John Philip Marketis v Adrien Brien Pty Ltd

[1995] IRCA 185

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - warnings - whether valid reason - compensation.

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

JOHN PHILIP MARKETIS -V- ADRIEN BRIEN PTY LTD

No. SI 267/1994

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  4  MAY 1995

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI 267/1994

B E T W E E N:

JOHN PHILIP MARKETIS

Applicant

AND

ADRIEN BRIEN PTY LTD

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  4 MAY 1995

THE COURT ORDERS THAT:

1. The termination of the employment of the Applicant was in breach of Division 3 Part VIA of the Industrial Relations Act 1988.

1. The Respondent pay to the Applicant the sum of $6,000 within 14 days of today’s date.

NOTE:           Settlement and entry of Orders is dealt with by Order 36 of the   
  Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI 267/1994

B E T W E E N:

JOHN PHILIP MARKETIS

Applicant

AND

ADRIEN BRIEN PTY LTD

Respondent

BEFORE:                 JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  4 MAY 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act 1988. The Applicant claims that his employment was terminated unlawfully. He seeks compensation. He does not seek reinstatement.

I find the facts as follows.  The Applicant was employed as a Salesperson by the Respondent from April 1994 until 23 November 1994.  His employment was terminated on that day by Mr Saul, Sales Manager of the Respondent.  The Applicant was told that he was being dismissed because of his poor performance.  The following day he was given the opportunity to speak with Mr Kelton, the General Manager of the Respondent, regarding the termination of his employment.

Prior to the termination of his employment the Applicant was counselled, orally warned on more than one occasion and finally he received a written warning on 10 November 1994.  It was the evidence of Mr Saul that the Applicant knew what he had to do following the written warning in order to show that he had improved.  He was dismissed some 13 days later, having worked one and a half weeks. During that time the Applicant sold 4 cars.

Mr Saul gave evidence that it was he who had decided to terminate the Applicant.  He asserted that for the Applicant to demonstrate that he had improved he would have to sell 20 cars in a month.  He did not, however, give the Applicant one month in which to improve.  He did not appear to have taken into account that selling 4 cars in one and a half weeks was a significant improvement in the Applicant’s performance.  No salesperson had sold 20 cars per month during the time the Applicant was employed.  Mr Kelton’s evidence suggested that there was a different reason for the termination of the Applicant’s employment, broader and less tangible.  He stated that he would expect improvement to take place within 10 hours of the Applicant receiving the written warning.

Overall the evidence of Mr Kelton and Mr Saul did not satisfy me that the Applicant was given a reasonable opportunity to improve his performance following the written warning of 10 November 1994.  In light of his improved sales performance following that warning, I am not satisfied that the Respondent had a valid reason for terminating the employment of the Applicant.

In relation to Section 170DC, the Respondent through Mr Saul ought to have given the Applicant the chance to respond to the alleged reasons that his employment was about to be terminated. This could have been simply achieved by asking the Applicant two questions:-

“Do you think you have improved since the written warning?”
and
“Is there anything you want the Respondent to take into account that could influence us not to terminate your employment?”.

Any matters raised by the Applicant should have then been considered by the Respondent before proceeding to terminate the Applicant’s employment.  No such opportunity was given to the Applicant on the day his employment was terminated.

I therefore find that the Applicant’s employment was terminated unlawfully.

The Applicant did not seek reinstatement.  He found alternate employment of a similar kind on 6 March 1995.  I think that the evidence in this matter leads to the conclusion that the Applicant may not have continued in the employ of the Respondent for much longer.

I therefore award compensation to him in the sum of $6,000.

I certify that this and the preceding page are a true copy of the reasons for my judgment.

DATE OF HEARING          :          18 and 24 April 1995

FOR THE APPLICANT       :          Mr S Blewett

FOR THE RESPONDENT    :          Mr P Young