FEDERAL COURT OF AUSTRALIA Griffiths v Freedom Furniture Pty Ltd [2002] FCA 595 INDUSTRIAL LAW – termination of employment – application for order for reinstatement and compensation - whether employment was terminated for reasons which included a proscribed reason, namely participation in trade union activities and participation in proceedings against the employer. Workplace Relations Act 1996 (Cth), ss 170CH, 170CK(2)(b), 170CK(2)(e), 170CP, 170CQ, 170CR Bowling v General Motors-Holdens Pty Ltd (1975) 8 ALR 197 – referred to Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 - cited Laz v Downer Group Ltd [2000] FCA 1390 – referred to Mooney v W & B Morieson Pty Ltd (1997) 145 ALR 224 – referred to Robertson v South [2002] FCA 1402 – referred to SEAN GRIFFITHS v FREEDOM FURNITURE PTY LTD S 114 of 2001 MANSFIELD J 10 MAY 2002 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.114 OF 2001 BETWEEN: SEAN GRIFFITHS APPLICANT AND: FREEDOM FURNITURE PTY LTD RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 10 MAY 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.114 OF 2001 BETWEEN: SEAN GRIFFITHS APPLICANT AND: FREEDOM FURNITURE PTY LTD RESPONDENT JUDGE: MANSFIELD J DATE: 10 MAY 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT introduction 1 Sean Griffiths (Mr Griffiths) commenced employment with the respondent on a casual basis in March 1996. He was employed as a salesperson in the furniture section of the respondent's store at 279 Grote Street, Adelaide. On 27 May 1996 his employment was converted to permanent part-time status. He remained in that employment until 23 May 2001, when his employment was terminated by the respondent. 2 Mr Griffiths applies under s.170CP(1) of the Workplace Relations Act 1996 (Cth) (the Act) for an order under s 170CR(1)(b) of the Act that the respondent reinstate him in his employment, and for an order under s 170CR(1)(c) of the Act that the respondent pay to him by way of compensation such amount as would represent the amount he would have earned in employment with the respondent between 24 May 2001 and the present time had his employment not been terminated. That amount now exceeds six months remuneration. Section 170CR(1)(c) is expressly made subject to subss 170CH(8), (9) and (10), so the compensation which may be ordered is limited to either the total amount of remuneration which Mr Griffiths received in his employment with the respondent during the period of six months immediately prior to 23 May 2001, or $32,000, whichever is the lower. It emerged in the course of final submissions that Mr Griffiths' claim for "compensation" will now substantially exceed that amount. Consequently, he orally sought an order under s 170CR(1)(d) for reimbursement of his salary or earnings for the whole of the period to the present time, an amount well in excess of that which the Court is empowered to order under s 170CR(1)(c) by way of compensation. Section 170CR(1)(d) empowers the Court to make: "Any other order that the Court thinks necessary to remedy the effect of such a termination." Mr Griffiths contended that "back pay" could be so awarded in an unrestricted way under that provision, and that it did not amount to "compensation" as provided in s 170CR(1)(c): Laz v Downer Group Ltd [2000] FCA 1390 at [41] (Laz). The respondent in final submissions did not contest that proposition. It accepted that, if the court were to order Mr Griffiths to be reinstated, it would not be inappropriate under s 170CR(1)(d) to order arrears of pay for the whole of the period Mr Griffiths has not been employed since his termination. 3 Also in final submissions, Mr Griffiths sought an order imposing a penalty upon the respondent under s 170CR(1)(a). It empowers the Court to impose a penalty on an employer of not more than $10,000 if it is satisfied that the employer has contravened a relevant provision of the Act in relation to the termination of employment of an employee. Again, that application was not included in the initial application and was only made orally at the completion of submissions. The respondent did not complain of the application being made in that way, nor contend that the Court had no power to impose a penalty in the circumstances of this matter if it were satisfied of the contravention. 4 The basis of Mr Griffiths' claim is that the respondent contravened s 170CK(2)(b) and (e) of the Act so as to entitle him to the relief sought. Section 170CK(2) relevantly provides: "Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: (a) … (b) trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours; … (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; …" Neither subss (3) nor subss (4) have any relevance to the present circumstances. 5 It is accepted by the respondent that the pre-conditions to the entitlement of Mr Griffiths to apply to the court under s 170CP(1), specified in s 170CP(5)(a) and (b) of the Act, are satisfied. 6 Once the allegation is made that the reason or a reason for the termination of Mr Griffiths' employment was one proscribed by s 170CK(2), the respondent has the onus of proving that the termination was not for the alleged proscribed reason. Section 170CQ provides: "In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies)." The respondent accepts that in practical terms it now bears the onus of proving that its termination of Mr Griffiths' employment was not for a reason or reasons that includes those referred to in s 170CK(2)(b) or (e). background 7 Much of the evidence is uncontested. The following therefore represents my findings. 8 At the time of his employment, the terms of employment were governed by the Freedom Furniture Pty Ltd National Retail Enterprise Agreement 1996 (the FF Agreement). It was negotiated on behalf of the respondent's employees by the Shop Distributive and Allied Employees' Association (the Union). Mr Griffiths became a member of the Union soon after he commenced employment with the respondent. 9 Mr Griffiths was issued with a job description in a Key Accountability Statement. It described the main purpose of the job as being "to maximise product sales through prompt, friendly and enthusiastic customer service". It had a series of 17 "key accountabilities", being things which were part of his job. The first key accountability was to "Attain individual and group sales targets, and use the '9 steps of selling' technique whenever possible". Several of those key accountabilities concern the quality of customer service. He was subject to annual appraisals of his performance. The appraisals involved assessment of each employee's performance in three areas: sales and procedures, customer service and relations, and general skills. The assessments were discussed with each employee. The appraiser completed a "Personal Performance Appraisal Form" including the appraiser's report on the particular employee's performance, career development and objectives, and the particular employee also made comments on the form. The form was then retained in personnel records, and provided a foundation for subsequent reviews. 10 The respondent set annual sales budgets or targets for each of its furniture outlets, and within each outlet for each of its departments and for each employee in each department. The sales budget for each individual employee was set simply by dividing the departmental sales budget between employees according to the hours they each worked. There was no suggestion that Mr Griffiths' sales budget was unfairly or capriciously fixed, although he later raised some matters about particular working patterns or working hours which might have affected his (and others') ability to achieve the sales budgets. 11 Mr Griffiths' first appraisal was on 30 April 1997. The appraiser was the sales manager. She gave him a generally satisfactory assessment, noting that his customer service skills were better than average. He was however assessed as being below performance in sales as he had achieved 53.6% of his sales budget whereas his departmental result was 83.4% of budget. It was identified that he needed to increase the processing speed of customers and to be better organised in doing so. Mr Griffiths accepted the appraisal positively. It was agreed that Mr Griffiths would maintain a book recording his daily sales so he would be more conscious of sales targets applicable to him and his progress towards meeting them. Mr Griffiths did maintain such a book. 12 No other matters relevant to this claim arose before Mr Griffiths' next appraisal, which took place on 6 August 1998. The appraiser on this occasion was an acting sales manager. She noted that he had improved his sales levels by some 15% and was achieving a better balance between customer service and sales. He was given a satisfactory rating for generating sales, and a higher rating for his product knowledge and for promoting the respondent's other services. He was told that the minimum acceptable sales level was 85% of budget. He achieved an "exceptional" rating for his customer service. The appraiser's assessment recognised his "high level of professionalism", his positive attitude, his customer service, and his increased awareness of sales. No areas were identified as needing to be addressed. He was given the objective of increasing his sales results to 95% of budget, and it was suggested he be given refresher training on the "steps of selling". Not surprisingly, Mr Griffiths accepted that appraisal without demur. 13 Again, no other matters relevant to this claim arose before Mr Griffiths' next appraisal. It took place on 22 June 1999. It was conducted by his sales manager. At that time, Mr Griffiths had not maintained the sales level against his budget; it was then 66.74%, and the component of "generating sales" as part of the "Sales and Procedures" assessment was rated as unsatisfactory. The appraiser noted the need to implement time management and sales forms "to bring about the changes required". His customer service and customer relations performance were given a high rating. In the performance appraisal his customer service skills were recognised, but it was noted that he required a "major effort" to improve his sales results. The objective was set to reach a "standard of sales achievement acceptable to the team results" of 85% of his sales budget. A follow-up date was proposed in January 2000. Mr Griffiths indicated that he was "less than satisfied" with the appraisal, although he welcomed criticism and would "actively take on board any fair comments" in the appraisal. There was no follow-up review in January 2000. The respondent's case is that the proposed follow-up was overtaken by other events. 14 On 27 January 2000, Gavin William Culmsee (Mr Culmsee) took up his position as the new manager of the respondent's store at 279 Grote Street, Adelaide. His brief was to improve sales and profits at the store. He was aware that the furniture section had not attained its profit budget for the preceding financial year, and learned that the wages paid in respect of that section exceeded its budgeted amount. After investigation and consultation with each departmental manager, he revised the budgeted weekly hours allocated to each department, including the furniture department. That resulted in all employees other than full-time employees being notified in April 2000 that their hours were to be reduced from the week ending 14 May 2000. 15 In the case of Mr Griffiths, his monthly hours were to be reduced from 124 to 118. Under cl 1.2.14 of Part 4 of the FF Agreement, the respondent was entitled to reduce a part-time employee's normal hours by up to 20% in any year, provided four weeks notice of that reduction was given. The FF Agreement contained a grievance procedure in Part 3, including under cl 1.1.4 if necessary the referral of any dispute to the Australian Industrial Relations Commission (the AIRC). Under cl 1.2 of Part 3, in the event of a grievance, all work was to continue in accordance with the practices existing prior to the dispute until its resolution. 16 Mr Griffiths invoked the grievance procedure in respect of the proposed shortening of his hours. The informal resolution procedures were unsuccessful. The Union applied under s 170LW of the Act on behalf of Mr Griffiths to the AIRC to resolve the dispute. The respondent maintained Mr Griffiths' hours at 124 per month, as contemplated by cl 1.2 of Part 3 of the FF Agreement in those circumstances, but only until 30 July 2000. It then reduced his hours to 118 per month, in the face of that clause. The dispute had not, by then, been resolved. 17 On 9 January 2001, the AIRC gave its decision. It concluded that the respondent's reasons for reducing the hours of its part-time and casual employees was bona fide, and had been applied reasonably and without adverse discrimination to Mr Griffiths. It did not accept claims that his hours had been reduced because of his poor sales performance or because of any actions he had taken in relation to occupational health and safety issues. Because the respondent had not complied with cl 1.2 of Part 3 of the FF Agreement after 30 July 2000, it ordered that the respondent pay Mr Griffiths an amount representing the earnings he would have received if he had worked 124 hours per month until the first pay period after its decision. Otherwise, it dismissed the claims made on Mr Griffiths' behalf. It added at the end of its reasons: "As alluded to earlier, there are some issues arising from this dispute (or more particularly the evidence) that should be further considered by the parties. As a result of these proceedings, there does appear to be some contention as to the present assessment of the applicant's work performance and sales productivity. In these circumstances, it is important that the employer recognises Mr Griffiths' obvious commitment to the quality of customer service, and if issues of sales productivity do exist, such should be openly and constructively raised with Mr Griffiths." 18 In the meantime, Mr Griffiths' concerns about occupational health and safety issues appear to have emerged. On at least three occasions in about July or August 2000 the respondent required access to the roof cavity above the showroom. Some detritus from the roof cavity would fall as roof tiling was removed. Mr Griffiths was concerned about working in a defiled environment, due to airborne particles. He sought, and was given permission to leave his work area and to work in the warehouse. No other employees took that action. He was absent from the work area on two occasions for some five hours, even though the work in the roof cavity was of short duration. On a third occasion he was absent from his work area for about three hours, and refused to return despite the work in the roof cavity having been completed and the work area cleaned. He was still concerned about airborne detritus particles. The threat from Mr Culmsee of a written reprimand led to the involvement of the Union. The Union attended the respondent's premises the following day, and after consultation with the applicant and Mr Culmsee, Mr Griffiths returned to the furniture department. 19 Mr Culmsee clearly regarded Mr Griffiths concerns as without foundation. He said, and I accept, he had no concern about Mr Griffiths' absenting himself from his work area whilst work in the roof cavity was undertaken or until the area was cleaned. He regarded the prolonged absence from the work area after it was cleaned as unreasonable. 20 Mr Griffiths also took up other occupational health and safety issues. He was not an officer of the Union or its designated representative at the store. He did not have its prior authority to do so. His concerns, when conveyed, were addressed and generally were satisfied. Those matters included a concern about spillage from a water fountain which had been relocated, the location of live power cables, the temporary blockage of a fire escape exit by a sofa, a leakage from the roof, and the smell from recently painted areas. His complaint of being unwell from the paint fumes led to the respondent checking to ensure no adverse health effects would occur, and he was excused from working in that area until the paint fumes cleared. Mr Griffiths also had carefully read the FF Agreement, and was fastidious to ensure the provisions concerning work breaks and the like were properly implemented. 21 Mr Griffiths underwent his annual appraisal. The proceedings in the AIRC were still then on foot. The appraisal was conducted by his sales manager, but Mr Culmsee was present. The only area of concern was Mr Griffiths' sales performance. He had met only 62.5% of his sales budget, and his sales performance was rated as unsatisfactory. The appraiser noted that his sales performance had not improved, and he needed to free up his time from customer queries to create sales opportunities. It was proposed that he be reviewed on 8 December 2000, with the target by then of meeting 85% of budgeted sales. The review again did not take place at that time. 22 On 24 January 2001, following the decision of the AIRC, Mr Culmsee further discussed Mr Griffiths' sales performance with him. His sales level was only 40.8% of budget for the three months to December 2000, and was very considerably below that of any other sales person. The discussions centred on why Mr Griffiths' sales performance was so low, and what might be done to improve his sales performance. Mr Culmsee set a sales target of 70% of budget for the next four weeks, and fixed a further review date. Mr Culmsee told Mr Griffiths that, if he did not improve his sales figures, a formal written warning process would be implemented. Mr Culmsee completed a "Verbal Warning Record" at that time. 23 In January 2001 Mr Griffiths reached 66% of his sales budget, and in February 2001 he reached 57% of his sales budget. 24 On 28 February 2001 a further meeting between Mr Culmsee and Mr Griffiths took place. Representatives of the Union and of the Australian Retailers Association, South Australian Division (the ARA) were present. There was yet further discussion about what might be done for Mr Griffiths to improve his sales figures. Mr Culmsee stressed that he must improve his targeted sales figures, which were then fixed at 70% of his sales budget on a temporary basis. He told Mr Griffiths that the failure to meet that target would have an effect on his employment. On that occasion, Mr Culmsee completed a "Written Counselling Form". It was given to Mr Griffiths to sign, but he declined to do so. 25 A follow-up meeting took place on 29 March 2001, again in the presence of representatives of the Union and the ARA. Mr Griffiths had almost achieved sales at 70% of budget for the month. That sales budget was maintained, again on an interim basis, with a further review proposed in four weeks. 26 The next meeting took place on 1 May 2001, again in the presence of representatives of the Union and the ARA. In April 2001, Mr Griffiths had sales only to 39% of his budget. Mr Culmsee gave Mr Griffiths a "final written warning" about the failure to meet sales budgets. That document also was headed "Written Counselling Form" dated 1 May 2001, and fixed a review date of 23 May 2001. It recorded the "agreed actions" in the following terms: "Sean must achieve 70% of his sales budget over the next three weeks or provide a reasonable explanation. Failure to do so will result in termination of his employment." Mr Griffiths again declined to sign the document to acknowledge receipt of it. 27 On 23 May 2001, Mr Griffiths' employment was terminated. He had again not achieved 70% of his sales budget during that three week period. The termination of his employment took place in the presence of representatives of the Union and of the ARA. the issues 28 Mr Griffiths invokes s 170CK(2)(b). He alleges that his employment was terminated for the reason or for reasons which included the reason of his participation in trade union activities, with the respondent's consent, during working hours by: (a) causing or supporting the institution of the proceedings under the grievance procedure in the FF Agreement in the AIRC in May 2000 concerning the action taken by the respondent to reduce his working hours (the AIRC proceedings); and (b) undertaking a monitoring and reporting role to the respondent concerning issues of occupational health and safety, including in particular when roof tiling of the showroom was removed for maintenance or other purposes by seeking permission to leave the showroom floor and by not returning to the showroom floor following replacement of the roof tiling and cleaning of the area in the vicinity of where the roof tiling had been removed. 29 Mr Griffiths also invokes s 170CK(2)(e). He alleges that his employment was terminated for the reason or for reasons which included him causing or supporting and participating in the AIRC proceedings. Although the AIRC proceedings did not allege violation of any laws or regulations, it is contended in terms of s 170CK(2)(e) that it amounted to recourse to a competent administrative authority, namely the AIRC. The respondent accepts that Mr Griffiths' role in those proceedings amounted to him participating in them, even though the Union was the formal complainant. It also accepts that those proceedings amounted to "… recourse to competent administrative authorities". It further accepts that the expression at the end of s 170CK(2)(e) provides an independent and alternative element of the subsection. It is therefore not necessary to address the scope of operation of s 170CK(2)(e). But for the respondent's acknowledgments, the meaning of the term "competent administrative authorities" and whether the expression "recourse to competent administrative authorities" is an adjectival clause qualifying in some way an allegation of violation of laws or regulations or is an independent element of s 170CK(2)(e) would need to be addressed. The respondent accepts that s 170CK(2)(e) could apply to its termination of Mr Griffiths' employment by virtue of his role in the AIRC proceedings. The respondent contends simply that it did not terminate Mr Griffiths' employment for the reason, or for reasons which included the reason, that he participated in the AIRC proceedings. The respondent accepts that, in the face of s 170CQ, it bears the onus of proving on the balance of probabilities that its termination of Mr Griffiths' employment was not for that reason or was not for reasons which included that reason. 30 In the light of that acknowledgment, it is not necessary to consider whether Mr Griffiths' role in the AIRC proceedings amounted to "participation in trade union activities" within the meaning of that expression in s 170CK(2)(b). If one of the respondent's reasons for terminating Mr Griffiths' employment was his role in relation to the AIRC proceedings, it will have contravened s 170CK(2)(e). 31 In relation to s 170CK(2)(b), the question may arise as to whether Mr Griffiths' participation in occupational health and safety issues in the manner which he alleged (which is not really in dispute) amounts to "participation in trade union activities" with the respondent's consent. It is common ground that it occurred during working hours. 32 The respondent's case is that Mr Griffiths' employment was terminated solely because of his continual inability to achieve required sales targets. It asserts that neither his participation in occupational health and safety issues (assuming that amounts to participation in trade union activities) nor his participation in the AIRC proceedings had any bearing upon the decision to terminate his employment. It has a not insignificant burden of proof to discharge to make out that case. As counsel for Mr Griffiths pointed out, the timing of the termination of his employment is significant, particularly bearing in mind that he had been employed for some years by the respondent and he had consistently not achieved required sales targets over that period, and that the process ultimately leading to his termination commenced only on 24 January 2001 some two weeks after the decision in the AIRC proceedings. The respondent, for its part, asserts that the termination would have taken place earlier but for the AIRC proceedings, and advice received from the ARA and its solicitors to take no action to terminate his employment during the currency of those proceedings. 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. Associate: Dated: 9 May 2002 Counsel for the Applicant: Mr T Stanley Solicitor for the Applicant: Bourne Lawyers Counsel for the Respondent: Ms LA Olds Solicitor for the Respondent: Retail Law Date of Hearing: 18 January 2002 Date of Judgment: 10 May 2002