1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Boris Jurisic
v
ABB Australia Pty Limited
(U2013/15883)
COMMISSIONER CLOGHAN PERTH, 25 JULY 2014
Unfair dismissal.
[1] On 14 November 2013, Mr Boris Jurisic (Mr Jurisic or Applicant) made application
to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal
from his former employer, ABB Australia Pty Limited (ABB or Employer).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] At the hearing on 1 May 2014, Mr Jurisic represented himself and gave evidence on
his own behalf.
[4] ABB was represented by Ms K Aistrope, of counsel, and evidence was given on behalf
of the Employer by:
Mr Manjit Saini, State Sales Manager;
Mr Anthony Meggs, Divisional Controller;
Mr Mikko Makarainen, Business Unit Manager, Low Voltage Products (LVP);
Ms Beverly Stacey, Human Resources Business Partner.
[5] At the conclusion of the hearing, I dismissed Mr Jurisic’s application. These are my
reasons for dismissing the application.
RELEVANT LEGISLATIVE FRAMEWORK
[6] It is not in dispute that Mr Jurisic’s application was made within the statutory
timeframe pursuant to paragraph 394(2)(a) of the FW Act.
[7] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
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REASONS FOR DECISION
E AUSTRALIA FairWork Commission
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(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”
[8] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at
s.387 of the FW Act and is as follows:
“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.”
RELEVANT BACKGROUND
[9] The Applicant commenced employment with ABB on 14 March 2011.
[10] Mr Jurisic was employed as a LVP Solutions Manager, Western Australia, for the
LVP business unit.
[11] The national budget for LVP was set in October 2012 and allocated on a geographic
basis. The sales budget for Western Australia was, in turn, apportioned to individual
employees, including Mr Jurisic, having regard to historical data, forecasting and growth
potential.
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[12] Individual employee sales budgets for the VLP business unit were set within a
portfolio of customers both existing and targeted. Mr Saini discussed with the LVP business
unit employees how the targets were to be reached both individually and collectively.
[13] Mr Saini was also responsible for monitoring performance against the budget.
[14] Mr Saini and Ms Stacey met with Mr Jurisic on 21 February 2013. Mr Saini
expressed his concerns that the Applicant was already falling behind in his sales target and
failing to engage in the required activities to achieve his target.1
[15] In May 2013, Mr Makarainen and Mr Saini met with Mr Jurisic and emphasised to
him that he was not engaging in sufficient activity to achieve the sales budget required.2
[16] In or around June 2013, Mr Jurisic’s portfolio of customers was changed. As a
consequence, his sales budget was revised to meet projected additional revenue.
[17] Up to June 2013, Mr Jurisic’s performance had been managed on an informal basis.
[18] On 11 June 2013, Mr Jurisic was formally placed on a Performance Improvement Plan
(PIP). The PIP has essentially the following elements: “Business Activities”, “Business
Results”, “Punctuality”, “Progress Checkpoints” and scheduled weekly review meetings with
Mr Saini. The PIP was signed by Mr Saini and Mr Jurisic3.
[19] On 15 July 2013, Mr Jurisic was given a first written warning by the Employer. The
written warning refers to the situation where he had failed to make budget for the last six
months. Secondly, the warning refers to review meetings for the previous four weeks where
Mr Jurisic failed to show progress in his performance.
[20] The correspondence states:
“This is your first written warning, and I expect to see a marked improvement in the
areas outlined. However, if you commit to modifying your work performance, work
behaviour as discussed you have the ability to address these issues and improve [y]our
work performance/work behaviour.
Failure to make the necessary improvements may place your employment in
jeopardy.”4
[21] Mr Jurisic did not sign the first written warning as a fair summary of matters he had
agreed to address.
[22] On 18 September 2013, the Applicant was given a “second and Final Written
Warning”. The correspondence referred to Mr Jurisic failing to meet budget for the past 8.5
months. The correspondence again indicated that failure to improve would place his
employment at risk.
1 Exhibit R7
2 Exhibits R6 and R7
3 Exhibit R8 (BS-3)
4 Exhibit R7(8)
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[23] Similar to the last occasion, Mr Jurisic did not sign the correspondence as a fair
summary of the issues he had agreed to address.
[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:
failure to make sales budget in the last 10 months;
despite coaching, assistance, easier reporting template and review meetings, the
Applicant had failed to show progress; and
not meeting the Employer’s expectation of improvement in performance and
behaviour following the written warnings on 15 June and 18 September 2013.
[25] Mr Jurisic was required to provide a written response by the following day
(23 October 2013) as to why his employment should not be terminated.
[26] Mr Jurisic required clarification on certain issues relating to the Employer’s tentative
view that he should be dismissed. The Applicant corresponded with Ms Stacey during the
period 23 to 27 October 2013. Two further meetings were held between Mr Jurisic, Mr Saini
and Ms Stacey on 23 and 24 October 2013.
[27] On 28 October 2013, the Employer responded to Mr Jurisic’s letter of 27 October
2013. The Employer referred to his tardiness in replying to Ms Stacey on 27 October 2013
when he should have replied on 25 October 2013. In the words of Ms Stacey, “this
represents to me a total lack of commitment and respect for the process [why his employment
should not be terminated] we are engaged in”. Further, Mr Jurisic’s practice of sending FYI
emails attaching data which he believed relevant and providing “no explanations or covering
content, just attachments”.5
[28] On 28 October 2013, a further meeting occurred with Mr Jurisic, Mr Saini and
Ms Stacey in which the Applicant was asked to respond to why his employment should not be
terminated. After adjourning the meeting to consider Mr Jurisic’s responses, the Applicant
was advised that his employment was terminated.
[29] The Employer terminated Mr Jurisic’s employment with four weeks’ notice to take
effect immediately. The Employer, in its correspondence to Mr Jurisic, states that “contrary
your assertions in your responses...ample opportunity has been provided and every attempt we
have made to provide the detail and explain things to you have been rebuffed.” Further,
“Having taken into account your responses and considered a range of potentially
mitigating factors, I am not satisfied that you have provided me with anything that
explains or justifies or ultimately overcomes your lack of performance.
I have closely assessed among other things your age, length of service, prospects of
alternative employment and appropriateness of alternative employment.
5 Exhibit R7(11)
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Finally, it is apparent to me that you have demonstrated no ownership in the issues...”6
APPLICANT’S CASE
[30] The Applicant relied on the material attached to his application of 14 November 2013.
[31] The Applicant relied on the documentation provided by the Employer as part of its
compliance with the Directions.
[32] Mr Jurisic sought for his statement of facts to be his written witness statement. His
purported statement of facts/witness statement is as follows:
“Summary 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 the 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 the 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.”7
EMPLOYER’S SUBMISSION
[33] The Employer restated its submission that, the application should be dismissed in
accordance with s.399A of the FW Act in that the Applicant failed to comply with the
directions of the Commission relating to the application.
[34] The Employer submits that Mr Jurisic was not unfairly dismissed within the meaning
of the FW Act or at all.
[35] The Employer relies predominately upon the evidence of Mr Saini, Ms Stacey,
Mr Makarainen and Mr Meggs in support of its assertion that Mr Jurisic was not unfairly
dismissed.
6 Exhibit R8(13)
7 Exhibit A2
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[36] The Employer submits that the Commission can be satisfied that the dismissal was not
harsh, unjust or unreasonable in accordance with the criteria in s.387 of the FW Act.
CONSIDERATION
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[37] I have adopted the definition of a valid reason stated by North J in Selvachandran v
Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same
time the reasons must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must ‘be applied in a practical, commonsense
way to ensure that the employer and employee are treated fairly’.”
[38] Mr Jurisic was dismissed at the conclusion of an eight (8) month informal and formal
review of his performance.
[39] Mr Jurisic asserts that, “...we should look at performance over full period of time and
not just focus on the particular period of time that suits you for whatever reason”8.
[40] After commencing employment on 14 March 2011, Mr Jurisic gave evidence that
calendar years 2011 and 2012 went well in terms of achieving sales results to budget9.
[41] In 2012 Mr Jurisic achieved sales of around $1.2M.10
[42] Mr Jurisic agreed with the Employer that knowing and developing customer
relationship is “extremely important”11. Where the relationship has matured, existing
customers would make orders without first seeking quotations from their respective sales
persons.
[43] For new customers, an important part of building the relationship is quotes for
particular products. With respect to quotes, LVP employees had to liaise frequently with their
manager because of the need to cultivate the new customer relationship. .
[44] Mr Jurisic agreed that his portfolio of customers in 2013 had not changed considerably
from those in 2012. In addition to Mr Jurisic’s established clients, he had type “B” clients
who were existing customers but who made relatively small number of purchases and
consequently, there was potential growth in sales which required development. Finally, there
8 Transcript PN66
9 Transcript PN89
10 Transcript PN91
11 Transcript PN101
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are a third category of customers who were described as “new targets”, that is, organisations
that have to be contacted to determine if the Employer could produce products to meet the
customer’s needs.
[45] Sales targets for each category of customer was set based on a combination of
historical information, forecasting and industry knowledge. For example, the sales targets for
existing mature customers were based on actual sales made in 2011 and 2012. In the case of
one existing mature customer, the sales target for Mr Jurisic was $280,000 per annum,
whereas for a new “target” customer, the sales target was $10,000 per annum.
[46] Mr Jurisic’s yearly budget target of sales initially increased by $468,000 from the
previous year. Excluding Mr 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.
[47] In addition, to the expected sales targets, each sales persons’ performance included
making so many telephone calls and face to face contact with the relevant customer
representatives. Finally, based on historical analysis, the conversion of “quotations” to
“sales” had a historical ratio of 4:1. Accordingly, the Employer monitored the “pipeline” of
quotations because if they were not in the region of 4:1 or greater, it was unlikely that the
sales person would achieve their target sales figure.
[48] Before I turn to Mr Jurisic’s sales performance and conduct in 2013, I note that in
2012, he unsuccessfully applied for the position of State Sales Manager, LVP. Mr Saini was
the successful applicant and was appointed State Manager in October 2012.
[49] On 21 February 2013, Mr Saini met with Mr Jurisic to discuss the Applicant’s
performance. Mr Jurisic gave evidence that he recalled the meeting but could not remember
whether the meeting was about his performance.
[50] Mr Saini’s written evidence as to how the meeting originated was as follows:
“In the process of understanding where my team was at when I started I noticed that
Boris [Mr Jurisic] had the lowest budget of all in 2012. He had achieved sales well in
excess of his target but those sales were predominately obtained through existing
regular customers rather than new business.
...there were some changes made so that everyone had an even spread of existing
customers and growth opportunities but I made sure that existing relationships had not
changed.
In around mid February 2013 Boris came to me about the customers allocated to him.
He said he wanted to service a number of major customers who already had existing
relationships with other team members because [it] would be more in line with his
segment. This concerned me because it seemed to me that Boris wanted these
customers because they were an easier way to obtain sales than putting work in to
develop the growth opportunities allocated to him...Mark [Mr Anning] made decision
that the customers not shift to Boris’ portfolio.
...Towards the end of February having observed how Boris was working, I had
become seriously concerned about the quality of customer visits he was doing.
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...On 21 February 2013 I attended a meeting with Boris and Bev Stacey from Human
Resources and went through my concerns with Boris about his level of activity with
customers...another thing which I could see from Boris’ activity spreadsheet was that
Boris’ calls had been to existing customers...”12
[51] Mr Saini’s detailed file notes of the meeting is entitled “Performance Management”
and indicate that the answers given by Mr Jurisic lacked supporting documentation and facts.
The presence of Ms Stacey should have demonstrated to Mr Jurisic the seriousness of the
meeting. At the conclusion of the meeting, Mr Jurisic was requested to provide a plan to
achieve the 2013 budget and have his plan to implement when he meets with customers.
[52] 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.
[53] 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.
[54] In May 2013, Mr Jurisic met with Mr Saini and his direct supervisor, Mr Makarainen.
Mr Makarainen was aware of concerns with Mr Juricis’s performance. When asked whether
Mr Makarainen and Mr Saini expressed concerns about his performance against targets and
overall performance he replied, “I can’t really remember”13.
[55] I am satisfied on the evidence that the meeting between the Applicant, Mr Saini and
Mr Makarainen not only discussed Mr Jurisic’s performance, but also explored options for
him to achieve growth in his current customer portfolio by swapping customers and adding
new customers14.
[56] In May, the Applicant was a long way off his performance target15. For the month of
May, Mr Jurisic had a target sales of $153,000 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.16
[57] On 11 June 2013, Mr Jurisic went from an informal performance review, to a formal
performance management plan.
[58] The performance management plan set out not only the sales results to May 2013 but
the: business activities which Mr Jurisic had to focus upon; issues of punctuality; documents
against which performance improvement would be measured and a schedule of meetings.
[59] Both parties signed the document17. Mr Jurisic could not remember the details of the
meeting18 or what was required of him to improve his performance19.
12 Exhibit R7
13Transcript PN143
14 Transcript PN157
15 Transcript PN161
16 Exhibit R7(6)
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[60] Mr Saini met weekly with Mr Jurisic. During this period, Mr Saini raised with
Mr Jurisic his practice of relying on quotations which had not been revalidated with
customers. Consequently, his “pipeline” was being misrepresented.
[61] On 15 July 2013, Mr Jurisic had a further meeting with Mr Saini. At that meeting,
Mr Jurisic was given his first written warning. The first written warning details the assistance
given by the Employer to Mr Jurisic, the Applicant’s failure to achieve budget in the first six
months of 2013 and his failure to develop, in particular, new business. The Employer further
set out the Applicant’s performance since the meeting between Mr Saini and Mr Jurisic on 11
June 2013.
[62] 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.
[63] Mr Jurisic could not recall the details of the meeting20 and did not sign the first written
warning memorandum.
[64] Mr Saini, as Mr Jurisic’s direct Manager, provided a detailed witness statement which
addressed the budget setting process, performance requirements, monitoring, concerns about
the Applicant’s performance management plan, the two warnings and the events leading to
the Applicant’s termination of employment. Despite all this detailed written evidence which
was provided to the Applicant in advance, Mr Jurisic did not cross-examine Mr Saini.
Instead, Mr Jurisic attempted to persuade Mr Saini, in cross-examination, of graphs the
Applicant created from data which the Employer was not sure was correct, relevant or how it
was created21.
[65] Despite the Commission requesting Mr Jurisic to focus cross examination of Mr Saini
on matters relevant to his unfair dismissal, the Applicant continued to use the opportunity to
put his own views about his performance, “pipeline” quotations and the budget transmission
from the 2012 to 2013. I am satisfied on the evidence that Mr Jurisic did attempt to
manipulate quotations22.
[66] The Applicant chose how to run his case. Mr Jurisic chose not to cross examine
Mr Saini on crucial and relevant reasons for his dismissal. This failure by Mr Jurisic to deal
with the reasons for his dismissal as set out so clearly by Mr Saini, leads me to conclude that
they were sound, defensible and well founded. I should note that I have reached that
conclusion not entirely because of the failure of Mr Jurisic to cross examine Mr Saini, but
also because of other evidence given in the hearing both oral and documentary.
17 Exhibit R7(6)
18 PN198
19 PN208
20 PN238
21 PN674 and PN676
22 PN764 to PN775
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[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.
[68] Ms Stacey gave evidence that following the second and final written warning on
18 September 2013, she followed up the matter with Mr Saini on 16 October 2013.
Subsequently on 22 October 2013, Mr Jurisic, Mr Saini and Ms Stacey participated in a video
conference. Ms Stacey’s evidence is that:
“...Boris [Mr Jurisic] was presented with the data relating to his performance up to that
date in relation to the KPIs that were set out in the performance management plan.
The data showed that Boris was not meeting the expectations and Matt asked him to
provide a response. Boris’ response did not actually address the KPIs and seemed as
though he was trying to divert away from the issues at hand. He did not provide a
response which actually dealt with his lack of improvement in relation to the KPIs that
had been set for him. He also stated that he was performing as well as the other sales
people and compared his performance to Matt’s. I reiterated that this process was
about Boris’ individual performance and we were not comparing him to others. I made
it clear to Boris in this meeting that his ongoing employment with ABB was in
jeopardy. I asked Boris directly if he understood that this meeting may result in the
termination of his employment. He responded with “yes”. At the conclusion of this
meeting Matt and I discussed that we should provide Boris with the opportunity to
respond in writing. Boris was subsequently provided the request for formal response
letter, and a follow up meeting arranged for the following day, the 23 October 2013.
Matt again met with Boris on 23 October 2013 and I again joined by video conference.
In the meeting Boris presented a document titled “KPI report” as his response to our
request for him to show why his employment should not be terminated We went
through the document in the meeting. I informed Boris that we need to review and
consider his response and I stated that I may have further questions for Boris as a
result. I explained to Boris that this is an important part of the process to ensure that
everyone has a common understanding. My view of the document Boris provided was
that it demonstrated an unwillingness to actually address the issues that were being
raised with him, particularly around his activities with customers and targets.
On 24 October 2013 I received a total of 4 emails from Boris which were simply
forwarded emails with attachments but no explanations of that (sic) the attachments
were. I then sent Boris a clarification and further information letter, requesting further
information from the response provided the previous day. After I sent this letter, I
received an additional 4 emails from Boris, which again were simply forwarded emails
with attachments and no explanations. Because I had received no actual response
from Boris to my letter that morning requesting additional information, just the emails,
I emailed Boris to ask if that constituted his response. Boris then responded that those
emails were not a response but did not explain their purpose. Early the next morning
on 25 October 2013 I received a further “FYI” email from Boris with no explanation
and then a further letter.”
[69] Ms Stacey’s evidence remained intact and I find accordingly.
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[70] By 24 October 2013, Mr Jurisic was considerably behind in quotations, sales and was
required to answer simple and direct questions regarding manipulation of quotation data.
Mr Jurisic was confronted with this data and questions knowing that his employment was at
risk. Mr Jurisic responds with “attachments”. In response to a communication from the
Employer, Mr Jurisic engaged in definitional issues, required clarification, made comparisons
with Mr Saini’s performance and Mr Saini’s inability to take responsibility, and finally, how
Mr Saini could improve his grammar.
[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. Given this
propensity to disengage from the hearing process, the Employer’s complaints that Mr Jurisic
would not take ownership of the performance process was recognizable.
[72] Mr Jurisic asserts, in his defence, that the Employer should have taken the “long view”
regarding his performance and not focus entirely on the period February to October 2013.
Shortly put, he says judge me by the past, not the present Whether the market the Employer
operates in is able to accommodate such an approach is one thing, but Mr Jurisic’s reluctance
or inability to engage in a process to improve his performance was critical. Similarly, in the
hearing, the most commonly recognised response to meetings to discuss his performance,
were words to the effect, “I can’t remember”.
[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.
[74] Mr Jurisic, at the hearing, essentially attempted to put a competing view to the
Employer’s assessment of his performance. Mr Jurisic asked the Commission to prefer his
account of his performance and reject the Employer’s account. The Applicant did not explain
why I should take this course of action. Mr Jurisic, at the hearing, considers that the
presentation of “his” data was sufficient to repel any argument of the Employer. This
application was not a case of conflicting accounts “on-the-papers” but a situation when
Mr Jurisic had the opportunity to cross-examine the Employer’s detailed statement of facts
and witness statements and, for a large part, chose not to do so. Consequently, I was able to
make an assessment of the competing views of the Applicant’s performance and engagement
in the disciplinary process from February to October 2013.
23 Transcript PN591
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[75] Having considered all the facts and evidence, I am satisfied that the Employer had a
sound and defensible reason to terminate Mr Jurisic’s employment.
s.387(b) - notification of the reasons for termination of employment
[76] As I have set out above, Mr Jurisic was aware of his performance being monitored
since February 2013 and the reasons for his termination of employment. The reasons
contained in his termination of employment are, shortly put:
sales deficiencies;
conduct;
written warnings;
lack of openness and honesty with respect to the “pipeline” quotations;
lack of ownership of issues relating to his performance; and
no improvement following reminders, coaching and written warnings.
s.387(c) - opportunity to respond
[77] I am satisfied, on the evidence, that Mr Jurisic had, over a long period of time, the
opportunity to respond to both his performance and conduct regarding the matters which
ultimately led to his termination of his employment.
s.387(d) - support person
[78] 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.
s.387(e) - unsatisfactory performance
[79] The evidence demonstrates that Mr Jurisic was, among others, counselled informally
regarding his performance and subsequently formally warned about his performance.
s.387(f) - size of enterprise
s.387(g) - Human Resources
[80] The Employer is a relatively large employer, and accordingly, demonstrated a high
standard of human resources practices leading to Mr Jurisic’s termination of employment.
s.387(h) - other matters
[81] I am satisfied that there are no other matters involved in this application which require
consideration. The Employer considered the Applicant’s age, length of service, prospects of
alternative employment and the appropriateness of alternative employment prior to his
termination of employment.
[82] Where the Employer refers to a breakdown and trust because of the Applicant’s
conduct and performance in the letter of termination of employment, it appears to me that it
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went to significant lengths to achieve a viable and productive employment relationship;
ultimately the relationship failed but it was not for the want of trying on the Employer’s
behalf.
CONCLUSION
[83] In conclusion, for the reasons set out above, I was satisfied that Mr Jurisic’s dismissal
from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the
application was dismissed on 1 May 2014. An Order to this effect is issued conjointly with
these Reasons for Decision.
COMMISSIONER
Appearances:
B Jurisic, the Applicant on his own behalf.
K Aistrope of counsel on behalf of the Respondent.
Hearing details:
2014:
Perth
1 May.
Printed by authority of the Commonwealth Government Printer
Price code C, PR552128
