Paul Turner v Peter Stevens Motorcycle Retail Group Pty Ltd

[2016] FWC 340

[2016] FWC 340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Turner
v
Peter Stevens Motorcycle Retail Group Pty Ltd
(U2015/9565)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 22 JANUARY 2016

Application for relief from unfair dismissal.

[1] Mr Paul Turner was employed by Peter Stevens Motorcycle Retail Group Pty Ltd from 2 July 2007 until 4 July 2015. Mr Turner alleges he was unfairly dismissed on this day, while Peter Stevens alleged he resigned his employment.

[2] Mr Turner was originally employed as a Spare Parts Person and was promoted to Spare Parts Manager on or about 7 May 2013. As a result of a disagreement with Mr Kosi Kalaitzidis, the Dealer Principal, on 2 July 2015 Mr Turner decided to stand down from his position as Manager and sent Mr Kalaitzidis an email to that effect.

[3] The email said, in part:

“After last nights conversation I have decided once again I am standing down as Spare Parts Manager. I am sorry but I can no longer do this role and I do not want to do this role anymore.

…Please do not try and talk me around as I am not changing my mind, I will finish this role on Saturday 4^th July at 1.00pm, that should make it easy for pay role [sic] to adjust my wage being end of pay week.”

[4] What happened then is in dispute.

[5] On 2 July 2015, Mr Turner gave evidence that Mr Kalaitzidis called him and asked him if he had told his staff of his decision. When he said he had not, Mr Kalaitzidis told him to tell them immediately. Mr Turner gave evidence that Mr Kalaitzidis then offered him the position of Spare Parts Person, as that position was vacant. Mr Turner said he accepted that position and then told his staff that he was standing down as Spare Parts Manager and taking up the vacant Spare Parts position. 1

[6] On the same day, Mr Turner sent the Accounts department advice that he had stood down as Spare Parts Manager effective 4 July 2015. He told IT to delete him off certain emails. 2

[7] On 4 July 2015, Mr Kalaitzidis met with Mr Turner and handed him a copy of a letter, which said in part:

“We wish to formally confirm that, on Thursday 2/7/2015, you advised us by email of your decision to voluntarily resign from your current position of Spare Parts Manager.

We can confirm that your resignation has been accepted, and that your last day of employment will be Saturday, 4 July 2015.” 3

[8] Mr Turner said he told Mr Kalaitzidis that he was not standing down from his job, only his position as Sales Manager. Mr Kalaitzidis told him that the position of Spare Parts Person was not going to be filled. Mr Turner again told Mr Kalaitzidis that he had offered him that job a few days ago. Mr Kalaitzidis asked him to sign the letter, which Mr Turner did. He was told there was no job for him. 4

[9] It was Mr Turner’s evidence that despite the advice that the position of Spare Parts Person was not to be filled, it was still being advertised on Seek on 15 July 2015. 5

[10] Mr Kalaitzidis said that on 1 July 2015, Mr Turner spoke to him and told him he wanted to resign his job because it was getting too hard. He said he told Mr Turner that they needed to discuss this later and that he should not assume that he had anything else to offer him. The next day, Mr Kalaitzidis received an email from Mr Turner which is referred to at paragraph [3] above. 6

[11] Mr Kalaitzidis said he discussed the resignation with the company General Manager and it was their view that Mr Turner could not be employed as a Spare Parts Person, despite there having been a vacancy since June 2015. It was his evidence that they decided not to fill that vacancy. 7

[12] Mr Kalaitzidis met with Mr Turner on 4 July 2015 and told him that they accepted his resignation. 8

[13] It is clear that Mr Turner made the decision to relinquish his position of Manager before he knew whether he would be offered alternative work. As such, there is no dispute that Mr Turner resigned his position as Manager. What is in dispute is whether Mr Turner was offered and accepted an alternative position of Spare Parts Person.

[14] In response to Mr Turner’s evidence in chief, Mr Kalaitzidis accepted that he told Mr Turner that he needed to tell his staff that he had resigned but only so that they did not find out when he circulated the internal advertisement for the job. 9

[15] There is a clear conflict between the evidence of Mr Turner and Mr Kalaitzidis in relation to the offer of on-going employment. I prefer Mr Turner’s evidence on this point. Mr Turner’s evidence was unequivocal. He accepted that he resigned his position without any expectation that he would be offered alternative work. When Mr Kalaitzidis offered him the lesser paid position, he accepted that offer. His evidence that he told his staff that he was relinquishing his position and accepted the lesser paid position was not challenged in cross examination. Further, if he had not been offered the alternative position, he would have had no reason to advise IT that he needed to be deleted from some email lists. Had he resigned his employment, he would not have received any work emails. Mr Turner was not cross examined about this email.

[16] Mr Kalaitzidis’s evidence that a decision was made to not fill the Spare Parts Interpreter position is inconsistent with the position still being advertised after Mr Turner’s employment was terminated. Mr Kalaitzidis gave evidence that the decision to not fill the vacant position was done in the context of the possible restructure of the business in Geelong. I note Mr McDonald, the Parts Accessories Merchandise Business Development Manager, who gave evidence that there was a review of the appropriateness of the premises, did not give evidence that a decision had been made not to fill the vacant position of Spare Parts Interpreter at the time Mr Turner’s employment was terminated. Mr Hunt, the witness to the meeting between Mr Turner and Mr Kalaitzidis on 4 July 2015, gave equivocal evidence. He did not recall much of what was said in the meeting. He said Mr Kalaitzidis did not say that the company would not replace Mark’s job, yet Mr Kalaitzidis gave evidence that he did say this. 10

[17] I do not accept that Mr Turner’s signing of the letter on 4 July 2015 altered what happened on 2 July 2015.

[18] I therefore find that while Mr Turner resigned his position as Spare Parts Manager, he was offered and accepted a position as Spare Parts Interpreter and this was the position he was dismissed from on 4 July 2015.

Was the termination of employment harsh, unjust or unreasonable?

[19] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[20] I find that there was not a valid reason for the termination of Mr Turner’s employment. Given Mr Kalaitzidis denied offering the position to Mr Turner, it is not surprising that he provided no explanation of why the position was no longer available. Ms Marton, in her closing submissions, suggested that Mr Kalaitzidis may not have had the authority to offer Mr Turner the position, but there was no evidence before me to that effect. Mr Kalaitzidis told Mr Turner that there had been a decision not to fill the position of the Spare Parts Interpreter. However, Peter Stevens made no submission that if I found Mr Turner’s employment had been terminated, that there was a valid reason for the termination.

s387(b) whether Mr Turner was notified of that reason;

[21] As there was no valid reason for the termination of Mr Turner’s employment, he was not notified of that reason before the decision to terminate his employment was made.

s387(c) whether Mr Turner was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[22] Mr Turner’s employment was not terminated for any reason related to his capacity or conduct.

s387(d) any unreasonable refusal by the employer to allow Mr Turner to have a support person present to assist at any discussions relating to dismissal;

[23] Mr Turner did not request a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Turner had been warned about that unsatisfactory performance before the dismissal;

[24] The dismissal did not relate to unsatisfactory performance.

s387(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;

[25] No evidence was called and no submissions were made that the size of the employer’s enterprise had an impact on the procedures followed in effecting the dismissal.

s387(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;

[26] No evidence was called and no submissions were made that there was an absence of dedicated human resource management specialists or expertise that impacted on the procedures followed.

s387(h) any other matters that the FWC considers relevant.

[27] It was submitted that the dismissal was harsh because Mr Turner was terminated without notice and without payment in lieu of notice.

Conclusion

[28] I find that the termination of Mr Turner’s employment was harsh, unjust and unreasonable. There was no valid reason for the termination and Mr Turner was not afforded procedural fairness.

Remedy

[29] Mr Turner is not seeking reinstatement of his employment.

[30] In assessing any amount in lieu of reinstatement, the Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[31] There was no evidence and no submission made that any order would affect the viability of the employer’s enterprise.

(b) the length of the person’s service with the employer;

[32] Mr Turner had been employed in some capacity with Peter Stevens for eight years, which is a significant period of time.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[33] It was submitted that Mr Turner would have remained in employment for 12 months. Mr Kalaitzidis gave evidence that a new Spare Parts Manager was appointed on 29 September 2015. Mr Kalaitzidis gave uncontested evidence that he thought that Mr Turner would undermine the new Spare Parts Manager.

[34] I have accepted that Mr Turner was offered and accepted the position of Spare Parts Interpreter. In those circumstances, I cannot accept the submission of Mr Turner that the calculation of the amount he would have earned should be based on his income as the Spare Parts Manager. At most, he would have been paid the rate payable to the Spare Parts Interpreter.

[35] I do accept that Mr Turner would have remained in the position of Spare Parts Interpreter for 12 months. Mr Turner’s difficulties only arose when he filled Manager positions. There is no evidence that any similar difficulties arose when he was not in a management position.

[36] Peter Stevens submitted that Mr Turner would have been paid $49,500 per annum plus statutory superannuation of 9.5%. In addition, a bonus was paid of up to $1,000 per month (including superannuation). It submitted that in the financial year 2014-15, it paid the bonus to the Spare Parts Interpreters nine times. Those submissions were not objected to by Mr Turner.

[37] I find therefore that in the 12 months, Mr Turner would have earned $57,719.16, plus 9.5% superannuation.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[38] Mr Turner worked as a casual employee for five weeks. He earned $4,472.82 after tax. He then commenced work on 12 October 2015 and it was accepted that this was on-going employment. His income was $975 per week. I find that Mr Turner took reasonable steps to mitigate his loss.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;

[39] Mr Turner earned $4,472.82 after tax. This is the equivalent of $5,522 gross, assuming a 19% tax rate. He then earned from his casual job, $975 gross per week. In the 12 month period, he would have earned $42,572 plus statutory superannuation.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;

[40] Mr Turner would continue to earn $975 per week.

(g) any other matter that the FWC considers relevant.

[41] There was no submission that there were any other matters the Commission should consider.

Conclusion

[42] Mr Turner would have earned $15,147.16 more, plus statutory superannuation on that amount, in the 12 months after his dismissal had he remained employed by Peter Stevens.

[43] I will deduct an amount of 25% for the possibility that Mr Turner may have been made redundant. I do so having regard to the evidence that Peter Stevens had not at the hearing filled the position of Spare Parts Interpreter.

[44] Having regard to the factors set out above, I do not propose to further adjust the amount to be paid to Mr Turner.

[45] I will therefore order Peter Stevens pay Mr Turner $11,360.37, plus $1,079.24 to his superannuation fund within 21 days of the making of this order.

DEPUTY PRESIDENT

Appearances:

Mr G Dircks on behalf of the Applicant.

Ms G Marton on behalf of the Respondent.

Hearing details:

2016.

Melbourne:

November 17.

 1   Exhibit A1 at [29]-[34].

 2   Ibid at PT6.

 3   Ibid at PT7.

 4   Ibid at [48]-[55].

 5 Ibid at [63].

 6   Exhibit R3 at [22]-[24].

 7   Ibid at [25]-[28].

 8 Ibid at [30].

 9   Exhibit R4 at [17]

 10   Transcript PN 403

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