Barbara Meffert v Paperlinx Australia Pty Ltd T/A Spicers Paper

[2010] FWA 8144

[2010] FWA 8144

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Barbara Meffert
v
Paperlinx Australia Pty Ltd T/A Spicers Paper
(U2010/9852)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 26 OCTOBER 2010

Termination of employment - valid reason - fair process - performance management - not harsh, unjust or unreasonable.

[1] On 21 June 2010 Mrs Meffert lodged an application pursuant to section 394 of the Fair Work Act 2009 (the Act). In this application Mrs Meffert sought relief with respect to the termination of her employment by PaperlinX Australia Pty Ltd trading as Spicers Paper (Spicers). Mrs Meffert’s application was the subject of conciliation on 14 July 2010. It was referred to me for arbitration on 30 September 2010 and was the subject of a hearing on 15 October 2010.

[2] At this hearing, Mrs Meffert represented herself and Ms Kruger of the Printing Industries Association of Australia represented Spicers.

[3] At the outset it is appropriate that I note that the decision I have reached in this matter may have been quite different had the case been presented differently. I have taken into account that Mrs Meffert was not represented and have applied the principle of a fair go all round set out in section 381. However, the application of this principle does not provide licence to found conclusions that may be possible but are not supported by evidence.

[4] The background to the application is that Mrs Meffert was employed by Spicers from October 1983 until 10 June 2010. At the time of the termination of her employment she was engaged under the terms of the Clerks Private Sector Award 2010. No issues associated with Mrs Meffert’s behaviour were raised with her throughout her employment history and her work performance was not questioned until 2010.

[5] Mrs Meffert worked in the Spicer customer service area. She processed customer credits for orders, assisted customers with enquiries, prepared quotations and, from 2010, ensured adequate paper stocks in a sample “wall”.

[6] Mr Hamlyn was Mrs Meffert’s manager from July 2009. In January 2010 Mr Hamlyn identified four specific tasks within the customer services area that were then shared amongst the employees in this area. Mrs Meffert, together with Ms Spagnoletti, assumed responsibility for the stocking of the sample wall. The extent to which Ms Spagnoletti was responsible for managing this function as distinct from actually performing it is a matter in dispute between the parties. Mrs Meffert was advised that she should take approximately one hour per day away from her normal customer service duties so as to complete this sample wall task.

[7] In February 2010 Mr Hamlyn identified to the Spicers Human Resources Business partner, a range of concerns which he had with respect to Mrs Meffert’s work attitude, computer and telephone skills. Mr Hamlyn also conducted a performance review with Mrs Meffert. In this review he identified a range of performance concerns with a focus on time management. Notwithstanding these more general concerns, Mr Hamlyn implemented a process of weekly meetings with Mrs Meffert on 22 March 2010 to address performance concerns specific to the stocking of the sample wall. At these meetings Mr Hamlyn reduced the sample wall tasks into a number of component parts. Mrs Meffert was offered assistance in this task.

[8] In the weekly meetings that followed, Mr Hamlyn identified continuing concerns with respect to the completion of the sample wall stocking task but also identified other concerns with Mrs Meffert’s work performance. These related to errors in credit processing work undertaken by Mrs Meffert and Mr Hamlyn’s assessment that Mrs Meffert had not properly complied with a requirement that she compile a presentation to other staff and management detailing a proposed approach to an identified operational problem. The extent to which Mr Hamlyn’s concerns were substantiated is a matter in dispute between the parties. Additionally, the extent to which Mr Hamlyn’s conduct of the weekly meetings constituted bullying of Mrs Meffert is also in dispute.

[9] In April 2010 Mrs Meffert met with Mr Laforgia, the Group Regional Manager responsible for the overall operation of the Spicers facility in which Mrs Meffert worked. Mr Laforgia had known Mrs Meffert for a very long time and arranged this meeting in order to discuss the performance concerns with respect to Mrs Meffert. Mr Laforgia suggested that Mrs Meffert seek assistance relative to these performance concerns and offered to assist her himself.

[10] In early May Mrs Meffert communicated with Spicers Human Resources Business Partner, Ms Trosky by e-mail and by telephone. She expressed her concern over the performance management process. The extent to which she identified specific bullying concerns with respect to Mr Hamlyn is disputed.

[11] On 5 May 2010 the weekly performance management meetings were escalated to the extent that Mrs Meffert was given a first formal warning in relation to her work performance. This warning referenced a two-week review period and referred to possible further disciplinary action which might ultimately result in termination of employment. It confirmed an offer of assistance in the completion of the tasks allocated to Mrs Meffert.

[12] At the next scheduled meeting, on 12 May 2010, Mr Hamlyn again identified performance issues relative to credit entries, Mrs Meffert’s presentation and the stocking of the sample wall. Additional time was allocated to Mrs Meffert to complete the sample wall function. Mrs Meffert became upset after a subsequent discussion with Mr Hamlyn and left the workplace. Again, the extent to which adequate time was provided to Mrs Meffert for this sample wall function and Mr Hamlyn’s behaviour are matters in dispute.

[13] Mr Laforgia subsequently spoke with Mrs Meffert by telephone and met with her the following day.

[14] The weekly performance management meetings continued. On 26 May 2010 Mr Hamlyn issued Mrs Meffert with a second formal written warning relative to the completion of tasks within specified timeframes. Again, this documented warning provided for a two-week review period and forecast further disciplinary action which could ultimately result in dismissal. It confirmed a further offer of assistance.

[15] Mr Hamlyn continued to identify performance issues in the subsequent weekly meetings with Mrs Meffert.

[16] Mrs Meffert was advised of a further formal meeting to be held on 10 June 2010 and that she was entitled to bring with her to this meeting, a support person. She attended this meeting with her daughter in this capacity. Mr Hamlyn and Mr Laforgia attended this meeting. Spicers’ continuing concerns relative to the stocking of the sample wall, the presentation and credit entry errors were identified and discussed with Mrs Meffert. The meeting was adjourned to allow consideration of Mrs Meffert’s request for more time to complete the stocking of the sample wall function. During this adjournment the Spicers management representatives discussed the issue with Ms Trosky and resolved to terminate Mrs Meffert’s employment. Advice to this effect was provided to her and was confirmed in correspondence of that same day. Mrs Meffert was paid five weeks pay.

The Submissions

[17] Mrs Meffert asserts that Mr Hamlyn’s approach towards her and his expectations of her performance were unreasonable so that the performance management process was founded on a fundamentally flawed premise. Further, Mrs Meffert asserts that the stocking of the sample wall and her presentation were relatively trivial issues which could not constitute a valid reason for the termination of employment in the context of her long-standing employment and satisfactory completion of her primary duties. Mrs Meffert asserts that Spicers took account of the fact that she was 59 years old in the decision to terminate the employment and that this decision was influenced by the imminent return of another employee from parental leave, to the customer services area.

[18] With respect to the process followed to effect the termination of Mrs Meffert’s employment, Mrs Meffert asserts that Mr Hamlyn’s behaviour represented bullying and that Spicers did not act to investigate this after she raised her concerns with Ms Trosky. Further, Mrs Meffert asserts that she was given inadequate support by Spicers personnel which compounded the unfairness of the Spicers approach.

[19] Spicers assert that the decision to implement a performance management process was properly founded on legitimate concerns about Mrs Meffert’s work performance. Further, that this process was implemented and managed fairly and specified reasonable and achievable performance expectations with numerous offers of support to Mrs Meffert which were not taken up.

The evidence

[20] Mrs Meffert’s evidence went to her substantial employment history with Spicers and her assessment that Mr Hamlyn adopted a different management approach which was directly targeted at her as distinct from other employees.

[21] Mrs Meffert’s evidence was that the extent of work associated with the stocking of the sample wall was underestimated by both herself and by Mr Hamlyn and that the stock in this display wall had never been maintained to the standard that was expected of her.

[22] Mrs Meffert asserted that her attempts to obtain assistance from the Spicers human resource management function were not supported and that this function allowed the flawed performance management process to continue to a predetermined end.

[23] Mrs Meffert’s evidence was that neither the sample wall function nor the presentation could be regarded as significantly important functions in contrast to her primary customer services work activity. She asserted that any errors she made in the credit entry activities were commensurate with errors made by other staff, and that she had, in any event addressed that issue before the termination of her employment.

[24] Mrs Meffert’s evidence was that she perceived she was treated differently from other employees as a result of her age and that the performance management process was instituted so as to remove her from the customer service work area and allow for the return of another employee from parental leave.

[25] Ms Arkley worked as a credit controller at Spicers for some 17 years. Her evidence was that she recently resigned her position as a consequence of her concerns about the manner of Mr Hamlyn’s treatment of Mrs Meffert. Her evidence went to the extent to which Mrs Meffert’s demeanour changed over the course of the performance management process. It also went to her observations that Mrs Meffert undertook her telephone service functions most effectively.

[26] Ms Arkley’s evidence was that the stocking of the sample wall was a complex and time-consuming task and that Mrs Meffert’s efforts were doomed to fail because Mr Hamlyn’s performance standard was not reasonable.

[27] I was provided with a brief signed witness statement made out by Mr Pisani who was Mrs Meffert’s supervisor for some 10 years. In this statement Mr Pisani advises that Mrs Meffert met the required performance standards and had a good rapport with customers and work colleagues. Mr Pisani did not attend the proceedings on 15 October 2010. Nevertheless, I have taken his witness statement into account.

[28] Mr Hamlyn’s evidence went to the basis for his concerns over Mrs Meffert’s work performance and his ongoing dealings with her throughout the performance review period. He outlined his expectations of Mrs Meffert’s work and the extent to which she did not meet those expectations with respect to credit entries, a presentation to colleagues and management and the stocking of the sample wall. Mr Hamlyn detailed the performance management process which he implemented, together with the various and repeated offers of assistance he extended to Mrs Meffert.

[29] Mr Hamlyn outlined his involvement with the Spicers human resource management function and his manager, in so far as these guided both the performance management process and the final decision to terminate Mrs Meffert’s employment.

[30] Finally, Mr Hamlyn’s evidence went to the actual termination of Mrs Meffert’s employment.

[31] Ms Trosky is the PaperlinX Australia Pty Ltd Human Resources Business Partner. Her evidence went to her contact with Mrs Meffert during the performance review process and separately, her contact with Mr Hamlyn in the course of this performance management process. Ms Trosky confirmed that she had provided advice to Mr Hamlyn relative to the need for the implementation of a fair performance management process up to and including the termination of employment decision.

[32] Further, Ms Trosky confirmed that shortly before the first formal performance counselling meeting between Mrs Meffert and Mr Hamlyn, Mrs Meffert had e-mailed her with her concerns and that these had subsequently been discussed by telephone. In this discussion Ms Trosky had confirmed the basis for the performance management process and had referred Mrs Meffert to the Spicers Employee Assistance Programme 1. Ms Trosky explained that she was not persuaded by Mrs Meffert that Mr Hamlyn’s behaviour represented bullying as distinct from the application of the performance management process.

[33] Mr Laforgia is the Spicers Group Regional Manager for South Australia, Western Australia and the Northern Territory. His evidence went to his awareness of issues relative to Mrs Meffert’s work performance from January 2010 and the actions subsequently taken relative to this performance.

[34] Mr Laforgia was involved in the final decision to terminate Mrs Meffert’s employment and was a participant in the interview to that effect on 10 June 2010.

Findings

[35] Section 396 requires that, before I consider the merits of the application, four initial matters must be considered. In this instance, I am satisfied that the application was made within the prescribed time. I am also satisfied that Mrs Meffert was a person protected, under the Act, from unfair dismissal. The Small Business Fair Dismissal Code is not relevant to Spicers. Finally, the termination of Mrs Meffert’s employment was not a case of redundancy.

[36] Section 387 states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[37] I have considered each of these factors individually and collectively. In doing so I have taken into account all of the evidence and material provided to me.

[38] I have reached the following conclusions relative to various disputed facts.

[39] Firstly, I have concluded that Mrs Meffert was expected to restock the sample wall such that the actual stocking task was not shared with Ms Spagnoletti, who undertook an initial supervisory function which was later assumed by Mr Hamlyn.

[40] Secondly, I do not consider that Mr Hamlyn’s behaviour relative to Mrs Meffert has been established, on the evidence, as bullying behaviour. There is no question that Mrs Meffert was understandably upset by the performance management process but, on the evidence before me, I am not satisfied that Mr Hamlyn was overbearing, brusque or intimidating in his approach to her. In this regard I have taken Mr Hamlyn’s demeanour as a witness into account. Additionally, Mr Hamlyn’s repeated offers to assist Mrs Meffert are inconsistent with bullying allegations.

[41] Thirdly, I have concluded that the maintenance of the sample wall was a real and significant function, even though it had not been part of Mrs Meffert’s work role for some time. The evidence of Mr Laforgia in this respect is significant in so far as it affirmed the function and the significance of the sample wall to the Spicers operations. I have noted that the evidence is that this function has been taken on by another employee, subsequent to the termination of Mrs Meffert’s employment. I have also concluded that, prior to the allocation of the sample wall function to Mrs Meffert, the wall had not been maintained properly. While the evidence in this respect is limited, I have concluded that it is likely that the process of bringing the sample wall up to date involved more work than the process of simply maintaining it.

[42] Fourthly, I have concluded that there was some conflict in the customer services work function, with respect to the treatment of Mrs Meffert. Whilst I consider that it is likely that this reflected concerns by certain other employees about the imposition of a performance management process on such a long standing employee, it is appropriate only that I take the existence of this concern into account in my consideration of the fairness of the performance management process.

Valid Reason

[43] I have adopted the approach set out by North J in Selvechandron v Petersen Plastics 2 (Selvechandron)in the following terms:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly”.

[44] Mrs Meffert had a very long employment history with Spicers. The performance management process instituted in 2010 was the only such initiative she faced and, despite the more general concerns identified by Mr Hamlyn in February 2010, addressed three specific issues.

[45] In terms of the primary component of her job, the credit entry errors made by Mrs Meffert were issues which Spicers was entitled to take up with her through a performance management process. On the evidence before me, I am unable to conclude that Mrs Meffert’s credit entry accuracy was such that it did not meet Spicers expectations at the time of the termination of her employment. Further, I am not convinced that her performance was inconsistent with the actions and expectations of other comparable employees.

[46] Consequently, I do not consider that the credit entry errors made by Mrs Meffert can represent a valid reason for the termination of her employment. Having considered all of the material before me, I do not believe these errors were the reason for the termination of her employment.

[47] The second issue considered in the performance management process related to Spicers contention that Mrs Meffert failed to prepare and to properly make a presentation to her co-workers and to Spicers senior management. Mrs Meffert concedes that her “presentation” document was delayed but she asserts that this was ultimately provided to management.

[48] I have concluded that this presentation may have been finally provided by Mrs Meffert but that Mr Hamlyn did not apparently agree that this was done or was done satisfactorily. I am not satisfied that Mrs Meffert sought clarification about the standing of her presentation. Notwithstanding this, I am not satisfied that the presentation issue was of such moment that it could represent a valid reason for the termination of Mrs Meffert’s employment as distinct from being a minor disappointment with her work performance. I am not satisfied that the presentation request was made and was pursued as a matter of such significance that it could then represent a valid reason for the termination of her employment, or for that matter, that it was a significant factor in the termination of employment decision.

[49] The more significant performance issue relative to Mrs Meffert was the restocking of the sample wall. Whilst this was proposed to involve approximately 1 hour’s work per day, I am satisfied that it was an important task that Spicers was entitled to expect Mrs Meffert to satisfactorily complete. Mrs Meffert was consistently given offers of assistance to complete this task. I am satisfied these offers were made by Mr Hamlyn and by Mr Laforgia.

[50] I am satisfied that the restocking of the sample wall was a task that could reasonably have been expected of Mrs Meffert. I am not persuaded that the evidence establishes that this task was excessively difficult or that the standard required with respect to the initial restocking function was unreasonable. In this respect, I prefer the evidence of Mr Hamlyn and Mr Laforgia to that of Mrs Meffert and Mrs Arkley. I have also noted that the maintenance of the sample wall had historically been undertaken by relatively junior employees, and that the performance concerns identified by Mr Hamlyn primarily went to Mrs Meffert’s effective time management with respect to this function. Indeed, if Mr Hamlyn’s performance expectation was unreasonable Mrs Meffert had numerous opportunities to raise this with either or both Mr Hamlyn or Mr Laforgia and did not do so. She also agreed with those expectations on numerous occasions. Had she not done so, or had she explained to Spicer’s management her views that the tasks were not achievable, I may have reached another conclusion.

[51] In considering the extent to which Mrs Meffert’s inability to perform according to Spicers expectations relative to the sample wall function represented a valid reason for the termination of her employment, I have had particular regard to Mrs Meffert’s long employment with Spicers and to the extent that the sample wall function was not her major job role.

[52] Mrs Meffert agreed that she understood the role. She did not take up the offers of assistance, and Spicers was entitled to request that she undertake this task as an integral part of her job in that time allocations to allow her to undertake it were made.

[53] Mrs Meffert has not persuaded me that the sample wall task was given to her with the intention that she would fail and hence be dismissed. Additionally, Mrs Meffert has not provided evidence that Spicers took into account her age in the decision to terminate her employment, or that the sample wall task was a concoction designed to facilitate the termination of her employment so as to allow another employee on parental leave to return to work. Without such evidence, a mere assertion is not enough.

[54] Notwithstanding Mrs Meffert’s long employment history, I am satisfied that her repeated inability or failure to meet the Spicer’s performance expectations with respect to the restocking of the sample wall represented a valid reason for the termination of her employment.

Notification of the reasons

[55] Mrs Meffert was notified of the reasons for the termination of her employment in the meeting held on 10 June 2010. These reasons were confirmed in writing 3 in the following terms:

“....

The reasons for the termination were discussed in our meeting on Thursday June 10, 2010 and relate to performance concerns including lack of follow up and lack of completion of tasks in a timely manner.

We have previously discussed these issues in formal meetings where you were issued with a first and then a second formal warning. These issues were also discussed in an informal meeting and informal weekly catch ups over a 6 week period, as well as in your most recent Xchange.

During this time, there has not been a significant improvement in your performance with a number of tasks still outstanding. In addition, you have previously acknowledged that the expectation that these tasks are completed is reasonable and you have been unable to offer a satisfactory explanation for your performance.

Therefore, unfortunately, I had no choice but to terminate your employment.

As discussed in the meeting, you will continue to have access to a company funded counsellor over the next four weeks if you wish to utilise this confidential service.

This is an unfortunate situation; however, I would like to thank you for your contribution to the business over the years and wish you well for the future.

Kind regards,

Guy Hamlyn

Sales Operations Manager SA

PaperlinX Merchanting”

Opportunity to respond

[56] Mrs Meffert was given an opportunity to respond to the proposition that her employment could be terminated at the meeting on 10 June 2010. Her request for additional time to undertake the sample wall task was inconsistent with the many earlier offers of help such that Spicers were entitled to understand that Mrs Meffert simply could not, or would not do that part of her job in a timely manner.

Unreasonable refusal of a support person

[57] Mrs Meffert was offered the opportunity to have a support person with her at the meeting on 10 June 2010 and took up this offer in that she had her daughter attend with her.

Warnings about unsatisfactory performance

[58] Mrs Meffert received formal warnings on 5 and 25 May 2010. These warnings both identified termination of employment as a possible consequence of continued performance failings. The formal warning advice of 26 May 2010 4 relevantly stated:

“....

Unfortunately, should you not meet our expectations further disciplinary action will be required which may ultimately result in your dismissal.

I would like to reiterate how serious this matter is and encourage you to invest a significant amount of time and effort to ensure that tasks that have been previously set for you are completed immediately.

If there is anything else I can do to assist you in completing your set tasks beyond what has already been offered, please let me know.

....”

[59] In addition, I am satisfied that the regular weekly performance management meetings which Mr Hamlyn had with Mrs Meffert provided a clear indication of the significance of her continued performance failings with respect to the sample wall.

[60] Finally in this respect, Mrs Meffert’s discussions with Mr Laforgia on 13 April 2010 and 13 May 2010 made clear the significance of the performance management process. In the same way, I am satisfied that Mrs Meffert’s telephone discussion with Ms Trosky on 4 May 2010 stressed the significance of the performance management process.

[61] In overall terms, I am satisfied that Mrs Meffert understood the tasks expected of her and was clearly on notice that a failure to meet these specified requirements would result in the termination of her employment.

Employer size

[62] There is no dispute that Spicers is a substantial employer and I am satisfied that its policies and procedures reflected the size of the business.

Access to Human Resource Management expertise

[63] Mr Hamlyn had access to Ms Trosky throughout the performance management process. I have noted that Ms Trosky assisted him in the preparation of meeting notes and the maintenance of a process which gave Mrs Meffert a clear indication of what was expected of her.

Other matters considered relevant

[64] I have already rejected Mrs Meffert’s contention that she was bullied by Mr Hamlyn. I do not consider that her perception that she was being bullied represented an acceptable reason for her work performance. Ms Trosky referred Mrs Meffert to the Spicers employee assistance program and the evidence is that Mrs Meffert utilised this program. Mrs Meffert did not base her performance failings on an argument that she was too upset to undertake the restocking of the sample wall. Given the evidence of Mrs Meffert and Mrs Arkley, it is possible that this may have been the case but because of the numerous opportunities provided to Mrs Meffert to seek assistance, I am not satisfied that the termination of employment decision was unfair because Mrs Meffert was upset.

[65] Notwithstanding my conclusion that there was a valid reason for the termination of Mrs Meffert’s employment, I have further considered her age and previous service record with Spicers in the context of my conclusions about whether the termination of her employment was harsh, unjust or unreasonable.

[66] I have considered whether my findings that two of the three matters raised with Mrs Meffert in the performance management process were not valid reasons for the termination of employment, then detracts from the significance of the sample wall task. I am not satisfied that this was the case, as the sample wall task was addressed so extensively in the performance management process.

Conclusion-Harsh, Unjust or Unreasonable

[67] The High Court decision in Byrne and Frew v Australian Airlines Ltd 5 provides guidance on the assessment required within section 387 in the following terms:

“128. .... It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[68] The termination of Mrs Meffert’s employment cannot be regarded as unjust or unreasonable. Spicers set out its expectations and instituted a fair and reasonable performance management review process directed at assisting Mrs Meffert to do a significant work function which she proved unable or unwilling to complete. Notwithstanding the general concerns over Mrs Meffert’s work, the decision to terminate her employment on the basis of concerns about her sample wall performance did not represent a decision based on unreasonable or irrelevant considerations or inferences. The termination decision was reasonable in that it followed a fair process which should have left Mrs Meffert in no doubt about what was expected of her and what were the consequences of ongoing performance problems.

[69] The issue of harshness is more complex. Almost by definition, after some 24 years service, the termination of Mrs Meffert’s employment, fundamentally because she did not, or could not undertake a function which was ancillary to her fundamental work role, has the potential to have an element of harshness associated with it.

[70] Notwithstanding this, had the restocking of the sample wall not being a relevant function which Spicers was entitled to ask Mrs Meffert to complete, or had the performance management process not been instituted with the degree of rigour which Spicer’s applied, the termination of Mrs Meffert’s employment may have been harsh. However, in the existing circumstances I am unable to describe it as such. The notes of the first formal warning meeting of 5 May 2010 make it clear that Mrs Meffert was advised that termination of employment on performance grounds would not involve a redundancy payment as the position was required by Spicers. That advice should have clearly put Ms Meffert on notice that she should take up the offers of assistance that were repeatedly extended to her.

[71] Accordingly, for the reasons set out above, I find that the termination of Mrs Meffert’s employment was neither harsh, unjust nor unreasonable and must therefore dismiss her application. An Order [PR503195] to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

B Meffert on her own behalf.

J Kruger for PaperlinX Australia Pty Ltd t/a Spicers Paper.

Hearing details:

2010.

Adelaide:

October 15.

 1   Exhibit M5

 2 (1995) 62 IR 371 at 373

 3   Exhibit S1 GH26

 4   Exhibit S1 GH20

 5 [1995] HCA 24

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