Mr. Nigel John Peter MartinvCampac (AUST) Pty Limited
[2010] FWA 4027
•3 JUNE, 2010
Note: An appeal pursuant to s.604 (C2010/4155) was lodged against this decision.
[2010] FWA 4027 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr. Nigel John Peter Martin
v
Campac (AUST) Pty Limited
(U2010/6)
DEPUTY PRESIDENT SWAN | BRISBANE 3 JUNE, 2010 |
TERMINATION OF EMPLOYMENT.
[1] This decision arises from an application by Mr Nigel Martin (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Campac (AUST) Pty Limited (the respondent). The dismissal occurred on 22 December 2009. The application was lodged with Fair Work Australia (FWA) on 4 January 2010.
[2] The matter was dealt with by a FWA Conciliator on 12 February 2010 but did not settle. A further conference was held before a member of Fair Work Australia in Brisbane on 22 February 2010 and remained unresolved. The arbitration of the matter was heard before the Tribunal as currently constituted on 7 April 2010 in Brisbane.
The applicant represented himself. The respondent was represented by its General Manager, Mr Van Hooft who has responsibility for the respondent’s sales and construction operations.
[3] The two witnesses in this matter were the applicant and Mr Van Hooft.
[4] The unsigned Notice of Termination of Employment correspondence (dated 23 December 2009) from the respondent to the applicant stated as follows:
“We hereby advise notice of termination of your employment effective at the close of business Wednesday 23rd 2009.
The reason for termination is performance based including failing to meet sales budgets as mutually agreed.
1 weeks pay will be paid as notice of termination, as well as outstanding annual leave will be settled in the next pay cycle.
Yours truly,
Campac (Aust) Pty Ltd
Jason van Hooft
General Manager”.
[5] The applicant’s statement (Exhibit 1) is detailed hereunder.
• The applicant commenced employment with the respondent in April 2009;
• On the afternoon of 22 December 2009, Mr Van Hooft sought a meeting with the applicant to discuss pricing details of a sale which had just occurred;
• Upon finishing those discussions and as both the applicant and Mr Van Hooft were leaving the room, the Director of the respondent company, Mr Jonathan Pattinson, demanded that further discussions continue in his presence;
• As the applicant explained differences between various quotes, he alleges that Mr Pattinson commenced a verbal personal attack on his character and his work performance. Mr Pattinson then left the room;
• The applicant says that he did not react to this attack and a short while later Mr Pattinson returned to the room saying “I’m not leaving here today without finishing you up”.
The applicant says that:
• There was no reason given for his dismissal;
• He did not have the opportunity to respond;
• He was also not given the opportunity to have a support person present;
• The company car used by the applicant was taken from him by the respondent on that day and Mr Van Hooft offered to drive the applicant to his residence;
• The applicant claims that when he asked Mr Van Hooft if he knew why Mr Pattinson had dismissed him, Mr Van Hooft’s response was “I have got no idea, I don’t know what just happened”;
• On the day after the summary dismissal, the applicant received the Notice of Termination correspondence;
• The applicant states that he had not previously been made aware that his performance was lacking and that this had placed his employment in jeopardy;
• At the time of his three month performance review, the applicant was told he was performing well and was given a company vehicle and a $10,000 pay increase;
• Some two weeks prior to the dismissal in a performance review meeting with both Mr Van Hooft and Mr Pattinson, the applicant was advised that he was performing his work well;
• The harshness of the dismissal was evident from the dismissal occurring three days prior to Christmas; two weeks prior to the applicant’s wife giving birth to the couple’s fourth child; while the applicant was in the process of purchasing a new family vehicle together with having to deal with other domestic necessities;
• The applicant has had to advise prospective employers that he was instantly dismissed from his prior employment. The applicant is a New Zealand citizen and has not been able to access Centrelink payments during his period of unemployment;
• The applicant has attempted to mitigate his losses but has been unsuccessful in obtaining work. He does not seek to be reinstated to his position, but in lieu thereof, compensation of between 8 to 12 weeks wages.
[6] The respondent’s statement (Exhibit 5) was as follows.
• The applicant had signed a sales agreement where he agreed to a $200,000 a month sales average;
• The applicant’s sales average was $26,560.00 per month based on the previous 6 months review;
• Weekly sales meetings were held with all staff. Sales performance of all staff was discussed at these meetings. The applicant was directly advised each week that his sales performance needed improvement. The applicant knew that if his sales performance remained poor then his employment could be terminated. The latest meeting was held on 1 December 2009;
• In December, the respondent became aware that the applicant had made a sale which was sold at or under cost. The respondent stood to lose financially out of this transaction;
• On 22 December 2009, Mr Van Hooft met with the applicant to discuss this sale. Mr Pattinson sought to reconvene the meeting to discuss the applicant’s sales performance. The respondent believed that the applicant could not make the level of sales required in the immediate future and the decision was made to terminate his employment;
• The respondent contends that many prior warnings had been given to the applicant concerning his work performance;
• The applicant had been provided with adequate training in relation to company systems, pricing templates and sales procedures;
• During the weekly sales meetings, the applicant had the opportunity to request assistance.
[7] During the course of giving evidence before the Tribunal, the applicant stated that while weekly sales meetings were held, it was not the case that individual performance of salespersons was discussed. There were three salespersons in the group and all were addressed collectively.
[8] The applicant challenged the respondent’s statement that a performance review meeting was held on 1 December 2009. There was a meeting of this type held on 4 December 2009 however, the applicant had not sighted what was termed “the Campac Internal Performance Review Staff” until one day before this hearing.
[9] The respondent had produced a document entitled “Sales Report for Nigel Martin – July 09 to December 09”. That document has sales statistics within it which differ from the sales document which was given to the applicant on 23 December 2009. The applicant viewed the respondent’s document as fraudulent. The respondent’s document failed to mention two particular sales, being Greenlee Enterprises and Palmwoods Caravan Park.
[10] The applicant claimed that he had never been warned either in writing or verbally by the respondent with regard to his work performance. The only reference to his work performance was supplied in correspondence to the applicant the day after his employment was terminated.
[11] The respondent agreed that the Performance Review document to which the applicant had referred, was a document kept as the respondent’s personal records. The respondent agreed that it had not gone through the results of that Performance Review with the applicant prior to his dismissal.
[12] The respondent stated that it had incorrectly recorded the budget which had to be met by the applicant as $250,000 per annum. It was in fact $200,000 per annum.
[13] The respondent agreed that it had erred in not including the property Greenlee Enterprises in the sales reporting system pertaining to the applicant. The respondent did not agree that the Palmwoods Caravan Park sale should be registered as a sale until the customer had paid a deposit. This had not occurred.
[14] The respondent agreed that it had not paid the applicant one week’s pay in lieu of notice as per its letter of Termination.
[15] The respondent agreed that the applicant’s concerns regarding the lack of any complaints about his work performance were “partly correct”. The respondent agreed with the applicant that the sales team were addressed as a sales group and not as individuals. However, the respondent stated that it had addressed the applicant personally in December about his performance generally.
[16] The respondent agreed that there was no reason given to the applicant for the termination of his employment at the meeting of 22 December 2009.
[17] The respondent stated that there had been a meeting between himself, Mr Pattinson and the applicant concerning sales performance on 22 December 2008. The applicant did not respond to many of the questions posed by Mr Pattinson, however, the applicant allegedly tore up a contract that he was holding.
[18] The respondent did not recall saying to the applicant that he did not know why the applicant had been dismissed, however he did state “I recall that I did sympathise with Mr Martin, because the fact he was just terminated and whatever reason that was for was uncomfortable”.
[19] While the respondent stated that the applicant’s employment was terminated because of his poor performance, when asked whether that was put to the applicant at the meeting of 22 December 2009, the respondent stated “I can’t clearly say that that was portrayed across at the end of the meeting, because the meeting got quite heated”.
CONSIDERATION OF THE EVIDENCE AND CONCLUSION
The parties represented themselves, and there were no submissions made around the requirements of the Act or any relevant case law.
S. 386 of the Act states as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his of 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.”
The evidence, from both witnesses, shows that the termination of employment occurred at the employer’s initiative.
S. 397 of the Act cites the criteria for consideration as to whether the termination was harsh, unjust or unreasonable.
“387 Criteria for Considering Harshness etc...
[20] 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 size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal’ and
(h) the degree to which the absence of dedicated human resource management procedures followed in effecting the dismissal; and
(i) any other matters that FWA considers relevant.
[21] I have not accepted that there was a valid reason for the termination of employment.
[22] When considering the requirements of s. 387, I have accepted the largely uncontradicted evidence of the applicant as to the manner in which the dismissal occurred.
[23] The respondent agreed that sales meetings were held with the three salespersons in attendance (including the applicant) and that whatever warning was given by the respondent regarding sales performance, was given to the group collectively. While this may constitute a ‘group warning’, it would not be sufficient to constitute the type of warning envisaged by the Act.
[24] It was agreed by the respondent that the applicant had not seen his performance review documentation until immediately prior to this hearing.
[25] The applicant was not given the reasons for his dismissal until he received correspondence from the respondent on the following day.
[26] In all respects, the dismissal of the applicant was harsh, unjust and unreasonable.
[27] The applicant does not seek reinstatement to his formerly held position.
[28] In determining to order that compensation be paid to the applicant (s. 390), I accept the applicant’s submissions that reinstatement would be inappropriate and that the payment of compensation is appropriate in all the circumstances of the case.
[29] The applicant calculates his loss as representing twelve weeks of wages which he would have received if he had not been dismissed 391(1A)(c). This calculation is accepted as is the applicant’s evidence that he has made every effort to mitigate his loss 391(1A)(b). The applicant has not received any remuneration in the intervening period 391(1A)(c).
[30] I make the order that within fourteen days of this decision the Respondent is to pay to Mr Martin a gross sum equalling 12 weeks of his former wages to be taxed as appropriate. If the parties are unable to agree on the exact quantum to be paid, then the matter should revert back to the Tribunal for determination
DEPUTY PRESIDENT
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