Simon Ferguson v Buick Holdings Pty Ltd T/A DVG Automotive Group Melville
[2010] FWA 6948
•13 SEPTEMBER 2010
[2010] FWA 6948 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Simon Ferguson
v
Buick Holdings Pty Ltd T/A DVG Automotive Group Melville
(U2010/9088)
COMMISSIONER CLOGHAN | PERTH, 13 SEPTEMBER 2010 |
Unfair dismissal remedy.
[1] On 25 May 2010, Mr Simon Ferguson (“the Applicant”) made application to Fair Work Australia alleging that he was unfairly dismissed from his employment at Buick Holdings Pty Ltd T/A DVG Melville.
[2] Mr Ferguson made the application pursuant to s.394 of the Fair Work Act 2009 (“the Act”).
[3] Mr Ferguson’s application was unable to be resolved at conciliation and subsequently referred to me for arbitration. Arbitration took place on 23 August 2010. At the conclusion of arbitration, I dismissed the application. This Decision is the reasons for dismissing the application.
[4] The Applicant gave evidence on his own behalf. Mr Domenic Di Virgilio, Director, Buick Holdings Pty Ltd and Mr Simon Romeo, Dealer Principal, DVG Melville gave evidence for the Employer.
[5] To assist proceedings, both parties provided written documentation. In reaching my decision on 23 August 2010, I considered all the material provided to the Tribunal and the evidence given at the hearing.
BACKGROUND
[6] Mr Ferguson commenced employment with the Employer on 24 November 2008. At the time of his dismissal, Mr Ferguson described himself as Business Manager and After Care 1. Mr Ferguson’s employment ceased on 21 May 2010.
[7] Prior to Mr Ferguson’s termination of employment, he had returned from a period of annual leave. On returning to work, Mr Ferguson initiated a meeting which led to a discussion regarding his unsatisfactory performance 2.
[8] On 10 May 2010, Mr Ferguson emailed Mr Romeo seeking a meeting as he was “getting a different version of events through Steve Lean, Mark Tapley and yourself” and “I really would like to have some closure on this as it is quite stressful when my job security is at stake...I’d like to know and understand the situation that is being brought before me as I’d like to perform my duties to the best of my ability” 3.
[9] Mr Ferguson, at the time, was aware that there was “innuendo” that he wanted to leave his Employer or move to another area within the organisation. Mr Ferguson gave evidence that he was offered but declined another position with the Employer 4. Further, he had previously resigned but withdrew his resignation in December 2009. Mr Ferguson’s proposed position with another car yard, provided an increase in base salary and commission.
[10] The circumstances leading up to the incident which led to Mr Ferguson ceasing employment, appear somewhat strained and described by Mr Ferguson as follows:
“Well I guess they knew that I was looking around at the time, to see what was available in the months earlier to that. I guess I became too much of a problem, chasing up my pay, creating work for them and questioning their new contracts that they were about to bring in. By way of questioning them I asked what my legal position was, to which I didn’t get a response. I did ask Simon Romeo will they fire me. I remember the discussion and he said, “I don’t know. You’ll have to talk to Trish Daly because it’s a legal type question”. I then emailed Trish and I didn’t get a response.” 5
[11] Following the meeting initiated by Mr Ferguson on 11 May 2010, a record of the discussion was prepared but not presented to him due to his resignation. The memorandum is as follows:
“Record of Performance Discussion
19th May 2010
Dear Simon
This letter confirms details of discussions during your meeting on 11th May 2010 with Mark Tapley, and Steve Lean.
During the discussion you advised of your commitment to achieving your targets by 30th June 2010. The target in discussion is minimum of $625.00 per retail sale.
It was agreed that Mark Tapley will work closely with you over the next 6 weeks to ensure you are fully aware of how you are tracing against your targets and the company’s expectations.
Mark Tapley has confirmed that he is willing to meet with you on a regular bases and to provide you with assistance in every way possible. If you require further assistance from Mark, please do not hesitate to arrange this with him.
I further confirm that Mark Tapley and Steve Lean will meet with you again at the end of June to review your achievements. I feel that it is only fair to inform you that if you do not achieve your target by this time we will be required to follow up with formal disciplinary action.
Should you have any further questions regarding this letter, please do not hesitate to let Mark Tapley, Steve Lean or myself know. To acknowledge your agreement that this letter accurately summaries the details of your discussion please sign the enclosed copy and return it to me. A copy of this letter will be placed on your file.”
[12] Mr Ferguson when asked by myself if he took issue with the content of the memorandum, replied “no” 6.
INCIDENT ON 21 MAY 2010
Applicant’s Case
[13] The Applicant gave evidence to the Tribunal that he arrived at work at 9:05am to be advised that Mr Di Virgilio wanted to see him. When Mr Di Virgilio returned from a Board meeting, a discussion took place in Mr Ferguson’s office in which he was told to “sit down” in a derogatory manner. Mr Di Virgilio stated Mr Ferguson “was taking the piss”; “late”; “best excuse is heavy traffic on Leach Highway”; “had no respect for Mr Romeo”; “takes...RDO when your figures are in the shit”; and that Mr Di Virgilio “had enough of you [Mr Ferguson] I suggest you find another job and get out of my face”, and finally, “you’re fired. Go find yourself another job” 7.
[14] After his discussion with Mr Di Virgilio, Mr Ferguson spoke to Mr Romeo and asked him whether Mr Di Virgilio “is...going to cool off”, “calm down” and will “he [Mr Romeo] allow me to remain here”. Mr Ferguson then thought “I’d be cheeky and ask for a car for the weekend”. Mr Romeo agreed and provided a car. Mr Ferguson returned the car on Monday and according to him, Mr Di Virgilio “said, under his breath very quietly, ‘you walked out’.” 8
[15] According to Mr Ferguson, the discussion took place in a haranguing, aggressive and derogatory manner.
Employer’s Case
[16] Mr Di Virgilio gave evidence that he had previously counselled Mr Ferguson over taking time off and attending work late. Mr Di Virgilio became aware of Mr Ferguson taking an extended lunch break on the day before the incident on 21 May 2010.
[17] Mr Di Virgilio attended a Board meeting and returned to the dealership around 10:30am. After a discussion with Mr Romeo regarding whether Mr Ferguson had been “late for work again” 9, he sought out Mr Ferguson and both went to Mr Ferguson’s office. Mr Di Virgilio spoke to Mr Ferguson about his performance, attending work late, improving his figures, suggesting that he not take his rostered days off, he “was taking the piss” and he had no respect for himself and Mr Romeo10. Mr Di Virgilio conceded that he may have used the “f’ word. The conversation, according to Mr Di Virgilio was firm but not aggressive or abusive. Mr Di Virgilio conceded that he was annoyed regarding Mr Ferguson’s behaviour.
[18] Importantly, Mr Di Virgilio gave evidence that he stated, “if he continued with his current attitude, I would recommend that he start looking for another job, because he would not last here [with the Employer]” 11.
[19] Mr Di Virgilio left Mr Ferguson’s office to attend to another customer.
[20] After attending to another customer, he noticed that Mr Ferguson was not in his office and enquired of his whereabouts with Mr Romeo. Mr Romeo replied that he had been informed by Mr Ferguson, that Mr Di Virgilio had “sacked him”. Mr Di Virgilio advised Mr Romeo that he had not “sacked him”. Mr Di Virgilio was informed that Mr Ferguson had been allowed the use of a car until the following Monday.
RELEVANT MATTERS FOR CONSIDERATION
Performance Management
[21] It was uncontested that the Applicant was subject to performance management as a result of the meeting on 11 May 2010 with Mr Tapley and Mr Lean. At the meeting it was agreed that:
“...Mark Tapley will work closely with you over the next 6 weeks to ensure you are fully aware of how you are tracking against your targets and the company’s expectations” 12.
[22] The Applicant claimed “it was new to me” 13 the statement by Mr Di Virgilio that, “during the period of his [Mr Ferguson] employment I had reason to counsel him over aspects of his performance, including taking time off from work and attending work late”14.
[23] Following cross examination of Mr Di Virgilio, I am satisfied that the Applicant, in addition to the formal written process of performance management was counselled, on a number of occasions, by Mr Di Virgilio, regarding his performance, attitude and how he conducted himself while at work 15.
Time of Meeting on 21 May 2010
[24] In his application to Fair Work Australia, the Applicant claimed that he arrived at work five to ten minutes late due to heavy traffic. This claim is repeated in evidence by the Applicant with the additional comment, “I was speaking with another employee and I had a cigarette with them as well before I walked into the dealership, so I was actually there before the start time of nine anyway” 16.
[25] Mr Di Virgilio gave evidence that he has a Board meeting every Friday from 8:00am to 10:00am and the meeting took place sometime after 10:00am and closer to 10:30am.
[26] The Applicant stated in his evidence that the meeting “definitely” occurred, by approximation, at 9:30am, however, the reason why he was not in his office when Mr Di Virgilio returned from the Board meeting was:
“...I was looking for him because I heard he was looking for me, so I was wandering around trying to find him to get it sorted. Because I didn’t want to have this on my conscience before I started work” 17.
[27] It is difficult to conclude a Business Manager “wandering around” with, at most, being five to ten minutes late, on his conscience.
[28] From the evidence, I am not able to say when the meeting commenced, however, Mr Romeo’s evidence corroborates Mr Di Virgilio’s evidence that it was between 10:00am and 10:30am, which leaves the question of how late was Mr Ferguson for work, if he was late?
[29] I am satisfied that the Applicant was late for work to such an extent that the Employer found it necessary to address the issue expediently and robustly, in the context of the Applicant’s overall performance.
What was the relevant content of the meeting on 21 May 2010
[30] The Applicant confirmed that the first comment made by Mr Di Virgilio related to his lateness 18.
[31] It was also agreed that Mr Di Virgilio stated to the Applicant that he was “taking the piss” 19. Further, the Applicant has “no respect” for Mr Di Virgilio and Mr Romeo20. The two parties also talked about the Applicant taking rostered days off21. And finally, the parties agreed that Mr Ferguson’s performance was discussed22.
[32] Having had the opportunity to observe the witnesses, I am satisfied that Mr Di Virgilio spoke to the Applicant in a strong, firm and vigorous manner. Mr Di Virgilio did not conceal the fact that some of his language was blunt and may have used, the four letter word.
[33] The Applicant claimed in his application that Mr Di Virgilio stated, “I don’t want you here anymore, you’re fired, go find another job elsewhere, that to get out of my ****ing face and **** off”. In cross examination, he gave evidence “I’m pretty sure it was either **** or fired that he said. It was one of the two or both. I think he said, ‘you’re ****ing fired’.” 23
[34] Mr Di Virgilio gave evidence that if he [Mr Ferguson] “continued with his current attitude, I would recommend that he start looking for another job, because he would not last here [with the Employer]” 24.
[35] The Applicant, in his “Statement of Facts which the Applicant relies upon” 25, states:
“...that morning Dominic stated ‘I’ve had enough of you and strongly recommend you find somewhere else to work’...When something like this takes place one is only to concede, that there (sic) employment was finalised. To confirm if this was my termination? To be certain, I immediately approached Mr Simon Romeo...” 26. (my emphasis)
[36] In role reversal in cross examination, Mr Di Virgilio put to the Applicant, which statement did he make -- “eff off and pack your bags and eff off” or the evidence above in paragraph [35]. The Applicant, in the exchange that followed, avoided a simple and direct answer.
[37] Further, the Applicant put to Mr Di Virgilio:
“From the meeting that we had, would it not have been reasonable for me to assume that that was the termination of my employment?---No. Why would you assume that? Did I tell you to go?” 27
“You did, I believe - - -?---No, you’ve got two statements that you’ve given to me, where you’ve handed in one where you said that I told you to - in your statement, “Eff off and pack your bags and eff off” and the other one you said exactly what I said, so which one is the correct one? Which one did I actually say?” 28
[38] In considering which version of evidence I prefer, it is necessary to make two observations. Firstly, there is the inconsistency in the categorical statement by the Applicant in his application and his subsequent Statement of Facts. Mr Ferguson’s version of events in his Statement of Facts is consistent with Mr Di Virgilio’s evidence, and that if Mr Ferguson continued with his current attitude, he would not last and that he should start looking for another job. Mr Di Virgilio’s evidence was to the effect “shape up” or expect to be “shipped out”; the Employer put Mr Ferguson on conditional notice but did not terminate his employment.
[39] My second observation relates to credibility of Mr Ferguson. At a time when it was important for him to demonstrate his ability to listen and understand what was being said in the hearing, he consistently distracted himself by looking for or tidying papers. Having observed this while in the witness box, I took the opportunity, on one occasion, to ask Mr Ferguson whether he understood what the Employer’s representative was saying by way of submission, he answered, “sort of. Not really” 29. While not critical to the content of the meeting on 21 May 2010, Mr Ferguson’s demeanour at the hearing, illustrated at times, an inability to pay attention to what was being said.
[40] On balance I am satisfied that the content of the meeting was consistent with Mr Ferguson’s Statement of Facts which has Mr Di Virgilio stating, “I’ve had enough of you and strongly recommend you find somewhere else to work” 30. In the context of these particular circumstances of this application, I do not consider such a statement as tantamount, to termination of employment.
Meeting with Mr Romeo on 21 May 2010
[41] Mr Ferguson met with Mr Romeo immediately after his meeting with Mr Di Virgilio.
[42] While not mentioned in his application to Fair Work Australia, Mr Ferguson asserts in his Statement of Facts that, because of certain actions or non-actions on Mr Romeo’s behalf, “suggests he knew prior to my unfair sacking that it was going to happen” 31.
[43] It was not contested that Mr Ferguson approached Mr Romeo. In evidence, Mr Ferguson states that his purpose was to “gain further clarity on the situation” 32 and ask whether Mr Di Virgilio was going to “cool off”33 and allow Mr Ferguson to “remain” in employment. Mr Romeo did not dispute that such an exchange took place but it was in the context that Mr Ferguson’s opening statement was, “Domenic had just fired him”34. Notwithstanding Mr Romeo’s direct evidence, which in other circumstances, would assist the Applicant, Mr Ferguson was reluctant to concede that he had said these words35 but eventually gave evidence that “it was...wasn’t stated”36. For whatever reasons, Mr Ferguson gave continual evidence that he was trying to clarify the situation, whereas Mr Romeo took the view that, if Mr Di Virgilio had terminated his employment, he would not attempt to retract or remedy the situation, and provided Mr Ferguson with the use of a car over the weekend37.
[44] Shortly afterwards, after enquiring as to the whereabouts of Mr Ferguson, Mr Romeo informed Mr Di Virgilio that Mr Ferguson claimed his employment has been terminated by Mr Di Virgilio. Mr Di Virgilio immediately disputed this and gave his version of the discussion. Mr Romeo then advised Ms Daly, Group Human Resources Manager, of the two versions of events.
[45] I am satisfied that Mr Ferguson opened his discussion with words to the effect that his employment had been terminated. Having been provided with information and nothing to the contrary, I am not prepared to infer that any further actions or comments by Mr Romeo support the Applicant’s version, of what happened in the meeting with Mr Di Virgilio. Further, from the evidence presented, I am not prepared to accept the Applicant’s contention that Mr Romeo knew that the unfair sacking was going to happen.
LEGISLATIVE FRAMEWORK
[46] The relevant provisions of the Act for the purposes of this Decision are as follows:
• Section 396 - Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) …
(b) whether the person was protected from unfair dismissal;
• Section 385 - What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
• Section 386 - Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. (my emphasis)
DISCUSSION AND CONCLUSION
[47] Has Mr Ferguson been dismissed from his employment?
[48] The process of making inferences from primary facts is demanding in applications for unfair dismissal, but more so, when there is a conflict of direct oral evidence.
[49] In Mr Ferguson’s application, it is necessary to examine the totality of the evidence and not just the content of the meeting on 21 May 2010 between himself and Mr Di Virgilio.
[50] I cannot avoid the observation that the content of what is contained in Mr Ferguson’s application to Fair Work Australia, is different to his Statement of Facts provided for this hearing; the difference is significant.
[51] Mr Ferguson’s comments in his Statement of Facts on the content of the meeting with Mr Di Virgilio are consistent with Mr Di Virgilio’s own version. For this reason alone, I must conclude that Mr Ferguson’s evidence was not consistent, and consequently, questions the reliability and credibility of evidence presented.
[52] Further, when asked by the Employer to determine which version of events was correct, Mr Ferguson avoided making an unequivocal answer.
[53] In other areas of evidence, it was not contested that lateness in attending work was an issue in Mr Ferguson’s performance at work. Consequently, when analysing the evidence, as to when the meeting occurred on 21 May 2010, I prefer the evidence of the Employer that is was between 10:00am and 10:30am. Accordingly, this leads me to conclude that the Applicant was more than five to ten minutes late on that morning.
[54] I am satisfied that Mr Ferguson’s lateness on 21 May 2010, together with an extended lunch break the day before and previous time keeping issues, led the Employer to address the matter expeditiously and robustly - but not to the extent of terminating the Applicant’s employment.
[55] I have already referred to the interaction between Mr Ferguson and Mr Romeo and conclude, in the totality of the evidence, that it is not demonstrative, one way or other, regarding the conflict of oral evidence between Mr Ferguson and Mr Di Virgilio.
[56] It is not uncommon in applications such as these for the applicant to pose the question: why would he or she would walk away from their job when they have commitments both financially and to their family? I am unable to answer that question. The question suggests an answer which is intended to support, in this case, the Applicant’s version of events and negate any explanation to the contrary. The difficulty with presenting such a question (and the intended obvious answer) as a form of argument is that, it is necessary for the Tribunal to make a determination based on the evidence presented, rather than accept, as reliable and true, a proposition about the Applicant’s reasoning during a difficult workplace event. I am satisfied that Mr Ferguson was not dismissed at the initiative of the Employer.
[57] It is uncontested that there were performance issues between Mr Ferguson and his Employer.
[58] It is common in applications such as unfair dismissal, for the parties to contest a number of issues. In this particular case, the parties disputed whether the Employer knew whether the Applicant had Attention Deficit Hyperactivity Disorder or not. Further, whether the monthly performance target is fair, reasonable or industry average. In my view, unless the issues are material, it is not the Tribunal’s role to enquire into, and be determinative, of each and every contested issue in proceedings.
[59] Finally, in his Statement of Facts, Mr Ferguson claims that “they fired me and if not fired me, it would have been constructive dismissal” 38. With the exception of this reference in the Statement of Facts, it was not referred to by the Applicant in the hearing, or any evidence produced, to support the assertion.
CONCLUSION
[60] For the above reasons, I concluded on 23 August 2010, that the application be dismissed.
[61] Accordingly, an order to dismiss the application is now made.
COMMISSIONER
Appearances:
Mr S Ferguson, the applicant.
Mr R Gifford, Motor Trades Association with Ms T Daly for the respondent.
Hearing details:
2010:
Perth
23 August
1 PN 48
2 PN 69
3 Exhibit A3
4 PN 69
5 PN 83
6 PN 79
7 PN 86
8 PN 86
9 Exhibit R1
10 Exhibit R1
11 Exhibit R1
12 Exhibit R3
13 PN 241
14 Exhibit R1
15 PN 242 to PN 247
16 PN 86
17 PN 131
18 PN 139
19 PN 139
20 PN 141
21 PN 142
22 PN 143
23 PN 149
24 Exhibit R1
25 Exhibit A2
26 Exhibit A2
27 PN 250
28 PN 251
29 PN 217
30 Exhibit A2
31 Exhibit A2
32 PN 86
33 PN 86
34 Exhibit R2
35 PN 151
36 PN 154
37 Exhibit R3
38 Exhibit A2
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