Gleeson v Blenners Transport Pty Ltd [2013] FWC 76 (16 May 2013) [2013] FWC 76 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Stephen Gleeson v Blenners Transport Pty Ltd T/A Blenners Transport (U2012/12564) COMMISSIONER SPENCER BRISBANE, 16 MAY 2013 s.394 — application for an unfair dismissal remedy — harsh, unjust or unreasonable — award of compensation. Introduction [1] This decision relates to an application made by Mr Stephen James Gleeson (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) seeking an unfair dismissal remedy on the basis that the termination of his employment from Blenners Transport Pty Ltd (the Respondent) was harsh, unjust or unreasonable. [2] The matter could not be resolved by conciliation; accordingly Directions were set for the filing of written submissions and evidence. The matter was heard by the Fair Work Commission (the Commission) as presently constituted, at the Cairns Courthouse over two days. [3] At the Hearing, the Applicant was represented by Mr Adam Carter, Legal Officer of the Transport Workers Union, and the Respondent was represented by Mr Les Blennerhasset, Managing Director of the Respondent. [4] This decision does not make reference to all of the materials filed in relation to this matter; however all of such have been considered. Relevant legislative provisions [5] Section 394 of the Act, as it was at the time of dismissal, provided: 394 Application for unfair dismissal remedy ... A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy... [6] Section 387 of the Act states: 387 Criteria for considering harshness etc In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account: (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); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and (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; and (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; and (h) any other matters that FWA considers relevant. Factual background [7] At the time of termination the Applicant was employed as the Operations Manager - Southern at the Respondent’s Tully depot in Queensland. [8] Between 2009 and 2011 he was a subcontracted owner/driver for the Respondent, before being directly employed by the Respondent as a driver in November 2011. [9] The Applicant was promoted to Operations Manager - Southern in December 2011 and moved from Cairns to Tully with his family to take up the position. He remained in that position until he was dismissed from his employment on 13 August 2012. [10] There was disparity between the parties’ evidence and submissions and on the circumstances and process that led to the termination of the Applicant’s employment. Applicant’s history of the termination [11] The Applicant submitted that in his role as Operations Manager - Southern, he attempted to improve the Respondent’s compliance with the relevant legislation regarding the maintenance of log books and other records associated with fatigue management for drivers of heavy vehicles. He stated that this was done by introducing appropriate technology and compliance software, and by assisting the Respondent’s compliance officers. The Applicant had a responsibility for the rostering of drivers, to completion of orders and accordingly, was also integral to ensuring driver compliance. There is evidence that the Respondent, was also involved in compliance measures, authorising the purchasing of compliance software and engaging compliance officers. [12] The Applicant stated that in February 2012, the Respondent became the subject of a ‘Queensland Transport’ investigation focusing on compliance with fatigue management legislation. The Applicant submitted that in August 2012 Queensland Transport commenced formal interviews with some of the Respondent’s drivers. The Applicant also submitted the Respondent’s compliance officer had resigned. The Applicant’s wife had performed this role for a period. [13] In approximately April 2012 the Respondent engaged Mr Ray Lamari, a consultant, to provide business advice and to assist with operations. The Applicant submitted that on 8 August 2012, Mr Lamari called a meeting of staff and management to address ongoing compliance issues. The Applicant believed that as a result of the meeting he was excluded from decision-making with respect to compliance issues and that he perceived he was belittled by Mr Lamari during that meeting. The context of this, was that Mr Lamari had deferred to him for information as a Driver. However Mr Lamari, explained he was aware that the Applicant had experience as a driver and in dealing with the drivers and was drawing on such experience at the meeting. [14] Following the meeting, the Applicant submitted that, later that evening, he sent an email to Mr Lamari and the Respondent’s senior management, noting his anger at the perceived slight from Mr Lamari, his being excluded from decision-making on compliance issues, and concerns about his potential accountability for decisions made by Mr Lamari in regards to linehaul vehicles. [15] The e-mail sent by the Applicant, immediately prior to going on approved leave, was as follows: “Ray In response to your opening comment at today’s meeting, I seek your further thoughts on ‘shall we open the meeting with the driver, Steve’. Obviously I feel you are totally out of line with such comments and seek your apology for a questionably derogatory and downgrading remark I further question with you being under the employ of Blenners for such a short period of time what interesting story you have been fed regarding me. It seems you have reached a predetermined position regarding me as has been seen with me questioning your training program you have not taken the time to get to know what I do or in any way I may be of assistance to Blenners. I do remind you that I am appointed to Blenners as the Operations Manger and as such I remind you that I am directly tied to your involvement any further questions that may in the future arise out of the Qld investigation. A reminder that all decisions regarding the conduct of the linehaul vehicles need to be addressed to me. Should you wish to continue the current method of ‘working around me’ I request a formal letter stating such and removing me from any further implication with regard to Qld Transport. Please note this is not a resignation or request for demotion but rather clarification on what seems to be an increasingly bent position. Regards Steve Gleeson Blenners Transport” [16] The Applicant took leave from 9 August 2012 returning to work on 13 August 2012. The Applicant was called to a meeting with senior management, on the day he returned to work. The Applicant stated that, during this meeting he was told by Mr Lamari that his employment with the Respondent was being terminated, due to the email of 8 August 2012 being sent to people within the Respondent’s company, other than just Mr Lamari. It was further submitted that the termination was confirmed by Les Blennerhasset, the Respondent’s Managing Director. The Respondent denied that this email constituted the basis for the termination, but that the dismissal was related to a series of customer complaints received in the Applicant’s absence. Respondent’s history of the termination [17] The Respondent submitted that, the Applicant’s role as Operations Manager was fundamental to the transport operations, including the coordination of employees and subcontractors and the timely loading and unloading of the Respondent’s trucks for meeting clients’ orders. [18] The Respondent submitted that the Applicant’s employment was terminated due to his poor performance, which was only fully discovered by Mr Blennerhasset between 9 August 2012 and 13 August 2012, whilst the Applicant was on leave. [19] The Respondent stated that Mr Brett Peace, Assistant Manager to the Managing Director, assumed the Applicant’s duties during his period of leave. On assuming the role, Mr Peace became aware of a number of issues of concern with the Applicant’s job performance. [20] The Respondent submitted, multiple issues were conveyed to Mr Peace about the Applicant’s job performance, including a failure to properly diarise truck availabilities for pickups. He also noted that a complaint had been received on 9 August 2012, from a client regarding delivery service and the Applicant’s failure to attend to customer service and or to return customers phone calls. Further issues arose, regarding an alleged failure to follow company policy, regarding the use of subcontractors; that is, only to engage subcontractors’ trucks, once the Respondent’s trucks were engaged. [21] Mr Blennerhasset became involved, when he was made aware of the Applicant’s email sent on 8 August 2012 and of a phone call made to Mr Peace from a client making a complaint against the Applicant on the basis of communication issues with the Applicant. Following this, Mr Blennerhasset became aware of other issues regarding the Applicant’s job performance. [22] As a result of the knowledge of these issues, the Respondent called a meeting with the Applicant on 13 August 2012. The Respondent stated that Mr Lamari, early in the meeting, told the Applicant, that the Respondent, considered the termination of his employment was appropriate. The Applicant’s employment was terminated. [23] The Respondent’s case relied heavily on evidence regarding receipt of phone calls (about the Applicant’s lack of performance) whilst at a race meeting, during the Applicant’s period of leave. This evidence was completely discredited, as the date for such race meeting was demonstrated to have been after the termination date. Summary of the Applicant’s submissions and supporting evidence [24] The Applicant stated: “For most of my working life I have worked in the Transport Industry. I worked for Blenners as a subcontractor owner driver for almost 3 years between 2009 to the end of 2011. In 2011 the work from Blenners diminished because of Cyclone Yasi. Indeed, Cyclone Yasi was one of the reasons I decided to stop working as an owner driver and to seek employment as a driver.” 1 ... “At the interview with Les Blennerhassett (“Les”) (Managing Director) he made it clear to me that I needed to move my family down to Tully from Cairns. I explained that my 8 year old son is a Type 1 diabetic whose condition is difficult to manage particularly for the school he would be attending. For that reason and because I was expected to move my family I was expecting to be with Blenners for some time and I told Les as much. I agreed with Les that my salary package would include the following: A yearly salary of $85,000.00; Private and business use of company ute; Fuel for company ute; Private use of company mobile phone. My appointment as Operations Manager commenced on or about 12th December 2011. On 27 th January 2012 I moved my family down from Cairns to Tully at a cost of about $2,000.00. We moved to a suburb called El Arish. Initially my son Kaile attended El Arish State School. However we had to move him to St Clare’s Tully for the commencement of second term because of the difficulty El Arish school had with dealing with his diabetes. At the time of my appointment as Operations Manager Brett Peace had been re-employed by Blenners as Les Blennerhassets’ 2IC. I was not provided with any formal written contract of employment when I started work as an employed driver. However, in about March 2012 I was given a copy of a letter dated 7 March 2012 titled “Offer of Employment”. I did not sign the letter of offer of employment because it did not contain any reference to my entitlement to private usage of a company ute. I spoke to the Payroll Officer at that time (Rachael Smith - who is no longer working for Blenners) and advised her of this problem with the agreement. A copy of the letter of offer of employment is attached and marked “ SG-2 ” The letter of offer I was given indicated that there was a “Job Description” for my position. I was never given a job description. My position was as “Operations Manager Southern”. In that capacity I was responsible for the interstate freight task rather than intra state operations. The person responsible for intra-state work was John Law and his position was known as “Top End Manager”. As Operations Manager Southern I was responsible for the following: Ensuring that freight was picked up and delivered according to customer requirements; Maintaining contact with linehaul trucks (including sub contractors) either by phone or GPS to verify that they were travelling on time and ok. Where issues were identified re-arrange delivery schedule; Organise loads for the next day loading out; Completion of the load plans for the day or following day; Signing off on linehaul driver’s timesheets to verify the trip that was indicated on timesheet matched load plan; Dealing with telephone calls from drivers and sub contractors about allocated loads; Liaising with customers in relation to SPA agreements and manifests for the previous days loads; Liaise with credit control as to status of accounts and speak to customers requesting payment; Contact Brisbane Depot to make them aware of what vehicles were arriving; Quoting for new work; Planning of trips (particularly important at times of flooding or severe weather); At quiet times responding to drivers and sub contractors looking for work; At busy times contacting sub contractors to cover the loads; Compliance support; Relief operations in the absence of Les Blennerhassett and/or Brett Peace. I reported directly to Les Blennerhasset or if he was not around to Brett Peace. I received a couple of days of on the job training by Brett Peace. He showed me Blenners systems including a diary containing truck numbers and loads allocated. He also showed me a list of Customer Contacts, how to record the loads in the Depot Load Plans (which was contained in an excel spreadsheet), how to access and read other Depots load plans, and how to manifest the master for the load only. On several occasions in the early part of my employment I tried to contact Brett for assistance or advice. However, Brett was very difficult to contact and would not return my calls.” 2 [25] The Applicant detailed his involvement with the compliance measures and the purchase by the Respondent, of compliance software and employment of compliance officers. [26] The Applicant stated that the development of Queensland Transport’s formal investigation placed a great deal of stress on him and other employees. The Respondent’s evidence was that the Applicant had been requested not to have any further direct contact on compliance matters with the Queensland Department of Transport. This was an emerging issue between the parties as was the Respondent’s frustration that the Applicant was communicating to staff and customers that the Respondent’s business was having financial difficulties and that Mr Lamari had been appointed as an “administrator”. The Respondent was clearly frustrated with this action by the Applicant. [27] The Applicant submitted that he had been terminated, within the meaning of s.386 of the Act, on 13 August 2012. The Applicant did not seek reinstatement, on the basis of the manner in which he considered he was treated, and the reasoning related to the termination. [28] The Applicant submitted, that the termination of his employment was harsh, unjust or unreasonable. Particularly, that the dismissal was harsh, as the Applicant had moved his family from Cairns to Tully, he stated “at the behest of the Respondent” 3 and at significant cost and disruption to his family. The Applicant submitted that he is within the jurisdictional framework for an unfair dismissal application, as he has completed more than 6 months employment with the Respondent, his remuneration was below the high income threshold and the Respondent has not asserted any jurisdictional issues. [29] The Applicant contended that prior to the Queensland Transport investigation into compliance with driver fatigue management, the Applicant had attempted to improve the Respondent’s compliance. It was submitted that this was done through the introduction of appropriate technology, such as compliance software and by assisting the Respondent’s compliance officers. [30] The issue of compliance investigation was not a matter for consideration before the Commission. No clear information was raised on this matter relating to any alleged deficiencies on the part of the Respondent. The allegations raised by the Applicant in transcript, cannot be used in any reliable manner for alternative purposes. [31] In August 2012, after the Respondent’s Compliance Officer resigned, the Respondent engaged the services of a consultant, Mr Lamari who called a meeting with staff and management on 8 August 2012. The Applicant submitted that following this meeting, the consultant excluded the Applicant, from any role in improving the Respondent’s compliance and the relevant compliance systems. [32] On 8 August 2012 the Applicant sent an email (the email) to Mr Lamari questioning his exclusion. The Applicant copied in others to the email. In this email the Applicant indicated, that if he was excluded, he would not be held accountable in respect of the Queensland Transport investigation. [33] A meeting was held between the Applicant, Mr Lamari, Mr Blennerhasset and Mr Brett Peace on 13 August 2012. At this meeting the Applicant’s employment was terminated. [34] The Applicant contended that at the meeting on 13 August 2012 the only reason provided by the Respondent for his termination, was the sending of the email, dated 8 August 2012. [35] The Applicant submitted that he was not provided with a list of the Respondent’s claims about work performance issues that were relied upon by the Respondent in this matter and that when he picked up the piece of paper alleging such detail, Mr Lamari told him to put it down. The evidence of all of the witnesses was that at least a piece of paper was present at the meeting and that piece of paper was put on the table. As to the contents of the document, there was some disagreement. The Respondent’s witnesses conceded however the Applicant did not have an opportunity to review the information contained on the piece of paper regardless of whether it contained a list of performance issues. [36] The Applicant contended that the email dated 8 August 2012, did not give rise to a valid reason for termination, but put to the Respondent that the email was the real and only reason for the termination of his employment. 4 [37] The following exchange with Mr Blennerhasset took place during cross-examination: “That meeting was about the email [being the email from the Applicant]?---No, the termination meeting was after the whole weekend of complaints from customers about Mr Gleeson. The email had nothing to do with the dismissal. And like I said to you before, the email between bickering employees is nothing to do with a dismissal and would never come under dismissal from me as the owner of the business. Somebody not performing their business will get dismissed every day. So we’ve had bitches backwards and forwards between depot managers and that, backwards and forwards bickering. In this case it was Lamari and Gleeson didn’t see eye to eye. He sent the email that night. That was probably irrelevant to the meeting on the Monday. The meeting on Monday was called after all the weekend of phone calls from Brett Peace and all the customers he was talking to.” 5 [38] The Applicant also contended he was not afforded procedural fairness. He was not given an opportunity to respond to the allegations presented to him prior to dismissal. Summary of the Respondent’s submissions and supporting evidence [39] The Respondent submitted that the Applicant was given a degree of autonomy to undertake his role for the Respondent. Mr Blennerhasset was not in the business on a full-time basis. He also operated a cane farm, and Mr Lindsay operated the business for part of the year. The discharge of the Applicant’s duties in meeting customer orders was undertaken directly by telephone with customers. According to Mr Blennerhasset, until he became aware (in the Applicant’s absence) of customer complaints, regarding the manner in which, the Applicant was managing some customer orders, (given the nature of the Applicant’s role) he was not aware of the customer difficulties. The customers’ criticisms related to the Applicant not returning their calls or inappropriately organising the delivery of their product, particularly with “split loads” which required specific directions. In addition, the Respondent submitted, there were difficulties with his management of split loads. There was a requirement with these for different types of products, to be collected from one location, and then part of the load to be delivered to one location, for example, another part of the load for example to be refrigerated at a particular temperature and then moved on to the next location. The Applicant needed to monitor such loads to ensure the clients’ needs were met. [40] The Respondent’s case was that allocation and planning processes could not be left to chance. The Applicant stated, that the other depots should simply follow the paperwork instructions once it was sent. The Respondent stated that it required the Applicant to oversee this process and to ensure the load instructions were being met, and the customer product was being collected and transported to meet the customer’s requests. [41] The evidence of Mr Peace was that, where special requirements were needed for any load request, the Applicant should have emailed the depot to ensure the load sheet was read properly. The Applicant stated that if the drivers weren’t reading the load sheet properly, or the depot managers supervising this, these operational issues should not be visited upon him. [42] The Respondent also emphasised, that it was imperative, that the Applicant fill company trucks first where possible, rather than divert to subcontractor trucks. This was to ensure the best return for the company. The Respondent pointed to examples, where this was not done. The Applicant did not raise driver compliance issues in regard to these examples as to why it was not done. The Respondent did not raise any evidence that the incidents of the Applicant not fulfilling these duties were formally raised with him. [43] Mr Blennerhasset’s evidence was that he received a customer complaint from one of his major customers. Whilst there was no written evidence from the customer of such, Mr Blennerhasset stated this was not irregular. The fact that they had directly telephoned him to voice their dissatisfaction, he took as a serious customer dissatisfaction issue. [44] The Respondent submitted that a specific assessment (was made during the period of the Applicant’s leave) of his performance. The Respondent stated that this formed the basis of the dismissal. The Respondent’s evidence was called into question during cross-examination, on the manner in which he stated these customer complaints unfolded, and the Respondent’s conversations leading to the decision to dismiss the Applicant. [45] The Respondent stated that whilst the Applicant was on leave, Mr Blennerhasset (after receiving information on the Applicant’s performance) made the decision to terminate the Applicant’s employment at the Banana Race Day. The TWU brought specific evidence in the form of the newspaper advertisement for the Innisfail Turf Club Banana Industry Race Day, and the evidence by telephone of Mr Truscott, who was employed by Racing Queensland Limited 6 . Mr Truscott confirmed that the raceday in question was actually held after the date of the termination. Accordingly, as submitted by the TWU, on behalf of the Applicant, the discussion regarding the decision to termination the Applicant, could not have occurred at the race day or prior to the Applicant’s dismissal, as stated in evidence by Mr Blennerhasset. Mr Blennerhasset could not explain this lack of correlation in his evidence, between the sequence of events and the actual later date, of the raceday. He conceded that his dates were inaccurate, but maintained that the customer complaints were raised and the discussions occurred as submitted. [46] Mr Blennerhasset was, on the whole, not able to recall specific dates with any accuracy, for a range of matters, many not contentious. However he could recall with clarity the specific detail and requirements of customer orders, given this was the business he had built and conducted for many years. Mr Lindsay’s evidence (an experienced Longhaul Truck Company Operator, who assisted Mr Blennerhasset in conducting the business for part of the year) similarly lacked recall on particular dates, but like Mr Blennerhasset he was knowledgeable on the business operations, on particulars of customer orders and the required performance of the Applicant in fulfilling his role. Considerations [47] This application, as addressed, is not by default an examination of the Respondent’s driver compliance, although the Applicant repeatedly raised this. There is no clear evidence regarding what the particular alleged driver compliance issues were and in particular no evidence that the Applicant was excluded from any involvement with such compliance. The Applicant clearly had a role with this compliance, by virtue of his position in the organisation of the Respondent’s and contractor’s trucks to fulfil orders. [48] There is no clear evidence in the current matter that he took compliance concerns to the Respondent or that his adherence to regulations was thwarted by the Respondent. [49] It is acknowledged that there was a lack of information conveyed to staff, preceding Mr Lamari’s arrival in the workplace. There was no attempt by the Respondent, to specifically make the Applicant or staff aware, of the role that Mr Lamari was undertaking. It was understandable, that the Applicant was uncertain of the implications of Mr Lamari’s role, and as a result felt intimidated. This, in conjunction with the perceptions the Applicant formed after the meeting called by Mr Lamari and the commencement of the formal compliance investigation, lead to the Applicant sending the email. The Applicant’s actions in forwarding the email, to a wider audience than just Mr Lamari was improper and reasonably should have been the subject of further discussion with him by the Respondent, but did not warrant termination. [50] The Applicant stated that he had asked Mr Blennerhasset, when Mr Lamari was engaged in about April 2013, who Mr Lamari was, and queried his role. He stated Mr Blennerhasset responded “ [J]ust a man who has made a lot of money in Cairns and he is going to help me straighten my business out ”. 7 [51] Other issues for consideration in addition to the Applicant’s email were the issue of the Applicant allegedly referring to Mr Lamari as an administrator, to staff and customers, thus allegedly diminishing confidence in the business. There is also a question in relation to the genuine nature of the customer complaints, that the Applicant alleged were solicited from customers or were manufactured by the Respondent for these proceedings. This is an example of one of the customer complaints, the Applicant submitted was obtained from a customer post dismissal: “From: Sent: Thursday, 13 September 2012 10:28 AM To: 'Brett Peace (Roving Manager)' Subject: try this... Let me know what you want to change...... Dear Brett, I just wanted to let you know how relieved I was when I was told that Steve Gleeson was no longer working for Blenners Transport. I had already looked for another carrier for my interstate freight and was very close to changing over. Steve was probably a very nice person, but was not suited to the job that he was doing. He was too busy gossiping about everything and everyone to remember our loads. On one occasion, he left an entire trailer load of apples behind, even though I had booked it in with at least a weeks advance notice. I am happy to work with Blenners as we have always had a good relationship and through effective communication always worked out our freight requirements where we had a situation that worked for both of us. Steve was not flexible with this and if I asked him to do something that didn’t suit, then he just wouldn’t go out of his way to help out, as other people in his position have always done in the past. Moving forward, we are happy with your service again as Blenners have once again become flexible and are working with us to gain the best outcomes when moving our freight. Kind regards” (customer name removed, emphasis added) [52] The Respondent explained, that written confirmation of the customer complaints about the Applicant, that had been received by telephone, were sought for the purpose of providing documented evidence, at the dismissal proceedings. Section 387 [53] The following sets out the relevant considerations with respect to s.387 of the Act: Section 387(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) [54] The Applicant stated he had not been disciplined for any matter during his period of employment. 8 He also had not been made aware of any customer complaints during his employment. The Applicant argued that he was dismissed for sending the email to Mr Lamari and others. The Respondent refuted this and stated that the dismissal related to the customer complaints, discovered whilst the Applicant was on leave. The Respondent’s submission was that he could not continue to have the Applicant operate in this key position; given its importance for customer orders. And further, he stated that the Applicant’s position was not like a forklift driver’s position, where improved performance would be evident and could be monitored. He stated that the Applicant discharged his duties on an autonomous basis and was responsible for maintaining customer business. Accordingly the Respondent considered that the continuation of the Applicant in this role was not possible. No alternative employment was considered. Mr Peace and Mr Lindsay also referred to prior informal discussions that they stated had been held with the Applicant, regarding performance issues, related to errors made by the Applicant. [55] The Respondent argued that the customer complaints formed a valid reason for the dismissal. The operations with customers were the pivotal part of the Applicant’s role and central to the business operations. [56] The evidence relating to the receipt of the customer complaints during the race day and the further clearly requested written complaints, undermined the validity of the customers’ complaints. Accordingly, the Respondent, on the basis of the evidence provided, did not have a valid reason for the dismissal. Section 387(b): whether the person was notified of that reason [57] The Applicant was not notified, prior to the meeting that it was in regards to performance issues and may result in the termination of his employment. On the material before the Commission there were no clear discussions as to the basis for the Applicant’s dismissal, given the way the meeting eventuated. These matters provided deficiencies in the procedural fairness afforded to the Applicant. Section 387(c): whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person [58] The Applicant was not given a clear opportunity to respond at the meeting, as he stated that the performance issues were not clearly put to him. The Respondent stated that the Applicant’s conduct at the meeting (where he finished the meeting) prevented a clear presentation of the issues or hearing his response on these. In any event, on the evidence, prior to the meeting, the decision had already been made to terminate the Applicant’s employment. The following exchange took place in response to a question from the Commission to Mr Blennerhasset: “THE COMMISSIONER: But Mr Blennerhassett, that’s the point of my question. He was finished, wasn’t he? You had made the decision prior to the meeting he was going to be terminated?---I already made the decision prior, yes, but I hadn’t physically told Steve, no. No, but in him saying, “I’m finished, I’m sacked, you’re sacking me, when do you want me to leave?” that was in effect predetermined before the meeting and that was going to be effected at that meeting?---It was going to be effected at the meeting, that’s correct, yes. .... It seems as though the procedural fairness in relation to this matter was lacking? ---I agree, Commissioner, that the procedural wasn’t probably correct. Like I said, we don’t have a HR person and I made a decision to run my business and I rely on what I’ve said here. He’s in contact with my customers which bring in millions of dollars to us, so you know I’ve got to make a business decision to keep my place viable.” 9 [59] The Applicant wasn’t given an opportunity to convince Mr Blennerhasset or Mr Lamari that the termination was inappropriate or that he had not committed the alleged conduct in relation to the customer complaints or to discuss what assessment had been made, as to the intent of the email he sent. [60] There was also a factual dispute, related to the two versions of the document, of the list of performance issues referred to at the dismissal meeting. [61] The issue in contention was the existence of two documents; being the list presented to the Applicant at the meeting or (the alternative submissions being that it was) a document that was “created” by the Respondent after the termination, in response to the unfair dismissal. Three different items appeared on the second version; being the issue about spreading rumours regarding Mr Lamari being a voluntary administrator; the evidence regarding the customer complaints that the Applicant submits these complaints were solicited from customers particularly given the example querying whether the complaint was sufficient; and thirdly the issue about who required him to move to Cairns. [62] In relation to ss.387(a) , (b) and (c) the Respondent’s process in effecting the termination was procedurally deficient. Section 387(d): any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal [63] The Applicant did not have a support person present and was not given an opportunity to have one present. The Applicant was also denied procedural fairness on this ground. Section 387(e): if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal [64] The Respondent’s submission was that the dismissal was based on the performance issues raised by customers that were uncovered during the Applicant’s period of leave. The Applicant was not warned about these issues or allowed a period to respond to or rectify the performance issues. The Respondent considered that such a course, of remaining in employment, was not possible given the nature of the position. [65] The lack of prior notification and detail on the particular performance issues (that Mr Blennerhasset stated, had become known in the Applicant’s absence) placed the Applicant at a significant disadvantage and detracted from the fairness of the dismissal process. [66] Whilst Mr Lamari’s evidence, was that he was not concerned by the Applicant’s email, he had brought it to the attention of Mr Blennerhasset prior to the dismissal. Further Mr Lamari was advising Mr Blennerhasset on the termination, and had a role in the dismissal meeting. The email issue could have been separately dealt with. It is determined, it played a role in the Respondent’s consideration to dismiss the Applicant. Whilst the Applicant’s conduct in sending the email could have formed the basis of a disciplinary matter, that could have been resolved through separate discussions, explaining that the role of Mr Lamari was to be separate to the Applicant. The Applicant’s action in sending the email does demonstrate the developing friction between the Applicant, Mr Lamari and the Respondent. This was clearly taken into consideration, by Mr Lamari and Mr Blennerhasset, in the decision to terminate the Applicant. A loss of trust and confidence in the Applicant, was apparent from the evidence of the Respondent. Sections 387(f) and 387 (g): the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and 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 [67] Whilst the Respondent is a significant transport operation, it lacks dedicated human resource management specialists or expertise within the company. The lack of these resources and the absence of particular advice from specialists on the termination process has negatively impacted on the procedural fairness afforded to the Applicant. Section 387(h): any other matters that FWA considers relevant [68] Further to the comments made in relation to ss.387(f) and (g), the evidence of Mr Blennerhasset and Mr Lindsay demonstrated their depth of knowledge of the Trucking Industry and the nature of the operation. Mr Blennerhasset’s evidence indicated that this was a business based on meeting customer demands, for the timely delivery of their freight, in optimum condition. His evidence demonstrated that it is a business in which it is necessary to appropriately manage drivers and customers and that customers were not forgiving when they and their order requirements were not adequately addressed. These were the direct performance issues that Mr Blennerhasset concluded, the Applicant was not meeting, and that this in Mr Blennerhasset’s view could not be remedied by the Applicant. There is a need to balance the fairness afforded to the Applicant, the nature of the business, and its continuing operations as considered paramount by the Owner must also be taken into consideration. The Respondent is responsible for the employment of a large workforce. The Respondent stated the responsibility of maintaining optimum operations, was taken into account, in his assessment of the Applicant. The Respondent owns and operates a significant fleet of trucks and has a number of significant customers. The freight has a commercial value (it is often of a perishable nature) and its value is diminished, if not delivered, according to the contract formed, with the customer. Conclusion [69] There were significant procedural deficiencies in the manner in which the termination was effected, that is the Applicant was not aware of the nature of the meeting that lead to his dismissal. He was not aware of the performance issues or given an opportunity to respond or have a support person present. The termination of his employment was determined prior to the meeting, on the basis of the two versions of the document, setting out the reasons relating to the dismissal. It is found that the document was amended post-dismissal to include additional grounds. The Respondent also sought documentation from customers regarding their complaints about the Applicant. This process and the complaints, are not found to have simply been a duplication of the customer complaints previously received by phone; whilst the Applicant was on leave. [70] In addition, the conversation allegedly held at the race day, that the Respondent stated formed the critical point, (when the aggregate of the customer complaints was received), which determined, the end of the Applicant’s employment, cannot have been held at the race day. No alternative explanation could be provided by the Respondent, to reconcile these matters, related to the wrong dates of the events. However the Respondent did not resile from receiving the customer complaints and recognising the impact of the customer complaints on the business. The details of these complaints were not set out to the Applicant. The right of the Respondent to manage and protect its business is recognised, when the Applicant performs a pivotal role in the business operations. The Respondent stated it employed a significant workforce and had an obligation to ensure its operations functioned smoothly. 10 However the Applicant had a right to have knowledge of the customer complaints and to be able to respond to such. [71] The customer complaints were not verified prior to the termination with the Applicant. For the aforementioned reasons the dismissal of the Applicant, was harsh, unjust or unreasonable, given the procedural deficiencies in the process. 11 [72] The evidence of Mr Blennerhasset in regard to the dismissal was straightforward. He submitted that if the Applicant was performing his job, there was no motivation to remove him from his role. Mr Blennerhasset and Mr Lindsay were, practical experienced business operators not focussed on a dismissal of an employee, if the job was being appropriately performed. However, the Respondent did dismiss the Applicant in circumstances where they could not justify a valid reason and whereby he was not afforded a fair process. [73] In stepping through the matters related to the range of issues between the parties, I consider that the Applicant contributed to the Respondent’s decision to dismiss him by virtue of his reference to Mr Lamari as an administrator and the email to Mr Lamari and others. The email had a belligerent, demonstrative tone and was manipulatively forwarded to a range of other employees. These matters in connection with the Applicant’s remarks and subsequent criticisms of the Respondent’s transport operations regarding the Respondent’s transport investigation are not commensurate with an ongoing employment relationship. As set out above the Applicant’s conduct has been taken into consideration. In any event, given his treatment the Applicant does not seek reinstatement. [74] The Respondent was squarely responsible, for not clearly articulating the reasons for the dismissal and for denying the Applicant, the required procedural fairness as set out under the s.387 criteria. He had not received any detail, regarding the complaint or an opportunity to respond to any warnings. Accordingly in terms of the merits related to the reasoning for the dismissal and the procedure used in dismissing the Applicant, the termination was unfair. [75] The dismissal was also harsh given the Applicant’s relocation to take up the job. Taking into account the observations set out, including the Applicant’s conduct, the Respondent’s lack of human resources expertise, on balance, given all of the circumstances, I find the Applicant’s dismissal was harsh, unjust and unreasonable. Remedy [76] The relevant legislative provisions for consideration of the remedy are set out in s.390 , s. 391 and s. 392 . Section 390 of the Act sets out the following: 390 When the FWC may order remedy for unfair dismissal (1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if: (a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and (b) the person has been unfairly dismissed (see Division 3). (2) The FWC may make the order only if the person has made an application under section 394. (3) The FWC must not order the payment of compensation to the person unless: (a) the FWC is satisfied that reinstatement of the person is inappropriate; and (b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case ... [77] The applicant claimed compensation rather than reinstatement. [78] On the basis of the finding that the termination was harsh, unjust or unreasonable the appropriate remedy is now considered. In considering the remedy I followed the approaches as set out in the relevant authorities namely Parker-Walford v PHT Holdings Pty Ltd T/A Sushi-Pro and Tabro Meat Pty Ltd v Kevin Heffernan . 12 [79] The Applicant did not seek reinstatement, given the manner of the termination and the issues between the parties. The Applicant felt particularly aggrieved, that he had moved his family from Tully to Cairns, and dealt with the challenges associated with this, including moving his son with diabetes into a subsequent school. He had expected long term employment with the Respondent. The Applicant claimed the maximum amount in compensation. [80] In considering remedy, I am satisfied that the Applicant applied pursuant to s.394(3) and in accordance with s.390(3) of the Act. The Applicant was protected from unfair dismissal at the time of dismissal and the Applicant has been unfairly dismissed. I am satisfied that the reinstatement of the Applicant is not the appropriate recourse, the Respondent no longer has confidence in the Applicant performing his role and the Applicant, given the dismissal and its unfairness, does not seek reinstatement. [81] I am satisfied that an order for the payment of compensation is appropriate in all the circumstances. [82] Section 392 relevantly sets out: 392 Remedy—compensation Compensation (1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement. Criteria for deciding amounts (2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including: (a) the effect of the order on the viability of the employer’s enterprise; and (b) the length of the person’s service with the employer; and (c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and (d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and (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; and (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; and (g) any other matter that the FWC considers relevant. [83] An amount of $42,500, representing 26 weeks of the Applicant’s gross annual salary of $85,000 was sought in accordance with s.392(6)(a)(ii) , and raised with the Respondent at the hearing. [84] In respect of the matters in s.392(1) and (2), I find the following. Section 392(2)(a): the effect of the order on the viability of the employer’s enterprise [85] I find that there is no real persuasive evidence that any order for compensation would materially affect the viability of the Respondent’s business. Section 392(2)(b): the length of the Applicant’s service with the Respondent [86] The Applicant was employed as a driver with the Respondent in November 2011; then in December 2011 he accepted the position of Operations Manager - Southern and moved from Cairns to Tully until his dismissal in August 2012. [87] Whilst the length of service was not particularly significant, he had demonstrated his commitment to the position. At the time of the dismissal, the Applicant was not aware of any difficulties with his employment and anticipated long term employment with the Respondent, having relocated his family from Cairns to Tully. The move had provided some challenges to his family. Section 392(2)(c): the remuneration the person would have received or would have been likely to receive, if the person had not been dismissed [88] Whilst issues were emerging between the parties, as demonstrated by the email, and the Respondent’s direction to the Applicant not to further become involved in compliance issues with the Department of Transport, the Applicant however, was not aware of any customer complaints or issues that would put his job in jeopardy. Whilst the Respondent was of the view that these customer issues could not have been dealt with, in terms of on-going employment, the Applicant thought otherwise. These were issues that could have been addressed in an on-going performance management and monitoring process. There was an onus on the Respondent to manage the Applicant in a fair manner. Given the Applicant had moved his family to Tully and was invested in making the role work, it is anticipated ongoing employment with appropriate discussions and monitoring should have been trialled. The Respondent, despite his evidence, could have monitored the situation with customers. It is expected if an appropriate process had been followed, the Applicant may have continued in his employment for six months or more, even taking the other minor issues into account. Had the Applicant not been dismissed, he would have received $42,500 gross for the next six months work, based on his annual remuneration of $85,000. Section 392(2)(d): The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal [89] The Applicant, as per the evidence, had not been able to gain further employment except for 2 days consulting from which he had received $1,100. He suffers from a medical condition, and had a medical certificate, that he was unfit for work from 13 September 2012 to 6 December 2012. The Applicant had also been in receipt of the Newstart Allowance from 27 August 2012. Section 392(2)(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; and s. 392(2)(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 [90] There is presently no material before the Commission as to the earnings of the Applicant post-hearing. Accordingly further submissions is sought from the parties and is discussed below. Section 392(2)(g): any other matter that FWC considers relevant [91] The Applicant submitted he has a medical condition — ulcerative colitis, was exacerbated by the stress of the transport investigation and the dismissal. He stated his condition had made continuing and finding employment difficult. It is also relevant to take into account the difficulties experienced by the Applicant in relocating his family to take up the position. s.392(3) - Misconduct reduces amount [92] Section 392(3) deals with the misconduct of the Applicant in terms of an award of compensation: (3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct. [93] In relation to s.392(3) of the Act, a small deduction was taking into account the Applicant’s conduct as set out above. However, no deduction has been made give the amount spent in relocating his family and the fact that he lost access to the full personal use of the ute on dismissal. s.392(4) - Shock, Distress etc. Disregarded [94] Section 392(4) of the Act provides as follows: (4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal. [95] The order for compensation makes no allowance for the matters set out above and they have not been factored into these considerations. s.392(5) and (6) [96] Sections 392(5) and (6) of the Act provides: Compensation cap (5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of: (a) the amount worked out under subsection (6); and (b) half the amount of the high income threshold immediately before the dismissal. (6) The amount is the total of the following amounts: (a) the total amount of remuneration: (i) received by the person; or (ii) to which the person was entitled; (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and (b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations. [97] Section 393 of the Act allows for orders to be paid in instalments. The Respondent made no application in the course of proceedings to pay any order via instalments. Accordingly, the application has not been framed in this manner. Conclusion in Relation to Remedy [98] Given the time since hearing it is appropriate to direct that the Applicant provide materials in relation to any further earnings since the date of hearing to the date of this decision. Further the Applicant is directed to file, and serve, a submission as to any income reasonably likely to be earned by the Applicant from the date of the order of compensation to the date that compensation is made. The Respondent may file a reply to this material. [99] For this purpose the Applicant is directed to file, and serve, short materials in relation to these matters by no later than close of business on Friday, 24 May 2013. For the purpose of likely future earnings until compensation is received I indicate to the Applicant that the Order for compensation will issue on Thursday, 30 May 2013, once the Commission has considered the further material and will require the Respondent to comply within 14 days of that date. The Applicant should take this into account in submissions in relation to the expectations of his earnings. [100] The Respondent may file, and serve, a brief reply to those matters raised in relation to the items address by the Applicant in relation to Directions above by no later than close of business on Wednesday, 29 May 2013. If no further material is received by the Respondent it will be deemed that the Respondent does not wish to make submissions in this regard and the Commission will only have regard to that material filed by the Applicant. [101] The Applicant has sought the statutory cap; which in the circumstances is equivalent to $42,500. The final determination in relation to the amount of compensation will be made once the material is filed in accordance with paragraphs 99 to 100 of this decision. An Order will issue requiring the Respondent to make payment within 14 days of the date of that Order. COMMISSIONER 1 Exhibit 2 at 3-4. 2 Exhibit 2 at 8-17. 3 Exhibit 12 paragraph 42. 4 For example transcript of 13 February 2013, at PN62, 5 Transcript of 13 February 2013, at PN778. 6 Transcript reference PN647-PN675. 7 Exhibit 3 at 39. 8 Exhibit 2 at 37. 9 Transcript of 13 February 2013, at PN873 - PN877. 10 Transcript reference PN64. 11 Qantas Airways Limited v Carter [2012] FWAFB 5776 . 12 Parker-Walford v PHT Holdings Pty Ltd T/A Sushi-Pro [2013] FWCFB 2191 ; Tabro Meat Pty Ltd v Kevin Heffernan [2011] FWAFB 1080 . Printed by authority of the Commonwealth Government Printer <Price code C, PR532902>