| [2014] FWCFB 5835 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 22 AUGUST 2014 |
Unfair dismissal appeal - s.400 Fair Work Act 2009 (Cth) - valid reason - performance - fair hearing - permission to appeal refused.
Introduction
[1] Mr Boris Jurisic (the appellant) was terminated from his employment with ABB Australia Pty Ltd (ABB or the respondent) on 28 October 2013 and his subsequent application for an unfair dismissal remedy was dismissed by Commissioner Cloghan on 1 May 2014. The Commissioner published reasons for that decision on 25 July 2014. This decision deals with Mr Jurisic’s appeal from the Commissioner’s decision.
[2] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 1 There is no right to appeal, rather an appeal may only be made with the permission of the Commission. Subsections 604(1) and (2) of the Act deal with the scope of an appeal and permission to appeal:
“(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.”
[3] More stringent requirements apply to the grant of permission to appeal in relation to appeals concerning applications for an unfair dismissal remedy. In respect of such appeals, s.400 of the Act provides:
(1) Despite subsection 604(2), FWC must not grant permission to appeal from a decision made by FWA under this Part unless FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[4] Subsection 400(1) manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally (compare s.604(2) and s.400). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Gowdroy JJ agreed) characterised the test under s.400(1) as ‘a stringent one’. 2 Subsection 400(2) operates as a jurisdictional bar in relation to appeals on questions of fact. Such appeals may only be made on the ground that the decision at first instance involved a ‘significant error of fact’.
[5] The appellant represented himself and Ms Aistrope a solicitor was granted leave to appear on behalf of the respondent on grounds identified pursuant to s.596 of the Act contained in the respondent’s Notice to Seek Permission for Legal Representation. It is convenient to deal first with the circumstances surrounding the termination of the appellant’s employment and the Commissioner’s decision, before turning to the grounds advanced on appeal.
The Facts
[6] The appellant commenced employment with ABB on 14 March 2011 as a ‘Solutions Manager’ in Western Australia for the Low Voltage Products (LVP) business unit. In essence the appellant was engaged in a technical sales role selling the respondent’s products. The appellant worked in a team of 5-6 sales representatives in the LVP sales unit in Western Australia under the supervision of the WA State Sales Manager for LVP Products, Mr Manjit (Matt) Saini. Mr Saini reported to Mr Mikks Makarainen. Each sales representative in the LVP sales team had a dollar budget of sales required for the financial year and also had a customer list or portfolio from which they were to achieve those sales. In addition to the dollar budget, there was also a corresponding activity target based on quotations entered into ABB’s computer system. Each employee had a key performance indicator (KPI) of the dollar value of quotations they had to have in the system. In other words of all quotes provided to potential customers on average 1 out of every 4 was successful so if a sales representative’s budget was $1 million per annum, over the year you would need to put $4 million of quotations in the pipeline to meet that budget. These KPIs were assessed monthly to see how each employee was performing.
[7] Mr Saini set the individual budgets and portfolios for his team, including the appellant’s. The target set for each team member was based on the potential within their customer portfolio (including projected earnings from existing customers and growth potential from target customers).
[8] Mr Saini met with the appellant on 21 February 2013. Mr Saini was concerned that the appellant was falling behind in his sales targets and failing to engage in the activities required to achieve his budget. In May 2013, Mr Saini and Mr Makarainen met with the appellant and made it clear that he was not undertaking the level of activity required to achieve the growth needed to meet his targets.
[9] On 11 June 2013, Mr Saini met with the appellant and placed him on a formal performance improvement plan. The documents setting out the respondent’s expectation were signed by the appellant. Mr Saini held regular review meetings with the appellant, usually weekly, for the duration of the performance management plan.
[10] On 15 June 2013 the appellant was given a first written warning. 3 The letter states that the appellant had failed to meet budget for the previous six months and set out what was expected of him during the following four weeks. The letter concluded in the following terms:
“This is your first written warning, and I expect to see a marked improvement in the areas outlined above...
Failure to make the necessary improvements may place your employment in jeopardy.”
[11] The performance management process continued. On 18 September 2013 the appellant was given a second and final written warning. 4 The letter states that the appellant had failed to meet budget in the previous 8.5 months and referred to his lack of progress. The letter sets out what the appellant was expected to achieve during the next four weeks and noted that failure to make the necessary improvements may place his employment in jeopardy.
[12] On 22 October 2013, Mr Saini, and the respondent’s Human Resources Business Partner, Ms Stacey, met with the appellant and expressed their concerns at the lack of improvement in his performance. The appellant was provided with a letter requesting a response as to why his employment should not be terminated. 5 A copy of this letter is set out at Attachment 1 to this decision.
[13] The appellant corresponded with Ms Stacey over the period 23 to 27 October 2013 and meetings were held with the appellant and Mr Saini on 23 and 24 October 2013 to clarify the appellant’s responses. On 28 October 2013, a further meeting was held between the appellant, Mr Saini and Ms Stacey at which the appellant was advised that his employment had been terminated. 6 The letter terminating the appellant’s employment is set out in Attachment 2 to this decision. The termination letter was read out to the appellant during the meeting and the appellant recalled being told that his employment was being terminated due to his performance and lack of engagement in the process to improve his performance.7
The Decision at First Instance
[14] Section 385 of the Act provides that a person has been ‘unfairly dismissed’ if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[15] In the context of this matter it is common ground that the appellant had been dismissed; the respondent was not covered by the Small Business Fair Dismissal Code; and that no party contended that the dismissal was a genuine redundancy. The issue in contention was whether the dismissal was harsh, unjust or unreasonable.
[16] In determining whether a dismissal was harsh, unjust or unreasonable s.387 of the Act requires the Commission to take into account each of the matters in s.387(a) to (g), as well as any relevant matter within the scope of s.387(h). Section 387 states:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[17] The words ‘must take into account’ signify that each of the matters mentioned must be treated as a matter of significance in the decision making process. As a consequence of this construction of s.387 the Commission is obliged to make a finding in respect of each of the matters specified in s.387(a) to (g), in so far as each matter is relevant to the factual circumstances in a particular case.
[18] The central issue for determination in the proceedings before the Commissioner was whether there was a valid reason for the termination of Mr Jurisic’s employment. The Commissioner considered the evidence and concluded that the respondent had a sound and defensible reason to dismiss Mr Jurisic. The appellant challenges this finding and we deal with that ground of appeal later.
[19] The Commissioner went on to find that the appellant had been notified of the reason for his dismissal 8; was given an opportunity to respond to the performance and conduct issues relevant to his dismissal9 and had been warned about his unsatisfactory performance before his dismissal.10 The Commissioner was also satisfied that the respondent had not refused to allow the appellant to have a support person present to assist at any discussions relating to his dismissal.11 The matters in ss.387(f) and (g) were not relevant in the circumstances and the Commissioner did not identify any ‘other matters’ to which he had regard pursuant to s.387(h). On the basis of the above findings the Commissioner dismissed the application and made an order in those terms.
[20] We now turn to the appellant’s grounds of appeal.
The Appeal
[21] As the appellant was self represented the Commission assisted him in understanding the appeal process and adopted a flexible approach to compliance with the Commission’s rules. The appellant was provided with a copy of the Commission’s Appeal Proceedings Practice Note and his attention was drawn to the need to identify an error in the decision subject to appeal and to persuade us that permission to appeal should be granted on the basis that it was in the public interest to do so. The Commission also prepared an appeal book for the assistance of the parties.
[22] It is difficult to distil the grounds of appeal from the material filed by the appellant. We were assisted in this regard by the respondent who filed a written submission which sought to convert the appellant’s submission into a number of discrete grounds of appeal. We adjourned the proceedings to provide the appellant with a further opportunity to read the respondent’s submissions and to consider whether the respondent had correctly characterised the grounds of appeal. On resumption the appellant confirmed that the respondent had accurately set out some of his grounds of appeal, but that there were additional grounds. The appellant then elaborated on the additional grounds.
[23] We now turn to consider the grounds of appeal as best we can ascertain from the appellant’s written and oral submissions..
Ground 1: Denied a fair hearing
[24] The appellant submits that he did not get a fair hearing because he was only provided with the respondent’s witness statements the day before the hearing. In considering this submission it is important to have regard to the relevant context.
[25] Directions requiring the filing of various materials, including witness statements and a statement of asserted facts, were issued on 31 January 2014. The appellant was directed to file his material by 10 March 2014 and the respondent was to file its material in reply by 31 March 2014. No material was filed by the appellant by the specified date. The Commissioner’s associate emailed the appellant on 12 March 2014 inquiring as to why he had not complied with the directions. The appellant responded the same day setting out a ‘statement of facts summary’, as follows:
Statement of Facts Summary
“1. At the end of May 2013 I received worst performing portfolio in Western Australia (WA) in terms of sale vs budget key performance indicator (KPI).
2. After September the portfolio was not worst performing in WA in terms of KPI.
3. Over 5 (June to October) months I have improved sale vs budget KPI, while the rest of the team deteriorated the KPI.
4. Employer sacked me for underperformance despite being the only team member to improve KPI over the period.
5. The state trend over the period was that of contraction.
6. The state trend in 2012 was also that of contraction.
7. I was only WA’s team member to go against the state performance trend and exceed KPI target in 2012.”
[26] On 14 March 2014 the Commissioner’s associate sent a further email to the appellant, as follows:
“The Commissioner advises that he was not seeking your ‘summary’ but a ‘Statement of Facts’
Secondly, you have not provided a witness statement as required for in compliance with paragraph [2] of the Directions.
You have until 4:00pm 17 March 2014 to comply with the directions in paragraph [2].”
[27] There were further email exchanges with the appellant, but no witness statements or other documents were filed by the specified date and on 26 March the respondent sought to have the application dismissed pursuant to s.399A of the Act. On 9 April the Commissioner’s associate sent an email to the appellant inviting him to file a submission by 4pm 14 April 2014 as to why he should not dismiss his application pursuant to s.587(2)(b) of the Act (i.e. on the basis that it had no reasonable prospects of success). In the alternative the appellant was given until 4pm on 14 April 2014 to fully comply with the directions issued on 31 January 2014.
[28] On 11 April 2014 the appellant provided a response to the Commissioner’s associate and on 14 April 2014 the parties were advised that in view of the delay the original directions were varied such that the respondent had until 4pm on Tuesday 29 April 2014 to file its material. On 29 April 2014 the respondent filed and served its witness statements and outline of submissions.
[29] It is evident from the foregoing that on two separate occasions the Commissioner amended the original directions of 31 January 2014 to extend the time within which the appellant was to file his material. Despite the additional time provided the appellant did not fully comply with the Commission’s directions. As a consequence of the delay occasioned by the appellant’s non-compliance the time specified for the respondent to file its material was extended to 4pm Tuesday 29 April 2014. The respondent’s material was filed late on 29 April 2014 the matter was heard on 1 May 2014.
[30] It is also relevant that the Commissioner provided some assistance to the appellant during the course of the hearing at first instance.
[31] At the commencement of the hearing the Commissioner outlined the procedure that would be followed 12 and upon being told that the appellant did not intend to call any evidence in support of his application the Commission informed the appellant that ‘oral or documentary evidence carries far greater weight than just submissions’.13 The Commissioner then allowed the appellant to give oral evidence despite the fact that the appellant had not filed a witness statement in accordance with the Commission’s directions and had previously indicated, on two separate occasions, that he did not intend to give evidence in the proceedings.14 The Commissioner also informed the appellant that he would have the opportunity to cross-examine the respondent’s witnesses15 and that if the employer’s evidence was not challenged it would be accepted16.
[32] In the course of the appellant’s examination in chief the Commissioner asked him some questions pertaining to the witness statements filed by the respondent. The relevant parts of the transcript are as follows:
“The Commissioner: Mr Jurisic, you received copies of the witness statements that the employer intends to bring as evidence. You have received copies of those?---
Mr Jurisic: Yes, I have received them yesterday.
The Commissioner: Have you read them?---
Mr Jurisic: Very quickly I did go through them.
The Commissioner: Is there anything you want to say in relating to any particular parts of those witness statements?---
Mr Jurisic: I wouldn't be able to really remember any specific details.
The Commissioner: Mr Jurisic, I have to say to you if those witness statements are not contested, then I take that as evidence that's the truth?---
Mr Jurisic: Okay. Well, definitely there is quite a few inaccuracies that I have seen as part of their statements, but I wouldn’t be able to recall exactly which parts or whereabouts correct. I will have to basically go through it and identify and say this part, I disagree with that part. I did see, I did notice a few inaccuracies.
The Commissioner: Mr Jurisic, it seems to me you haven't prepared yourself very well for these proceedings, have you?---
Mr Jurisic: I prepared the best I could. I spent a lot of time preparing for the proceedings. I spent a lot of time on this matter, probably more than I should have. This is my first time at the hearing, so in terms of my inexperience, most like I am spending a whole lot of time on activities that are not work time. What I could do, I could go through the witness statements and quickly scan through it and find things that I had, that I'm questioning, that I feel aren't correct. But I wouldn't be able to remember everything that the other party has said. I was just given the copies yesterday and I was - - -
The Commissioner: Well, Mr Jurisic, if you have complied with the procedural directions I had to extend time and time again for you to provide material and get some clarification. The reason why they were only provided recently is simply because we couldn't get answers from you?---
Mr Jurisic: I apologise for that.
The Commissioner: You get your laptop and I am going to give you the opportunity of going through the witness statements and I will give you the opportunity of pointing out, but you should have done this before arriving here. This is not something that you just do on the run. It's your case. You should have been better prepared for this. Permission for you to leave the witness box and get your laptop.
Ms Aistrope: If it's of assistance, Commissioner?
The Commissioner: Ms Aistrope.
Ms Aistrope: I have folders prepared, including the statements and materials that we filed. I am not sure whether that might make this process somewhat more efficient.
The Commissioner: It might be, yes.” 17
[33] It is apparent from the above exchange that the appellant had read the witness statements filed by the respondent and had identified ‘quite a few inaccuracies in the statements’. The appellant had an electronic version of the respondent’s witness statements on his laptop. The respondent’s representative provided the appellant with a folder containing hard copies of the respondent’s witness statements. While the proceedings were not formally adjourned it is apparent that the Commissioner provided the appellant with some time to go through the respondent’s statements to identify the matters he wished to challenge. 18 At no stage did the appellant seek an adjournment or more time to go through the respondent’s material.
[34] In addition, it is also important to note that the respondent’s representative took the appellant to a number of the critical aspects of the respondent’s evidence during the course of cross-examination. In particular:
[35] Against the context set out above we now turn to consider whether there is any substance to the appellant’s contention that he was not given a fair hearing.
[36] Commission Members are bound to act ‘judicially’ in the sense that they are obliged to accord parties procedural fairness. 40 In essence, a Member has a responsibility to provide a fair hearing, to both parties. In Rajski v Seitec Corporation41 Samuels JA set out the general approach to be taken in proceedings involving an unrepresented party:
‘‘. . . the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.’’ 42
[37] What must be done to assist an unrepresented party depends on the nature of the case and the party’s intelligence and understanding of the case. 43 While the appellant was unfamiliar with the Commission’s processes he is tertiary educated, with qualifications in science and business, and has been a lecturer in the TAFE system. It is also relevant to observe that the assistance which can be provided is necessarily limited by the need to balance the interests of litigants who represent themselves with the provision of procedural fairness to other parties.44
[38] After reviewing all of the material we are satisfied that the appellant received a fair hearing in the proceedings at first instance. The Commissioner explained how the proceedings would be conducted and informed the appellant of the weight to be accorded to evidence as opposed to submissions and the need to cross-examine the respondent’s witnesses. The appellant was given a significant amount of latitude in the presentation of his case, particularly given his failure to comply with the Commission’s directions about the filing of relevant material.
[39] As to the opportunity to review the respondent’s evidence, we are not persuaded that the appellant was unfairly treated, having regard to the following matters:
[40] We are not persuaded that there is any substance in this ground of appeal.
Ground 2: No valid reason
[41] The appellant submits that the Commissioner erred in finding that there was a valid reason for the termination of his employment. In support of this submission the appellant alleges that the Commissioner made a number of factual errors in his consideration of this issue. It is convenient to deal first with the alleged factual errors.
[42] Before turning to the particular factual errors alleged by the appellant two matters are relevant to our general consideration of these issues. The first is that the Commissioner clearly formed an unfavourable view of the appellant’s evidence, for example:
“[53] When cross examined on these meetings, Mr Jurisic’s answers were either irrelevant, avoided the question or had a lack of recollection ...
[71] Having observed Mr Jurisic, I also noted generally his inability to provide a simple straightforward answer to a question. Mr Jurisic spent an inordinately long time in answering questions in cross examination. Consistently, he provided answers which attempted to distract, confuse or simply agitate an issue whether relevant or otherwise ...” 45
[43] A review of the transcript of the proceedings at first instance supports the Commissioner’s assessment. On at least 10 occasions the appellant had difficulty recollecting significant events. 46
[44] The second general observation is that despite being informed of the importance of cross examining the respondent’s witnesses, the appellant failed to challenge substantial parts of the respondent’s evidence. As the Commissioner observed in his decision:
“[66] The applicant chose how to run his case. Mr Jurisic chose not to cross examine Mr Saini on critical and relevant reasons for his dismissal ...
[67] Ms Stacey gave evidence concerning her involvement in Mr Jurisic’s dismissal. Similar to Mr Saini, Mr Jurisic did not cross-examine Ms Stacey on those matters which were relevant to his dismissal ...
[69] Ms Stacey’s evidence remained intact and I find accordingly.” 47
[45] We now turn to the particular factual errors alleged by the appellant which are said to relate to the Commissioner’s finding that a valid reason for the dismissal exists.
[46] At paragraph [24] of the decision the Commissioner says:
“[24] On 22 October 2013, Mr Saini and Ms Stacey met with Mr Jurisic and requested a formal response to the Employer’s concerns regarding the Applicant’s workplace performance/behaviour in the following areas:
[47] The appellant submits that the Commissioner erred in his reference to the coaching and assistance provided and further that he erred in having regard to Mr Saini’s evidence in respect of the training provided to the appellant. The appellant submitted that he was provided with less training during the performance management process than he had received previously.
[48] There is no substance to this point. Paragraph [24] of the Commissioner’s decision simply sets out the content of Mr Saini’s letter to the appellant of 22 October 2014 49, the Commissioner makes no findings of fact in relation to the provision of training or on any other matter. Nor does the Commissioner make any reference to Mr Saini’s evidence regarding the provision of training to the appellant.
[49] In any event this matter was not raised by the appellant in the proceedings at first instance. An appeal is not the occasion on which to present the case which should have been put at first instance but was not.
[50] At paragraph [38] of his decision the Commissioner finds that the appellant was dismissed ‘at the end of an 8 month informal and formal review of his performance’. The appellant submits that the informal and formal review of his performance took place over a 32 month period.
[51] The appellant was on a formal performance improvement plan from 11 June 2013 until his dismissal on 28 October 2013 (some 4½ months) and his performance was ‘informally’ subject to review from 21 February 2013 to 11 June 2013 (just under 4 months). On this basis the Commissioner was correct to observe that the informal and formal review of the appellant’s performance took place over an 8 month period.
[52] The appellant did not refer to any evidence in support of his assertion that the review of his performance took place over a 32 month period. But even if the appellant was correct it is difficult to see how such an ‘error’ would assist the appellant. Rather it would show that he had a longer period in which to address his performance issues.
[53] We are not persuaded that the Commissioner made the error asserted by the appellant.
[54] At paragraph [46] of his decision the Commissioner states:
“Mr Jurisic’s yearly target and sales initially increased by $468,000 from the previous year. Excluding Ms Saini and a new sales person, of the remaining four (4) sales persons, Mr Jurisic had the second least sales target increase in dollar terms.” 50
[55] The appellant submits that his sales target was initially increased by $895,000 (from $725,000 to $1,620,000) and that he did not have the second least sales target in dollar terms.
[56] The Commissioner’s findings at paragraph 46 are derived from a table in Mr Saini’s witness statement (Exhibit R7 at paragraph 12). This aspect of Mr Saini’s evidence was not challenged during cross-examination. The appellant was taken to this table during cross-examination and did not challenge its contents other than to criticise the methodology underpinning the setting of the 2013 budget because it ‘discriminates against high performance of the previous year’. 51
[57] We are satisfied that it was reasonably open to the Commissioner to make the finding he did at paragraph [46] of the decision. The Commissioner’s finding does not constitute a significant error of fact.
[58] At paragraph [52] of his decision the Commissioner states:
“Following the 21 February 2013 meeting, Mr Saini monitored Mr Jurisic’s performance against the assessment criteria of pipeline quotations, customer phone contact, customer visits and actual sales. The monitoring occurred during weekly meetings that Mr Saini had with all sales persons.” 52
[59] The appellant submits that ‘regular weekly meetings did not occur after 21 February 2013, only monthly meetings to forecast revenue’.
[60] Mr Saini’s evidence is that throughout March 2013 he continued to monitor the appellant’s performance ‘via the weekly meetings that I have with each team member’. 53 The appellant was placed on a performance improvement plan on 11 June 2013, that plan envisaged weekly meetings between Mr Saini and the appellant. In his witness statement Mr Saini says:
“From that point on, in most cases I met with Boris each week to go through his activity plan and the spreadsheets setting out his quotations and how he was tracking.”
[61] When cross-examined about his meetings with Mr Saini after February 2013 the appellant said ‘I’m not sure how frequent they were’. 54
[62] At paragraph [53] of his decision the Commissioner deals with the conflict in the evidence regarding meeting frequency:
“When cross examined on these meetings, Mr Jurisic’s answers were either irrelevant, avoided the question or had a lack of recollection. I prefer Mr Saini’s evidence of the weekly meetings.” 55
[63] We are satisfied that it was reasonably open to the Commissioner to prefer Mr Saini’s evidence and to make the finding he did at paragraph 52 of the decision. The Commissioner’s finding does not constitute a significant error of fact.
[64] At paragraph [56] of the decision the Commissioner states:
“In May, the Applicant was a long way off his performance target. For the month of May, Mr Jurisic had a target sales of $153,00) and had actual sales of $30,000. Mr Jurisic’s ‘Year to Date’ (YTD) target was $767,000 and he had achieved $303,000 actual sales.” 56
[65] The appellant submits that his actual sales for May were $70,000 and that $40,000 of those sales was reallocated to another salesperson as a result of customer reallocation.
[66] Even if the appellant is correct, it would not constitute a significant error of fact. The essential proposition in paragraph 56 of the Commissioner’s decision is that as at May 2013 the appellant was ‘a long way off’ his sales performance target. The Commissioner’s finding is that regard is supported by the appellant’s evidence in the proceedings at first instance,:
“Ms Aistrope: So this is from May. At May and into June you are still not meeting your targets. You are a long way behind what your target was?---
Mr Jurisic: Basically what happens with this reallocation of customers, the customer that I have given was meeting budget target, and the customer that I had received were not meeting targets. So overall, my KPI in terms of parties has been lower by taking on the customers that I mentioned before - - -
Ms Aistrope: No. But even before there was a reallocation – so let's put that to one side – even before there was a reallocation, you were a long way off your actual sales target for the year, weren't you, in May?---
Mr Jurisic: There was a significant way I was taking this knowledge, but I was saying I believe that I was very (indistinct) and in terms of the budget targets I got, my really preferred target has been more than double targets for the other customers that I was (indistinct) average reduced by about 20, 30 per cent. So that made it more difficult for me to achieve the target because (indistinct) quite high for it. Other customers as well.
Ms Aistrope: Going back to the question, though. At that time you were already a long way off your target thing, didn't you? That's right, isn't it?---
Mr Jurisic: Yes.” 57
(emphasis added)
[67] We are not persuaded that the Commissioner made a significant error of fact in the manner alleged by the appellant.
[68] The final alleged error of fact relates to paragraph [73] of the decision which states:
“[73] The Employer did not shy away from the fact that with respect to LVP, no salesperson met their budget - but, in my view, that is not the point. No LVP employee achieved 100% of their target, but they were getting 70%-80%23. Irrespective of actual sales, Mr Jurisic was not demonstrating to Mr Saini that he was putting in the “hard yards” compared to other employees in relation to the number of calls to customers, structured customer visits, developing new customers and pipeline quotations. This lack of demonstrable effort led the Employer to issue warnings and advising Mr Jurisic that his employment was at risk. Despite giving Mr Jurisic the opportunity to improve his performance, the outcome was neither sufficient nor indicated any commitment to the process. By late October, Mr Jurisic’s engagement in the process reached a low point when on 27 October 2013, the Applicant states that he is disappointed by Mr Saini’s inability to take responsibility for the performance of his portfolio and choosing to blame team members instead. Finally, Mr Jurisic resorted to making an assessment between himself and Mr Saini.” 58
[69] The appellant challenges two matters in this aspect of the Commissioner’s decision. The first is the proposition that other employees were achieving 70-80% of their budget. The second is the proposition that there was a lack of demonstrable effort on the appellant’s part.
[70] We are not persuaded that the Commissioner erred in the manner submitted by the appellant. The Commissioner’s observations find ample support in the evidence of Mr Saini and Ms Stacey and in the written warnings provided to the appellant.
[71] Having dealt with the alleged factual errors we now turn to the appellant’s submission that there was no ‘valid reason’ for his dismissal.
[72] In considering whether a dismissal was ‘harsh, unjust or unreasonable’ the Commission must take into account, among other things:
“whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) (s.387(a)).”
[73] A ‘valid reason’ for dismissal is a reason which is ‘sound, defensible or well founded’. It must be defensible or justifiable on an objective analysis of the relevant facts. 59 In Cosco Holdings v Thu Thi Van Do60 their Honours Lindgren and Lehane JJ observed, albeit in a different legislative context, that the word ‘valid’ added a further element, of genuine foundation.
[74] The word ‘capacity’ in s.387(a) means the employee’s ability to do the work he or she is employed to do. A reason will be ‘related to the capacity’ of the employee where the reason is associated or connected with the ability of the employee to do his or her job. 61
[75] In the decision subject to appeal the Commissioner correctly stated the requirements for a ‘valid reason’, considered the evidence and concluded that there was a sound and defensible reason to terminate the appellant’s employment. Contrary to the Commissioner’s conclusion the appellant submits that there was no valid reason for his dismissal.
[76] There is no dispute as to the following facts:
[77] In these circumstances we are satisfied that there was a valid reason for the appellant’s dismissal and we are not persuaded that there is any substance to this ground of appeal.
Ground 3: Support person
[78] In considering whether a dismissal was ‘harsh, unjust or unreasonable the Commission must take into account, among other things:
“any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.” (s.387(d))
[79] The Commissioner refers to this issue at paragraphs [62] and [78] of his decision:
“In addition, to the first written warning, I was given, in evidence, Ms Stacey’s detailed written notes of the meeting on 15 July 2013. Ms Stacey’s notes indicate that: Mr Jurisic declined a support person, could not see the justification of a warning, agreed with the figures presented, provided an alternative view of the reasons why the targets had not been met and would ‘think’ about whether he would sign the first written warning memorandum as a fair summary of the issues to be addressed....
I am satisfied, on the evidence, that there was no refusal by the Employer to allow Mr Jurisic to have a support person present to assist in any discussions relating to his dismissal.” 62
[80] The evidence in relation to this issue is as follows. At paragraph 19 of her witness statement Ms Stacey deals with the support person issue in these terms:
“On the 21 October 2013 I booked the video conference rooms for 22 October in preparation for a formal meeting with Boris. I requested that Matt invite Boris to the meeting and ensure that a support person was invited. Matt informed me that on 22 October 2013 he had invited Boris to a formal meeting to discuss his performance and he copied me in on an email to Boris confirming that he could bring a support person.” 63
[81] Ms Stacey’s notes of the 23 October meeting are set out at Attachment BS 5 to Exhibit R8. Those notes state, among other things, ‘Offered support person declined’. This aspect of Ms Stacey’s evidence was not the subject of cross-examination by the appellant.
[82] The appellant was taken to this issue during cross-examination. The relevant extracts from the transcript are set out below:
“Ms Aistrope: ... there was meeting arranged for 28 October between you and Beverley and Matt?
Ms Jurisic: That is correct.
Ms Aistrope: You were also asked if you wanted to have a support person present in that meeting and that emailed you to let you know you could have a support person?
Mr Jurisic: (indistinct) I remember trying (indistinct) I do remember trying to call (indistinct) support person (indistinct).
Ms Aistrope: But you didn’t actually ask to be able to have a support person present at the meeting, you didn’t ask either Beverley or Matt and say that you wanted to have a support person?
Mr Jurisic: When did I ask for ....
Ms Aistrope: You didn’t actually say to Beverley or Matt that you wanted to have a support person present”
Mr Jurisic: I can’t remember asking (indistinct) options.” 64
[83] In relation to this ground the appellant submits that ‘I did not get an option to have a support person, hence I was not given a chance to say no’.
[84] The appellant’s complaint is directed at an alleged failure by the respondent to inform him that he could have a support person present at such discussions. Two things may be said about this submission. The first is that it is misconceived. Section 387(d) is directed at ‘any unreasonable refusal’ by the respondent to allow the appellant to have a support person present at discussions relating to have a support person present at discussions relating to dismissal. The subsection is not concerned with whether or not the employee was informed that he or she could have a support person present, though that matter may be relevant and take into account under s.387(h). In this case there is no evidence of any such refusal by the respondent, let alone any unreasonable refusal.
[85] The second observation to be made is that the appellant’s assertion that he ‘did not get an option to have a support person’ is contrary to the evidence. Ms Stacey’s unchallenged evidence was that the appellant was told that he could bring a support person to the meeting on 23 October 2013. Further, the appellant’s evidence was that he had tried to contact someone to attend as a support person.
[86] There is no substance to this ground of appeal.
Ground 4: Bullying allegation
[87] The essence of this ground of appeal is that in his original application for an unfair dismissal remedy the appellant mentioned on a number of occasions that he had been bullied but this issue was not addressed in the hearing. The appellant referred to the trauma he had suffered as a result of the bullying and that was why he had difficulty in recollecting certain events. It was also put that this trauma impacted on his ability to present his case to the best of his ability.
[88] In his original application the appellant states, among other things:
“I was bullied to accept unrealistic sales targets and the worst performing portfolio ...
I was bullied to accept weakest sales portfolio in respect of all measured parameters (YTD budget %, YTD sales and full year forecast) on 29 May 2013. On 11 June I was bullied to accept unrealistic targets ...
I believe Matt has been bullying me.”
[89] The respondent’s response to the appellant’s application states that the respondent ‘denies the applicant’s allegation that the expectations were unreasonable or that he was bullied by his manager’.
[90] It is important to note that the bullying allegation was not mentioned at all during the proceedings before the Commissioner. It is difficult to see how it could reasonably be said that the Commissioner erred in failing to deal with a matter which was not raised in the proceedings before him.
[91] We are not persuaded that there is any substance to this ground of appeal.
Ground 5: Mr Saini’s evidence
[92] The appellant submits that the Commissioner erred in accepting Mr Saini’s evidence in circumstances where his credibility had been damaged during cross-examination.
[93] Having reviewed the transcript of Mr Saini’s evidence we are not persuaded that there is any substance to this ground of appeal.
Ground 6: Exclusion of relevant material
[94] The appellant submits that the respondent had other relevant evidence which was not disclosed during the proceedings.
[95] The nature of the ‘other relevant evidence’ was not particularised and on the material provided by the appellant we are not satisfied that the Commissioner was asked to exercise his power to compel the respondent to disclosure any additional material.
[96] We are not persuaded that there is any substance to this ground of appeal.
Conclusion
[97] As we have noted, the test for permission to appeal in respect of matters of this type is a stringent one. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. As their Honours Mason CJ, Brennan, Dawson and Gaudron JJ said in O’Sullivan v Farrer:
“... the expression ‘in the public interest’, when used in a statute, classically imports a discretionary judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.” 65
[98] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters... 66
[99] The appellant advances two lines of argument in support of his contention that permission to appeal should be granted in the public interest.
[100] First, it is submitted that the Commissioner erred in concluding that there was a valid reason for the appellant’s dismissal and that it would be unjust not to grant permission to appeal in such circumstances.
[101] Second, it is submitted that the decision would create a precedent whereby a ‘top employee in terms of KPI’s can be dismissed for ‘not having good enough KPI’s’. It is submitted that allowing the decision to stand would undermine the use of KPI’s which would be contrary to the public interest.
[102] We are not persuaded that either of these points enlivens the public interest.
[103] As to the first point, for the reasons already given we reject the appellant’s contention that the Commissioner erred in concluding that there was a valid reason for his dismissal. As to the second matter, we are not persuaded that the decision subject to appeal would create a precedent of the type submitted by the appellant.
[104] There was no significant error of fact in the decision subject to appeal and the appellant has failed to persuade us that the decision was tainted by legal error or that the discretion miscarried. We are not satisfied that it is in the public interest to grant permission to appeal. We refuse permission to appeal.
PRESIDENT
Appearances:
Mr Jurisic on his own behalf
Ms Aistrope, solicitor, for the respondent
Hearing details:
2014;
Perth;
August, 12
Further submissions filed:
Wednesday 13 August 2014;
Thursday 14 August 2014;
Monday 18 August 2014;
Thursday 21 August 2014.
ATTACHMENT 1
ATTACHMENT 2
1 This is so because on appeal FWA has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
2 (2011) 192 FCR 78 at 90 at paragraph 43.
3 See Attachment MS8 to Exhibit R7.
4 See Attachment MS10 to Exhibit R7.
5 See Attachment MS11 to Exhibit R7.
6 See Attachment MS 13 to Exhibit R7.
7 Transcript, 1 May 2014 at paragraphs 381-393.
8 [2014] FWC 4018 at paragraph 76.
9 Ibid at paragraph 77.
10 Ibid at paragraph 79.
11 Ibid at paragraph 78.
12 Transcript 1 May 2014 at paragraph 23.
13 Ibid at paragraphs 26 and 34.
14 Ibid at paragraphs 28-37, 61 and 63.
15 Ibid at paragraph 24.
16 Ibid at paragraph 70.
17 Ibid paragraphs 67-77.
18 Also see paragraph 82 of the transcript. During the appeal proceedings the parties confirmed that such an opportunity was provided: Transcript 12 August 2014 at paragraphs 67 and 419 - 427.
19 Transcript, 1 May 2014 at paragraphs 133-134.
20 Ibid at paragraphs 140-142.
21 Ibid at paragraph 143.
22 Ibid at paragraph 158.
23 Ibid at paragraphs 159-161.
24 Ibid at paragraph 172.
25 Ibid at paragraphs 210-211.
26 Attachment MS 8 to Exhibit R7.
27 Transcript, 1 May 2014, at paragraphs 233-243; Attachment BS 5 to Exhibit R8.
28 Transcript, 1 May 2014 at paragraph 240.
29 Ibid at paragraph 221.
30 Ibid at paragraph 217.
31 Ibid at paragraphs 253-259.
32 Ibid at paragraph 259.
33 Ibid at paragraphs 243-252 and 265.
34 Ibid at paragraphs 329-330; Attachment MS 11 to Exhibit R7.
35 Transcript, 1 May 2014, at paragraphs 341 and 352.
36 Ibid at paragraphs 381-393.
37 Attachment MS 13 to Exhibit R7.
38 Transcript, 1 May 2014, at paragraph 317.
39 Ibid at paragraph 325.
40 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re: Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [25].
41 Unreported NSW Court of Appeal 16 June 1986.
42 Cited with approval in Morton v Mitchell Products [1996] 828 FCA 1 per Sackville J; and Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1
43 Abram v Bank of New Zealand (1996) ATPR 42, 340, affirmed on appeal (1998) ATPR 41-507
44 Ibid
46 Transcript, 1 May 2014 at paragraphs 131-134, 137, 140, 143, 149, 174, 198, 206, 238, 369 and 382.
48 Ibid.
49 Attachment MS 11 to Exhibit R7.
51 Transcript 1 May 2014 at paragraph 128.
52 [2014] FWC 4018 at paragraph 52.
53 Exhibit R7 at paragraph 23.
54 Transcript 1 May 2014 at paragraph 137.
56 Ibid at paragraph 56.
57 Transcript, 1 May 2014 at paragraphs 159-161.
59 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370.
60 (1997) 77 IR 94 at 118
61 Crozier v Palazzo Corporation Pty Ltd [2001] FCA 1031 (1 August 2001) at [14] per Gray, Branson and Kenny JJ
62 [2014] FWC 4018 at paragraphs 62 and 78.
63 Exhibit R8 at paragraph 19.
64 Transcript, 1 May 2014 at paragraphs 366-369.
65 (1989) 168 CLR 210 at 216; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] - [46].
66 (2010) 197 IR 266 at paragraph 27.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR554655>
