[2014] FWC 3674

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Application for unfair dismissal remedy

Mr Darren Gadowski
v
EcoClassic Group Pty Ltd
(U2013/2764)

DEPUTY PRESIDENT SMITH

MELBOURNE, 4 JUNE 2014

Application for relief from unfair dismissal—compensation awarded.

Introduction.

[1] Mr Darren Gadowski commenced employment with EcoClassic Group Pty Ltd (EcoClassic) on 21 May 2012. He was engaged as a Sales Representative. The contract of employment stated: “Your duties will include all aspects of cold calling on customers, generating new customer base and following up on quotes. Weekly call sheets are also a requirement.”

[2] EcoClassic describes itself in the following terms:

[3] On 26 July 2013, EcoClassic terminated the employment of Mr Gadowski for what it said was poor performance. Mr Gadowski now seeks relief in relation to his termination of employment, pursuant to s.394 of the Fair Work Act 2009 (the Act). There is no issue that Mr Gadowski is a person protected from unfair dismissal.

[4] At the commencement of the proceedings consultations occurred with the parties in accordance with the Act and an attempt was made to settle the matter without success. I should make mention of the fact that Mr Gadowski asked if he could be represented by Ms Margaret McAuley. This was approved but I was unaware until written submissions arrived that Ms McAuley was a Solicitor requiring permission to appear.

The reasons for the termination.

[5] EcoClassic argued that it terminated the employment of Mr Gadowski for poor performance citing a failure to:

[6] It was submitted that these matters were discussed seriously with Mr Gadowski at a meeting on 27 February 2013 but there was no improvement. On 11 May 2013 a final warning was given to Mr Gadowski and his employment was terminated on 26 July 2013.

[7] Mr Gadowski argued that:

The evidence.

[8] In support of his application, Mr Gadowski argued that he was given no guidance when he started work and simply told to look at the yellow pages and was wished good luck. In his evidence Mr Gadowski stated that when he started with EcoClassic the product was good, the service was good and the delivery was good. He added that after a while the service dropped in standard and that there were delivery errors and this impacted upon his ability to sell the product.

[9] It was the evidence of Mr Gadowski that no-one was meeting sales targets.

[10] His evidence was that in February 2013 the Managing Director of the Company, Mr Ed Stelling invited him to have a cup of coffee. During this meeting, Mr Gadowski said that Mr Stelling asked a number of very personal questions. It was also his evidence that Mr Stelling accused him of not visiting one of the company’s clients. One of the company’s clients was a business called Bowens Timber and Hardware (Bowens). This company is a founding shareholder of EcoClassic and Mr John Bowen is a past Director and Chairman of EcoClassic. Being challenged about whether or not he had visited a client caused him to contemplate resignation. However this was dealt with by having further meetings with Mr Stelling and Mr Barry Williams, the Operations Manager of EcoClassic.

[11] Mr Gadowski stated that during sales meetings he was not advised that his performance was poor rather they didn’t indicate either way. On one occasion, Mr Gadowski stated that he had a congratulatory note from Mr Stelling about some work.

[12] On 19 July 2013 Mr Gadowski was assaulted by a customer of the company and he reported this to Mr Stelling by email on the same day. On the same day Mr Stelling replied and stated that he expected Mr Gadowski to report the matter to police and seek medical attention. EcoClassic took further steps to ensure the Occupational Health and Safety of Mr Gadowski. Mr Williams also took the necessary steps to deal with the assault and acted in an appropriate manner.

[13] The evidence of Mr Stelling began with his version of the meeting in February where he was concerned about the number of people being contacted at Bowens.

[14] Mr Stelling stated that he was asking about particular times, dates and people seen but that Mr Gadowski was unable to provide this information. Mr Stelling recalled that he had offerred Mr Gadowski coaching but that was not sought. In relation to Mr Gadowski’s evidence that there was an IT problem preventing his diary being synchronised with the computers, Mr Stelling said that he wasn’t aware of a problem but in any event there were insufficient appointments. Importantly, Mr Stelling said that he asked to view Mr Gadowski’s computer or phone but that he refused.

[15] Mr Stelling addressed the final warning given to Mr Gadowski on 11 May 2013 and, under cross-examination agreed that it was the only written warning and that it was before a time (20 June 2013) when he congratulated Mr Gadowski on a job well done. Mr Stelling’s evidence was that he was trying to encourage Mr Gadowski.

[16] It was the evidence of Mr Stelling that Mr Gadowski’s sales figures were well below what was expected and below others. Mr Gadowski’s representative sought further and better particulars and this was subsequently provided but no further submissions were made on the level of sales.

Conclusion.

[17] From the material provided and the evidence it is apparent that Mr Gadowski did not meet the sales target that was expected of him and that this had been discussed. It is also apparent that sales targets were not met by all staff [Transcript PN239], although the reference of others was better than Mr Gadowski.

[18] The evidence also allows for the conclusion that Mr Gadowski was advised that his targets were not being met and that Mr Williams was trying to assist Mr Gadowski to improve his sales figures [Transcript PN 271-275].

[19] In the final submission Mr Gadowski argued that he:

[20] I turn to the statutory considerations. Section 387 of the Fair Work Act 2009 (the Act) provides:

387 Criteria for considering harshness etc.

[21] It is convenient that I deal with each one in turn.

[22] I have reached the conclusion that there was a valid reason for the termination of Mr Gadowski. I am satisfied that the employer was concerned about his performance and that concern was reasonably held. In making such a finding I do not accept that that the dismissal during a period of sick leave is prohibited. What is prohibited is the termination of employment because someone is exercising a workplace right. It does not vitiate the valid reason simply because a person is on sick leave at the time.

[23] It is convenient to deal with these matters together. Mr Gadowski was given the reason but he was not given an opportunity to respond because he was on sick leave at the time. Similarly, given the circumstances, Mr Gadowski would not have been given the opportunity to have a support person present.

[24] In this regard I find that there was a warning given to Mr Gadowski. In his own evidence in cross-examination, Mr Gadowski accepted that Mr Williams said that he needed to appreciate certain matters to stay employed [Transcript PN274].

[25] This is not a large business, but both Mr Williams and Mr Stelling sought to deal with the matter as best they could and except for one matter, sought to deal with the matter appropriately. The one matter relates the actual termination of employment. I am not satisfied that the termination was procedurally appropriate. Given the illness of Mr Gadowski which was not long term, some consideration should have been given to discussing the matter with Mr Gadowski upon his return.

[26] There are no other matters I consider to be relevant.

[27] Given my findings going to a valid reason and the way in which Mr Gadowski had his employment terminated I will find, on balance, that the termination was unreasonable. Mr Gadowski should have been given the opportunity to save his job and to see if he could have persuaded his employer to provide a further period in which to assist him.

[28] I now turn to remedy.

[29] Section 390 of the Act provides:

[30] Given the history of this matter as revealed by the evidence and the fact that I have found that there was a valid reason, I am satisfied that reinstatement is inappropriate. This means that I now turn to consider compensation in lieu of reinstatement.

[31] Section 392 provides:

392 Remedy—compensation

[32] I begin by noting that there is no submission going to the viability of the enterprise in terms of any order for compensation. Mr Gadowski had some 14 months employment and therefore this aspect does not add weight to any consideration for compensation given the relatively short service. Further, issues of poor performance were ongoing between the parties. In assessing the level of compensation to be awarded I am also guided by the Full Bench Decision in Sprigg v Paul Licensed Festival Supermarket [(1998) 88 IR 21].

[33] I have reached the conclusion that the substantive reasons for the termination of employment would not have altered if EcoClassic had taken more time in addressing the issues. Whilst I observed earlier that Mr Gadowski may have been able to persuade EcoClassic not to terminate his employment, I do not see any basis for that argument based upon his performance. The further discussion may have lasted for a further two weeks.

[34] Accordingly I find that but for his termination his employment would have remained on foot for another two weeks and I shall award compensation of that amount. Other factors were not addressed significantly, but in light of the small level of compensation I do not propose to make any further deductions.

ith DP seal.tif

DEPUTY PRESIDENT

Appearances:

M. McAuley, Solicitor for D Gadowski.

E. Stelling with B. Williams on behalf of EcoClassic Group Pty Ltd.

Hearing details:

2014.

Melbourne:

January, 20.

Final written submissions:

S. Ferreras, EcoClassic Group Pty Ltd, 3 February 2014.

M. McAuley, 23 March 2014.

B. Williams, 28 March 2014.

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