Davies v Real Beginnings Pty Ltd t/a Raine & Horne Burpengary/Narangba [2003] QIRC 178 (2003) 174 QGIG 475

10 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 475 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISISON Industrial Relations Act 1999 – s. 74 – application for reinstatement Shane Davies AND Real Beginnings Pty Ltd t/a Raine & Horne Burpengary/Narangba (No. B1040 of 2003) COMMISSIONER BROWN 30 September 2003 DECISION On 25 June 2003 Shane Davies (the applicant) lodged an application for reinstatement to his former position of Sales Manager with Real Beginnings Pty Ltd t/a Raine & Horne Burpengary/Narangba (the respondent). -- 1 of 5 -- 476 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 October, 2003 The applicant worked with the respondent from 3 February 2003 until his dismissal on 23 June 2003. He had previously been employed by another Raine & Horne franchise for 5 years. The applicant’s evidence was that he attended a meeting involving himself, Ms Gina Wells (Wells), a Director of the respondent, Peter Mills (Mills), a Director of the respondent and a Ms Karen Hall (the applicant’s sister) at the Burpengary Tavern on 23 June 2003 wherein Mills raised the subject of a formal complaint from a staff member regarding the applicant’s behaviour. The applicant stated that following a disagreement as to whether or not the meeting should involve the applicant’s sister as a witness, Wells closed the meeting and directed the applicant to attend a further meeting involving the respondent’s legal advisors. Later that same day (at 1.00 p.m.) the applicant stated that he attended the office of the respondent whereupon he was terminated by letter signed by Wells and Mills which stated inter alia that the respondent had “no choice but to terminate your (the applicant’s) employment”. The applicant stated that the respondent refused to provide a copy of the letter of complaint against him. The applicant challenged the notion that there were any complaints against him and further believed that Wells had not conducted an investigation into any complaint. The applicant claimed that at no stage was he given any warnings regarding his work or conduct or the fact that he was going to be dismissed. Nor, according to him, was he given a chance to respond to allegations. The applicant alleged that Mills had advised him on the morning of 20 June that Wells would dismiss him at a meeting on Monday 23 June 2003. The applicant in evidence acknowledged attending a meeting at the Burpengary Plaza Coffee Shop on 10 June 2003. He stated that he had requested Mills to arrange the meeting because of his dissatisfaction at the manner in which the office was run. He referred specifically to office procedures and licensing. He denied having been given any warning regarding his conduct or performance at this meeting. He stated that he had requested a further meeting with Mills which occurred on 14 June 2003. This meeting, he alleged, was because of the failure by the respondent to address the issues raised in the meeting of 10 June 2003. The applicant denied requesting a letter of termination during the 23 June 2003 meeting. The applicant claimed to have been forewarned by a colleague that his job was in jeopardy prior to Thursday 16 June 2003. In cross-examination the applicant claimed to enjoy working with Wells although conceded calling her a bitch on 2 occasions. He denied ignoring directions from Wells and further denied being late for meetings. The evidence of Wells was that she was initially a property manager/sales consultant for the respondent and subsequently in June 2003 a Director of the respondent. She referred to problems she had incurred with the applicant since becoming a Director stating that he usually ignored messages left for him and, in particular, missed 3 meetings, the details of which were left in messages for him by Wells. She alleged that the applicant frequently arrived late for weekly meetings and training meetings. She stated that the applicant took a dislike to another employee, Cliff Fleming (Fleming), and spoke of Fleming in a derogatory manner. She stated that Fleming had told her of his views that the applicant was aggressive and intimidating. Wells claimed that at her instigation a meeting took place on 10 June 2003 wherein both she and Mills informed the applicant of their concerns over his behavioural traits of arrogance and aggressiveness towards staff. Wells alleged that the applicant, at this point, became angry and raised his voice and stated that he would start a business in competition with the respondent. Wells stated that she then said “If you are not happy with the company, why don’t you leave?” to which, according to Wells, the applicant replied “I will leave when I’m ready”. Wells referred to the Burpengary Tavern meeting and the complaint from Fleming. Wells stated that after initial enquiries with respect to the presence of Karen Hall, she raised the issue of the complaint and after refusing to provide a copy of the complaint to Hall, the applicant then requested to be provided with a letter of termination. Wells stated that the meeting concluded and that the applicant was later given a letter of termination drafted by Mills. Wells claimed that she had no intention of terminating the applicant at that meeting, hence the need to draft the letter at the office. Wells stated that the applicant had been paid all entitlements including one week’s notice. In cross-examination Wells stated that she had experienced problems with the applicant over a couple of months. She clarified her earlier evidence that she personally experienced problems only subsequent to 4 June. Whilst she observed the applicant’s behaviour prior to 4 June 2003 and thought it to be problematic. Wells claimed that she first received the written complaint of Fleming on 23 June 2003. Fleming stated in evidence that on 14 June 2003 he had been shouted at by the applicant in an aggressive and intimidating manner. This, according to Fleming’s evidence, led him to prepare a written complaint (attachment A to Exhibit 9) and lodge it with Wells. Fleming attested to an exchange with the applicant on 24 June 2003 subsequent to the applicant’s termination wherein the applicant allegedly again spoke and acted in an aggressive manner toward Fleming. -- 2 of 5 -- 10 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 477 Russell Mills gave evidence for the respondent stating that he witnessed the exchange between the applicant and Fleming on 14 June 2003 and stated that the applicant had commenced but not completed a letter of resignation. Russell Mills stated that he also witnessed the exchange between the applicant and Fleming on 24 June 2003 and recalled that the applicant had on numerous occasions previously talked of opening a business in competition with the respondent and also talked of resigning because of management. Russell Mills’ evidence was unchallenged. In his unchallenged evidence Peter Mills (Mills) stated that he met with Wells and the applicant on 10 June 2003 at the applicant’s request (para 6, Exhibit 10) to discuss the applicant’s complaint regarding the loss of a sale that the applicant believed should have been his. Mills recalled that during that meeting Wells raised her concerns about the applicant’s attitude and behaviour towards the staff and customers. Mills stated that he attended a private meeting with the applicant at the applicant’s request on 14 June 2003. He stated that the applicant used the opportunity to be critical of Wells and threatened to open an office in competition with the respondent. Mills recalled that on 21 June 2003, he conveyed to the applicant his view that the employment relationship had “become unworkable” and arranged a meeting for 23 June 2003 between himself, Wells and the applicant at the Burpengary Tavern. Mills claimed that the applicant responded saying that he had “already decided to leave” and that he knew “his days were numbered” and that he couldn’t work with Wells or Fleming. Mill’s recollection of the 23 June 2003 meeting was in line with that of Wells including that– • no decision had been reached regarding termination prior to the meeting; • the applicant requested a letter of termination; and • the letter was prepared and later given to the applicant after having “seen how far the relationship with Shane had broken down”. With respect to the general behaviour of the applicant, in addition to the evidence of Wells, there was unchallenged evidence from Fleming (Exhibit 12) regarding the aggressive and intimidating manner of the applicant. Russell Mills in his unchallenged evidence (Exhibit 11) also referred to the applicant becoming agitated and abusive (para 4) and angry (para 6) and threatened to leave and commercially challenge the business of the respondent. Peter Mills’ evidence (Exhibit 10), also unchallenged, described the applicant as losing his temper easily and quick to become aggressive (para 3) with clients and other staff. He further believed that the applicant was aggressive and arrogant in his remarks about Wells (para 15). On the evidence, I accept that the applicant’s demeanour as an employee and co-worker was aggressive and at times abusive and quick tempered. I further accept the evidence of Wells that it was that behaviour displayed in the incident involving Fleming that ultimately led to the termination of the applicant. The applicant’s claim that frustration caused his actions does not, in the Commission’s view, constitute a reasonable excuse for that behaviour. Section 77 of the Industrial Relations Act 1999 states: “77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider– (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to– (i) the operational requirements of the employer’s undertaking, establishment or service; or (ii) the employee’s conduct, capacity or performance; and (c) if the dismissal relates to the employee’s conduct, capacity or performance– (i) whether the employees had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant.”. The parties have agreed that the applicant was terminated by the respondent and did not resign. Regarding s. 77(a) (Provision of Reasons), the letter of termination (Exhibit 1) clearly indicated that the dismissal was for reasons of conduct. That letter stated inter alia: “Due to management receiving complaints and comments made by you against one of the directors . . . . . the directors have no option but to terminate your employment.”. Regarding s. 77(c)(i) (Warnings), the applicant claims that no warnings were received regarding either conduct or performance and rejected Wells’ account of the meeting of 10 June 2003. Wells stated (Exhibit 9, para 8) “at that meeting Peter and I said to Shane that we were concerned about his behaviour”. She then stated that this caused the applicant to respond in an aggressive manner. She then claimed to have stated (para 9) “If you’re not happy with the company, why don’t you leave?”, to which she says the applicant replied “I will leave when I’m ready”. Wells also claimed to have requested the meeting. Peter Mills, in his unchallenged evidence, stated that the 10 June 2003 meeting was requested by the applicant and that Wells had attended at the “insistence” of Peter Mills. This directly conflicts with the evidence of the applicant. Peter Mills’ evidence is further inconsistent with that of Wells in that Peter Mills claimed that it was Wells who raised her concerns about the issue of the applicant’s attitude with the applicant, whereas Wells claimed that both she and Peter Mills raised the issue. Peter Mills’ evidence then referred to him recollecting that Wells specifically mentioned the applicant’s attitude towards Fleming. -- 3 of 5 -- 478 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 October, 2003 Neither the evidence of Wells nor that of Peter Mills claimed that the applicant received a warning in the meeting of 10 June 2003 merely that concerns were raised. The evidence of both was inconsistent and the recollections of Wells under cross-examination, in my view, lacked reliability. In any event, if, on 10 June 2003, as Wells claimed, the applicant became aggressive, threatened to start a business in competition with the respondent and stated “I will leave when I’m ready”, this would have been the appropriate occasion for the applicant to be warned that his employment would be terminated if his manner and co-operation did not improve. Such an action on the part of the respondent would have been more than reasonable. This, however, did not occur. Neither Wells nor Peter Mills issued such a warning and importantly in Peter Mill’s evidence there is nothing to support Wells’ claims that the applicant reacted in an aggressive manner during the meeting of 10 June 2003. In fact, Peter Mills stated (para 16, Exhibit 10) that he became more aware of the applicant’s aggressive and arrogant behaviour after a private meeting on 14 June 2003. Peter Mills also cited the applicant’s threat to open a business in competition with the respondent only in relation to the 14 June 2003 meeting (at which Wells was not present). I have doubts as to the true account of the events of the meeting of 10 June 2003 but tend to the view that the applicant’s recollections are more accurate. However, if the version of events advances by Wells and Peter Mills are accepted, the highest it rises is that a concern was raised. I accept that no warning was issued then or later that would satisfy the requirements of s. 77(c)(i). Regarding s. 77(c)(ii), Wells’ evidence was that the exchange between the applicant and Fleming on 14 June 2003 which gave rise to the complaint from Fleming regarding the applicant was the final straw in the decision to dismiss the applicant. On the evidence of Wells, she did not provide the applicant with details of the allegations from Fleming nor did she, in conducting her investigations into the allegations, interview the applicant. I find that the applicant was not afforded an opportunity to respond to the allegations of Fleming nor to the allegations relating to his temper and behaviour prior to his dismissal. In all of the circumstances and having considered the evidence and submissions I find that the respondent did not follow due process in terminating the applicant. I find the dismissal to be harsh, unjust and unreasonable and consequently unfair pursuant to s. 73(1)(a) of the Act. With respect to remedy neither party sought reinstatement pursuant to s. 78. Section 79(1) Remedies – compensation states: “(1) If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission.”. In this light the Commission must consider the practicability of reinstatement regardless of the views of the parties. The respondent’s workforce consisted of a hand full of employees, some of whom have, on the evidence, been on the receiving end of some of the outbursts of the applicant, in particular Fleming, both during the applicant’s employment and subsequent to his dismissal. The applicant and Wells had an extremely poor relationship at the conclusion of the period of employment so much so that, in the opinion of the Commission, the level of trust and confidence necessary in an on going employment relationship would not be present (See Hall P. Queensland Teacher’s Union v. Department of Education (2000) 165QGIG 767). I find reinstatement to be impracticable and that the payment of compensation by the respondent to the applicant is an appropriate remedy in the circumstances. Regarding the amount of compensation, the applicant took reasonable steps to mitigate his loss. In fact, he was, within one week, employed by a reputable, high profile realtor in the same area as the respondent and had until the time of hearing averaged $539.75 per week in earnings. The applicant was paid the amount of $1,280 upon termination, which the parties agreed was one week’s pay in lieu of notice. Such amount being the average weekly wage earned with the respondent. On the evidence of Wells, an experienced agent would have the ability to earn a reasonable income from the commencement of employment with the new office (transcript p. 56, line 26). The applicant disagreed. The Commission is cautious with respect to determining which view is correct in the absence of anything other than opinion, however, the Commission notes that some of the work undertaken by the applicant with his new employer was work with clients that commenced whilst the applicant was employed by the respondent. The Commission further accepts the likelihood of a settling in period impacting negatively on earnings. I accept the unchallenged evidence of Peter Mills where he cited a conversation between he and the applicant on or about 21 June 2003 where Mills stated that “Your employment has become unworkable and Gina and I would like to meet with you to discuss your position” (See para 17, Exhibit 10). I further accept Peter Mills’ evidence where he stated that the applicant responded by saying “I have already decided to leave, I know my days are numbered, I cannot work with Gina or Cliff” (para 19, Exhibit 10). The applicant conceded that he had once, in the period leading to his termination, commenced to type a letter of resignation. I also accept the unchallenged evidence of Peter Mills that the applicant had stated that he would open a business in competition with the respondent. Considering all of the evidence and submissions, I find that the applicant was fast nearing the end of his employment relationship with the respondent. I am satisfied that there is no reliable method of determining the length of time this may have involved nor is there a reliable method of determining the loss – if any, that was incurred by the applicant as a result of his unfair termination. I have had regard to the submissions of both parties and I have considered the uncertain nature of the industry including the unpredictability of income. I have also considered whether the applicant would have mended his ways, effectively repairing the employment relationship, had he been properly warned. I am not confident having regard to the evidence and the demeanour of the applicant in the witness box that a formal warning would have lengthened the period of employment much past 23 June 2003. In all of the circumstances I have decided to award an amount of $2,220.75 (in addition to the $1,280 already paid in lieu of notice) to be paid to the applicant by Real Beginnings Pty Ltd t/a Raine & Horne Burpengary/Narangba within 22 days of the date of release of this decision. The above amount being the difference between the amount the applicant would have earned had he maintained his average earnings and stayed with the respondent for a -- 4 of 5 -- 10 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 479 D:\GAZ1010.DOCGAZ1010.doc further 4 weeks from 23 June 2003 (that being $5,120) and the amount he actually earned during that 4 week period, namely $1,280 being the week’s pay in lieu of notice and $539.75 per week for a further 3 weeks. D. K. BROWN, Commissioner. Hearing Details: 2003 19 September Released: 1 October 2003 Appearances: Mr M. Hains (of Hains Solicitors) for the applicant. Mr C. Harding (instructed by Bennett & Philp) on behalf of Real Beginnings Pty Ltd t/a Raine & Horne Burpengary/Narangba. -- 5 of 5 --