[2012] FWA 4382

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Fichera
v
Thomas Warburton Pty Ltd
(U2011/14651)

COMMISSIONER GOOLEY

MELBOURNE, 24 MAY 2012

Application for unfair dismissal remedy.

[1] Mr Ross Fichera (the Applicant) was employed by Thomas Warburton Pty Ltd (the Respondent) initially as the Business Development Manager and subsequently as Branch Manager from 21 January 2008 until his employment was terminated on12 December 2011.

[2] On 20 December 2011 the Applicant was advised that he would be paid five weeks pay in lieu of notice.

The evidence of the Applicant

[3] The Respondent supplies engineering and industrial lines to engineering and manufacturing and allied industries. 1

[4] The Respondent did not have a branch in Central Victoria in 2007. The Applicant commenced with the Respondent on 21 January 2008 as a Business Development Manager and he worked from home to build the branch. 2 The Applicant generated $554,060 in sales in his first year3 and in April an office was opened in Shepparton (the Branch).

[5] The Respondent then employed, in addition to the Applicant, a storeperson and a sales representative. Subsequently another sales representative was employed.

[6] In April 2009 the Applicant was appointed to the position of Branch Manager.

[7] The Respondent had in place an annual performance appraisal system. An appraisal of the Applicant was conducted in June 2009.

[8] The performance appraisal guidelines advise that “it is rare for a rating 1 or 2 to be achieved in the first 2 years in the position. If rating is 3 in section 2 or below 3 in section 3 this signifies an improvement need such as training and development.”

[9] Of the 35 categories the Applicant scored as follows:

[10] The comments by his manager at the conclusion of the appraisal were positive.

[11] A performance appraisal was not completed in 2010 and in 2011 a performance appraisal was commenced in April 2011 but was not completed. Mr Rick Sekker the Victorian Divisional Manager admitted that page 5 of the appraisal, including the employee self ratings, were completed by him albeit he said after discussion with the Applicant. 4

[12] Of the 35 categories the Applicant scored as follows:

[13] In 2009 the Branch generated $835,176 worth of sales. 5 This was an increase of 50%. In 2010 the Branch generated $1,170,763 in sales but in 2011 the sales figures declined to $999,997.6 While the figures provided by the Respondent and the Applicant differed, the parties were not cross examined on the figures. I prefer the figures provided by the Respondent. However nothing turns on this as both parties accepted that the trend shown by the figures and both parties accepted that the Branch did not make a profit during the Applicant’s employment.

[14] The Applicant was aware that the Branch did not make a profit and that sales figures and gross profit for August, September and October 2011 were substantially below budget. 7

[15] However, the Applicant did not accept that the figures meant he was not performing his job.

[16] In cross examination the Applicant gave evidence that Mr Peter Swan, the Respondent’s Managing Director, had told him that it was “common that the business would lose money in the first three years of operation.” 8

[17] He further gave evidence that there had been “discussions about the 2012 budget being diminished by a considerable amount because obviously the budget in 2011 was overstated.” 9

[18] The Applicant accepted that he had received an email on 1 August 2011 from Mr Matthew Adlington, the National Sales Manager, which had been sent to five underperforming branches in which Mr Adlington pointed out that sales and profitability were declining. In that email Mr Adlington advised the managers “something had to give. Over the coming months the Management Team will meet to look at ways to reduce costs at your location if sales don’t dramatically increase..... Remember Sales is King and your Branch needs to show a profit to justify your current personnel numbers.” 10

[19] The Applicant received an email from Mr Sekker, his immediate supervisor, on 1 December 2011 after Mr Sekker had received the Applicant’s October report for the Branch. In that email Mr Sekker told the Applicant that he was disappointed that the Applicant had submitted a report in substantially the same terms as the August and September reports. He pointed out that the Branch was below budget by $100,000 and this was a decrease of 24% on the previous year’s figures. Mr Sekker told him “this [was] unacceptable from someone with [his] experience and status within the company. With Shepparton lagging well behind where it should be at the moment - sales $143,000 down YTD on last year as well as running at a loss of $218,196 YTD NOW is the time to act, increase communication, get active, remain positive and most importantly SELL & SERVICE!” Mr Sekker invited the Applicant to forward his thoughts and plans for 2012. 11

[20] The Applicant gave evidence that at that time the Branch was already one person down. 12

[21] The Applicant accepted in cross examination that poor sales performance could lead to the termination of an employee’s employment. 13 However he did not accept that his performance appraisals indicated that he was not performing well.

[22] The Applicant explained that the poor performance of the Branch was, in part, due to business expenses being at their highest peak in the early years 14 and that he had no control over some expenses.15 He did not accept the contention of the Respondent that the Mildura branch was an appropriate comparator16 and he pointed out that the Mildura branch lost money in its first three years.17

[23] The Applicant explained that the poor performance of the Branch was due to there being “significant sales and staff changes.” Two of the sales representatives were relatively new and one significant sales representative had resigned and not been replaced. As a consequence he was required to perform significant duties in addition to his management duties. 18

[24] Mr Sekker had arranged to meet the Applicant on 12 December 2011 at the Branch to discuss the business plan for 2012. When he arrived, Mr Matthew Adlington was with him. The Applicant did not know that Mr Adlington was coming to the meeting. The Applicant was asked to get his sales representatives to come into the office. The Applicant produced his business plan and it was his evidence that he was told by Mr Adlington that he was not there to discuss “the garbage that was in [the business plan]”. The Applicant says he was asked to leave the room and his sales representatives were called into the meeting to discuss their poor sales performance. The Applicant was then asked to come back into the room. Mr Adlington told him that “there had to be a change moving forward in the business and that does not include you.” 19

[25] The Applicant was escorted off the premises. On the same day Mr Peter Swan sent an email to all staff advising them that the Applicant had ceased employment immediately. On 20 December 2011 he received his letter of termination which advised that he would be paid five weeks pay in lieu of notice. 20

[26] In cross examination the Applicant accepted that Mr Adlington told him that he was disappointed at the physical state of the Branch. 21 It was his evidence that given its location the dusty state of the Branch was inevitable.22

[27] It was his evidence that he was never warned that his employment was at risk. 23

[28] As the Applicant described it: “[He] went to work on Monday, 12 December 2011 never thinking that [he] would be dismissed and [was] escorted off the premises never to come back to the branch that [he] had built for them.” 24

The evidence of the Respondent

[29] Mr Swan gave evidence that he had a number of discussions with the Applicant about the performance of the Branch and “how long we would be able to tolerate loss making ventures.” 25 Further he gave evidence that he provided assistance to the Applicant to help him build the business. It was his view that the Branch sales “stagnated and diminished in 2011.”26 It was his evidence that it was the Respondent’s expectation that a new branch would “be at breakeven or profitable within 18 months and this has been the case at all other branches.”27

[30] Mr Swan produced a table which compared Shepparton with Mildura. From those figures, the Mildura Branch which opened in 2006, made a loss for the first three years and then made a profit from 2009. That profit had declined significantly in 2010 and again in 2011. The figures for Shepparton commenced in 2009 and it made an increasing loss in each of its years of operation. This was despite an increase in sales in 2010. Mr Swan did not provide information about comparative markets or employment numbers or costs which would have enabled any useful conclusions to be drawn from this evidence.

[31] Mr Swan received a phone call from Mr Sekker and Mr Adlington on 12 December 2011 and he “fully endorsed their decision to terminate the services of [the Applicant] as they had come to the realisation that the Branch was beyond redemption with the current manager and changes [needed] to be made.” 28

[32] It was his evidence that at some point there had been discussions about the performance of the Branch and the choice was either management changes or closing the Branch. 29 He had discussed these options with Mr Sekker and Mr Adlington.30

[33] There was no evidence from Mr Swan that he ever advised the Applicant about these options. 31

[34] In cross examination Mr Swan accepted that he never advised the Applicant formally “about his personal performance or warn or threaten [him] about possible dismissal at any time.” 32

[35] Mr Adlington, who was the Victorian Branch Divisional Manager when the Applicant commenced employment, gave evidence that he spoke to Mr Swan about the lack of sales at the Branch in March 2009 and they conducted some training at Shepparton to boost sales. 33 He followed up with the Applicant and was disappointed with his response. He made a number of suggestions about how the Applicant could improve sales.34

[36] Later in 2009 Mr Adlington worked at the Branch while the Applicant was on leave and he expressed some concerns about two members of staff and sent the Applicant an email “highlighting [his] concerns and disappointment.” He also made some suggestions to the Applicant which he said were not acted upon. 35

[37] In 2010 he approved the appointment of an additional sales representative for the Branch. He gave evidence that he received some complaints about the Applicant from other staff and his brother who was a customer of the Branch, however he did not raise these complaints with the Applicant.

[38] In July 2010 Mr Adlington was promoted to Sales Manger and Mr Sekker took over his position and the Applicant then reported to Mr Sekker. 36

[39] Despite this Mr Adlington kept in contact with the Applicant and continued to provide him with assistance. 37

[40] In late 2011 Mr Adlington received information from Mr Sekker about the lack of results from the Branch. He met with Mr Swan and Mr Sekker to discuss each branch and Shepparton was discussed in detail. Mr Adlington gave evidence that Mr Swan suggested closing the Branch but he rejected that suggestion. He proposed the he and Mr Sekker “speak to the Shepparton Team to help explain the predicament we’re in.” 38

[41] Mr Adlington went to Shepparton with Mr Sekker. They met on the way and discussed that they wanted to convey to the team “the urgency of sales and how important self ownership of the branch was to each individual in Shepparton.” 39

[42] When he arrived Mr Adlington was very upset at the physical state of the Branch. “The garden and car park was covered in weeds....the warehouse ...was covered in dust and unorganised.... the showroom...shelves were covered n dust, the shelves were not in order and in some cases product was still in their boxes sitting on the floor.” 40

[43] They told the Applicant that they wanted to meet the team and discuss the future. While this was happening Mr Adlington and Mr Sekker spoke to a team member about KPI’s and housekeeping. 41

[44] They then met with the Applicant. Mr Aldington told the Applicant about his impressions about the physical state of the Branch and the Applicant apologised. Mr Adlington said they went through the profit and loss for 2010 and 2011 and the high staff turnover, and the Applicant’s lack of travelling with sales representatives. The Applicant was told that he needed to convince Mr Sekker and Mr Adlington that he still wanted to lead the Branch. He was told to go out and “in point form jot down what was needed to stem the losses and turn Shepparton around.” 42

[45] Mr Adlington and Mr Sekker then spoke to Mr Swan and told him that if the Applicant did not convince them his employment would be terminated. Mr Adlington told Mr Swan that if it was necessary he wanted to terminate the employment that day “due to the amount of information he took from his previous employer.” 43

[46] They then spoke to the sales representatives. When the Applicant returned to the meeting he provided Mr Adlington with his 2009 business plan with the date changed to 2012. Mr Adlington told the Applicant that this was not what he wanted. He then told the Applicant that his employment was terminated. It was his evidence that they told the Applicant “As the Branch Manager of Shepparton, which lacked sales and profitability both of which the responsibility resides with you. Ross you have been given ample time to improve these circumstances. You have been given verbal warnings from both Rick and [I] and emails highlighting the need to improve both sales and profitability. Ross due to not fulfilling these requests as Branch Manager of Shepparton, the plan moving forward doesn’t include you. Your services are no longer required and your employment will be terminated as of today.” 44

[47] The Applicant was told to go and pack up his belongings and leave all information and equipment in the office. It was his evidence that the Applicant was given an opportunity to speak to his staff and say goodbye. 45 Mr Adlington gave evidence that the Applicant left behind his lap top but all the information on it had been deleted and all customer and supplier contact cards had been removed.46

[48] It was Mr Adlington’s evidence that no decision had been made to terminate the Applicant’s employment prior to 12 December 2011. He decided to dismiss the Applicant after talking to the other staff and the Applicant and after reaching the conclusion that the Applicant “had completely lost his way from a management point of view.” From his point of view the physical appearance of the Branch and the demeanour of the staff had both deteriorated. 47

[49] Mr Adlington concluded that the Applicant was “demotivated, flat.... with no answers or no direction as to how he was going to move forward, almost to the point of just none, it was the end of the road. There was nothing left there.” 48

[50] Mr Adlington explained that the Applicant was not performance managed because of the “Applicant’s destructive nature when [he] came on board.” 49 Mr Adlington took the view that it was too risky for the Respondent for this process to be followed.50

[51] Mr Sekker, the Victorian Divisional Manager, commenced in July 2010. It was his evidence that he had face to face discussions with the Applicant in November 2010, March, April and July 2011 about the performance of the Branch. 51

[52] Mr Sekker conducted a performance review of the Applicant in April 2011, but as discussed earlier, it was not completed by the Applicant and it was never finalised. This was despite Mr Sekker being aware that no performance appraisal had been completed the year before. There was also no evidence of any follow up about it after April 2011.

[53] In September 2011 a case study was conducted which “is a health check on all the administrative processes of the Branch.” Mr Sekker described “the result as good, except for Ross not travelling with his ADM’s.”

[54] In December 2011 having received the Applicant’s monthly report, Mr Sekker sent the Applicant an email in which he expressed his disappointment about the repetitiveness of the Applicant’s reports and the poor financial results of the Branch. Mr Sekker asked the Applicant to prepare a business plan for 2012 and arranged to visit the Branch on 12 December 2011. 52

[55] He met with Mr Swan and Mr Adlington prior to going to Shepparton to discuss how to handle the Branch and it was agreed that Mr Adlington would go to the Branch with Mr Sekker. Mr Sekker said their “only motivation was to spark Shepparton into action and shake off the apathy that the store seemed to be stuck with.” 53

[56] Mr Sekker said that on his arrival at the Branch he was “stunned with the overall appearance of the store.” 54 Mr Sekker and Mr Adlington then spoke to a staff member while waiting for the sales representatives to be called back into the office by the Applicant. Mr Sekker said that they told the Applicant that they were disappointed with the appearance of the Branch, the “lack of staff motivation, the increase in heavy losses to last year, the poor staff turnover and the lack of sales etc.”55

[57] He said they gave the Applicant 60 minutes to think about “how he was going to prove to [them] that he was committed to turning Shepparton around to advise us how he was going to do it.” 56

[58] He was looking for the Applicant to “return to the meeting with some passion, resolve and ideas for moving forward.” 57

[59] They then met with other staff and were “floored by the complete lack of enthusiasm, motivation and generally knowledge of what is not only expected of them but the Branch as a whole.” 58

[60] When the Applicant returned Mr Sekker decided that he lacked “drive, direction and any sign of enthusiasm.” 59 They decided that his employment would need to end.

[61] Mr Sekker said that the Applicant was given an opportunity to say goodbye to the staff and collect his belongings. After the Applicant had left Mr Sekker said they discovered that “all Ross’s emails had been cleared out, all business cards taken and general (sic) all relevant information had been cleared from his office. This is why he decided that the Applicant would be paid his notice rather than working out his notice.” 60

[62] Mr Sekker accepted that the meeting on 12 December 2011 was not part of any performance management of the Applicant. 61

[63] Mr Sekker’s only explanation about why the performance management process that had been applied to another staff member was not applied to the Applicant was because of the different positions occupied by the respective employees. 62

[64] Mr Sekker did not share Mr Adlington’s view that this process had not been followed because it was feared that the Applicant would damage the business. 63

[65] Given it was Mr Sekker’s evidence that he and Mr Adlington had not decided to terminate the Applicant’s employment until the meeting on 12 December 2011, I asked what made him decide then to terminate the Applicant’s employment. Mr Sekker said “the complete disarray of the store, the complete lack of leadership through the staff, and when we actually spoke to Ross the complete lack of drive that came across.” 64

[66] He decided there was no point in going any further. 65

[67] Ms Rose Vargiu, the Human Resources Manager for the Respondent, gave evidence that the Applicant knew he was entitled to have a support person present as he had received training and because he had performance managed another employee. 66

[68] Ms Vargiu was absent from November 2011 until 30 January 2012. It was her evidence that she was the only HR person employed by the Respondent. 67

[69] Ms Vargiu gave evidence that all managers were trained in unfair dismissal laws. 68

[70] It was her evidence that there was a company policy dealing with performance management and it involved “written warnings, time to improve, counselling, offers of support persons and further training relating to the concerns.” 69

[71] It was her evidence that she was never asked to performance manage the Applicant. 70

[72] In determining whether the termination was harsh, unjust or unreasonable Fair Work Australia must have regard to 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);

[73] The Applicant submitted that there was no valid reason for the termination of his employment. However the Applicant did not explain this submission as he focused on the failure of the Respondent to provide him with any warning that his employment was at risk.

[74] The Respondent submitted that there was a valid reason for the termination because the Applicant was unable to manage the Branch.

[75] It is clear from the evidence that the Branch was not making a profit. The Applicant was the Manager and it was his responsibility to manage the staff of the Branch. While the Applicant did provide some explanation about why the Branch was not performing he did not in any substantive way challenge the submissions of the Respondent that the poor performance of the Branch in 2011 provided the Respondent with a valid reason for terminating his employment.

[76] I accept the Respondent’s submission that poor performance of the Branch combined with incapacity of the Applicant to provide the leadership necessary to turn the Branch around meant that there was a valid reason for the termination of the Applicant’s employment.

s387(b) whether Applicant was notified of that reason;

[77] The Applicant was told the reasons for the termination of his employment on the day his employment was terminated.

[78] In Crosier v Palazzo Corporation Pty Ltd 71 the Full Bench of the Australian Industrial Relations Commission considered whether the equivalent provision in the Workplace Relations Act 1996 (as it existed prior to Workplace Relations Amendment (Work Choices) Act 2005) required the employee to be notified before the decision was made.

[79] The Full Bench held that:

[80] It is clear on the evidence that the Applicant was not advised of the reasons for the termination of his employment before the decision was made to terminate his employment. On the evidence of Mr Sekker and Mr Adlington the decision was made after the Applicant failed to evidence sufficient leadership to turn the Branch around. That assessment was made and the Applicant was advised of the decision at the same time his employment was terminated.

[81] I do not accept the Applicant’s contention that the decision was made to terminate his employment prior to 12 December 2011. I accept the evidence of Mr Sekker and Mr Adlington that they only made the final decision on the day. However at no time prior to making that decision did they advise the Applicant that they were considering the termination of his employment.

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

[82] For the reasons set out above in relation to section 387(b) the opportunity to respond is a reference to an opportunity to respond before a decision is taken to terminate the employee’s employment.

[83] I find that the Applicant was not provided with an opportunity to respond to the reason for his termination.

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

[84] The Respondent did not refuse to allow the Applicant to have a support person present. However as the Applicant did not know that the meeting could lead to the termination of his employment he did not request a support person be present.

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

[85] The Applicant was a senior manager and had extensive experience in the industry. I accept that a person in his position should have recognised that the poor performance of the Branch reflected on his performance as a manager. He should have been aware that continued poor performance of the Branch for which he was responsible, could lead to the termination of his employment.

[86] Despite that, the Applicant was never told that his employment was at risk. Even when there was discussion at senior management level that one possible response to the Branch’s results was to shut the Branch, the Applicant was not put on notice of how serious things had become.

[87] The Respondent had a performance appraisal system in place. Despite this no appraisal was conducted in 2010 and a partial appraisal was conducted in 2011. One would have expected, given the concerns about the Branch’s performance in 2011, that this appraisal would have been completed. In any event the Respondent’s assessment which was completed in that appraisal would not have led an employee to think their employment was at risk.

[88] The Respondent also had a performance management process. It was not followed in this case. While there were discussions about the poor performance of the Branch and some oblique comments about reducing costs if things did not improve, the Applicant was never told that his unsatisfactory performance could lead to the termination of his employment.

[89] The Respondent submitted that the Applicant knew that his employment was in jeopardy on 12 December 2011 because they allege he wiped his computer clean prior to being told his employment was going to be terminated. 73 I do not accept this submission. Firstly there is no evidence to suggest the Applicant wiped information from his computer prior to being told his employment was terminated. This allegation was not put to the Applicant in cross examination. It was put to him that after his employment was terminated he removed information from the laptop that was the property of the Respondent.74 The Applicant denied this allegation stating he had only deleted personal information.

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;

[90] The Respondent is not a small employer and the evidence established that its managers had been trained in unfair dismissal law and the Respondent had a performance management procedure.

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;

[91] I accept that the Human Resources Manager was absent at the time. However there were no submissions made that the decision makers were inexperienced or untrained in fair dismissal procedures. They consulted with the General Manager prior to making their decision.

s387(h) any other matters that FWA considers relevant.

[92] The Applicant was required to leave the premises on the day his employment was terminated. It was his evidence that he was not permitted to say goodbye to his staff and he was not cross examined on this. However he also did not challenge the evidence of Mr Adlington and Mr Sekker that he was permitted to speak to his staff. I accept that the Applicant felt belittled because his staff saw him being required to pack up his belongings and leave the premises. 75 While Fair Work Australia is not permitted to have regard to the manner of the dismissal in determining any compensation that may be awarded, I consider that the manner of the termination is a relevant consideration when determining if the termination was harsh, unjust or unreasonable.76

[93] The Applicant was paid in lieu of notice. He was not permitted to work out his notice. I do not accept the evidence of Mr Sekker that they only decided not to let the Applicant work out his notice when they discovered that he had deleted information from his computer and removed some documents. This evidence is entirely inconsistent with his earlier evidence and the evidence of Mr Adlington.

[94] Mr Adlington made it clear that he did not follow the normal performance management process because of his fear of the damage the Applicant may have done to the business during the time this process would have taken. Mr Adlington’s evidence on this was very vague and not supported by Mr Sekker. I consider it relevant that the Applicant was not permitted to work out his notice and hence was not afforded the opportunity to seek alternative employment whilst still in employment. It is also relevant the Applicant was only advised formally that he was to be paid in lieu of notice on 20 December 2011.

Was the Applicant unfairly dismissed?

[95] I have concluded that there was a valid reason for the termination of the Applicant’s employment. However having regard to the failure of the Respondent to comply with its own performance management process and its failure to ever warn the Applicant that his employment was at risk, I find that the Applicant was unfairly dismissed.

Remedy

[96] The Applicant does not seek reinstatement.

[97] In assessing what if any compensation should be awarded, section 392 of the FW Act requires that regard to be had to the following:

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

[98] No submissions were made on the effect of any order on the viability of the Respondent’s business. 77

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

[99] The Applicant had four years service with the Respondent.

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

[100] Had the Respondent not determined to dismiss the Applicant on 12 December 2011 and followed its performance management procedure the Respondent submitted that it would have terminated the Applicant’s employment within one to two months. 78 I accept these submissions. The evidence supports a conclusion that the Applicant would not have been able to turn the Branch around and I accept the Respondent’s evidence that the losses could not be sustained.

[101] I consider on the evidence that the Respondent would have terminated the Applicant’s employment at the end of that time. I therefore consider that it is likely that the Applicant’s employment would have ended in eight weeks.

[102] The Applicant’s weekly remuneration was as follows:

[103] The Applicant claimed a number of other amounts. However I have not included in my calculations his fuel card allowance as there is no evidence that the Respondent paid for petrol for the Applicant’s personal use of his vehicle. He had also included amounts for a mobile phone, lap top and car insurance. Had the Applicant worked for a further two months these would have been provided by the Respondent and were not part of the Applicant’s remuneration.

[104] Had the Applicant remained in employment for a further two months he would have received $11,938.08 gross and $894.24 would have been paid to his superannuation fund.

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

[105] The Applicant’s evidence was that he commenced looking for work immediately. It was his uncontested evidence that he applied for 60 jobs and put his name down at a geographically wide range of employment agencies. It was his evidence that he even sought labouring work. He obtained new employment in March 2012 as a sales manager for Victoria and Tasmania. He earns more in this position than he was paid by the Respondent. However he is required to travel extensively with his new position.

(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;

[106] Given my decision about the period of time the Applicant would have remained in employment this is not relevant.

(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;

[107] Given my decision about the period of time the Applicant would have remained in employment this is not relevant.

(g) any other matter that FWA considers relevant.

[108] The Respondent submitted that regard should be had to the monies already paid to the Applicant. The Applicant was paid his notice and accrued entitlements. His notice payments included certain allowances that were payable to him. This was however no more than the Applicant was entitled to receive as the National Employment Standards requires that the employee who is paid in lieu of notice must be paid the amount the employer would have been liable to pay to the employee at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

[109] The Applicant submitted that the actions of the Respondent left him unemployable in the Shepparton region and consequently he had to look for work away from the region he had lived in all his life. 79

[110] There is no suggestion that the Applicant was guilty of misconduct.

[111] Section 392(4) of the FW Act provides that no compensation can be ordered for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Conclusion

[112] While I have found that the termination of the Applicant’s employment was for a valid reason I have found that the termination was procedurally unfair. I therefore find that the termination of the Applicant’s employment was unfair.

[113] I find that had the Applicant been performance managed his employment would have ended at the conclusion of that process. On the evidence before the Tribunal that process takes approximately two months.

[114] An order for compensation equivalent to eight weeks remuneration is appropriate in all the circumstances.

[115] An Order requiring the Respondent pay to the Applicant $11,938.08 gross less appropriate taxation and to the Applicant’s superannuation fund $894.24 will issue with this decision [PR524199].

COMMISSIONER

Appearances:

R Fichera on his own behalf.

C Symons for the Respondent.

Hearing details:

2012.
Shepparton:
April 20.

 1   Transcript PN 331-334

 2   Exhibit A1 at [1]-[4]

 3   Ibid at [5]

 4   Transcript PN 563

 5   The Applicant claimed to have generated $934,761 in 2009

 6   Exhibit R1

 7   Transcript PN 128

 8   Ibid PN 114

 9   Ibid PN 134

 10   Exhibit R2

 11   Exhibit R3

 12   Transcript PN 161

 13   Ibid PN 166

 14   Ibid PN 199

 15   Ibid PN 204

 16   Ibid PN 208

 17   Ibid PN 209

 18   Ibid PN 330

 19   Exhibit A1

 20   Ibid

 21   Transcript PN 274

 22   Ibid PN 275

 23   Exhibit A1 at [4]

 24   Transcript PN 50

 25   Exhibit R1 at [7]

 26   Ibid at [12] and [13]

 27   Ibid at [13]

 28   Ibid at [14]

 29   Ibid at [15]

 30   Transcript PN 399

 31   Ibid PN 398

 32   Ibid PN 397

 33   Exhibit R2 at [2]

 34   Ibid at [3]

 35   Ibid at [4]

 36   Ibid at [7]

 37   Ibid at [8]

 38   Ibid at [10]

 39   Ibid at [11]

 40   Ibid at [11]

 41   Ibid at [12]

 42   Ibid at [13]

 43   Ibid at [14]

 44   Ibid at [16]

 45   Ibid at [16] and [17]

 46   Ibid at [20]

 47   Transcript PN 464

 48   Ibid PN 467

 49   Ibid PN 488

 50   Ibid PN 489

 51   Exhibit R3

 52   Ibid

 53   Ibid

 54   Ibid

 55   Ibid

 56   Ibid

 57   Ibid

 58   Ibid

 59   Ibid

 60   Ibid

 61   Transcript PN 569

 62   Ibid PN 574

 63   Ibid PN 575

 64   Ibid PN 577

 65   Ibid

 66   Exhibit R4

 67   Transcript PN 602

 68   Ibid PN 604

 69   Ibid PN 606

 70   Ibid PN 608

 71   Print S5897

 72   Ibid at [73]

 73   Exhibit R5

 74   Transcript PN 290

 75   Exhibit A1 at [8]

 76   Section 392(4)

 77   Transcript PN 706

 78   Ibid PN 707

 79   Exhibit A2

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