findings
33 I found Mr Griffiths to be an honest witness. Indeed, it was only in a few matters that his evidence was traversed at all. I accept he was a conscientious and industrious employee, and from his point of view doing his best to properly further the respondent's interests. His point of view was different from that of the respondent. He acknowledged his sales level generally was well below budget, and well below that of other persons in the furniture department. He also acknowledged his willingness to attend to customers' needs or wishes in a way which went beyond the practices of other sales persons in that department. He said he often had to look after potential customers who were not, in his view, being sufficiently attended or to deal with customers dissatisfied with purchases or with the service they had received. In most respects, there is also no dispute between Mr Griffiths and the respondent's records or the evidence of Mr Culmsee about what was discussed in his several appraisals or in the series of discussions which commenced on 24 January 2001 and culminated in his termination.
34 He believes his role in relation to the AIRC proceedings, and in relation to occupational health and safety issues, played a part in the respondent's reasons for terminating his employment. He bears no onus of proof of the respondent's reasons for doing so. He said he believed he had become a nuisance to the respondent, in particular Mr Culmsee. He points to the timing of the commencement of the formal warning process, shortly after the decision in the AIRC proceedings. He also points to the respondent's failure to give effect to the "status quo" provision in the FF Agreement pending resolution of the AIRC proceedings.
35 The rationale for the reversed onus of proof embodied in provisions such as s 170CQ is clear enough. Smithers and Evatt JJ in Bowling v General Motors-Holdens Pty Ltd (1975) 8 ALR 197 at 204 said of a legislative ancestor of s 170CQ:
"It proceeds upon the basis that the real reason for a dismissal may well be locked up in the employer's breast and impossible, or nearly impossible, of demonstration through ordinary forensic processes."
Its effect is to promote in the party having the onus of proof to present to the Court the best evidence available about the reasons for the termination, lest that party fall short of discharging the onus. The evidence is then available for testing. In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 Northrop J at 268 said of s 5(4) of the Conciliation and Arbitration Act 1904 (Cth):
"The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge."
See also the remarks of O'Loughlin J in Robertson v South [2002] FCA 1402 at [16] and Moore J in Laz at [24] - [26].
36 Mr Griffiths through his counsel referred also to the period of several years during which his sales performance had been below budget, without prompting any disciplinary action by the respondent. It was only during 2000 that his activities as a union member active about occupational health and safety issues and in relation to the AIRC proceedings occurred. The timing of the termination processes, and the singling out of Mr Griffiths in circumstances where no other employee was formally disciplined about sales performance, present a strong inference that the reasons or one of the reasons for termination fall within s 170CK(2)(b) or (e) of the Act.
37 One matter put on behalf of the respondent can be disposed of at this point. It was argued that if Mr Griffiths' actions in relation to the AIRC proceedings or in occupational health and safety issues were a reason for his termination, the termination would have occurred earlier. I reject that contention. Mr Culmsee said that he was advised by the ARA and its legal advisers to take no formal action with respect to Mr Griffiths' employment whilst the AIRC proceedings were extant. I accept that evidence. I thought it had an inherent ring of truth about it. Consequently, the timing of the commencement of the disciplinary processes in January 2001 does not advance in any way the respondent discharging the onus of proof under s 170CQ.
38 As counsel for Mr Griffiths urged, it is necessary to have regard to the whole context in which the termination took place.
39 The starting point, according to both parties, explaining the timing of the termination of Mr Griffiths' employment was the accession to the position of store manager of the Grote Street store of the respondent on 27 January 2000 of Mr Culmsee. He remained in that position at material times thereafter. It was his decision to terminate the employment of the respondent.
40 I accept that Mr Culmsee was given the target, as the store manager from 27 January 2000, to increase sales and profits in the respondent's Grote Street store. He was briefed by the respondent's state manager. He was aware that the Grote Street store had not met the respondent's budget requirements over the previous year, including in particular the furniture section in which Mr Griffiths was employed. Soon after his appointment he perceived some laxity in some staff attitudes.
41 Mr Culmsee first addressed wages costs in the various departments. He consulted with the sales manager of each department. He then decided on the budgeted allowance per week of staff hours for each department. That involved some reduction in overall hours. It was to be implemented by reducing the hours of all staff other than full time permanent staff, pro rata across the board, subject to the minimum provided for in the FF Agreement. In Mr Griffiths' case, as noted above, his hours were to be reduced from 124 to 118 per month. All staff were notified of those changes in early April 2000. Clause 1.2.14 of Part 4 of the FF Agreement limits the extent by which a permanent part-time employee's hours may be reduced in any year. The reduction in Mr Griffiths' hours was well within the 20% reduction provided for, and the agreed notice was given. The facts relating to the AIRC proceedings arising from that reduction are set out in pars [15] - [17] of these reasons.
42 Mr Culmsee from January 2000 also looked at the individual sales performance of each employee. He identified two employees as being significantly below the others in sales performance. One of those employees was Mr Griffiths. The other resigned in April 2000. He made efforts to encourage all staff to improve their sales records, including several formal training sessions. He introduced computer generated sales records. He made them available to employees.
43 He discussed with Mr Griffiths his sales performance. There is some disagreement about whether he specifically told Mr Griffiths that his sales performance was unsatisfactory. I think the disagreement is more the consequence of the perspective of the participants. Both Mr Griffiths and Mr Culmsee say that they had a number of conversations during the first months of 2000. Mr Griffiths says that they were about matters other than his sales performance; matters such as not ordering non-standard stock, and not taking special orders for customers for discounted items if they were not immediately available, and not taking time to attend to customers who other employees had dealt with without achieving a sale. He also agreed that there was overall a greater focus on meeting sales budgets, pursued in part by the availability of computer-generated sales records for each department and each employee. Mr Culmsee's evidence was to the same effect, albeit in the context of encouraging Mr Griffiths to increase his sales level. In my view, the only real difference between them in that evidence was whether Mr Culmsee explicitly urged Mr Griffiths to increase his sales. I accept that that was Mr Culmsee's intention. In his attempt to do so in a non-confronting way, I think Mr Griffiths may not have fully apprehended the message. I also accept that Mr Culmsee demonstrated to Mr Griffiths an awareness of how Mr Griffiths was going with his sales. He asked him why his sales levels were low. He re-enforced the guidelines about not ordering non-standard stock or stock on special, and not spending too much time with customers who were not apparently intending to purchase furniture.
44 I accept Mr Griffiths' evidence that the respondent did not raise with Mr Griffiths the prospect of him being dismissed for his poor sales performance at his annual appraisal conducted on 8 September 2000. Mr Culmsee said, and I accept, the ARA and its legal advisers advised him not to raise such a prospect while the AIRC proceedings were ongoing. The detailed reasons for the advice were not explored in evidence. In general terms, I find Mr Culmsee was advised not to take any steps to bring to a head issues arising from Mr Griffiths' sales performance until the completion of those proceedings.
45 The prospect of his dismissal was made plain at the meeting on 24 January 2001. He was told bluntly that if his sales levels did not reach his sales budgets within three to four months, he could be dismissed. The course of events thereafter is described earlier in these reasons.
46 I am satisfied the respondent's reasons for terminating Mr Griffiths' employment did not include either his claimed participation in trade union activities, with the respondent's consent, during working hours or his participation in the AIRC proceedings. The only significance of the AIRC proceedings to the determination of his employment was its timing. But for those proceedings, I accept Mr Culmsee would have acted earlier to bring to a head his concerns about Mr Griffiths' sales performance. He did not do so early, based upon the advice to which I have referred.
47 In essence, my view is reached because I accept Mr Culmsee as an honest and reliable witness. As noted elsewhere, there is little difference between his evidence and that of Mr Griffiths concerning the events of 2000 and up to 23 May 2001. It is Mr Culmsee's evidence about his reasons for his actions which is the critical evidence. He impressed me as a frank person, anxious to improve the sales and profit performance of the Grote Street store of the respondent. That is what he had been appointed to do. His evidence about how he addressed that task is sensible, and his analysis of the records leading him to identify Mr Griffiths as one of the two major sales under-performers against sales budgets in the furniture department is borne out by reference to those records. I formed the view that Mr Culmsee was prepared to give his evidence "warts and all". He did not shy away from his sales and profit-driven objectives for the Grote Street store. His responses to cross-examination were frank. For instance, he acknowledged he had become the store occupational health and safety representative because the previous representative had resigned because Mr Griffiths was perceived by her as too particular and persistent. He dealt frankly with the warning he gave to Mr Griffiths on the third occasion when Mr Griffiths was absent from the sales area following the removal of a roofing tile, and acknowledged that he regarded Mr Griffiths' attitude as exaggerated and as unfair to other employees. His explanations of the way he dealt with other employees whose sales performance was periodically below budget, compared to the way he dealt with Mr Griffiths, was sensible and consistent with the available records. His conduct in significant respects also indicates a desire on his part to have Mr Griffiths retained as an employee, provided he met the sales targets, rather than to secure his departure.
48 Although Mr Griffiths failed persistently to meet his sales budget since his employment commenced, he had in other respects been a satisfactory employee. In particular, his customer service skills and his customer relations had been favourably remarked upon. Many customers had sent letters recognising his efforts to help them, and the respondent had issued commendation certificates to him. As well as Mr Culmsee's evidence, Ms Olsen's evidence confirms that despite those positives, the level of sales he generated was of concern to the respondent. That concern predated Mr Culmsee's appointment as manager. In the annual appraisal of 22 June 1999, the sales manager indicated sufficient concern not to await the next annual review. She raised with Mr Griffiths whether sales work with the respondent was the work he really wanted to do. She proposed a review in January 2000. I accept that, at June 1999, review of Mr Griffiths' performance in January 2000 was in fact intended. The proposed review was overtaken by Mr Culmsee's appointment and subsequent events.
49 It is the timing of the respondent's action upon which Mr Griffiths through his counsel placed emphasis. However, I accept that the timing was dictated by the resolution of the AIRC proceedings, but not prompted by the fact of those proceedings or of Mr Griffiths' role in relation to them or by his role in his claimed trade union activities. Apart from the build-up of the respondent's concern about Mr Griffiths' sales figures, evident from the June 1999 appraisal, his September 2000 appraisal led to a proposed review in December 2000 (deferred until 24 January 2001). Mr Griffiths was quite aware that his sales performance was of concern. The respondent's attempts to support Mr Griffiths in meeting his sales budgets during 2000 and up to 23 May 2001 tend to negate the claim that Mr Culmsee was seeking a reason to dismiss him. The respondent took active steps to help Mr Griffiths meet his sales budgets.
50 The respondent sought to direct Mr Griffiths about what he was doing which might be affecting the level of his sales. It was not any new direction, but repeated what he had been told at previous annual appraisals. In essence, he was spending too much time on other activities to the detriment of achieving sales. Mr Griffiths agreed that one feature of his work was that he was doing a lot of after sales service for others. Mr Culmsee had introduced general rules not to order discounted stock if it was not available, and not to order interstate stock without his approval. He suggested that stock from other stores should not be pursued, but customers directed to available stock. He re-enforced those rules in his informal discussions with Mr Griffiths during 2000, as well as talking to him about sales techniques and offering him the opportunity to watch Mr Culmsee's sales techniques. He spoke to a sales trainer, Ms Mulligan, about Mr Griffiths being unable to close sales effectively, and arranged for her to provide him with personal sales training. Mr Griffiths declined that offer. Ms Mulligan also confirmed that later Mr Griffiths was relieved of certain cleaning and ticketing duties which were generally part of the routine tasks of sales persons, to free up his time for selling. Mr Griffiths was also removed from stocktaking duties during 2000, for the same reason.
51 In the course of the meetings on 24 January 2001, 28 February 2001 and 29 March 2001, Mr Griffiths was variously offered additional sales training and training to improve his product knowledge. He declined those offers. He was permitted to change his lunch break so as to be working during what he thought was the busiest hours. The other staff in his department were asked not to stay close to the counter, so he could have the benefit of telephone customer sales. The task of rug ticketing was assigned to someone else to free up his time for sales. In the short term, his sales budget was set at 70% rather than 85%, and when he effectively met that budget for the month to 29 March 2001 it was left in place rather than increased to give him an opportunity to "consolidate" his sales performance. He was given positive encouragement at the time.
52 Mr Griffiths' sales figures during April 2001 were well below the 70% budget set. He gave some reasons to Mr Culmsee why that might be so. Mr Culmsee explained why those reasons were not satisfactory, partly because they applied to all employees and their sales figures were not commensurately reduced and partly because the impact of the brief leave taken by Mr Griffiths could not account for the very low sales figure against his budgeted sales level.
53 Those matters do not lie readily with an employer trying to dismiss an employee for an ostensible reason which was available to it, but in reality for reasons which included reasons proscribed by s 170CK(2)(b) and (e) of the Act. They are more in accord with an employer genuinely concerned about sales performance of an employee and genuinely endeavouring to have that employee improve sales performance rather than result in dismissal.
54 In the result, I find that the respondent has proved that Mr Griffiths' employment was not terminated for a reason, or for reasons which included a reason, proscribed by s 170CK(2)(b) or (e). I am satisfied that he was not dismissed because, or partly because, he was a "thorn in the side" of the respondent (an expression used by his counsel) because of his claimed trade union activities or his participation in the AIRC proceedings.
55 In the circumstances it is not necessary to decide whether Mr Griffiths' activities in relation to matters of occupational health and safety constituted "participation in trade union activities … with the employer's consent during working hours" under s 170CK(2)(b). Counsel for the respondent acknowledged only that his attendance with officers of the Union on the morning following the third occasion when a roofing tile had been removed would fall within that subsection. I do not wish to be taken as acceding to the proposition of counsel for Mr Griffiths that his activities bore the character of trade union activities because the applicant himself was a trade union member engaged in asserting individual industrial rights of the nature that his union was constituted to protect. Mr Griffiths' counsel accepted that, were that contention correct, employees who were not members of a trade union but who nonetheless individually asserted their industrial rights in the work place without consultation with, or direct involvement by, a trade union, would be engaged in activities of an individual and private nature, rather than participating in a trade union activity, and thus be deprived of the protection afforded by s 170CK(2)(b). In that sense, the applicant submitted that the protection afforded by the s 170CK(2)(b) discriminates between those employees who are members of a trade union, and those employees who are not members of a trade union but who nonetheless individually assert their industrial rights by, for example, reporting occupational health and safety concerns or making unilateral decisions about the safety of the workplace as the applicant did in the present case. There is nothing on the face of s 170CK(2)(b) that suggests that the section should discriminate between trade union members and persons who are not trade union members in that way. I note, however, that the submission that it does so discriminate was said to be consistent with the objects of the Act as set out in s 3(e), (f) and (g). Counsel also referred to Mooney v W & B Morieson Pty Ltd (1997) 147 ALR 224 in which his Honour at 231 reviews decisions touching on the point. However, for the reasons given, it is not necessary to further consider the question.
56 In my judgment the application should be dismissed. I so order.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.