Damian Corkhill v Enterprise and Training Co Ltd

[2021] FWC 2269

[2021] FWC 2269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damian Corkhill
v
Enterprise and Training Co Ltd
(U2020/15838)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 23 APRIL 2021

Application for an unfair dismissal remedy – dismissal not harsh, unjust or unreasonable – application dismissed.

Introduction

[1] Mr Corkhill was employed by Enterprise and Training Co Ltd (ETC) from 19 February 2018 until his dismissal on 20 November 2020. On 11 December 2020, Mr Corkhill lodged an unfair dismissal application against ETC (Application) in the Fair Work Commission (Commission) contending that his dismissal was unfair. ETC denies that allegation and says that Mr Corkhill’s dismissal was not unfair because he failed to meet various expectations in relation to his role during his employment.

[2] I conducted a hearing, by video conference, on 26 March 2021. Mr Corkhill represented himself and Ms Nicole Bradley, Human Resources Manager of ETC, represented ETC. Mr Corkhill gave evidence in support of his case, as did Mr Michael Gul, a former employee of ETC. ETC’s employees Ms Bradley, Mr Gerard Klinkers, Program Manager, and Ms Heidi Batista, Team Leader – Gold Coast and North Coast, gave evidence on behalf of ETC.

Background

[3] ETC is a provider of employment and training services. Mr Corkhill was engaged by ETC as a Joblab Training Advisor within its North Coast team. Mr Corkhill was clearly passionate about his work, was knowledgeable within his field of expertise and cared deeply about the success of ETC’s clients. In about June 2020, Mr Corkhill was moved from the JobActive part of ETC’s business to the training area. As part of this move, the delivery of the Career Transition Assistance program (CTA Program) was removed from Mr Corkhill’s duties due to ETC’s dissatisfaction with his attendance and performance in relation to the program. From that time Mr Corkhill’s main duties included resume writing and the delivery of ETC training (other than the CTA Program) to clients of ETC. On 18 June 2020 Mr Corkhill was placed on the first of two performance improvement plans (PIPs) (First PIP). The second PIP commenced at the end of the First PIP on 21 September 2020 (Second PIP). Mr Corkhill’s employment was terminated by ETC during the final PIP review meeting on 20 November 2020.

Initial matters to be considered

[4] Section 396 of the Fair Work Act2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the Application.

[5] There is no dispute between the parties and I am satisfied on the evidence that:

(a) the Application was made within the period required in s 394(2) of the Act;

(b) Mr Corkhill was a person protected from unfair dismissal;

(c) the Small Business Fair Dismissal Code did not apply to Mr Corkhill’s dismissal; and

(d) Mr Corkhill’s dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

[6] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Corkhill’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

Valid reason (s 387(a))

[7] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3

[8] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁵ Capacity is the employee’s ability to do the job as required by the employer.6 Capacity also includes the employee’s ability to do the work they were employed to do.7

[9] The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively. 8

[10] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 9 The Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred or the performance was satisfactory.¹⁰

[11] ETC alleges that it had a valid reason to terminate Mr Corkhill’s employment because of his continued inability to follow instructions/direction from his manager, continued poor quality of work and non-compliance with ETC’s processes/procedures and training programs. The particular performance issues ETC relied on were in relation to Mr Corkhill oversharing personal information with clients and clients feeling unheard, Mr Corkhill’s delivery of the CTA Program, Mr Corkhill’s resume writing, delivery of other ETC products not in line with ETC’s instructions, and walking out of work meetings. Mr Corkhill cavils with each of the reasons for dismissal relied on by ETC. Further, Mr Corkhill gave evidence that recent feedback from clients, together with the evidence of his ex-colleague Mr Gul, demonstrate that his performance was not poor and did not justify his dismissal.

Oversharing personal information and clients feeling unheard

[12] In relation to this issue, I accept ETC’s uncontested evidence that Mr Corkhill shared personal information when developing resumes with clients and delivering training, and in at least one instance this resulted in a client complaining about Mr Corkhill on that basis. 11 However, I also accept Mr Corkhill’s evidence that when he shared personal information it was to provide guidance through appropriate anecdotes. I accept that evidence because, first, it accords with the notes of Ms Jen Grant sent to Mr Corkhill and Ms Sandra Luvis on 30 September 2020 which summarises the complaint against Mr Corkhill in the following way: “Sandra confirmed that the client had not suggested he said anything unprofessional/inappropriate, it was just more of a friendly approach rather than a professional one which the customer had not expected”.12 Second, Mr Corkhill adamantly and convincingly denied sharing personal information inappropriately. Third, the evidence relied on by ETC in relation to the relevant complaints was the hearsay evidence of Mr Klinkers and Ms Batista. That evidence is not persuasive, particularly given that the complaints (other than the complaint described above) were not described by ETC in any detail and Mr Corkhill had no real opportunity to challenge the evidence. Further, I do not accept ETC’s evidence that clients felt unheard by Mr Corkhill. Again, the evidence in this regard was hearsay, lacked sufficient detail for Mr Corkhill to reply, and was therefore not persuasive. In all the circumstances, I am not satisfied that ETC had a valid reason to terminate Mr Corkhill’s employment based on him oversharing personal information or clients feeling unheard by Mr Corkhill.

Delivery of the CTA Program

[13] Two issues were raised by ETC specifically in relation to Mr Corkhill’s delivery of the CTA Program: first, he failed to commence one CTA Program on the scheduled commencement date; and second, he convened a CTA Program in early 2020 which had a poor completion rate. Mr Corkhill disputed ETC’s reliance on both issues.

[14] In relation to the first issue, Mr Corkhill accepted that one CTA Program conducted by him did not commence on the pre-planned date, and instead commenced one week later. However, Mr Corkhill cavilled with whether that result was because of his performance and whether the expectation to commence the course on the date was fair having regard to the circumstances. ETC adduced uncontested evidence, which I accept, that there may be serious consequences for its business if the pre-planned start date for a CTA Program is not met. Further, I accept ETC’s uncontested evidence that the CTA Programs delivered in other parts of Northern NSW commenced on the pre-planned start date, as required. Finally, it was uncontentious and I accept that for the CTA Program to commence on the relevant date, Mr Corkhill would have had to contact each of the six participants on the same day. Mr Corkhill gave convincing evidence to explain why the program did not commence as planned: first, this was the first time the program was to be delivered virtually, second, the geographical area, lack of access to technology, and demographics/characteristics of the clients attending the program were such that it was difficult to contact each person on any single day, and third, because of the first two points, Mr Corkhill was not able to and did not foresee being unable to contact each of the clients by telephone on the relevant date. Further, Mr Corkhill explained that although other areas in Northern NSW were able to start on the relevant date, those areas did not have the same issues regarding geography, demographics or technology that he faced in his area. I find Mr Corkhill’s explanation to be a reasonable justification for the failure of the course to commence on the relevant day. When questioned about why ETC held Mr Corkhill accountable for the late start date, Mr Klinkers responded that Mr Corkhill had previously had ‘great numbers’, only one participant attended on the commencement date, he was aware of the pre-planned start date for some time prior, he had been trained in promoting the program, and it was Mr Corkhill’s responsibility to reach out to Job Active providers to promote the CTA Program. However, Mr Klinkers also gave evidence that he did not inquire into, and did not know, whether Mr Corkhill had undertaken any of the tasks ETC expected him to undertake to ensure the course commenced on time. 13 In short, ETC’s argument was that because only one of six participants commenced on the pre-planned start date, Mr Corkhill’s performance was not satisfactory. Having regard to Mr Corkhill’s explanation and the circumstances he faced, that was an unreasonable position for ETC to take. In all the circumstances, I am not satisfied that ETC had a valid reason to terminate Mr Corkhill’s employment on the basis of the late start date of the relevant CTA Program.

[15] In relation to the second issue, I accept the uncontested evidence that in early 2020 two of ten participants completed a CTA Program convened by Mr Corkhill. Mr Corkhill gave cogent and convincing evidence, which I accept, that most of the participants who did not complete the course gave legitimate reasons for not doing so, for example, starting their own business, entering employment, or going on to do other training. Mr Corkhill also gave uncontested evidence, affirmed by Ms Batista in her oral evidence, that the clients in the relevant group were particularly difficult and presented challenges because of their varied backgrounds and circumstances. Mr Klinkers gave oral evidence that he did not recall how many left the program because of finding employment but he knew that some complaints had been received and that not all eight had entered employment. I am not persuaded by the hearsay evidence of Mr Klinkers in relation to complaints about Mr Corkhill conducting the relevant CTA Program: he provided scant detail in relation to the complaints and the truth or cause of the complaints could not be tested by Mr Corkhill. Having regard to the evidence described above, I do not accept that the failure rate in the CTA Program delivered by Mr Corkhill in early 2020 can fairly be attributed to Mr Corkhill’s performance. In all the circumstances, I am not satisfied that ETC had a valid reason to terminate Mr Corkhill’s employment on the basis of this issue.

Delivery of ETC training products

[16] Mr Klinkers gave evidence that Mr Corkhill did not adhere to the delivery methods and content prescribed by ETC’s training booklets when delivering ETC training products. Mr Corkhill’s non-adherence was said to have been raised with Mr Corkhill in team meetings. However, when questioned, Mr Klinkers accepted that issues with Mr Corkhill’s performance related to delivering ETC training products were never raised directly with Mr Corkhill, instead, they were merely raised generally in team meetings which Mr Corkhill attended. In addition, both Mr Klinkers and Ms Batista accepted that neither had sat in on any of Mr Corkhill’s training sessions to identify any particular non-compliance and ETC did not provide any detailed description about any particular failures in this regard. In that context, I accept Mr Corkhill’s convincing evidence that he did deliver ETC training products in accordance with ETC’s prescribed delivery, adapted to meet the needs of the particular group. In all the circumstances, I am not satisfied that ETC had a valid reason to terminate Mr Corkhill’s employment on the basis of any non-compliance with ETC’s prescribed delivery of ETC training products.

Resume writing

[17] ETC also contended that it had a valid reason to terminate Mr Corkhill’s employment because of his continued poor performance in relation to resume writing despite training, guidance and feedback being provided. Mr Corkhill argued that his performance in this regard was unfairly criticised because it was measured by a subjective indicator (complaints received from Jobs Advisors), the requirement to receive no complaints from Jobs Advisors was unreasonable, he was given unclear and inconsistent instructions in relation to what was expected of him, he did improve his performance by strongly modelling each resume on ETC’s universal resume, leading up to his termination Mr Klinkers communicated to him that there were no issues with his performance, and he had no opportunity to respond to any particular complaint in relation to his resume writing.

[18] First, I accept ETC’s uncontested evidence that it provided Mr Corkhill with significant training in relation to resume writing throughout his employment.

[19] Second, I do not accept Mr Corkhill’s contentions that his performance was unfairly measured based on the subjective view of Jobs Advisors, that he was given unclear or inconsistent instructions, or that he did not receive an opportunity to respond to particular complaints about his resume writing. Ms Batista, who was Mr Corkhill’s Team Leader during much of the relevant period, gave uncontested evidence, which I accept, that she personally reviewed each of Mr Corkhill’s resumes which were the subject of a complaint and formed her own view as to the complaint received prior to raising it with him. Hence, I am satisfied that ETC did not rely solely on the content or number of complaints raised by Jobs Advisors in its criticism of Mr Corkhill’s resume writing. That conclusion is also supported by several emails which demonstrate that specific, objective, issues were raised with Mr Corkhill in relation to his resume writing. By way of example, an email dated 23 September 2020 from Ms Sandra Luvis to Mr Corkhill raised issues regarding the accuracy and content of the resumes drafted by Mr Corkhill, as well as spelling mistakes, missing words and the use of incorrect terminology; 14 an email dated 9 September 2020 from Ms Batista to Mr Corkhill raised issues with a lack of relevant information;15 an email dated 3 June 2020 from Ms Batista to Mr Corkhill raised issues with a lack of information and a lack of accuracy;16 and an email dated 25 May 2020 raised issues with a lack of information and mistakes.17 Those emails, and Ms Batista’s evidence, also demonstrate that Mr Corkhill was given clear instructions about what was expected of him, and he was provided with opportunities to respond to the issues raised. Further, Ms Batista’s uncontested evidence, which I accept, that Mr Corkhill could amend and produce an acceptable resume once feedback was provided also reveals that the feedback ETC gave was detailed and specific enough to rectify the issues identified.

[20] Third, I do not accept Mr Corkhill’s evidence that Mr Klinkers, or ETC otherwise, communicated to him that there were no, or only minor, issues with his performance in relation to resume writing. That evidence does not ring true in the context of Mr Corkhill’s evidence that he was attempting to strictly comply with ETC’s expectations regarding resume writing because he was “desperately trying to preserve” his job and that Mr Klinkers verbally described his resume writing as unsatisfactory. 18 Mr Corkhill was clearly aware that ETC perceived his resume writing as not at the requisite standard.

[21] Fourth, I accept Mr Corkhill’s evidence that he improved his resume writing in the final few months of his employment. That contention was not challenged by ETC, however, Ms Batista gave evidence that although Mr Corkhill showed improvement in resume writing, it was her view that the improvement was not adequate. Ms Batista’s position was supported by her evidence, which I accept, that despite the training and feedback he had been given, she continued to receive at least ‘a few’ complaints about Mr Corkhill’s performance in the final two months of his employment where, in contrast, she could recall receiving only one complaint in relation to another employee over a period of approximately five months, and the complaints she continued to receive about Mr Corkhill’s resumes related to the same issues which had been raised with him in the months prior. Hence, although Mr Corkhill’s resume writing improved, I am satisfied that it was not sufficient having regard to the circumstances.

[22] Fifth, although the objective was not to have any complaints from Jobs Advisors, Mr Corkhill was not dismissed because he failed to meet this target. ETC did not argue that receiving more than one complaint would have justified any particular action against Mr Corkhill. In addition, as I have found above, Ms Batista reviewed and formed her own view about the merits of each complaint prior to raising it with Mr Corkhill.

[23] Sixth, ETC also adduced evidence to the effect that Mr Corkhill often failed to upload resumes where they could be accessed by clients or Jobs Advisors. In response, Mr Corkhill explained that he would sometimes not have time to complete all of his procedural requirements on time, including uploading resumes. Hence, I accept that, from time to time, Mr Corkhill failed to upload resumes to the correct location within the required time period.

[24] Seventh, ETC argued that Mr Corkhill’s continued defensiveness and lack of acceptance of responsibility in response to the performance issues raised formed part of its reason for terminating Mr Corkhill’s employment. I accept ETC’s evidence in this regard. That evidence is persuasive in circumstances where Mr Corkhill continued to be dismissive of ETC’s concerns in relation to his resume writing during his oral evidence. For example, in his final oral submissions Mr Corkhill said of the feedback provided about his resume writing toward the end of his employment: “they were really minor things like a date missing or something like that”. Those drafting issues were clearly a serious concern for ETC; they were raised in the PIP process and articulated to Mr Corkhill as ongoing concerns. Further, repeated inaccuracies or mistakes in the preparation of resumes is a significant issue in relation to the performance of an employee whose main duties included the preparation of accurate resumes for clients of ETC. As Mr Klinkers explained in his oral evidence, it is not acceptable to have mistakes in a resume because a resume is a critical document for a person seeking employment, and Mr Corkhill had time available to him to check the resumes. Mr Corkhill’s dismissiveness in relation to those issues was unreasonable.

[25] Eighth, ETC’s concerns about Mr Corkhill’s failure to consistently produce accurate resumes were further heightened when Mr Corkhill applied to ETC, in about early November 2020, for a role as a Team Leader. Mr Corkhill submitted his resume to ETC in support of his application for that role. The resume Mr Corkhill submitted contained some other person’s name and address. Mr Corkhill explained that the error occurred because he used a different version of a computer program to prepare the resume and did not know the other person’s name and address was on the resume until it was pointed out to him. ETC took the view, understandably, that it was Mr Corkhill’s responsibility to provide an accurate resume when applying for a job, just as it was his responsibility to prepare an accurate resume for a client of ETC. In order to fulfil that responsibility, Mr Corkhill needed to have an eye for detail, including by checking resumes before they were sent to the prospective employer.

[26] It is apparent from the evidence I have discussed above that Mr Corkhill’s resume writing was not to the requisite standard in relation to its accuracy, the type and volume of information, and its alignment with ETC’s guidance and instructions. ETC clearly communicated those deficiencies to Mr Corkhill and provided him with training and explicit feedback. In those circumstances, it was reasonable for ETC to expect Mr Corkhill’s resume writing to significantly improve. However, ETC continued to receive valid complaints about the same issues which had been raised with Mr Corkhill over an extended period. Mr Corkhill’s response to Ms Batista’s email of 20 May 2020 in which she asked whether Mr Corkhill rewrote a particular resume is demonstrative of Mr Corkhill’s attitude toward ETC’s concerns with his resume writing: “This is what I have. I am not sure what else to do with this client. My resume style is attracting criticism yet they are working in this market. I am not sure how to respond.” Mr Corkhill was satisfied with his performance in relation to resumes, despite valid issues consistently being raised by ETC. I accept, as did ETC, that during the final two months of Mr Corkhill’s employment, his performance improved, however, having regard to the period of time and support Mr Corkhill received, the continued deficiencies, and the disparity between the number of complaints received about Mr Corkhill’s resumes and other employees’ resumes, I am also satisfied that Mr Corkhill had not sufficiently improved his resume writing prior to the termination of his employment. In all the circumstances, I am satisfied that ETC had a valid reason to terminate Mr Corkhill’s employment on the basis of his performance in relation to resume writing.

Walking out of meetings

[27] When questioned during the hearing, Mr Corkhill explained that if, for example, he received a personal call from his mother or childcare or if a meeting was winding down, he would leave a work meeting to answer a personal call. Mr Klinkers’ evidence in relation to this issue was convincing; he clearly remained exasperated by Mr Corkhill’s conduct, particularly insofar as he recalled Mr Corkhill leaving a performance improvement meeting to answer a phone call. On this evidence, I accept ETC’s contention that, from time to time, Mr Corkhill walked out of work meetings to take personal calls, and on at least one occasion this was during a performance improvement meeting. The latter conduct further demonstrates Mr Corkhill’s dismissive attitude toward the performance issues raised by ETC and provides context to Mr Corkhill’s failure to sufficiently improve his performance.

Evidence of Mr Michael Gul

[28] I accept the evidence of Mr Gul that when he observed Mr Corkhill’s work, he appeared well-organised, positive, knowledgeable and well-regarded by the clients he interacted with. I also accept Mr Gul’s evidence that clients appeared engaged when Mr Corkhill was conducting training sessions. However, Mr Gul’s observations of Mr Corkhill related only to the period from about October 2018 until May 2020, when Mr Gul moved to a different office. Further, Mr Gul did not observe any of the content of Mr Corkhill’s resume writing nor did he observe the content of any of Mr Corkhill’s training sessions. Mr Gul’s evidence does not relate to the relevant deficiencies in Mr Corkhill’s performance relied on by ETC to terminate Mr Corkhill’s employment. It is therefore of limited weight.

Recent positive results and feedback from clients

[29] Mr Corkhill gave evidence, which I accept, that he received positive feedback from clients in relation to his performance at work, particularly in the final two months of his employment. I also accept that Mr Corkhill achieved positive results at work during the relevant period. For example, he successfully gained employment for a client in a job paying over $100,000 by writing the selection criteria and preparing her for interview, he had recently hosted a face-to-face training session in which the participants were very happy and engaged, and he was previously awarded for achieving the highest performance in enrolling and delivering the CTA Program. These circumstances provide further context to an overall assessment of Mr Corkhill’s performance while engaged by ETC.

Conclusion – valid reason

[30] I am satisfied that Mr Corkhill performed well in areas of his work and was often perceived by clients and colleagues as performing well. However, over an extended period of time, Mr Corkhill continued to perform poorly in relation to resume writing. Mr Corkhill’s attitude to his performance issues was dismissive and he failed to adequately improve despite training and explicit instructions and feedback. Overall, having regard to all the evidence, and on the balance of probabilities, I am satisfied that ETC had a valid reason to terminate Mr Corkhill’s employment on the basis of his poor performance in relation to resume writing.

Was Mr Corkhill notified of the reasons for his dismissal and given an opportunity to respond (s 387(b) & (c))?

[31] It is necessary to consider and take into account whether Mr Corkhill was notified of any valid reason(s) for his dismissal and whether he was given an opportunity to respond to any reason(s) related to his capacity or conduct.

[32] In Crozier v Palazzo Corporation Pty Ltd, 19 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 (Cth) stated the following:20

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[33] The criterion concerning whether an employee was provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity should be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 21

[34] The uncontested evidence was that Mr Corkhill was notified that ETC was considering terminating his employment on the basis of his performance, prior to ETC terminating his employment, in the meeting on 20 November 2020. Hence, I am satisfied that Mr Corkhill was notified of the reasons for his dismissal prior to his termination.

[35] Further, the uncontested evidence was that Mr Corkhill was provided with an opportunity, during that meeting, to respond to the reasons put to him by ETC and Mr Corkhill provided his response. In isolation, the opportunity to consider the reasons put to him by ETC and respond during the meeting may be considered to be an insufficient amount of time for Mr Corkhill to properly respond. However, that opportunity must be viewed in light of all of the circumstances. Both the First and Second PIP, signed by Mr Corkhill, included the warning that the employee “understand[s] that should I not meet the desired expectations within this Plan further performance management may occur… including termination of your employment”. As I have found above, Mr Corkhill was aware that his performance, at least in relation to resume writing, continued to fail to meet ETC’s expectations. Hence, Mr Corkhill was well aware of the issues in relation to his resume writing prior to and during the final meeting. Overall, I am satisfied that Mr Corkhill was provided with an adequate opportunity to respond to the reasons for his dismissal.

Was there an unreasonable refusal to allow Mr Corkhill to have a support person present (s 387(d))?

[36] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, it is relevant to consider and take into account whether the employer unreasonably refused the support person being present.

[37] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”22

[38] There is no evidence before me that Mr Corkhill requested, or that ETC refused any request, that a support person be present during any discussion relating to Mr Corkhill’s dismissal. In fact, Mr Klinkers’ email to Mr Corkhill two days prior to the termination meeting provides, in part, “You’re welcome to have a person of your choice to the meeting as your support person. Their role is to support you during the meeting, not to answer on your behalf or to disrupt the meeting”. In those circumstances, I find there was no unreasonable refusal by ETC to allow Mr Corkhill to have a support person present to assist at any discussions relating to his dismissal. This is a neutral consideration.

Warnings about unsatisfactory performance (s 387(e))

[39] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, it is relevant to consider whether the employer warned the employee about the unsatisfactory performance before the dismissal.

[40] A warning for the purposes of s 387(e) should clearly identify:

•  the areas of deficiency in the employee’s performance;

•  any assistance or training that might be provided;

•  the standards required. A mere exhortation to improve is not sufficient; and

•  a reasonable timeframe within which the employee is required to meet such standards.²³

[41] In addition, the warning should “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”²⁴

[42] Mr Corkhill was aware, since at least the beginning of the First PIP, that if his performance did not improve in the identified areas, his employment was at risk. Each of the PIPs, signed by Mr Corkhill, included directly above the signature block words to the effect that the employee understands that should they not meet the expectations within the PIP termination of employment may result. Importantly, both PIPs dealt with performance issues related to resume writing which I have found provided ETC with a valid reason to terminate Mr Corkhill’s employment. Each PIP was an effective warning about ETC’s perception that Mr Corkhill’s performance was unsatisfactory and that a lack of improvement may result in termination.

[43] Mr Corkhill was also provided with detailed feedback about the deficiencies in his resume writing. 25 That feedback and guidance was more than a mere exhortation to improve, ETC provided training and explicit guidance which Mr Corkhill failed to adequately adopt.

[44] Mr Corkhill’s resume writing was unsatisfactory over a period of at least five months. Having regard to the nature of the deficiencies and the significant feedback and training provided, that is a reasonable timeframe within which to improve his performance.

[45] This consideration weighs against Mr Corkhill’s contention that his dismissal was unfair.

Impact of ETC’s size on procedures followed in effecting the dismissal (s 387(f))

[46] ETC stated in its form F3 – Employer Response that it had 310 employees at the time of Mr Corkhill’s dismissal. ETC has dedicated human resources expertise and devoted significant time and resources to both performance managing Mr Corkhill as well as effecting his dismissal. In these circumstances, I am satisfied that the size of ETC’s business did not have any impact on the procedures followed in effecting Mr Corkhill’s dismissal. This is a neutral consideration.

Absence of dedicated human resource management specialists or expertise (s 387(g))

[47] I do not accept ETC’s submission that it has an absence of dedicated human resource management specialists or expertise. ETC has dedicated human resources expertise, including Ms Bradley who conducted ETC’s defence of Mr Corkhill’s unfair dismissal case. This is a neutral consideration.

Other relevant matters (s 387(h))

[48] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[49] Mr Corkhill argued that his dismissal was unfair because ETC terminated his employment, in part, because of issues with his attendance at work. Mr Corkhill gave uncontested evidence, which I accept, that at the start of 2020 his attendance at work was impacted by COVID-19 in combination with having a young daughter attending day care. Mr Corkhill usually cared for his daughter on a Sunday and would be required to deliver the CTA Program on a Monday. Mr Corkhill’s daughter, having attended day care the week prior, would often be unwell with a respiratory illness on Sunday. That resulted in Mr Corkhill being unwell on the next day. Those circumstances placed Mr Corkhill in the unenviable position of having to either use personal leave and not attend work despite having important duties to fulfil or attend work while exhibiting the symptoms of a respiratory illness. That choice was made particularly difficult in the context of COVID-19 and the fact that some of his colleagues had expressed their displeasure with his attendance at work while symptomatic of a respiratory illness. Mr Corkhill’s evidence in relation to these matters was compelling and I accept it. Mr Corkhill gave further evidence that if he did not attend work his role could be, and was, covered by another employee of ETC. Nonetheless, ETC gave evidence, which I accept, that Mr Corkhill’s regular non-attendance due to taking personal leave was having a significant impact on the delivery of the CTA Program. On that basis, ETC took steps to reduce the impact of Mr Corkhill’s non-attendance by offering Mr Corkhill assistance through its EAP provider and by discussing the possibility of Mr Corkhill moving into a part-time role. I also accept Mr Corkhill’s evidence that ETC took the step of including a performance indictor aimed at reducing his non-attendance at work due to personal leave in his First PIP. Mr Klinkers accepted that proposition during his oral evidence.

[50] Mr Corkhill complained about ETC’s actions in relation to his use of personal leave to both SafeWork NSW and ETC. Shortly after receiving that complaint, and prior to the introduction of the Second PIP, ETC removed Mr Corkhill’s non-attendance from the PIP process. In my view, that was the appropriate step for ETC to take. Mr Corkhill’s legitimate use of personal leave should not have been addressed through a PIP. A PIP is a serious step for an employer to take, especially so when seen in light of the written acknowledgement on each PIP that the employee “understand[s] that should I not meet the desired expectations within this Plan further performance management may occur… including termination of your employment”. Nonetheless, I accept ETC’s evidence that Mr Corkhill’s non-attendance on personal leave did not impact on its decision to terminate his employment. First, because ETC took other action (by moving Mr Corkhill away from delivering CTA Program) to address the issues caused by Mr Corkhill’s non-attendance. Secondly, because ETC took immediate action to remove non-attendance from the First PIP once Mr Corkhill complained and it was not addressed as part of the Second PIP. Thirdly, the decision to terminate Mr Corkhill’s employment was made many months after the personal leave issue was raised with him and then removed from the PIP process.

[51] Mr Corkhill also argued that his dismissal was unfair because the PIP process was conducted informally, including that the first PIP meeting was conducted in a café, he was told it was ‘just clarifying goals’, he was not offered the opportunity to have a support person, the tone of the PIP meetings was very casual, and he was led to believe it was not a formal process. I do not accept Mr Corkhill’s contentions in relation to this issue. Mr Corkhill must have been aware that this process was a serious one. The PIP, signed by Mr Corkhill, explicitly warned him of the risk to his employment and Mr Corkhill accepts that Mr Klinkers expressly indicated that his performance was unsatisfactory during the PIPs. Further, there was no obligation on ETC to offer Mr Corkhill an opportunity to have a support person during each of the PIP meetings, although they did so in relation to the final PIP meeting. These circumstances do not support Mr Corkhill’s contention that his dismissal was unfair.

[52] Mr Corkhill further contended that his dismissal was unfair because ETC replaced him with another employee, in a part-time role, prior to his termination. Ms Bradley provided convincing evidence that Mr Corkhill’s role is now filled by two part-time employees. Ms Bradley gave evidence, which I accept, that although one part-time employee was engaged by ETC just prior to Mr Corkhill’s dismissal, the recruitment process in relation to that individual commenced in August 2020. That employee was engaged to fill Mr Corkhill’s previous responsibility for delivering the CTA Program in his area. Mr Corkhill remained employed, and busy, on a full-time basis after the employment of this part-time employee. Ms Bradley gave further evidence, which I accept, that Mr Corkhill’s work, not including the CTA Program, is now being undertaken by another part-time employee. For these reasons, I do not accept Mr Corkhill’s contention that he was replaced, prior to his dismissal, by a part-time employee. Nor do I accept that Mr Corkhill was dismissed because his role was redundant. I accept ETC’s evidence that Mr Corkhill was dismissed because ETC formed the view that his performance warranted his dismissal. The fact that it engaged two part-time employees, at different points in time, to undertake most of his duties and responsibilities does not persuade me that the reason for his dismissal was other than ETC’s belief about the quality of his performance. These circumstances do not support Mr Corkhill’s contention that his dismissal was unfair.

[53] Mr Corkhill is the father of a young child and has been unable to obtain new employment since his dismissal. He is in dire financial circumstances. These circumstances weigh in favour of a finding that Mr Corkhill’s dismissal was harsh.

[54] I have found, above, that several of the performance issues relied on by ETC were either poorly managed by ETC (for example, its concern that Mr Corkhill was not delivering ETC training in accordance its expectation) or were not issues with Mr Corkhill’s performance when examined carefully (for example, the two issues in relation to the CTA Program for which I have found that Mr Corkhill’s performance was not the cause). By raising and relying on these issues as performance issues for which Mr Corkhill should be held accountable, ETC acted unreasonably. ETC’s conduct in this regard weighs in favour of a finding that Mr Corkhill’s dismissal unreasonable and unjust.

[55] Finally, that Mr Corkhill performed well is some aspects of his role, as I have found above, 26 supports his contention that his performance, on an overall basis, was satisfactory and his dismissal was unfair.

Conclusion on harsh, unjust and unreasonable

[56] Mr Corkhill cared about his work, thought deeply about it, and in many respects was good at it. The dismissal has had a significant impact on Mr Corkhill and his family. Mr Corkhill continued to receive good results and positive feedback from some clients up until his dismissal. ETC’s performance management process in relation to Mr Corkhill was lacking in some respects. These factors support Mr Corkhill’s argument that his dismissal was unfair. However, such matters must be weighed against Mr Corkhill’s failure to sufficiently rectify the significant performance issues in relation to his resume writing and his dismissive attitude toward those issues. It was reasonable for ETC to expect and require Mr Corkhill to produce accurate resumes on a consistent basis, in accordance with its guidance and instructions. That was one of Mr Corkhill’s primary duties. Mr Corkhill did not meet that requirement, notwithstanding the guidance and instruction provided to him by ETC.

[57] Having considered and taken into account each of the matters specified in section 387 of the Act, my evaluative judgment is that ETC’s dismissal of Mr Corkhill on 20 November 2020 was not, on balance, harsh, unjust or unreasonable. The application for unfair dismissal is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Mr D Corkhill on behalf of himself
Ms N Bradley on behalf of the Respondent

Hearing details:

2021.
Newcastle (by video conference):
26 March.

Printed by authority of the Commonwealth Government Printer

<PR728926>

 1   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

 2   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 3   Ibid

 4   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

5 Ibid

 6   Ibid at 684

 7   Webb v RMIT University[2011] FWAFB 8336 (Drake SDP, Hamilton DP, Jones C, 8 December 2011) at [6]

 8   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 at [62]

 9   Ibid

10 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

 11   Hearing book pages 59 – 60

 12   Hearing book page 59

 13  

 14   Hearing book page 48

 15   Hearing book page 49

 16   Hearing book pages 52 – 53

 17   Hearing book page 53

 18   Hearing book page 6

 19 (2000) 98 IR 137

 20   Ibid at [73]

 21   RMIT v Asher (2010) 194 IR 1 at 14-15

22 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542]

23 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32]

24 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44]

 25   See the emails discussed above, at paragraph [19]

 26   See paragraphs [27] and [28], above.