Mr Gavin Dore v Motorcycle Holdings TCO Pty Ltd ATF the Motorcycle Holdings Group Unit Trust T/A Morgan & Wacker Harley Davidson

[2016] FWC 2838

[2016] FWC 2838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Gavin Dore
v
Motorcycle Holdings TCO Pty Ltd ATF The Motorcycle Holdings Group Unit Trust T/A Morgan & Wacker Harley Davidson
(U2015/16645)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 19 MAY 2016

Constructive dismissal – whether dismissal at employer’s initiative - reasonable person test – whether dismissal unfair – remedy – whether reinstatement appropriate – likely period of further employment - compensation ordered

[1] This decision concerns an application by Mr Gavin Dore under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to his alleged dismissal from Motorcycle Holdings TCO Pty Ltd ATF The Motorcycle Holdings Group Unit Trust T/A Morgan and Wacker Harley-Davidson (“the employer”) on 20 November 2015.

[2] Mr Dore had performed various duties with the employer since 1 May 2012. The employer’s business concerns motorcycle sales, repairs and other related services. At the time of his dismissal, Mr Dore was the permanent Business Manager at the employer’s Newstead dealership.

[3] At the outset, the employer raised a jurisdictional objection. The jurisdictional objection concerns the employer’s contention that Mr Dore repudiated his contract of employment, in that he ceased to present for work or to respond to any communications from his employer after 19 November 2015, following interactions with his employer regarding performance and conduct related processes.

[4] The circumstances in which Mr Dore allegedly came to repudiate his employment by way of abandonment are set out further below. It is to the determination of this jurisdictional question that I turn firstly. It is necessary to set out the background to the matter in some detail, initially.

Legislative provisions

[5] The relevant legislative provisions, which require that a person can only be dismissed if they have been dismissed at the initiative of his or her employer are as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

Discussion of the evidence

[6] On 19 October 2015, a meeting was convened between Mr Dore and Mr Michael Cooksley, the Group Business Manager, Mr Paul Lewis, Dealer Principal, and Ms Janice Hughes, Human Resources Manager.

[7] The employer contends that it had sound reasons at that time for being concerned with Mr Dore’s performance because amongst other matters, he was not meeting the required sales benchmark. The materials tended show that Mr Dore himself was aware of the difficulties he was experiencing in his sales performance, and was expressly affected by feelings of inadequacy and lack of self-confidence as a consequence. Mr Cooksley explained through his evidence that Mr Dore had only met the benchmark whilst employed at the Newstead site twice in 15 months, whilst he had regularly met the benchmarks whilst performing as a Relief Manager at other sites in the prior periods of his employment.

[8] According to Mr Cooksley, previous performance processes had been undertaken. Mr Cooksley led evidence of a documentary nature in relation to those performance meetings. The notes of the April and August 2015 Business Manager Reviews represent in quite some extended form Mr Dore’s self-reporting in relation to his underperformance in various fields of his responsibilities. These meetings do not have a disciplinary context, however, but appear intended to encourage the Business Manager, Mr Dore, to identify weaknesses in his performance as a step towards self-improvement. In respect of the August 2015 Business Manager Review, Mr Dore stated:

“I did not achieve a lot of my benchmarks, nor my personal targets that I set myself. I felt as though there was never enough time to complete tasks that seem to be coming in faster and faster than I could address them. […] I found myself working on time consuming task[s], some self-induced and some from a distinct lack of process or lack of customer control […] All in all, I felt like I poured a lot of man – hours in to the month for not a lot of return.”

[9] In the course of a record of meeting of 7 August 2015 attended by Mr Lewis, Mr Cooksley and Mr Dore, the issue of Mr Dore’s performance appears to have been discussed, along with issues about his punctuality. This meeting did possess a disciplinary context, though the end result appears to have been to encourage improvement on Mr Dore’s part. The documentation as tended also incorporated Mr Dore’s purported responses to his employer’s concerns. Amongst those recorded responses are the following observations:

“Don’t deserve this job/lost confidence…wants the job…cut people out of my life – prioritise this job – not abusing substances or drugs etc.”

[10] The performance concerns that gave rise to the meeting are noted in the record of meeting as having been:

“Performance – poor – late – trust – actions – lost focus…falling behind standards… appearance […].

[11] By mid-October 2015, the employer also had become concerned that Mr Dore was entering the dealership at particularly unusual hours, often late at night or very early in the morning, for in some cases very short periods of time. Mr Dore’s employer had also become concerned by his decline in his punctuality, which was said to have been the subject of previous verbal warnings on 4 September 2015, 24 September 2015, 30 September 2015 and 8 October 2015. The evidence of Mr Lewis provided examples of occasions on which Mr Dore was late to work, and the explanations he gave for being late, which Mr Lewis found to be questionable.

[12] Concern was also expressed as to Mr Dore’s customer service standards, in so far as he was not attending to clients with alacrity, but missing appointments, and keeping clients waiting for non-business reasons. Mr Ahmet (the Group’s CEO) raised these matters in a meeting with Mr Dore on 17 November 2015. The employer’s concerns with Mr Dore’s punctuality and customer relations (and its impact on the business and his work colleagues), were articulated in a letter of warning given to him on 19 November 2015. I will deal with the matter of the unusual times at which Mr Dore entered the store in more detail immediately below.

[13] The meeting of 17 November 2015 focused in part over why it was that Mr Dore had been opening the dealership at unusual hours during the course of the night and on weekends. This meeting followed an earlier discussion with Mr Dore which had not yielded a sufficiently satisfactory explanation for Mr Dore’s conduct. The issue has been passed to Mr Ahmet, as the CEO, as a consequence.

[14] The evidence of Mr David Ahmet demonstrated (on the back of a report compiled in the early weeks of November 2015 by the employer’s security service provider) that between July and November 2015, Mr Dore had entered the work premises outside of normal working hours on some 50 occasions. On one of these occasions he was entering the worksite at 10:23 AM on a Sunday morning on 12 July 2015 for four hours (until 2:26 PM), then only return to the dealership an hour and a half later at 4:09 PM, whereupon he stayed on the premises for another five hours until 9:14 PM.

[15] The further evidence was that on another occasion, some two days later, Mr Dore entered the dealership at 3:36 AM and stayed on site for half an hour.

[16] On 23 July 2015, Mr Dore entered the premises at 11.00 PM and stayed until 12:07 AM.

[17] On another occasion, 31 July 2015, Mr Dore entered the premises at 9:48 PM and stayed until 12:06 AM.

[18] On another occasions still, he spent three hours in the dealership on a Sunday afternoon.

[19] On 25 September 2015, he entered the business premises at 10.00 PM and stayed until 11:27 PM.

[20] On the night of Sunday, 27 September 2015, Mr Dore entered the premises at 11:28 PM for some 30 minutes.

[21] Two days later, Mr Dore again entered the business premises at 11:05 PM, this time staying until 12.18 am.

[22] The record of Mr Dore’s entries and exits for the dealership between 1 July 2015 and 30 November 2015 were tendered in evidence.

[23] Mr Ahmet indicated that the Company Policy Manual specifically stated that employees shall not enter the building alone and that there must always be at least two employees present. The company policy manual also indicates that employees shall not work back late without another employee present and that after-hours entry is not permitted. The employer’s prescriptions in this regards were tendered in evidence.

[24] Mr Ahmet conducted a meeting with Mr Dore on 17 November 2015 and sought an explanation as to the reasons for his pattern of conduct in relation to entering the business premises at non-standard hours. Mr Ahmet claimed that Mr Dore sought to explain his conduct by referring to his desire to complete his duties. Mr Ahmet claimed that this was improbable given that his duties (about which Mr Ahmet was well aware given his prior experience) could not give rise to a volume of work that required such a frequency of attendance at the workplace.

[25] It was contended that Mr Dore was unable to provide a satisfactory answer to the enquiries as made of him in relation to his entries to the workplace out of hours. This was particularly the case in respect of occasions in which he visited the dealership at extreme hours such as 3.00 AM in the morning, for a period of time of only 30 minutes. When Mr Ahmet pressed him on the reasons for being on the premises after hours at such times, Mr Dore “simply just sat there and wouldn’t speak.”

[26] Mr Ahmet reached the view that Mr Dore could not be trusted and that “something was going on in the dealership after hours”. For this reason, Mr Ahmet arranged for Mr Dore’s keys to be removed from him on 18 November 2015.Mr Ahmet, following the meeting of 17 November 2015 meeting, lent his support to removing Mr Dore from the Newstead dealership, the process in respect of which had been afoot since 19 October 2015.

[27] I return now to the meeting of 19 November 2015. The employer, through the evidence of Mr Cooksley, indicated at that meeting that a decision had been arrived at to relocate Mr Dore to other dealerships, which (it was hoped), would assist him in reaching the required benchmarks. Mr Cooksley’s rationale in this respect was that Mr Dore had previously met the benchmarks and in fact had exceeded them (when he was a Relief Business Manager at other locations). . The employer contended, through the evidence of Mr Cooksley, Ms Hughes and Mr Pocock variously, that Mr Dore had initially accepted the change, and according to Mr Cooksley, had understood that it would provide him with an opportunity to gain confidence and meet the required benchmarks.

[28] I add at this point that Mr Dore’s employment was regulated by a contract of employment. Clause 6 of the contract of employment dated 25 June 2015 (“the original contract”) provided as follows:

Location

Your role will be based at the location set out in item 7 of schedule 1 and you agree to work from other locations as directed by the company from time to time, in order to meet business requirements.

[29] Item 7 of Schedule 1 of the original contract refers to the location of Mr Dore’s place of work and states his location is “Morgan & Wacker Harley-Davidson Newstead.”

[30] At the meeting on 19 November 2015 the employer proposed a new contract of employment (“the new contract”) that essentially sought to change the location of Mr Dore’s employment set out in Schedule 1 to “as required”. Furthermore Mr Dore’s position title was to change from “Business Manager” to “Relief Business Manager”, reflecting the change of location the company was seeking to enforce as a performance management tool.

[31] In addition, other changes were advised subsequently such as an increase of $5000.00 per annum to Mr Dore’s base wage (by way of a car allowance); the provision of a fuel card, and the provision of a $45.00 monthly mobile phone allowance. In addition, Mr Dore was to have access to the standard Relief Business Manager remuneration scheme set out in Schedule 2.

[32] The new contract also purported a 6 month probationary period applied under the contract of employment. However it should be noted that this same probationary term was listed in the original contract but had been scribbled through and initialled before the contract was signed. It is evident that the terms of both contracts of employment were derived from a template, and as happened in June 2015, it was presumably open to Mr Dore to negotiate the removal of this clause (which he did the same day when he advised of its existence and his concern therein).

[33] In all other respects, it was argued that Mr Dore’s new contract of employment were to be identical to those of his original contract.

[34] Mr Dore had also been in receipt of an income stream through the employer’s commission based potential remuneration scheme. Clause 8.2 of the contract of employment states in relation to the remuneration scheme:

“Further, from time to time, the company may at its discretion, amend the potential remuneration scheme by giving you one week’s written notice in advance. In this case, you are not entitled to any compensation for amendment of the potential remuneration scheme. The terms of the company’s potential remuneration scheme do not form part of your contract of employment.”

[35] The details of the remuneration scheme applicable to Mr Dore are set out in Schedule 2 to of each of the contracts of employment. By way of Clause 8.2 the remuneration scheme does not specifically form part of either of Mr Dore’s contracts of employment and the Company was able to unilaterally alter those terms on one week’s notice.

[36] In the employer’s evidence the new contract was offered to Mr Dore at this meeting of 19 November 2015, but he refused to sign the contract. Instead, it was said, he requested permission to take the contract home and consult with his father in relation to its terms. As a part of the proposed changes to Mr Dore’s employment it was requested he attend the next day to conduct a ‘handover’ with the new Business Manager at the Newstead site, before taking several days of annual leave and commencing in the Relief Business Manager role on 26 November 2015.

[37] Mr Dore returned to work the following day, on Mr Pocock’s evidence and served customers, though his whereabouts at times throughout the day was difficult to determine and this led to customer service problems.

[38] Following some further amendments to the new contract (see paragraph [31] above), Mr Dore was given a copy of the revised employment agreement in the early afternoon of 20 November 2015 by Mr Chenoweth, the General Manager. Mr Dore again requested time, according to Mr Chenoweth before accepting the new remuneration package as he wished to consider its terms firstly.

[39] Mr Chenoweth states (in terms that are corroborated through Mr Pocock’s evidence) that he indicated to Mr Dore that he did not need to sign the employment contract on the day, but could return it after he returned from leave on 25 November 2015.

[40] As Mr Dore was to take annual leave between 21 November 2015 and 25 November 2015, Mr Chenoweth said to Mr Dore “to just hand it in when he returns from his few days holiday”. Mr Chenoweth asked Mr Dore if he had any questions regarding the new structure, but Mr Dore had no questions. Mr Pocock was a witness to this exchange and his evidence supports that of Mr Chenoweth.

[41] Mr Chenoweth gave evidence that Mr Dore confirmed that he would be starting in his new relief role the following week (at the Gold Coast). Mr Dore was also advised that his report would change from the Dealer Manager at the Newstead store to the Group General Manager, Mr Cooksley (presumably given that he would be located at various store sites for a period into the future).

[42] I add at this stage that Mr Pocock and Mr Chenoweth were both concerned on 20 November 2015 with Mr Dore’s observed behaviour whilst at work. Both claimed that Mr Dore exhibited such a degree of disorientation in the workplace that Mr Pocock at that time claimed that he had offered to drive Mr Dore home rather than see him (Mr Dore) drive his own vehicle. Mr Chenoweth gave evidence that on the same day he also invited Mr Dore to accept a lift home or else to get a taxi, as he (Mr Chenoweth) was also concerned about Mr Dore’s well-being given his evident disoriented state. Both Mr Pocock and Mr Chenoweth had been in the same meeting with Mr Dore late in the day (see above) and both made the observation that Mr Dore appeared to been a state of ill physical or mental health.

[43] There was no further interaction with Mr Dore until Mr Cooksley attempted to make contact with Mr Dore the day before Mr Dore was to return to discuss his new posting. At that time, Mr Cooksley stated that he left two voice mail messages requesting that Mr Dore return his calls.

[44] Mr Dore replied by email to Mr Cooksley’s messages on the evening of 25 November 2015 and indicated to Mr Cooksley that he had “considered [the] offer” but had decided not to accept it because it would “half my pay”. The email text in this regard is set out below. Mr Dore, referring to what he believed was said by Mr Cooksley in the meeting of 19 November 2015, also questioned his employer in the following terms:

“You told me if I didn’t sign the contract by close of business I would be dismissed – if I have misunderstood please advise”.

[45] Mr Cooksley states that he attempted to contact Mr Dore by telephone following receipt of his email, but that Mr Dore did not respond.

[46] On 30 November 2015, Mr Cooksley replied to Mr Dore by email, and took the view that to remedy Mr Dore’s concerns that he would offer Mr Dore an opportunity to remain on his previous pay structure with the added benefit of $5000 plus a fuel card and mobile phone allowance (above). Mr Cooksley claimed that he conveyed this package by email to Mr Dore but Mr Dore did not respond. Mr Dore did not respond to his telephone messages either. Mr Cooksley maintained that he continued to attempt to contact Mr Dore as late as 5 December 2015, seeking to further explain the remuneration arrangements that would apply to him. However, he received no reply from Mr Dore at this time either.

[47] Mr Cooksley’s evidence was that he sent a registered post letter to Mr Dore on 8 December 2015 seeking him to clarify his intentions with respect to his employment by 15 December 2015, or else the employer would consider that he had abandoned his employment. No reply was received to the correspondence, and no reply or communication had been received from Mr Dore since 26 November 2015 (bar in relation to his dismissal).

[48] The employer argument largely is that despite doing what it could to retain Mr Dore in its employment, Mr Dore effectively abandoned his employment, for no sound reason, by way of ceasing to service the contract of employment and refusing to communicate with Mr Cooksley.

Mr Dore’s claims

[49] Mr Dore, for his purposes, poses a different factual matrix.

[50] Mr Dore contends that his employer had not had a formal performance management process applied to him at any time before his employer reached a view that he would need to be performance managed on 19 November 2015. Whilst Mr Dore claims that various performance related documents were afoot (such as self-appraisal documents and records of meetings) there is no evidence to be had that at any time he was ever warned about any issues in relation to his performance let alone his performance against the employer’s relevant benchmark. In fact, in respect of the documents he has at hand, the employer had made no comments of any relevant kind.

[51] Mr Dore also maintained that he had met the relevant benchmark as set out in his contract of employment each month that he was employed at the Newstead site. He therefore contends that the meeting of 19 November 2015 came as a surprise to him as he had been hitherto unaware of his alleged poor performance.

[52] It was maintained by way of submission the employer by its actions on 19 November 2015, in changing the location of Mr Dore’s place of work, had invoked the major change provisions under the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (“the Award”). Mr Dore maintained that he was classified under level I, R6 of the award. In substance, Mr Dore complained that his employer had breached the Award in failing to consult with him about a major workplace change in conformity with the consultation requirements of the award.

[53] At the meeting of 19 November 2015, which was conducted at around 1.30 pm, Mr Cooksley and Mr Lewis were said to have informed Mr Dore that there was no longer any position for him at the Newstead site and by doing so had terminated his contract of employment. Mr Cooksley and Mr Lewis gave Mr Dore a new contract of employment to sign in its place.

[54] Mr Dore contended in effect that the changes that were introduced in the new contract were substantially different from the previous contract. By so changing the contract of employment, Mr Dore contended that the employer had repudiated the contract of employment to which they were parties. Mr Dore held that Mr Cooksley had also indicated to him that he was finalising his entitlements under the original contract of employment that very night (of 19 November 2015) and that this was an unambiguous indicator on Mr Cooksley’s part that he no longer wish to be bound by the contract of employment to which he (on behalf of the employer) and Mr Dore were parties.

[55] Mr Dore contended that Mr Cooksley had informed him that irrespective of any argument that there might be about the particulars of the performance concerns as cited on the letter which accompanied the new contract (and to which I have referred above), Mr Dore’s job was to be changed. Mr Cooksley was said to have informed Mr Dore that:

“This is the plan […] As of Saturday you’re gonna be in a Relief Business Manager role …. you’ll be going down to Dylan down on the coast for a week or a bit…there is also a gig in Canberra for two weeks … We will just do it on a week by week basis… Hopefully you can reinvent yourself in that role…”

[56] In any event, Mr Dore also submitted that Mr Cooksley communicated to him that if he did not agree to the new Relief Business Manager position and its remuneration scheme by close of business on 19 November 2015, then his employment with the employer would come to an end:

“[…] he told me the position had not changed since I was a Relief Business Manager last time and that he needs to know if I was accepting the position by the end of the day. If not, I needed to let him know that I no longer wanted to work there anymore and he repeated that I could show the letter to as many people as I liked but that wouldn’t change.”

[57] Mr Dore claims that Mr Cooksley informed him that he would be doing a hand over the following day to a replacement manager and that his pay had been calculated for his work at the Newstead site the day before. When the new contract was put before Mr Dore, Mr Dore contends that Mr Cooksley said:

“[…] If I did not take up the new position as Relief Business Manager he did not have a job for me. He told me I could show the letter to as many people as I like but I would not be a Business Manager at Newstead by Friday night.”

[58] Mr Dore went on to claim that Mr Cooksley asked him:

“[…] if I was accepting the Relief Business Manager position. He told me the position has not changed since I was a Relief Business Manager last time and that he needed to know if I was accepting the position by the end of the day if not, I needed to let him know that I no longer wanted to work there anymore and he repeated that I could show the letter to as many people as I liked but that wouldn’t change.

“[…] Mike told me if I did not accept the new job he didn’t have another position for me, and asked me if I understood that employment at Newstead didn’t exist for me anymore. He told me he needed my decision on the new pay structure by close of business that day. Then Mike said I could change the letter if I wanted to but I was not to spend any time at work on it, and it wouldn’t change anything anyway.”

[59] Mr Dore claimed that following these discussions he returned his office and felt that he had “already been dismissed from [his] job at Newstead, irrespective of whether or not [he] signed the New Contract”.

[60] There were some subsequent iterations between Mr Dore and Mr Lewis about some of the terms the contract (such as the above mentioned probationary period which was excised at Mr Dore’s request). But here again, Mr Dore maintained that Mr Lewis, this time, insisted that he signed the new contract and “get it to Mike before [he] left.”

[61] Mr Dore subsequently had an opportunity to peruse some of the terms of the contract at greater length and had identified, according to his evidence, a range of matters that it caused him to concern in relation to his remuneration package. In particular, Mr Dore claims that he noticed that:

● his commission rate on finance, insurance and warranty income had been reduced;
● that he would be paid $75 a day if he was not required for relief at a dealership; and
● he would only be paid a retainer if you don’t earn more than the amount of the retainer in commissions, which he believed would be difficult to earn in dealerships.

[62] Mr Dore had earned approximately $178,873 in the previous 12 months at the Newstead site and was concerned that he might see his remuneration reduced by an amount between 50% or up to even 90%.

[63] Mr Dore claimed that Mr Lewis had also informed him that:

“You would be silly not to sign it, mate why would you throw it all away?”

[64] Mr Dore claims he asked Mr Lewis not to apply pressure to him in relation to the new contract.

[65] Some hours later, Mr Lewis returned to enquire as to whether or not Mr Dore had signed the contract. Mr Dore indicated that he had not signed a new contract. In response Mr Lewis:

“ […] Gave me a disappointed look and told me to give him my set of keys for the dealership. I gave him my set of keys and Paul said he had to escort me out of the dealership.”

[66] Mr Dore perceived his circumstances in the following way:

“It was clear to me the respondent was ending the employment relationship […].”

[67] Upon being escorted (as Mr Dore described it) out to his motor vehicle, Mr Lewis, upon enquiry by Mr Dore about the handover planned for the following day, commented that:

“[…] I should just come in tomorrow and finalise things then finish up.”

[68] Mr Dore attended the work place the following day and provided a handover to the incoming Business Manager. In the course of that process, Mr Chenoweth approached Mr Dore and handed him a newer version of the new contract of employment (taking into account Mr Dore’s previous concerns in relation to the probationary period and updating some further terms as per below). Mr Dore said that Mr Chenoweth had stated that if did not sign the contract then he would not be paid his past month’s commissions.

[69] Mr Dore noticed a number of new elements to the contract such as a $5000 car allowance and $45 per month mobile phone allowance. The six-month probation clause was in the new contract which “made [Mr Dore] a bit suspicious” as the term had been removed from the draft contract presented to him on previous day.

[70] Mr Dore also indicated that Mr Chenoweth enquired of him as to whether he was starting at the new dealership on Thursday. Mr Dore claimed that he did not respond to Mr Chenoweth’s question as he was uncertain why he was making such an enquiry given that Mr Cooksley had dismissed him the previous day. Mr Dore presumed that Mr Chenoweth was only a seeking to induce him to resign his employment.

[71] Mr Dore noticed that between 21 and 25 November 2015 he had a number of missed calls from Mr Cooksley, but he did not return Mr Cooksley’s call because Mr Cooksley had:

“[…] tried to force me to sign the new contract by ambushing me in the meeting, and then terminated my employment.”

[72] Mr Dore was aware that in one message Mr Cooksley had enquired of him as to whether not he was starting in the new role on Thursday, but he did not reply to this query because:

“[…] I had already been dismissed, and because I thought he must have some agenda.”

[73] Mr Dore eventually wrote to Mr Cooksley in the following terms:

“I have considered your offer to change the terms of my employment contract but have decided not to accept it, mainly because it would half my pay. You told me I was to start my new role in the Gold Coast and if I didn’t sign the contract by close of business, that you would terminate my employment, which did not seem fair to me. If I misunderstood please advise. Otherwise, when will you pay me my entitlements in my bonus?”

[74] Mr Cooksley replied in the following terms:

“I reiterate what I have already told you. As at close of business Friday, 20 November 2015 you are no longer the Business Manager at Morgan and Wacker. You were advised of this Thursday 19th November at which time, you were advised of your new role as a Relief Business Manager commencing Saturday 21st November.

You were also advised that your first posting would be at Gold Coast Harley-Davidson commencing Thursday 26 November for a change over day. This was to follow the four days off that you were given. You are advised that if you did not sign and return your pay structure for the new role, by myself and subsequently by Chris Chenoweth, that you would not be paid without a signed pay structure. I also advised you that there is no other role for you so if you do not accept the new position then we do not have a job for you.

The two-year bonus will not be paid as you did not qualify as previously advised in a meeting with you, the dealer principal and myself.

Gavin, we would like you to take up the Relief Business Manager’s role and we hope that this role will help you re-establish yourself as a reliable and successful Business Manager, however it would appear that you do not wish to continue with your employment at Motorcycle Holdings. Can you please confirm that your resignation is effective immediately and you will not be returning to work tomorrow?

If this is the case then the balance of any entitlements will be paid next Wednesday apart from November commission which will be paid on a pro rata basis as explained once the bank income is known in as per every month.” (Sic)

[75] Mr Dore replied:

“As you terminated my employment last Thursday and I did not agree to the role change or sign and return your pay structure, it is not clear to me why you require me to resign?” (Sic)

[76] Mr Cooksley replied in the following terms:

“Gavin,

This would be a lot easier if you would take my call or at least return my messages.

Based on your emails below and the fact that you have not returned to work I will advise payroll to process your final payment the next week excluding the commissions for November. Hopefully we will be in a position to pay commissions on 16th December if we have all the statements in time, but as you know it may not be until the last pay fortnight of the month.

All the best for the future.”

[77] On 30 November 2015, however, Mr Cooksley again emailed Mr Dore but this time indicated as follows:

“Hi Gavin,

in case there was any misunderstanding, I would like to clarify your employment with
Motorcycle Holdings Proprietary Limited. We still want [you] to work as a Business
Manager with your job requirements and duties remaining unchanged.

We’re also happy to remunerate you on the same structure to which you have been paid whilst located at Morgan & Wacker Newstead with the only difference being that as a Relief Business Manager that you will be working in several different locations rather than just one location.

As with all Business Manager roles, ultimately your income will be dependent on how well you perform in your role and what you achieved. In addition to the current pay structure your we paid a $5000 p.a. Car allowance, a fuel card and $45 per month mobile phone allowance.

Can you please advise when you will be returning to work as we were expecting you last Thursday 26 November? Can you please [indicate] when you will be able to meet with me in my office so we can plan your upcoming movements?”

[78] Mr Dore could not reconcile this correspondence with Mr Cooksley’s previous positions and did not reply. A further email was received on 5 December 2015 in which Mr Cooksley again enquired as to when Mr Dore might be “returning to work or alternatively advise otherwise”.

[79] Mr Dore construed Mr Cooksley’s email as an endeavour to extract from Mr Dore an express statement that he had resigned his employment so that he could avoid paying him his entitlements.

[80] About three days later, Mr Dore received correspondence from Ms Janice Hughes, the Human Resource Manager, indicating that owing to Mr Dore’s lack of attendance and unexplained absences his employment had been terminated. Ms Hughes’ letter read as follows:

“You’re absence from work has not been requested or approved… We are concerned that you have abandoned your employment. Please respond to this letter by close of business 15.12.2015... If you do not respond to this letter as requested we will consider that you have abandoned your employment [and will] finalise your termination payment […]”

[81] Mr Dore conceded that his employer had continued to pay him after 20 November 2015 by drawing down upon his annual leave entitlement as if he was still employed.

[82] Mr Dore contended that he had been dismissed from Newstead because he did not sign the new contract as presented to him, and had been escorted to his motor vehicle because of this decision on the part of his employer on 19 November 2015. Given the circumstances Mr Dore came to the following view:

“I think it was reasonable for me to conclude that I had been dismissed.”

Consideration

[83] An initial question that must be answered is whether or not the conduct by the employer in this instance amounted to a repudiation of the existing contract of employment, such that Mr Dore reasonably apprehended his employer no longer wished to give service to the contract to which they were parties, and properly reasoned that he had been dismissed.

[84] Though in respect of a tenancy contract dispute, Brennan J (in the judgment of the High Court in Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623 (2 May 1989) brought attention to the relevant principles in regard to repudiatory conduct as follows:

“14. Repudiation is not ascertained by an inquiry into the subjective state of mind of the party in default; it is to be found in the conduct, whether verbal or other, of the party in default which conveys to the other party the defaulting party's inability to perform the contract or promise or his intention not to perform it or to fulfil it only in a manner substantially inconsistent with his obligations and not in any other way. In Freeth v. Burr (1874) LR 9 CP 208, at p 213, Lord Coleridge C.J. spoke of acts or conduct which "do or do not amount to an intimation of an intention to abandon and altogether to refuse performance of the contract" or of acts and conduct which "evince an intention no longer to be bound by the contract." This was followed by the Earl of Selborne L.C. in Mersey Steel and Iron Co. v. Naylor, Benzon & Co. (1884) 9 App Cas 434, at pp 438-439:

"I am content to take the rule as stated by Lord
Coleridge in Freeth v. Burr, which is in
substance, as I understand it, that you must look
at the actual circumstances of the case in order
to see whether the one party to the contract is
relieved from its future performance by the
conduct of the other; you must examine what that
conduct is, so as to see whether it amounts to a
renunciation, to an absolute refusal to perform
the contract, such as would amount to a
rescission if he had the power to rescind, and
whether the other party may accept it as a reason
for not performing his part".

And in Carswell v. Collard (1893) 20 R (HL) 47, at p 48, Lord Herschell L.C. stated the question precisely:

"Of course, the question was not what actually
influenced the defender, but what effect the
conduct of the pursuer would be reasonably

calculated to have upon a reasonable person."

[85] It is not necessary that an employer expressly (by written or verbal instruction) dismiss an employee in order for the contract of employment to be terminated at the employer’s initiative. The course of conduct of the employer may be such that an employee as a presumed reasonable person might reasonably conclude in the circumstances made out that the employer no longer wishes to be bound by the contract of employment or derive the benefit of the employee’s service. The repudiatory breach would arise from the employer’s conduct even though the employee has taken the step to end the employment relationship.

[86] Here, Mr Dore contends that the employer’s course of conduct on 19 November 2015 in allegedly initiating a unilateral change to substantive terms of his contract of employment and allegedly asserting to him if he did not sign the new contract he would lose his job, were sufficient to demonstrate to a reasonable person such as himself that he had been dismissed at his employer’s initiative.

[87] The starting point must be the contract of employment to which Mr Dore and the employer were parties, as that instrument may provide for rights that may be relevant to the claims.

[88] Clause 6 of the contract provides:

Location

Your role will be based at the location set out in Item 7 of Schedule 1 and you agree to work from other locations as directed by the Company from time to time, in order to meet business requirements.

Item 7 of Schedule 1 of the contract of employment provides that location of Mr Dore’s employment is “Morgan & Wacker Harley-Newstead”.

[89] Mr Dore’s terms of appointment provide for a “base” at specified location, and that is Newstead, with scope for working at other locations from time to time.

[90] The steps taken by the employer at the meeting on 19 November 2015 in effect were to unilaterally repudiate that contract and substitute it for a new contract.

[91] The new contract of employment necessitated Mr Dore ceasing to be based at Newstead, and instead to be available for re-assignment at any location depending on the employer’s business requirements. There was no base in the new contract of employment. This was a substantial change in the condition of employment.

[92] This change had wider ramifications: as a Relief Manager Mr Dore would not have access to the same income streams in the same manner as he would at Newstead as a Business Manager and his earnings could drop as a consequence. This is not to conclude that Mr Dore’s earnings would have dropped, but there was a risk that they might under a modified pay structure.

[93] Whilst such matters may have been in Mr Dore’s mind at the time, I do not accept that Mr Dore’s conduct subsequently was consistent with him fully apprehending the import of the events of 19 November 2015 until sometime later (at least not before his email response to Mr Cooksley on 25 November 2015). I think, further, that Mr Dore has contrived some of the circumstances of 19 November 2015,such as his claim to have been ‘escorted’ from the work premises but only return to work the following day to perform duties. Further, Mr Dore seemed willing to consider the new contract on 20 November 2015 and confirmed his then willingness to resume duties at the Gold Coast dealership upon his return from leave. But ultimately these matters are not relevant. Mr Dore reasonably concluded, over the course of the subsequent days (whether upon reflection or by legal advice) that his employer no longer sought to give service to his contract of employment as it had been entered into in June 2015, and that was because he had not acquiesced to a new contract as requested, consequentially (as his employer had posed) he was no longer an employee of the employer.

[94] In this regard, Mr Cooksley’s email of 25 November 2015 in reply to Mr Dore’s query as to whether there had been a misunderstanding unequivocally indicated that Mr Cooksley had asserted on 20 November 2015 (or perhaps he meant 19 November 2015) that there was no job for Mr Dore unless he signed the new contract:

“[…] You are advised that if you did not sign and return your pay structure for the new role, by myself and subsequently by Chris Chenoweth, that you would not be paid without a signed pay structure. I also advised you that there is no other role for you so if you do not accept the new position then we do not have a job for you.” [My emphasis]

[95] Mr Dore had decided not to sign the new contract and therefore reasonably assumed himself (either on the basis of the advice to given to him on25 November 2015 by Mr Cooksley) that his employment had been terminated.

[96] It is true that Mr Dore continued to be remunerated after 26 November 2015 (upon the cessation of his approved annual leave). His employer drew down upon his accrued annual leave and made continuing payments to him regardless of his non-attendance at work after that time. Further, the employer made representations to Mr Dore to remain in its employment subsequently (as set out above).

[97] None of this however, puts aside the salience of the employer’s prior conduct to the jurisdictional question at hand. The employer’s express indication to Mr Dore was that he would be penalised (by losing his job) if he did not sign the new contract as a Relief Business Manager. That was a sufficient demonstration of the employer’s stated intention for Mr Dore reasonably to assume his employment had come to an end because he had not done what his employer requested (which was to sign the new contract).

[98] In short, the conduct by the employer was sufficient to demonstrate to a reasonable person that the employer had renounced the contract of employment and no longer wished Mr Dore to be an employee under the (now previously) contracted terms as Mr Dore had failed to maintain what his employer considered to be a mandatory condition of his continuing employment (which was to enter into a new contract of employment).

[99] The employer, I add, did not purport to act on the terms of the existing contract (such as by enforcing the terms provided for under clause 4 of the contract of employment). If the requirement to change a position was effected by this avenue (putting aside the limitations of Clause 7) then the employment contract would have continued on its own terms, and there would be no repudiation on the employer (subject to argument as to issues as to implied reasonableness of the changed position etc).

Conclusion in relation to the jurisdictional question

[100] For the reasons given above, Mr Dore’s employment came to an end at the initiative of the employer for the purposes of s.385(a) of the Act. The application is therefore competent and Mr Dore is a person who is protected from unfair dismissal for the Act’s purposes. I must now proceed to determine it subject to consideration of the criteria under s.387 of the Act, as a consequence.

Legislative provisions

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.

[101] My particular considerations are as follows.

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)

[102] Given the circumstances of this case, it is evident that the employer did not possess a valid reason for the dismissal of Mr Dore because it held that it did not set out to dismiss him in the first instance. Mr Dore’s dismissal arose essentially because of the employer’s miscalculation or absence of close consideration as to the effect of its own conduct (as set out) upon Mr Dore’s reasonable view as to whether he was obliged to continue to give service to his contract of employment.

[103] The employer in this case essentially mismanaged a performance management and conduct review process which was carried out without close regard to the existing contract of employment, The outcome was that the employer inadvertently and unintentionally brought about the termination of Mr Dore’s employment.

Whether the person was notified of that reason

[104] In the circumstances I have set out above, Mr Dore could not have been notified of the valid reason for his dismissal prior to the dismissal being given effect as the employer did not rely on such a reason for its conduct.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

As no valid reason for a dismissal was given to Mr Dore - because that was not the intention of his employer – the matter raised under subsection 387(c) of the act, as is subsection 387 (the) of the Act, is of neutral significance to my ultimate determination.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[105] The subsection is of neutral impact in relation to the circumstances of this matter.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[106] The employer was indeed concerned about the unsatisfactory conduct of Mr Dore, but as its objective was not the dismissal of Mr Dore the subsection is of neutral significance for purposes of my ultimate judgement.

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

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

[107] No argument was put to me that the employer’s procedures arose from circumstances relating to its size or the absence of any dedicated human resource it expertise. The employer’s business, on its face, is far from being a small business for purposes of section 23 of the Act. Further, the employer had access to a Human Resource Manager, although the extent to which it utilised that resource is unavailable to the Commission. These are all matters that have neutral bearing upon my ultimate determination.

Any other matters that the FWC considers relevant.

[108] There are no other matters that are relevant to the circumstances of the dismissal, given the manner in which it was effected in this particular case.

Conclusion

[109] Albeit the result of a mismanaged performance and conduct review procedure, the conduct of the employer was such that it brought about the dismissal of Mr Dore. Mr Dore reasonably concluded that the words of his employer were intended to have literal effect. The employer did not assert there was a valid reason for any dismissal as consequence it can only be held that the dismissal was harsh, unjust and unreasonable.

[110] I now turn to remedy.

Remedy

[111] I commence my consideration of the appropriate remedy by noting that I asked (at the Directions conference and at the start of the proceedings) each party to make submissions in relation to all matters under s.390 – s.393 of the Act in the context of the evidence as adduced more widely in the hearing. That is, the parties were placed on notice that evidence adduced for purposes of the above determination would be relied upon relevant for the purposes of determining the remedy, and any incidental considerations.

[112] Equally, however, parties to proceedings have different capacities and resources and their ability to meaningfully comment or sufficiently craft their case with studied understanding of these provisions varies widely. Often matters of importance are left to the Commission as discretionary considerations based on reasonable inferences, regardless of the efforts of the parties, as they may be, to provide relevant comment or examine on salient points.

[113] Section 390 of the Act reads as follows:

Division 4—Remedies for unfair dismissal

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 FWC may make the order only if the person has made an application under section 394.

(3) the FWC 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.

[114] Mr Dore is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether Mr Byrnes can be reinstated.

[115] Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[116] Though I have found that Mr Dore was unfairly dismissed, it is not axiomatic that reinstatement or reappointment follows such a finding:

“[35] The appellant’s submissions appear to proceed on the basis that reinstatement automatically follows from a finding of unfair dismissal. This is not correct. There is no right to reinstatement consequent upon a finding that an applicant has been unfairly dismissed. The commission has a discretion as to whether a remedy will be awarded in a case where a dismissal has been found to be unfair. Reinstatement will only be awarded if the commission is satisfied that is appropriate to do so.” Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198 (21 October 2014) at [35].

[117] I would neither reinstate (by re-appointing) Mr Dore to his former position nor order that he be appointed to another equivalent position with the employer, or any associated entity of the employer, on the same or any other site. The employer’s position at the close of the proceedings was to the same effect.

[118] Mr Dore’s conduct as exhibited through the evidence gives me cause to have significant doubts as to whether he could reasonably sustain the trust and confidence of his employer and that the employment relationship would be workable in the future.

[119] One of my reasons for so concluding is that Mr Dore’s explanations for being on site at extremely unusual hours were unconvincing. Mr Ahmet rightly concluded that some unusual and unexplained conduct was occurring which Mr Dore would not disclose to him. The situation in this regard was not advanced over the course of the hearings process either.

[120] The employer had concerns with Mr Dore’s conduct in attending the business premises after hours (which I have discussed above). Mr Ahmet gave what I considered to be particularly persuasive evidence that Mr Dore had not been able to give him any reason whatsoever for being in the dealership around 3.00 am in the morning.

[121] In his witness statement Mr Ahmet had claimed as follows:

“I sat down with Mr Dore and went through the list of unauthorised entries and asked for an explanation. He stated that he was very thorough and that he was working back late doing paperwork. I explained that I had a very thorough knowledge of his position and that his duties could easily be completed during normal working hours and there simply wasn’t enough work for him to be working these extra hours, besides, visiting the dealership at 3 in the morning for half an hour didn’t achieve much, likewise with the visits at 11 PM for an hour. When asked about these occasions he said nothing, offered no excuse or reason for being on site at these unusual hours. He simply sat there and wouldn’t speak. Whatever his reason for these unauthorised visits to the dealership were he made it clear that he was not prepared to speak about it other than to say that he had a lot of personal problems at the moment and that he knew it was affecting his work but didn’t want to lose his job.”

[122] In his cross examination, Mr Ahmet stated as follows about his experience with Mr Dore:

THE SENIOR DEPUTY PRESIDENT: Can I just ask you? So when you met with him on the 17th about these entries onto the premises - the business premises how did that discussion end up? Well, did you just say, "Well, that's all interesting." And go your separate ways? Or what happened?

MR AHMET: No. No, well I explained to him that I didn't think it was right. I couldn't see any reason for him to be there and I told him we would need the keys to the dealership and I told him that I didn't believe what he was saying. I told him I thought that he was lying to me and I - well, you know - I went away to consider exactly what I thought we should do from there. Quite frankly, you know, I didn't know what he was doing and I didn't have any evidence to say he was doing something illegal but I thought it was most unusual behaviour and I told him exactly what I thought and I went away to think about it. And then made the decision that I didn't want him in that dealership. Whatever was going on in that dealership I wanted it to end immediately.

[123] Mr Dore believed Mr Ahmet was alleging that he was stealing goods:

“He said that there was concern that other things may be occurring, and he didn't exactly say what but I knew that meant – I knew that to mean he had suspicions that things were being stolen, because of what had happened in a morning meeting at the dealership that it was brought up that there'd been stock missing.”

[124] Mr Ahmet did not make any suggestion of such a concern in his evidence, and he did not at the interview held on 17 November 2015 either (as Mr Dore’s evidence shows).

[125] That aside, as I have said above, Mr Dore’s reticence in response to Mr Ahmet’s questions caused Mr Ahmet to lose confidence in Mr Dore, to have the dealership keys removed from Mr Dore, and to give support to the wider process leading to Mr Ahmet’s removal from the Newstead dealership.

[126] In questioning under examination did Mr Dore proffer an explanation for being in the dealership at around 3.00 am in the morning. He claimed he had been the “sober driver” and had dropped off friends for social purposes nearby, and had returned to the dealership to do some document scanning for a very short period. This context for him being on site after hours was not advanced elsewhere in the evidence other than arising from cross examination.

[127] Mr Dore did not demonstrate any self-reflection on his conduct or give any indication that he appreciated that his employer might have legitimate concerns with his conduct in relation to being on the premises at such unusual hours (contending only that working after hours was a demonstration of his drive – a point reasonably rebutted by Mr Ahmet). On prompting from his legal representative by way of re-examination, Mr Dore did make a sole, one word concession about his conduct in this regard:

MR MAVER: In hindsight do you think perhaps it wasn't the best idea to go in at 3am?

MR DORE: Yes

[128] Mr Dore otherwise expressed no reflective views on his behaviour in any other respect. Having heard Mr Ahmet’s evidence, I very much doubt Mr Dore has disclosed to his employer his true reasons for being on site out of hours, and particularly so at unusual hours. The failure to disclose reasons for his conduct was a source of substantial concern to Mr Ahmet, as his evidence, which I found to be persuasive and candidly given. It caused Mr Ahmet to remove the keys to the business from Mr Dore, and to lend his support for moving Mr Dore on out of the dealership on the basis of a lack of trust.

[129] Mr Ahmet’s disposition in this regard is underscored by the fact that Mr Dore had been warned in the 19 October meeting that he must cease entering the business outside of hours immediately (other than when requested to do so), Mr Dore continued to do so (as the security records tendered by Mr Ahmet reveal). Ms Hughes’ evidence as to the direction given to Mr Dore in this regard on 19 October 2015 went unchallenged. It was the employer’s unease at Mr Dore’s inability to explain his conduct in this regard at the 19 October 2015 meeting, according to Mr Cooksley, that saw the matter referred to Mr Ahmet for closer inquiry (see above).

[130] Levels of trust required in a working relationship may vary according to the nature of the employer’s undertaking or enterprise. In my view, weight should be given to Mr Dore’s conduct in this regard when considering whether it would be appropriate to re-appoint Mr Dore to his position or to an alternate position. Mr Dore’s evidence in these proceedings did not give me reason to believe Mr Ahmet’s concerns had in any way been assuaged. In the present case, where the employer sells Harley Davidson Motorcycles and stocks spare parts (and is therefore likely to have expensive, desirable and mobile stock on their premises) as well as the fact that a Business Manager is a senior position and will typically have keys to the business, leads me to draw the inference that the level of trust required in this role is high, and Mr Ahmet’s concerns were well founded. Mr Dore’s behaviour in this regard is therefore a relevant factor in my deliberations.

[131] Mr Dore was also of the view that his capacity to re-enter the workplace (should he be reinstated) would need to be subject to an agreement of some kind to avoid “negativity”:

THE SENIOR DEPUTY PRESIDENT: You've said a number of things, and perhaps implied a number of things today about your employer. We just heard some of that previously from the representative and that there's a concern that they may not act in your interests in relation to other employment. You have indicated some suspicion of Mr Cooksley's motives in not wishing to respond to his telephone calls when he left quite a number of calls with you and they're all aggregated, but you didn't respond to those. You have suspicions about Mr Lewis because Mr Lewis had, I think in your mind, an agenda to perhaps replace you with a lower cost business manager?

MR DORE: Yes.

THE SENIOR DEPUTY PRESIDENT: You may have other suspicions about him, as well. Why is it you would want to go back and work with people with whom you don't appear to have a great deal of trust and confidence?

MR DORE: Well - - -

THE SENIOR DEPUTY PRESIDENT: Do you think - - -? […] It would be a productive and co-operative workplace if you did?

MR DORE: That was a concern I had. I was hoping that if that was the case that there could be an agreement between everyone that would prevent any kind of negativity occurring thereafter […].

[132] What constitutes negativity in Mr Dore’s mind was left unexplored. Would it extend to any form of performance management or (continuing) investigation into his conduct? How would such an “agreement” be established, and on what terms?

[133] Mr Dore also contended that he had no performance issues of substance that required attention. But his own admissions and comments about his performance and the notes tendered on discussions with his employer, as detailed above, show that this was not entirely the case. Further, Mr Dore’s employer was also concerned about his punctuality and attention to customer relations. In respect of the former, Mr Dore eventually came to agree that there had been multiple discussions with Mr Lewis:

“MR NANCE: Mr Dore, Paul had discussed with you prior to the 19th a number of concerns that he had verbally with you regarding your performance about coming in late and everything, didn't he? There had been about two - two times I could probably recall that,

MR DORE: yes.

MR NANCE: Could it be more than two, or you can only recall two?

MR DORE: It could have, maybe - maybe three times.”

[134] Mr Lewis’ more detailed recollections about Mr Dore’s attendance issues (over months) and the lengths he went to ensure Mr Dore arrived at work in time are to be preferred to Mr Dore’s generalised recollections.

[135] Mr Dore might find it particularly difficult to return to the workplace to address these various issues without apprehending such actions as “negativity” (which he seeks to avoid). It should be noted in this regard that reinstatement does not mean that the various issues that have come between Mr Dore and his employer will be swept aside upon reinstatement. They would most likely not be. The employer would be entitled to continue to pursue the same issues upon reinstatement, but by different avenues.

[136] Mr Dore was not well disposed towards his employer. He maintained that Mr Cooksley (along with Mr Chenoweth) was seeking to displace him from his employment to procure a lower costs employee, that Mr Cooksley was encouraging him to resign as part of an industrial strategy, and that Mr Ahmet had suspected him for being responsible for theft. Mr Dore also claimed he had been “escorted” off the work premises by his employer on 19 November 2015, as part of a dismissal exercise (only to return to work the next day). There was no evidence for any of these claims, and in the case of the latter matter, Mr Dore’s construction of the activity was in my opinion an intentional exaggeration to strengthen his case. This was similarly so in relation to his claim that the Dealership keys had been removed from him on 19 November 2015 after he refused to sign the new contract. The Dealership keys were removed the previous day in regards to Mr Ahmet’s concerns about Mr Dore’s unexplained entries to the Dealership, and before the ‘sign or be sacked’ scenario eventuated.

[137] Notwithstanding all of this, Mr Dore now asserts that (subject to the requisite agreement about “negativity” being in place) he could re-establish a cooperative working relationship.

[138] Generally, I very much doubt having heard the evidence, given the range of matters considered in aggregate that I have touched upon above, that Mr Dore could readily re-assimilate into the workplace, and be subject to the reasonable management processes therein, either at Newstead or elsewhere within the employer’s business as a Business Manager. That is, it would not be appropriate to reinstate or re-appoint Mr Dore to his original position or another position on similar terms and conditions as the outcome of such a decision would not be likely to result in a productive and cooperative workplace. Mr Dore’s legal representative also raised matters regarding Mr Dore’s mental health, and I discuss these further below.

[139] Though it was put to me, I have not given great weight to an offer of settlement made prior to these proceedings, which may have included an offer of re-appointment (only) as a Business Manager at another location (and which was rejected in any event by Mr Dore). The settlement offer may not have been a Calderbank offer (see Calderbank v Calderbank (1975) 3 All ER 333) and was not marked “without prejudice”. The handing up of the correspondence arose late in proceedings (in final submissions in reply) and without prior discussions between the parties (as I understand it).

[140] Offers of settlement – even if without any stipulated proviso as ‘without prejudice’ made prior to hearings are made in an entirely unique context, and one where parties are free of the costs and burdens (and opportunity costs) imposed by a full hearing. Importantly, such offers are also made before the witness evidence is heard in full and the examination process has been completed. Parties which are informed by such processes may be differently disposed to those who have not been so exposed. Seemingly there were other offers made subsequent to the offer referred to above, which did not include a proposal to re-instate.

[141] I add that neither party ultimately pressed upon me that the document had any great weight for purpose of the proceedings. It’s status nonetheless warrants comment.

[142] Because of my findings in this regard I now turn to consider compensation.

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.

[143] I firstly indicate that I consider that it is appropriate to make a remedy in this matter by way of an order for compensation having taken into account the above criteria. Any order that I may make is unlikely to affect the viability of the employer’s enterprise. Mr Dore had been employed with the employer since May 2012, having commenced in the position of a motorcycle salesman at another site. Mr Dore is far from being a long-standing employee of the employer and was not established in the business, but his period of employment nonetheless supports, albeit modestly, a finding that a compensation remedy would be appropriate. It appears to me that the period of time Mr Dore would have remained in employment but for his dismissal is a period of time that warrants compensation and should not be dismissed regardless of my conclusions below as to the brevity of that period.

[144] Mr Dore’s efforts to mitigate his losses support a conclusion, or at least do not militate against, a remedy by way of compensation being appropriate in the circumstances.

[145] The amount of remuneration earned by Mr Dore does not militate against the making of an order for compensation, nor does any issue relating to the amount of any income reasonably likely to be earned by Mr Dore between the making of the order for compensation and the actual compensation itself. There are no other matters that I consider militate against the making of an order for compensation.

[146] I must now take into account the same matters as I have above in relation to determining the amount of compensation that I will order.

The effect of the order on the viability of the employer’s enterprise

[147] There is no evidence that any order I might make for compensation would in some manner affect the employer’s viability.

The length of the person’s service with the employer

[148] As I said above, Mr Dore was not a long-standing employee but he did have a period of continuous employment over an approximate three year period.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[149] There is a necessary element of speculation in such a judgement as must be made by the Commission, as was admitted in the Full Bench in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR. The judgement cannot be avoided, however, and must be informed by any relevant circumstances known at the time.

[150] As I have set out above, there were deficiencies of some substance in Mr Dore’s performance of his duties and his conduct. It may be the case that the latter is the cause of the former.

[151] I note in this regard that Mr Dore’s legal representative introduced in evidence by way of the re-examination process that Mr Dore was suffering from depression:

MR MAVER: […] And in the subsequent weeks and months, as the case may be – I'll just let you have a drink – has there been any sort of depression or anything like that suffered?

MR DORE: Yes.

MR MAVER: Have you been to the doctor about that?

MR DORE: Yes.

MR MAVER: Have you been to a specialist about that?

MR DORE: Yes.

MR MAVER: Has that affected how you've felt about this situation and how you felt about seeking employment?

MR DORE: Absolutely.

[152] The matter was left unexplored beyond this by Mr Dore’s legal representative, and given it was introduced in re-examination and without notice, was not exposed to examination.

[153] I don’t know whether Mr Dore’s mental health explains his disorientation observed on 20 November 2015, or is a reason for his after hour activities in the Dealership. It is unknown, further, whether Mr Dore is fit to undertake work at all, though the question would reasonably arise had I considered reinstatement as a remedy (in which case professional psychological certification would have been needed to buttress any such decision). Seemingly, Mr Dore’s asserted condition has been such that it has affected his ability to seek work owing to his condition, and an inference might be drawn that that same condition may affect his ability to perform any work at all.

[154] Notwithstanding this, if Mr Dore had remained at the Newstead site his employment in my view would have persisted for a relatively brief period of time before such time as he was dismissed for a combination of behavioural and performance reasons. Issues such as Mr Dore’s poor punctuality, commitment to client service and his unexplained and mysterious conduct in relation to being on the premises after hours (despite company policy) and the fact that he continued to do so after being warned, suggest strongly to me that his employer was rapidly losing its confidence in his role as a dutiful employee.

[155] Mr Dore also had other personal perspectives in relation to several of his managers which would have been an impediment to a lengthy, continuing period of employment. I think they would have made the communication and necessary interactions particularly difficult. I have set these matters out earlier, particularly so in relation to my consideration as to whether it would be appropriate to re-instate or re-appoint Mr Dore.

[156] I do not believe on the evidence before me that Mr Dore would have openly entered into cooperative discussions about reviewing his overall performance in some substantial way with his employer in order to address his employer’s concerns in the future. Mr Dore seemed largely to have an uncompromising view of his performance and otherwise.

[157] I make these observations arising from the circumstances of this case because they are important in informing my judgement as to the period of time that Mr Dore would have continued in employment but for the dismissal, as it was.

[158] As a matter of informed judgement, and having heard Mr Dore’s evidence, I consider that Mr Dore would have remained an employee for a period of three months before such time as his performance and conduct issues would have led one way or another to the cessation of his employment.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[159] Mr Dore effectively outsourced his efforts to mitigate his loss by engaging the services of a recruiting agency, which appears to have emailed his curriculum vitae to a range of prospective employers. Mr Dore has met with no success from this process.

[160] Mr Dore did not consider that his prospects for further employment within the motorcycle industry were particularly prospective in Brisbane for reasons that his employer has very significant interests in this business sector.

[161] Though it is difficult to tell given the manner in which was introduced into the evidence, Mr Dore’s capacity to seek further employment also appears to have been affected by his mental health (as it is said to be or to have been).

[162] Generally, I am prepared to accept at this time at least that Mr Dore has made reasonable attempts to mitigate his losses, though there may seem to appear to be nominal personal efforts behind those attempts.

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.

[163] Mr Dore has earned a possibly $5000 since his dismissal. But he is and this money not through formal paid employment as such but by performing garden maintenance activities for his friends. I do not consider this to be remuneration in the formal sense contemplated by the subsection, which ordinarily refers to the payments received for the performance of work consequent of an employment relationship or other contractual relationship being formed.

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

[164] This is not a matter that requires any further consideration.

Any other matter that the FWC considers relevant

Section 392(3) of the Act provides as follows:

Misconduct reduces amount

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.

[165] Mr Dore’s employer contended that it did not dismiss Mr Dore. As such, Mr Dore cannot be said to have contributed to his own dismissal so far as the dismissal is taken to be a rational decision on the part of the employer (which may not be the case in this particular occasion). I have been prepared to accept that the effect of the employer’s conduct upon Mr Dore was such that a reasonable person would presume they had been terminated by the employer. Equally, however, the circumstances of this case are such that the very nature of the dismissal (which appears to me to have arisen because of a managed performance and conduct process) was not itself affected by misconduct on the part of Mr Dore. That is to say, the element of mismanagement in the employer’s conduct itself was not contributed to by Mr Dore’s misconduct.

[166] Section 392(4) of the Act provides as follows:

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.

[167] My order for compensation makes no allowance for the above proscribed matters or considerations.

[168] Section 392(5) of the Act provides as follows:

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.

[169] Section 392(6) of the Act provides as follows:

(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.

[170] The order that I propose to make does not need to take into account the statutory cap.

[171] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[172] The employer has made no application to pay any amount I may order to be paid as compensation in instalments.

Conclusion In Relation To Remedy

[173] In my view Mr Dore was dismissed unfairly, as I have indicated earlier. The compensation the employer must pay to Mr Dore is an amount equivalent to three months of his usual remuneration subject to taxation as applicable. I have elected in this matter not to make further deduction for any contingencies given the short period that I consider that Mr Dore would have remained in employment but for the effective dismissal.

[174] I note further that I have reflected upon the amount ordered in compensation and consider that it is an appropriate amount in the circumstances, and particularly so when Mr Dore’s performance and conduct\behavioural issues are taken into account for the required purposes. That is, the amount as ordered is neither clearly excessive, nor clearly inadequate, in the circumstances.

[175] I further ordered that the employer must pay to Mr Dore the above amount within 14 calendar days of the date of this decision. The parties have submitted following the proceedings an agreed statement as Mr Dore’s earnings on a monthly basis and I rely upon that agreed statement for detailing the amount owing in the context of Mr Dore’s commission-based earnings. The agreed position is that Mr Dore was paid $16,706.60 per month (inclusive of commissions and superannuation). The order I make therefore that the employer must pay to Mr Dore the amount of $50,119.80 gross subject to applicable taxation.

[176] I add that there is no contest in this matter that the award as specified above applied to and covered Mr Dore’s position as it was.

[177] An order to the above effect will issue along with the publication of this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Maver, solicitor, for the applicant.

Mr Nance, paid agent, for the respondent.

Hearing details:

10am

12 May 2016

Brisbane

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