Industrial Relations Commission of New South Wales CITATION: Joyce v Allphones Business Pty Ltd [2006] NSWIRComm 1083 APPLICANT John Joyce PARTIES: RESPONDENT Allphones Business Pty Ltd FILE NUMBER(S): 6688 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissal application - written warning - performance issues - dismissal - respondents warning policy LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others (1995) 81 IR 46 HEARING DATES: 10/03/06 DATE OF JUDGMENT: 07/14/2006 APPLICANT Self represented (John Joyce) LEGAL REPRESENTATIVES: RESPONDENT James Mattson, solicitor DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 14 July 2006 Matter No IRC 6688 of 2005 John Joyce and Allphones Business Pty Ltd Application by John Joyce re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1083 1 The Commission has before it an application by John Joyce ("the Applicant") for unfair dismissal against Allphones Business Pty Ltd ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The unfair dismissal application was lodged on 20 December 2005 and was allocated to Commissioner Cambridge. 3 The matter was set down for Conciliation and Directions on 16 January 2006. At that proceeding, the Applicant was represented by his mother. The Applicant also attended. The Respondent was represented by Ms Homer. She advised Commissioner Cambridge that she came without instructions. She was not the person having carriage of the matter. The appropriate solicitor had just come back from annual leave today (16 January 2006) and seen the unfair dismissal application on his desk. He already had other commitments in place. 4 Cambridge C adjourned the proceeding to allow Ms Homer an opportunity to attempt to get instructions but to no avail. (The Applicant sought the maximum compensation.) The Commissioner programmed the matter in pursuant to Practice Direction 17. 5 At the Hearing, held on 10 March 2006, the Applicant represented himself. In attendance with him was a Mr M Gumm (support person). The Applicant called himself as a witness. The Respondent was represented by Mr James Mattson, solicitor, who called the following witness: · Mr Julian Ogrin - Managing Director BACKGROUND 6 The Applicant was employed on 1 June 2005 and dismissed on 1 December 2005. 7 The Respondent's business is telecommunications - providing telecommunication solutions for business. Those solutions include the supply and installation of office IP/PABX systems, other hardware and accessories, as well as strategies to reduce telecommunication costs. 8 The Applicant commenced employment as a Sales Executive and, as such, he was required to locate new business for the Respondent. 9 The Applicant deposed that he had been successful in obtaining new business and been up-titled to Business Development Manager. 10 Despite the foregoing success, the Applicant was provided with a First Warning on 31 October, for not, he said, reaching his sales target. 11 On 1 December 2005, the Applicant was called to a meeting with Ms Madeleine Azcona, Sales Manager, and Mr Ogrin, Managing Director. The Applicant was dismissed because he had not met sales targets for November, had not closed deals in his forecasts and had missed out on the HMAA transfer (Hotel Motel Accommodation Association). The Applicant deposed he had no knowledge of the purpose of this meeting; he did not have the opportunity to have a witness; and two other employees who had been given warnings on 31 October had not been terminated. FINAL SUBMISSIONS For the Applicant 12 The Applicant made the following points in final submissions: (a) He had been dismissed after one warning but the Respondent's policy stated that dismissal occurred after three warnings. (b) His termination was unfair given that other employees on warnings about their performance, had not been dismissed. (c) He had been denied procedural fairness in that he had not been told of the nature of the meeting at which he was dismissed. (d) The real reason for his dismissal was so the Respondent could avoid paying him commissions on sales achieved. For the Respondent 13 Mr Mattson, solicitor for the Respondent, put the following in final submissions: (a) The Applicant had been unable to achieve realistic sales targets. He had met the September 2005 sales target. (b) The Applicant had had brought to this attention, his sloppy paperwork. (c) Performance issues had been raised with him at the end of his 90 day probationary period. (d) The Applicant was later given a First Warning on 31 October about his performance. (e) On-going discussions/assistance had been provided to the Applicant, about improving his performance. (f) There was evidence that the Applicant was looking for work elsewhere in November 2005. Findings against the Applicant on his credit can be made, it was submitted, based on the Applicant's evidence about the looking for work elsewhere issue. In that regard, the Commission's attention was directed to certain email exhibits. (g) The Applicant was aware of the nature of the meeting of 1 December 2005, at which he was dismissed. He knew his employment was at risk and when told of the meeting, he began researching, on his computer, information about his rights as an employee. (h) The other employees who had been warned, did not have the problems with their work that the Applicant had, and therefore had not been dismissed. Applicant in Reply 14 The Applicant had nothing to submit in reply. CONSIDERATION 15 The Applicant was dismissed at a meeting held on 1 December 2005. Present at that meeting was the Applicant on the one hand and Mr Julian Ogrin, managing director and Madeleine Azcona, sales manager on the other. The Applicant was not provided with written reason(s) for the dismissal. Basically, the reason for dismissal was his performance. The Applicant contested that reason and, in particular, complained of the lack of procedural fairness by the Respondent against him: - he was not advised of the nature of the meeting arising out of which he was dismissed; and he was not given three warnings prior to dismissal. Reasons for Dismissal 16 Mr Ogrin gave the reasons for dismissal as follows: (a) The Applicant had been given a written warning on 31 October 2005; (b) The Applicant had messed up the HMAA deal which cost the Respondent money; (c) The Applicant's conduct with the Best Western deal had resulted in Optus giving an instruction to the Respondent for the Applicant not to communicate with Optus anymore; and (d) The Applicant's sales targets were below average. (Tr 84 - line 46 to Tr 85 - line 5) The Commission will now consider the evidence surrounding those reasons for dismissal. WRITTEN WARNING 17 The Applicant was employed on 1 June 2005 and provided with a First Warning on 31 October 2005 "for not meeting your sales KPI." The Sales KPI not met was a sales target of $25,000 gross per month. The letter stated that the Applicant had only achieved $6,500 for the month of October. The letter set out work requirements in order for the Applicant to avoid another warning. It also stated " that after 3 warnings, Allphones (the Respondent) has the right to terminate your services ." (Ex 12 - Annex C) 18 The Applicant did not deny in his evidence that he had not met the October sales target. THE HMAA DEAL 19 The Applicant initiated a business deal with the Hotel Motel Accommodation Association ("the HMAA"). 20 The Applicant deposed as to his initiative: " Within the 90 day trial (the Applicant's probationary period) I attained the HMAA (Hotel Motel Accommodation Association) Australia Wide 2500 members. First association Allphones (the Respondent) had ever gained (copy of email thanking my work attached)." (Ex 1 - para 2) 21 Julian Ogrin's witness statement confirms the Applicant's initiative but not the success of that initiative. 22 Mr Ogrin confirms that the Applicant had a role in the HMAA deal. (The HMAA is an industry body having about 2000 members, being hotels and motels.) Ogrin deposed that the Applicant commenced discussions with the HMAA to establish a relationship whereby the Respondent would become the HMAA's preferred supplier. The Respondent assigned the Applicant to manage the relationship with the HMAA. The Applicant's job title was changed to Business Development Manager to assist in the sales strategy but the job title change was not a promotion, said Ogrin. (Ex 12 - paras 12 to 18) 23 Although the Applicant had a role in attaining the HMAA deal, the evidence shows that the deal was restricted to four members (out of say, 2000) of the HMAA. (Ex 12 - para 17) By contrast, the Applicant's witness statement gives the impression that he attained 2500 members. (Ex 1 - para 2) 24 Be that as it may, something went wrong for the Applicant in his handling of this deal. Thus, the written warning letter of 31 October 2005 sets out certain requirements for the Applicant in order for him to avoid receiving another warning. One of these requirements is that he: " Hand over the Management of HMAA to the Sales Manager ." (Ex 12 - Annex C) The warning letter was written by the Sales Manager, Madeleine Azcona. 25 Concern with the Applicant's handling of the HMAA deal is explained in Julian Ogrin's witness statement. (Ex 12 - paras 43 to 53) Thus, the Applicant had been given responsibility to manage some work for the HMAA, which was relocating its office and required their telephone system to be transferred. This task was given to the Applicant. 26 The task required the Applicant completing some paperwork for HMAA and identifying their new address. He erred in this task and gave Optus the wrong address. As it takes Optus six weeks to three months to process a transfer of telephone system request, then HMAA was without landlines for a significant period. 27 Mr Ogrin deposed that the error put the alliance with HMAA at risk. Accordingly, the Respondent appeased HMAA's concerns by agreeing to cover their telecommunication costs - that is, mobile phone bills during the intervening period. As at the date of the witness statement (27 February 2006), the bill is around $4000 to $8000 if called upon. 28 The complaint from HMAA was received during the Applicant's holidays in November and raised with him upon his return by Mr Ogrin, who reminded the Applicant that his "sloppy" paperwork had been an issue raised with him before. 29 The Applicant's Right of Reply says of the foregoing: " Please provide evidence from Madeleine Azcona to back this up ." (Ex 2 - page 4) 30 The Commission is not assisted with this response. It is not a denial of Mr Ogrin's account of the HMAA error - in particular the claim of Mr Ogrin that the Respondent was liable for several thousand dollars because of the Applicant's "sloppy" paperwork. As well, the Applicant has not denied he was spoken to (by Mr Ogrin) about this financial error upon his return from annual leave. 31 During cross-examination, the Applicant agreed he had been spoken to by Ms Azcona about his sloppy paperwork. (Tr 31 - line 45 to 46) (Tr 34 - line 10 to Tr 35 - line 4) Ms Azcona had also emailed (Ex 3) the Applicant early on in his employment about his need to triple check his work so that she did not have to check his work. (Tr 36 - line 1 to 41) Summary of the HMAA Deal 32 The Commission finds that the claim of the Respondent that it is financially liable for the Applicant's paperwork error for the HMAA deal, has not been denied by the Applicant. Nor has the Applicant denied he was spoken to about this incident upon his return from holidays and in particular his "sloppy" paperwork being the cause. The Commission was also referred to other evidence supporting the Respondent's claim that the issue of the Applicant's "sloppy" paperwork had been raised with him on at least a few occasions, if not more. THE BEST WESTERN DEAL 33 Mr Ogrin gave evidence that another reason for the Applicant's dismissal was his conduct with the Best Western deal which had resulted in Optus giving an instruction to the Respondent for the Applicant not to communicate with Optus anymore. 34 Mr Ogrin deposed that in relation to negotiations with Best Western, the Applicant approached a senior executive of Optus (instead of his usual Optus contact), in order to obtain special rates for work to be done for Best Western on the basis that Best Western was ready to deal on 1,600 lines. That senior executive approved rates especially for the Applicant, within a couple of hours of the Applicant's call, but only to learn that there was no deal ready at that time. The senior executive complained to Mr Ogrin about this incident. Mr Ogrin spoke to the Applicant about this matter (as with the HMAA issue) upon his return from holidays. Mr Ogrin deposed he said to the Applicant: " I put you in charge and you have now lost the confidence of Optus. You need to pick up your game ." (Ex 12 - paras 49 to 52) 35 As for the HMAA matter, the Applicant's Right of Reply states for the Best Western matter: " Please provide evidence from Madeleine Azcona to back this up ." (Ex 2 - page 4) 36 As stated before, the Commission is not assisted by this response. It is not a denial of Mr Ogrin's account of the matter and of the post holiday conversation between himself and Mr Ogrin. 37 There was oral evidence about this deal. 38 Under cross-examination, the Applicant gave evidence about the deal. He said that there was a business opportunity for the Respondent with Best Western but only for ten sites. His evidence was that he only said that Best Western was "ready to deal" but only for ten sites - not for all Best Western. He denied he had exaggerated the business opportunity. He denied he had approached a senior executive from Optus. (Tr 53 to Tr 54 - line 24) 39 Under cross-examination, from the Applicant, Mr Ogrin agreed that an email had been received from a James Anderson stating that there were only ten sites. Mr Ogrin then returned to his claim that the Applicant, however, had told the Optus contact (Zoe Baker) that the entire Best Western line system (1600 to 2000 lines) was on the negotiating table. (Tr 89 - line 40 to Tr 90 - line 25) 40 The foregoing evidence about Mr Ogrin's claim that the Applicant had told Zoe Baker that the entire Best Western line system was on the negotiating table was disputed by the Applicant. Mr Ogrin's claim is based on what another person(s) has told him as to what the Applicant allegedly said to Zoe Baker, who was not called as a witness. Given that the Applicant denied he made that "entire system" statement to Zoe Baker, then the Commission finds that Mr Ogrin's allegation (one of the reasons for dismissal) has not been made out. The Commission's conclusion is supported by the evidence of Mr Ogrin who agreed that the email from James Anderson was about ten sites up for negotiations at Best Western as opposed to the "entire system" (1600 - 2000 lines). 41 Accordingly, the Commission finds that Mr Ogrin's claim that the Applicant overstated the extent of the Best Western deal has not been made out. 42 The Applicant was also cross-examined about Mr Ogrin's post holiday conversation claim - specifically the comment to the Applicant that he needed to pick up his game. 43 The Applicant denied that Mr Ogrin had made this comment to him personally - but only as part of a team of workers, as in: "Oh , come on guys, pick up your game ." The Applicant denied for a second time that Mr Ogrin had spoken to him, "one on one", post holidays, about lifting his game. 44 The Applicant then confirmed that there would have been a conversation between him and Mr Ogrin, post holidays. The Applicant confirmed that Mr Ogrin said, " in a manner of speaking ", the following: "I put you in charge and you have now lost the confidence of Optus." The Applicant confirmed that Mr Ogrin said to the Applicant: " You may have burnt your chances ." 45 As to whether Mr Ogrin said: "You need to pick up your game", the Applicant responded: " Not - not in so many words ." The Applicant stated that Mr Ogrin had said: " You need to start closing (deals) ." To the follow up question: " Did you interpret that as a need to really pick up your game ?", the Applicant replied: " Oh, yes ." (Tr 51 - line 41 to Tr 52) Summary of Best Western Deal 46 The Commission's view about that foregoing cross-examination, is that a concession was eventually made by the Applicant that he had been told to lift his game. Further, he had been told this in a post holiday conversation by Mr Ogrin who is the Managing Director for the Respondent. The Applicant was being told to lift his game, not by his immediate superior (Ms Azcona), but the Managing Director himself. Although it took some questioning for the Applicant to make the concession that he was, in effect, being told to lift his game, the Commission makes no adverse finding about the Applicant's character arising out of this questioning. The Commission also found that Mr Ogrin's claim that the Applicant overstated the extent of the Best Western deal, had not been made out. SALES TARGETS BELOW AVERAGE 47 Mr Ogrin deposed that the Applicant was set a sales target of $25,000 gross profit each month and that this was a realistic target. He said that the target was achieved by others and the Applicant had never said to him that the targets were a problem or unrealistic. (Ex 12 - para 11) 48 The Applicant's Right of Reply raises certain challenges about his sales targets but without saying that the sales target of $25,000 gross per month was unrealistic. He does however state that out of all the staff, only one (Matthew Mugridge) reached this $25,000 target. He also called upon the Respondent to produce evidence about which other staff member achieved the $25,000 sales target and when. (Ex 2 - page 2) 49 The cross-examination of the Applicant showed that he was not required to meet the $25,000 sales target for his probationary period (three months) but lesser monthly (but increasing by the month) amounts. (Tr 26 - line 4 to 14) The Applicant confirmed he met the sales target of $25,000 per month in September 2005. (Tr 29 - line 9 - 42) 50 When Mr Ogrin was in the witness box, he said that the Applicant was dismissed because he failed to meet targets in October and November 2005. Apart from the sales target ($25,000 gross per month), Mr Ogrin spoke of another target called the minimum gate threshold which is around $8,000 gross per month. (Tr 88 - line 28 to 34) 51 Asked by the Applicant as to why he had been fired but not the other two employees, Mr Ogrin responded that the other two employees had hit their minimum gate, which covers their retainer. (Tr 81 - line 43 to 49) Mr Ogrin said that the Applicant's sales target for November 2005 was "zero". (Tr 85 - line 51 to 58) Summary of Sales Targets 52 The Applicant stated in his Right of Reply that the Respondent should produce other evidence, of a comparative kind, when assessing the Applicant's sales performance. That evidence was provided by Mr Ogrin so that a comparison could be made between the Applicant and two other employees. 53 The comparison showed that the two other employees had been given a second warning for their sales performance. In that regard, the Applicant can have no complaint of being singled out for discriminatory conduct by the Respondent. Further, both of these employees had met their minimum gate, whereas the Applicant had not done so in November 2005, and, so again, the Applicant can not pursue the comparative argument to his advantage in respect of discriminatory conduct by the Respondent. 54 The Applicant did give a defence under cross-examination for not meeting his targets for those months. He said he had explained to Mr Ogrin that his workload (including the maintenance of the Waldorf and HMAA accounts) was huge. (Tr 64 - line 16 to 22) The Applicant had raised the same defence in his witness statement. (Ex 1 - paras 9 to 11) He pointed out that he was on annual leave for five days in the month of November and, as stated above, he said he had a huge workload. 55 Julian Ogrin's witness statement acknowledges the Applicant's defence to an extent only. He says: "The applicant had the time in November to at least make some sales." (Ex 12 - para 55) 56 Clearly the Applicant's defence carried no weight for the month of October, because the Applicant received his warning letter on 31 October and which letter warned him for not making his sales target. 57 For the Commission to give weight to the Applicant's defence, he needed to bring further evidence. For example, the evidence of another sales employee (not dismissed) who was not meeting target, because of a "huge workload", would be an example of the evidence that would allow the Commission to properly consider his above defence. Accordingly, the Commission is not able to give any weight to this defence by the Applicant. THE APPLICANT'S CASE 58 Apart from the overall consideration of the warning letter and reasons for dismissal above, the Applicant also put forward the claim that he had been dismissed in order for the Respondent to avoid paying commission on the Applicant's business successes. He also raised as an issue the lack of three warnings before being given his dismissal. ENTITLEMENT TO COMMISSION PAYMENTS The Applicant was paid some commission whilst in the employ of the Respondent, but he said he was to be paid commission over the next two years for his business successes and it was the Applicant's view that the commission was still payable even though he was no longer in the employ of the Respondent. (Ex 1- paras 1 to 8) 59 Mr Ogrin denied that the Applicant was terminated because the Respondent owed the Applicant, commissions. Mr Ogrin said the Applicant was terminated for performance reasons. (Ex 12 - para 60). Under cross-examination from the Applicant, Mr Ogrin again stated that commission was only payable whilst the Applicant was in the employ of the Respondent (Tr 86 - line 23 to 47) The Applicant did not challenge this response from Mr Ogrin. Summary of Claims for Outstanding Commissions 60 The Applicant asserted that he was entitled to on-going commissions from his business successes even though he was no longer in the employ of the Respondent. This assertion was denied by Mr Ogrin. Without further evidence from the Applicant to support his assertion, the Commission is not able to find that his claim for further on-going commission payments, is warranted - let alone that that was the real reason for his dismissal. THREE WARNINGS BEFORE DISMISSAL 61 The Applicant raised as an issue the lack of three warnings before being dismissed. 62 In that regard, the Applicant relied upon the First Warning which was in the form of a written warning. The letter concluded: "I just want to remind you that after 3 warnings, Allphones has the right to terminate your services." (Ex 12 - Annex C) 63 Under cross-examination from the Applicant, Mr Ogrin said he believed that three warnings had been issued. (Tr 78 - line 49 to 57) When challenged by the Applicant, he said: "There's not three warnings, no." (Tr 79 - line 1 to 19) Later, Mr Ogrin advised of the following warnings to the Applicant: (a) the written warning of 31 October; (b) the verbal warning that he instructed Ms Azcona to give to the Applicant over the HMAA incident; and (c) the final meeting at which the Applicant was terminated. (Tr 79 - line 28 to 38) Further on, Mr Ogrin said there were three warnings and which included two warnings from Ms Azcona. Mr Ogrin agreed that these two warnings were not documented. 64 The Applicant did not have it put to him that he had been given a second and a third warning. He was questioned about his performance as an employee and that he had been spoken to about that performance - for example, his "sloppy" work, the HMAA and the Best Western deals. Be that as it may, it was not put to him that he had been given a second and third warning. 65 Relevantly, he was asked: " Q. And you knew that your employment was at risk at that time? (1 December - the date of his dismissal) A. No. I did not understand that my employment was at risk. I understood that I more than likely would've been receiving maybe a second warning based on my sales for that month. " When the Applicant gave this answer, he was not challenged by having it put to him that he had already been given a second warning. Summary of Three Warnings 66 The Commission finds that there is only agreed evidence of one warning against the Applicant - the written warning of 31 October 2005. 67 Mr Ogrin said that he had instructed Ms Azcona to give a warning to the Applicant, whose evidence showed, by inference, that he had only been issued one warning only (the written warning). Ms Azcona was not called as a witness by the Respondent to support that Mr Ogrin's alleged instruction had been carried out. 68 It cannot be the case that the conversation in which the Applicant was dismissed, constituted a warning. 69 Having regard to the evidence on this point, the Commission finds that the Applicant was dismissed prior to three warnings being issued against him. CONCLUSION 70 The Applicant claimed in final submissions that: (a) He had been dismissed after one warning but the Respondent's policy stated that dismissal occurred after three warnings; (b) His termination was unfair given that other employees on warnings about their performance, had not been dismissed; (c) He had been denied procedural fairness in that he had not been told of the nature of the meeting, at which he was dismissed; and (d) The real reason for his dismissal was so the Respondent could avoid paying him commissions on sales achieved. 71 In respect of (b) above, the Commission finds that the Applicant has not shown that there was a differing treatment against him to that of other staff, in respect of sales targets. The evidence was that the other warned staff had reached their minimum gate threshold but the Applicant had not and that was why he was dismissed. 72 In respect of (d) above, the Commission finds that the Applicant has not proved that he was dismissed, so that the Respondent did not have to pay him further commissions on business achieved by him. 73 In respect of (c) above, the Commission finds that the Applicant was not advised beforehand as to the nature of the meeting held on 1 December 2005, at which he was dismissed. 74 In respect of (a) above, the parties agree that the Applicant was only given one written warning (the written warning of 31 October). 75 That written letter said: "that after 3 warnings, Allphones (the Respondent) has the right to terminate your services." The Applicant relies upon this extract to say that his dismissal was unfair - as he was dismissed after only one warning. 76 On one view of it, the Applicant is correct. That is, the Respondent gave a written undertaking that dismissal occurred after three warnings, but the Applicant was not given three warnings. The Applicant disputes that he was even given a second warning, let alone a third. 77 To the extent that Mr Ogrin said that Ms Azcona verbally warned the Applicant, the Commission cannot consider that claim, as it is only hearsay (and the Applicant disputed it anyway). Mr Ogrin had a conversation with the Applicant, post the Applicant's November 2005 holiday. This conversation was considered above by the Commission and is the conversation surrounding whether the Applicant had been told to lift his game. Even if this was classified as a warning, it would only represent the second warning. 78 In summary, and on one view of it, the Applicant is correct to say he was dismissed contrary to the Respondent's written directive of three warnings and thence dismissal. However, the Commission considers that that is a narrow, technical, view to take of the matter. For example, it cannot be the case that an employee could carry out an act against his/her employer that would warrant summary dismissal, but the employee claims he/she cannot be sacked because the employer's three warnings before dismissal policy, has not been exhausted. 79 Accordingly, the Commission takes the view that a broader approach is required in order to ascertain whether the employer has acted fairly, vis-a-vis its warning policy, but having regard to all of the relevant circumstances of this case. 80 The issue of first consideration is the purpose of an employer's warning policy. That purpose was expressed by the Full Commission of the New South Wales Industrial Commission as follows: " The purpose of warnings, includes the notion that an employee, having received a warning in terms, has an opportunity to improve his work performance, meet the work requirements of the employer, and preserve his employment ." ( Electricity Commission of New South Wales t/a Pacific Power v Niecass and Others (1995) 81 IR 46 at 67) The evidence showed that the Applicant was warned about his performance, in writing, at a meeting of 31 October 2005. The warning letter gave notice to the Applicant of three warnings and thence dismissal rather than dismissal at any time. 81 The Applicant was dismissed on 1 December 2005 - that is, about four and half weeks after his written warning. Putting aside the finding that the Applicant was only given one warning, the issue presently for the Commission is whether some four and a half weeks represents a period of time in which the Applicant can demonstrate an improvement in his performance? However, this question is not correctly stated and does not give the true situation for consideration. This is so, as the Applicant was away for one week of leave in November 2005. The Applicant's evidence about the dates for that holiday is not precise, but it would appear that he was absent around the third week in November 2005. (Tr 50 - line 36 to Tr 51 - line 8). 82 Accordingly, the relevant dates/events so far, are that he was given a written warning on 31 October; thereafter he had two weeks at work; followed by one week of leave; and one and a half weeks at work, at the end of which he was dismissed. The issue then for the Commission's consideration, is whether two weeks at work, followed by one week off work, followed by under two weeks at work, constituted a period of time, in which the Applicant could respond to the performance issues raised in the warning letter of 31 October 2005? This question is to be considered having regard to the purpose of an employer's warning policy. 83 The material before the Commission shows that there were performance issues about the Applicant. It is not the case that no issues arose but the Respondent decided to rid itself of the Applicant. 84 One issue relied upon for the dismissal was the Applicant's failure to meet his sales target for the month of November. Not only did the Applicant not meet his sales target, he did not make any sales. (Ex 12 - para 55). 85 The evidence shows that the Applicant only had three weeks at work in November. The Commission is prepared to accept that not working a full month can have a disruption on an employee's sales performance but does a one week (annual leave) disruption explain no sales whatsoever? 86 It seems to the Commission that the disruption can not so explain. This is so as, even when the Applicant was on deck for the whole month of October, he was warned for not making his sales target. 87 The Commission is also cognizant on this point, that the Applicant raised the defence that he had too much workload on his plate and this explained his not meeting his target for November. As already discussed above (paras 54 to 56) by the Commission, that defence was not accepted by the Respondent when the Applicant failed to meet his target for October. It is obviously, then, not an acceptable defence for the Respondent for the three weeks in November. The Commission also commented above (para 57) that the Applicant did not bring further evidence in support of this particular defence in order for the Commission to give weight to it. 88 The evidence in summary shows that the Applicant did not make his sales target in October and, despite a warning, made no sales whatsoever, in November. If the Applicant had made some sales in November, then the Commission could then assess those sales against the benchmark that the Applicant had heeded his 31 October written warning and was lifting his game. 89 Subsequent to the 31 October warning, two other issues of concern were raised about the Applicant's performance. Mr Ogrin said he raised these two concerns with the Applicant upon the latter's return from the one week holiday. 90 One issue was the HMAA deal. The Commission addressed this issue above (paras 19 to 32). This issue concerned the Applicant making out paperwork about the HMAA deal but giving the wrong address for the installation of telephone land lines. The consequence to the Respondent is, if called upon by the HMAA, to pay for mobile phone usage by the HMAA personnel. The potential cost to the Respondent is around $4,000 to $8,000 as at 27 February 2006. The other consequence to the Respondent is the complaint received from its client. As well, the Applicant's error had the potential to put the deal with HMAA at risk. (Ex 12 - para 47). 91 The other performance issue raised with the Applicant, subsequent to the 31 October warning, is the Best Western deal. The Commission addressed this issue above (paras 33 to 46). The Commission found as to this performance issue, that the claim of Mr Ogrin that the Applicant had overstated the extent of the Best Western deal had not been made out. Accordingly, the Commission can not take this post 31 October issue into its consideration. 92 When Mr Ogrin personally spoke to the Applicant, post the one week holiday, Mr Ogrin spoke with seriousness about the above two deals. The Applicant eventually conceded under cross-examination, that Mr Ogrin had told the Applicant, in so many words, to pick up his game (paras 42 to 46). The Commission also noted that this serious message was being delivered, not by the Applicant's supervisor, but by the Chief Executive Officer himself (Mr Ogrin). About one week later, the Applicant was dismissed. 93 During the proceedings, other evidence was adduced about the Applicant's conduct, post 31 October, and which has relevance to the Commission's deliberations. 94 Evidence was adduced about the Applicant's attitude to his work, post 31 October. Thus, the Applicant advised that he made an approach, on 21 November, to a Mark Preston about being " considered for this position " (Regional Sales job in New Zealand)". The approach was made by email (Ex 9) and this is the job the Applicant gained post his dismissal. His mother resides in New Zealand and his mother's birthday was his destination for his one week of leave in November. 95 For the record, there is no evidence that the Applicant was successful in obtaining this job prior to his dismissal. But he said he "was very interested in the offer" and the New Zealand company offered to pay half of the airline ticket for his attendance at an interview. (Tr 68 - line 1 to Tr 69 - line 48) 96 In another email (Ex 11), the Applicant expresses his view about the Respondent. He refers to two job offers and their very good packages but says he does not "want to walk away from the easy comms (commissions) that will come through F##k I hate these fockers". 97 For the Commission, this additional evidence sends conflicting messages. On the one hand, the Applicant is very interested in one or two other job prospects but on the other hand, has his eyes set on staying with the Respondent so that he can make easy commissions on sales that he believes is due to his efforts. He did confirm that he would leave on this basis: "If there was a better offer I would. Of course I would." It is safe to say that the evidence showed that the Applicant was not totally committed to staying with the Respondent post 31 October. Summary 98 The Commission has considered the material that went to the Applicant's performance post the 31 October written warning. The evidence showed that the Applicant had no sales whatsoever in the three and a half weeks between the written warning and the date of dismissal. If the Applicant had made some sales in that time, then the Commission would be in a position to assess those sales against the benchmark that the Applicant had heeded his written warning. 99 On top of that, there was the other performance issue raised with the Applicant post the 31 October written warning. This was his clerical error of inserting the wrong address for the HMAA and the consequent potential cost of paying for mobile phone usage by HMAA personnel. The Respondent stated that the Applicant's error had the potential to put the deal with the HMAA at risk. 100 Given these two issues which go to the Applicant's performance, post 31 October, and a consideration of the Applicant's performance issues in the short time he was there, the Commission declines to intervene in the decision of the Respondent in dismissing the Applicant on performance grounds. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.