Ron D'Souza v Classic Home & Garage Innovations Pty Ltd as trustee for the Steven Nicholls Family Trust T/A Classic Patios and Pools

[2014] FWC 4526

[2014] FWC 4526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ron D’Souza
v
Classic Home & Garage Innovations Pty Ltd as trustee for the Steven Nicholls Family Trust T/A Classic Patios and Pools
(U2013/15409)

DEPUTY PRESIDENT MCCARTHY PERTH, 11 JULY 2014

Application for relief from unfair dismissal.

[1] Mr Ron D’Souza (the Applicant) lodged an application for unfair dismissal (the application) claiming that he was unfairly dismissed from his employment with Classic Home and Garage Innovations Pty Ltd (the Respondent). The employer entity more accurately described as Classic Home and Garage Innovations Pty Ltd as the trustee for the Steven Nicholls Family Trust trading as Classic Patios and Pools.

[2] Initially the Applicant asserted that the Respondent was not a small business employer, however he conceded during the proceedings that the Respondent employed fewer than 15 employees at the time of his dismissal, thus meeting the requirements of s.23 of the Fair Work Act 2009 (FW Act) to be a small business employer and covered by the Small Business Fair Dismissal Code (the Code). There is no dispute that the Applicant was employed for more than 12 months. There is also no contention that the dismissal was a genuine redundancy.

[3] Here the Respondent asserts that the dismissal was consistent with the Code. In the alternative the Respondent says that the dismissal was not unfair. As there were disputed facts I dealt with all of the aspects of the application at a hearing.

The Assertions

The Respondent

[4] The Respondent asserts that the Applicant was dismissed for a form of serious misconduct. The Code Checklist completed by the Respondent stated that the serious misconduct was the company received a number of complaints from consumers in respect to:

● not turning up for appointments;
● not turning up on time;
● rudeness;
● over-aggressive selling; and
● not returning with follow up quotes with drawings.

[5] The Respondent also ticked the relevant places in the Code Checklist asserting that the dismissal was for unsatisfactory performance and that the requirements to establish compliance with the Code had not been met.\

[6] The type of conducts identified by the Respondent are not types of misconduct that could be regarded as serious misconduct. The conduct involved was not stealing, or defrauding, or threatening with violence, nor a serious safety breach, nor anything that could reasonably be described as “serious” misconduct. I made that finding during proceedings and I confirm that finding.

The Applicant

[7] The Applicant asserts that:

● he was never warned that he was not performing his role satisfactorily;
● he was not provided with any timeframe to improve (and could not have been as he was never warned);
● he was not provided with any training (or coaching or mentoring) to improve his performance; and
● he was not given any opportunity to respond.

The Evidence

[8] Mr Kim Delange, a salesman for the Respondent, gave evidence. He stated that he had received phone calls from customers that the Applicant had not turned up for appointments and on at least two occasions the conduct had been brought to the Applicant’s attention by Mr Paul Nicholls (who for convenience I regard as a Director of the Respondent). Mr Delange also stated that Mr Paul Nicholls (Mr Nicholls) had told the Applicant about his punctuality with clients that “it was not the way things are done around here”. Mr Delange recalled Mr Nicholls saying to the Applicant that “we turn up 10 minutes early, not 20 minutes late.”

[9] Mr Delange stated that it was obvious from the discussions that Mr Nicholls was telling the Applicant that he needed to improve his performance, although he did not recall the Applicant ever being told that unless he did improve he would be dismissed or was at risk of being dismissed. In Mr Delange’s words “the underlying message is [was] smarten up.”

[10] Mr Delange stated that Mr Nicholls “made a big point” about diaries and went out and bought some diaries infers that timeliness was brought to the Applicant’s attention.

[11] Mr Delange’s evidence was confined to a limited number of relevant issues. Firstly, and primarily whether the Applicant was warned about his performance and secondly, although inferentially, whether the Applicant’s performance was satisfactory, and thirdly, again inferentially, whether the Applicant was told he was at risk of being dismissed. I accept from Mr Delange’s evidence that concerns about the Applicant’s performance were brought to his attention before his dismissal, once about six weeks before the dismissal and also“mid-term”, presumably meaning about six months before. It is also safe to infer from the nature and tenor of calls received by Mr Delange from customers that there were occasions when customers complained about the Applicant’s punctuality.

[12] Mr Nicholls gave evidence. His son Steven has responsibility for the overall general management of the business and Mr Nicholls acts as a consultant for the business. It was clear that Mr Nicholls has authority to make decisions regarding the business, including giving instructions to employees. He stated that he had raised concerns with the Applicant about his timeliness with quotes and about his meeting appointment commitments. However, he gave only a couple of specific examples in any detail, both of which the facts were disputed. The Applicant was aware that Mr Nicholls took punctuality very seriously and Mr Nicholls asserts that there was a clear implication from the discussions that the Applicant was at risk of being dismissed if he did not turn up to appointments on time.

[13] He also explained that whilst he did not expressly say to the Applicant that unless he improved his performance he was at risk of dismissal it was clear from his discussions with the Applicant that an improvement in performance was expected and it logically followed that if performance did not improve that dismissal was possible, including saying to him on one occasion, “[t]his cannot be allowed to continue, Ron, you’re costing me business.” In effect he was asserting that any reasonable person would have understood from the discussions that there was a risk of dismissal.

[14] Mr Nicholls said that he explained to the Applicant that:

“I said I expected to see an improved performance because I wasn’t prepared to put up with that standard any longer because there had been previous complaints and I’d had enough.”

He stated that:

“Over an eight month period we continued to have complaints and there was no improvement.”

[15] Mr Nicholls explained his position in summary as follows:

“I deal with a lot of staff over 50 years and when you’re talking to staff, particularly, on the first or second occasion, you do not create a adversarial environment where you immediately say, “If you don’t pull your socks up I’m going to fire you.” That would create two situations: one, a harsh environment between the employee and the employer straight away when it was unnecessary when you’re actually only trying to improve the performance. And, secondly, people of Ron’s nature and selling ability - and you might note that neither in my rebuttal or his evidence has there ever been anything said that decries his ability to sell. He’s an excellent salesman. He’s worked for me on and off for over 10 years, and if he had been prepared to pull his socks up and do the job that he was paid for and not cost me money through lost leads, I would have willingly continued to employ him. On the very last day that he left I shook his hand and said, “I’m sorry that it’s come to this, I really wanted you to improve. If you give me a call on Monday I’m happy to sit down with you and discuss this further.” He never rang me ever again after that occasion. This was not a dismissal based on his inability to sell. It was a dismissal based on his defiance of management and his inability to turn up on time and teach - talk to people and deliver his services to people with respect, which is a fundamental demand that I have with all staff.”

[16] Mr Nicholls gave an outline of the nature of the business and the advertising expenditure incurred by the company. It was clear from his evidence that he believed that advertising expenditure and other efforts to gain and keep business was futile if the conduct of his staff did not meet his expectations. It did not appear to me from the evidence of Mr Nicholls that his expectations were unreasonable. Rather his evidence made it clear that being a small business standards of conduct of employees especially when dealing with customers were an important aspect of retaining business, and of achieving repeat business from past customers.

[17] Mr Nichols outlined two specific instances of complaints that had been made by customers and those two were brought to the Applicant’s attention as part of, or during, the discussion Mr Nicholls had with the Applicant regarding his performance. Mr Nicholls says that there were perhaps a dozen complaints but he did not give nor have any specifics regarding those complaints.

[18] Mr Nicholls also gave evidence that the Applicant was rude to customers in the manner that he dealt with them. The Applicant strongly disputed those contentions. Mr Nicholls stated that, “we treat people with respect and we make friends of every customer, and that’s how we’re successful. That’s a fine point you never learnt”. There is no evidence that Mr Nicholls raised these types of concerns with the Applicant at any time, which is surprising given the passion he expressed about the importance of the manner he expected salesman to conduct themselves.

[19] Mr Nicholls asserted that he stated that he raised the Applicant’s performance prior to his dismissal and gave him an opportunity to respond. Mr Nicholls explained it in this way:

“Well, I told him that I was not satisfied with his work level and that I had had enough of people ringing up complaining, and there’d been further while he’d been on holidays, and that as a result I decided to terminate his employment. I then rested from the statement and allowed him to respond and he didn’t respond.”

The Applicant

[20] The Applicant gave brief evidence that, “there been no question as far as my performance is concerned” andthat “Mr Nicholls has never raised any concerns about his performance or any complaints about his dealings with customers.”

[21] The Applicant in response to questions from the Respondent also gave the evidence that:

“But the question was, you’ve stated that at no time were you - I’ll use the word, chastised, as a comment regarding being late for your appointments?---I cannot remember when that happened.

How do you mean?---I have no recall of that ever happening.”   

[22] I gained the impression that the angst of the Applicant was greater than it would have been had he not been accused of serious misconduct rather than a more accurate reason.

Conclusions and findings

[23] There is a stark contrast between the Applicant and the Respondent regarding both the performance of the Applicant and discussions about his performance. The only evidence regarding the Respondent raising any concerns with the Applicant relates to punctuality for meetings with clients. There is no evidence of any other concerns the Respondent had about the Applicant’s performance that the Respondentnow endeavours to rely upon.

[24] I accept the evidence of Mr Nicholls that he did raise concerns with the Applicant about his punctuality. Mr Delange’s evidence is supportive of Mr Nicholls contention that the matters had been raised. Mr Nicholls gave evidence that after one discussion with the Applicant about punctuality he bought diaries in order that appointment times could be entered which is a logical. I doubt that he would take such an action unless he held genuine concerns and conveyed those concerns to the Applicant.

[25] I also accept that the nature and tenor of the discussions were clear enough that the Applicant’s employment was at risk unless his performance improved. The Applicant was also given opportunity to improve his performance.

[26] There is no evidence that the Respondent provided the Applicant with an opportunity to respond to a warning, as no specific warning was given. Nor was the Applicant provided with an opportunity to have another person present at discussion. This is most likely a consequence of the manner in which the matter was dealt with by Mr Nicholls. It should not be inferred that I am critical of Mr Nicholls approach to the issue, as he explained, it was a small business and he did not want to deal with the Applicant’s performance in a way that would have been regarded as threatening and overly formal for a small business that is reliant on harmony and teamwork. However, I find that the Respondent did not comply with the Code.

[27] There is a significant amount of evidence about the dissatisfaction with the Applicant’s performance. There were good grounds for that dissatisfaction. It is clear that the Respondent has a heavy reliance on the reputation of the business and word of mouth recommendations and repeat business from satisfied customers. I consider and find that the expectations of the Respondent were reasonable and were not being met by the Applicant. Therefore I find that there was a valid reason for the dismissal. I should add that the Respondent has no criticism of the Applicant’s honesty, nor his capacity as a salesman.

[28] I find that the Applicant was notified of the reason for his dismissal, although, I do not consider he was given an opportunity to respond. He was not refused a support person to be present as it was not requested. It should be clear from my findings above that the Applicant had been warned about that unsatisfactory performance before the dismissal.

[29] I also find that the size of the Respondent’s enterprise and the absence of dedicated human resource management specialists or expertise had a significant impact on the procedures followed in effecting the dismissal.

[30] Taking these matters into account I find that the dismissal was not harsh, unjust or unreasonable. The dismissal was not unfair and the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr D’Souza on his own behalf.

Mr Nicholls from the Respondent.

Hearing details:

2014.

Perth:

22 May.

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