Larry Young v Expo Signage and Digital Pty Ltd
[2020] FWC 5058
•25 SEPTEMBER 2020
| [2020] FWC 5058 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Larry Young
v
Expo Signage and Digital Pty Ltd
(U2020/2138)
DEPUTY PRESIDENT BINET | PERTH, 25 SEPTEMBER 2020 |
Application for an unfair dismissal remedy.
[1] On 25 February 2020 Mr Larry Young (Mr Young) made an application to the Fair Work Commission (FWC) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Expo Signage and Digital Pty Ltd (Expo).
[2] On 6 March 2020 Expo filed a Form F3 Employer Response to the Application objecting to the Application on the grounds that Mr Young had not completed the minimum employment period to be eligible to make the Application (Jurisdictional Objection).
[3] On 27 March 2020 and 20 April 2020, the parties participated in conciliation however the matter remained unresolved.
[4] The Jurisdictional Objection was heard on 10 July 2020. A decision dismissing the Jurisdictional Objection was issued on 16 July 2020 in [2020] FWC 3595.
[5] Taking into account the parties wishes and circumstances it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the merits of the Application. Consequently, the Application was listed for a merit Hearing in Perth on 22 September 2020 (Hearing).
[6] Directions for the filing of materials in advance of the Hearing were issued to the parties on 24 July 2020 (Directions).
Permission to be represented
[7] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which the Hearing is conducted is fair and just.
[8] Having considered the submissions of the parties I exercised my discretion to grant both parties leave to be represented by a lawyer because I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
[9] At the Hearing Mr Young gave oral and written evidence on his own behalf and was represented by Mr Patrick Mullally, a paid agent.
[10] At the Hearing, Expo was represented by Mr Talt Anast a solicitor from Allied Legal. Ms Alana Dunning, Commercial Sales Manager for Expo gave written and oral evidence on behalf of Expo (Ms Dunning).
Background
[11] Galena Nominees Pty Ltd as trustee for the Jason Signmakers Unit Trust (Jason Signmakers) is a signage manufacturing business based in Welshpool, Western Australia. It is the parent company of Expo.
[12] Mr Young commenced employment with Bokay Signage (Bokay) in the role of Business Development Manager on 11 February 2019. 1
[13] In November 2019 negotiations took place between Jason Signmakers and Bokay which resulted in an asset transfer which was completed on 16 December 2019.
[14] Prior to 16 December 2019, Bokay employees were interviewed for available roles at Expo. An offer of employment with Expo was made to a number of Bokay employees including Mr Young. According to Ms Dunning at this interview personal sales targets were discussed and agreed upon with Mr Young. 2
[15] On 16 December 2019 Mr Young commenced employment with Expo in the role of Business Solutions Manager pursuant to a written contract of employment (Employment Contract). 3
[16] Clause 3 of the Employment Contract provides that: 4
“3. Probation
3.1 A probation period will apply in all cases of new employment see Item 8 at Appendix 1. During this time, we will assess your progress and performance in the position.
3.2 During the probation period you or the Company may end your employment by providing notice in accordance with the table in Clause 14.1.”
[17] Item 8 of the Appendix to the Employment Contract provides for a six month probationary period. 5
[18] Mr Young acknowledged at the Hearing that he was aware that a probationary period applied to his employment with Expo and that during this period his performance would be under scrutiny.
[19] Item 12 of the Annexure to the Employment Contract provides for the payment of a retention incentive payment in the following circumstances: 6
“A Retention Incentive payment of $4,000 gross will be paid in the next payroll immediately following 6 months of service from the Start Date referenced in Item 2, and successful completion of the Probationary Period.”
[20] The start date referenced in Item 2 of the Annexure to the Employment Contract is 16 December 2019. 7
[21] The role of Business Development Manager at Bokay and the role of Business Solutions Manager at Expo involved the performance of substantially the same duties. 8 The role was a senior sales position within the Business Solutions Management Team. The duties of the members of the Business Solutions Management Team are to:9
a. retain existing and secure new clients;
b. scope quote requirements and provide these to the quoting team;
c. calculate adjustments, including overheads and profit margin, from the cost price set by the quoting team; and
d. convert the quotes into sales.
[22] The members of the Business Solutions Management Team including Mr Young were expected to meet certain sales targets. Appendix 2 of the Employment Contract provides for the payment of commission to Mr Young only if his invoiced sales exceed $80,000 per month for the first 6 months of employment and $100,000 per month thereafter.
[23] Sales representatives including Mr Young were given 24/7 access to a personal dashboard called MyVox which displayed performance targets and tracked performance against target on a real time basis. 10
[24] Mr Young acknowledges that he was aware that his monthly target during the probationary period was $80,000.
[25] According to Ms Dunning each morning a whole of team morning huddle took place focusing on quotes, sales and production with general comments regards sales performance and challenges. She says daily reference was made to the need to increase sales significantly, especially for Bokay. She asserts that all members of the sales team were acutely aware targets were not being met and a step up in performance was required. 11
[26] Ms Dunning says that from commencement of his employment with Expo she held informal daily discussions with Mr Young regarding his sales performance and the need for increased sales. 12 She also says that she made verbal requests for strategic sales plans and for follow ups on quotes and clients at risk. She says that a key discussion she held with Mr Young was on avoidance of reworks by ensuring jobs were scoped properly as this was a recurring issue for him. Ms Dunning says that her discussions with Mr Young were always forthright and referenced specific quotes, sales figures and reworks.
[27] At Hearing Ms Dunning conceded that she met formally with Mr Young on only three occasions. On one occasion to discuss a potential new employee. The second occasion was with a group of other employees to discuss client dissatisfaction with the performance of work. According to Ms Dunning the client’s dissatisfaction related largely to Mr Young’s failure to properly scope the work and not meeting timing commitments he had made to the customer. The third occasion was to inform him that he was dismissed because of unsatisfactory performance.
[28] Ms Dunning concedes that the other discussions she had with Mr Young were informal and that Mr Young was never required to participate in any formal performance management or performance improvement program.
[29] During the course of his employment with Expo Mr Young’s total quotes amounted to $56,632. He managed to convert these quotes to only $22,229 gross sales. This is a conversion rate of 39.25% compared to the company average of 70%. His average monthly sales record equates to 9% of his monthly target. Expo estimate that cost of reworks associated with Mr Young’s sales (because he inadequately facilitated the work performed) amount to over $10,000.
[30] Mr Young was absent from the workplace on approved annual leave from 16 December 2019 until 14 January 2020. 13 Ms Dunning says that during this period she received numerous customer complaints from Mr Young’s clients. The most significant complaint was a company called Four Seasons where she says the job was not scoped correctly, the Gross Margin significantly compromised and further rework required at Expo’s cost.14
[31] In the late afternoon on 6 February 2020 Ms Dunning informed Mr Young that he was required to attend a meeting in the Board Room the following day at 11am. 15 There is no evidence that she explained to him the purpose of the meeting.
[32] At the meeting the next day Ms Dunning informed Mr Young that an analysis of the sales reports had been undertaken and a decision had been made to terminate his employment as the weakest performer in the sales team overall relative to net income generated. Ms Dunning informed Mr Young that his employment would be terminated effective 21 February 2020 and within the six month probationary period set out in his Employment Contract. 16
[33] Mr Young requested that Ms Dunning show him the sales analysis upon which the decision to dismiss him was based. She declined to do so. At the Hearing she explained that this information was readily available to Mr Young at any time in the MyVox dashboard.
[34] Ms Dunning provided Mr Young with written confirmation of the termination of his employment (Termination Notice). The Termination Notice describes the reasons for the termination of his employment as follows:
“As per your employment contract, a probationary period is in place for 6 months from the commencement date of your employment with Expo Signage and Digital.
During this time Management assesses your progress and performance in the position. The outcome of this assessment to date is that we have decided not to continue your employment.”
[35] Mr Young has since obtained alternative employment in a similar role. He commenced in his new role on 23 February 2020. In his new role his annual salary is $60,000 plus a motor vehicle allowance of $18,000.
[36] Mr Young seeks an order for compensation for his weekly gross loss of $192.30 for a period of six months which amounts to $4,999 plus the Retention Incentive Payment of $4,000 gross.
Is Mr Young protected from unfair dismissal?
[37] An order for reinstatement or compensation may only be issued if Mr Young was unfairly dismissed and Mr Young was protected from unfair dismissal at the time of his dismissal. Section 382 of the FW Act sets out the circumstances that must exist for Mr Young to be protected from unfair dismissal.
[38] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
a. the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
b. one or more of the following apply:
• a modern award covers the person;
• an enterprise agreement applies to the person in relation to the employment;
• the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold which at the time of dismissal was $148,700.
[39] For the reasons set out in my decision in [2020] FWC 3595 I am satisfied that Mr Young has completed the minimum employment period. His annual salary at the date of his dismissal was $70,000 plus a motor vehicle allowance of $12,000. There is no dispute and I am satisfied that his earnings are below the high income threshold. Consequently, I am satisfied that Mr Young was protected from unfair dismissal.
[40] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code; and
d. the dismissal was not a case of genuine redundancy.
[41] There was no dispute and I find that Mr Young’s employment with Expo was terminated at the initiative of Expo.
[42] I am therefore satisfied that Mr Young has been dismissed within the meaning of section 385 of the FW Act.
Was the Application made within the period required?
[43] Section 394(2) of the FW Act requires that the Application to be made within 21 days after the dismissal took effect.
[44] It is not disputed, and I find that, Mr Young was dismissed from his employment on 21 February 2020 and made the application on 25 February 2020. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
Was Mr Young’s dismissal unfair?
[45] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was not consistent with the Small Business Fair Dismissal Code;
c. the dismissal was not a case of genuine redundancy; and
d. the dismissal was harsh, unjust or unreasonable.
[46] It is not disputed and I find that Expo was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of 14 employees. I am therefore satisfied that the Small Business Fair Dismissal Code does not apply.
[47] It was not in dispute and I find that the dismissal was not a case of genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
[48] Section 387 of the FW Act provides that, 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);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
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;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
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.
[49] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[50] It is necessary to consider each of these criteria, to the extent they are relevant to the factual circumstances of the Application.
Was there a valid reason for the dismissal related to Mr Young’s capacity or conduct?
[51] An employer must have a valid reason for the dismissal of an employee, although it need not be the reason given to the employee at the time of the dismissal.17 The reasons should be “sound, defensible and well founded” 18 and should not be “capricious, fanciful, spiteful or prejudiced.”19 However, the FWC will not stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.20
[52] Expo submit that Mr Young’s performance was inadequate and that this was a valid reason for Mr Young’s dismissal. Mr Young denies that his performance was deficient and asserts that he was the ‘top salesperson’.
[53] There is no doubt that incompetence or underperformance on the part of an employee constitutes a valid reason for the dismissal of an employee. An employer is not required to retain underperforming employees. 21
[54] The evidence is that Mr Young was aware of his monthly targets which are detailed in his Contract of Employment and in the business management software which he was freely able to access.
[55] In addition to Ms Dunning’s oral evidence with respect to Mr Young’s deficient performance, Expo produced as evidence sales reports detailing Mr Young’s sales performance during his employment with Expo. Those records reveal that during a period in which he was expected to generate more than $160,000 in gross sales his total quotes amounted to only $56,632. These records also reveal that he managed to convert these quotes to only $22,229 worth of gross sales. According to Expo, Mr Young had a conversion rate of 39.25% compared to the company average of 70% and his average monthly sales equated to only 9% of his monthly target. Expo estimate that cost of reworks associated with Mr Young’s sales (because he inadequately facilitated the work performed) amount to over $10,000. This is nearly half the value of his gross sales during his entire employment with Expo.
[56] Mr Young chose not to call any witnesses to corroborate his assertion that he was a proficient salesperson. Nor did he seek production of corporate records which would demonstrate that he was not in fact the worst salesman as asserted by Ms Dunning. Ms Dunning was not cross examined in relation to the sales data which was tendered and there was no assertion made that the data was inaccurate. Nor was any evidence produced or submissions made on behalf of Mr Young that the monthly targets were unreasonable.
[57] On the balance of the evidence before me I am satisfied that Mr Young’s performance was deficient and I find that there was a valid reason for his dismissal.
Was Mr Young notified of the valid reason?
[58] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,22 and in explicit23 and plain and clear terms.24
[59] Expo concede that Mr Young was not explicitly informed that he would be dismissed prior to the decision being made to terminate his employment. Expo say that he should have been aware that his employment was under scrutiny by implication during the probationary period specified in his contract and by virtue of discussions Ms Dunning had with him and his team regarding sales performance.
[60] In Crozier v Palazzo Corporation Pty Ltd25 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:26
“[73] 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 170(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.”
[61] Discussions about sales performance and a desire by the business for increased sales would hardly come as a surprise to an employee engaged in a sales role. There are few sales roles where an employer does not encourage sales employees to increase sales.
[62] Ms Dunning’s evidence is that her discussions with Mr Young in relation to his performance were almost exclusively of an informal or group nature.
[63] There is no evidence of Mr Young being formally warned about his performance or placed on any performance improvement program which might have alerted him to the possibility that his employment was in jeopardy.
[64] I find Mr Young was not notified of the reason for his dismissal in clear and explicit terms before the decision was made to terminate his employment.
Was Mr Young given an opportunity to respond to any valid reason related to his capacity or conduct?
[65] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.27
[66] Expo concede that Mr Young was not explicitly informed that he would be dismissed prior to the decision being made to terminate his employment. Expo say that he should have been aware that his employment was under scrutiny by implication during the probationary period and by virtue of discussions Ms Dunning had with him and his team regarding sales performance.
[67] Ms Dunning conceded at the Hearing that she denied Mr Young the opportunity to review and respond to the sales reports upon which she says the decision to terminate his employment was made.
[68] As Mr Young was not notified of the reason for his dismissal in clear and explicit terms before the decision was made to terminate his employment he had no real opportunity to respond to the reasons for his dismissal before he was dismissed.
[69] I therefore find Mr Young was not given an opportunity to respond to the reasons for his dismissal.
Did Expo unreasonably refuse to allow Mr Young to have a support person present to assist at discussions relating to the dismissal?
[70] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[71] Expo did not explicitly refuse a request by Mr Young to have a support person present to assist at discussions relating to his dismissal. However, Mr Young was unaware of the purpose of the meeting with Ms Dunning prior to the meeting occurring. He did not therefore have the opportunity to seek to have a support person present. In these circumstances I have treated this criteria as neutral.
Was Mr Young warned about unsatisfactory performance before the dismissal?
[72] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal.
[73] Mr Young denies that he was warned that his performance was unsatisfactory before his dismissal.
[74] Expo submit that Mr Young was aware that his performance was unsatisfactory prior to his dismissal because:
a. Mr Young was aware of his monthly targets because they are detailed in the Contract of Employment and in the business management software which he was freely able to access.
b. He was aware that he was not reaching his monthly targets because he had access to the business management software which recorded his sales performance on a real time basis.
c. He attended daily team briefings which reinforced the expected targets and identified failures to meet these targets.
d. Ms Dunning regularly discussed with him her concerns about his failure to meet monthly targets and the number of reworks required in relation to his quotes.
[75] A mere exhortation for an employee to improve their performance would not be a sufficient warning. A warning must:
a. identify the relevant aspect of the employee’s performance which is of concern to the employer; and
b. make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.28
[76] Discussions about sales performance and a desire by the business for increased sales would hardly come as a surprise to an employee engaged in a sales roles. There are few sales roles where an employer does not encourage sales employees to increase sales.
[77] Ms Dunning’s evidence is that her discussions with Mr Young in relation to his performance were of an informal or group nature.
[78] There is no evidence of Mr Young being formally warned about his performance or placed on any performance improvement program which might have alerted him to the possibility that his employment was in jeopardy.
[79] Based on the evidence before me I am not satisfied that Expo adequately warned Mr Young about the unsatisfactory performance before his dismissal or made clear to him that his performance was so deficient that his employment was at risk.
To what degree would the size of Expo’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[80] Expo concede that the size of its enterprise does not provide an explanation for the procedures followed in effecting Mr Young’s dismissal, therefore this factor is not relevant.
To what degree would the absence of dedicated human resource management specialists or expertise in Expo’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[81] Expo concede that the absence of human resource expertise does not provide an explanation for the procedures followed in effecting Mr Young’s dismissal, therefore this factor is not relevant.
Are there any other matters which are relevant?
[82] Section 387(h) of the FW Act requires the FWC to take into account any other matters that the FWC considers relevant.
[83] Mr Young submitted that the overall circumstances on his employment including the unfairness of the manner in which his dismissal was effected is an ‘other matter’ which is relevant to the FWC’s consideration of whether his dismissal was harsh, unjust or unreasonable:
[84] Expo submitted that the following other matters are relevant to the FWC’s consideration of whether the dismissal was harsh, unjust or unreasonable:
a. Notwithstanding that his prior service with Bokay Mr Young was a ‘new’ employee to Expo with a limited work history which was consistently unsatisfactory.
b. The fact that Mr Young’s contract provided for a period of probation meant that he ought to have been aware that his employment was conditional and his performance under scrutiny without further warning.
c. Ms Dunning erroneously believed that there was no statutory or contractual limitations to terminating Mr Young’s performance because he was well within the six month probationary period of his employment with Expo.
[85] I have considered all of these matters in my consideration of whether the dismissal was harsh, unjust or unreasonable.
Was the dismissal of Mr Young harsh, unjust or unreasonable?
[86] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Young was unjust given the lack of procedural fairness he was afforded.
[87] Mr Young’s circumstances can be distinguished by those of the applicant in Roweena Ann De Silva v ExxonMobile Chemical Australia Pty Ltd cited by Expo in which SDP Lacy held that procedural defects were not of sufficient significance to render the dismissal harsh or unjust or unreasonable. In that case the evidence before SDP Lacy satisfied him that the applicant was warned in unambiguous terms that her employer considered her performance unsatisfactory and accordingly directed her to improve in several areas of her performance.
[88] I am therefore satisfied that Mr Young was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
[89] Mr Young seeks as a remedy for his unfair dismissal an order for compensation for his weekly gross loss of $192.30 for a period six months plus the Retention Incentive Payment of $4,000 gross.
[90] An order for reinstatement or compensation can only made in circumstances where the FWC is satisfied that an applicant: 29
a. made an application for an order granting a remedy under section 394 of the FW Act;
b. was a person protected from unfair dismissal; and
c. was unfairly dismissed within the meaning of section 385 of the FW Act,
[91] For the reasons outlined above I am satisfied that Mr Young was protected from unfair dismissal pursuant to section 382 of the FW Act and that he was dismissed unfairly.
[92] An order for payment of compensation may not be made unless the FWC is satisfied that reinstatement is inappropriate and payment of compensation is appropriate in all the circumstances of the case. 30
[93] Mr Young has since obtained alternative employment in a similar role. He commenced in his new role on 23 February 2020. In his new role his annual salary is $60,000 plus a motor vehicle allowance of $18,000.
[94] Mr Young does not seek reinstatement and Expo oppose his reinstatement. Given that Mr Young has obtained alternative employment and my findings in relation to his performance I am satisfied that reinstatement is not appropriate in the circumstances of this case.
[95] Given the lack of procedural fairness he was afforded I am satisfied that an order for payment of compensation is appropriate in all of the circumstances of this case.
[96] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to an applicant in lieu of reinstatement including:
a. The effect of the order on the viability of the employer’s enterprise.
b. The length of the applicant’s service.
c. The remuneration that applicant would have received, or would have been likely to receive, if the applicant had not been dismissed.
d. The length of the applicant’s service.
e. The efforts of the applicant to mitigate the loss they have suffered because of the dismissal.
f. The amount of any remuneration earned by the applicant from employment or other work during the period between the dismissal and the making of the order for compensation.
g. The amount of any income reasonably likely to be so earned by the employee during the period between the making of the order for compensation and the actual compensation.
h. Any other matter that the FWC considers relevant.
[97] The evidence is that Mr Young:
a. was aware of the targets he was expected to achieve;
b. was comprehensively failing to meet those targets;
c. believed, and continues to believe, that his performance was not deficient.
[98] In these circumstances it appears unlikely that if Ms Dunning had commenced a formal process of performance management that Mr Young would have changed his performance sufficiently to safeguard his employment.
[99] I am satisfied that a period of six weeks would have been an adequate period of time for Ms Dunning to formally warn Mr Young about the consequences of a failure to improve his performance and to provide him with a reasonable opportunity to improve his performance. On the evidence before me I am not satisfied that Mr Young’s employment would have continued beyond this time and therefore would not have continued for the necessary period of time for his contractual right to the Retention Incentive Payment to vest.
[100] The amount of renumeration which Mr Young would have received during this period less the amount of renumeration he has received in his new employment is $1,153.80 gross.
[101] There is no evidence before me to suggest that an order for compensation will effect the viability of Expo.
[102] Expo submit that had it been aware of the qualifying periods in the FW Act which applied to Mr Young that Mr Young’s employment would have ended on the same date by way of genuine redundancy. There is no evidence before me to this effect. There is therefore no basis on which I might be satisfied that Mr Young’s employment would not have continued for the six week period identified above.
[103] The sum of $1,153.80 does not include any component for shock, distress, humiliation or other hurt.
[104] On the evidence before me and the circumstances of this case I do not find it is appropriate to apply any contingency.
[105] I have considered Mr Young’s period of service and that does not cause me to adjust the amount of compensation payable.
Conclusion
[106] I am satisfied that Mr Young was protected from unfair dismissal, that the dismissal was unfair and a remedy of compensation of $1,153.80 gross taxed according to the law plus superannuation. An order to this effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr. P Mullally, appeared on behalf of the Applicant
Mr. T Anast appeared on behalf of the Respondent
Hearing details:
2020,
Perth;
22 September
Printed by authority of the Commonwealth Government Printer
<PR722950>
1 Digital Court Book at Pages 54-55
2 Ibid.
3 Ibid.
4 Digital Court Book at Pages 13-20.
5 Digital Court Book at Pages 13-20.
6 Ibid.
7 Ibid.
8 Digital Court Book at Pages 54-55
9 Digital Court Book at Pages 11-12
10 Ibid.
11 Digital Court Book at Pages 11-12.
12 Ibid.
13 Digital Court Book at Pages 8-10.
14 Digital Court Book at Pages 11-12.
15 Digital Court Book at Pages 8-10.
16 Digital Court Book at pages 11-12.
17 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
18 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
19 Ibid.
20 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
21 Roweena Ann De Silva v ExxonMobile Chemical Australia Pty Ltd (SDP Lacy, 9 January 2002, PR910623).
22 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
23 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
24 Ibid.
25 (2000) 98 IR 137.
26 Ibid at 151.
27 RMIT v Asher (2010) 194 IR 1, 14-15.
28 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
29 Section 390 of the Fair Work Act (Cth) 2009 (FW Act)
30 Section 390(3) of the FW Act
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