[2015] FWC 629

The attached document replaces the document previously issued with the above code on 13 February 2015.

In Paragraph [112] the phrase ‘no dismissal’ has been replaced with the phrase ‘a dismissal’.

Nahum Moreau

Associate to Commissioner Simpson.

Dated 18 February 2015

[2015] FWC 629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julian D’Helin
v
A.P. Motors (No.3) Pty Ltd T/A Torque Toyota
(U2014/4912)

COMMISSIONER SIMPSON

BRISBANE, 13 FEBRUARY 2015

Application for relief from unfair dismissal - Jurisdictional Objection - Demotion resulted in a significant reduction in remuneration or duties - Jurisdictional Objection dismissed - Dismissal was not unfair - Application Dismissed.

[1] On 21 February 2014 Mr Julian D’Helin made an application under s.394 of the Fair Work Act (“the Act”) for an unfair dismissal remedy against A.P Motors (No.3) Pty Ltd.

[2] The programming of the matter for hearing was delayed by agreement between the parties at a telephone conference convened by the Fair Work Commission (FWC) due the particular circumstances of this case.

[3] There was no dispute between the parties that the Applicant remained employed by the Respondent after the asserted date of termination on 1 February 2014 however it is asserted by the Applicant that his demotion amounted to a termination within the meaning of the Act. The Applicant asserts that the Applicant suffered from a significant reduction in duties and remuneration and the termination was at the initiative of the employer.

[4] Delay in programming was agreed on the basis that the Applicants representative acknowledged a question that arose concerning the utility of pursing the matter because the Applicant was receiving Workcover from the date of effect of the demotion and it was unclear whether any loss that may be suffered would be sufficient to justify pressing the case.

[5] At a subsequent further directions hearing on 31 July 2014 the Applicant asserted a loss had been suffered and wished that the matter proceed. Directions were issued for the hearing of the jurisdictional objections of the Respondent and the substantive matter together. The matters were heard on Monday 15 December 2014, and at the conclusion of the hearing both parties were given until Friday 16 January 2015 for filing of closing written submissions.

JURISDICTIONAL MATTERS

[6] The Respondent objects on the basis that the Applicant is not able to bring the application under section 394 of the Act as he was not dismissed within the meaning of the Act.

[7] Section 386 of the Act reads as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

CONSIDERATION

[8] The Applicant commenced employment with the Respondent on 8 December 2010. After an initial period in a trainee finance position, in July 2011 the Applicant was offered and accepted a role of Used Car Salesman. It appears from the evidence the only record of a written employment contract was in the trainee finance role however there is no dispute concerning the offering and acceptance of the different New Car Salesman role. 1 2 The Applicant said in or about February 2011 he commenced in the new role at Torque Ford at 62 South Pine Road, Brendale.3

[9] The Applicant said that in about July 2011 the Respondent asked him if he was interested in the role of Used Car Salesman at Torque Toyota, (instead of used car sales at Torque Ford) which was located next door at 55 South Pine Road, Brendale. He accepted this further change in his role. 4

When was the Applicant promoted ?

[10] In his initial witness statement the Applicant said he was promoted to the role of Assistant Used Car Manager in May 2013. He said in this new role he became responsible for the sales revenue performance of the Used Car Sales Department, while it remained in the responsibility of the Used Car Finance Manager to increase finance penetration. 5

[11] However in the Applicant’s supplementary statement filed just prior to the commencement of the hearing, the Applicants case changed to being that the Applicant had already been in the role of Assistant Manager as from about June 2012 as he was promoted to the role of Assistant Used Car Sales Manager by his then boss, Robin Harris.

[12] The Applicant said that he understood that this was inconsistent with what he had said in his first statement however said he was confused at the time due to a psychiatric condition with which he had been diagnosed, and also by the fact that he did not have the relevant documents to hand until December 2014. 6 The Applicant did not provide detailed evidence on how his medical condition impacted on his recollection of events.

[13] The Applicant said that with this title of Assistant Manager came a new pay package which included commission based on the Applicants personal sales, and also a departmental commission. If the Brendale used car department sold 26 or more vehicles per month, the Applicant would receive an “assistant manager” bonus known as a 2IC rider. He claimed this was a staggered percentage bonus which yielded a departmental bonus of $1,000, $1,500 or $2,000 depending on the percentage of the volume budget achieved. The Applicant said he also received a basic wage increase from $20.24 to $22.88 per hour. The 2IC overrider system claimed by the Applicant is not the same as the payment reflected in the only document with a signature from a representative of the Respondent 7 which is for a payment of $1000 per month. A different document was provided by the Applicant with his first statement8 however it was unsigned. The Applicant in the course of the hearing provided a signed copy of the same document but it was signed by him alone, and not by anyone on behalf of the Respondent.9 Both documents were marked with a hand written date of 9 October 2012, some months after the signing of the earlier document dated 13 June 2012 which had a signature of the Applicant, and a representative of the Respondent.

[14] The Applicant asserts the new role increased his responsibilities. As well as selling used cars, he was in charge of the used car salesmen, assisted in the reconditioning of vehicles and also undertook administrative duties.

[15] Mr Leong took on the position of General Sales Manager for the Respondents Torque Toyota business in March 2013. Prior to that he had been Sales Manager for North Lakes for five or six years. 10

[16] It was Mr Leong’s evidence that the structure of the Department prior to May 2013 had Mr Kevin Hunter as its manager and sales consultants under him. Mr Leong maintained that the structure did not require an Assistant Manager. 11

[17] The true picture regarding the date of the change to the Applicants commission structure (and role) becomes somewhat more confused by the evidence of Mr Steve McLaughlin, the Dealer Principal of Torque Toyota who said in his witness statement that in or around October 2012 it was decided that the Applicant would have increased responsibilities including reconditioning vehicles that were traded in.

[18] The Applicant said that despite the indication that the increase in the Applicants hourly rate would commence in June/July 2012, the increase did not occur until approximately December 2012.

[19] Mr McLaughlin provided with his statement a copy of a document dated 18 December 2012 and headed ‘Employee Pay Change Advice Form’. On the form next to a notation titled ‘Reason for change’ it is written ‘Increased responsibility and duties’. The form notes an increase in the Applicants rate of pay from $20.25 to $22.88 in reference to the hourly rate. The form states that the date the pay change was effective from was 1 December 2012. This supports a conclusion that an increase in the Applicants base hourly rate had effect from 1 December 2012.

[20] Mr McLaughlin said the additional responsibilities necessitated an increase in his base salary because he would be taken away from the opportunity to sell the volume of vehicles he might otherwise be able to sell if he was not performing the additional duties, hence the increase in hourly rate. 12

[21] Mr McLaughlin said in oral evidence he was aware at the time the Applicant was receiving department commission and this meant he was performing some duties that assist with the running of the department as a ‘senior salesperson’ in that area, such as overseeing the flow of floor traffic with customers, assisting junior salespeople if they need assistance or guidance in a senior salesperson role. Mr McLaughlin said that usually happened at both sites where there were people assisting in those areas if they have experience. 13

[22] When the Applicant was asked in cross examination if there was any written documentation concerning his claimed move to an assistant manager role following his conversation with Robin Harris he answered;

“No, he just got me to sign the assistant manager package and ----

So that would be? ----Annexure 1.

Got it, yes, the Torque Toyota pay package? ---- And in so doing that he said to me that my base salary would be increasing and I noticed when I checked my payslips that they hadn’t increased and I said to him – you know, I kept on harping on about it, you know, and he said, “Yeah; no, I’ve got to get to that,” and all that and then eventually in December, I think it was, I think Steve McLaughlin – he must’ve taken the paperwork through to Steve McLaughlin to get the pay increase, but I was still getting a 2IC overrider from when he’d given me the package.” 14

[23] Annexure 1 to the Applicants supplementary witness statement reads as follows:

Torque Toyota Pay Package

Used Car Assistant Sales Manager

COMMISSION

Minimum commission - $50 per delivered vehicle

● 1 -10 vehicles delivered 8% of vehicles gross *
● 11-14 vehicles delivered 10% of vehicles gross *
● 15-18 vehicles delivered 12% of vehicles gross *
● 19+ vehicles delivered 14% of vehicles gross *

FINANCE BONUS

$100 bonus payable on every deal financed through Torque Toyota.

2IC OVERIDER

$1,000 bonus if the Brendale used car department achieves the volume as set out in the budget for the month.

Commission payments – all deals will be paid at the 8% of vehicle gross at time of delivery; at the end of the month if the total vehicles delivered is above 12 then the remainder of the commission will be paid as a ‘top up’ in the next pay run after the month has been finalised.

*Vehicle gross – all gross profit, including aftermarket & warranty profit, less any cost against vehicle.

This package will be reviewed at the end of August 2012.

I, (signed by Applicant), have read and understand the new package for my position as a Used Car Salesperson….”

[24] The document was signed by the Applicant and a representative of the Respondent on 13 June 2012.

[25] As already stated the Applicant adopted a different position in his supplementary statement to that in his first statement concerning when he was promoted to the role of Assistant Manager. The Applicant claimed that as far as he was aware the May 2013 arrangement was simply formalising the role that he had been undertaking for a significant amount of time previously. 15 The Applicant accepts that Mr Leong presented him with a pay structure package which he signed. 16

[26] The document that sets out the package that was signed by the Applicant on 13 June 2012 had an internal contradiction in its language. The document is headed “Used Car Assistant Sales Manager”, however where the document was required to be signed by the Applicant as an acknowledgment that he has read and understood his new package, it described the package as being “for his position as a Used Car Salesperson”, not, for the position of Assistant Manager as the heading stated.

[27] The Applicant claimed that the “new duties” (for the May 2013 trial) were the same duties he had been performing since June/July 2012. The Applicant says he was made aware by Mr Leong that he was the subject of a three month trial but thought that this was just Shaun Leong trying to formalise the position.

[28] When Mr Leong was asked in cross examination what he believed was the job description of the Applicant at the time he took over as General Sales Manager, he said his understanding was he was a sales consultant who would help out with reconditioning. Mr Leong described the reconditioning as taking a vehicle that’s not for sale and putting it into a for sale status in accordance with the Property and Motor Dealers Act. 17

[29] Mr Leong said that the Applicants base hourly rate was increased in December 2012 by $2.63 to recognise that he had taken on the additional administrative responsibilities. Thiswas a decision made by his previous manager and would have been based on the fact that taking on any additional duties would decrease his opportunity to sell vehicles and consequently reduce his commission earnings. The Applicant did not receive an increase in base salary when he took up the Assistant Manager role in May 2013. 18

[30] Mr McLaughlin, the Dealer Principal, said that in early 2013 Torque Toyota underwent significant personnel changes and so he took the opportunity to refine the management structure. He said he appointed Mr Leong to the role of General Sales Manager across the Brendale and Northlakes sites. 19

[31] Mr McLaughlin said the Respondent did not have a Used Car Sales Manager at either site at the time and Mr Leong was hoping to train two existing sales consultants (the Applicant and Mr Wilson) for that role at the two locations. Mr McLaughlin said that he was extremely reluctant to put the Applicant into any type of management position and therefore only agreed that both the Applicant and Mr Wilson would be trialled in the position of Assistant Manager first to assess their suitability. Mr McLaughlin said that in the usual sales department structure at a dealership that has a General Sales Manager there is no Assistant Manager position as the General Sales Manager would run the department in the absence of the Sales Manager. 20

Commencement of Trial

[32] Mr Leong said that upon commencing the trial as Assistant Manager, he provided the Applicant with extensive counselling and training regarding what was required of him, where improvement could be made and raising any concerns Mr Leong had with the Department. Mr Leong said he transcribed his diary notes of these discussions, which were attached to his statement. 21

[33] Mr Leong described in his witness statement these discussions he had with the Applicant throughout the period of the trial reflected in his diary notes. 22 The entry for Friday 24 May at 5.10pm read as follows:

“Discussion with Julian regarding trial position for Assistant Manager for Used Cars Strathpine.

Topics covered -

a) Motivation & Staff Morale
b) Earning Respect from staff & peers
c) Training & Development process
d) Staff Behaviours and Accountability

Management skill and focus requirements

a) Daily reporting of sales
b) Deal logs & monthly estimates
c) Customer Follow Up
d) Carzoos lead management
e) Qualification of customers
f) F&I introductions
g) Premium Warranty Upsells
h) Managing Internet Advertising to minimise advertising costs

Julian mentioned his excitement of being given the opportunity and he wouldn’t let me or the business down and he would strive to improve the areas of concern which were F&I penetration and Premium Warranty upsells.

We also discussed the commission and remuneration package for the role to which I gave him a copy for him to do some calculations for his pay. In his 2IC role, he would also be paid on vehicle he sold and delivered.”

[34] During cross examination the language in the second last paragraph above referring to the Applicant being excited about ‘the opportunity’ was put to the Applicant and he replied “O’kay”. 23 However he then went on to give oral evidence to the effect that he did not believe it was a trial. 24

[35] Mr Leong also gave oral evidence about a one on one conversation with the Applicant on 24 May 2013 which he said was “in-depth” and went through piece by piece all the requirements of the role including sales and leadership. 25 Mr Leong accepted the Applicant had been receiving Departmental bonuses of an Assistant Manager prior to May 2013. Mr Leong said he was not aware that the Applicant was receiving an Assistant Managers package at that time. 26

[36] Mr Leong gave evidence (having seen the Applicant’s previous package for the first time on the day of the hearing) that under the earlier package the Applicant would get commission on his own sales and an additional bonus if the department reached a certain level, however on the new package it was a tiered system where a higher performance or result for an area makes a contribution toward a point system, more points resulting in more commission. 27 Points are measured across four KPI’s, used car deliveries, site total gross, finance penetration and premium warranty penetration.

[37] Mr Leong said after the meeting of 24 May the Applicant came back and said the targets (in the commission structure) were too high. Mr Leong claimed to have said to the Applicant that if he wasn’t happy with it, “we would put him back to sales and he would continue selling which he did not want to do so he accepted the package.” 28 Mr Leong said the Applicant came back to him with a spreadsheet or a handwritten note of every single previous month of the year calculating all the areas, saying “it not enough money, Shaun. You’re not being generous enough with the role.” This appears to be related to the notes recorded for 25 May 2013 by Mr Leong attached to his statement.29 Mr Leong reiterated his view later in his oral evidence that the commission structure had been made clear to the Applicant.30

[38] Mr Leong’s notes also record training conducted with the Applicant on 28 May 2013 and the Applicant signing the commission package for the role and it being forwarded to administration and payroll.

[39] When I compare the evidence of Mr Leong to that of the Applicant both generally and specifically with regard to their interactions concerning the trial, I am inclined to prefer Mr Leong’s recollection. His evidence was more clear and precise as compared to the Applicant who was less consistent and at times less clear in his recollections. Having considered the evidence it tends to tell against the Applicants claim that he genuinely believed he was just continuing in a role he already held.

Length of Trial

[40] In closing submissions the Applicant submits there is conflicting evidence as to how long the trial was to occur. The Applicant said in closing submissions there was clear evidence that the trial was to take place for three months only.

[41] Mr Leong gave evidence that there was a three month trial period but it was not a fixed three months 31 and there was no set time frame. The Applicant says that Mr Wilson gave a definitive time period of three months.

[42] Mr Leong said he spoke with Steve McLaughlin about a proposed new structure. He proposed that the Applicant could be trained up for a management role at Brendale, and Mr Gary Wilson could be trained up for a management role at the North Lakes site. 32

[43] Mr Leong said that Mr McLaughlin expressed significant doubts that the Applicant was able to take on any management responsibility and insisted that the position of Assistant Manager be created on a trial basis only, on the understanding that it would be trialled for a period of three months initially but which would be extended if further time to trial the position was required. If the trial was successful and each Assistant Manager performed well in the quasi-management role, they could progress (with training) to a full Used Car Sales Manager role. If they were unsuccessful, they would be moved back to the role of sales consultant. Mr Leong said that they were unable to ascertain from the outset exactly how long would be required in order to determine the suitability of each Assistant Manager as it would be based largely on performance of the Department across key areas including sales, finance and insurance penetration, premium warranty sales and gross profit but also taking into consideration attitude, customer satisfaction and management style. 33

[44] Mr Leong said that at all times Mr McLaughlin was adamant that the role was to be a trial only and that this must be communicated to each of the Applicant and Mr Wilson, which he claims he did. He said her made sure the Applicant understood that it was an interim step between sales consultant and sales manager, which was designed to see if he was right for a management position. Mr Leong said that this was the condition upon which he commenced in the Assistant Manager position. 34

[45] Mr Leong said that he did originally suggest to the Applicant that he would be trialling the position for 3 months but this was not a fixed period, instead it was a rough, flexible timeframe that would be used to see if the structure and the Applicant worked well. 35

[46] Mr Leong said that the Applicant was aware that the position would remain temporary until he was made up to Sales Manager or advised otherwise. He would ask me from time to time if I had made a decision yet as to whether he would be moving up to Sales Manager and each time I advised him that I was not yet satisfied he was working out in the role of Assistant Manager. 36

[47] Mr McLaughlin said that he indicated to Mr Leong that it would take 3 to 6 months to properly assess whether the trial was going to be successful, if not longer. 37 He said he requested that Mr Leong establish a trial period whereby the Applicant would hold the position of Assistant Manager in a trial capacity. If the trial was successful the Applicant would be made up to the position of Sales Manager and if it was not he would resume his role as salesperson.38

[48] Mr Wilson gave evidence that he was offered the position of Assistant Manager by Mr Leong and Mr Leong explained at the time that this was a new role that had been created to trial both himself at Northlakes, and the Applicant at Brendale in a management position to see if they were able to achieve results. Mr Wilson said it was explained to him that if he was unsuccessful he would return to the position of Sales Consultant. 39 Mr Wilson said that he believed that the trial would last until the end of the year.40 41 He clarified that Mr Leong said it would initially be for 3 months, and then got extended.

[49] Mr Wilson also said in cross examination that his targets were outlined in his commission package including units per month, finance and extended warranties. 42 He also said he knew if he reached his targets because they were in the results on a deal log at the end of the month where he entered the data.43

[50] An issue arises for the Applicant because of inconsistency on this issue of a trial. In the initial outline of submissions for the Applicant it was accepted at least a 3 month trial occurred from May 2013, however in the Applicants supplementary statement and during the course of his cross examination he maintained there was not a trial as he had already been appointed to the Assistant Manager role. 44 45

[51] Based on the evidence of Mr Leong, Mr McLaughlin and that of Mr Wilson I prefer the view that it was made clear to the Applicant that he was being offered a position as Assistant Manager on a specifically designed employment package on a trial basis only, and he accepted the offer on that basis. I am also satisfied it was explained to him that the trial would operate for an initial period of three months but that it was not a fixed period.

New Commission structure

[52] Mr Leong said that the Applicant’s new commission structure included a percentage for the Departments overall performance. Mr Leong attached a copy of the structure provided to the Applicant with his statement. 46

[53] The document headed “Torque Toyota Monthly Commission for Assistant Used Car Sales Manager – Strathpine” included a sophisticated method for assessing commission based on a range of factors. The document was signed by the Applicant and dated 28 May 2013, and also signed by a representative of the Respondent on 31 May 2013.

[54] The commission structure set out in the signed document is significantly different to the earlier commission structure in the June 2012 document. It is based on site total gross sales, finance penetration and premium warranty penetration which is measures the department’s performance as compared to personal performance. The Applicant questioned during cross examination whether the new commission structure was introduced. 47 It was put to him that he never raised that and he appeared to concede that he didn’t. He later said he “had no idea, to be honest”.

[55] Despite signing the new commission structure document in May 2013 the Applicant’s evidence was he understood his target remained 26 vehicles a month and that was how he was paid. 48 49 His evidence during cross examination indicates he did not believe the new commission as part of the trial ever came into effect.50 He continued similar evidence during re-examination.51 It appeared to be his belief he remained on the earlier commission system between May 2013 and December 2013 and he could see this through daily operating charges. 52

[56] However when asked during re-examination what he thought his KPI’s were in relation to finance and warranties he replied he didn’t know, but then went on to say the following;

“All I was shown was that commission structure, you know, of what, you know, we were going through before, but I was never privy to any sales meetings and saying, “Okay. Your KPI has got to be this for the month of December,” you know what I mean, never, so I had no idea...” 53

[57] I interpreted the reference to “that commission structure” to be a reference to the May 2013 commission structure. 54 The Applicant asserts that the view is corroborated by the evidence attached to the witness statement of Shaun Leong at annexure C. It was the Applicants case that his department performed well and more often than not he received a monthly departmental bonus in round figures when it was achieved on a monthly basis, hence receiving the 2IC overrider as highlighted above.

[58] Mr Leong said in cross examination that the Applicant was remunerated in accordance with the new commission structure. 55 Mr Leong referred to records he could provide evidence about concerning the commission earnings of the Applicant from May to December 2013 that was on his phone. The hearing was adjourned so that this information could be obtained. After the adjournment Mr Leong gave evidence during cross examination that described how the Applicants commission had changed from a flat number to odd numbers demonstrating his commission structure had changed.56 A document (document 2) was provided that sets out a significant change in the Applicants commission earnings from May 2013 compared to the period for June 2013 to January 2014.

[59] The Applicants claim that he remained on the same commission structure after the commencement of the trial is contradicted by the evidence provided by Mr Leong and specifically document 2 referred to above. On the basis of the documentary evidence provided by Mr Leong I am satisfied the Applicant moved to the new commission structure after the commencement of the trial. Having made this finding it is concerning that the Applicant believed his commission structure remained unchanged during this period for two reasons. Firstly because he made an agreement in May 2013 but maintains the other party proceeded to ignore the agreement for a period of six months and he did nothing about it which seems implausible. Secondly, from the Applicants evidence it appears the trial was a waste of time because for its duration the Applicant did not understand the attempt to link four areas of performance within the department that the Respondent was seeking to improve, and his new remuneration structure. 57

Demotion

[60] Mr Leong said that after consultation with Mr McLaughlin they agreed the trial Assistant Manager positions at both North Lakes and Brendale had been unsuccessful and were not working to improve the performance of the Used Car Departments and a new structure was devised. Mr McLaughlin gave evidence consistent with Mr Leong on this point. 58

[61] Mr Leong said he and Mr McLaughlin agreed that Gary Wilson would be offered to either return to used car sales or take up a position of valuer/buyer across both sites as he had shown particular ability for valuing trade ins and buying wholesale stock. Mr Leong said this also meant he would also work with the service manager to recondition vehicles for sale. 59

[62] Mr Leong said that at the end of the trial, it was decided that the Applicant would return to his position as Sales Consultant because this had formed the basis upon which he was trialled in the Assistant Manager position. 60

[63] Mr Leongsaid the Applicant’s base rate was returned to $20.2429 and therefore reduced by the same amount of $2.63 that it was increased by in December 2012 because the Respondent centralised the valuations process through valuer/buyer for both departments and the same person would also take control of the reconditioning process, advertising and pricing of both departments, and because the New Car Sales Manager became the Sales Manager and would be responsible for all administrative duties as well as management duties. He said the Applicant would no longer be doing any of these duties, therefore the expectation and assumption was that he would be more available to utilise his sales opportunities in the Department and therefore receive more commission. 61

[64] Mr Leong said the method of calculating the Applicants commission reverted back when he was moved back to Sales Consultant, so that he would only receive commission for sales made by him and not based on the Departments result. Mr Leong said that the reason manager’s commissions are structured like this is to recognise the additional time they spend running departments, so theoretically the Applicant’s commissions would not necessarily change outside of the expected rise and fall of the commission based component of an income as the opportunity to earn commission was not changed.

[65] Mr Leong referred to payroll records he attached to his statement which he claimed showed that averages from months immediately preceding the Applicant move to Assistant Manager (in May 2013) compared to averages from the months as Assistant Manager demonstrate on average, his earnings wouldn’t have changed significantly. 62

[66] The Applicant says he was notified of his demotion in a letter in December 2013 along with a new commission package. The Applicant refused to sign both. The Applicant says that by the Respondents own admission with the demotion came a pay and responsibility decrease. The Applicant said Mr Leong confirmed that the Applicant was no longer entitled to a departmental bonus which he accepted was “significant” and also a drop in his hourly wage. The Applicant was no longer responsible for reconditioning or a sales team. Essentially the Applicant was responsible for his individual sales only.

[67] The Applicant said that sales consultants were in general no longer responsible for advertising and pricing. The Applicant said that despite the Applicants hourly wage drop which the Respondent contends reflects the decreased duties, no other sales consultant received a reduction in hourly wage. Further the Applicant said that despite the apparent “demotion” of Gary Wilson who was in a similar position he is still entitled to a departmental bonus in his new role. Mr Wilson readily accepted in evidence that whilst he was assistant used car manager his department did not continually reach budget. The Respondent said that both used car branches now have one manager, Mr Vaughn Leong, Mr Leong’s brother.

[68] As the Applicant refused to sign the demotion letter and new remuneration package, it is quite clear that the Applicant did not accept his demotion. The Applicant contends he also protested against his demotion. It was put to the Applicant during cross examination that he did not voice his displeasure. The Applicant refers to the evidence of Mr Laughlin who gave evidence that the focus of the Applicant during a meeting he had with the Applicant concerning a bullying complaint was on providing reasons why he should still be assistant manager. I am satisfied the Applicant did not accept the demotion at the time, and it is not open for the Respondent to argue the Applicant consented to a variation of employment contract by accepting the demotion in December 2013.

Commencement of Leave February 2014

[69] On 1 February 2014 the Applicant commenced a period of sick leave and subsequently made a Workcover claim. The Workcover claim was accepted and at the time of the filing of closing submissions in this matter he has still not returned to work.

Conclusion on Jurisdictional Issue

[70] An important contest in this matter is whether the Applicant was in fact promoted from the position of Used Car Salesman to Assistant Manager in June 2012 (with a further wage increase in December 2012) or alternatively no promotion occurred until the commencement of the trial in May 2013. There is no dispute that the Applicant did begin to receive a 2IC retainer from June 2012 and a subsequent separate increase in his hourly rate of pay from December 2012.

[71] This issue is important because it goes to the question of what the substantive position of the Applicant was before the May 2013 trial. The evidence is that at the end of the period which the Respondent regarded as a trial period the Respondent decided that the Applicant would not be offered a permanent role as a Manager and it maintained he was reverting to his former role as a Used Car Sales consultant.

Did Employment Contract authorise demotion?

[72] The Respondent argues there has been no dismissal. Further, a demotion does not constitute a dismissal where the contract of employment authorises an employer to demote an employee. The Respondent says the Applicant’s appointment to the position of Sales Consultant in December 2013 was pursuant to the employment contract, as varied between the parties, and therefore does not amount to dismissal. I have already partly rejected the proposition that there was any consent to vary the employment contract at the conclusion of the trial.

[73] The Respondent also argues a demotion that may otherwise be considered a dismissal because it amounts to a significant reduction in remuneration and therefore a repudiation of the employment contract, will not be considered so if the employment contract expressly provides for demotion. The Respondent referred to a decision in Charlton and Eastern Australian Airlines Pty Ltd. 63 There was no evidence before me of any written contractual entitlement to demote in this case.

[74] The Respondent referred to the original signed letter of employment where the Applicant was to attend the A.P Eagers finance training academy to be trained as a business manager. His progression from that role to a Sales Consultant was dealt with in evidence and was not controversial. The Respondent says that each time the Applicant changed roles within the Respondents group; the employment contract was varied accordingly to allow for new roles, new commission structures, and other benefits associated with each role.

[75] The Respondent states the promotion in May 2013 was clearly on a trial basis while it was determined whether the position would be ongoing. The Respondent says that while the Applicant claims that he was already in the “Assistant Manager” position prior to this time, it is clear the duties and commission structure would change in the new trial position.

[76] The Respondent argues prior to May 2013 he occupied a position that was more akin to an interim position between a senior sales consultant and an assistant manager, whereby he would oversee the department when the Sales Manager, Kevin Hunter, was absent including providing support in the sales process to the other, more junior consultants, but he did not occupy a position of greatly increased responsibility until June 2013. Therefore the Respondent characterised the situation as follows;

[77] The Respondent argues that at the time the Applicant commenced in the position of Assistant Manager (in May 2013) the parties accepted an express verbal variation to the Applicant’s contract of employment that:

(a) If the Respondent considered that the Applicant was successful in the trial, he would be made up to a Sales Manager and the trial would come to an end; or

(b) If the Respondent considered that the Applicant was unsuccessful in the trial, he would return to his position as sales consultant and the trial would come to an end.

[78] I cannot be satisfied on the evidence available that an express verbal variation to the contract was made as claimed by the Respondent and that the Applicant would revert to being a sales consultant if the trial was unsuccessful. It became apparent during the trial that at least Mr Leong, who was only representative of the Respondent who had direct engagement with the Applicant over the specifics of the trial, was not even aware at the time that the Applicant was receiving a monthly 2IC overrider bonus, and was unaware of the remuneration package the Applicant and Respondent had agreed to in writing in June 2012.

[79] In those circumstances I prefer the view that the trial arrangement entered in May 2013 did not include an express understanding about the specific position that the Applicant would be engaged in if he was not promoted to a management role on a permanent basis at the end of the trial. On that basis it is reasonable to assume the parties accepted that the Applicant continued to retain his substantive position as it existed before the commencement of the trial in the absence of some other new contract being agreed at the conclusion of the trial.

Section 386(2)(c) argument

[80] The Respondent argues in the alternative that there has been no dismissal because of the operation of s.386(2)(c). The Respondent referred to a decision in Blair v Chubb Security Australia Pty Ltd 64in support of the proposition that remuneration has been recognised as encompassing more than just the “wage” element of an employee’s income. In this instance the Respondent said it is relevant to consider all of the components of the Applicant’s income against the backdrop of the automotive industry.

[81] In terms of a reduction in ‘duties’ the Respondent’s case is that while the Applicant’s previous manager Mr Hunter may have given him additional responsibilities from June 2012, and his pay arrangements were changed to reflect this, he was not at that time in truth promoted to an Assistant Manager role with the breadth of responsibilities of the role developed for the trial, and until the trial his substantive role continued to be Sales Consultant with some additional responsibilities and consequent adjustments to his commission structure. As set out above, the Respondent saw the role as somewhere between a Senior Sales Consultant and an Assistant Manager.

[82] The Respondent summarised the Applicants income for the relevant times as follows:

From December 2012

Hourly rate of $22.88. In addition to this a commission for each vehicle sold personally which was comprised as follows:

a) $50;
b) 10% of the gross profit made by the Respondent for the sale of that particular vehicle;
c) An additional $100 if finance was also sold to the customer in relation to the vehicle;
d) An additional $100 if a premium warranty was also sold by the Applicant to the customer in relation to the vehicle.

[83] The Respondent says the commission component is considered “at risk” income. In addition to the hourly rate of $22.88 and commission on the Applicants personal sales of vehicles, the Applicant received the “2IC overrider”, which the previous General Sales Manager, Robin Harris, had agreed to pay the Applicant for taking up some managerial-type tasks.

[84] The 2IC overrider would be paid if the Brendale Department sold 26 cars for the month. If that occurred the Applicant would receive $1,000. The Respondent says the 2IC overrider was paid to compensate for the fact that because some of the Applicants time and attention would be taken up attending to the additional tasks, and he would miss sales opportunities that would otherwise allow him to earn commissions. The Respondent argues that the Applicants primary role was still that of a Sales Consultant. Mr Robin Harris who was the Manager of the Applicant at the time was not called by either party to give evidence on this issue. Given that the only evidence I have on the nature of the agreement between the Applicant and Mr Harris is that of the Applicant, I accept his evidence in regard to that matter.

[85] The Respondent says that the Assistant Manager position in the trial still required the Applicant to sell cars, and other responsibilities were ensuring the other sales consultants were effectively undertaking their roles, further administrative tasks, managing leads and managing stock levels and trade-ins reconditioning.

[86] However Mr McLaughlin said that the Assistant Manager role for the trial had significantly less duties than a Sales Manager position ordinarily has. He acknowledged at all times the Applicant was required to sell vehicles and was only required to do the following in addition to selling cars:

a) Maintain daily logs of leads and inquiries, vehicles sold and delivered;
b) Ensure he and the other sales consultants made early introductions to the finance manager and made a genuine attempt to sell premium warranties with each vehicle as part of the sales process;
c) Ensure that leads and inquiries made via the internet and phone were followed up by himself and other sales consultants;
d) Process completed sales documentation to the Administration department.

[87] The Respondent said the Applicants personal commission would remain the same, however in addition to this he would be paid a commission based on the performance of the Department. The points system and the percentage commission payable was calculated in accordance with that set out in Annexure “A” of Mr Leong’s statement, and once the relevant points across each category were established, this would be applied at the percentage indicated against the gross profit of the Department for the month to determine the relevant additional commission payable. The Respondent said again, this commission was established to compensate the Applicant for missed sales opportunities that would inevitably occur while he was attending to his managerial duties, however the expectation was that the Applicants primary duties were still that of a Sales Consultant.

[88] The Respondent argues that the reduction of $2.63 from February 2014 should not of itself be considered when determining what is “significant”, because the reconditioning and other duties that he was no longer required to do, whilst not significant, takes up time that the salesperson could be using to sell cars. The Respondent argues that a reduction in base salary for someone who has a change in duties and responsibilities and is therefore purely focussed on selling cars is in line with normal industry practice as they have more time to maximise their earnings through increased sales volume. This means that the Applicant, left unburdened by the reconditioning work and other administrative duties, was in a position to earn more by way of commission on cars sold. The Respondent said that a substantial portion of a Manager or Sales Consultants income is based on commission.

[89] The Respondent said that in the period prior to taking up the Assistant Manager role from November 2012 to May 2013 (30 weeks) the Applicants total earnings were $58,366 ($101,167 on an annualised basis). The Respondent says that this does not vary greatly from what he was paid during his time as Assistant Manager. The Respondent says that during the period from May 2013 to end of January 2014 (36 weeks) his total earnings were $73,168 ($105,687 on an annualised basis). The Respondent submits that the difference would not constitute a significant reduction, particularly when a significant proportion was performance based.

[90] The Respondent says a valid comparison cannot be made after the Applicant returned to the Sales Consultant role as he did not attend work for long enough to make any sort of meaningful parallel evaluation.

[91] The Respondent says that while the Applicant contends that he was no longer required to supervise team members, the Used Car Department consisted of three employees including the Applicant, and each employee was expected as their primary function to sell cars. The Respondent says each of the employees was very experienced and did not require much by way of supervision.

[92] Mr Leong said that when the Applicant returned to the Sales Consultant role he no longer had responsibility for reconditioning vehicles, or oversight of the two sales employees. 65 It was accepted that his base rate of pay dropped. Mr Leong said on returning to the sales role he would no longer be required to perform extra roles and could make up the difference in pay as he would have more time selling.66

[93] The evidence supports a conclusion that the substantive position of the Applicant prior to May 2013 was the position as at December 2012 with the commission package that applied at that time.

[94] The question then becomes, was the position that the Respondent decided to place the Applicant into following the decision to conclude the trial, a demotion within the meaning of section 386(2)(c) when compared to the substantive position of the Applicant prior to the commencement of the trial.

[95] I adopt a view expressed by Commissioner Whelan in Blair v Chubb Security Australia Pty Ltd 67 that the reduction in remuneration or duties would need to be significant enough to amount to a repudiation of the contract by the employer.

[96] Notwithstanding that I accept the Respondents submission that the level of responsibility envisaged for the Assistant Manager role for the purposes of the trial involved somewhat more responsibility than the role the Applicant held before the trial, the evidence about the nature of his additional duties before the trialsupports a conclusion that the difference between that role and the Sales Consultant role prior to June 2012, or the role he was to return to from 1 February 2014 was significant enough that the demotion would amount to a repudiation of his contract of employment. In June 2012 he signed a new remuneration package providing a 2IC overrider bonus of $1000 per month in connection with additional supervisory responsibilities, and in December 2012 a $2.63 increase to his hourly rate of pay in recognition of additional responsibilities. His demotion would mean he would lose both these entitlements, the employer argues to be offset by potential for ‘at risk’ personal commission. The fact that it became clear that the Respondent was unaware of the precise nature of the Applicants pre trial remuneration package until it was fully revealed in the course of the unfair dismissal proceedings, perhaps explains why at the time of taking the decision to demote the Applicant the Respondent believed it was merely returning him to his former role, when the evidence has shown it was not.

[97] I am satisfied the evidence supports a finding that the Applicant was effectively promoted from Sales Consultant to a different more senior role involving supervision and other additional responsibilities by the agreement reached in June 2012. The payment of the 2IC overrider bonus was paid it seems clear enough for overseeing the department in the absence of the Sales Manager and for some other additional responsibilities.

[98] For these reasons I am satisfied the removal of these responsibilities, and the reduction in remuneration was so significant a reduction in his duties and remuneration that it constituted dismissal. In determining whether the demotion involved a significant reduction in remuneration for the reasons set out above I am considering this question by comparing the pre May 2013 trial income of the Applicant, with what the likely income could be expected to be from 1 February 2014 had he been working. This needs to take into account the reduction in the base hourly rate compared to the higher hourly rate for the pre trial position, as well as the loss of the 2IC overrider bonus. Whilst it may also take into account a likely increase in at risk commission income given the removal of responsibilities that reduced the amount of time the Applicant would have to make sales, I am satisfied on the evidence such a comparison would result in a significant reduction in the Applicants remuneration. Even on the Respondent figures it would be in the order of 5%, and that figure would likely be higher as the Respondent figures do not make allowance for the loss of the 2IC overrider bonus.

[99] The jurisdictional matter and substantive matter were heard together. For the reasons set out above, and given the Applicant remains in employment with the Respondent I am satisfied the Applicant has been dismissed by the Respondent and therefore I must turn to the substantive matter.

Harsh, Unjust or Unreasonable

[100] Section 387 of the Act reads as follows:

“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.”

[101] I have stated above a preference for the evidence of Mr Leong over that of the Applicant where they are in contest. Much of Mr Leong’s statement went to setting out what he saw as deficiencies in the performance of the Applicant during the trial period, and warnings about these deficiencies. 68

[102] Mr McLaughlin said that whilst overall the Applicants financial performance was unsatisfactory, he was counselled repeatedly on other aspects of the role where he was not achieving an acceptable standard. 69 These areas are set out in some detail in Mr McLaughlin’s statement.70

[103] Mr Leong said that all his managers use a daily log and this included provision to count finance and warranty so the Applicant would know at any point in time where he was sitting. 71 The Applicants evidence appeared to indicate he was ignorant of this system and importantly did not even acknowledge its operation during the trial, which was intrinsically linked to the entire purpose of the trial.

[104] Mr Leong’s diary notes entered for 6 June, 7 June, 19 June, 25 June, 2 July, 11 July, 16 July, 20 August, 23 August, 30 August, 21 August, 2 September, and 3 September disclose significant concerns with the Applicants performance during the trial. The entry on 25 June records a one on one counselling with the Applicant identifying a range of problems and raising with the Applicant that if he did not change his approach he would be moved back to sales from his supervisory role. 72 Mr Leong’s oral evidence was consistent with the notes in setting out his concerns regarding the Applicants performance between May and December 2013.

[105] The entry for 2 July raises poor performance in three separate areas. Without dealing with each diary entry individually the theme continued throughout generally addressing problems with the Applicants poor performance.

[106] Mr Leong’s evidence is he gave the Applicant a verbal warning about his performance on 3 September 2013. The Applicant initially said he didn’t recall a verbal warning. He later appeared to concede it was quite possible Mr Leong warned him that day. 73 He also appeared to concede that when Mr Leong spoke to him he would “switch off”.74

[107] The Applicant said during cross examination that Mr Leong continually said “You’re going to go back to a sales consultant”. 75 He also claimed Mr Leong used to say to him that he was going to be sacked in front of other staff. 76 The Applicant conceded that there could have been other conversations about him not continuing in his role.77 The Applicant agreed there may have been a conversation between himself and Mr Leong on 30 December 2013 concerning his no longer continuing in the role due to his performance and returning to the sales consultant role. 78 The Applicant appeared to accept in cross examination that contrary to his witness statement (where it was said this possibility had not been raised before 30 December) returning to sales had been raised before. 79

[108] It was put to the Applicant that a complaint he had made alleging bullying against Mr Leong was about that issue, not about the decision he return to being a sales consultant. He appeared to accept this. He said could not recall if he complained about the change in position. 80

[109] Mr Leong acknowledged during cross examination that on one occasion he threatened the Applicant with termination in front of other staff and he was himself disciplined over this incident. 81 Mr Leong acknowledged he had indicated to the Applicant a number of times he wanted to sack the Applicant and it could have been handled better.82

[110] Mr Leong gave evidence that the Applicant had numerous “runs ins” with staff members including his ‘detailer’ Heath Merritt. 83 He said he did not finalise his monthly result on one occasion at the beginning of September and he was given a verbal warning about this failure.84 85 Mr Leong said he had numerous discussions with Applicant about his underperformance after his warning on 3 September 2013. 86

[111] Considering all of the evidence I am satisfied that the Respondent had a valid reason for dismissing the Applicant from his substantive (pre-trial) position which involving supervisory responsibilities and other additional responsibilities given his performance. He was notified of the reason, and given a number of opportunities to respond to concerns about his capacity however given the particular facts of this case it could also be said he was not afforded the level of procedural fairness ordinarily expected given that at no point did the Respondent contemplate its decision involved a dismissal of the Applicant. That observation includes the requirements of section 387(d) and (e), however the Applicant was warned if his performance did not improve it would result in him returning to a purely sales role. Section 387(f) and (g) provide no particular assistance to the Respondent; however in weighing all of the considerations in section 387 I am not satisfied that the dismissal was harsh, unjust or unreasonable. On that basis the application is dismissed.

[112] It is also worth noting that given restructuring decisions taken by management following the unsuccessful trial the substantive position of the Applicant as it existed prior to the trial appears to no longer exist. Supervisory and other additional responsibilities were redistributed or absorbed into other roles. As I have found there has been a dismissal and the Applicant remains an employee of the Respondent that may give rise to considerations under Chapter 2, part 2-2 Division 11 of the Act.

COMMISSIONER

1 Transcript dated 15.12.2014 PN 159-168

2 Exhibit 4 Witness Statement Mr S McLaughlin dated 12.2014 Paragraph 2

3 Exhibit 1 Witness Statement Mr J D’Helin dated 10.11.2014 Paragraph 5

4 Exhibit 1 Witness Statement Mr J D’Helin dated 10.11.2014 Paragraph 6

5 Exhibit 1 Witness Statement Mr J D’Helin dated 10.11.2014 Paragraph 8

6 Exhibit 2 Supplementary Witness Statement Mr D’Helin dated 15.12.14 Paragraph 5

7 Exhibit 2 Supplementary Witness Statement Mr D’Helin dated 15.12.14 Annexure 1

8 Exhibit 1 Witness Statement Mr J D’Helin dated 10.11.2014 Annexure C

9 Transcript dated 15.12.2014 PN 1092 - 1101

10 Transcript dated 15.12.2014 PN 694

11 Transcript dated 15.12.2014 PN 1137

12 Exhibit 4 Witness Statement Mr S McLaughlin dated 1.12.2014 Paragraph 3

13 Transcript dated 15.12.2014 PN 1258 - 1259

14 Transcript dated 15.12.2014 PN 177 - 179

15 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 5 (d)

16 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Annexure A

17 Transcript dated 15.12.2014 PN 697 - 699

18 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 27

19 Exhibit 4 Witness Statement Mr S McLaughlin dated 1.12.2014 Paragraph 5

20 Exhibit 4 Witness Statement Mr S McLaughlin dated 1.12.2014 Paragraph 5

21 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 13 Annexure B

22 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 13 Annexure 13

23 Transcript dated 15.12.2014 PN 270

24 Transcript dated 15.12.2014 PN 271 - 281

25 Transcript dated 15.12.2014 PN 701 -702

26 Transcript dated 15.12.2014 PN 706 -707

27 Transcript dated 15.12.2014 PN 725

28 Transcript dated 15.12.2014 PN 735

29 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Annexure B

30 Transcript dated 15.12.2014 PN 896 - 899

31 Transcript dated 15.12.2014 PN 746

32 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 5

33 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 5

34 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 6

35 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 7

36 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 8

37 Exhibit 4 Witness Statement Mr S McLaughlin dated 1.12.2014 Paragraph 6

38 Exhibit 4 Witness Statement Mr S McLaughlin dated 1.12.2014 Paragraph 8

39 Exhibit 5 Witness Statement Mr G Wilson dated 26.11.2014 Paragraph 4

40 Exhibit 5 Witness Statement Mr G Wilson dated 26.11.2014 Paragraph 6

41 Transcript dated 15.12.2014 PN 1443

42 Transcript dated 15.12.2014 PN 1460 - 1466

43 Transcript dated 15.12.2014 PN 1469 - 1477

44 Exhibit 2 Supplementary Witness Statement Mr D’Helin dated 15.12.14 Paragraph 5 - 7

45 Transcript dated 15.12.2014 PN 262 - 267

46 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 12 Annexure A

47 Transcript dated 15.12.2014 PN 202 - 214

48 Exhibit 4 Witness Statement Mr S McLaughlin dated 1.12.2014 Annexure A

49 Transcript dated 15.12.2014 PN 257 -259

50 Transcript dated 15.12.2014 PN 453 - 485

51 Transcript dated 15.12.2014 PN 617 -620

52 Transcript dated 15.12.2014 PN 641 - 651

53 Transcript dated 15.12.2014 PN 665

54 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Attachment A

55 Transcript dated 15.12.2014 PN 804

56 Transcript dated 15.12.2014 PN 849 - 859

57 Transcript dated 15.12.2014 PN 259 - 261

58 Exhibit 4 Witness Statement Mr S McLaughlin dated 1.12.2014 Paragraph 18

59 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 25

60 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 26

61 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 28

62 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 29

63 Charlton and Eastern Australian Airlines Pty Ltd [2007] AIRC 101

64 Blair v Chubb Security Australia Pty Ltd PR936527 [2003] AIRC 1006 (19 August 2003)

65 Transcript dated 15.12.14 PN 1056

66 Transcript dated 15.12.2014 PN 1066

67 Blair v Chubb Security Australia Pty Ltd PR936527 [2003] AIRC 1006 (19 August 2003)

68 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Paragraph 12

69 Exhibit 4 Witness Statement Mr S McLaughlin dated 1.12.2014 Paragraph 12

70 Exhibit 4 Witness Statement Mr S McLaughlin dated 1.12.2014 Paragraph 14 - 18

71 Transcript dated 15.12.2014 PN 736

72 Exhibit 3 Witness Statement Mr S Leong dated 1.12.2014 Annexure B

73 Transcript dated 15.12.2014 PN 492 - 496

74 Transcript dated 15.12.2014 PN 497 - 498

75 Transcript dated 15.12.2014 PN 505

76 Transcript dated 15.12.2014 PN 510

77 Transcript dated 15.12.2014 PN 542 - 547

78 Transcript dated 15.12.2014 PN 554 - 562

79 Transcript dated 15.12.2014 PN 570

80 Transcript dated 15.12.2014 PN 578 - 594

81 Transcript dated 15.12.2014 PN 1026

82 Transcript dated 15.12.2014 PN 1035 -1036

83 Transcript dated 15.12.2014 PN 747

84 Transcript dated 15.12.2014 PN 760 - 764

85 Transcript dated 15.12.2014 PN 989

86 Transcript dated 15.12.2014 PN 993

Printed by authority of the Commonwealth Government Printer

Julian D'Helin v A.P. Motors (No.3) Pty Ltd T/A Torque Toyota

[2015] FWC 629

13 FEBRUARY 2015

DECISION