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[2013] FWC 2533
DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Bowley
v
Trimatic Management Services Pty Ltd
(U2012/16616)
COMMISSIONER STEEL ADELAIDE, 24 APRIL 2013
Termination of employment.
[1] This is an application by Mr Daniel Bowley (the applicant) for an unfair dismissal
remedy under s.394 of the Fair Work Act 2009 (the Act). The respondent is Trimatic
Management Services Pty Ltd. This decision has been provided without benefit of the
transcript and the Commission reserves the right to amend the decision accordingly if
appealed.
[2] Mr Bowley commenced with the respondent on 20 November 2007 and at the time of
his dismissal was engaged as a “Floor Manager” or “Customer Experience Sales Manager” in
charge of a team of agents in the respondent’s facility in Adelaide. He was dismissed on
27 November 2012 with immediate effect. The reasons for the dismissal set out in his
termination letter of that date refer to; unsatisfactory performance against key targets despite
an extensive performance management improvement plan being in place since early
September 2012, the lack of regular completion of trigger sessions with staff and a continued
and evidenced unacceptable lack of professionalism and attitude within the workplace (the
Commission’s paraphrasing).
[3] The application for remedy was made on 11 December 2012 within the time limit
required by s.394(2) of the Act. The applicant is a person protected from unfair dismissal as
defined in s.382 of the Act. The respondent is not a small business hence a consideration of
the Small Business Code is not activated and the dismissal was not a redundancy.
[4] The conference determination was held on 16 April 2013 but owing to the lateness of
the completion of the matter the Commission did not provide a determination at that time but
has endeavoured to provide it as soon as possible thereafter.
[5] The applicant provided evidence on his own behalf and the Commission found him
generally reliable save from some issues as to recall of specific meetings and events. Evidence
was provided for the respondent by Mr Steve Spicer, General Manager of Sales, Mr
Animitray Aditya Chaudhury, Centre Manager SA, Ms Candace Aditya Chaudhury Centre
Lead and the applicant’s immediate supervisor and Ms Susan M Lawrence, National Human
Resource Manager. The Commission found these respective witnesses generally reliable and
AUSTRALIA FAIR WORK COMMISSION
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helpful in identifying the facts of this matter. There was no evidence or submissions provided
to the Commission in regard to the applicant‘s record of employment prior to March 2012, at
which time the respondent initiated actions in relation to his performance.
The applicant’s submissions
[6] The applicant indicated his remuneration approximated $63000 per annum including
various monthly bonuses. He asserted he was a long term, experienced, valuable employee
and rejected the assertion his performance was less than acceptable in comparison with like
employees. The applicant claims his dismissal for performance reasons cannot be relied upon
and is unfair.
[7] In regard to not meeting specific targets in the later stage of his employment the
applicant provided various reasons that had influenced his performance. In this regard he
asserts the respondent acknowledged that the structural changes in regard to the conversion of
contractors to employees within the workplace were beyond his control and that the facility
was affected at times by dialler downtime and hence the sales targets and campaign targets
were unreasonable in the circumstances.
[8] The applicant asserted that his ability to meet “trigger session” requirements was
similarly affected by the above reasons and the conflicting priority to keep his agents on the
phones for the maximum time affected this being a valid reason for dismissal.
[9] The applicant disputed the material facts in relation to various examples relied upon
by the respondent in respect to his attitude and professional behaviour. He further indicated
that the email relied upon in one instance with Ms Elizabeth was a private email, was not
intended to reflect a worksite matter and should not be relied upon.
[10] Similarly the issue with Mr Vianna is denied and the applicant proffers a different
scenario than the respondent. The request to call team members that were absent is similarly
denied and the lateness to the pizza lunch was referred to as an oversight. The applicant
denies a habit of lateness and points out his rostered time for work to commence is 9.00 am.
The implications of the accusations of the respondent are to the effect he was to work unpaid
before his starting time and hence cannot be relied upon for a dismissal.
[11] The applicant referred the Commission to the bullying and harassment complaint he
had made in early 2012 against Mr Chaudhury. He complains that the investigator (Mr Bone)
did not interview appropriate witnesses and he was unsatisfied with the outcome he received.
However he did not prosecute the matter further with SafeWork SA (SafeWork) because he
had formed an accommodation at work with his management.
[12] In this respect he was put on an informal performance management review plan by his
management in March 2012. He complains however that the plan was applied inconsistently
and lacked the necessary support of Mr Chaudhury. He asserts he was generally given new
targets with no indication of how to achieve such targets. He approached Mr Spicer about a
new role elsewhere in the organisation and was directed to Mr Chaudhury. The applicant
subsequently was informed he was now on a formal performance improvement plan by his
now supervisor Ms Chaudhury and Ms Lawrence on 26 September 2012. The applicant
asserts that the performance plan with Ms Chaudhury was incomplete because of the
influence of disruptions and structural changes in the facility.
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[13] On 27 September 2012 the applicant, at short notice, was called to a meeting with
Mr Chaudhury. He was aware it was important as Ms Lawrence was in attendance. He
declined a support person. He was not advised in advance of an agenda for the meeting.
Mr Chaudhury handed the applicant a letter and proceeded to read the letter to him. That letter
was a letter of dismissal with the applicant being dismissed, effective immediately. He was
then asked if he had any questions to which he expressed his disappointment and left. The
applicant received four weeks pay in lieu of notice.
[14] In regard to the evidence provided by the respondent, the applicant did not take
exception to a significant part of the evidence provided by the witnesses.
The respondent’s submissions
[15] The respondent asserts the applicant was dismissed for valid reasons as to his
performance and conduct and that he was performance managed, initially informally and then
formally for a period of eight months. It is also asserted that the applicant received support
and encouragement but failed to sustain an improvement in his required conduct.
[16] In regard to his performance, on approximately 19 or 20 March 2012 the respondent
recognised the applicant was not meeting his required CESM KPIs and he was put on an
informal performance plan. Mr Spicer and Mr Chaudhury had discussions with the applicant
about this plan. Targets were set for him and he agreed to these targets on 22 March 2012.1
The respondent asserts these were in fact lower targets than other peer employees of the
applicant. Mr Chaudhury was to meet with him on a weekly basis and provide feedback and
direction.
[17] The applicant made a formal complaint against Mr Chaudhury for bullying. This
proceeded to an investigation by an external contractor (Mr Bone) on behalf of the
respondent. Mr Chaudhury continued to manage the applicant. Ultimately the report by
Mr Bone did not find any justification for the complaint and offered ulterior motives for the
applicant’s complaint against his manager. The respondent asserts the applicant did not assist
this investigation and also that he made a similar complaint to SafeWork that SafeWork chose
to close down at a later stage.
[18] The evidence of the respondent is notable in regard to the following:
On 19 April 2012 the applicant was advised that his March KPIs showed he was
performing well below the targets that had been agreed upon.
On 30 March 2012 Mr Chaudhury had a one on one to review of the applicant’s daily
performance, confirmed by email on 31 March 2012.2
There was a further one-on-one session and confirming email on 3 April 2012.3
On 19 April he was given an email showing his KPI were well below targets agreed.4
On 8 May 2012 he was counselled about not following routines regarding agents and
focus sessions.
On 28 May 2012, 2 and 19 June 2012 the applicant received specific feedback and
instruction from Mr Chaudhury as to the performance plan.
He had a one-on-one session on the 30 June 2012.
On 2, 7 and 25 July 2012 the applicant received further information on his KPIs and
follow up actions required.
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On 24 August 2012 the applicant had a further one-on-one session and on
27 August 2012 the applicant received his KPI results for July.5 This document
illustrates that the applicant was being instructed directly as to what to do in his role.
For example “to do regular focus groups, to follow up on 5 contact trackers and
micromanage during the day” and “enter all coaching includes SBS, trigger sessions
and focus sessions”.
The applicant received his August KPIs on 24 September 2012.
On 27 October 2012 he received his KPIs for September.
On 18 October 2012 he was advised of various requirements in regard to stakeholder
meetings and preparing for morning agent meetings.
[19] The respondent asserts that the applicant was treated fairly and the same as other
employees in terms of performance management plans.
[20] Ms Chaudhury took over the management of the applicant following her promotion in
September 2012. The applicant at that time asked for the performance management plan to be
concluded. However because of his absences it was extended for a further period.
[21] Ms Chaudhury, in September and October, assisted the applicant with action plans,
directly in meetings and provided shared information sessions with other team leaders to
assist him.
[22] Ms Chaudhury, on 26 September 2012, also commenced a formal performance
management plan with the applicant. In document the applicant was given a document by Mr
Chaudhury in the presence of Ms Chaudhury and with Ms Lawrence on the telephone.6 This
was a formal meeting. The letter is headed “Formal Warning and Performance Improvement
Plan” and confirmed the view the applicant’s performance was still considered unsatisfactory
against the respondent’s parameters. It provided a formal warning in that regard and set out
the areas in which he must improve. It indicates that if the applicant’s behaviour,
communication and overall performance remained unsatisfactory by 26 October 2012 that
further disciplinary action will be considered including terminating employment. The
document set out weekly meetings and also stated that the applicant was required to improve
his performance to the satisfaction of the respondent by Friday 12 October 2012.
[23] On 4 October 2012 the respondent organised and held a performance review. This
resulted in the letter to the applicant of 11 October 2012 confirming the agenda and the areas
discussed and required to be addressed over the following weeks. This was a six page
document and was comprehensive as to content, examples and expectations.
[24] On the 17 October 2012 a further review was held and the applicant received feedback
on his performance, e.g. being negative with staff and the need to be more professional. There
were some areas, such as coaching, which were unsatisfactory but in some areas there had
been improvement by the applicant.
[25] The applicant received a further letter on 19 October 2012 which again outlined the
areas required to be improved and that the improvement plan would be extended for three
days due to his absences.
[26] On 25 October 2012 a further review meeting was held and the applicant was given
specific key actions areas again that the needed to complete.
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[27] The next review was held on 2 November 2012 and the applicant was assessed as
having deteriorated, despite some structural issues applying and some absences in October.
[28] Ms Chaudhury at this time wanted to extend his review for a further four weeks. She
also had identified the applicant was texting during training, was displaying rudeness in
management meetings, providing unacceptable remarks or humour, displaying lateness and
had not prepared for meetings. His operational statistics and metrics had improved during
October but his sales had not.
[29] The respondent’s evidence is that the applicant, when compared with other like
employees and allowing for absences and structural changes in the workplace, was the worst
performing manager. They considered his attitude reflected a habit of lateness, an indifference
to requirements and lack of concern for his work.
[30] Ms Chaudhury went on leave on 12 November 2012 and in that period up until
27 November 2012 the respondent considered that it was unlikely the applicant was going to
improve and they decided to terminate his employment.
Consideration and Conclusion
[31] In such matter the Commission must have regard to the following sections of the Act:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the
employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so
because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of
time, for a specified task, or for the duration of a specified season, and the
employment has terminated at the end of the period, on completion of the task, or at
the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason,
limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
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(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to
in paragraph (2)(a) if a substantial purpose of the employment of the person under a
contract of that kind is, or was at the time of the person’s employment, to avoid the
employer’s obligations under this Part.
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.
[32] Given the requirements of the above legislation on the Commission in these matters
the following findings are made.
S.387(a) - Was there a valid reason for dismissal?
[33] Given the body of evidence provided by the respondent as to the nature and
characteristics of their industry; the requirements of the role of the applicant and the nature
and detail of the various performance management applied to the applicant, the Commission
considers that a cogent case has been provided that the applicant did not perform to the
legitimate requirements of the employer in the reported factual circumstances. The
Commission is persuaded that such a reason is defensible on an objective assessment of the
factual circumstances of the applicant’s management and dismissal. The respondent therefore
has a valid reason for dismissal related to the applicant’s capacity or conduct in the
unacceptable performance of the applicant and in his response to performance management.
The characteristics of that role are dynamic and focused and it is apparent the weight of
evidence is such that the applicant acted in contrast to that required.
[34] The applicant’s contrasting conduct seems to have its genesis in the attitude of the
applicant to such a time critical and focussed workplace. It is accepted that he did not attain or
reach the standards required in a number of areas. It would seem he consistently was
manifesting his personal style in the workplace and demonstrated that he had issue with the
expectations of the respondent.
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[35] There are some matters of conduct relied upon that are disputed and in the
consideration of the Commission seem somewhat excessive to be relied upon e.g. the missing
of a lunch on a day the applicant was ill but came to work on the request of the respondent,
the nature of the usage of Mr Vianna’s name and the issue of lateness identified by the
applicant attending at one minute past starting time.
[36] However, taking the body of evidence into consideration and an assessment of the
factual circumstances the Commission is persuaded that the respondent had a valid reason for
dismissal of the applicant in terms of his deficient performance in his role.
S.387(b) and (c) - Whether the person was notified of that reason and whether the person was
given the opportunity to respond.
[37] The applicant was provided with his “Termination of Employment” letter and it was
read out to him in the final meeting with the respondent on 27 November 2012.7 That letter is
substantive as to the conclusions of the respondent as to his performance. The evidence is that
the applicant was asked if he had any questions and he made some comments of his
disappointment and then left.
[38] This scenario is deficient in procedural fairness in that the decision to dismiss the
applicant was taken some time before the actual meeting. The respondent then planned the
meeting, gave him his letter and orally confirmed its contents. The evidence of Mr Spicer is
that he received recommendations from his management to dismiss the applicant from mid
November. He recollects that he made the decision two days before the applicant’s dismissal
meeting thus allowing the preparation of the dismissal letter and the organising of the
meeting.8 Given that the decision had been made by Mr Spicer, the officers of the respondent
just informed the applicant by giving him the letter of dismissal.
[39] In the matter of Crozier v Palazzo Corporation Pty Ltd9 a full bench of the Australian
Industrial Relations Commission determined that:
“As a matter of logic procedural fairness would require that an employee be notified of
a valid reason for their termination before any decision is taken to terminate their
employment in order to provide them with an opportunity to respond to the reason
identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect
if it was sufficient to notify employees and give them an opportunity to respond after a
decision had been taken to terminate their employment.”
[40] In the Commission’s view the above reference determination applies to the
consideration within s387(b) of the Act. That notification of the valid reason for dismissal
must be given to the employee before the decision to terminate is made. Thus in this matter
the applicant was deprived of an opportunity to respond to an impending termination and thus
potentially offer further information for the consideration of the respondent.
S.387(d) - Was there an unreasonable refusal by the employer to allow a support person
present to assist the applicant?
[41] The applicant was given the opportunity to have a support person present at his
dismissal meeting and did not take that opportunity.
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S.387(e) - Whether the person had been warned of his unsatisfactory performance.
[42] This item is not contentious given the Commission’s earlier findings as to valid reason
on performance grounds. There is ample evidence as to the respondent’s view on the
applicant’s unsatisfactory performance, their communication of those views to the applicant
and there are documents as to warnings of disciplinary action including a consideration of
dismissal.
S.387(f) - Was the impact of the size of the respondent’s enterprise on procedures followed?
[43] The respondent has in excess of five hundred employees and has a small human
resource team. The progression of the performance management plan both informal and
formal would seem to be comprehensive. The Commission considers the respondent then
became somewhat frustrated and hastily brought the matter to an end, probably confident that
the applicant’s conduct and issues were now self evident and warranted dismissal. In that
haste they have given insufficient consideration to the procedural approach and the impact on
the applicant of their decision. The respondent has a geographically separated workforce and
management in a dynamic industry which brings its challenges. Such challenges may have
resulted in the scenario identified by the Commission.
S.387(g) and (h) - The degree to which the absence of dedicated human resources or expertise
in the enterprise would impact upon the procedures followed in affecting the dismissal and
any other matters considered relevant.
[44] The respondent has dedicated human resource staff and hence these are not neutral
considerations. The Commission is persuaded having heard the evidence of the parties and
considered the weight of evidence provided by the respondent that there was no intent at any
time by the respondent to prejudice natural justice and fairness of the applicant’s dismissal
and that the deficient approach was not intentional by the respondent’s staff.
Was the dismissal of the applicant harsh, unjust or unreasonable?
[45] After consideration of all the relevant criteria the Commission concludes that the
dismissal of the applicant was lacking in procedural fairness and because of its personal and
economic consequences on the applicant was harsh (see Stewart v University of Melbourne).10
Remedy
[46] The provisions of ss.390 and 391 of the Act determine the Commission’s approach to
remedy in these matters.
[47] The applicant is not seeking reinstatement and the respondent did not make
submissions as to reinstatement. In consideration of the circumstances of this matter and the
relevant statute sections above the Commission is satisfied that reinstatement is inappropriate
in this matter and that an order for compensation should be made.
[48] The Act at s.392 determines the remedy of compensation and the Commission has
considered the relevant criteria of s.392(1)-(6) and the evidence and submissions in this
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matter. The commission has determined the respondent had a valid reason applied with lack
of procedural fairness.
[49] The award of compensation is a discretionary act of the Commission. Taking into
account all the circumstances of the case and the above findings and the criteria within
s392(2) the Commission determines that the applicant was unfairly dismissed and should
receive compensation from the respondent in the amount of four week’s pay based on an
annualised salary of $63000, including bonuses. An order shall be issued separately to this
effect.
COMMISSIONER
Appearances:
Mr D Bowley in person
Ms Z Peggs for the respondent
Hearing details:
2013:
Adelaide
16 April
Printed by authority of the Commonwealth Government Printer
Price code C, PR535999
1 Exhibit R2, Annexure AAC3
2 Ibid, Annexure AAC7
3 Ibid, Annexure AAC10
4 Ibid, Annexure AAC12
5 Ibid, Annexure AAC31
6 Exhibit R3, Annexure CAC3
7 Exhibit R2, Annexure AAC42
8 PN 786-791
9 (2000) 98 IR 137 at 151
10 AIRC Print S2535, Unreported judgement of Ross VP, 20 January 2000 at [74]
NORK AUSTRALIA OF FAIR WORK AL Damit THE SEAL
