Jason De Run v Stanborough Weymss & Assoc T/A Manyung Gallery Group
[2012] FWA 4837
•14 JUNE 2012
[2012] FWA 4837 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason De Run
v
Stanborough Weymss & Assoc T/A Manyung Gallery Group
(U2011/2589)
COMMISSIONER GAY | MELBOURNE, 14 JUNE 2012 |
Jurisdiction - Small Business Fair Dismissal Code.
[1] The following decision, now edited, was given in transcript at the conclusion of submissions in Melbourne on Tuesday 17 April 2012.
[2] “This application requires consideration of the termination of Mr Jason De Run (the applicant) from his employment as a senior art sales consultant by the Manyung Gallery Group. That is the trading name of Stanborough Weymss & Associates (Manyung, the respondent) on 16 December 2011, Mr De Run having been engaged in that capacity since approximately 21 March 2010.
[3] Mr Ritchie of VECCI appeared for Manyung and Mr De Run Senior appeared by permission for his son. I am grateful to both advocates for the submissions and the way the cases were put.
[4] An objection is made in this case relying upon the Small Business Fair Dismissal Code (the Code) and having reviewed the material filed pursuant to the directions amended, following the applicant’s failure to comply, by his Honour, Watson SDP and filed by the respondent, I determined earlier today to first hear the respondent’s s.388 objection.
[5] This meant that the application of the Code was to be considered and for this purpose, evidence has been led today by both Mr Weymss-Smith and Ms Weymss-Smith, and by Ms Liotta for the respondent and by the applicant Mr Jason De Run and Ms Jensz on his behalf, Ms Jensz being a manager of Manyung.
[6] In saying that, although the evidence has been led with the Code in mind, I think it is really the case that, as might be expected, some more general evidence and submissions were given, it being a difficult task to consider, amongst other things, the valid reason obligation in “Other dismissal”, this not being a summary dismissal - so calling up the second paragraph of the Code. I do not say that the evidence and the submissions did not trench into the s.387 criteria as harsh, unjust or unreasonable.
[7] I am however endeavouring to confine myself to a consideration of the Code. That is because a person cannot be thought to be unfairly dismissed unless s.385 properly applied. Section 385 provides that a person has been unfairly dismissed if Fair Work Australia is satisfied that the person, (a) has been dismissed; and (b) that the dismissal was harsh, unjust or unreasonable; and (c) that the dismissal was not consistent with the Code; and, finally, that the dismissal was not a case of genuine redundancy. So if those things all apply then there would be unfair dismissal, because it would also include the finding that the termination was harsh, unjust or unreasonable.
[8] Section 388(2) requires that, immediately before the time of the dismissal or at the time the person was given notice of the dismissal, the person's employer was a small business employer, and secondly and more contentiously, there was compliance with the Code. I do not understand there to be any disagreement in respect of s.382(a), and of course the case is about whether there was compliance with the Code. I do not propose to detail, as I have advised the parties at the conclusion of proceedings a moment or two ago, all of the contentions.
[9] There is a great deal of material surrounding the performance of Mr De Run and the substitution for a general performance target of $65,000 per month for the Glenferrie Road gallery, by a personal sales target of $45,000 per month for Mr De Run and similarly for his manager, Ms Jensz. I am very mindful, of course, that this personal amount was later reduced to $35,000 per month. There were two warnings and an instrument of dismissal and they call up shortcomings, most particularly related to the sales performance of Mr De Run. A particular criticism of them is that (and I think this is really a contractual point) it is not open to the employer to introduce sales targets, and I must say that I am quite unable to accept that. In my view it is fundamental for a salesperson who is experienced and able, and certainly Mr De Run is both of those things, to be required to meet various targets.
[10] The targets and their formulation might change and I do not think that it is necessary that the contract of employment has to be altered to reflect, firstly, the need to meet a reasonably set target and secondly, for sales representatives to address themselves to various sales requirements of the employer; they are all normal components that fall to a sales employee to comply with. This will be so as long as the requirements fall within the description as being reasonable directions or expectations of the employer. ‘Reasonable’ would have a commonsense meaning in that sense and, as long as they did not impose some sales performance standard which was not capable of being reached or was, in some other sense, harsh or unfair, it might well be reasonable, but I do not try and define what ‘reasonable’ would be. It would be a matter of fact to be considered in each case.
[11] I do accept that at the time of the first warning being given, it was open to Manyung to say that the previous regime, of broader monthly sales obligations for various sites, could be replaced by the personal sales target required to be met. As I say, I am not going to go through all the various aspects of the materials which favour one side, but I want to make these points more generally. It is noteworthy in the 20 March written advice to Mr De Run, the applicant is advised that he is required to apply the utmost diligence and effort, to achieving the sales target, and that is, the reduced $35,000 plus GST target to which reference was made some few minutes ago.
[12] The first warning details previous sales performance and it is set out at the third page of that advice. I do not propose to go through and quantify the figures as it is invidious to Mr De Run to do so, but it indicates and sets out some figures of low performance. In that summary document of 20 March, amongst other things, Mr De Run is advised that a key part of his role - and it concludes by specifying that strong performance is required - was responding to leads and undertaking the ‘appros’. That is, taking up a form of sales activity (having prospective purchasers take an artwork to hang in their home to assess its suitability) which, I think it is common ground, did not appeal particularly to Mr De Run and was not said to be his forte, and rather, by way of contrast, was the forte of Ms Jensz.
[13] In any event, the second warning sets out that in one month, there is a very low achievement of sales and the basis of that letter, it is set out in the materials as the 18 June email although I think it is found elsewhere also, was advice that the $45,000 per month was a live figure. It was not that the reduced target of $35,000 per month for Mr De Run had been increased, but rather, it was a reference that the Glenferrie Road site was unviable unless earnings of that nature were achieved and it is said that the target had been reduced to assist focus and motivation.
[14] Now, Mr De Run has given evidence and I have paid very close regard to it, that in fact these warnings were given in a way which was dispiriting and demotivating (although they were not his terms) and it did not help him achieve the normal committed sales spring, if I understood his evidence, that Mr De Run, in a natural sense, brought to bear. So to that extent, it is said that they were counterproductive and they reflected an intention of Mr Weymss-Smith to ensure Mr De Run was ultimately found to be unsuccessful and reflected, I think, some animus between Mr Weymss-Smith and Mr De Run which was very troubling to Mr De Run.
[15] It is the case that there were several exhibitions late, towards the end of 2011 and they were not successful. One reflected a particular recommendation of Mr De Run (that is, as to the artist to be featured) and in the two exhibitions to which I refer, Mr De Run had a very low sales record. I think that it is likely there were no sales at all attributed to him. There may have been some peripheral sales and, of course - I do not think this is a case where it is alleged that these things were done - that is, poor performance was found to have existed in any wilful way. So it is very likely that in important respects, Mr De Run was endeavouring in his own way to give effect to the keenly-felt desire he says he has, to sell art. There cannot be any doubt that that element of his evidence came through loud and clear, that it is a very stimulating and important part of his vocation to sell art. That, of course, also accords with the desire of Manyung, but regrettably the two did not coalesce in a way which in 2011, saw the sort of success which meant that the warnings that had been given could be disregarded, because the results simply were not there.
[16] There was a communication sent to Mr De Run prior to the third meeting (from which his employment was terminated) to give him very specific notice of the meeting. Sometimes there are criticisms of such termination sessions because the person whose employment was terminated was not put on notice and was not aware of the issues that were going to be the subject of that very difficult discussion. That is not the case on this occasion because the 14 December email sets out, in almost a chilling way, the sorts of issues and the (presumably) preliminary views that had been reached by Manyung. Again, I am not going to talk about, and in so doing to publicise, the particularising and quantification of the deficiencies attaching to the applicant, as no good purpose is achieved by doing so, but the parties are aware of them. They are set out there.
[17] I know that in part they are in contest and the arithmetic as to periodic sales performance can be worked in various ways. At the moment though, I am looking at those communications. The Code requires that one give attention to whether the employee was given a reason why he/she was at risk of being dismissed. My view and understanding of all the events, not all of which I have summarised, means that such a reason was advised. Mr De Run was given the reason why he was at risk of being dismissed. Then of course, the reason itself for the dismissal has to be a valid reason based on the employee's conduct or capacity, and in this case it is said to be a capacity issue because it does not go to conduct.
[18] This is not a case where there is some misconduct in the sense of some reprehensible act or acts, but rather the sales capacity on which one is focusing. I have noted the considerable extent to which, for 11 months of 2011, the applicant was short of the target. The employer's position is that a consideration of the warnings bring to notice some particular aspects of the employment where Mr De Run was deficient. One is the ‘appros’; dedication to that area, and also that he improve generally his diligence. As the year went on and at the end of the year, I do not have any doubt that the risk of being dismissed was, or should have been, quite clear if there was no improvement in Mr De Run’s job performance.
[19] The procedural matters are relevant also, and I am not going to go through them exhaustively. The checklist has been given quite close attention and the Code refers to other aspects that would be relevant. It speaks of the opportunity to respond. I find that there was an opportunity to respond given to Mr De Run. It speaks of the employee being given a reasonable chance to rectify the problem. I find there was a reasonable chance given throughout 2011 to rectify the sales problem, including as to the ‘appros’. This finding is made not without acknowledging the tremendous difficulty for a salesperson to make sales, even though they may be trying very hard to meet a target. That is likely to be considered to be a problem of sales as a calling itself - so long as, objectively, the target is thought to be achievable. It is noted (as to achievability) that on some occasions it was met. It is further noted that Ms Jensz’s evidence, which I have accepted, was that throughout 2011 she was conscious of the applicant’s sales performance potentially affecting his employment security.
[20] I have not found that the reduced target of $35,000 was an unreasonable target. As I have sought to make clear in giving these short reasons, I have tried to focus on the deficit - that is, the shortfalls - in the sales achieved. I note also, in trying to give effect to the Code in a more general sense, that it speaks of the capacity for rectification of a problem, possibly involving the employer providing additional training and ensuring the employee knows the employer's job expectations. On the latter point, I find that the employee did know the employer's job expectations and I do not make any finding that they were repudiated.
[21] This case is not so much, in my view, about the subjective aspects, but rather about the incapacity for whatever reason, to meet the actual targets. I find that the employer did offer to provide Mr De Run additional training, and I have noted that this had been done earlier in the employment. It is true, as Mr De Run senior has said in his admirable and particularly earnest advocacy efforts on behalf of his son, that the consistent element of the performance in 2011 was its inconsistency. But there is a troubling element of that submission, it seems to me, and that is the applicant’s lack of inclination to apply the home approval system which was such an important part of the employer's sales expectation. In coming to this view I am conscious that there are said to have been delivery vehicle difficulties for Mr De Run, but these were surmountable had Mr De Run been minded to conform to the ‘appros’ approach previously urged upon him by the proprietors. I must say, that is, in my view, a secondary point because there does not seem to have been a full take-up of that obligation, but that is stressed in the material.
[22] I note that there is said to be an underpayment element in this case and that the respondent, Manyung, is prepared to have some further discussions to see what the position is there. I do not want to speculate, but it might have been that had that issue been raised earlier and formed part of the backdrop to the conciliation, there might well have been a different result in this case.
[23] In my view, this is a case where the Code can be invoked because Manyung was a small business. I have had regard for Ms Jensz's evidence about her understanding that as the year progressed, there was a likelihood of termination in that she had come to appreciate that by virtue of the sales performance, Mr De Run's position was in jeopardy. I did not understand Ms Jensz's evidence to be that that turned on Mr Weymss-Smith's dislike of Mr De Run, but rather, that the employer was making it clear throughout the year there simply had to be an improvement in the sales figures for the reason that - there may have been other reasons - the Glenferrie Road site needed to remain viable.
[24] For all those reasons I accept the case put for Manyung and I think there was a valid reason within the meaning of the Code and, as a result of that, together with compliance with the Code in its other respects, find there is no jurisdiction for Fair Work Australia to hear this case any further. The application is dismissed. I now adjourn.”
COMMISSIONER
Appearances:
M De Run for the applicant J De Run.
M Ritchie of VECCI for Stanborough Weymss & Associates Pty Ltd T/A
Manyung Gallery Group.
Hearing details:
2012.
Melbourne:
April 17.
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