James MacGregor v Drummers Dream Music Center T/A Dream Music Australia
[2017] FWC 6916
| [2017] FWC 6916 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
James MacGregor
v
Drummers Dream Music Center T/A Dream Music Australia
(U2017/9255)
| DEPUTY PRESIDENT BOOTH | SYDNEY, 22 DECEMBER 2017 |
Application for an unfair dismissal remedy - Small Business Fair Dismissal Code – other dismissal – notice of dismissal – reinstatement inappropriate – compensation ordered
Mr James MacGregor was employed at Drummers Dream Music Center (Drummers) from 2 July 2012 until his dismissal on 19 August 2017 following a customer complaint. His duties were musical instrument service and repair and sales assistant. Drummers is a retail store selling musical instruments. The business commenced by specialising in drum kits and now sells other instruments, including guitars. Mr MacGregor has made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. Drummers deny that Mr MacGregor was unfairly dismissed.
Mr MacGregor represented himself, and gave evidence, at the hearing of this matter on 4 December 2017. Drummers were represented by Mr Jimmy Nicholas and he and Mr Sav Jordan gave evidence. Drummers failed to engage with this application prior to the hearing. No Form F3 was filed, Drummers failed to appear for a scheduled conciliation on 19 September 2017 and Drummers did not comply with the directions of the Commission to file submissions, witness statements and anything else upon which they chose to rely. Mr Nicholas explained that he had been going through a Family Court matter and was unable to address Mr MacGregor’s application during this time. I gave Mr MacGregor leave to seek an adjournment of the matter to allow him to consider the response to his application put by Drummers at the hearing however he chose not to avail himself of this opportunity.
It is agreed between the parties that Drummers is a Small Business Employer as defined in s.23 of the Act. My task is to decide whether Drummers complied with the Small Business Fair Dismissal Code in the dismissal of Mr MacGregor.[1] If I find that Drummers did comply with the Small Business Fair Dismissal Code I must dismiss Mr MacGregor’s application.[2] If I find that Drummers did not comply with the Small Business Fair Dismissal Code then I must consider whether Mr MacGregor was unfairly dismissed.[3]
For the reasons given below I have decided that Drummers did not comply with the Small Business Fair Dismissal Code. Therefore I have considered whether Mr MacGregor’s dismissal was unfair pursuant to s.387 of the Act. I have decided that Mr MacGregor’s dismissal was harsh, unjust and unreasonable and therefore unfair. I am satisfied that it would be inappropriate to reinstate Mr MacGregor and that an order for payment of compensation is appropriate in all the circumstances. Directions will be issued for the parties to make submissions concerning the amount of compensation to be paid to Mr MacGregor.
Did Drummers comply with the Small Business Fair Dismissal Code?
Section 388 of the Act states that a person’s dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC) if:
“(2)(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”
The SBFDC is as follows:
“Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
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 with 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 an 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 a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
Drummers did not summarily dismiss Mr MacGregor for serious misconduct so I must consider Drummers’ dismissal of Mr MacGregor as an “Other dismissal” in the meaning of the SBFDC.
The reason given to Mr MacGregor for his dismissal related to a customer complaint about the repair of a guitar and Mr MacGregor’s “bad attitude”. Drummers tendered a letter from the customer describing their concerns. I declined to accept the letter[4] as evidence as the author was not available for cross-examination. Suffice to say that the customer had purchased the guitar from Drummers from a sales person other than Mr MacGregor and returned the following day because it needed repair. When he came to collect the guitar two weeks later he was not satisfied with the repair that had been done by Mr MacGregor or the time it had taken to make the repair. The customer said he wanted to return the guitar and obtain a refund and Mr McGregor talked him out of this course. Ultimately, Drummers did refund the customer the price of the guitar.
Mr MacGregor gave evidence that on 10 July he asked to see Mr Nicholas to inform him of a requirement to attend Jury Duty.[5] His evidence was that Mr Nicholas said words to the effect of “I don’t think that is going to be an issue because we are going to have to let you go”.
His evidence was:
“I continued doing my job as per normal up until 10 July. Before 10 July I was given paperwork to be on – to attend jury duty and that I would be actually asked to be called into court to attend court to do jury duty. I asked to see Mr Nicholas to let him know that I had been selected for jury duty and to let him know the dates in which I would have to take off work to attend court. Mr Nicholas then proceeded to say, "I don't think that's going to be an issue because we're going to have to let you go". He told me to have a seat, and then explained to me that in the days after I talked with the Martin guitar customer the customer had come back in to the store and demanded to speak with the store manager, Mr Jordan, where the customer explained that I was rude and had an attitude with the customer, and that he had felt that he was being conned. From what I was told by Mr Nicholas the meeting took place on a Friday during my day off. My rostered days off are on Friday and we close on Sunday. And I then asked Mr Nicholas why I wasn't asked for my side of the story when this happened seeing as neither Mr Jordan nor Mr Nicholas were present at the time of the confrontation per se, so - -”[6]
…
“When I asked how come I wasn't told my side of the story, Mr Nicholas said, "It doesn't matter because your attitude is a problem and it's not what I want in my business", para-phrasing. In over the five years I've worked there I have never been told by my colleagues or customers, especially Mr Nicholas, that I have had a bad attitude. Also he also said to me that I have had a bad attitude ever since my old manager, Walter Rojas left, which was over two years ago. So if I have had a bad attitude since he left Mr Nicholas has had two years to try and talk to me about it and didn't. I said to Mr Nicholas, "I'm not sure what Walter leaving has to do with my attitude two years later", to which there was no reply. I've never received any written warnings in the past or had the opportunity to correct what I had done wrong if I have done anything wrong in each occasion. Mr Nicholas then asked how long it would take to finish off all my outstanding repairs to which I replied I wasn't sure, I would have to go through my repair books and calculate the time that I need. Jimmy pressed me for an answer – Mr Nicholas pressed me for an answer on the spot asking, "Just tell roughly, two, three or four weeks" of what it was going to be. I then said to him, "I am not sure. I would have to get an accurate number for you after I check". During the following week I tried to let Mr Nicholas know how long it would take me to finish my repairs but he was frequently not at work or unavailable. I then let the guitar department manager, Mr Rotundo, I let him know that it was going – how long it would take to finish all my repair jobs to which he said, "I will try and pass the message – the information on to Jimmy when I see him next". Four weeks passed without a single word from Mr Nicholas about my termination; no letter of termination; no word at all about my future at Dream Music. All of my managers hardly spoke to me and conversations with my colleagues were extremely short and I could sense a lot of nervousness on their part to even talk to me. I then started asking around my fellow colleagues to see if they were told anything about my termination, if they knew anything. They then informed me that they had been told by Mr Jordan that they were not to speak to me any more unless it was absolutely necessary, and that I was only there because I legally had to be. After hearing this I felt discarded and used like I was quarantined for having some infectious disease. The following week, which is Monday, 14 August, I almost had to force a meeting with Mr Nicholas to find out what was going on and why I had been left on a limb with no information about what was happening. He then proceeded to tell me, "I was going to give you until the end of the week", which was until the 19th, "and make 19 August your last day", effectively giving me only one week notice without a letter of termination. I tied up loose ends during that week and left Dream Music for the last time at 4 pm on the 19th of the 8th 2017. To this day I also have not been given my outstanding holiday pay allowances and have not had any of my emails or phone calls answered by Mr Nicholas.”[7]
Mr Nicholas gave evidence that the conversation he had with Mr MacGregor about Jury Service was on a different day to the date he spoke to him about the customer complaint.[8] He does not recall the date of his conversation with Mr MacGregor about the customer complaint but he gave evidence that the conversation occurred on his initiative.[9]
His evidence was:
“MR NICHOLAS: So subsequently after liaising with James I've basically said to him, "Look, I've sort of given you enough warnings now". He's had ample opportunity to sort of change that attitude towards customers. It had zero effect unfortunately so I said, you know, "I appreciate you've been here for a long time and what you've done, but it, you know, it's time that we let you go". I had discussed the issue with my father also, and I had also phoned our accountant, Mr Andrew Stavrinos, and I got information as to a staff member who had been there for five years, what sort of notice we should – sort of be given by law, and Mr Stavrinos confirmed that I should be giving at least four or five weeks based on the duration even though there was the warnings and the customer complaints. He said that would be the fair thing to do. So I subsequently informed James that we'll be giving him five weeks.
THE DEPUTY PRESIDENT: When you say "subsequently", do you mean on the occasion of that meeting.
MR NICHOLAS: On the occasion of speaking to him, yes.
THE DEPUTY PRESIDENT: All right. So you said you'd be giving him five weeks?
MR NICHOLAS: Five weeks, yes.
THE DEPUTY PRESIDENT: So you say that you gave him notice on that occasion.
MR NICHOLAS: On that very occasion, yes.”[10]
There is a factual conflict between the parties about whether Drummers gave Mr MacGregor notice of dismissal on 10 July 2017. However, there is no dispute that his date of effect of dismissal was 19 August 2017. Whilst this may be relevant to whether Drummers paid Mr MacGregor correctly it is not relevant to my consideration of whether his dismissal was consistent with the SBFDC.
There is a factual conflict that is relevant to my consideration of the matter and that is whether Mr MacGregor was warned about his conduct and/or performance earlier than the date of the conversation with Mr Nicholas concerning the customer complaint.
Mr MacGregor is adamant that he was not warned about his customer service but Mr Nicholas and Mr Jordon gave evidence that they had done so.
Mr Nicholas said:
“MR NICHOLAS: Look, as a guitar repairer he's actually got a passion for guitar repairs more so than dealing with customers face-to-face. But the problem was that he was employed as a sales assistant, a little bit of repairs, but it became where, you know, he'd basically just take way too long. Customers would wait three, four, five weeks for a basic restring sometimes or, you know, just things that should happen very, very quickly, and that's something Jean Pierro and Sav Jordan would always notice because the guitar repairing was always just full. It just seemed like it just wasn't getting done in a timely fashion.
THE DEPUTY PRESIDENT: But you don't give me any particular dates or evidence of having given him any warnings in this regard.
MR NICHOLAS: I gave him several warnings over the last period, especially since the 12 months where John Pierro started because there seemed to be a bit of an issue with James sort of following the sort of instructions as – in the sales lead of John Pierro, the new department head, so I'd pulled him into the office on several occasions about that, but
THE DEPUTY PRESIDENT: But you didn't make any notes about when that was?
MR NICHOLAS: They were verbal, yes. They were verbal discussions.
THE DEPUTY PRESIDENT: Is Mr – sorry, the name that you just mentioned about your department head?
MR NICHOLAS: John Pierro.
THE DEPUTY PRESIDENT: This is Mr Rotundo?
MR NICHOLAS: Yes, Mr Rotundo.
THE DEPUTY PRESIDENT: So is he still employed by you?
MR NICHOLAS: Yes, he is. Yes.
THE DEPUTY PRESIDENT: But you didn't think it would be a good idea to bring him along to give evidence about these warnings?
MR NICHOLAS: We discussed it. Sorry, about coming today or
THE DEPUTY PRESIDENT: Yes.
MR NICHOLAS: He – we're short-staffed so he needs to be there today, but
THE DEPUTY PRESIDENT: Right. So would he be able to substantiate that warnings have been given to Mr MacGregor about his customer service?
MR NICHOLAS: Sav Jordan is here on our behalf. John Pierro has written a letter to sort of that effect along with Nathan Huisman, and Sav is the general manager so he's aware of the times where I've had discussions in the office. I think Sav's had several sort of discussions with him in relation to different customer complaints or repairs or issues like that.”
The letter Mr Nicholas referred to was tendered[11] however, I declined to consider it as evidence as the author was not available for cross-examination. I note in any event that it does not support the giving of warnings of the nature that I consider would be required for an employee to understand the feedback and act on it.
I note the extract from the relevant section of the SBFDC:
“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 with 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.”
Mr Jordon’s evidence was in the same vein. He said:
“THE DEPUTY PRESIDENT: All right. So now Mr Jordan, are you going to say a few words about your direct experience with giving or hearing Mr Nicholas give Mr MacGregor warnings.
…MR JORDAN: On that one basis too just after February where the team didn't make budget again - or March, sorry, didn't make budget again, I pulled them up and had a bit of meeting. I said, "Guys, look, it's not on. You guys were given a pay rise, a sign of good faith. We need to pull things up otherwise Jimmy is going to start letting staff go". James just basically shrugged his shoulders and went - you know, it's - I was, like, "Dude, that's not the attitude man". You know what I mean. It was, like, trying to come down on him but just trying to talk to him as mates more than anything, but it was just constantly like that, you know. We've had complaints of our reps as well, "We've been getting attitude from James". These are phone calls that I've been a witness, that is these guys ringing, our reps, going, "Mate, have a chat to James" or, you know, I'm, like, "Well, whatever". But basically, yes, John Pierro has had a few issues with James since he came aboard. Yes, basically that's kind of - -
THE DEPUTY PRESIDENT: Who are reps?
MR JORDAN: Our sale – basically reps, reps for different distribution companies, you know, Gibson rep.
THE DEPUTY PRESIDENT: So the
MR JORDAN: Representatives, yes.
THE DEPUTY PRESIDENT: wholesalers of the guitars?
MR JORDAN: Correct, yes. Yes, basically from
THE DEPUTY PRESIDENT: What specifically did they say about their concerns with Mr MacGregor?
MR JORDAN: Just attitude, a bad attitude, chip on the shoulder, stuff like that, and, you know
THE DEPUTY PRESIDENT: Can you describe that in more objective terms? I don't know what a bad attitude is?
MR JORDAN: Just – yes, well, abrupt, very opinionated. You know what I mean. Just because you don't play a certain brand of guitar doesn't mean you've got to bad-mouth another brand of guitar. At the end of the day it's – we're salesman, we've got to be open-minded to everything. You know things like that.
THE DEPUTY PRESIDENT: Did you personally give any feedback to Mr MacGregor during the course of his employment about this bad attitude?
MR JORDAN: I spoke to him a couple of times, yes. I said, "Mate, you can't be talking to customers like that", you know what I mean, or when a repair is taking too long. I said, "Mate, it's just not on". He'd be, like, "Well, that's what I do. That's how I do it", you know. I'm, like, "Okay, well, you do what you do". Mr Chris --”[12]
I prefer the evidence of Mr MacGregor over the evidence of Mr Nicholas and Mr Jordan on this point. Mr MacGregor stuck me as an orderly, reliable and adamant individual. His conduct in prosecuting his case was consistent with this description. On the other hand Mr Nicholas’ evidence was uncertain and vague and his conduct of the case was consistent with this description. He made no record of the warnings he said he had given and he could not provide any dates upon which warnings had been given. Furthermore, the warnings he and Mr Jordan said that they gave to Mr MacGregor were not specific and actionable, as I consider they are required to be, to be consistent with the SBFDC as stated in the extract above.
I find that Drummers did not comply with the SBFDC in dismissing Mr MacGregor.
Other Preliminary matters
Having found that the dismissal did not comply with the SBFDC, I must also consider some other initial matters pursuant to sections 385 and 396 of the Act.
I am satisfied Mr MacGregor made his application within 21 days after the dismissal took effect, as required by subsection 394(2)(a) of the Act.[13]
I am satisfied that Mr MacGregor is a person who was protected from unfair dismissal under section 382 of the Act.[14] Mr MacGregor had completed a period of employment with Drummers greater than the minimum required period. As I have found that Drummers is a small business employer, that minimum period is one year. Therefore, Mr MacGregor’s application also satisfies subsection 382(b) of the Act.
There is no suggestion that Mr MacGregor’s dismissal was a case of genuine redundancy.[15]
Turning to section 385 of the Act, it is agreed between the parties that Mr MacGregor’s employment was terminated on the initiative of Drummers. That is, Mr MacGregor was dismissed within the meaning of subsection 386(1)(a) of the Act.
It therefore remains for me to consider whether Drummers dismissal of Mr MacGregor was harsh, unjust or unreasonable pursuant to s.387 of the Act.
Substantive Fairness
Was there a valid reason for Mr MacGregor’s dismissal? (s.387(a))
I have already found that Mr MacGregor was dismissed because of a customer complaint and a “bad attitude”. I have outlined the circumstances of the customer complaint above and set out the evidence of Mr Nicholas and Mr Jordan.
A valid reason will be one that is sound, defensible and well founded, and not capricious, fanciful, spiteful or prejudiced, in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business.[16]
Mr Jordan said in evidence:
“Just James mentioned that he wasn't told about the customer complaining. The customer mentioned there were two bezels missing, all right, and when we approached James, I said, "Mate, why wasn't the other one repaired?" He goes "No-one told me to". And I'm, like, "Mate, you've seen the guitar. The second bezel is not there". He goes, "Well, no one told me to do it". I said, "Mate, if you're a motor mechanic, you go to the car, the customer brings you a car in, there's a tyre missing, aren't you going to report it or aren't you going to – this is what you do, all right. You've physically seen the bezel missing, don't just shrug your shoulders, mate. Come and see me, Mate, missing another bezel, put off the customer, call the customer, go 'Mate, there's something else missing. Here it is'". But he's just, like, "No-one told me", so that's where the attitude comes into it again, is the constant situation we're having. You know, "No-one told me to do it". "It's in your face, mate. It's right there. You can see it's missing."”[17]
Mr MacGregor replied:
“I was asked, and as per my job description for that particular guitar was I was given by Mr Rotundo one bezel and there was one bezel missing. There was a loose bezel, and there was one bezel missing. I was given that one bezel to install on the guitar which I did. Any other loose or missing bezels was not there at the time of repairing or I wasn't told – that wasn't what I was asked to do, and I've been told many times by Mr Nicholas and Mr Jordan that if it's not the job description of your repair order don't do it, because we don't make enough money on repairs.”[18]
I do not consider that the customer complaint was a valid reason for dismissal. There is no evidence of unreasonable behaviour on the part of Mr MacGregor. I do not consider that it has been established that Mr MacGregor had a “bad attitude”. I find that neither of these grounds constitutes a valid reason for dismissal.
I find that Drummers did not have a valid reason for dismissing Mr MacGregor. This weighs in favour of the decision being considered unjust and unreasonable and therefore unfair.
Procedural fairness
Was Mr MacGregor notified of the reason for dismissal? (s.387(b))
As already mentioned there is a factual conflict between the parties about whether Drummers gave Mr MacGregor notice of dismissal on 10 July 2017. However, there is no dispute that he was told on 14 August 2017 that 19 August 2017 would be his last day at Drummers. Mr MacGregor agrees that he was told on 10 July that “the customer explained that I was rude and had an attitude with the customer, and that he had felt that he was being conned”.[19] I consider that he was aware of the reason for his dismissal even if he did not, at that moment, know the date of his dismissal.
On its own, this factor does not weigh in favour of the dismissal being unfair.
Was Mr MacGregor given the opportunity to respond to this reason? (s.387(c))
I consider that Mr MacGregor was not given a reasonable opportunity to respond to the reason for dismissal.
Mr MacGregor gave evidence that:
“When I asked how come I wasn't told my side of the story, Mr Nicholas said, "It doesn't matter because your attitude is a problem and it's not what I want in my business", para-phrasing.”[20]
Mr Nicholas gave evidence:
“THE DEPUTY PRESIDENT: You heard him say that he didn't have the opportunity to give his version of events. Do you deny that?
MR NICHOLAS: Yes, I deny that.
THE DEPUTY PRESIDENT: So you did hear his version of events on that occasion.
MR NICHOLAS: Yes. Yes.
THE DEPUTY PRESIDENT: How long did you take to consider his version versus the customer's and the other managers' version?
MR NICHOLAS: We probably had a discussion with James that day I would say in the office, quite lengthy, it was a 20 minute discussion.
THE DEPUTY PRESIDENT: So you just listened to his version, and it didn't accord with the version that you'd been given and so you formed the view that you'd act on your version of events?
MR NICHOLAS: On the version of the store manager, John Pierro as well, yes.”[21]
I prefer Mr MacGregor’s evidence over Mr Nicholas’ evidence. Mr MacGregor was adamant and all of his conduct during the case management and conduct of this matter reveals him to be a reliable person. This stands in contrast to the way Mr Nicholas engaged with the case management and conduct of the matter.
I conclude that Drummers did not afford Mr MacGregor the opportunity to respond to the reason given for considering his dismissal and this weighs in favour of the dismissal being unfair.
Did Drummers unreasonably refuse to allow Mr MacGregor to have a support person present to assist at any discussion relating to his dismissal? (s.387(d))
Given the conflict about whether the meeting on 10 July and 14 August were initiated by Mr MacGregor or Mr Nicholas, I consider that this factor is not relevant.
Was Mr MacGregor warned about unsatisfactory performance before the dismissal? (s.387(e))
I refer to my finding at paragraph [20] of my decision. I consider that Mr MacGregor was not warned about unsatisfactory performance before his dismissal. This weighs in favour of the dismissal being unfair.
Did the size of Drummers impact upon the procedures followed in effecting Mr MacGregor’s dismissal? (s.387(f))
This factor is appropriate to be considered when an employer is small and there is an absence of rigor in the process of dismissal. This is certainly the case in this matter. The factor will always be weighed against the whole circumstance of the dismissal. In this case the lack of procedural fairness accompanying the dismissal could not be excused by the size of the employer. I do not consider that this weighs in favour of the dismissal being fair.
Did the absence of human resource management specialists or expertise impact on the procedures followed in effecting Mr MacGregor’s dismissal? (s.387(g))
Drummers does not have human resource management specialists or expertise. However, the lack of procedural fairness accompanying the dismissal could not be excused by the absence of human resource management specialists. I do not consider that this weighs in favour of the dismissal being fair.
Conclusion about procedural fairness
Drummers did not afford Mr MacGregor procedural fairness throughout the process of dismissal. A number of the factors above weigh in favour of Mr MacGregor’s dismissal being considered unjust and therefore unfair.
Other matters
Are there any other matters relevant to my consideration of whether Mr MacGregor was unfairly dismissed? (s.387(h))
Mr MacGregor was dismissed for poor performance and I have found that there was no valid reason for the dismissal. I consider that the response of Drummers to Mr MacGregor’s performance was disproportionate. This is a relevant consideration and weighs in favour of the dismissal being considered harsh and therefore unfair.
I also take into account Mr MacGregor’s reasonably lengthy service.
Taking into account all the factors was Mr MacGregor unfairly dismissed?
I have found that there was no valid reason for Drummers to dismiss Mr MacGregor. I have found that Drummers did not afford Mr MacGregor procedural fairness throughout the process of dismissal. The absence of a valid reason for the dismissal strongly weighs in favour of the dismissal being considered unjust and unreasonable and the lack of procedural fairness weighs in favour of the dismissal being considered unjust. Other matters weigh in favour of the decision being considered harsh. I find that Drummers’ dismissal of Mr MacGregor was harsh, unjust and unreasonable and therefore unfair.
Remedy
Reinstatement is the primary remedy under the Act. However, two factors persuade me that reinstatement of Mr MacGregor with Drummers would be inappropriate. The first is that Mr MacGregor does not seek reinstatement as he is entering the New South Wales Police Force. The second is that the evidence of Mr Nicholas and Mr Jordan reveals that Drummers have lost confidence in Mr MacGregor’s customer service performance and in a small business confidence is a necessary ingredient to workplace harmony.
In these circumstances I am satisfied that the reinstatement of Mr MacGregor with Drummers would be inappropriate. I consider that it is appropriate in all the circumstances of the case for me to make an award of compensation to Mr MacGregor.
Directions will be issued for the parties to make submissions concerning the amount of compensation to be paid to Mr MacGregor.
DEPUTY PRESIDENT
Appearances:
Mr J MacGregor, self-represented.
Mr J Nicholas and Mr S Jordan, for the Respondent.
Hearing details:
2017.
Sydney.
4 December.
[1] s.388 Fair Work Act 2009 (Cth).
[2] s.385(c) Fair Work Act 2009 (Cth).
[3] s.387 Fair Work Act 2009 (Cth).
[4] Exhibit N1.
[5] Transcript PN165.
[6] Transcript PN164.
[7] Transcript PN180.
[8] Transcript PN316.
[9] Transcript PN328.
[10] Transcript PN336-342.
[11] Exhibit N2.
[12] Transcript PN399; PN402-411.
[13] s.396(a) Fair Work Act 2009 (Cth).
[14] s.396(b) Fair Work Act 2009 (Cth).
[15] s.396(d) Fair Work Act 2009 (Cth).
[16] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
[17] Transcript PN516.
[18] Transcript PN518.
[19] Transcript PN164.
[20] Transcript PN180.
[21] Transcript PN365-372.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR598954>
0