Rebecca Mune v JM Eyewear

[2020] FWC 2515

[2020] FWC 2515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Mune
v
JM Eyewear
(U2020/876)

COMMISSIONER SIMPSON BRISBANE, 15 MAY 2020

Application for an unfair dismissal remedy.

[1] Ms Rebecca Mune has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against JM Eyewear. The applicant sought to have the application amended to reflect the proper legal identity of the Respondent which is JM Australia Pty Ltd (the Respondent) which was granted unopposed

[2] Ms Mune commenced her employment with the Respondent on 19 June 2017 and was advised of her dismissal on 6 January to have effect from 20 January 2020. Ms Mune was not required to work for out the notice period.

[3] In the Form F3 – Employer Response to unfair dismissal application, the Respondent objected to the application on the basis it had complied with the Small Business Fair Dismissal Code.

[4] The matter did not settle at conciliation and was allocated to me. I issued directions for filing of material, and the matter was listed for Hearing by telephone on 7 May 2020. At the commencement of the matter both parties agreed that it should proceed as a determinative conference and it proceeded as such. Ms Mune was assisted by a support person Mr Adam Chapple, and the Respondent was represented by Ms Flora Lu its General Manager and Mr John Zhang, its Managing Director.

[5] The Respondent filed material as part of its submissions on jurisdiction that it employed 14 employees at the time of termination. The Respondent submitted that it did employee two other casual employees however they were not employed on a regular and systematic basis or did not have a reasonable expectation of ongoing employment.

[6] The Respondent submitted that the two casual employees were engaged for a short period of time in connection with Christmas, commencing in October 2019 and finishing in January 2020. Ms Mune did not dispute this and accepted the Respondent’s submission as presented. On that basis I am satisfied that the Respondent was a small business employer at the time of termination.

Legislation

[7] The Small Business Fair Dismissal Code provides the following:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[8] It was common ground between the parties that this matter did not involve a summary dismissal and on that basis the summary dismissal part of the Code is not relevant to the determination of this case.

[9] Ms Mune provided a witness statement. 1 Ms Mune said that she reported to the Respondent’s Group Manager Mr Shayne Penrose however she also reported to Ms Lu on a daily basis.

[10] Ms Mune said her working hours varied from day to day however her contract required her to work between 9.00am and 5.30pm Monday to Friday. Ms Mune said as a Sales Representative she was accountable for product sales across Queensland and was paid an annual salary of $45,000 at the time of her termination excluding bonuses.

[11] Ms Mune said during the 2019 calendar year (period January to December) she earnt a total of $4,685.48 in commission averaging $390.46 per month. Ms Mune said that during the two and a half years working with the Respondent she consistently achieved performance and sales targets.

[12] Ms Lu provided a witness statement 2 for the Respondent. Ms Lu said that the job requirements of Ms Mune’s role were outlined on page 10 of the employment contract and included minimum sales per week, the number of prospects to be followed up, report and CRM updates and daily time arrangements.

[13] Ms Lu said that at the beginning of Ms Mune’s employment there were approximately 180 active accounts in the territory and at the end of the employment there were 156 active accounts including 35 Ramsay group accounts assigned to her by head office mainly in 2018. Therefore, the net account loss during her employment is over 50, about 30% of the accounts. Ms Mune said in response that Queensland was on a sales decline and she could not get new customers, so she ended up working with what she had.

[14] Ms Mune said she would increase orders for customers that were selling when she couldn’t get new customers and the Respondent was denying orders. Ms Lu said Ms Mune’s job involved both taking in new clients and servicing existing clients and because Ms Mune could not obtain new clients Ms Mune tried to over stock existing customers and Ms Lu’s evidence was this was not good for the business.

[15] Ms Lu said she reviewed some orders of Ms Mune and called the customers herself and the feedback she got was that sometimes Ms Mune had made the orders herself without the customers agreement and this could destroy business. Mr Zhang said it was irresponsible to give a customer more product then they are selling and overstocking a customer is not good for the customer or the Respondent.

[16] Ms Lu said at the beginning of 2019 discussions and actions were started to help Ms Mune improve her performance. Ms Lu said these conversations were held with Mr Penrose, , Mr Zhang and herself. In her oral evidence Ms Lu said concerns had not been raised before January 2019 however Ms Mune was spoken to about the need to gain new clients. Mr Zhang also said Ms Mune was not bringing in new customers.

30 January 2019 correspondence regarding performance concerns

[17] On 30 January 2019 Ms Mune said she received an email from Ms Lu outlining various performance concerns. Ms Mune said she had not received any of this feedback previously.

[18] The letter read as follows:

“Dear Rebecca,

I was about to talk to you in details for quite a while, but just did not find a good chance. I tried to call you on Tuesday afternoon but did not get through to you. I have had discussions with both John and Shayne, here I am writing down what we have found in you (sic) past year’s performance and what we expect you to improve this year.

1.You are an enthusiastic lady and have passion for the job. This gives you huge potential to be an excellent salesperson. We wish you always maintain the passion as it will help you go extra miles to achieve more.

2.Planning. A good planning contributes half to success. As a sales team member, you are required to provide annual plan and call cycle plan in advance and meet the required deadline. Now we even don’t have a complete call cycle plan for your current call cycle. You need to submit your annual plan and current call cycle plan plus next call cycle plan by the end of this week.

3.Sales performance. Although the sales figure last year in your territory had a nice increasing percentage, most of your sales were generated from Ramsay/Malouf group. The conversation rate of customers outside of these groups was very low, which concerned us. This year, we need you to have a detailed plan and strategies on improving sales from non Ramsay customers.

4.New business generation. This was very weak in the past year. No prospects were uploaded in CRM or recorded in daily record. There was also lack of follow ups. In this year, new business generation is a priorities task in your territory. You must do average 3 cold calls a day and report them in your daily report. Leads and prospects need to be entered in CRM and follow up regularly.

5.Administration jobs. This was poor in the past and we hope it can be changed this year. Orders need to be sent to head office on time with a cover sheet. Daily report and CRM need to be done daily. All customers contacted during the day must be updated in CRM. If there is any unexpected reason which causes the jobs can be done on the day, you need to inform the relevant staff member, and catch up on the next day –no later than end of the week.

6.Make a reasonable promise and keep the promise.

7.Time management. Plan your daily and weekly routine, and utilise your time to complete your daily tasks. Office day is used to work on plan and prospects and is not planned for catching up unfinished jobs.

I would like to have a conversation with you to go through the above points. Please let me know the suitable time for you.

Regards

Flora”

[19] Ms Lu said that she did recall having contact with Ms Mune just after the email however said that the concerns raised in this letter were communicated to Ms Mune throughout the whole year of 2019 with no improvement after a year.

[20] Ms Mune accepted in her oral evidence that she was struggling with cold calling and was not bringing in new customers, however she said she asked for more training in October 2019 and this was refused. Ms Lu said meetings occurred every week and that training is ongoing and sending Ms Mune to Melbourne to do training (in October 2019) was not appropriate. Ms Lu said Ms Mune would not actually identify what she was struggling with for example by providing lists of potential customers because she would not take the initiative to undertake cold calling.

[21] Ms Mune accepted that she was not cold calling because she was getting no where and could not put together a cold call list. Ms Lu said that every salesperson must submit a daily and weekly report on how many cold calls they have done and if salespersons are not having success then the Respondent can help them. Ms Lu said however Ms Mune was not providing lists of who she had cold called or any lists of prospective clients to cold call. Ms Lu said the Respondent had nowhere to start anything with Ms Mune.

[22] Ms Mune accepted that she did not provide lists because she was embarrassed as she could not even get a hello or a phone number from customers. Mr Zhang said he trained Ms Mune when she was initially employed on how to deal with existing customers and how to do cold calling. Mr Zhang said if Ms Mune doesn’t want to do cold calling it does not matter how much training is done if she does not have the initiative. Mr Zhang said he regularly spoke to Ms Mune about this and the business cannot be sustained without new business.

[23] Ms Mune said she tried cold calling but was having no success. Ms Mune was asked why she could not give the lists of unsuccessful cold calls to the Respondent and she repeated that she was embarrassed because when you’re a salesperson and having so little success it is embarrassing.

Ms Mune on Annual Leave

[24] Ms Mune said she was on annual leave from 5 March to 20 March 2019 and on her return from annual leave she received a phone call from Mr Penrose welcoming her back and received no further meetings, emails or phone calls from Mr Penrose or Ms Lu offering support or assistance referred to in the Respondent’s submissions.

Ms Mune suffers a stroke

[25] Ms Mune said that on 21 March she had a stroke at work which resulted in her being off work for three weeks.

Return to Work

[26] Ms Mune said that on her return to work she was advised that the North Queensland sales territory she was previously responsible for had been taken over by Ms Lu and Mr Penrose. Ms Mune said that her stroke impacted her speech and it took some time for her to regain this which affected her confidence.

[27] Ms Lu said in her statement that Mr Zhang and herself helped Ms Mune service North Queensland to give her more time to recover by avoiding long distance travel. In her oral evidence Ms Lu said that when Ms Mune returned to work they spoke to her and in the interests of her health, the Respondent required her only to work in her local area and during this time Ms Lu and Mr Zhang travelled to North Queensland and generated approximately $10,000 worth of sales. She said the sales were recorded in Ms Mune’s name and the commission for the sales was given to Ms Mune despite her not doing the work. Ms Mune accepted that this occurred. Ms Mune submitted however that the Respondent contradicted itself and the evidence was that customers had been overstocked during this period.

[28] Ms Lu said Ms Mune was given two months to ease back into job requirements and was given normal job requirements following discussions with her in June 2019.

[29] Ms Lu said that despite management being required to chase Ms Mune up from time to time, Ms Mune’s CRM update and daily reports were constantly missing. Ms Mune’s evidence in response appeared to be that she had long days and often did not get home until 6pm or later and she was therefore not putting the reports in because she was not getting paid for those hours.

[30] Ms Lu said that salespersons were allowed to delay a report for a day if they were really busy but by the end of the week there should be time to file the reports and all other salespersons were doing this. Ms Lu said as an example over a two-month period Ms Mune only filed two daily reports. Ms Mune did not dispute these figures and merely said she could not tell the Commission whether it was correct or not. Mr Zhang said on some days a salesperson may only see two or three customers with up to one hour with each. He did not accept Ms Mune would not have time to provide the reports.

[31] Ms Lu said that cold calls, following up prospects and bringing in new accounts was a priority for the territory in 2019 as mentioned in the January letter to Ms Mune and had been discussed many times. Ms Lu said losing accounts sometimes is unavoidable however the same number or even more new accounts needs to be obtained to maintain the size of the customer base and to generate the same or more sales. However, Ms Lu said that Ms Mune did not bring in any new accounts and did not even report and update any cold calls or prospects despite numerous requests from the management team.

[32] Ms Lu gave an example of a Pharmacy at Curra, north of Gympie, which was a customer of the Respondent in Ms Mune’s area that she never visited. Ms Mune said in response the particular pharmacy was part of a group and she was told by the owner not to call until Ms Mune was able to visit all the stores. Mr Zhang said the purpose of visiting was included to check and clean the display stand and it was unnecessary to call a customer beforehand to provide that service.

[33] Ms Lu said Ms Mune was provided opportunities to increase sales or get new accounts from time to time, however she did not take it seriously and lost them. Ms Lu said one account Footes Pharmacy decided to change suppliers and Ms Mune marked all of the accounts as ‘ex-client’. Ms Lu said Mr Penrose found later that only one store was definitely lost, and the others were still a chance to be maintained. Ms Lu said Mr Penrose also found a few stores that were not in the territory customer list which meant opportunities and emailed the information to Ms Mune however only one store was contacted and resumed trading. Ms Lu said there were no reports and updates for other stores.

[34] Ms Lu said as the management team became more involved in the Queensland database and tried to help Ms Mune to improve her work performance more issues emerged such as unsatisfied customers, over stock complaints and a number of customers having never been serviced during her employment and deciding to cease trading with the Respondent.

[35] Ms Lu said that Curra was an example of a customer not being serviced by Ms Mune. Ms Lu said the East Brisbane Pharmacy was an example of a customer making a complaint about Ms Mune overstocking the customer. As an example of an unsatisfied customer Ms Lu referred to the Luck Dragon and Lucky Charm Pharmacy at Redcliffe.

[36] Ms Mune said in relation to Curra, the Respondent did not start visiting Gympie until last year, in relation to the East Brisbane Pharmacy they were a consignment customer and they complained to her about the salesperson before her. Ms Mune said in the case of Luck Dragon that was a miscommunication with the office, and in the case of Lucky Charm Ms Mune said the customer told her they did not want to order from the Respondent anymore because they were unhappy with the Head Office and not with her.

Letter of 23 October 2019

[37] Ms Lu said for these reasons, what was described as the first warning letter was issued emailed to Ms Mune on 23 October 2019. Mr Chapple submitted for Ms Mune that the letter did not constitute a warning letter. The letter included the following:

“Dear Rebecca,

Thanks for the open conversation on Tuesday. After the conversation, I believe that you understand that Shayne, John and I are trying to help you.

As you said, you have been in this job for 2.5 years. Therefore you know better than me about the sales in your territory.

I have gone through the sales results with you in the meeting. The sales figures in you (sic) territory in the past 8 months of year decreased 18% comparing to the same period last year. And there was no new customer on board this year.

QLD territory is shrinking. This is not the thing that anyone in the company would like to see. As your team leader and the manager of the company, Shayne and I both need to take responsibility for it. It actually makes us more frustrated, because we can’t take direct actions on the territory but have to work through you. That’s why we had quite a number of meetings this year. We share the same goal as you to improve QLD sales. At this point, we are in the same boat with you. What we have been doing and what we have been asking from you are all attempts to work with you together to achieve our same goal. We hope you have the right attitudes for our requests and treat these requests seriously and professionally.

Unfortunately, I have to say, Rebecca, you failed to do what we had asked for after those meetings. If you put yourself in my or Shayne’s shoes, you may understand how frustrated and disappointed we were. However we did not give up on you and still try as much as we can to help you. That’s why we had the meeting again on Tuesday. I think it’s an open and frank meeting. Shayne spoke out what he felt, hope you understand that out intention is to help you boost up QLD sales.

As you agreed, we need to work on both existing customers and potential new customers to expand customer base, secure the market share and generate more sales. From now on, Shayne will be helping with strategies on generating leads and prospects, aiming at getting 2-3 new customers on board by the end of the year. I will be working closely with you on existing customers. We need to review all customers by area to update information and dig out potentials.

Please understand that all the work needs to be done by you, although we can provide assistance as much as we can. Therefore you do need to do the following jobs in order to make the change happening:

Daily activities:

Make a workable call cycle plan in advance

Service all customers in an area expect those to be serviced on the second call cycle

Always do stock take and order according to the sales

Identify issues and provide solutions on the spot.

Update CRM daily, or must update all customers serviced by the end of the week

Submit order and daily report on time daily

Administrations

Submit stock take sheets or other paperwork required with orders

Include date, client code, authorised person’s name and signature, price, accessories etc in the orders

Adjust par level for the customers according to sales in an extend period of time

Update customer folders and your record when a change happens

Read and reply to emails daily

Solve problems as early as you can before it becomes big

Cold calling and prospecting:

Fit cold calls and prospects follow up in your daily activities

Meet the target of 10 cold calls a week

Constantly research on business opportunities, collect as much information as possible in order to decide an appropriate approach

Discuss with Shayne regularly with potentials, possible strategies and approaches

These may sound to basic, however when you get the basic right, the sales figure will definitely show the good result. Too many proven records show the fact.

Rebecca, QLD is coming to crucial status that forces us to make decision on changes – to change attitude to be more proactive and aggressive to gain a reasonable market share, to change to have only a part time sales to maintain a small size of customer base, or to change a sales person who will help to regain the market share. This is actually depending on you. We have been delaying this decision but cannot delay much longer now. The decision must be done by the end of the year. (My emphasis) We do remember how passionate and excited about sales when you just join us, that’s why we have been trying so long to help you to go back on track, so we can go for option 1.

Rebecca, please make the first move by sending prospecting list to Shayne. He is expecting the list to help you getting warm prospects even new customers. Please understand this will gain confidence for both yourself and confidence. Only when there is sufficient number of prospects to work on, there is a reason and confidence for us to go for option 1.

From now to the end of the year, by tidying up the current customer base, we also hope to dig out potentials on existing customers to add some sales as well.

Rebecca, we have so much to do to turn QLD to a positive status. We are trying to help you. You need to help us as well. Let’s get excited, positive, proactive, working hard with passion in the last 2 months of the year to turn QLD around!”

[38] Ms Lu said the letter was written in the way it was because the Respondent was trying to encourage Ms Mune however it clearly stated what the Respondent wanted and said everything it needed to be in order to be a warning letter. Ms Mune said she understood the letter to be a discussion and positive help and did not regard it as a warning. Ms Mune also said she did all the things that the letter asked for.

[39] Ms Mune was asked how she interpreted the words in the letter highlighted above. Ms Mune said, “to get my act together”. Ms Mune said however she did not feel that her job was in jeopardy and that she asked for help and was told it was not needed. Mr Chapple submitted that there was not an opportunity to respond in a structured way.

[40] Ms Mune was asked if she sent to Mr Penrose the list the prospects list referred to near the end of the October letter. Ms Mune said she did not because she had been asking for help and not getting it.

Letter of 25 November 2019

[41] Ms Mune was sent a second three-page letter by the Respondent on 25 November. Ms Lu said that as no response and no immediate action was taken by Ms Mune as required and there was almost no improvement made in 4 weeks, a performance review and second warning letter was emailed. The second letter included a brief summary table of Ms Mune’s performance including that she had only submitted 2 daily reports in the four-week period and had made no cold calls.

[42] The second letter provided a subheading for the various requirements set out in the October letter under daily activities and recorded Ms Mune’s performance against that activity. The letter included that updates had not been completed, some records were missing, no explanation was provided for failure to submit reports, some closed accounts could have been saved and there had been no cold calls.

[43] The letter concluded with the following:

“Rebecca, as I have mentioned in the last letter, QLD is coming to a crucial status that forces the company to make a decision. With the 3 options I have mentioned, we are so eager to see a passionate Rebecca just like 2 years ago. We have (sic) trying for almost the whole year to go to option 1, however, we haven’t received sufficient supports from yourself so far.

Rebecca, there are only a few weeks to the end of the year. We would like to see you meet all the job requirements as we have reviewed and suggested above, and we would also like to receive a prospects list from you to support the possible growth of customer database in near future. Without these, we have to make decision to move on other options at the end of the year.

Rebecca, getting out of the comfortable zone is not easy, however, when you are trying and finally get out, you will see a brighter picture in front of you. With a new year approaching soon, we cannot wait anymore, Let’s just take action to change the current situation right now!”

[44] Ms Mune said in regard to the 25 November letter that she wrote notes on the email and a few things were untrue, but she was not specific. Ms Mune repeated her evidence that she had been asking for help and was not getting it. Ms Mune said despite the Respondent’s claims it was supporting her, between September and December she would have received a total of two hours training from Mr Penrose.

[45] Ms Mune was asked about the table near the top of the letter on 25 November, including that she only provided 2 daily reports and she did not have cold call prospects. She did not appear to contest those issues. Ms Mune did not have anything further to add in regard to the administrative issues in the letter of 25 November. Ms Lu said given the number of customers Ms Mune was visiting in this period she should have had time to submit reports and to undertake cold calling but she did not, and returned to her old pattern and the issues were not resolved.

Office Closed

[46] Ms Lu confirmed the office was closed on 24 December 2019 and Ms Mune went on annual leave.

Further letter and Termination of employment 6 January 2020

[47] Ms Mune said that on 6 January which was her last day of annual leave Ms Mune opened her personal email at approximately 4pm and saw a document containing a performance review. Ms Mune said on closing the email another email from Ms Lu was received titled “Termination Letter”. The cover email sent with the termination letter said that Ms Mune could decide to work to the final date or take annual leave. Ms Mune said that texted Ms Lu later that week and advised that she did not think it was a correct to take her annual leave during her notice period. Ms Mune said on 13 January she received an email from Ms Lu clarifying that she was not required to take annual leave during the notice period and apologised for the confusion.

[48] Ms Lu said unfortunately Ms Mune did not make any improvement and did not show any attempt to make improvement and therefore the decision was made to terminate her employment. Ms Lu said that in consideration of letting Ms Mune have a smooth holiday period, the termination of employment was delayed to 6 January 2020.

[49] Ms Mune said that the termination was based on Ms Mune’s poor performance. Ms Lu said Ms Mune was given a year to make improvements, given two warnings and a month after each warning to respond and make improvements. Ms Lu submitted however that Ms Mune failed to do this and termination was the only option.

[50] The letter sent to Ms Mune on 6 January 2020 included that by the time the business closed at the end of 2019 it had been another four weeks since the last review of 25 November. The 6 January letter contained a table setting out Ms Mune’s performance for that four-week period and including orders, CRM updates, daily reports and cold call prospects.

[51] The letter noted no daily reports or no complete CRM updates had been provided and no evidence of any cold calling. The letter contained a number of other observations critical of Ms Mune’s performance.

[52] The termination letter included that the Respondent said it had made numerous attempts in the past year to help Ms Mune meet the job requirements and improve performance however reviews of her job performance showed these attempts had failed.

Consideration

[53] In the case of an “Other Dismissal” as described in the Small Business Code, the employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. Whilst it is true the letters sent to Ms Mune did not expressly state in precise terms that her employment was at risk of being terminated, both the October and November letters made it sufficiently clear that her employment was at risk and the reasons why.

[54] It seems perhaps out of politeness, and also as Ms Lu said, a desire to attempt to continue to encourage Ms Mune, that the letters were not as blunt as they could have been. Despite this, any reasonable person would conclude that the Respondent was telling Ms Mune if things did not improve her future employment was at risk.

[55] I am also satisfied based on the evidence that the reasons being given were valid reasons based on Ms Mune’s capacity. It was clear that Ms Mune was not attracting any new customers, was not making cold calls in order to seek to attract new business and was not meeting the reporting requirements of the role. Ms Mune quite candidly admitted she was not having success in generating new customers and was struggling with cold calling. However, Ms Mune felt the Respondent had not given her sufficient support or training in improving in these areas.

[56] The evidence demonstrates Ms Mune was provided support by Ms Lu, Mr Zhang and Mr Pembroke, but unfortunately Ms Mune was not able to successfully perform certain central functions of her role including to generate new sales. The evidence in fact indicates there was some contraction in the existing customer base as well as the failure to generate new customers. Ms Mune’s explanations for why she did not provide reports or lists of prospective customers were also not acceptable explanations in the circumstances.

[57] As already set out above I am satisfied Ms Mune was warned in writing that she risked being dismissed if there is no improvement.

[58] I am also satisfied that the processes followed by the Respondent as set out in detail above demonstrate that Ms Mune was provided an opportunity to respond to the warning and given a reasonable chance to rectify the problem.

[59] For all of these reasons I am satisfied that the Respondent complied with the Small Business Code and on that basis the application is dismissed.

[60] In closing I add the observation that were it to have been the case that the Respondent failed to comply with the Code, as has been argued for Ms Mune on the basis that the letters of October and November did not constitute warnings, a subsequent weighing of the considerations under s.387 would seem almost inevitably on the state of the evidence point to the conclusion that the dismissal was not unfair.

COMMISSIONER

Appearances:

Mr A. Chapple appearing for the Applicant
Ms F. Lu and Mr J. Zhang appearing for the Respondent

Hearing details:

2020,
Brisbane:
May 7

Printed by authority of the Commonwealth Government Printer

<PR719351>

 1   Exhibit 1

 2   Exhibit 2