Michael Craig-Follese v Golf World (Qld) Pty Ltd
[2021] FWC 1022
•1 MARCH 2021
| [2021] FWC 1022 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Michael Craig-Follese
v
Golf World (QLD) Pty Ltd
(U2020/15287)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 1 MARCH 2021 |
Application for an unfair dismissal remedy – retail business – store manager – conduct and performance – whether valid reason – procedural fairness – despite shortcomings, dismissal unfair - compensation ordered
[1] On 26 November 2020 Michael Craig-Follese (the Applicant or Mr Craig-Follese) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. He was dismissed on 14 November 2020 by his then employer, Golf World (Qld) Pty Ltd (Golf World or the employer). At the date of dismissal he was employed as Team Leader (Manager) of the Golf World Adelaide store.
[2] Golf World is a national business headquartered in Queensland.
[3] Mr Craig-Follese, who resides in South Australia, claims his dismissal was harsh, unjust or unreasonable. He seeks an order for six month’s compensation.
[4] Golf World oppose the application. It contends that Mr Craig-Follese’s dismissal was not unfair and no issue of remedy arises.
[5] Conciliation was conducted on 10 December 2020. The matter did not resolve. Neither party pursued a subsequent opportunity for Member Assisted Conciliation.
[6] I issued directions on 23 December 2020.
[7] By consent, I granted permission for Mr Craig-Follese to be legally represented. 1
[8] In advance of the hearing, I received materials from both Mr Craig-Follese and Golf World.
[9] I heard the matter by video conference on 18 February 2021.
[10] I have redacted from the publicly available version of this decision certain content of a private or confidential nature that relates to matters that serve no useful public interest. This includes details of company finances and names of persons including a deceased person and certain customers. The parties to these proceedings have received an unredacted version of this decision. An order I make in conjunction with the delivery of this decision is that the parties not circulate the unredacted version of this decision more broadly than to their legal or professional advisers or as required by law.
Evidence
[11] Mr Craig-Follese gave oral evidence on two witness statements filed in his name. 2
[12] The employer’s Human Resources Manager Damon Flood gave oral evidence on a witness statement filed in his name 3. Mr Flood also acted as Golf World’s representative at the hearing.
[13] No other witnesses gave evidence. I deal later with a submission made by Mr Craig-Follese concerning the failure of the employer to call other persons.
[14] As the matter concerned Mr Craig-Follese’s conduct and performance across a number of months of 2020, the evidence was of considerable breadth. Though some facts are in dispute, most of the matters of evidentiary dispute were not questions of fact, but matters of opinion. In a matter such as this, that is not surprising. The reason for dismissal itself was reflective of an overall opinion formed by the employer.
[15] Mr Craig-Follese is a softly-spoken person with a material vision impairment who gave evidence conscientiously and generally with composure. He was attentive to questions and made concessions where necessary. Whilst he was generally impressive and his evidence broadly reliable, some (but not all) denials were inexplicably vague.
[16] Mr Flood gave evidence in a firm and straightforward manner and although making some concessions he veered towards being unnecessarily defensive. His evidence was relevant but replete with hearsay and opinion; not surprising given that the employer elected not to call a number of managers with more direct knowledge of in-store events. Nonetheless, Mr Flood had much direct involvement with Mr Craig-Follese in the disciplinary and dismissal process, and in those respects his recall was clear and reliable.
[17] Where there are factual differences requiring determination, I make findings having regard to plausibility, consistency and demeanour under cross examination and whether corroborative documentary evidence exists that informs content and context.
[18] The Commission is not bound by the rules of evidence but they are a sound guide to fact-finding. Notwithstanding Mr Craig-Follese’s submission, I do not discard from the record or render inadmissible those parts of Mr Flood’s witness statement or oral evidence that contain opinion or assumption. To do so would be inappropriate in a matter such as this where the line between fact and opinion is blurred. I have regard to the opinions formed and assumptions made by both witnesses but on a limited basis only. I treat them as an extension of submissions made and capable of providing context to facts otherwise established. As with hearsay evidence, I give considerably less weight to opinion and assumption than primary evidence or inferences properly drawn from that evidence.
[19] It would have been helpful to fact-finding to have received evidence from three senior officers who had operational involvement with Mr Craig-Follese on relevant events (Area Leader Joseph Gollan, General Manager Sam Christie and Forensic Accountant Boniface Kittoli).
[20] In a performance-based dismissal it is unusual for at least the relevant employee’s immediate manager, who in this instance was Mr Gollan, not to be called.
[21] It is not however necessary to make an adverse inference against Golf World of the Jones v Dunkel 4 kind in order to undertake the necessary fact-finding and determine this matter. Golf World called Mr Flood who managed the disciplinary process, who made the decision to issue warnings and who then supported the dismissal.
[22] A Jones v Dunkel inference, were it made, does not enable facts not otherwise open to be found to be so found. It simply has the effect of creating an inference that evidence of a certain witness would not have been helpful to the party that did not call the witness. 5 I need not draw that inference as matters on which the decision-makers acted are in evidence and the evidence of Mr Flood, whilst not in every respect the best available evidence, is adequate to make relevant findings of fact.
Facts
[23] I make the following findings.
Golf World’s operations
[24] Golf World is a private business retailing golfing products. It is based in Queensland and operates in four States. In South Australia, it has a store in the Adelaide central business district.
[25] The Adelaide store xxx xxx xxxxxxxxxx xx xxxx. 6 However, with the advent of COVID-19, trade increased as the community renewed its interest in local recreational activities such as golf. With increased trade, the Adelaide store xxxxxxxx xx xxxxxxxxxxxxx xx xxxx.
[26] The Adelaide store is managed by a Team Leader supported by four or five other employees involved in sales, product ordering, stock control and equipment repair (being a mix of full time and casual staff).
Mr Craig-Follese’s employment
[27] Mr Craig-Follese is currently in his mid-20’s. He lives in suburban Adelaide. He is married and awaiting the birth of a first child. He has a visual impairment that precludes him from driving a vehicle.
[28] He commenced work in the Adelaide store as a young man on 15 October 2016 in the full time position of golf consultant (sales). 7
[29] In October 2019 Mr Craig-Follese was promoted to the position of store manager (Team Leader). This also was a full time position. A new contract was entered into 8 which provided a base salary ($50,000 pa), commissions (based on fortnightly sales) and access to a bonus scheme (based on store profit).
[30] The remuneration paid to Mr Craig-Follese was an all up rate for whatever hours he worked. His contract required him to work hours as required, and at least one Saturday or Sunday each week. He was not paid overtime or a specified penalty rate.
[31] Although store manager, Mr Craig-Follese, like all employees, was required to lodge a weekly time sheet. In fact one of his roles was to ensure that head office received time sheets for all staff in the Adelaide store, and that he as manager verified the hours worked. However, in some weeks, time sheets needed to be lodged in advance of the week concluding because payroll runs needed to be conducted. In those weeks, it was the responsibility of the employee or store manager to advise head office of differences between hours projected on submitted time sheet and hours actually worked (or leave taken).
[32] Mr Craig-Follese was promoted in October 2019 to Team Leader as he was seen as a competent employee with attributes able to perform the job.
[33] Mr Craig-Follese received only limited induction into the new role and felt training on some issues (such as stock management) was inadequate. He learned those aspects on the job. He reported to the Area Leader (Mr Gollan) and dealt with other senior managers (such as Mr Christie). He had a good relationship with those managers and Mr Flood.
[34] In late July 2020 a tragic event impacted the Adelaide store. A former employee (Xxxxxx Xxxxxx 9) who had ceased working in April 2020 (and who had also been a former Team Leader) took his life. Mr Craig-Follese (amongst other Adelaide store employees) had worked closely with Xx Xxxxxxx. Mr Craig-Follese took the passing of his former workmate hard. He was upset. It affected his feelings. Although Mr Flood offered support to Adelaide store employees if it was required, no counselling was provided or sought. Mr Craig-Follese ‘soldiered-on’ in his role as Team Leader, as the store became busier with COVID-19 impacts.
2020 Stocktake
[35] Stock control was an important part of Mr Craig-Follese’s role, contractually and in practice. He was required to apply company policy on stock management, align purchasing with group strategy, take custodianship of stock (“as if it were his own” 10), and maintain the required blend and levels of stock on hand.11
[36] Although stocktake was usually conducted six monthly, COVID-19 disruptions in 2020 meant that stocktake in the Adelaide store did not occur until September 2020. It spanned a period of more than six months.
[37] On 1 September 2020 Mr Kittoli (the forensic accountant overseeing store stocktakes) advised Mr Craig-Follese that the Adelaide store stocktake would be held on 15 to 17 September 2020. 12 He advised Mr Craig-Follese to make preparations, including ensuring staffing was suitable to allow the process to be efficiently conducted. Mr Craig-Follese replied:13
“All good Boni. Ready for stocktake looking forward to see you. Lock it in”
[38] The stocktake was conducted over three days, 15 to 17 September 2020. Mr Kittoli attended the Adelaide store in person.
[39] On 30 September 2020 Mr Kittoli sent Mr Craig-Follese (copied to his Area Leader and other senior managers including Mr Flood) the result of the stocktake. 14 It was not a positive report. Mr Kittoli advised:
“This variance was longer than expected and a lot more in value. The negative SOH [stock on hand] report was overwhelmingly long.
The issues giving rise to this were discussed in store and the importance of keeping up to date with admin and daily paperwork.
(...)
The team leader was also advised on how to cope and control trade in stock.
The TL was advised he has all the support he needs to help him turn around the store from the low it has reached. We should see some changes soon and a better result from the next stock take.”
[40] Mr Craig-Follese replied later that day (to Mr Kittoli and the managers including Mr Flood): 15
“I will be doing my best to uncover this mystery of missing stock, as it seems to be completely incorrect.”
[41] Clause 10 of Mr Craig-Follese contract of employment provided: 16
“The amount of any variance or discrepancy arising from a stock take conducted at the store will become a debt immediately due and payable by you to the company and becomes a debt under this clause.”
[42] Concerned that his remuneration or commissions may be withheld on account of the stocktake discrepancy or until stock was “located or accounted for”, in his email reply of 30 September 2020 Mr Craig-Follese asked for “concrete evidence” of company policy around stocktake variance and the withholding of commissions including a copy of his contract. 17
[43] Though discussions about the withholding of commissions then occurred by phone between Mr Craig-Follese and Mr Flood, not having received a written reply for a month and noting that his commission payments had in fact been withheld, on 2 October 2020 Mr Craig-Follese emailed Mr Flood repeating his request for the documents sought, and to “reading your reply” 18.
[44] Five days later, on 7 October 2020, Mr Craig-Follese received a first written warning from Mr Flood. 19 The warning concerned “your performance as Team Leader”. It raised certain administrative matters (discussed below). It did not refer to the stocktake.
[45] Mr Craig-Follese disagreed with the first warning letter and declined to sign it.
[46] On 22 October 2020 (7.45am) Mr Craig-Follese received a written reply from Mr Flood (by email) about the stocktake. 20 It advised that the stocktake variance had been $x,xxx.xx and that after various discounts “this results in a debt to the business of $x,xxx.xx”21 which will “be withheld from commissions, spivs and bonuses from you until the loss is recouped.” It concluded:
“I can’t stress enough how disappointed the business is with the result from your stocktake, poor administration, a lack of vigilance in stock security and the practice of you and your team members taking home and “trying” equipment is simply unacceptable and impossible to control.”
[47] Four hours later (10.49am) Mr Craig-Follese received the foreshadowed stocktake warning letter, again from Mr Flood. 22
First Warning - Administrative Matters
[48] The first written warning issued by Mr Flood on 7 October 2020 (by letter dated 6 October) concerned four administrative matters. It provided: 23
“Dear Michael
FORMAL PERFORMANCE WARNING
This letter is a first warning relating to your employment at the Adelaide Golf World shop. Your performance as Team Leader in the Adelaide store is currently below the standard necessary for you to retain your employment.
THE ITEMS THAT NEED YOUR IMMEDIATE ATTENTION ARE:
1. You have been taking unauthorised leave and this is unacceptable. You are fully aware that if you intend to change your store’s approved roster, those changes must have authorisation from your Area Leader or myself.
2. The setting up of new team members has not been completed in an acceptable timeframe after continual requests from Head Office and your Area Leader. You have had a casual team member employed in your store for 14 weeks now without a single sale being recorded against his name.
3. You must email Head Office with regard to online orders that have not been completed either due to stock availability or quantity. The online business plays a very important role within this business and needs to be treated with a lot more care and attention than it is currently being shown by the Adelaide store.
4. Your admin duties are, in total, not up to the standard required of a store Team Leader. In particular, your rostering needs to be up to date and the submission of your store’s timesheets have been a real problem with incorrect hours being submitted for payment. Additionally, multiple days of leave have not been correctly recorded on the time sheets approved and submitted by you.
To sum up --- The basic administration duties of the Adelaide store are your responsibility. This is an integral component of your role as the Team Leader of the Adelaide store and these duties need your immediate attention and improvement. If you need help in the understanding of the duties above, or coaching in how to do those duties, do not hesitate to speak with your Area Leader.
(…)
Yours faithfully
Mr Damon Flood
Human Resources Manager”
Second Warning - Stocktake
[49] The second written warning issued by Mr Flood on 22 October 2020 (by letter that date) concerned the stocktake. It provided: 24
“Dear Michael
FORMAL PERFORMANCE WARNING
This letter is a second warning relating to your employment at the Adelaide Golf World shop. Your performance as Team Leader in the Adelaide store is currently below the standard necessary for you to retain your employment.
THE ITEMS THAT NEED YOUR IMMEDIATE ATTENTION ARE:
1. Your stock control, the recent stocktake conducted on your store was the worst result in a number of years at the Adelaide shop. Poor administration , a lack of vigilance and the practice of you and your team members taking and "trying ' equipment were all contributing factors to the substantial loss.
2. The conduct that was showed by you during the stocktake was not that of a leader. As Team Leader of the Adelaide store, one of your roles is to lead by example. This is a quality that is missing in Adelaide. You should have been the first team member in the shop and the last to leave whilst the stocktake was being conducted and this wasn't the case. For you to say the stocktake was rushed when you were not even at the store during operating hours is unacceptable, given you are responsible for the stock in that shop.
3. During the stocktake you were asked to check a number of pages from the variance report and record whether that product was in fact in store. Your recording of this missing product was found to be false on a number of occasions by the Forensic Accountant which concerns the business whether this was a fraudulent act to mask missing product or simply no care and a lack of respect for your position and the process.
4. A recent sale shows you sold a set of lady Callaway irons for a substantial loss without obtaining authorisation before doing so. Whether or not your claim of the set of irons was missing a club and was shop soiled, the amount it was sold for would never have been authorised given the loss the business has incurred. I cannot make it any clearer that if you are ever in a position to be contemplating a sale with a loss of that magnitude you are to obtain authorisation before doing so , you do not have that authority.
To sum up --- The stock control of the Adelaide store is your responsibility. This is an integral component of your role as the Team Leader of the Adelaide store and those duties around these processes need your immediate attention and improvement. If you need help in the understanding of the duties above, or coaching in how to do those duties, do not hesitate to speak with your Area Leader.
Official Warning
With this letter, you are officially warned that if the required improvements in stock control of the Adelaide Golf World shop are not seen then your employment will be terminated. The improvement that is required is that your store will operate within its calculated tolerance in your next stocktake. This is an expectation of not just the Adelaide store but every store within the Group.
(…)
Yours faithfully
Mr Damon Flood
Human Resources Manager”
Personal leave – 27 October to 13 November 2020
[50] Mr Craig-Follese was “shocked and stressed” at having received the second warning, especially as it came soon after the first warning. He believed that he was the target of a “witch-hunt” due to having complained about his commission payments being withheld. 25
[51] Mr Craig-Follese saw a general practitioner on Monday 26 October 2020. He was certified unfit to work from 27 October to 3 November 2020 (inclusive). He submitted a medical certificate to this effect. He consulted a different general practitioner on 6 November 2020. He was certified as unfit from 6 November 2020 to 13 November 2020 (inclusive) due to “suffering from stress”. He sent this second certificate to his managers.
[52] Mr Craig-Follese did not work between 27 October and 13 November 2020 (inclusive).
[53] In this period, Mr Gollan (based in Sydney) travelled to the Adelaide store to cover for Mr Craig-Follese.
[54] Whilst working in the Adelaide store, Mr Gollan uncovered other deficiencies for which he believed Mr Craig-Follese responsible.
Termination – 14 November
[55] Unknown to Mr Craig-Follese (who was on personal leave), and in the wake of Mr Gollan uncovering what he considered other matters of concern, in the week of 9 November 2020 discussions occurred between senior managers (including Mr Flood) about whether Mr Craig-Follese should be dismissed.
[56] A recommendation was made to the owners, with which Mr Flood agreed, that Mr Craig-Follese be dismissed. The owners accepted the recommendation. Mr Flood was asked to prepare the termination letter. He prepared a draft on 12 November. 26 The draft was further refined into a final dated 13 November 2020.27 It was given to Mr Christie (who was due to travel to Adelaide on 14 November) who would then dismiss Mr Craig-Follese when Mr Craig-Follese returned from personal leave.
[57] Mr Craig-Follese returned from personal leave on Saturday 14 November 2020. At around 1.00pm Mr Christie called him into a meeting. It was brief. Mr Christie told Mr Craig-Follese that a decision had been made to terminate his employment, effective immediately. He gave Mr Craig-Follese the dismissal letter dated 13 November 2020. Mr Craig-Follese opened it and, although upset, read the letter as best he could in the moment. There was little other discussion. He took his belongings and left.
[58] The dismissal letter read: 28
“13 November 2020
Dear Michael,
NOTICE OF SUMMARY DISMISSAL
Due to ongoing concerns regarding your performance as Team Leader in the Gold World Adelaide Store, and taking into account the fact that you have had 2 previous formal performance warnings, the company has decided to dismiss you from your position effective immediately. You are required to hand back your shop keys on receipt of this termination letter.
THE REASONS FOR ESTABLISHING THIS OUTCOME ARE AS FOLLOWS:
1. It has been found that you have once again, sold stock for a substantial loss without obtaining authorisation. You have been informed numerous times that you do not have the authority to do so. Your excuse for making this decision was that you didn't ring anyone because, it was a Sunday, the sale in question was actually transacted on Friday 25th September 2020.
2. There was a customer order for Xxxxxxxx Xxxxxxx 29 which she paid a deposit, for on the 12th September 2020 for a set of ladies Callaway irons, Callaway sent you an email on the 14th September asking for clarification on the shaft and you never returned that email. The customer came into the store on the 3rd November 2020 asking where her clubs were and it was realised they were never ordered. This sort of behaviour from someone in a position of management is simply not acceptable. Not only have you damaged our brand but you have lost a customer for your store and there is no chance she will ever shop with Golf World Adelaide again.
The above, and matters discussed previously in your 2 prior warnings, have left the company completely lacking any confidence relating to your ability to perform the routine duties of your job in the often unsupervised environment that is the Adelaide shop.
Therefore. you are advised that your employment has, as of today's date, been summarily terminated.
This decision has not been taken lightly, however your continued actions have left the business with no alternative.
Should you have any questions in relation to this decision please don't hesitate to contact me.
Once again we wish you all the beat with your future employment and thank you for your services to the busines throughout your employment.”
[59] Although the letter advised of summary dismissal, and although the dismissal took effect that day (14 November 2020) the evidence of Mr Flood (which I accept) was that Golf World paid Mr Craig-Follese three weeks in lieu of notice but in fact paid a lesser sum because, on the instruction of the owners, it deducted from that three weeks the outstanding balance of the stocktake debt. In practice, Mr Craig-Follese received about (just over) the equivalent of one week in lieu of notice (after this deduction) in addition to his accrued leave entitlements.
Post dismissal events
[60] Mr Craig-Follese was deeply upset by his dismissal, never having experienced an event of that nature in his working life. He was worried about his ability to sustain his family without work given that his partner was expecting their first child.
[61] He consulted a lawyer. Twelve days later, this application was lodged on his behalf.
[62] Mr Craig-Follese moved promptly to seek alternative employment.
[63] On 14 December 2020 Mr Craig-Follese commenced work as a full time customer care representative with a private company (under the Clerks Private Sector Award 2020). A formal contract was entered into on or about 11 January 2021. 30 He reports to a Team Leader. He is subject to a six month probation period. His base remuneration is $50,388 pa. His contract does not make provision for commissions or bonuses.
Submissions
Mr Craig-Follese
[64] Mr Craig-Follese claims that his dismissal was harsh, unjust or unreasonable. He seeks an order for six month’s compensation.
[65] He claims his dismissal was unfair on both substantive and procedural grounds.
[66] On substantive unfairness, Mr Craig-Follese submits:
• there was no valid reason for dismissal;
• Mr Craig-Follese was a diligent employee who was recognised as such when promoted as Team Leader;
• to the extent that some errors on his part were made, they were administrative in nature and largely the product of inadequate training and upset and distraction in the wake of the death of Xx Xxxxxxx;
• the alleged failures of duty in the first warning letter are unfair criticisms and disputed;
• the alleged failures of duty in the second warning letter are unfair criticisms and disputed;
• the two warning letters were issued because Mr Craig-Follese exercised his right to complain about and seek justification for the withholding of commission payments;
• the alleged failures of duty in the dismissal letter are unfair criticisms and disputed;
• to the extent the employer relies on or infers serious misconduct, it has not met the requisite standard of proof to establish misconduct let alone serious misconduct;
• the reasons for the warnings and for the dismissal were not the true reason for dismissal. He was warned because he complained about the employer withholding his commissions, not for underperformance. He was dismissed because he has since learned that some money had disappeared from the safe in the Adelaide store and as the store manager he was sacked for that having occurred, even though he was not at work at the relevant time and had nothing to do with the disappearance; and
• there was no material failure of conduct or duty either individually or collectively that warranted or could be proportionate to the sanction of dismissal.
[67] On procedural unfairness, Mr Craig-Follese submits:
• both the first and second warning letters were not justified and therefore cannot be validly used to support the decision to dismiss;
• he was given no insight into or opportunity to explain his position on the allegations in the first or second warning letters before those warnings were given;
• he was given no insight into or opportunity to explain his position on the two allegations in the dismissal letter before being dismissed;
• the upset and distraction he experienced in the wake of the death of Xx Xxxxxxx was not taken into account by the employer in deciding to discipline or dismiss; and
• he was not told the true reason for dismissal and in any event was never given an opportunity to be informed about or respond to the issue of an alleged disappearance of cash from the store.
[68] He submits that he should be compensated for six months being at least the period that he would have worked had he not been unfairly dismissed.
Golf World
[69] Golf World contend that the dismissal was not harsh, unjust or unreasonable and that no issue of remedy arises. It submits:
• there was a valid reason for dismissal having regard to matters of performance and conduct;
• as Team Leader, Mr Craig-Follese had responsibility and accountability for all matters relating to the operation of the Adelaide store as clearly laid out in his contract of employment;
• as Team Leader of a store geographically remote from other stores and head-office, trust was placed in Mr Craig-Follese and he had a particular responsibility to be transparent and accountable so as to retain the trust and confidence of senior management;
• Mr Craig-Follese failed to meet his responsibilities particularly in areas outlined in the first warning letter, the second warning letter and the dismissal letter;
• the issues that gave rise to the first and second warnings were the subject of informal discussion between Mr Craig-Follese and other managers including Mr Flood. His views were put and known by senior management in advance of the decision to dismiss;
• the dismissal was not procedurally unfair given that Mr Craig-Follese had received a first and then a second written warning, in addition to informal discussions about performance;
• Mr Craig-Follese chose to absent himself from the workplace in the fortnight prior to dismissal in order to avoid accountability to Mr Gollan, thus his own conduct caused him to be dismissed on the day he returned to work;
• the employer offered support to Mr Craig-Follese and other staff members of the Adelaide store following the passing of Xx Xxxxxxx but Mr Craig-Follese did not take up that offer; and
• it was not tenable for the business to retain an underperforming store manager in its Adelaide store.
Consideration
[70] There are no jurisdictional or preliminary issues arising.
[71] I am satisfied that Mr Craig-Follese was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the required minimum employment period (section 382(a)). His annual rate of earnings did not exceed the high income threshold (section 382(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the required 21 days after dismissal.
[72] Golf World is not a “small business” for the purposes of the unfair dismissal provisions of the FW Act.
[73] I now consider whether Mr Craig-Follese’s dismissal was unfair.
[74] Section 387 of the FW Act provides:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid reason
[75] Valid in this context is generally considered to be whether there is a sound, defensible or well-founded reason for dismissal.31 In considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them.
[76] The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not enough for an employer (other than in cases of summary dismissal by a small business employer32) to rely on its reasonable belief that the termination was for a valid reason.33 Equally, facts justifying dismissal which existed at the time of the termination can be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.34
[77] The existence of a valid reason is not assessed simply by reference to a legal right to terminate a contract of employment.35
[78] The reason for dismissal advanced by Golf World, at least in the dismissal letter, was “ongoing concerns regarding your performance as Team Leader”. 36
[79] In support of this reason, Golf World relies on:
• the four alleged failures of duty in the first warning letter;
• the alleged failures of duty concerning the stocktake as set out in the second warning letter; and
• the two alleged failures of duty in the dismissal letter.
[80] Golf World also advance the proposition that although a police investigation into missing banking is not complete, it was a factor that triggered the decision to dismiss Mr Craig-Follese and, to that extent, is relevant, despite not being mentioned in the dismissal letter. 37
[81] In order for there to be a valid reason, Golf World is required to establish on the evidence before the Commission and to the requisite standard of proof, the performance or conduct failures on which it relies.
[82] In this matter, this is a relevant consideration in at least three respects.
[83] Firstly, having elected to not call Messrs Gollan, Christie or Kittoli, the direct evidence before the Commission of performance failures is limited to matters directly within the knowledge of Mr Flood as supported by relevant documentation and matters arising from the direct evidence of Mr Craig-Follese.
[84] Secondly, whilst always remaining the civil standard, the more serious the allegation, the higher the standard of proof required. 38 Opinion and hearsay evidence, absent direct evidence, corroboration or admission, is not a reliable basis to make findings of misconduct let alone serious misconduct.
[85] Thirdly, Golf World is not required to prove serious misconduct. It is required to establish a valid reason. A valid reason may include conduct that is serious misconduct, but such characterisation is not required. Contrary to the submission of Mr Craig-Follese, the definition of serious misconduct in regulation 1.07 of the Fair Work Regulations 2009 is not relevant to this matter. As has been noted by a full bench of the Commission, that regulation has no role to play in characterising conduct for the purpose of determining whether a valid reason for dismissal exits. 39 Depending on the circumstances, a summary dismissal may, however, be harsh if grounds for summary dismissal (such as serious misconduct, howsoever defined) are not established. In this matter, Golf World have elected to characterise certain conduct by Mr Craig-Follese (largely concerning time sheets and leave) as false, fraudulent or a form of “time theft”40. Choosing to characterise such conduct in those terms raises the standard of proof beyond the mere balance of probabilities to one where a reasonable degree of certainty needs to exist that such conduct did in fact occur.41
[86] I now consider the particulars of alleged failure of duty. In this context it is noteworthy that in his evidence, Mr Craig-Follese accepted that he erred in six respects:
• that he did not follow up adequately with the supplier or customer who had paid a deposit for clubs, as per the dismissal letter;
• that he was wrong in stating that the sale to a customer referred to in the dismissal letter was on a Sunday when in fact it had occurred on a Friday (but that he was not intending to mislead);
• that he wrongly allowed an employee of the Adelaide store to take a golf club out of the store for trialling;
• that he erred in not seeing in his in-box and responding to an email from a supplier sent to him on 14 September 2020 concerning an order by customer Xx Xxxxxxx; 42
• that he erred in not informing head office that he was taking two days absence after the 2020 stocktake; and
• that he erred in allowing a new employee to transact sales that he knew were being allocated (for commission purposes) to himself given that no sales code had yet been obtained for that employee.
Taking unauthorised leave (first warning)
[87] Golf World claim that from time-to-time Mr Craig-Follese was absent for whole days from the store without approval and without applying for or claiming leave. Golf World consider this failure to be akin to “time theft” and a form of fraud.
[88] That being so, the standard of proof required is to a reasonable degree of satisfaction.
[89] Mr Flood’s evidence was that such absences occurred on at least nine occasions between January and October 2020. He brought into evidence time sheets submitted by Mr Craig-Follese on which Mr Flood had notated that Mr Craig-Follese did not work despite the time sheet recording him present. 43 Mr Flood’s evidence, which I accept, was that on these occasions Mr Gollan or other managers contacted the Adelaide store on these days to speak to Mr Craig-Follese , but he was not present. Mr Flood’s evidence was that there was no prior or retrospective application for leave for these days.
[90] Though accepting that post the 2020 stocktake he failed to inform head office of his two day absence, Mr Craig-Follese’s evidence was that whenever he was absent without leave, it was time in lieu or personal leave. Having worked eight consecutive days around the stocktake period, he considered he was entitled to two days off.
[91] I am satisfied that on approximately nine occasions in the ten months to October 2020 Mr Craig-Follese was absent from the Adelaide store when the Area Manager and other managers in head office (including Mr Flood) believed he was working those days and that he had represented himself as working those days in a submitted time sheet.
[92] I am satisfied that on each of these occasions Mr Craig-Follese had not informed head office or his Area Manager of his absence at the earliest possible opportunity and that this led the Adelaide store to be unexpectedly down a staff member and his managers unclear as to his whereabouts.
[93] In not informing Mr Flood or his Area Manager of the intended or actual absences, Mr Craig-Follese took liberties with the flexibilities he considered associated with his role as store manager, and failed to meet the appropriate standard of accountability to head office. This was clear error on his part.
[94] However, I am not satisfied that each of these absences was an act of concealment or necessarily claiming something he was not entitled to (“time theft” according to Mr Flood). His employment contract did not specify set hours. As store manager a certain degree of flexibility existed as to how he would roster himself vis-a-vis other staff and secure his days off. He says that with respect to the two days absence following the stocktake, he did seek authorisation but did not hear back. 44 Further, on some weeks a timesheet in advance of days worked needed to be submitted. It does not necessarily follow that the timesheets themselves represented a misrepresentation when they were submitted.
[95] The failure was a failure to report absences. Only if the absences were not permitted (by reference to his contractual hours or other leave such as personal leave) were they acts of concealment. The evidence, combined with the standard of proof required, does not enable me to reach the appropriate level of satisfaction on that score.
[96] Accordingly, I find multiple failures by Mr Craig-Follese to advise his absence from the workplace, but do not conclude those failures of duty extended to acts of concealment or taking time off that was not permitted on the relevant days.
Failure to code sales of a new employee (first warning)
[97] Golf World allege that Mr Craig-Follese failed to seek a sales code for a new employee mid-2020 and instead allowed sales transacted by the new employee to be allocated to his sales code, thereby securing commission on sales to Mr Craig-Follese’s advantage despite Mr Craig-Follese not having transacted the sales.
[98] Given that Golf World consider this failure to be akin to the receipt of monies he was not entitled to, the standard of proof required is to a reasonable degree of satisfaction.
[99] The evidence of Mr Flood establishes that the casual employee (Xxxxx Xxxxxxx 45) commenced in the Adelaide store on 26 June 2020 and that it was not until 31 August 2020 that Mr Craig-Follese requested a staff code from the IT department for that employee’s sales. The documentary evidence supports this position.46
[100] Mr Craig-Follese’s response was three-fold. Firstly, that he did seek a code for Xx Xxxxxxx upon him commencing but this was not responded to. Secondly, that Xx Xxxxxxx was primarily employed for non-sales work (such as repairs) and not sales. Thirdly, that the number of sales transacted by Xx Xxxxxxx was small.
[101] These explanations are unconvincing.
[102] There is no documentary evidence produced by Mr Craig-Follese that establishes the earlier request he said he made. Moreover, his request of 31 August 2020 makes no reference to a prior request having been made, but not responded to. I am satisfied that it was not until 31 August 2020 that Mr Craig-Follese made a request for a sales code for Xx Xxxxxxx, and not prior.
[103] Nor does it matter whether Xx Xxxxxxx was primarily working on repairs rather than sales. Mr Craig-Follese conceded in his evidence that he knew Xx Xxxxxxx transacted some sales. As store manager, he did not intervene to preclude that occurring – because he knew putting sales though was permissible – and he permitted it. Knowing that Xx Xxxxxxx was putting through sales, Mr Craig-Follese knew or ought to have known that it was his obligation as store manager to request an allocated sales code for Xx Xxxxxxx, and do so in a timely manner. He did not.
[104] Nor does it matter that the number of sales transacted by Xx Xxxxxxx were infrequent. Mr Craig-Follese knew or ought to have known that in the absence of a sales code specific to Xx Xxxxxxx, the sales were being recorded on his sales code, and thereby securing commission on whatever sales were transacted, however small in quantity or value.
[105] This was an administrative error on Mr Craig-Follese part, and one where had he thought about it, he was securing a benefit by way of commission (howsoever minor) for which he was not entitled. Given the standard of proof required, I do not find that Mr Craig-Follese deliberately sought out to enrich himself at the expense of another employee or to mislead his employer. I accept that he understood (correctly) that Xx Xxxxxxx was primarily performing non-sales work, and that the sales transacted were minor and incidental. Whilst primarily an administrative failure, it lasted for two months and was an act of thoughtlessness and indifference and only remedied after prompting by Mr Flood, though not deceit.
Incomplete online orders (first warning)
[106] Golf World allege that Mr Craig-Follese failed to communicate effectively on online orders that were incomplete due to stock shortages.
[107] In the absence of evidence from other managers, Mr Flood’s evidence 47 does not make out this allegation. The fact that in his opinion there was enough staff in the Adelaide store to transact and follow up the number of online orders does not establish failure on Mr Craig-Follese’s part.
Accuracy of store timesheets and rostering (first warning)
[108] Golf World allege that Mr Craig-Follese submitted or approved time sheets for staff in the Adelaide store that were incorrect, and that corrections were not followed up – resulting in staff being paid for hours not necessarily worked, or not paid for hours worked.
[109] Mr Flood’s evidence on this was general in nature. Though, as Human Resources Manager, I give this evidence weight given that it was Mr Flood’s business to be concerned with working arrangements for staff, I am not satisfied that the evidence establishes specific wrongdoing on Mr Craig-Follese’s part. As previously noted, there were weeks where submitted timesheets needed to specify prospective hours and not hours actually worked. Whilst I accept that Mr Flood informally raised with Mr Craig-Follese the need to correct time sheets against hours actually worked, and was concerned that this was not happening, the evidence is not sufficient to conclude that Mr Craig-Follese did not do so on specific occasions (other than on the days, considered above, when he was absent without notifying head office).
Poor stock control (second warning)
[110] Golf World allege that Mr Craig-Follese failed to manage stock appropriately, as required by his contract of employment.
[111] The evidence said to support this allegation is the result of the 2020 stocktake. I accept Mr Flood’s evidence that the stocktake established a shortfall of $x,xxx.xx 48 which was above the tolerance factor established by policy of $x,xxx.xx. This much is clear from Mr Kittoli’s report49 of 30 September 2020 and Mr Flood’s email50 of 22 October 2020.
[112] The evidence also establishes that fifteen days after the 2020 stocktake Mr Craig-Follese emailed Mr Flood and Mr Kittoli indicating that a number of missing items had been located.
[113] I do not accept the submission of Mr Craig-Follese that the two weeks advance notice given of the 2020 stocktake was insufficient to prepare for the accounting of stock or staff rosters during the stocktake.
[114] I am satisfied that stock located by Mr Craig-Follese after the stocktake could have, and should have, been accounted for during the stocktake. To this extent, I am satisfied that Mr Craig-Follese had a somewhat inadequate level of control over the whereabouts of some of the stock in the store, and that this in part reflected negatively on his contractual obligations.
[115] However, the evidence is insufficient to draw the further conclusion advanced by Golf World that the 2020 stocktake result was the worst in the Adelaide store for a number of years or that Mr Craig-Follese failed to act as a team leader during the stocktake. Whilst both may be the case, I am unable to make such findings given the hearsay nature of Mr Flood’s evidence on this point, the fact this was a nine (not six) month stocktake, and not having heard directly from Mr Kittoli who conducted the stocktake. Whilst the second warning letter was justifiable having regard to the stocktake report and Mr Craig-Follese’s obligations as Team Leader, Mr Kittoli’s report is less strident than the second warning letter in these respects. It refers to a “long variance” and a “significant loss in trade” but also observes that “we should see some changes soon and a better result from the next stocktake.” 51
Allowing product to be taken out of store and trialled (second warning)
[116] Golf World allege that Mr Craig-Follese’s failure to control stock extended to allowing stock to be removed from the store by staff for trialling.
[117] Mr Craig-Follese denied having done so other than on one occasion.
[118] I am satisfied on the evidence before me that on one occasion Mr Craig-Follese permitted another employee (Xx Xxxxxx 52) to remove a golf club from the store and to trial that club in their private time, and subsequently return the club to the store (after the stocktake identified it as missing). Mr Craig-Follese acknowledged to Golf World whilst employed53, and at the hearing54 that he had done so.
[119] Such a practice was contrary to policy, and had the effect that a product intended to be sold was (if able to still be sold) sold at a discounted price given that it had been used by staff. It also compromised the stocktake.
[120] Allowing a staff member to trial a golf club out of store (whether new or second-hand) was a failure of judgment on Mr Craig-Follese’s part. Doing so was not within the scope of his authority as he had not received permission from his managers to do so, nor did he seek out that permission. Whilst there was no gain to himself, it set a poor example and evidenced an indifference to stock control.
Gaps in attendance during 2020 stocktake (second warning)
[121] Whilst Mr Flood, based on advice from Mr Kittoli, believed that Mr Craig-Follese was not in attendance at all times during the 2020 stocktake (and should have been), not having heard from Mr Kittoli, and given the evidence of Mr Craig-Follese 55 that he only left Mr Kittoli alone once the stocktake was complete and was given permission to do so, I am unable to make a finding to the requisite standard that any periods of absence were a failure of duty or indifference to the importance of the stocktake.
Inaccurate (false) recording of stock whereabouts during 2020 stocktake (second warning)
[122] Golf World allege that Mr Craig-Follese incorrectly advised Mr Kittoli of the whereabouts of certain stock. The second warning letter characterises this as either a “fraudulent act” or a “lack of respect” for the process.
[123] Given that Golf World suggest this failure to be akin to a form of misrepresentation or falsehood, the standard of proof required is to a reasonable degree of satisfaction.
[124] Mr Flood’s evidence on these matters was hearsay. Not having heard from Mr Kittoli, I am unable to make a finding to the requisite standard that Mr Craig-Follese either falsely or incorrectly advised Mr Kittoli about the whereabouts of stock during the 2020 stocktake.
Sale of Callaway irons at a loss without authorisation (second warning)
[125] Mr Craig-Follese does not contest that he sold a set of Callaway irons to a female customer at below cost price, thus leading to the business incurring a loss on the sale.
[126] The issue in dispute is whether Mr Craig-Follese had authority to do so.
[127] Mr Craig-Follese’s evidence was that he, as store manager, had general authority from Mr Christie to sell soiled or damaged goods at the best available price to move the product off the floor and secure some value for it 56. His evidence was that the irons in question were shop soiled and the set had one iron missing.
[128] Mr Craig-Follese did not produce evidence of the authority. He said that it was not provided in writing, but a standing oral authority from Mr Christie arising from discussions he had with Mr Christie.
[129] It is plausible that Mr Craig-Follese , as store manager, had some general authority to discount used or damaged stock, and I accept his evidence to that extent – though the parameters around which that arrangement operated are not clear even on Mr Craig-Follese’s evidence.
[130] However, not having called Mr Christie, and not having produced any documentary evidence of policy or limits on the store manager’s authority in contradiction to that of Mr Craig-Follese’s claim, I am not satisfied to the requisite standard that Mr Craig-Follese sold the set of Callaway irons to the female customer in breach of his authority or contractual obligations.
Sale of Callaway woods at a loss without authorisation (dismissal letter)
[131] Golf World allege that in about September 2020 Mr Craig-Follese made a number of sales of new Callaway woods to a male customer (Xx Xxxxxx 57) at a significantly discounted price (below cost) and that this constituted a loss to the business. Mr Flood produced sale invoices for these transactions58. I accept his evidence59, including that this discount below cost was uncovered by Mr Gollan when in the store during the final fortnight of Mr Craig-Follese’s employment.
[132] Mr Craig-Follese’s evidence that he had acted on the general authorisation from Mr Christie to transact product at a discounted price when in the interests of the business is an incomplete response to this allegation. It is not plausible why a discount would be offered if stock in question was new. The only error Mr Craig-Follese accepts in this regard is that he agrees the transaction occurred on a Friday, not a Sunday as he had previously indicated.
[133] Whilst I consider Mr Craig-Follese’s explanation unconvincing, it is Golf World’s onus to establish specific misconduct with respect to this transaction. Mr Flood’s evidence, including that the product was new and not soiled or damaged stock, though plausible (having regard to the sale invoices) is hearsay. The sale invoices refer to the sale as a “price match”. Not having called evidence from managers about ‘price match’ policy or on the general authorisation Mr Craig-Follese claims he had received from Mr Christie, I am unable to conclude to the requisite standard that the transaction constituted wrongdoing on Mr Craig-Follese’s part – though his evidence leaves me with considerable doubt as to the appropriateness of the discount given the male customer.
Failure to order and follow up a purchase where deposit had been made by a customer (dismissal letter)
[134] Golf World submit that Mr Craig-Follese had ordered golfing products for a female customer (Xx Xxxxxxx 60) in September 2020 for which the customer had paid a deposit, but then failed to follow up with the supplier to ascertain if the stock was available, and then failed to provide feedback to the customer explaining the store’s failure to meet the order for which she had paid a deposit.
[135] Mr Flood produced the sale invoice for this transaction 61 and I accept his evidence that the issue was reported by Mr Gollan when he was in the store during the final fortnight of Mr Craig-Follese employment.
[136] Mr Craig-Follese says that he followed-up to a limited extent but accepts 62 that he erred in not pursuing the matter further with the supplier or Xx Xxxxxxx once sent an email by the supplier on 14 September 2020. Whilst the order is not in Mr Craig-Follese name (it is in the name of another employee, Xx Xxxxxxxx 63), as store manager it was Mr Craig-Follese’s obligation to complete the order with the customer for which she had paid a deposit or otherwise accommodate her reasonable needs once a deposit had been paid.
[137] This was a failure on his part.
Missing banking
[138] I turn to one further preliminary matter concerning valid reason.
[139] Golf World’s evidence is that missing banking uncovered shortly prior to dismissal was a factor in the mind of the owners - “definitely the straw that broke the camel’s back” according to Mr Flood - that triggered the decision to dismiss Mr Craig-Follese. 64 No specific allegation of misconduct concerning the banking was levelled against Mr Craig-Follese either at the time of dismissal or in the course of these proceedings other than Mr Flood’s assertion that “Michael was present on the day the banking in question went missing”65 – a proposition hotly contested by Mr Craig-Follese (and in respect of which I consider his denial plausible given his evidence66).
[140] Whatever the merits of its other allegations of under-performance against Mr Craig-Follese, it is grossly unfair that Golf World has used these proceedings to infer wrongdoing by its store manager on a matter of cash handling but then fail to particularise an allegation let alone lead probative evidence to the requisite (Briginshaw) standard. Such an aspersion, if untrue (and there is not a shred of evidence in these proceedings to support any wrongdoing by Mr Craig-Follese concerning the management of cash) has potential to derail a person’s professional standing and career.
[141] No doubt if an employer believes monies or property to have gone missing in a business, that is a serious matter warranting investigation and accountability. However, if an employer seeks to allege that a specific employee has acted improperly concerning those matters, it has, in the interests of fairness, an obligation to make a specific allegation capable of being responded to and then produce evidence on which it relies. If, as in this case, the business is awaiting the completion of a police investigation it is grossly unfair to cast an aspersion during unfair dismissal proceedings and then lead no evidence or particularise specific wrongdoing.
[142] I deal later in this decision as to whether reliance on this issue as a “trigger point” for dismissal was procedurally unfair.
Conclusion on valid reason
[143] Mr Craig-Follese’s work was remote from head office and involved a high degree of trust and autonomy. Necessarily the working method and working hours of a remote (albeit relatively junior) store manager involved give and take.
[144] To fairly assess whether deficiencies in Mr Craig-Follese’s performance were a valid reason for dismissal his performance needs to be objectively assessed against the relevant contractual obligations as a whole and considered in the context of surrounding circumstances applicable at the time of relevant performance failures.
[145] Not all failures of performance and conduct alleged by Golf World have been made out. However a number of material failures of duty have been established, based on the evidence (including some concessions in the evidence of Mr Craig-Follese).
[146] Weighing in favour of these failures of duty being considered serious is:
• their contractual nature;
• that they involved matters in the ordinary course of work and not matters of an unusual or unexpected nature;
• the trust devolved to a remotely working store manager and the example required to be set by that manager;
• these were failures of duty over a number of months, not a singular failure; and
• some failures continued after informal discussions about performance with Mr Flood and other managers, and two formal written warnings.
[147] Weighing against the seriousness of the failures is:
• these failures did not represent the totality of work performed including competently performed supervision, management and sales undertaken in accordance with contractual obligations; and
• the failures were failures of judgement and compliance with operational policy but not failures involving dishonesty, malfeasance or deliberate damage to business interests.
[148] I do not accept Mr Craig-Follese’s submission that he was inadequately equipped or inducted in his work as store manager. I accept Mr Flood’s evidence 67 that some training (albeit pre-promotion) was given. A limited induction was provided and whilst many aspects of the role were learned on the job (including from Xx Xxxxxxx), and geographic distance made some of this difficult, support for the Adelaide store and Mr Craig-Follese was no different or lesser than other stores. Senior managers in the eastern states were available to Mr Craig-Follese, and they established effective relationships with him.
[149] Nor do I consider that Mr Craig-Follese was the victim of a ‘witch-hunt’ because he had complained about the withholding or intended withholding of commissions after the 2020 stocktake. Some of these performance issues arose before the stocktake, and were uncovered by it. There were legitimate concerns with aspects of his performance from mid-2020 that warranted discussion and improvement. The performance failures were damaging the business in some relevant respects.
[150] The failures of duty and errors of judgement clearly warranted active management attention. Whilst counsel for Mr Craig-Follese correctly note that such action could have taken the form of a performance improvement plan, it is not for the Commission to stand in the shoes of an employer and decide which option reasonably available to management could have or should have been exercised. 68 For whatever reason, the Adelaide store manager had underperformed since mid-year.
[151] I take into account that Mr Craig-Follese was a relatively young and inexperienced store manager. I also take into account that the standard of performance that can be reasonably expected of an employee is one of competence, not perfection. The mere fact of occasional operational or administrative error, inadvertence or mistake in the course of doing one’s job is not a valid reason for dismissal if the job is otherwise being competently performed and the employee’s conduct is not otherwise inimical to the contract of employment continuing.
[152] I conclude that whilst no individual error or performance failure singularly constituted a valid reason, considered overall and having regard to the trust and autonomy invested in remotely operating store managers, I am satisfied that the collective underperformance, objectively found, was a valid reason.
[153] I deal with matters relating to mitigation later in the decision, in the context of considering harshness.
[154] A valid reason weighs against a finding of an unfair dismissal. 69
Notification of reason for dismissal
[155] Notification of a valid reason for dismissal should be given to an employee protected from unfair dismissal before a decision is made to terminate their employment70 and in plain and clear terms.71
[156] The reason for dismissal advanced by Golf World in the dismissal letter was “ongoing concerns regarding your performance as Team Leader”. It observed that the two issues raised in the letter and “your 2 prior warnings have left the company completely lacking any confidence relating to your ability to perform the routine duties of your job”. 72
[157] To this extent, Mr Craig-Follese was notified of the reason for dismissal and of certain particulars of alleged underperformance.
[158] However, Golf World concealed one significant matter from Mr Craig-Follese. It provided no insight whatsoever into an issue that, Golf World accepts triggered the decision to dismiss – the missing banking. Not only was Mr Craig-Follese denied an opportunity to address that issue prior to dismissal, it was wholly concealed from him.
[159] Whilst the reason for dismissal (loss of trust and confidence) and related particulars were notified, the failure to notify a relevant and triggering particular weighs somewhat in favour of a finding of unfair dismissal.
Opportunity to respond
[160] An employee protected from unfair dismissal should be provided an opportunity to respond to a reason for dismissal relating to their conduct or capacity. An opportunity to respond should be provided before a decision is taken to terminate an employee’s employment.73
[161] The opportunity to respond is an element of procedural fairness but does not require formality and this consideration is to be applied in a common-sense way to ensure the employee is treated fairly.74 Where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, that is enough to satisfy this consideration.75
[162] The first warning came to Mr Craig-Follese as a surprise. I accept his evidence that Golf World had not flagged a formal warning on the administrative matters raised in the first warning. However, I accept the evidence of Mr Flood that some of the issues had been informally discussed with Mr Craig-Follese in advance of the warning and that further discussion of the issues occurred between Mr Craig-Follese and Mr Flood and other managers in the wake of the warning. Those discussions provided opportunities for Mr Craig-Follese to explain his position on the matters of concern.
[163] The second warning letter concerning the stocktake came shortly thereafter but had been flagged by Mr Flood in his email of 22 October 2020. In that sense, it could not have been a surprise to Mr Craig-Follese . That email, together with Mr Kittoli’s earlier email of 30 September 2020 identified alleged shortcomings. I accept that Mr Craig-Follese had an opportunity to explain his position to Mr Flood and other managers (including Mr Kittoli) about stock take issues in advance of and in the wake of the second warning letter. Indeed, Mr Craig-Follese himself took action to try to locate and explain the stock variances.
[164] However in other important and relevant respects Mr Craig-Follese was denied an opportunity to explain his position on matters relevant to the dismissal and the employer’s loss of trust and confidence in him.
[165] He was given no advance notice of the two alleged performance failures particularised in the dismissal letter.
[166] He was given no insight into the fact that the employer considered that missing banking in the Adelaide store triggered and in some fashion bore on its decision to dismiss, and not given any opportunity to address that issue (to the extent he knew of it).
[167] Further, he was given no notice that he would be called into a meeting on 14 November 2020 for the purposes of being dismissed nor notice of the discussions that had occurred over the previous week in his absence about the prospect of dismissal. The dismissal meeting was approached by Golf World as a mere formality in which the dismissal letter was handed over. Mr Flood acknowledged that Mr Craig-Follese was given no opportunity to respond at the dismissal meeting. 76
[168] Individually, and in combination, these were serious denials of procedural fairness notwithstanding the two prior warnings. What Mr Craig-Follese may have had to say about these three further issues, and about whether options other than dismissal should be taken, was potentially relevant – the very reason why procedural fairness matters when a job and a career is at stake.
[169] I reject the employer submission that the dismissal needed to be conducted without advance notice because Mr Craig-Follese was deliberately “dodging the area leader” 77 who covered for him during his personal leave. Mr Craig-Follese had a right to take personal leave, he produced medical certificates in support of his circumstances and he returned to work the day following his second certificate ceased to certify him unfit.
[170] Nor do I accept the employer submission that no advance notice or discussion occurred because “there was no guarantee he would be present at the store that day”. 78 It is fanciful to think that an employer needs a guarantee that an employee will not be absent in advance of an unnotified disciplinary meeting to afford them procedural fairness. In any event, once Mr Christie called Mr Craig-Follese into the meeting on 14 November 2020, he self-evidently knew that Mr Craig-Follese was present. He could have first discussed the issues with Mr Craig-Follese but chose not to alter the planned course decided two days earlier – dismissal. As Mr Flood acknowledged in his evidence, the dismissal was “predetermined” on 12 November 202079.
[171] These denials of procedural fairness weigh in favour of a finding of unfair dismissal.
Opportunity for support person
[172] Where an employee protected from unfair dismissal has requested a support person to assist in discussions relating to dismissal, an employer should not unreasonably refuse that person being present.
[173] It would have been reasonable for Mr Craig-Follese to have a support person, if he sought one, at the dismissal meeting. However, in view of the absence of advance notice, he had no opportunity to organise let alone communicate his position in this regard.
[174] However, as no request was made, Golf World did not unreasonably refuse Mr Craig- Craig-Follese a support person.
[175] This is a neutral consideration.
Warnings concerning performance
[176] The first and the second warning letters were performance warnings. Each was preceded by some discussion of matters of concern, though not with respect to all particulars raised. Each warning letter was couched in formal terms, and each specifically raised the prospect that “your employment will be terminated” should required improvement not materialise.
[177] The fact of these warnings, and my finding that they largely (though not entirely) related to objectively found performance failures and were accompanied by informal discussion of performance issues, weigh somewhat against a finding of unfair dismissal.
[178] However, their weight is somewhat diminished by the fact, as I have found, that there were a number of further matters of concern relied upon or which triggered the employer’s decision that were not brought to Mr Craig-Follese’s attention prior to dismissal.
Size of enterprise and human resource capability
[179] Although not a small business as defined by the FW Act, Golf World is a privately owned business of relatively small scale (about 20 employees).
[180] Whilst it has a dedicated Human Resources Manager based in Queensland, it nonetheless encounters the challenge of overseeing and managing staff and stores in multiple States.
[181] This is a neutral consideration.
Other matters
Harshness - Mitigation
[182] Mr Craig-Follese submits that his performance failures were not constant and only arose in the period when Mr Craig-Follese was coming to terms with the tragic death of a former workmate and store manager, Xx Xxxxxxx.
[183] There is some force in this submission. I accept Mr Craig-Follese’s evidence 80 that he was finding the process of adjustment difficult, upsetting and distracting. The objective evidence supports this proposition. News of Xx Xxxxxxx’x passing by suicide came to light in late July 2020, just three months after he had left the business. There is no evidence that Golf World had, prior to mid-2020, significant performance concerns with Mr Craig-Follese. Indeed the contrary; he had been promoted to the position of Team Leader the preceding year. The evidence is that the issues of concern generally arose between July 2020 and October 2020 – the very window following the death of Xx Xxxxxxx.
[184] I do not have the advantage of expert evidence on the impact of Xx Xxxxxxx’x suicide on Mr Craig-Follese’s state of mind or functionality. However, I have Mr Craig-Follese’s evidence. It is entirely plausible, based on this evidence, that Mr Craig-Follese as a relatively young store manager who had worked closely with the deceased, been trained by him and who by then occupied his former role, would experience some ups and downs in his work in the weeks and months that followed, as the reality of a workmate’s tragic passing dawned and as the workplace environment triggered reminders.
[185] I accept that Golf World offered support if it was sought, and that Mr Flood was genuine in acknowledging that impacts may be particularly felt by Mr Craig-Follese and one other staff member. However the employer’s evidence that by October 2020 these employees should have been able to cope as by then the tragic event had occurred “five months down the track” 81 (in fact it was three) is an opinion reflective of an old world (and dangerous) view of male stoicism and lacking an appreciation of what Mr Craig-Follese was going through.
[186] I conclude that the sense of upset, distraction and adjustment felt by Mr Craig-Follese over the death by suicide of a former colleague just a few months earlier contributed in part, though not excused, lapses in his performance and judgment in the period July 2020 to October 2020.
[187] Objectively considered, giving two final warnings and then dismissing Mr Craig-Follese in the space of six weeks and doing so in this very period of adjustment on the back of one poor stocktake result and a number of other operational errors weighs strongly in favour of a finding that the dismissal was harsh.
Conclusion
[188] In considering whether Mr Craig-Follese’s dismissal was “harsh, unjust or unreasonable” the Commission is required to consider each of the matters in section 387 of the FW Act to the extent relevant.82 Those matters must be considered as part of an overall assessment. Each assessment must be considered on its merits. That assessment is to be based on the ordinary meaning of the words, in their statutory context. That context includes the object stated in section 381(2) of the FW Act that:
“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
[189] In arriving at an overall assessment, the statutory considerations must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.83
[190] Unfair dismissal matters are multifactorial.84 I have found that there were performance deficiencies that constituted a valid reason though not with respect to all of the matters alleged by the employer. The waning of confidence was not entirely unreasonable. To its credit, Golf World provided particulars of its concerns. Yet there was a significant denial of procedural fairness despite two formal prior warnings. I have also found that a material issue in mitigation existed which in part correlated to the underperformance, and which was not properly taken into account by the employer. I have also found that an issue of substance that triggered the dismissal was concealed from Mr Craig-Follese and never particularised.
[191] Further, there was no realistic opportunity given to improve following the second warning given the compressed disciplinary time frame adopted by the employer. Due to his personal leave, Mr Craig-Follese worked barely a day after the 22 October 2020 warning before the axe of dismissal fell.
[192] This is not a matter where procedural deficiencies in implementing a dismissal are not significant nor is this a matter where serious misconduct has been established so as to outweigh procedural deficiencies. 85 This is a matter of a young store manager who had been promoted a year earlier, whose performance had slipped only in recent months, who had a somewhat tin ear to the counselling and warning he was given, who became overwhelmed by the six-week disciplinary process he faced and who was ultimately ambushed by the decision to dismiss.
[193] Golf World tried to act fairly but its judgement in the final analysis was rash. Though not unreasonable and unjust (in the sense that there were valid reasons and prior warnings), when considered objectively Mr Craig-Follese’s dismissal was harsh.
Remedy
[194] Having found Mr Craig-Follese’s dismissal harsh, I now turn to remedy.
[195] In determining remedy, I am required to apply the provisions of Division 4 of Part 3-2 of the FW Act. Section 390 provides:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The Commission may make the order only if the person has made an application under section 394.
(3) The Commission must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[196] In this matter, the requirements of subsections (1) and (2) have been met.
[197] A decision to order a remedy is discretionary. 86 Subsections (1) and (2) provide that the Commission “may” make an order. The FW Act does not require the Commission to do so.
[198] Having regard to my findings, and in particular the conclusion that Mr Craig-Follese was unfairly dismissed, I am satisfied that I should exercise discretion in favour of granting a remedy.
[199] The only remedies required to be considered are reinstatement under section 391 of the FW Act or compensation under section 392. I am required by the provisions of section 390(3) to not order compensation unless I am “satisfied that reinstatement is inappropriate”. 87
[200] Mr Craig-Follese is not seeking reinstatement.
[201] I conclude that reinstatement is inappropriate.
[202] There is no basis upon which Mr Craig-Follese and Golf World could restore an effective employment relationship. It would be unfair on both parties to make such an order. The necessary element of trust and confidence, especially in the context of a relatively small private business based on the east coast of Australia with remotely operating stores in customer-facing roles, does not exist and could not be reasonably restored.
[203] I turn to the issue of compensation. Section 392 of the FW Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high-income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[204] I now consider each of the criteria in section 392 of the FW Act.
Viability: section 392(2)(a)
[205] Golf World is a private business of relatively small scale operating in a number of States. There is no evidence before me that a compensation order would affect business viability. The evidence is that xxx Xxxxxxxx xxxxx xxxxxxxx xx xxxxxxxxxxxxx xxxxxx xxx XXXXX xxx xxxxxxxx. In the quantum of the order I will make, I do not conclude that an adverse effect on business viability exists.
Length of service: section (section 392(2)(b))
[206] Mr Craig-Follese worked for Golf World for four years and one month, until dismissed. It was only in his final year that he worked as Team Leader.
Remuneration that would have been received: section 392(2)(c)
[207] There is a necessary element of informed projection inherent in considering this factor. That projection is informed by the nature of the work and the circumstances facing the business and Mr Craig-Follese at the time of dismissal, including his employment context.
[208] Mr Craig-Follese was a full time employee and, as such, had a reasonable expectation of ongoing employment all things being equal. He enjoyed working in the industry, secured a promotion into management one year earlier and showed commitment to the job that wavered only in his final months when impacted by the death of a former workmate, and an intensive internal disciplinary process.
[209] The Adelaide store xxx xxxxxxxx xx xxxxxxxxxxxxx. 88
[210] Things were not however equal. Mr Craig-Follese had received two formal performance warnings, both in October 2020. Each identified areas of necessary improvement.
[211] Having been issued these warnings, a reasonable period of time (not including periods of leave or public holidays) would have been required to allow Mr Craig-Follese to improve his overall performance.
[212] A reasonable period would have also required an assessment of whether underlying issues that may have been affecting performance (such as adjustment to the death of Xx Xxxxxxx) could be remediated including via formal counselling or mentorship.
[213] If performance had remained below par, some time would have also been required to implement a procedurally fair dismissal should termination have remained an option.
[214] I do not accept Mr Craig-Follese’s submission that he would have necessarily been employed for at least six months until the next stocktake, in order to remediate matters in the second warning letter. This submission takes no account of non-stocktake matters that were the subject of legitimate concern and warning. Further, this submission fails to recognise that the second warning concerned not simply the stocktake, but issues of day-to-day stock management. Given the performance concerns, it cannot be said that Mr Craig-Follese would not have been fairly dismissed inside a six-month period.
[215] Considered overall, I conclude that Mr Craig-Follese would have had a reasonable expectation of approximately three months of further employment (until 12 February 2021, being thirteen weeks) upon which a compensation order should be based.
[216] In this period Mr Craig-Follese would have earned base remuneration and commissions on sales. He would have been eligible for a bonus should contractual criteria have been met.
Income likely to be earned: section 392(2)(f)
[217] Mr Craig-Follese earned income in his new role from 14 December 2020. It was at a slightly higher base rate ($50,388pa v $50,000pa) but provided no commissions or bonuses. It was also a step down in his career trajectory – rather than being a Team Leader he reported to a Team Leader. It also was subject to a six month probationary period and in that respect, was somewhat less secure (performance issues aside) than his ongoing management contract with Golf World.
[218] I am satisfied that Mr Craig-Follese was likely to remain and earn income in this new role until at least the date of the expiry of the notional three months I have determined for compensation purposes.
[219] The evidence before me is that in two fortnightly pay periods in September / October 2020 Mr Craig-Follese received commissions of $1,010.18 and $1,181.44 respectively. There is no evidence that sales in these periods were atypical. These periods were proximate to the dismissal. For the purpose of the compensation order, I will take the average of these two amounts, and assess that commissions likely to have been earned during the compensation period were in the sum of $1,095.81 per fortnight or $547.91 per week.
[220] I will not take into account potential spivs or bonuses that could have been received in this period as these were sums of a discretionary nature or contingent on particular forms of profitability 89 in respect of which no specific evidence has been led.
[221] Mr Craig-Follese earned a base salary of $961.54 per week (gross) as store manager. 90
[222] The difference in gross weekly income that would have been earned at Golf World compared to income earned in the new job is calculated as follows:
• earnings: minus $7.46 per week 91;
• commissions: plus $547.91 per week;
• total: $540.45 per week.
Other matters: section 392(2)(g)
[223] There is one other matter to be taken into consideration.
[224] I will deduct from the compensation order the payment made by Golf World in lieu of notice (three weeks) but not the sum deducted by Golf World that it says was owed for the stocktake shortfall. If such a sum is or was owed, that is a contractual matter between Mr Craig-Follese and Golf World. Notice of dismissal, as required by the FW Act’s National Employment Standards, makes allowance for no such discount. Having no jurisdiction to determine if such a sum were due, payable or lawfully deducted, and not having done so, I do not take into account the deduction made (which was the equivalent of approximately two weeks pay).
[225] Hence, as Mr Craig-Follese was entitled to three weeks notice but in fact, received only the equivalent of approximately one week, I will include the remaining two weeks in the compensation sum.
Misconduct: section 392(3)
[226] Mr Craig-Follese’s dismissal was based on performance failures in (to use the words of the dismissal letter) “the routine duties of your job”. I have found no sufficient misconduct on his part that warrants a discounting of the compensation order. I make no deduction on this account.
Shock, Distress: section 392(4)
[227] Compensation allowable by the FW Act does not include a component for hurt feelings. The compensation order will make no provision for such matters.
Compensation cap: section 392(5)
[228] The amount of compensation I will order does not exceed the six-month compensation cap.
Conclusion on compensation
[229] An order by way of remedy is an integral part of determining an unfair dismissal application. As with the decision on merit (unfairness) it needs to reflect the statutory principle of a ‘fair go all round’.
[230] A decision to order a remedy is discretionary. The quantum of any compensation order must take into account the circumstances set out in section 392(2) and apply those considerations as a whole and consistent with the ‘fair go all round’ principle.
[231] Whilst an orderly process of quantification is to be conducted in accordance with established authority, 92 the quantum (if any) ordered ultimately needs to be a sum that reflects the overall exercise of discretionary considerations.
[232] Having regard to section 392 factors and overall discretionary considerations I conclude that Mr Craig-Follese should be compensated as follows:
• an additional two weeks in lieu of notice ($3,018.90 93);
• payment of one week ($1,509.45 94) for the period between the expiry of the three week notice period (5 December 2020) and the commencement of alternate employment (14 December 2020); and
• the difference between monies that would have been earned and monies earned over the nine week period 14 December 2020 to 12 February 2021 ($4,864.05 95).
[233] This amounts to a gross compensation sum of $9,392.40.
[234] I will also order that superannuation (9.5%) be paid on this amount less superannuation received in the new employment (noting that superannuation in the new role is paid on the base rate whereas superannuation in the projected four month period would have been paid on the base rate plus commissions 96). This amounts to a sum of $899.36.97
[235] I consider this sum to be consistent with the application of section 392 considerations and just having regard to discretionary considerations.
Conclusion
[236] I conclude that Michael Craig-Follese, a person protected from unfair dismissal, was dismissed on 14 November 2020 by Gold World (Qld) Pty Ltd and that his dismissal was harsh.
[237] I conclude that reinstatement is inappropriate.
[238] I conclude that an order of compensation is appropriate.
[239] I conclude that the amount of compensation payable under sections 390 and 392 of the FW Act be $9,392.40 (to be taxed as required by law) plus an amount of $899.36 to be paid into the superannuation fund applicable to Mr Craig-Follese’s former employment.
[240] I will order these sums be paid within fourteen (14) days of the date of this Order.
[241] In conjunction with the publication of these reasons, I issue an Order 98 in these terms and an Order concerning the unredacted version of this decision.
DEPUTY PRESIDENT
Appearances:
Mr G Krishnan, with permission, for Mr Craig-Follese
Mr D Flood, on behalf of Golf World (QLD) Pty Ltd
Hearing details:
2021
Adelaide (by video conference)
18 February
Printed by authority of the Commonwealth Government Printer
<PR727276>
1 Decision by email 29 January 2021
2 A1 Statement Michael Craig-Follese 14 January 2021; A2 Statement Michael Craig-Follese (undated)
3 R1 Statement of Damon Flood 28 January 2021
4 (1959) 101 CLR 298
5 Tamayo v Alsco Linen Service Pty Ltd (1997) Print P1859 as cited in Hyde v Serco Australia Pty Limited[2018] FWCFB 3989 at [102]
6 Redacted in published decision
7 DF1
8 MCF1 and DF2
9 Anonymised in published decision
10 Contract MFF1 Schedule A page 4
11 Contract MFF1 Schedule A pages 3 and 4
12 R1 Annexure 4
13 Ibid Email 1 September 2020 7.42pm
14 MCF2 Email 10.37am
15 Ibid Email 6.35pm
16 MCF1 Schedule B
17 MCF2 Email 6.35pm
18 MCF4
19 MCF5
20 MCF6
21 Redactions in published decision
22 MCF7
23 MCF5
24 MCF7
25 A1 paragraph 47
26 Attachment to F3 Employer Response
27 MC8
28 MCF8
29 Anonymised in published decision
30 A4
31 Sydney Trains v Hilder[2020] FWCFB 1373 at [26]
32 Small Business Fair Dismissal Code: section 388(2) FW Act
33 see Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 and Rode v Burwood Mitsubishi AIRCFB Print R4471
34 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468
35 Sydney Trains v Hilder[2020] FWCFB 1373 at [26] principle (6)
36 MCF8
37 Evidence of Mr Flood audio 3:47 pm; R1 Statement of Mr Flood paragraph 57
38 Briginshaw v Briginshaw (1938) 60 CLR 336
39 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33] – [34]
40 R1 paragraph 27
41 Briginshaw v Briginshaw (1938) 60 CLR 336
42 Anonymised in published decision
43 R1 annexure 5
44 A2 paragraph 13
45 Anonymised in published decision
46 R3
47 R1 paragraph 34
48 Redacted in published decision
49 MCF2
50 MCF6
51 MCF2 page 2
52 Anonymised in published decision
53 A3
54 Mr Craig-Follese audio 11:29 am and 11:35 am
55 R1 paragraph 20
56 A2 paragraph 23
57 Anonymised in published decision
58 R1 annexure 8
59 R1 paragraph 52
60 Anonymised in published decision
61 R1 annexure 9
62 Mr Craig-Follese audio 12:16pm
63 Anonymised in published decision
64 Mr Flood audio 3:47 pm
65 R1 paragraph 57
66 A2 paragraph 27; Mr Craig-Follese audio 11:32 am
67 DF3
68 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
69 Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 7498 at 20
70 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [73]
71 Previsic v Australian Quarantine Inspection Services Print Q 3730 (AIRC, 6 October 1998)
72 MCF8
73 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 at [75]
74 RMIT v Asher (2010) 194 IR 1 at 14-15
75 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7
76 Mr Flood audio at 3:25 pm
77 Mr Flood audio at 3:48 pm
78 F3 3.2 paragraph 12(b)
79 Mr Flood audio at 3:35 pm and 3:37 pm
80 Mr Craig-Follese audio 11:19 am and 11:54 am
81 Mr Flood audio 1:56 pm
82 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR 915674 at [69] (AIRC, 21 March 2002)
83 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at [36]
84 Jones v Brite Services[2013] FWC 4280 at [24]
85 Tham v Hertz Australia Pty Limited[2018] FWCFB 5972 at [46]
86 Nguyen v Vietnamese Community in Australia trading as Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9]
87 Section 390(3)(a) FW Act
88 Anonymised in the published decision
89 MF1 schedule B clause 8
90 $50,000pa divided by 52 weeks
91 Being the weekly difference between $50,000pa and $50,388pa
92 Ellawala v Australian Postal Corporation [2000] AIRC 1151, Print S5109; Sprigg v Paul’s Licensed Festival Supermarket [1998] AIRC 989, Print R0235
93 $961.54 base salary per week x 2 weeks plus $547.91commissions per week x 2 weeks = $3,018.90
94 $961.54 base salary per week plus $547.91commissions per week = $1,509.45
95 $540.45 per week x 9 weeks = $4,864.05
96 MF1 schedule B clause 9
97 9.5% of 4,528.35 (3 weeks) = $430.19; plus 9.5% of $547.91 commissions per week x 9 weeks = $468.46; being $430.19 plus $468.46 = $899.36
98 PR727277
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