Donna Strezoski v Telstra Corporation Limited T/A Telstra

[2017] FWC 5607

[2017] FWC 5607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donna Strezoski
v
Telstra Corporation Limited T/A Telstra
(U2017/8342)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 13 NOVEMBER 2017

Application for an unfair dismissal remedy – performance management – warnings given – valid reason found – exemplary procedure – dismissal not unfair – application dismissed.

[1] On 1 August 2017, Ms Donna Strezoski (the applicant) applied to the Fair Work Commission for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of her employment by Telstra Corporation Limited (Telstra) (the respondent) on 13 July 2017.

[2] The application was subsequently referred to me for determination and hearings were conducted on 26 October and 3 November 2017. The applicant was represented by D O’Sullivan of counsel on a direct access basis, and the respondent was represented by A Perigo of counsel, instructed by Seyfarth Shaw Australia.

[3] Prior to the hearing, the parties filed written submissions seeking permission under s.596(2) of the FW Act to be legally represented at hearing. I considered both parties’ written submissions in light of the prescribed circumstances for granting permission set out in s.596(2)(a)-(c) of the FW Act.

[4] It is well established that deciding to grant permission for a person to be legally represented under s.596 of the FW Act involves firstly that the Commission be satisfied of at least one of the circumstances in s.596(2) of the FW Act. 1 This necessarily ‘involves the making of an evaluative judgment akin to the exercise of discretion’.2 Secondly, ‘the discretion conferred by s.596(2) must be exercised in favour of the applicant for permission’.3 In the present matter, I considered that given the complexity of the matter, representation of both parties would enable the matter to be dealt with more effectively.

The evidence

[5] The applicant filed a witness statement dated 25 September 2017 and a statement in reply dated 23 October 2017, both of which were tendered at the hearing. 4 Annexures to the applicant’s initial statement included:

• a copy of the letter dated 13 July 2017, notifying the applicant that her employment had been terminated; and



• a copy of an email dated 13 July 2017 sent to the applicant’s colleagues by Mr Oliver Blain advising that the applicant’s employment had been terminated.

[6] The applicant was cross-examined in relation to both statements.

[7] The respondent relied on the statement of Mr Martin Freeman dated 15 October 2017, 5 and statement and supplementary statement of Mr Hanna Taktak dated 16 October 2017,6 and 25 October 20177 respectively which were also tendered at the hearing. Annexed to Mr Freeman’s statement were three NSW State Government documents concerning funding available to councils during the amalgamation process. Also annexed to his statement was a copy of an email dated 9 February 2015 evidencing that the applicant’s sales targets had been adjusted up by $300,000.

[8] Annexed to Mr Taktak’s statement were the following documents:

• A copy of the applicant’s position description; 8



• A copy of an email sent on 15 June 2016 from Camden Council complaining about the applicant’s customer service; 9



• A copy of an email dated 19 October 2016 from Sutherland Shire Council escalating a billing issue to Mr Taktak in the absence of communication from the applicant; 10



• A copy of an email dated 22 February 2017 from Parramatta City Council requesting a new accounts manager following ‘no contact [with the applicant] since mid-December 2016’; 11



• A copy of an email from Mr Gary Trewin, Essential Utilities Corporation, commenting that ‘the Telstra relationship is not great at account team level’ in relation to the Cumberland Council account managed by the applicant; 12



• A copy of an email dated 6 June 2017 from the Inner West Council (Ashfield), escalating a query to Mr Taktak following no response to the email sent to the applicant on 17 May 2017; 13



• A copy of an email dated 21 June 2017 sent to Mr Taktak from the City of Sydney Council requesting follow up on a time sensitive enquiry originally sent to the applicant on 15 June 2017; 14



• A copy of an email invitation to attend an educational session on council amalgamations presented by the former Deputy Mayor of Townsville, sent to the Telstra team by Mr Taktak; 15



• A copy of an ‘incomplete, high-level’ account strategy document prepared by the applicant in March 2016; 16



• A copy of the Telstra Performance Support Policy; 17



• A copy of Mr Taktak’s notes from a meeting with the applicant held on 11 October 2016; 18



• A copy of an email from Mr Lex Nouwens dated 7 March 2017 to Mr Taktak outlining the achievement goals set for the individual training session to be provided to the applicant, noting that the applicant was yet to accept the calendar invitation to the session; 19



• A copy of an internal email confirming that the applicant’s management of an organisation called ‘Local Government Procurement’ would be transferred from the applicant to another Senior Account Executive; 20



• A copy of a calendar invitation sent by Mr Taktak to the applicant inviting her to attend a Performance Agreement meeting on 8 February 2017, 21 and notes from that meeting;22



• A copy of an email dated 4 April 2017 sent to the applicant from Mr Taktak advising that he had ‘carefully considered [her] performance against the objectives set out in the Performance Support Agreement and [her] responses’, inviting her to attend scheduled on 5 April 2017 with a support person to discuss the next steps in the performance management process; 23



• A copy of Mr Taktak’s notes from the 5 April 2017 meeting 24 and email sent to applicant following the meeting confirming that she had not met the minimum performance expectations, despite being provided with supports. Attached to the email was a Performance Support Agreement dated 8 February 2017 (to be reviewed on 31 March 2017) and a formal written warning about her performance;25



• A copy of an email sent to the applicant on 7 April 2017 requesting to meet with her on the same day to discuss the attached second Performance Support Agreement dated 5 April 2017 (with a review date of 31 May 2017); 26



• A copy of a calendar invitation sent by Mr Taktak to the applicant to attend a second Performance Support Agreement meeting on 7 June 2017; 27



• A copy of an email dated 16 June 2017 sent to the applicant by Mr Taktak following the 7 June 2017 meeting, attaching a second written warning dated 15 June 2017 and Performance Support Agreement dated 5 April 2017. The email noted that fortnightly meetings to discuss strategies to assist the applicant to meet her objectives would continue and also noted that a further meeting around 4 July 2017 would be scheduled to review the current Performance Support Agreement; 28



• A copy of a calendar invitation to a further performance review to be held on 13 July 2017, sent by Mr Taktak to the applicant on 12 July 2017, 29 and a copy of his notes from that meeting;30



• A copy of an internal email dated 11 August 2017 sent to Mr Taktak noting that the applicant had not returned her Telstra laptop, attaching an email chain of the original request sent in May 2017 following end of lease replacements of Telstra laptops; 31



• A copy of a further email dated 14 August 2017 from Mr Taktak to the applicant requesting that the applicant advise where her old laptop was and follow up text message sent by Mr Taktak to the applicant requesting that the applicant reply to the 14 August 2017 email; 32 and



• A copy of a group email dated 29 June 2017 sent by Mr Blain confirming that as discussed in a meeting on the same day, Telstra was seeking to reduce the number of Account Executive roles and accordingly, applications were being accepted for voluntary redundancies. 33

[9] Both Mr Freeman and Mr Taktak appeared before the Commission to give oral evidence.

[10] In accordance with directions, the parties also filed outlines of submissions and final submissions which were relied upon at the hearing.

Background

[11] The applicant is 43 years old and had been employed by the respondent since November 1999, having held various positions in the company. In May 2003, the applicant commenced in the position of Senior Account Executive Manager (New South Wales (NSW) Government Sales Team), managing the NSW Health portfolio together with another Senior Account Executive, Mr Michael Gadsden. Due to a restructure, the applicant was assigned to the NSW Local Government portfolio, managing Sydney metropolitan council accounts. The applicant was initially managed by Mr Freeman, commencing on 24 July 2014, and then by Mr Taktak, from January 2016.

[12] According to the applicant’s position description, the main goal of a Senior Account Executive was to ensure that revenue, sales and net promotor scores (NPS) on a customer portfolio are met or exceeded in the relevant portfolio, to provide high level executive customer engagement through strategic account management, and to develop well-defined account plans detailing integrated products, solutions and services available to a client.

[13] The ‘Key Accountabilities’ set out in the applicant’s job description included:

• Applying for tenders and initiating bid responses;



• Developing a strong sales profile, including lead identification;



• Building relationships with key individuals;



• Engaging specialist sales and working with business partners; and



• Development of the ‘sales pipeline’, revenue year on year.

[14] The applicant said in her statement that her role required her to engage in new business activities with new customers and establish and build on existing customer relationships. She was required to develop business strategies with customers, selling Telstra solutions. The applicant noted that ‘a key component of the business strategy was to map the intersection of customer needs and requirements to achieve their desired success outcomes and in turn maximise revenue growth for [her] customer portfolio’. 34

[15] The applicant says that from January 2015, she commenced in the Local Government portfolio. She stated that changing portfolios halfway through the financial year made it ‘extremely difficult if not impossible to reach the set sales targets’.  35 However, the applicant’s manager at that time, Mr Freeman, says that the applicant became responsible for the Local Government portfolio in July 2014.36

[16] The applicant principally contends that her dismissal was unfair because the targets set by the respondent were unreasonable, given that councils were not entering into contracts for new business due to uncertainty surrounding amalgamations, and the respondent did not provide her with the necessary support, such as a Service Manager, to enable her to achieve these targets. 37

[17] The respondent contends that the applicant’s employment was terminated on 13 July 2017 following a lengthy period of formal and informal performance management. Specifically, the respondent contends that the applicant’s dismissal was not harsh, unjust or unreasonable because the applicant:

• failed to meet targets for the financial year 2016/17 by a significant amount, achieving just 34.18% of her sales targets; 38



• did not demonstrate the key skills or behaviours expected of a Senior Account Executive; 39 and



• despite significant amounts of support, coaching and resources provided, failed to improve her performance. 40

[18] Details of the issues raised by the parties are set out thematically below.

Service Manager

[19] The applicant states that unlike her previous portfolio, the Local Government portfolio did not have a dedicated Service Manager. As a result, the applicant says that she spent a large portion of her time dealing with service, technical and supply issues, instead of focusing on her primary role. 41 Mr Taktak agrees that the applicant was not provided with a Service Manager for her portfolio, but says the reason for this was because her portfolio was not large enough to warrant having one.42 He gave evidence that the applicant had raised the issue of not having a Service Manager with him around September 2016. He asked the applicant to send him weekly emails with the types of requests she was receiving so that he could review the situation.43 Mr Taktak gave evidence, and the applicant agreed, that she never sent him an email about this.44 Mr Taktak also says that in lieu of a Service Manager, the applicant had access to Ms Joanne Williamson, Service Executive, who worked on the same floor as the applicant and was tasked with managing client queries for multiple account teams.45 Mr Taktak also stated that the applicant had access to a third-party IT company to which she could have fielded service enquiries.46

Council Amalgamations

[20] The applicant’s evidence is that as a result of the council amalgamations, she was unable to meet her sales targets. According to the respondent, the applicant’s employment was terminated as a result of her unsatisfactory performance, including that she failed meet her targets for the 2016/17 financial year by a significant amount, despite the significant opportunities flowing from the council amalgamations.

[21] From around July 2015, the applicant says she was informed by ‘a number of persons within various councils’ that there would be no authority to enter into any new contracts during the council amalgamation process. 47 When asked to clarify this statement in cross examination, the applicant said that she was told by the CIOs of Camden, Campbelltown and Sutherland Shire Councils that contracts would be rolled over, but no new contracts would be entered into due to the uncertainty surrounding amalgamation.48 However, Mr Taktak says that the applicant’s assertion that the local councils would not sign any contracts for new services from May 2016 onwards is incorrect.49 According to Mr Taktak, from May 2016 onwards the applicant signed $2,342,300 in new and renewed contracts for local councils.50 Further, Mr Taktak said that he told the applicant ‘repeatedly’ that the ‘council amalgamation was a massive opportunity for her account portfolio, and that she should develop a strategy to take advantage of it’.51 Mr Taktak referred in particular to funding provided by the State government to councils to assist with the amalgamation process.

[22] It is at least arguable that the council amalgamations had some effect on the applicant’s ability to generate sales revenue. However, the applicant’s performance had already been called into question while she was assigned to the NSW Health portfolio, suggesting that the applicant overstated the effect that the amalgamations had on her ability to meet set targets. The applicant did not give me the impression of an employee trying her very hardest to achieve targets that were out of reach due to circumstances beyond her control.

The applicant’s performance ratings

[23] The applicant’s performance had been reviewed periodically while holding the position of Senior Account Executive. At the end of the financial year employees’ performance was appraised and rated on a scale from 1 (lowest) to 5 (highest), with a rating of 3 indicating that an employee had met their performance expectations. 52 Mr Taktak stated that for the financial year 2014/15 the applicant received a performance rating of 2, indicating that she had not met her performance expectations. The applicant received the same performance rating for the financial years 2015/16 and 2016/17.

[24] Both Mr Freeman and Mr Taktak gave evidence that poor performance by an Account Executive directly affected their own performance as managers, and as such, they both had a personal interest in helping the applicant improve her performance. Mr Freeman gave evidence that he was ‘personally motivated to make sure that the numbers are fair and reasonable’. 53 In contrast, the applicant says that the targets were ‘objectively unachievable’, as evidenced by 8 out of 13 Senior Account Executives failing to meet set targets in financial year 2016/17.54 Mr Taktak concedes that there were other Senior Account Executives who failed to meet their targets, however, he notes that others came close to meeting their targets, did not have customer complaints, showed improvement or were new starters.55 He further noted that a Senior Account Executive who was also undergoing performance management accepted a voluntary redundancy which had also been offered to the applicant.56

The applicant’s performance and performance management processes

[25] Mr Freeman, the applicant’s previous manager, gave evidence that he managed the applicant from July 2014 until December 2015. It was during this period that the applicant commenced managing the NSW Local Government portfolio (Sydney metropolitan councils). In his written statement, he said that prior to becoming the applicant’s manager, he had had several conversations with Mr Michael Carter (Group Manager, NSW), who had raised the applicant’s poor performance, noting that her ‘contribution to the overall performance of [the NSW Health] portfolio was questionable’. 57 Mr Freeman recalled that when discussing the applicant’s transfer into the Local Council portfolio, Mr Carter said: ‘…it would expose Donna’s poor performance and that [Mr Freeman] would have to manage it’.58 Within six months of managing the applicant,59 Mr Freeman says he formed the view that the applicant lacked key skills required by the role and contacted HR Direct team to commence formal performance management.60

[26] Mr Taktak says that he was ‘immediately concerned’ by the applicant’s performance upon commencing as her manager. 61 During the 2015/16 financial year, Mr Taktak worked with the applicant to improve her performance.

[27] On 5 April 2017, Mr Taktak gave the applicant her first written warning about her performance. The letter relevantly stated:

‘…I met with you today to discuss your recent performance. As I explained when we met, I have decided to give you a written warning about your unsatisfactory performance.

I am giving you this warning because you did not meet the performance objectives that we agreed under your Performance Support Agreement dated 6 February 2017. Specifically:

• Pipeline Development – you were required to meet the performance objective of qualified pipeline to $11.5 Million. This has not been met, you achieved $6.4 Million;



• Incremental Sales Target Achievement – you were required to meet $2.5 million by Q3. This has not been met, you achieved $500,00.0 (sic) and YTD is 18%;



• Revenue Target Achievement – you were required to meet 100% revenue target attainment in February 2017. This has not been met, you achieved 98% revenue target attainment;



• Opportunity Ownership – the action plan for 2016 is outstanding and has not been presented with clear executable plan. You have also failed to provide me with your weekly service updates so that I may assist you with these. A complaint was received from Parramatta city council CIO raising concerns about your unresponsiveness, lack of follow up and failure to meet their business needs. This is of particular concern given the strategic nature of this account as it has the top 3 accounts in the local government portfolio. I have seen no change in leadership across the portfolio which is evidenced in your pipeline and sales results.

Therefore, you have not met the required performance objectives.

I expect you to take this warning seriously and to improve your performance. … I will review your performance again after 8 weeks. If you do not improve your performance to the required standard Telstra may take further action, which may include terminating your employment’. 62

[28] The letter also informed the applicant that her performance objectives, the relevant timeframes for meeting the objectives, and the supports available to her were set out in her Performance Support Agreement. The letter encouraged the applicant to discuss any ways in which Telstra may support her to meet her objectives with Mr Taktak, stating: ‘I want to make sure we are doing everything we can to help improve your performance’. 63

[29] On 15 June 2017, following a meeting with Mr Taktak on 7 June 2017, the applicant was issued with a second written warning about her performance. The letter was in a similar format to the previous letter and stated that the applicant had failed to meet the performance objectives set out in her Performance Support Agreement dated 6 February 2017, and again emphasised that Telstra was committed to providing support to the applicant to meet her objectives. The letter concluded: ‘I will review your performance again on 4^th July 2017. If you do not improve your performance to the required standard Telstra may take further action, which may include terminating your employment’. 64

[30] On 12 July 2017, Mr Taktak sent the applicant a calendar invitation to attend a ‘PSA Review’ meeting to be held on the following day. The applicant attended the meeting without a support person. Mr Taktak gave evidence that he went through her last Performance Support Agreement and the results. In his statement he described a conversation with the applicant to the effect of:

‘Donna you have failed to achieve any of your targets for the year. I started in January 2016 and haven’t seen anything change in the way you have been managing your portfolio since I started. Your portfolio is not improving and we can’t keep going as we have been for the last 18 months. I still haven’t seen any plan from you for your portfolio even though I’ve been requesting one. We started the first PSA back in April. Since then I still haven’t seen a long term strategy.

I am proposing to terminate your employment for poor performance. Do you have any comments?’ 65

[31] Mr Taktak said that the applicant did not make any comments following this exchange. Mr Taktak says that the applicant became upset and appeared surprised that she was being terminated so he offered her a glass of water and told her to take some deep breathes. He further informed her that she could say goodbye to her colleagues and would be required to return her Telstra property before departing that afternoon. The applicant disputes Mr Taktak’s version of events and says that Mr Taktak did not show any concern for her wellbeing. 66

Complaints about the applicant and customer care

[32] Mr Freeman said that during his time managing the applicant, he received multiple customer complaints that ‘generally related to her lack of response to their requests and failure to follow up on things they raised’. 67 During his oral evidence, he indicated that he had received two written complaints about the applicant as well as other oral complaints.68 In his statement, Mr Freeman said that in his view, the applicant was a ‘poor performer’ in relation to engaging the sales team and struggled to keep up with basic administration tasks noting that he had to regularly follow up with the applicant regarding outstanding work.69

[33] Similarly, Mr Taktak gave evidence that he received a number of complaints from internal stakeholders and customers about the applicant regarding her failure to respond to queries. A complaint received from Camden Council on 15 June 2016 questioned the level of service provided by the applicant noting that it was ‘virtually impossible to make contact with [the applicant] for days on [end] (sic) if not weeks on end’. 70 Other complaints received by Mr Taktak from City of Parramatta, Sutherland Shire and Ashfield councils also remarked that the applicant had been unresponsive or failed to service their needs.71 On 22 February 2017, while the applicant was being performance-managed, Mr Taktak received an email from the City of Parramatta council regarding the applicant’s performance. The email from the Head of IT read:

‘Hi Hanna,

As discussed attached are 2 emails that I have sent to your organisation desperately needing to get a solution. To date I have had no contact regarding these emails. As well as those emails, I have made 2 phones (sic) to Donna to discuss further but unfortunately to no avail.

Due to a lack of account management or more specifically no contact since mid December 2016, I reach out to you to assign a new account manager for City of Parramatta and remedy this unacceptable situation. As you know Parramatta is on the verge of some big initiatives relating to SmartCity for which a much higher level of engagement is required.’ 72

[34] Following this complaint, Mr Taktak gave evidence that he commenced managing the account himself; 73 however, the account remained in the applicant’s portfolio.74 The applicant accepted that she had been asked not to contact the client by Mr Taktak, but remained on the account working in the ‘background’.75 Mr Taktak gave evidence that managing the Parramatta account was one of the many supports he provided to the applicant in performing her role.

[35] In accordance with the applicant’s position description, ‘building/maintaining relationships’ and ‘customer relationship management’ are identified as ‘core capabilities’ or ‘technical skills’ which are required to be possessed by a Senior Account Executives. 76 Given the numerous customer complaints, including a request that the applicant be removed from the Parramatta account, it is apparent that the applicant was not fulfilling a key component of her role. Furthermore, the applicant’s Performance Support Agreement listed ‘Opportunity Ownership’ as a ‘Performance Objective’, noting that the applicant had not met this objective and that she needed to show leadership through ‘customer advocacy in the form of returning calls and communication to portfolio’.77 Mr Taktak noted in the Performance Support Agreement that the applicant could meet the performance objective by having a clear account plan and requested that the applicant send an email each week outlining any service issues she may have. In cross-examination the applicant confirmed that Mr Taktak had made this request and that she had never sent those emails.78

Consideration

[36] It is not in dispute that the applicant is a person protected from unfair dismissal. In accordance with s.382 of the FW Act, I am satisfied that the applicant is so protected.

[37] I am satisfied that the application was made within the period required in s.394(2) of the FW Act and that the Commission has jurisdiction to determine this matter.

[38] I must now determine whether the applicant has been unfairly dismissed. Section 385 of the FW Act provides that:

‘A person has been unfairly dismissed if the Commission 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388’.

[39] I am satisfied that, the applicant has been dismissed, the respondent was not a small business and the dismissal was not a case of genuine redundancy. The issue to be determined therefore is whether the dismissal was harsh, unjust or unreasonable. In accordance with s.387 of the FW Act, I am required, in considering this issue, to take into account:

‘(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant’.

[40] I will consider each of these criteria in turn.

Valid reason: s.387(a)

[41] I am satisfied that there was a valid reason for the applicant’s dismissal by the respondent, being the applicant’s consistent underperformance as set out in the letter of termination dated 13 July 2017. This included:

• failure to meet incremental sales targets (achieving just 34.18% for the financial year 2016/17) 79;



• failing to meet pipeline development targets; and,



• failing to meet the required standards in terms of ‘opportunity ownership’ in relation to customer engagement. 80

[42] I do not accept the applicant’s submission that the targets set for her were unachievable, nor that the provision of a Service Manager was a support necessary to allow her to achieve these targets. While a number of Senior Account Executives had failed to meet their set targets, the applicant had both failed to meet her targets by a significant amount and received a number of customer complaints. Further, while I note that the applicant’s evidence that she had requested a dedicated Service Manager and that this would have allowed her to focus on her primary sales/revenue role, this must be weighed up against the evidence given by Mr Taktak that despite asking the applicant to send him weekly emails so he could review need for a Service Manager, the applicant never did so. I also consider it relevant that the applicant failed to engage the support of the Service Executive, Ms Williams, or the third-party IT company. It would have been reasonable to expect that, given the applicant’s ongoing concern, she would have actively sought out supports.

[43] In relation to the applicant’s evidence that due to council amalgamations, she was unable to meet her sales targets because the councils were not entering into new contracts, I accept that this may have had some impact on sales. However, I do not accept that the amalgamations meant that the targets set for the applicant were unachievable. The applicant has failed to provide any evidence to substantiate this claim. As such, I prefer the evidence given by Mr Taktak that there were substantial opportunities within the applicant’s portfolio.

[44] I am satisfied that the respondent had a valid reason for the dismissal of the applicant, namely that:

• The targets set by the respondent, being sales, revenue and pipeline development and the objectives surrounding opportunity ownership were common to all Senior Account Executives;



• The applicant was first informed that she was not meeting her targets and objectives in October 2016 and was given supports to help her improve;



• When the applicant failed to improve, formal performance management commenced in February 2017 and a Performance Support Agreement was provided to the applicant, clearly outlining: the objectives she was required to meet; evidence that the objectives had not been met; ways for improvement; supports available to her; and



• The applicant was provided with two written warnings that both highlighted that the Performance Support Agreement was central to her continued employment and expressly stated that failure to improve may lead to termination.

[45] It is not in dispute that the respondent had offered voluntary redundancies to Senior Account Executives prior to the applicant’s dismissal. I reject the applicant’s submission that it is open on the evidence to infer that the applicant was terminated to avoid the payment of a redundancy package.

Notification of reason: s.387(b)

[46] The applicant was provided with notice of the 13 July 2017 meeting via a calendar invitation sent by Mr Taktak the day prior. It is contended by the applicant that the calendar invitation titled ‘PSA Review’ was vague and ‘couched in terms no differently to other meetings that the applicant had attended to discuss her PSA’. 81 However, by the time of the meeting, the applicant was fairly on notice that her performance was at issue and that the consequence of failure to improve included termination of employment.

[47] The Performance Support Agreement which was first drafted in February 2017 and later revised set out in detail the objectives the applicant was required to meet; evidence that the objectives had not been met; suggestions for how the objectives could be met; the support available to assist her to meet the objectives; and, the date upon which the performance objectives must be met, providing a date for formal review. 82 The applicant concedes that she was on notice of the respondent’s concerns regarding her performance, but submits that she was notified of the reasons for her dismissal until the decision had been made.83 Mr Taktak gave evidence that at the 13 July 2017 meeting he detailed his ongoing concerns with the applicant’s performance and informed her that he proposed to terminate her employment. I am satisfied that the applicant was notified of the reasons for her dismissal and afforded procedural fairness throughout the process of performance management and in her dismissal.

Opportunity to respond: s.387(c)

[48] Mr Taktak says that the applicant was extended an opportunity to respond and explain why she should not be dismissed at the 13 July 2017 meeting. This was in a context where the respondent’s concerns with the applicant’s poor performance had been formally raised in two prior meetings and by letters dated 5 April and 15 June 2017. The applicant had failed in any significant way to show improvement or willingness to address shortcomings and had not taken any steps to respond, despite being invited to do so. Mr Taktak gave evidence that at the 13 July 2017 meeting, the applicant did not make any comment after he informed her that he was proposing to terminate her employment. Accordingly, her employment was terminated. 84

[49] The applicant says she was not provided an opportunity to respond and submits that by providing a pre-prepared letter of termination signed by Mr Blain, Head of NSW Telstra Enterprise, and not speaking to Mr Blain between him signing the letter of termination and the termination occurring, she was denied an opportunity to respond. 85 I find that the applicant was given ample opportunity to respond to the concerns raised by the respondent throughout the performance review process but, for whatever reason, chose not to do so.

Support person: s.387(d)

[50] The applicant did not attend the 13 July 2017 meeting with a support person. The applicant submits that as she was not provided with notice of the nature of the termination meeting, therefore she was not put on notice that she may have a support person present. 86 The applicant gave evidence that at previous performance meetings held on 8 February 2017 and 5 April 2017, she had a support person present.87 The respondent submits that the applicant made no request for a support person to be present, or request that the meeting be rescheduled or suspended, therefore the criteria is not relevant.88 I find that there was no unreasonable refusal by the respondent to allow the applicant to have a support person present.

Prior warnings: s.387(e)

[51] The applicant had been alerted to the respondent’s concerns with her performance by the performance ratings awarded to her in the 2014/15 and 2015/16 financial years. Further, the applicant was put on notice that her performance was an issue by the two formal waring letters dated 5 April and 15 June 2017. As set out above, the warning letters expressly stated that the respondent may take further action, which may include terminating her employment.

Size of the respondent and access to specialised human resources expertise: ss.387(f) and (g)

[52] Telstra is a large business with dedicated human resource staff. The procedures followed by the respondent were consistent with those to be expected of a large corporation. At various stages, internal human resources personnel were consulted and Mr Taktak gave evidence that he sought out a copy of the company performance support policy. The procedures followed by the respondent in managing the applicant’s performance and ultimately dismissing her were exemplary. When the applicant’s underperformance was identified, steps were taken to help her improve. It is evident that the decision to dismiss the applicant was not taken lightly.

Other relevant matters: s.387(h)

[53] I have had regard to the length of the applicant’s service with the respondent. At the time of her dismissal, the applicant had been employed by the respondent for 18 years. This is a considerable length of service. While employed as a Senior Account Executive, the applicant had two years of being rated as partially meeting expectations (financial years 2010/11 and 2011/12) and for financial years 2014/15, 2015/16 and 2016/17 was rated 2, indicating that she had not met her performance targets. I consider it relevant that the applicant had a history of underperformance. While the applicant submits that given her length of service it may have been appropriate to redeploy her, I accept the respondent’s submissions that given her consecutive years of underperformance, it would have been inappropriate to do so. 89

[54] I note the applicant’s contention that given other Senior Account Executives had failed to meet relevant targets, her dismissal was disproportionately harsh. 90 When questioned, Mr Taktak agreed that other employees had failed to meet their targets; however, the reason for the applicant’s dismissal was not solely based on her failure to meet sales/revenue targets. As set out above, the applicant had a history of underperformance, and despite performance management, had failed to show any improvement. In addition, the applicant was subject of a number of customer complaints, including a request to have her removed from a client account. As such, I do not give any weight to the applicant’s submission that her treatment was harsh compared to other employees.

Conclusion

[55] I am satisfied that that the termination of Ms Strezoski’s employment by Telstra was not harsh, unjust or unreasonable. Accordingly, the application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

D Strezoski, the applicant, in person, with D O’Sullivan of counsel.

A Perigo of counsel instructed by Seyfarth Shaw Australia, for the respondent.

Hearing details:

Sydney.

2017.

October 26.

November 3.

 1   Warrell v Walton (2013) 233 IR 335 [24].

 2   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 [19].

 3   Singh v Metro Trains Melbourne[2015] FWCFB 3502 [14].

 4   Exhibits S1 and S2.

 5   Exhibit T1.

 6   Exhibit T2.

 7   Exhibit T3.

 8   Exhibit T2, attachment HT-1.

 9   Ibid attachment HT-2.

 10   Ibid attachment HT-3.

 11   Ibid attachment HT-4.

 12   Ibid attachment HT-5.

 13   Ibid attachment HT-6.

 14   Ibid attachment HT-7.

 15   Ibid attachment HT-8.

 16   Ibid [36] and attachment HT-9.

 17   Ibid attachment HT-10.

 18   Ibid attachment HT-11.

 19   Ibid attachment HT-12.

 20   Ibid attachment HT-13.

 21   Ibid attachment HT-14.

 22   Ibid attachment HT-15.

 23   Ibid attachment HT-16.

 24   Ibid attachment HT-17.

 25   Ibid attachment HT-18.

 26   Ibid attachment HT-19.

 27   Ibid attachment HT-21.

 28   Ibid attachment HT-22.

 29   Ibid attachment HT-23.

 30   Ibid attachment HT-24.

 31   Ibid attachment HT-25.

 32   Ibid attachment HT-26 and HT-27.

 33   Ibid attachment HT-28.

 34 Exhibit S1 [7].

 35 Ibid [8].

 36 Exhibit T1 [20].

 37   Exhibit S1 [32]; applicant’s outline of submissions [3]-[5].

 38 Exhibit S2 [4].

 39 Respondent’s outline of submissions [4].

 40 Ibid [3].

 41 Exhibit S1 [9].

 42   Exhibit T2 [30]-[32].

 43 Ibid [35].

 44   Ibid; PN246.

 45 Ibid [33].

 46 Ibid [34].

 47 Exhibit S1 [13].

 48   PN82-PN83.

 49 Exhibit T2 [25].

 50 Ibid [26].

 51 Ibid [25].

 52 Ibid [15].

 53   PN841.

 54 Applicant’s final outline of submissions [7].

 55 Exhibit T2 [79].

 56   Ibid.

 57 Exhibit T1 [7].

 58 Ibid [8].

 59 Ibid [9].

 60 Respondent’s outline of submissions [7].

 61 Ibid [8].

 62   Exhibit T2 attachment HT-18.

 63   Ibid.

 64   Ibid attachment HT-22.

 65 Exhibit T2 [71].

 66 Exhibit S2 [41].

 67 Exhibit T1 [12].

 68   PN808-PN817.

 69 Exhibit T1 [11].

 70   Exhibit T2 [18.1].

 71   Ibid [18] and attachments HT-2-HT-7.

 72   Ibid HT-4.

 73 Ibid [18].

 74   PN346.

 75   PN354.

 76   Exhibit T2 attachment HT-1.

 77   Ibid attachment HT-22.

 78   PN436.

 79 Exhibit T3 [4].

 80   Exhibit S1 attachment A.

 81 Applicant’s final outline of submissions [11].

 82   Exhibit S2 attachment HT-11.

 83   Applicant’s outline of submissions [14]-[15].

 84 Exhibit S2 [71].

 85 Applicant’s final outline of submissions [11].

 86 Applicant’s outline of submissions [18].

 87   PN421 and PN501.

 88   Respondent’s final outline of submissions [75]-[77].

 89 Ibid [82].

 90 Applicant’s outline of submissions [23].

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