Winnett v Wesfarmers Dalgety Limited
[1996] IRCA 503
•4 Oct 1996
DECISION NO:503/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY AI 1042 of 1996
GARY JAMES WINNETT
Applicant
WESFARMERS DALGETY LIMITED(A.C.N. 008 743 217)
Respondent
Coram: Judicial Registrar Linkenbagh
Place: Albury
Date: 4 October 1996
REASONS FOR JUDGMENT
(Delivered ex-tempore and revised from the transcript)
This is an application pursuant to the provisions of section 170EA of the Industrial Relations Act 1988 in which the applicant seeks a remedy arising out of the termination of his employment with the respondent. The employment subsisted between 29 November 1965 and 7 March 1996. The respondent conceded in the proceedings that although there had been a change in the corporate identity of the employer during the period of employment the respondent was to be taken to have been the employer for the whole of the period for the purposes of these proceedings.
There was no issue in the proceedings that the termination of the applicant's employment was a termination at the initiative of the employer. The applicant told the Court that he left school at the age of 16 and joined the respondent's business. Up to about 1992 he worked in various capacities and at various locations in New South Wales and Victoria. He has not undertaken any tertiary education or formal training and has learned the skills necessary to perform his duties for the respondent on the job, over many years.
Until early in 1995 the respondent made no complaint about the quality of the applicant's work or the performance of his duties. Early in 1995 the respondent employed a new Merchandise Manager at the Albury Store where the applicant had been working. The Merchandise Manager, Mr Ford, initiated changes in management style and management practices, including the introduction of reporting procedures, the presentation of marketing strategies, and follow up procedures. Those practices had not been part of the applicant's duties before 1995. The applicant had some difficulty in coming to terms with the more formal management style of Mr Ford and with the new management practices.
The applicant had worked at the Albury Store since about August of 1993. There were three staff at the most and the applicant spent at least one day of each week on the road visiting farmers, ascertaining their needs and selling merchandise.
Until January of 1995 there was no formal document setting out or describing the position the applicant held with the respondent. In early 1995 the applicant was given a document which is document 1 of Exhibit A. It is entitled Position Description and describes the principal accountabilities of the position as follows:
Maximise revenues to the Branch by planning and achieving
Branch Merchandise Budgets.Maximise sales of seasonal merchandise lines by having marketing plans for all key products.
To promote and maintain sales of merchandise, real estate, “Top-Up” finance, insurance, using cross selling techniques by anticipation and assessment of clients and their business development needs.
Maintain good client relations by prompt follow up of merchandise complaints and queries.
To develop a client commitment to Wesfarmers Dalgety through
development of trust by using product knowledge, expertise,openness and oneness.
The applicant continued, having been given that document, to work at the Albury store. After 30 June 1995 the vehicle provided to him by the respondent was taken from him and he was engaged for the full week in the store. From 1 July 1995 the applicant's salary was increased from $25,000 to $29,000 per annum and from 1 October 1995 was further increased to $30,000 per annum. On 29 November 1995 the applicant completed 30 years of service with the company. He received letters from the company which are Exhibits C and D in the proceedings and a cheque for a $300 gratuity.
There were meetings on 4 August, 28 August, 8 September, 31 October, 7 December 1995 and 31 January and 7 March 1996. Records of most of those meetings are in evidence as part of Exhibit A. Goals and Objectives were set at the meetings on 8 September, 31 October and 31 January, and the Goals and Objectives changed each time they were re-written. The applicant's performance was assessed by Mr Ford on the basis of the Goals and Objectives as they were framed from time to time and the results of the assessments are part of Exhibit A. At the meeting on 7 March 1996 the applicant was informed that his assessments were inadequate and that he had not met the Goals and Objectives to the standard required, and his employment was terminated.
The applicant was of the view during 1995 that he was being assessed with a view to the ultimate termination of his employment. In his view the reports and assessments of him were negative and critical and there was little that he could do to influence the assessments of him for the better because Mr Ford was determined to eliminate him from the work place. The applicant agreed with each of the sets of Goals and Objectives which were formulated for him from time to time and he thought that they were reasonable and attainable in principle. He was of the view that he had no choice but to sign the documents which were prepared setting out the Goals and Objectives. The applicant admitted that he had difficulty with report writing and that because of his many and varied duties in the store he had difficulty organising his day and his priorities so that he could complete the administrative tasks that were set for him, in addition to his duties as a salesman.
Those are the facts from the applicant's perspective.
From the respondent's perspective the applicant over the long period of his employ had learned various aspects of his work on the job and he had never been subjected to any formal training. The respondent conceded that the applicant's many years of experience were of value to the respondent. Mr Ford introduced a new management style and following on from that there grew in the applicant a lack of respect for Mr Ford because the applicant could not see the merit in some of the requirements of Mr Ford. Examples of that were
-the need to report on contact with clients, to perform stocktaking procedures as directed by Mr Ford, and to identify and follow up cross-selling opportunities with other branches of the respondent's business
-the conducting of telephone canvassing of clients in an attempt to encourage them to do more business with the respondent
-the preparation of a marketing plan in relation to some items of shearing equipment which had a value of about $2000 in the opinion of the applicant
-disobedience of Mr Ford's instruction in relation to not selling goods below cost on one or two occasions
-failure to follow Mr Ford's instruction to take goods with the applicant in his utility when he went out on farm visits so that he might gain the benefit of any opportunity to sell goods from his vehicle
-the placing of an order for clothing contrary to an instruction of Mr Ford.
The respondent's case was that that lack of respect and differences between the applicant and Mr Ford led to a significant failure on the part of the applicant to perform his duties and hence to the termination of his employment. Detailed evidence was taken from the applicant in chief and in cross examination as to his performance of the duties which were detailed in the written Goals and Objectives. This Court finds that the evidence fails to give a balanced picture of the day to day performance by the applicant of all his tasks. It may be that the applicant did not write reports to the standard required by Mr Ford and did not canvass by telephone the number of clients he was required to contact by the terms of the Goals and Objectives, and that he did not meet the deadlines set by Mr Ford for chasing up bad debtors each month and did not formulate the strategy for the sale of the surplus or redundant shearing equipment.
No criticism was levelled at the applicant in relation to the performance of the tasks which he had apparently carried out adequately up to January of 1995. No direct evidence was adduced as to the complete range of those tasks but the evidence indicated that they included dealing face to face with customers in the store, answering telephone enquiries, meeting customers in the field and dealing with customers and others on the telephone. The evidence of Mr Ford was that the gross retail sales from the Albury store totalled $2½ million per annum. Those sales were effected by the applicant and the junior member of staff and Mr Ford who estimated that only 30 or 40 per cent of his working day was engaged in retail sales.
Ms Parker for the respondent agreed that the primary duty of the applicant related to the making of retail sales and Mr Ford conceded in his evidence that that was so. All the witnesses agreed to a greater or less extent that the applicant is a very good sales man.
The evidence indicates that the applicant was assessed and criticised and his employment was terminated, for reasons relating to shortcomings in his achievement of the standards required by Mr Ford in his performance of the Goals and Objectives. Mr Ford set those Goals and Objectives and it is the finding of this Court on the balance of the evidence that the setting of those Goals and Objectives by Mr Ford lacked the necessary degree of objectivity, given that Mr Ford's assessment of the reaching of the Goals and Objectives was to be the measuring stick for the termination of the applicant's employment. Mr Ford persisted with the Goals and Objectives and altered their terms from time to time. His view was that they were less onerous over time. The evidence does not support that view.
The evidence tends to support the reading of the Goals and Objectives as being more stringent and failing to take into account the applicant’s acknowledged difficulty in relation to report writing and telephone contact with clients. There is no evidence that Mr Ford gave any consideration to the alteration of the applicant's duties so as to suit his talents. One might ask why Mr Ford should alter the Goals and Objectives in that way. However, the applicant was a longstanding employee who had undoubted talents in the primary areas of his employment and one would have thought that if Mr Ford was genuine in his desire to objectively assess the applicant's skills and abilities, he could have thought more laterally about the setting of the Goals and Objectives.
The view of the Court in relation to Mr Ford's lack of objectivity is supported by the manner in which his assessments of the applicant are expressed. Mr Ford's assessments tend to be negative and critical. Where he wishes to be positive he uses the expressions “OK” and “good”. He does not concede the skills and ability of the applicant in relation to sales to the same extent as Ms Parker conceded those skills and abilities and does not acknowledge the significance of the value of the gross sales which passed through the store in the hands of what was effectively a senior person, a junior person and 30 or 40 per cent of Mr Ford's time.
The method that the respondent used to assess the performance of the applicant is flawed. It lacks perspective and fails to take account of all aspects of the applicant's performance over the whole range of his duties. The respondent submitted that the applicant, because of his lack of respect for Mr Ford and Mr Ford's instructions, chose what to do and what not to do out of his range of duties. The evidence does not support that submission. Certainly the applicant left the report writing and the other new tasks that were allocated to him in 1995 to the last, but there is no evidence before me to support the submission that he deliberately chose to do that.
The evidence is that this was a busy store and the applicant had a wide range of duties to perform and the Court is not satisfied that the evidence supports that submission. The applicant was given no formal training of any significance during his employment and particularly after his duties were expanded in July 1995. He is a person of limited formal education and his employer was well aware of that, but he was offered no training or real assistance in the compiling and presentation of the reports, strategies and budgets which Mr Ford asked him to prepare.
The evidence of Mr Ford and Ms Parker was that they offered assistance to the applicant in terms that if he wished to have assistance he should ask them for it. It would have been much more reasonable of Mr Ford and Ms Parker to be pro-active in the provision of training and assistance to the applicant. Had they done that, and had he continued to fail to meet the required standards, then there may have been some more valid criticism of the applicant available to the respondent. There is evidence that the applicant had learned a variety of skills on the job including knowledge of the products sold by the company and the systems which were in place, including the computerised stock control and accounting system. There is no evidence that the applicant was incapable of learning and adapting to new procedures. The difficulties which he had in report writing may well have been overcome with goodwill and assistance on the part of the employer, and the employer was well aware of his shortcomings in that area.
The Court has reservations about the attitude of Mr Ford. The applicant was an applicant for the position to which Mr Ford was appointed in early 1995, Mr Ford not having been an employee of the respondent before that time. That fact alone raises the possibility of personal differences, and the evidence indicates that little was done to avoid or resolve any day to day difficulties which arose because of the conflict between the applicant and Mr Ford.
Aspects of the evidence suggest that Mr Ford's attitude was less than ideal. One example of that is a reference in the report of the meeting on 31 January, which is document 8 of Exhibit A, to a request as to how many calls the applicant had made from his home to justify part payment of his telephone account by the respondent. Another example is a report of a meeting on 7 December 1995 where there is a reference to a failure to perform tasks "where he was required to think". The applicant did not sign records of some of the meetings when requested to do so to confirm that the records were an accurate record of the meeting. The applicant's view was that they did not give an accurate, balanced picture of the overall performance of his duties in the work place and that view is understandable when the whole of the evidence is reviewed.
When the applicant's employment was terminated he was handed a letter which is document 12 of Exhibit A. That letter is signed by Ms Parker and is favourable to the applicant in that it tells him that he has achieved the desired results in store operation including warehouse maintenance, receivable of goods, invoicing of items sold, weekly stock checking, dispatch of goods, services to clients, punctuality and loyalty to the company. It goes on to say that the areas where he has not met performance standards are in planning the week in advance, phone canvassing, marketing products and producing marketing plans for specific items, identification of cross selling opportunities, weekly reports and follow up of stock movements and general sales. Ms Parker informs the applicant that he has performed satisfactorily the duties of a Storeperson/Merchandise sales clerk but has not performed the duties which are the prime role of a Senior Merchandise Salesperson. The evidence does not justify Ms Parker's conclusions in that letter and the Court finds that the respondent did not have a valid reason within the meaning of section 170DE(1) of the Act for the termination of this employment.
The respondent has not genuinely complied with the provisions of section 170DC of the Act. There certainly were meetings and the applicant was certainly given opportunities to discuss his work performance, however, those opportunities were structured around the Goals and Objectives which were set, and the setting of those Goals and Objectives was, in the manner in which they were set, fundamentally flawed and led to a failure by the respondent to properly assess the applicant and give him the opportunity to properly respond, in the context of the overall duties, which he was engaged to perform for the respondent.
The applicant is therefore entitled to a remedy. He does not seek reinstatement. Had the applicant sought reinstatement, this is a matter in which it would have been granted. However, this is a small work place and the the evidence in relation to the personal relationship between the applicant and Mr Ford is relevant. The difficulty in that relationship is not the fault of one man or the other, and is a difficulty which has arisen because of circumstances and was probably inevitable and unavoidable. Nevertheless, it exists, and that relationship and the small size of the work place, coupled with the reluctance of the applicant to seek reinstatement, justify the conclusion that reinstatement would be impracticable.
The applicant is entitled to compensation. He has made efforts to obtain work and has earned a total of $4180 since 7 March 1996 by engaging in casual work. It is now more than six months since the date of termination of the employment and there is no evidence of the amount which the applicant earned in that six month period. However, applying the principles set out by the Chief Justice of this Court in May v Lilyvale Hotel Pty Limited (Wilcox CJ Judgment 628/95 unreported) then that consideration is, in the circumstances of this case, irrelevant.
The applicant was earning a salary of $30,000 per annum and the cap pursuant to section 170EE(3) of the Act is therefore $15,000. The applicant's loss has continued beyond six months from the date of termination of the employment and is likely to continue indefinitely. He is a man in his late 40s, he resides in a relatively small country town, he has only known one employer in his working life and his attempts to obtain work since March of 1996 have borne fruit only to the extent of providing him with farm work on a casual basis. His loss is likely to continue indefinitely, and in all the circumstances of this case it is appropriate to order the respondent to pay compensation in the sum of $15,000 pursuant to the provisions of sections 170EE(2) and (3) of the Act.
The Court orders:
That the respondent pay to the applicant the sum of $15,000 by way of compensation pursuant to the provisions of section 170EE(2) and (3) of the Act, such sum to be paid within 28 days.
I certify that this and the preceding 9 pages are a true copy of my Reasons for Judgment
Judicial Registrar Linkenbagh
Date: 17 October 1996
Counsel for the Applicant: Mr S Stuckey
Solicitors for the Applicant: Tietyens
Counsel for the Responent: Mr C Platt
Representative of the Respondent: Australian Woolselling Brokers Employers Federation.
Date of hearing: 4 October 1996
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - VALID REASON - PERFORMANCE OF DUTIES - COMPENSATION
Industrial Relations Act 1988, ss 170DC, 170DE(1), 170EA, 170EE(2) &(3)
May v. Lilyvale Hotel Pty Limited (Wilcox CJ Judgment 628/95 unreported)
GARY JAMES WINNETT v- WESFARMERS DALGETY LIMITED
(A.C.N. 008 743 217)
No. AI 1042 of 1996
CORAM: LINKENBAGH JR
PLACE: ALBURY
DATE: 4 OCTOBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY AI 1042 of 1996
GARY JAMES WINNETT
Applicant
WESFARMERS DALGETY LIMITED (A.C.N. 008 743 217)
Respondent
Coram: Judicial Registrar Linkenbagh
Place: Albury
Date: 4 October 1996
MINUTES OF ORDERS
THE COURT ORDERS:
That the respondent pay to the applicant the sum of $15,000 by way of compensation pursuant to the provisions of section 170EE(2) and (3) of the Act, such sum to be paid within 28 days.
Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
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