Mr. Scott Harrison v RA & Ce Napier Investments Pty Ltd ATF the Napier Family Trust & Mairin Investments Pty Ltd ATF the Ivers Family Trust T/A Magnetic Island Real Estate and Magnetic Island First National Real Estate
[2010] FWA 3690
•18 MAY 2010
[2010] FWA 3690 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr. Scott Harrison
v
RA & CE Napier Investments Pty Ltd ATF The Napier Family Trust & Mairin Investments Pty Ltd ATF The Ivers Family Trust T/A Magnetic Island Real Estate and Magnetic Island First National Real Estate
(U2009/14781)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 18 MAY 2010 |
Unfair dismissal – real estate industry – duty to keep employer informed – whether Applicant’s conduct amounted to serious misconduct – small business unfair dismissal code.
[1] Mr. Scott Harrison, (“the Applicant”) made application under s.394 of the Fair Work Act 2009 (“the FW Act”) on 18 December 2009, seeking an unfair dismissal remedy in respect of the termination of his employment by RA & CE Napier Investments Pty Ltd ATF The Napier Family Trust & Mairin Investments Pty Ltd ATF The Ivers Family Trust T/A Magnetic Island Real Estate (“the Respondent”).
[2] The Applicant had been employed as a real estate agent by the Respondent since September 2008. The Applicant was notified of his dismissal on (and the dismissal took effect from) 4 December 2009. The Applicant was verbally informed that the Respondent would need to “let him go” at a meeting held that day, which was conducted between the Respondent’s two Principals (Mr. Napier and Mr. Ivers) and the Applicant.
[3] Some background is warranted before turning to the directly relevant particulars.
[4] Prior to the meeting of 4 December 2009, an earlier meeting had occurred between the Mr. Napier of the Respondent and the Applicant. On the account of Mr. Napier it appeared to have been an acrimonious meeting.
[5] Mr. Napier contends that on or about 20 November 2009 he requested the Applicant to attend a meeting concerning a number of sales in which the Applicant had been involved in which some difficulties had arisen. The discussion appears to have followed an earlier meeting which concerned the Applicant’s listing practices and a vexed issue as to whether any one sales person had a monopoly on a sale or listing enquiry that had been directed to the business. Mr. Napier was of the view the Applicant had confused a technical issue about how emails were redirected on the relevant website, but in any event had also attempted to monopolise sales that should have been available to the wider office. The Applicant was of the view Mr. Napier had been acting to take sales opportunities away from him.
[6] Over the course of that meeting of 20 November 2009 the Applicant, on Mr Napier’s account, became agitated and referred to him (being Mr. Ross Napier) and his business partner, Mr. Ian Ivers as “scum-bags” and “sleaze bags”. The Applicant was also said to have referred to Mr. Napier and Mr. Ives as “scum” and accused them of “grubby tactics”. At that time Mr. Napier contends that he warned the Applicant that his conduct could result in his employment being terminated. 1
[7] The Applicant, it is said, was asked to leave the office and think about his conduct. The Applicant is said at that time to have resigned his employment:
“He stood up came to my side of the desk and told me to “get stuffed” and to shove our job and that he did not want to work with sleaze-bags.” 2
[8] Mr. Ivers’ evidence was that the Applicant telephoned him and indicated that he had resigned his employment with the Respondent following the confrontation with Mr. Napier.
[9] Mr. Ivers endorsed the Applicant taking some time off and that a meeting would be arranged the following week, which was conveyed to Mr. Napier. 3
[10] As a consequence, it appears the Respondent (through Mr. Ivers’ intervention) refused to accept the repudiation of the Applicant’s employment contract (by way of the express resignation, which was given in a confrontational context), or otherwise to act to end the employment relationship.
[11] For his part, the Applicant denied any improper language or that he resigned his employment.
[12] Having heard the evidence of the three witnesses in these regards, I am of the view that the Applicant resigned his employment on 20 November 20009 in an impulsive moment but was persuaded by Mr. Ivers to continue in the Respondent’s service, an outcome that Mr. Napier did not contest, despite believing the Applicant had “quit” his job.
[13] The interlocking evidence of Mr. Ivers and Mr. Napier (which arises from a different context entirely) is persuasive. I do not make any finding as to whether the Applicant spoke abusively at the meeting of 20 November 2009; the evidence suggests that both Mr. Napier and the Applicant were in an agitated state at the time. 4
[14] Over the course of the following week, the Respondent was advised of two complaints about the Applicant’s conduct.
[15] The first of these involved a couple, Mr. and Mrs. Bell, who sought to purchase a block of land through the agency of the Applicant. The complaint was received in writing on 25 November 2010. The complaint had its origins in the sale of a block of land in August of 2009. 5
[16] The second complaint concerns a complaint by a past purchaser and purported client of the Respondent, Ms. Judith Ross. 6
[17] The first complaint arose from the conduct of the Applicant in the sale of block of land in August 2009. After inspecting at their own initiative the advertised block of land, Mr. and Mrs. Bell decided to purchase what they believed to be the block as advertised and executed the contract at the Applicant’s place of work.
[18] It is agreed that the contract of sale was executed in relation to the wrong block. The block the Bells had intended to purchase was an adjacent property to the one the Bells mistakenly purchased (which was the block advertised by the Respondent).
[19] The Bells’ claim in their letter of complaint that even after they and the Applicant drove to the blocks in question, the Applicant was unable for some time to discern the differences between the blocks until the dimensions and maps were explained to him. They say the Applicant was profoundly apologetic upon concluding that the wrong block of land had been purchased.
[20] The Applicant appeared to suggest in his evidence that the confusion arose from the couple’s refusal to be personally shown the property in question at the time of the purchase (owing to their desire to catch a return ferry).
[21] The Applicant conceded over the course of his evidence that he did not check, prior to the contracts for sale being executed, that the block of land the Bells had indicated they wished to purchase was indeed the block he was selling them. He assumed that this was the case and that the Bells possessed the appropriate knowledge. 7
[22] The letter of complaint focused upon an allegation that the Applicant had offered to provide $500.00 from his commission to assist in meeting the cost of tree removal if the Bells elected not to retract the contract but to continue with their purchase of the non-preferred block.
[23] It appears that the reason the couple did not wish to purchase the block that was sold to them because there were a number of large trees on it that would be required to be removed.
[24] Mr. and Mrs. Bell decided to continue with the purchase of the non-preferred block. There is no contest that the Applicant informed the Bells that they were entitled to rescind the contract under the cooling off period provided for in the standard contract. The reason the Bells decided to continue with the purchase appears to be because the vendors of the block they had preferred were non-negotiable on price.
[25] The matter fell into abeyance over the next few months after the Bells obtained various council approvals.
[26] Thereafter the Bells and the Applicant fell into dispute about what monies the Applicant had undertaken to give them at the point of sale to offset the costs of the removal of trees.
[27] The Applicant claimed he arranged a heavily discounted quote for the removal of the trees, and that he undertook to give the Bells $500.00 if the costs of removing the small number of trees initially indicated as being problematic was $2,000.00 or higher if the Bells’ agreed to enter into a land and building contract. 8
[28] The Bells’ have no such recollection. They recalled a cheap quote being verbally conveyed to them by the driver of a car owned by a tree lopping a service that happened by when they were standing on their block of land. But that person was not contactable after that time and they were required to resort to another tree lopping service. They gave further evidence – which was the thrust of their essential complaint – that the Applicant had promised them $500.00 from his commission to compensate for the requirement to remove the trees, and that had reneged on that undertaking. 9
[29] The evidence of the Bells’ disputed the Applicant’s claim that the offer of $500.00 was subject to certain conditions. I note that in the email exchanges between the Bells and the Applicant set out below, the Applicant makes no reference to the preconditions to which his offer was apparently subject. 10
[30] The couple in question, after some effort, subsequently obtained a quotation for the removal of a larger number of the trees (at $3000.00) and contacted the Applicant for payment of the $500.00 as promised.
[31] The Applicant, it is alleged by the couple, stated that he would give them $250.00 instead. 11
[32] There appears to have been a telephone conversation from the couple to the Applicant from the Respondent’s office (with the Applicant being on the telephone). That conversation appears to have ended abruptly. The Applicant appears to have alleged that the couple had thrown the telephone at a staff member of the Respondent. The couple in question appears to state that when they were hung up upon by the Applicant, they let the phone drop to the desk. 12
[33] The Applicant made reference over the proceedings that upon reflection it was probably inappropriate for him to have hung up on the Bells during that conversation, which supports the Bell’s version of events. 13
[34] Immediately following that telephone conversation, as it was, the Bells and the Applicant entered into an email exchange about the same matter. The Bells sought the payment of the $500.00 and stated that they might make public comment if the Applicant did not make the payment to which they believed they were entitled.
[35] The Applicant’s email in reply stated as follows
“I offered you at the point of sale 20% of the estimated cost of 2 trees. Yesterday I offered 35% of what you should have paid for 2 trees, after how many months on your terms and you demand, threaten me, abuse my work colleagues and throw a phone. I now withdraw my offer.
“On the day of inspection I offered to drive you to the site, which you refused, if you didn’t, the confusion would not have resulted. I do not take your threats very well, and am happy not to include you on my list of happy clients, I have 25 years history here and have a good reputation which helps me in my business, bring your grubby tactics or dirty my name here and I will make no threats.” (sic).
[36] The second complaint about the Applicant’s conduct, referred to above, concerned an incident which involved a dispute between the Applicant as the property manager of a renovation and the next door neighbour over a property line issue (involving the construction of a fence). The incident occurred late on a Saturday afternoon on 28 November 2009. The Respondent received a written and a verbal compliant that the Applicant had physically assaulted a neighbour (by striking him) and damaged their property (by doing burnouts on their new turf).
[37] A witness 14 to the incident who appeared on behalf of the Applicant contended that the Applicant had been taunted by the next door neighbour who had refused to cooperate in the resolution of the property line dispute. The witness’s evidence did not correlate perfectly with the structure of the incident put forward by the Applicant, but that is not a matter that requires further exploration (for reasons that will be clear below).
[38] The complaint the Respondent received was in the form of a request (from Ms. Judith Ross, a known former and purportedly current client of the Respondent) to have the Applicant removed from her property as he was shouting and harassing her partner, Mr. Kevin Corrigan, her partner. 15
[39] Ms. Ross claimed the incident turned into a physical altercation, though she did not directly see the point of any contact. 16
[40] Ms. Ross telephoned Mr. Ivers at the height of the confrontation and requested that he remove Mr. Harrison from her property. Mr. Ivers gave evidence that he could hear the Applicant’s raised voice and his aggressive language.
[41] Mr. Ivers subsequently discovered that the Applicant (in the context of the above dispute) had been engaged as a project manager for the renovations of a property (which appear to have amounted to $180,000.00) by the purchaser of that property which he (the Applicant) had sold in the course of his duties as an employee of the Respondent (earlier in the year). 17 It was in the course of these renovations that the Applicant had come into conflict with the next door neighbour, as earlier outlined.
[42] In respect of the first incident, Mr. Napier and Mr. Ives, upon receiving the letter of complaint by the Bells on 25 November 2009, invited them to attend an interview on the morning of Friday, 4 December 2009. After interviewing the Bells firstly, it conducted a meeting with the Applicant on 4 December 2009. At that meeting Mr. Napier claimed when the complaint by the Bells was brought to the Applicant’s attention he stated that it was “all sorted out”, and that he had never offered to defray the couple’s costs personally, and had only indicated that he would get them a good deal on the price for removal of the trees.
[43] When he was shown the email complaint referred to above, which made express reference to the Applicant having offered money to the couple in question, the Respondent claims the Applicant responded by stating the Bells were threatening him. 18
[44] When he was asked to explain the following email comment to the Bells:
“bring your grubby tactics or dirty my name here and I will make no threats”
the Applicant became agitated and showed no remorse and offered no apology. 19
[45] The Applicant denied that the Respondent had any time over the meeting of 4 December 2009 raised with him any matter in relation to the Bells’ complaint.
[46] On the evidence, however, I cannot accept that this was the case. Mr. Napier and Mr. Ivers both recounted that the Bells’ complaint had been raised. Mr. Napier’s evidence was elaborate as to the structure of the conversation. Mr. Ivers’ evidence less so because, it would appear, that he was less engaged in the dismissal process than Mr. Napier and he was distracted by the requirement to exit the meeting and catch the ferry to the mainland. But irrespective of this, their evidence taken together was persuasive of the fact that the Bells’ issues were aired in the meeting of 4 December 2009 (though he may not have been shown the physical emails to which Messers Ivers and Napier referred to).
[47] I am less convinced by far that the any issue in relation Ms. Ross was raised with the Applicant before the point at which he was informed that he would be “let go”. The evidence of Mr. Napier and Mr. Ivers diverged that this juncture. On the balance of probability, the discussion about the Applicant’s conduct in relation to Ms. Ross came after the Applicant was notified that his employment had been terminated, and was not put to him prior to that notification.
[48] Mr. Ivers appears to have concluded that the apparent offer of money to defray the costs of the removal of the trees by the Applicant constituted an inducement to not withdraw from their contract when the Applicant had sold them the wrong block of land, and was unprofessional. 20 Mr. Ivers was of the view that he had never heard in his 37 years in the business of a circumstance in which a real estate salesperson had acted to make a payment from his commission in such circumstances as this, and certainly without the knowledge of the Principal(s).21
[49] It is to pointed out at this juncture that the conduct of real estate sales people is subject to a code of conduct- the Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulations 2001 (“the Regulations”). Mr Ivers was concerned that a perception of an inducement not to withdraw from a contract might arise from the Applicant’s conduct. 22
[50] It appears both Mr. Napier and Mr. Ivers reached a view before the meeting on the afternoon of 4 December 2009 that the Applicant’s conduct overall (taking into account his conduct in relation to Ms. Ross) was unprofessional and that he was not trustworthy in so far as he had not made any substantive information available to them about the Bells’, including not mentioning any offer of monies having been made to them.
[51] The Applicant contends that the actual reason for his dismissal was that Mr. Napier had fallen into dispute with him for reason of Mr. Napier’s continuing practice of diverting internet email inquiries away from the Applicant. 23 It was this difficulty in their relationship that was the cause of the tension in the meeting of 20 November 2009, which I have discussed earlier.
[52] Mr. Napier, it should be said, rejected these claims and contended that the issue of the emails was party technical and partly a matter of reasonable management direction. In the former case, Mr. Napier contended that a fault in the way the links were set up on the web site in the web site meant that all incoming email were being diverted the default office email address. In the latter instance, Mr. Napier claimed that the Applicant refused to recognize that not all listings that came into the office were listings that he could monopolise by placing his name on them exclusively. There were other office staff who were trying to make sales, as well as Mr. Ivers and himself.
CONSIDERATION
[53] Section 387 of the FW Act reads as follows:
“387 Criteria for considering harshness etc.
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.”
Section 387(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)
[54] Much was made in relation to this matter about the altercation between the Applicant and Ms. Ross and her partner on the afternoon of Saturday 28 November 2009. I am not convinced that this is an incident that has a sufficient nexus with the Respondent as the employer. It is not therefore conduct that is related to the employment relationship.
[55] The Applicant was not pursuing any duties at the direction of his employer, the Applicant was at the time pursuing duties on behalf of another employer, and the main incident appears to have concerned Ms. Ross’ partner, who has no connection with the employer himself, and about whom the evidence suggests was likely contributor to the altercation (the detail of which in any event remains obscure and indeterminate).
[56] At best the incident might be suggestive of a propensity for the Applicant to find it difficult to manage confrontation in his professional life, but there is little more I can meaningfully draw from such an incident.
[57] Further, I can appreciate that a real estate business, perhaps like other businesses that rely on goodwill and positive community perceptions, might be anxious about the personal conduct of one of its employees. But I do not think this one incident is sufficient to conclude that the Applicant’s conduct put the Respondent’s brand, reputation and business viability at risk.
[58] The conduct of real estate salespersons is regulated by statute, as well, and the conduct of a salesperson, potentially outside of the direct employment relationship, arguably might be relevant to the ability of that person to represent themselves as being reputable, fair and honest.
[59] But again, I see nothing in the incident of 28 November 2008 as being relevant in this regard. Indeed, the facts of the confrontation on Ms. Ross’ property on 28 November 2009 area far from settled on the evidence before me.
[60] It appears to me, however, that other elements of the Applicant’s conduct is indeed relevant to a finding as to whether there was a valid reason for the termination of his employment.
[61] In my view, the Applicant owed a duty to his employer (and to both the Principals of the Respondent) to bring to their attention all elements of the dispute into which he had fallen with a client of the Respondent – the Bells in this instance.
[62] He did not do so.
[63] I accept the evidence of both Mr. Napier and Mr. Ivers that the Applicant had brought no substantive information to their attention about the full scope of his dealings with the Bells. 24 This extends to the:
- problematic sale of the property and the practices that led to this;
- offer to provide a financial offset from his commission in the event that the Bells did not rescind the contract of sale (and any conditionality to which that offset was subject); and
- ultimate and acrimonious dispute he fell into with the Bells (including his claim to the Bells that they had threatened a staff member of the Respondent and the course of action the Bells indicated they might embark upon if their claim was resolved).
[64] This latter matter gave rise to what must have been a heated telephone conversation, and an email exchange with a client of the Respondent in which the Applicant responded to the Bells in an aggressive tone that is demonstrably unprofessional (regardless of the provocation).
[65] These are all matters of substance which go to the reputation and standing of the Respondent and which may have ultimately exposed them to a liability under the relevant statute or a perception thereof. They are matters about which a salesperson should have at all times kept his employer fully informed.
[66] They are matters the Principals rightly regarded, in my view, as serious matters that required a disciplinary response.
[67] I do not accept the Applicant’s argument, as it was, that neither of the two Principals were effectively able to be communicated with between August and December of 2009. There appears to have been a number of occasions on which they had been in discussions about workplace matters of one kind or another.
[68] The evidence is sufficient to illuminate that the Applicant elicited no willingness to reconstruct his relationship with the Bells, and showed no empathy for his employers’ concerns about its reputation let alone any sensitivity to perceptions of improper conduct.
[69] Because of this, the Respondent had little confidence whatsoever that the Applicant’s future conduct might faithfully reflect the standard of conduct it required of a professional salesperson.
[70] It appears to me in the circumstances I have discussed that the Respondent’s decision to terminate the Applicant’s employment was warranted in the circumstances as the Applicant’s conduct had established a valid reason for the termination of his employment.
[71] Having so concluded, I add that I do not share the view expressed by the Respondent that the Applicant’s conduct was serious misconduct such that it was relevant to the small business unfair dismissal code (which the Applicant attracts at first instance for reason of its number of full time equivalent employees). The small business unfair dismissal code relevantly reads as follows:
“Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
[72] There will be a large set of conduct in the workplace that give rise to termination of employment, but I very much doubt that the statute intends to draw such a wide arc as to the scope of meaning of serious misconduct. The Applicant’s conduct gave rise to a valid reason for dismissal, but I do not seek to characterise it as serious misconduct, such that might warrant summary dismissal and is akin to other well known expressions of such misconduct (such as theft, drug usage, workplace violence etc) which warrant summary termination of employment.
[73] There are also other reasons set out below of a procedural kind which demonstrate that the Respondent’s conduct in effecting the dismissal was not consistent with procedural requirements of the small business unfair dismissal code.
Section 387(b) whether the person was notified of that reason
[74] The Applicant claims that he was not notified of the reasons for the dismissal but was informed that, “We are going to have to let you go” and a demand was made for the office keys to be returned. 25
[75] It does not appear to me that the Applicant was notified formally in advance of the decision to terminate his employment of the particularised reasons for that decision.
[76] It might reasonably be expected that having had the issue of the Bells incident discussed briefly with him that he might have reasonably surmised one of the reasons for the dismissal.
[77] But beyond that, I cannot conclude on the evidence before me that Respondent identified the reason for the termination of the Applicant’s employment expressly and communicated the same to him unambiguously.
Section 387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[78] The Applicant contended that he was not given any explanation for his dismissal and as a consequence was not given any opportunity to reply to the reasons for the dismissal, which were never provided to him. He contends that the letters of complaint were firstly revealed to him over the course of the conciliation conference.
[79] The Applicant and the Respondent (through Mr. Napier and Mr. Ives) held a meeting on 4 December 2009 at which all the relevant issues as they then saw them were canvassed and the Applicant permitted to respond.
[80] I am not so persuaded.
[81] The evidence in this matter suggests that the meeting of 4 December 2009 was very short – perhaps at best some few minutes only of direct communication with the Applicant. In that time there can only have been a cursory exploration of the Bells’ issues, which were somewhat complex and extended over a period of time.
[82] I cannot conclude that on the balance of probability the Applicant had a genuine opportunity to respond to the allegations that formed the reasons in the Respondent’s mind for the termination of his employment.
[83] The evidence is more persuasive of the conclusion that Mr. Ivers and Mr. Napier conducted a discussion before meeting with the Applicant and concluded themselves that termination was the necessary outcome. All other process after that was perfunctory and not carried out with a view to extending any procedural fairness to the Applicant.
[84] That said, the Applicant’s response to the Bells’ incident demonstrated that he was disinclined to reflect on his conduct, was not remorseful and continued to blame the clients for the predicament that had emerged, and showed no empathy – as I stated above – for the sensitivities of such client disputes of such a kind.
[85] Even over the course of these proceedings the Applicant showed no willingness to concede any points in relation to how he managed his professional relationship with the Bells; bar conceding in passing that he should not have hung up the telephone on Mr. Bell in the conversation of (what appears to have been) 17 November 2009. 26
[86] I very much doubt that any opportunity provided to the Applicant to respond to the allegations – so far as they extended to the Bells – would not have given course for the Respondent to change the course it had elected to pursue.
Section 387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions
[87] It does not appear that the Applicant was afforded any opportunity to be represented at the interview which resulted in the termination of his employment.
[88] The circumstances of the termination (including the short duration of the meeting) were such that the Applicant was not advised of the purpose of the meeting he was invited to attend and had no reason to enter the meeting on the basis he might require the attendance of a support person.
[89] The Applicant made no request for a support person because he had no prior knowledge that one might be needed.
[90] In any event, however, the Applicant did not agitate this matter at any point in his evidence or his submissions, though his reasons for not doing so may be ignorance of the legislative provisions as much as anything else.
Section 387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[91] The matter before me principally concerns the Applicant’s conduct.
[92] There is an implied element of a performance related concern within the Respondent’s claims. That concern relates to the ability of the Applicant to perform his duties as a sales person professionally in so far as he failed to identify accurately the block of land to which a contract of sale applied at the time of the execution of the contract.
[93] That said, it is the Applicant's conduct that has been the principal focus of these proceedings and little was made of the Applicant’s performance of his duties.
Section 387(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
[94] The Respondent is a small business employing some 7 full time equivalent employees. For reasons discussed below there is a strong likelihood that the size of the employer’s enterprise impacted upon the procedures it applied in effecting the termination of the Applicant's employment.
[95] Notwithstanding that, the Respondent was legally represented over the course of the proceedings and nothing was put to me in these regards.
Section 387(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
[96] The Respondent did not have any demonstrable human resource capabilities whatsoever. It is likely the absence of those resources impacted on the perfunctory manner of the termination of the Applicant's employment.
[97] Again, notwithstanding that, the Respondent was legally represented over the course of the proceedings and nothing was put to me in these regards.
Section 387(h) any other matters that FWA considers relevant
[98] I am aware that the Applicant and the Respondent had come into conflict on matters other than those issues arising from the two incidents discussed above. These matters, which include rivalries for commissions and sales contacts, sat behind the acrimonious meeting of 20 November 2009, which, as I have found above, gave reason for the Applicant to resign his employment.
[99] These matters simply demonstrate that the Applicant’s relationship with his employer was under some measure of stress prior to the termination of his employment.
[100] But these matters are unrelated to the incidents that came to the Respondent’s knowledge in the last weeks of November 2009, and which informed its decision making in relation to the Applicant’s employment.
[101] Indeed, if there had been any underlying agenda to terminate the Applicant’s employment, as the Applicant contended, Mr. Ives would never have had granted the Applicant scope to withdraw his impulsive resignation on 20 November 2009, and presumably Mr. Napier would not have complied with that course of action.
[102] I note that the Applicant was not an employee of the Respondent for an extended duration. The Applicant was employed for about 14 months.
[103] I have considered other aspects of the circumstances relevant to this matter. The Applicant claims that he has not received outstanding commissions or his annual leave entitlement. The parties remain locked in dispute in so far as the method of calculation of the Applicant’s remuneration, the precise structure of his remuneration package (and whether it incorporated a set-off arrangement) and what precise leave entitlement is owing (and at what rate it is to be paid).
[104] Such matters might be actionable in another place in light of my decision below.
[105] I have also kept in mind that the Applicant was summarily terminated from his employment and that the loss of notice there-from may go to matters of harshness. Yet, in this regard, attention also must be given to the relatively short of the Applicant’s employment.
CONCLUSION
[106] I consider the procedural deficiencies and the summary dismissal of the Applicant to have some elements of harshness about them. But these are offset by the practical implication of the procedural deficiencies for the decision to terminate the Applicant’s employment and the short duration of his employment. I am not inclined to reach a finding of harshness overall. All matters such as these are moderated by the circumstances of the case, as I have set them out.
[107] Therefore, having had regard to the relevant statutory concerns as matters of genuine significance, and in view of the above discussion and findings, I do not find, on balance, that the Applicant’s employment was terminated harshly, unjustly or unreasonably. Overall, the Applicant’s conduct bought into serious question the capacity of his employer to vest in him the necessary trust and confidence to execute his professional duties into the future. As a consequence, the application before me for a dismissal remedy under s.394 of the FW Act is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr. S. Harrison for himself
Mr. C. Turnbull of Lee Turnbull & Co for the Respondent
Hearing details:
2010.
Townsville.
May 6 and 7.
1 Statement of Mr. Ross Napier dated 27 April 2010 at PN 2
2 Statement of Mr. Ross Napier dated 27 April 2010 at PN 3
3 Statement of Mr. Ross Napier dated 27 April 2010 at PN 5
4 Transcript of Proceedings dated 7 May 2010 at 1669 – 1680
5 See Exhibit R5 being a letter from Mr. and Mrs. Bell to Messers Ivers and Napier dated 23 November 2009
6 See Exhibit R4 being a letter from Ms. Judy Ross to Mr. Ivers and Mr. Napier dated 23 January 2010
7 Transcript of Proceedings dated 6 May 2010 at PN 421 - 431
8 Transcript of Proceedings dated 6 May 2010 at PN 409
9 Transcript of Proceedings dated 6 May 2010 at PN 925
10 Transcript of Proceedings dated 6 May 2010 at PN 964 – 965 and 1029
11 See Exhibit R5 being a letter from Mr. and Mrs. Bell to Mr. Ivers and Mr. Napier dated 23 November 2009 at PN 10
12 Transcript of Proceedings dated 6 May 2010 at PN 1073 – 1076
13 Transcript of Proceedings dated 6 May 2010 at PN 409
14 See Witness Statement of Mr. Mark Bromley dated 10 December 2009
15 Statement of Mr Ian Ivers dated 22 April 2010 at PN 6; Transcript of Proceedings dated 7 May 2010 at 1805 - 1817
16 Statement of Mr Ian Ivers dated 22 April 2010 at PN 10
17 Statement of Mr John Boland dated 19 April 2010
18 Statement of Mr Ross Napier dated 27 April 2010 at Annexure 4
19 Statement of Mr Ross Napier dated 27 April 2010 at 9; Statement of Mr Ian Ivers dated 22 April 2010 at PN 2
20 Statement of Mr Ian Ivers dated 22 April 2010 at PN 4 and 5
21 Transcript of Proceedings dated 7 May 2010 at 1715 – 1718
22 Transcript of Proceedings dated 7 May 2010 at 1718
23 Statement of Mr. S Harrison dated 21 April 2010 at PN 2(ii)((n)-(v)
24 Transcript of Proceedings dated 7 May 2010 at 1587 – 1594 and 1717 – 1718
25 Statement of Mr. S Harrison dated 21 April 2010 at PN 2 (a) – (h)
26 Transcript of Proceedings dated 7 May 2010 at PN 409
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