3.

 11   Transcript PN 97.

 12   Transcript PN 98.

 13   Exhibit 2 Statement of Ms Eggins page 2.

 14   Transcript PN 184.

 15   Transcript PN 101.

 16   Transcript PN 108.

 17   Exhibit 2 Statement of Ms Eggins page 3.

 18   Exhibit 2 Statement of Ms Eggins page 3.

 19   Transcript PN 113.

 20   Transcript PN 114.

 21   Transcript PN 406.

 22   Exhibit 2 Statement of Ms Eggins page 3

 23   Attachment to Statement of Emily Geary.

 24   Exhibit 1 Statement of G A Miller page 3.

 25   Transcript PN 121.

 26   Transcript PN 170.

 27   Transcript PN 231.

 28   Transcript PN 173.

 29   Transcript PN 129-132.

 30   Exhibit 2 Statement of Ms Eggins page 4.

 31   Exhibit 1 Statement of G A Miller page 4

 32   Transcript PN 136.

 33   Transcript PN 212.

 34   Transcript PN 214.

 35   Transcript PN 225.

 36   Transcript PN 235.

 37   Transcript PN 75.

 38   Exhibit 1 Statement of G A Miller page 5.

 39   Transcript PN 268.

 40   Transcript PN 232-233.

 41   Transcript PN 104.

 42   Transcript PN 331.

 43   Transcript PN 273.

 44   Exhibit 2 Statement of Ms Eggins page 4.

 45   Transcript PN 182.

 46   Transcript PN 244.

 47   Transcript PN 259.

 48   Transcript PN 254.

 49   Transcript PN 266 and PN 344-349.

 50   Transcript PN 396.

 51   Transcript PN 58.

 52   Transctript PN 80-84.

 53   Transcript PN 71.

 54   Transcript PN 86-PN 89.

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