Nathan McFarlane v Dcomp Pty Ltd T/A Dcomp
[2010] FWA 9191
•6 DECEMBER 2010
[2010] FWA 9191 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nathan McFarlane
v
Dcomp Pty Ltd T/A Dcomp
(U2010/1086)
DEPUTY PRESIDENT HARRISON | NEWCASTLE, 6 DECEMBER 2010 |
Application for unfair dismissal remedy
[1] Mr Nathan McFarlane was employed by Dcomp Pty Ltd T/As Dcomp (“the Company”) as the Area Manager for Hunter Region stores for a period of nine months from 7 September 2009 until 26 June 2010. His employment was as a casual on trial from commencement to 14 December 2009, then as a full time employee until termination by the Company on 17 June 2010.
[2] Attempts to resolve the matter by conciliation failed, resulting in arbitration proceedings on 10 November 2010.
[3] Mr McFarlane appeared on his own behalf and was subject to cross examination by Mr Phang. Mr McFarlane made two statements of evidence (exhibits 2 and 3) and tendered statements from Mr J Chisholm, part owner of a Video Ezy store and customer of the respondent. Mr Chisholm was not required for cross examination and his statement (exhibit 4) accepted without objection.
[4] Mr McFarlane also tendered supporting statements from Mr M O’Brien and Mr D Hardy, both of whom were required for cross examination but were unavailable. Their statements were not accepted or relied upon.
[5] Mr Alin Phang, the owner of the Company, appeared on his own behalf. Mr Phang included evidentiary material in his submission (exhibit 10) and was subject to cross examination by Mr McFarlane.
[6] Mr Phang tendered statements critical of Mr McFarlane from Mr M Bull and Mr M Connolly, both of whom were required for cross examination but were unavailable, accordingly their statements were not accepted or relied upon.
[7] Mr McFarlane was paid $50,000 per annum plus superannuation and an allowance of $50 per week for fuel. He was required to provide his own vehicle to travel between stores located in Newcastle, Belmont and Green Hills, near Maitland, without specific remuneration.
[8] Mr McFarlane deposed that he had difficulty in obtaining clear direction as to his duties and that the company failed to honour a commitment to increase his salary by $10,000 p.a. for each new store opened when an additional store was opened at Kotara in March 2010. His salary was ultimately increased by $5,000 p.a. on 13 May 2010 with a commitment to increase by a further $5,000 when the Kotara store became more profitable and if the Newcastle store continued to trade.
[9] Mr McFarlane reported to a Mr Jin Low until Mr Low resigned from employment on 12 May 2010. Mr McFarlane then reported directly to Mr Phang, a Director of the Company.
[10] Mr McFarlane was dismissed by text message from Mr Phang on 17 June 2010. The text states:
“Look your support to be working. I can’t stand someone not unswer my call. I give u 2 weeks notice. From today and we nolonger need your service”. 1
[11] Mr McFarlane’s evidence is that on 18 June 2010 he received an email from Mr Phang dated 16 June 2010 confirming the termination of his employment. The email correspondence states:
“In concerns of your work quantity was not suit our management and Stock keep missing, inaccurate quantity, Poor Shop management, passive performance, when Management try to contact you and you did not response. However it has become evident that your work quality is not up to the standards required of our employees in the position you were hired to perform.” 2
[12] Mr McFarlane deposed that there was no valid reason for the termination of his employment.
[13] In his evidence and submissions 3 Mr McFarlane referred to Mr Phang as Alin. Mr McFarlane put:
6.No valid reason for the dismissal related to my capacity or conduct
I believe Alin’s claims that my work performance was unsatisfactory are untrue and unsubstantiated. Three weeks prior to being notified of my dismissal, on May 13th 2010, I met with Alin to discuss my performance. During this meeting Alin indicated that my performance was satisfactory and rewarded me with a pay increase of $5000pa and also promised a further pay increase if my high standard of work performance continued and the profitability of the stores in the Hunter region continued to improve. During this meeting Alin did not advise me of any areas of unsatisfactory work performance or warn me that my capacity or conduct was a problem. The fact that Alin increased my pay demonstrates that my capacity and conduct was not a problem.
7. Alin’s claims of stock going missing and “inaccurate quantity” are not related to my capacity to do my job. Stock level discrepancies were a problem well before I started working for DComp. I had been reported on stock level discrepancies from Hunter stores since January 2010. Since taking on this role I had identified a number of procedural problems that were resulting in reports showing that stock was going missing. These problems included discrepancies between stock delivered to stores and the data entered into point of sale by warehouse staff, staff selling items under incorrect codes, inaccurate processing of package deals and an unorganised and inaccurate stocktake. I had reported these problems to Jin and Lina and made recommendations for improvements that could be made to company policies and procedures but Alin had decided not to act on my recommendations.
8. I am unsure exactly what Alin means by “poor Shop management” and “passive performance”. During my employment when I asked for feedback on my performance, I was told in words to the effect “nothing is ever perfect and there is always room for improvement but that it was possible to see an improvement in store presentation and overall staff performance”. On at least 6 occasions Alin and Jin Low had given me positive feedback about how the appearance of the stores in my area had improved since I started working for DComp. I performance managed staff as required. There were a couple of times that Alin/Jin asked me to do things that were unreasonable, for example dismiss a staff member without providing a reason or warnings. I refused to do this as I believed it was an unlawful request and I explained my reasons for refusing to do this and provided Alin/Jin with copies of relevant information from Fair Work Australia to back up what I was saying.
9. The incident that Alin refers to me not responding when he tried to contact me occurred on a day that I was not on duty. In was not unusual for Alin to call me out of work hours and insist that I do something for him immediately. On this day I followed the normal procedure for calling in sick and had notified Lina (payroll) that I was off sick. Alin by this time should have been notified that I had called in sick and that I was not at work. I had diarrhoea and was using the toilet when Alin rang my mobile several times. I sent him a text message explaining that I was unable to talk right now and asking if I could call him in ten minutes. He sent me a text message dismsiing me and then called me approximately five minutes later he called me back in a fit of rage asking “who the f*!# did I think I was asking him to wait”.
10. If my work did not meet Alin’s expectations I feel this was because Alin failed to effectively communicate his expectations. On many occasions I requested from Jin and Alin a job description and measurable performance indicators. These were never provided to me. I did my best manage the stores according to Alin’s wishes but it was often difficult to know what Alin expected. This, at times, was exacerbated by communication difficulties caused by a language barrier.
11. I was not given an opportunity to respond to any reason related to my capacity or conduct at work
Alin did not give me an opportunity to respond to his alleged concerns about my capacity to do my job. Since sending me the text message notifying me of my dismissal Alin has not spoken to me or responded to any emails that I have sent him. When I tried to contact Alin soon after being notified of my dismissal to discuss the matter, my call was taken by Lina. Lina’s response when I told her that it was not legal for Alin to dismiss me in the way that he did and that I wanted to discuss it with him was “I don’t know what is wrong with you. If Alin does not want you to work for him anymore, then you don’t work here anymore. He does not have to give you a reason”.
12. I had not had been warned about that unsatisfactory performance before the dismissal.
During my trail period there was one occasion when I was told that my performance was not to Alin’s liking. On or about October 9th 2009, 4 weeks into my trial Jin suddenly told me that Alin did not want me to work for him anymore. After discussions with Jin, he agreed that I had not been given appropriate direction about Alin’s expectations and Jin agreed it was unfair to end my trial period. Jin informed me of some aspects of store presentation that he wanted me to work on improving. Jin agreed over the following weeks that the presentation of the stores had improved satisfactorily.
13. Apart from the incident during my trial period I was not warned about my performance being unsatisfactory. I was not given any verbal or written warnings. I was not told or given any indication that my current performance was likely or could possibly lead to dismissal.” 4
[14] Mr Phang put that the matter was subject to conciliation on 4 August 2010, resulting in a settlement proposal that Mr McFarlane be re-employed as a casual sales consultant at $20 per hour. Mr McFarlane was rostered for work from Monday 10 August 2010 but did not attend. Mr McFarlane did attend on the following day, Tuesday 11 to Friday 13 August. Mr Phang then assumed that he had accepted the resolution.
[15] The dates put by Mr Phang are incorrect; 10 August 2010 was a Tuesday. There is no dispute that Mr McFarlane attended for work in that week in accordance with the settlement proposal.
[16] Mr Phang provided the text of an email from Fair Work Australia Conciliator Ms Polgar dated 4 August 2010 which states:
“I have attached my understanding of the terms of settlement arising from today’s conciliation.
If you are content with the terms, please sign/arrange signing and return your signed copy to the other party by scan/email, fax or post as well as providing a copy to FWA. Unless I otherwise hear from you within 7 days, I will assume the matter has resolved subject only to the receipt of a Notice of Discontinuance from the Applicant.
Once the Notice of Discontinuance has been received by FWA, the application lodging fee will be refunded within 4-6 weeks.” 5
[17] Terms of settlement were not signed nor was a Notice of Discontinuance filed and accordingly there is no barrier to arbitration arising from the failed conciliation process.
[18] The respondent lists the reasons for termination of the applicant’s employment in the following terms:
Why Nathan Mcfarlane has been dismissed from Dcomp :
• He did attend the shop only for 2 hrs or less a day and in some occasions he did not attend any shop at all. Which is contrary to his duty which clearly states that he has to attend at least 1 day for each shop in a week
• (see pg 9).
• In period of two weeks from 17th May to 30th May he attended shops for only three days, staying in shop for only one to two hours and then disappearing without informing anyone (see pg9,10,11 and 16 evidence from staff)
• When sending weekly report to Alin (The owner) he only collect shop report and forwarded it to the owner and without any input from him. In spite of the fact that report shows that stock is missing. (please refer to page 12)
• Staff had complained that he rostered them in four different locations during a week unnecessarily, to no avail.
• Customers also complained, that they see different staff everyday and have to explain again what they need, which did not help customer satisfaction
• When he recruited new staff did not provide proper induction and training. (see pg11 –Daniel King-ex Trial staff)
• He changed the password for camera system in Newcastle shop without informing management, in apparent attempt to use shop camera computer hard drive to downloading for his personal picture collection during working hour. Later he took out hdd which was used to record security camera footage, therefore rendering camera system nonoperational. He further removed hard drive from shop without informing management and shop supervisor (see attached Danny Geale-Shop Supervisor and pg17 and pg 6,7,8Jimmy)
• He continuously ignored when staff was asking for assistance (see attached Danny Geale,pg17)
• When reminded by staff of duties like, checking sales for the day, he often showed grouse disregard for his duties, did not bother to check sales even after being reminded by staff.
• Sales summary for Hunter area shops which he was responsible for went missing. Nathan did not follow procedure of scanning documents and emailing them management. As a result there are no banking details to this day. He said he mailed to our head office until now we still not received the sales summary. He could not provide any evidence to support his claim that he mailed to us. We are still could not balance our bank reconciliation because of missing sales summary. If he sent these document by mail it should follow that he should have sender consignment number or batch number so we could follow up with Post Office if needed, but he could not provide any relevant document to prove his claim.
• Part of his duty was to make sure that management received sales summary from all the shops he was responsible for by the end of each business day, but instead he usually completed one or two (out of four). Even after multiple reminders reminder from management he did not seem to be concerned, by the fact that all four sales summaries should be send and be complete.
• He also demonstrated grouse disregard for proper conduct by downloading pornographic material into shop camera computer, misusing hard drive in the process (see pg6,7,8)
• He did not show any signs of improvement after he have been gave several warning (see pg12,13,14)
• On 16th of June there was stock missing form Newcastle shop in totall value of $2030. Nathtan did not attempted to investigate at all and merely forwarded stock take report to management. (see page18,19)
• Owner Alin still gave him multiple opportunities to meet and explain what actually happened. Unfortunately Nathan avoided multiple phone calls and refused to meet with Alin (by not responding and then calling sick) on 23th June 2010 (see pg13)
• Employment agreement he had signed specifies that: “Dcomp has the right of immediate dismissal without payment of two (2) week’s salary in the case of misconduct.” (pg21)
• Installing non work related software (IP scanner) found (see pg6,7,8)
• He sold 3 system to Video Ezy without any receipt could provide by both party (pg 20,23) police Report E44351984. 6
[19] The final allegation in respect to the Video Ezy matter was withdrawn by Mr Phang in light of Mr McFarlane providing a statement from Mr Chisolm which includes a copy of bank statements showing payment to Dcomp Pty Ltd Green Hills.
[20] Mr McFarlane provided a defence to each of the specific allegations, putting that he attended the stores as required. He acknowledged that he had made minimal sales in each store, putting that he had been directed by Jin Low to manage, not function as a sales person.
[21] Mr McFarlane denied changing the computer password on the security cameras.
[22] In cross examination Mr Hsueh accepted that anyone with knowledge of a software program identified as HIRENS could gain access and change the password.
[23] Mr McFarlane denied that he used the Company computer to download pornography.
[24] In cross examination Mr Hsueh conceded that the files suspected of being pornography could not be located when he attempted to do so. Mr Hsueh further conceded that when he was required to re-commission the stores’ security cameras he found that it was an old system with substantial wear and tear. Mr Hsueh was able to render the system operative. Mr Hsueh accepted that he, or another technician with his ability and knowledge, could have deleted video surveillance records from the system which could have shown who, other than Mr McFarlane, had used the equipment.
[25] The evidence of Mr Geale is that as the Manager of the Newcastle store he found Mr McFarlane unhelpful. Mr Geale lists a number of criticisms of Mr McFarlane, including taking stock from one store to another. Mr Geale asserted that appropriate procedures were not always followed for removal of stock from a store. 7
[26] In cross examination Mr Geale conceded that he had countersigned a docket book for Mr McFarlane confirming that Mr McFarlane had taken an item. Mr Phang asserted that this was irrelevant.
[27] The evidence of Mr Togo 8 deals with the allegations of improper sales to Video Ezy which are now withdrawn.
[28] In cross examination Mr Togo confirmed that he reviewed the CCTV records of in-store surveillance at the Greenhills Store. Mr Togo speculated that Mr McFarlane arranged boxes of stock in such a way that the camera was obscured. Mr Togo conceded that he only saw Mr McFarlane rearrange stock on a shelf, not remove any items.
[29] Mr Togo made a specific allegation in respect to a G15 keyboard, which he conceded would not fit into Mr McFarlane’s backpack, putting that it could be concealed under his coat. Mr Togo then conceded that when observed on CCTV records Mr McFarlane had his coat folded over his arm.
[30] Mr Phang submitted that he was suspicious of a transaction made by Mr McFarlane in the name of a customer who, it was established by reference to the customer, had not been to the store for many months.
[31] Mr McFarlane deposed that he had used the customer’s name in the process of establishing a stock control account to deal with inventory mistakes. Mr McFarlane put that he selected the customer’s name as he knew it had not been used for a long time and his intention was to convert it to a generic account to be used in all stores; however, prior to his completion of the process and establishment of the intended stock control system his employment was terminated.
[32] The employer did not rely on this incident to terminate Mr McFarlane’s employment, and at best it would be an argument against re-instatement or reduction of compensation.
[33] It is unfortunate that a dormant customer file was used and not a generic or store account from the outset, however, there is no evidence to suggest that Mr McFarlane’s innocent explanation should not be accepted.
[34] The evidence discloses that Mr McFarlane was advised by text that the reason for the termination of his employment was limited to his absence from work and Mr Phang’s anger that his telephone call was not answered.
[35] Those reasons were sought to be expanded in an email the following day which raised performance issues. Those issues were not put to Mr McFarlane till after the termination of his employment. He was given no opportunity to respond.
[36] The question of representation found in S 387(d) does not arise.
[37] The evidence supports the conclusion that Mr McFarlane was not warned in respect to any perceived performance issues.
[38] The evidence leads to a conclusion that Mr McFarlane was dismissed by Mr Phang in a fit of anger because his phone call was not answered immediately.
[39] There is no evidence of instruction, warning or admonishment to Mr McFarlane upon which the employer could or did rely in sending the text message ending Mr McFarlane’s employment.
[40] It was not contended that the employer is a small business as defined, or that the small business code would apply.
[41] The size of the employer’s enterprise and the absence of dedicated human resource management or expertise allows for some less degree of formality, but does not afford a licence to dismiss without valid reason.
[42] I find that there is no valid reason for the termination of employment, which was harsh, unjust and unreasonable.
Remedy
[43] Mr McFarlane sought a direction that the charges laid with the NSW Police be withdrawn.
[44] That is beyond jurisdiction, however, I note as detailed earlier in this decision, the allegations giving rise to the charges have been withdrawn and/or disproven.
[45] Re-instatement is not sought and would not be practical.
[46] I conclude that an order of compensation pursuant to S 392 of the Fair Work Act is appropriate.
[47] Having regard to the effect upon the employer’s business and the relatively short period of service, which in this case are the prominent considerations; together with all of those matters specified in S 392 of the Fair Work Act, I conclude that compensation in the amount of one month’s pay at the rate of $50,000 per annum which equates to $4,167 per month which I discount having regard to length of service and other factors to $3,000 (three thousand dollars) is appropriate.
[48] Orders to that effect will issue today.
DEPUTY PRESIDENT
Appearances:
Applicant:
Mr N McFarlane
Respondent:
Mr A Phang
Hearing details:
Newcastle
2010
10 November
1 Statement N McFarlane, Exhibit 2, para 17
2 Exhibit 2, para 18
3 Submissions by Applicant, Exhibit 1
4 Exhibit 1, pages 1 & 2
5 Submissions by Respondent, Exhibit 10, p3
6 Submissions by Respondent, Exhibit 10, p2
7 Statement of D Geale, Exhibit 16
8 Statement of R Togo, Exhibit 20
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