1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ray Diamond
v
SSUT Pty Ltd T/A Bourbong Street Cellars
(U2014/12440)
SENIOR DEPUTY PRESIDENT
RICHARDS
BRISBANE, 11 FEBRUARY 2015
Application for relief from unfair dismissal - dismissal for performance - meaning of s.387(e)
- warning and context
[1] This decision concerns an application by Mr Ray Diamond, who is seeking an unfair
dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”) in relation to his
dismissal by SSUT Pty Ltd T/A Bourbong Street Cellars (“the employer”), in Bundaberg.
[2] Mr Diamond had been employed as a Manager (Level 3 under the East End Hotel
Certified Agreement 2002) in the Bourbong Cellars (one of a number of a bottle shops that
operated remotely from the East End Hotel in Bundaberg) on a casual basis for a period of
some eight months commencing from 15 December 2013. Mr Diamond's employment was
terminated on 21 August 2014. Mr Diamond contended that over the course of his
employment he would work approximately 50 hours per week.
[3] No point was taken on any issue in relation to the jurisdictional competence of the
application.
[4] Mr Diamond was dismissed ostensibly for unsatisfactory performance in his role as
manager in the bottle shop. The principal cause of concern in this respect was Mr Diamond’s
alleged persistent inability, despite counselling, to maintain stock levels which caused the
shop to underperform over time and led to other inefficiencies and disruptions.
[5] Mr Diamond, however, argues that he was “never formally informed that there was a
serious issue with stock levels of the store” and that his dismissal was simply harsh, unjust
and unreasonable.
[6] Mr Diamond did give evidence that on 21 August 2014 he was approached by Mr
Andrew Vollmerhause, who is a retail manager of the business, along with a co-manager, Mr
David Courtice.
[7] In summary, he recalled the conversation as comprising the following points:
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E AUSTRALIA FairWork Commission
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Frank Venturi, the owner and director of the employer, had indicated to Mr Andrew
Vollmerhause and Mr David Courtice some six weeks prior that owing to the poor
sales at the bottle shop he would be closing the shop (as the lease was up for
renewal);
Mr Vollmerhause and Mr David Courtice had urged Mr Venturi to maintain the
business. Mr Venturi acceded to their request;
Mr Venturi had requested that Mr Diamond be dismissed and the bottle shop must
demonstrate profitability within 12 months; and
Mr Venturi had already employed a new manager to replace Mr Diamond.
[8] Mr Diamond indicated that he had commented in response that “this was the first time
I had been informed of any performance issues of the store or myself.”
[9] Mr Diamond was dismissed with two weeks payment as part notice in lieu and part
gratuity.
[10] Generally, as mentioned above, Mr Diamond’s essential argument is that he was
dismissed for performance reasons but there had been no substance to those warnings, he had
not been given any opportunity to improve on his performance, nor had he been given any
warnings about any concerns that were held about his managerial role. Nor had he been
informed of any customer complaints about which he was aware.
[11] Mr Diamond contended that stock ordering was undertaken on Mondays (or Sunday
nights) and Wednesdays. Therefore, as he was on a fixed Wednesday to Saturday roster he
could only have been responsible for ordering on the Wednesday. Consequently, he could not
have been responsible for the totality of any stock level issues (only those ordering practices
for which he had been responsible).
[12] Mr Diamond also contended that in the course of his employment he did not have
access to any computer facility. Therefore, Mr Diamond appeared to claim that he did not
have the opportunity to use any electronic database to check stock levels or trends (to assist in
ordering).
[13] But Mr Diamond’s claims are refuted by Mr Vollmerhause and Mr Courtice.
[14] Mr Vollmerhause was responsible for the supervision of the various bottle shops
within the East End Hotel business structure, of which the Bourbong Street bottle shop was
one.
[15] As mentioned above, the East End Hotel appears to be the hub for the various bottle
shops and is the central location at which stock is stored.
[16] Mr Vollmerhause contended that the bottle shop managers are required to place orders
for courier deliveries so that deliveries can occur on Mondays and Thursdays of each week.
[17] According to Mr Vollmerhause, correct ordering of stock is essential for the efficient
operation of the bottle shops. If the stock ordering procedure is departed from and special
deliveries are required then time is lost both by the bottle shop employee concerned and the
staff at the East End Hotel as well. Additionally, failure to maintain stock levels affects sales,
as customers will go elsewhere to seek the product if the bottle shop is out of stock. Further to
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this, sales were also driven by weekly specials, and a failure to maintain stock levels affected
profitability directly. Mr Courtice’s evidence was to the same effect.
[18] Mr Vollmerhause contended that soon after Mr Diamond had commenced
employment he (Mr Vollmerhause) was aware that the Bourbong Street Cellars was regularly
running out of stock.
[19] Mr Vollmerhause said that he met with Mr Diamond to explain to him the importance
of ordering the correct stock each week to the shop.
[20] Mr Courtice claimed that he had regular discussions with Mr Diamond about the stock
problems in the shop but that the problem persisted regardless. He claims that in those
discussions Mr Diamond had never been able to explain why he could not ensure the proper
stock levels. Contrary to Mr Diamond’s claims, Mr Vollmerhause contended that all
managers in the bottle shops had access to computer systems which provide information
about the sales levels in the shop over time. From this information, managers are able to
forecast very accurately the stock requirements. This information was available upon a
telephone inquiry being made (to the office at the East End Hotel - there was no networked
console in the bottle shops).
[21] Mr Vollmerhause also claimed that managers, by direct experience with the sales
patterns in the bottle shop, are able to determine quite accurately the stock requirements,
regardless of the computer system.
[22] Mr Vollmerhause contended that after initially raising the stock level concern with Mr
Diamond the situation only became worse. Mr Vollmerhause contended that Mr Diamond
was not informing him of stock level issues and not making special orders to replenish stock
levels either.
[23] Mr Vollmerhause gave evidence that there was a caravan park located near the bottle
shop which closed in the course of Mr Diamond’s employment, and that this may have had an
effect on the sales levels in the shop. Mr Courtice volunteered that there had been floods in
Bundaberg in 2013 and these had affected sales at that time. It appears that wholesale
purchases through the bottle shop had been removed from its books and placed on those of the
East End Hotel, which may also have had an effect to some indeterminate measure of the
sales figures.
[24] However, Mr Vollmerhause and Mr Courtice also claimed that the bottle shop is
located on a major road which runs through the middle of Bundaberg and connects the CBD
with the outer suburbs. The bottle shop is also surrounded by a large residential area and
commercial and shopping areas and it was the level of demand arising from the circumstances
that was the reason for the persistent stock shortages in the shop.
[25] Mr Vollmerhause contended that he had regular discussions with Mr Diamond about
the stock levels issue but the situation never improved. Mr Vollmerhause said that because of
the nature of the problem involved he invited Mr David Courtice to participate in discussions
with Mr Diamond.
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[26] Mr Courtice’s evidence supported Mr Vollmerhause’s claims in this regard and he
contended that he met with Mr Diamond in the company of Mr Vollmerhause at the bottle
shop on a weekly basis.
[27] Both Mr Vollmerhause and Mr Courtice claimed that they raised the concern of the
stock shortages with Mr Diamond and how this was affecting the profitability of the bottle
shop.
[28] In this regard, evidence was led by Mr Frank Venturi as to the declining profitability
of the bottle shop relative to the other bottle shops within the corporate group in Bundaberg.
Whilst there had been a decrease in sales activity across other bottle shops the decrease in
sales activity in the Bourbong Street bottle shop was markedly worse.
[29] Mr Vollmerhause also said that the shop presentation was also unsatisfactory because
the stock was laid out in a “cluttered and messy” way.
[30] Mr Vollmerhause and Mr Courtice also claimed that they raised with Mr Diamond
their concerns about how the bottle shop was regularly running out of “specials” stock, and
that sales were not being driven as a consequence.
[31] The claims by Mr Vollmerhause and Mr Courtice were also supported by Mr Peter
Stevens, who worked at the East End Hotel (and the Bourbong Street Cellars) and had worked
with Mr Diamond. Mr Diamond was Mr Stevens’ manager and he reported directly to him.
[32] Mr Stevens also claimed that the bottle shop would regularly run out of stock and that
he had brought this issue to Mr Diamond’s attention. Mr Stevens said the problem was
chronic in so far as the bottle shop would run out of stock almost every week, however Mr
Diamond would “never fix the problem.” This problem also occurred in relation to specials.
Mr Stevens went to the length of taking photographs of the run down stock areas and
forwarding them to Mr Vollmerhause in order to remedy the situation. He also prepared a
simplified ordering template to assist in effecting orders.
[33] Mr Stevens said that Mr Diamond also under stocked the shop on items where there
was very high demand. Mr Alan McAlpine, who also worked at the bottle shop (albeit it on a
more intermittent basis) also gave evidence of under-ordering and layout issues.
[34] Mr Stevens said that managers have access to a computer database at the East End
Hotel which provided information about stock levels in relation to certain products, which
was readily accessible by a telephone call. Despite this, Mr Stevens said that Mr Diamond
was unable to manage the stock levels in the shop.
[35] Mr Courtice contended that initially he let Mr Diamond have the “the benefit of the
doubt,” given the effect of the floods on the general level of trade in Bundaberg. But the
difficulty was, according to Mr Courtice, the problem with running out of normal stock and
running out of stock for specials simply persisted over time regardless of his advice, and the
advice of Mr Vollmerhause (and Mr Stevens too).
[36] Mr Courtice claimed that towards the end of the Applicant’s employment he said to
the Applicant words to the effect that:
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“this cannot keep going and had to stop“ and that he [Mr Diamond ] was ”employed to
do a job and he was not doing it”.
[37] Mr Vollmerhause and Mr Courtice informed the owner of the East End Hotel, Mr
Venturi, of the problems with the bottle shop and the difficulties they were having with Mr
Diamond's managerial efforts. Mr Venturi was said to have indicated to Mr Vollmerhause and
Mr Courtice that he would close the bottle shop because of the decline in sales and the fact
that the lease was up for renewal.
[38] Mr Venturi agreed, however, to keep the bottle shop open but only on the basis that
Mr Diamond’s employment as a manager would have to come to an end as a means of
ensuring the improved profitability of the business.
[39] Mr Venturi’s evidence largely was corroborative of the claims made by Mr
Vollmerhause and Mr Courtice.
[40] Mr Venturi added that he was agreeable to the shop remaining open but only in so far
as no new manager was appointed and that the existing duties performed by Mr Diamond
would be redistributed amongst existing staff in order to cut costs.
[41] Mr Vollmerhause subsequently communicated the decision to Mr Diamond. Mr
Diamond was said not to have been surprised because he knew that the lease was up and had
not been renewed at that time and was expecting to finish up.
[42] Mr Courtice contended that since the Applicant’s dismissal there have been no
problems with the stock levels in the bottle shop.
Legislative Context
[43] Section 387 of the Act sets out the criteria for considering whether a dismissal was
harsh, unjust or unreasonable. Section 387 is as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other employees);
and
(b) whether the person was notified of that; and
(c) whether the person was given an opportunity to respond to any reason related
to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
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(e) if the dismissal related to unsatisfactory performance by the person—whether
the person had been warned about that unsatisfactory performance before the
dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Consideration
whether there was a valid reason for the dismissal related to the person’s capacity or
conduct (including its effect on the safety and welfare of other employees)
[44] This is a case in which Mr Diamond failed to perform his required duties despite
persistent and express encouragement to do so. That is, the allegation here is that Mr Diamond
was unable to adapt to the systematic procedures required of the employer and, moreover, this
led to the business underperforming (in a holistic sense).
[45] The claim, therefore, is that the dismissal was because of Mr Diamond’s under-
performance as a manager. The Full Bench in Crozier v Palazzo Corporation Pty Limited t/as
Noble Park Storage and Transport S5897 (“Re: Crozier”) contended that performance issues,
which may often be premised on an employee’s discretionary effort, was an incidence of
“capacity”:
[62] We find that there was a valid reason for the termination of Mr Crozier's
employment related to his capacity. In our view an employee's performance is an
incident of his or her "capacity" within the meaning of that word in s.170CG(3)(a) [...]
[46] In my view there was a valid reason for the dismissal of Mr Diamond based on his
performance.
[47] I reach this view because the Respondent's evidence, which was deeply layered
through multiple witnesses, was compelling: there were continuing problems in stock
maintenance and shop presentation; the stock issues affected the profitability of the business
and disrupted its otherwise efficient operations; Mr Diamond was responsible for stock
management and the efficient operation of the store as manager; Mr Diamond was similarly
responsible as manager for ensuring that subordinate staff acted in the interests of the
business. The wider context included that Mr Diamond was an employee with very
considerable manager-level experience in the liquor industry.
[48] Mr Diamond largely denied being warned or counselled about the stock issues
affecting the bottle shop. His central claim was that he had received no particularised warning
and that was starkly the case as pressed in his written evidence.
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[49] Under cross examination, however, Mr Diamond conceded that Mr Courtice had
indeed expressed concerns (as Mr Courtice contended himself) about Mr Diamond's
performance:
David in fact said to you in one of the meetings the words, "This cannot keep going,"
and had to stop?---That would've been in the very early stages possibly, yes.1
[50] Mr Diamond did not concede this evidence in any of his three statements, one of
which expressly referred to Mr Courtice’s witness evidence. Mr Diamond’s evidence falls
into question as a consequence.
[51] Against Mr Diamond’s broad claims that stock ordering issues and the like did not
hold any real substance or salience over the course of his employment, the Respondent's
witnesses all held otherwise.
[52] Mr Vollmerhause, Mr Courtice, Mr Stevens, Mr McAlpine and Mr Day all gave
evidence as to the observed problems in managing the stock issues in the bottle shop; that the
problems were not intermittent (as Mr Diamond claimed); and of the detrimental effect the
stock issues had on the business (in relation to sales, shop presentation/display or
efficiencies).
[53] There is no conspiracy between all of these witnesses to fabricate evidence. The
structure of the evidence in each case reflected each person’s perspective on the events. And
the disposition of each of the witnesses under examination had none of the hallmarks of
contrivance or rehearsal. Two of the witnesses, Mr Vollmerhause and Mr Day, were no longer
employees of the Respondent at the time of the hearing and had no ostensible interest in
supporting their previous employer’s interests under challenge.
[54] The witness evidence is not slavishly reproduced in each statement, either. There were
differences in the various parties’ accounts (going to such issues as whether the dismissal of
Mr Diamond was relevant to the cost structure of the bottle shop) which showed little if any
effort had been made to coordinate statements.
[55] It would seem a reasonable inference that in the context of such widespread
knowledge of the stock management concerns that something would be said to Mr Diamond.
Of course, the direct evidence on behalf of the various witnesses for the Respondent is that at
least from midway during his term of employment the Applicant was counselled as to his
employer’s concerns with the way in which he was performing his duties as a manager
(particularly in relation to stock management). Stock management issues and the like in
actuality were regular issues for discussion.
[56] The Applicant himself did not baldly deny that stock management issues did not exist.
He did concede that “possibly the shop ran out of stock from time to time” and advanced a
proposition that his ordering practices may have differed from those of others and that this
may have been a source of the conflict expressed in the evidence. That is, Mr Diamond
appears to have been prepared to tolerate low levels of stock whereas his employer sought to
have the shop fully stocked at all times as a stimulus to sales.
1 Transcript of proceedings dated 23 January 2015 at PN392.
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[57] Though Mr Diamond claimed that he was taken by surprise about there having been
concerns about stock levels (see immediately below), under cross examination he nonetheless
conceded himself that stock issues had been raised with him:
[...] Andrew did make you aware that he had concerns about stock running out at the
shop?---He told me that Peter had approached him.
He explained to you the importance of the correct ordering of stock?---Yes; yes, he
would've. I'm not saying he didn't. I'm just saying I don't recall it, but he would've
said that, yes.
[58] Mr Diamond’s capacity to determine stock levels was not affected by the absence of a
networked computer either. He could readily have contacted the Hotel for a stock read-out,
and in any event he was sufficiently experienced to determine by observation the stock needs
of the shop:
[...] to come back to this computer again, are you saying that because you didn't have
some network computer access or terminal in the Bourbong Cellars itself, you weren't
able to ascertain the stock levels or to make the appropriate stock orders? Are you
saying that?---No; no; no, that's not – no, that's not what I'm saying at all.
[...]
What about the role of the computer?---Stock issues were never raised with me after –
well, when my termination was on. I don't understand where it's all coming from. In
relation to your question, we didn't usually need a computer, but if we had access to
one, of course, you would use it.
So how would you know – you would know intuitively from looking around the shop.
Knowing what the sales had been, you would order from that experience, would you?-
--Yes, and with a computer it's just a comparison so there's no guarantees there either.
[59] Mr Diamond also advanced a further proposition that stock management issues arose
from a “culture” within the bottle shop that led staff to under order for various reasons, and
not to maintain the shop in the desired manner. There was some tension between this
argument led by Mr Diamond in his defence and his wider evidence that stock issues and the
like were not salient concerns, and that he had no responsibility for the bottle shop when he
was not rostered on.
[60] Whilst Mr Diamond accepted that he was the manager of the bottle shop and had
responsibilities for stock and staff and issued instructions to his subordinates, he claimed that
he could not exercise any authority over the local culture. This was despite Mr Diamond
being a particularly experienced manager within the liquor industry.
[61] In this respect, Mr Diamond also gave the appearance of being disempowered in his
role as manager, though he accepted he gave staff instructions in that role:
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So you had a cultural problem with discipline amongst the staff?---Some of them, yes.
There just seemed to be no – there seemed to be no procedures in place. There seemed
to be no systems in place and it was just, "We'll just do it as we go," but then all of a
sudden, "Yes, this is how we do it," and I think, "Well, why didn't you tell me this
because this is not how you've been doing it?" you know what I mean. It was very
confusing.2
[62] Mr Diamond appears to have ceded his managerial role in the face of the resistant
“culture” in the bottle shop:
If it was the case that you did have the ability to performance manage your staff,
would you have taken those steps?---Absolutely.
Why?---Because it's just the way you run a business, but I just felt that the role – that
role was out of my control. It just wasn't in my control.
Did anyone tell you that you weren't to performance manage the staff you managed?---
It's pretty hard to manage people who have been there longer than you and they just
don't like change.
I don't think you answered the question?---You can try. You can try. You can tell
them what – you can tell them what you really want. If they don't do it, it's out of your
control.
I'll just put the question again. Did anyone say to you that you could not performance
manage your staff?---No.
Was that an opinion that you formed from your views of the culture of the shop?
---Yes.3
[63] Mr Diamond also left issues of discipline to others and denied having that
responsibility himself as manager (though he admitted close familiarity with the requirements
of a manager generally):
Once again one step back, what caused you to complain to Andrew about Peter?
---His untidiness and just sometimes a little bit of attitude there and he's - you know,
they just didn't order what I particularly would've ordered. They just did what they
wanted to do basically.
So at some point you said to Andrew, "I'm giving directions to fill the shop or to
order," as you say, in a particular way?---Mm.
Correct?---Yes.
Is it the case that you just then left it to Andrew to deal with those employees?
---Yes, basically that's all. It was out of my hands.
2 Transcript of proceedings dated 23 January 2015 at PN103.
3 Transcript of proceedings dated 23 January 2015 at PN301-306.
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Would you accept though as manager of the store it was your responsibility to
discipline those workers?---No.4
[64] Against the backdrop of the concerns about the proper and efficient management of
the bottle shop (as made out) Mr Courtice gave evidence - from which he was unmoved under
cross examination - that he at least on one occasion towards the end of the term of the
Applicant’s employment informed Mr Diamond in no uncertain terms that he was concerned
about the stock management problems. That is, Mr Courtice warned Mr Diamond that “this
had to stop” and that Mr Diamond was not doing the job for which he was employed. It is
unsurprising, given the weight of the wider evidence, that he did so.
[65] To this I add that the Applicant’s own evidence under cross examination demonstrated
stock concerns had been raised with him on more than one occasion, but that he construed
these conversations to be in “general” terms. Other conversations appeared to Mr Diamond to
have expressed concerns about low levels of stock rather than running out of stock per se. In
the end, that is, the Applicant did not deny stock issues had figured in his conversations with
his own managers.
[66] It seems to me that the issues involved were important ones for the business, and Mr
Diamond, as an experienced manager in the industry, was reasonably expected to deal with
those issues (and not to cede his managerial role or ignore the issues). The manner in which
stock is presented and made available to the public is an important issue of generating and
maintaining sales and customer support for a particular product, brand or outlet. The manner
in which ordering takes place and how product is delivered is also an important business
efficiency issue. It appears eminently reasonable in this context that so many of the
employer’s employees and managers took an active interest in the stock management issues
affecting the bottle shop.
[67] When the issues agitated with the Applicant are objectively characterised in the
context of the business, I consider that Mr Diamond’s dismissal was warranted, and that the
employer had a valid reason for bringing Mr Diamond’s employment to an end.
whether the person was notified of that reason
[68] Subsection 387(b) of the Act refers to the “person” (Mr Diamond) being notified of
“that” reason. This is, the reason here referred to is the valid reason which is the subject of
s.387(a) of the Act.
[69] In the circumstances of this case, the employer was obliged to notify the Applicant of
“that reason” as he was dismissed because of his capacity.
[70] It appears to me that Mr Diamond was not informed of the reason for the dismissal
before such time as he was dismissed. It is enough to say that given the volume of concerns
expressed about the way in which Mr Diamond was managing the store that he could not
conceivably have been left uninformed as to the reasons for his dismissal, and the sources of
his employer’s concerns about his performance. But in the statutory context, there was no
formal step in which the employer explained prior to his dismissal the reasons the Applicant’s
dismissal was under contemplation.
4 Transcript of proceedings dated 23 January 2015 at PN293-297.
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whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person
[71] So far as the issues in question relate to capacity or conduct, it cannot be said that the
Applicant was given an opportunity to respond to the employer’s reasons for his dismissal. As
I have said above, I’m left in no doubt that the overwhelming evidence was that Mr Diamond
must have been aware in no uncertain terms as to his employer’s concerns about his
performance as a manager. But that aside, having not been given notice of the reasons for the
dismissal in advance Mr Diamond was denied an opportunity to respond to those reasons
prior to the dismissal being given effect.
any unreasonable refusal by the employer to allow the person to have a support person
present to assist at any discussions relating to dismissal
[72] The circumstances of the dismissal did not give rise to the context in which
requirements of s.387(d) of the Act have application.
if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal
[73] It appears to me that the Act requires me to have regard to whether or not the
employer gave warning to Mr Diamond about the unsatisfactory performance as held to exist
at a time prior to the dismissal. In the statutory context, a warning must have been conveyed
(with an appropriate level of gravity) so as to leave Mr Diamond in no doubt that the
employer anticipated change (in one particular area of performance or another). The warning
must have put the Applicant on notice prior to the dismissal that the employer held genuine
and substantial concerns about his (Mr Diamond's) performance.
[74] The nature of warnings in the context of s.387(e) of the Act is discussed in the Full
Bench decision in BlueScope Steel Limited v Sirijovski [2014] FWCFB 2593 (see paragraphs
36-42).
[75] Section 387(e) of the Act requires the relevant employee to have been “warned about
[their] unsatisfactory performance”. I do not read the plain words of s.387(e) of the Act (nor
in the context of the Explanatory Memorandum to the Workplace Relations and Other
Legislation Amendment Bill 1996, which introduced this provision) to mean that an employer
is obliged in some manner also to indicate expressly by a distinguishable step that dismissal is
a potential consequence of the unsatisfactory performance. The section has no additional
words that create such an obligation. Section 387(e) of the Act, on its plain words, instead,
requires only that an employer must warn the employee or person of the issue of
unsatisfactory performance (with the gravity of the “warning” being the vehicle for conveying
the nature of the risk to which the person’s employment is exposed). Passing comments,
indirect or generalised remarks and disinterested observations (for example) would not
constitute a warning of the kind contemplated by the section.
[76] So too does the warning - as it may be effected - require sufficient nexus with the
substantive matter of concern to the employer. That is, the warning must be given “about that
unsatisfactory performance”, and not in some disassociated context.
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[77] In this matter the nexus is sufficiently made out to the employer’s evidence as
discussed - Mr Courtice’s comments were made in the context of the continuing concerns
about maintaining stock levels in the bottle shop.
[78] Further, the evidence of Mr Courtice, which I have accepted, was that he said to Mr
Diamond towards the end of his employment and in the context of the various issues set out
above, that:
“this cannot keep going and had to stop" and that he [Mr Diamond ] was "employed to
do a job and he was not doing it”
[79] In my view Mr Courtice’s comments, given at the time he claimed, imply a “warning”
of sufficient gravity to convey to Mr Diamond that his employment was at risk if his
performance in relation to managing the bottle shop did not improve. That is, the Applicant -
as an experienced manager himself - reasonably could not have been left with any
understanding other than that unless his performance (in the areas identified) improved, his
position would be in jeopardy. The comments were sufficient to satisfy the statutory
requirement. Of course, the wider evidence supported the proposition that Mr Diamond was
counselled over time about the stock management issues.
the degree to which the size of the employer’s enterprise would be likely to impact on the
procedures followed in effecting the dismissal
[80] There was no argument in this matter that the size of the employer’s enterprise in any
way impacted on the procedures followed in effecting the dismissal. This is a matter that
therefore weighs on neutral terms on my wider determination.
the degree to which the absence of dedicated human resource management specialists or
expertise in the enterprise would be likely to impact on the procedures followed in
effecting the dismissal
[81] The employer did not utilise the services of a dedicated human resource specialist and
appears to have no such specialist services at hand. The decision making and the dismissal
procedures were actuated by employees with operational retail responsibilities. The absence
of formality and written instructions evidenced in this matter are reasonably assumed to be an
expression of the absence of human resource expertise. But absent anything more than this, I
can only conclude the matter of the availability of such HR resources has a neutral impact
upon my wider determination.
any other matters that the FWC considers relevant
[82] I have no doubt that the fact of the dismissal has caused Mr Diamond financial loss
and has caused him to relocate in order to enhance his prospects of future employment. These
are the real and disruptive consequences of a dismissal. Yet they are in many ways not
distinguishable from the general effects of a dismissal upon a person. There are no
circumstances - such as a particularly lengthy period of continuous employment - which
would give me cause to weigh the relevant circumstances differently. Here Mr Diamond was
an employee for approximately 8 months, and he had had a very considerable amount of
senior experience in the liquor industry or in licensed venues.
[2015] FWC 816
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[83] There was evidence in the course of the hearing - particularly from Mr McAlpine who
had limited exposure to the bottle shop - that Mr Diamond was far less than convivial in
dealing with customers. But the evidence about customer complaints was not well developed
at all in evidence. Moreover, it is not readily apparent from the statements of Mr Courtice and
Mr Vollmerhause that Mr Diamond was warned about these concerns, as they may have been.
Conclusion
[84] When taken as a whole, the circumstances of this matter give me cause to conclude
that the Applicant was not dismissed harshly unjustly or unreasonably. Though the
counselling and warning process lacked formality and stepped written procedures, it was
nonetheless effective for extending a sufficient modicum of procedural fairness to Mr
Diamond. I add to this that consideration of the wider circumstances must also be taken into
account: Mr Diamond was an experienced manager who must reasonably have possessed a
higher degree of sensitivity to business concerns than an inexperienced employee; he was a
casual employee who had been engaged for about 8 months; and his employer had paid him
two weeks wages upon dismissal.
[85] The totality of the circumstances of the case as they relate to performance are relevant
to the ultimate findings, as the Full Bench in Re: Crozier found:
[81] We have had regard to the matters specified in s.170CG(3)(a), (b), (c) and (d).
Pursuant to s.170CG(3)(e) we have regard to the fact that Mr Crozier would have been
aware that his employer was unhappy with his performance as a consequence of
comments made by Mr Palazzo during a meeting some months after he started work. It
is also reasonable to assume that Mr Crozier knew that his employment would not
continue indefinitely without an improvement in his sales performance. We have also
had regard to the fact that the relevant statutory regime is intended to ensure that "in
the consideration of an application in respect of a termination of employment a `fair
go all round' is accorded to both the employer and the employee concerned" (see
s.170CA(2)).
[86] Former s.170CA(2) of the (former) Workplace Relations Act 1996 is now replicated at
s.381(2) of the Act.
[87] In the end, I think Mr Diamond was unable to align his management style or
techniques in respect of the Bourbong Street Cellars with the expectations and demands of his
relatively new employer. Despite a considerable amount of interaction on this issue, as the
witness evidence attests, it was not in the end capable of resolution by way of continuing
discussion and persuasion. The employer had invested reasonable efforts into seeking such a
resolution, and Mr Diamond had been put on notice that the issues were of serious concern to
his employer. Thus the employment relationship came to an end at the employer’s initiative,
and for reasons that were sound and defensible.
[2015] FWC 816
14
SENIOR DEPUTY PRESIDENT
Appearances:
Mr G. Ebert, of Finemore Walters & Story Solicitors, for the Applicant
Mr C. Mossman, of M+K Lawyers, for the Respondent
Hearing details:
2015
Brisbane (and Bundaberg by video)
23 January & 3 February
Printed by authority of the Commonwealth Government Printer
Price code C, PR560676
ORK COMMISSION AUSTRALIA THE SEAL OF FAIR
