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Norman Waterhouse

Swing and a miss – Golf store ordered to pay $10,000 for unfair dismissal

“the employer’s evidence that…employees should have been able to cope as by then the tragic event had occurred “five months down the track” (in fact it was three) is an opinion reflective of an old world (and dangerous) view of male stoicism and lacking an appreciation of what Mr Craig-Follese was going through.”

The above finding from Deputy President Anderson in the recent decision of Michael Craig-Follese v Golf World (Qld) Pty Ltd [2021] FWC 1022, demonstrates that employers must properly take into account any mitigating factors and observe the principles of procedural fairness before pursuing disciplinary action against an employee.

In this decision, Mr Michael Craig-Follese (the Employee) was found to have been unfairly dismissed by Golf World Pty Ltd (Golf World). This was despite performance deficiencies and two formal prior warnings. The Commission found that termination of employment was harsh in consideration that a material issue of mitigation being a former employee’s passing which correlated to the Employee’s underperformance was not properly taken into consideration by Golf World.

Background

Golf World is a private business which sells golfing products. Golf World is based in Queensland and operates in four States, including the Adelaide store in which the Employee worked.

The Employee was promoted to the position of Team Leader in October 2019. The Employee received only limited induction into the new role and felt training on some issues (such as stock management) was inadequate.

In late July 2020 a tragic event impacted the Adelaide store. A former Team Leader of Golf World, who had ceased working in April 2020, took his own life. The Employee had worked closely with the former Team Leader and took the passing of his former workmate hard.

Shortly after, in September, the Employee was instructed to undertake a stocktake of the store. Stocktake was usually conducted on a six monthly basis, though due to COVID-19 disruptions in 2020 meant that stocktake in the Adelaide store did not occur until September 2020, a period of more than six months.

On 30 September, subsequent to the stocktake, Golf World informed the Employee that the result of the stocktake was not positive. The Employee responded that he would do his best to rectify the issue and do his best to uncover the mystery of missing stock.

On 7 October 2020, the Employee received a first written warning concerning his performance as Team Leader, which were administrative matters and did not refer to the stocktake. The Employee disagreed with the first warning letter and declined to sign it.

On 22 October 2020, the Employee received an email about the poor stocktake result. A few hours later the Employee received a second warning letter concerning the stocktake.

The Employee took personal leave between 27 October and 13 November 2020 (inclusive).

During the Employee’s absence, a recommendation was made to the owners of Golf World, which was accepted, that the Employee be dismissed. The termination letter was finalised on 13 November 2020 and was given to the Employee upon his return from personal leave on 14 November 2020. There was little discussion when the termination letter was issued, and termination took effect immediately.

Golf World also noted that a police investigation into missing banking, which was yet to be completed, was a factor that “broke the camel’s back” in the decision to dismiss the Employee. Though this reason was not mentioned in the termination letter or put verbally to the Employee. The Employee maintained that he was not involved in the missing banking and that any missing banking occurred on a day that he was absent.

While the termination took effect immediately and the letter advised it was a summary dismissal, Golf World paid the Employee three weeks in lieu of notice however it deducted from the three weeks’ notice the outstanding balance of the stocktake debt, resulting in one weeks’ notice paid.

Decision

While there was no individual error or performance failure singularly constituted a valid reason, Deputy President Anderson found that the collective underperformance provided a valid reason for termination.

However, when objectively considered, the two final warnings and then dismissal in the space of six weeks, on the back of one poor stocktake result and a period of adjustment to the passing of a former employee, weighed strongly in favour of a finding that the dismissal was harsh.

The Commission found there was no realistic opportunity for the Employee to improve following the second warning given the compressed disciplinary time frame adopted by Golf World. Further, due to the Employee being on personal leave, the Employee worked barely a day after the second warning before the termination took effect.

Further, the Commission stated it was grossly unfair that Golf World had inferred wrongdoing on a matter of cash handling but then failed to provide the Employee an opportunity to respond and failed to provide any substantive evidence at the hearing. Deputy President Anderson stated that such an accusation “if untrue has potential to derail a person’s professional standing and career”.

The Employee did not seek reinstatement and it was not considered appropriate. On finding an unfair dismissal, Deputy President Anderson considered that the Employee would have remained in employment for a notional three months. As such, Golf World was ordered to pay the Employee compensated as follows:

  • an additional two weeks in lieu of notice ($3,018.9093) which was previously withheld;
  • payment of one week ($1,509.4594) for the period between the expiry of the three week notice period and the commencement of alternate employment;
  • the difference between his current salary and new salary from alternate employment for the notional period ($4,864.0595); and
  • payment of $899.36 as a superannuation contribution.

Take Home Message

Norman Waterhouse was pleased to represent the Employee in these proceedings and commends the Employee for his resolve to pursue the matter. This matter supports the legislative framework in place and serves as a reminder to Employers to properly follow the principles of procedural fairness under the Act which includes considering all relevant factors, otherwise face the risk of significant orders for an unfair dismissal.

For more specific information on any of the material contained in this article please contact Lincoln Smith on 8210 1203 or lsmith@normans.com.au or Ganesh Krishnan on 8217 1395 or gkrishnan@normans.com.au

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