Jillian Spencer v Local Blue Pages
[2010] FWA 2415
•23 MARCH 2010
[2010] FWA 2415 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jillian Spencer
v
Local Blue Pages
(U2009/12351)
COMMISSIONER GOOLEY | MELBOURNE, 23 MARCH 2010 |
[1] This decision concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Ms Jillian Spencer alleging that the termination of her employment by AMBD Pty Ltd trading as Local Blue Pages (Local Blue) was harsh, unjust or unreasonable.
[2] The application was lodged in Fair Work Australia on 24 September 2009. On 7 October 2009 the Respondent lodged a Form F3—Employer’s Response to Application for Unfair Dismissal Remedy.
[3] On 12 October 2009 the matter was listed for conciliation at Fair Work Australia by telephone. The conciliation was not successful and the matter was listed for hearing on 4 and 5 February 2010.
[4] Directions were given for the filing of an outline of submissions and witness statements by both the applicant and respondent. The applicant filed an outline of submissions and her witness statement and statements addressed “to whom it may concern” by Ms Petsinis, Mr Lee Mr Ramor, Mr Gannon, Mr Shehata and Ms Lower. Solicitors for the employer filed a statement of Mr Papas and a statement addressed “to whom it may concern” from Mr Gazzard and Mr Nicola but did not file an outline of submissions.
[5] At the hearing on 4 February 2010, Ms Spencer represented herself and Ms Jardine of counsel appeared with leave on behalf of Local Blue. Mr Lee, Ms Petsinis and Ms Spencer gave evidence for the applicant and Mr Papas and Mr Gazzard gave evidence for Local Blue. I had no regard to documents filed with the Tribunal that were not tendered as evidence.
[6] I decided, upon consultation with the parties, to conduct the proceedings as a Hearing.
Background
[7] Ms Spencer commenced employment with Local Blue as a sales consultant in February 2008. 1 Mr Papas is the Sales and Marketing Manager for the Respondent.2
[8] Ms Spencer was provided with a contract of employment 3, which set out the terms and conditions of her employment including key performance indicators (KPI’s), one of which was to achieve a personal budget of $10,000 per week. Ms Spencer was to receive 17% commission with a minimum retainer of $865 per week. The contract provided that “the company reserves the right to terminate this contract if these requirements are not met.” The contract was for a twelve month period with a three month trial. The contract was signed by Ms Spencer on 21 February 2008.
[9] In August 2008 Ms Spencer tendered her resignation from Local Blue. 4 Ms Spencer resigned because she had a nil week in June or July 2008. Mr Papas persuaded Ms Spencer to withdraw her resignation. Ms Spencer’s evidence was that she was offered a pay rise at that time which did not get paid until November 2008.5 Mr Papas denied that Ms Spencer was offered a pay increase in August and his evidence was that if she stayed and there was an improvement within a month or two he would be able to offer a pay increase as an incentive.6 While both Mr Papas and Ms Spencer gave evidence that in November 2009 Ms Spencer’s pay increased to $55,000 per annum the pay slips disclose that the pay increase occurred on 6 October 2008.7
[10] In July 2009 Ms Spencer was given additional responsibilities which she characterised as a promotion to Northern Supervisor. 8 Mr Lee gave evidence that he was informed of Ms Spencer’s promotion by Mr Papas in July 2009. He was told that there was a new telemarketing structure and that Ms Spencer was supervisor for the northern region.9 In his statement Mr Papas denied Ms Spencer was promoted10 but gave evidence that Ms Spencer was given a supervisory role11 because her figures were low and he gave evidence that this would assist Ms Spencer “get back up to achieving her budget”.12 Ms Spencer’s pay slips dated 10 August 2009 recorded a change in her status from nth1 to nth sup.13
[11] On 10 September 2009 Ms Spencer’s employment was terminated by Mr Papas. Ms Spencer’s evidence was that she was told on that date by Mr Papas that “Local Blue was about to change the direction in the way it had been running and [he] did not see a future for [her].” Mr Papas also told her that “[her] budgets had not been met since January this year”. 14 Ms Spencer was terminated with immediate effect. Ms Spencer’s evidence was that she said to Mr Papas that her termination “was purely because [she] had pushed too far with both [her] super queries, tax and too much car allowance”.15 The employment separation certificate stated that the reason for termination was because sales targets were not met.16.
[12] Ms Spencer was required to finish up that day and upon arriving at her vehicle Mr Papas asked to check the content of her vehicle. 17
[13] Ms Spencer alleges that her employment was terminated because she made enquiries about the failure of Local Blue to pay her employer superannuation contributions. Mr Papas alleges that Ms Spencer was terminated after consecutive months of poor performance never having met her KPI’s in 2009. 18
The superannuation dispute
[14] Ms Spencer gave evidence that she raised with Mr Papas issues relating to her superannuation from 2008. 19 Her evidence was that she provided details of her superannuation account at the commencement of her employment.20 She approached Mr Papas about superannuation not being paid in July 2008 and February 2009 when it became clear to her that the employer contributions were not being paid into her superannuation account.21 In August 2009 Ms Spencer again approached Mr Papas about her superannuation showing him a letter she received from her accountant.22
[15] On 7 September 2009 Ms Spencer gave evidence that she asked for “a copy of the deposit into [her] superannuation fund”. 23
[16] Ms Spencer’s evidence was that on 9 September 2009 Mr Papas told her that his wife had been asking for her superannuation details for some time. 24 On 11 September 2009 after the termination of her employment a contribution of $4540.00 was made to Ms Spencer’s superannuation account by Local Blue.25 A note dated 11 September 2009 signed by Ms Diana Papas (Mr Papas’ wife) on Local Blue letter head advises that Ms Spencer had made a complaint that her super was not paid and that the writer had conducted an investigation which revealed that superannuation contributions were sent to the wrong place”.26
[17] Mr Papas denied that he terminated Ms Spencer because she made a complaint about her superannuation. 27 In his witness statement he said that the problem was that the superannuation company that was receiving the payments was not banking the cheques it was receiving from the Respondent due to technical administrative duties”.28 His latter evidence was that the cheques had been sent to the wrong company. Mr Papas’ evidence was that he asked Ms Spencer for her superannuation details and that the company had been asking for her superannuation details for ages.29 Mr Papas appeared to suggest that Ms Spencer’s superannuation had not been paid because Ms Spencer had not supplied details of her superannuation account. Ms Spencer’s evidence was that she did not provide Mr Papas with any additional information about her superannuation fund in her last week of employment. Payments were made to Ms Spencer’s superannuation fund after her employment was terminated. Mr Papas gave evidence that the superannuation cheques were returned prior to Ms Spencer’s termination.30 In the letter to ING by Ms Dianna Papas she states that as at 11 September 2009 the cheques had not been returned.31
[18] Photocopies of two cancelled cheque buts addressed to ING Super were tendered by Mr Papas one dated 27 August 2008 and one dated 31 March 2009. 32 Mr Papas gave evidence that these were the only payments made to ING on behalf of Ms Spencer prior to the termination.
[19] Mr Lee gave evidence that during his employment with Local Blue he did not receive any receipts or information from a superannuation company. 33 He further gave evidence that he had never received a statement from either a superannuation fund or the Australian Taxation Office that superannuation had been paid for him by Local Blue.34
The client complaints
[20] Ms Spencer also alleged that she was terminated because she pursued client complaints. 35 Ms Spencer gave evidence that she raised complaints with her employer on behalf of her clients about having money debited from their accounts after cancelling their advertisement or paying for advertisements that were not published.36 In particular she relied upon a complaint she had conveyed to an administration staff member. She gave evidence that she was told by Mr Papas that she should not contact administrative staff about these matters.37 Mr Papas gave evidence that complaints from clients were common and that while he spoke to Ms Spencer about the procedure for handling complaints he did not terminate Ms Spencer’s employment because she relayed customer complaints to administration staff.38
Performance
[21] Mr Papas gave evidence that he terminated Ms Spencer because of her performance. At the hearing Mr Papas produced a graph evidencing Ms Spencer’s failure to meet her target of $10,000 per week. 39 That graph showed that in two out of eighteen months of her employment Ms Spencer reached her target. Mr Papas produced the raw data that he used to produce the graph and while Mr Papas had not supplied these documents to Ms Spencer prior to the hearing I admitted the documents as Ms Spencer was provided with time to examine the documents and the documents were ones that Ms Spencer would have been provided throughout her employment. These documents show that Ms Spencer reached her performance target 11 times in 81 weeks.
[22] Mr Papas gave evidence that Ms Spencer’s conversion ratio, namely the ratio of the number of customer visits to sales remained stable during her employment. His evidence was that Ms Spencer’s conversion ratio was good. 40 His evidence was that the constancy of the conversion ratio and the reduction from 70% of budget in the first nine months of her employment compared with 40% in the last nine months of her employment was due to a “decrease in activity” as she was “seeing less people”.41 It was not put to Ms Spencer in cross examination that the she saw less people in the last nine months of her employment. Further neither Mr Gazzard nor Mr Papas gave evidence that they discussed this with Ms Spencer.
[23] Mr Papas gave evidence that the price structured adopted by the company meant that they “can’t afford to keep paying someone if the sales aren’t covering their wage at least”. 42 It appears from the pay slips that initially sales of $5000 per week was the figure used as the break even point and this rose to $6000 per week soon after Ms Spencer’s pay increased.43 An analysis of these figures show that prior to her pay increase Ms Spencer achieved sales of more than $5000 in 35% of weeks and after her pay increase she achieved the higher target in 47% of weeks. However in the three months prior to her termination she had only achieved this target 4 times.
[24] Mr Papas gave evidence that he had not warned Ms Spencer that her failure to achieve her budget target would lead to her termination. 44 Mr Papas gave evidence that after Ms Spencer resigned in July 2008 because of her own perceived poor sales, in particular there was one week where Ms Spencer made no sales, and that he talked her into staying. He told her that it was normal to have sales go up and down in the first three to six months. He advised that he became concerned about Ms Spencer’s sales in April 2009 because her sales dropped to about 35% of budget.45
[25] Mr Papas and Ms Spencer both gave evidence that sales staff had a group meeting each Monday and Wednesday morning. At the Monday meeting the sales staff sales figures were put on a whiteboard and there would be a sharing of good news stories followed by training. 46 On Wednesday morning there would be a mid week review of performance and training would also be provided. On Friday there would be a one on one meeting with the sales persons’ supervisor to discuss individual performances.
[26] Mr Papas did not attend the Friday meetings. Ms Spencer, Mr Lee and Ms Hetsinis gave evidence that an individual’s poor sales performance was not discussed at Monday or Wednesday meetings. 47 Ms Spencer’s evidence was that various persons conducted the Friday reviews and that Mr Gazzard only conducted the Friday meetings with her from July 2009.48 Mr Gazzard gave evidence of conducting Monday and Wednesday meetings but did not give detailed evidence about his role in Friday meetings. Mr Gazzard gave evidence that he had notes of his Friday meetings with Ms Spencer.49 The notes produced by Mr Gazzard did not support this evidence.50 Mr Gazzard’s evidence about discussions with Ms Spencer about her performance were confined to some unspecified discussions at Friday and Wednesday meetings. He gave evidence that for 6 to 8 months prior to her termination he spoke to Ms Spencer about the need to improve her performance51 however no notes were kept of those discussions.
[27] Despite Mr Papas’ evidence in his witness statement that he “had cause to speak to her and remind her on numerous occasions about the need for her to meet her KPI’s and that her employment depended on her meeting her KPI’s” 52 his oral evidence was that the only time he spoke to Ms Spencer about her performance was when she resigned in July 2008.53 He said that he did not give Ms Spencer a written warning about her performance as in his experience if you give sales staff an official warning it demotivates them and they are usually gone in four weeks if not earlier.54
[28] Mr Papas gave evidence that he did in July 2009, give Ms Spencer additional responsibilities. She was made supervisor of the Northern Team and she was asked to provide training to other sales representatives and telemarketing representatives. Mr Papas explained that he “promoted” Ms Spencer to motivate her to improve her sales. 55 There is no evidence that Mr Papas explained this rationale to Ms Spencer. Ms Spencer gave evidence that at that meeting she raised with Mr Papas that it was a tough financial year due to the economic downturn and the bushfires and that he told her “don’t worry about it, we’re going into a new year. All your renewals are ready and so you’ll fire back up”.56
[29] Mr Papas gave evidence that he instructed whoever was looking after Ms Spencer either Ewart Gazzard or Nick Nicola to speak to Ms Spencer about her figures. Mr Nicola was not called to give evidence but Mr Gazzard who conducted the Friday meetings with Ms Spencer in the lead up to her termination gave evidence that he spoke with Ms Spencer about her performance. 57
[30] Mr Gazzard said that he kept diary notes of his conversations with Ms Spencer. 58 The only reference in the notes to any specific issue about Ms Spencer’s performance is in the undated comment which reads “It would have been about that time that Jill said to me why do we need to do that (gather the stats). I told her because we need to know how everyone is going with KPI’s. She then said what if we don’t meet the KPI’s we are out (showing she understood that her position relied upon her meeting her targets). My reply was that it is our job to meet the KPI’s.” This note is clearly not a note of an actual conversation. In response to a question Mr Gazzard said that this was not a diary note at all – that it was a note he made because he remembered the conversation clearly.59 I find that this note was not a contemporaneous note made by Mr Gazzard of a conversation with Ms Spencer. The inclusion of the words “showing she understood her position relied upon her meeting her targets” suggests that this may have been recorded after Ms Spencer was terminated.
[31] Mr Gazzard gave evidence that the conversation took place within a month of the diary note which was dated 29 June 2009. If this is correct, then Mr Gazzard’s conversation occurred around the same time that Mr Papas gave Ms Spencer additional responsibilities. Mr Papas gave evidence that this occurred in July 2009. 60 The pay slips indicated that Ms Spencer went from Northern 1 to Northern Supervisor in the week ending 10 August 2009.
[32] While it is Mr Papas’ evidence that he instructed Mr Gazzard to speak to Ms Spencer about her performance Mr Gazzard did not produce any diary or journal entry about this instruction. Mr Gazzard did not give evidence that he was instructed by Mr Papas to speak to Ms Spencer about her performance. Further there was no diary or journal entry recording Mr Gazzard’s intention to speak to Ms Spencer or any record of any actual conversation with Ms Spencer in which she was advised that her performance was such that the employer was considering terminating her employment. Further despite Mr Papas’ evidence that he had a record of the request no record was produced. 61 There was no evidence that Mr Gazzard reported back to Mr Papas about any discussion.
The statutory requirements
[33] The Fair Work Act 2009 provides that a person has been unfairly dismissed if FWA is satisfied that the person has been dismissed and relevantly the dismissal was harsh, unjust or unreasonable. 62
[34] Section 387 sets out the criteria to be used by Fair Work Australia when deciding if a termination is harsh unjust or unreasonable.
[35] Section 387 provides that FWA 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
[36] There is no doubt that Ms Spencer’s evidence was that it was common knowledge that she “would be out of the place if we didn’t make [her] KPIs”. 63 It was also a term of her contract of employment that she meet her KPI’s albeit the contract was not renewed after it expired in February 2009. Ms Spencer was aware of the importance of meeting her KPI’s.64
[37] Unfortunately no consideration was given by either party in the proceedings to the other KPI’s in her contract of employment 65 and no evidence was produced by either party about whether Ms Spencer met those KPI’s. It is clear that the reference by the employer to KPI’s was a reference to only one aspect of the KPI’s namely the requirement to meet the personal budget of $10,000 sales per week.
[38] It is clear that Mr Papas relied in this termination on his right to terminate Ms Spencer in accordance with the contract of employment 66 and that the reason given by the employer for the termination was because she failed to meet her KPI’s.67
[39] No evidence was put before the Tribunal about the reasonableness of the KPI’s set for Ms Spencer. Ms Spencer gave evidence that she thought the reason her sales figures were down was because of the Global Financial Crisis and bushfires in the northern region. Ms Katie Petsinis gave evidence that her sales figures were down in January 2009 due to the state of the economy and the bushfires 68 and that most staff terminated in that time were terminated through lack of sales figures.69 Her evidence was that Ms Spencer continued to be “in the top few performers selling and became [sic] the longest serving sales rep at Local Blue after [she] left, apart from Nick and Ewart who were commission based only”.70 Ms Petsinis was not cross examined on this evidence. Mr Lee gave evidence that that Ms Spencer from 2009 onwards would consistently finish in the top three or four.71 Mr Lee was not cross examined on this point. Mr Lee also gave evidence that 2008 was not able to be compared with 2009. He referred to the economic downturn and the bushfires. He said 2009 was much worse than 2008.72 Mr Lee was not cross examined on this evidence.
[40] Mr Papas gave evidence that the economic downturn has not affected sales. However no figures were produced by Mr Papas to support that conclusion. Mr Gazzard reported that his figures were good in 2009. Despite counsel for the employer in her submissions from the bar table advising that “some employees who had been there for a long period of time who have managed to achieve the budgets and are continuing to achieve budgets” 73 no evidence was put before the Tribunal to support that assertion. Given this information was available to Local Blue it is unfortunate that it was not produced.
[41] It is clear from the evidence that in the 18 months of her employment Ms Spencer only reached her target of $10,000 in 11 of the 81 weeks she was employed. At the time Mr Papas convinced her to withdraw her resignation of the 15 August 2008 she had not met her target. In 2008 she only met her target four times. Mr Papas gave evidence that Ms Spencer received a pay increase because of her good sales performance in November. In fact the pay slips show that her pay increase commenced in the week ending the 6 October 2008 and in the period between her resignation and the 6 October 2008 she had only met her target twice. In the week prior to her termination she had made sales of $9960.
[42] Ms Spencer did not challenge the legitimacy of the $10,000 sales target nor did she put any evidence before the Tribunal that she met her other KPI’s. Further despite Ms Spencer’s evidence that her failure to meet her sales target was due to the global financial crisis and the bush fires she did not put this to Mr Papas.
[43] Ms Spencer in her written submissions did not address the issue of whether the sales target was reasonable and did not address the reasons for her failure to meet her sales target however she addressed these issues in her final submissions. 74 It was her submission that the global financial crisis and the bushfires should have been taken into account when assessing her performance. Ms Jardine submitted that the evidence was that the global financial crisis did not impact on performance of the company generally and sales of other sales people did not have a downturn.75 Ms Jardine accepted that the target set by the employer must be reasonable and submitted that all employees had the same target and all employees are expected to meet the target or they are dismissed.76 This of course does not mean that the target was reasonable.
[44] It is not the role of this Tribunal however without, cogent evidence, to go behind the employer’s decision to set a sales target for its sales employees. However even if the target of $10,000 was unreasonable, due to the circumstances relied upon by Ms Spencer, and there is insufficient evidence before me to determine this issue, her repeated failure to meet sales figures of at least $5000 or $6000 per week which were the point that her sales covered the running expenses including her wages, meant that the employer had a valid reason for terminating her employment.
(b) whether the person was notified of that reason;
[45] It is clear that Ms Spencer was told of the reason for her termination on 10 September 2009. Her own evidence is that Mr Papas told her that as her budgets had not been met since January 2009 her employment was terminated with immediate effect.
[46] It also clear that Ms Spencer was not told of the reason to terminate her employment before the decision to terminate her employment was made. Mr Papas advised Ms Spencer of the reasons for the termination at the same time as he terminated her employment. 77
[47] In Crozier v Palazzo Corporation Pty Ltd 78 the Full Bench of the Australian Industrial Relations Commission considered whether the equivalent provision in the Workplace Relations Act 1996 (as it existed prior to Workplace Relations Amendment (Work Choices) Act 2005) required the employee to be notified before the decision was made.
[48] The Full Bench held that:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG (3) (b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted”. 79
[49] I therefore find that Ms Spencer was not notified of the reason for the termination of her employment.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[50] For the reasons set out above in relation to section 387(d) the opportunity to respond is a reference to an opportunity to respond before a decision is taken to terminate the employee’s employment.
[51] I find that Ms Spencer was not provided with an opportunity to respond to the reason for her termination.
(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;
[52] No request was made by Ms Spencer to have a support person present.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[53] As set out above Ms Spencer was aware of the importance of meeting her targets and Mr Gazzard’s evidence was that he spoke to Ms Spencer about the need to meet those targets. However it is also clear that, despite not meeting those targets, Mr Papas never told Ms Spencer that her performance was unsatisfactory, on the contrary he gave Ms Spencer additional responsibilities even if that did not constitute a promotion. There is no evidence that Ms Spencer was told that if her performance did not improve she would be terminated. In fact Mr Papas in his witness statement said that “there is no express requirement in the Agreement for the Respondent to provide any formal express written or verbal warnings”. 80 Mr Papas relied upon this term to justify not providing a warning to Ms Spencer.
[54] Further the warning provided by Mr Gazzard in July 2009 was insufficient to put Ms Spencer on notice that her employment was at risk particularly as it appears that it was given at the same time or before Mr Papas made Ms Spencer a team leader.
[55] In Fasitada Pty Ltd v J B Goodwin 81 the Full Bench when consider the equivalent provision in the Workplace Relations Act 1996 (as it existed prior to the Workchoices Amendments) found that the warning must:
“- identify the relevant aspect of the employee’s performance which is of concern to the employer; and
make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.
In relation to the latter requirement, a mere exhortation for the employee to improve his or her performance would not be sufficient. We also not that we accept that these criterion are to be applied in a practical and commonsense way taking into account the employment context.”
[56] In this case while Mr Gazzard gave Ms Spencer advice that she was not meeting her targets and exhorted her to do better there is no evidence that there was any discussion with her about why she was failing to meet her targets. Mr Papas gave evidence that it must be due to lack of activity 82 but there is no evidence that this was discussed with Ms Spencer by either Mr Gazzard or Mr Papas and this allegation was not put to Ms Spencer in cross examination.
[57] Having been given additional responsibilities by Mr Papas in July 2009, despite consistently not meeting her sales target, and the performance of her duties without complaint after that date, it is not surprising that Ms Spencer submitted that the termination of her employment “came out of the blue” 83 and drew the connection between her request for proof that her superannuation had been paid and the termination of her employment.
[58] I therefore find that Ms Spencer was not warned prior to termination about her unsatisfactory performance.
(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;
[59] Ms Jardine submitted that this was a small company with 20 employees at the time of the dismissal and 15 at the time of the hearing. 84 She also submitted that it had survived in a very tough industry. She further submitted that because it was a small business it did not go though the official warning process and had ongoing discussions with Ms Spencer to the effect that if you don’t meet your KPI’s you’re out.85 Given that Mr Papas explained his reasons for not giving warnings about performance, I do not find that the size of the enterprise impacted on the procedures followed in effecting the dismissal.
(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;
[60] It was not submitted that Mr Papas was an inexperienced manager. Ms Jardine submitted that Mr Papas made a decision not to provide Ms Spencer with a final warning as “he just can’t do that in this company because it affects people in so – in such a detrimental manner that if the only affect of that warning is they’re already on the way out”. 86
[61] Ms Jardine addressed this criteria in relation to the handling of Ms Spencer’s superannuation complaint. She submitted that the employer’s lack of a human resource management meant that it handled the superannuation matter in a “fumbling manner”. Ms Jardine did not address this criteria in respect of the dismissal.
[62] I find that this absence of dedicated human resource management specialists or expertise in the enterprise did not impact on the procedures followed in effecting the dismissal.
(h) any other matters that FWA considers relevant.
[63] Ms Spencer alleges that her employment was terminated because she made a complaint about the non payment of her superannuation.
[64] Section 340 of the FW Act provides that an employer must not take adverse action against an employee because they have exercised a workplace right. Section 341 provides that an employee has a workplace right if the person is able to make a complaint in relation to his or her employment. The Explanatory Memorandum makes it clear that this covers the situation where an employee makes a complaint to their employer. 87
[65] Effectively Ms Spencer has alleged that her termination was contrary to section 340 of the FW Act. Ms Spencer did not elect to have her termination deal with under section 365 of the FW Act. An application under section 365 would put the onus on the employer 88 to prove that the reasons for the termination did not include the reason alleged by Ms Spencer.
[66] It is clear that a finding that Ms Spencer was terminated for a reason that included a reason that was contrary to the FW Act would support a finding that Ms Spencer was unfairly dismissed.
[67] While I reject the submissions of Ms Spencer that the only reason why she was terminated was because she raised the issue of superannuation with her employer I do find that one of the reason’s Mr Papas chose to terminate her employment at this time was because she had raised complaints about the failure to pay her superannuation contributions and sought proof from Mr Papas to support his claim that the superannuation had in fact been paid.
[68] I accept Ms Spencer’s evidence that she provided her employer with her superannuation details at the commencement of her employment. It is unclear whether her employer in fact sent off the superannuation cheques to ING. Given ING’s policy was to return cheques if insufficient details were provided it would be surprising if ING had not returned the August 2008 and March 2009 cheques to the employer prior to September 2009. It is further unlikely that the fact that the August 2008 and March 2009 cheques had not been cashed had not been known prior to September 2009. Further Mr Lee’s evidence that he too had not received superannuation payments during his employment 89 supports a finding that the superannuation payments were not made. Ms Jardine showed Mr Lee a pay slip for Ms Spencer to suggest that his pay slip had information about the payment of his superannuation included on the pay slip.90 While no pay slip for Mr Lee was produced it is clear that no reliance could be placed on such a document to establish that superannuation had been paid because despite the inclusion of a superannuation payment on each of Ms Spencer’s pay slips it is uncontested evidence that no superannuation was paid to Ms Spencer’s superannuation fund until after the termination of her employment.
Conclusion
[69] For the reasons set out above I find that the termination of Ms Spencer’s employment was harsh unjust and unreasonable.
Remedy
[70] Ms Spencer does not seek reinstatement of her employment.
[71] In assessing any amount in lieu of reinstatement Fair Work is required to have regard to the following circumstances.
(a) the effect of the order on the viability of the employer’s enterprise;
[72] No evidence was put before the Tribunal in respect of this criteria. Evidence was given that this is a small business but no evidence of its turnover or profitability was provided.
(b) the length of the person’s service with the employer;
[73] Ms Spencer had been employed by the employer from February 2008 until her termination of her employment on 10 September 2009 a relatively short period of time.
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;
[74] On the evidence Ms Spencer would have earned at least $896.00 net per week. I find however that it is unlikely given Ms Spencer’s sales figures that her employment would have continued indefinitely. Mr Papas gave evidence that in his experience sales people who are given formal warnings about performance are unlikely to remain in employment for longer than one month. Ms Spencer when asked how long she would have remained in employment argued that she would not have in fact been terminated as her figures were improving. 91
[75] However contrary to Ms Spencer’s evidence in the four weeks prior to her termination she did not meet her $10,000 a week target and her sales figures did not exceed the $6000 figure in three of the four weeks. I find that in light of these figures that had Mr Papas warned Ms Spencer that her employment was at risk if she did not improve her performance that the termination of her employment would have occurred after another month had elapsed.
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;
[76] Ms Spencer’s evidence was that she commenced work in October 2009 as a subcontractor and in a retail store in November 2009. She gave evidence that she had already organised holidays for September 2009 and while she had job offers before that date she was unable to accept the job offers because she was unable to cancel the holiday. 92
(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;
[77] At the date of the hearing Ms Spencer gave evidence that she had earned a total of $8559.85 net pay.
(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;
[78] Given my decision about compensation this is not relevant.
(g) any other matter that FWA considers relevant.
[79] Ms Jardine submitted that I should have regard to the fact that Ms Spencer was paid in lieu of notice and received four weeks annual leave and that by the end of this time she had gained employment. She submitted that I should find that Ms Spencer suffered no financial loss.
[80] Ms Spencer was terminated on 10 September 2009. I find that she would have remained in employment until 10 October 2009 when her employment would have been terminated. She would then have received notice of termination and I find the employer would have paid her in lieu of notice. She would also have received her annual leave. I therefore decline to take those payments into account in determining the amount of compensation.
[81] Ms Spencer was unable to take up employment until after she took her week’s annual leave. I do not find her decision to take her holiday in circumstances where she was unable to cancel her leave should reduce any amount of compensation. Ms Spencer did not commence employment until some time after 10 October 2009 and therefore in light of my decision about the length of her likely employment I do not take into account her earnings after this date.
[82] I have had regard to the matters set out above and have decided that it is appropriate to order that Ms Spencer receive compensation of four weeks pay. I therefore order that the employer pay Ms Spencer 4 weeks pay, calculated on her retainer at the date of termination.
COMMISSIONER
Appearances:
J Spencer on her own behalf
G Jardine of Counsel for Local Blue Pages
Hearing details:
2010.
Melbourne:
February 4, 5.
1 Exhibit S1
2 Exhibit B1
3 Exhibit B1
4 Exhibit S3
5 Exhibit S1, Transcript PN631
6 Transcript PN 1289
7 Exhibit B2
8 Exhibit S1, Transcript PN 641
9 Transcript PN 958, 967
10 Exhibit B1 [9].
11 Transcript PN 1304
12 Transcript PN 1304
13 Exhibit B2
14 Exhibit S1
15 Exhibit S1
16 Exhibit B1
17 Exhibit S1
18 Exhibit B1
19 Exhibit S1
20 Exhibit S1
21 Exhibit S1
22 Exhibit S1
23 Exhibit S1
24 Exhibit S1
25 Exhibit S9
26 Exhibit S12
27 Exhibit B1 at [11]
28 Exhibit B1 at [11]
29 Transcript PN 513
30 Transcript PN 1346
31 Exhibit S12
32 Exhibit B3
33 Transcript PN 1000
34 Transcript PN 1187
35 Exhibit S1
36 Exhibit S1
37 Exhibit S1
38 Transcript PN 1366
39 Exhibit B1
40 Transcript PN 1319
41 Transcript PN 1323-4
42 Transcript PN 1302
43 Exhibit B2
44 Transcript PN 1413
45 Transcript PN 1303
46 Transcript PN 1306
47 Transcript PN 119, PN 705-707, PN 971
48 Transcript PN 79
49 Transcript PN 1793
50 Exhibit B5
51 Transcript PN 1846
52 Exhibit B1
53 Transcript PN 1416
54 Transcript PN 1300
55 Transcript PN 1328
56 Transcript PN 453
57 Transcript PN 1840-1846
58 Exhibit B5
59 Transcript PN 1865
60 Transcript PN 1303 -4
61 Transcript PN 1588, 1606, 1607
62 Section 385 of the FW Act
63 Transcript PN 1891
64 Transcript PN 128
65 Exhibit B1
66 Exhibit B1 at [4] [13]
67 Ibid at [13]
68 Exhibit S13
69 Exhibit S13
70 Exhibit S13
71 Transcript PN 937
72 Transcript PN 918
73 Transcript PN 1202
74 Transcript PN 1909 and PN 1921
75 Transcript PN 1925, 1929
76 Transcript PN 1929
77 Exhibit S1
78 Print S5897
79 Ibid [73]
80 Exhibit B1
81 Print S9280
82 Transcript PN 1323
83 Transcript PN 1921
84 Transcript PN 1938
85 Transcript PN 1206
86 Transcript PN 1939
87 Fair Work Bill 2008 Explanatory Memorandum [1370[]
88 Section 361
89 PN 1185-1187
90 PN 1143
91 Transcript PN 1954
92 Transcript PN 579-582
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