Klein v Australian Baseball League Pty Ltd
[2016] FCCA 1722
•8 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KLEIN v AUSTRALIAN BASEBALL LEAGUE PTY LTD & ORS | [2016] FCCA 1722 |
| Catchwords: INDUSTRIAL LAW – Contract of employment – employer giving notice one month before expiration and paying out that month – whether such constitutes dismissal – application dismissed – associated jurisdiction – matters not put to respondent that are subsequently the substance of submissions – all claims dismissed |
| Legislation: Fair Work Act 2009, s.340, s.342, s.361, s.386 Federal Circuit Court Act 1999 (Cth) s.18 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 |
| Applicant: | JASON DOUGLAS KLEIN |
| First Respondent: | AUSTRALIAN BASEBALL LEAGUE PTY LTD |
| Second Respondent: | PETER WERMUTH |
| Third Respondent: | BENJAMIN FOSTER |
| File Number: | BRG 1067 of 2014 |
| Judgment of: | Judge Vasta |
| Hearing date: | 17 and 18 March 2016, 27 and 28 June 2016 and 23 August 2016 |
| Date of Last Submission: | 10 October 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 8 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dwyer on 17, 18 March, 27 and 28 June 2016 |
| Solicitors for the Applicant: | Macpherson Kelley on 17, 18 March, 27 and 28 June 2016 |
The Applicant appeared on his own behalf on 23 August 2016
| Counsel for the First, Second and Third Respondents: | Mr Healy |
| Solicitors for the First, Second and Third Respondents: | Carroll & O'Dea |
ORDERS
That all outstanding applications be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1067 of 2014
| JASON DOUGLAS KLEIN |
Applicant
And
| AUSTRALIAN BASEBALL LEAGUE PTY LTD |
First Respondent
And
| PETER WERMUTH |
Second Respondent
And
| BENJAMIN FOSTER |
Third Respondent
REASONS FOR JUDGMENT
Introduction
By an amended statement claim filed on 11 May 2016, the Applicant, Jason Douglas Klein, asks this Court for declarations that the First Respondent, Australian Baseball League Pty Ltd (“ABL”), has contravened the Fair Work Act 2009 (Cth) (“the FW Act”). The Applicant also asks for pecuniary penalties to be ordered and also for those penalties to be payable to him. The Applicant also seeks damages for breach of contract.
In his claim against the Second Respondent, Peter Wermuth, the Applicant seeks a declaration that the Second Respondent has contravened the FW Act. The Applicant seeks an order that the Second Respondent pay compensation as a result of those contraventions. Surprisingly, the Applicant does not seek pecuniary penalties to be paid by the Second Respondent.
In his claim against the Third Respondent, Benjamin Foster, the Applicant seeks a declaration that the Third Respondent contravened sections of the FW Act. The Applicant seeks an order that the Third Respondent pay compensation as a result of those contraventions. The Applicant also seeks an order that the Third Respondent pay pecuniary penalties for such breaches and that they be payable to the Applicant.
The Applicant is an American citizen who came to Australia to work for the First Respondent in the position of General Manager (“GM”). He was given a 12 month contract with the First Respondent. He claims that his tenure with the First Respondent was punctuated by many failings of the First Respondent.
The First Respondent gave the Applicant one months’ notice that they were terminating the employment of the Applicant, however that one month coincided with the end of the contract. The First Respondent did not require that the Applicant work out that last month and instead paid him what the First Respondent considered were all the payments due under the contract.
The Applicant contends that the termination was adverse action. The Applicant contends that such action was motivated by the constant “complaints” that the Applicant made to the First Respondent. The Applicant contends that such “complaints” were expressions of a workplace right and therefore the termination was contrary to s.340 of the FW Act.
The Three Respondents
The Australian Baseball League is a company that has been set up to run a baseball competition in Australia. The company has two shareholders; the Australian Baseball Federation and Major League Baseball. The latter shareholder runs a very large competition in North America. The First Respondent started operations in 2010 and launched its first competition in November 2010.
The competition run by the First Respondent involves six teams or “franchises”. The First Respondent owns all six franchises. The teams are located in Perth, Adelaide, Melbourne, Canberra, Sydney and Brisbane. The franchise in Brisbane is known as the “Brisbane Bandits”.
The Second Respondent was the Chief Executive Officer (“CEO”) of the Australian Baseball League. He was in that position from the inception of the First Respondent. The Second Respondent ceased employment with the First Respondent in October 2015. The Second Respondent was the CEO of the First Respondent at all times in which the Applicant was employed by the First Respondent.
The Third Respondent is the General Manager (“GM”) of the First Respondent. He was the first official employee of the First Respondent and played a foundational role in the operation of the First Respondent since its inception. The Third Respondent reported directly to the Second Respondent and, together with the Second Respondent, was responsible for the day-to-day financial management of the First Respondent. He was in this role for the whole of the employment of the Applicant.
The Employment of the Applicant
In March 2013, the First Respondent advertised the role of GM of a franchise. The advertisement was run on the internal web page of the First Respondent and of Major League Baseball, one of the shareholders. The Applicant answered that advertisement.
The Applicant was contacted on 14 August 2013 by the First Respondent requesting an interview. At this time, the Applicant was told that the position was as GM of the Brisbane Bandits. The interview occurred on 27 August 2013 between the Second Respondent and the Applicant. There was a “second interview” on 3 September 2013 between the Applicant and the National Facilities Manager of the First Respondent, Daniel Amodio. In that conversation, the challenges of the Brisbane Bandits playing at a new field were explained to the Applicant.
On the 6 September 2013, a “third interview” was conducted between the Applicant and the Third Respondent. On 12 September 2013, the Third Respondent sent, by email to the Applicant, an offer of employment. Whilst there were other exchanges between the two, the Applicant accepted the offer of employment.
On 24 September 2013, the Applicant signed the contract. The contract was then sent via email to the First Respondent. The contract is attachment BF-07 to the affidavit of the Third Respondent. The contract is for one year with the First Respondent having an option for renewal. The contract was also subject to the Applicant retaining legal working status in Australia.
The contract stated that “Contract renewal may be reviewed at any time after 1 January 2014 but no later than 30 June 2014”.
The annual salary was $72,000.00 with additional sales commission based on a number of targets and that all figures were inclusive of the statutory superannuation.
The Applicant arrived in Australia on 12 October 2013 and commenced employment with the Brisbane Bandits as the GM immediately.
Subsequent Emails and Communications between the Applicant and the First Respondent
The working conditions for the Applicant were less than ideal. In the previous season, the Brisbane Bandits had played at the RNA Showgrounds. For a number of reasons, the First Respondent decided that it would be better for the Brisbane Bandits to move to Holloway Field. This ground was still being “renovated” when the Applicant started work. There were only 17 days before the baseball season started when the Applicant commenced his duties.
On 20 November 2013, the Applicant sent an email to a number of people including the Second Respondent. The subject of the email was “State of the Bandits - 20/11/13”. This email is annexed to the affidavit of the Applicant as “JK – 10”. It is a very extensive and thorough email that details:-
a)what was the state of things when the Applicant arrived (i.e.; what he inherited);
b)what was the current state of things as perceived by the Applicant;
c)what was needed to happen in the immediate future; and
d)what were the biggest challenges that lay ahead.
The email ended with a paragraph that read:-
“…Finally, Shea and I will both attest that this experience has been far more difficult than anything we envisioned. 19-hour days are the norm. As I write, this I’m going on a 21-hour day. We have no social life so there is only baseball to look forward to. Neither of us have received payment or reimbursement from the league yet. We live in a 2-bedroom apartment across the street from Holloway Field, and in addition to our beds, we only have a table, four chairs, a microwave, toaster and a dishwasher to our name. We simply haven’t had the time or the money to procure any of the conveniences of life! We’re passionate about what we do, but we both feel that the situation we inherited could have been easily avoided. The above issues are real. If you are willing to provide ideas, please also provide operational strategies and a path to guide us to achieving the idea.
Thanks for reading.
Jay”
From this time on, there were many emails that the Applicant sent to employees of the First Respondent where he raised issues. These are, according to the annexures in the affidavit of the Applicant, as follows:-
a)13.11.13 (JK-7) an email pointing out a person had not been paid;
b)13.11.13 to 2.12.13 (JK-8) an email chain regarding reimbursements;
c)19.11.13 (JK-9) an email asking about reimbursements;
d)25.11.13 (JK-11) an email asking whether the reimbursements have been paid;
e)6.12.13 (JK-12 ) an email regarding payment of the Internet account;
f)11.12.13 (JK-14) an email enquiring as to reimbursements for the assistant to the Applicant;
g)12.12.13 (JK-15) an email enquiring as to the setup of a recurring payment for the Internet;
h)12.12.13 (JK-16) an email about game day beverages;
i)14.12.13 (JK- 17) an email about the Internet account payments;
j)17.12.13 (JK-18) an email submitting reimbursements and a request that they be paid;
k)18.12.13 (JK-19) an email about the Internet account noting that this was the third request;
l)24.12.13 (JK-20) an email attaching employee expense forms noting that the Applicant is “now out $10,019.70”;
m)30.12.13 (JK-21) an email about a payment to the assistant to the Applicant
n)1.1.14 (JK-22) an email about reimbursements to volunteers with a note “this is serious so please respond ASAP”;
o)1.1.14 (JK-23) an email noting that payment was not made for a broken bollard;
p)2.1.14 (JK-24) an email enquiring after an invoice for “mower place”;
q)10.1.14 (JK-25) an email enquiring as to payment to the Ithaca ice works;
r)17.1.14 (JK-26) an email querying payment to a bar manager;
s)21.1.14 (JK-27) an email asking for payment to Veolia ASAP;
t)22.1.14 (JK-28) an email requesting payment to the bar manager;
u)24.1.14 (JK-29) an email pointing out that the bar manager has not been paid for 3 weeks in a row;
v)28.1.14 (JK-30) an email explaining the uploading of the “ final series game day reconciliation” and a notation that the Applicant was frustrated in receiving the email from the Second Respondent;
w)29.1.14 (JK-31) an email regarding payment to cleaners;
x)3.2.14 (JK-32) an email attaching documents to finalise reconciliations;
y)4.2.14 (JK-33) an email attaching a further document needed for the financial reconciliation;
z)13.2.14 (JK-34) an email explaining the lodging of the reimbursements;
aa)17.2.14 (JK-35) an email enquiring as to payment of invoices previously submitted;
bb)19.2.14 (JK-36) an email also enquiring about outstanding invoices;
cc)26.2.14 (JK-37) an email about an overdue account;
dd)6.3.14 (JK-38) an email regarding uncoded transactions where the Applicant speaks of his personal circumstances;
ee)7.3.14 (JK-40) an email regarding mileage allowance;
ff)28.3.14 (JK-42) an email regarding payments where the Applicant speaks of his personal circumstances;
gg)17.4.14 (JK-44) an email listing matters on the Applicant’s “waiting for Ben to reply” list;
hh)17.4.14 (JK-45) an email enquiring about security invoices ;
ii)12.5.14 (JK-48) an email chain headed “performance management” talking about contraventions of financial policy ;
jj)26.5.14 (JK-49) an email chain headed “fuel charges” where the policy regarding fuel allowances is discussed;
kk)30.5.14 (JK-51) an email commenting upon the team Ops plan;
ll)3.6.14 (JK-53) an email commenting on the fact that a hard copy of a tax declaration was needed;
mm)6.6.14 (JK-54) an email commenting on staff changes;
nn)6.6.14 (JK-55) an email to the Second and Third Respondents asking questions about the commission; and
oo)17.6.14 (JK-56) an email to the new staff member asking about payment for another staff member.
I have referred to these emails in as neutral a term as possible. The sending of these emails is a large part of the contentions of the Applicant. Having read those emails, there is a notable degree of justifiable frustration in the manner in which the Applicant expresses himself.
Other Circumstances involving the Employment
The Applicant did not have a valid work Visa when he arrived in Australia. It took until mid to late March 2014 for the Applicant to obtain such a Visa. Given the payroll was completed on a monthly cycle, it was not until 1 April 2014 that the First Respondent paid the Applicant. He was paid all salary due to him in one lump sum at that time.
The Applicant had also expended his own personal money for work purposes. The policy of the First Respondent was that such expenditure would be reimbursed upon submission of the proper form. Even when submitting the proper form, it often took an inordinate amount of time for the First Respondent to pay the claim. It is very easy to feel a great deal of sympathy for the plight of the Applicant in those circumstances.
What is also very clear is that the First Respondent was often tardy in paying its bills. This may be because there were sponsors and others who were tardy in paying the First Respondent but such matters were beyond the control of the Applicant. Yet it was the Applicant, as GM of the Brisbane Bandits, who had to bear the brunt of the queries, and sometimes anger, of the creditors.
From the material produced by the First Respondent, and the evidence of the Second and Third Respondents, the First Respondent concedes and accepts that it was tardy in making payments. There was an acknowledgement that the First Respondent did have a reputation for this practice. The Third Respondent gave evidence that for the majority of the time that the Applicant was employed, there was only one person working in accounts, three days a week who had to complete all of the transactions.
That person had to process up to 90 detailed account transactions per day to keep up with the transactional demand and there are simply not enough hours in the day to do this. In the period between 1 March 2013 and 1 July 2014, the average transaction processing time was 53 days.
The Third Respondent said that there were universal expressions of dissatisfaction from several senior Australian Baseball League employees over the inefficiency of the accounting system used. The Third Respondent said that every single general manager and assistant general manager had made multiple complaints and enquiries to both the Australian Baseball League and to the Third Respondent personally about the speed and efficiency with which the Australian Baseball League paid its bills.
With respect to the number of emails sent by the Applicant to regarding non-payment or late payment of accounts, the Third Respondent was clear that the Applicant was not “Robinson Crusoe” in this regard.
The Employment Contract
The contract of employment at Appendix 1, contained this notation regarding annual salary:-
“Annual salary: A $72,000.00 base salary, with additional sales commissions based on the following sales targets
-Sponsorships sales -5% of Net Sponsorship Sales Cash and/or agreed “trade” or “contra” sponsorships. Trade values are assigned at the ABL’s sole discretion.
-Ticket Sales – 7.5% of Net Ticket sales
-Concessions Sales – 7.5% of net concessions profit;
-Merchandise Sales – 5% of net merchandise profit;
All salary amounts and eligible commissions are represented inclusive of statutory superannuation.
Sales commissions will be calculated on net sales (exclusive of GST) after cost of stock and any servicing costs have been deducted. All targets will be revised routinely with new business growth and development. Commissions are also contingent on overall employee performance and staying within budgeted team/franchise expense limits. All commission payments are ultimately at the sole discretion of ABL.”
At Appendix 3 to that contract, the list of performance targets was contained in a table as follows:-
Overview
These Targets will form the primary basis for the employee’s performance review and subsequent continuation and/or renewal of contract.
Targets will be review annually (at a minimum) and more frequently as new business growth dictates.
While primary focus will be on achieving set revenue targets; an overall assessment on business profitability and effective management of expenses will be required for effective performance.
Brisbane Bandits
Net Income (Loss)
Income
Corporate Sponsorship
Ticket Sales
Other income
Concessions (Net)
Merchandise (Net)
Total Income:
Expenses
Direct Sales Costs
Baseball operations
Travel
Gameday operations
Marketing and publicity
Player Compensation
General administration
Team Total Expenses
Season 2013-14 Targets
-300,000
120,000
87,500
12,500
20,000
10,000
250,000
15,000
120,000
115,000
55,000
35,000
50,000
160,000
550,000
It is these two parts of the contract upon which most of the trial revolved.
Commissions
The Applicant claimed that he had not been paid commission in the terms of his contract. It is clear from the way in which the commission aspect is addressed in the contract that commission becomes payable regardless of “who has done the work”. The Applicant is the general manager and therefore whatever sales, be they sponsorship, ticket, concessions or merchandise, are sales made under his watch. Therefore he is entitled to the commission, subject to the conditions in the contract. It is also clear in the contract that “all commission payments are ultimately at the sole discretion of the ABL”.
The email, identified above as JK-55, is the first written communication about the payment of commissions. The Applicant gave evidence that he had a number of verbal conversations with the Second Respondent and with another ABL employee, Mr Brian Wagner, about the payments (or lack thereof) of commission.
Performance Targets
What is also clear from the contract is that the performance of the Applicant was always going to be judged against the criteria in Appendix 3 of the employment contract. I accept the evidence of the Second and Third Respondents that these targets had been set deliberately low so as to ensure that the ABL was not being unrealistic in what it was setting for the Applicant.
The Appointment of Mark Ready and the email of 30 June 2014
Leading up to 30 June 2014, there had been a meeting on 29 May 2014 between the Second Respondent and the Applicant. At that meeting, the Second Respondent spoke quite sternly with the Applicant and made the Applicant aware that he needed to improve his management performance of the Bandits if he wished to stay employed with the ABL.
Mark Ready is a local businessman who was a sponsor of the Brisbane Bandits as well is having other connections in the “baseball family”. He offered to serve in a senior management capacity to the Bandits for no money. Mr Ready has an extensive business network and strong business acumen, and so such an offer was, in the end, readily accepted by the ABL.
Mr Ready became the CEO of the Brisbane Bandits and from that point the Applicant now reported to Mr Ready. This appointment meant that the Applicant could now focus more heavily on sales for the Brisbane Bandits. The appointment of Mr Ready became effective as of 20 June 2014.
A week later, Mr Ready provided an update to both the Second and Third Respondents. In that update, Mr Ready spoke of a number of sales that he had made in that first week. The Third Respondent was able to independently corroborate the fact that those sales had in fact been made.
The fact that Mr Ready was able to make such an immediate impact reinforced the view that the Third Respondent had formed about the Applicant. That view was that the Applicant’s performance was poor and that his excuses about his circumstances and environment were not valid.
Ms Kate Dobie had been appointed at the end of March 2014 as Assistant General Manager to the Applicant. As part of internal reviews, Ms Dobie had provided the Second Respondent with her review of the performance of the Applicant in the three months that she had worked with him.
The feedback given by Ms Dobie was somewhat guarded. She wrote “this was very hard feedback for me to offer because I hold (the Applicant) in high esteem”. She assessed his performance as a “two out of four” and added that the Applicant was not carrying out the daily duties of his job description. Ms Dobie said that she was not confident in the ability of the Applicant to fulfil those duties even under ideal circumstances.
A decision had to be made by 30 June 2014 as to whether or not the First Respondent would renew the contract of the Applicant. On the evidence before me, the matter seems to have been discussed between the Second and Third Respondents as well as Mr Ready.
The Second Respondent had a discussion with the Applicant on 27 June 2014. It seems that the discussion between the two of them involved the role of Mr Ready.
Later that morning, the Second Respondent wrote an email to Mr Ready which said:
“Mark,
Catching up with Jay this morning, the first time since you have been appointed, I made the call during the conversation that it was not the right time to pull out the hammer on him and tell him that we are not renewing his current contract and will assess him over the coming month to determine whether we will give him a new one.
He was positive about your appointment and I did not want to squash his spirits and what I hope is currently a positive working environment. I will speak to him again on Monday and let him know then.
Regards,
PETER WERMUTH
CHIEF EXECUTIVE OFFICE”
Mr Ready responded to that email in these terms:
“Hi Peter,
Thanks for the heads up. As previously stated I would like 8 weeks minimum to assess his performance in any event. I believe there are some positives with his future at the Bandits.
I may well be able to redefine his job so it is a benefit to both the ABL and himself.
Have a good weekend.
Cheers
Mark R
Sent from my iPhone”
On 30 June 2014, the Second Respondent wrote to the Applicant via email in these terms:
“Jay,
As per our employment agreement, I have taken the chance to review a number of the performance targets set out in your contract. As was made clear, these targets form the primary basis for your performance review and subsequent continuation and/or renewal of contract.
As at today the results against these targets are presented below;
Brisbane Bandits
2013-14 Targets
2013-14 Actuals
VARIANCE
%OVER/UNDER
Net Income (Loss)
-300,000
-358,448
-58,448
-19%
Income
Corporate sponsorship
120,000
46,663
-73,337
-61%
Ticket Sales
87,500
97,313
9,813
11%
Other income
12,500
28,615
16,115
129%
Concessions(Net)
20,000
48,149
28,149
141%
Merchandise (Net)
10,000
720
-9280
-93%
Total Income:
250,000
178,289
-71,711
-29%
Expenses
Direct Sales costs
15,000
12,582
-2,418
-16%
Baseball operations
120,000
156,667
-36,667
31%
Travel
115,000
118,232
-3,232
3%
Gameday operations
55,000
46,029
-8,971
-16%
Marketing and publicity ops
35,000
19,248
-15,752
-45%
Player compensation
50,000
45,972
-4,028
-8%
General administration
160,000
138,007
-21,993
-14%
Team Total Expenses
550,000
536,737
-13,263
-2%
Upon review of these results we will not be exercising out ABL option to renew your current agreement.
However, we do feel that you made a concerted effort given the circumstances and timing of your appointment. With Mark’s appointment we see additional opportunity to turn things around by allowing you to focus on your strengths as we discussed.
We will therefore reassess your new KPIs and targets in line with the current circumstances and expectations, and use the remainder of your current contract period (expires September 23, 2014) to assess. During that time the ABL may offer and extension, renewal or alternate contractual agreement.
I would obviously like to discuss this further and will ask Nicole Atkins to schedule some time for us to talk.
Regards
…”
By this email, the First Respondent had fulfilled their contractual obligation to review a matter of the contract renewal of the Applicant. The interpretation of this email has been a source of great debate in the trial.
The Reaction of the Applicant and Subsequent Communications
The Applicant replied to the Second Respondent the next day just before midnight. The email started in this way:
“Peter,
If we’re fair, we would evaluate me on the line items in which I had control- not line items largely or entirely controlled by the league front office. Keep in mind that every other team was allotted 12 months to achieve targets, had institutional knowledge, and a staff. I, on the other hand, was thrown in seven months late, with a skeleton staff of newcomers, no marketing collateral or lead lists, and with fewer volunteers than it takes to operate a coffee machine. Regarding some of the revenue streams, I had nothing to do with ordering the merchandise that showed up after our third series. And since any sales person will tell you that sponsorships are long lead time efforts- even with collateral, staff and lead lists- I’m quite certain that given the circumstance in which I was thrown, nobody who parachuted in without knowledge of the city or political culture would have achieved the numbers set up for me eight months prior to my arrival. Most of the line items under the expenses table were 100% league-controlled, so again, this is not a reflection of me or my efforts and these figures should not have any bearing on my evaluation.
The two revenue line items in which I actually had some control- ticket sales (short lead times) and concessions – were both achieved despite the lack of volunteers, lists or collateral. Below I’ve re-created two tables – one which shows categories the league largely controlled and one which shows what I largely controlled. In fact, I actually exceeded my targets by over $103,000. Not bad …”
The Applicant then reproduced the tables in the email of the Second Respondent but added another column headed “comment”. In that: he spoke about whether the particular aspect was in his control or outside of his control. The matters with a negative variance he described as being out of his control and the matters with a positive variance he described as being in his control. He concluded that he had therefore exceeded his budget target by over $100,000.00.
He concluded the email with:
“Happy to chat with you about my performances. I’m quite proud of what I’ve accomplished to this point, but I know that we’re still a long way from where we want to be. I’m going on holiday tomorrow night and am slammed all day tomorrow, so perhaps it makes sense to chat when I return. If you want to chat tomorrow though, I’ll fit it in.
Jay.”
There was no further discussion about this matter. The Second Respondent did not contact the Applicant about the matter and the Applicant did not contact the Second Respondent about the matter.
Later that month the Applicant submitted his calculations as to commissions owed to him. He also submitted fuel reimbursements through Mr Ready. Mr Ready approved the reimbursements but the Third Respondent denied them stating that there was a limit for fuel reimbursements of $150.00 (though this decision was not made until early August). The Applicant argued the point with the Third Respondent.
In the following weeks there were conversations between the Third Respondent and Mr Ready. Mr Ready told the Third Respondent that the Applicant was not performing and that he was superfluous to the needs of the Bandits.
In late July there was also an unfortunate incident in the workplace where the Applicant was extremely inappropriate in his dealings with other staff (Ms Dobie). The Applicant wrote to Mr Ready seemingly giving him examples of the “insubordination” of Ms Dobie. Mr Ready responded to the Applicant in these terms:
“Jay,
Thank you for that informative email, but that is irrelevant to your behaviour as the General Manager in this office towards another staff member.
Aggressive behaviour, intimidation and swearing at any staff member let alone a female staff member will not be tolerated in this franchise while I am CEO.
The remedial action is to come to me with these problems as you have now done and I will mediate a solution.
Please adhere to this process in the future.
Regards
…”
There was subsequently a big increase in the sales generated by the Brisbane Bandits.
On 21 August 2014, the Applicant sent an email to the payroll section of the First Respondent regarding commissions. That email reads as follows:
“Hey guys,
This is my first time doing commissions, so please feel free to assist. I don’t know what Kate’s rate is so I left it blank. I also attached our volunteer commission plan. This plan is for paid (stipend) interns only. If unpaid (and no stipend), they get 15% of the first $6,000 they sell and then they fall back into this plan.
My commission is also an estimate. I’ve seen so many conflicting numbers that I don’t really know what to put down, so I used numbers that Peter provided.”
Before that email had been sent, there had been a conversation between Mr Ready and the Second Respondent. At paragraphs 72 and 73 of the affidavit of the Second Respondent, he said this:
“72.In approximately mid August 2014, during the course of a telephone discussion with Mark ready, an exchange took place to the following effect:
MR: ‘The longer that I’ve been here, the more I’ve come to appreciate how poorly Jay has prepared the club for the next season, and the limited work he’s done. He is not only not helping but his continued presence in the office is counterproductive. He is a negative influence on the other staff and is holding the club back. I’d like to finish him up.’
PW: ‘His contract still runs through to 22 September. Do you want to let him work that out?’
MR: ‘Not, if it can be avoided. He is just not contributing. I would rather get someone else in who can.’
73. Based on the continued feedback I received from Mark Ready (who was having a very positive impact on the Brisbane Bandits organization), I formed the view that the Applicant was not being productive in his role as General Manager, and that his lack of enthusiasm was negatively affecting morale at the Bandits’ offices. Accordingly, I formed the view that it would be unnecessary and inappropriate to keep the Applicant employed until the expiration of the contract, which would take place in a months’ time.”
The employment contract was a one-year employment contract which technically commenced on 23 September 2013 (as this was the date that the Applicant signed the contract and the date from which the First Respondent eventually paid him). Therefore the contract would end on 22 September 2014.
The contract also permitted either party to terminate the employment contract with a notice period of one month. At paragraphs 75 and 76 of his affidavit, the Second Respondent said:
“75. Accordingly, on 22 August 2014, I contacted the Applicant via telephone to advise him that the ABL was terminating his employment with one months’ notice.
PW: ‘Hi Jay. As you know your contract is set to expire in one month. Please be advised that the ABL has decided to terminate your employment on one month’s notice as per your contract. We do not need you to work out the remaining 30 days and you can instead focus on finding another opportunity. We will pay you in lieu of this final month with your last day today.
76. After I had relayed this, the Applicant made a number of requests for specific reasons and examples to support my decision. As I believed the Applicant was fully aware of the basis for my decision and that my decision was not negotiable, I did not indulge the Applicant by providing him with any specific examples of poor performance which formed the basis of my decision.”
The Applicant was then sent a letter dated 22 August 2015 terminating his employment. The letter reads as follows:
“Dear Jay,
RE: Non-Renewal of Employment Contract
I refer to my previous email to you dated 30 June 2014 in relation to your employment with the Australian Baseball League Pty Limited (‘the ABL’).
As previously advised the ABL has decided not to renew your current employment contract, dated 23 September 2013 and which is currently set to expire/terminate on 22 September 2014 pursuant to its one-year contract term. I also regret to inform you that the ABL will not be making any alternate/new contract offer of employment.
This letter serves to provide you with one (1) month’s written notice of the termination of your employment pursuant to clause 41 of your employment contract dated 23 September 2013. In the circumstances, and in accordance with that clause 41, the ABL does not require you to work out your one month notice period from 22 August 2014 to 22 September 2014. Instead, you will receive payment in lieu of your salary for this notice period, along with the payment of any accrued and untaken annual leave up to the date of termination. These payments will be made to you within seven days of the date of this letter.
Finally, the ABL requires you to return all ABL property within your possession (premises keys, mobile phone, phone SIM, computers, etc) within three business days of the date of this letter. All property should be returned to the Brisbane Bandits via Mark Ready no later than 5pm on Wednesday, August 27 2014. Alternatively please contact Ben Foster or myself in order to make arrangements for the return of this property.
I thank you for your contribution to the ABL during the last year and I wish you the best of luck for the future.
Regards,
Peter Wermuth.”
The Applicant was then paid his salary and/or other payments that were due to him. This included commission calculated as a gross amount of $12,775.11. These commission calculations are annexed to the affidavit of the Third Respondent and marked “BF-26”.
The Claims made by the Applicant
In the amended statement of claim, the Applicant describes his actions in writing the emails and speaking to the Second and Third Respondents as “making complaints”. He alleges that there was a continued failure and a repeated refusal of the First, Second and Third Respondents to pay the entitlements of the Applicant in relation to:
a)Business-related expenses;
b)Motor vehicle costs associated with performing his duties under the employment contract; and
c)Commissions.
The Applicant alleges that, because he exercised his workplace rights in making enquiries and complaints in relation to his employment, he was dismissed by the First Respondent.
The Applicant claims that in failing to make the payments, the three Respondents have committed adverse action in that they have injured the Applicant in his employment.
The Applicant claims that the First Respondent has committed adverse action in terminating the employment as such was a dismissal under the FW Act. Alternatively, if the action was not a dismissal, then there was still adverse action because the First Respondent improperly declined to renew or extend the employment or to offer a new employment contract.
The Applicant also claims that the First Respondent has breached the employment contract by not paying his contractual entitlements. As a result of that breach of contract, the Applicant claims he has suffered loss and damage as a result. The Applicant claims the loss includes:
a)Pain and suffering;
b)Access to entitlements for commissions and the reimbursement of business-related expenses; and
c)The opportunity to earn further income.
By virtue of s.361 of the FW Act, as the Applicant has alleged that the First Respondent did not pay him his entitlements because he made the complaints, it is presumed that this is why the First Respondent did not pay him the entitlements unless the First Respondent can prove otherwise.
By virtue of that same section of the FW Act, as the Applicant has alleged that his employment was terminated (or his employment was not renewed or extended or a new contract offered) because he made the complaints, it is presumed that this is why the First Respondent did terminate the employment unless the First Respondent can prove otherwise.
The Conduct of the Proceedings
This trial began on 17 March 2016. It was adjourned on the second day of the trial so that the Applicant could amend the statement of claim. The trial was adjourned to the 27 and 28 June 2016.
The evidence was supposedly concluded on 28 June 2016 and the Court was awaiting written submissions by both parties. It had been foreshadowed by the Applicant that there may be criticism of the failure to call Mr Ready as a witness. The Respondent sought to reserve the question of reopening its case to explain the absence of Mr Ready if that was going to be a submission of the Applicant.
On 26 July 2016 the Respondents filed an application in a case seeking leave to reopen the matter. The Respondents also, on that date, filed an affidavit of Mr Ready.
On 9 August 2016, I made directions as to the conduct of the hearing of the application in a case and adjourned the matter until 23 August 2016.
Between those dates, the Applicant dismissed his legal representation and sought leave to appear by telephone from the United States. I granted this leave. On 23 August 2016, the Applicant filed a number of affidavits: one of himself as well as affidavits from two former employees.
The Applicant did not contest the reopening of the matter and cross-examined Mr Ready and was himself cross-examined on that date.
The State of the Evidence
When the evidence closed on 28 June 2016, the case for the Applicant was based upon an interpretation of the email of 30 June 2014 plus the inferences that could be drawn from all of the exhibits. In effect, the case was res ipsa loquitur.
That changed on 23 August 2016 when the Applicant, in his affidavit filed that day, made the following claim about the day he received a call from Mr Wermuth dismissing him.
“44.I was alone in the office at my desk. Mr.Ready walked in the office and threw his phone on his desk. His face was red and he looked very agitated. I thought he was on the verge of tears. Then he said:
MR: ‘Print two copies of your contract immediately. And start backing up your hard drive.’
45.I immediately started to search for my contract in my email documents and printed two copies. The following exchange then took place.
JK: What’s going on?
MR: ‘Peter is going to call in you in 20 minutes and terminate you. I told him I wanted to talk to you first.’
JK: ‘Oh my God! Why?’
MR: ‘Remember our conversation last night? He’s sick of you complaining about the league not paying you. And since the league lost millions again last year, in my opinion they’re also trying to cut costs. Haven’t you wondered why they haven’t replaced (GM) Thom Carter in Canberra? Why they fired (GM) Windsor Knox in Melbourne? Anthony Cangelosi in Sydney was also making a lot noise about his work environment. He just got out before they got him. So we need to look at your contract to see where the holes are. Since they continue not to pay you, I think you have the potential for a lawsuit.”
The Applicant also made the claim that he and Mr Ready both read the email sent by Mr Wermuth on 22 August 2014. The Applicant records Mr Ready’s reaction as “The stated reason is bullshit. It’s a smokescreen”.
The Applicant made the claim that Mr Ready asked him to forward on to Mr Ready a number of these emails between the Applicant and ABL Management. The supposedly reason for this was that Mr Ready was going to send on this information to a solicitor who was well versed in workplace law. Mr Ready is alleged to have told the Applicant that he had a good case for a claim for adverse action.
In cross examination, Mr Ready denied ever having such a conversation. However, the Applicant pointed out a number of emails that had been forwarded by him to Mr Ready which had no other words written by the Applicant. The Applicant argued that this was because Mr Ready was expecting these emails. The Applicant argued that it would appear to be very odd that he would simply forward on an email without any explanation. An example of such an email appears at Annexure JK 77.
Mr Ready’s response was that after his termination, the Applicant sent Mr Ready “a lot of stuff that I simply didn’t read”. Mr Ready explained that he has never had any action or complaint in his own business about an unfair dismissal. He said that he does not have a solicitor who he retains for employment matters. He said that those matters are managed by an HR officer. Mr Ready said that he didn’t know what “adverse action” is.
It was put to Mr Ready that his treatment of the Applicant after the termination is at odds with what he is now saying. Mr Ready’s response was that he could divorce the ability and competence of a person at work from their worth as a person. He explained that he still had a fondness for the Applicant notwithstanding that his opinion of his ability was not favourable.
The Applicant was cross-examined further and conceded that there were six occasions during the course of these proceedings that he could have mentioned what Mr Ready had said. The Applicant explained that his lawyers did not want him to mention the involvement of Mr Ready and that they explained that it was “their legal strategy”.
He said that he had accused his Counsel, Mr Dwyer, of negligence and told Mr Dwyer that he was not happy with how Mr Dwyer had run the case. He said that Mr Dwyer then withdrew.
It was put to the Applicant that he had not requested any of the material that comprised the summary document BF 32 to the affidavit of Mr Foster. The Applicant said that he had no idea that he could actually ask for that material and that his lawyers had never informed him of that fact.
Impressions of the Evidence
One very notable characteristic of the Applicant is that he tends to minimise and/or explain away any criticism made of him. During his evidence, he did not accept any responsibility for the position in which the Bandits found themselves. Instead he focused upon all of the achievements he had made and blamed the First Respondent or other external causes for any negatives in the franchise.
By contrast, the Third Respondent was extremely frank. He conceded that the operational side of the First Respondent was not at the level it should be for a professional sporting organisation. He did not seek to defend the indefensible and accepted justified criticism of the First Respondent.
I was left with the impression that the First Respondent was still “getting its act together”. The First Respondent was still only a fairly new organisation and was trying to compete in a market that was dominated by other sports. But unless it did attempt to compete against those sports, the sport of baseball would have a very dim future in Australia.
So it became necessary for the First Respondent to launch its competition but the necessary infrastructure needed for this to occur was not in place. There has been a piecemeal approach to putting structures into place to support the competition.
It is into this chaotic existence that the Applicant found himself. I was left with the clear impression that he was not prepared for what he found, however, it was the perfect opportunity for him to be able to show that his skills were at a very high level.
It is against this background that I consider the issues that have been raised in the course of this proceeding.
Was the Applicant dismissed?
This is the key issue in the case. If there were no dismissal, then the matter is, for all intents and purposes, at an end. If there were an actual dismissal then other issues need to be considered.
Section 386 of the FW Act relevantly 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
(c) the person was demoted in employment but:
(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.
…”
The contract of employment is fairly clear in its terms. The First Respondent had an obligation to review the issue of renewing the contract before 30 June 2014.
Either party could terminate the agreement by giving to the other party one month’s notice in writing of the termination. The agreement stated that the First Respondent may require the Applicant to continue to work for part or whole of the notice period or, alternatively, in the absolute discretion of the First Respondent, it may elect to pay salary in lieu for any part of the notice period that is not required to be worked.
The contract was signed on 23 September 2013 and therefore was to expire on 22 September 2014.
On the face of it, by telling the Applicant on 22 August 2014 that it was terminating the agreement on the notice of one month, the First Respondent was simply telling the Applicant that it did not require the Applicant to work for the last month of the contract agreement which would lapse on 22 September 2014.
The Applicant contends, however, that the email of 30 June 2014 was illustrative of an intention by the First Respondent that his employment was to continue past the expiration date of his employment contract.
This contention relies on the interpretation of that email. The Applicant points to the underlining of the word “current” in the email. The Applicant also points to the ultimate sentence of the email “during that time the ABL may offer an extension, renewal or alternate contractual arrangement”.
The Applicant contends that an ordinary reading of the email would lead to an overwhelming inference that there was to be an extension or renewal of the contract or that there would be an alternate contract entered into.
The submission of the Applicant is that the “targets” in Appendix 3 to the contract of employment were the primary basis for his performance review and “subsequent continuation and/or renewal of contract”. As the contract was not to be renewed, the First Respondent was therefore moving forward with the “subsequent continuation” of employment of the Applicant.
The Applicant further submits that the First Respondent has declared that there would be a reassessment of the new KPIs and targets in line with the current circumstances and expectations and that the remainder of the current contract period would be used for such assessment.
The Applicant points to there being no clear intention to completely terminate the employment of the Applicant at the conclusion of the contract period. All that is said is that there will be a further discussion and that the PA to the Second Respondent would schedule some time for the Second Respondent and the Applicant to talk. It is common ground that no such talks were had or even scheduled.
The Applicant argues that the email of 30 June 2014 grants him ongoing employment after the contract period would expire or alternatively that this email constitutes an agreement for ongoing employment.
The Applicant argues that by terminating his employment on 22 August 2014, the First Respondent was therefore dismissing him.
Conclusion as to Dismissal
In my view, the email of 30 June 2014 cannot have the interpretation that the Applicant contends it does. The email is clear that the First Respondent has decided, in accordance with the contract of employment, which decreed that the employment would cease on 22 September 2014, to cease the employment accordingly.
The email of 30 June 2014 is not dismissing the Applicant. What it does do is explain what would occur between that date and the expiration date of the contract. Whilst there is a statement made that the First Respondent “may” extend, renew or offer an alternate contractual arrangement, the language is such that the proper, and only, construction to be put on that sentence is that such matters were in the total discretion of the First Respondent. That is in keeping with the terms of the contract of employment.
It is quite instructive that the word “may” was used. The words “will”, “undertakes to”, “promises to” or any other words that would connote a definite course of action were not used. The First Respondent “may” do those things but equally “may not” do those things.
Nothing in the email of 30 June 2014 changes the prima facie conclusion expressed in paragraph 97 above.
Therefore, I find that the Applicant was not dismissed. His employment came to an end because the contract of employment itself came to an end. Pursuant to s.386(2)(a) of the FW Act this does not constitute a dismissal.
Should the contract have been renewed, extended or an alternate contractual arrangement offered?
In the statement of claim, it is pleaded by the Applicant that the Respondents improperly declined to renew, extend or offer a new employment contract to the Applicant.
For the reasons contained in paragraphs 107 and 108 above, there was no obligation upon the First Respondent to renew or extend the contract of employment nor was there any obligation upon the First Respondent to offer a new contractual arrangement.
There was no right of the Applicant to have his contract renewed or extended or to have a new contractual arrangement offered to him. If the First Respondent wanted to do so, then it was a matter solely at the discretion of the First Respondent.
Disposition of the Matter
I conclude that there was no dismissal of the Applicant, nor was the decision to not renew, extend or offer an alternate contractual arrangement, improper. Therefore no adverse action has been committed by any of the Respondents pursuant to s.342 of the FW Act.
I dismiss the application for a declaration that there has been a contravention of the FW Act.
What if there had been Adverse Action?
Notwithstanding that I have already concluded that there was no adverse action, I should look at what consequences would flow if there were adverse action.
If it had been proved that the First Respondent had dismissed the Applicant or had prejudiced the Applicant by not renewing, extending or offering him a different contractual arrangement, then the Applicant submitted that I would find that the reason for the actions of the Respondents was that the Applicant had made the complaints he had made, which was a workplace right.
Pursuant to s.361 of the FW Act, the onus would have been on the Respondents to show that such adverse action was not taken for a prohibited reason.
I will examine whether the Respondents have met their onus.
The decision of the Second Respondent
The submission of the Respondents is that the Second Respondent is the sole decision maker. It is the decision of the Second Respondent that I must concern myself with examining.
The Second Respondent gave evidence that he had made an independent assessment of the Applicant. He had first-hand knowledge of the initial performance of the Applicant when he came to Brisbane in early November 2013.
He gave evidence that he attributed his initial observations and impressions of the Applicant to the fact that the Applicant was still new and “finding his feet”. He continued to have regular phone conversations with the Applicant and did exchange emails. Some of the communications listed in paragraph 21 above were addressed to, or came to the attention of, the Second Respondent.
He gave his reasons for making the 30 June 2014 decision to not renew the contract of employment as a combination of four factors:-
a)the information he received from the Third Respondent in relation to the financial performance of the Brisbane Bandits;
b)the feedback he received from Mr Ready about the Applicant’s inability to secure new business and raise revenue;
c)the feedback received from the colleagues of the Applicant about the shortcomings in his managerial performance; and
d)his own opinion of the Applicant based on his interactions and dealings with him.
The Second Respondent gave evidence that whilst he formed the view that the First Respondent should not renew the contract, he had not formed a view at that time as to whether there should be a complete termination of the employment relationship with the Applicant.
The Second Respondent gave evidence that when coming to this decision he did not consider any of the Applicant’s “complaints” in relation to delays with payments or any other matter other than those listed in paragraph 123 above.
The Second Respondent received an email that was annexure PW-06 to his affidavit from Mr Ready on a 7 July 2014. On 24 July 2014, he was copied into an email from Mr Ready to the Applicant in relation to the Applicant’s conduct towards Ms Dobie. That email is annexure PW-07 to the affidavit.
In mid-August 2014, the Second Respondent had a telephone discussion with Mr Ready where Mr Ready has said that the Applicant’s presence in the office was “counter-productive”.
With all of this information, the Second Respondent gave evidence that he formed the view that it would be unnecessary and inappropriate to keep the Applicant employed until the expiration of the contract which was to take place in a month’s time.
He gave evidence that his decision was not based on any other reason than those he had already listed.
Has the Second Respondent Discharged the Onus?
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 the High Court said at paragraph [45]
“This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer23. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker24 or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
The Second Respondent has given clear and unequivocal evidence as to what his reasons were for making the decisions that he did. Consistent with what the High Court has said, this would be sufficient to discharge the onus.
The Applicant contends that there is plenty of other evidence which would tend to undermine, if not completely destroy, such evidence.
The Applicant takes issue with claim that he did not perform to the targets outlined in Appendix 3 of his contract of employment. The email of the Applicant sent to the Second Respondent on 1 July 2014 (annexure JK-58) in reply to the 30 June 2014 email gives his version as to the reason why the figures are as they are.
The Applicant reiterated these arguments in his written submissions. The Applicant takes no responsibility at all for any aspect of the performance of the franchise that is not up to the desired levels. He blames a myriad of other factors for those results and concludes that these factors were out of his control. However any targets that are at, or above, the desired levels, he claims are due to his brilliant management.
Unfortunately for the Applicant, he cannot pick and choose what aspects of the franchise he will claim credit for and which ones he will disown. His brief was to be responsible for all aspects of the business. He, as a GM, must “own” all of the results of the franchise, not just the ones that are favourable to him.
The Applicant points out that there was no performance review document ever compiled. However, the employment contract clearly states that his performance was to be measured against the targets in Annexure 3. This was done in the email of 30 June 2013. It may not have been to the liking of the Applicant, but nevertheless it was a review.
There was no obligation on the First Respondent to engage in any discussion about this aspect. The contract is clear that the targets in Annexure 3 are the only measures by which he was to be assessed. The assessment was made and the decision not to extend the contract was also made in the email of 30 June 2014.
I do not accept that the Second and Third Respondents are being deliberately, or even unintentionally, untruthful in what they have said about the financial aspect of the management of the Brisbane Bandits. The Applicant simply cannot accept that his performance was as abysmal as the Second and Third Respondents claim.
In reality, the Applicant accepts the figures in the 30 June 2014 email; it is just that he doesn’t accept responsibility for the figures that are less than satisfactory. That is a far cry from saying that the evidence would get to a point that it would undermine the truth of the testimony of the Second Respondent as to why he made the decision not to extend the contract.
It was clear from the email of 30 June 2014 that there was going to be a degree of monitoring of the Applicant until 22 September 2014. The Second Respondent gave evidence of emails and conversations he had with Mr Ready.
When Mr Ready was called, he was not cross-examined as to the contents of the emails at PW-06 and PW-07 nor on the conversation at paragraph 57 of Mr Ready’s affidavit which mirrors closely the conversation in paragraph 72 of the affidavit of the Second Respondent.
There is no evidence that would undermine or contradict the reason given by the Second Respondent for his decision of 22 August 2014.
Who is the Decision-maker?
When the hearing was adjourned on 28 June 2016, there was an argument as to whether the Respondents would be able to file an affidavit from the solicitor explaining the absence of Mr Ready. It has become apparent as to why there was such vehemence in the opposition to such filing.
Given the Second Respondent did rely upon information from Mr Ready, I can safely infer, from the exchange I had with Mr Dwyer of Counsel at T 264 onwards, that a submission was to be made that either Mr Ready was a decision maker or he had “infected” the decision of the Second Respondent.
The former inference would seem to rely on National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451
In that matter, the Court determined that the Royal Melbourne Institute of Technology had failed to prove that the decision to terminate Professor Bessant was solely due to redundancy, and the Court accepted the argument put by the NTEU that the reason for her termination was an adverse action as a result of Professor Bessant exercising a workplace right.
Professor Gardner was the primary decision maker, and her evidence did not demonstrate that the decision was unrelated to Professor Bessant's exercise, or proposed exercise, of her workplace rights. The court did not accept that Professor Gardner was the sole decision maker as Professor de la Harpe and Ms Gough made decisions that were an essential part of the process leading to the ultimate decision to make Professor Bessant redundant. However neither Professor de la Harpe nor Ms Gough were called as witnesses. As they weren’t called, the employer failed to discharge the onus.
As can be seen from those facts and the resulting decision, a submission may well have been made that the failure to call Mr Ready would be a fatal one for the Respondents. This seems to be what the Applicant is alluding to at paragraph 122 of his submissions.
I am of the view that Mr Ready was not a decision maker and that the Second Respondent was the sole decision maker. Of course, the Second Respondent relied upon the information, and even recommendation, of Mr Ready, but that did not mean that he was any less the sole decision maker.
In any event, Mr Ready was called.
In Elliott v Kodak Australasia Pty Ltd (2001) 129 IR 251 and CFMEU v Clermont Coal (2015) 253 IR 166, the Court in both instances found that information provided by other persons within the organisation was capable of “infecting” the decision of the sole decision maker. If that information was borne of a prohibited reason, then the decision of the decision-maker was also a result of the prohibited reason.
This particular aspect of the law has not yet had the imprimatur of the High Court but it doesn’t arise in the present case because there is no allegation that Mr Ready made his recommendation because of a prohibited reason.
The Evidence of Mr Ready
Even though I do not have to make a specific finding because of my earlier decision, nevertheless I think I should add that I accept the evidence of Mr Ready.
Mr Ready was honest and forthright. I don’t accept that he was necessarily “disinterested”, but Mr Ready has nothing to lose or gain either result of this litigation.
It seems to me that the Applicant has become far too close to this matter. He cannot view anything to do with this case in an objective manner. He continually sees conspiracies around every corner and makes outlandish submissions as to people telling “lies”.
The greatest example of this is the evidence of Mr Ready that he wasn’t with the Applicant when the Applicant was being terminated. The Applicant, by going through the evidence of Mr Ready, comes to the conclusion (in paragraph 119 of his submissions) that “Mr Ready clearly was in the office when Mr Klein was being terminated”. The Applicant submits that therefore Mr Ready has caught himself in the lie.
On closer examination, there is no lie. Mr Ready gave evidence that the Applicant was phoned by the Second Respondent and went outside. Mr Ready gave evidence that the Applicant was sitting in the stands and was having a conversation, presumably with the Second Respondent. Mr Ready gave evidence that the Applicant came back into the office and upon his return he told the persons in the office that he had been dismissed.
On that evidence, Mr Ready was in the office the whole time that Mr Klein was being terminated. But he was not with Mr Klein when he was being terminated. This is because Mr Klein left the office and went outside while having the conversation with the Second Respondent that led to the termination.
Therefore there is no lie given by Mr Ready. Yet the Applicant persists with this claim when a calm, objective examination of the actual evidence reveals the true nature of the evidence of Mr Ready.
The claim that Mr Ready advised the Applicant that he was about to be terminated does not accord with common sense. If the Applicant’s claim were to be true, it would mean that Mr Ready had only just spoken to the Second Respondent.
There was no cross examination of the Second Respondent to indicate that there had been a phone call with Mr Ready immediately before the termination. The only telephone call preceding the termination of the Applicant is the one relayed by Mr Ready in paragraph 57 of his affidavit and by the Second Respondent and paragraph 72 of his affidavit. I accept that this was the correct version of events.
Neither was there any statement by the Applicant that he told the Second Respondent that he had already been told by Mr Ready that he was about to be terminated. To not divulge to the Second Respondent all that he alleges that Mr Ready said to him preceding the phone call, does not seem in keeping with the personality and attitude of the Applicant.
The claim that Mr Ready was somehow “playing both sides” doesn’t make sense. Whilst the Applicant points to his having sent Mr Ready emails, there were no emails sent by Mr Ready in reply.
There were no emails sent by the Applicant asking for the name or phone number of the solicitor that Mr Ready allegedly refers to, nor are there any emails to Mr Ready talking about “adverse action” or asking whether Mr Ready would be a witness for the Applicant.
The claim does not objectively concur with common sense. It again seems to me that the Applicant has become too close to the matter and has convinced himself, in his own mind, that this must have been the sequence of events.
Conclusion as to whether the onus had been discharged if it had to have been discharged
If the Respondents needed to discharge the onus, I would find that they have done so. I accept the evidence of the Second Respondent as to the sequence and the reasoning behind his decision.
Whilst it is not for the Applicant to prove that the adverse action was taken for a prohibited reason, it does seem somewhat absurd that the Respondents have all taken responsibility for the less than professional way in which the First Respondent conducted business. Therefore any “complaint” about the way in which the Respondents were running the business, must have been seen by the Respondents as a justified complaint.
For an employer to commit “adverse action” upon a person for saying something that the employer accepts as being justified, would have to be one of the greatest evils in Australian industrial history. Having seen both the Second and Third Respondents give evidence before me, I cannot accept that they were anything other than forthright and honest and incapable of committing the sort of evil of which the Applicant accuses them.
Ancillary Matters
The Applicant claims that he has not been paid his commission. This is the basis of the allegation that the First Respondent has breached the contract by not paying him his proper commissions.
There may be an argument as to whether this Court has jurisdiction to deal with these claims given that I have dismissed the claim pursuant to the FW Act. I have come to the conclusion that I still have such “associated jurisdiction” that is derived from s.18 of the Federal Circuit Court Act 1999 (Cth) because the claim for commissions is intrinsically linked with the claim for adverse action.
In his amended statement of claim, the Applicant submitted that he was still owed money under the contract. It is instructive to revisit that clause in the contract:
“5.Annual Salary: A$72,000 base salary, with additional sales commission based on the following sales targets
-Sponsorship Sales – 5% of Net Sponsorship Sales Cash and/or agreed “trade” or “contra” sponsorships. Trade values are assigned at the ABL’s sole discretion.
-Ticket Sales -7.5% of Net Ticket sales.
-Concessions Sales -7.5% of net concessions profit;
-Merchandise Sales – 5% of net merchandise profit;
All salary amounts and eligible commissions are represented inclusive of statutory superannuation.
Sales commissions will be calculated on net sales (exclusive of GST) after costs of stock and any servicing costs have been deducted. All targets will be revised routinely with new business growth and development. Commissions are also contingent on overall employee performance and staying within budgeted team/franchise expense limits. All commission payments are ultimately at the sole discretion of the ABL”
The last sentence of that clause of the contract is very instructive as it gives the First Respondent sole discretion as to whether commission payments are made at all.
In the second affidavit of the Third Respondent, Annexure BF-32 contained a schedule of all the payments due to the Applicant by way of commission. It is common ground that the payments illustrated by that schedule have been paid to the Applicant.
The Third Respondent was questioned about this document at pages 210 and 211 of the court transcript. He conceded that the document did not contain the raw, or primary, data but was amalgam of two different accounting systems.
There was no attempt in cross examination to question or undermine the reliability of what is contained in BF 32.
The Applicant now submits that I should have little to no regard for this document. He submits that I had ordered that the affidavit be filed by 30 May 2016. The affidavit was filed on 14 June 2016, about 2 weeks later than what I had ordered. The Applicant now complains that this affidavit was filed in contravention of an order of the Court.
It is trite to say that there are many occasions where Court ordered dates of filing are not met. It is a matter for the Court to decide whether or not to receive those documents that infringe upon that order. In this case, there was no objection to the receipt of this affidavit and there was no complaint that it raised matters that needed further exploration by the Applicant.
In the affidavit of the Third Respondent, he swears that the raw information is not in a position to be printed but is available in a “soft copy” form that can be viewed upon request. There was no request made to view the material by the Applicant. The Applicant gave evidence that he didn’t know that he could ask for that material. I cannot accept that explanation.
At the end of day four of the hearing, it was assumed that all the evidence was complete and that I would now be waiting submissions from Counsel. Instead there was an application to reopen the case to hear evidence from Mr Ready. I allowed the application and also allowed the Applicant to file a further affidavit dealing with the matters that appeared in the affidavit of Mr Ready.
As I explained at T293 line 30, the evidence on the issue of commissions had closed. Anything in the third affidavit of the Applicant was treated as a submission and not as evidence.
The fact is that there was no challenge as to the accuracy of BF-32. It was not put to the Third Respondent that there was any money still owing to the Applicant by way of commission. The figures that the Applicant now relies upon in both his third affidavit and his final submissions, were never put to the Third Respondent so that he could answer those claims.
Whilst the Applicant may not be versed in the niceties of Browne v Dunn (1893) 6 R. 67, he was represented by Counsel at the time that the Third Respondent was cross-examined. To make submissions about matters that were not put to the witness when there was a proper opportunity to do so, is unfair and, in certain circumstances, can lead to adverse inferences to be drawn as to the veracity of the submissions that are later made. I do not make those adverse inferences in this case.
However, I am not convinced on the state of the evidence that the Applicant has made out his case that he is owed more money from commissions than he has been paid. But, even if he were owed more money, the contract clearly states that it is a matter for the sole discretion of the First Respondent as to whether commissions should be paid. In this case, the Third Respondent has testified that all the payments due to the Applicant under his contract of employment have been paid. I accept this evidence.
Therefore, the application for further payments by way of commissions or reimbursements is dismissed.
Conclusion
I dismiss the application
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 8 November 2016
Key Legal Topics
Areas of Law
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Employment Law
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Contract Law
Legal Concepts
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Breach
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Contract Formation
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Damages
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Remedies
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