Compensation for ill Sales Rep wrongly sacked for raising complaints

An on-road machinery salesperson who was summarily dismissed by his regional Queensland employer, whilst on personal leave and immediately after raising complaints about the behaviour of a female co-worker, has been awarded over $4,000 compensation after successfully arguing that his dismissal was unfair.

The Sales Rep was dismissed by his Toowoomba-based employer, described as being “not much larger than a small business”, on 3 March 2023, several weeks short of his one-year anniversary date. The Sales Rep submitted that he was on personal leave and subject to a medical certificate when he received a termination letter notifying him of his dismissal “effective immediately” and instructing him to return his company vehicle by close of business the same day. The Sales Rep explained that the termination letter had been completely unexpected, as he had only been told the day prior, on 2 March 2023, to commit his concerns about the conduct of one of the office staff to writing, which he had immediately done by email that same night. In proceedings before the Commission, the Sales Rep presented uncontested evidence that he was “bullied by [the office staff member] on several occasions”, that the co-worker was known to be “abrasive”, and that the business owners were aware her manner had become “quite abrupt and almost aggressive in her approach to other staff”, making interactions “quite difficult”.

Commissioner Simpson ultimately accepted the evidence of the Sales Rep as to the manner in which his termination was effected, rejecting the employer’s account that he was informed of the decision during a phone call on 2 March, and that the decision to terminate had been taken because the employee “had difficulty controlling his temper in the workplace, would attempt to discredit other employees, and would refuse to undertake tasks assigned to him, such as completing logbooks and timesheets”. The Commissioner also said he was “not prepared to find that it is probable” that the Sales Rep engaged in post-termination conduct alleged by the employer, including leaving “an ice cream wrapper” on the offending co-worker’s desk, or, doing a “doughnut” with his vehicle in the yard of the employer’s premises.

Instead, Commissioner Simpson found it was more plausible that Sales Rep was advised to commit his concerns regarding his co-worker to writing on 2 March – which he did – and that his dismissal was not effected until the following day, when he had already commenced personal leave. In addition, the Commissioner found there was “some legitimacy” to the Sales Rep’s concerns about his co-worker (which were never investigated), that if shortcomings in his performance were ever raised with him that “whatever may have been said” the Sales Rep had not “been told his employment was in jeopardy if his performance did not improve”, and that the evidence did not support that the Sales Rep had ever “refused a lawful and reasonable direction as claimed” by the employer.

Finding that there was no valid reason for dismissal, that the termination was “procedurally unfair”, and noting that the “immediate loss” of the company vehicle “created difficulties” for him as a father of two small children, Commissioner Simpson determined the Sales Rep’s dismissal was “harsh, and unreasonable”. As the Sales Rep had successfully secured new employment, albeit on a lesser salary, shortly after termination, Commissioner Simpson awarded compensation of $4,519.23 (gross), plus superannuation, being the equivalent of three weeks’ wages.

Gorman v Equipment Specialists Australia Pty Ltd [2023] FWC 1806 (26 July 2023)