Jesse Roberts v McReag Pty Ltd T/As McDonald Real Estate Aspendale Gardens

[2013] FWC 5505

[2013] FWC 5505

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jesse Roberts
v
MCREAG Pty Ltd T/As McDonald Real Estate Aspendale Gardens
(U2013/7753)

COMMISSIONER BISSETT MELBOURNE, 23 AUGUST 2013

Application for relief from unfair dismissal.

[1] This is an application by Mr Jesse Roberts (the Applicant) for relief from unfair dismissal. Mr Roberts was employed by MCREAG Pty Ltd T/A McDonald Real Estate Aspendale Gardens (the Respondent).

[2] The Applicant was most recently employed by the Respondent as a sales consultant to prospect an area in Melbourne’s south-east. He was employed by the Respondent in an administrative role prior to taking on the sales function.

[3] The Applicant commenced employment with the Respondent on 25 July 2011. His employment was terminated on 1 March 2013.

[4] The Applicant says the reasons given for the termination of his employment included: signing into the office database under an administrator account and granting his own user account access to all other agents ‘notes’ on prospective buyers; removing a prospective vendor from another sales agent’s accessible contacts so that it was only accessible by him; and failing to give notice that he would not attend work on 28 February 2013 (the previous day).

[5] The Respondent says that the Applicant had a pessimistic attitude as to how the business was run, sent an email to staff in which he discussed other staff in a malicious way, he referred to Mr Choi (the owner of the business) and others as ‘fake and negative’, he skipped a team lunch with no reason, he accessed the work data base to give himself access to other sales agent’s ‘notes’, he removed a prospective vendor from another agent’s accessible contacts, he failed to participate in ‘prospecting sessions’ conducted three times per week and he failed to attend work the day before he was dismissed without calling the office.

[6] Evidence was given in the proceedings by Mr Roberts on his own behalf and by Mr Michael Choi, Ms Haiyun Lin and Ms Kerri Skews for the Respondent.

[7] Mr Roberts represented himself and the Respondent was represented by Mr Choi, its Director.

Legislative provisions

[8] There is no dispute that Mr Roberts is protected from unfair dismissal. He has completed the minimum period necessary to enable him to make an application for unfair dismissal and is covered by a modern award (s.382).

[9] It is not argued that the dismissal of Mr Roberts was a genuine redundancy or that it was consistent with the Small Business Fair Dismissal Code (although I accept that the business may be a small business within the meaning of the Act).

[10] Further, I am satisfied that the Applicant was dismissed from his employment.

[11] In determining if the Applicant was unfairly dismissed (s.385) it is necessary to determine if the dismissal was harsh, unjust or unreasonable. For this purpose it is necessary that I consider each of the matters set out in s.387 of the Act:

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.

Harsh, unjust or unreasonable

A valid reason

[12] In his evidence Mr Choi says that he terminated the Applicant’s employment because:

(i) he had negative attitude; 1

(iii) he sent an inappropriate email constituting gross misconduct. 3

[13] These appear to differ from the reasons Mr Roberts says were given to him at the time he was dismissed which, in addition to those above, included:

(iv) not attending work on 28 February 2013; 4

(v) excessive downloads on the work computer over Christmas/New Year 2012; 5

(vi) seeking alternative employment 6

[14] Because of the lack of clarity as to which conduct may have contributed to the reasons for dismissal of the Applicant I have dealt with each of the reasons listed above.

Negative attitude

[15] The Respondent says that the Applicant had a negative attitude and that around February 2013 he discussed with the Applicant the need to change his attitude as it was not acceptable. 7 The Applicant believes that comments of his negative attitude related to some staff photos in which he was not smiling.

[16] Ms Skews’ evidence is that the Applicant failed to participate in compulsory ‘prospecting’ sessions at work; his appearance was at times not as it should be; and that there was a part of him that only did what he wanted to do. Ms Skews’ evidence was not put to the Applicant. It may be indicative of an attitude of the Applicant, but I cannot draw any conclusion based on this.

[17] There was little substantive evidence put before me that would enable me to conclude that the Applicant had a negative attitude. The Respondent provided photos of the office sales staff in which the Applicant was not smiling. I am not convinced that there is any general inference I can draw of the Applicant’s attitude from this. It is true that in the staff photo the look on the Applicant’s face detracts from the photo but there is no general conclusion that can be drawn in support of the Respondent’s claim. In any event the Applicant was never asked why he was not smiling in the photos. He may have had a legitimate reason, he may not. The photo on its own is insufficient evidence to establish the attitude of the Applicant to his work.

[18] I find I can make no decision as the whether or not the Applicant had a negative attitude.

Changing access to computer records

[19] It is said that the Applicant, using administrator access to the office computer system altered the access of other sales staff to ‘notes’ held on the system of a potential vendor. In particular the Respondent says that the Applicant altered access on the work computer so that Mr Samuel Choi (Samuel) and Mr Nathan Arrowsmith (Nathan) could no longer access the potential vendor’s details and only the Applicant could. This could deny Samuel and Nathan potential income if they had secured the vendor.

[20] Mr Choi, in his evidence, produced a ‘screen shot’ from the office computer 8 that shows that the Applicant (named as Genevieve Hill as she replaced the Applicant on the system after the dismissal) had dealings with the particular client on 15 November 2012. On 21 February 2013 Samuel contacted the client. Later that day the Applicant contacted the client as well. On 27 February Nathan appears to have been added as having access to the record, this apparently done by Ms Skews.

[21] Mr Choi’s evidence is that the Applicant altered access on 21 or 22 February because when Samuel tried to access the record on 22 February he could not. 9

[22] The Applicant admits that he was annoyed that Samuel had contacted his prospective vendor. 10

[23] Again limited evidence of any probative value was provided on this matter. I accept that the Applicant was annoyed that Samuel had contacted a person he considered to be his client. Had the client decided to sell his property the Applicant would have made a commission. Had the property been sold by Samuel, Samuel would have earned the commission.

[24] There is no conclusive, reliable evidence as to when Samuel’s access was taken away. Mr Choi says Samuel could not access the information on 22 February 2013 but there is nothing in the material supplied by the Respondent that shows this is when the change occurred. I accept however that the Applicant was annoyed that Samuel had contacted a potential vendor that he took as his own. Other evidence, in particular the email discussed below, indicates that the Applicant had a level of antipathy to Samuel.

[25] On balance I am satisfied that the Applicant did alter Samuel’s access. I cannot conclude with any certainty when this occurred. He was annoyed with Samuel and believed the client was his and that it was inappropriate that Samuel contact him.

Sending an inappropriate email

[26] Mr Choi’s evidence is that on 19 February 2013 the Applicant sent an email to two co-workers which said:

Just a few more tips on how to be a top agent from my new book released in a couple of months:

This morning I heard the ‘top agent’ telling a pro vendor that without skipping a beat he works 16hrs a day, 6 days a week plus half day Sundays.

And I thought to myself, to be a ‘top agent’ maybe you don’t have to work the hours, just be full of shit and tell people you do.

But then I heard the lowest writer for the year tell a provender that he souly kept ray white doors open with all his listings, and because he left they shut down.

And I thought to myself, well it doesn’t work for him so maybe the whole bullshitting to provendors doesn’t work!

And then it dawned on me...To be the ‘top agent’ you need to work for your brother, so you get hand fed listings and sales while the rest if your team fights for themselves.

And there we have it, keep your eyes out for my new book ‘real estate for pretentious pricks’ released April 1st.

Jesse Roberts

Sales Consultant

McDonald Real Estate Aspendale Gardens 11

(sic)

[27] Mr Choi’s evidence is that, in the email, the Applicant is

...saying that the business and myself is favouring people and that’s polluted. Firstly, it’s not true so when you create these kind of seeds and you take those into other sales consultants’ heads, they start questioning whether or not they’re in the right work environment and could seek further appointment at other places and my business all relies on my retention of my salespeople, not firing but retention. 12

[28] Mr Choi’s evidence is that he spoke to the Applicant about the email about a week after it was sent. He says however that he didn’t ‘actually go into much because from that I was like, “This is unacceptable. I’ll just have this up my sleeve,” so to speak.’ 13

[29] The email was not put to the Applicant and he gave no evidence on it. I am satisfied that the Applicant did send the email. He was aware, by the materials filed prior to the hearing by the Respondent that the Respondent intended to rely on the email.

[30] The email is childish, ill-conceived and the language intemperate in places. It directly puts into question the integrity of his employer. It is, by any account, inappropriate conduct warranting some reaction from the Respondent.

Not attending work on 28 February 2013

[31] The Applicant did not attend work on 28 February 2103. He believes this was a reason for his dismissal.

[32] The Applicant produced an exchange of text messages between himself and Mr Choi from that day commencing at 8.15am and concluding not that long thereafter on that day. 14 Those text messages are:

Roberts to Choi

Michael I’ve done something to my back, slipped a disc or pulled something, I can’t move. If I bend my lower back its agonizing. Any stretch I can do? At this stage I can’t even get up from the bed

Choi to Roberts

I’m not sure. Best to rest. See a chiro. And maybe go to the pool and swim. This will take gravity/weight off your back. So your not coming in today?

Roberts to Choi

I’m not sure, I’m trying my best too, I have appointments today so I need to, trying to stand up first tho

Choi to Roberts

I can do your apps. What r they?

Roberts to Choi

6:30 with Nathan at Portland, he has a buyer coming and I have a buyer coming. Buyer’s number is on my desk...

(sic)

[33] Mr Choi says the text messages do not make clear that the Applicant is not coming to work and, in fact, the Applicant did not attend work.

[34] I find on the basis of the text messages that it was clear that the Applicant, in all probability, would not be coming to work. At worst the Respondent knew that it was possible the Applicant was not coming to work, after all Mr Choi offered to take the Applicant’s appointment. Mr Choi was in communication with the Applicant and could easily have clarified the situation had he some fear that the Applicant was not coming in when he was expected. Whilst I find that the Applicant did not attend work on 28 February I find that he was in communication with the Respondent and it was evident it was unlikely the Applicant would be at work.

Excessive downloads on the work computer over Christmas/New Year 2012

[35] Ms Lin’s evidence is that the communications invoice for the Respondent dated 9 January 2013 showed an unusually high internet usage with an associated charge of $596. 15 This could be contrasted, in Ms Lin’s evidence, with a ‘normal’ bill where there was no charge for internet usage.16 On receipt of the invoice Ms Lin says she contacted Commander (the Respondent’s provider) who provided her with a usage report for December 2012.17

[36] Ms Skews gives evidence that only she and the Applicant were in the office over the Christmas/New Year period and that she saw movies being downloaded onto the Applicant’s computer during this time. 18

[37] The Applicant admits that he did download videos to his computer 19 but denies he downloaded 200 gigabytes. The Applicant also says that a person from the cafe next door to the office had the wireless password for the office system.

[38] The Respondent provided information on internet browsing history and download history taken from the Applicant’s computer. The Respondent says that this material was put together by the Respondent’s IT consultant. It shows extensive browsing of movie titles particularly around the Xmas/New Year period. 20 As to the material that is said to show the download history21 it is difficult to draw any conclusions from this. This material was not put to the Applicant to enable him to respond to it.

[39] The Respondent says that the Applicant was aware of the Respondent’s internet policy and produced evidence of the Applicant signing off on the policy. 22

[40] On the basis of the admission of the Applicant I am satisfied that he did download videos from the internet using the resources of the Respondent. There is no basis on which I could conclude that some unknown person from the cafe next door may have been responsible for some of the downloads over the period in question. It is not suggested that Applicant was responsible for the total December download usage of 220 gigabytes. I am satisfied however that he was responsible for a substantial portion of the downloads between 27 December 2012 and 2 January 2013.

[41] Further I am satisfied that the Applicant was aware of the Respondent’s policy on internet usage. Even if he was not, there is no basis on which the Applicant could have concluded that it was permissible to use the Respondent’s resources to download videos for his private use.

[42] I am satisfied that the conduct complained of did occur.

Seeking alternative employment

[43] Whilst the Applicant suggests this was a reason for the termination of his employment the Respondent has not raised it in any material or submissions. Mr Choi admits he was having discussions with Ms Hill about her commencing work with the Respondent. There is nothing to suggest the Applicant’s employment was terminated to allow Ms Hill to be recruited. There is even less evidence that the Respondent terminated the Applicant’s employment because he was seeking alternative employment.

[44] This is not a matter I consider relevant to the issue I need to decide.

Conclusion

[45] For a reason to be valid it must be sound, defensible and well founded. 23 None of the instances of conduct described above, by themselves, provide a valid reason or the dismissal of the Applicant.

[46] In Rode v Burwood Mitsubishi a Full Bench of the AIRC held that ‘the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.’ 24

[47] On the basis of my findings with respect to each of the instances of misconduct I do not find they provide, on an objective analysis, a valid reason for the dismissal of the Applicant. Further, I do not find that collectively the conduct provides a valid reason for dismissal.

[48] Each of these issues may have been an irritant to Mr Choi and some of them did, certainly, warrant that they be raised with the Applicant. Perhaps they even warranted a warning (this may be particularly true of the email and downloads) but they do not provide a valid reason for the dismissal of the Applicant.

Was the person notified of the reason for dismissal?

[49] The Applicant was not notified of the reason for dismissal until the meeting on 1 March 2013 when he was dismissed. He was certainly not notified that any of the incidents relied of the by the Respondent may lead to dismissal such that he could provide some defence to them.

[50] Mr Choi states in his evidence that he did not raise computer access issue with the Applicant prior to his dismissal, 25 he briefly raised the ‘negative attitude’ with the Applicant in February and, whilst he mentioned the email he was keeping it up his sleeve for when he spoke to the Applicant.26

[51] In these circumstances I find that the Applicant was not notified of the reason for dismissal.

Was the person given an opportunity to respond?

[52] The meeting at which the Applicant was dismissed went for about seven minutes on the evidence of both the Applicant and Mr Choi.

[53] I accept the Applicant’s version of what occurred at the meeting – that he was told he was being dismissed and the reasons were then given. That Mr Choi may have asked for any response after having advised the Applicant that he was dismissed is too late. An opportunity to respond must be given before the decision to terminate is made. That did not occur in this case.

Support person

[54] The Applicant was not advised that he was being called to a meeting to discuss his future employment. The meeting itself went for about seven minutes.

[55] The Applicant was given no opportunity to arrange a support person. The meeting on 1 March 2013 was held without any notice of the purpose of the meeting. In these circumstances I am prepared to find that there was, by the actions of Mr Choi, an unreasonable refusal to allow the Applicant to have a support person present.

Unsatisfactory performance

[56] The Applicant was not dismissed for performance related issues.

The size of the employer’s undertaking

[57] The Respondent is a small business. I accept that the size of the Respondent’s business and the absence of dedicated human resources would have impacted on the processes used to effect the dismissal of the Applicant. Being a small business is however no excuse for denying an employee procedural fairness in the dismissal process.

Any other matters

[58] I accept that Mr Choi provided additional support to the Applicant to enable the Applicant to establish himself in the industry. This included buying suitable clothes for the Applicant.

Conclusion as to harsh, unjust or unreasonable

[59] In all of the circumstances, particularly the lack of a valid reason for the dismissal but also the lack of procedural fairness, I find the dismissal was harsh, unjust and unreasonable.

Conclusion as to unfair dismissal.

[60] I find that the Applicant was unfairly dismissed.

Remedy

[61] The Applicant does not seek reinstatement and in the circumstances I do not consider reinstatement appropriate. It is therefore necessary that I consider compensation.

[62] In determining appropriate compensation the Act states:

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.

Consideration

[63] The Applicant commenced employment with the Respondent on 25 July 2011. His employment was terminated on 1 March 2013, 19 months after he commenced. He was initially employed as an assistant to the Director but in October 2012 was promoted to a sales consultant. He had occupied this position for four months when he was dismissed.

[64] At the time his employment was terminated the Applicant was being paid $16.56 per hour ($629.28 per week) retainer. The retainer was offset against commissions earned. 27

[65] The Applicant says that in the six months prior to the termination of his employment he ‘took home a total of $36,000 in commission.’ 28

[66] Information provided at my request by the Respondent as to the earnings of the Applicant do not suggest that the Applicant took home $36,000 in commissions in addition to the base pay. In an effort to resolve the question of what the Applicant did earn in the 2012/13 financial year I requested that the Applicant provide me with a copy of his group certificate for the period ending 30 June 2013. This information shows that the Applicant earned $35,097 in the period 1 July 2012 - 1 March 2013 when his employment ended. This suggests that Applicant was earned $1012 per week prior to his dismissal. I shall use this figure as the basis of my calculations.

[67] Given the Applicant’s brief period of employment in the role of sales consultant with the Respondent, and the indication of conduct issues that were starting to cause concern for the Respondent, I estimate that the Applicant would have remained in employment with the Respondent for no more than a further three months.

[68] On the basis of the material supplied by the Applicant I therefore estimate that the Applicant would have earned $12,144 had it not been for the termination of his employment.

[69] The Applicant has advised that he commenced employment in his new position with Ray White Mordialloc on 11 March 2013. The Applicant was effectively out of work for a one week period. The Applicant is being paid $16.55 per hour in that position. For the three month period since he was employment was terminated by the Respondent the Applicant has earned $6,918. The Applicant has suffered a loss of earnings because of the termination of $5,226.

[70] The evidence of the Applicant is that he commenced looking for work in the real estate industry as soon as he was dismissed by the Respondent. In the absence of any evidence to the contrary and that he had secured employment within one week of being dismissed I am prepared to accept that the Applicant took appropriate steps to find alternative employment and mitigate any loss.

[71] I do not consider it necessary to reduce the amount I order should be paid to the Applicant for contingencies. He was available to work at all times during the period he was not working.

[72] I do not consider the order I intend to make will adversely affect the Respondent.

[73] There are no other matters I believe require consideration.

[74] Whilst the Applicant’s conduct contributed to the reason for his dismissal his misconduct did not warrant the response it received from the employer. I have however found that there was misconduct (with respect to the email) and it did contribute to the decision of the Respondent to dismiss the Applicant. Taking into account the misconduct, and the relatively minor nature of it, I have reduced the amount that would otherwise be payable to the Applicant by 5%.

[75] I have made no payment for shock, distress or humiliation. The amount I intend to award the Applicant is not above the compensation cap.

[76] I therefore award the Applicant a total payment of $4,964 in compensation. This amount should be taxed as required by law. An order to this effect is issued in conjunction with this decision.

COMMISSIONER

Appearances:

Roberts, J on behalf of himself, the Applicant.

Choi, M for the Respondent.

Hearing details:

2013.

Melbourne;

6 August.

 1   Transcript PN363. See also transcript PN34.

 2   Transcript PN364.

 3   Transcript PN368.

 4   Transcript PN33

 5   Transcript PN34

 6   Transcript PN64.

 7   Transcript PN440.

 8   Exhibit R3, attachment J.

 9   Transcript PN408.

 10   Transcript PN98-101.

 11   Exhibit R3, attachment F,

 12   Transcript PN370.

 13   Transcript PN375.

 14   Exhibit A2.

 15   Exhibit R1, attachment 1, page 4 or 5.

 16   Exhibit R1, attachment 1, page 5 or 5.

 17   Exhibit R1, attachment 1, page 2 or 5.

 18   Transcript PN513.

 19   Transcript PN445.

 20   Exhibit R5.

 21   Exhibit R4.

 22   Exhibit R6.

 23   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 24   Print R4471, [19].

 25   Transcript PN380.

 26   Transcript PN375.

 27   Transcript PN39.

 28   Transcript PN41.

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