Mr Antony Robert Course v Wavin Technologies Pty Ltd
[2022] FWC 3100
•24 NOVEMBER 2022
| [2022] FWC 3100 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Antony Robert Course
v
Wavin Technologies Pty Ltd
(U2022/3632)
| DEPUTY PRESIDENT O'NEILL | MELBOURNE, 24 NOVEMBER 2022 |
Application for an unfair dismissal remedy
This decision concerns an application for an unfair dismissal remedy made by Mr Antony Course against Wavin Technologies Pty Ltd (Wavin). Mr Course’s employment was terminated effective 22 March 2022. The Applicant contends, and Wavin denies, that the dismissal was harsh, unjust, and unreasonable.
After hearing from the parties, I determined that conducting a hearing was the most effective and efficient way to deal with the matter and I granted permission for both parties to be legally represented. The Applicant mostly represented himself but was also represented for part of the hearing by Mr Rohan Millar of counsel.
At the hearing on 28 September 2022, the Applicant gave evidence in support of his case, and he also relied upon a witness statement of Mr Robert Dell who was not required for cross examination. Mr Friedman (Chairman), Mr Rosenberg (Chief Operating Officer), and Ms Richardson (an employee of an associated entity) gave evidence for the Respondent. The former CEO, Ms Voss, and Ms Casey (adviser) also provided witness statements but were not required for cross-examination. The witness statement of Mr To was not relied upon by the Respondent.
Background and factual findings
In an earlier decision,[1] I dismissed the Respondent’s jurisdictional objection that the Applicant was not dismissed within the meaning of s.386 of the Fair Work Act 2009 (Cth) (Act) as he was an independent contractor and was not an employee.
I do not repeat all the findings in that decision but have taken them into consideration. In that decision I determined that the parties entered into a contract of employment on 1 December 2020, the key terms of which were proposed by the Applicant. Under the contract Mr Course would be remunerated by way of a base salary and share options. However, this remuneration was only “payable at 50% of cash received from revenue bought in or capital raised by [the applicant].”[2]
Wavin was initially set up as a business to sell Covid tracking services to businesses, but when the Victorian Government mandated the use of QR codes, Wavin had to ‘pivot’ and build a new business from scratch.[3]
The Applicant’s role was initially to focus on sales using his networks and experience to generate clients and investors to the start-up business. Over the course of the relationship, when the original business plan was largely derailed, the Applicant undertook other duties including identifying other products to sell, support in capital raising, developing new contracts, project managing clients and tasks such as printing signs and gluing sensors to signs.[4] Mr Course’s evidence during the hearing was that his later role also typically involved relationship management with external clients.
Neither Mr Course nor anyone else was successful in generating revenue for most of 2021.[5] Over the approximately 15 months Mr Course was engaged at Wavin he concluded two sales. The first was a contract signed on 13 July 2021 for a product trial campaign for XXXX Dry Beer for $30,000. Mr Course was paid $10,000 commission in two instalments on 26 July 2021 and 8 November 2021. The second contract was a partnership agreement with Five Good Friends worth $60 per month entered on 27 January 2022.[6] Other than reimbursement of minor expenses, these were the only payments made to the Applicant during the 15 months before he was dismissed on 22 March 2022.
Mr Course did make progress to secure other business, including negotiating several pilots and various preliminary agreements. The Applicant considered that these developments placed Wavin in a strong position and he expected to soon start earning commission and bonuses under his employment agreement.[7] However, from Wavin’s perspective, Mr Course had only closed two sales, other clients remained mere prospects and the only other agreements that were entered were principally non-disclosure agreements, a prelude to further negotiations. Whilst this work would have generated significant revenue if sales contracts were entered, at the time of his dismissal no other sales had been concluded and no other revenue had been brought into the business by Mr Course.
On 8 October 2021, the Applicant was verbally abusive towards Mr Friedman during a Zoom meeting.[8] He demanded additional custom software development for a client and threatened to ‘walk away’ if this wasn’t agreed. After the meeting Mr Friedman sent Mr Course a text message which included:
“I am very disappointed in your behaviour today and something significant needs to change in our working relationship if this is to continue.
…
We’re $100K in the hole on the sales campaign and I’m working full time on top of my other full-time job to help you close.
Today, I simply requested that you give me a break so we can look at it next week, after I’ve just told you I’ve done an all-nighter.
My request was not unreasonable.
I can only work with people that show due respect. Making a threat to walk away if I don’t do something your way is not acceptable.”[9]
Mr Course apologised in a reply text message. In the hearing, Mr Course described this exchange as an example of where Mr Friedman apologised to him as well, although no such apology from Mr Friedman is clear on its face.
On 11 October 2021, Mr Friedman sent the Applicant a detailed email ahead of a scheduled discussion outlining his failing sales performance and responding to demands that he be given equity in the business.[10] It included that $100,000 had been spent in a sales campaign that had resulted in $15,000 revenue being received, that the sales cycle has been extremely long, sales conversions were not happening, and Mr Friedman put forward changes to turn around the situation. It included a proposal for equity for all external referral partners (which was Wavin’s view of its relationship with the Applicant at the time) noting that Mr Course had “stated that you’re less interested in commissions and more focussed on earning equity.”
On 22 October 2021, the Applicant said that the proposal wasn’t fair and wasn’t what had been agreed and deferred further discussion until November to work through current opportunities.[11]
On 17 December 2021, Mr Friedman and Mr Course met at a Grill’d outlet in Richmond. There are quite differing accounts of the meeting. Mr Friedman’s evidence is that when discussing the lack of sales performance the conversation became tense and Mr Course was visibly shaking. He said that Mr Course boasted that he was suing a former client and demanded 15% of the company’s equity, which Mr Friedman refused. Mr Course then demanded money and proposed an advance of $20,000 from an upcoming R&D grant which had just been lodged. Mr Friedman’s evidence is that he reluctantly agreed on the basis that it would only be paid when the grant was received, and as an advance on future commissions.[12] He said he agreed as Mr Course was desperate for money from not closing sales and he could see that he was trying. Mr Course’s evidence at the hearing was that he couldn’t recall either his performance or his conduct being raised and that it was a very positive meeting as evidenced by Mr Friedman agreeing to pay him $20,000. I prefer Mr Friedman’s account of the meeting for the reasons set out later in this decision.
Mr Friedman’s evidence is that in early 2022, Mr Course became increasingly frustrated and aggressive, and made repeated demands for payment of the $20,000. On numerous occasions Mr Friedman told him that the grant had not been received by Wavin.[13]
On 18 January 2022, Mr Course was again abusive towards Mr Friedman in a telephone call. Mr Course’s account is that he himself was very distressed after this call because of personal attacks on him, and that it was “certainly both ways.”
On 1 March 2022, Mr Course met with Mr Friedman, Mr Rosenberg and Ms Casey at Docklands. The discussion canvassed that despite a lot of costs being incurred and demonstrations generated, there was little revenue.[14] Mr Friedman and Mr Rosenberg questioned the Applicant on why this was happening and tried to come up with ways to support him so he could make more sales. According to them, Mr Course was extremely defensive, angry and aggressive when confronted with his failure to achieve sales and demanded that he be paid a retainer of $8,500 per month and if he wasn’t he would “walk”. Mr Rosenberg’s evidence was that he was worried about the Applicant and told him that if he was financially dependent on Wavin then he needed to find another source of income because Wavin couldn’t pay him a retainer.[15] In cross-examination Mr Course acknowledged there were some “heated moments” but denied that he was aggressive and stormed out. He did not accept that he was shouting. He said that he “certainly was raising concerns about money not being paid, being the $20k from December”, and that he made the point very clear that without being paid he was not prepared to work on things that had nothing to do with business development that could generate income. He did not accept that it was made known to him that his behaviour was wrong and it was discouraged.
On 4 March 2022, Mr Course sent Mr Friedman and Mr Rosenberg an email in which he told them “don’t fuck it up” in reference to an unpaid pilot at Mitre 10.[16] In a later telephone call, the Applicant accused Mr Friedman of lying to him and not honouring the promise to pay his commission in advance. Mr Friedman explained that the grant had not been received and warned the Applicant that if he continued to behave in this unprofessional manner, they were no longer going to be able to work with him. Ms Richardson overheard this call, which was on speaker. Her evidence corroborates Mr Friedman’s description of the call and says that the call escalated to the point where Mr Course was “screaming down the phone” and ended when he hung up on Mr Friedman.[17] Her evidence is that she has never witnessed anything like that before.
The Applicant acknowledges sending the email but disagrees with Mr Friedman and Ms Richardson’s account of the telephone call. In cross examination he did not accept that he was told that they would no longer work with him if he continued behaving that way. He said it was a fabrication that he accused Mr Friedman of lying, that he was not screaming down the phone and that he hung up because his wife came into the room and “she was shocked and visibly upset at hearing Adam’s aggressive tone, lack of respect and lack of acknowledgement of the time, investment and sacrifice made by Course.”[18] In cross examination he couldn’t recall whether Mr Friedman had sworn at him, but said that he was very angry.
On 5 March 2022, Mr Course demanded evidence regarding the status of the R&D grant and again claimed that Mr Friedman was lying to him. Mr Friedman forwarded him an email illustrating the current status of the grant.[19] Later that day Mr Course apologised for his offensive comments in the email, and that he had “spent over 12 months working on this and only get rewarded based on success.”[20]
On 17 March 2022, Mr Course sent Mr Friedman another email asserting that the Mitre 10 trial would fail without his active involvement and requiring confirmation within 48 hours that he would be paid the $20,000 and a retainer of $8,500 per month.[21]
The next day, on 18 March, Mr Course sent Mr Friedman text messages requesting to see company accounts and a written proposal “around the value of my time and security for debt and equity” for “time and money owing for monthly payments not paid eg 4 months at 8.5k per month.”[22]
Mr Friedman emailed him asking him to confirm his advice that he was going to close a minimum of two potential sales in the pipeline by June 30. A long email back and forth exchange took place, that canvassed their respective positions on many of the issues between them, including the retainer, commission, equity and so on. It included the payment of the $20,000, with Mr Course stating that he had made it “perfectly clear that he was no longer willing to work without a retainer”, that the payment of the $20,000 was not contingent on the grant being received, and that Mr Friedman was well aware that he was no longer willing to support Wavin without the payment of the $20,000.[23]
The next day Mr Course apologised by email, stating that upon reflection he had taken Mr Friedman’s email about closing two sales in the pipeline the wrong way.[24]
Around this point Mr Rosenberg and Mr Friedman decided that they needed to talk to Mr Course because of the escalating bad conduct and the increasing demands and threats to walk away from Wavin if he was not paid certain amounts by certain dates.[25]
Around 3pm on 22 March 2022, the Applicant was asked to attend a meeting at 4pm with Mr Friedman and Mr Rosenberg. He said he was unavailable as he was having a haircut, and when asked what the agenda was, was told that it was “to discuss your emails”. The Applicant said that he was going to discuss it with his lawyer and would like him to be in attendance.[26]
Around 9.33pm that evening, Mr Course’s engagement was terminated by the Respondent by an email that read:
“Dear Tony
As you’ve refused to accept my request for a phone conversation this evening, I have no choice but to communicate with you via email.
Your conduct over the past few days has left the business with serious concerns about your professionalism and the risks associated with your behaviour.
To reiterate, you approached Wavin to work with the business as an external sales person on a commission-only basis.
Your performance has been documented in emails, you have made two sales in the 18 month period that you’ve worked with the business.
Paul and I have discussed the matter and have decided that your involvement with Wavin will cease effective immediately.
You have an obligation to honour the terms of Wavin’s NDA.
This means you will not make any disparaging comments about the business and will honour its confidentiality.
As you are an independent contractor, Wavin owes no benefits or entitlements to you.
We have identified $5000 of commissions from XXXX and $450 of travel expenses outstanding which will be paid to you.
To be clear, you will not attend the film shoot tomorrow at Mitre 10 Diamond Valley and you no longer represent Wavin in any capacity.
As a gesture of good faith, Wavin will agree to pay a 20% introducer’s fee to you should we close any of the parties you’ve introduced to date. These have been captured in the company’s CRM and in email.
This will be communicated to you as a monthly statement to your bigpond email address.
The business is prepared to do this in full and final settlement of any future claims.
All future correspondence regarding Wavin must be in writing to this email address.
Regards,
Adam Friedman.”[27]
The Applicant did not read the email that evening and arrived for a planned meeting early the next morning with Mr Rosenberg at Diamond Valley Mitre 10. He met Mr Rosenberg in the carpark who told him about the email sent to him terminating the relationship. The Applicant asked to read it and discuss it in a nearby coffee shop. Mr Rosenberg’s evidence is that Mr Course wouldn’t leave, that he interfered with the shoot and the client and held Mr Rosenberg’s car door open stopping him from leaving. He claimed Mr Friedman was hiding the grant money from him and Mr Rosenberg told him it had not been received. The Applicant made threats that he was going to “create trouble for the business”, “take his leads with him”, and “make sure none of these clients deal with [us]” and said, “you don’t want to mess with me”, “you won’t close anything without me.”[28]
Mr Friedman and Mr Rosenberg decided they would have to get lawyers involved.[29] Both parties provided various pieces of correspondence sent after the termination of Mr Course’s employment. Neither the incident in the car park with Mr Rosenberg nor the post-dismissal correspondence is relevant to whether the dismissal was unfair. In my view, its only potential relevance is in considering any potential remedy, as it demonstrates that the relationship between the parties has deteriorated further since the dismissal with various claims and counter-claims.
Witness observations - credibility
In determining what occurred between the parties in the findings above, I have had to assess and weigh up the evidence of the different witnesses. Much but not all of the differences in their evidence are about the characterisation of discussions and communication between them rather than what actually happened. However, where there are differing accounts of discussions between the parties, I have generally preferred the evidence of Mr Friedman, Mr Rosenberg and Ms Richardson. I considered each of them to be truthful and credible witnesses who gave measured and consistent answers to Mr Course’s cross-examination. I find this notwithstanding that Ms Richardson is in a personal relationship with Mr Friedman, and that Mr Friedman and Mr Rosenberg are business partners.
In the main, I also consider that Mr Course’s evidence was truthful. However, he was at times defensive and argumentative. He was reluctant to make any concessions about his behaviour, although he denied little of it. On the one hand, he said that he was entitled to be “cross and frustrated” yet did not admit to shouting or storming out of meetings and contended that his behaviour never “crossed the line”. Further, the tone of some of his email and text message communications to his employer was rude, unprofessional, and inappropriate and observing his demeanour during the hearing I can readily accept that he is prone to bursts of anger and found his demeanour to be consistent with the tone of his written communications. Further, his denial in cross-examination that he engaged in a persistent pattern of argumentative behaviour is also somewhat inconsistent with his claim (with little evidence) that such behaviour went “both ways”.
Initial matters to be considered
Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application. I have previously found that Mr Course was an employee and there is no dispute between the parties that Mr Course was a person protected from unfair dismissal, that this was not a genuine redundancy and the application was made within the period required.
Small Business Fair Dismissal Code
The Respondent claims, and the Applicant disputes, that the dismissal was consistent with the Small Business Fair Dismissal Code.
Whilst the Applicant initially disputed that the Respondent was a small business, after hearing the evidence, Mr Course did not press this contention. I am satisfied on the evidence that the Respondent was a small business employer as defined in s.23 of the Act at the relevant time.
The Respondent says that Mr Course was dismissed on the dual grounds of performance and misconduct. It does not claim that the dismissal was for serious misconduct, but relies on the “Other Dismissal” procedure in the Code which provides:
“Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
Compliance with the Code relevantly requires that the employer gave the employee a reason why he or she is at risk of being dismissed, which must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned that he or she risks being dismissed if there is no improvement, and the employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response.
I am not satisfied that there was a valid reason nor warning in relation to the Applicant’s performance or capacity. Whilst there were many discussions about the lack of sales conversions, and many discussions about the need for this to change, I do not consider there was a sufficiently clear warning to Mr Course that unless his performance improved, he would be dismissed on this basis and that the discussions were about the business, but not directed to his performance.
However, for the reasons set out below I am satisfied that there was a valid reason in relation to the Applicant’s conduct.
Throughout the Applicant’s engagement, Wavin’s view was that Mr Course was an independent contractor who approached Wavin offering to work with them on a commission-only basis. Mr Course was a highly experienced professional with considerable experience in technology start-up businesses, and he proposed the terms of his engagement. Mr Course stood to gain significant rewards under the contract if the targets were realised, but they were not. Over time, Mr Course became increasingly frustrated at the lack of income from his efforts and felt that he was doing an unreasonable share of work and was distracted by having to do work other than business development that would generate rewards. He felt he was entitled to raise his concerns and said that he was no longer prepared to work that way unless he was paid the $20,000 and Wavin agreed to pay him a monthly retainer. Wavin agreed to pay the $20,000 as advance commission when the R&D grant was received and did not agree to paying a retainer. Mr Course’s frustration built and his relationship with Mr Friedman and Mr Rosenberg deteriorated.
While Mr Course essentially acknowledges much of the alleged conduct, he denies that he engaged in a persistent pattern of argumentative behaviour. He conceded that he was frustrated at what he believed was the company not delivering on its promise to make payments to him but said he “never overstepped the mark.” He said there were many “vigorous” discussions between him and Mr Friedman and they would both hang up. He admitted that he shouted during the meeting on 8 October 2021, but said that they both did, and they were just “normal business things” and that “we often ended up with better outcomes because we were argumentative and argued things through, as senior people.” His evidence was that he often apologises for things, that it’s his nature to do so, and that Mr Friedman on other occasions apologised to him too. As evidence of Mr Friedman’s equivalent behaviour, Mr Course relied on a letter that he sent after he was dismissed where he referred to being ‘verbally abused’ by Mr Friedman every few days.[30] Neither the letter nor his oral evidence identified specific instances of Mr Friedman behaving in the same rude, offensive, and unprofessional way. Mr Friedman did not accept that he behaved in a similar fashion. His evidence was that Mr Course was continually belligerent and abusive and if things didn’t go his way, would have a tantrum. He pointed to there being a big difference between robust discussions and making personal attacks on people, swearing, yelling, hanging up and basically behaving in a very childish and aggressive manner. Mr Rosenberg also said that Mr Friedman was not abusive towards the Applicant, and that it was not his nature to do so. Mr Course discounts Mr Rosenberg’s view on the basis that he was only witness to a small number of interactions between the men.
I do not accept Mr Course’s characterisation of his conduct and I do not find that he and Mr Friedman were “as bad as each other”. Even if it were, that does not necessarily excuse Mr Course’s behaviour towards his employer. Whilst after the engagement ended, I found that there was a relationship of employment in place, Mr Course did not always act in an employee-like way.
I am satisfied that Mr Course’s conduct set out above, namely inappropriate, rude, and offensive communication with Mr Friedman including the escalating and aggressive demands for payment and a retainer was a valid reason for his dismissal. I find that Mr Course was given the reason and warned that he risked being dismissed if there was no improvement. I do not accept Mr Course’s claim that his behaviour was never a “big issue” and that he was never warned that if it continued, he would be terminated. The text message from Mr Friedman to him on 8 October 2021 unequivocally stated that his behaviour in being verbally abusive to Mr Friedman was unacceptable and needed to stop if the working relationship was to continue. Despite this warning, there were further instances of unacceptable behaviour by Mr Course on 18 January, 1 March and 4 March 2022 as set out earlier in this decision.
Mr Course was warned again on 4 March 2022 that Wavin would end the relationship if he continued to behave in an unprofessional manner. Yet Mr Course engaged in further inappropriate communication on 5 March and his inappropriate repeated demands for payment of the retainer (which had not been agreed), and the $20,000 (which had not been received). Mr Course claimed in the hearing that he was justified in disbelieving that the R&D grant had not been paid, because he said that Ms Richardson gave evidence to the contrary. However, Ms Richardson’s evidence did not identify when the payment of the grant was received. She simply made the obvious point that bank records would prove when the money was received and that Mr Course was being paranoid in accusing the company of not paying him.
I also do not accept the Applicant’s submission that the Respondent’s alleged lack of timely action about the various incidents of inappropriate conduct constituted condonation and waiver of any right to dismiss him based on it. [31] Wavin did not condone the Applicant’s behaviour and warned him about it.
I am satisfied that Mr Course was given a reasonable opportunity to respond to the warning and a reasonable chance to rectify it, by simply acting professionally after the first warning on 8 October, or the second on 4 March.
In relation to the Procedural Matters of the Code, it is the case that Mr Course requested to have another person present, a friend who happened to be a lawyer. However, at the time he was asked to attend the meeting Mr Course simply said that he wanted his lawyer present with no indication it was a friend not acting in a professional capacity. Whilst at the time, Wavin did not consider the Applicant to be an employee, by not permitting Mr Course to have a lawyer present in these circumstances, did not result in Wavin failing to comply with the Code.
I am satisfied that the dismissal was consistent with the Small Business Fair Dismissal Code. The application must be dismissed.
If I had come to a different conclusion about Wavin’s compliance with the Code, I would nonetheless have found that the dismissal was not unfair, taking into account the matters specified in section 387(a) to (h) of the Act.
For the reasons set out above, I am satisfied there was a valid reason for Mr Course’s dismissal, that he was notified of the reason and had an opportunity to respond by changing his behaviour. The considerations under ss.387(a), (b) and (c) weigh against a finding of unfairness.
As to s.387(d), when the Applicant was asked to attend a meeting on 22 March 2022, to discuss his emails, he responded saying that he wanted his lawyer to be in attendance. A few hours later his employment was terminated by email. I find that by not rescheduling the discussion, and proceeding to terminate the engagement of Mr Course, there was an unreasonable refusal to allow a support person to be present. This weighs towards a finding of unfairness.
In relation to s.387(e), insofar as the Respondent’s dismissal of the Applicant was for unsatisfactory performance, I am not satisfied that he was adequately warned. To that extent, the consideration weighs in favour of a finding of unfairness. However, in relation to the dismissal on the basis of his conduct, this consideration is not relevant.
In relation to ss.387(f) and (g), Wavin was a small business and at the time of the termination comprised Mr Friedman, Mr Rosenberg and Mr Course along with some external referral partners and advisors. At all times, Wavin operated under the understanding that Mr Course was not an employee but was an independent contractor. It had little access to human resource and compliance resources, and I treat this as a neutral consideration.
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. The Applicant submitted that the timing of his dismissal was unfair because payments would have become due under the terms of his contract as clients were about to sign contracts and generate revenue.[32] He also claimed that the real reason for the dismissal was for Wavin to avoid having to make these payments and the payment of the $20,000 to him. There was no evidence to support this submission and I reject it. I accept Mr Friedman’s evidence, supported by a statutory declaration, that no income has been received nor any commitment for future income from the clients introduced by Mr Course, between 23 March and 23 April 2022.
I am conscious that Mr Course received only a little more than $10,000 for 15 months’ effort. Whilst on one level this is unfair, in that Mr Course spent more than a year working on Wavin’s business with minimal payment, he is not a vulnerable employee exploited by an employer. He is a highly experienced professional who made a calculated decision to work under the terms he proposed, which involved high risk and high reward. Whilst the rewards did not eventuate, in the quite unusual circumstances of this case, I do not consider that any of these matters weigh in favour of a finding of unfairness.
Further, the Applicant’s submissions made it clear that what was sought in this application was compensation for the unfairness of the termination of his employment, and that the alleged failure to pay amounts due and minimum entitlements remain matters for a court of competent jurisdiction.[33]
After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Wavin’s dismissal of Mr Course was not harsh, unjust or unreasonable. On balance, the procedural failings and the other factors that point to a finding of unfairness are not outweighed by the existence of a valid reason and a reasonable opportunity to address the issues.
Even if I had found that Mr Course’s dismissal was unfair, I would not have ordered reinstatement, and compensation, if any, would have been nominal. It is clear from the findings above, that the relationship of trust and confidence between Mr Course and Wavin has completely broken down and become even more acrimonious after the relationship ended. Mr Course agreed that the relationship between him and the Respondent had broken down significantly and that there isn’t a relationship of trust and confidence between the parties. I do not consider there to be any prospect that the relationship could be restored. I would not order reinstatement.
As to assessing compensation, in applying the first part of the Sprigg test, I would have assessed the relationship would have only continued for a matter of days, given the deterioration in the relationship and Mr Course’s clear statements that he was not prepared to continue working without the terms of his engagement being changed to include a monthly retainer, which Wavin did not agree to. I do not consider that this would lead to a manifestly unfair result in circumstances where Mr Course is a highly experienced professional, who decided to risk spending a considerable amount of time in the hope of substantial rewards in salary and equity. He may or may not have claims for unpaid minimum entitlements which are being pursued elsewhere. Of course, and as raised with the parties at an early stage, my finding that Mr Course was an employee is not binding on any court.
For completeness, I am not persuaded by Mr Course’s submissions that he was covered by the Professional Employees Award 2020 as he was engaged and remained primarily focused on sales.
Conclusion
Mr Course’s dismissal was consistent with the second limb of the Small Business Fair Dismissal Code. In any event, having regard to s.387 of the Act and all of the circumstances of the present matter, I do not consider that Mr Course’s dismissal was harsh, unjust or unreasonable. It was therefore not unfair.
Mr Course’s unfair dismissal application is dismissed. An order to that effect will be separately issued.
DEPUTY PRESIDENT
Appearances:
A Course, Applicant with R Millar of counsel.
C Pym of counsel for the Respondent.
Hearing details:
2022.
Melbourne (by video):
September 28, 29.
Final written submissions:
Applicant, 3 October 2022.
Respondent, 7 October 2022.
[1] Antony Robert Course v Wavin Technologies Pty Ltd[2022] FWC 1977.
[2] Digital Hearing Book (DHB) at p.63.
[3] Witness Statement of Antony Course at [8].
[4] See [2022] FWC 1977 at [21].
[5] Witness Statement of Antony Course at [8].
[6] Witness Statement of Adam Friedman at [18] and [32].
[7] Witness Statement of Antony Course at [22].
[8] Witness Statement of Adam Friedman at [24].
[9] Annexure H to Witness Statement of Adam Friedman.
[10] Witness Statement of Adam Friedman at [25] and Annexure J.
[11] Annexure K to Witness Statement of Adam Friedman.
[12] Witness Statement of Adam Friedman at [29].
[13] Ibid at [30].
[14] Witness Statement of Paul Rosenberg at [5].
[15] Ibid at [7] and Witness Statement of Adam Friedman at [35].
[16] Witness Statement of Adam Friedman at [37] and Annexure O.
[17] Witness Statement of Stephanie Richardson at [2].
[18] DHB at p.131.
[19] Annexure P to Witness Statement of Adam Friedman.
[20] Annexure Q to Witness Statement of Adam Friedman.
[21] Annexure R to Witness Statement of Adam Friedman.
[22] Annexure S to Witness Statement of Adam Friedman.
[23] Annexure T to Witness Statement of Adam Friedman.
[24] Annexure U to Witness Statement of Adam Friedman.
[25] Witness Statement of Paul Rosenberg at [9]-[10].
[26] Annexure V to Witness Statement of Adam Friedman (DHB at p.354).
[27] DHB at p.65.
[28] Witness Statement of Paul Rosenberg at [13].
[29] Ibid at [15].
[30] DHB at p.130.
[31] Applicant’s submissions in reply at [7]-[10].
[32] Applicant’s outline of submissions (DHB at p.39).
[33] Applicant’s submissions in reply at [17].
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