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Major furniture retailer Nick Scali was ordered to pay a former employee over $45,000 for unfairly firing him in the days after he returned from visiting his hospitalised daughter in England.
The Fair Work Commission found Nick Scali’s termination of a state regional manager weeks before Christmas last year was “harsh, unjust and unreasonable, and therefore unfair” because its decision to do so lacked both evidence and a valid reason.
The employee worked with Nick Scali between November 2018 and December 2023, and in that time, was promoted to showroom manager at the Fyshwick store in Canberra – a “platinum” level showroom – and state regional manager of east and south NSW.
During his termination, the employee was found to have been unfairly accused of poor communication, a failure to be a “role model” to staff, and not following protocols around the time-management system to record the hours worked, known as HumanForce.
It was put to the employee during cross-examination he had two phone calls in January and June 2023 with the group head of retail operations and his manager, Alan Gould, about returning phone calls more “promptly”, but the employee could not recall them.
Fair Work Commission deputy president Lyndall Dean said that even if the calls did take place, it was not “sufficiently serious” to warrant dismissal.
The employee was also questioned about occasions he left the Fyshwick showroom “without telling anyone”, but the employee said he only left two times without letting the assistant manager know because he needed to recruit someone else.
Dean accepted this and found the manager “either knew or ought to have known” that the employee would need to leave for this task.
Nick Scali also made “significant” mention of the fact the employee often visited other showrooms he was responsible for, but Dean said it would have been “difficult” for the employee to properly carry out management duties without visiting these showrooms.
In August 2023, the employee was promoted to state regional manager, and this included an express condition his role would come into effect after his role at the Fyshwick store was replaced.
Gould gave evidence the promotion was offered “despite concerns” about the employee’s communication and leadership skills, “but he felt there was no option but to promote him”.
Dean dismissed this, finding that any performance issues raised with the employee prior to this promotion “were not serious matters” because he would not have been promoted if they were.
At the end of last November, the employee said he left for England on “very short notice” because his daughter was hospitalised.
Although he said he was due to return on the morning of 11 December, the employee misread the flight times due to the stress of his daughter’s condition and arrived that night instead.
Given that he also missed the last Sydney to Canberra bus that day, the employee informed Nick Scali he would return on 13 December.
The secretary of Nick Scali’s CEO told the employee he was not to return to work until he had spoken to Gould, and a meeting was arranged back in Sydney on 13 December.
During the meeting, Gould told him he allegedly “had not properly dealt with some issues” before he left for England, which left the staff unnecessarily confused and required “head office” to step in.
The employee denied the allegations.
Due to the alleged performance issues, Gould told the employee his contract for state regional manager had been withdrawn.
However, a replacement for the Fyshwick store had been hired the week before, so the employee’s contract was in place.
After the meeting, Gould called the Fyshwick assistant showroom manager and claimed to have been told the employee allegedly left the store early three to four times a week.
Gould said records on HumanForce confirmed “irregularities”.
On 15 December, the employee was fired over a 15-minute call.
He told the commission he was not given “sufficient details”, including the dates he was alleged to have left early and that the allegations made against him were “nonsense”.
Dean said the way HumanForce worked meant any discrepancies in timesheets or failures to sign off were reviewed by Gould or another senior manager who would have accepted it at the time.
Dean did not accept that the employee’s start or finish times were only discovered immediately prior to his termination.
“Having considered the evidence … I am satisfied that there was no valid reason for the [employee’s] dismissal,” Dean said.
“I am not satisfied the matters relied on by the respondent were sufficiently serious as to warrant his dismissal absent a warning.”
