Applicant v Respondent

[2011] FWA 5769

[2011] FWA 5769

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Respondent
(U2011/7541)

COMMISSIONER GOOLEY MELBOURNE, 30 AUGUST 2011

Application for unfair dismissal remedy.

[1] The Applicant was employed by the Respondent as a co-manager of an accommodation service for people with intellectual disabilities. He commenced this position on 21 March 2011 having previously being employed as a night and weekend manager from November 2009.

[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed. The application was referred to conciliation on 2 June 2011, and then for hearing on 8 August 2011.

[3] The Applicant appeared for himself and Mr N the director of the Respondent appeared for the Respondent.

[4] The parties consented to the matter proceeding by way of conference. 1

[5] The Applicant gave sworn evidence on his own behalf and Mr N, Mr H the other co-manager and Ms P an assistant manager gave sworn evidence for the Respondent.

[6] Mr H had previously been the sole manager of the facility and when the co-manager’s position was created he recommended to Mr N that the Applicant be appointed to the position.

[7] The Applicant’s position involved managing the facility which housed 65-70 intellectually disabled clients who were provided with board and lodging. The work involved direct contact with clients, their case managers and service providers. In addition the work involved administrative duties and marketing.

Jurisdiction of Fair Work Australia

[8] There is no dispute that the Applicant is a person who was protected from unfair dismissal. Further it is not disputed that the Respondent was at the time of the termination of the Applicant’s employment a small business. Fair Work Australia has the jurisdiction to determine the application.

The Evidence of the Applicant

[9] When first offered the position of co-manager the Applicant was offered an Individual Transitional Employment Agreement (ITEA) which provided at clause 21 for a three month probationary period. There is no dispute that this ITEA was signed by the Applicant. However at that date, ITEA’s could not be made under the FW Act. The document was however arguably the Applicant’s contract of employment. However it is not necessary to determine the status of the document. It was not contested by the Respondent that the Applicant had been employed for longer than 12 months.

[10] It was the Applicant’s evidence that he performed the duties expected of him.

[11] He accepted he was late for work on two occasions in the eight weeks.

[12] He denied that he had not performed handovers, however in his submissions, he admitted missing one handover. 2

[13] He denied that he did work for his own business during working time. It was his evidence that any work done for his own business was done in his own time.

[14] He denied not doing his fair share of the paper work. It was his evidence that there was some paper work he did not know how to do, and it was his evidence that Mr H told him if he didn’t know how to do it, to leave it, and Mr H would go through it with him. The Applicant gave evidence that he was given inadequate training. 3

[15] The Applicant denied that he did not do marketing. It was his evidence that the marketing plan was drawn up on 2 March 2011 and that he and his co-manager were only able to do marketing when the other was available to cover the work. Therefore they agreed to focus on marketing on Wednesday afternoons. It was his evidence that on 16 March 2011 his co-manager made marketing calls and the next week his co-manager did follow up visits. He was therefore not able to commence marketing until 30 March 2011 when he submitted that he made six marketing phone calls.  4

[16] The Applicant denied he spent unnecessary time preparing forms. It was his evidence that at the first manager’s meeting on 2 March 2011 he was asked to create 16 new forms.

[17] On 30 March 2011 the Applicant received an email in which Mr N advised both co-managers that he wanted to meet with them to discuss their marketing activities over the preceding week and for them to give him their views on directions and improvements for the facility that they wished to implement in the next 60 days. The meetings were held with each manager separately.

[18] The Applicant met with Mr N on 6 April 2011 and the Applicant accepted that marketing, amongst other matters, was discussed but he denied that he was told that his work performance was not satisfactory and that he was at risk of losing his job. 5

[19] On 18 April 2011 Mr N told the Applicant that he was not up to the job and offered him the chance to resign his employment. The Applicant refused to resign and his employment was terminated and he was given a letter of termination. That letter made reference to the probationary period. The Applicant was paid one week’s pay in lieu of notice.

The Evidence of the Respondent

[20] Mr N gave evidence that he held a meeting on 2 March 2011 with Mr H and the Applicant. That meeting discussed the matters to be addressed by the new management team. Mr N said he emphasised “the importance of improving business practices - in particular marketing.” 6

[21] Mr N said he was in regular phone contact with the facility and visited the facility regularly to see how things were going. It was his evidence that he expected “a dramatic improvement to the previous operation where there was only one key manager on site.” 7

[22] After one month Mr N became concerned about the lack of outcomes. 8 He noted that no marketing had been done and “no planning had occurred to even start marketing or to compile referral lists.”9

[23] He had discussions with Mr H about the Applicant’s performance. Mr H complained to Mr N about the time the Applicant was spending doing spreadsheets and that he was not doing his fair share of the paper work. Mr H told Mr N that he had discussed this with the Applicant and he had not responded. 10

[24] On 17 March 2011, Mr N spoke to the Applicant about the paper work and told him that the paper work was a joint responsibility and he should not leave it to Mr H. The Applicant told Mr N that he did not know how to do all the jobs and was told by Mr H that he should ask him if he did not know how to do something. 11 Mr N gave evidence that he was concerned at this point by the Applicant’s response.

[25] After a week Mr N attended the facility to see if the Applicant was doing his share of the paper work. It was his evidence that in this time Mr H had given the Applicant time to do his share but it was clear to Mr N that the Applicant had not done much of the work. It was his evidence that the Applicant had spent the time doing spreadsheets rather than the more important work. 12

[26] Mr N spoke to the Applicant again about the need for him to contribute equally to the job.

[27] Mr N was also concerned about the lack of marketing. He spoke to Mr H and asked him to get the Applicant to do some marketing.

[28] Mr N said he spoke to the Applicant about his approach and told him the importance of marketing. He said he made it clear to the Applicant that “he needed to start doing a lot more straight away.” 13

[29] Mr H advised Mr N that the Applicant was focusing on his own business and was not focused on his job, was not willing to do extra tasks and showed no initiative. 14

[30] Mr N sent the Applicant and Mr H an email on 30 March 2011 in which he called a meeting with both managers separately. He told them that they needed to “come prepared to discuss what you have done the week prior in relation to marketing, plus give [him] your clear views on directions and improvements for [the facility] that you wish to implement in the next 60 days.” 15

[31] On 30 March 2011 Mr H arranged for the Applicant to have some time to do marketing. It was Mr N’s evidence that the Applicant only spent one hour in his eight weeks as co-manager doing marketing. 16

[32] Mr N met with the Applicant on 6 April 2011 to discuss the matters raised in his email dated 30 March 2011. Mr N was unhappy with the Applicant’s response at the meeting. Mr N was concerned that the Applicant was focusing on office procedures and not marketing. Mr N told the Applicant that he had “one week to show [him] he was prepared to do what [he] wanted him to do or [he] would have to reconsider his job.” 17

[33] Mr N said he told the Applicant “to go back to the office and within a week put in Outlook reminders a list of the referral agencies he was going to call the following week. He was told he had to do this to show that he was keen to get involved and then to phone and follow up these contracts.” 18

[34] On 11 April 2011 Mr N attended the office to meet with a support agency. It was his evidence that the Applicant was in charge of the office during this meeting. He observed the Applicant ignore two phone calls received in the office and someone knocking on the door.  19

[35] On 15 April 2011 Mr N attended the office to check on the Applicant’s progress. He checked the Outlook diary but nothing had been entered into the diary. Mr N spoke to Mr H who told him that the Applicant had done very little all week. 20 Mr N was also told that the Applicant had failed on one occasion to do a handover to the incoming manager.21

[36] On 18 April 2011 the Applicant’s employment was terminated. Mr N told the Applicant that he had had concerns about this performance and he had been given an opportunity to improve but he had not done so. The Applicant was given a letter of dismissal. 22

[37] Mr H’s evidence 23 was consistent with Mr N’s evidence. He gave evidence that he had raised his concerns about the Applicant’s lack of interest in his position. He complained to both the Applicant and Mr N that the Applicant was not doing his share of paper work. He heard Mr N speak to the Applicant about this. He also heard Mr N tell the Applicant that he should not be spending so much time on spreadsheets. He also heard Mr N tell the Applicant about the need to put an emphasis on marketing.24

[38] Mr H only observed the Applicant work on marketing for one hour in eight weeks and it was his evidence that this only occurred because he initiated this work. 25

[39] Mr H said he observed the Applicant on numerous occasions making and receiving phone calls about his private business. Mr H rejected the Applicant’s evidence that he only did this during his own time. 26 He observed the Applicant doing work for his business when he should have been doing paper work. Further he witnessed the Applicant having a 20 minute discussion with a chemical company representative about cleaning products for his private business during working hours.27

[40] Mr H also received a complaint from the night manager who told him that the Applicant had left without doing a handover. As a result when she received a call from the hospital about a patient, she was unable to assist.

[41] On 7 April 2011 Mr H spoke to the Applicant after he returned from meeting with Mr N. The Applicant told Mr H that Mr N “was not prepared to listen to him as all he wanted to talk about was marketing and told him his work performance was not up to scratch.” The Applicant told Mr H that he told Mr N that he “needed a solid base to work with and that there was no structure in the office.” 28

[42] Ms P gave evidence that on a couple of occasions the Applicant left at the end of his shift without completing the standard handover procedure. It was her evidence that on one occasion this left her in a difficult position in relation to a medical issue with a resident. 29

[43] It was her evidence that the Applicant did private work during working hours, didn’t complete tasks, spent too much time doing spreadsheets, was late for work and lacked initiative. 30 She passed on her concerns to Mr H.

The Small Business Fair Dismissal Code

[44] The FW Act at section 385 provides that a person has not been unfairly dismissed if Fair Work Australia is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[45] It is not disputed that the Small Business Fair Dismissal Code (the Code) applies:

“The Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[46] This is not a case of serious misconduct.

[47] I prefer the evidence of Mr N in this matter to that of the Applicant. Much of Mr N’s evidence is corroborated by Mr H. Mr H had been a strong advocate for the Applicant. There is nothing to suggest any ill-will between him and the Applicant. Mr H gave his evidence honestly. This is not to suggest that the Applicant has been dishonest in his answers. However when performance issues are discussed it is unsurprising that the employer and employee come away from the discussions with a different perspective, particularly when the employer is trying to encourage the employee to improve. This is why the Code says it is preferable that any warnings be in writing. An employee given a warning in writing cannot deny the receipt of the warning. In this matter there was no written warning.

[48] The Applicant submitted that he was denied procedural fairness. He submitted that Mr N dismissed him during what Mr N thought was his probation period and he only subsequently went back to find reasons to justify the termination of his employment. 31 I do not accept this submission which suggests that Mr N terminated the Applicant’s employment for some reason other than those articulated by Mr N at the hearing.

[49] There is no doubt that Mr N thought that the Applicant was on probation and therefore could not bring an unfair dismissal application. However this does not mean that the reasons given for the termination were not valid nor that the Applicant was not given sufficient warnings about his work performance.

[50] The Applicant submitted that many of the matters now used to justify the termination of his employment were not the reason he was terminated. He submitted that these matters were only raised post dismissal. He submitted that lateness, handover, the forms and doing work on his own business during working hours were never raised with him during his employment.

[51] The Applicant admitted that he was not doing all the paper work. He said he was spoken to about this and explained why he could not do it. It was his submission that he required training and that was not forthcoming. 32

[52] The Applicant accepted that Mr N raised marketing with him but he submitted there was a difference between bringing it up as a general comment and bringing it up as a work performance issue. 33 He submitted he had not been told that if his marketing did not improve he would be dismissed. He submitted that he had provided Mr N with a marketing report at the meeting on 6 April 2011 but Mr N had not read it.34

[53] I put to the Applicant that his marketing report showed that he made the calls after he received an email from his employer asking him to report on his marketing activities. I put to him that it could appear that he was proactive only after being prompted by his employer. It was the Applicant’s submission that the marketing plan had been drawn up after the meeting on 2 March 2011. The Applicant submitted that the co-managers could only market every second Wednesday because they needed one manager to mind the front desk while the other manager did the marketing either in the office or out of the office. 35 It was his submission that Mr H started on the first Wednesday and his first opportunity was 30 March 2011.

[54] While the Applicant thought that Mr H made his calls on 16 March 2011 this does not make sense. If Mr H started the process the next Wednesday, he would have been allocated marketing on 9 March 2011 with follow up visits the next Wednesday. The Applicant would then have been able to start marketing on 23 March 2011. However he did not commence until he was prompted by his employer’s email on 30 March 2011. Even if his dates were correct, no explanation was given about why marketing was limited to Wednesday as both Mr H and the Applicant were rostered to work together on other days of the week.

[55] To support his claim that there was no issue with marketing the Applicant relied upon minutes of a managers’ meeting dated 28 March 2011 in which it was recorded that Mr N was happy with the marketing schedule. Mr N denied seeing these minutes and said they did not accurately reflect his views.

[56] The Applicant submitted that the email sent on 30 March 2011 to both him and Mr H did not put him on notice that his performance was an issue. However Mr H told the Applicant that “[MrN]’s pretty serious when he sends these sorts of emails and that he wants us to do some background work.... make sure you’ve got what he’s asked for, because I think [Mr N] is getting very frustrated.” 36

Was there a valid reason based on the employee’s capacity to do the job?

[57] I find in this matter that Mr N was dissatisfied with the Applicant’s performance. Mr N’s evidence is consistent with Mr H’s evidence. There is nothing to suggest that Mr N’s expectations were unreasonable. He had made a decision to employ an additional manager to improve business practices and in particular to increase the marketing of the business. I accept Mr N’s evidence that the Applicant did not perform at the level he expected. There was no evidence to support a finding that Mr N’s expectations were unreasonable.

[58] Poor performance is a valid reason for the termination of an employee’s employment.

Was the employee warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement?

[59] No warnings were put in writing.

[60] I find on the evidence before the Tribunal that Mr N explained to the Applicant the areas of improvement required, namely marketing and paper work. I find that despite being spoken to on a number of occasions about these matters, the Applicant’s performance did not improve. I find that on 6 April 2011 Mr N made it clear to the Applicant that if his performance did not improve his job was at risk.

Was the employee given a reasonable chance to rectify the problem, having regard to the employee’s response?

[61] The Applicant was given reasonable chances to do his fair share of the work and he did not take that opportunity. Further he was given a reasonable chance to improve his marketing work. In fact Mr N’s expectations in the weeks after the meeting on 6 April 2011 were not great. Mr N gave the Applicant clear instructions that he needed to use Outlook to document what he intended doing about marketing and he did not do this.

[62] Further examples of poor performance occurred after 6 April 2011 and Mr N terminated the Applicant’s employment.

Was the Applicant afforded the opportunity to have another person present to assist in the discussions where his employment was at risk?

[63] The Applicant did not ask to have a support person at the meeting on 18 April 2011. This is not surprising as, on the Applicant’s evidence, he did not realise his employment was at risk. However the presence of a support person would not have changed the outcome of the meeting on 18 April 2011.

Conclusion

[64] While I accept the submissions of the Applicant that the Respondent did not in his letter of termination set out the reasons for his dismissal, the comment that they “had reviewed the outcomes since the commencement of his employment” is consistent with Mr N’s evidence that he had the expectation that having two managers would result in a significant increase in marketing and that this did not occur. I also accept the Applicant’s submissions that some of the matters relied upon by the Respondent were not discussed with him prior to the termination of his employment.

[65] Be that as it may, the two issues relied upon by the Respondent, namely the failure to do his share of the paperwork and to market the business were discussed with him. He was provided with an opportunity to improve and in relation to the paper work Mr H had offered to show him how to complete paper work if he didn’t know how to do it. The evidence suggests that instead of asking Mr H, the Applicant left the work for Mr H to complete. Further in relation to Mr N’s direction about putting in Outlook reminders and lists he simply failed to do it. In failing to respond to Mr N’s suggestions he did not take the opportunity to rectify the problem identified by Mr N.

[66] In all the circumstances I find that the dismissal was consistent with the Small Business Fair Dismissal Code and therefore the application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

The Applicant appeared on his own behalf.

Mr N appeared for the Respondent.

Hearing details:

2011.

Brisbane:

8 August.

 1 See section 398 of the FW Act

 2   Exhibit A2

 3   Ibid

 4   Ibid

 5   Ibid

 6   Exhibit R 1 at [5]

 7   Ibid at [6]

 8   Ibid at [7]

 9   Ibid at [8]

 10   Ibid at [9]

 11   Ibid at [10]

 12   Ibid at [11]

 13   Ibid at [14]

 14   Ibid at [15]

 15   Ibid at N

 16   Ibid at [13]

 17   Ibid at [18]

 18   Ibid at [19]

 19   Ibid at [21]

 20   Ibid at [22]

 21   Ibid at [23]

 22   Ibid at [25]

 23   Exhibit R3

 24   Ibid at [8]-[10]

 25   Ibid at [10

 26   Ibid at [11]

 27   Ibid

 28   Ibid at [15]

 29   Exhibit R4 at [3]

 30   Ibid at [2]

 31   Transcript PN 656

 32   Ibid PN 657

 33   Ibid PN 658

 34   Ibid PN 659

 35   Ibid PN 663

 36   Ibid PN 513

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