Mr Matthew Paul Whitfield v John and Lilis Legg T/A Impact Realty
[2011] FWA 1862
•18 APRIL 2011
[2011] FWA 1862 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Matthew Paul Whitfield
v
John and Lilis Legg T/A Impact Realty
(U2010/14918)
COMMISSIONER CLOGHAN | PERTH, 18 APRIL 2011 |
Unfair dismissal remedy.
[1] On 9 December 2010, Mr Matthew Whitfield (“the Applicant”) made application to Fair Work Australia (FWA) alleging that he was unfairly dismissed from his employment with John and Lilis Legg trading as Impact Realty (“the Employer”) on 2 December 2010.
[2] Mr Whitfield made the application pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[3] Mr Whitfield’s application was set down for conciliation on 13 January 2011, however, this was cancelled at the Applicant's request. When relisted for 20 January 2011, the Employer requested that conciliation be bypassed and that the matter proceed directly to arbitration. The application was subsequently referred to me for arbitration.
[4] Arbitration took place on 10 March 2011.
[5] Mr Whitfield gave evidence in support of his application. Mr Legg gave evidence on behalf of the Employer.
[6] To assist the proceedings, both parties provided a significant amount of documentation. Having received this material and incorporated it into evidence, heard submissions, received further evidentiary material and oral evidence, I reserved my Decision. In reaching this Decision, I have considered and given appropriate weight to all the evidence provided to the Tribunal.
RELEVANT APPLICATION FACTS
[7] On 8 December 2010 in his application to FWA, Mr Whitfield advised that the reason for his dismissal was as follows:
“Verbally and abusively I was given the reason that a sold sticker had appeared on a for sale sign on a property that was my listing.”
[8] In response to the question, why was the dismissal unfair, Mr Whitfield stated:
“1. The accusation made my employer is untrue: and
2. In my opinion my dismissal was directly related to the fact that I had 6 days earlier submitted one months resignation notice of my intent to join another estate agency and given that I work predominately on a commission basis if I had remained in employment until the end of December, which is what I intended to do as per my written letter of notice, I am due a significant sum of commission previously earnt which the respondent is attempting to withhold from me.”
[9] On 10 January 2011, the Employer’s response to the application was as follows:
“Matthew Whitfield was not told he was dismissed on 2 December 2010.”
“On 26 November 2010 Matthew gave us notice that he was resigning his position at our Agency. John Legg [the Employer] suggested that this was poor timing and that he should remain until 31 December 2010 in order to claim a bonus payment and that he look into using any annual leave he had owing.”
“On 1 December 2010, Matthew informed us that he would be leaving for England the next evening for 12 days. These holidays had not been previously discussed or approved and Matthew did not have sufficient annual leave owing to take this time off.”
“On 2 December 2010, after the office keys were taken from Matthew, we were emailed a letter from him threatening legal action and stating he was dismissed.”
“On 5 December 2010, Matthew Whitfield sent an email confirming that he had not, in fact, been dismissed and that perhaps he had misunderstood the situation and requesting confirmation as to whether he was in fact dismissed. (I believe that this email was sent to goad me into dismissing Matthew as it was more financially beneficial for him).”
RELEVANT FACTS PRIOR TO DISMISSAL
[10] On 26 November 2010, Mr Whitfield provided a letter to Mr Legg under the title “Tendering of Notice”. The relevant parts are as follows:
“After informing John [the Employer] this morning of my intention to seek employment elsewhere it was agreed between the two of us that I would hand in my resignation and my last day at work would be Friday 31st December.
Please accept this letter as confirmation.” 1
[11] On 1 December 2011, Mr Whitfield forwarded an email to Mr Legg the relevant parts are as follows:
“Greetings Boss, I decided upon Peard [another real estate agency and Mr Whitfield’s intended employer] so am going to fly to UK tomorrow evening and get back on the 14th December.
I am going to contact all of my vendors and advise them what is happening...
Is there any of these [houses for sale] that you would be happy for me to pay a referral fee and take with me, if so then I will work with you...” 2
[12] On 29 November 2010, the Real Estate Association contacted the Employer, in writing, to say that property advertisements which it had discussed with Impact Realty on 25 November 2010, “are still in breach of our Acceptable Use Policy”. The three specific areas which contravened the Policy related to: “Misuse of fields”; incorrect photos or pictures, and failure to remove sold properties (failing to transfer under contract properties, to a sold database, or remove property from web). The letter specifically refers to properties and an advertisement being handled by Mr Whitfield. The Association emphasises to the Employer the necessity for integrity when advertising for the benefit of consumers. The communication concludes by threatening further action which Mr Legg interpreted, as cancellation of the Employer’s membership of the Association. 3
[13] Following receipt of the letter, Mr Legg forwarded an email to all real estate agents in his employment under the hearing “WARNING” stating that another breach of the Real Estate Association’s Acceptable Use Policy has occurred over the weekend. Mr Whitfield is not singled out in the email. 4
[14] On 2 December 2010, Mr Whitfield sent an email (with no identifiable time) to his Employer, colleagues, vendors and clients. The relevant parts are:
“On the 26th November I resigned from Impact Realty.
From this evening I will be in the UK...
I have enjoyed my time at Impact Realty.
I am staying in the industry and am always available to answer calls however there is a fantastic team at Impact Realty led by John along with Chris and Trevor who will be able to help...
...I wish you a Merry Christmas.
John Legg will be handling the transition phase for my existing clients and can be contacted on the number below...” 5
RELEVANT FACTS POST DISMISSAL
[15] On 2 December 2010 after an incident, which will be further detailed later in this Decision, Mr Whitfield wrote to the Employer. The relevant parts are:
“I have been advised to write directly to yourselves prior to proceeding with legal action.
As at 12:15pm this afternoon I was informed that I was no longer employed by Impact Realty...
...I am writing to ask if you could kindly confirm in writing that you will not be paying me monies owed...” 6
[16] Also on the same day, Mr Whitfield sent an email to the Employer. The relevant parts are:
“At 12:30 this afternoon I wrote to yourselves requesting written confirmation that you have terminated my employment as well as requesting written confirmation that you will be withholding all commission earnt”.
[17] On 5 December 2010, Mr Whitfield again emailed his Employer from the UK. The relevant parts are:
“As per employment law a person who is dismissed from a position needs to have that dismissal in writing. It is now been 4 days since John took my keys and internet access from me but I have still not had confirmation in writing that I have indeed been dismissed. I am a bit confused now as John did not tell me that I was dismissed and that I may have got his mixed message incorrect and maybe after my approved holiday I can actually return to work.
Either way I am out of the country and requesting that confirmation be sent to this email address within 24 hours...” 7 (my emphasis).
[18] On 21 December 2010, after the filing of Mr Whitfield’s application, but before any involvement of FWA, Mr Legg forwarded an email to Mr Whitfield, the relevant parts are:
“When you gave notice on the 27th November, I believe that you had momentarily forgotten this fact [end of year bonus] which I pointed out to you at the time. We then discussed serving out the rest of the year, there was nothing compelling me to accept your 34 day notice or for me to facilitate you staying until the end of the year. You then continued to lie and act deceptively toward us and our clients, for example you placed a sold sticker on a property that not only had not sold, but in fact was no longer on the market for sale. This was not only false advertising but was against the code of conduct as you were offering a property that was no longer under agency, but you knew that Matthew, because we discussed it last time you did it several months earlier.
In one of your emails you stated that you were taking “approved holidays” this was not the case, as I discovered after you left that you only had 20 hours owing to you and you gave me notice the day before that you were taking 10 days to go to the UK in the form of an email.
Then we started getting all sorts of conflicting emails from you stating first that you were dismissed by me, then later that you were not actually dismissed and you thought that a position would still be available, on your return. We then received notice to the effect that you were suing me and had lodged a complaint with Fair Work Tribunal.
If you weren’t sure about being dismissed on the 2nd we most certainly would have done so when we discovered your initials in place of your vendors on contracts some days later. Since then we have discovered several others.
Your reckless behaviour and deceptive conduct to ourselves and your clients, including fraudulently signing documents on behalf of your vendors, discovered since you have left, together with your involving REBA, REIWA, and Fair Work Tribunal has left us in a position that we are not prepared to negotiate with you, rather we would prefer to involve all or any of the above, then whatever decision is made from that point on will be one made from a third party and no longer my responsibility.” 8
[19] The Employer, as part of documentation submitted to the Tribunal, provided a copy of the Small Business Fair Dismissal Code Checklist.
[20] In answer to Question 5 of the Checklist, the Employer states that Mr Whitfield was dismissed for serious misconduct and the reason being:
“Fraudulently signed documents on behalf of owner. Falsely advertising properties without written authority. Deceptively advertised properties.”
[21] The Employer further states that Mr Whitfield was warned that he was not doing the job properly and that he would have to improve or be dismissed. Further, Mr Whitfield was reportedly provided with a reasonable time to improve his performance and did not do so. The Employer inclines to a positive answer to the view that Mr Whitfield was aware of the reason that he was dismissed and was given an opportunity to respond. The Employer answers more negatively than positively that it kept records of warnings about Mr Whitfield’s performance. Finally, the Employer has ticked “yes” to the question, “Did the employee voluntarily resign or abandon his or her employer?” with the following details:
“Resigned 26th November. Went on holidays withoutconsent.” 9
[22] On 21 December 2010, the Employer completed a Workers’ Compensation Report Form which states that Mr Whitfield had made a workers’ compensation claim and that a first medical certificate was received on the same day. In section 5, the form reads:
“Employment terminated 2/12/10.” 10
RELEVANT STATUTORY FRAMEWORK
[23] Section 385 of the Act provides:
“A person has been unfairly dismissed if FWA 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.”
[24] The meaning of dismissal is contained in s.386 of the Act.
“(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.”
[25] The criteria for considering whether a dismissal has been harsh, unjust or unreasonable is contained in s.387 of the Act:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
APPLICANT’S CASE
[26] It is undisputed that Mr Whitfield resigned his employment on 26 November 2010.
[27] Mr Whitfield continued with his normal role between 26 November and 2 December 2010.
[28] Mr Whitfield gave written evidence that on 30 November 2010 that both he and Mr Legg “agreed that it was a bit akward (sic) me working there and that to assist in a smooth transfer of clients I should use my sick leave or holiday time or unpaid leave and go away and it would also be a good chance to rest my back (I later had surgery on it).” 11
[29] Mr Whitfield gave written evidence that on 1 December 2010 that he informed Mr Legg that he was going back to the UK for 12 days and “John did not tell me that he had any problems with this, if he had done then I would have cancelled it.” 12
[30] On 2 December 2010, Mr Whitfield was contacted as to the price of a unit which had an “under offer” sticker on it. (The Applicant refers to “under offer”, however, does not contest all other evidence which refers to a “sold” sticker).
[31] Mr Whitfield’s written evidence was:
“Anyways my first thought was that one of the reps in the office had sold it and had not told me (Thursday was my day off...) I call Trevor and Chris and ...... that they had not sold it.” 13
[32] Mr Whitfield subsequently had a telephone conversation with Mr Legg. Mr Whitfield denied the allegation and suggested that the owner may have put the sticker on the “for sale” sign. After telephoning the owner, Mr Legg telephoned Mr Whitfield back and called him a “f*****g liar”.
[33] Mr Legg requested that Mr Whitfield come to the office which was not possible, so Mr Legg went to the Applicant’s house and according to the evidence of Mr Whitfield, the exchange went as follows:
“Approximately 12:15 John pulled up to my house...throughout he was angry, fist clenched and kept saying ‘you f*****g liar’ ‘how could you do this to me’
As he was about to leave I said ‘but I am still employed by Impact’
He replied ‘you are f*****g finished’
I said ‘well I will still be getting my commission’
He replied ‘no you are f*****g not’
I told him ‘I am entitled to that commission and I will get it’
He replied ‘do what you feel you have to do’
I replied ‘I will get it, you know I have plenty of resources and will not take this lying down’
His final intelligent words were ‘f**k off’” 14
[34] Mr Whitfield further states:
“I have absolute no proof that John placed the sticker on the property (sic), every rep in the suburb has under offer stickers so I cannot prove it was my ex-employer.” 15
[35] Finally, Mr Whitfield gave oral evidence that he emailed the Employer on 5 December 2010, “asking for confirmation (of the dismissal) as I had read that when you are dismissed you had to have it in writing and as John had only said ‘you are f*****g finished’ rather than you are fired or sacked, I need confirmation.” 16
[36] Notwithstanding the need to have confirmation, Mr Whitfield gave evidence that as Mr Legg, on 2 December 2010, deprived him of his work internet access, keys, signs and tools, he “left me with no doubt that I was sacked” 17. For this reason, Mr Whitfield proceeded with his application alleging unfair dismissal.
EMPLOYER’S CASE
[37] In summary, the Employer states:
“Mr Whitfield had good cause to believe that he was dismissed on the 2nd of December as it was my intent to do so;
“Mr Whitfield abandoned his position by travelling to England with insufficient time owing or having consulted with his employers;
“Regardless of the events of the 2nd of December, Mr Whitfield would have been summarily dismissed on 13th of December.” 18
[38] In seriatim, the Employer’s case is as follows.
Reason 1: “Mr Whitfield had good cause to believe he was dismissed on the 2nd of December as it was my intent to do so.”
[39] The Employer has set out the events leading up to the 2 December 2010 incident as follows:
“16th August 2010
The Assistant Property Manager at Impact Realty, Coral Leopold did a viewing of [address of property] and noticed a Sold sticker had since been placed on the for sale sign. She came and told me about the Sold sticker and I confronted Mr Whitfield and asked him why he had placed a Sold sticker on the For Sale sign. After denying it several times, he told me he liked the exposure.
I told him that we no longer had a selling agency and that this contravened The Real Estate and Business Agents Act:
Item 4(1) of the Code of Conduct states that “an Agent must not act as agent or represent himself or herself as acting as agent on behalf of a person without written authority
Item 4(3) An Agent must not advertise that any real estate or Business is for sale or lease, or erect or display a notice of sale or leasing without written authority.
I also told Mr Whitfield that to advertise this property as sold was deceptive and that it contravened sections 52 and 53 of The Trade Practices Act in that he had advertised something that he knew to be untrue or deceptive. Mr Whitfield was warned that we would not tolerate deceptive or fraudulent behaviour and that we would not tolerate being lied to in our office.” 19
[40] In cross examination, Mr Whitfield agreed that he did place the “sold” sticker on the sign to “increase exposure” 20. However, he also added that he thought it was “harmless”21 and “because I am a joker”22.
[41] Mr Legg gave evidence that Mr Whitfield was told that this action was deceptive and contravened the Trade Practice Act 23 and that a first warning was given to him. Mr Whitfield disputed the existence of a first warning24. The only part of the conversation that Mr Whitfield could recall was Mr Legg saying, “Matt, we don’t put things like that on”25.
[42] Independent of both Mr Whitfield and Mr Legg, Ms Leipold provided a written statement corroborating Mr Legg’s witness statement:
“He replied to my concerns saying that he stuck it on there and would take it off in a couple of days. He said it was a way of advertising a “sold” property in an area that had a lot of traffic goes past to get more interest for more listings and sales” 26
[43] Mr Whitfield had “absolutely no problems” with Ms Leipold’s statement being “admitted” 27 but later in cross examination gave the following answers:
“So I put it to you, Mr Whitfield, that is deceptive conduct?---No. I agree that that's what Coral [Ms Leipold] has said. I'm not denying I put the sticker on. It's not denied at all. And I agree this is Coral's statement.” 28
“THE COMMISSIONER: Mr Whitfield, I'll ask the question. Is this a correct representation for discussion that you had with Ms Leopold?---No. I'm saying all the long that I did say that I put the "sold" sticker on there but it wasn't for increasing traffic or anything like that - for a couple of days. I said I was going to keep it on for - take it off in a couple of days. So, I don't agree with that in its entirety, no. But I do - I'm not denying at all I put the "sold" sticker on there.” 29
and the following words in response to questioning by the Employer, Mr Legg, Mr Whitfield said:
“Did you, in fact, take that "sold" sticker off the property, Mr Whitfield?---No, I believe you did.” 30
[44] Mr Legg gave evidence that in September 2010, he stopped one of Mr Whitfield’s advertisements being placed in a local community newspaper. Mr Legg claimed it was misleading and deceptive 31.
[45] In cross examination, Mr Whitfield responded and answered as follows:
“...We twisted the figures to make it look...better because we'd taken...the agency and everything like that...Did I receive a warning for that?” 32
“I'm sure that you did, Mr Whitfield?---Okay.” 33
[46] In early October 2010, Mr Legg had to advise Mr Whitfield that an Exclusive Selling Agency Agreement had not been initialled correctly and had instructed him to carry out the procedure properly 34.
[47] On 6 October 2010 Mr Whitfield sent an email to Mr Legg in which he states:
“I apologise for the tone of my email, after reading through it I can see why you would be livid and I apologise for my phone calls, you are my employee (sic) and I should treat you with more respect and for that I apologise also.
I will consider this, with your permission, to be my final warning.
...
I understand that I made the mistake in believing that we were more than employee/employer and I will not make that mistake again and will be more respectful in the future
...
If you have reached the final tether with me then we need to work out how to separate amicably.” 35
[48] Mr Whitfield claimed that this statement was “out of context because I’ve never received a warning” 36.
[49] Mr Legg asked:
“I put it to you, Mr Whitfield, that if you were to have said this was your final warning surely that would indicate you've had previous warnings? ---I don't know if that's a ‘yes’ or ‘no’ question. That's an assumption. I don't agree in the context, no. ” 37
[50] In November 2010, Mr Legg received an email complaint from the purchasers of a house in which they complain about Mr Whitfield’s deceptive conduct in increasing their offer by implying that he had two written offers to present to the owners 38. Mr Whitfield does not deny that Mr Legg received the complaint but responded that he had a “verbal offer and a written offer”39 and disputes any deceptive nature of his conduct.
Reason 2: “Mr Whitfield abandoned his position by travelling to England with insufficient time owing or having consulted with his Employers”
[51] Mr Legg contends that Mr Whitfield abandoned his employment and was not dismissed.
[52] It is agreed between the parties that they discussed on 26 November 2010 that, at the time of Mr Whitfield resigning, discussions took place regarding the utilisation of annual leave between that date and 31 December 2010.
[53] Further, it is a fact that Mr Whitfield emailed Mr Legg at 4:32pm on 1 December to say that he was flying to the UK on the evening of 2 December and returning on 14 December 2010. The subject heading of the email is “Over $400,000” and the actual information concerning annual leave is coupled with advice to Mr Legg that Mr Whitfield had decided on which real estate will be his next employer.
[54] Mr Whitfield’s evidence in relation to the taking of leave was most unsatisfactory. While in the UK, Mr Whitfield portrayed his annual leave as “approved” 40. From the evidence, I am satisfied that the leave was not approved by the Employer. Further, that Mr Whitfield did not enquire as to his accrued leave entitlements. Finally, I do not accept Mr Whitfield’s responses to questions in cross examination by the constant refrain of “I dispute that” as evidence of anything contrary to the position put by the Employer, for example:
“Well, you went on holiday using your sick pay entitlements without the authority to do so?---You - I dispute that.” 41
[55] It is a fact that Mr Whitfield did not provide a sick leave certificate while he was in the UK 42 and on annual leave. Further his own documentary evidence attempts to validate the fact that he had accrued entitlements by specifically referring to accrued sick leave43.
[56] Finally, I do not accept Mr Whitfield’s inference that because he had a general discussion with Mr Legg on 26 November 2010, this gave him authorisation to take leave, adopt the manner in which he took that leave or indicated that he had accrued entitlements to take annual leave. However, I agree with Mr Whitfield that, notwithstanding these matters, his absence could not be properly construed as abandoning his employment as asserted by Mr Legg.
Reason 3: “Regardless of the events of 2 December 2010, Mr Whitfield would have been summarily dismissed on 13 December 2010”
[57] Mr Legg submits that irrespective of the events on 2 December 2010, Mr Whitfield would have been summarily dismissed upon returning from the UK.
[58] The circumstances leading to the Employer making this assertion related to a contract in which the original had not been initialled as requested by Mr Legg of Mr Whitfield; however, the office copy had initials written on it 44. When Mr Legg, after Mr Whitfield’s dismissal, had the client initial two clauses on the contract, he compared them with the office copy. The initials were so markedly different, he came to the belief that Mr Whitfield had initialled the office copy to give the impression that he carried out Mr Legg’s instruction.
[59] Mr Whitfield denies initialling the contract 45 but also states that:
“None of this would have occurred had I still had been working at Impact Realty...It is all a moot point because I would have presented this contract if I’d still have been employed by Impact Realty and none of this would be happening now.” 46
[60] The parties agreed that none of the initials match.
[61] While Mr Whitfield denied initialling the documents, I have some disquiet with his suggestion that the Tribunal should not give it the consideration it deserves, because if Mr Whitfield was still employed, it would not be an issue.
[62] I am satisfied that the Employer, notwithstanding the events of 2 December 2010, would have confronted Mr Whitfield with the same allegations as were put to Mr Whitfield in the witness box at the hearing.
[63] It is pure speculation as to whether Mr Legg would have instantly dismissed Mr Whitfield for either refusing to obey a lawful order, neglect or misconduct. However, from the evidence in these proceedings, I am confident that Mr Whitfield’s conduct regarding the “initials” should not be seen in isolation, but in the context of Mr Whitfield’s overall conduct.
DISCUSSION
[64] Applications such as this application, where the parties and their respective friends enjoy a personal relationship outside work are difficult. They produce problems which are not encountered in a normal employer/employee relationship. The relationship is described in the following paragraphs:
“We were friends?---Yes.” 47
“- - - I socialised with yours. Up until this point - it all turned very nasty. Impact Realty was a very informal workplace, would you agree?---Yes, I would agree.” 48
[65] Where a social relationship exists between the parties at work, boundaries blur and decision making becomes more difficult. And while, particularly from the Employer’s perspective, it does not mean “anything goes”, there is often a muteness or tolerance of certain actions, which in a normal employer/employee relationship, would be considered wrong and not countenanced.
[66] Notwithstanding this personal association outside work, it is necessary to determine whether, as Mr Whitfield alleges, he was unfairly dismissed from his employment on 2 December 2010.
Small Business Fair Dismissal Code
[67] Mr Whitfield in his Outline of Submissions states that “I never received, nor signed for any written warnings”. Further, that he was, “never expressly told that my job was in jeopardy at any time”. It is notable that Mr Whitfield refers to “written warnings” and uses the adverb “expressly”.
[68] From the evidence presented, the Office in which Mr Whitfield worked was “informal” and both parties, up until 2 December 2010, were friends.
[69] No evidence was provided to the Tribunal that Mr Whitfield’s employment was subject to an Employer’s disciplinary procedure. Consequently, I have referred to the Small Business Fair Dismissal Code (the Code). The Employer has five full-time employees.
[70] The Code provides:
“It is fair for an employer to dismiss an employee without notice when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.”
[71] Notwithstanding the Code, I am satisfied that prior to 2 December 2010 there were a series of complaints regarding Mr Whitfield’s conduct. The seriousness and gravity of these complaints led to Mr Whitfield coming to the conclusion in October 2010 that he considered he was on a “final warning” and if the Employer had reached his “final tether”, the employment relationship needed to end.
[72] I do not accept Mr Whitfield’s submission that I should consider his words “in context” -- the language and context are plain and provides clear and convincing evidence that Mr Whitfield’s conduct was inconsistent with the role and responsibilities of a real estate representative.
What are the reasonable grounds that led Mr Legg to believe that Mr Whitfield had placed the “sold” sticker on the For Sale sign?
[73] Firstly, and it is undisputed, Mr Whitfield had taken similar action previously with another property. While Mr Whitfield advanced a number of reasons why he had taken this action, none are excusable. I totally reject Mr Whitfield’s description that he thought his actions “harmless”. Such actions were described by the Employer as “deceptive”, a view which I am inclined to agree with as a “sold” sticker gives an impression to the observer which is at odds with the truth.
[74] Secondly, Mr Whitfield, in his own reasons for previously placing a “sold” sticker wrongly on a For Sale sign, gave evidence of such a practice generating “more interest for more listings and sale” 49. While giving contradictory evidence regarding Ms Leipold’s evidence, I am satisfied that such a practice benefitted Mr Whitfield, for in his owns words, it would “increase exposure”50.
[75] Apart from denying that he placed the “sold” sticker on the sign, Mr Whitfield’s only other evidence was to suggest, with “absolutely no proof”, that Mr Legg placed the sticker on the sign. On the basis of the evidence presented, I reject any inference that Mr Legg placed the sticker on the sign.
[76] In contrast, Mr Legg provided evidence to the Tribunal of the conduct of Mr Whitfield on other occasions. In summary, the evidence showed a prevailing disposition of Mr Whitfield towards actions which were inconsistent with the conduct expected of a real estate representative. Such examples provided by Mr Legg included the non payment of $1,000 to the Employer in the sale of Mr Whitfield’s own property 51; false and misleading advertising in a newspaper52; failing to conduct himself properly in relation to the initialling of a selling agency agreement for another property53; complaints by purchasers regarding Mr Whitfield’s statements that there was “another offer” or “possibly another offer to present”54; and requests from realestate.com.au to Mr Whitfield to remove all personal self promotion advertising on Impact Realty listings55, which he did not do but ultimately was carried out by Mr Legg.
[77] I consider that these incidents, over the course of Mr Whitfield’s employment, relevant to the issue of whether Mr Legg had reasonable grounds to believe Mr Whitfield had again misconducted himself by putting a “sold” sticker on a For Sale sign for which he was the sales representative but for which the listing had expired without being sold. Mr Legg’s evidence was that this action was “the straw that broke the camel’s back” 56.
Sections 385, 386 and 387 of the FW Act
[78] Having considered the oral and documentary evidence, I find that Mr Whitfield was dismissed, on the balance of probability, by the Employer on 2 December 2010.
[79] I am satisfied that the Employer had reasonable grounds which led him to believe that Mr Whitfield had placed a “sold” sticker on a For Sale sign on a property. Further, I am satisfied, given previous conduct inconsistent with his employment obligations, that the Employer had a valid reason to dismiss Mr Whitfield.
[80] While the employment relationship came to an end on 2 December 2010 in acrimonious circumstances, I am satisfied that Mr Whitfield knew the reasons for his dismissal and responded.
[81] In the circumstances, a “support person” was neither present, requested nor appropriate, given the circumstances.
[82] I am satisfied from both oral and written evidence, that Mr Whitfield had been warned verbally regarding his unsatisfactory conduct prior to the dismissal.
[83] I am satisfied that dismissal enquiries followed were not unfair and conclude that the investigation into the placing of the “sold” sticker was adequate in the circumstances and “tailored” to a small business.
[84] Finally, unlike many other unfair dismissal applications which come to the Tribunal, in this application the parties had a friendship beyond work until 2 December 2010. In such cases, there is a tendency for deficiencies or inadequacies to occur regarding questionable conduct. However, in October 2010, Mr Whitfield passed judgement on himself that his actions constituted a final warning; on 2 December 2010, the threshold passed, or “the final straw that broke the camel’s back” occurred, and he was dismissed, friendship or otherwise.
CONCLUSION TO APPLICATION
[85] I am satisfied that the Employer has a valid reason to terminate Mr Whitfield’s employment. Further, I am satisfied that Mr Whitfield’s dismissal was not unfair. In these circumstances, the application will be dismissed and an Order issued accordingly.
COMMISSIONER
Appearances:
Mr Whitfield, the applicant.
Mr Legg, for the respondent.
Hearing details:
2011:
Perth:
10 March.
1 Exhibit A3-3
2 Exhibit R3-15
3 Exhibit R3-13
4 Exhibit R3-14
5 Exhibit A3-5
6 Exhibit A3-4
7 Exhibit A3-5
8 Exhibit R3-24
9 Exhibit R3-26
10 Exhibit A3-2
11 Exhibit A2
12 Exhibit A2
13 Exhibit A2
14 Exhibit A2
15 Exhibit A2
16 Exhibit A2
17 Exhibit A2
18 Outline of Submission
19 Exhibit R3
20 PN 204
21 PN 205
22 PN 210
23 Exhibit R1
24 PN 203
25 PN 202
26 Exhibit R3-4
27 PN 220
28 PN 227
29 PN 228
30 PN 232
31 PN 239 and PN 240
32 PN 241 to PN 243
33 PN 244
34 Exhibit R1
35 Exhibit R3-10
36 PN 258
37 PN 265
38 PN 283
39 PN 282
40 Exhibit A3-5
41 PN 312
42 PN 314
43 Exhibit A2
44 PN 390
45 PN 338
46 PN 370
47 PN 683
48 PN 685
49 Exhibit R4
50 PN 204
51 PN 195
52 PN 237 to PN 244
53 PN 246 to PN 250
54 PN 268 to PN 270
55 PN 290
56 PN 234
Printed by authority of the Commonwealth Government Printer
<Price code C, PR507886>
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