WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES FISHER & PAYKEL AUSTRALIA PTY LTD

APPELLANT

-and-

Kenneth James Skinner

RESPONDENT

CORAM FULL BENCH

The Honourable M T Ritter, Acting President

Commissioner S J Kenner

Commissioner S Wood

HEARD Thursday, 9 November 2006

DELIVERED WEDNESDAY, 13 DECEMBER 2006

FILE NO. FBA 24 OF 2006

CITATION NO. 2006 WAIRC 05839

CatchWords Industrial Law (WA) - Appeal against decision of Commission - Alleged harsh, oppressive or unfair dismissal - Whether Commission failed to adequately set out its findings of fact - Issues relating to assessing credibility of witnesses - Role of Full Bench in appeals against findings based on credibility of witnesses - Whether Commission properly considered documentary evidence before it - If appellant's evidence accepted in its entirety, would respondent's dismissal be harsh, oppressive or unfair - Appeal dismissed - Industrial Relations Act 1979 (WA) (as amended)

Decision Appeal dismissed

Appearances

Appellant Mr D Jones, as agent

Respondent Mr A Lynn (of Counsel), by leave

Reasons for Decision

THE ACTING PRESIDENT:

1          I have had the benefit of reading in draft form the reasons to be published by Kenner C and Wood C.

2          I gratefully adopt the summary of the applicable principles on appeal of this type, set out by Kenner C.  Kenner C has also comprehensively summarised the facts, the reasons of the Commissioner at first instance, and the grounds of appeal, which I also gratefully adopt.

3          I agree with Kenner C, for the reasons he has expressed, that grounds of appeal 1.1, 1.2, 1.5, 1.6, 1.7 and 3 should not be upheld.

4          With respect to ground 2, I respectfully agree with Kenner C that the Commissioner ought to have, but did not, clearly set out why she formed the view that the dismissal of the respondent was unfair.  I also agree with Kenner C that the impact which this failing has, on the appeal overall, is bound up with the resolution of grounds of appeal 1.3 and 1.4.

5          With respect to grounds 1.3 and 1.4, I agree with Kenner C, as agreed to by Wood C, that the reasons for decision of the Commissioner do not, with respect, adequately indicate that the evidence identified by Kenner C was taken into account by the Commissioner.  I think this is so despite the Commissioner saying at paragraph [43] of her reasons:-

“43. The Commission has considered all of the evidence and submissions presented by the applicant and the respondent in these proceedings.”

6          The difficulty with such a broad statement is that the absence of any clear reference to the documentary evidence which supported the claim of meetings and warnings leading up to and the issue of the letter of final warning on 25 February 2005 and Mr Healey’s evidence about meetings with the respondent from February-August 2005, is that there remains at least the appearance that this evidence has been overlooked.  Also, there is no relevant analysis of the evidence.

7          I agree with Kenner C and Wood C that the documentary evidence had the potential to impact upon the credibility findings made by the Commissioner at first instance.

8          I also agree that whether the appeal should be upheld depends upon whether the evidence I have referred to had the potential to impact upon the final decision made by the Commissioner.  If it could be so categorised, then the appeal should be upheld on the basis that critical evidence had been seemingly overlooked.  I also agree with the approach to the resolution of this issue, adopted by Kenner C and Wood C.  This is to take the evidence in support of the appellant’s case at its highest and consider whether, on this basis the Commissioner could have found in favour of the appellant, that the respondent’s dismissal was not harsh, oppressive or unfair.

9          A similar approach, in the context of an inadequate statement of reasons, is referred to by Meagher JA in Beale v GIO of NSW (1997) 48 NSWLR 430 at 444 and the Full Court in Mt Lawley Pty Ltd v WAPC (2004) 29 WAR 273 at [29].

10       It is at this point that Kenner C and Wood C differ.  Kenner C is unable to reach the conclusion referred to, whereas Wood C, after considering the respondent’s case and the relevant evidence, decides in effect that the Commissioner would have been bound to find that the dismissal was unfair on the Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385 test, if all relevant evidence had been set out and considered.

11       Having carefully considered the matter, with great respect to the contrary opinion expressed by Kenner C, and not without hesitation, I prefer the conclusion reached by Wood C, generally for the reasons he has expressed.

12       In my opinion, therefore, the appeal must be dismissed, despite the appellant succeeding in establishing that not all of the evidence which supported its case was adequately considered in the Commissioner’s reasons.

13       As this is the view of both Wood C and I, the order of the Full Bench will be that the appeal is dismissed.

COMMISSIONER S J KENNER:

Introduction

14       This is an appeal pursuant to s49 of the Industrial Relations Act 1979 (“the Act”) from a decision of a Commissioner published on 21 June 2006.  In that decision, the learned Commissioner upheld the respondent’s claim that he had been harshly, oppressively and unfairly dismissed from his employment as a sales representative on or about 8 August 2005.  The Commission at first instance concluded that an order of reinstatement of the respondent would be inappropriate and instead, made an order of compensation for loss in the sum of $39,567.75. 

15       In her reasons for decision, the learned Commissioner determined the claim in the respondent’s favour at first instance, on the basis of her assessment of the credibility of the witnesses who testified, and rejected the evidence of the appellant’s witnesses and accepted the respondent’s evidence almost in toto.  In so doing, the learned Commissioner accepted the respondent’s evidence that he had been dismissed without any effective prior counselling or warning by the appellant.  It would appear that this was the basis for the learned Commission’s conclusion that the dismissal was harsh, oppressive and unfair.

16       From that decision the appellant now appeals.  The essential complaint of the appellant is that the Commission at first instance failed to adequately set out its findings of fact in relation to its credibility assessment of the witnesses who gave evidence.  Furthermore, it is said that the learned Commissioner did not adequately set out her findings upon which she concluded that the respondent’s dismissal was harsh, oppressive and unfair.  Finally, the appellant complains that the Commission at first instance was in error in awarding six months compensation for loss when the evidence was such that on balance, it could not be concluded that the respondent’s employment would have continued for that period of time.

Factual Background

17       The respondent first commenced employment with the appellant in May 1994 as a sales representative.  In that capacity, the respondent’s duties included calling on retailers to sell the appellant’s products.  The appellant is a manufacturer of white goods including cookware, washing machines, dryers, dish washers and refrigerators.  In the early days of his employment, the appellant had no formal marketing plans however in more recent years, sales representatives were assigned specific territories for which they were responsible and in relation to which they received sales budgets.  The respondent testified that he thought he achieved his sales budgets “at least 50% of the time”:  T6.  He also said that prior to the most recent State Manager Mr Healey starting, under previous management, no issues with his performance had been raised. 

18       The respondent referred to a sales award he received in April 2005 which recognised his sales performance within the appellant’s “top ten” retail sales representatives for the 2004/2005 financial year and for which he received a $500.00 bonus.  This was set out in a letter of the same date tendered as exhibit S2.  Up until November 2004, the respondent’s evidence was that he felt he was doing as best as he could and had no complaints about his work performance. 

19       The new State Manager Mr Healey started in Western Australia in August 2004.  The applicant was required to prepare and submit to the State Manager monthly reports of his activity and information obtained from retailers and so on.  Additionally, representatives were required to produce a monthly call plan setting out the clients called upon during a particular month.  The respondent said that a change occurred in February 2005 where he was required to change his format of call plans to a weekly basis.  He was told this by Mr Sundstrum the Sales Manager, somewhat casually according to the respondent, at about this time.  The respondent said “what I do remember is I was sitting at my desk and Olly Sundstrum passed my desk and said --  oh, he’d just asked me what I was doing and I just said, “oh, some paperwork and planning for next week” and he just said, “We’re thinking of going into a weekly call plan but I’ll let you know more information at a later date.”:  T10.  The respondent did not recall any meeting on the critical date of 25 February 2005 to discuss call plans or reporting.  He said “No there was no meeting on -- no meeting as I define a meeting, no.”  The respondent affirmed that he had received no criticism whatsoever of his call plans at any stage at about that time or indeed any other time.

20       The respondent took a period of long service leave for October 2004.  On his return, the respondent said his perception was that he was being alienated by Mr Healey and Mr Sundstrum.  The respondent said that after his return and through the months of January and February he submitted his reports as usual.  There was no adverse comment.  As to the critical date of 25 February 2005 on the appellant’s case, the respondent denied there was any meeting or discussion with him to counsel him about his work performance.  A copy of a letter of 25 February 2005 (exhibit S7) was put to the respondent in examination in chief.  This letter, which became quite central in the proceedings at first instance, was from Mr Healey and, formal parts omitted, it was in the following terms:-

 “Dear Ken

Recently we have discussed major performance gaps in your role as Sales Representative.  In two separate meetings in December 04 and January 05, I identified specific duties within your role that were not up to a satisfactory standard.

 Duties Identified:

• Inability to manage your sales territory
• Failure to complete monthly reports on time
• Failure to make regular visits or contact with accounts within your sales territory.

 These are fundamental areas of accountability for a sales representative.  You are a very experienced rep and you are well aware of the company’s expectations.  Since these earlier meetings there have been further complaints from our customers, and admission from yourself that you are not making regular visits to your accounts, despite having ample time to do so.  This is totally unacceptable.

 You are in a position of trust and you are expected to manage your time productively.  I have serious reservations about your ability to do so.  As from today I am requesting you to provide a written report detailing your daily activities.  This must be on my desk by 5.00 pm each Monday.

 Ken, the purpose of this letter is to serve you with a final warning and advise that should there be no immediate and obvious improvement in the area stated above, Fisher & Paykel will terminate your employment.

 Yours sincerely

Jason Healey

State Manager”

21       The respondent said the first he had seen this was in November 2005 at a conciliation conference before the Commission.  Moreover, he said that he had not received any criticism of his work performance or counselling of any kind from either Mr Healey or Mr Sundstrum prior to February 2005.  Indeed on the respondent’s version of the events, he received no warnings or counselling about his performance at all until his dismissal in August 2005.

22       As to what occurred on 3 August 2005, the respondent was in Mandurah and travelling towards Bunbury.  He received a telephone call from Mr Healey inquiring about his monthly report.  Mr Healey also asked him whether he could be available for a meeting with him that afternoon at about 4pm.  The respondent returned to Perth and met with Mr Healey in the office.  Mr Sundstrum also attended the meeting.  The first thing Mr Healey said was whether he enjoyed his job.  Mr Healey had a manila folder with him with handwritten notes on it and some other papers.  Mr Healey told the respondent that he was not happy with his August call plan that he had given to Mr Sundstrum earlier.  Mr Healey also told the respondent that he was still favouring some retailers over others and a number of examples were raised.  The respondent told Mr Healey that if he was not happy with the call plans he will “fine tune it”:  T21.  The respondent said that Mr Healey kept referring to his over servicing of some clients and under servicing others.  At a point in the meeting the respondent said Mr Healey told him “you’ve been with the company for 10 years,” …“you’re never going to get promoted, so why bother staying?”:  T22.  According to the respondent, the meeting kept going around in circles and it appeared to him that Mr Healey had made up his mind that the respondent was going to leave.  Towards the end of the meeting the respondent said Mr Healey told him “I think you and I should part company”.  The respondent was asked for his American Express corporate card and his security pass to the building.  The respondent then packed up his gear and went home.

23       On the next day, the respondent went into the office and telephoned the Human Resources Manager Mr Puller who is based in Sydney.  He explained what had happened and testified that Mr Puller told him to “sit tight and I’ll speak to Jason Healey”:  T23.  Later that afternoon the respondent received an email from Mr Puller to the effect that he had discussed the respondent’s circumstances with Mr Healey and could not change the situation.  Mr Puller’s email (exhibit S8) referred to the inability of the respondent to change his practice of under servicing and over servicing accounts based on his own preferences rather than the appellant’s business priorities and the future direction that the appellant wanted him to take.  The respondent was paid one month’s salary in lieu of notice and accrued entitlements.

24       In cross-examination the applicant again denied that he had ever been counselled or warned by Mr Healey or Mr Sundstrum about his performance at any time.  Whilst he said that there may have been discussions or meetings from time to time with Mr Healey, none were for the purpose of dealing with his performance.  The respondent was cross-examined about meetings said to have been held or discussions with Mr Healey on 7 December 2004, 11 January, 7 February and 25 February 2005.  The respondent denied ever discussing with Mr Healey his performance on those days.  The respondent was shown a copy of exhibit S11 being a photocopy of Mr Healey’s manila folder with his handwritten notes on it which Mr Healey said were his notes of his various discussions with the respondent.  Again the respondent denied the content of the notes. 

25       The respondent also denied in cross-examination that complaints from customers at Harvey Norman Busselton were ever raised by Mr Healey.  The respondent could not recall Mr Healey referring to a complaint from Retravision.  The respondent also denied in cross-examination that it was Mr Healey who directed him to provide weekly call plans following the appellant’s assertion of the meeting on 25 February 2005 and repeated that it was Mr Sundstrum. 

26       The respondent repeatedly denied he had been given any direction to change his territory management as asserted by the appellant.  Indeed, in relation to the weekly call plans that the respondent was required to submit to Mr Healey, the respondent said there was never any discussion about them:  T64.

27       Exhibit S13 was a document prepared by Mr Healey for the purposes of the proceedings at first instance.  The information in the exhibit was a summary of weekly reports prepared by the respondent.  Those weekly reports were in evidence as exhibit S5.  That is, the analysis was prepared from the activity undertaken by the respondent over a period of 16 weeks prior to the termination of his employment.  The respondent accepted in cross-examination at T65-69 that exhibit S13 shows in a number of respects that he was over servicing smaller clients and under servicing larger clients with the potential for significant growth of the appellant’s business.

28       Mr Burnell owns and runs an electrical retail business and had known the respondent for many years.  Mr Burnell said he had been supplied the appellant’s products by the respondent and always found him to be professional in his approach and serviced their business adequately.  Mr Burnell accepted that his business was a relatively small account for the appellant with a turnover of about $36,000.00 a year:  T83.  The respondent called upon him about every three or four weeks:  T84. 

29       Mr Sundstrum has been employed by the appellant for about five years and joined the Western Australian operation in May 2004.  Mr Sundstrum said he attended a sales meeting in November 2004 early on at the WA office, where in the presence of himself, Mr Healey and other staff, the respondent was said to have made a comment to the effect that “he’d been with us physically for the last three years in body, but not in mind”:  T86.  Mr Sundstrum said that this comment caused him some concern as to whether the respondent was taking his job seriously but the matter was not raised any further at that time. 

30       Mr Sundstrum was asked about the critical meeting of 25 February 2005.  He said he definitely recalled a meeting between Mr Healey, himself and the respondent in the appellant’s boardroom on that day.  He said the purpose of the meeting was to issue a “final warning” to the respondent and to discuss the matter.  Mr Sundstrum referred to an earlier conversation with Mr Healey who had informed him that he was going to give the respondent a final warning because he had previously discussed his over servicing and under servicing of customers and nothing had changed.  Mr Sundstrum testified that he had not been present at any of the previous discussions between Mr Healey and the respondent nor any after for that matter, February 2005.  As to his recollection of this meeting the following exchange took place at T87:-

 “Right.  So the first - - the first meeting you attended was the 25th of February?- - -That’s right.

 There’s no doubt in your mind that there was such a meeting on that date?---Absolutely.

 And would it be surprising that Mr Skinner said that that meeting never took place at all?---Most definitely, yes, it would be.

 Right.  Now, I asked Mr Skinner if he had received a written warning - - ?---Right.

 - - and he denied categorically that he had received any written warning at the meeting on the 25th of February 2005.  Can you tell the Commission, in your own words, what you observed Mr Healey give to Mr Skinner?---He gave him a written letter on - - on company letterhead stating the reason for - - you know, the fact that there was a final warning due to the lack of performance.

 Did you sight the letter before the meeting was had?---No, I did not.

 Did you sight the document itself during the meeting?---Yes, I did.

 Did you recognise if it was signed by anybody?---It was signed by Jason Healey.”

31       Mr Sundstrum said that exhibit S7, the letter of 25 February 2005 from Mr Healey to the respondent, was a copy of the document which he saw Mr Healey give the respondent in the meeting:  T87.  He further said that he briefly saw the content of the letter prior to the meeting with the respondent starting.  Mr Sundstrum said that as to its identification, “it’s definitely the same document.”:  T88.  Mr Sundstrum said that the original however was on company letterhead and it was signed by Mr Healey.  Mr Sundstrum was asked in evidence in chief about the respondent’s weekly call reports.  He said that the respondent was the only representative required to provide weekly call reports and that was at Mr Healey’s direction and not his.  When Mr Sundstrum was asked whether he had required the respondent to prepare weekly call reports he said “no, I didn’t. definitely not.”:  T89.

32       Mr Sundstrum was asked about the meeting on 3 August 2005 at the appellant’s offices where the respondent was dismissed.  He said that the purpose of the meeting was to terminate the respondent’s employment and referred to the decision by Mr Healey that the respondent had not shown any improvement in relation to his territory management and particularly his over servicing and under servicing of customers.  Mr Sundstrum referred to the respondent’s view in the meeting that he did not consider the appellant’s decision to be justified.

33       Mr Sundstrum said he had no involvement in performance managing the respondent.  He said that whilst this was formally undertaken by Mr Healey in conversations he was not a party to, from time to time, he casually informed the respondent that he needed to “lift his game”:  T92.  Mr Sundstrum also denied that he failed to respond to concerns raised by the respondent about availability of brochures and transit damage that were concerning the respondent.  Additionally, Mr Sundstrum denied that there was any exclusion of the respondent from social activities.  As to the meeting of 25 February 2005, Mr Sundstrum reiterated that he was in no doubt that the respondent was handed a letter by Mr Healey in a meeting held on that day and also described the respondent’s response as being upset at receiving it.

34       Mr Sundstrum was asked about changes to accounts.  He said that because of a relationship difficulty between the respondent and a Mr Berryman, who ran a store in Bunbury and managed one at Joondalup, the respondent was given the Bunbury store and Mr Sundstrum took over the Joondalup store.  This was communicated to the respondent orally. The respondent acknowledged that the relationship between himself and Mr Berryman was a poor one:  T98.  Mr Sundstrum said that at the final meeting where the respondent’s employment was terminated, he did not suggest any alternatives to Mr Healey. 

35       Mr Sundstrum also commented about monthly reports and weekly call plans.  He said they are quite different.  Whilst he said he had no difficulty with the respondent’s monthly reports, it was the call plans that showed the level of servicing of accounts which was the matter of concern for Mr Healey and about which he was not happy:  T114-115. 

36       Mr Healey has been employed by the appellant for about 9 years the most recent 18 months of which as the State Manager for the appellant in Western Australia.  He referred to a meeting on or about 7 December 2004 in the appellant’s boardroom at the Welshpool office.  That meeting was attended by himself and the respondent.  The meeting was prompted by a complaint from a customer Mr Berryman to the effect that the customer had not seen the respondent for about six to eight weeks.  The other reason to meet with the respondent being his previous comment at a sales meeting in November that the respondent had been “here in body for the last three years but not in spirit”.  Mr Healey said that having analysed the respondent’s monthly call plan it was evident to him that the respondent had only called on about half of his accounts for the month of November:  T144.  Mr Healey made notes on the inside covers of an A4 manila folder of his discussions with the respondent on that and other occasions.  Mr Healey said that he considered it necessary to make some notes about his conversations but never expected they would be produced in an unfair dismissal case:  T144.  Mr Healey’s evidence was he put to the respondent that he needs to set aside a time to visit all of his accounts as the appellant needed to grow its business with every account not just a select few. 

37       A further conversation took place between Mr Healey and the respondent in early January 2005.  This followed a complaint from a large retailer in Busselton to the effect that he had not seen the respondent since September 2004.  Also an issue at that point was the respondent’s December report being late.  The respondent said he forgot about the report:  T146.  A further meeting took place on 7 February 2005 according to Mr Healey.  The purpose of that discussion with the respondent was to raise a complaint Mr Healey had received from a major customer Retravision to the effect that the respondent’s attitude was poor; he called infrequently; and did not show much interest in their business.  Mr Healey said he again advised the respondent of the importance of spending time with all his accounts not just a select few:  T148. 

38       As to the 25 February 2005 meeting, Mr Healey said that this was prompted by a complaint from a retailer in Joondalup that he had received no visits from the respondent.  At the meeting were himself, the respondent and Mr Sundstrum.  As to the letter of 25 February 2005 (exhibit S7) Mr Healey said that he prepared this letter with the assistance of the appellant’s Human Resources Manager Mr Puller.  Mr Healey said at T151 “The letter was prepared with the assistance of Mr Kevin Puller, our HR manager for the company.  In fact the whole counselling process and warning process for the – I guess the – the 8 or 9 months that I had to counsel Ken, I was in constant communication with Mr Kevin Puller to make sure procedures were handled correctly.”  Mr Healey was cross-examined on this issue and again referred to Mr Puller having a copy of the letter as he helped Mr Healey to draft it:  T191.  Mr Healey was also asked in cross-examination whether he received any “counselling” on how to terminate an employee’s employment in a suitable way and said that he was liaising with Mr Puller the Human Resources Manager:  T206.  The main issue for Mr Healey with the respondent was the management of his sales territory.

39       As to the period from February to August 2005, Mr Healey said that the content of exhibit S13 (his post dismissal analysis) of his territory management, that was put to the respondent in his cross-examination, was raised with the respondent between four and five times in that period.  Mr Healey’s concern was that over that period he had not seen any change in that aspect of the respondent’s performance.  In the final analysis, Mr Healey said that by August 2005 he had come to the view that the respondent was not managing his territory to grow the business and he was not responding to his various requests that he had made over many months and was therefore left with no choice but to terminate his employment:  T179.

40       It was put to Mr Healey that the award given to the respondent for the 2004-2005 year to March 2005 was inconsistent with his complaints.  Mr Healey said that in relative terms the respondent was less than 100% of his sales budget and the other representative was 155%.  The issue for Mr Healey was the respondent not taking opportunities to develop the business in accordance with his directions.

41       In relation to the 25 February 2005 meeting in contention, a copy of an email to Mr Puller from Mr Healey was tendered in evidence as exhibit F and P3.  Whilst this document was not initially discovered, and it went in late, Mr Healey said that he was in contact with Mr Puller to get advice from him how to structure the letter of warning to the respondent and Mr Puller gave him some advice on the wording.  Mr Healey believed this was the day prior to the letter of warning being given to the respondent:  T165.  Mr Healey was cross-examined on exhibit F and P3 and said that it was discovered when he had another look through his computer files for any further documents that might be relevant.  The case was Mr Healey’s first court appearance and whilst he did not understand discovery before, he did now:  T206.

Reasons of the Commissioner

42       After setting out the brief background to the matter and the respondent’s claim, the learned Commissioner then set out the evidence and submissions adduced by the respondent and appellant.  As to the respondent’s evidence at first instance the learned Commissioner referred to the following:-

 (a) That the respondent commenced employment on 9 May 1994 in accordance with a letter of appointment dated 6 May 1994 appointing him to the position as a Sales Representative in Perth.

 (b) That prior to the appointment of a new State Manager for the respondent Mr Healey in August 2004, the respondent had never been counselled by the appellant about his performance and the consequences of not achieving sales targets were not raised with him.

 (c) That on or about 5 April 2005 the respondent received an award for sales performance by way of a $500.00 bonus in respect of the 2004/2005 financial year which put the respondent in the top ten retail sales representatives for that year.

 (d) The respondent denied that he had ever received a letter of 25 February 2005 which set out alleged deficiencies in his performance regarding territory management; timely monthly reporting and the regularity of visits to his sales accounts.  Indeed the respondent denied that he had ever been counselled by the appellant after Mr Healey became the State Manager in any terms at all. 

 (e) That when on his way to Bunbury on 3 August 2005 he received a telephone call from Mr Healey inquiring of the respondent’s availability for a meeting at 4pm that afternoon.  The respondent did not proceed to Bunbury but duly attended the meeting also in the presence of Mr Sundstrum the appellant’s WA Sales Manager.  At the meeting Mr Healey said to the respondent that he was not happy with his August call plan and that the respondent appeared to be favouring certain retailers over others.  At the same meeting the respondent was told by Mr Healey that he had been with the appellant for 10 years, was not going to get promoted so why would he bother staying and suggested that the respondent and the appellant “part company”.

 (f) The following day on 4 August 2005 the respondent made contact with the appellant’s Human Resources Manager Mr Puller who was located in Sydney to inform him of the events of the previous day.  The respondent later received an email from Mr Puller referring to his conversation with Mr Healey and that to the effect that the respondent had not adequately addressed Mr Healey’s concerns and that the appellant was not prepared to let the situation continue.

 (g) Reference was made to evidence of a Mr Brian Burnell an electrical retailer who had known the respondent for many years and found his approach to be professional and helpful.

43       The learned Commissioner then set out the appellant’s evidence and submissions at first instance relevantly as follows:-

 (a) Evidence was given by Mr Sundstrum that a meeting did take place between Mr Healey and the respondent at which Mr Sundstrum was present.  At that meeting, which was convened for the purposes of issuing a final warning to the respondent, regarding under servicing and over servicing of certain accounts he saw Mr Healey hand to the respondent a letter on company letterhead which set out the reasons for the final warning arising from performance problems.  Mr Sundstrum had briefly seen the letter prior to the meeting taking place.

 (b) Mr Sundstrum also confirmed that the respondent was required to provide Mr Healey with weekly call reports as to his activities which requirement was not placed on other sales representatives. 

 (c) Mr Sundstrum was present at the meeting on 3 August 2005 with the respondent.  This was described as the meeting at which “Jason told Ken that he was to be dismissed”.

 (d) Warnings were given to the respondent by Mr Healey and Mr Sundstrum was aware that Mr Healey was not happy with the respondent’s performance.  Although other than the meeting on 25 February 2005, Mr Sundstrum did not attend any other meetings at which Mr Healey spoke to the respondent about work performance.

 (e) There was a change to a number of the respondent’s accounts in 2005 in particular the Berryman’s in Bunbury and the Gaynor’s accounts at Balcatta and Morley.  The Berryman account was taken away from the respondent because of difficulties in the relationship between the respondent and Mr Berryman.  Instead the respondent was given other accounts for Retravision in Armadale and Hills Armadale.  The respondent was also responsible for the Joondalup Betta account.

 (f) Mr Sundstrum was generally happy with the respondent’s monthly reports.

 (g) Mr Healey had been employed by the appellant for some nine years and had been at the WA Branch for 18 months at the time of the respondent’s dismissal.

 (h) There was a meeting on 7 December 2004 between Mr Healey and the respondent at which a complaint from Mr Berryman was discussed.  The complaint was that Mr Berryman as a client of the appellant had not seen the respondent for between six to eight weeks.  After the meeting Mr Healey made some notes on a manila folder a copy of which were exhibit S11.

 (i) Mr Healey spoke to the respondent about his territory management.  His concerns were that for the month of November 2004 of his 50 accounts the respondent only called on some 25 of them.  Additionally the respondent called on a number of minor accounts three times during the month.  The respondent apologised to Mr Healey for these matters said he had recently returned from leave and would rectify his calling on his accounts.

 (j) On 11 January 2005 another meeting was held between Mr Healey and the respondent regarding the lateness of the respondent’s December report.  The respondent said he forgot to submit it on time.  Another reason for the meeting was to discuss a complaint from Harvey Norman Busselton which had said they had not received a sales visit since September 2004.  Mr Healey said he never received a good explanation or answer for these matters put to him.

 (k) There was a further meeting held on 7 February 2005 between Mr Healey and the respondent at which another complaint from an important retailer, Mr Harries of Retravision, was discussed.

44       Thereafter the learned Commissioner set out her consideration of the claim under a heading “Commission’s Analysis and Conclusions”.  She said that before considering her findings, she proposed to deal with the matter of credibility.  The learned Commissioner observed that it was clear that from the evidence before her, credibility was “very much an issue in these proceedings” (at [44]).

45       The learned Commissioner then said at [45] as follows:-

 “45 After considering the testimonies of the witnesses, as well as the evidence in general and after noting the demeanour of the witnesses and the manner in which they gave their evidence, it is the Commission’s opinion that where there is a conflict between the testimony of the applicant and Mr Healey it prefers the evidence of the applicant..  The account given by the applicant is to be accepted as reliable and credible.  The Commission considers that the manner in which the applicant presented his evidence was honest and straightforward.  The applicant was not shaken under cross-examination.”

46       The learned Commissioner then observed at [46] that aspects of Mr Sundstrum’s evidence corroborated the applicant’s recollection of the events and referred to his evidence in relation to monthly reports.

47       The Commission at first instance then turned to consider aspects of Mr Healey’s testimony which she regarded as not reliable.  At [47] the learned Commissioner observed as follows:-

 “47 Mr Healey then proceeded to conveniently or otherwise fail to recall various events when asked, particularly during cross-examination. The Commission has some reason to doubt that at all times Mr Healy related the truth of events to best of his memory.  The Commission noted that on occasions he was vague. At times under cross-examination he retreated from his previous position.  The Commission finds that Mr Healey was not only unreliable as a witness to the disputed facts but it is also my view that portions of his testimony were intentionally reconstructed. The Commission’s impression was that this was done for the purpose of presenting a more attractive version to support the respondent’s contention that the applicant had received a final written warning at a meeting on 25 February 2005.  If such had been the case the Commission would have expected that the applicant have remembered the event and certainly recalled having received the correspondence. There is no evidence to support the respondent’s evidence and submissions on that point. The Commission therefore, places limited weight on the respondent’s account where it significantly differs with the evidence of the applicant.”

48       The Commission, having preferred the evidence of the respondent based on her credibility assessment, then said that the Commission must determine whether the applicant was unfairly, harshly or oppressively dismissed.  Immediately thereafter at [48] the learned Commissioner said as follows:-

 “The Commission has no right to interfere in the decision of the respondent to terminate the employment of the applicant unless the dismissal was carried out in a manner which is either harsh, unfair or oppressive.  In this particular case the Commission finds, based on the principles espoused by the Industrial Appeal Court in Undercliffe Nursing Home v. The Federated Miscellaneous Workers’ Union of Australia (1985) 65 WAIG 385, that the dismissal of the applicant on 8 August, 2005 was harsh, oppressive and unfair.”

49       Having concluded that the respondent’s dismissal was unfair the learned Commissioner then found reinstatement to be inappropriate and in applying Boganovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8 and Tranchita v Wavemaster International Pty Ltd (1999) 79 WAIG 1886 assessed compensation at six months remuneration on the basis of the respondent’s total remuneration of $76,358.00 per annum leading to an order of compensation in the sum of $39,567.75.

The Appeal

50       The grounds of appeal as set out in the Notice of Appeal to Full Bench are in the following terms:-

 “1. The Commission erred in law in that it failed to adequately set out the findings of fact on which it concluded that the Applicant was a more credible witness than the Respondent’s witnesses.

Particulars

 1.1 the Commission made no findings of fact relating to the meetings that were evidenced to have taken place between the Applicant and the Respondent’s Jason Healey between 7 December 2004 and 7 February 2005.

 1.2 The Commission made no finding of fact relating to the critical meeting that was evidenced to have taken place between Mr Jason Healey, Mr Olly Sundstrum and the Applicant on 25 February 2005.

 1.3 The Commission made no findings of fact relating to the evidence of Mr Jason Healey that he had further counselling meetings with the Applicant during the months preceding the dismissal in August 2005.

 1.4 The Commission gave little or no consideration to the documentary evidence supporting the Respondent’s version of events in relation to the matters raised in 1.1-1.3 inclusive.

 1.5 The Commission made no findings of fact as to the credibility of the Respondent’s witness Mr Olly Sundstrum.

 1.6 The Commission was selective in accepting that part of Mr Sundstrum’s evidence that appeared to support the Applicant.

 1.7 The Commission’s conclusion that Mr Jason Healey was an unreliable witness was not supported by the evidence of Mr Olly Sundstrum who, on matters of critical meetings, supported the evidence of the former witness for the Respondent.

 2. The Commission erred in law in that it failed to adequately set out the findings of fact on which it relied to conclude that the dismissal of the Applicant was harsh, oppressive and unfair.

Particulars

 2.1 The Commission gave insufficient weight or no weight to the totality of the Respondent’s evidence, that it counselled the Applicant about its criticism of the Applicant’s failure to manage his sales territory in a manner that satisfied the State Manager (Mr Jason Healey).

 2.2 The Commission failed to acknowledge the evidence of Mr Jason Healey, that he had given the Applicant enough chances to correct his work performance and that the dismissal of the Applicant was inevitable.

 3. The Commission erred in law in awarding a compensatory amount of six months compensation, when the evidence of the Respondent supported the conclusion that the Applicant’s employment would not have lasted beyond the date of the dismissal or, in the alternative, would have been terminated before a period of six months had elapsed.

 4. The Appellant requests that the Full Bench:

  1. Upholds the appeal and quashes the decision; or

  2. Vary the decision in such manner as the Full Bench considers appropriate; or

  3. Suspends the operation of the decision and remits the case to the Commission for further hearing and determination.”

Relevant Principles

51       As correctly observed by the agent for the appellant, a party on appeal seeking to overturn a decision at first instance which is based on the assessment of credibility of witnesses, faces substantial hurdles.  In Devries v Australian National Railways Commission (1993) 177 CLR 472 Brennan, Gaudron and McHugh JJ said at 479:

 “More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact (76).  If the trial judge’s finding depends to any substantial degree on the credibility on the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” (77) or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable” (78).”

52       The most recent statement by the High Court on this issue appears in Fox v Percy (2003) 214 CLR 118 in which the court discussed the limitations imposed on an appeal court when considering an appeal based upon findings of fact.  As to these issues, Gleeson CJ, Gummow and Kirby JJ said at 125-126:

 “On the one hand, the appellate court is obliged to ‘give the judgement which in its opinion ought to have been given in the first instance’ Deerman v. Deerman (1908) 7 CLR 549 at 561…On the other it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record…These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share…”

53       These and other relevant principles were referred to by the Court of Appeal in Skinner v Broadbent [2006] WASCA 2 by Steytler P at [32]-[37].  These matters were summarised by the Full Bench in Grierson v International Exporters Pty Ltd (2006) 86 WAIG 2935 where Ritter AP at [50]-[52] said:

 “50 The process involved for an intermediate appellate court in an appeal of this type was discussed by Steytler P in Skinner v Broadbent [2006] WASCA 2 at [32]-[37].  By reference to the relevant authorities, the President made a number of points which may be summarised as follows:-

 (a) An appellate court has a disadvantage in assessing the credibility of witnesses to that of a trial court. As stated by Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47, unless it is shown that a trial court has misused its advantage the appeal court should not reverse conclusions reached, based on their own assessment of the evidence and the probabilities of the case.

 (b)  Kirby J criticised this approach in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 327 [88].

 (c)  Despite this, caution must be exercised in overturning findings of fact based on the credibility of witnesses.  In resolving a conflict of evidence the “subtle influence of demeanour” cannot be overlooked. (Citing McHugh J in Jones v Hyde (1989) 63 ALJR 349 at 351 and Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179).

 (d)  Steytler P quoted the reasons of Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 where their Honours said a finding of fact based on credibility is not to be set aside because an appellate court thinks the probabilities are against the finding. If the finding is to any substantial degree dependent upon the credibility of a witness, the finding must stand unless the trial judge has failed to use or palpably misused his advantage or acted on evidence inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.

 (e)  Even allowing for the criticism by Kirby J of the words “misused his advantage”, this is a strong reminder of the difficulties facing a person seeking to overturn a finding of this kind. As a matter of logic, experience and legal authority, the appellate court must respect the advantage of the primary decision maker. (Quoting Suvaal v Cessnock City Council (2003) 77 ALJR 1449 at 1462 [73] per McHugh and Kirby JJ).

 (f)  As stated by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118, an appeal court must perform their statutory functions even when a trial judge has reached a conclusion by favouring the witnesses of one party over another. This may lead to the overturning of a finding where incontrovertible facts or uncontested testimony demonstrate the trial judge’s conclusions are erroneous or the conclusion reached was glaringly improbable or contrary to compelling inferences.

 (g)  As stated by their Honours in Fox v Percy, recent research has cast doubt upon the ability of judges to tell truth from falsehood from the appearance of witnesses.

 (h)  When deciding between competing versions of facts it is necessary for a trial judge to explain why one version has been preferred to another.

 (i)  It is a trial judge’s duty to consider all of the evidence in a case and where important or critical evidence is not referred to an appellate court may infer that it has been overlooked or not considered.

 51  Although Steytler P dissented in Skinner v Broadbent, the reasons of the other members of the court (McLure and Pullin JJA) did not differ from the President’s analysis of these issues. (See also Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 per Buss JA at [65]-[67]; Steytler P and Pullin JA agreeing). In the authorities referred to by Steytler P in Skinner v Broadbent there is reference to “incontrovertible” evidence and “glaringly improbable” versions of events, which are the words used in the grounds of appeal and submissions made by the appellant in this matter.

 52  In paragraph [37] of Skinner v Broadbent, as referred to in (i) above, Steytler P referred to the duty to consider all of the evidence in a case and when important or critical evidence is not referred to, an appellate court may infer that it has been overlooked or that the trial judge failed to give consideration to it. The same principle applies with respect to the reasons of the Commission and the approach of the Full Bench. In paragraph [37], Steytler P referred to the reasons of Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728. On that page, Samuels JA said that “a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her”. The situation was different if a judge were to “ignore evidence critical to an issue in a case”. When that occurred his Honour said this tended to deny the fact and appearance of justice having been done and produced a mistrial.”

Consideration

54       The grounds of appeal have been set out above.  Whilst particularised as complaints as to the adequacy of the findings of the learned Commissioner at first instance, in essence the appellant complains that the credibility assessment by the learned Commissioner was unsafe because she overlooked important evidence bearing upon that assessment.  That proposition was developed orally in the appellant’s submissions to the Full Bench. 

Ground 1.1

55       The complaints as to this aspect of ground 1 are that the learned Commissioner did not make any findings of fact as to meetings between the applicant and Mr Healey between December 2004 and February 2005.  In particular, the appellant at first instance alleged that there were discussions between Mr Healey and the respondent on 7 December 2004, 11 January 2005 and 7 February 2005.  The appellant’s case was that those meetings were to discuss a range of matters including the respondent’s territory management, and various complaints received from the appellant’s customers.  Reference was made to Mr Healey’s written notes in this regard, exhibit S11.

56       The immediate difficulty with this aspect of ground 1, as with some others, is that the Commission at first instance made an assessment of the credibility of the witnesses who gave evidence and set out that assessment at [45]-[47] of her reasons (AB26-27), part of which is set out above.  On that assessment, unless it can be demonstrated that important or critical evidence relevant to that assessment was not taken into account, which I consider further below when dealing with other matters, then it is not open to the Full Bench to go behind it in the manner contemplated by the appellant.  Whilst the learned Commissioner did not specify in terms of a particular finding that the conversations said to have taken place between Mr Healey and the respondent did not take place and no such meetings occurred, her rejection, of Mr Healey’s testimony in toto, to the extent that it was in conflict with that of the respondent, must be taken to be a rejection of the appellant’s contentions at first instance that such discussions took place. 

57       It is to be noted however, that as to the meeting of 7 December 2004, the respondent’s evidence was to the effect that he could not recall meeting Mr Healey on or around that time but did not specifically deny it.  He did say however, that neither on that occasion or any occasion, had he been counselled as to his work performance.  I note that Mr Healey in cross-examination said as to the 7 December 2004 meeting, that afterwards he spoke to Mr Puller about it: T188-189.  I will return to Mr Puller’s involvement when dealing with other matters below.  Subject to other matters dealt with below, this complaint is not made out.

Ground 1.2

58       The Commission’s rejection of Mr Healey’s evidence where it differed with that of the respondent as to the meeting of 25 February 2005 again turns on the assessment by the learned Commissioner of the reliability of the appellant’s evidence.  It is implicit in the Commission’s acceptance of the respondent’s version of events that she accepted his testimony that if there was any conversation or “meeting” between the respondent and Mr Healey and Mr Sundstrum, then it did not concern the respondent’s work performance and did not constitute counselling in relation thereto.  At [47] of her reasons (AB26) the learned Commissioner preferred the recollection of the respondent as to his account of “the events and conversation on 25 February 2005, than that of Mr Healey or Mr Sundstrum …”  Whilst it appears that she accepted that some conversation may have taken place between them on or about that day, it must be taken from the resolution of that conflict that the learned Commissioner rejected any allegation that the respondent was counselled as to aspects of his performance including territory management or otherwise.  Whilst the learned Commissioner did not refer to other evidence in relation to this event, which I will deal with below, unless and until that credibility assessment is called into question on any other basis, then the implicit finding made must stand.

Ground 1.3

59       The appellant complains as to this matter, that the learned Commissioner made no findings of fact as to further counselling between Mr Healey and the respondent in the months preceding his dismissal in August 2005.  In my opinion, the appellant is on stronger ground in relation to this matter.  As it can be noted from the summary of the facts set out above, it was part of the appellant’s case at first instance that Mr Healey had occasion to speak with the respondent about his territory management and indeed other matters, on a number of occasions between February and August 2005.  It was Mr Healey’s contention that the content of exhibit S13, an analysis of the respondent’s territory management, although not prepared until after the applicant’s dismissal, was discussed with the respondent on a number of occasions over that period.  Mr Healey maintained his position as to these matters in his evidence in chief, cross-examination and re-examination.  The respondent in his evidence simply denied that there had been any occasion over the period between February and August 2005, where his work performance was called into question at all. 

60       Mr Sundstrum’s evidence was that he was not involved in these matters.  Tendered as exhibit S5 as a bundle were the respondent’s weekly call plans up until the week ending 29 July 2005.  It was Mr Healey’s evidence that over this period, he had occasion to repeatedly raise with the respondent his propensity to over service some smaller customers and to under service larger customers with better potential for business growth.  Mr Healey also gave evidence that he gave the respondent a specific direction to stop calling on “Park Appliances” because they no longer belonged to any buying group and that there was no future in continuing to service that business.  Importantly, on exhibit S5, for the week ending Friday 11 March 2005 weekly call plan submitted to him, Mr Healey said that on that plan in the respondent’s handwriting was reference to “Last call” against the entry for Park Appliances.  Despite this, Mr Healey said the respondent continued to call on this business.  Mr Healey was also taken through the weekly call plans at some length in his evidence referring to customers that were receiving excessive visits from the respondent and others, with greater potential for business development, that were being under serviced.  Mr Healey said this was contrary to his specific directions given to the respondent. 

61       In the weekly call plan for the week ending 24 June 2005, at AB62 there is a handwritten notation made by Mr Healey to the following effect “Mate, this looks like a very easy day please come and see me”.  There was also further reference in Mr Healey’s evidence to a weekly call plan dated 6 May 2005 where against Park Appliances the respondent himself wrote “Don’t call”.  Mr Healey said that this was again reference to the respondent’s continued calling on a customer he had been directed to no longer service.  There was also considerable cross-examination of Mr Healey about these matters.  As to some of these matters, the respondent says that there were satisfactory explanations given to Mr Healey about them.  This submission is at odds with the respondent maintaining he never discussed the weekly call plans at all.

62       In her reasons for decision, summarised above, the learned Commissioner referred to the respondent’s denials of any meetings or conversations held between on or about 7 December 2004 and up to and including 25 February 2005, about his work performance.  In relation to the appellant’s evidence at first instance, the learned Commissioner, as set out above, referred to the evidence of Mr Healey and Mr Sundstrum as to those various dates up to and including 25 February 2005.  However, there is no reference to or analysis of the evidence led by all witnesses, and, for example, the content of exhibit S5, as to events which the appellant said occurred after 25 February 2005 leading up to the respondent’s dismissal in August 2005.  The oral evidence of the appellant, to an extent supported by the documentary evidence, as to these matters, was relevant and important evidence as to its contentions at first instance. 

63       The absence of any consideration of this evidence by the learned Commissioner leads one to the conclusion in terms of the ratio of Broadbent and also in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, that the failure by the Commission at first instance to consider this evidence, may lead to an inference that it has been overlooked or there has been a failure to give any consideration to it.  This is particularly important in circumstances where credibility assessments are being made and which were the decisive feature of the proceedings at first instance.  From a fair reading of the learned Commissioner’s reasons, with due respect, it would appear from them that her consideration of the matters in contention between the appellant and the respondent included events only up to and including 25 February 2005, save for the actual events surrounding the respondent’s dismissal on 8 August 2005.  In my opinion, the appellant’s complaints as to these matters are established.

Ground 1.4

64       The appellant‘s complaint as to these matters are in essence that the Commission at first instance paid no regard or insufficient regard, to the documentary evidence in support of the case as put by it. 

65       As to the documentary evidence, in relation to ground 1.3 dealt with above, I have already referred to exhibit S5 in relation to the respondent’s weekly reports, some of which were relevant to the appellant’s case as to events between February and August 2005 and to which no reference was made by the learned Commissioner.  However, more importantly, was exhibit F and P3.  This document, which came in later in the proceedings, and which I have referred to above in summarising the evidence of Mr Healey, was a copy of an email from Mr Healey to Mr Puller regarding the respondent which was sent on 24 February 2005 at 1:50pm.  (see AB101).  This email communication, formal parts omitted was in the following terms:-

 “Kevin, the time has come to put a ‘final warning’ in writing to Ken. I have never prepared a document such as this before, so I would appreciate your feedback in regards to wording. (see below)

 Dear Ken

 Recently we have discussed issues regarding your inability to perform duties associated with your role as Sales Representative.  In two separate meetings December 04 and January 05, I identified duties within your role that weren’t up to a satisfactory standard.

 Duties Identified:

•        Inability to manage your sales territory
•        Failure to complete monthly reports on time
• Failure to make regular visits or contact with accounts within your sales territory

 Since these meeting there have been further complaints from our customers, and admission from yourself that you are not making regular visits to your accounts, despite having ample time to do so.

 Ken, the purpose of this letter is to serve you with a final warning and advise that should there be no improvement in the areas stated above, Fisher & Paykel will have no choice other than to terminate your employment.

 (Kevin advise on how to wrap it up..)”

66       It was Mr Healey’s evidence that he prepared the counselling letter of 25 February 2005 with the assistance of Mr Puller the Human Resources Manager.  His evidence was also that he was in contact with Mr Puller to discuss matters concerning the respondent:  T151.  Mr Healey said in his evidence the main issue of concern was territory management:  T152.  Mr Healey was cross-examined about exhibit F and P3 and it was not put to him that it was a fabrication or otherwise.  There was criticism, justifiably so, as to its late discovery.  No application was made by the respondent for an adjournment to consider this material further.  There was the full opportunity for Mr Healey to be cross-examined on the material.  Additionally, Mr Healey was cross-examined about the procedure for the termination of an employee’s employment and Mr Healey said that he was liaising with Mr Puller about this matter also.

67       Mr Puller replied to Mr Healey by email the same day at 3:12pm.  In it, was an attachment headed “Skinner warning.doc” with the message “I’ve added some content to your original (which was fine by the way).  I think you need to be quite tough with him at this stage and it’s not unreasonable to put the pressure on in terms of tighter reporting requirements.”

68       Given the directly conflicting testimony between the respondent and Mr Healey and Mr Sundstrum as to the meeting of 25 February 2005, in my opinion, this was important if not critical evidence as to the events as they unfolded.  Whilst Mr Puller was not called by the appellant to give evidence, and I make no assessment of the credit of Mr Healey as a witness, it was important because the liaison with Mr Puller by email on that day, not challenged, was arguably consistent not just with the content of the letter of 25 February 2005 which the appellant said was given to the respondent, but also the timing of the events which took place on the following day.  Mr Sundstrum’s evidence was that he was emphatic that he witnessed a letter being handed over. 

69       The letter in its penultimate paragraph also refers to the request from Mr Healey to the respondent to provide weekly written reporting to him which was consistent with the facts as found.  The reference to “put the pressure on in terms of tighter reporting requirements” set out in Mr Puller’s email reply to Mr Healey would appear to be consistent with such a weekly reporting regime.  It is to be noted that this was not initially suggested in Mr Healey’s draft letter set out in his email to Mr Puller in exhibit F and P3.  The fact that the final letter produced, did contain such a direction, would seem to be consistent with Mr Puller’s suggestion and Mr Healey’s evidence that he spoke with Mr Puller directly about these matters.  It also would seem to be consistent with Mr Healey’s other testimony that he was in contact with Mr Puller about the respondent’s situation generally. The Commission, in the penultimate sentence in par 48 as to the meeting of 25 February 2005 said “There was no evidence to support the respondent’s evidence and submissions on that point.”  With due respect, there was.

70       In my respectful opinion, the failure by the learned Commissioner to consider this evidence deprived her of the ability to fully assess the events of 25 February 2005 and also subsequent events as they involved Mr Puller.  There is also in my opinion, a logical connection with Mr Puller’s involvement as the Human Resources Manager in relation to these matters.  The respondent himself communicated with him as to the events surrounding the termination of his employment.

71       It is not open in my opinion, even having regard to the undoubted advantage of the learned Commissioner in seeing and hearing the witnesses give their evidence, to adequately come to the conclusions she did without considering and analysing this evidence.

72       Additionally, there was no reference made by the learned Commissioner to the handwritten notes taken by Mr Healey on the manila folder, which set out his summary of matters raised at various times with the respondent.  These notes, as exhibit S13, were not controversial to the extent that the respondent himself said that at the discussion on 3 August 2005 leading to the termination of his employment, Mr Healey had a manila folder with him with handwritten notes on it.  It was not suggested to Mr Healey in cross-examination that these notes were an ex post facto fabrication to bolster his case.  Whilst there is some reference in the learned Commissioner’s reasons at [47] when assessing credibility, to portions of Mr Healey’s testimony being “intentionally reconstructed” it is not clear whether that is also a suggestion that exhibit S11, being his notes, could be so characterised.  It would appear that the reference in the Commission’s reasons is to his oral testimony.

73       In terms of both Broadbent, and Mifsud, these materials, in particular exhibit F and P3, I consider important evidence to which no reference was made or analysis undertaken by the learned Commissioner. When taken in its totality with all of the evidence, this evidence may be said to be consistent with the case put at first instance by the appellant.  These matters, taken as a whole, should have been weighed in the balance as to an assessment overall of credit but they were not.  With due respect, I consider that the Commission erred in not having any regard to this material.

Grounds 1.5, 1.6 and 1.7

74       Subject to my observations as to grounds 1.3 and 1.4 above, these particulars of ground 1 allege that the Commission at first instance inadequately dealt with the evidence of Mr Sundstrum in making no findings as to his credibility as a witness.  As noted above, the learned Commissioner in particular at [47] of her reasons for decision, concluded that the respondent had a clearer recollection of events than either Mr Healey or Mr Sundstrum as to the meeting of 25 February 2005.  Whilst no particular reference is made to other aspects of Mr Sundstrum’s evidence it seems reasonably clear from the learned Commissioner’s reasons as a whole, that she preferred the applicant’s recollection of events to his.  Whilst it was not expressed as a negative assessment of Mr Sundstrum’s credit as in the terms describing Mr Healey’s evidence, nonetheless, I consider that the Commission at first instance did deal with Mr Sundstrum’s evidence and simply preferred the respondent’s, where it was at variance.  Taken on its own, I am not persuaded that any further can be made by the appellant as to these matters.

Ground 2

75       Whilst the ground itself refers to an allegation that the learned Commissioner failed to adequately set out findings of fact in concluding the unfairness of the respondent’s dismissal, the particulars advanced in support of this ground in essence raise the same or similar issues as in ground 1, concerning the weight to be given to the evidence led by the respondent and the appellant and findings of fact made, which has been dealt with above.  However, in her reasons, the learned Commissioner concluded at [48] that based upon the principles dealt with in Undercliffe Nursing Home v The Federated Miscellaneous Workers Union of Australia (1985) 65 WAIG 385 the respondent’s dismissal was harsh, oppressive and unfair.  The basis for the Commission reaching that conclusion is not set out in her reasons for decision.  Whilst in the third sentence of [48] the Commission indicated that it had no right to interfere in the appellant’s decision to dismiss unless “the dismissal was carried out in a manner which is either harsh, unfair or oppressive.”, as a whole, in rejecting the appellant’s version of events based on the credibility assessment of the witnesses, it must be taken that the Commission concluded that the respondent’s dismissal was both substantively and procedurally unfair.  However, the reasons for decision do not disclose why that is so. 

76       In oral submissions before the Full Bench, the agent for the appellant conceded, in my opinion correctly, that if the respondent’s version of the events stood, as found by the Commission, then it was axiomatic that the dismissal would be harsh, oppressive and unfair.  Whilst the learned Commissioner with respect should have set out the basis for her conclusion as to the finding of unfairness in her reasons (see: Ruane v Woodside Offshore Petroleum Pty Ltd (1990) 71 WAIG 913; RRIA v AMWU (1998) 68 WAIG 990), given my conclusions reached as to ground 1 above, it is unnecessary to deal with this ground any further.

Ground 3

77       In light of my conclusions as to ground 1, it is strictly unnecessary for me to deal with this ground any further either.  However, where it is alleged that an award of compensation is excessive based upon the likelihood of employment continuing, then there must be a sound evidentiary basis that such a finding would be open.  This matter was dealt with in Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8 where the Full Bench determined relevant principles in relation to the assessment of compensation on a finding of harsh, oppressive and unfair dismissal.  Whilst Bogunovich was decided prior to amendments to s23A of the Act dealing with the powers of the Commission on claims of unfair dismissal made by Amending Act No. 20 of 2002, in my view, given s23A is in substantially the same terms as it was prior to the amendments, then the approach set out in Bogunovich ought continue to apply.  In that matter, when considering future loss, Sharkey P said at [9]:

 “(q) As to deciding questions of future loss, assistance can be derived from Malec v J C Hutton Pty Ltd 92 ALR 545 (HC), where Deane, Gaudron and McHugh JJ held that the court must assess the degree of probability that an event would have occurred or might occur, and adjust its award of damages to reflect the degree of probability.

  Unless the chance is so low as to be regarded as speculative or so high as to be practically certain, the court will take that chance into account in assessing the damages.

  That is the sort of expression principle that, to some extent, is of assistance in deciding what is the future loss causally connected to an unfair dismissal.”

78       Additionally, I also commented on the same issue and said at [13] as follows:

“As to loss and injury, it is not the case that an applicant who has been found by the Commission to have been unfairly dismissed, and who is to be awarded compensation, is automatically entitled to an award of compensation for loss representing the loss of wages or salary from the date of dismissal to the date of the hearing. That may be the ultimate outcome after findings are made and an assessment by the Commission, as to the quantum of compensation having regard to s 26 of the Act and factors such as the employee’s duty to mitigate his or her loss. All the circumstances of the case need to be considered. For example, it well may be that despite the Commission’s finding that the dismissal was harsh, oppressive and unfair, it was characterised as such by reason of the manner or process leading to the dismissal rather than the substantive reasons for the dismissal itself, in the sense in which that principle is referred to in Shire of Esperance v Mouritz (1991) 71 WAIG 891. In such a case, it may be open to find as a fact on the evidence, that the unfairly dismissed employee could have been fairly dismissed by the employer shortly after the actual dismissal in any event. In a case such as this, it would be open for the Commission to find that the unfairly dismissed employee’s loss is limited to that period between the date of the employee’s actual dismissal, and when he or she could have been fairly dismissed in any event.

In the same context, the circumstances of the case may be such that it is open for the Commission to find, that based upon the evidence before it, it was more likely than not that but for the unfair dismissal, the employee may have left the employment of the respondent voluntarily at some future time.  Alternatively, it may well be that in accordance with an unfairly dismissed employee’s duty to mitigate his or her loss, that the employee obtains other employment immediately or a short time after the dismissal. In such a case, there may be no loss or indeed only minimal loss caused by the unfair dismissal, and the Commission could find accordingly.”

79       In this case there was no evidence that the respondent was looking elsewhere for employment.  There was also no evidence that for some other good reason, the respondent’s position as a sales person was going to cease being required to be done by anyone.  For there to be consideration of the on going employment of the respondent in this matter, beyond the actual dismissal, there would need to be evidence capable of characterisation as more than mere speculation and that there was a real prospect of the employment being terminated fairly at some point thereafter in any event.

A Final Matter

80       In light of the conclusions above as to the errors identified in the decision of the learned Commissioner, a final question arises as to whether if the appellant’s evidence were accepted in its entirety in preference to that of the respondent, whether the dismissal of the respondent would none the less be harsh, oppressive and unfair in any event.  If that were so, then the appeal should not be upheld as the ultimate outcome would be the same.

81       I cannot conclusively come to that decision on the balance of probabilities based on all of the material before the Commission at first instance.  Against the appellant, is the fact that in April 2005 the respondent received a sales award for his sales performance over the 2004-2005 financial year.  Furthermore, is the fact that the final warning was given to the respondent in late February 2005 but it was not until some months later that he was dismissed.  It might be said that on one view the appellant had by the passage of time, eroded the significance of the February 2005 counselling and combined with the bonus in April 2005, any criticisms of the respondent’s performance had been negatived.  As against this, is the position of Mr Healey that he continued to raise the issue of territory management with the respondent as a senior sales representative with many years experience who did not address his concerns and failed to follow his specific directions.

82       The resolution of this matter is not without some difficulty.  However in considering all of the factors, including the fact that the respondent was a senior and experienced sales representative, I cannot conclude on balance that the outcome would be no different had all of the appellant’s evidence been accepted at first instance.

Conclusion

83       I would therefore order that the appeal be upheld.  It would be inappropriate for the Full Bench to exercise its power to vary the decision at first instance given it has not had the benefit of seeing and hearing the witnesses give their evidence.  It seems to me that in these circumstances the only appropriate order is that the decision be quashed.

COMMISSIONER S WOOD:

84      I have had the benefit of reading the draft reasons for decision of Kenner C.  I agree, with due respect, that the learned Commissioner, at first instance, erred in that she failed to adequately take into account certain evidence which could have had a material bearing on the issue of credibility.  Exhibit F&P3 could lead to a conclusion that a letter of final warning was issued to Mr Skinner on 25 February 2005.  I join in the reasons of Kenner C on that issue.  The only reference in the learned Commissioner’s decision at first instance, which displays that this exhibit may have been considered, is the mention in paragraph [47] that:-

“The Commission finds that Mr Healey was not only unreliable as a witness to the disputed facts but it is also my view that portions of his testimony were intentionally reconstructed.  The Commission’s impression was that this was done for the purpose of presenting a more attractive version to support the respondent’s contention that the applicant had received a final written warning at a meeting on 25 February 2005.”

85      It is not clear from this passage that the Commissioner had specific regard for this exhibit, and if so, what weight it was given.  The passage may be a general reference to a consideration of Exhibit F&P3, and Mr Healey’s associated evidence, but it is not sufficiently clear.

86      Kenner C raised also the question as to whether, if the appellant’s evidence were accepted in its entirety, would the dismissal of Mr Skinner be harsh, oppressive or unfair.  I respectfully reach a different conclusion.

87      This issue was put to Mr Jones, agent for the appellant, at the appeal hearing.  Therefore, if one considers the appellant’s case at its highest, can one reach the conclusion that the dismissal was harsh, unfair or oppressive?  The appellant’s case is that Mr Skinner refused to improve his territory management, his management of clients, in the face of a final warning and regular counselling.  It is said that Mr Skinner refused to follow the direction by Mr Healey to spend less time on customers he was comfortable with and to service more profitable customers.  Mr Jones submitted, in respect to evidence of Mr Skinner being rewarded for his performance, that if Mr Skinner had responded to Mr Healey’s directions he would have improved his performance from 93% of budget to closer to that of his colleague, Mr McIntosh, namely 155.9% of budget.

88       Mr Sundstrum and Mr Healey gave evidence for the company at first hearing.  It is Mr Sundstrum’s clear evidence that Mr Healey, and not he, was responsible for reviewing and managing the performance of Mr Skinner, including the weekly reports.  Mr Sundstrum did attend meetings with Mr Skinner and Mr Healey when a final warning was issued and when Mr Skinner was dismissed.  With one exception Mr Sundstrum’s evidence was largely supportive of Mr Healey’s evidence.  Mr Sundstrum does say that Mr Skinner was taken aback by his dismissal, whereas Mr Healey says he was not surprised.  Mr Sundstrum says:-

“I just couldn't believe it because he'd been given every opportunity to improve his call plan, his - - his calling on accounts over the - - over the - - you know, over a fairly decent period and when it was again given to him, he was - - you know, "I can't work this out", which I found bizarre.”

89       Nevertheless, it is really the evidence of Mr Healey, about Mr Skinner’s performance, which needs to be assessed. 

90       Mr Healey commenced in his position of State Manager for Western Australia in August 2004.  Under cross-examination Mr Healey says that the previous State Manager had commented to him that Mr Skinner was “a bit of a plodder”.  Mr Skinner was on leave for the month of October 2004.  Mr Healey says that Mr Skinner made a comment in a sales meeting in early November 2004, that he had been “here”, meaning in the employment of the respondent, for the last three years in body but not in spirit.  Mr Healey did not take Mr Skinner to task at that time; he says he let the comment go and just digested it.

91       Mr Healey gave evidence that he has a perfect memory of his meetings with Mr Skinner.  He says that he would speak to Mr Skinner on a daily basis as a sales representative.  He first met with Mr Skinner to discuss his performance on 7 December 2004.  Mr Healey wanted to discuss a complaint from Mr Clive Berryman that he had not spoken to Mr Skinner for 6 to 8 weeks.  Mr Berryman was a customer with “potentially quite a large account”.  He also wanted to take Mr Skinner to task on the comment he made at the sales meeting in November.

92       Mr Healey’s evidence is that he made notes on a manila folder of meetings he had with Mr Skinner on 7 December 2004, and in January and February 2005 [Exhibit S11].  The notes made on the manila folder are as follows:-

“ Meeting with Ken

7th December 04 Spoke to Ken about territory management no call to Bunbury in November, called on 25/50 A/C’s for the month.  Calling on minor stores twice.  Lied to me stating he had spoken to Clive Berryman, when he hadn’t.  Ken from his own admissions said he had taken ‘a while’ to get motivated after returning from holidays.”

Amex

Front Door Card

Computer

Phone

Price book

Car? Long Service

 5/10 – 29/10

11/1/05 No December report     /

 Busselton no call since Sep →  Jan     another verbal warning

 5/1  -  25/2  Next 

7/2 Bill Harries

• Calls inconsistent 6 – 8 weeks apart
• No training despite requests
• Speaks poorly of F&P
• Shows no interest in building sales despite being given ‘green light’.

13/2 Complaints from Clive Berryman that Ken hasn’t called at Joondalup Betta for at least 6 months (Re email)

25/2 Discussions with Ken (Olly present)

1.45 pm Re: Clive Berryman’s complaint, Ken has admitted that he hasn’t been calling.  Handed letter of final warning, which Ken understood areas identified as unacceptable.  Ken now will report weekly calls and activities to me on a weekly basis.”

93       At the meeting on 7 December 2004 Mr Healey also spoke to Mr Skinner about territory management, in that Mr Skinner had visited only half his accounts in the previous month.  He had visited minor accounts three times during the month, as opposed to potentially more valuable accounts, and had not visited Bunbury.  Mr Healey says that Mr Skinner lied to him about speaking to Mr Berryman.  He says that Mr Skinner apologised for doing so and said that it had taken him a little while to get back into the job after he had returned from leave.  Mr Healey says that Mr Skinner agreed that he needed to call on all his accounts and rectify this straight away. 

94       Mr Skinner handed in his December report a week late.  Mr Healey says that he had to put in his monthly report to the Melbourne office without Mr Skinner’s information.  Mr Healey described Mr Skinner’s late monthly report as being “good”.  Mr Skinner said that he had forgotten and had got caught up in the season’s festivities.  Mr Healey says he felt as if Mr Skinner was testing him.  Mr Healey spoke to Mr Skinner again on 11 January 2005 about the late report and about a complaint from Harvey Norman in Busselton that the store had not received a visit since September 2004.

95       Mr Healey says that he next met with Mr Skinner on 7 February 2005.  Mr Healey had received a complaint from Mr Harries, the national chairman of Retravision.  Mr Harries complained that he was disappointed with Mr Skinner’s attitude to his account and his job.  Mr Skinner had spoken poorly about the respondent’s management, showed no desire to grow Mr Harries’ business and called infrequently.  Mr Healey says that Mr Skinner’s response was that he had never seen eye to eye with Mr Harries.  Mr Healey says that he counselled Mr Skinner about needing to spend time with all his accounts.

96       Mr Healey next met with Mr Skinner on 25 February 2005 to discuss an email [Exhibit S10] from Mr Berryman about the lack of servicing to his Joondalup store.  Mr Skinner’s reply was, “Yes, that would be right”.  Mr Sundstrum was at the meeting as Mr Healey wanted to hand Mr Skinner a signed letter of final warning [Exhibit S7].  Mr Healey says that the letter was prepared with the assistance of Mr Puller, the respondent’s human resources manager.  Mr Skinner argued the points in the letter.  Mr Skinner eventually agreed that he was over-servicing mainly Fridge and Washer City stores and not giving attention to other stores in his territory.  Mr Skinner was told that there would be no further problems if he would change his territory management. 

97       Mr Healey in evidence says that the notes on his manila folder were made after his meetings with Mr Skinner (T144).  These notes include reference to 13 February 2005, mention Mr Berryman’s complaint and refer to an email.  Exhibit S10 is an email from Mr Berryman to Mr Healey dated 23 February referencing a telephone conversation “the other day” about the lack of service to the Joondalup store.

98       Following the final warning Mr Skinner, and only he, then had to report on his calling patterns weekly.  Mr Healey says that Mr Skinner complied with this instruction.  Mr Skinner’s reporting was generally good.  The weekly reporting was so that Mr Healey could evaluate whether Mr Skinner had taken on board the instruction to change his ways.  Mr Healey says that it was clear from the weekly reports that Mr Skinner did not change his ways.  Mr Healey says he definitely spoke to Mr Skinner three times between 25 February and 3 August 2005, maybe four times, about his call patterns.  Mr Healey spoke to Mr Skinner in April, but he cannot be certain.  He told him not to visit Park Appliances because his time was better spent on major accounts.  Mr Healey denies that he ever gave Mr Skinner permission to visit Park Appliances.  Mr Healey says that Mr Skinner was stuck in a habit of calling on stores he got on well with.  His accounts were actually going backwards.  Mr Healey referred to a summary of Mr Skinner’s call patterns as a clear indication that Mr Skinner had over-serviced less important accounts.  Mr Healey complains that Mr Skinner did not change his call patterns notwithstanding their discussions.

99       I note that there are no notes in Mr Healey’s manila folder that cover any date post 25 February 2005.  Mr Healey says that he had meetings with Mr Skinner on at least three occasions in the period between the final warning and termination.  There are some other notations which appear somewhat out of sequence.  They refer to Amex, front door card, computer etc and appear under the entry of 7 December 04.  These notations would seem to relate to Mr Skinner’s termination. 

100    Mr Healey says also that Exhibit S13 is his summary of Mr Healey’s weekly reports and it, “reinforced what I was counselling him about over the 8 or 9 month period”.  In the section marked other observations, Mr Skinner says, “Analysis of Ken’s weekly reports ……………. This behaviour was unable to be changed despite verbal warnings and counselling in April and June 04”.

101    I note also that there is a degree of inconsistency between Mr Healey’s evidence concerning his discussions with Mr Skinner and the respondent’s Reply to Applicant’s Claim [AB13-14].  The reply reads as follows:-

“1. The Respondent admits paragraph 1-19 inclusive of the Applicant’s Particulars of Claim (“the claim”).

2. The Respondent does not admit paragraph 20 of the claim.

Particulars

2.1 The Applicant had been employed in the role of a Sales Representative since 9 May 1994.

2.2 The Western Australian State Manager (Jason Healey) had cause to counsel the Applicant on 7 December 2004, 11 January 2005 and 7 February 2005 arising out of customer complaints about his under-servicing of important clients and failure to submit his regular monthly activity reports for December 2004

2.3 These consultations resulted in the Applicant being issued with a final warning dated 25 February 2005.

2.4 That written warning amongst other matters raised for his attention required the Applicant to submit a detailed weekly activity report each Monday.

2.5 His weekly reporting indicated a lack of planning and effective time management.  It became a source of criticism between Jason Healey and the Applicant.  It ultimately resulted in Jason Healey directing the Applicant not to call on a particular account.

2.6 Despite this instruction the Applicant continued to call on the account because the owner was his friend.

2.7 The Respondent did not notice any improvement in the Applicant’s performance of his duties after the written warning in February 2005.

2.8 Consequently, on 8 August 2005, Jason Healey and the Sales Manager met with the Applicant and terminated his employment on the ground that he had continued to discharge his duties in contradiction of the express direction of Jason Healey and had demonstrated no improvement since the written warning given to the Applicant in February 2005.

2.9 The Respondent rejects the Applicant’s contention that the termination was unfair because he had not been given any notice of inadequate performance of his duties.

3. The Respondent notes paragraphs 21-24 inclusive and objects to the remedies being pursued pursuant to s.23A of the Act.”

Nothing was made in cross examination of this inconsistency at first instance and hence I take that matter no further.

102    In April 2005 Mr Skinner received a bonus of $500.  He was later listed in the top ten sales people for the respondent in Australia.  Mr Healey says of Exhibit S2, dated 5 April 2005, that Mr Skinner was in the top ten sales people in Australia for that financial year.  The top ten sales list ran from 1 April 2004 to 31 March 2005.  Mr Healey says Mr Skinner had a very good month in the last month of the financial year.  Mr Healey says of Exhibit S3 that Mr Skinner was at 93% of budget and Mr McIntosh, another sale representative in Western Australia for the respondent, was at 155% of budget.  He says that this was a period where Western Australia was the best performing state and that, “Mr Skinner should be doing a little bit better than what he was”.  He says that Mr Skinner, similar to Mr McIntosh, should have been overachieving on his budget.  He was not achieving as he should because he was not managing his territory properly. 

103    Exhibits S4 and S5 were Mr Skinner’s monthly and weekly reports respectively.  The monthly reports were completed by all sales representatives.  The only time that Mr Healey made any criticism of Mr Skinner’s monthly report was when he did not hand in his December 2004 report on time.  The monthly report covers the sales activity over the previous month.  There is also a call plan for the month which displays the expected call pattern for the forthcoming month.  The weekly report was only completed by Mr Skinner.  These weekly reports were completed in arrears.  Mr Healey requested these weekly reports because he says, “I had problems with the way he was managing his territory and I wanted to see on a more regular basis where he was going and what he was doing with his time.”  Mr Healey says that the instruction to complete weekly reports was given in the final warning letter of 25 February 2005.  The weekly call plans operated from 28 February to 29 July 2005.   Mr Healey says that Mr Skinner did not change his ways.  He continued to over-service favoured accounts and under-service other accounts of equal or more importance.  He continued to call on Park Appliances even though he was instructed not to do so.  The latter point is displayed on the weekly call sheet of 8 March 2005 in Mr Skinner’s writing with the words “Last call” against Park Appliances.  He says that he did not give Mr Skinner permission to call on that store to have a cup of coffee.  Then on the sheet of 6 May 2005 Mr Healey has written “Don’t call” against Park Appliances.  In Exhibit S13, which was compiled after Mr Skinner’s dismissal, Mr Healey says of Park Appliances, “Ken was verbally warned a 2nd time to stop calling, only to disobey my orders and call again on 29/7”.

104    Mr Healey says of the weekly reports that between 25 February and 3 August 2005 he expressed dissatisfaction to Mr Skinner about his calling pattern.  He says that they discussed Park Appliances and he reminded Mr Skinner that he had requested that the store not be visited.  He says also that there were accounts which Mr Skinner was visiting more than others.  He says that he recalls that Mr Skinner visited Fridge and Washer City, O’Connor, three times in three weeks.  He says that he spoke to Mr Skinner four or five times in that period about his call plans.  He did not witness any change in Mr Skinner’s behaviour whatsoever. 

105    There was a salary review in July 2005 and Mr Skinner’s salary was increased.  Mr Healey says that it was more of a goodwill gesture and that Mr Skinner received a 2% increase, whereas the balance of the staff in Western Australia received a 5% increase. 

106    Mr Healey says that by August 2005 he had had enough.  He says that he was at his wit’s end and that Mr Skinner was not responding to his requests.  He called Mr Skinner to a meeting on 3 August 2005 at 4pm.  Mr Sundstrum was present and Mr Healey says that he went over Mr Skinner’s performance with him, the previous warning and the lack of change.  He told Mr Skinner that he was terminating his employment.  Mr Skinner argued the point and did not want to leave the company.  Mr Healey says that he could not have given Mr Skinner any more chances as he was holding back the company.  Mr Skinner remained until the Friday to clear up matters and was paid 4 weeks’ notice.  Mr Skinner requested and was given permission to use the company car until the Monday following his termination.  Mr Skinner spoke to Mr Puller to try and change the decision, but to no effect.

107    Mr Healey says that he formed the view that he may have to dismiss Mr Healey in late July.  (T187).  Mr Healey says he made the decision the night before to dismiss Mr Skinner.  He went through the notes he had tendered and the weekly call reports in making the decision.  Mr Skinner offered to conduct a call plan to specific directions but Mr Healey says that it was too late.  He says that Mr Skinner was in denial.  He says that Mr Skinner was not surprised.

108    The above describes adequately the appellant’s evidence at its highest.  To summarise the appellant’s case then Mr Skinner was an employee of some 11 years.  The complaint of the appellant is that Mr Skinner did not manage his territory properly, to the disadvantage of the appellant’s business.  He did not change his practices notwithstanding a final warning and several subsequent incidents of verbal counselling (somewhere between 3 and 5 times).  Mr Healey after almost a year had reached his “wit’s end”, was tired of Mr Skinner failing to follow direction and hence terminated his employment.  There appears also to be a situation whereby Mr Skinner had lost his focus at the company and was there in body but not in spirit.  Put in this context the dismissal of Mr Skinner is not one which justifies the intervention of the Commission.

109    However, I do not consider this to be a fair assessment of the respondent’s evidence.  Mr Skinner had been a good employee for the bulk of his employment.  On the evidence, there is no actual complaint about his services until December 2004 other than Mr Healey says he was told that Mr Skinner was a “plodder”.  The December discussion between Mr Healey and Mr Skinner arises from a comment Mr Skinner made at a sales meeting, a complaint from Mr Berryman about the lack of service and an accusation that Mr Skinner had lied to Mr Healey about speaking to Mr Berryman when in fact he had not.  Mr Skinner then handed in late his December report.  Mr Healey complains that Mr Skinner was testing him.  This suggests some tension existed in the relationship, and that Mr Skinner was not seeking to comply with directions.  Mr Healey received also a complaint from Harvey Norman in Busselton about a lack of service.  Mr Healey again spoke to Mr Skinner.  There are other negative comments listed in Exhibit S11 which were made by Mr Healey.

110    Mr Healey had occasion to speak to Mr Skinner again on 7 February 2005.  Mr Skinner is said to have received another verbal warning.  Mr Healey had received another complaint this time from Mr Harries, the national chairman of Retravision.  Mr Harries was disappointed about Mr Skinner’s attitude to his job and to his account.  The notes and evidence say that Mr Skinner spoke poorly about his employer.  Mr Skinner was counselled that he needed to spend time with all his accounts.  Mr Healey then received an email from Mr Berryman about the lack of service provided by Mr Skinner to his store in Joondalup.  That prompted a strong response, namely Mr Healey issued Mr Skinner with a final warning.

111    What is of particular importance is what happened thereafter.  This is the point of submissions made by Mr Lynn for the respondent to the Full Bench.  In the space of some three months (December 2004 to February 2005) Mr Healey had responded quickly and largely to complaints.  He counselled Mr Skinner several times and then issued a final warning.  He made notes of these meetings and, at least after the December meeting, discussed his notes with Mr Puller, the human resources manager.  Following this Mr Skinner was the only salesperson placed on weekly reports.  Mr Healey did this to more closely supervise Mr Skinner, in particular, to supervise the stores which he visited and the frequency of these visits.  That is the information provided in the call plans and that is the prime complaint of the respondent.  Mr Jones in his submissions to the Full Bench emphasised that point.

112    In March 2005, directly after the final warning, Mr Skinner had a particularly good month in sales.  This evidence is provided by Mr Sundstrum and Mr Healey to downplay the fact that Mr Skinner made the top ten list on the national chart of salespersons for the year.  The year ended in March.  They say he only reached that position for the sales year because of his March sales.  A proper reading of the appellant’s evidence is that the appellant’s witnesses give Mr Skinner little credit for improving his sales in the month; i.e. directly after he had received a final warning.  A more commonsensical way to look at the behaviour is that Mr Skinner responded positively in his sales directly after receiving a final warning.  Mr Skinner received the reward of a $500 bonus in April for his efforts.

113    Mr Lynn submitted correctly that in four months of weekly reports, there are only two obvious complaints registered by Mr Healey.  One is that Mr Skinner continued to visit Park Appliances, though he was instructed not to do so; and on one occasion he had an easy day of visits (see T193-194).  Mr Healey did not answer directly under cross-examination whether there were legitimate reasons for that day.  There is no record of a complaint from a customer about Mr Skinner during this period.

114    Mr Healey says that during this four month period he continued to counsel Mr Skinner about his territory management.  He says he did so somewhere between 3 to 5 times.  There is little detail to those discussions.  There were no notes made as were apparent in December, January and February.  Mr Healey says that he made the notes originally as he might have had to refer to them later.  There were no such notes made of any discussion in the period March to August 2005.  There are simply a lot of ticks and an occasional comment made on the weekly reports.  Mr Healey had ample opportunity in giving his evidence to elaborate on his discussions during this period.  He simply referred to Park Appliances, summarised the period as Mr Skinner failed to change his ways notwithstanding the discussions he had with him.  This is adequately shown in Mr Healey’s re examination and questioning by the Commission:-

“MR JONES: - - your analysis. And it was put to you in a hypothetical sense that if Mr Skinner was made aware of these things prior to the actual dismissal he may have changed his - - his call patterns to suit. Did you ever discuss with him the substance of your analysis during the time between February and August when you dismissed him?---It was discussed - - on observation of his weekly reports it was quite clear that he was still revisiting the same accounts over and over on a more regular basis than other accounts so that was discussed verbally and he was counselled verbally.

How many times do you recall these verbal discussions?---Four times.

In the months of when?---Would have been months of April, May, June and July. (T210)

MAYMAN C: When you raised and discussed the issue in relation to this counselling in May, can you tell the Commission what you said?---I think in May there was - - the Parks Appliance issue came up again, that I noticed that Ken had called there after being told on two previous occasions not to and if my memory serves me right it was also just something that I noticed on his weekly call plans or - - yeah, his weekly call plans, that he was still visiting the same retailers too often and not visiting others.

And what did you say in June?---June was once again just, that was about his weekly call plans.”

115    As at 10 July 2005 Mr Skinner was number 6 on the national sales team list and had performed at 93% of his sales budget [Exhibit S3].  Mr Healey’s evidence is that he should have done better as Western Australia was the best performing state and Mr Skinner’s colleague, Mr McIntosh, was at 155.9% of his budget.  Shortly after this Mr Skinner received a pay rise.  Mr Healey says that was simply a goodwill gesture and Mr Skinner only received a 2% rise, whilst others typically received a 5% rise.  Shortly after that Mr Skinner was dismissed.  In fact Mr Healey says he thought about dismissing Mr Skinner in late July.  Mr Healey says simply that he reviewed his notes and the weekly call plans and decided to terminate Mr Skinner’s employment.

116    The weekly call plans must take on some prominence.  They were the tool devised by Mr Healey for supervising Mr Skinner’s performance.  Mr Healey was clearly able to and did give Mr Skinner specific directions.  He told Mr Skinner not to visit Park Appliances and complains that Mr Skinner continued to do so.  There is no other evidence of any specific direction.  However, Mr Healey constructed a chart [Exhibit S13] which he says proves that Mr Skinner’s pattern of visits meant that he attended lower value customers more frequently than higher value customers.  This exercise was completed after the dismissal and was completed in light of Mr Skinner’s application to the Commission.  There is no evidence that these points were discussed in detail with Mr Skinner.  It strikes me as more than odd that Mr Healey was actively engaged in managing Mr Skinner’s visits to customers over four months via weekly reports on those visits, and yet the only evidence is general evidence that he spoke to Mr Skinner and Mr Skinner continued to do as he wanted.  During the same period Mr Skinner increased his sales in March, received a $500 bonus in April (described by the company as a “prestigious position”), was number 6 on the national sales list in July, received a pay increase and then was shortly thereafter dismissed.  The final warning letter in February 2005 advised Mr Skinner that, “should there be no immediate and obvious improvement in the areas stated, Fisher and Paykel will terminate your employment”.  It would appear that there was obvious and immediate improvement by Mr Skinner; shown at the very least by his better March sales.  Mr Skinner obviously received two prominent accolades in that period from the national office, yet he was dismissed.  It is not adequate in my view for Mr Healey to say that Mr Skinner was a senior, experienced salesperson and so should have known what to do, particularly given the manner of supervision chosen by the respondent.

117    I can only conclude that in terms of a fair go all round, the treatment of Mr Skinner has fallen so short of this as to make his dismissal harsh and unfair.  In my considered view there is sufficient evidence, on the respondent’s case alone, to come to that conclusion.