Mr William Tate v 4WD & Outdoor Supacentre Pty Ltd T/A 4WD Supacentre
[2015] FWC 626
•1 APRIL 2015
| [2015] FWC 626 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr William Tate
v
4WD & Outdoor Supacentre Pty Ltd T/A 4WD Supacentre
(U2014/14430)
COMMISSIONER SIMPSON | BRISBANE, 1 APRIL 2015 |
Application for relief from unfair dismissal - Reasons for termination relied upon at time of termination did not provide a valid reason - After acquired knowledge justifies dismissal- Application dismissed.
[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr William Tate (“the Applicant”) who alleges that the termination of his employment with 4WD & Outdoor Supacentre Pty Ltd T/A 4WD Supacentre (“the Respondent”) was unfair in accordance with the definition contained within s.385 of the Act.
[2] The Respondent is a privately owned aftermarket 4WD and outdoor accessories business. The Applicant was employed by the Respondent on 1 March 2014 as a full time salesperson and his dismissal took effect on 7 October 2014, making his period of employment 7 months and 1 week. 1 The application was filed on 21 October 2014 and a conciliation conference was conducted on 13 November 2014 which was not successful in resolving the matter. The matter was listed for hearing on Thursday 12 February 2015 in Brisbane.
[3] The Respondents employed 24 employees including the Applicant at time of termination. No jurisdictional issues were raised by the Respondent. I am satisfied the Respondent is not a small business employer and the minimum employment period is six months. There was no dispute as to when the dismissal took effect, the parties agreeing that the termination took place over the phone on 7 October 2014.
[4] The Respondent said in its written submission that the Applicant was summarily dismissed for serious misconduct. The serious misconduct was alleged to be;
(a) Continued wilful neglect in carrying out his duties by failing to attend work after he had been directed to do so. The Applicant deliberately breached his employment contract at clause 5.
(b) The failure of the Applicant to attend for work brought about a safety issue for the employer in that there would only be one employee at the store that day. The Respondent required 2 people at the store in case there was a serious accident or a serious incident. The failure of the Applicant to attend work would cause financial loss to the Respondent’s business.
(c) The Applicant was informed on the 3 October 2014 to attend a particular store on 4 October 2014. The Applicant refused and when directed to do so refused again on the morning of the 4 October 2014. The direction to attend was a lawful and reasonable instruction that was consistent with the Applicants employment contract.
[5] The Respondent said that while no notice is required in cases of summary dismissal one week in lieu of notice was paid. The Respondent further material in response to the Application in addition to material filed in accordance with my directions on the basis that it said it became aware of other conduct of the Applicant after termination on which it wished to rely. These matters are dealt with below.
[6] The matter was dealt as a determinative conference. 2 Both parties were self-represented, although Ms Panucci an employee of the Respondent who ran its case is legally qualified. The Applicant was the only witness in his case and filed an initial statement 3 and a statement in reply.4 The Respondent called three witnesses Mr Christian Rolfe, the General Manager of the Respondent, who filed an initial statement5 and a further statement,6 Mr Lachlan Rolfe, Deputy General Manager who filed a statement,7 and Mr Tony Hyder, the Lawnton Store Manager who also filed a statement.8
Job Security
[7] The Applicant said that at the end of July 2014 the State Manager, Alistair Howard was made redundant along with different employees of the company. The Applicant said that he and Tony Hyder, a manager of a store where he worked, were concerned about their jobs and sought assurances that their jobs were secure. The Applicant said that they were called into the office of Lachlan Rolf who said that Charles Vella, the owner of the company wanted to talk to them.
[8] The Applicant said that Mr Vella said that their jobs were safe and that the performance of the branch was on a consistent up and in the upper end of the country. The Applicant said he asked Mr Vella if everything was okay because he was in the process of buying a house and about to go on leave for a month. The Applicant said that Mr Vella told him his performance was exceptional and he was not one of the people that needed to worry. The Applicant claimed that Mr Vella said that as he had always been one of the salesman that he “gets value out of” and not lacking in performance he had nothing to worry about. 9 The Applicant said that he would have started to look for work in August 2014 if he had been told there was going to be an issue.10
Alleged Performance Issues
[9] In its submissions the Respondent said that there were continuing performance and conduct issues with the Applicant that the Respondent had tried to overcome however they became progressively worse over his period of employment and had deteriorated rapidly after the Applicant returned from his one week annual leave with 3 weeks of leave without pay. The Applicant took leave from 4 August 2014 to 30 August 2014. It was claimed that the Respondent’s concern was that the Applicant had continually failed to follow instructions and his attitude towards work was progressively worse.
[10] Christian Rolfe, the General Manager of the Respondent gave evidence that the Applicant was engaged as a salesperson primarily at the Lawnton store and worked at the Slacks Creek store a handful of times.
[11] Lachlan Rolfe the Deputy General Manager is based at the Lawnton Store, and said his duties included overseeing the staff at all stores and that he worked with the Applicant daily. 11 He claimed there were issues from the start with the Applicant. He said he thought those issues could be ironed out but continued to escalate, particularly after the Applicant returned from leave in September.12
[12] Lachlan Rolfe claimed the Applicant was difficult to work alongside and he had many staff members complain about his attitude. Lachlan Rolfe said he did not address this issue with the Applicant (at the time) as he thought it was just personality clashes. The Applicant said that he was not told of any complaints from other staff. 13
[13] Mr Hyder said that he had to speak to the Applicant a couple of times about his performance, although most issues with the Applicants performance and conduct were dealt with by Lachlan Rolfe or Christian Rolfe. The Applicant said Mr Hyder never disciplined him. 14
Not doing daily banking
[14] Lachlan Rolfe said that in the first three weeks of September 2014 the store manager Tony Hyder took leave and the Applicant was asked to undertake the daily banking, however he did not do this as requested. Lachlan Rolfe said when the Applicant did the banking it would be done after a couple of days or even weekly. Lachlan Rolfe said that it was unacceptable to have cash left on the premises overnight, and he would explain to the Applicant it was part of his job to do the banking daily, the Applicant would agree, however he would need to repeat the same instruction again the next day. 15 Attached to his statement 16 is an email from Lachlan Rolfe to the Applicant dated 17 September indicating he had requested the Applicant to do the banking daily.
[15] The Applicant said that prior to Mr Hyder taking leave there was no banking procedure as far as he knew and banking was done when necessary not daily. The Applicant said that when Mr Hyder was away he ran the store by himself. He said the warehouse staff were of no assistance, and that Lachlan Rolfe only told him a couple of times to do the banking, and it was done. He said it was not part of his normal duties as it was the manager’s job. He said he had never done the banking before Mr Hyder took leave and was not offered any help or training. He said he struggled to get the banking done because he worked by himself all day with the customers. 17
Not completing daily log/daily reports
[16] Lachlan Rolfe said the Applicant would also not complete his daily log which was to go to the Chairman. He said he had to chase the Applicant about this. Mr Hyder said that he spoke to the Applicant in relation to the inconsistency of sending his daily log. It was supposed to be sent every afternoon before going home. Emails were sent to the Applicant on 29 September about his failure to do this. 18
[17] Mr Hyder said he rarely completed his daily log as he was directed. 19 The Applicant conceded that he did miss doing the log some afternoons so he would normally take the work lap top home to finish it in his own time. The Applicant said he told Mr Hyder at the end of the day when leaving that he would finish the log at home and Mr Hyder never objected. He said he was never told not to take the lap top home.20 The Applicant said his daily reports were submitted but sometimes they were late because he was busy with other duties.21 He said it was rare for him not to complete the daily log. He said if it was not done it was because he was extremely busy and he had insufficient time.22
Incorrect orders
[18] Lachlan Rolfe also said that the Applicant would constantly enter orders incorrectly into the point of sale system which causes inefficiencies and extra cost as clients would receive the wrong products. 23 Mr Hyder said the Applicant would rarely send through his daily report broken down as requested indicating cash sales as he was supposed to.24 Lachlan Rolfe attached to his statement emails sent to the Applicant about entering orders incorrectly dated 9 April, 25 14 May,26 5 September,27 15 September, 28 29 September,29 3 October,30 and 7 October.31
[19] The Applicant said that Mr Hyder would sometime enter orders incorrectly into the point sales system. 32 He said orders were entered incorrectly only rarely and even then it was only a simple error like a misspelt address not incorrect products. He said he was not given any training in the system and he was never issued a warning. He said he had one conversation about it with Lachlan where he was told to be more careful.33
Lateness
[20] Tony Hyder also said that he informed Lachlan Rolfe on numerous occasions that the Applicant was late to work. 34
[21] Christian Rolfe said he recollected saying to the Applicant during his employment;
“William you have to be more proactive at work.”
“William you need to make outbound calls to contact people to make sales.” 35
[22] The Applicant said that he was late to work by about ten minutes on several occasions and Mr Hyder did not make an issue of it. The Applicant said when he first started work with the Respondent he discussed with Lachlan Rolfe and obtained his verbal agreement that he have some leeway getting to work on time as he travelled over an hour to get to work each day. 36 Lachlan Rolfe accepted that this was discussed.37
Messy Warehouse
[23] Lachlan Rolfe claimed that the Applicant always left the warehouse messy after taking products out. He claimed he had several conversations with the Applicant about this as this was a work safety issue for him and all the staff. 38 The Applicant said he occasionally left a product out of place. He said the products were on pallets on the floor and visible. He said there was other warehouse staff present to put any products away. He accepted that Lachlan had spoken to him once about this.
25 September 2014 Email
[24] Christian Rolfe said the reason he needed the Applicant to be more proactive was because the Lawnton and Slacks Creek stores are remotely located and he needed the sales staff to show the maturity of working unsupervised. He said when the Applicant did not do this he began to lose confidence in him and his ability to carry out his duties. 39
[25] On 25 September Mr Christian Rolfe sent an email to the Applicant, c.c’d to Lachlan Rolfe which including the following:
“…..
Subject: Exhaust Competition
Importance: High
Hi Guys,
………………………………..
………………………………..
Will - I feel extremely let down by you at the moment. From all accounts I believe you didn’t call a single person after I asked you to yesterday. You didn’t send a progress report at days end and you haven’t even supplied you (sic) daily log.
This, as was yesterday’s request, is a directive and not an option.
I’ll call you guys to make sure the message gets through.
Thanks
Christian”
[26] Christian Rolfe said that the Applicant had failed to follow directions to call people for sales the day before, send a progress report at the days end and supply him with a daily log. 40
Was the Applicant Warned?
[27] The Applicant said in his witness statement that he was not aware of any warnings being given to him about non-performance. He claimed he was the second best performing salesman in the company; he was pro-active and did after hours work from home using his laptop supplied to him by the company. 41 He continued to maintain this view in oral evidence. 42 He described the various issues set out above characterised by the Respondent as performance issues as merely clerical errors and that everybody makes mistakes.43
[28] Christian Rolfe gave evidence that he believed his conversations with the Applicant were disciplinary in nature. 44 He agreed in oral evidence that the Applicant was not given any prior warning of termination before 7 October 2014.45 Lachlan Rolfe in his oral evidence elaborated on occasions where he raised concerns with the Applicants performance on a number of occasions, however also accepted that he never warned the Applicant.46 Mr Tony Hyder the Lawnton Store Manager also agreed that as far as he was aware there was no disciplinary action taken against the Applicant.47 He also agreed that Applicant worked hard, was usually busy, and carried out his work without complaint from Mr Hyder.
[29] In summary it is clear from the evidence that representatives of the Respondent had raised on repeated occasions issues with the Applicant about his performance. The Applicant himself accepts he was spoken to about issues concerning the daily banking, non completion of the daily log and reports being repeatedly entered incorrectly as well as not putting products away in the warehouse. The email of 25 September from the Christian Rolfe to the Applicant as set out above includes the language “...I feel extremely let down by you at the moment...”in the context of his view that the Applicant had failed to comply with a direction from him. Whilst it is clear the Applicant was never warned his employment was in jeopardy the evidence suggests he should have been aware the Respondent was unhappy with how he was performing in the lead up to his termination.
Request to go home Friday 3 October
[30] Lachlan Rolfe said that on or around 2 October 2014 the Applicant called him on his mobile. It was later clarified this was in fact Friday 3 October. Lachlan Rolfe said that the Applicant was at the Slacks Creek store and there was only one other staff member at the store. He said he had the following conversation with the Applicant:
“Applicant: “Hi Lachlan its extremely quiet down hear (sic) today. I just bought a new house and I have a fence to build. Do you mind if I leave at 12.00 pm to go and build my fence.
Lachlan Rolfe: Firstly no, as being a sales person you are expected to make $3,500 worth of sales a day so being quiet isn’t a reason to go home. You need to stay.
Applicant: I want to go home.
Lachlan Rolfe: I’m saying no but feel free to ask Christian but I strongly advise you not to.” ”
[31] Lachlan Rolfe said that to the best of his knowledge the Applicant remained at work. 48 Christian Rolfe said that on or around 2 or 3 October the Applicant called him on his mobile. Christian Rolfe said he believed the Applicant was at the Slacks Creek store and he was the second person in the store. Christian Rolfe said the Respondent always aims to have 2 people in the store for staff safety reasons. Christian Rolfe said they had the following conversation to the best of his recollection:
“Applicant: “Hi Christian sales are slow today and I’m thinking about going home. I could use the time to go and build a fence that I didn’t have time to do over the weekend”
Mr Rolfe: “No, you’re employed to do sales. You need to stay and do your job and continue to sell or go home and do not come back”
Applicant: “Oh I’m not feeling well”
Mr Rolfe: “If you’re feeling sick please go and get a Doctors certificate or get back to work.” ”
[32] Christian Rolfe said that to the best of his knowledge the Applicant remained at work. 49 Christian Rolfe was consistent in his version of this conversation during oral evidence. 50
[33] The Applicants version is different, saying Christian Rolfe merely said to him, “I don’t want you to go home” to which he replied “Ok”. He claimed that nothing was said about feeling sick. 51
[34] The Applicant’s version in his supplementary statement was that he said to Lachlan Rolfe:
“It’s extremely quiet down here, one person can easily take care of it, do you mind if I take unpaid leave to go build a fence.” 52
[35] The Applicant agreed in oral evidence that he contacted both Lachlan Rolfe and Christian Rolfe that day and said to both of them that he wanted to go home, and he told each of them he wanted to build a fence. 53 This contrasts with the version in his initial statement which included responses to material in the Respondents Form F3 Response to the Application and said as follows:
“the respondent has not provided details as the person it is alleged that I spoke to on or about 2 October . I did not say that I was thinking of leaving to build a fence at home. I did not have a conversation with any person as alleged. On one occasion I was feeling ill and brought it to the attention of the store manager, who told me that I would need to get a medical certificate if I took sick leave.” 54
[36] The Applicant accepted during cross examination that what he said in his initial statement in regard to this issue was incorrect. He said this was an error. 55 There is clearly an inconsistency between the Applicants first statement and his second statement and oral evidence on this point.
[37] There is also an inconsistency between the second statement of the Applicant on the matter of whether the Applicant said he was not feeling well or feeling sick. Christian Rolfe’s evidence is clear that the Applicant did say this after his request to build a fence had been refused. The Applicant’s second statement claimed “Nothing was said about not feeling well or feeling sick.” It is noted however that in the Applicant’s first statement, in the same paragraph where he denied saying he was thinking about leaving to build a fence (which he later accepted he did say), he did say on one occasion he was feeling ill and was told he would need a medical certificate if he took sick leave. The Applicant was cross examined over this and under cross examination initially denied ever being told that he needed a medical certificate if he was sick. He then said he had been told this if it was for more than one day. 56
[38] Having considered what appears to be another inconsistency between the Applicants first and second statements on this point, I am inclined on the balance of probability to prefer Christian Rolfe’s version of his conversation with the Applicant that day over the Applicants, that being that he did say in the course of the conversation on Friday 3 October that he was not feeling well. I am inclined to the view that contrary to the Applicant’s second statement, the conversation that the Applicant was referring to in his first statement 57 was a reference to the conversation with Christian Rolfe on 3 October.
[39] The two inconsistencies I have found in the Applicant’s evidence on the two points referred to above tends to influence my view in other cases of disputed evidence between the Applicant and witnesses for the Respondent.
Alleged Failure to follow a lawful direction
[40] Lachlan Rolfe said that on Friday 3 October he sent a text message to the Applicant requesting that he work in the Lawnton store the next day, as opposed to working at the Slacks Creek store. It was clear such a direction if made would be a lawful direction in accordance with his employment contract. The Applicant’s hours included Saturday’s at either Lawnton or Slacks Creek, and his work hours were 8am to12 midday for Saturdays. This is clearly set out in the Applicant’s employment contract and the Applicant did not dispute this.
[41] The texts messages exchanged were as follows:
“Frid 3 Oct 2.57pm
Lachlan Rolfe “Hey mate can you please work at Lawnton tomorrow.”
Frid 3 Oct 6.28pm
Applicant “I’m not coming in tomorrow mate my dog has been hit by a car and killed and I’m not in the right mind to work. Sorry about letting you guys down.”
Lachlan Rolfe “Sorry to hear mate. That is no good at all. I would really appreciate though if u can go in as there is no one else to fill in due to a few others being off sick?”
Sat 4 Oct 7.26am
Lachlan Rolfe “Hey mate. Are you heading to Lawnton today?
Applicant “No I won’t be in” ”
[42] Lachlan Rolfe said he presumed when he did not get a response on the evening of 3 October that the Applicant was going in to work the next day. He said on the Saturday morning he sent a further text to make sure the Applicant was on his way to work. Lachlan Rolfe said he kept Christian Rolfe informed of what was transpiring, and he ended up going in to work that day. 58
[43] Christian Rolfe said that on Friday 3 October Lachlan Rolfe forwarded him the Applicant’s text sent by the Applicant in reply to Lachlan Rolfe’s text requesting him to work at the Lawnton store the next day. Christian Rolfe said he then had a conversation with Lachlan and advised him that this was not good enough and to tell the Applicant to work on Saturday. 59 Christian Rolfe said later that night he spoke to Lachlan again and was advised that Lachlan had not yet had a response.
[44] It was asserted for the Respondent that the Applicants alleged refusal to attend work on 4 October 2014 meant that there would be no second person at the store in the event that there was a medical emergency with the other store member or there was a robbery. It also meant that the profitability of the business would be affected. The Respondent asserts that the conduct of the Applicant was in breach of clause 5 and 14.3 of his employment contract.
[45] The Applicant said he was quite distressed by the death of his dog and too distressed to attend work the next day. He said in oral evidence his dog was killed on the afternoon of Friday 3 October after being hit by a car and was taken to the vet. 60 He said when he got to the vet, probably at 6pm or 6.30pm the dog had died and that is when he sent a message that he wouldn’t be in the next day.61 He said he was very attached to his dogs, thinks of his dogs as close family members and after having his dog hit by a car, he was extremely distraught and wasn’t in a mental state to work the next day.62
[46] The Applicant said that he was not directed to attend work the next day. The Applicant said that a request was made for him to do so because others were off sick, but he was not obligated to attend. 63 He accepted however that he is obliged to work on Saturdays in general.64 He said in cross examination that he thought he requested unpaid leave from Lachlan Rolfe for the 4 October, the following week. He said he was sure that it was on Monday 6 October, but when told this was a public holiday he then said it must have been the Tuesday.65
[47] The Applicant claimed the email at 2.57pm on the Friday was not a direction. The Applicant also said it was untrue that two people were required to work for safety reasons as he had himself worked on two Saturday’s while Mr Hyder was away. 66 In cross examination the Applicant agreed with the proposition that Lachlan Rolfe told him, or directed him to work at the Lawnton store on Saturday 4 October.67 68
[48] However the Applicant believed that by Lachlan Rolfe including a question mark at the end of his second text message, he was asking a question. He disagreed that it was a direction to work. 69 70 He said his original statement (text message) stood, and he did not reply to the second text message.71 He agreed he did not ask for a sick day.72
[49] Lachlan Rolfe said in oral evidence as follows:
“PN 906.
.......................
I just didn’t see as your dog being killed, as a legitimate excuse to have the day off work. I feel that you were hoping to work that day down at Slacks Creek, you said earlier in the day that you’d like to work there, and then circumstances changed and you had to work at Lawnton, so I just didn’t believe that - I honestly didn’t believe that happened and ----
That my dog died? ---- Yes.”
[50] It is apparent from this evidence Lachlan Rolfe did not believe the Applicant was being truthful about his dog having been killed. The Applicant produced an invoice from ‘Pets in Peace’ a pet crematorium dated 6 October 2014. 73 I am satisfied from the evidence of Applicant and the invoice that contrary to the opinion of Lachlan Rolfe at the time, the Applicant was telling the truth about his dog having been killed.
Dismissal
[51] In his witness statement the Applicant states that on Tuesday 7 October 2014 at his place of employment at about 2pm he was called into the office by Lachlan Rolf and was told that Christian Rolfe, the national manager wanted to talk to him over the phone. The Applicant said Christian Rolfe said to him:
“I haven’t been happy with you (sic) attitude, I don’t know what is wrong but I haven’t been happy with your attitude since before you went away on holiday for the month of August.” The Applicant said he replied “ok…” Without further questioning or trying to resolve any issues he said: “We will be parting ways at this point in time, thank you for all that you have done for us.” The telephone call ended. 74
[52] Lachlan Rolfe said on 7 October at approximately 3pm he asked the Applicant to come into his office and he told the Applicant he had organised a conference call with Christian. Lachlan Rolfe said he then dialled the number and placed Christian Rolfe on loud speaker. Lachlan Rolfe claimed that the discussion was as follows:
“Christian Rolfe: “I apologise that I could not do this in person but Charles, Lachlan and myself have all agreed that since your returning from annual leave your performance and attitude have dropped significantly.” Lachlan Rolfe said Christian went on to say “In the current tough times we need all employees working 100%. Unfortunately you are not so we will have to part ways. I’ll handle your final pay plus one week.”
Applicant: “Ok ok.”
Lachlan Rolfe: “William could you please return all the 4WD Supacentre property.” ”
[53] Lachlan Rolfe said the Applicant then gave him the store key and said goodbye and left. Christian Rolfe’s version of the discussion was consistent with that of Lachlan Rolfe. 75 He denied the version provided by the Applicant.76
[54] Lachlan Rolfe said he gave the Applicant a directive to go to work and the Applicant refused twice, and this along with his other performance issues was the reason he was terminated. Lachlan Rolfe said that by the Applicant not turning up for work the Respondent was down a salesperson and Saturday was the biggest day and two people are normally required in the shop for safety reasons. 77
[55] Christian Rolfe said that given that the Applicant did not turn up to work on the Saturday this was the last straw, and further his attitude to work and lack of work ethic demonstrated that he was not committed to the job. Christian Rolfe said he lost confidence in him. He agreed in oral evidence that the Applicant was not given any prior warning of termination before 7 October 2014. 78
Alleged inappropriate use of Confidential Information
[56] Christian Rolfe said that since the Applicant’s termination he had discovered that on 17 September 2014 the Applicant sent an email to an email address for a John Tate Automotive which contained confidential company information in relation to sales figures, the Respondents products list, product arrival times and profitability margins on products. Christian Rolfe said that John Tate Automotive is an automotive business in Queensland which he believed was the Applicants fathers business. 79 The email was attached to the statement of Christian Rolfe80 and the report emailed was tendered in evidence.81
[57] The Applicant was referred to his employment contract and a clause which stipulated that the Respondent reserved the right to conduct computer surveillance, including surveillance of email and internet use. The Applicant denied ever accessing his Gmail account from his work computer. 82 83
[58] The Respondent put evidence to the Applicant 84 of emails from his personal email account. The Respondent maintained that the Applicant had accessed his Google account from his work computer and the password had been saved. The Applicant agreed that he accessed the stock report he sent to his mobile phone from the work computer using Gmail.85
[59] The Applicant said that the email address was his own email address. The Applicant said that email that he sent to himself at that email address was a stock report which he wanted to review for work purposes. He claimed that the laptop supplied to him by the Respondent had stock reports and other documents on it which he had been authorised to work on from home. 86 87 He said that there was no breach of confidentiality because he was the recipient of the email. He said he did not have a copy of it.88
[60] Christian Rolfe accepted there was no directive about where the work laptop computer could be used. 89 Lachlan Rolfe also accepted there was no directive on the use of the work lap top, but disagreed that the Applicant was allowed to take it home.90 Mr Hyder the Store Manager agreed that sometimes if the Applicant didn’t complete his daily logs the Applicant told Mr Hyder that he was going to finish them at home that night and he would then leave with the computer. Mr Hyder agreed that he had no problem with the Applicant taking the computer home.91
[61] The Applicant said in cross examination that he sent it (the stocklist) to his phone so he could look at it on the showroom floor whilst talking to a customer. 92 He said he sent it to his personal email address because he did not have a work phone and did not have access to work emails on his personal phone. 93
[62] In terms of how the Respondent came to be in possession of emails from the Applicants personal Gmail account Christian Rolfe said an IT technician who was carrying out routine work at the Brendale store (after the Applicant had been terminated) discovered that the Applicant’s Gmail account was already logged on from the work computer. 94 Lachlan Rolfe gave evidence concerning this issue, and while in the witness box demonstrated using what he said was the Applicant’s work laptop computer that by opening the main browser bringing up the Google page and then opening Gmail and the computer automatically logged into the Applicant’s Gmail account.95
[63] Christian Rolfe also said that it had come to his attention that between 26 September 2014 and 1 October the Applicant expressed to another work colleague Tony Hyder that he was looking to start his own 4WD accessories business similar to the Respondents business. 96
[64] Christian Rolfe’s second statement dated 5 February 2015 referred to after acquired knowledge that the Applicant was sending and receiving emails from a Chinese 4WD accessory supplier from his work computer via Gmail. Copies of the emails were attached to his second statement. 97 The Applicant said these emails were personal and had been obtained from his Gmail account without his permission or authority. Further he said the emails were general business enquiries, he did not set up a business and nothing eventuated from these enquires.98
[65] Having considered the evidence on these points I am satisfied that the Applicants Store Manager Mr Hyder allowed the Applicant to take the work computer home, a computer that contained sensitive commercial information. However I am also satisfied on the balance of probability that the Applicant emailed the sensitive commercial information to his own email address for purposes other than the performance of work for the Respondent.
[66] Whilst I accept the evidence of the Applicant that the email address to which he sent the sensitive commercial information was his own email address, and not that of an automotive business, in my view the Applicant’s claim that he did this in order to be able to access information from his hand held mobile device whilst dealing with customers on the shop floor as he claimed is less likely than the probability that it was for the purpose as asserted by the Respondent of exploring competing with the Respondent. The fact that the forwarding of this information from the Respondent’s computer to his personal email account coincides with the time he was communicating with a 4WD accessory supplier about the cost of purchasing supplies whilst also indicating in those emails that he was establishing a business, and also indicating to a fellow employee he was intending setting up a 4WD accessories business (this matter is dealt with below) makes it more probable it was for the purpose as claimed by the Respondent, and not as claimed by the Applicant.
[67] During the Applicants cross examination it became apparent that a range of information related to items contained in the commercially sensitive information forwarded by the Applicant from his work computer to his personal email account, were the same or similar items he made email enquiries to the Chinese 4WD accessories supplier about purchasing. I have been influenced in preferring the Respondent’s view about this issue to that of the Applicants by the earlier evidence set out above of other inconsistencies in the Applicants evidence.
[68] Mr Tony Hyder gave evidence that as store manager for the Respondent at the Lawnton store he worked with the Applicant almost daily. He said he had a conversation with the Applicant on 26 September 2014 and 1 October 2014 as follows;
“William: How are you going ?
Me: “Pretty good we are busy at home working on my wife’s business.”
William: “How’s that going? Have you ordered anymore products?”
Me: “Yes as a matter of fact we have found a new supplier and have placed a large order with them and we are excited and cannot wait for it to arrive so that we can start to advertise and let the selling begin.”
William: “I’m looking at starting my own Ebay business selling 4WD products similar to what we (sic 4WD Supacentre) are selling”
Me: “You really should be careful with that as that would be considered a conflict of interest.”
I observed Will’s shoulders raise up and down.
William: “I am already looking at suppliers on the internet to see what I can find similar to what we (sic 4WD Supacentre) import and at a good price as I want to start doing this as soon as possible.”
Me: “Well you should be careful.”
[69] The Applicant in his statement in reply rejected Mr Hyder’s version of this conversation saying the conversation was in the context of him starting his own business one day, or words to that effect and denying Mr Hyder said to him he should be careful as that would be considered a conflict of interest. 99 In his oral evidence Mr Hyder accepted there was no immediacy about the Applicants intentions to start a business.
[70] The Applicant conceded that he had set up an email address using the term Safari4x4. 100 He said he did not have financial means to start a business. He said he recently bought a house using borrowed money and had mortgage payments. He said there was no position available for him to work in his father’s business. The Applicant said he had no intention to work for his father and he was aware that his father’s business may close in the near future.101
[71] The Respondent again relied on the emails accessed from its work computer concerning email correspondence the Applicant had entered into with a 4WD parts supplier in China indicating he had now started a business and requesting information on purchasing stock. The Applicant said it was not true that he had started a business and he was “pumping myself up to get a good price out of someone.” 102
[72] The evidence does not show that the Applicant had started a business during (or after) his employment with the Respondent despite some indications that he was investigating the possibility in doing so. On that basis I do not regard it as a reason in support of a finding that the Respondent had a valid reason for termination. However it is relevant that I have concluded on the balance of probability that the Applicant was using the Respondents commercially sensitive information for purposes other than his employment with the Respondent.
[73] Christian Rolfe also said that since the Applicants termination he had discovered that on 1 October 2014 the Applicant sent his CV to competitors of the Respondents business. 103 The Applicant said that he sent a CV to UV 4x4 on the recommendation of an employee of the Respondent who had been dismissed. The Applicant said that employee obtained a job with UV 4x4. He said the turnover of staff in the Respondent’s business and his concern over his job security were also factors (in him sending the CV). 104
[74] I am not satisfied the evidence concerning the Applicant having provided a copy of his CV to another party is of any particular relevance to the determination of this matter and don’t intend to deal with the evidence concerning that matter any further.
Section 387 Criteria for considering harshness etc.
[75] The Applicant submitted that the dismissal was unfair on the basis of there being no valid reason for the dismissal, not being notified of any performance issues or given any warnings. The Applicant also submits that he was a high achiever in his role as a sales representative. The Applicant said he believed the statement he made his text message on Friday evening 3 October at 6.28pm was all he needed to say. He said he did not read the text responding until the next day because he had put the phone aside and he did not see it until the next day. 105
[76] The Applicant said that his employer did not make any reference to clause 14.3 (dealing with serious misconduct) of his contract of employment when terminating his employment. He said the first reference to that clause by the Respondent as grounds for dismissal was the Employer Response. 106
[77] The Respondent submitted that the Applicant was dismissed for serious misconduct, being that on 4 October 2014, he failed to attend work after being directed to do so, and that this was a deliberate breach of the Applicant’s employment contract.
[78] Serious misconduct is defined in regulation 1.07 of the Fair Work regulations 2009 as follows:
1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.
[79] The Respondent further submits that the various emails and discussions between the Applicant and Respondent during the course of the Applicant’s employment provided the Applicant with adequate notification that the Respondent had concerns with his performance and conduct. The Respondent also relies upon the after acquired knowledge referred to above concerning the emails discovered on the Respondents lap top computer after the Applicants termination.
[80] Firstly I will address the matter of the Applicant’s failure to report to work on Saturday 4 October. The Respondent submits that the Applicant attending work on Saturday 4 October was fundamental to the employment relationship and his summary dismissal for misconduct was justified on the basis that it was wilful or deliberate behaviour by an employee that was inconsistent with the continuation of the contract of employment. In this context the Respondent also refers to safety concerns and effects on the business by the Applicants non attendance that day. I am not satisfied the Applicant’s non-attendance on Saturday 4 October was wilful or deliberate behaviour inconsistent with the employment contract. There is insufficient clarity regarding the status of the text message exchanged for me to be satisfied the Applicant understood he was being directed, as opposed to being requested to attend after he had replied to the initial direction in the first text message. The question mark at the end of the second text message from Lachlan Rolfe left the status of the exchange unclear, and left opens for me to accept the Applicant’s claim that he understood he was being requested to attend, rather than directed given his earlier text message.
[81] Further the Applicant appeared to be operating under the erroneous view that he had a right to not attend work in the circumstances, and this satisfies me it was not a deliberate act or wilful behaviour knowingly committed in contravention of his entitlements. The evidence of Lachlan Rolfe that only came to light during the proceedings at the Commission that he in fact did not believe the Applicant when the Applicant claimed his dog had been killed, leads me to conclude this view held by Lachlan Rolfe at time, which is not supported by the evidence, may have influenced the Respondents ultimate conclusion about the actions of the Applicant on Saturday 4 October. In other words it appears from Lachlan Rolfe’s evidence that he believed at the time the Applicant was being dishonest.
[82] I accept the evidence of the Applicant that he was distressed by his dog being killed. I also accept that given the second text message from Lachlan Rolfe appeared to be in the form of a question rather than a direction it was open for the Applicant to treat it as such. It was still the situation however that the Applicant did not have a right not to attend work that day, nor did he have permission not to attend. Given the ambiguity around the way in which communications occurred between the Applicant and Lachlan Rolfe on Friday 3 October and Saturday 4 October I am not satisfied the non attendance of the Applicant at work on Saturday 4 October was either, serious misconduct, or of itself a valid reason for termination in the circumstances. I am also not satisfied that the Applicants non attendance that day gave rise to a serious or imminent risk to safety or the reputation, viability or profitability of the Respondent business.
[83] Secondly, the Respondent argues that the after acquired knowledge of the Applicant having sent confidential business information to a private email address without authorisation provided a basis to find the termination was not unfair. This also goes to the Applicant having a conflict of interest in contacting others in relation to the same or similar products that the Respondent sells and that this went to the heart of the employment relationship.
[84] The Respondent referred to the contract of employment, and the requirement that the Applicant not engage in conduct that is in conflict with the employers business. I am not satisfied that the evidence discloses that the Applicants had as yet done so in that he had not established a competing business. His conduct never went beyond the making of enquiries and on that basis this issue does not provide a reason to justify the termination.
[85] However the forwarding of the sensitive commercial information to his personal email at a time which coincides with the evidence that he was making enquiries about purchasing stock to establish a business that would compete with the Respondent if established goes to the question of trust and confidence, and this is an important element in this case.
[86] Facts justifying dismissal which existed at the time of dismissal, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal. 107 Facts which existed at the time of the dismissal, but came to light after the dismissal may justify the dismissal.108 109
[87] The Commission is bound to determine whether, on the evidence, facts existed at the time of termination that justified the dismissal. 110 I am satisfied that my earlier finding concerning the reason the Applicant forwarded the Respondents confidential information to his personal email is a basis to find the termination is not unfair as it was not for a reason for the benefit of the Respondent in accordance with clause 12 of the his employment contract, and further amounted to an inappropriate use of commercially sensitive information with which he had been entrusted.
[88] The Respondent also put that in the alternative to either of the arguments dealt with above, that the evidence supports a finding that the Applicants performance had got progressively worse over time and the evidence of Lachlan Rolfe and Christian Rolfe was that they tried to assist the Applicant but that his declining performance resulted in a loss of confidence. It is said the events of Friday 3 October where the Applicant wanted to go home demonstrated to the Respondent that the Applicant was not really interested to be at his job. Whilst I am satisfied the evidence disclosed that the Respondent had raised concerns with the Applicants performance over different issues, particularly after his period of leave those performance concerns had not yet risen to a level justifying termination of themselves. I accept that in the ordinary course an employee asking to leave work in the middle of the day for the reason given by the Applicant on 3 October would be interpreted negatively by their employer.
[89] It was accepted that the Applicant was not notified of the reasons for termination until the time of discussion in which he was terminated. Given the way in which the Applicant was terminated I am not satisfied that he had a proper opportunity to respond to the reasons related to the capacity or conduct issues that were the reasons for his dismissal at the time.
[90] Further given the manner of termination he did not have a proper opportunity to have a support person present to assist at any discussions relating to dismissal. It is clear despite concerns about his performance being raised on different occasions he was not actually warned his unsatisfactory performance may lead to dismissal before the dismissal.
[91] Whilst the Respondent is not a small business, it only engaged 23 employees at the time of termination and this is likely to have impacted on the procedures followed in effecting the dismissal. The Respondent did not have a Human Resource Manager; however Ms Panucci, an employee is also a Lawyer. I have also considered that the Applicant’s length of service is quite brief, being only 7 months and one week.
[92] Having weighed all of the considerations in s.387 despite having found procedural flaws in the way in which the Applicant was dismissed, having not been given a clear warning his job was in jeopardy, or a proper opportunity to respond to the reasons for his dismissal, I have still found that given the facts acquired after dismissal, the dismissal was not unfair. As is evident from the finding above I have been particularly influenced by the facts acquired by the Respondent after dismissal. Therefore I conclude the application must be dismissed.
[93] I add that in the event that had the after acquired facts not been discovered and the Respondent’s case been confined to what was known at the time of termination I would have concluded that the dismissal was unfair. However the Applicant did not seek reinstatement but compensation and even in the circumstances of a finding the dismissal was unfair, I would not have been inclined to award much in the way of compensation given the evidence concerning both the attitude of the Respondent toward the Applicants performance, and the Applicants performance itself in the period leading up to the termination all pointed to the likelihood that the relationship was unlikely to have survived much longer in any event.
COMMISSIONER
1 Transcript dated 12 February 2015 PN 90
2 Transcript dated 12 February 2015 PN 21
3 Exhibit 1 Statement of Mr William Tate
4 Exhibit 2 Supplementary Statement of Mr William Tate
5 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015
6 Exhibit 7 Further Statement of Christian Rolfe Dated 5 February 2015
7 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 with attachments
8 Exhibit 10 Statement of Tony Hyder
9 Exhibit 1 Statement of Mr William Tate paragraph 7
10 Exhibit 1 Statement of Mr William Tate paragraph 8
11 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 paragraph 3
12 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 paragraph 4
13 Exhibit 2 Supplementary Statement of Mr William Tate paragraph 5 (b)
14 Exhibit 2 Supplementary Statement of Mr William Tate paragraph 3 (b)
15 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 paragraph 7
16 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 Attachment F
17 Exhibit 2 Supplementary Statement of Mr William Tate paragraph 5 (d)
18 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 Attachment G and H
19 Exhibit 10 Statement of Tony Hyder paragraph 7
20 Exhibit 2 Supplementary Statement of Mr William Tate paragraph (3) (c)
21 Exhibit 2 Supplementary Statement of Mr William Tate paragraph (3) (d)
22 Exhibit 2 Supplementary Statement of Mr William Tate paragraph (3) (e)
23 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 paragraph 9
24 Exhibit 10 Statement of Tony Hyder paragraph 9
25 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 Attachment B
26 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 Attachment C
27 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 Attachment D
28 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 Attachment E
29 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 Attachment G
30 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 Attachment I
31 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 Attachment J
32 Exhibit 2 Supplementary Statement of Mr William Tate paragraph 4
33 Exhibit 2 Supplementary Statement of Mr William Tate paragraph (3) (f)
34 Exhibit 10 Statement of Tony Hyder paragraph 8
35 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 paragraph 8
36 Exhibit 2 Supplementary Statement of Mr William Tate paragraph (3) (e)
37 Transcript dated 12 February 2015 PN 935
38 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 paragraph 10
39 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 paragraph 8
40 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 paragraph 10
41 Exhibit 1 Statement of Mr William Tate page 2 paragraph 1
42 Transcript dated 12 February 2015 PN 295
43 Transcript dated 12 February 2015 PN 296 to 298
44 Transcript dated 12 February 2015 PN 690
45 Transcript dated 12 February 2015 PN 705
46 Transcript dated 12 February 2015 PN 871
47 Transcript dated 12 February 2015 PN 986
48 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 paragraph 12
49 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 paragraph 11
50 Transcript dated 12 February 2015 PN 704
51 Exhibit 2 Supplementary Statement of Mr William Tate paragraph 6 (e)
52 Exhibit 2 Supplementary Statement of Mr William Tate paragraph 5 (i)
53 Transcript dated 12 February 2015 PN 212 to 215
54 Exhibit 1 Statement of Mr William Tate page 2 paragraph 6
55 Transcript dated 12 February 2015 PN 222 to 226
56 Transcript dated 12 February 2015 PN 235 to 240
57 Exhibit 1 Statement of Mr William Tate page 2 paragraph 6
58 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 paragraph 18
59 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 paragraph 13
60 Transcript dated 12 February 2015 PN 242 to 246
61 Transcript dated 12 February 2015 PN 602
62 Transcript dated 12 February 2015 PN 596
63 Exhibit 1 Statement of Mr William Tate page 2 paragraph 7
64 Transcript dated 12 February 2015 PN 125
65 Transcript dated 12 February 2015 PN 153
66 Exhibit 2 Supplementary Statement of Mr William Tate paragraph 5 (1)
67 Transcript dated 12 February 2015 PN 167
68 Transcript dated 12 February 2015 PN 178
69 Transcript dated 12 February 2015 PN 191
70 Transcript dated 12 February 2015 PN 205
71 Transcript dated 12 February 2015 PN 195
72 Transcript dated 12 February 2015 PN 628
73 Exhibit 9 Certificate of Cremation dated 5 October 2014
74 Exhibit 1 Statement of Mr William Tate paragraph 6
75 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 paragraph 15
76 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 paragraph 24
77 Exhibit 8 Statement of Lachlan Rolfe Dated 5 January 2015 paragraph 25
78 Transcript dated 12 February 2015 PN 705
79 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 paragraph 16
80 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 attachment F
81 Exhibit 3 Stock List
82 Transcript dated 12 February 2015 PN 429 to 431
83 Transcript dated 12 February 2015 PN 464 to 466
84 Exhibit 5 Screen Shot
85 Transcript dated 12 February 2015 PN 473
86 Exhibit 1 Statement of Mr William Tate page 2paragraph 3
87 Transcript dated 12 February 2015 PN 405
88 Exhibit 2 Supplementary Statement of Mr William Tate paragraph 6 (h)
89 Transcript dated 12 February 2015 PN 715
90 Transcript dated 12 February 2015 PN 939 to 940
91 Transcript dated 12 February 2015 PN 992 to 994
92 Transcript dated 12 February 2015 PN 401
93 Transcript dated 12 February 2015 PN 409
94 Transcript dated 12 February 2015 PN 728
95 Transcript dated 12 February 2015 PN 794
96 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 paragraph17
97 Exhibit 7 Statement of Christian Rolfe Dated 5 February 2015 Paragraph 1
98 Exhibit 2 Supplementary Statement of Mr William Tate paragraph 6 (h)
99 Exhibit 2 Supplementary Statement of Mr William Tate paragraph 3
100 Transcript dated 12 February 2015 PN 372
101 Exhibit 1 Statement of Mr William Tate paragraph 4
102 Transcript dated 12 February 2015 PN 496
103 Exhibit 6 Statement of Christian Rolfe Dated 8 January 2015 paragraph 18
104 Exhibit 1 Statement of Mr William Tat page 2paragraph 5
105 Transcript dated 12 February 2015 PN 1201
106 Exhibit 1 Statement of Mr William Tate page 2 paragraph 2
107 Shepherd v Felt & Textiles of Australia Ltd 1931 45 CLR 359, 373, 377-378
108 Australian Meat Holdings Pty Ltd v McLachlan 1998 84 IR 1, 14
109 Dundovich v P & O Ports AIRCFB PR923358 [79]
110 Lane v Arrowcrest 1990 27 FCR 427
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