Fraser Norton v Quad Services Pty Ltd T/A Quad Services

[2013] FWC 3709

[2013] FWC 3709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fraser Norton
v
Quad Services Pty Ltd T/A Quad Services
(U2012/17362)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 28 JUNE 2013

Section 394 - application for an unfair dismissal remedy - arbitration - dismissal for performance reasons.

[1] On 21 December 2012 Mr Fraser Norton (“the Applicant”) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”) in relation to the termination of his employment by Quad Services Pty Ltd trading as Quad Services (“the Respondent”).

[2] The Applicant was employed as an operations manager on or about 7 June 2010. The Respondent’s business provides cleaning services to a variety of businesses. The Applicant’s position appears to have concerned maintaining the efficient operation of the cleaning services at the various sites ensuring there was a high level of customer satisfaction within his given territory (the Gold Coast). The Applicant was also required to rectify any problems that arose from time to time to ensure that contracts were not lost owing to service standard issues.

[3] The Applicant essentially contends that he was left to his own devices; worked with little or no targeted training, negligible supervision and nominal contact with supervisory or managerial staff; and was dismissed unfairly.

[4] He claims that shortly after the commencement of his employment with the Respondent a new reporting system was introduced. This reporting system provided daily, weekly, and monthly performance monitoring via what appeared to be spreadsheets which were available on a common drive on the computer system. These reports provided information on client complaints, as well as satisfaction and self-evaluation reports which were audited by general managers.

[5] The Applicant claims to have not been trained in the use or preparation of these reports but was invited to “figure it out for [him]self”. The Applicant duly completed the reports but was never given any feedback, so he claims.

[6] For some lengthy period of time the Applicant was satisfied that he was an effective employee and had been told nothing else to the contrary. He states that at no time had he undergone a performance review or had there been any discussion as to whether he had met key performance indicators.

[7] It appears that the difficulties in the employment relationship can be traced back to the award of a major contract with the Commonwealth Bank (“Commbank”). The Applicant was allocated 35 branches on the Gold Coast to manage (the cleaning of) on top of his existing territory. This meant, in the eyes of the Applicant, a significant increase in his workload.

[8] But by February 2012, despite the Applicant’s initial concerns, he was of the view all was going well with the Commbank contract in his territory. The contract was a state-wide contract, and the Applicant’s region was only one region amongst numerous in Queensland.

[9] The Applicant claims that on or about March 2012, Commbank indicated it believed the Respondent was in breach of its contract.

[10] Upon this development the Respondent’s CEO, Mr Andrew Yardley, came to Brisbane to assist with the Commbank contract and had several meetings with the Applicant. The Applicant contends that Mr Yardley did not want to change any of the operational circumstances of the contract but had offered the Applicant a new phone (so he could respond to emails promptly) and a new printer to assist with his workload. The Applicant also claims that following this meeting Ms Jody Power, one of the Respondent’s regional general managers, became more hands-on in relation to the Commbank contract and assumed some of the Applicant’s workload.

[11] Mr Yardley indicated, according to the Applicant, a desire to maintain a direct line of communication with him in relation to any difficulties that should arise with the contract.

[12] The Applicant contends that Ms Power around this time became “irate” with him; accusing him of not understanding his territory or his job description.

[13] Ms Power was said to have contested the accuracy of the Applicant’s figures in relation to the Commbank contract. When these figures were checked by the Respondent’s senior analyst the figures were said to have been correct in relation to account setups and costings. The Applicant stated that he had reminded Ms Power at that time that his area was the only area performing to the correct standard under the terms of the Commbank contract and that it was the other areas of the State that were putting the contract at risk.

[14] The Applicant admits to a number of “verbal altercations” around this time with Ms Power, who he believed was using him as a “scapegoat” for the difficulties with the Commbank contract.

[15] On or around early February 2012 the Applicant corresponded with Ms Power about his workload, claiming it was adversely affecting his health, and that his remuneration was insufficient for his expanded responsibilities. A meeting was promised but none eventuated, according to the Applicant.

[16] The Applicant claims that he became “emotional” because he was being treated as a scapegoat, as he put it, and was provided with no assistance in managing a “workload [that] was almost impossible to manage.” This claim was made notwithstanding the Applicant’s earlier claim that the Commbank contract was working well in his region.

[17] On or around March 2012 the Applicant states that he approached Ms Power and offered his resignation, but Ms Power urged him not to resign so he remained in his position with the Respondent.

[18] On or around March/April 2012, the Applicant claims that Commbank cancelled its contract with the Respondent.

[19] On 23 April 2012 Ms Power met with the Applicant and asked him to sign a letter concerning the Applicant’s failure in relation to the performance of the contract with Commbank. The letter did not accuse the Applicant of being responsible for the loss of the contract, but that his performance as operations manager in relation to the contract had not met his employer’s expectations.

[20] That letter is a lengthy document, and stated the following points in summary:

• The Applicant’s area was the area with the most complaints lodged against it by Commbank;



• Issues arose repeatedly and were not resolved by the Applicant;



• The Applicant was responsible for the conduct of the contract and client satisfaction in his area;



• The Applicant had acted unprofessionally in verbal interactions with Commbank management (branch managers), who had complained about his conduct (and that in December 2011 the Applicant had been requested to cease making such comments);



• The majority of sites in the Gold Coast region for which the Applicant was responsible had failed an inspection the week prior to the loss of the contract;



• Commbank had requested that the successor to the contract not engage any of the cleaners employed by the Respondent as a consequence;



• Ms Power took exception also to the Applicant’s claim that his job was to do no more than bimonthly audits and “run” the contract. Ms Power argued that as operations manager, the Applicant was responsible for the end result of the service provided by the Respondent;



• As operations manager, the Applicant should have conducted, allowing one hour per visit, 4 to 6 site visits in a day (not the average of two visits a day the Applicant had recorded), and have also conducted client “PR”;



• The Applicant was required to include an increased number of site visits per week, using the OM workbook and have the inspection report signed off by the client allowing for changing circumstances however;



• The Applicant was required to complete at the end of each day a record of his visitations as well as a record of visiting sites when cleaning was taking place at a location in which a complaint had been made by a client;



• Ms Power proposed a fortnightly meeting to review the Applicant’s performance;



• The correspondence indicated that the Applicant was on notice that if there were any more issues with client satisfaction or about performance issues then the Applicant may be dismissed from the Respondent’s employment; the correspondence concluded by providing the Applicant an opportunity to seek any clarification about any of the issues raised in the correspondence and invited the Applicant to sign the correspondence and return it to the Respondent.

[21] The Applicant contended that the letter contained completely inaccurate information; he had been given no assistance over the course of his employment despite increasing workload (notwithstanding his earlier evidence); that he was not responsible for the loss of the Commbank contract; and that he would not sign the letter as requested by Ms Power.

[22] The Applicant claims that Ms Power indicated that he should sign the letter and “take one for the team”, and that the letter did not constitute “an official warning.”

[23] On this basis the Applicant states that he reluctantly signed the letter of 23 April 2012.

[24] Ms Power was said to have told the Applicant to forget about the letter and to get on with his job.

[25] In or about September 2012 the Applicant was advised of a possible new contract with Alpha Flight Services (“AFS”) in Broadbeach. The Applicant claims that he was responsible for “getting this agreement up and running within 24 hours, without having a written contract in place.” The Applicant believed the provision of services to the new client was proceeding well despite the odd hiccup, which was rectified promptly.

[26] The contract, however, only lasted for three weeks as the client was unhappy with the services provided. Ms Power was said to put this down to the idiosyncrasies of the client as it had refused to speak to the Applicant or to the Respondent’s representatives directly.

[27] Notwithstanding this claim however Ms Power was said to have called the Applicant to a meeting in October 2012 and presented him with a letter which he was again asked to sign.

[28] In the interview concerning the letter the Applicant claims that Ms Power simply asked to him to sign on the basis that Mr Yardley had requested that the Applicant sign a letter and that she did not otherwise wish to engage in discussion about the rights and wrongs of the allegations made therein. The Applicant refused to sign the letter.

[29] Ms Power at that time indicated to the Applicant that she did not wish to terminate his employment.

[30] The Applicant attempted to raise his concerns with Mr Yardley, however claims that Mr Yardley did not respond to his correspondence.

[31] The Applicant claims that he requested training or monitoring so that he could be given feedback on his performance.

[32] On 26 October 2012, the Applicant was invited to attend a meeting with Ms Power along with Mr Lindsay Ayton, another of the Respondent’s regional general managers. At that meeting Ms Power handed the Applicant a further letter.

[33] The letter, dated 26 October 2012, made the following claims in summary:

• Another client had been lost because of dissatisfaction with cleaning services provided in the Applicant’s region;



• The Applicant’s main role is to make sure that the Respondent is providing services with which the client is happy but the Applicant had failed to achieve this;



• The Applicant was failing at the basics of his role and that it was necessary for him to get onto a site to ensure an outcome rather than have the Respondent make telephone calls from a remote location;



• Ms Power states in the correspondence that she met with the client on 25 September 2012 and discovered that the client was unhappy with the standard of cleaning provided;



• The client raised its concerns directly with the Respondent’s customer care team (which referred the concerns to be Applicant);



• Issues raised by the client had remained unaddressed;



• The Applicant had not completed an inspection report;



• The Applicant had spent the first few days on site however he did not appear to have followed up by way of ongoing inspections and reviews that are necessary in the first few months of a contract;



• Because the client believed its issues were not being resolved it terminated the Respondent’s services; and



• The loss of the contract was a result of the quality of service provided, which was a matter for which the Applicant was responsible; and



• The Applicant was placed on notice that his performance will be monitored and reviewed, and that termination of his employment might follow.

[34] The Applicant was again requested to sign the letter and return it to Ms Power.

[35] Ms Power was said to have stated that “the whole industry knows.” And that “you won’t get work again.”

[36] The letter went unsigned.

[37] Some weeks later, in or around mid-November 2012, the Applicant had met with Mr Ayton and Ms Power for one of his fortnightly meetings. At that time no comment was made about the Applicant’s employment security. Quite the contrary, there were discussions about the Applicant holding different positions within the Respondent’s business owing to other staffing changes and new contracts.

[38] One of the matters discussed was the possible loss of a contract with Bradken, which the Applicant contended was seeking lower prices and generally had a desire to change cleaning contractors.

[39] As the Christmas lunch was to be held on 14 December 2012, the Applicant approached Ms Power and requested that he be provided with an opportunity at that event to discuss with Mr Yardley the correspondence of 23 April 2012 and 26 October 2012, which are summarised above.

[40] Ms Power provided no response to this request.

[41] Between the last week of November 2012 and up until 12 December 2012, the Applicant believed that his situation and stabilised and that his employment was not in jeopardy.

[42] On 12 December 2012 the Applicant met with Ms Power and Mr Ayton. Ms Power indicated to the Applicant that she had been demoted and replaced by Mr Ayton (who would become the general manager responsible for both regions) and that the Respondent intended to restructure the Brisbane and Gold Coast branches so that Gold Coast areas would be served out of Brisbane. As a consequence, the Applicant’s position would no longer be required and that he would be made redundant. Ms Power would be taking up responsibility for management of the Gold Coast area.

[43] The Applicant was in shock, so he claimed, but accepted the situation on the basis that the Respondent was reorganising its business.

[44] Ms Power indicated that the Applicant would be given three week’s pay in lieu of notice. There was then some discussion, so the Applicant claimed, about the redundancy provisions under the Applicant’s contract of employment, which Ms Power undertook to resolve.

[45] The Applicant was handed correspondence by Ms Power.

[46] That correspondence, dated 12 December 2012, read relevantly as follows:

I refer to our recent meetings regarding your performance in my letters of 23 April 2012 and 26 October 2012.

The issues that were raised related to your performance in respect of client satisfaction and to you not meeting KPI’s. In each instance you were given the opportunity to turn things around.

Unfortunately, we have suffered another loss due to client dissatisfaction with the service. The matters raised in each of our meetings as well as in my earlier letter applied again.

I now have no alternative but to terminate your employment with three week’s notice effective today. Instead of working out a notice period, you will be paid three weeks in lieu.

[47] The Applicant claims that he did not read the above correspondence immediately because he simply assumed that it would confirm his redundancy.

[48] It was only a little later that the Applicant said that he read the letter of termination. The Applicant claims that he was “absolutely shocked” to find that he had been dismissed for reasons of performance and not redundancy.

[49] The Applicant subsequently discovered that he was not paid out as a redundancy but as a termination on the basis of payment in lieu of notice only.

[50] The Respondent’s payroll office indicated that no redundancy payments had been authorised to be paid to the Applicant. Attempts to contact Mr Yardley by e-mail had failed.

[51] The Applicant noticed the following day that his position was advertised on Seek.

[52] The Applicant claims that he had no opportunity to defend himself or receive any feedback over the course of his employment about his performance, and was unaware that his position was in jeopardy. The Applicant claims to have never undergone a performance review meeting. In all, the Applicant believes his dismissal was harsh, unjust and unreasonable.

[53] The Respondent’s position in relation to the relevant factual matrix was quite different.

[54] Ms Power gave evidence that the Applicant had stated to her that he had several years of contract cleaning industry experience and had given her the impression he held certain competencies relevant to his position. The Applicant agreed that he was experienced in operations work within the industry and in particular site retention and client satisfaction roles.

[55] Ms Power therefore did not believe the Applicant required intensive training or special assistance to perform his job.

[56] Ms Power claimed that the Applicant’s position was not one requiring an especially complex set of skills other than a keen sensitivity to client satisfaction. This simply meant keeping close relationships with a client in the initial period of a new contract; being available and receptive to requests for rectification by clients; and otherwise ensuring the clients were satisfied as to the quality of the service they were being provided.

[57] Ms Power also gave evidence that she met the Applicant fortnightly and discussed both administrative and operational matters and when necessary made comment to the Applicant on service concerns she had (such as in relation to AFS below).

[58] Ms Power took umbrage therefore that the Applicant would switch his mobile phone off between 5:30 PM and 8:30 AM as it was not possible to communicate with him when a client had a complaint. This does not seem to be a matter, however, that arose for the purposes of comment in the performance correspondence of April and October 2012.

[59] Generally, however, Ms Power’s concerns with the Applicant’s performance were as encapsulated in the 23 April 2012 and 26 October 2012 correspondence. That is, the Applicant appeared, in Ms Power’s perspective, to place little or no emphasis on servicing clients despite the intensively competitive nature of the contract cleaning industry.

[60] Ms Power also contested the Applicant’s claims that he was not provided with any assistance from her or that she had used him as a scapegoat. Ms Power argued instead that she was frustrated by the Applicant because of his failure to appreciate the urgency of complaints and requests from clients in the context of the competition in the industry.

[61] According to Ms Power, the Applicant was recalcitrant when it came to improving his performance despite her having raised the issues with him on a number of occasions.

[62] One of those occasions was on 20 April 2012, in which Ms Power informed the Applicant in very particular terms that his performance was unsatisfactory. This meeting was the backdrop to the correspondence of 23 April 2012, which is summarised above.

[63] Ms Powers contended that she never indicated to the Applicant that the letter of 23 April 2012 was anything but an official warning. She claimed in her evidence that the Applicant himself had stated that he was being asked to “take a bullet for the team” and Ms Power had disagreed. Generally, Ms Power argued that she wanted the Applicant to sign the letter not for reason of having him agree to the contents but as acknowledgement of receipt only.

[64] Ms Power also challenged the Applicant’s claim that he was responsible for setting up the AFS contract. Ms Power claimed that she had visited the site on a number of occasions and was responsible for creating the financial and operational estimate that formed the basis of the contract. She claims to have been particularly upset that this contract was lost after such a short period of time owing to what she claimed was the Applicant’s reluctance to take phone calls from or to respond to the client.

[65] Ms Power explained that the AFS contract had been a national contract for three years and the entity in the Applicant’s area of responsibility had withdrawn from the national tender. Ms Power claimed this was because of its dissatisfaction with the cleaning services it was provided. Ms Power gave evidence that she had walked the Applicant through these concerns in a meeting.

[66] The Applicant also denies any claim that she described the client’s (Bradken’s) conduct as “bizarre”.

[67] Ms Power also gave evidence of another contractual issue in which a large shopping centre had also complained of the Applicant’s conduct and poor service delivery. Ms Power stated that she kept this information back from the CEO in order to protect the Applicant.

[68] Ms Power claimed that she has spent a lengthy period at that site rectifying issues that had arisen. She claims also to have taken the Applicant through this incident as it unfolded.

[69] Ms Power recalls the meeting of 26 October 2012, at which the correspondence of that same date was provided to the Applicant. She claims to have told the Applicant at that time that she was giving him another formal warning because clients were increasingly upset and the Respondent was losing contracts and the Applicant’s performance would need to improve dramatically. She also recalled claiming that:

“Fraser you only look after 15 jobs at the moment. I have looked after over 100 jobs at various times in this industry. You can’t keep going this way. If you don't start servicing clients you won’t have a job. The Alpha thing has put you right on the chopping block. You are in real trouble.”

[70] On 11 December 2012 following a discussion with Mr Yardley, Ms Power agreed that the Applicant should be dismissed. She then drafted the correspondence of 12 December 2012, which was the dismissal letter as cited earlier.

[71] Ms Power and Mr Ayton both gave evidence to the effect that when they met the Applicant on 12 December 2012 the Applicant was directly informed (by Ms Power) that he was being dismissed for reason of his performance in relation to various contracts and the unhappiness of various clients.

[72] Both Ms Power and Mr Ayton recalled the Applicant opening the letter that he was handed at that time and reading it while Ms Power spoke to him.

[73] This version of the dismissal meeting contrasts significantly to that of the Applicant.

Consideration

[74] Section 387 of the Act reads as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

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

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

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

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

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

Section 387(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)

[75] The Applicant’s employment came to an end for reasons of claims made over time about the effectiveness of his performance.

[76] As set out above, the Applicant claimed that he was never “officially warned”, had no training, was provided with no guidance, and was given no assistance, despite an expanded workload. Are these claims tenable in light of the evidence at hand?

[77] It appears to me that the correspondence of 23 April 2012 was a particularly thorough and detailed account of the difficulties the Respondent held with the Applicant’s performance to that date.

[78] That correspondence not only provided an explanation of the performance issues but set out a detailed plan for purposes of monitoring future performance and ensuring improvement.

[79] It strikes me as inherently implausible that Ms Power would provide the Applicant with correspondence composed in such prescriptive and lengthy terms; conduct a meeting with the Applicant in which the content of the correspondence was set out; insist on the Applicant signing the correspondence; and then dismiss the significance of the correspondence as being unofficial, not providing a substantive warning, and not presenting an obstacle to everyone operating within the business the same way they had operated before the loss of the Commbank contract.

[80] Ms Power, of course, denied this very proposition. On the balance of probability I accept her position in the context and as explained. The correspondence was intended to concentrate the Applicant’s mind upon his employer’s expectations about how to put a customer service strategy in place and the implications of failure.

[81] As I mentioned above, the Applicant was not held responsible for the loss of the contract. But the deficiency in his performance in respect of his area of responsibility was brought to his attention.

[82] Similarly so, the correspondence of 26 October 2012 again set out further performance deficiencies following the loss of the AFS contract. The Applicant also argued that this correspondence did not constitute a warning, even though its precise terms served that very function. Again, it is implausible that such a prescriptive and lengthy item of correspondence was directed to the Applicant but was not intended to have any substantive effect. Again, Ms Power’s evidence was to the contrary in any event. She had express concerns with the loss of the Applicant’s area from the national tender and gave evidence that she had walked the Applicant through those concerns.

[83] And as cited above, Ms Power expressly conveyed to the Applicant what must have been obvious: that his employment was in jeopardy following the loss of the AFS contract in his region.

[84] Thus, the Applicant was on notice about his employer’s concerns with his performance, and in considerable detail. I have summarised this correspondence above. The Applicant would have me not take this correspondence into account as illuminating the grounds for his employer’s concerns about his conduct. But the correspondence was constructed and intended to have the role of apprising the Applicant of his employer’s concerns with his performance; identifying strategies for rectifying those performance deficiencies; and putting the Applicant on notice that his employment was at risk. The surrounding conduct by the employer supports this finding.

[85] It appears to me that the claims that the Applicant was not “officially warned” and was not given guidance or direction are unsustainable. I add further that the Applicant contended that he received no guidance or assistance with his workload, but otherwise claimed that Mr Yardley (the CEO) had met with him and acceded to his request for additional equipment; Ms Power became more directly involved in his workload; and his workload was reduced (when the Commbank contract was in difficulties). Indeed, after the Commbank contract was lost, the Applicant’s workload was reduced significantly from then onwards.

[86] These are matters that have particular bearing in relation to s.387(e) and (h) of the Act, as discussed below, but they provide a relevant backdrop to the establishment of a valid reason for the dismissal.

[87] More directly for the purposes of s.387(a) of the Act though, the Respondent held the view essentially that the Applicant had underperformed over the course of 2012 in relation to three contracts. The first of these was the Commbank contract, the second was the AFS contract, and the final of these was the Bradken contract (in which it was said - without challenge - that the Applicant had been nominated expressly by the client as a source of the contractual difficulties). Each of these three contracts was a contract for which the Applicant was responsible in his designated area.

[88] The Applicant was informed at the time that as operations manager he was responsible for the end result of the services for which the Respondent had contracted to perform. And as such he was required to do more than simply direct the subcontracted cleaners to remedy issues and carry out bi-monthly audits. Rather, he was required to follow-up on all tasks and ensure on a continuing basis that the client was happy with the standard of service being delivered under the contract.

[89] The Applicant was also corrected in relation to the manner in which he represented himself to the client, and particularly to branch managers.

[90] The correspondence of 23 April 2012 itemised a range of issues identified as deficiencies in the Applicant’s performance.

[91] I do not believe on the evidence that the Applicant was the victim of “scapegoating” by the Respondent, as he claims was the case in relation to the Commbank contract. The claims by the employer were not undefined, exaggerated or in any manner personalised. Rather, the matters raised were quiet specific, targeted particular weaknesses and problems in the Applicant’s region, and posed a corrective course of action.

[92] The correspondence of 26 October 2012, for example, set out in detail some of the particular concerns held by AFS about the quality of the cleaning service it was delivered. These issues included (but were not limited to) HR and payroll doors not being locked as per instructions; wrong doors being locked; food left on the kitchen floor for several days without being cleaned; some cleaning not attended to despite requests that such matters be dealt with immediately; and marks left on glass partitions.

[93] The Applicant was accused of not conducting a careful or complete audit and inspection of the site or responding to the client’s concerns. Though the Applicant was said to have spent the first few days of the contract on site, the Respondent was concerned that he had not carried out ongoing inspections and reviews on a sustained basis into the future. In this, according to the Respondent, resided the main cause for the contract loss.

[94] Ms Power herself had inspected the site and had borne witness to the various cleaning issues. They had been the subject of client feedback some days previously, and remained un-rectified.

[95] Ms Power also claimed without challenge that she had raised concerns with the Applicant about client issues relating to the Bradken contract as well, before such time as that contract had been lost:

All right. You didn't put that in any of the warnings in reference to what's happening with Bradken?---In those years Fraser was not looking after the site.

But you still had issues?---Sorry?

But you still had issues at the site?---What are we talking about, Fraser or Bradken?

Bradken?---At the time when another manager was looking after it?

Yes?---We would have the issues once a year, yes.

Yes; always had the issues?---Not that - no. The issues changed obviously. There became more issues afterwards. Yes.

So there were also issues with the Bradken contract but when - - - ?---Yes. Once a year when we had replacement cleaners. Yes.

 - - - Mr Norton had it, it had more issues?---There were more issues. Yes.

Did you lay those out in any of his two former performance appraisal systems meetings that you had with him?---I discussed with him issues that he was having on site. Yes.

Did you lay it out in any of the formal performance appraisal systems that you conducted with Mr Norton?---Yes. 1

[96] The substance of the claims was not seriously challenged, and in any event I do not doubt that the Respondent had genuine concerns about the Applicant’s performance and that those concerns were not fabricated in order to use the Applicant as a “scapegoat” as he claimed. In the case of the AFS contract in particular, Ms Power bore witness to the practical service issues that gave rise to the client’s dissatisfaction.

[97] Indeed, if the Respondent had wanted to rid itself of the Applicant as an employee it could have done so in March 2012, when the Applicant offered his resignation. But Ms Power chose not to accept it, and persisted with the Applicant’s employment in his continuing role. It seems to me to be inherently improbable that an employer would set about fabricating claims about an employee when that employee had offered to resign his employment voluntarily.

[98] Indeed, Ms Power could have in all likelihood brought the Applicant’s employment to an end more quickly had she disclosed to Mr Yardley the client issues and surrounding circumstances that arose in relation to the incidents at the large shopping centre on the Gold Coast, an incident which followed the loss of the AFS contract. But she did not do so in order to shield the Applicant from the ramifications.

[99] Generally, on the evidence as it was before me, there was a valid reason for the dismissal for reasons of performance.

Section 387(b) whether the person was notified of that reason

[100] On 12 December 2012, the Applicant met with Mr Ayton and Ms Power and was informed of his dismissal. The Applicant contends that he was not given any reason for his dismissal other than that he was being made redundant for reasons of an organisational restructure. It was only subsequent to the meeting that he discovered upon reading the letter of termination that he was being dismissed for reasons of performance.

[101] Both Mr Ayton and Ms Power gave evidence that this was not the case. Both gave evidence that the Applicant had read the letter of dismissal he had been handed citing the performance reasons at the very time that Ms Power was communicating the dismissal to him.

[102] Mr Ayton and Ms Power both recalled that it was explained to the Applicant that he was being dismissed for reasons of his performance. Their evidence showed no signs of concoction (in that they did not slavishly replicate one another’s claims), nor were the differences in their respective testimonies materially significant.

[103] Having heard the evidence, I am persuaded that Mr Ayton and Ms Power are truthful and reliable in their respective recollections and that the Applicant was aware of the reason for his dismissal at the time of the meeting on 12 December 2012. The Applicant admitted under cross examination that he was not expressly informed he had been made redundant. Mr Ayton and Ms Power both contended that there had been no discussion about a restructure, and no scope to confuse the reason for the dismissal. I add that neither Ms Power or Mr Ayton struck me as being managers who were disposed to communicate one thing in writing and then verbally communicate something else altogether, and to do so at the same time.

[104] Notwithstanding this, the Respondent’s conduct did not comply with the expectation that the Applicant be given notice in advance of the dismissal of the reason for the dismissal. The Applicant was dismissed on the spot, as it were, with his notice period paid in lieu of service.

Section 387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[105] The Applicant’s employment was terminated principally for reasons of performance. There was an issue of conduct that arose in relation to the management of the Commbank account. This concerned the appropriateness of comments that the Applicant had been making, which were said to have been unsettling to the client. These matters were addressed in the correspondence of 23 April 2012 and the Applicant was advised to desist his conduct in this regard.

[106] So far as this conduct forms part of the matrix upon which the Respondent based its decision to dismiss the Applicant ultimately, it must be concluded that the Respondent’s concerns were put to the Applicant at a prior point and he was provided an opportunity to alter his behaviour (though not at the dismissal meeting itself on 12 December 2012).

[107] No further behaviour or conduct of this kind was reported from 23 April 2012 onwards in any event, and it is unlikely to have been a material consideration in the dismissal itself (which seemed focused principally upon the Applicant’s performance in relation to his capacity to manage contracts with clients and to provide effective customer satisfaction).

Section 387(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

[108] The Respondent did not refuse the Applicant an opportunity to have a support person present to assist at any of the meetings over 2012, including the meeting of 12 December 2012. However, it should be borne in mind, that the Applicant attended the meeting of 12 December 2012 ignorant of the purpose of that meeting and therefore was not in a position in any event to avail himself of representation, should he have desired it.

Section 387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[109] The Applicant was dismissed for reasons of performance at the meeting of 12 December 2012. He was not advised of the reasons for the dismissal in advance of the decision to dismiss him being communicated to him at that meeting. Consequently, the Applicant had no scope to respond to the reason for his dismissal as provided to him on that day before such time as he was dismissed.

[110] Notwithstanding this, there is some wider context. The Applicant had already received on 23 April 2012 and 26 October 2012 lengthy and prescriptive letters detailing his performance deficiencies and indicating the particular steps he needed to take in order to meet his employer’s expectations.

[111] The Applicant cannot be said to have been unaware of the particular concerns of the employer in relation to his employment, or taken by surprise. His employment was clearly in jeopardy at the time, despite him perceiving matters otherwise. Nor can it be said that the Applicant was not given an opportunity to address those performance concerns over time; the correspondence was particularised in relation to how to go about improving levels of client satisfaction. There had been meetings over the course of the year on a fortnightly basis. These meetings were not formalised as being performance reviews as such, but they provided a forum by which Ms Power conveyed her concerns as needed, as she had in relation to the AFS contract. There appear to have been only two formal performance appraisals. In any event, the performance expectations were not difficult to understand: site retention and client satisfaction were the objectives and responsiveness and rapid rectification were the means at hand.

[112] I add that I think Ms Power gave good evidence in this respect. She did not insist in her evidence, as she could have, that she conducted every performance review as planned, nor that performance issues were raised at every meeting. Ms Power’s evidence struck me as reliable in relation to the claim that there were continuing discussions between the parties and that in the course of these discussions matters of performance were raised as necessary.

[113] That said, the circumstances of the dismissal were not encapsulated in the correspondence cited above, which largely concerned the Commbank and AFS contracts. It was in the end the client’s uncontested claims about the Applicant in relation to the Bradken contract that tipped the decision making against the Applicant. The Applicant had not been aware of his nomination as a source of concern in the Bradken contract issue. This was indeed a matter that took him by surprise. But even here, as I said above, Ms Power had had discussions with the Applicant about client issues in a performance appraisal context. This claim was not challenged.

[114] It cannot be said that the Applicant had any opportunity to respond to his employer’s concerns in respect of the claim he had been singled out in relation to the Bradken contract by the former client. The Applicant was merely told, in effect, that this most recent feedback from a client (about which he was informed for the first time) had resulted in a decision to dismiss him on the basis of payment in lieu of notice. There was no opportunity given for the Applicant to marshal a case against dismissal or explain any mitigating circumstances (in respect of that particular claim at least).

Section 387(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

[115] The degree to which the size of the Respondent’s enterprise impacted on the procedures making for the dismissal was not ventilated in the proceedings at an evidentiary level, even though the issue was raised as a matter for consideration (in the Respondent’s materials). The Applicant made no claims in this regard. In any event, however, the Respondent operates an enterprise of significant scale.

Section 387(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

[116] Similarly so, despite the issue being raised in the Respondent’s materials, no claim was made by either side in relation to whether or not the dismissal was affected in some way by the unavailability of dedicated human resource expertise on the part of the Respondent.

Section 387(h) any other matters that the FWC considers relevant.

[117] The Applicant contends that he was not trained in relation to the manner in which he was to fulfil his duties as an operations manager.

[118] The Applicant did not resile from the claim by Ms Power that he had represented himself to her as having been exposed to the contract cleaning industry for some years prior to commencing his employment with the Respondent.

[119] I add in this context that the Applicant’s responsibilities for ensuring high levels of client satisfaction do not represent complex skills requiring technical development. Rather, they require a commitment to persistence in attending to the maintenance of contracts by site visitation and close monitoring of complaints and the manner in which they are rectified.

[120] If there was any concern on the part of the Applicant as to the adequacy of directions from the Respondent in relation to the performance of his role as operations manager, there was no reason for doubt after receipt of the correspondence of 23 April 2012. That correspondence, along with the meeting with Ms Power, provided the Applicant with very clear indications of what was required of him and how he was to go about the performance of his role.

[121] The correspondence of 26 October 2012 did the same.

[122] Neither of these items of correspondence demonstrated a tendency for vagary or generalisation. Both items of correspondence were detailed and prescriptive. They complemented the meetings that were held on the occasions on which the correspondence had been handed to the Applicant.

[123] Though the Applicant complained of a lack of direction and attention or guidance from his employer I find that this is not a position that can be sustained on the evidence. I have discussed these matters earlier.

[124] The Applicant also claimed that he had been misled at the time of his dismissal into believing that he had been made redundant.

[125] As I have made clear from my earlier discussions, I find it implausible that the Applicant would be given correspondence indicating that he had been dismissed for reasons of performance in the context of the previous meetings and correspondence over 2012, but then to have been informed verbally that he was being made redundant.

[126] I have been assisted in reaching this conclusion not simply for reasons of the incongruity between those matters but also because I have accepted the evidence of Ms Power and Mr Ayton that the Applicant read the letter at the time of the meeting when Ms Power communicated to the Applicant the reasons for his dismissal. There was simply no opportunity for any disjunction to have arisen, nor is it reasonable to believe that the Respondent would inject such a blatant disjunction into the dismissal process.

Conclusion

[127] In view of my discussion and consideration of the evidence in this matter I have reached the view that while there was a valid reason for the dismissal, there also was a measurable degree of harshness in the manner of the dismissal. That is, the Applicant was not in the final moment accorded advance notice of the reason for his dismissal (in relation to the Bradken contract), nor was he given an opportunity to respond to that reason, which went directly to his performance, at the time.

[128] The Act does not establish that a valid reason alone prevents a dismissal from being rendered harsh, unjust or unreasonable. Due consideration needs to be given to all of the matters stipulated in s.387 of the Act.

[129] But while the Applicant can rightly feel aggrieved at being dismissed in circumstances in which he was not given notice in advance of the particular reason (that being the Bradken client feedback received by the CEO) and did not have an opportunity to argue his case, the relationship between the parties was nonetheless at an end. There had been a number of express and detailed performance warnings given, discussions had and opportunities for responses given, and reasonably, in my view, the Respondent and the Applicant had reached the end of their shared journey, as it had been over 2012.

[130] Perhaps the situation was best summed up by this exchange in the proceedings:

Did you think perhaps take the warnings down and sit down with Mr Norton and say, "Fraser, mate I like you but you've been difficult to work with. We gave you a warning on this date in April, the 23rd of April. We've given you another one" and he might say, "Yes, but hang on a minute. They're not warnings". And you say, "Well, hang on, Fraser, they are. Hear me out. We've got it again. You've been put on notice again. We've now lost the Bradken due to your performance". See what he has to say. Perhaps go through some sort of process. Did you think you should do that?---We've done that all year long with all different things in the job. So, no, we got to the point where that was enough. 2

[131] I very much doubt any further procedural fairness opportunities would have changed the substantive outcome, or in some manner have moderated the Respondent’s concerns with the Applicant’s performance and reliability, or otherwise have caused the Applicant to have remained an employee for any longer period of time than he had.

[132] For these reasons, I find that the Applicant was not harshly, unjustly or unreasonably dismissed.

[133] Having so found, I must also dismiss the application under.s394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr G. Pinchen, for the Applicant

Mr G. Selig, for the Respondent

Hearing details:

2013

18 June and 25 June

Brisbane

 1   Transcript of proceedings, dated 18 June 2013, at PNS 520-529.

 2   Transcript of proceedings, dated 18 June 2013, at PN626.

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