Jeremey Rush v James Engineering Pty Ltd
[2023] FWC 1145
•19 JULY 2023
| [2023] FWC 1145 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jeremey Rush
v
James Engineering Pty Ltd
(U2022/10682)
| COMMISSIONER HUNT | BRISBANE, 19 JULY 2023 |
Application for an unfair dismissal remedy
On 7 November 2022, Mr Jeremy Rush made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that he had been dismissed from his employment with James Engineering Pty Ltd (the Respondent) and that his dismissal was harsh, unjust and unreasonable.
On 17 November 2022, the Respondent filed a Form F3 Employer Response to the application in which it asserted to be a small business employer, having employed 13 employees at the time of Mr Rush’s dismissal.
Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 22 March 2023. Mr Rush appeared and represented himself. The Respondent was represented by Mr Hung Pham, General Manager of the Respondent and Mr Greg Miscamble, Director of the Respondent. Due to the nature of the matter, I considered it appropriate to conduct the matter as a determinative conference.
Mr Miscamble did not provide a written witness statement prior to the determinative conference, as required by the directions issued by me. He gave oral evidence on the day which elongated the determinative conference and resulted in Mr Rush hearing evidence for the first time. He was provided with an opportunity to respond to Mr Miscamble’s new evidence.
Background
Mr Rush commenced employment with the Respondent on 21 March 2022 as a Sales Consultant. He was informed of his dismissal on 4 November 2022.
On 7 November 2022, Mr Rush received a termination letter dated 5 November 2022. The letter is extracted in full below:
“Dear Jeremy,
As you know, there is a Employment Agreement executed on 3rd March 2022 in effect between yourself and our company, James Engineering Pty Ltd (JE).
As discussed and agreed on Friday, 4th November 2022 in the presence of Greg Miscamble and myself, we would like to regretfully inform you we are terminating that agreement effect of 6th November 2022.
We hereby offer you 1 month’s pay including phone bill re-imbursement in lieu of notice as good will to assist you in securing employment within that period and not attending to JE day to day duty at out Heathwood premises. The final payment is as per standard JE pay period i.e last Thursday of the month being 25th November 2022.
As per Employment Agreement please return the following once you have gain employment.
· Laptop (removal of any personal files from C:\Drive)
· Fuel Card
· Linkt Card
I wanted you to know that JE appreciate your service for these past 7 months and wish you all the best for the future.
Please do not hesitate to use me as reference as my interest lies with you in gaining employment as soon as possible.
Kind Regards,
Hung Pham
General Manager”
Relevant Legislation
Section 394 of the Act provides:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Further, ss.385 and 387 provides as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“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.”
Small Business & Minimum Employment Period
On 11 January 2023, I issued Directions to the parties noting the Respondent’s assertion that it is a small business employing less than 15 employees at the time of Mr Rush’s dismissal. Noting that Mr Rush was employed by the Respondent for 7 months, I raised with the parties the issue in respect to whether Mr Rush meets the minimum employment period of 12 months for employees of a small business.
I directed the Respondent to provide a signed statement detailing the names of the employees employed by the Respondent on the date of the dismissal. I further directed the Respondent to include the names of all associated entities of the Respondent and how many employees are employed by each of the associated entities.
On 16 January 2023, the Respondent provided a signed statement which detailed the following:
· The Respondent employed 14 employees, including Mr Rush at the time of Mr Rush’s dismissal;
· The Respondent’s associated entity, James Electrical Installations, employed 14 employees at the time of Mr Rush’s dismissal; and
· The Respondent’s associated entity, James Fab Pty Ltd, employed 21 employees at the time of Mr Rush’s dismissal.
The Respondent accepted that taking into account the employees of its associated entities, it is not a small business.[1] Noting that there are no further jurisdictional issues, including the application having been made within the 21-day time limit to bring an application, I am tasked with determining if the dismissal is unfair having regard to s.387 of the Act.
Evidence of Mr Rush
Mr Rush gave evidence that prior to commencing employment, and at the beginning of his employment, he was informed that there would be no expectation of him to make any sales in the first six months of his employment. Despite this, he stated that he secured six sales during his period of employment with the Respondent.
He stated that the products produced by the Respondent have extremely long lead-times, with the average time of production post-CAD drawing approval being 28-32 weeks, with drawings taking a minimum of six weeks.
Mr Rush passed his three-month probationary period on 21 June 2022. On 21 July 2022, the Sales Estimator abruptly quit, requiring Mr Rush to perform the Sales Estimator role in addition to his own. He informed Mr Miscamble, Mr Tom Walsh, Director, and Mr Pham that he did not have any experience in the role of Sales Estimator. He was assured support would be provided and the worst-case scenario would result in the business employing a Sales Estimator.
Mr Rush stated that he had no inkling that his employment would be terminated. He had been training a new employee in early October 2022 while Mr Pham was overseas.
At 11:30am on 4 November 2022, Mr Pham asked to meet with Mr Rush. Mr Rush asked if he needed his laptop or notebook for the meeting and was told no. Mr Miscamble was in the meeting.
Mr Rush was informed at the meeting that he was capable of performing both the Sales Consultant and Sales Estimator roles, but the estimating had him ‘beaten down a bit’.
Mr Miscamble questioned him about the details of a potential purchase order which he had very recently been attempting to land a sale on. Mr Rush said that he was unable to provide much of the information sought by Mr Miscamble, as he had not received notice of the meeting.
Mr Miscamble stated that he didn’t like the way they were conducting business, and he didn’t like the way Yurika, a potential client, do business. He stated he wasn’t in the position of buying jobs and the business was not that desperate for work that it was going to turn around and buy jobs.
Mr Miscamble stated to him that he no longer wanted him working there, he wasn’t cutting it, and he didn’t have enough mongrel in him. Mr Rush responded, stating that he would take that advice under advisement. Mr Miscamble stated, “I don’t think you are understanding me, you’ve been pretty fucking useless at closing deals. Maybe it’s time you look for employment elsewhere?”
Mr Rush stated that Mr Miscamble did not allow Mr Rush to ask any questions and told him that he had made up his mind and didn’t want to sit there and argue the point. Mr Miscamble then began scrolling through his phone which Mr Rush understood meant that the meeting had concluded.
Later that day, Mr Pham said to Mr Rush, “Greg only comes in on Fridays if he’s dismissing someone.”
In the time leading up to his dismissal, Mr Rush stated that the Respondent had not expressed concerns with his performance, nor had it raised any negative feedback in his 3-month review. In relation to any warnings or discussions about his performance initiated by the Respondent, Mr Rush gave the following evidence:
Commissioner: Mr Rush, were these warnings issued to you?
Mr Rush: They weren't issued as warnings. It was all as you say, just - just a running conversation from 21/07 - so 21 July until my date of dismissal, I was performing two roles and, within that, every single Tuesday that Greg was in attendance, discussions were had around both of them. As Greg mentions, it is a very much team environment at James Engineering, and that first and foremost is getting quotes through the door. So without myself doing the quoting, with the removal of Mr (Indistinct) on 21/07, had I openly refused to do that estimator role, my role would have ceased to exist a lot earlier because I wouldn't have had anything to sell.
Commissioner: Did you think your employment was at risk by anything said in those sales meetings?
Mr Rush: No. Not at any stage.
On 4 October 2022, the Respondent hired Mr Thomas Croxson. Mr Rush provided evidence that Mr Croxson was placed under his direction and supervision, and that he was solely responsible for Mr Croxson’s training. Mr Rush argued that had the Respondent held genuine concerns about his performance at that time, it would not have entrusted him with these responsibilities.
Yurika negotiations
Mr Rush’s evidence is that on 3 November 2022, the day before he was dismissed, he was in a meeting with Mr Miscamble, Mr Pham and Mr Sean O’Brien, Projects Manager. Mr Rush had earlier informed Yurika that the Respondent could perform the work proposed at a cost of $914,000. Yurika’s representatives communicated that they had full authority to write a cheque and a purchase order for $850,000.
Mr Rush informed his colleagues of Yurika’s position, of their offer of $850,000, and left the decision for Mr Miscamble to make, as any profit margin less than 25% needs to be approved by the Respondent’s Directors. In oral evidence, Mr Rush stated that Mr Miscamble authorised the Respondent to offer to do the work for $879,000, saying that to do the work for $850,000 would provide a profit of only around 16%. Mr Miscamble instructed Mr Rush to inform Yurika that the Respondent was not in the business of buying jobs, so the work could not be done for $850,000.
Mr Rush telephoned Yurika whilst still in the meeting and said that the Respondent could do the work for $879,000. Yurika informed him that they would let him know by the end of the day of their decision. Ultimately, Yurika procured the services from a competitor.
In the determinative conference, Mr Rush gave the following evidence about the conduct of the Yurika negotiations:[2]
Mr Rush:They told me the price that they were willing to write a purchase order for and stated - - -
Commissioner: And what was that? How much was that for?
Mr Rush: That was 800,000.
Commissioner: Right.
Mr Rush: And that was to counter an offer from a competitor of 800,000, so they had approval to extend out 850,000 as we had not done work with them before, Commissioner, and this was getting them on board as a brand new customer as they are a part of Energy Queensland and a part of the government subsidiary for Energy, so it was an excellent opportunity to get them on board, get some work on board and, as they are a client that builds their own rooms as well, they were a direct competitor. Commissioner, it was a very rare opportunity. I presented all of this information to Hung - - -
Commissioner: Were they saying to you, 'If you can do the job for 800,000' - - -
Mr Rush: No, 850,000, Commissioner. That was the price that they had agreed upon.
Commissioner: But they told you, didn't they, that they had a quote from someone else for 800,000?
Mr Rush: Correct.
Commissioner: So 800,000 with a competitor?
Mr Rush: Yes.
Commissioner: But - - -
Mr Rush: They had the ability, Commissioner, to extend out to 850,000.
Commissioner: Is that what you were trying to do?
Mr Rush: Yes, and I had a meeting with Mr Pham and also Mr Miscamble on the Thursday the 3rd, along with our project manager, Sean O'Brien, to discuss this, and also Thomas Croxon, which is the new estimator that was hired, discussed all of this. I do - - -
Commissioner: What did you say?
Mr Rush: I mentioned everything that was discussed in the meeting on the 1st, the emails and the phone calls that had gone back and forward, and I put it in very plain terms that we had, you know, an order on a silver platter.
Commissioner: If your company could - - -
Mr Rush: If we could meet the price.
Commissioner: - - - do it for 850?
Mr Rush: 850,000, correct, Commissioner.
Commissioner: What internal chatterings had there been about your price beforehand?
Mr Rush: That we were too cheap to begin with because it was already under the amount that James - - -
Commissioner: Too cheap to deal with?
Mr Rush: No, too cheap to begin with, our offer. I think it was revision F. You have to forgive me, I don't have that in front of me, I don't have any James Engineering documentation. Our quote for revision F for Yurika was about 914,000.
Commissioner: Yes, so, internally, you had been trying to get more?
Mr Rush: Correct, correct.
Commissioner: Then you were saying, 'I think we can get the deal for 850'?
Mr Rush: I was more than confident, given the discourse, given the conversations with the customers, Commissioner, and everything, every phone call, every email that I had, I was more than confident that we could achieve the deal for 850,000 and open up to other work potential in the future.
Commissioner: Is that what you were asking: 'Can we get to 850?'
Mr Rush: Correct, Commissioner, yes.
Commissioner: And what was the feeling, what was said to you in response?
Mr Rush: 'Absolutely not.' I was told by Mr Miscamble that we would be buying the job, that we're not in the business of buying work, that we would be giving it away, we were operating at positive margins, but it's not the way that we do business, we're desperate for deals, but we're not that desperate.
Commissioner: Right. So he put the kybosh on it?
Mr Rush: Yes, and - - -
Commissioner: And said, 'No, not doing it for 850'?
Mr Rush: And the counteroffer was issued, Commissioner, at 879,000 that the client then rejected.
Commissioner: Who sent off the 879?
Mr Rush: I had made the phone call and - - -
Commissioner: Yes. You were authorised, were you?
Mr Rush: I was authorised by Mr Miscamble on the price in that meeting on the 3rd.
Commissioner: So he said 'No' to 850?
Mr Rush: Correct, Commissioner.
Commissioner: And he said, 'I authorise you to make an offer of 879'?
Mr Rush: Correct.
Commissioner: You went about and did that, did you?
Mr Rush: Correct, Commissioner.
Commissioner: And then what happened?
Mr Rush: And then the customer had to take that to their decision-makers and the phone call ended thereafter. So, I had following discourse with the customer the next morning. They - - -
Commissioner: This is the 4th now?
Mr Rush: The 4th, the Friday.
Commissioner: So you make that offer on the 3rd?
Mr Rush: Correct.
Commissioner: And, by the 4th, what happens?
Mr Rush: Unfortunately, the customer decided that, based on the extension of 50K from 800 to 850,000 that they were authorised, they could not get any more money towards it.
Commissioner: They couldn't go to 879?
Mr Rush: They couldn't go to 879.
Commissioner: Because you weren't at 850, you were at 879.
Mr Rush: We were at 879, Commissioner, correct.
Commissioner: Yes. The customer said 'No'.
Mr Rush: They said 'No'.
Commissioner: Right.
Mr Rush: And I made it very clear to both Mr Pham and also Mr Miscamble that we had this on a silver platter, how important this was, being Energy Queensland, and the fact that it was opening up a lot of doors that we hadn't been into before with a company that we hadn't dealt with that is a direct competitor but also could accelerate the business.
Commissioner: But you understand that your employer said no to 850?
Mr Rush: Correct.
Commissioner: They couldn't get there?
Mr Rush: Correct, and I was under instruction that I was not to take a cent under 879,000.
Commissioner: And that's what happened?
Mr Rush: Correct, Commissioner.
In response to further questioning from me regarding the Yurika negotiations, Mr Rush confirmed his position that he was instructed by the Respondent to offer $879,000:[3]
Mr Rush: So, Commissioner, I stick to what I said before, which was that I went in with the figure of 850 and I - if I'm able to give evidence of a quote that was said with the price that was offered of 879,000, I've turned around to Mr Miscamble and said that, 'It's only $29,000 between what they're asking for and what we're offering. It's not a lot of money. If we're able to do it, we have the order.' Mr Miscamble has then turned around and said - - -
Commissioner: Were you asking for your 50 - - -
Mr Rush: 850,000.
Commissioner: You were asking the company to shave 29,000 off?
Mr Rush: Correct, correct, off, so - - -
Commissioner: And they said 'No'?
Mr Rush: They said 'No' and the original conversation, Commissioner, was from 914,000 to 850,000. Their counteroffer following the meeting on Thursday the 3rd was that we would offer them 879,000. Prior to going into that, I did not have that figure. I stated to Mr Miscamble that it was only $29,000 difference and he said, 'Yes, but have you ever held that in your hand before?' - referring to the $29,000.
Commissioner: So you were trying - 29,000 - you were trying to get to 850 and you didn't get approval for that?
Mr Rush: Correct.
Commissioner: At the end of the day, the business went in with 879 and was unsuccessful?
Mr Rush: Yes.
Commissioner: Which is what happens in business; right?
Mr Rush: Correct.
Mr Rush stated that he worked on an excel spreadsheet, performing calculations in the meeting of 3 November 2022. He gave the following evidence:
Mr Rush:So we have a working Excel spreadsheet - sorry, James Engineering have a working Excel spreadsheet that I was to bring up in that meeting and calculate out all of the profits. So, I put 850 into the profit calculator and that come out at 16 per cent, which is what they were unhappy with. They then had me, while on the projector, put in 879 and, again from my memory - this was five/six months ago, so the numbers aren't exactly as sharp as they were - this come out about 21 per cent difference in profit, which is what they were happy to do.
So, I was under instruction to give the customer the price of 879,000 and they wanted me to do a bit of a shock tactic to call the customer, to not put anything into formal writing until the customer had been given the option of taking the 879,000 then and there, so I agreed, which now, I look back and think that I possibly could have excused myself, gone to a private room and made the phone call, which may have impacted this quite differently, as Mr Miscamble was unhappy with the result, but I made the phone call to the customer, the contact, and who I knew as the decision-maker for the decision-maker, the one that was going to be taking that forward, and then Mr Miscamble was unhappy with that.
Post-dismissal employment
In oral evidence, Mr Rush stated that he secured new employment on 16 November 2022. This is a period of less than two weeks from when he was dismissed with the Respondent. He was earning $65,000 per annum up until 31 December 2022, and from that date thereafter, was earning $71,000 per annum. His remuneration with the Respondent was $80,000 per annum plus commission.
Evidence of Mr Pham
Mr Pham rejected Mr Rush’s evidence that Mr Rush had informed the Respondent that Yurika had authority to pay $850,000. Instead, Mr Pham’s evidence was that Mr Rush advised Mr Miscamble that the Respondent would be successful in obtaining a purchase order from Yurika if the Respondent discounted its offer by $50,000. Mr Pham stated that the Respondent later learned that it was unsuccessful in securing the sale, and that the meeting of 4 November 2022 was to discuss the Respondent’s concerns surrounding this.
The following evidence was provided by Mr Pham at the determinative conference in relation to the Yurika negotiations:[4]
Mr Pham: The afternoon of 3 November, Mr Rush came to my office and he said, 'We can close the Yurika deal if we drop our price approximately about 50,000.' I don't remember exactly, but it's around that figure. 'From 914 to 879 is about 50,000 and we'll have to deal.' I said to him, 'I'm not - it's good that you've brought this to me because the director is in the board room, take that to him and tell Mr Miscamble what you just told me.' So he proceed into the boardroom. I follow in about 10/15 minutes later. Mr Rush stated to Mr Miscamble what he's just told me and I proceed to bring in the project manager, Sean O'Brien. Not only is the pricing issue, but it would be a production issue because we were quite busy at the time, so that's why I brought in Mr Sean O'Brien, to see whether we want to do this job at that price.
Commissioner: Do you all think at that meeting, 'Okay, if we win it at 479(sic), it's not great, but we're prepared to do that'? Is that where you land?
Mr Pham: Well, Commissioner, let me proceed a bit further. It's just he dropped the figure to the three of us, in front of us. Greg's exact words to myself and Sean at the time is, 'Can you guys do it for this? Sean, can we get this room out on that?' And I believe Sean's words at the time was, 'We're not in the business to do it for free, we're busy enough, we don't need the extra practice' and the final decision was Greg, myself and Sean were saying, 'All right, get the client on the phone and say we will drop the price by 50,000, or thereabouts.' So, Mr Rush got on the phone - and we can clearly say exactly what occurred is exactly what Mr Miscamble said - we said, 'We will drop the price to this amount.'
The fact that Mr Rush was undertaking the Sales Estimator role in addition to the Sales Consultant role did not contribute to his dismissal, according to Mr Pham.
Although Mr Pham stated that Mr Rush was performing at the time of the 3-month review, during the review he advised Mr Rush to start securing purchase orders, as this was the main purpose of Mr Rush’s employment. At the determinative conference, Mr Pham gave the following evidence with respect to his discussions with Mr Rush and the issue of warnings:[5]
Commissioner: And you never, Mr Pham, give him a written warning?
Mr Pham:I've never given him a written warning, but I have certainly made it in meetings, sales meeting - on a Monday sales meeting or on a Tuesday sales meeting, I've said exactly in effect to what Mr Miscamble was saying, 'We need sales and now that the project's finished, sales are going to drop off, you've got the six months' training and been out to see one or two customers' - not as many as I would like him to see - but the sales wasn't forthcoming quick enough.
…
Commissioner: So let’s weigh this up. A warning versus a dismissal: what's better for the employee?
Mr Pham: The ultimate, Commissioner - ultimately, he would have got a written warning. But that opportunity didn't arise.
Mr Miscamble: It did arise, you could have given him a written warning.
Mr Pham: Yes, sorry. Written, yes.
Mr Pham stated that he did not recall Mr O’Brien saying that the earliest start date for new orders was 1 March 2023.
It was stated that following the resignation of the Respondent’s former Sales Estimator, Mr Pham discussed with Mr Rush the fact that they would both be assuming the functions of that role until a replacement was hired. Mr Pham said that he advised Mr Rush on aspects of the role and informed him that undertaking the role would ultimately assist with his development in relation to his primary role of Sales Consultant.
Mr Pham denied that Mr Rush secured six sales, instead arguing that he had only secured two. According to Mr Pham, one of these sales was a repeat customer, while the other was secured with the assistance of the Respondent’s former Sales Estimator.
According to Mr Pham, Mr Croxson was not subject to the sole direction and supervision of Mr Rush. Mr Pham stated that it was intended that he would assume responsibility for Mr Croxson’s development upon returning from an overseas trip. In any event, Mr Pham said that he had ultimate responsibility for Mr Croxson, because he was required to approve any quotes made by Mr Rush.
Mr Pham rejected Mr Rush’s evidence that Mr Miscamble scrolled on his phone during the meeting of 4 November 2022, however left open the possibility that this occurred at other meetings. Mr Pham denied that Mr Miscamble swore at Mr Rush.[6]
Evidence of Mr Miscamble
Mr Miscamble did not file a written statement with the Commission but did provide evidence during the determinative conference.
Mr Miscamble gave evidence that, generally, he discouraged written warnings because it was his opinion that they are confrontational, cold and counterproductive.[7] Instead, he stated that he prefers to offer verbal advice. According to Mr Miscamble, the Respondent would meet with Mr Rush every Tuesday to discuss Mr Rush’s performance and “had nothing but disappointment”, and that both he and Mr Pham gave verbal warnings suggesting that Mr Rush needed to secure more sales.[8]
It was disputed that Mr Rush had informed the Respondent that the maximum price Yurika was willing to pay for its proposed purchase order was $850,000. Instead, Mr Miscamble’s evidence is that he was told by Mr Rush that an offer of $879,000 would secure the sale. In this respect, Mr Miscamble said:[9]
Mr Miscamble: The 879, I was told, would get the job, and I believe I overheard - I was party to a conversation in as much as I heard it on speaker where the 879 was rejected, or, well, they didn't reject it in front of me, they said, in fact, 'We'll have to refer to somebody to check this out.' But, as far as the decision-making goes in relation to commercial impacts and giving discounts to competitors - - -
Commissioner: Yes, so tell me who you say said that the 879 would get you the job.
Mr Miscamble: I believe Jeremey gave me that impression. It's a weird figure, it's not something I'd invent. With all due respect, 800-and - - -
Commissioner: Did he tell you that your competitor - - -
Mr Miscamble: I believe so.
Commissioner: One moment.
Mr Miscamble: That 800-and - - -
Commissioner: One moment. Did he tell you that the competitor was at 800,000, he was talking up 850 to the client, or they said that they could extend to 850? Did he tell you that?
Mr Miscamble: My recollection, Commissioner, is no. My recollection is that we had to match a price from a competitor. In my experience, nobody, especially a competitor, will pay 50,000 more for the privilege of dealing with me.
It was while listening to a phone call on 3 November 2022 between Mr Rush and Yurika that Mr Miscamble says he formed the view that Mr Rush had been dishonest. Mr Miscamble stated that during the phone call, Mr Rush put to Yurika the Respondent’s counteroffer of $879,000, down from $914,000, after which Yurika stated it would need to take time to consider the offer. Mr Miscamble stated that he had been led to believe by Mr Rush that Yurika would accept the offer $879,000 at this point. The fact that on 4 November 2022 Yurika confirmed that it would not be accepting the Respondent’s offer confirmed, in Mr Miscamble’s mind, that Mr Rush had not been truthful in his representations of Yurika’s position.[10]
Despite any prior concerns Mr Miscamble may have held in relation to Mr Rush’s performance, Mr Miscamble stated that but for the incident involving Yurika, he “probably” would not have dismissed Mr Rush.[11]
As to the conversation he held with Mr Rush on 4 November 2022, dismissing him, Mr Miscamble gave the following evidence:[12]
Mr Miscamble: Now, on that particular day, I asked Jeremey to come in, and there's only one person in the world that knows what I was thinking and that's me, and what I was thinking was, one particular contract that I'd been concerned about getting, I reached a conclusion, rightly or wrongly, that he had been untruthful to me, so not only was he being ineffective with his sales, in spite of his efforts, he was being untruthful, and I resolved at that moment, basically, to terminate him, but to do so in such a way that I said, 'Look, I don't think you're cutting it.' I can clearly remember saying that. I'm confident I wouldn't have sworn. I wasn't relaxed enough.
Notwithstanding all of that, I said to him, 'Look, I don't want to embarrass you, we'll keep paying you for a month or so until you get another job, you can come and go as you wish, you don't have to do anything, just use the place as a base to find alternative employment' and, at that stage, I assumed that at the end of that month or whenever he found a job, we'd then give him his entitlements and carry on from there, and I left that room under that impression. Now, that was a Friday.
On the Monday, I believe, he asked for a termination letter from Hung, which he took, and then we found ourselves here. He took his entitlements, I believe, and now we find ourselves here. And, furthermore, I'm confronted with this account of that meeting which paints me in a Dickensian sort of fashion as some sort of ogre and that is not the way I operate. I'm proud of what I've achieved in my life in business and I've always been an honourable person, always paid my bills, never had to answer to any commission or in any other situation before. A few times I've been plaintiffs against big corporations who don't want to pay their debts. That's my experience with the law. I get a few speeding fines occasionally, but this is a very instructive situation for me and I cannot describe to you the disappointment and the offence I take around this account of my character.
Mr Miscamble stated that after listening to Mr Rush’s phone call with Yurika on 3 November 2022, he was left ‘steaming’, and it makes him sick thinking about it, how reducing the Respondent’s offer to $879,000 did not secure the business.[13] He gave the following evidence:[14]
Mr Miscamble: The whole conversation, the way the guy reacted. He'd not said,, 'Meet this figure and we'll give you the job' at all. That's what I heard. And, rightly or wrongly, that's the way I felt and I made a decision, 'This guy is not telling me the truth.'
Commissioner: So you come back to you think if the business goes to 879, the client is going to say 'Yes'?
Mr Miscamble: Yes, absolutely. It make no sense otherwise.
Commissioner: And that's because Mr Rush said that to you?
Mr Miscamble: That's right. It makes no sense otherwise. With respect, Commissioner, you asked the question before, 'Is it relevant?' No, I don't think so. I think that's the short answer because, rightly or wrongly, I determined that Jeremey was dishonest and, if I made a mistake, that's what I think.
Commissioner: Dishonest about what? That if we go to 879, we will win this?
Mr Miscamble: That's an example.
Commissioner: Well, is that it?
Mr Miscamble: That's one.
Commissioner: I'm trying to figure out what the - - -
Mr Miscamble: No, no, that's right. I believe the guy is dishonest.
Commissioner: Because of that 'If we go to 879, we will win this'?
Mr Miscamble: Yes, absolutely.
Commissioner: That's it?
Mr Miscamble: And then I hear the conversation with the client. It's not been discussed at all. I could tell.
Commissioner: 879 won't win it?
Mr Miscamble: And, furthermore, the fellow that was supposed to be able to just say 'Yes, I'll give you a PO', 'Oh, no, I have to talk to somebody else', well, who's telling the truth here? I'm being misled by somebody.
Commissioner: You were on board up until you hear this conversation?
Mr Miscamble: Not on board. That's probably not the correct terminology.
Commissioner: Well, you were reluctant to get to 879.
Mr Miscamble: Absolutely.
Commissioner: But then you did get there.
Mr Miscamble: We did, after consulting with the team.
Commissioner: Is Mr Rush right, that you plugged in that it would return, you know, enough margin to make it worthwhile?
Mr Miscamble: Not really. I mean I went with the team view. My project manager and Hung, everybody wants to get the job, and when Jeremey says, correctly, that it was only 29,000, well, the first year I was at work, I earned $1200 and I suppose I was overpaid, but $29,000 is a serious matter in our business, you know, and these sorts of things just aggravate me, so I think this character's not right for this role, and that's the decision I made.
Commissioner: So you formed the view on 3 November that - I mean what if the next morning, you had been successful, if they had come up to 879?
Mr Miscamble: I would have thought, 'Well, maybe he was telling the truth.' But I was so sure he wasn't. I could just tell from the language that they were using, the way the guy reacted and, sure enough, that was the case.
Commissioner: Did he use the word 'counteroffer 879'?
Mr Miscamble: No. In my mind - I've sworn here - the 879 would get it. And it wasn't - as I said, it was only after consultation with the team to say, you know, 'Can you do this, do we really want this?' and they agreed, reluctantly, as you rightfully describe, 'Yes, reluctantly, we will accept it.' Then, no, the goalposts are moved again. In fact, they were never there.
Now, I might be wrong, but I'm entitled to make a mistake and make that decision and decide that Jeremey, that's the last chance saloon, we just can't succeed with this guy. So, I explained to him, 'You haven't got the ability to close a sale.' I remember clearly saying that, 'You don't have that character.' If I used the word 'mongrel', that sounds like me, because it's not a word you hear, 'But, to save the embarrassment, you're not going to be dismissed, you can stay here for a week or so - for a month - look for jobs under the auspices of still having one at James Engineering, in other words, you can go out and misrepresent the real situation to potential employers, alternatives, and say, "I'm leading hand at James Engineering and I'm interested in leaving the place, I want an opportunity"' and that's precisely the situation I had in hand when I left.
I was under the impression that it wouldn't be necessary to tell any of the staff, the rest of the team, that Jeremey's not up to scratch, to save his - to give him some dignity. He didn't have to do anything, he could come and go as he pleased in his efforts to get alternative employment and, for some reason, on the Monday, he chose, without any discussion with me, I believe just with Hung - - -
Mr Pham: On the Friday.
Mr Miscamble: On the Friday, was it? To get a dismissal, which I think you gave him on the Monday.
Mr Pham:Commissioner, to add onto that is, after the meeting and Mr Miscamble left on the Friday the 4th, Jeremey walked out downstairs, outside, he was on the phone, came back - I was still in the boardroom - came back. Yes, he was surprised, I was half surprised, and I'm not fending away from what I said, I did say, 'Well, you know Greg coming in on a Friday isn't a good thing' and - - -
Commissioner: 'Greg coming in on a Friday isn't a good thing'?
Mr Rush: He comes in to sack people, apparently.
Mr Pham: To sack people.
Commissioner: You said that?
Mr Pham:I sort of, in a way, say on that line, and towards the end of the talk Jeremey and I had, after that, he asked me, 'Can I have something in writing, dismissed, tangible, and effective Monday?' So, on the Sunday evening, I wrote him the termination letter, as he requested, because he wanted something in writing and tangible, and we offered him four weeks in lieu of notice. We paid him, which we pretty much paid everything we owed up to that date. I think it's more than generous because normally it should be one week or two weeks.
Evidence given by the parties in respect of how long the employment would have continued
During the determinative conference I inquired of the parties how long the employment would have continued but for Mr Rush being dismissed on 4 November 2022? Mr Rush answered that he would have continued to have been employed for 5-10 years. Mr Pham answered 6-12 months. Mr Miscamble answered five minutes.
Consideration
A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[15]
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
I am duty-bound to consider each of the criteria set out in the s.387 of the Act in determining this matter.[16] I will address each of the criteria set out in s.387 of the Act separately.
s.387(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)
When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:
“In its context in s.170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common-sense way to ensure that the employer and the employee are treated fairly.’”
However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[17]
The reason for the dismissal given by the Respondent in the Form F3 is as follows:
“The employer dismissed Mr Rush after 7 months of employment due to ongoing performance concerns. The employer is therefore compliant with the Small Business Fair Dismissal Code as the dismissal occurred within twelve months of his employment.”
Mr Miscamble denied during the determinative conference that he was under the impression he could dismiss Mr Rush with less than 12 months’ service and not face an unfair dismissal claim.[18] I do not, however, accept the evidence of Mr Miscamble.
The Respondent has acted in a way that it did think Mr Rush could be dismissed with only 7 months’ service. While it is noted that Mr Pham did not tick the jurisdictional objection box of not meeting the minimum employment period, he did tick the box of the employer complying with the Small Business Fair Dismissal Code. There would be no reason to cite Mr Rush’s 7 months’ service in answering the question at 2.2 of the Form F3, and then declaring that because he had less than 12 months’ service, the Code has been complied with if the Respondent didn’t wish to rely on what it thought was a protection. While Mr Pham was not sophisticated in the objection he was making, it demonstrates the Respondent’s thinking that it was protected in dismissing Mr Rush.
In oral evidence, Mr Rush stated that Mr Miscamble had insinuated on 4 November 2022 that Mr Rush had not been honest the day before in the Yurika negotiations. He was not able to give clear evidence as to how Mr Miscamble suggested he had been dishonest.
Mr Miscamble’s evidence is clear; he had formed a view on 3 November 2022 that Mr Rush was not suitable, and considered he hadn’t been honest in respect of the Yurika potential deal. He executed the termination of employment at the commencement of the meeting on 4 November 2022.
Where there is competing evidence between Mr Rush, Mr Pham and Mr Miscamble, I prefer the evidence of Mr Rush. His application was promptly made, his evidence clear (except at [57] above), and it was contemporaneously given. Mr Miscamble’s evidence was spontaneously given four months later, and he didn’t provide to Mr Rush or the Commission the courtesy of written evidence so that it could be considered before the determinative conference. Disturbingly, the first time the Commission learned of his distrust of Mr Rush was at the determinative conference.
Mr Miscamble stated in evidence that he was confident he didn’t swear at Mr Rush as he wasn’t ‘relaxed enough’. I consider that an odd thing to say. In any event, Mr Miscamble didn’t deny swearing, only that he was confident that he didn’t swear at Mr Rush. It would be a peculiar thing for Mr Rush to make up just days following his dismissal, and I note it was never disputed by the Respondent until the determinative conference in March 2023. Further, Mr Miscamble had stated that he was ‘steaming’ on account of Mr Rush’s phone call with Yurika on 3 November 2022. Accordingly, I do find that he swore at Mr Rush as claimed by Mr Rush.
I prefer Mr Rush’s evidence over Mr Pham’s. Where Mr Pham denied that Mr Miscamble swore at Mr Rush during the meeting of 4 November 2022, I do not accept his evidence. Mr Pham is subservient to Mr Miscamble and this was particularly evident during the determinative conference.
Mr Miscamble was affronted by Mr Rush’s application and bizarrely considered it better for an employee to be dismissed from their employment than be warned to improve their performance.
Having heard, for the first time in the determinative conference the real reason for the Respondent’s dismissal of Mr Rush, that being that Mr Miscamble considered Mr Rush was dishonest with respect to the Yurika negotiations, I consider that Mr Miscamble acted extraordinarily unreasonably to Mr Rush.
The facts are that Yurika had informed the Respondent that a competitor was quoting $800,000 for the job. Yurika inquired if the Respondent could drop its price to $850,000. Mr Miscamble told the Commission that would be a nonsense, as why would Yurika agree to $850,000 with the Respondent if it could secure the work for $800,000 with a competitor, however there may certainly be a very good reason why Yurika was prepared to secure the deal for $850,000 with the Respondent.
The Respondent’s costing was at $914,000 at the commencement of the day on 3 November 2022. I am satisfied that Mr Rush met with various managers, including Mr Miscamble, and was requested to input figures into an excel spreadsheet to calculate profit margins. The group settled on the amount of $879,000 which would provide a satisfactory, but not excellent profit margin on securing the work. It is not the $50,000 reduction that Mr Pham thought it might be.
I accept that Mr Rush was pressing Mr Miscamble and the other managers to reduce the Respondent’s pricing to $850,000, as he was suggesting that the difference was ‘only’ $29,000. Mr Miscamble, understandably, considered that to be a naïve and offensive strategy, as $29,000 is not, in Mr Miscamble’s view, a small sum of money to throw away, particularly as the Respondent was reducing its price from $914,000. I consider that at this point, Mr Rush lost credibility in the eyes of Mr Miscamble.
When Mr Rush was authorised to telephone Yurika and put the Respondent’s price of $879,000, Mr Rush was informed that the Yurika representative would need to seek its organisation’s views on that offer and would return with its position.
How Mr Miscamble came to blame Mr Rush for not securing the deal with an offer of $879,000 escapes me. His evidence to the Commission is effectively that Mr Rush was promising in some way that if the Respondent reduced its offer to $879,000, this would be accepted by Yurika. I do not accept that Mr Rush made any such promise. He would not need to if he was applying some pressure to Mr Miscamble to reduce the Respondent’s pricing to $850,000. Mr Miscamble’s assertion makes no sense.
On 4 November 2022, Yurika informed the Respondent it was not going to award the contract to the Respondent. This is understandable as Yurika had informed the Respondent it could go to as high as $850,000, yet the Respondent was at $879,000.
Mr Miscamble unfairly formed a view that Mr Rush had been deceitful. I do not find that at any time Mr Rush represented that the contract would be awarded if the Respondent quoted $879,000 to perform the work. If Mr Rush had said any of these things, a shrewd businessman such as Mr Miscamble could have easily tested that assertion with the highest Yurika had said it was prepared to offer to-date was $850,000. It was the Respondent representatives, instructing Mr Rush to play around with figures in the excel spreadsheet to come up with a suitable profit margin at $879,000; not a suggested figure from Yurika.
I accept that Mr Miscamble informed Mr Rush on 4 November 2022 that the Respondent was not in the business of buying jobs, and Mr Rush did not have enough mongrel in him to close deals. I accept that Mr Miscamble informed Mr Rush that he no longer wanted him working there. Mr Rush was confused and stated that he would take that under advisement, to which Mr Miscamble made his position explicitly clear when he said:
“I don’t think you are understanding me, you’ve been pretty fucking useless at closing deals. Maybe it’s time you look for employment elsewhere?”
Mr Miscamble’s cessation of Mr Rush’s employment was completed with the provision of a termination letter from Mr Pham some days later. I am of the view that Mr Miscamble was annoyed with Mr Rush with the time wasted on trying to secure a low-return deal. It had not been successful, and he had lost confidence in Mr Rush’s ability to price and close the deal.
I am not satisfied that Mr Miscamble’s annoyance, less than 24 hours old from 3 November 2022 to 4 November 2022, constitutes a valid reason for the dismissal. For the sake of clarity, I do not find that Mr Rush was dishonest.
Mr Miscamble’s evidence is but for this issue, Mr Rush would continue to have been employed, so this incident was the reason for the dismissal.
s.387(b) – Whether the person was notified of that reason
Mr Miscamble informed Mr Rush that he was annoyed with the Yurika deal, including the way Yurika handled the negotiations. He informed Mr Rush he didn’t have enough mongrel in him to close deals, and the Respondent was not going to buy jobs by performing at an unsatisfactory profit margin. The evidence is not entirely clear as to how Mr Miscamble accused Mr Rush of dishonesty in the way he handled the negotiations.
Where Mr Rush then became confused, Mr Miscamble explained that he considered Mr Rush to be pretty fucking useless at closing deals. I am satisfied that Mr Miscamble explained, in part, the reason for his decision to terminate his employment.
s.387(c) – Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
Mr Miscamble’s evidence is that he was very upset on the afternoon of 3 November 2022 after listening to Mr Rush’s call with representatives of Yurika. He made up his mind to dismiss Mr Rush and did so at the meeting of 4 November 2022. I am not satisfied that Mr Rush had an opportunity to respond to the reason put by Mr Miscamble prior to him being informed of the dismissal.
s.387(d) – Any unreasonable refusal by the employer to allow the person to have a support person present to assist any discussions relating to the dismissal
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussions relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them”.
Mr Rush was not unreasonably refused a support person to attend the meeting on 4 November 2022.
s.387(e) – Was there a warning of unsatisfactory work performance before dismissal
Mr Miscamble and Mr Pham stated in evidence that they had provided verbal warnings on a weekly basis to Mr Rush in the months leading up to the dismissal. I consider the weekly meetings held to have been sales meetings where a range of matters were discussed. I accept Mr Rush’s evidence that he was not provided with verbal warnings at these meetings; he was provided with encouragement and expectations.
Mr Miscamble’s own evidence is that it is unkind to give warnings to employees. I am astounded that he considers termination of employment a better proposition for an employee than performance counselling and providing to employees a warning.
s.387(f) – Whether the respondent’s size impacted on the procedures followed and s.387(g) – whether the absence of a dedicated human resource management specialist impacted on the procedures followed
The Respondent and associated entities together constitute a medium-sized group of businesses. Having heard the evidence of Mr Miscamble and Mr Pham in respect of their human resources practices, I am satisfied that the absence of a dedicated human resource management specialist impacted on the procedures followed.
s.387(h) – Other matters
I do not consider that there are any other matters to take into account.
Conclusion
I have determined that there was not a valid reason for the dismissal.
I consider that the Respondent informed Mr Rush of the reasons for the dismissal, albeit the reason of dishonesty was not a substantive part of the conversation.
I have determined that Mr Rush was not given an opportunity to respond to the reasons for the dismissal that were put to him.
There was no unreasonable refusal by the Respondent to allow Mr Rush a support person.
Mr Rush was not issued any warnings of unsatisfactory work performance before the dismissal. I have stated that I am not satisfied that Mr Rush was informed of verbal warnings to improve his performance.
The size of the Respondent’s enterprise did not impact on its processes. I accept that there was an absence of a dedicated human resource specialist which did impact on the procedures followed.
I determine that Mr Rush’s dismissal was harsh, unjust and unreasonable.
Remedy
Section 390 of the Act reads as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
Mr Rush is a person protected from unfair dismissal for the Act’s purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.
Mr Rush has found other suitable employment and has no desire to be reinstated. I am satisfied it is inappropriate to order reinstatement.
Compensation
Section 392 of the Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
Authorities
The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.[19] That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;[20] Jetstar Airways Pty Ltd v Neeteson-Lemkes[21] and McCulloch v Calvary Health Care (McCulloch).[22]
I have had regard to the above authorities.
The effect of the order on the viability of the Respondent
The Respondent did not submit that an order of compensation would affect the viability of the Respondent.
The length of Mr Rush’s service
Mr Rush was employed for a period of approximately seven months. This is a very short period of time.
The remuneration that Mr Rush would have received, or would have been likely to receive, if he had not been dismissed
I consider that Mr Rush would have likely to have remained employed for a period of eight weeks. I accept that Mr Miscamble had, by 3 November 2022, lost confidence in Mr Rush’s ability. If Mr Rush was unable to turn that perception of him around, and not secure future sales, the employment would not have lasted beyond eight weeks, and I am satisfied would have concluded by the end of the calendar year.
I find that Mr Rush would have received eight weeks’ remuneration at the rate of $80,000 per annum. I have not had regard to commission earned as this is a contested matter to be determined by a court in respect of how the contract should be read with respect to commission.
At a rate of $1,538.46 per week, Mr Rush would have earned $12,307.68 had he not been dismissed.
The efforts of Mr Rush (if any) to mitigate the loss suffered because of the dismissal
I am satisfied that Mr Rush made every effort to mitigate his loss by applying for appropriate roles. He very quickly found suitable alternative employment, commencing less than two weeks following the dismissal. The remuneration in that role relevant to the period in the eight weeks following the dismissal was $65,000 per annum, or a rate of $1,250 per week. He was, in fact, by evidence of his payslips, paid $246.21 per day.
The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation and the amount of any income reasonably likely to be so earned by Mr Rush during the period between the making of the order for compensation and the actual compensation
Mr Rush was paid by the Respondent one months’ pay in November 2022, with $1,555.56 constituting wages for the period between 1 November 2022 and the dismissal, and a further $5,111.11 representing the balance of the month as notice in lieu. The Respondent was obliged to pay only one weeks’ wages in lieu of notice, but instead, paid substantially more to Mr Rush. I consider it appropriate to only have regard to the amount of $5,111.11 paid as notice as remuneration earned following the dismissal.
In the eight weeks following the dismissal, a period of time up until 30 December 2022, Mr Rush worked between 16 November 2022 and 30 December 2022. This amounts to 33 working days in his new employment, totalling an expected amount of $8,124.93. Mr Rush’s payslip from 1 January 2023 demonstrates that his year-to-date payments had been $8,305.55 ($14,222.22 less $5,916.67), covering the period 16 November 2022 to 31 December 2022. If the one day for 31 December 2022 at an amount of $246.21 is removed from the calculation, it comes to $8,059.34 he was factually paid for the period 16 November 2022 to 30 December 2022.
Other relevant matters
I have already taken into account Mr Rush’s very short period of service in determining how likely he would have remained in the employment had he not been dismissed. I do not consider there are other relevant matters affecting the amount of compensation to be awarded.
Misconduct reduces amount
Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.[23]
I am not satisfied that Mr Rush engaged in any misconduct. Accordingly, I cannot be satisfied a reduction should be made.
Shock, distress etc. disregarded
I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Rush by the manner of the dismissal.
Compensation Cap
I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
The high income threshold immediately prior to the dismissal was $162,000, and the amount for 26 weeks was $81,000. The amount of compensation the Commission will order does not exceed the compensation cap nor the amount that Mr Rush was entitled to during the 26 weeks immediately before the dismissal.
Payment by instalments
I canvassed with the parties during the determinative conference if any compensation to be ordered to be paid ought to be by way of instalments. I foreshadowed that the decision would be reserved for quite a number of weeks, and accordingly the Respondent accepted that instalments would not be necessary.
No order of compensation
I have determined that Mr Rush would have been likely to receive $12,307.68 in remuneration if he had not been dismissed. From this amount it is necessary to make a deduction of $5,111,11 on account of the balance of November 2022 having been paid to him, and a further deduction of $8,059.34 on account of remuneration earned by him in the period I consider he would have remained employed by the Respondent. The deductions total $13,170.45.
On account of Mr Rush having so successfully mitigated his loss and earning substantial remuneration in new employment in the month of November 2022, albeit at a lesser rate, and also being in receipt of payments from the Respondent in the same month, the calculations demonstrate that there can be no award of compensation to Mr Rush.
Mr Rush has been unfairly dismissed, however I decline to make an order for compensation.
COMMISSIONER
Appearances:
J. Rush on his own behalf
G. Miscamble and H. Pham for the Respondent.
Hearing details:
2023
Brisbane
22 March
[1] Transcript PN 818.
[2] Transcript PN 205 – 273.
[3] Transcript PN 414 – 426.
[4] Transcript PN 343 – 345.
[5] Transcript PN 409 – 410, 585 – 588.
[6] Transcript PN 144.
[7] Transcript PN 148, 150.
[8] Transcript PN 387, 389.
[9] Transcript PN 279 – 287.
[10] Transcript PN 369 – 377.
[11] Transcript PN 396 – 397.
[12] Transcript PN 150 – 152.
[13] Transcript PN 363.
[14] Transcript PN 450 – 488.
[15] (1995) 185 CLR 410, [465].
[16] Sayer v Melsteel [2011] FWAFB 7498 at [20]
[17] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[18] Transcript PN 402.
[19] (1998) 88 IR 21.
[20] [2013] FWCFB 431.
[21] [2014] FWCFB 8683.
[22] [2015] FWCFB 2267.
[23] Crawford v BHP Coal Pty Ltd[2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc.[2013] FWCFB 762, [83].
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