Collett v Leo Muller Hyundai [2002] QIRC 179 (2002) 171 QGIG 974

974 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 December, 2002 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Patrick Collett AND Leo Muller Hyundai (B1013 of 2002) COMMISSIONER SWAN 5 December 2002 DECISION Mr Collett was employed by Leo Muller Hyundai, Kedron, from 20 November 2001 until the date of his dismissal with notice on 4 June 2002. He had been employed, in a full-time capacity, as a Motor Vehicle Salesperson. The salary paid to Mr Collett was $500 per week together with commission based upon the gross profit retained through contracts secured by the applicant, together with bonuses paid when a target of 12 vehicles were sold in a month and an additional bonus per vehicle after the first 12 sold during a month. The applicant was represented by Mr W. Turner (Turner IR Qld Pty Ltd) and the respondent was represented by Mr Bob Muller for Leo Muller Hyundai. Mr Muller claimed that it was the applicant’s poor work performance which led to his termination of employment. The applicant had worked for many years in the motor sales industry and, upon being interviewed for this position, said that he was advised by Mr Henderson (formerly the General Manager for Sales for the respondent) that the company was primarily concerned about increasing the volume of used cars sold and that he was not to be concerned about any gross profit generated. During the short course of his employment, the applicant states that he was never counselled by either Mr Henderson or a Mr Schiewe (the then Manager of Leo Muller Hyundai Pty Ltd, Kedron) regarding his work performance. He further states that he was never advised that he was expected to reach profit targets for sales. Against this background, the applicant says that it came as a complete surprise to him when his services were terminated. Mr Henderson was called by the applicant to give evidence. He states that “it was made clear to Pat Collett that the position he was applying for was to involve an initial bias towards volume”. Mr Henderson was not involved in the day to day performance monitoring and counselling of the applicant were that to be required although he does state that he had a conversation with Mr Schiewe where Mr Schiewe had expressed dissatisfaction with Mr Collett’s performance and suitability for the position. -- 1 of 2 -- 20 December, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 975 Under cross-examination, Mr Henderson stated that initially his management plan at the Kedron car yard was to increase the volume of sales and that a three month time period was envisaged in which to do this. He said that in terms of the sales staff generally, a longer period might be required and that “the overall emphasis was still on volume’’ but that for sales staff with prior sales experience within the industry, a period of three months would be appropriate. In considering the sales figures for the applicant over the initial three month period, Mr Henderson agreed that the applicant’s poor sales performance generally would be cause for concern. Certainly, the applicant’s performance rose and fell during his employment but, overall, his sales performance was not impressive. Mr Henderson, whilst not directly counselling the applicant about his work performance, remained unsure as to whether Mr Schiewe had done so. All that was recalled was that he believed Mr Schiewe had made a note on his file regarding the applicant’s work performance. Mr Schiewe did not attend the hearing. Mr Muller had expected him to appear (and had his affidavit prepared), however Mr Schiewe (now working for another Company) was unable to be contacted. Ms Alison Harvey (currently employed as a sales person for the respondent) gave evidence that she recalled that the applicant had no interest in the gross profits of the business, but was solely concerned with volume of sales. Throughout her evidence, Ms Harvey expressed surprise that a salesperson could only concentrate upon sales volume because “…Pat’s commission structure, like all our packages, was based on gross profit, and had a bonus for volume”. Mr Muller, in his final submissions, stressed that ‘gross’ was always being mentioned at the workplace and everyone knew how significant it was to the effective operation of the business. He did not accept Mr Collett’s evidence in this regard. He further stated that reinstatement would be impracticable because he “couldn’t afford to lose that much money” and also because he believed that the applicant had moved away from reasonable proximity to the former place of employment. For the applicant, Mr Turner claimed that his client had not been given any warnings/counselling about his perceived poor work performance and in any event, his concentration upon the volume of sales was precisely what the employer had required. Mr Muller was unable to call evidence (other than for that of Ms Harvey) to arguably rebut elements of the applicant’s and his witness’ evidence. I can, however, only deal with the material directly before me. Mr Henderson’s evidence was not entirely helpful to the applicant. Mr Henderson agreed that concern should have been felt by the employer about the applicant’s work performance given the sales statistics presented during the case. That evidence was accepted by the Commission as being soundly based. Within this context, I accept as well Ms Harvey’s evidence as it went to salespersons’ general knowledge about how this type of business functions effectively. In short, that it would be incongruous that a salesperson could so determinedly disregard the gross profits of the business. I accept that the initial focus of the applicant’s employment could not remain static. Mr Henderson’s evidence around this point, earlier mentioned, highlights this fact (ie that “it was made clear to Pat Collett that the position he was applying for was to involve an initial bias towards volume”.) Against this, all that favours the applicant is the fact that no evidence could be drawn to show whether he had been warned/counselled about his work performance. That being so, it becomes a question of whether the dismissal was sufficiently harsh as to award the relief sought. Section 77 of the Industrial Relations Act 1999 (the Act) 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 employee 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.”. In this instance, the applicant was dismissed for his poor work performance and, from the evidence before me, he was not formally warned about such performance and its possible ramifications. I have considered this, but have formed the view that in such a performance driven occupation, coupled with the applicant’s lengthy work history within the industry, the applicant should have had sufficient insight to know that his performance was less than satisfactory. Had the applicant been warned that his job was in jeopardy, it is arguable that he may have improved his performance. However, given the sales figures that were presented and considering that the applicant was not a new-comer into the industry thereby acquiring new skills the longer he was employed, it is highly likely that this may not have occurred. The applicant had been employed for approximately six months. At the time of dismissal he was paid one week’s pay in lieu of notice. I have stated above my reservations about this application. With those in mind, I find in favour of the applicant in that having considered the requirements of s. 77 of the Act, the ‘harshness’ of the employer’s actions is that the “employee had not been warned about the conduct, capacity or performance”. I have accepted submissions (from the respondent) that reinstatement of the applicant would be “impracticable” (see s. 79 of the Act). In further considering s. 79 of the Act, I determine to award to the applicant compensation the equivalent of three weeks’ pay to be paid within 21 days from the release of this decision. Order accordingly, D.A. SWAN, Commissioner. Appearances: Released: 5 December 2002 Mr. W. J. Turner (of Turner IR Queensland Pty Ltd) on behalf of the applicant. Mr. R. L. Muller for the respondent. -- 2 of 2 --