[2010] FWA 2946

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jitendra T Joshi
v
Panasonic Australia Pty Ltd
(U2009/12008)

COMMISSIONER CAMBRIDGE

SYDNEY, 15 APRIL 2010

Unfair dismissal - alleged inadequate work performance - imprecise stated reason for dismissal reflective of invalid reason – erroneous procedure – denial of natural justice – failure to follow stated procedure – no contemplation of lesser penalty – no consideration of length of service or personal circumstances of applicant – harsh, unreasonable and unjust dismissal – reinstatement.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 10 September 2009. The application was made by Jitendra T Joshi, (the applicant) and named the respondent employer as Panasonic Australia Pty Ltd, (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 27 August 2009. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act. Conciliation of the claim was unsuccessful and the matter proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted over three days, 11, 12 February and 18 March 2010.

[3] At the Hearing the applicant was the only witness called to provide evidence in support of the claim. The employer called two witnesses, Ms Simone Blomeley and Mr Brett Buckingham.

Factual Background

[4] The applicant is a man of some 58 years of age. The applicant had worked for the employer for a little over 15 years. At the time of his dismissal, the applicant was working in the position of Senior Warranty Analyst a position he had been promoted to in June 2007. The applicant’s position involved work across four main areas; e-Trading and System development; ASC collections; Warranty Investigation; and Reporting.

[5] The applicant had a broadly unblemished employment record until 19 May 2009 when he was required to attend a meeting with, inter alia, his immediate supervisor, Ms Simone Blomeley. At this meeting Ms Blomeley issued the applicant with a document titled FORMAL WRITTEN WARNING – PERFORMANCE.

[6] Solicitors acting on behalf of the applicant responded to the formal written warning with lengthy correspondence dated 23 June 2009. This correspondence disputed the detail of the performance issues that had been raised by the employer and requested the withdrawal of the formal written warning. The employer declined to withdraw the formal written warning.

[7] The applicant attended another disciplinary meeting on 1 July 2009. At this meeting Ms Blomeley raised further performance complaints against the applicant and issued him with a document titled FINAL FORMAL WRITTEN WARNING – PERFORMANCE. Once again solicitors acting for the applicant wrote to the employer and disputed the final warning. In correspondence dated 29 July 2009, the applicant’s solicitors contested the employer’s disciplinary process, and requested that the employer discontinue the counselling process and withdraw the written warnings. The employer declined these requests.

[8] On 21 July 2009, the applicant attended a “catch-up” meeting with Ms Blomeley, Ms Kellie Langbecker, the employer’s HR Business Partner, and Mr Brett Buckingham the employer’s Director Customer Service. During this meeting further performance complaints were raised against the applicant. On this occasion the applicant did not have a support person present as the meeting was not considered to be part of the formal disciplinary process.

[9] The applicant was provided with correspondence dated 21 August 2009 from Mr Buckingham which required the applicant to attend a meeting on 25 of August 2009 at which time the applicant would be required to show cause as to why the employer should not consider terminating his employment. The applicant attended the meeting on 25 August 2009 and was subsequently advised that his employment was terminated on and from 27 August 2009.

The Applicant’s Case

[10] Mr Magee, counsel for the applicant, submitted that there was not a valid reason for the dismissal that related to the applicant's capacity or conduct. Mr Magee submitted that the two primary grounds for termination relied upon by the employer involved (i) failure to follow instructions and (ii) reporting accuracy and completion. According to Mr Magee neither of these two matters had any basis in fact.

[11] Mr Magee made detailed submissions that challenged the various allegations made in respect of the applicant’s reporting functions. These submissions concluded that the various complaints were matters that either the applicant properly rectified or were of such insignificance as to be unable to provide valid basis for legitimate performance complaint so as to justify dismissal. In particular Mr Magee stressed that there was no evidence of any instances of the applicant failing to follow instruction or providing inaccurate reporting in the period after the “catch-up” meeting of 21 July until dismissal on 27 August.

[12] Mr Magee submitted that the matters relied upon by the employer as basis for the applicant's dismissal when considered either individually or taken as a course of conduct, could not objectively, be said to be poor performance to warrant the issuing of the warning letters let alone being the core basis for the dismissal of the applicant.

[13] Mr Magee made further submissions which strongly criticised the procedure that had been followed by the employer in relation to the performance counselling and disciplinary procedure which ultimately led to the dismissal of the applicant. Mr Magee said that the procedure followed by the employer contained serious defects such that the applicant was denied procedural fairness. Mr Magee stressed that the employer did not follow various components which were stated in its own written policy regarding handling of performance review matters. In this regard Mr Magee made detailed submissions which identified alleged defects that occurred in respect of the various meetings and associated processes that culminated in the show cause dismissal meeting held on 25 August 2009.

[14] In summary Mr Magee stated that on both substantive and procedural grounds the dismissal of the applicant was harsh, unreasonable and unjust and therefore FWA should find that the applicant had been unfairly dismissed. Mr Magee urged FWA to provide for the reinstatement of the applicant and to make further Orders regarding continuity of employment and payment of remuneration for the period between dismissal and reinstatement.

The Respondent’s Case

[15] Mr O’Donnell, solicitor, who appeared on behalf of the employer, submitted that the dismissal of the applicant was not harsh, unjust or unreasonable. Mr O’Donnell submitted that there was valid reason for the dismissal related to the applicant's capacity and/or conduct. Mr O’Donnell stated that the reasons for the applicant's dismissal were poor performance including not following directions, unsatisfactory reporting accuracy and completion of reporting tasks.

[16] Mr O’Donnell made submissions which detailed the various performance issues that were the subject of ongoing review by the employer. Mr O’Donnell submitted that the applicant refused to accept responsibility for the various issues that had been identified by the employer during the performance review. Mr O’Donnell submitted that there was ample evidence to establish that the applicant had failed to follow direction and failed to provide satisfactory reporting accuracy as required by the employer. Mr O’Donnell said that these matters represented valid reason for the applicant's dismissal.

[17] Mr O’Donnell made further submissions which rejected the applicant's assertions about the alleged defective process that the employer adopted leading to the dismissal. In this regard it was submitted that the applicant was properly notified of the reasons for dismissal. Further the applicant had been given adequate opportunity to respond to the issues raised by the employer. The applicant was allowed and in fact availed himself of the opportunity to have a support person present to assist at all relevant times. Importantly, the applicant was warned about unsatisfactory performance and provided with formal warning letters dated 19 May 2009 and 1 July 2009.

[18] The submissions made by Mr O’Donnell also addressed the alleged misconduct of the applicant in respect to a bundle of documents that were the property of the employer being taken and retained by the applicant for a period of time. Mr O’Donnell submitted that although the employer did not have knowledge of this misconduct at the time of the dismissal it was a matter that FWA could properly consider in the context of an unfair dismissal claim. In particular Mr O’Donnell sought to rely upon this matter as providing basis to establish a breakdown in the relationship of trust and confidence between the applicant and the employer.

[19] Mr O’Donnell made further submissions which challenged the accuracy and veracity of the applicant’s evidence. In this regard it was said that the applicant’s version of the events immediately following the meeting held on 25 August were not supported by an objective analysis of uncontested evidence surrounding those events. Consequently according to the submissions of Mr O’Donnell, FWA should prefer the evidence provided by witnesses for the employer wherever that evidence differed from the evidence provided by the applicant.

[20] In summary Mr O’Donnell submitted that there was no basis for FWA to find that the applicant had been unfairly dismissed. Therefore Mr O’Donnell urged that the application for unfair dismissal remedy be dismissed.

[21] In a supplementary alternative submission Mr O’Donnell reiterated his earlier submissions about the evidence that he said established that there had been a breakdown of the relationship of trust between the applicant and the employer. In this alternative submission Mr O’Donnell argued that the loss of trust meant that reinstatement would not be an appropriate remedy if FWA was to find that the applicant had been unfairly dismissed. If such circumstances arose, Mr O’Donnell suggested that payment of no more than five weeks would be adequate compensation.

Consideration

[22] Section 385 of the Act stipulates that FWA is to be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

[23] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that FWA must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

Valid reason for the dismissal related to capacity or conduct

[24] The letter of dismissal given to the applicant on 27 August 2009 stated that “… as a result of a pattern of performance issues, your employment with Panasonic Australia Pty Ltd has been terminated…” 1 There was no other documentary material that elaborated upon or detailed the reason or reasons for dismissal beyond the terminology of “pattern of performance issues” as contained in the letter of dismissal.

[25] The absence of any realistic articulation of the reason or reasons for dismissal could logically represent an invalid basis for dismissal. The broad description of “a pattern of performance issues” is so imprecise that it is not capable of representing a valid reason for dismissal. However the employer has the benefit that in making any proper determination of an application for unfair dismissal remedy, FWA is required to examine the circumstances of the dismissal beyond the inadequacies that might be identified in the stated reasons for dismissal.

[26] In this instance the performance issues that were apparently encompassed by the terminology used in the letter of dismissal involved matters that had been the subject of disciplinary interviews on 19 May, 1 July and (to a lesser extent), 21 July 2009. The inadequately expressed reasons for the dismissal could nevertheless be suggestive of valid reason or reasons. Therefore the various issues that were the subject of the disciplinary interviews have needed to be identified and evaluated as to whether those issues could represent a valid basis for dismissal.

[27] There were essentially three issues that were the subject of the disciplinary interview of 19 May. Two of the issues related to the applicant's performance in respect to providing two reporting functions, the warranty loss cost report and the low cost replacement report. The third issue related to the applicant's apparent failure to attend an off-site meeting (the Haden meeting) and the applicant’s apparent failure to advise the employer of his non-attendance at that meeting.

[28] In respect of the two reporting issues raised at the interview on 19 May, the evidence provided by Simone Blomeley, the employer’s Customer Service Manager, clearly confirmed that the applicant had quickly and accurately rectified the concerns that had been raised about both the warranty loss cost report and the low cost replacement report, (see transcript of proceedings 12/02/2010 at paragraphs 1546 to 1549).

[29] The issue regarding the applicant's non-attendance at the Haden meeting related to an event that occurred on 13 March 2009, over two months earlier. In the context of a disciplinary interview this issue was stale and appeared to have been included in the written warning letter given to the applicant on 19 May in an attempt to artificially bolster the number of allegations made against the applicant. The artificiality of this complaint against the applicant was confirmed upon an analysis of the detail surrounding the Haden meeting.

[30] The applicant did not attend the Haden meeting as planned because on the evening before the proposed meeting he had developed a solution to the problems that were to be the subject of the meeting. The solution developed by the applicant was ultimately the subject of positive feedback and praise from management representatives at Haden. The evidence confirmed that there would have been no useful purpose served in the applicant travelling to Haden and although he should have taken steps to advise relevant managers of the changed circumstances, his actions in not attending the meeting after developing a solution to the relevant problems benefited the employer significantly. Consequently the Haden meeting issue could not represent a valid performance or conduct matter upon which to rely, even in part, as basis for dismissal.

[31] The matters that were raised with the applicant on 19 May were not the subject of review at the next disciplinary interview held on 1 July 2009. Instead Ms Blomeley prepared a final formal written warning in respect of different reports that the applicant was responsible for preparing. As with the report issues that had been raised with the applicant at a meeting of 19 May, the matters that were the subject of criticism on 1 July were quickly and accurately rectified by the applicant (see transcript of proceedings 12/02/2010 at paragraphs 1606 and 1607).

[32] The applicant attended a further meeting described as a “catch-up” meeting. This meeting was held on 21 July 2009. At the “catch-up” meeting the performance issues that had been raised at the 1 July meeting were not the subject of any review but instead new issues of alleged inaccuracies in the applicant's work were raised. The applicant was absent from work on sick leave between 6 and 17 July and therefore the “catch-up” meeting on 21 July only had capacity to deal with a limited period during which the applicant was actually performing work. Although the applicant was absent on sick leave he attempted to perform some of his reporting functions from home and this action was the subject of criticism by the employer at the “catch-up” meeting of 21 July.

[33] Consequently the “catch-up” meeting might have more accurately been described as the “Catch 22” meeting. The applicant was being criticised for inaccurate or inadequate reporting and when he attempted to work on his reporting functions whilst on sick leave so as to address the alleged inaccuracies he was admonished for performing duties whilst on sick leave.

[34] The applicant was subsequently directed to attend a meeting on 25 of August 2009. The employer advised the applicant that the meeting of 25 August was held to discuss the applicant's progress with respect to the matters contained in the formal warning notices. The applicant was advised that he would need to show cause as to why his employment should not be terminated. The applicant was subsequently terminated and the apparent reasons for the dismissal relating to the “pattern of performance issues” as described in a letter of dismissal, are identified as arising from the matters contained in the formal warning notices given at the disciplinary meetings held on 19 May and 1 July.

[35] The pattern of performance that can be concluded from an analysis of the issues contained in the formal warning notices established that the applicant quickly and accurately rectified the reporting criticisms that were contained in the warning notices. The rectification is plainly evident in that the particular reporting issues contained in one warning notice were not the subject of any review at the subsequent meeting(s). Consequently the pattern that has emerged is that when presented with a particular criticism the applicant has rectified any identified deficiency and he has done so quickly and accurately and sometimes within very short timeframes.

[36] Therefore the inadequate articulation of the reason for the applicant's dismissal contained in the letter of dismissal is truly reflective of the underlying inadequacy of actual reason or reasons for the dismissal. Accordingly there was no valid reason for dismissal relating to the applicant’s capacity or conduct.

Notification of reason for dismissal

[37] The logical purpose for providing notification of any reason for dismissal would be to provide for an opportunity to make out a defence or offer explanation for the proffered reason for dismissal. In this instance the meeting held on 25 August represented the relevant occasion for providing the notification of the reason for dismissal.

[38] The meeting notes that were taken by Ms Blomeley 2 were unfortunately titled ‘Termination Interview” and show that the employer described the reason for (potential) dismissal as involving “… concerns that there still has been no performance improvement identified.” There was no identification made of any particular performance inadequacies despite the reporting issues that had been the subject of the earlier written warnings having been satisfactorily rectified by the applicant.

[39] As the meeting notes of 25 August reveal, the applicant believed that he had properly addressed the various issues that had been raised in the earlier meetings. Solicitors acting on behalf of the applicant had provided lengthy detailed responses in respect to the performance issues that had been raised at the earlier meetings. The applicant was simply told that there had been no performance improvement but no further elaboration or details followed. It would have been difficult, indeed almost impossible, for the applicant to respond to the generalised propositions that were advanced at the meeting on 25 August as the basis for (potential) dismissal. Consequently although a notification of the reason for dismissal was provided it was vague and generalised and therefore meaningless.

Opportunity to respond to any reason related to capacity or conduct

[40] The applicant had been given opportunity to respond to the particular issues that were raised in the written warnings. As stated earlier, the applicant had quickly and accurately rectified any particular problems that had been identified. However when confronted with the broad generalisations that subsequently emerged the opportunity to respond to such nebulous propositions represented a futility. Consequently although an opportunity to respond was provided to the applicant that opportunity was pointless and as such did not represent a valid or proper opportunity to respond.

Unreasonable refusal to allow a support person to assist

[41] There was no evidence that the applicant was unreasonably refused permission to have a support person to assist. However the arrangements made for the “catch-up” meeting held on 21 July did not include suggestion that a support person may be invited and consequently the applicant attended that meeting without a support person to assist.

[42] Therefore there was no refusal as such, to allow a support person to be present but given that more senior members of management were in attendance at the “catch-up” meeting the absence of a support person appeared to arise more by misunderstanding as to the nature of the “catch-up’ meeting rather than any direct refusal. Should such misunderstanding have been entirely unintentional a prudent employer, cognisant of procedural fairness requirements, would have delayed the meeting so as to ensure the attendance of a support person.

Warning about unsatisfactory performance

[43] The applicant was dismissed because of an alleged pattern of performance issues. These issues appeared to relate to the matters that were contained in two written warnings given to the applicant on 19 May and 1 July respectively. Although as already mentioned, the applicant rectified particular issues that were identified in the written warnings, the warnings have highly questionable value for another reason.

[44] The evidence provided by Ms Bromeley confirmed that at both the 19 May and 1 July meetings she had pre-prepared a script that was read to the applicant during the meetings, and she had also prepared the written warning documents before the meetings. During cross examination Ms Bromeley agreed that the preparation of a script and the written warnings before the meetings presupposed the outcome of the meetings.

[45] In these circumstances the meetings were little more than a mechanical process held to satisfy a technical requirement and provide the appearance that a proper process had been followed. In reality the applicant could say or do nothing that would have had any likelihood of changing the pre-determined outcomes. Similarly, the formal written warnings that were issued at the conclusion of these meetings were an integral part of the pretence.

[46] The employers attempted reliance upon these warnings was discredited further by evidence that the employer’s documented policies, particularly in respect to the timeframes stipulated to address allegations of inadequate work performance, were not followed. Consequently although the applicant was provided with written warnings about alleged inadequate work performance these warnings were invalid.

Size of enterprise likely to impact on procedures

[47] This factor has no relevance in this instance.

Absence of management specialists or expertise likely to impact on procedures

[48] This factor has no relevance in this instance.

Other relevant matters

[49] The applicant had worked for Panasonic Australia for over 15 years. Unfortunately there was no evidence that the employer had any regard for the applicant's long service when it was considering the applicant's dismissal.

[50] The issues that were said to give rise to the applicant’s inadequate work performance were limited to reporting functions which were less than a quarter of the total range of work functions performed by the applicant. There was no evidence that the applicant performed the substantial proportion of his work in anything other than an entirely satisfactory manner. In many respects the applicant exceeded work performance expectations in all other areas of his work.

[51] There was no evidence that the employer contemplated any other measures less severe than dismissal as a means to address the concerns that were said to have existed in respect of the applicant’s work performance. The applicant had been promoted to the Senior Warranty Analyst position in 2007. However there was no evidence that the employer contemplated demotion and/or the removal of the applicant’s reporting functions as an alternative to dismissal.

[52] The applicant was 58 years of age and there was no evidence that the employer had any regard for the particular impact of dismissal on a person of the applicant's age as part of the consideration that led to the decision to dismiss.

[53] The employer sought to rely upon the alleged misconduct of the applicant regarding an issue that arose after the dismissal. This alleged misconduct involved the applicant retaining a bundle of computer printout documents which were the property of the employer. The bundle of documents was admitted as an exhibit during the proceedings (Exhibit 6).

[54] The employer asserted that the applicant had taken and retained the bundle of documents in Exhibit 6 which were the property of the employer. The respective representatives of the applicant and the employer had exchanged communications about the return of the bundle of documents, Exhibit 6. Essentially the employer submitted that the applicant had committed misconduct by retaining these documents contrary to the expressed request of the employer to have them returned.

[55] The documents contained in Exhibit 6 relate to the reporting functions of the applicant which were the subject of the disciplinary interview process and ultimately dismissal. The applicant claimed that these documents were integral to his defence against the allegations of poor work performance regarding the various reporting functions.

[56] The applicant had an obvious and understandable need to have the material contained in Exhibit 6. However the employer's complaint appeared to concentrate upon the applicant's refusal to return the documents after formal request had been made by the employer for such return. Eventually, by way of correspondence dated 20 November 2009, lawyers acting on behalf of the applicant returned the documents (Exhibit 6) to the representatives of the employer, Australian Industry Group.

[57] The refusal to return the documents contained in Exhibit 6 must be considered in the context of, (a) the contested dismissal involving subject matter contained in the documents, and (b) advice to the employer on 23 June 2009 that the applicant was represented by lawyers. In this context the delay in the return of the documents contained in Exhibit 6 cannot be properly construed to represent misconduct on the part of the applicant.

Conclusion

[58] The applicant was dismissed “as a result of a pattern of performance issues...” The absence of any verifiable details to support the generalised reason given for dismissal has established that there was no valid reason relating to conduct or performance for the applicant's dismissal. The absence of valid reason for dismissal means that on a substantive basis the applicant’s dismissal was harsh, unreasonable and unjust.

[59] The process that the employer adopted involving disciplinary meetings that had predetermined outcomes and pre-prepared warning documents was seriously flawed such that the applicant was denied natural justice. Although the applicant was provided with various opportunities to respond to allegations made against him the employer acknowledged that any response provided by the applicant would be ignored 3. The employer also failed to follow its documented policy procedures. Consequently the decision to dismiss the applicant was made by way of manifestly deficient procedure and therefore on a procedural basis the applicant’s dismissal was harsh, unreasonable and unjust.

Remedy

[60] The applicant sought reinstatement as remedy for his alleged unfair dismissal. The employer made an alternative submission opposing any remedy of reinstatement on the basis that it would be inappropriate to restore the employment relationship. The employer submitted that there had been a breakdown of trust between the applicant and management thus making reinstatement inappropriate.

[61] Upon review there was very little evidence to establish that there had been any breakdown of trust between the applicant and the employer. In particular it should be noted that Simone Blomeley had only recently (1 March 2009) become directly responsible for supervising the work of the applicant. The relatively recent change in management supervision of the applicant needs to be compared and contrasted with the applicant's more than 15 years service.

[62] Consequently I believe that reinstatement and associated Orders for continuity and lost remuneration provide for an appropriate, proper and just remedy in this instance. Accordingly separate Orders (PR996108) providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr C Magee, barrister with Mr P Doughman, solicitor for the applicant.

Solicitors for the applicant: Barwick Legal

Mr B O’Donnell, solicitor with Ms D Priestley, HR Director, for the employer.

Solicitors for the employer: K P O’Donnell & Associates

Hearing details:

Sydney 11, 12 February and 18 March 2010

 1   Exhibit 2 Annexure 18.

 2   Exhibit 11.

 3   Transcript of proceedings (12/02/2010) @ PN1492.



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