Gabriel Avila v City Central

[2015] FWC 2362

[2015] FWC 2362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gabriel Avila
v
City Central
(U2014/13629)

VICE PRESIDENT WATSON MELBOURNE, 7 APRIL 2015

Application for unfair dismissal remedy - whether termination of employment harsh, unjust or unreasonable - whether valid reason for dismissal - dismissal related to performance - application dismissed - Fair Work Act 2009 ss.387, 394.

[1] This decision, edited from a decision on transcript on 26 March 2015, concerns an application for unfair dismissal remedy by Mr Gabriel Avila pursuant to s.394 of the Fair Work Act 2009 (the Act). The application concerns the termination of Mr Avila’s employment with City Central. That termination was effected by way of a letter dated 17 October 2014. 

[2] The task of the Commission in this matter is to determine whether the termination can be described as harsh, unjust or unreasonable, and the Commission is required to apply the terms of s.387 of the Act in considering that question. The guidance of that section and the direction to take into account certain factors is important in terms of the overall judgment to be made in relation to the question of harsh, unjust or unreasonable termination.

[3] The matter involves a dismissal, as the termination letter discloses, on the grounds of unsatisfactory performance, and the termination letter indicates a history of warnings and counselling in relation to performance and a conclusion reached by the employer that despite opportunities to improve performance there was not sufficient improvement to justify ongoing employment.  That is the context of the termination and the evidence needs to be considered in the light of that context.

[4] As has been put on behalf of Mr Avila probably the most significant question in relation to this matter is whether there was a valid reason for the dismissal related to Mr Avila's capacity or conduct, including its effect on safety and welfare of other employees.  There is no question in this case of effects on safety and welfare of the employees, but the question is whether the alleged unsatisfactory performance constituted a valid reason for the termination.

[5] There is no disagreement between the parties as to the approach to be taken in relation to that question.  The authorities establish that a valid reason must be sound and defensible and not capricious or prejudiced.  In a performance related matter the Commission can never assess performance and satisfactory performance by reference to observing the performance at work, an assessment must be made on the basis of the evidence that is adduced in the hearing before the Commission and the evidence contained in the witness statements and in oral evidence given further today.

[6] Mr Avila contends that his performance was not unsatisfactory, that any inadequacies were related to a failure to provide sufficient instruction to him as to the nature of his duties, sufficient support to perform those duties, and sufficient time to conduct the allocated cleaning duties within the four hour shift.  He contends that he, unlike others, did not work beyond the four hours and that any failures to comply with cleaning standards of the company and its clients is a product of those difficulties rather than any fault of his own.

[7] The company led evidence from two supervisors or managers at both of the sites at which Mr Avila worked.  That evidence from Mr Luis Francisco Pico Maffiold and Ms Natalia Fonseca Lara went to the nature of training, assistance, counselling and assessments of performance of Mr Avila during the course of his employment.  Further evidence as to reviews of his performance and the disciplinary process was given by Ms Cox, the human resources manager of City Central Property Services.

[8] I found the evidence of the company witnesses to be comprehensive, objective and fair.  I accept that evidence as a reliable indication of the performance of Mr Avila during the course of his employment.  The conclusion I have reached in relation to this question is that for whatever reason, Mr Avila did not perform his duties to the standard expected by the company.  It was not an isolated case. It was a situation which occurred on a number of occasions and led to complaints by the company's clients, investigations by the supervisors of the company and discussions with Mr Avila in an effort to acquaint him of the requirements of the role and to require improvement in his performance.

[9] I have no doubt on the evidence that has been led in this matter that Mr Avila had knowledge of the job requirements of his role.  He had assistance in adequately performing those duties, but despite a series of warnings he failed to improve his performance such as to meet the requirements of the employer and its clients.

[10] It may be that other employees stayed back to perform the full duties, but this was never raised during the course of the employment as an authoritative reason why the performance of Mr Avila was unsatisfactory. I do not consider that it explains the performance inadequacies that the employer perceived.

[11] In all the circumstances I find that there was a valid reason for the dismissal.  It related to inadequate performance and it extended over a significant period of time, substantially during the course of 2014 at the two CBD sites at which Mr Avila worked.

[12] The next question I am required to consider is whether Mr Avila was notified of that reason and related to that whether he was given an opportunity to respond to the reason insofar as it related to capacity or conduct. I think broadly it does. There is a concession that Mr Avila was notified of the reason and was given some opportunity. I consider that there was an opportunity for the purposes of s.387(c).

[13] Mr Avila was advised in quite some detail about the difficulties at both sites and was provided with a written report which indicated the difficulties on a number of different dates, together with some photos of particular problems.  He was given that in relation to the Collins Street site, 357 Collins Street, and he was subsequently given a further report in relation to the 600 Bourke Street site closer to the date of termination of employment. At a meeting held prior to the termination, Mr Avila was given an opportunity to provide his version of the events. To an extent he availed himself of that opportunity with the assistance of the union, and made representations to the employer to take into account.

[14] I am satisfied that Mr Avila was notified of the reason and given an opportunity to respond to that reason.  I am not satisfied that there was any unreasonable refusal by the employer to allow a support person to be present.  It is evident that Mr Avila, with English not being his first language, may have some English comprehension issues. But with assistance, I consider that he did participate in the counselling and warning sessions, adequately understood what was put to him, especially as they were reinforced in writing, and discussed with him, and he had the benefit at the final meeting of a support person from the union.

[15] The next criterion is quite relevant in relation to dismissals for unsatisfactory performance and that is whether there had been warnings before the dismissal. The essence of that criterion, as I have mentioned in other cases that the parties have referred to, is that unsatisfactory performance is not a reason for dismissal on the basis of an isolated case.  If there are performance difficulties they should be brought to the employee's attention and there is an opportunity to improve performance before any decision to terminate is taken.

[16] On the evidence I am satisfied that Mr Avila was warned about his unsatisfactory performance.  He did have an opportunity to improve and it was only once the employer considered that there was not sufficient improvement that it moved to terminate his employment.  That is made clear in the evidence, and set out clearly in the letter of termination of 17 October 2014.

[17] I do not think factors as to the employer's resources and human resource management expertise are particularly relevant in this case.  The company is not a small employer, it has dedicated human resource management specialists and would be expected to follow appropriate procedures.  In my view it has done so and those factors do not significantly bear upon the overall conclusion.

[18] I have taken into account all of the other matters that the parties have raised and all of the circumstances, including the impact on Mr Avila and also the contention that the company has not complied to the letter with its enterprise agreement in relation to providing a job schedule to employees at particular sites.  I have taken all those factors into account and essentially because I am satisfied that there is a valid reason for the dismissal and procedural fairness was afforded to Mr Avila, including warnings for his unsatisfactory performance, I have come to the conclusion that his dismissal was not harsh, unjust or unreasonable.

[19] In the light of that finding it follows that I would dismiss the application. 

VICE PRESIDENT

Appearances:

Mr S Kemppi of United Voice for Mr Avila.

Mr L Connolly of counsel for City Central.

Hearing details:

2015.

Melbourne.

26 March.

Final written submissions:

Mr Avila on 19 December 2014.

City Central on 27 January 2015.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR562804>