T7012
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Jeremy Lee Cummin and Allied Pickfords Pty Ltd
Termination of employment - no redundancy - valid reason for dismissal - denial of procedural fairness - reinstatement impracticable - compensation awarded REASONS FOR DECISION On 5 June 1997 Mr Jeremy Lee Cummin, a former employee of Allied Pickfords Pty Ltd applied to the President, pursuant to section 29(1A) of the Industrial Relations Act 1984, for a hearing in relation to the termination of his employment on 22 May 1997. Mr Cummin alleged that his dismissal was unjustified, as a consequence of which he now "seeks reinstatement and/or such other remedies as the Commission considers fit."1 At the hearing of the matter Mr P Evans of Counsel appeared by leave of the Commission for Mr Cummin and Mr R Ironmonger of the Victorian Employers' Chamber of Commerce and Industry appeared with Mr R Barber for Allied Pickfords Pty Ltd. The hearing proceeded on the basis that the relevant law for purposes of determining the matter is that which was in place at the time of lodgment of the application. The relevant facts according to Mr Cummin The relevant facts of the matter, as alleged by Mr Cummin, are as follows. At the time of his termination of employment Mr Cummin was State Manager for Tasmania of Allied Pickfords Pty Ltd, with whom he had been employed for 8½ years. In his oral evidence Mr Cummin said he commenced his employment with Allied Pickfords in Canberra as a furniture removalist's offsider. From Canberra, he said, he relocated to Melbourne, subsequently moving up through the company's structure to occupy an "operational supervisory type role".2 He then moved to Wagga Wagga as branch manager and from there, in mid-May 1995, to Hobart as the Manager for Tasmania of Allied Pickfords. Mr Cummin's family relocated to Tasmania with him. According to the evidence Mr Cummin's "Terms and Conditions of Employment" entitled him to an annual salary review based on a performance appraisal process3 which, he confirmed, occurred in late 1995 and again in late 1996. Mr Cummin said his 1996 review was conducted by Mr R Barber, Allied Pickfords' Removals Manager for Victoria and Tasmania who ranked him as "fully satisfactory". At the conclusion of each review, Mr Cummin said, he was the beneficiary of a salary increase.4 In January 1997, Mr Cummin continued, he and his wife separated, their children remaining with Mr Cummin. The following month, on Friday, 14 February, Mr Barber visited Hobart and discussed with Mr Cummin a number of issues concerning his work performance.5 It seems that, because of those concerns, Mr Barber informed Mr Cummin that the company wanted him to move back to Melbourne. Mr Cummin's recollection is that Mr Barber's offer was of the "either/or" variety, ie "go back to Melbourne or there's no position here for you".6 Upon making further inquiries of Mr Barber the week after his visit, Mr Cummin said he was told that the only position available in Melbourne was one of truck driving, at least for the short term, with a view to possibly opening a new branch of Allied Pickfords in either Ballarat or Bendigo7 at some future time. Later the same week Mr Cummin said he advised Mr Barber that he wanted to remain in Hobart because "apart from going back to a lesser job, there was the personal circumstances which had very strong ties".8 In a letter of 24 February 1997 to Mr Cummin, Mr Barber referred to the meeting of 14 February and then went on to detail a number of performance areas in respect of which Mr Barber said he was "disappointed to see no action taken since my December visit".9 Briefly, those "areas" concerned:
Mr Barber concluded his letter with the following admonition:
The promised review, Mr Cummin said, did not occur11 although he did acknowledge that Mr Barber came to Tasmania on 4 April.12 On or about 15 April, he continued, he received a further letter from Mr Barber which referred to such issues as the failure of an employee to wear a jacket on corporate calls, Mr Cummin's obligations regarding corporate calls, and management issues such as provision of trading statements and below standard condition of the yard and warehouse. Mr Barber, having said he would visit Tasmania "around the week commencing 19th May 1997", directed Mr Cummin to "please ensure the above issues are addressed prior to the visit".13 Mr Cummin's evidence is that he dealt with the jacket question at the time and the yard condition problem was "just a temporary working mess" because of the recent arrival of a high volume of records management cartons that were on pallets and stacked in a disorderly fashion.14 Subsequently, Mr Cummin said, Mr Barber visited the company's Hobart office on 22 May when, according to Mr Cummin, Mr Barber said the reason for his presence was that at a recent State Managers' conference they had all been told to "shape up or ship out". Mr Cummin said Mr Barber then straightaway told him that "effective immediately, you're terminated" and, in handing him a cheque for his entitlements, gave him "half an hour to clear out my stuff".15 Mr Cummin said that, at the time of his termination, his annual salary was $42,400, in addition to which he received a company superannuation contribution of five per cent or $2120 per annum. He said he also received the benefit of a fully maintained and serviced car, the yearly value of which he estimated as being roughly in the order of $12,500.16 As to his employment circumstances following dismissal, Mr Cummin's evidence is that recently he had been able to obtain casual employment in a similar field of work with Grace Removals at an hourly rate, as disclosed by his pay slip, of $15.5047.17 Witness credibility I examined two witnesses in this matter: the applicant, Mr J Cummin, and Mr R Barber, Allied Pickfords' Removals Manager for Victoria and Tasmania. The parties put in issue the credibility of both witnesses. Mr Evans submitted that, in the totality of his evidence, I must assess Mr Barber as being a witness devoid of credibility. Mr Evans based his submission in that regard on the following examples: Mr Barber's reluctance to admit non-compliance with the Company's policy manual procedures concerning "Discipline and Termination of Staff";18 his inability to adequately explain how Mr Cummin, whom he appraised as being "fully satisfactory" in December 1996, could warrant manoeuvres to move him back to Melbourne in February 1997 and then his summary dismissal the following May;19 his acknowledgment that, having decided Mr Cummin was not the right person for the role in Tasmania, he dismissed him without disclosing that conclusion to Mr Cummin;20 and, finally, his "disgraceful evidence"21 concerning the "internal advertisements" that he said he placed for the position of acting manager after Mr Cummin's departure that, on cross-examination, were shown to be nothing more than Mr Barber "talking to people and internally telling them that there's a role available."22 Mr Ironmonger, for his part, questioned the credibility of Mr Cummin on the grounds that: having acknowledged that corporate calls were part of his role as branch manager, he said he could not recall any September 1996 discussions with Mr Barber on the issue;23 he said it was incorrect that Mr Barber had allowed him to appoint an office assistant so that he might commence corporate calling24 despite the fact that his 1996 appraisal records the contrary remark that, in respect of corporate and BR calls, "given the employment of Debbie, this year should see a significant increase of activity in this area";25 he was entirely evasive on the question of when recruitment of the office assistant actually occurred;26 and, finally, he said he was never given any warning, consultation or review but, when pressed by the Commission, conceded that "I believe the only review was in the corporate calls section of the two letters [24 February and 15 April 1997]".27 In my view both witnesses, in giving their evidence, displayed some want of candour from time to time in that each tended to avoid a direct answer when they thought a particular response might in some way adversely affect their respective interests. That lack of frankness was most apparent, it appeared to me, in Mr Barber's evidence concerning the company's disciplinary procedures, his "fully satisfactory" assessment of Mr Cummin in December 1996, and his "advertisement" of the managerial vacancy following Mr Cummin's dismissal: whereas, in Mr Cummin's case, it was the evidence regarding his inability to recall any discussions before December 1996 between he and Mr Barber about corporate calling, his denial of consultation and reluctance to admit his performance was under review, and his evasiveness when responding to questions concerning recruitment of the office assistant. In the circumstances, in my opinion, there is nothing to distinguish the witnesses, one from the other, as to credibility. However, because the oral evidence was put in issue by both parties I have adopted a cautious approach, concerning weight, to those evidentiary aspects mentioned above where I am satisfied there was an absence of candour. A question of redundancy? Before going to the parties' primary submissions, it is appropriate to mention that there was some suggestion by Mr Cummin in his statement of claim and again by Mr Evans in his submissions that, following his refusal to relocate to Melbourne, Mr Cummin was effectively made redundant because Allied Pickfords wanted to down-size its Tasmanian operations.28 While Mr Barber denied the allegation29 there is evidence that a down-sizing did occur in the Hobart office following Mr Cummin's departure, ie a part-time position of 20 hours per week was foregone.30 I do not read into Mr Evans' submissions that he was seriously arguing the issue of redundancy. If he was then, in my opinion, such evidence as there is before me on that point goes against him, ie the Company, as he acknowledged, did not seek to rely on redundancy as justification for its decision to terminate Mr Cummin's employment; Mr Cummin's position of branch manager was not abolished after his departure because the evidence is that the Company appointed an existing employee, Mr M Silver, as branch manager; 31 and, finally, the cost saving of $4,500 that resulted from the down-sizing that did occur32 is not, to my mind, indicative of redundancy associated with a position such as that of branch manager. In the circumstances, I find that Allied Pickfords did not terminate Mr Cummin's employment on grounds of redundancy and, further, that the facts, circumstances and evidence surrounding that termination do not disclose a redundancy situation relevant to Mr Cummin. Was there a valid reason for the termination of Mr Cummin's employment? In his primary submission, Mr Evans argued that, acting consistently with the operation of section 31(1A) of the Act, the Commission must take into account "the standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer" (the ILO Convention). Article 4 of that Convention, he said, makes it clear that "the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking ..." In a somewhat brief submission on this question, Mr Evans said:33
In reply, Mr Ironmonger submitted that Allied Pickfords had a valid reason to dismiss Mr Cummin on the grounds of poor work performance. Mr Cummin, he said, was given every opportunity to improve his performance, but he failed to do so within an adequate time frame. Specifically, Mr Ironmonger went on, the Company's valid reason rests on Mr Cummin's failure "to perform the important task of corporate calling to advance the company in the market place".34 Mr Barber's evidence, Mr Ironmonger continued, is that upon becoming State Manager for Victoria and Tasmania in May 1996 he was asked "not to talk to Tasmania for the first two or three months". When he did so in August/September he said he "found that there was no corporate or BR calling ... being done", as a consequence of which he asked Mr Cummin to begin such calls.35 In reply, according to Mr Barber's recollection, Mr Cummin said he could not leave his office because a part-time assistant, previously available, had been dismissed three or four months earlier.36 Mr Barber's evidence is that he then suggested to Mr Cummin that "we place an advertisement in the paper and replace this role so that would free him up to get out and do some corporate calling". Mr Barber added that a person was appointed towards the end of September.37 Mr Ironmonger submitted that, when the question of that discussion was put to Mr Cummin in cross-examination, his response was "I don't recall the discussions" after which he said it was incorrect to say that Mr Barber allowed the appointment of a clerical person to give him more time for corporate calls.38 However, Mr Ironmonger contended, there is support to be found for Mr Barber's recollection in Mr Cummin's "Performance Management" appraisal report of 17 December 1996 in which, under the heading "Appraiser Comments" the following observations are recorded:39
Those assessment remarks, Mr Ironmonger asserted, are supportive of Mr Barber's recollection regarding the appointment of a person so that Mr Cummin might get out of the office and do corporate calls. On the other hand, he continued, Mr Cummin was very evasive in his evidence concerning the time it took for a replacement clerical employee to be appointed. Returning again to the question of corporate calls, Mr Ironmonger referred to that part of Mr Cummin's Performance Management appraisal headed "Barriers to the Achievement of Results". There, he said, the appraiser's observations record that Mr Cummin had no exposure to Unitrac and needed some assistance in its use. The Unitrac system, Mr Ironmonger explained, is a computerised facility used by Allied Pickfords for the purpose of tracking and recording corporate calls. The importance of corporate calls to the company is further demonstrated, Mr Ironmonger contended, by the memorandum on that subject (provision of pads of contact reports and time table for entering data into the system) sent to Mr Cummin by the company's national sales manager on 20 December 1996.40 The corporate calls issue turns up again in Mr Cummin's Performance Management appraisal, on this occasion under the heading of "Assessment Comments". There, Mr Ironmonger pointed out, the observation is that the "issue of corporate and BR was discussed with commitment from JC to commence mid-January". That action did not occur, Mr Ironmonger asserted, even though Mr Cummin, in his response to the appraiser's comments, said on 17 December 1996 that he would "look forward to developing Tasmanian business ... with Vic's support". Mr Ironmonger contended the evidence of Mr Barber clearly shows that, contrary to Mr Cummin's assertion in his Statement of Claim that "since the company's attempt to re-locate me to Melbourne in early February 1997, there have been complaints made as to my performance", the question of corporate calls was an issue in September and again in December 1996. What occurred in mid-February, Mr Ironmonger continued, was that Mr Barber, in giving Mr Cummin the option of returning to Melbourne to remedy the performance issue, obviously "put in train the formal process of official warnings".41 However, Mr Ironmonger continued, while Mr Cummin's primary evidence is that he was only given one written warning, no consultation regarding his performance, and the letters of 24 February and 15 April 1997 were his only review, he later conceded that those letters did constitute review about the corporate calls issue. 42 The apparent basis of Mr Cummin's objection to undertaking corporate calls, Mr Ironmonger argued, is disclosed in his Statement of Claim in the following words:
In effect, Mr Ironmonger submitted, Mr Cummin is saying that contrary to what the company wanted to happen, he believed corporate calling in Tasmania to be a waste of time or not worthwhile, even though he admitted in cross-examination that corporate calling was one part of his managerial role in Tasmania.43 In resolving this issue I begin by referring to Mr Cummin's "Management Job Description".44 The document in question, marked as "Version 2" and, while issued in December 1996, operative "from October 1996", describes the "Main Purpose of the Job" as being "To provide strategic direction and control of Hobart and Devonport Branches' activities in order to achieve budgeted profit targets." The evidence does not disclose with certainty the nature of Mr Cummin's duties prior to October or December 1996. However, when asked by Mr Evans to explain the position Mr Cummin said "there was a ... version 1 which covered that position ... when I first began the job but [it was] a 12 month period covered under the description, whereas the new one now is open-ended from/to whatever date". The inference available in Mr Cummin's evidence on this point is that his "Management Job Description" prior to October/December 1996 was, apart from its period of operation, essentially the same as that which obtained after that time - certainly, there is no evidence or submissions before me that contradict such a conclusion. In the circumstances, I make that inference. Within the scope of the "Main Purpose of the Job" there are set out several "Principle Accountabilities" of which, for present purposes, the relevant duty appears to me to be that of ensuring "the achievement of budgeted trading profit targets". Then, within a further "main purpose" category of "Personal Activities", there are the following additional duties as identified in cross-examination by Mr Barber:45
Those are the criteria, as I understand the evidence, which establish both the context in which the relevant events occurred and the basis against which Allied Pickfords' criticisms of Mr Cummin's work performance must be measured. Allied Pickfords' primary complaint against Mr Cummin concerns a downturn in branch sales and profits and his failure in that regard to pursue corporate calling for the purpose of promoting the Company in the marketplace.46 Mr Barber's evidence is that he first raised this issue with Mr Cummin in August/September 1996, an event that Mr Cummin unequivocally denies. A directly associated event, the appointment of an office assistant to fill an existing vacancy, was not denied by Mr Cummin but he vigorously contested the purpose of that appointment as attested to by Mr Barber, ie to allow Mr Cummin the freedom to pursue corporate calling. On 17 December 1996 Mr Barber conducted Mr Cummin's annual performance management appraisal. The document47 shows, under the heading "Key Objectives", that while there were "no key objectives set for 1995/96 year" Mr Cummin's "main task was to come to new role May '95 and establish yourself in role as branch manager understanding the task/issues". Mr Cummin's observations, as recorded, disclose that his major concern was what he perceived to be a lack of support from Melbourne, a point that is repeated under the second heading of his appraisal document - "Barriers to the Achievement of Results". It is also under this heading that the first mention of corporate calling arises, ie "no exposure Unitrac - would like a print out with the required format need to forward current history to start corporate calls". The third heading of Mr Cummin's management appraisal report is "Assessment Comments". It is helpful to set out those comments in full:
The management appraisal report concludes with some observations about planning for future success and comments from both Mr Barber and Mr Cummin. Mr Barber's comments appear above at pages 6 and 7 as does Mr Cummin's observation that he looked forward to developing the company's Tasmanian business. Mr Cummin signed the report, acknowledging that the contents had been discussed with him and, although encouraged to do so by a direction on the face of the document itself, he did not record any areas of disagreement. It is open for me to conclude on the basis of Mr Cummin's 1996 performance appraisal, and I do so conclude, that notwithstanding his Management Job Description Mr Cummin was not making corporate calls in mid-December 1996 and had not in fact done so following the appointment of a replacement office assistant earlier in the year, although that was apparently by agreement with Mr Barber.48 Hence, it appears to me, the origin of his commitment to Mr Barber to begin such activities in mid-January 1997. That conclusion brings me to Mr Barber's "fully satisfactory" assessment of Mr Cummin's work performance. Mr Cummin's performance management appraisal report defines the phrase "fully satisfactory performance" as:
Given the importance the Company assigns to corporate calling ("70 per cent of the work that we do" according to Mr Barber49) and the lack of Mr Cummin's performance in that area coupled with the Devonport matter and the branch profitability problem, both of which I shall refer to later, it is very difficult indeed to understand how Mr Barber could have assessed Mr Cummin as "fully satisfactory" when a lesser assessment of "acceptable performance" would appear on all the facts to have been a more appropriate ranking. Indeed, Mr Barber himself conceded that it "was a fairly generous tick by me".50 In any event, as I see it, the outcome of that assessment is that it binds the Company and effectively condones Mr Cummin's performance to mid-December 1996. It follows therefore, in my opinion, that Allied Pickfords cannot now rely on Mr Cummin's lack of performance in relation to corporate calls prior to mid-December 1996 as constituting grounds for his subsequent dismissal in May 1997. Moving along, the evidence discloses that by memorandum dated 20 December 1996 Mr Cummin received certain materials and instructions regarding the use of Unitrac, as promised by Mr Barber during his performance appraisal of Mr Cummin on 17 December. Mr Barber said he also spoke to the corporate accounts manager, Mr G Howard, and "asked him to ring and explain again to Jeremy how the corporate calling should work".51 The evidence is silent on whether or not that call was actually made. In the third week of January 1997 Mr Cummin and his wife separated52 which, he advanced in cross-examination, was the reason why he did not fulfil his commitment to begin corporate calling in mid-January.53 Mr Cummin also conceded that, although planning to do so, he did not visit the Devonport office since, two staff members being on leave, he deemed the visit unnecessary.54 The next in this sequence of relevant events appears to be a meeting that took place on Friday, 14 February between Mr Cummin and Mr Barber at which, Mr Cummin acknowledged,55 there was a discussion about aspects of his work performance followed by a suggestion from Mr Barber that he (Cummin) should return to Melbourne. Mr Cummin's evidence is that he refused to accept Mr Barber's "offer" for family reasons and disagreed with Mr Barber raising the corporate calls and Devonport branch office issues on that occasion. As to corporate calling he thought that, having regard to his (Cummin's) personal circumstances, Mr Barber should have demonstrated some compassion by delaying the start of the corporate call process and, as to Devonport branch office, he (Cummin) had decided the visit was unnecessary.56 Following his refusal of Mr Barber's "offer" Mr Cummin received the letter of 24 February with its concluding admonition that unless he addressed certain matters his job would be under serious review.57 It is appropriate to pause here for the purpose of summarising Mr Cummin's position according to the evidence and Mr Barber's letter of 24 February 1997. First, Mr Cummin had not, in fulfilment of his undertakings of 17 December 1996, either commenced corporate calling in mid-January 1997 or visited Devonport branch office on a monthly basis. As to his reason for not beginning corporate calling it seems to me that, contrary to Mr Cummin's opinion, Mr Barber arguably did give consideration to his (Cummin's) personal circumstances because the date of Mr Cummin's performance review was, by the letter of 24 February, extended to the week commencing 17 March 1997. On the other hand, in my view, Mr Cummin's decision not to visit Devonport, having regard to the circumstances of his 17 December commitment, was a serious misjudgment on his part. That aspect of his managerial responsibilities was quickly taken from him by Mr Barber who, in his letter of 24 February, told him that "I will assume the responsibility of the Devonport Branch to allow your concentrated efforts in Hobart". Mr Barber's letter of 24 February 1997 raised a number of issues in addition to those relied on by him as grounds for his dismissal of Mr Cummin, ie "his performance in relation to corporate calling [and] the fact that the sales and profit for the branch were down".58 It is appropriate to add here that, at 3 February 1997, the evidence discloses that branch profits, compared with the same period in 1996, were markedly lower.59 However, further costings dated 25 March which, at the request of Mr Evans, Mr Ironmonger submitted after the hearing, show that, because of an accounting problem, the earlier figures had been overstated. The end result, nonetheless, confirms Mr Barber's assertion that branch profits for 1997 were down on a year-to-date basis compared with 1996. It is convenient at this point to dispose of the other matters mentioned in the letter of 24 February. Although they arose from time to time in the course of the evidence I do not understand Mr Ironmonger to have asserted (and on the evidence neither did Mr Barber) that they comprised any part, or at least any significant part of Allied Pickfords' decision to dismiss Mr Cummin. Briefly, the particular issues concerned the Devonport branch office, quality management, and driving a Company vehicle under the influence of alcohol. As an aside here, I think it is likely that Mr Barber had those other matters in his mind, in addition to corporate calling and the budget problem, when he said in his evidence that Mr Cummin "wasn't the right person, in my opinion, for the role."60 However, again on his evidence, they were clearly not the grounds he said he put to Mr Cummin on 22 May 1997 as being the reasons for his dismissal, ie corporate calling and downturn in branch profits.61 For that reason, in my view, it is not open for Mr Barber to now rely on them, if indeed he did, as grounds for his action in terminating Mr Cummin's employment. Those matters having been excluded from my considerations, the issues that relevantly remained alive for purposes of the current proceedings and Mr Barber's foreshadowed review of 17 March were corporate calling and the related direction, as it appeared in his letter of 24 February, that Mr Cummin was to "please prepare your Corporate and BR sales plan detailing your approach to future sales activity and present the plan to me by Wednesday, 5th March, 1997". Mr Cummin's evidence in chief is that he dealt with the particular matters referred to in the letter.62 However, in subsequent cross-examination Mr Cummin contradicted himself concerning the required "sales plan", as the following extract of transcript demonstrates:63
Mr Barber's evidence is that, when the "sales plan" had not arrived by 5 March he told Mr Cummin that, instead of coming to Tasmania on or about 17 March he would, instead, send Mr Howard, Allied Pickfords' corporate accounts manager, "who would actually make some appointments and take both himself and Mark Silver ... out on corporate calling and I would follow up approximately two weeks later".64 In the event, Mr Barber visited Tasmania on 4 April 1997. Mr Cummin's evidence confirms Mr Howard's visit (the date of which is unclear, although there is an inference available in Mr Barber's letter of 15 April that it was actually 4 April65) and the fact that no performance review occurred on 17 March. As to the "sales plan", I think that Mr Cummin's evidence in cross-examination, where he was responding to a question directed to that specific issue, is to be preferred to that of his examination-in-chief, where he was responding to a more general question. In the circumstances I find that Mr Cummin did not complete the sales plan required of him by Mr Barber in his letter of 24 February 1997. Concerning corporate calling, Mr Barber's evidence is that, at 4 April, Mr Cummin had still not commenced the required activity66 but that, following their meeting that day, agreement was reached between Mr Barber, Mr Cummin, Mr Silver and, possibly, Mr Howard that corporate calling would begin on 21 April 1997.67 In his evidence Mr Cummin confirmed his agreement in that regard68 from which I infer that, as Mr Barber alleged and contrary to Mr Cummin's own evidence in these proceedings, he had not done so prior to 4 April.69 Following his meeting with Mr Cummin on 4 April, Mr Barber again wrote to him, by letter dated 15 April 1997,70 concerning his (Cummin's) work performance. In that letter, referring to 4 April, Mr Barber raised the following performance issues with Mr Cummin: corporate calls, including a direction to send the information to Melbourne every two weeks, the first such report being due on 1 May; standards of dress of employees attending corporate calls; re-submission of the Hobart trading statement due 10 April; general condition of yard and warehouse; and reminder re disposal of an old vehicle. Apart from the corporate calling issue I do not, for reasons advanced earlier, regard any of those matters as being relevant to the grounds relied upon by Mr Barber as justifying his dismissal of Mr Cummin. It is again time to pause and summarise Mr Cummin's position. It is clear from the evidence that, at 4 April 1997, he had not prepared the "sales plan" requested of him by Mr Barber on 24 February and he had failed to commence corporate calling contrary to his own evidence in these proceedings. For the future, following 4 April, the evidence is that Mr Cummin was committed to begin corporate calling on 21 April, to report on his efforts to that effect on 1 May and thereafter every two weeks and was under direction from Mr Barber, by the letter of 15 April, to ensure that he "addressed" the issues therein raised before a proposed visit of Company officers, including Mr Barber, on 19 May 1997. Mr Cummin's evidence is that he made corporate calls as agreed, but that he could not remember the relevant dates and did not know whether or not he had complied with the target date of 21 April.71 He did acknowledge, however, that he had "sent through" corporate call contact report sheets three of which (weeks ending 16 May72 and 25 May [two sheets]73) he had completed himself and one (week ending 2 May74) that was completed by Mr Silver.75 Mr Cummin also agreed that all the reports were sent to Melbourne "during the week of my termination".76 Because the dates of each particular call assume some relevance in what follows it is helpful, in the interests of clarity, to tabulate them here:
The first point to fall from the above Table is that on 21 April 1997 Mr Cummin, at least prima facie, commenced corporate calling as earlier agreed on 4 April. However, the matter is not free of doubt and I shall return to the issue later. In the meantime, it is relevant to note that, from close of business on 24 April, Mr Cummin took two weeks' annual leave.77 While the evidence is not clear on the point I assume that, allowing for the Anzac Day holiday of 25 April, Mr Cummin subsequently returned to work on Monday, 12 May 1997, an assumption that seems to be confirmed by the corporate calls he made on 13th and 14th of that month. It is also apparent from the evidence of his own admission that Mr Cummin did not, as instructed in Mr Barber's letter of 15 April, send (or cause to be sent) his first report to Melbourne on 1 May. Similarly, again on his own admission and contrary to Mr Barber's written instruction of 15 April, he did not send his second report to Melbourne some two weeks later. In fact, as the evidence shows, even though he evidently had reports available to send at the relevant times, he nevertheless sent all of them, finally, during the week of his dismissal. When asked in cross-examination why it had taken him so long to file the report dated 25 May 1997 when it comprised calls made in late April, Mr Cummin's somewhat evasive response was "because I hadn't filed it before".78 Mr Cummin did not volunteer any other explanation as to why he had not filed his report in a timely manner as required by Mr Barber in his letter of 15 April. Mr Barber's evidence, so far as it relates to these matters, is that when no report was submitted by 2 May, he said he spoke by telephone to Mr Silver the following week and was told that "due to himself [Silver] having leave [he returned to work on or about 18 April] and the fact that Jeremy was currently on leave ... they hadn't any time to do any corporate calling and none had taken place".79 Mr Barber apparently followed up that call by speaking to Mr Cummin during the week commencing 12 May, again emphasising the imperative nature of corporate calling. It is immediately apparent that the course of evidence recited above invites a conclusion that the corporate call contacts recorded in the 25 May report were not submitted at an earlier date because, at least on the basis of the hearsay evidence of what Mr Barber recalled Mr Silver saying, no corporate calls had at that time been made. While there was some suggestion on Mr Ironmonger's part that I should make such a conclusion, I reject his contention on the grounds that Mr Barber's untested recollections are not reliable evidence of what Mr Silver actually said or in what context he said it and, consequently, it would be unsafe in the circumstances for me to draw such a serious inference in the absence of corroboration. For these reasons I am prepared to accept that Mr Cummin made the relevant contact calls on the dates mentioned in his reports. I am also prepared to accept, for purposes of resolving this dispute and because I do not find it helpful to do otherwise, that the contacts reported by Mr Cummin constituted corporate calls of the kind required by Allied Pickfords. A further inference is also available, ie that Mr Cummin did not submit his reports on time because he was, by then, on annual leave. If I was invited by Mr Evans to make such an inference then I reject the contention on the grounds that, because Mr Cummin was the Tasmanian branch manager, he was in a position prior to going on leave to instruct Mr Silver or the office assistant to send his reports to Melbourne at the appropriate time. The fact that he did not do so seems to me to be, in all the circumstances, another serious error of judgment on his part. It is relevant to mention here the uncontested evidence of Mr Barber as to what he required of Mr Cummin by way of the Company's expectations concerning frequency of corporate calling. On this issue Mr Barber said that, during his 4 April visit, he discussed the matter with Mr Cummin and Mr Silver, telling them that while Allied Pickfords required 15 corporate calls per week in Melbourne, the Company would accept 4 to 8 in the smaller Hobart market and understand if, in some weeks, the number was only two or three. He also said he told both employees that, while Melbourne required weekly reports, fortnightly reports would suffice for Hobart.80 Before coming to the actual dismissal itself, one further matter requires mention. Nowhere in the entire course of his oral evidence, as I perceive it, was Mr Cummin ever asked to explain why he continually resisted the Company's efforts to get him to undertake corporate calling, a duty that he conceded was one part of his managerial role.81 One possible exception to my overall impression, perhaps, is the circumstance of his marriage break-up in January which, by inference at least, Mr Cummin held as being the cause of his failure to fulfil his 17 December 1996 commitment to begin corporate calling by mid-January 1997. His explanation is available however, albeit untested by cross-examination. In his Statement of Claim, as attached to the section 29(1A) application for a hearing, Mr Cummin summarised his reasons for objecting to corporate calling - an explanation that appears in full at pages 7 - 8 above. There is no reason for me not to accept his explanation, although there is nothing in Mr Cummin's evidence that suggests he ever put his objections about corporate calling to the Company's senior management in any formal way. The above narrative brings me to Mr Barber's dismissal of Mr Cummin on 22 May 1997 on the grounds that, as I have already mentioned, "his performance in relation to corporate calling [and] the fact that the sales and profit for the branch were down". What do the circumstances disclose regarding presence of a valid reason for dismissing Mr Cummin, as argued by Mr Ironmonger? Drawing the significant facts together, the picture emerges that Mr Cummin:
Notwithstanding the distraction of his personal problems in January, the above history reveals an ongoing refusal by Mr Cummin, in the face of repeated reasonable requests and directions by Mr Barber, to perform one of the duties for which he was employed - one which the Company regarded as important.91 In my view the explanation offered by Mr Cummin concerning the problems of corporate calling in Tasmania does not avail him in the circumstances because his clear duty, in the absence of any Company direction to the contrary, was to perform the functions properly required of him by his employer even if he strongly believed, as he evidently did, that such activity was unproductive. In short, Mr Cummin was not free to decide for himself that he would not perform corporate calling. That he did so, nonetheless, seems to me to represent another error of judgment on his part because, in addition to acting contrary to the Company's wishes, he appears to have ignored the possible effect of his actions on his duty to achieve "budgeted trading profit targets". In that regard the evidence suggests that Mr Cummin knew, or ought to have known in early February, that the Tasmania branch trading profits were down on the previous year's results.92 There is, of course, the fact that ultimately, on 21 April 1997, Mr Cummin commenced corporate calling in accordance with his duty and in satisfaction of Mr Barber's repeated requests and directions. In my opinion, looking at all the events from 17 December 1996 onwards regarding Mr Cummin's responses to the need for corporate calling, his belated compliance during the period 21 April - 14 May 1997 was too little, too late. Indeed, in what appears to me to be a further error of judgment, Mr Cummin compromised even those efforts by failing to ensure timely lodgment of the relevant reports in accordance with Mr Barber's directions.93 That lack of timely action on Mr Cummin's part suggests to me that, having finally commenced corporate calling, his efforts were, at best, half-hearted. In all the circumstances I am satisfied that, in dismissing Mr Cummin on the grounds of "his performance in relation to corporate calling [and] the fact that the sales and profit for the branch were down", Mr Barber had a valid reason for his action in terms of Article 4 of the ILO Convention. After taking the Convention into account, as required by section 31(1A) of the Act, I find too that, having regard to Article 4, Allied Pickfords had a valid reason for terminating Mr Cummin's employment. Was there a denial of procedural fairness? Mr Evans referred to Article 7 of the ILO Convention which provides that "the employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity". In the light of that provision, Mr Evans submitted, Mr Cummin's dismissal was totally unjustified as a matter of procedure. The company's policy manual, Mr Evans asserted, clearly sets out the relevant procedures for terminating staff under the heading of "Discipline and Termination of Staff".94 There, he went on, the manual stipulates, as part of the "Introduction", that "it is therefore imperative that we follow disciplinary procedures to the letter before any action to terminate is taken". In the circumstances, Mr Evans contended, Mr Barber must be taken to have known what his policy obligations were. The next relevant passage of the policy manual, Mr Evans submitted, appears in the section titled "Counselling for Improved Performance". That provision, he said, reflects the direction that "in the first instance, the employee must be counselled on his/her poor performance and given the opportunity to defend any allegations of misconduct or poor performance which is liable to result in termination of employment." In Mr Cummin's case, Mr Evans argued, there is no evidence that establishes he was ever told the matters referred to by Mr Barber could result in the termination of his employment. The "Counselling for Improved Performance" section of the policy manual then goes on, Mr Evans observed, to record the following instructions:
Not one of these things, Mr Evans submitted, was done by Mr Barber who, he suggested, appeared to have set out to achieve the direct opposite of the company's policy. Finally, Mr Evans continued, the section of the company's policy manual headed "Termination" requires that "when the decision is finally taken to terminate an employee, we are required to do so in writing and, if requested by the employee, must provide a written statement as to the reasons for the termination". Nothing of that nature, Mr Evans contended, was done by Mr Barber. In summary on the issue of procedural fairness, Mr Evans concluded, there are nine ways in which Mr Barber ignored policy manual guidelines that are specially expressed as being "imperative". Such an audacious disregard of the company's policy, Mr Evans asserted, is breathtaking. Notwithstanding Allied Pickfords' clear guidelines, Mr Evans contended, the evidence is that Mr Barber essentially dismissed Mr Cummin because he felt he was not the right person for the role95 - a consideration that Mr Barber did not disclose to Mr Cummin before dismissing him. In the circumstances, Mr Evans submitted, it is hard to imagine a more flagrant and blatantly unjustified dismissal having regard to the company's mandatory guidelines. Regarding the company's policy manual, Mr Ironmonger explained that the "Discipline and Termination of Staff" procedures were specifically written having regard to section 170(DE) of the federal Industrial Relations Act 1994, which was subsequently struck down by the High Court on constitutional grounds. The "procedures" were prepared, Mr Ironmonger went on, in recognition of the fact that the Industrial Relations Court of Australia had held that, even if there existed a valid reason for termination, the particular termination might be overturned if the procedure was found to be flawed. Allied Pickfords' position, Mr Ironmonger said, is that while the "procedures" should be followed they are nonetheless, in the circumstances, only guidelines. Concerning the procedure followed by the company in the present case it is clear, Mr Ironmonger contended, that Allied Pickfords regards corporate calling as a major part of its business. The evidence shows, he continued, that the issue was raised with Mr Cummin in September 1996 and was considered important enough to warrant specific mention in Mr Cummin's performance appraisal report of December 1996, even though he was kindly described by Mr Barber as being "fully satisfactory". At that time, Mr Ironmonger continued, Mr Cummin committed himself to commence corporate calling in mid-January 1997, but the evidence is that he did not do so. Then, Mr Ironmonger said, in mid-February Mr Barber, no doubt because of Mr Cummin's personal tragedy, extended to the week beginning 17 March 1997 the period in which the company required Mr Cummin's compliance regarding the issue. The evidence, once again he said, is that Mr Cummin did not comply. Finally, Mr Ironmonger submitted, after receiving assistance from the company's corporate accounts manager, Mr Cummin agreed with Mr Barber that he would commence corporate calling on 21 April and lodge his first report on 1 May 1997.96 Yet again, Mr Ironmonger asserted, Mr Cummin did not give effect to his commitment. In addition, Mr Ironmonger went on, Mr Barber in his letter of 24 February specifically directed Mr Cummin to "please prepare your Corporate and BR sales plan detailing your approach to future sales activity and present the plan to me by Wednesday 5th March 1997". Mr Cummin's evidence, Mr Ironmonger said, is that the report was never done.97 In Gibson v Bosmac Pty Ltd (1995), Mr Ironmonger said, Wilcox CJ observed, regarding the procedural fairness requirements of the federal Act:98
In similar vein, Mr Ironmonger added, there is the 1988 decision of Lane C (as he then was) of the Industrial Relations Commission of Victoria in the matter of the Licensed Clubs Employees Conciliation and Arbitration Board (of which he was Chairperson) and a dispute concerning the dismissal of Patrick Jamieson by the Red Cliffs Club.100In that case the Commissioner observed:101
In the present case, Mr Ironmonger submitted, Mr Cummin was put on notice about the Company's requirement of him to undertake corporate calling in his December 1996 performance appraisal; he was given a further warning in February 1997 that "unless you take appropriate actions to address these matters your future employment with our company will be under serious review";102 and he was never subsequently told that his job was other than "on the line".103 For all these reasons, Mr Ironmonger argued, there was a valid reason for the Company's dismissal of Mr Cummin, which the Company undertook with procedural fairness. My principle earlier finding, it will be recalled, was that in terms of Article 4 of the ILO Convention, Allied Pickfords had a valid reason for terminating Mr Cummin's contract of employment on grounds that were related to his capacity or conduct.104 As Mr Evans pointed out, Article 7 of the Convention provides that "the employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity". In those circumstances the present issue, simply expressed, is this: did Allied Pickfords, through Mr Barber, provide Mr Cummin with an opportunity to defend himself against the allegations concerning "his performance in relation to corporate calling [and] the fact that the sales and profit for the branch were down"? The Company did not assert that it would have been unreasonable for it to have provided Mr Cummin with an opportunity to defend himself against the allegations made by Mr Barber. To the contrary, Mr Ironmonger said the Company believed its "Discipline and Termination of Staff" procedures should be followed, albeit not slavishly, he inferred, relying on the observations of Wilcox CJ in Gibson and Nicolson. My perusal of the relevant "procedures", as contained in Exhibit E1,105 shows that they are "to be followed within Allied Pickfords and subsidiary companies", it being Company policy "to at all times treat all staff in a fair and equitable manner". While it is true, as Mr Ironmonger said, that the introduction to the "procedures" refers specifically to relevant federal legislation, it nevertheless goes on to emphasise the importance of "substantial fairness" when terminating staff, concluding with an admonition that:
The federal legislation to which Mr Ironmonger adverted had as its origin the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer. It is Part II (Standards of General Application) of that same Convention to which section 31(1A) of the Industrial Relations Act 1984 refers. In the circumstances there is no reason for supposing that the procedural fairness requirements of Article 7 of the Convention, which I must take into account, are different in any substantial way from the similar requirements of the former federal legislation. Accordingly, I reject the inference promoted by Mr Ironmonger that, merely because the Company's procedures were written with the then federal legislation in mind, they ought not to be relied on too strictly but be seen simply as guidelines. In my view the Company was bound by its published "Discipline and Termination of Staff" procedures in dealing with Mr Cummin's termination of employment and, in the absence of any direction to the contrary he, for his part, was entitled to believe and expect that the Company would itself observe them. What did the Company actually do? Mr Barber, after being heavily pressed by Mr Evans in cross-examination, unambiguously admitted to me that he was bound to follow the "procedures" but that, in relation to Mr Cummin's dismissal, he had not done so.106 Such an admission, on its face, appears to be instantly capable of making out Mr Evans' assertion that, in terminating his employment, Mr Barber and hence Allied Pickfords, denied Mr Cummin procedural fairness in the context of Article 7 of the ILO Convention. However, Mr Ironmonger's submission is in effect that while Mr Barber might not have followed the Company's procedures to the letter he nevertheless applied them, in terms of Wilcox CJ's observations in Gibson and Nicolson, in a practical and commonsense way that ensured Mr Cummin was treated fairly. It is necessary to look at the "procedures" and to assess from the evidence what happened in respect of them, in order to determine this point. The "procedures" require that "in the first instance, the employee must be counselled on his/her poor performance and given the opportunity to defend any allegations of ... poor performance which is liable to result in termination of employment". Looking at all the events that occurred between 17 December 1996 and the date of his dismissal I am satisfied that, in terms of Wilcox CJ's observations, Mr Cummin could hardly have been otherwise than aware of the precise nature of the employer's concern about his performance. Mr Barber gave him assistance in the form of corporate support;107 he gave him frequent and extended opportunities to respond to the Company's concerns by performing the required activity;108 he gave him appropriate instructions and objectives which he committed to Mr Cummin in writing;109 he told Mr Cummin that unless he took appropriate action his future employment with the company would be under serious review;110 and he told Mr Cummin he would review his position on 17 March.111 The promised review did not occur on the nominated date, although something approaching it evidently occurred on 4 April. Nothing rests on that point, however, because Mr Cummin conceded in cross-examination that there was a review regarding corporate calling.112 In the circumstances I find that, in terms of the Company's "procedures", Mr Cummin received adequate counselling regarding his need for improved performance concerning corporate calling. The "procedures" go on to provide that, where an employee fails to meet the instructions or objectives set during counselling, "we must give two separate written warnings, specifically referring to the possibility of termination if performance or conduct does not improve". It is abundantly clear from the evidence that even if Allied Pickfords gave Mr Cummin one "written warning specifically referring to the possibility of termination" in the absence of improved performance, he was certainly not given two such warnings. Mr Ironmonger's argument, contrary to that of Mr Evans, was that Mr Barber's written advice of 24 February to Mr Cummin, regarding the fact that in certain circumstances "his future employment with the company would be under serious review", constituted one of the required written warnings. I am prepared to accept his contention in that regard because it seems to me that the context in which the warning appears in Mr Barber's letter, when the document is read as a whole, conveys a plain enough meaning of possible termination. In any event, Mr Cummin in cross-examination confirmed that he saw it as such because he said "there was only one written warning referring to termination possibilities". As to the requirement for a second written warning, Mr Ironmonger suggested that Mr Barber's February letter was reviewed with Mr Cummin on 4 April and that, in any event, Mr Cummin was never told that his position with the Company was otherwise than under review. Those contentions may be true but, in my opinion, they are entirely without substance in the context of the Company's "procedures" regarding the need for "two separate written warnings, specifically referring to the possibility of termination". Simply put and contrary to its own policy, the Company never gave Mr Cummin a second written warning of the kind referred to in its "procedures". That omission was a matter of some consequence to Mr Cummin, I suspect, because in cross-examination he said he did not believe his job was on the line at any stage and that his termination came out of the blue.113 There is some inferential support for the truth of that statement, which is to be found in the circumstances of 14 February 1997 on which occasion Mr Cummin said he was offered alternative employment in Melbourne or, perhaps, elsewhere. At that time there was evidently some discussion initiated by Mr Barber about Mr Cummin returning to a truck driving position in Melbourne in the short term, with the possibility of moving to branch management in country Victoria.114 Mr Barber's evidence confirms that such a discussion did in fact occur.115 My impression of that evidence, admittedly as a matter of conjecture, is that those discussions most likely disarmed Mr Cummin regarding the potentially serious outcome of the warning contained in Mr Barber's letter of 24 February, that is (but only as a matter of speculation) rather than the threatened termination, the more likely outcome was that he (Cummin) would continue to be employed by Allied Pickfords, even if that were in some position elsewhere than in Tasmania. Conjecture aside, however, the evidence is that, not only did Mr Barber fail to give Mr Cummin a second written warning but, at the time of the actual dismissal, he did not give Mr Cummin any opportunity to then and there attempt to rebut the Company's allegations as to his performance. On that point the evidence of Mr Cummin is that, on the occasion of his dismissal on Thursday, 22 May 1997, Mr Barber evidently made some comments about discussions that occurred at a recent State Managers' conference and then apparently informed Mr Cummin that (in Mr Cummin's words) "effective immediately, you're terminated".116 Mr Barber's evidence on the same point is substantially similar, except that he said he informed Mr Cummin of the reason for his dismissal, ie performance in relation to corporate calling and the fact that branch sales and profit were down.117 On balance I think Mr Barber most likely did tell Mr Cummin of the reason for his dismissal. However, there is no doubt on the evidence that, at the time of dismissing Mr Cummin, Mr Barber did not give him the least opportunity to defend himself against the allegations of poor performance. Accordingly, I find that, as a matter of procedural fairness, Mr Cummin was in all the circumstances prejudiced by Allied Pickfords' failure to give him a second written warning in accordance with the Company's own "procedures" or, indeed, at the time of his dismissal and particularly in the absence of such a warning, an opportunity to defend himself against the allegations of poor performance. By those omissions, taking into account Article 7 of the ILO Convention in relation to procedural fairness, Mr Cummin was, in my opinion, denied an appropriate and relevant opportunity to defend himself against the Company's allegations. Finally, as to the Company's "procedures", the policy manual directs that:
From my perusal of the evidence, Mr Barber, contrary to the Company's policy manual "procedures", never gave Mr Cummin notice of termination in writing, either at the time of his dismissal or subsequently. I do not regard that omission as a matter of consequence in the present case because, while clearly in breach of the Company's "procedures", it does not constitute, in the circumstances, a substantive denial of procedural fairness since Mr Cummin, in my view, knew of and understood the reasons for his termination. Having regard to the above considerations I find that, in failing to give Mr Cummin a second written warning in accordance with the Company's "Discipline and Termination of Staff" procedures and, in addition, by dismissing Mr Cummin on 22 May 1997 in the manner that he did, Mr Barber, in terms of procedural fairness and Article 7 of the ILO Convention, denied Mr Cummin an appropriate and relevant opportunity to defend himself against the Company's allegations. As a consequence, after taking into account the ILO Convention pursuant to section 31(1A) of the Act, my further finding is that Mr Cummin was unfairly dismissed because, notwithstanding that the Company had a valid reason for terminating his contract of employment, it nonetheless did so in a manner inconsistent with the provisions of Article 7 of the Convention. Reinstatement or compensation? Going to the question of remedy, Mr Evans referred to Article 10 of the ILO Convention which, in brief, makes provision for the Commission in circumstances of an unjustified termination to propose reinstatement of the worker or, alternatively, make an order for payment of adequate compensation. In the present case, Mr Evans submitted, Mr Cummin's claim is for reinstatement, a position that he confirmed in his oral evidence.118 If, however, Mr Evans went on, the Commission should find that reinstatement of Mr Cummin is for some reason impracticable then, as to compensation, the position on the authorities is that "adequate compensation" is that which would put Mr Cummin into the position in which he would have been but for his unjustified termination. In doing so, Mr Evans added, the Commission must look at the realities. In some cases, he said, but not this one, the facts may allow a tribunal to form the view that, even if an employee had not been unjustifiably dismissed, a dismissal by due process might have nonetheless followed in, say, six months. In such circumstances, Mr Evans said, the measure of compensation is six months' loss. But, he continued, where the facts indicate, as they do in the present case, that had Mr Cummin's employment not been unjustifiably terminated he would have remained in that employment, the measure of compensation comprises two ingredients: (1) his loss to date, ie past loss and (2) projected or future loss from this date, calculated by reference to when, in the ordinary course of events, he might have expected to conclude his employment. The Commission, Mr Evans argued, cannot assume, just because the current dismissal did not work, that Mr Cummin would have been dismissed in any case. In fact, Mr Evans submitted, the reverse is the proper assumption unless there are circumstances that make it clear to the contrary. Such an approach, Mr Evans went on, is supported by such cases as Byrne v Australian Airlines Ltd (1994) 120 ALR 274, 284-285; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 29-40; Wheeler v Phillip Morris Ltd (1989) 97 ALR 282 and Gregory v Phillip Morris Ltd (1988) 80 ALR 455. All these authorities, Mr Evans contended, are an extremely helpful guide to the approach the Commission must take in assessing payment of adequate compensation. On the basis of the principles established in the above cases, Mr Evans submitted, adequate compensation in Mr Cummin's case should comprise the following elements. At the time of his dismissal Mr Cummin's gross annual salary was $57020, ie cash salary $42,400, employer superannuation contribution of $2,120 and value of car $12,500 or, in rounded figures, $2193 per fortnight. Upon comparing that amount with Mr Cummin's current fortnightly wages of, again in rounded figures, $1240 as disclosed in Exhibit E2, there is found to be a net fortnightly loss of $953 or, in weekly terms, $476.50. For the 89 day period that has elapsed between his dismissal and the present date (19 August 1997), Mr Evans calculated, Mr Cummin's past loss is $6058. As to future loss the calculation, based on a further working life of 30 years and allowing for a three per cent per annum compound interest rate as specified by the High Court in Atlas Tiles v Briers (1978) 144 CLR 202 (a case that dealt with damages for wrongful dismissal), produces a gross figure of $494,607 ($476.50 multiplied by $1,038 - the present value of $1 per week for 30 years at 3 per cent compound interest, according to the Atlas specification. Recognising, however, that as to the 30 years estimate "there is a lot of water to pass under the bridge between now and then" Mr Evans submitted that the total sum should be discounted by, say, 30 per cent to arrive at a net adequate compensation figure of $346,225.119 While Mr Evans did not say so, I assume that this discount represents provision for what Keely J at first instance in Bostik called "the vicissitudes of life".120 Mr Ironmonger, responding, submitted that should a finding be made against Allied Pickfords on the grounds that, in dismissing Mr Cummin the company, even though it had a valid reason to so act, breached its own "Discipline and Termination of Staff" procedures, Article 10 of the ILO Convention obliges the Commission, when looking at questions of reinstatement or compensation, to take into account national law and practice. In the present case, Mr Ironmonger contended, the appropriate national law and practice is the Commonwealth Workplace Relations Act 1996, the cornerstone of which, concerning dismissals, is the "fair go all round" principle determined by Sheldon J in Re Loty and Holloway (1971) 71 AR 95. In that light, concerning reinstatement, Mr Ironmonger argued that the Commission should have regard to the judgment of Wilcox CJ in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) where His Honour said:121
In the circumstances of the present case, Mr Ironmonger contended, Mr Barber's evidence is that the working relationship between he and Mr Cummin could not be re-established because the latter 'became very cold after some of these things were brought out and, even though he said to me the truth hurts, it seemed difficult for him to accept that this was part of the role that he couldn't do - the vital part of being the branch manager in Hobart."122 In those circumstances, Mr Ironmonger argued, where there is no cohesion between a branch manager and a state manager and no chance of putting such a relationship back together, there is little commonsense or purpose in ordering reinstatement. Turning to the question of compensation, Mr Ironmonger submitted that Allied Pickfords had a valid reason to terminate Mr Cummin's employment and gave him the benefit of due process albeit that, in terms of the company's policy "one letter may have been short". Furthermore, he continued, while Mr Cummin was put on notice, given a written warning and given a further review period, nothing came from him - he did not prepare the corporate and BR sales plan required of him on 24 February 1997 and he did not commence corporate calling. In those circumstances, Mr Ironmonger asserted, if the Commission should decide to make an order for compensation, any such amount should be minimal. In determining the above issues I begin, as I must, by considering the question of Mr Cummin's claim for reinstatement and whether or not, as Mr Ironmonger argued, such action is impracticable in all the circumstances. In Perkins v Grace Worldwide (Aust) Pty Ltd (1997)123 the Full Court of the Industrial Court of Australia (Wilcox CJ, Marshall and North JJ) considered a number of decided cases, including the observations of Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCR 199 put to me by Mr Ironmonger, as to the meaning of "impracticable". While not necessary for purposes of the present case, a small diversion at this point is nonetheless desirable for future purposes. In Article 10 of Part II of the ILO Convention, which I must take into account, the word "practicable" is used in the context of "do not find it practicable" whereas the Industrial Relations Act 1984, following its amendment by Act No 18 of 1997, uses "impractical" as in section 31(1B) where the context is "considers that ... reinstatement ... is impractical". Is anything to be made of this dichotomy, particularly as between the word pairs "practicable and impracticable" and "practical and impractical"? Questions of this nature can give rise to an orgy of semantic debate. I avoid that problem here by simply accepting that, in context, "impracticable" (the federal legislative expression) and "impractical" (the State legislative expression), for example, are capable of being used interchangeably, since they both share at least one identical synonym,124 ie "unworkable" and neither, in the appropriate context, appears to me to be sensibly distinguishable from "do not find it practicable" (the ILO Convention expression). Returning then, to the meaning of "impracticable", I propose to adopt the approach suggested by Wilcox CJ in Nicolson that:125
Mr Ironmonger's submission is that reinstatement is impracticable since the working relationship could not be re-established between Mr Barber and Mr Cummin because, paraphrasing Mr Barber's evidence, Mr Cummin found it difficult to accept that he could not do corporate calling, a vital part of being the branch manager in Hobart.126 Mr Barber's evidence, in my view, tends to demonstrate a misunderstanding, at least in part, of Mr Cummin's attitude regarding corporate calling. While it might arguably be true that Mr Cummin could not do corporate calling, what comes through to me from the evidence is that, rather than lacking the particular ability, he simply refused to undertake corporate calling, or to cooperate with Mr Barber's repeated requests and directions to that effect, because he had formed the view that it was an unproductive activity.127 As to Mr Cummin's attitude concerning reinstatement, his evidence is simply that he would be happy to be reinstated to his former position.128 However, he was never asked to explain what his response might have been, in those circumstances, to his duty as branch manager and to his employer's reasonable demands to undertake corporate calling. Arguably, the only possible indicator of Mr Cummin's likely attitude is the fact that he finally did commence corporate calling on 21 April 1997. In doing so however, he did not, as I have already remarked, lodge his resultant reports in a timely manner and so tended to suggest that his commitment to the activity was, at best, half-hearted.129 Those circumstances indicate to me that, underlying his belated efforts at corporate calling, there remained in Mr Cummin an essential resistance to performing the task and an evident uncooperative attitude towards complying with his employer's reasonable requests and directions in that regard. In short, there is nothing before me upon which I might reasonably conclude that Mr Cummin had in any way changed his attitude towards corporate calling. Consequently, I cannot conclude that, if I were to reinstate him, he would be any more cooperative with Mr Barber in the matter of corporate calling than he was during the several months that preceded his dismissal. Taking into account the above considerations I am convinced that, in circumstances where I cannot be satisfied that Mr Cummin would not continue to be uncooperative with his employer's reasonable requests and directions concerning corporate calling, his reinstatement is likely to impose upon Allied Pickfords, having regard to the thrust of Wilcox CJ's observations in Nicolson, unacceptable problems in relation to the Company's proper conduct of its business activities in Tasmania. Accordingly, for the reasons advanced, I do not find it practicable to order reinstatement of Mr Cummin. Having refused to make an order of reinstatement by way of primary remedy for unfair dismissal, it is clear that the Commission may look to the secondary remedy of adequate compensation. In the circumstances of the present case I accept Mr Evans' submission that, on the basis of the decided cases, it is appropriate to look at what might have happened but for intervention of the unfair dismissal. However, contrary to Mr Evans' contentions, which appear to be based on the premise that the Company had no valid reason for its dismissal of Mr Cummin, the evidence does not convince me that he (Cummin) had, at the time of his dismissal, any reasonable likelihood of a lifetime career with Allied Pickfords. Indeed, in circumstances where over a period of several months he had stubbornly refused to perform his managerial duty of corporate calling or to comply with Mr Barber's reasonable and proper directions to undertake such activity, Mr Cummin's continued future with his employer, in my view, was likely to be of short, rather than long duration. In that regard Mr Ironmonger's submission was that, in brief terms, if the Commission should decide to make an order of compensation, it should be minimal in amount on the grounds that, if the Company did deny Mr Cummin procedural fairness, it did so only to the extent that it failed to give him a second written warning. In attempting to determine what might have been Mr Cummin's future with Allied Pickfords but for his unfair dismissal, the relevant facts appear to be these. First, there was his continued refusal over the period 17 December 1996 - 21 April 1997 to conduct corporate calls. Second, the evidence is that when he did finally commence corporate calling and consequential reporting, he did so in such a manner as to suggest his commitment to the activity was, at best, half-hearted. In those circumstances, in my view, an appropriate outcome, had Mr Barber properly applied the Company's "Discipline and Termination of Staff" procedures when he met Mr Cummin on 22 May 1997, would have been a first written warning. Alternatively, to follow an inference contained in Mr Ironmonger's submissions, it might arguably have been open to Mr Barber within the Company's "procedures", to give Mr Cummin further counselling and a second written warning when he met him on 22 May. If such an inference was Mr Ironmonger's intention then I reject it because, given the period of elapsed time between 24 February and 22 May and the potentially disarming effect on Mr Cummin of the earlier discussion regarding the possibility of a posting in Victoria, such counselling would have been neither timely nor relevant in terms of the "procedures".130 Given the history of Mr Cummin's attitude towards corporate calling it is unlikely, in my opinion, that his performance in that regard, in the face of a first written warning, would have been any more acceptable to or cooperative with his employer than it had been during the previous several months. On balance, I do not think his response to that written warning would have been any different from the view he formed of the 24 February warning, ie that he did not believe Allied Pickfords would ultimately dismiss him. In those circumstances, I believe, a second written warning would have followed. According to the Company's "procedures" Mr Barber should not have issued such a warning within a period of two weeks following the first warning but desirably, so that counselling might be timely and relevant, not later than one month from that event. What might have been Mr Barber's approach? In respect of Mr Cummin's non-performance of his 17 December 1996 commitment to begin corporate calling in mid-January 1997, Mr Barber does not appear to have acted until about one month later, ie 14 February. By his letter of 24 February Mr Barber told Mr Cummin he would review his performance during the week commencing 17 March, a further period of roughly one month. By letter of 15 April to Mr Cummin, Mr Barber confirmed an earlier agreement of 4 April that Mr Cummin would commence corporate calling from 21 April and submit a first report on 1 May, with further reports following each two weeks thereafter. In my opinion there is arguably a certain level of consistency in Mr Barber's reviews that, while not by any means exact, is indicative of time periods of four weeks in which to commence corporate calling and of two weeks for the submission of reports. Taking into account the above observations it is my opinion that, had he given Mr Cummin a fresh first written warning on 22 May, Mr Barber most likely would have told him of a further review some four weeks later, ie on or about 19 June 1997. Having regard to the evidence of his continued opposition to corporate calling over several months I think Mr Cummin could have been expected to attempt to undertake corporate calling, after a first warning on 22 May, in no more than the half-hearted manner in which he approached it at the end April and towards mid-May 1997. In circumstances where the evidence clearly shows that Allied Pickfords had lost confidence in Mr Cummin's performance as Hobart branch manager, any efforts on his part at corporate calling and associated reporting of similar nature to those that occurred in late April and early May would most likely have been assessed by the Company as being too little, too late - as I suggested earlier.131 As a consequence, I believe, Mr Barber could have been expected to issue his second written warning on or about 19 June. By then however, in my view, the die would have been cast and Mr Cummin's dismissal would have surely followed swiftly thereafter - certainly, I suspect, within a period not exceeding two weeks and, in total, some six weeks following the first written warning. Accordingly, after taking into account the "standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer" pursuant to section 31(1A) of the Act I have decided that in respect of Allied Pickfords' unfair termination of Mr Cummin's employment, being of the view that reinstatement is impractical, I should make an order for payment of compensation, believing it appropriate to do so in all the circumstances. In his submissions on the question of compensation, Mr Evans based his assessment on calculations that suggested Mr Cummin's net fortnightly loss, from a gross sum of $2193, was $953. In arriving at that figure, Mr Evans allowed for a deduction of $1240, being the value of Mr Cummin's current fortnightly earnings (at 10 July 1997) as disclosed in Exhibit E2.132 Mr Ironmonger did not contest those calculations. Mr Cummin's evidence, as to the duration of his current employment at the time of giving evidence (10 July), was that "this is the start of my third week".133 From this evidence I infer that he commenced his current employment on or, at least, about 26 June 1997. In those circumstances, in my opinion, it would be wrong to apply Mr Evans' net fortnightly sum of $953 to any period of time occurring between 22 May (the date of Mr Cummin's dismissal) and 26 June when, or about when, he obtained other employment. For that period the appropriate amount to apply, in my view, will be the gross fortnightly sum of $2193, as calculated by Mr Evans,134 because Mr Cummin did not have the benefit of any paid employment during that time.135 Taking into account my earlier conclusion that Mr Cummin's future employment with Allied Pickfords would most likely not have exceeded a period of six weeks from 22 May 1997, I calculate the amount of compensation that I should order in the following manner:
Having regard to the above calculation I assess the amount of compensation at $5339. ORDER PURSUANT TO the power conferred on me by Section 31(1) of the Industrial Relations Act 1984 I HEREBY ORDER that, in settlement of the industrial dispute referred to in matter T No 7012 of 1997, the employer, Allied Pickfords Pty Ltd (ACN 005 944 203) of 372-392 Lower Dandenong Road, Braeside, Victoria 3195, pay to Mr Jeremy Cummin of 13 Hardner Court, Carlton Beach, Tasmania 7173 through his agents, Butler, McIntyre & Butler of 20 Murray Street, Hobart, Tasmania 7000, the sum of Five Thousand Three Hundred and Thirty-Nine Dollars ($5339), such payment to be made on or before Monday 28 December 1997.
B R Johnson Appearances: Date and Place of Hearing: 1 T7012, transcript 10/7/97, p. 6. |