Kim Evans v Cigarette and Gift Warehouse (Franchising) Pty Ltd T/A Freechoice Bentleigh
[2015] FWC 2276
•17 APRIL 2015
The attached document replaces the document previously issued with the above code on 17 April 2015.
The following change has been made:
● In paragraph [5] reference to $600,000 has been corrected to read $63,000.
Renee Mooney
Associate to Commissioner Bissett
Dated 11 May 2015
| [2015] FWC 2276 [Note: An appeal pursuant to s.604 (C2015/3874) was lodged against this decision - refer to Full Bench decision dated 16 July 2015 [[2015] FWCFB 4030] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kim Evans
v
Cigarette & Gift Warehouse (Franchising) Pty Ltd T/A Freechoice Bentleigh
(U2014/14497)
COMMISSIONER BISSETT | MELBOURNE, 17 APRIL 2015 |
Application for relief from unfair dismissal - application granted - compensation awarded
[1] Ms Kim Evans (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal.
[2] Ms Evans was employed by Cigarette & Gift Warehouse (Franchising) Pty Ltd (the Respondent) as the Store Manager at the Bentleigh Store. She commenced employment on 24 September 2012. Her employment was terminated for performance related reasons on 8 October 2014.
[3] On 16 July 2013 the Applicant was given a first written warning. That warning said:
As a result of recent events, I feel it necessary to document my expectations in this written warning. Specifically, I will outline each item individually blow:
1. As you are aware, it is a requirement of your role and outlined in your position description that you check all manufactures’ stock deliveries upon receiving them. We have recently done an investigation concerning the receipting of stock, we have concluded that on the following dates stock has not been checked on your behalf, 6th, 11th, 13th, 17th, 20th and the 27th of June. It is also your responsibility to properly train your staff on the receiving of stock and consequently are responsible if they haven’t implemented the correct procedure.
It is important that you understand the strength of our expectations, it is vital that you are performing all of your duties as outlined in your position description and that your insubordination cease immediately.
Be advised, the company will no longer tolerate this unsatisfactory performance and that your failure to meet the requirements of your position in the future will result in immediate termination of employment. 1
[4] On 23 July 2013, after the first written warning was issued, the Retail Development Officer for the Respondent issued an email to all stores advising that ‘there seems to be some confusion around the procedure for processing invoices’ (the matter for which the Applicant had received the first warning). The email advised that all items delivered needed to be ticked off on the invoice, that the invoice must then be signed and dated and then sent to the office. 2 On receipt of this email the Applicant sought to clarify with Mr Luke Carter, the Victorian/South Australian State Manager, the process. No response was received from Mr Carter.
[5] In July 2014 the Respondent incorrectly invoiced AA Holdings, a major client of the Respondent, about $63,000. This was caused by the Applicant inadvertently indicating that 650 units of a product were included in a delivery when, in fact, there were only 50. This error was not picked up by the Applicant or by AA Holdings on delivery. This overcharging led to wrong reports in stock and sales of the Respondent and incorrect payment by AA Holdings.
[6] Around August 2014 the Applicant was required to place an order with a supplier for cigars to be delivered to AA Holdings. The Applicant says that she placed the order over the internet. After placing the order the Applicant went out to do deliveries and thought no more of the order. Mr Carter contacted her a few days later to ask where the order was. The Applicant indicated that she had not received a confirmation of the order but that she had been having trouble with the internet.
[7] On 18 September 2014 Mr Leo Campanelli, the National Account Manager, sent an email requesting that a warning letter be drawn up to the Applicant because of the error made by her in July of overcharging AA Holdings. Mr Trent Graham, the National Retail Manager replied that ‘We need to replace Kim...’ to which Mr Carter replied ‘Agree’. Mr Andrew Wild, the National Inventory Manager for the Respondent, was also copied into this exchange of emails.3
[8] On 24 September 2014 the Applicant received a second written warning. That warning stated:
As a result of recent events, I feel it necessary to document my expectations in this written warning. Specifically, I will outline and document each item individually below:
1. Whilst processing an order for AA Holdings in Victoria on 7/7/14, you produced a delivery docket indicating 1 x 50 JPS Green 26. The correct stock and quantity was delivered to Dickson Hollier (distributor and warehouse for AA Holdings), however when creating the invoice you have incorrectly entered 650 cartons instead of 50 cartons. That invoice was then sent to AA Holdings and they have paid the whole amount. This has resulted in AA Holdings now being in credit for approx. $63k. This has had a massive impact our business and our sales reports.
2. On the 26/8/14 you placed a cigar order for AA Holdings. On Monday 1/9/14 Luke Carter rang you to confirm the ETA and you told him that the order could take up to a week and a half to get to us from Queensland. Previous deliveries were deployed within 24 hours and would arrive at the Bentleigh store no late than four days from the initial order. Luke rang Metro Wholesalers on 4/9/14 and was advised that the order was never placed. You advised Luke that you had placed the order online yet were unable to provide him with an order number. This is unacceptable with any client but more so with AA Holdings.
It is important that you understand the strength of our expectations, it is vital that you are performing all of your duties as outlined in your position description and that your insubordination cease immediately.
Be advised, the company will no longer tolerate this unsatisfactory performance and that your failure to meet the requirements of your position in the future will result in immediate termination of employment.4(sic)
[9] The Applicant says that she spoke to Mr Graham on 24 September 2014 when he asked her how the recent mistakes had happened. She told him that she was short staffed to which she says Mr Graham said ‘we will see what we can do.’ 5 The following Monday the Applicant emailed Mr Graham and indicated that she needed a driver and another casual staff member so that she did not need to do deliveries but could concentrate on the store and wholesale business.6
[10] Mr Graham says that, arising from the conversation on 24 September 2014, he expected to receive a staffing proposal from the Applicant including a roster showing where she needed the additional casual hours. He says he received nothing more than the email from the Applicant.
[11] On 3 October 2014 the Applicant and Mr Carter were both involved in deliveries to AA Holdings. During the deliveries there was a mix up in the order in the cartons of Rothmans cigarettes. Mr Carter rang the Applicant about the error that day. The Applicant says she also spoke to Mr Wild about the matter some time before 8 October 2014. 7
[12] On 6 October 2014 Mr Wild contacted the Applicant and said that he would be coming to Melbourne on 8 October 2014 to talk to her about how the store was performing. 8
[13] The documentary evidence indicates that the meeting with Mr Wild commenced around 11.15am. 9 Mr Carter was also present although he is not clear if the meeting commenced at about 11.00am or 12 noon.
[14] The Applicant says that Mr Wild questioned her about the mistakes in the store. She explained that some could not necessarily be attributed to her as it could have been either her or Mr Carter who caused the errors. The Applicant said that Mr Wild said the mistakes had happened too often. He then asked if she could print off a letter which he emailed from his iphone. She printed off the letter which was a termination letter. It had a typographical error in the second paragraph which Mr Wild corrected by hand and initialled. 10 The Applicant says that the meeting started at 11.15am and she received the termination letter about 20-30 minutes later. She became upset and went outside for a break and for some air. She says she returned about 15-20 minutes later, handed over what needed to be handed over and left. She says she left at about 1.15pm as she received a speeding ticket at 1.27pm, minutes after driving away.
[15] Mr Wild says that he attended to the store on 8 October 2014 to discuss the store and the Applicant’s performance. He agrees the meeting commenced around 11.15am. He says that during the meeting the Applicant showed ‘no commitment to resolving the issues she was constantly causing and instead blamed others for processes she is ultimately responsible for.’ 11 Mr Wild says that he temporarily left the meeting and rang the HR Manager. On the basis of the responses given by the Applicant a decision was made to terminate the Applicant’s employment. Mr Wild had a termination letter forwarded to his email account. He says the letter was printed out, he corrected the error and initialled the correction and then provided it to the Applicant.
[16] The email containing the termination letter was sent from Ms Rotem, a Human Resource Officer for the Respondent at 11.42am on 8 October 2014. 12 This timing of the email supports Mr Wild’s version of how the meeting proceeded, in particular that he left the meeting at some point and spoke to HR who then emailed the termination letter to him. There is no other explanation for the email being sent at 11.42am and not at some earlier time.
[17] On either version of the meeting it appears from the evidence that the discussion between the Applicant and Mr Wild went for no more that 20-25 minutes at which point Mr Wild apparently called HR and had the letter emailed to him. I accept his evidence that when he rang head office he and the HR Manager spoke and came to the conclusion that the Applicant’s employment should be terminated.
[18] The timing of the receipt of the email containing the termination letter adds credence to this evidence.
[19] The termination letter states:
This letter is to formally advise you that we are terminating your Employment in accordance with Section 1.4 of your Employment Agreement with Cigarette & Gift Warehouse (Franchising) Pty Ltd.
The reason for this action is your unacceptable behaviour, attitude and poor performance in your position of Store Manager.
1. It has been identified that on Friday 3rd October 2014 involving a wholesale order that was being dispatched to Devonport. The stock and invoice did not match and this was identified by the VIC Warehouse Supervisor before the stock left the warehouse left. There were three extra cartons that had not been invoiced. Luke Carter addressed you on this matter and your response was “Oh well”. Allowing stock to be delivered when not invoiced is a direct breach of company procedure and results in stock and account variances, further work for warehouse, store and accounts staff. It also causes embarrassment and portrays a lack of professionalism to our customers. This action is intolerable.
2. Our customer, AA Holdings recently had an issue with their stock. Luke Carter delivered the stock and met you so you could check off the stock against the purchase order and invoice. You called Luke shortly after to confirm all stock was accounted for and correctly invoiced. Luke Carter was short on 10 cartons on Rothman Gold 40’s on another wholesale orders and asked you where the stock was. You stated the stock didn’t come in. Luke questioned on more than three occasions if the stock was checked off correctly, and you replied, “Yes”. We have since had communication from AA Holdings and they have discovered 10 cartons of Rothman Gold 40’s, which is a variant that AA Holdings do not stock. These consistent mistakes, inattention to details and failure to follow procedure is completely unacceptable and will not be tolerated any further. 13 (sic)
[20] Following the termination of her employment the Applicant says she was looking on Seek - a job vacancy website - when she saw two advertisements for the position she had held with the Respondent of Wholesale Sales and Corporate Store Manager - Bentleigh. One advertisement was dated 8 October 2014, the day she was dismissed. The other was dated 30 September 2014, eight days prior to her dismissal 14 but after the date of the email in which Mr Graham said the Applicant should be replaced.
Was the Applicant unfairly dismissed?
[21] I find that the Applicant is protected from unfair dismissal. The Applicant was dismissed, this is not a matter of redundancy and the Small Business Fair Dismissal Code does not apply. It is therefore necessary, in deciding if the Applicant was unfairly dismissed, to determine first if the dismissal was harsh, unjust or unreasonable.
[22] Section 387 of the Act states:
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.
(a) a valid reason
[23] For a reason to be valid it must be ‘sound, defensible and well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason...’15
[24] In this case the Applicant’s employment was terminated for reasons related to poor performance. Despite the letter of termination suggesting that the Applicant’s employment was terminated for ‘unacceptable behaviour, attitude and poor performance’ the only evidence given to the Commission relates to her performance. Each of the warning letters received by the Applicant also indicated that her insubordination must cease immediately. No evidence of insubordination was given. The Respondent suggestion that non-performance is insubordination is not accepted. I have not had regard to this statement in the warning letters in reaching my decision.
[25] The evidence shows that the first warning issued to the Applicant (on 16 July 2013) occurred prior to the email sent to all stores clarifying the procedure for checking off stock (23 July 2013). This email suggests that some general confusion existed at the time of the correct process to be used. There is no evidence that the Applicant failed to follow the correct procedure once the clarifying email was circulated. Further, this incident occurred 15 months prior to the decision to dismiss the Applicant. I do not consider that this incident, having occurred such a long time prior to the decision to terminate the Applicant’s employment, can legitimately be taken into account in considering if there was a valid reason for the termination of the Applicant’s employment.
[26] The matters set out in the second warning (the over invoicing and the cigar order) and the matters set out in the termination letter (the Devonport matter and the Rothmans matter) all occurred in the four months prior to the termination of the Applicant’s employment although none were raised until about two weeks prior to the termination of her employment. Little evidence of any value was given of the Devonport matter such that I could draw any conclusion as to the seriousness of the performance issue or if it could contribute to any valid reason to terminate the Applicant’s employment. For this reason I have not taken it into account.
[27] Of the three remaining issues I note that the Applicant was advised of the first two on 24 September 2014 (although it is not clear why it took so long for the over invoicing issue to be raised). Some nine working days later she was advised of the remaining issues and advised that her employment was to be terminated because of poor performance.
[28] When questioned on the first two matters and asked what assistance she needed the Applicant said she needed a driver to do deliveries and another casual staff member for the store. She put this in writing to Mr Graham who chose to ignore it because the request was not in the form he expected. He did not respond and ask for the information to be provided in some other form nor did he tell the Applicant that an advertisement had already been placed for a casual staff member even though he was aware of this.16 In short, Mr Graham did nothing to respond to the Applicant’s suggestions as to what she needed to ensure such errors did not occur again.
[29] Nine working days after receiving the second written warning the Applicant was told of the further two matters. On the Rothmans matter the Applicant provided an explanation to Mr Wild as to how this may have occurred and that it could have been a mix up between her and Mr Carter who was also involved in delivery of products to the client that day. No discussion occurred with Mr Carter about the incident.
[30] None of the three incidents I have taken into account, either individually or collectively, appear to have been of such a serious nature that the Applicant’s employment should be terminated.
[31] The assistance the Applicant said she needed after the second warning letter was not given to her. If it had, the Rothmans matter might not have happened. I accept that AA Holdings was a major client of the Respondent. In these circumstances it is reasonable to think that the Respondent would have ensured that the Applicant had the resources necessary to service that and other major clients properly.
[32] The Applicant is not blameless in the errors that occurred. The three matters which form the basis for the termination of the Applicant’s employment (to which I have had regard) each indicate an inattention to detail and a failure to complete tasks to a level required of the Respondent. That others failed to also pick up the mistakes (the AA Holdings warehouse on the over-invoicing) or they could be attributed in some part to other problems or people (the internet with the cigars, Mr Carter’s role in the Rothmans matter) does not diminish the responsibility the Applicant had in her position for invoicing, ordering and delivery to be accurate and complete.
[33] I have taken into account that each of the errors attributed to the Applicant’s performance to which I have had regard were all rectified. This does not excuse the mistakes but does indicate that the errors were not irretrievable. I am not convinced that the errors demonstrate some systemic problems with the Applicant’s performance such that they provided a sound and defensible reason for the termination of the Applicant’s employment.
[34] I therefore find that there is no valid reason for the termination of the Applicant’s employment.
(b) whether the person was notified of that reason
[35] In Crozier v Palazzo Corporation Pty Ltd the Full Bench said:
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. 17
[36] I am satisfied that the Applicant was notified of the performance reasons for her dismissal. The errors that she made were set out in the second warning letter or provided to her at the meeting on 8 October 2014. The matters discussed at the meeting on 8 October 2014 were further set out in the dismissal letter. She was notified of the reason prior to the termination of her employment.
(c) whether the person was given an opportunity to respond
[37] In Crozier the Full Bench said that the opportunity to respond is a reference to any opportunity being given before the decision to terminate is taken. 18 This opportunity is the time the employee may put something to the employer that may influence the course of action ultimately taken by the employer.
[38] The Applicant does not say she was not given an opportunity to respond to the matters raised with her. She complains that her explanation was not accepted and that Mr Carter took no responsibility for his part in the Rothmans matter prior to the meeting.
[39] I am satisfied that the matters of performance were particularised to a level that provided the Applicant with an opportunity to respond. It is clear from the second written warning what two of the issues were, and from the Applicant’s evidence 19 she was aware of the Rothmans matter prior to the meeting of 8 October 2014. It is not clear from the evidence that she was aware of the Devonport matter.
[40] The Applicant agrees that she was asked of these things in the meeting of 8 October 2014, prior to her termination.
[41] That a termination letter may have been drafted prior to the meeting of 8 October 2014 (and clearly it had been given the quick turnaround from the phone conversation Mr Wild had with HR to receipt of the letter) does not mean the decision to terminate was a foregone conclusion such that it was not irreversible.
[42] Based on the evidence before me I am satisfied that the Applicant was given an opportunity to respond to the reasons for the termination of her employment in respect of those matters raised in the second written warning of 24 September 2014. The Applicant agrees that she spoke to Mr Wild about these matters after she received the letter - this was when she asked for more staff. On the basis of the evidence I am also satisfied that the Applicant was given an opportunity to respond with respect to the Devonport and Rothmans incidents.
(d) any unreasonable refusal by the employer to allow the person to have a support person present
[43] The Applicant does not say she was denied a support person.
[44] It seems to me it is possible, through actions and words, for an employer to unintentionally mislead an employee as to the reason for a meeting such that the employee does not know, until sometime into the meeting, the purpose of the meeting. In this case it is evident that the Applicant did not understand that the meeting of 8 October 2014 was to discuss the future of her employment. Mr Wild told her that the meeting was to discuss the store’s (and possibly her) performance. This is a different message to an indication that the meeting was to discuss her performance and, depending on the outcome, termination of her employment may result.
[45] I accept however that the Applicant did not request, and so the Respondent did not unreasonably refuse to allow her to have a support person.
(e) whether the person had been warned about that unsatisfactory performance before the dismissal
[46] The purpose of a warning is to make it clear to an employee that his or her employment is at risk unless the identified performance improves. A statement to this effect was included in both the first and second written warnings. To this extent that Applicant was warned of her unsatisfactory performance and the consequence of continued unsatisfactory performance.
[47] Whilst unsatisfactory performance may go to a range of factors including diligence, quality and the care taken in completing tasks 20 the purpose of the warning is to give the employee an opportunity to improve their performance. It is not enough to tell an employee that they are not performing to the level required and then do little to assist the employee in meeting the standards required.
[48] The Applicant told Mr Graham that she needed more staff. She put it in an email to him. There is little doubt that if she did not need to do deliveries she could have paid more attention to wholesale and retail activities including invoicing. Mr Graham received the request for more staff but ignored it as it was not in the form he had anticipated.
[49] It seems to me there is little value in pointing out mistakes or performance issues to an employee without setting out clearly the procedures and/or policies to be followed and to provide what assistance and support is reasonable. There is no evidence that the Respondent did this with respect to those matters in the second warning letter or the termination letter. Further there were only nine working days between the second warning being issued and the dismissal providing the Applicant with little time to show any required improvement in performance.
[50] I am not satisfied that the Applicant was warned of her performance such that she had an opportunity to improve her performance before her employment was terminated on 8 October 2014.
(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
[51] The Respondent is a national company with over 110 employees. The Respondent does not make any submissions on this matter.
[52] This is a neutral matter in my consideration.
(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
[53] The Respondent employs a dedicated human resources specialist. No substantive submissions were made on this issue.
[54] This is a neutral matter in my consideration.
(h) any other matters
[55] The Applicant was the only on-going employee at the Bentleigh store. She had a casual employee who worked three part days a week up to about 16 hours per week. An additional casual staff member had been dismissed some time before the 24 September 2014 warning letter.
[56] Resourcing within the store and for deliveries were issues clearly raised by the Applicant with the Respondent but not addressed by it prior to making a decision to terminate her employment. As I have observed above, Mr Graham could have told the Applicant that the casual position had been advertised but he didn’t. That this occurred in the context of him having decided the Applicant needed to be replaced (the email of 18 September 2014 21) is a relevant consideration.
[57] Evidence was given of the Applicant’s position being advertised on Seek on 30 September 2014 prior to her employment being terminated. No satisfactory evidence was given as to why or how this happened. The Respondent could have called the relevant HR Officer or the Seek consultant to give evidence on the matter but did not. Whilst I accept that there may have been come confusion by the Respondent’s advocate as to the process for having material tendered as evidence in the proceedings, it was apparent that none of the Respondent’s witnesses had any knowledge of the HR processes associated with the advertisement.
[58] The Respondent’s submission is that an earlier advertisement for another position within the Respondent had been advertised on Seek, and that it re-used the remaining time on that advertisement to advertise the Applicant’s position after 8 October. This submission was contested by the Applicant. In the absence of any direct evidence from the Respondent on this issue there is little I can do with its submission.
[59] The existence of the apparent first advertisement is a very strong indication that the Respondent had made a decision to terminate the Applicant’s employment prior to the meeting of 8 October and therefore prior to giving the Applicant an opportunity to respond to the reasons for her dismissal. However, this must be balanced against Mr Wild’s actions, during the meeting of 8 October, in talking to HR and having them send to him the termination letter which suggests that the decision to terminate the Applicant’s employment was not made until some stage during the meeting of 8 October 2014. For this reason I have not had regard to the existence of the first advertisement.
[60] Evidence was given that the Applicant arrived at work around 7.30am to 8.00am each day although was not required to commence until 8.30am. Her evidence is that she worked in the store in the morning and did deliveries in the afternoon. Whilst there was a dispute about what time she finished work I do not consider the resolution of her hours of work critical to the determination of whether the Applicant was unfairly dismissed.
[61] There was contradictory evidence as to how many hours the Applicant spent doing deliveries. Mr Graham said she did about 20% of the deliveries out of Bentleigh while Mr Carter suggested she did about 35% of the deliveries with a delivery driver doing the rest. Whilst it was not disputed that there was a full time delivery driver, he did not do all of the deliveries from the Bentleigh store. The Applicant says that she did deliveries from around 11.00am until the end of the day but agreed that the bulk of deliveries were done by the driver.
[62] The Applicant was not in the store at all times and she had responsibility for deliveries to at least one of the Respondent’s major customers who had 20-30 sites serviced from the Bentleigh store. 22 On the day Mr Wild attended the Bentleigh store the Applicant emailed him and said the store was closed as she was doing a delivery to a major customer.23 Clearly the Applicant had a multitude of tasks to complete that extended beyond invoicing, receiving and dispatching goods.
[63] At the conclusion of the dismissal meeting the Applicant handed over her keys and other items and emptied her car of stock. Both Mr Wild and Mr Carter say that there was returned stock in her car that had been there for several days. They both gave evidence that such returned stock should have been processed at the time it was returned and not left in the car. This was not a matter put to the Applicant and I have placed no weight on it.
[64] Evidence was given as to comments made by the CEO at a conference dinner attended by store managers in respect of the Bentleigh store and its performance. I do not consider this relevant to the matters I need to determine.
Harsh, unjust or unreasonable?
[65] I have considered carefully all of the material before me in this matter. On the basis of the evidence, the decision to terminate the Applicant’s employment did not provide a valid reason or the termination of her employment and was disproportionate to the performance issues raised. For this reason I consider the dismissal to be harsh and unjust.
[66] Even if the performance issues did provide a valid reason for the dismissal the surrounding circumstances including the email of 18 September 2014, the inactivity by Mr Graham in providing the support sought by the Applicant and the limited period within which the Applicant was given to demonstrate any improvement in her performance prior to the termination of her employment suggest that the termination of employment was unreasonable.
[67] For all of these reasons I find that the dismissal of the Applicant was harsh, unjust or unreasonable. She was, therefore, unfairly dismissed.
Remedy
[68] The Applicant seeks reinstatement or, should that not be reasonable, compensation.
[69] The Respondent says that reinstatement is not reasonable for a number of reasons. Firstly it says that there has been a loss of trust and confidence in the Applicant; second it says that the working relationship between the Applicant and the Respondent has broken down; third it says that it has engaged a replacement employee for the Applicant’s position and finally it could have no confidence if the Applicant returned because of the lack of care demonstrated by her in her work and her complacency in respect of the errors she made.
[70] That the Respondent has engaged a replacement for the Applicant is no reason not to order reinstatement. I am, however, aware of the close working relationship between Mr Carter, Mr Graham and the person occupying the Applicant’s position. To this extent I have taken note of the email of 18 September 2014 where Mr Carter and Mr Graham indicate that they had lost confidence in the Applicant’s ability to continue to perform her role. Whilst this opinion may be unjustified it is their view and will, inevitably, infect their attitude to her should she be reinstated. I am also mindful of the potential impact of some of the errors made by the Applicant on the Respondent’s relationship with one of its major clients. These are matters relevant to whether reinstatement is appropriate.
[71] If she was reinstated the Applicant would have to interact with Mr Carter daily and Mr Graham on a frequent basis. The Respondent is not such a business that the Applicant could be reinstated into an equivalent position where she did not need to interact with these two managers.
[72] In these circumstances I am satisfied that reinstatement is not appropriate.
[73] Section 392 of the Act sets out the criteria the Commission must take into account in determining compensation. I have considered each of those matters.
[74] I am satisfied that the amount of compensation I decide to award will not have any adverse effect on the viability of the Respondent’s enterprise (s.392(2)(a)).
[75] The Applicant had been employed by the Respondent for two years (s.392(2)(b)). Whilst there had been some performance issues there is no reason to assume that, with the provision of the assistance sought, these performance issues would not have been overcome.
[76] The Respondent submits that, given her performance, it is likely the Applicant would have been dismissed in the following few weeks. I do not accept that this is the case. It is just as likely that, given support, the Applicant’s performance would not have been an issue again.
[77] I accept that there were matters in her employment that the Applicant was not happy about. These included her hours of work (which she suggested were excessive) and the resources available to her. The Applicant is young and it is possible that, had these things not improved, she would have sought alternative employment.
[78] Taking all of these matters into account I am satisfied that the Applicant would have remained in employment with the Respondent for a further 12 months.
[79] Had the Applicant’s employment not been terminated she would have earned $42,977.76 plus 9.5% superannuation plus a $100 per week car allowance 24 (s.392(2)(c)) for that anticipated period of employment.
[80] In the period since her dismissal that Applicant has earned a total of $2,844.41. Her lost earnings are therefore $40,153.35 plus the car allowance.
[81] I am satisfied that the Applicant has made reasonable attempts to mitigate her loss. She gave uncontested evidence of the attempts made by her to find alternative employment (s.392(2)(d)).
[82] I have deducted from her lost earnings an amount of 10% for contingencies. The Applicant is young, is apparently in good health and nothing was put to suggest she would not continue working.
[83] Section 392(5) of the Act sates that the amount ordered in compensation cannot exceed the total amount of remuneration received by the person in the 26 weeks prior to dismissal. I am satisfied that the Applicant’s car allowance should be included in a consideration of the ‘total amount of remuneration’ she would have received. The Applicant’s total lost remuneration well exceeds the statutory cap of 26 weeks remuneration that she otherwise would have been entitled to had she not been dismissed (s.392(5)).
[84] I shall therefore order that the Respondent pay the Applicant the maximum amount payable of an amount of $24,098.88 plus 9.5% superannuation in compensation.
[85] An order requiring the payment of this amount with 21 days of the date of the order will be issued with this decision.
COMMISSIONER
Appearances:
J. Taylor of Counsel for the Applicant.
S. Ozioko from the Respondent.
Hearing details:
2015.
Melbourne:
February 16.
Final written submissions:
Applicant, 10 March 2015 and 30 March 2015.
Respondent, 24 March 2015.
1 Exhibit R3, attachment C.
2 Exhibit A1, attachment KE1.
3 Exhibit A6.
4 Exhibit R3, attachment E.
5 Exhibit A1, paragraph 22.
6 Exhibit A1, attachment KE5.
7 Exhibit A1, paragraph 25.
8 Transcript PN861.
9 Exhibit A5 is an email from Mr Wild to the Applicant at 10.56am indicating he would ‘be there in 20 mins.’
10 Exhibit A1, paragraphs 26-7.
11 Exhibit R3, page 2.
12 Exhibit A7.
13 Exhibit A1, attachment KE6.
14 Exhibit A2.
15 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
16 Transcript PN418.
17 (2000) 98 IR 137, [73].
18 (2000) 98 IR 137, [75].
19 Exhibit R1 is an email to the Applicant from Mr Wild forwarding details of the wrong delivery of Rothmans.
20 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237 [16].
21 Exhibit A6.
22 Transcript PN491.
23 Exhibit A5.
24 Exhibit R6. Her hourly rate of pay was $21.76 and she was in receipt of a car allowance of $100 per week.
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