Bretton v Bushby Brand Chemicals [1994] QIRC 4 (1995) 145 QGIG 333

332 QU EENSLAND GOVERNMENT INDUS TR IAL GAZ ETTE 110 February, 1995 10 Feb ru ary, 1995 ] 151725-26 QUEENSL AND GOVERNMENT INDUSTRIAL GAZETTE 333 ######################### ######## ## ################## ## QUEENSLAND IND USTR IAL RELAT!ONS CO MMISSI ON Industrial Relmions Act /990 s. 297 - appli <.:ation for compensa t ion Robert Brelton AND Bushhy Brnnd Chcmi ca[s e .:n W'5/ of 199-1) COMM I SS IO"ll:R SWAN 24 January 1994 Application for compensation - Prohaiionary pe ri od of employment •·· Resignati on -· Unacceptable level o f pc r fonnanee - Re signati on not tende r ed - Dismissal - Probationary employees ca n seek relie f from the Commission - s. 291.( I ). s. 29 l.(2j(a). s. 297.( I )(2) of the lndu:;trial Relations Act I 990 - Dismis sal unlawful - Com pensa t io n av,arded. DECISION T he applicant. Mr Brcuon. in his or igi na l app l ic ati on before the Commi ssi on so ught reinsta tem ent (amongst other fom1s of relief), to his fo rme rly held position of Sa l es Developmen t Ma nager wi th Bushhy Br and Chem icals (t he employer). By t he time of th e formal hea ring, the ap pli can t abandoned his q ues t for reinstatem en t and sought only com pe nsation frnm th e Commi ss ion for his alleged un law fi tl and unfair dismissal. The applicant had been employed by the employer for approximately two mon ths (3 M ay 1994 to 8 Ju ly 1994). Brief Employment lli stor y/A ppoin tmcnt of A 11plican1 The app licant. pr ior lO his appoi ntm en t with the employer, h ad he ld a number of scn i(l r positions wi th l arge compan ies pri ma ri ly in the areas of sa les and marketing. There appear ed little doubt that t he ap pli can t was we ll versed in these li cld~ however, he readi ly ad m ill ed to havi ng no knowled ge of t he chemical industry in w hi ch he beca me em ployed. T he employer understood tl 1i s pr ior to the app lic ant's appointment however. the employer stated th at, upon be i 11g impressed wi th the ap p li cant at t he ti me of imcrvie w. there was a preparedness lo employ t he applicant. at l eas t for a three month prnhationary period. The employer st ated th at he had infonncd the appli ca nt th at, aficr th e probationary period, one of th r ee even ts cou ld occur - there would be a sa lary incr ease, the status quo would be retained or the pa rties wou ld pa n company . The app lic ant de nied that he ha d hcc n employ ed on probati on . Notw it hsta nd i ng the seniori ty of the pos it i on which attracted a sa lary of some $44.200 per annum. other than for a scrap or paper upon which details of th e sa lary package were out li ned. t he re ap pea r ed to bc no forma l documenta tion be t ween t he parties, at l east as it wen t lo tcm1s and conditi ons of emp loy men t. The applican t did have in his possess ion m ate rial which had been supp li ed by the employer p rior lo i nte rview detai li ng gene ral prerequisi tes for the pos i tion. Th i s. an d the scr ap of paper, were the only documen ts tendered to the Commissi on . Hca so ns for Cess ation of E mpl oyme nt The employer cla i med that the appli can t had offered his resignation wh i ch was immediatel y accepted by the employer. While the employer had concerns about the applicant's pcrfomiancc, th e employer cla i med that the re was no in ten t to di sm i ss the applicant. hut rather th ere was in pl ace a process to revi ew t he 1390 1 I. DOC -- 1 of 3 -- 334 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ I O February, 1995 • I • I • l ft 1, The offer ol applicant's pcrforn1ance wit 1m a s 10rt pcnm o m c. resignation allege<lly occurred in the follomng manncr:- The emplo:, er. uron expressing concern at the applica1,1t's rerformance of his job and upon advising the applicant tnat his situation \\C>uld be reviewed within a period of one ,,eek (after the employer had returned from a holiday) stat_ed tl;at the applicant said \\ords to the effect "Look Roy. 1! _you re not happy with me. and you're going to fire me. then fire me now". ·1 he emplo:, er claimed that he responded to the comments by accepting the invitation to dismiss. ·1 he applicant docs not den:, that these \\ords were _said but states that "lf] \\asn't fired th.:n I ,,mild have been tired at the end of next week. simpl:, because I didn't belie, e th,1t his expectations of what should he performed by the end of next week versus \\hat l could realisticall) do by the end ol next ,,eek. you kno,,. the time frame was just impossibk" [n essence. the applicant's submission is that he knc,, that he\\ as going to be dismissed hut that he was ne, er afforded sufficient t11n~ in which to sho\\ his employer that he could perform his _1ob to d satisfactory standard: that he was not employed on a proba11on,ir) basis and that the dismissal \\ as unduly harsh. under the circumstances. The employer's claim is that. despite continued assistance and guidance, the applicant ,,as not performing at a level ,,h1ch he had expected during the period of employment. This unacccptabk ln cl of perfonnancc was the result of the applicant's lailurc to heed the ad, ice and instruction of the employer. J'hc scenario \\hich did occur and \\hich led to the applicant's cessation of cmplo:, mcnt is in itself odd. One could reasonabl:, ask if the employer did not wish to sever ties \\ilh the applicant. \\h) the applicant wasn't simply told that there \\ as no intention to d1srn1ss The questions to be asked arc ,,hy the employ er responded to the applicant's comments in the manne_r in which it did and d1~ the applicant's comments constitute a rcs1gnallon from cmp!o, ment Assessment of Employment Pcr-iod The employer claimed that he had fully informcdthc applicant of ,,hat ,,as required of him during the early stages o1 emp!o, mcnt. Primaril\. the aprlicant was to instigate and process ,ales ol the employ :r's product within the Brisbane region. It was cla11ned b, the emp'.oy er that a sales target had been set. acknowledged by the applicant. and that this had not been reached h: the applicant. Both the applicant and the respondent produced ,ale, iigurc, lo support their ,ersion of c,·cnts. The applicant claimed that. as a result of research he had undertaken. he could sec a marked increase in sales during his short period of emplo,ment. For the empl<l) er. howc, er. the application of di trcrent criteria sh,rned the opposnc. The applicant also stated that he had a program in place lo meet the challenge put to him by the employer. This entailed an analy Sb of the market. meeting various persons with whom the compam did business and h,n ing time to develop his particular .stratcg:, ·1 he applicant did state that he had recei, ed c:-.cellent training from his immediate employer and m,ncr of the business. \1r Bushb: lt \\as also stated by the applicant that \1r Bushby monitored his pcrfunnancc through regular ,,eekly meetings. In e, idencc. Mr Bushby compared the performance of the applicant with that of a young employee in Rod.ham pt on \\ ho had performed at a much higher standard. \lr Bu,hb:, also cla1med that the target set for the applicant ,,as reasonable under all ,,! the circumstances. Conclusion \\'hilc the employer consistently stated that there ,vas no intention to dismiss the applicant (and this contention was supported b\ Mr Cbrk. a , 1itncss to the discu"ions between the applicant and tl;c employer ,1t the time of the cessation of employmern). all of the employer's e,·idcnce went to establishing that the applicant \\as a poor pcrfonner and that he had not ltil l1l lcd the reasonable expectations of the employer. !lcspite this unusual background. I can only assess the C\ idcnce put before me I hi\ ing done this. I find that. while the emplo:, er may not ha, e initial!: intended to dismiss the applicant at that point !1l time, the fact that he responded to the applicant's comments 11l Hie manner in ,, hich he did. constituted a dismissal l lis immediate response indicates that he had serious!:, entertained the tlwught of sc\ering his ties \\ith the applicant and. gi,cn \\hat he sa\\ as an approp;iatc opportunity. determined to dismiss. !'he applicant. howc,er. did not tender his resignation. I accept that the applicant belie\ ed that the employer was considering dbmissaL made comment to such effect. and were he wrong on _this point. the employ er could easily h,nc disabused this notion. l he cmplo:,er did no such thing and it was the employer's actions. rnther than those of the applicant. which SC\ ered the rclat1onsh1p. \\ hat 1s inescapable. is that the employment relationship had certamly deteriorated to such a point that its continuance was tenuous ill any c,cnt. In summan, I believe that the employment relationship ,,as dr,min" to an ;nd and that the applicant simply raised the point for discussion before the employer did. ( ii,cn that l find that a dismissal did occur. I need to examine that against the relevant dismissal pro, is ions of the Industrial Rrlmions Act I 990 In dorng so. I find th,1t a "valid reason" did exist for the d1sm1ssaL but I am unable to accept that the manner in which the dismissal occurred ,,as procedurally fair to the applicant. This decision is made after a consideration of the fol i(m ing factors:-- Q\1,:;;lli)1_1 of l'robatiQll The question of "hcther a prnbationar, pcnod existed is rclC\ ant. While Federal legislation (/11d11s!rwl l<c/(1/Wns Act l 988) precludes probationar, emplo, ees from utilising general dismissal pnl\isions provided that the duration uf the penod or the ma,irnum duratio11 of the period of probation is detenrn11cd i 11 ad, ance and is reasonable. ha,ing rcg,ird lo the nature and circumstances of the emplmmenL ()ueensland l .egislation (/ndustrwl /fr/a11o11s Act l ')f.;!JJ diJ not fol lo\\ Federal J.e 2 islation on this point The reasons for the departure from the FeZlcral I .eeislation on the question of probation arc unknown to me as I ha: e been unable to find any documented rationale for the (imernrnent dctern1i11i11g to ,Jct in the manner in \\hich it did. ( 'o 11 scqucntl:,, probationar:, cmplo:, ecs arc able to see_k relief from the Commission in accordance \\ ith the d1sm1ssal prm is ions of the lndu\/rial Nclutions .-icr l 990. In Ill) \ icw the qucstioll is relc, ant because one needs to co11sidcr the dd lerent oblil'ations of both emplo:,ees and employers during a prol;ationar:, period as opposed to a non-prohatio11ar:, period of employment. I Ji\\ ing said that. it needs to be dctenrnned \\hcther. on the cvide11ce before me. the applicant ,,as employed on probation. The absence of any documentary material tl(m i11g bct,,ccn the parties upo11 the appointment of the applicant makes this a difficult pomt to determine. l'pon the e,idence before me. 11 ,,ould be odd. eiven the nature of the applicant's duucs (sales). the relative!\ high salary attaching to the positio11 held by the applicant. a1~d tJ{c fact that the applicant had no cxpencnce in 1390 I _!.DOC I O February, I 995 I QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 335 this t:, pc of business. that the employer would not have wanted to review the position withi11 a period of time. Ob, iously. if sales were not forthcoming. it would be understandable for the employer to seek lo re, iew the situation. On the material before me. and after observing both the applicant and employer gi, ing evidence in this matter. I accept the employer's evidence that an arrangement existed betv,ccn the parties to the effect that a probationary period \\Otild apply for a three month period. I also accept that the applicant understood that his pcrfom1ancc would be closely monitored by the employer for this period. Indeed. tl11s \\as certain!:, evident during the short period of employment. ln fact. the applicant's e, idencc is that the emplo) er did. on a number of occasions during these week!: meetings. express concern regarding the applicant's perl(1rmance. At the time of the dismissal, hlmcver, the three month period had not expired amL despite the fact that l had no submissions on this point. it was reasonable for the applicant to have expected that a final assessment would not ha, e been made until the expiration of this period. This is in accordance with the evidence of the Respondent. which I accept. that at the expiration of the three month period the parties might "part compan:, The Concise Oxford Dictionan delines "probation" as "Testing of conduct or charactn of person, esp. of candidate for membership in a religious body. etc. or for employment The generally held view of probation is that it represents a trial period of employment and. in the c, ent that the relationship lloundcrs for reasons including ,rnrk perfonnancc or incompatibility etc. then the employer can. with impunity. bring the employment contract to an end (sec unreported - Supreme Court of ()ueensland. Dowsett J. (ieoffrei· Warren Beck v l)arlin;:: /)owns Institute of Admncrd Fdurntion 23 /\priL l 990 No. ]865 of l 988 p. 14) Beyond that scenario, Dlm sett .I in Heck 's case aforementioned stated:-· "Although the probation rrm-i.sion contemplates an election between confirmation. determination or extension of the probation period. I belie, e that the usual nature of a probation period strong!:, suggests that the failure to exercise any of those options at the appropriate lime will lead lo an ml'crcncc of coniinnat1on of the appointment.. One needs to consider this rationale against the dismissal requirements of the Industrial Re/a/ions Ac! I 990 ln my vin1, implicit in an:, probationary period of employment is an understanding that performance appraisal and counselling of the probationary employee is critical. Pro, ided this is undertaken by the employer, and provided the employee meets the reasonable standards set by the employer. the employment relationship ,,mild continue. ln the e,ent of the employer fulfilling its side of the bargain, and the employee failing to respond to training and counselling. then one might , icw the cessation of employ mcnt as being supported b:, a, alid reason. In the circumstances of this case. I accept that the applicant was employed under a probationary arrangement and the employer did fulfil its side of the bargain. ln the applicant's own words. the .:mployer did pro, idc the arplicant ,,ith "excellent" training and, in my vie,,. relnant counselling on a ,,cekly basis. I am now left lo consider whether the applicant responded to the input from the employer and. based upon the c,cnts which subsequently evohed. whether the employer had a "valid reason" to dismiss the employee. Lxpectations of the Employer The primary thrust of the applicant's case is that he was not afforded an appropriate period of time in v,hich to establish the market as was expected of him by the employer. The applicant's submissions on this point \\ere both logical and impressive. I le ga,e lengthy evidence on the initial di fficultics he encountered in the Brisbane region. I le referred to numerous competitors in the market and to the fact. as he belie,cd. that the product he was selling was of little significance with some major distributors. Ilc traversed the plans he had for the business and belie, ed that, had he been given more time. he would have been able to capitalise on the groundwork he had done. I le firmly held the ,iew that the employer simply expected too much from him during his short period of employment (\\hich in fact was a shorter period than two months as he had to undergo some training before attacking the Brisbane market). Opposed to this, the employer drew upon his lengthy period of time 1n this particular business (amongst other businesses): his experience with "new"' employees: his experience of doing ··leg ,,ork''' selling: his knowledge of the persons involved in the Brisbane market and of the manner in which one sells products. /\gains! this background. the employer did not feel that the outcome he expected from the applicant was unrealistic. Ilis view was the applicant fell far short of what was required by the employer. After reviewing the evidence on this point. I accept that the employer fairly believed that the applicant was incapable of meeting the standard he had set for him. I have taken into account the employer's personal background in this industry and accept that he had made a realistic assessment of the employee's pcrform,mce. I accept his evidence that the employment relationship with the applicant was not going to be successful and. not,\ithstanding his efforts to train and advise the aprlicanL the applicant was not going to perform at a level deemed to be acceptable by the employer. ln this \cin. I accept that the employer possessed a "valid reason" to dismiss the employee relating to the applicant's ,vork perforn1ance. The Dismissal Having determined that a valid reason relative to the applicant's capacity and pcrforn1ancc (sec s. 291.(1) of the lndus!rial Relations Ac! I 990) existed for the employer to dismiss the employee, I need now look at \\ hethcr the dismissal was harsh, unfair or unreasonable (sec s. 291.(2)(a)) and also the manner in ,,hich the dismissal occurred. The details surrounding the cessation of employment have been outlined in the body of this decision. I find that I accept the applicant's version of events in that he believed the employer had intended to dismiss him when next the two parties met. Consequently, I do not find that his question to the employer relating to dismissal was unusuaL under the circumstances. Certainly, all of the employer's evidence during this case led to the conclusion that the employer believed that the employment relationship was not capable of continuance. Because I find that what occurred between the parties constituted a dismissal by the employer of the applicant, I need to consider whether the employer fulfilled its obligations under the Legislation. Implicit in the Legislation is the requirement to inforn1 an employee that dismissal is 13901 I.DOC -- 2 of 3 -- 336 QUEENS LAND GOVE RNMENT INDUSTRIAL GAZETTE [1 0 February, 1995 being cons idered and to provide the c111p loyec with dt.: ta ils of Lhe rcaM>ns for consid.:ring. this cour~c of action so a~ to ensure that the cmplo)CC h.is an adequate opportunit) to defend llgainst the allegat ions made (see s. 292 or the Industrial Relations Act /990). Thb rcquiremcnl was nm fulfillc:d in this ~11uation. This fai lure to udhcre to 1hc req ui remen ts o f thc /11 dustrial Rela11ons Act /990 (DiH,ion 12 Part S) on the part of thc emplo) er makes the disnw,sal unlJ\\ ful The employ L'C seeks th e reli cl or compen sa tion. l he Co,n 111 1ssion i~ empowered to 01Jc:r th is fonn of re lief (sees. 297.( 1)(2) of' the Industrial Re lu11ons Au 1990). Because I ha ve formed the view 1hat the cm plvymcnt rela11011ship "a~ of a probationar) nature and that the relationship \\O~ nearing II\ end (not unrcasonahl). in Ill) view). I have dcte m1 im:d that pa) 111cnl be made by thl! emp loyer to the opp licant for the period of time which wou ld have constituted the remainder of the probationa r) period I detem1111e this because I accept that. dc~pitc the best etfon~ of both pa rti es. the re lal iom,hi p wou ld not h:1\'C su rv ived be yond this period. I should state that "hilst the i!pplicant representcd h imself m this hear in g. he presented wd l do cumented and logica l subm1 ,ions. M) obsef\ation ot th.: apphcant's \,orl,. bad.ground i~ thJl he has had an 1mpressi,c \\Orl his tor) and hu, achieved s ign i ticant ; ucccs~ over the years . The impre~~ion I gained. ho\,e,cr. \\ as that this particular ,,o rl,. em ironment together with the \\Ori,. practices inherent in 11 were not su 1tl!d 10 the apphe:in t's style ofoperntion . I "ould be co nfident thot in a ui ffcrcnt work environment whi ch sought to utilise the applicant's ~l,.ilb and c~pertise. the outcome might he more beneficial to the apphcant The employ er had alread) paid to the app licant ont: m::c l,.' ~ pa)mc:nt in lieu of notice. I rom my 1! ,tim ation. that lea'<:, .1 period bct\\een 15 Jui) 199 -1 and 'l August 199-l during wh ich the applicant c~•uld n:aso nah le ha,c hcc11 e., pecl..:u 1<1 ha\C be..:n empl<l)ed. lhc cmplO)Cr is to pa) h > thc apph c:mt this outM:inding amount \\llhm onc \,eel,. from thc date of release n t this deC'1 , 1on . I o rder aecortlmgl) . Appenra11ces ~r R Breuon appearing nn his 0\\11 hehal r Mr L l' rench, " ilh him Mr B Dick ol't he Queens la nd C:un lcdcr:ninn of Industry Limited. Union of Employers for and on hchali' nt thc Respondent, Opcrmive Date: NI A Dc c1~m n - compensatiun :l\\arded Released : 25 .lanuar) 1995 13<>0 I _ I n<X. 10 F eb ruary. 19 95] Q UEENS L AND GOVERN MEN T IND US TRIAL GAZETTE 337 IJ90l _ l.DOC -- 3 of 3 --