[2017] FWC 1266
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Michael Wigglesworth
v
Warringah Plastics Pty Ltd T/A Warringah Plastics
(U2016/9670)

COMMISSIONER ROE

MELBOURNE, 8 MARCH 2017

Application for relief from unfair dismissal.

[1] Mr Wigglesworth was employed as the Business Development and Accounts Manager (Vic SA and NT) with Warringah Plastics Pty Ltd T/A Warringah Plastics (Warringah Plastics) from about 1 July 2015 until his dismissal on 8 July 2016. Warringah Plastics raised a jurisdictional objection claiming that Mr Wigglesworth earned more than the high income threshold. This challenge was dismissed by Deputy President Gostencnik on 19 December 2016. 1 Mr Wigglesworth earned $138,553 per annum. Mr Wigglesworth was paid one month in lieu of notice.

[2] Warringah Plastics is not a small business employer and it is not suggested that the termination was a genuine redundancy. It is not disputed that Mr Wigglesworth was notified of the reason for his dismissal. The dismissal took place by telephone on 8 July 2016 and then it was confirmed in writing. The purpose of the phone call was to inform Mr Wigglesworth of the decision to terminate his employment. Mr Wigglesworth’s clients were notified by Warringah Plastics that he was no longer employed by letter sent by the company on the day of the dismissal.

[3] The dismissal letter of 8 July 2016 states that the termination decision “is solely based on a commercial basis, that is the business that you brought across from Kema Plastics is not sufficient to justify a full time Account Manager and with no significant new business generated since your commencement, we have no option other than to sever ties.” In a covering letter to the termination letter Mr Santana said:

[4] The employment contract dated 17 June 2015 includes in the position description and duties the following requirements:

[5] The employment contract states that:

[6] Quarterly reviews did not occur but there was one review during the twelve months of employment and that occurred in February 2016. The review did not take place in accordance with the Performance Appraisal Policy of Warringah Plastics. 2 Under that policy there is a process of documentation, analysis, and self-assessment and an opportunity to comment on proposed outcomes. Mr Wigglesworth was provided with sales data in advance of the telephone meeting.3 He responded to that data by querying the exclusion of some sales and the partial attribution of the value of some other sales. There was then a telephone meeting on 29 February 2016. The issue of the performance against the sales targets in the employment contract and progress in winning new customers other than those from Mr Wigglesworth’s former employer, Kema, were discussed at that meeting. Mr Wigglesworth accepts that Warringah Plastics expressed its dissatisfaction with progress at this meeting and he acknowledged the need to improve and meet the targets. He said by email the following day: “Having confirmed the above, as mentioned I am aware that sales need to be increased both individually, and holistically as a group, to progress, adjust and move into the future.”4

[7] There were some differences between the parties in the period leading to the signing of the employment contract in July 2015. Mr Wigglesworth was seeking a minimum two year employment contract and he was also seeking more than just a business development manager or sales role and wanted to eventually have equity in the business. However, these matters are irrelevant as there is no agreement between the parties about these matters and they are not contained in the contract which was signed after these communications. The issue of whether or not there was an agreement between the parties for Mr Wigglesworth to be able to buy into the business is not relevant to the unfair dismissal application. There is no basis to conclude that Mr Wigglesworth was employed on a fixed term contract which prevented dismissal under any circumstances during the period of its term. The written contract explicitly provides for review of the employment agreement during the first two years of employment. Mr Wigglesworth points to an email which accompanied the contract which referred to the fact that performance figures used in the offer are based on the green line in the attached sales chart. The fact that the sales chart covers a two year period does not mean that the employment contract is for a guaranteed fixed period.

[8] I am satisfied that Mr Wigglesworth was employed as an ongoing full time employee. Mr Wigglesworth could only be fairly dismissed for poor sales performance if poor performance against the agreed benchmarks in the contract of employment was demonstrated and there was appropriate warning, opportunity to respond and opportunity to improve.

[9] Warringah Plastics say that Mr Wigglesworth said during the early discussions about the potential for him to be employed that he could transfer about $1.8m per year in revenue from the client base of his former employer. He said at the time that if he did not achieve $1.5-$2 million within the first year “he would be wanting to reconsider his position”. For the same reasons that I have rejected Mr Wigglesworth’s submission that there was a guaranteed two years of employment, I reject Warringah Plastic’s submission that I should have regard to these matters raised prior to the signing of the employment contract. In respect to the issue of sales expectations the contract is very clear and specific as quoted earlier and it is the expectations set out in the contract that should be used as the benchmark for Mr Wigglesworth’s performance.

[10] Evidence at the hearing was given by the two directors of Warringah Plastics, Mr Santana and Mr Gibson. Evidence was also given by Mr Gibson’s son concerning the auction of some equipment. Mr Wigglesworth also gave evidence.

[11] In deciding whether or not the dismissal was unfair I am required to consider the following:

[12] In respect to Section 387(a) the existence of a valid reason is a matter of contention.
[13] In respect to Section 387(b) it is accepted that Mr Wigglesworth was not advised of the reason for termination in advance of the decision having been made.

[14] In respect to Section 387(c) it is accepted that Mr Wigglesworth had no opportunity to respond to the reason for dismissal which was related to his capacity or conduct.

[15] In respect to Section 387(d) it is accepted that there was no refusal to allow a support person but the fact that the dismissal discussion took place on the telephone without notice as to the purpose of the conversation means that there was no opportunity to have a support person and this is a relevant consideration under other matters, Section 387(h).

[16] In respect to Section 387(e) it is accepted that the reason given for dismissal was unsatisfactory performance. Warringah Plastics argue that there was one warning and that occurred at the performance review telephone meeting on 29 February 2016. Mr Wigglesworth denies that he was told that his employment was at risk at that meeting. Warringah Plastics also argue that there were regular sales meetings at which the importance of achieving improved sales performance was raised. Mr Wigglesworth accepts that this was the case.

[17] In respect to Sections 387(f) and (g) it is accepted that Warringah Plastics is not a small business because it has approximately 30 employees. However, it does not have dedicated human resource management personnel or expertise. This may have influenced the procedures followed in effecting the dismissal.

[18] In respect to Section 387(h) the absence of an opportunity to have a support person is relevant. Mr Wigglesworth also raises the particular hardship caused to him and his inability to find new employment for six months after the dismissal despite vigorous efforts. Mr Wigglesworth argues that he had every reason to expect that his employment would have lasted indefinitely and certainly for at least two years and he made plans on this basis. Mr Wigglesworth also argues that the dismissal was also unjust and unreasonable because of the failure of Warringah Plastics to follow its own policies in respect to performance review and disciplinary process.

[19] The central issues in this case are:

Did Mr Wigglesworth fail to use the Manusoft program for making quotes as directed?

[20] Warringah Plastics say that Mr Wigglesworth was directed to use the Manusoft program to make quotes and that he failed to comply with this direction. Warringah Plastics say that Mr Wigglesworth used a method based on market value which resulted in low quotations and as a consequence sales were not sufficiently profitable for Warringah Plastics. Mr Wigglesworth has provided written correspondence which is evidence of at least one occasion when he did use Manusoft to make quotes and that it produced a higher outcome than that proposed by Mr Gibson and that Mr Gibson made the sale at the lower price. Mr Gibson wrote to Mr Wigglesworth on 20 January 2016 “the prices you quoted on your Manusoft system were higher than mine by manual trimming. I will send a final quote to you and lower margins.” 5 I agree that this demonstrates that Mr Wigglesworth did use Manusoft and that Mr Gibson was the decision maker in respect to final pricing to be offered to customers.

[21] Mr Santana gave evidence of a history of underquoting by Mr Wigglesworth. Mr Gibson says that “we decided to give Michael the opportunity of increasing his future pricing to increase the low or non-existent profit margins to a level acceptable to Warringah”. 6 I am satisfied that the prices charged to the customers of Kema were lower than those produced by the Warringah Plastics system. It is understandable that Mr Wigglesworth was reluctant to increase prices and run the risk of losing customers for Warringah Plastics. It was therefore a sensible strategy for Mr Gibson to allow Mr Wigglesworth some time to increase the pricing. Mr Gibson accepts that during the first six months he, not Mr Wigglesworth, was responsible for the pricing for the former Kema customers. After that time Mr Wigglesworth was instructed to use the Manusoft program and that prices were still to be signed off by Mr Gibson.

[22] I am satisfied that Mr Gibson and Mr Santana were dissatisfied at the margins being achieved on the work which was transferred by Mr Wigglesworth from Kema to Warringah Plastics and that they had anticipated better returns on the work would be achieved when they hired Mr Wigglesworth. However, I am not satisfied that Mr Wigglesworth was responsible for setting the prices in most cases.

[23] The problem in the specific case raised relating to Climate Technologies is not one where there was a failure to use Manusoft as the figures from Manusoft were provided to Mr Wigglesworth by Mr Gibson, rather the allegation is that Mr Wigglesworth altered the figures in negotiating with the customer. I deal with this matter further later.

[24] Mr Wigglesworth accepts that he had some trouble learning how to use and access the Manusoft program. However he says that he used the program as instructed. I am not satisfied that Mr Wigglesworth failed to use the Manusoft program for making quotes as directed.

[25] The issue of failing to use Manusoft or failing to meet the requirement in his contract to “generate quotes in accordance with the company’s costing structure” was not raised in the termination letter nor was it raised at the performance review meeting of 29 February 2016.

[26] I am not satisfied that the failure to use Manusoft was a valid reason for the termination of employment.

Did Mr Wigglesworth consistently underquote on work and was Mr Wigglesworth warned or counselled about this matter?

[27] I accept that the directors of Warringah Plastics, Mr Santana and Mr Gibson, were disappointed by the level of profit achieved on the sales transferred from former Kema customers by Mr Wigglesworth. They feel that Mr Wigglesworth gave them a misleading impression about the profitability of the business. In my view there is no basis to discipline Mr Wigglesworth because of this disappointment. I am not satisfied that Mr Wigglesworth gave any guarantees in respect to this matter and nor could he given the different cost structures of the businesses. I am also satisfied that most of the former Kema customers who were won by Mr Wigglesworth were transferred over in the first six months of his employment. During this period Mr Gibson accepts that he was responsible for the costing of the contracts. Warringah Plastics submit that Mr Wigglesworth should have then been working to achieve increased prices from these customers. This may be correct but I am not satisfied that this is something which could realistically be achieved in the short term. Customers who have just signed new contracts are not likely to take kindly to significant cost increases in the short term. The new contracts were not in place for long enough to judge Mr Wigglesworth’s performance on this score.

[28] Mr Santana and Mr Gibson gave evidence of some specific examples of underquoting by Mr Wigglesworth. They said that in the case of Climate Technologies Mr Wigglesworth had altered the figures produced by the Manusoft program and given to him by Mr Gibson and that Warringah Plastics was effectively left with no choice but to honour the lower quote given by Mr Wigglesworth. Mr Gibson in his email of 24 September 2015 wrote to Mr Wigglesworth “the prices do not align with the ones I originally gave you”. 7 I am satisfied from this correspondence, considered in the context of the chain of correspondence on this matter, that Mr Gibson did not accept or approve of the price variation. The correspondence in respect to this matter shows that Mr Wigglesworth then put significant effort into trying to raise the prices over a period of time. Prices were eventually increased after Mr Wigglesworth was dismissed. However, Warringah Plastics argues that Mr Wigglesworth should not have altered the prices in the first place. Mr Wigglesworth says that Mr Santana worked with him in the production of the revised figures. Given Mr Gibson’s high level of concern about this matter I am satisfied that if Mr Santana had been responsible for the revised figures Mr Wigglesworth would have raised this in his email responses to Mr Gibson’s concerns about the changed pricing. I am therefore satisfied that Mr Wigglesworth was largely responsible for the altered pricing in this matter.

[29] In the case of PMB Warringah Plastics say that Mr Wigglesworth failed to identify that the required work for the customer was specialised and unusual and would be difficult to achieve with Warringah Plastics equipment. The job ran more than 40% over budget 8 because of the high levels of wastage and additional work required. It is accepted that the actual costing for the job was done by Mr Gibson but Warringah Plastic’s complaint is that it was underquoted because Mr Wigglesworth should have known about the difficulties of the job and should have advised Mr Gibson. I accept that given Mr Wigglesworth’s many years of experience in the plastics industry he should have been alert to the specialised and unusual nature of the job requirements.

[30] In respect to UGL Mr Santana gave evidence that Mr Wigglesworth was in discussions with UGL about a contract. Another sales manager of Warringah Plastics was involved. Mr Wigglesworth thought that the contract would not be won unless the price was reduced from $200,000 to $160,000. He based this on what the company were telling him. Mr Santana took the view that if UGL would not accept the higher price which had been arrived at through the Manusoft costing system then he would not go ahead with the contract. In the end the higher price was accepted. I am not satisfied that this demonstrates any misconduct or poor performance on Mr Wigglesworth’s part. The fact that there was a difference of opinion or judgement is not unusual.

[31] I am not satisfied that the issues with the pricing in the case of PMB and Climate Technologies can form a valid reason for termination of Mr Wigglesworth. These matters were not raised with Mr Wigglesworth as part of the reasons for termination. They were not raised in a disciplinary context at the time they occurred. There is insufficient basis to conclude that these two examples were illustrative of a broader problem of underquoting. Mr Gibson and Mr Santana were understandably disappointed by the low profit margins being achieved on the former Kema work but I am not satisfied that Mr Wigglesworth was generally responsible for these outcomes.

[32] The issue of underquoting or failing to meet the requirement in his contract to “generate quotes in accordance with the company’s costing structure” was not raised in the termination letter nor was it raised at the performance review meeting of 29 February 2016.

Did Mr Wigglesworth fail to meet the sales performance targets set out in his employment contract?

[33] There are three aspects of sales performance raised by Warringah Plastics:

[34] I accept that all three matters are dealt with in the employment contract and are matters against which Mr Wigglesworth’s sales performance should be judged. The first aspect is to be judged against the $1,000,000 target in the contract. The second aspect is to be judged against the requirement to ‘maintain and grow your existing customer base” and to be “prospecting for new customers using appropriate strategies”. As discussed earlier this second aspect was a key focus of the performance review meeting of 29 February 2016. The third aspect is to be judged against the requirement to “generate quotes in accordance with the company’s costing structure”.
[35] Warringah Plastics say in their submission that in the first year Mr Wigglesworth made sales of $791,409.80. However, the figures presented in Mr Santana’s statement show $890,082.52 sales in the first year. 9 Mr Wigglesworth raised two issues with Mr Santana’s figures:

[36] Mr Wigglesworth also made a generalised submission that he did not trust the accuracy of the figures produced by Mr Santana. I am not satisfied that there is any basis upon which I should doubt the accuracy of the figures. There is one minor matter concerning the accuracy of the list which I should address. Mr Santana gave evidence that all the customers in the list were old Kema customers. However, I accept the evidence of Mr Wigglesworth that one of the customers in the list, Dematic, was not an old Kema customer but it was a business which was transferred from an old Kema customer. I am satisfied that Mr Wigglesworth won this customer at least in part because of old Kema connections and therefore this work cannot be described as new business which is not related to the former Kema customers.

[37] Mr Wigglesworth gave evidence that there were two new customers who were not former customers of Kema which were won by Mr Wigglesworth during the time of his employment. Warringah Plastics accepts that Mr Wigglesworth was responsible for winning the contract with a new customer, Penrite. The value of that sale was $10,732.61. This amount is not included in Mr Santana’s list and it should have been. Mr Wigglesworth said that he also won work from Emerson Network Power valued at about $12,000. This evidence was not challenged and I accept it.

[38] Mr Wigglesworth points to the UGL sales figures of around $100,000 in Mr Santana’s summary of Mr Wigglesworth’s sales in the first year but that earlier in his statement Mr Santana refers to the work being valued at $200,000. The discrepancy arises from the fact that the sale is allocated 50% to Mr Wigglesworth and 50% to another employee, Karl. 10 In that correspondence Mr Wigglesworth was asked to advise if he felt any account was incorrectly allocated. I am not satisfied from reading the chain of email correspondence from February 2016 that Mr Wigglesworth objected to this allocation. I accept the evidence of Mr Wigglesworth that his pre-existing relationship with the former Kema customers was an important element in winning the work from those former customers. In the case of UGL Warringah Plastics did have a relationship with UGL Rail in Newcastle whilst Kema had contracts with UGL’s water business in the southern States. Although the UGL contract won by Warringah Plastics during Mr Wigglesworth’s employment was a different project to the one with Kema, I am satisfied that Mr Wigglesworth’s relationship with the UGL water business was important to securing the contract. However, Mr Wigglesworth did not dispute that another employee, Karl, played an important role in finalising and managing the contract and hence I consider the 50% attribution of the value of the sale to Mr Wigglesworth to be appropriate. The other customer which is attributed at a 50% rate to Mr Wigglesworth in Mr Santana’s statement is ARB Corporation. Mr Wigglesworth did not challenge this attribution.

[39] Warringah Plastics submitted that the figures in paragraph 42 of Mr Santana’s statement are an overstatement of Mr Wigglesworth’s contribution. They point to a customer, Mircrofloc, which was attributed to Mr Wigglesworth in Mr Santana’s statement which Mr Santana says would have come to Warringah Plastics without any intervention from Mr Wigglesworth. Warringah Plastics say, and I accept, that there was a pre-existing relationship with this company and that another sales manager had then finalised the deal including the costings and quote with Warringah Plastics. In correspondence in February 2016 in the lead up to the performance review meeting, Mr Wigglesworth accepted that a number of the former Kema client contracts, including Mircrofloc, were “indirect accounts of mine, although not now direct accounts”. 11

[40] Mr Santana gave evidence that he was responsible for salvaging the contract with Fantech. Mr Santana gave evidence that Warringah Plastics was only successful in gaining a proportion of the former business between Fantech and Kema and that Fantech had some concerns about the service provided by Kema which made winning the work difficult. Mr Wigglesworth gave evidence that he was responsible for winning the Fantech work. There was insufficient evidence before me to resolve this matter.

[41] Taking into account all of the factors I am satisfied with the fairness and accuracy of Mr Santana’s conclusion that Mr Wigglesworth arranged about $900,000 worth of sales during his 12 months of employment. This was less than the $1,000,000 target in the employment contract but was reasonably close to the target. I am satisfied that the failure to meet this target could not, considered in isolation, be a valid reason for dismissal.

[42] Mr Wigglesworth gave evidence that he had been engaged in talks with a number of potential new clients and that he was hopeful that these would shortly result in new contracts. There is no concrete evidence of contacts made by Mr Wigglesworth which have resulted in new contracts since the departure of Mr Wigglesworth which could be attributable to Mr Wigglesworth’s efforts. I am satisfied that the issue of focusing on sales and particularly on achieving new contracts with new clients who were not linked to Kema was the main subject of the 29 February 2016 meeting. Mr Wigglesworth accepted in his evidence that this was strongly raised at the 29 February 2016 meeting. I am therefore satisfied that Mr Wigglesworth was on notice that he had to win new clients and that he would be judged in respect to his performance in this respect. Apart from two minor contracts worth in total about $22,000 with Penrite and Emerson Network Power, Mr Wigglesworth did not win any new contracts during the next four months. I am satisfied that the failure to win any significant new contracts which were not within the former Kema customer base during 12 months of employment was a significant failure to meet sales performance targets.

[43] Warringah Plastics provided evidence that suggested that the level of Mr Wigglesworth’s sales development activity was low because the number of kilometres travelled for work purposes was low compared to their other sales workers. Mr Santana said that other sales workers employed by the company traditionally travelled 20,000 kilometres per year for business. Figures produced by Mr Wigglesworth showed what he described as 12,000 kilometres of confirmed travel in the year for work purposes. Warringah Plastics challenged the accuracy of these figures and claimed the real figure was much less and that they could only confirm 4,677 kilometres of travel for work purposes.

[44] Warringah Plastics checked with a number of sites which Mr Wigglesworth says he visited and could obtain no record of attendance. In my view this is not surprising; attendance records are often incomplete. Mr Wigglesworth may have spoken to a contact in the foyer and as a consequence there may be no record of attendance. On one occasion Mr Wigglesworth was sick but he gave evidence that he still attended a site. I accept Mr Wigglesworth’s evidence on this point. Mr Wigglesworth said that he did some of his canvassing on foot, or by tram or at the Exhibition Centre.

[45] Mr Wigglesworth was at times disorganised and distracted but I consider that he made every effort to be truthful.

[46] Mr Wigglesworth was highly paid and it was reasonable for Warringah Plastics to expect that he would achieve sales results including the winning of new customers who were not former customers of Kema. This was the purpose of his employment. Mr Wigglesworth did not deliver in respect to winning new customers who were not former Kema customers. Mr Wigglesworth offered no evidence of any circumstances or actions by his employer which explained why he was unable to deliver. It is not necessary to determine whether or not Mr Wigglesworth’s failure to deliver was due to lack of effort or lack of skill or some other circumstances. It is sufficient to conclude that the requirement to achieve new customers was reasonable and had been clearly communicated and that any failure was not the responsibility of the employer.

[47] I consider it particularly relevant that Mr Wigglesworth had, prior to his appointment to Warringah Plastics, more than 20 years’ experience as a senior sales manager in a plastics business. Mr Wigglesworth sold himself to Warringah Plastics as a person who could significantly build the Warringah Plastics business and who was a highly experienced and competent sales manager. The performance expectations are reasonable in that context.

Was there are a valid reason related to Mr Wigglesworth’s capacity or conduct?

[48] I am satisfied that Mr Wigglesworth’s sales performance, and particularly his failure to win new customers, was a valid reason for termination of his employment.

Did Mr Wigglesworth purchase equipment without authority and bid against the company for equipment?

[49] Warringah Plastics say that the former company where Mr Wigglesworth had worked was in liquidation and Mr Wigglesworth urged Warringah Plastics to purchase some equipment from them so that Warringah Plastics could service the new clients. There were discussions about this between Mr Wigglesworth and Mr Gibson and Mr Santana in June and July 2015, that is, prior to employment and during the early part of the employment. The equipment came up for sale by auction in September 2015. Warringah Plastics say that Mr Wigglesworth bid against Warringah Plastics for one of the items of equipment. Warringah Plastics also allege that Mr Wigglesworth purchased equipment without authority.

[50] I am not satisfied that this matter is a valid reason for the termination of Mr Wigglesworth’s employment. The employer did purchase equipment from Mr Wigglesworth’s former company and this occurred about three months after Mr Wigglesworth commenced employment with Warringah Plastics. There is no evidence that Warringah Plastics raised any concerns about Mr Wigglesworth’s conduct in the equipment purchase process. The information related to this matter was available to Warringah Plastics at the time, this is not information discovered after the termination of employment.

[51] I accept that Mr Santana and Mr Gibson had concerns about Mr Wigglesworth’s conduct surrounding the purchase of equipment but these concerns could not have been very serious or they would have taken action about the matter at the time and certainly long before the termination of employment.

[52] Mr Gibson and his son gave evidence that during the bidding on the Geiss machine Mr Gibson was surprised to find that Mr Wigglesworth was bidding at the same time as Mr Gibson was bidding on line. Mr Gibson says that during the auction he “received a phone call from Michael saying if we are bidding on the machine to stop because he was bidding on it at this point it had reached 95K. I was completely taken aback to find out that he was bidding on this machine, when instructed not to do so and was also bidding against us.” 12 Mr Gibson said that Mr Wigglesworth had been told to bid on the smaller items and he was told which major items Warringah Plastics intended to bid on. I am satisfied that Mr Wigglesworth would not have told Mr Gibson to stop bidding because he was bidding if he was seeking to defraud or disadvantage the company. Being surprised by a misunderstanding is not the same thing as a serious issue of misconduct. I accept that Mr Wigglesworth was aware that Warringah Plastics were seeking to purchase the machine at a value of around $60,000 and that in the end they paid more than $90,000.

[53] Mr Santana refers to a conversation he had with Mr Wigglesworth’s father about some plastic stock which he says Mr Wigglesworth had told him had disappeared. There is no basis for assuming that Mr Wigglesworth had the same knowledge as his father or to draw any adverse conclusion in respect to Mr Wigglesworth. Mr Wigglesworth gave evidence which I accept about his limited contact with his father. There had been earlier discussions involving Mr Wigglesworth about purchasing the equipment as a job lot together with the plastic stock. In the end Warringah Plastics decided not to proceed with this. I am not satisfied that any wrong doing by Mr Wigglesworth was established.

[54] Mr Santana suggests that some of the equipment purchased had to be resold and that he had to dispose of it at as small a loss as possible. He does not actually quantify any loss. Mr Santana also raised the issue that one of the machines purchased was damaged and that Mr Wigglesworth had said prior to the purchase of the machinery that the machinery was functioning and in operating order until the day Kema had been placed into administration. An engineer told him when the damage was discovered that there was no way the machine had been in operation. These issues were not raised at the February 2016 performance review meeting or at the time of the termination of employment. This matter was not put to Mr Wigglesworth during the proceedings. Considering the evidence relating to the equipment purchase as a whole I am satisfied that Mr Wigglesworth’s judgment concerning the equipment may have been questionable but I am not satisfied that there was any misconduct.

Was Mr Wigglesworth adequately warned that his employment was at risk if he failed to meet sales expectations? Did Mr Wigglesworth have the opportunity and support to rectify the concerns following the warning?

[55] Warringah Plastics say that there was a meeting on 29 February 2016 during which Mr Wigglesworth was told that all his sales had come from clients of his former company, Kema, and no new clients had been found by him. This was correct at the time. Warringah Plastics say that Mr Wigglesworth was told he needed to develop new clients and that he also needed to meet his targets or he could lose his job. Warringah Plastics told Mr Wigglesworth that in the first six months he had achieved $340,385 sales and the budget was $500,000 for the period. These figures were provided to Mr Wigglesworth in advance of the meeting and Mr Wigglesworth responded to the figures in advance of the meeting and raised some issues about some sales which had not been included. Mr Gibson provided a note prepared prior to the meeting of the matters he and Mr Santana intended to raise with Mr Wigglesworth at the meeting. The matters included in that note are confined to:

[56] I am satisfied that the first three matters were in fact raised at the meeting. There is no evidence that targets in respect to sales calls, quotes and new contracts were set.

[57] I consider that the contemporaneous notes are likely to be a more accurate record than the memory of participants many months later. I am therefore satisfied that the matters raised were essentially confined to the matters in the note. The issue of the low profit margins on the work obtained from Kema and the issue of the quoting process adopted by Mr Wigglesworth were not raised at the meeting.

[58] Mr Wigglesworth responded to the meeting by email on 1 March 2016 and confirmed that the minimum required was $1.1 million per year and the goal is to bring in $2.2million by the end of the second year and that he was aware that sales needed to be increased. “Having confirmed the above, as mentioned I am aware that sales need to be increased both individually, and holistically as a group, to progress, adjust and move into the future.” 13

[59] Mr Wigglesworth was told to focus on his sales and business development role and not on other aspects of the business. Mr Wigglesworth accepts that something along these lines was said. Warringah Plastics say that Mr Wigglesworth was notified at the February meeting that his job was at risk if the targets were not met and if he did not improve new sales. Mr Wigglesworth says that he did not receive any warning during the telephone meeting.

[60] Considering the evidence of Mr Wigglesworth, Mr Gibson and Mr Santana and the notes prepared for the meeting and Mr Wigglesworth’s written response I am satisfied that Mr Wigglesworth was told at the February meeting that his sales performance did not meet expectations and needed to improve and that the future of his employment would be reviewed if it did not improve. I accept that this was a warning concerning sales performance.
[61] Warringah Plastics say that there were regular sales meeting and that the requirements to use Manusoft and meet sales was raised at these meetings. Mr Wigglesworth accepts that there were regular sales meetings and the need for all sales employees to increase sales was raised at those meetings.

[62] I accept that the four month period between the February warning and the date of dismissal was a reasonable period in which improvement could have been expected. Mr Wigglesworth should have expected a further review of his performance to occur around the end of the second quarter. I am not satisfied that Mr Wigglesworth requested or required any support to enable him to improve his performance.

Did Mr Wigglesworth have a reasonable opportunity to respond to the proposal to dismiss him from employment due to his failure to meet sales expectations?

[63] Warringah Plastics accept that there was no opportunity for Mr Wigglesworth to respond to the proposal to dismiss him from employment due to his failure to meet sales expectations. The phone call was simply to inform him that he was dismissed.

Was the dismissal unfair?

[64] I have found that there was a valid reason for the dismissal. The reason related to performance and Mr Wigglesworth was warned about that poor performance and given an opportunity to improve that performance over a reasonable period of time. Warringah Plastics did not adopt a fair process for the dismissal in that:

[65] The unfairness of the process may have been influenced by the lack of human resources expertise. However, the right to respond is such a basic element of fairness that I do not consider that the lack of such expertise can excuse the total disregard of the right to respond.

[66] I accept that dismissal had a harsh impact on Mr Wigglesworth. He was shocked and distressed by the dismissal and despite vigorous efforts he could not find other employment for six months. However, this is not a strong factor as the impact is not unusual.

[67] Warringah Plastics did not follow its own Performance Appraisal Procedure 14 nor did it follow its own Disciplinary Action Procedure.15 If it had followed these procedures then Mr Wigglesworth would have had an opportunity to respond. I consider the failure to follow the Performance Appraisal Procedure to be significant considering that in the contract of employment the promise of a quarterly review process was included. I accept the evidence of Mr Santana that the Disciplinary Action Procedure was utilised for the production employees of Warringah Plastics and was not intended to apply to a senior sales manager like Mr Wigglesworth. I therefore do not consider that the failure to follow that procedure to be significant.

[68] Warringah Plastics correctly submitted that it is possible for a dismissal to be found to be fair notwithstanding some shortcomings in procedural fairness. They point to the full bench decision in Crozier v Palazzo Corporation Pty Ltd. 16 The situation is this case is distinguishable from that in Crozier. In the Crozier case it was found that Mr Crozier must have known that his employment could not continue given his total lack of success in achieving sales and the notification and opportunity to respond in that case would not have made any difference. In this case Mr Wigglesworth reasonably understood that the key target he needed to meet was $1,000,000 in sales in the first year. There was a reasonable basis for him to conclude that he had met that target or come close to that target. There is no basis for a conclusion that Mr Wigglesworth should have known that his dismissal was inevitable.

[69] The opportunity to be notified in advance and to have the opportunity to respond could well have influenced the outcome in this case. There were a number of issues upon which the decision makers should have had the benefit of Mr Wigglesworth’s input. In particular:

[70] I am satisfied that the lack of procedural fairness in this case was substantial and it had a significant impact on Mr Wigglesworth. For these reasons, taking into account all of the factors listed in Section 387 of the Act I am satisfied that the dismissal was unfair because it was both unjust and unreasonable to dismiss without procedural fairness in the circumstances of this case.

Remedy

[71] Mr Wigglesworth does not seek reinstatement. Warringah Plastics opposes reinstatement. I accept that trust and confidence between the parties has been broken and that reinstatement is inappropriate.

[72] I consider it appropriate to make an order for compensation.

[73] I am required to consider the following matters in determining compensation (Section 392(2)):

[74] There was no evidence before me that demonstrated that the viability of Warringah Plastics will be adversely affected by any order I make. I am not satisfied that any order I may make is likely to affect the viability of the company.

[75] The length of service of one year is relatively short but not so short as to reduce the level of compensation which would be appropriate using the normal principles.

[76] I accept that when the employment relationship was entered into both parties considered that it would be a long term relationship. However, I am satisfied that there were serious and well founded concerns about Mr Wigglesworth’s performance. If Mr Wigglesworth had been able to respond I consider that the process would have taken one week. It is possible that the response may have convinced Warringah Plastics to allow a short further period of time for Mr Wigglesworth to demonstrate that the promised new clients would materialise. The targets set by Warringah Plastics would have been both firm and ambitious. I consider it likely that at the end of that short period the employment would have ended. Of course it is possible that Mr Wigglesworth may have met expectations but given the overall situation I do not consider it likely. I therefore estimate that employment would have continued for five weeks.

[77] I am satisfied from the evidence of Mr Wigglesworth that he made adequate efforts to seek to find new employment and that no discount should be made due a failure to make efforts to mitigate his loss.

[78] Mr Wigglesworth did not earn any income from employment during the period of almost six months from the time of the dismissal until 1 January 2017. He did however receive four weeks’ pay in lieu of notice. This is two weeks more than the NES. I therefore consider that two weeks’ pay should be deducted from the compensation. Mr Wigglesworth would have been entitled to two weeks’ notice at the end of the five weeks of further employment I estimate would have occurred.

[79] Although Mr Wigglesworth has earned some income during the period since 1 January 2017 and could be expected to continue to earn that income during the period between now and the actual payment of compensation I do not consider that this should reduce the amount of compensation because Mr Wigglesworth’s actual economic loss far exceeds the period I consider he would have continued in employment with Warringah Plastics but for the dismissal.

[80] As the earnings during the period of expected further employment are known I do not consider any deduction for contingencies are required as the only uncertainty lies in my estimate of the period of further employment.

[81] I do not consider that there has been any misconduct which contributed to the decision to dismiss Mr Wigglesworth. I am satisfied that the dismissal was for reasons of performance.

[82] I have not included any amount for shock, distress or humiliation.

[83] Taking into account each of the factors specified in Section 392(2) I will award three weeks compensation. This amounts to $7,993.44 from which taxation should be deducted according to law. The amount is payable within fourteen days. An order to this effect is issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr M Wigglesworth represented himself.

Mr T Vernier appeared for the Respondent.

Hearing details:

2017

Melbourne

March 1

 1   [2016] FWC 7555.

 2   Exhibit W8.

 3   Exhibit R4.

 4   Exhibit R8, Attachment G4.

 5   Exhibit W10.

 6   Exhibit R8 at para 12.

 7   Exhibit R1.

 8   Exhibit R2.

 9   Exhibit R7 at para 42.

 10   See Exhibit R4.

 11   Exhibit R3.

 12   Exhibit R8 at para 18.

 13   Exhibit R8, Attachment G4.

 14   Exhibit W8.

 15   Exhibit W9.

 16   98 IR 137, Ross VP, Acton SDP and Cribb C 11 May 2000.

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