| [2020] FWC 4776 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Viliarbie Vence
v
Bouvourie P/L. aft The Danbar Plastics Unit Trust T/A Danbar Plastics
(U2020/7069)
COMMISSIONER BISSETT |
MELBOURNE, 18 SEPTEMBER 2020 |
Application for an unfair dismissal remedy –valid reason for dismissal – poor performance – not given adequate opportunity to improve performance – termination of employment unreasonable – applicant unfairly dismissed – compensation ordered.
[1] Mr Viliarbie Vence (Applicant) has made an application to the Fair Work Commission seeking relief from unfair dismissal. The Applicant was employed by Bouvourie P/L. aft The Danbar Plastics Unit Trust T/A Dunbar Plastics (Respondent) as a Plastic Injection Moulding Diesetter/Toolmaker carrying out moulding, diesetting and maintenance tasks. The Applicant commenced working for the Respondent on 29 February 2016. His employment was terminated on 30 April 2020.
[2] I granted the Applicant permission to be represented by a lawyer being satisfied that he was unable to represent himself effectively.
[3] At the commencement of the hearing, having heard from the parties, I determined that the application should be dealt with by way of a determinative conference.
[4] The Applicant provided two witness statements – one of 24 July 2020 1 and a further statement in reply to that of the Respondent’s witnesses on 21 August 2020.2
[5] Evidence was given for the Respondent by Mr James Robertson, owner and Manager of the business, Ms Jenny Rissmann, Factory Floor Supervisor and Ms Charelle Baker, Printer and Production Packer.
[6] The Applicant commenced employment with the Respondent on 29 February 2016. He and his family were sponsored by the Respondent on a temporary migration visa.
[7] The Applicant said that, while he had worked in the plastic injection industry for many years, the specific machinery and systems of the Respondent were different to those he had worked on in the past.
[8] He said that his responsibilities with the Respondent included:
• Preheating machines;
• Releasing water moisture through compressor tanks;
• Checking and preparing machine auxiliaries;
• Preparing and loading materials into the machines;
• Commencing mass production of all machines;
• Machine hopper cleaning;
• Die mould set up and changes, completed 2 to 4 times per day;
• Reloading materials;
• Constant production monitoring;
• Constant coordination with the production staff in terms production quality of the outputs or production defects;
• Troubleshooting of machines if necessary;
• Preparation of the die mould schedule (which includes cleaning and troubleshooting;
• Applying and maintaining good housekeeping principles in the production area (5S' - sorting, sweeping, sanitizing, standardize and sustain);
• Establishing safety measures in the workplace;
• Records maintenance issues in each machine's log book; and
• If time, working on the maintenance checklist provided by the Respondent.
[9] The Applicant said that in late 2018 the Respondent introduced a number of new machines to the factory and that this “increased [his] workload significantly” as he was the only plastic moulder/diesetter/maintenance person employed at the Horsham site. The Applicant agreed that 2 machines were introduced onto the site at this time and one existing machine was removed such that the net increase in machines was one. The Applicant also conceded that it might be that the change of machines occurred in early 2017 and not late 2018 as he had stated.
[10] Mr Robertson said that in February 2019, being concerned at the work of the Applicant, he provided the Applicant with a spreadsheet (maintenance checklist) which outlined the tasks the Applicant was required to “deal with”. Mr Robertson requested an update to the maintenance checklist list on 6 March 2019 from the Applicant but says he received no response. Mr Robertson requested a further update on 24 October 2019. 3 The Applicant agreed that Mr Robertson spoke to him in February 2019 about introducing a new maintenance check system. The Applicant said the checklist contained a “list of tasks that were to be undertaken in order to ensure machines were being regularly maintained.” The Applicant also said he understood the purpose of the checklist was to ensure a written record of when each task was completed.
[11] The Applicant said that between February and November 2019 he “regularly emailed Jim [Robertson] advising him when [he] had completed certain tasks from the checklist.” When I asked the Applicant to produce these emails the Applicant filed a further signed statement 4 in which he said that “[o]n review of my email account, I cannot locate copies of this correspondence. After considering these matters further, I consider it was more likely that during the Period, I either provided updates to Mr Robertson verbally or I asked an employee of the Respondent to log me into the office computer at which time I would also insert my comments and updates directly into the maintenance spreadsheet.” This statement was contrary to what the Applicant had sworn to be true in his first witness statement.
[12] Mr Robertson said that he called the Applicant into a meeting on 22 November 2019 and “explained to him that things could not continue as they were, he either had to get on top of all of the issues on the maintenance list and improve the production or we would get someone to replace him.” 5 While the Applicant agreed that he met with Mr Robertson on 22 November 2019 he says he was told that the maintenance checklist would be updated and reviewed again in 3 months’ time. A copy of the updated maintenance checklist was emailed to the Applicant later that day.6 The Applicant took the discussion and email to mean that the maintenance checklist itself would be reviewed to determine if it was working.
[13] Mr Robertson’s evidence is that for the 3 months from November 2019 he monitored the work of the Applicant, but little progress was made. The Applicant says that between November 2019 and February 2020 he regularly emailed Mr Robertson when he had completed tasks from the maintenance checklist. Neither party provided any evidence of requests for reports or responses to those.
[14] Mr Robertson said he met with the Applicant again in February 2020 and told him that he would have 1 more month to show he could do the job. Mr Robertson also said he would be advertising the Applicant’s position. Mr Robertson said that over the month he “repeatedly” asked the Applicant to provide him with details of the tasks he had attended to or completed. 7
[15] The Applicant said that on 18 February 2020 Mr Robertson emailed him and advised that the 3 month review of the maintenance checklist was due and requested a list of tasks completed. The Applicant responded and said he was providing an updated copy of the checklist with tasks marked off and a separate list of tasks completed. 8 To the extent that it is clear the Applicant did reply to the email of 18 February 20209 there is no evidence of the attachment to that email or the details of the updated maintenance checklist with tasks marked off or a list of tasks completed.
[16] On 2 March 2020 the Applicant replied to Mr Robertson’s email of that day as follows:
Hi Jim,
These are the following items already done improvement and ongoing monitoring every production;
4, 23, 24, 30 , 31, 32, 41, 42, 44, 47, 53, 54
Thanks,
Ploxy [the preferred name of the Applicant]
[17] On 9 March 2020 in response to Mr Robertson’s email of 3 March 2020 10 the Applicant sent a further email to Mr Robertson that said:
Hi Jim,
Please see attach update maintenance list as of first week of March, As of remaining items I can't give exact date of completion as it depend on my time availability while others need help from Vic and your approval for some item needs budget for the cost like for example under General items #37 hoses for hazardous walkways. [sic]
thanks,
Ploxy
[18] On 21 March 2020 the Applicant again replied to an email of Mr Robertson of 20 March 2020 in which said “Hi Vic, Please see the attach update” [sic]. 11
[19] Mr Robertson said that on 6 April 2020 he called the Applicant into his office, discussed the progress since February 2019 and advised the Applicant that he could not be kept on as he did not have the ability to do the job. Mr Robertson said he told the Applicant he was being given 4 weeks’ notice. Mr Robertson said that on 29 April 2020, the day prior to the Applicant’s last day, he provided the Applicant with a USB stick and asked him to copy any work related material from his personal computer to the USB.
[20] The Applicant said that this meeting with Mr Robertson was on 30 March 2020 and not 6 April 2020. Mr Robertson told the Applicant he had “one month to fix everything on the maintenance list and if it’s not done, we are going to terminate your employment”. The Applicant says that the remark shocked him “as this was the first time [the Respondent] had made any comment to [him] about the status of the maintenance checklist” 12. The Applicant said that he had not taken the maintenance checklist to be a reflection of his performance and had not been told it would be used for this purpose.
[21] The Applicant says that from 30 March to 29 April 2020 he provided a weekly update on the maintenance checklist to Mr Robertson. 13 The Applicant said he did not receive any feedback on this.
[22] Following the meeting with Mr Robertson on 29 April 2020 the Applicant sent an email to Mr Robertson that said:
Dear Jim,
This afternoon you gave me a USB and asked me to take it home and to download all the documentation and data related to company I had onto it. To be honest I am not sure what you want me save in the USB so after my time off I ask you again what do I need to save. The only documentation I have ever worked on at home is the reports that I have sent through to you on email. So you should already have all these documents. I tried searching for our previous communications, but had some internet and laptop issue too slow. Please see attached my latest email communication to you with an update on maintenance list report send to you last 26/04/20.
I am feeling very uncertain at the at the moment because I am not sure what is happing at work. I am not getting any feedback to the reports, I provide you and since the new automatic doors were installed I have not been given a new door Key or access code to get in using front main door and I don't know why? for 2 weeks now my door access is at the back of the building which is I'm having difficult during entry due to darkness of the area because all light switches are at the main door.
I value my job and believe that for my 21 years of experience in Injection Moulding manufacturing and another 4 years working with Danbar Plastics provides me with good experience for the job I am doing. I would appreciate a performance appraisal, which would a written process reviewing how I am going. What the future requirements of Danbar Plastics are and how I can contribute to growth, If it is identified that I need any upskilling I would be very happy to undertake. [sic]
[23] The Applicant says that on 30 April 2020 he met Mr Robertson in his office where Mr Robertson asked him about the email. When the Applicant replied that he was uncertain as to what should be saved to the USB stick he says that Mr Robertson said “[y]ou already know that I told you to improve your performance, so today is your last day.” There was then a discussion as to what time the Applicant should work to and the handing in of keys.
[24] Mr Robertson said that he now felt like the email was “setting him up” for an unfair dismissal claim by the Applicant.
[25] The Respondent also relies on the evidence of Ms Jenny Rissmann and Ms Charelle Baker in support of its submission that the Applicant was not performing his work at the standard required.
[26] Ms Rissmann has worked of the Respondent for over 18 years. She said that there are procedures in place so that the factory runs smoothly but that things went “downhill” when the Applicant worked there. She said that there are always busy times when you would get behind but says she never saw it as bad as it was when the Applicant was there.
[27] Ms Rissmann said that the Applicant’s cleanliness and tidiness where not good, he left things lying around and he did not attend to tasks in a timely manner. She said that she hoped the Applicant would improve but he didn’t. She also said that the Applicant did not appear to grasp the running of the machines, he was not clean and tidy, he hid things and the product was not good.
[28] Ms Rissmann said that she was required to mix the material for various jobs and that she spent quite a bit of time cleaning up spillages and generally tidying up (which I understood she considered these tasks to be that of the Applicant).
[29] Ms Rissmann said she attended a meeting between Mr Robertson and the Applicant on 22 November 2019. She said that Mr Robertson talked to the Applicant about the job that needed to be done and that it was not being done, things had not improved and the girls (production packers) were complaining as they were not getting their work done because they had to continually trim the products or fix the machines. Ms Rissmann said that the quality of the product being produced was embarrassing. She also said she remembered the meeting because you “don’t forget things like” 14 someone being told that if things don’t improve in 3 months he will be replaced.
[30] Ms Rissmann said she also attended the meeting between Mr Robertson and the Applicant in February 2020 where the “maintenance checklist” 15 was provided to the Applicant. She agreed that the maintenance checklist was a set of tasks to be seen to by the Applicant.
[31] Ms Baker gave evidence that the Applicant ran processes quite poorly and he did not have his machines under control. She said that he was neat and tidy when he first started but this deteriorated with the Applicant leaving mouldings on the floor which created a hazard.
[32] Ms Baker gave evidence of a safety incident, of the poor quality of the work and inefficiencies caused by poor work quality and the need to trim the products produced by the Applicant.
[33] I would observe the quality of the evidence before the Commission was poor from both parties.
[34] It was apparent as the Applicant was taken through his witness statement that a number of the statements he made – although he had sworn to the truthfulness of the statement – were wrong or exaggerated. This is exemplified by the further signed statement the Applicant provided in relation to his statement of emails sent to the Respondent that did not, in fact, exist and his changed statement that it was more than likely he verbally reported back to Mr Robertson or used the computer in the office to enter the information. This casts a pall over the totality of the Applicant’s evidence which raises questions of the reliability of his evidence as a whole.
[35] Mr Robertson was at times belligerent and defensive in his evidence and missed the opportunity provided to clearly articulate the steps he had taken to raise performance issues with the Applicant and follow through with those. His defensive posture, particularly during reasonable cross-examination, raises questions as to the reliability of the answers he gave.
[36] Neither the Applicant nor Mr Robertson appreciated the need to provide factual evidence that would allow the Commission to evaluate the circumstances of, and determine if, the dismissal was unfair. Each was more intent on protecting his own position through embellishment, misleading or defensive responses.
[37] Both Ms Rissmann and Ms Baker appeared to have been honest witnesses who openly placed before the Commission what they had seen and experienced.
[38] It is agreed that the Applicant made his application within the time period prescribed by the Fair Work Act 2009 (FW Act), that the Respondent is not a small business as defined in the FW Act such that the provisions of the Small Business Fair Dismissal Code do not apply and that his dismissal was not as a result of redundancy.
[39] Further, it is agreed that the Applicant is protected from unfair dismissal.
[40] In order to determine if the Applicant was unfairly dismissed it is necessary to determine if the dismissal was harsh, unjust or unreasonable.
[41] Section 387 of the FW Act sets out those matters the Commission must take into account in determining if a dismissal is harsh, unjust or unreasonable. Section 387 states 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.
[42] I have considered each of these matters as necessary below.
[43] In Rode v Burwood Mitsubishi 16 a Full Bench of the Australian Industrial Relations Commission held that “the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”17
[44] A person’s capacity includes their ability to do their job as required by the employer and the ability of the person to do the work they were employed to do. In this case capacity operates to include the standard at which the work is performed. The Applicant’s employment was terminated because he was not performing the job he was employed to do at the standard required of the employer. This was not due to illness but rather attributable to the care and diligence with which he attended his tasks. 18
[45] The Respondent relies on a general failure of the Applicant to work at the level expected of him despite the engagement of a specialty trainer to provide him with training 19 and advice of people to contact to assist in resolving specific matters.20 The Respondent also relies on the evidence of Ms Rissmann and Ms Baker, along with Mr Robertson, to support its views of the Applicant’s performance.
[46] The Respondent filed a substantial number of photographs which showed an apparent state of untidiness, poor repairs and maintenance, water on the floor, product which required “trimming” and apparently hidden and incorrectly mixed (therefore wasted) materials. Beyond the product which required trimming the Applicant did not counter issues of tidiness and maintenance standards as shown in the photographs except to blame the machines and his workload.
[47] While the Applicant said that around late 2018 he was given additional work to do, including maintenance of parts from the Ballarat factory and vehicle maintenance, and that additional machines were brought into the Horsham factory, I am not convinced that this explains the quality issues, cleanliness and tidiness issues or all of the examples of poor maintenance not explained by him. Further, I accept that there was only one net additional machine brought into the Horsham factory; that the vehicle maintenance involved driving the factory car into the yard and putting the battery on the charger and that the Applicant was employed, in part, to undertake maintenance so that this task given to him was hardly unexpected. I consider that the Applicant’s claims of increased workload exaggerated in this respect.
[48] Beyond the Applicant saying that he was not to blame for issues of quality – the machines were old, he had to repair the machines which would sometimes take hours and the machines needed updating – the Applicant has not properly explained those things of which the Respondent complains: the quality of his work; the cleanliness of the area he was responsible for and his failure to attend to maintenance tasks. To the extent that the Applicant says that the need to trim the product was caused by mould defects and inadequate machinery (and hence, I gather, the need to often change the moulds) I am satisfied that this was not an issue with the Applicant’s predecessor and that the moulds are changed much less frequently now that the Applicant no longer works for the Respondent (and these tasks are now being done by Mr Robertson).
[49] The Applicant claimed that he was given no training and that the machines were foreign to him and he therefore could not work to the level required of the Respondent. I deal with the training issue below but note that, even if the Applicant was given no training, it does not explain the level of untidiness in the Applicant’s work area. The ability to keep areas clear and free of clutter is not a matter on which detailed training is required. Further, I have noted an email sent by the Applicant to Mr Robertson on 12 September 2015 21 prior to being offered the position, which suggests the machines were not foreign to him:
Sorry for the late response, I'm very thankful for the effort you done to my application & with regards to your inquiry about my experience Tool making as Tooling Mold Maintenance for 5 years in my previous job I perform Connector & Engineering Mold Overhauling & repair. Able to operate Surface & Forming Grinder & Jig Milling Machine for our spare parts fabrication as well as Iron works using Electrical Welding Machine, aside from those tooling machine I can operate both Vertical & Horizontal Injection Machine also I can use measuring equipment like Caliper, Height Gauge, micrometer, Profile Projector. I can assure that hiring me for the position will be leg up for the company since I been working for Injection manufacturing company for 19 years for more details please refer to attach CV. [sic]
[50] To the extent the Applicant gave evidence that the machines of the Respondent were horizontal injecting machines and his experience was on vertical machines, this email indicates he said he had experience on both types of machines. The email also suggests the Applicant was capable of undertaking maintenance work.
[51] I prefer the evidence of Ms Rissmann and Ms Baker in relation to issues they saw and experienced with the Applicant’s performance, the rework they say was required, the waste and the delays.
[52] I am satisfied, on the basis of the evidence, that the Applicant’s performance of his function was not to the standard required of him by the Respondent.
[53] I am satisfied that the Respondent, for this reason, had a valid reason for the dismissal of the Applicant based on his capacity to do his job.
[54] In reaching my conclusion I have not had regard to a variety of text messages from unidentified employees of the Respondent. I would observe however that the evidence of Ms Rissmann and Ms Baker is not contrary to this material.
[55] I am satisfied that the Applicant was told on 6 April 2020 22 that he had 1 month to fix the maintenance issues or his employment would be terminated. In this respect I am satisfied, at this time, that the Applicant was advised of the reasons for his dismissal and was given 1 month to dissuade the Respondent from this course of action. This much is clear from the Applicant’s evidence at paragraph [20] above.
[56] For the reasons given below however I am not satisfied that the Applicant was afforded procedural fairness in that it was not clear how he could satisfy the concerns of the Respondent within that 1 month period such that he might dissuade the Respondent from the course of action it was set upon.
[57] There is no dispute that the Respondent advertised the Applicant’s position on 20 March 2020. Mr Robertson said he told the Applicant that he was doing so. He said he did so because he knew, if he did have to dismiss the Applicant, it would take quite some time to find a replacement, particularly for work in a regional area.
[58] I accept that the Respondent knew that the process it had undertaken with the Applicant may lead to his dismissal. From Mr Robertson’s perspective he had concerns of the Applicant’s performance going back a year. He knew how long it could take to find a replacement and I accept he was acting with caution in advertising the position at this time. I do not accept that he had made a definite decision to dismiss the Applicant at the time he advertised the position.
[59] This matter was not raised by the Applicant as an issue in these proceedings. I therefore consider it a neutral consideration.
[60] A critical issue in dealing with performance issues of a person is that the person must know the performance standards required of them and be warned of the consequences of a failure to improve.
[61] In Fastidia Pty Ltd v Goodwin 23 the Full Bench of the Australian Industrial Relations Commission said that a warning must:
- identify the relevant aspect of the employee’s performance which is of concern to the employer; and
- make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.
[62] A mere exhortation to improve is not enough.
[63] In McCarron v Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd 24 I observed that:
[32] The purpose of a warning about unsatisfactory performance must be to identify the performance that is of concern and must make it clear that a failure to heed the warning places the Applicant’s employment at risk.25 Such a warning gives an employee an opportunity to improve in those areas identified as requiring improvement. An integral part of such a warning must be to clearly identify the areas of deficiency, the assistance or training that might be provided, the standards required and a reasonable timeframe within which the employee is required to meet such standards.
[64] In this case I am not satisfied, for the reasons given below, that the Respondent did each of the following:
(a) clearly identified the areas of deficiency in the Applicants performance;
(b) identified the standards to which the Applicant was required to improve;
(c) set a clear timeframe within which the improvement should be achieved;
(d) provided training and support so as to assist the Applicant to improve.
(a) & (b) - identify deficiencies and the standards required
[65] I do not accept that the Respondent advised the Applicant clearly of those areas in which his performance was deficient beyond general claims of the need to improve and the provision of the regular maintenance checklist. 26 This is, at best, no more than an urging the Applicant to improve.
[66] The maintenance checklist is no more than that – a list of tasks to be done. To the extent it might identify work not yet completed I accept it as that. It is not, however, an identification of problems or errors or poor quality of workmanship in the work performed, an indicator of work not being performed on time or an indicator of the standard to which it is expected work will be performed.
[67] On the basis of the evidence before me I accept that the Applicant was advised at the meeting of 22 November 2019 that his performance had to improve. The evidence of Ms Rissmann adds weight to that of Mr Robertson. I accept Ms Rissmann’s statement that “you don’t forget things like” someone being told they may lose their job. The Applicant appears to accept by his evidence that he was at least advised of the need to report regularly on completed tasks from the maintenance checklist. He said in his evidence that he provided regular reports to Mr Robertson between February 2019 and November 2019 (although I find no evidence of these actually being provided).
[68] To the extent that the Respondent sought regular reports from the Applicant as to the completion of tasks on the maintenance checklist I am not satisfied, on the basis of the evidence before me, that the Applicant provided such reports until 21 February 2020. It appears that over the final two months (that is, March and April 2020) of the Applicant’s employment and, even then, he did not provide a weekly report to the Respondent. The evidence suggests that on only one occasion, 2 March 2020, did the Applicant specify in correspondence he has produced the tasks actually completed by him.
[69] However, the requirement to advise on the tasks to be completed does not amount to advice being given as to the standard of that work. Further, the task list went primarily to maintenance matters and did not go to quality or tidiness or waste issues. To the extent the maintenance checklist included such things as “improve production output” this is not sufficient. It does not indicate what aspects of production output were to be improved – was it quality, quantity or timeliness? To the extent the maintenance checklist indicated matters required “on-going monitoring” this is not an indication of deficiency or of some (improved) standard required. Whether it means weekly maintenance or maintenance as required or close monitoring is not apparent.
(c) - a timeframe for improvement
[70] The Applicant said that he was not given any notice of the need to achieve outcomes against the maintenance checklist.
[71] The evidence of emails between the Applicant and Mr Robertson after the meeting of 20 February 2020 supports a conclusion that the Applicant was at least aware of the need for him to demonstrate some progress on the maintenance checklist provided to him and that he had 1 month in which to do so. The Applicant’s evidence of the conversation with Mr Robertson at the meeting of 6 April 2020 (or 30 March 2020 on the Applicant’s reckoning) that he was told he had “one month to fix everything on the maintenance list and if it’s not done, we are going to terminate your employment” shocked him as this was the “first time” anything had been said to him about the status of the maintenance checklist is clearly not correct on his own evidence.
[72] As the Applicant said in his evidence that between February 2019 and November 2019 he regularly emailed Mr Robertson (corrected in his later statement) on updates to the status of tasks on the maintenance checklist and that he also did this from November 2019 to March 2020. 27 From this it can be inferred that the Applicant was aware, a year prior to his dismissal, that there was some monitoring of the work he was doing. Certainly by February 2020 his mind should have been well focussed on the need for improvement.
[73] I am therefore satisfied that the Applicant was given a timeframe within which he was to demonstrate completion of tasks on the maintenance checklist.
(d) - provision of training
[74] The Respondent says, and I accept, that it provided the Applicant with training 28 but that training was in mid-2017. Either the Respondent accepted the progress of the Applicant at that stage or did not identify any further training for him. In any event it left the Applicant in situ for a further 18 months before, on Mr Robertson’s evidence, any further action was taken in relation to the Applicant’s performance in early 2019. In this regard the training given in mid-2017 was not in relation to performance issues identified in 2019 or early 2020.
[75] Mr Robertson also says that he provided the Applicant with people to contact to assist in resolving specific matters. 29 I note that while the Applicant initially denied such assistance was available to him he did eventually agree that he had been provided with some industry contacts. I am, however, not satisfied that this was structured in such a way that it could be properly considered training designed to assist the Applicant improve his performance in identified ways. In reaching this conclusion I am cognisant of a seeming reluctance of the Applicant to utilise the contacts he was given in the industry in undertaking his work. Had he accepted the assistance offered through these contacts he may have been able to meet the performance demands of him.
[76] I accept that the Applicant had access to Vic Chen, the Ballarat Factory Manager, for assistance and that the Applicant did seek his assistance from time to time.
[77] I also accept that the Applicant did have access to documented procedures manuals in the workplace and that these were in hard copy.
Conclusion
[78] For these reasons I do not accept that the Respondent clearly articulated to the Applicant the deficiencies in his work performance or the standard required to be achieved. Further, it is not apparent on the evidence, and I do not accept, that the Respondent provided training to the Applicant at the time he required it. I do accept that the Applicant was aware that he had 1 month within which he was to show improvement even though the standard was not clearly articulated.
[79] I would observe that it is not apparent that the Applicant was being asked to undertake work that he was not qualified to perform. The Applicant had worked in the area and had spelt out his broad range of experience and capabilities in the email to the Respondent of 12 September 2015, prior to his employment. 30
[80] For these reasons I am not satisfied that the Applicant was satisfactorily warned of his performance.
[81] I accept that the Respondent, whilst not a small business as defined in the FW Act, is not a large business, and that it operates across sites in two towns in regional Victoria. The evidence before me suggests that the Respondent does not have a large staff turnover. It certainly does not have any in-house human resources expertise.
[82] In acknowledging the limitations caused by the size of the business it must also be expected that it will not (and clearly does not) have developed processes for managing poor performance. The Respondent should not be expected to have such sophisticated procedures and the mere existence of well written or developed procedures does not inoculate any business from error in managing performance issues in the workplace.
[83] I accept that Mr Robertson did have in place some procedures that are sensible. He had Ms Rissmann present at meetings with the Applicant. He developed a list of tasks to be completed by the Applicant and provided those to him with a request for regular updates. What was missing was a clear articulation of the standard to which work was required to be done and timelines within which it was required and some clear review points. This may involve discussion of the need to remove rubbish from the factory floor within a certain number of days, the need to reduce the proportion of product which required trimming or the need for certain maintenance tasks to be performed and checked off daily or weekly. It should also include some process of specific review dates during the period over which improvement is expected to be demonstrated.
[84] It is not enough just to list the tasks and the timeline but there must be regular discussion of performance against the requirements – is the factory area clean, has waste reduced and so on, within the timeframes previously given. Such an approach ensures clear articulation and review of performance such that performance changes can be properly monitored.
[85] Whilst it is not expected that all business have highly structured process for managing employees there are some simple steps that can be taken, including the keeping of notes of conversations in a diary for example. This is not time consuming but does provide a record of the dates and content of discussions with employees and some detail of feedback provided.
[86] The Applicant submits that the dismissal has had a substantial economic impact on him.
[87] The Respondent submits that it has provided substantial support to the Applicant and his family including supporting the family’s application for permanent residency even after the Applicant’s employment had ended.
[88] Whilst I have found that there was a valid reason related to the Applicant’s capacity for his dismissal there was such deficiency in the process of warning and articulation of the work standard required of the Applicant in relation to his performance that I am satisfied that the dismissal could not be justified. Without such clear articulation the Applicant could not know what was required of him to keep his job.
[89] For this reason I am satisfied that the dismissal was unreasonable.
[90] For the reasons given above, I am satisfied that the Applicant was unfairly dismissed.
[91] Being satisfied that the Applicant was unfairly dismissed it is necessary to consider the appropriate remedy.
[92] Section 392 of the FW Act sets out those matters to be taken into account in determining remedy. Section 392 states that:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
[93] The Respondent has made no submissions on the effect on the viability of the business of an award of compensation except to say that the Applicant should not be rewarded for dishonesty (s.392(2)(a)).
[94] The Applicant worked for the Respondent from 29 February 2016 until 30 April 2020, a period of 4 years and 2 months (s.392(2)(b)).
[95] In order to determine the remuneration the Applicant would have received had his employment not been terminated it is necessary to consider how long he would have remained employed had his employment not been terminated.
[96] The Applicant submits that he would have worked with the Respondent “in perpetuity” had his employment not been terminated. Whilst this was not disputed by the Respondent, the claim fails to recognise the Respondent’s growing frustration with the Applicant’s performance.
[97] I consider that, had the Applicant’s employment not been terminated he would have been placed under a suitably structured performance plan. I am, however, not convinced, on the basis of the evidence given as to his performance, that he would have met the requirements of the business and consider that his employment would have been terminated within 9 months.
[98] In making this assessment I consider that the Applicant may well have been able to tick off things completed on the maintenance checklist but I am not convinced that his performance would improve such that the quality of product would improve, that delays would be reduced of the frustration of others assuaged. The business is a relatively small operation – it could not afford to have its reputation adversely affected on an on-going basis.
[99] The Applicant was earning $1,052.04 per week at the time of the termination of his employment. His lost remuneration for 9 months (39 weeks) is therefore $41,029.56.
[100] I am satisfied that I should make a deduction of 10% for general contingencies. This brings the loss suffered by the Applicant to $36,926.60 (s.392(2)(c)).
[101] I am satisfied that the Applicant has taken steps to mitigate his loss and has secured employment. I do not consider I should make any deduction for a failure to mitigate his loss (s.392(2)(d)).
[102] The Applicant gained employment working as a casual employee from 15 June 2020. His rate of pay for that employment is $32.75 per hour (inclusive of the casual loading). His earnings for a 38 hour week are $1,244.50. He has therefore earned, from 15 June 2020 until 25 August 2020 (10 weeks) $12,445.00. I am satisfied I should add to this ($1244.50 x 3 weeks = $3,733.50) $16,178.50 to determine his earnings from the time of his dismissal until the time of this decision (s.392(2)(e)).
[103] I have considered that there is, subject to the deduction below, little reason to assume the Applicant’s employment is temporary in nature (in that it appears not to be truly “casual” work but rather on-going work where the Applicant is engaged on a causal contract) (s.392(2)(g)).
[104] Should the Applicant maintain his current employment he would earn, for the period I found he would otherwise have remained employed by the Respondent (that is until 30 January 2020) $40,570.70. I have reduced this amount of earnings by 20% given the casual nature of the employment and the current economic circumstances. This takes his earnings to $32,456.56.
[105] In determining this amount I have taken into account the amount of income likely to be earned by the Applicant during the period between the making of the order for compensation and the actual compensation (s.392(2)(f)).
[106] This results in a loss to the Applicant of $4,470.04 over the relevant period.
[107] In Kable v Bozelle, Michael Keith T/A Matilda Greenbank 31 the Full Bench of the Commission said that the payment of compensation is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal. That loss, in this case, is wages that would otherwise have been earned. The loss, however, must be offset against what an employee will earn from new employment (in circumstances where such employment is gained by the employee). The FW Act also requires that additional matters be considered in determining the loss including attempts by the employee to mitigate the loss by seeking further employment. An employee who takes no action to try and secure new employment cannot, except in exceptional circumstances, consider they should be compensated for the totality of the loss (taking into account the compensation cap). On the reverse side, an employee who gains further employment and actually suffers no loss of income attributable to the dismissal will have no grounds for compensation. The nuisance of the dismissal or the pain caused by it is not a matter for which compensation is granted – that is part of the shock, hurt and humiliation of the dismissal and compensation for that is strictly not to be considered or granted. These feelings of hurt are offset by the issue of a decision of the Commission which vindicates the person’s sense that their dismissal was unfair.
[108] In this case I consider that the loss to the Applicant is $4,470.04 and that this amount should be ordered in compensation.
[109] There was no misconduct by the Applicant such that the amount of compensation should be reduced for such a reason and the amount I have decided to award does not include any amount for hurt or distress. Further, it does not exceed the compensation cap.
[110] An order 32 requiring the Respondent to pay to the Applicant an amount of $4,470.04 plus 9.5% superannuation (paid into the applicant’s superannuation fund) in compensation within 14 days of the date of this decision will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
H. Pararajasingham for the Applicant.
J. Robertson for the Respondent.
Hearing details:
2020.
Melbourne by video.
August, 25 and 27.
Printed by authority of the Commonwealth Government Printer
<PR722561>
1 Exhibit A1.
2 Exhibit A2.
3 Exhibit A1, attachment DP11A and 11B.
4 Witness Statement of Viliarbie Vence dated 26 August 2020.
5 Exhibit R1, paragraph 19.
6 See Exhibit A1, attachment VV-4.
7 Exhibit R1, attachment DP11-D (18 February 2020), DP11-E (24 February 2020), DP11-F (2 March 2020) and DP11-H (20 March 2020).
8 Exhibit A1, attachment VV-5 is the email from Mr Robertson. Exhibit A2, attachment VV-9 is a string of emails, one of which is the reply of the Applicant to Mr Robertson on 21 February 2020.
9 See email chain in exhibit R1, attachment DP11-E.
10 Email chain in exhibit R1, attachment DP11-DPF. See also exhibit A2, attachment VV-9.
11 Exhibit A2, attachment VV-9.
12 Exhibit A1, paragraphs 30-31.
13 Exhibit A1, paragraph 32. Exhibit A2, attachment VV-9 show emails of 21 March 2020, 13 April 2020 and 26 April 2020.
14 Transcript at PN1147 - PN1153.
15 Exhibit R2, attachment JR-1.
16 PR4471.
17 Ibid at [19].
18 See Annetta v Ansett Australia Ltd Print S6824.
19 Exhibit R1 paragraph 14 and attachment DP05 and DP06.
20 Exhibit R1 paragraph 9.
21 Exhibit R1 attachment DP-15.
22 While the Applicant says the meeting took place on 30 March 2020 nothing turns on which date is correct.
23 Print S9280.
25 Fastidia Pty Ltd v Goodwin Print S9280, [43].
26 See, for example, exhibit R2, attachment JR 1.
27 Exhibit A1, paragraph 25.
28 Exhibit R1 paragraph 14 and attachment DP05 and DP06.
29 Exhibit R1 paragraph 9.
30 Exhibit R1, attachment DP15.