Haseeb Sajjad v Dacland Pty Ltd T/A Dacland Pty Ltd
[2016] FWC 2971
•13 MAY 2016
| [2016] FWC 2971 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Haseeb Sajjad
v
Dacland Pty Ltd T/A Dacland Pty Ltd
(U2015/15780)
COMMISSIONER ROE | MELBOURNE, 13 MAY 2016 |
Termination of employment – small business code.
[1] Mr Sajjad was dismissed by Dacland on 10 December 2015. Mr Sajjad was paid two weeks in lieu of notice. Mr Sajjad had been employed by Dacland for approximately three years. He was initially employed in a junior accountancy role but was then promoted to the position of senior financial accountant. The dismissal was for alleged poor performance.
[2] Dacland is a small business which employed 13 persons including Mr Sajjad at the time of the dismissal. There are no associated entities.
[3] Mr Sajjad is protected from unfair dismissal and the primary questions which need to be determined are:
● Was the termination of Mr Sajjad’s employment consistent with the Small Business Fair Dismissal Code?
● If the termination was not consistent with the Code then was the dismissal unfair having regard to the matters set out in Section 387 of the Fair WorkAct 2009 (the Act)?
[4] The dismissal was not a summary dismissal and hence the relevant section of the Code is as follows:
“Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[5] It is not disputed that:
● The employer told Mr Sajjad on 9 November 2015 that his job was at risk due to poor performance. The performance concerns were outlined. The fact that the concerns were considered so serious as to put the employment at risk was underlined by the fact that at the meeting Mr Sajjad was offered two alternatives: a performance improvement plan or the ability to resign with the payment of a period of notice.
● The employer told Mr Sajjad at the 9 November 2015 meeting that if performance did not improve he was at risk of being dismissed. This was repeated in the record of each of the weekly meetings following that date.
● The employer met with Mr Sajjad on a weekly basis after 9 November 2015 and the meetings were documented. That documentation set out the performance issues raised at the weekly meeting and Mr Sajjad’s responses and the key upcoming tasks and deadlines required.
● Mr Sajjad had a support person present at the meeting on 9 November 2015. Mr Sajjad had an opportunity to respond to the warning concerning his performance at the meeting on 9 November 2015.
[6] The dismissal will therefore be consistent with the Code if it is established that:
● Mr Sajjad was given a reasonable chance to rectify the problem, having regard to the employee’s response. The Code indicates that rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
● The reason was a valid reason based on the employee’s conduct or capacity to do the job.
● Mr Sajjad had a reasonable opportunity to respond to the proposal to dismiss him.
[7] Mr Sajjad argues that he did not have a reasonable chance to rectify the problem, the reason was not a valid reason based upon his performance and he did not have reasonable opportunity to respond to the proposal that he be dismissed. In support of this he argues that:
● Job expectations were changed unreasonably.
● Others were responsible for errors and delays.
● He was told that the performance improvement plan period was until March 2016 yet he was dismissed only one month after the performance warning.
● He was not provided with adequate training or support during the period after the warning on 9 November 2015.
● He was not given the opportunity to respond to the proposal to dismiss him.
[8] In respect to the last point, the opportunity to respond to the proposal to dismiss, it is not contested that the sequence of events was as follows:
The fourth performance improvement plan meeting was held on 2 December 2015. At that meeting Mr Sajjad was advised that “he had not demonstrated adequate improvement in his competency in completing the relevant project broad reports or adequate understanding of relevant development agreements”. He was told that “he had to demonstrate signs of improvement prior to the next performance meeting on 7 December 2015.” 1
A meeting was held on 7 December 2015. There is no written performance improvement plan minutes for that meeting. Mr Sajjad was “invited to respond to the comments and assessment of his performance under the performance improvement plan against the responsibilities for the role.” Mr Sajjad “stated he did not wish to discuss the matter any further and would respond in writing following the meeting.” 2
- Management reached the conclusion that Mr Sajjad had failed to progress and believed that they had grounds to terminate his employment. They sought to organise a meeting on 8 December 2015 to give him an opportunity to respond to the proposal that they dismiss him.
- Mr Sajjad sought to reschedule the meeting so his support person could be present. Dacland agreed to this request and rescheduled to a time when Mr Sajjad said that he and his support person would be available, 4pm 9 December 2015.
- Mr Sajjad advised Mr Fetterplace that he was unwell but would still attend the meeting at 4pm. Later that day Mr Sajjad provided a medical certificate for the period up to 24 December 2015 and asked for confirmation that his return date to work would be 4 January 2016 due to the Xmas shut down.
- Mr Fetterplace responded an hour later that the matter was pressing and that his performance had not improved during the period of the performance improvement plan and that the company believed that it had grounds to now terminate the employment. The email set out that the grounds were the failure to complete tasks to the high standard expected of a senior financial accountant, the failure to adequately and correctly reconcile project operating results for project accounts, and the failure to adequately demonstrate a satisfactory level of understanding of the relevant project development agreements. The email gave until 4pm Thursday 10 December for Mr Sajjad to provide anything that the company should take into account before making a final decision.
- Mr Sajjad responded to the show cause email as follows: “thank you for providing me with the opportunity to respond. However, the 24 hr notice is not sufficient for me to respond, as I am quite unwell. Can you please provide time until COB 15 December to respond”.
- A few hours later Mr Sajjad sent a follow up email: “could you please confirm that you have received my email as per below”.
- The company did not respond to the request for further time but instead sent a letter of termination by email at 4.42pm on 10 December 2015.
[10] I accept the evidence of Mr Sajjad that he worked hard in a difficult environment. Mr Worth gave evidence for the company that confirmed:
● The company was in a growth phase.
● The accuracy of accounts and the quality of cost controls was particularly critical as cash flow was an issue.
● There were some changes in personnel in 2015 and the company replaced the CFO as they were not satisfied with his performance.
[11] Given Mr Sajjad’s senior and responsible role in a small business I do not accept that there were unreasonable changes in job expectations. Alteration of job expectations is to be expected particularly in a senior accounting role. There is nothing which suggests that the job expectations were altered for non-business reasons. In other words I am not satisfied that the alteration in job expectations was designed to disadvantage Mr Sajjad or to set him up for failure. I accept the evidence of Mr Worth that there was no change to Mr Sajjad’s central responsibilities as set out in his contract of employment. Certain accounts may have been prepared externally and the frequency of provision of accounts may have changed from time to time but I do not accept that Mr Sajjad was told that his job responsibilities were fundamentally or unreasonably altered.
[12] Given Mr Sajjad’s senior and responsible role in a small business I do not accept that the errors of others can explain his failure to meet performance expectations. Most employees are to some extent dependent upon the work of others and it will often be possible to explain a particular failure to deliver on the failure of others to provide material on time or in the appropriate manner. However, there is nothing before me to establish that this was more of an issue for Mr Sajjad than it was for other employees. In other words the failure of others may have contributed to some extent to performance failures but it does not explain the totality of those failures.
[13] I accept the evidence of Mr Worth that the management team reached the conclusion that Mr Sajjad’s performance was unsatisfactory and this was why he was placed on a performance improvement plan. Mr Worth pointed to accounts not being reconciled and information not being provided in an accurate manner. He said that a project management fees schedule had been requested but it had not been accurately provided. I am satisfied that Mr Sajjad failed to deliver on his responsibilities and that the failures of other more junior employees cannot explain that failure or remove his responsibility for the delivery of the required outcomes. The performance improvement plan weekly reports clearly set out the deficiencies identified by management, the tasks expected to be achieved following the meeting and Mr Sajjad’s responses to the concerns. Taking into account Mr Sajjad’s responses and accepting that there may be validity in some of the responses, I am satisfied that there was a reasonable basis for management to conclude that Mr Sajjad’s performance was unsatisfactory.
[14] I accept the evidence of Mr Sajjad and Ms Chand that at the initial meeting there was discussion that the performance improvement plan period may extend until 31 March 2016. However, I also accept the evidence of Mr Fetterplace that Mr Sajjad was on notice at each meeting that if his performance failed to improve his employment may be terminated. That is, I do not accept that there was any guarantee that employment would continue until 31 March 2016.
[15] What will constitute a reasonable chance to rectify a problem will vary considerably depending upon the circumstances. In some cases it will be reasonable to provide a period of six months whilst in other cases a much shorter period will be reasonable. In the circumstances of this case the employer met with Mr Sajjad weekly over a period of a month. Accurate and timely completion of accounts is a matter which is critical to the health of a company, particularly a small business. I am satisfied that the timely and accurate completion of Mr Sajjad’s role was critical to the company’s health. In this context I consider that one month was a reasonable period for Mr Sajjad to demonstrate significant improvement. There is nothing in the reports of the performance improvement meetings which suggests that there was any significant improvement.
[16] Mr Sajjad was a senior employee with appropriate qualifications and a reasonable period of experience with the company. In those circumstances it is not reasonable to expect the employer to provide the sort of close supervision and support to Mr Sajjad that one might expect an employer to provide to a more junior employee during a performance improvement period. I am not satisfied that there is any probative evidence that any specific request for training or support was refused. Mr Sajjad says that he did not request any formal training during the performance improvement plan period. Mr Sajjad felt that his immediate manager was not supportive and advised Mr Fetterplace of this. Mr Fetterplace suggested that he could seek assistance from Mr Worth. I am not satisfied that the support provided to Mr Sajjad was inadequate.
[17] I am satisfied that the performance failures listed in the weekly performance improvement plan notes when taken as a whole do constitute a valid reason for dismissal in that it is sound, defensible and well founded.
[18] The most difficult issue in this case relates to the manner of the dismissal. I am satisfied that Mr Sajjad was not given a reasonable opportunity to respond to the proposal to dismiss him.
[19] The check list document provided as an aide to the Small Business Fair Dismissal Code asks the following: “Before you dismissed the employee, did you tell the employee the reason for the dismissal and give him or her an opportunity to respond?” (Question 8(e)). It is not disputed that Mr Sajjad was told the reason for the proposed dismissal prior to it occurring. It is also true that Mr Sajjad was given an opportunity to respond. However, was it a real opportunity? It is accepted that Mr Sajjad was quite unwell. He provided the employer with a medical certificate. Mr Sajjad gave evidence that he was seriously incapacitated and unable to complete a response on the 9th and 10th of December 2015. Mr Sajjad asked for more time to respond because he was unwell. The employer provided less than 24 hours to respond in circumstances where they were aware that Mr Sajjad was quite unwell and said that he needed more time to be able to respond.
[20] I do not consider that it was unreasonable in all of the circumstances to require Mr Sajjad to respond in writing rather than at a further meeting. However, I do consider that Mr Sajjad was unable to respond in writing in the 24 hours specified and it was unreasonable to deny him the requested extension from 10 December 2015 until 15 December 2015. The denial in the circumstances of this case meant that Mr Sajjad did not have an opportunity to respond.
[21] The requirement in the Code that “the small business employer must give the employee a reason why he or she is at risk of being dismissed” and an opportunity to respond has not been met in this case. It is inherent in the requirements of an opportunity to respond to the warning and to improve that the employee must have an opportunity to respond to the contention that there has not been satisfactory improvement and that it is proposed to terminate the employment.
[22] The Code not having been complied with it is necessary to consider if the dismissal was unfair having regard to the criteria in Section 387 of the Act.
Was the reason for the dismissal a valid reason based on Sajjad’s conduct or capacity to do the job?
[23] For the reasons discussed earlier I am satisfied that there was a valid reason for dismissal due to poor performance.
Was Sajjad notified of the valid reason for termination?
[24] Mr Sajjad does not dispute that he was notified that his employment was being terminated due to poor performance.
Did Sajjad have an opportunity to respond to the reason?
[25] Mr Sajjad was able to respond to the alleged performance issues during the performance improvement meetings. However, an employee should be allowed an opportunity to respond at all stages of the process including at the point where the employer is contemplating dismissal. If there is a performance issue and an opportunity given to improve then, if at the end of that process the employer believes that there has not been adequate improvement, the employee must have the opportunity to respond to a proposal to terminate his or her employment and be able to influence the decision maker. For the reasons discussed earlier Mr Sajjad was denied that opportunity.
Was Sajjad denied a support person?
[26] Mr Sajjad had a support person at the start of the performance improvement process and arrangements were in place for a support person to attend the scheduled meeting on 9 December 2015. Mr Sajjad did request a support person for that meeting. However, that meeting did not take place and the termination took place by email. As I have decided that it was reasonable, in the circumstances of this case, for the employer to then proceed to request a written response, I am satisfied that there was no unreasonable refusal of a request to have a support person present.
Was Sajjad warned about his unsatisfactory performance before the dismissal?
[27] Mr Sajjad was warned about his unsatisfactory performance. The performance failings, the performance expectations and Mr Sajjad’s responses were well documented in a series of meetings and accompanying reports.
To what degree were the procedures followed impacted by the small size of the enterprise and the absence of human resource management expertise?
[28] I am satisfied that the small size of the business and the absence of expertise affected the procedures followed. However, the small size of the business does not excuse the denial of procedural fairness in refusing to allow Mr Sajjad an opportunity to respond to the proposal to dismiss him.
Are there other relevant matters?
[29] There were no other significant matters raised by the parties and none that I consider relevant to my decision as to whether or not the dismissal was unfair.
Was the dismissal unfair?
[30] I am not satisfied that the other factors are sufficient to outweigh the lack of procedural fairness in this case. That procedural unfairness, the absence of an opportunity to respond, means that the dismissal was unjust.
[31] The termination was unfair.
Representation
[32] Notice was given on 26 February 2016 that this matter would be heard on 5 and 6 May 2016 and directions were issued for the filing of materials. On 22 March 2016 Dacland gave notice that they were seeking leave to be represented by lawyers. On 8 April 2016 Dacland sought that the hearing be rescheduled. The dates of 3 and 4 May 2016 were then proposed but they were not acceptable to Mr Sajjad. On 26 April 2016 both parties agreed to the rescheduled dates of 9 and 10 May 2016. On 5 May 2016 the Fair Work Commission (the Commission) advised the parties that only one day would be required for the hearing and that day would be 9 May 2016. On 6 May 2016, one business day prior to the scheduled hearing, Mr Mulligan advised the Commission and Dacland that he was now acting for Mr Sajjad and was seeking leave to appear in the matter. He indicated that he would be seeking that two other employees of Dacland attend to give evidence. Then at 11pm on Sunday 8 May 2016, Mr Mulligan wrote to the Commission as follows:
“I refer to the previous email in relation to the requirement for 2 additional witnesses.
In relation to the hearing On Monday please note that I am required to attend a hearing for a further day by order of the Federal Circuit Court late Friday. I was unable to obtain counsel for my client at late notice despite efforts.
My client wants to be represented. I can attend Tuesday and seek an adjournment. We note additional witnesses are required for cross examination.
My client will be attending the commission tomorrow.”
[33] I decided that it would not be consistent with a fair go all round to grant an adjournment of this matter and put the employer to the cost of attending on another day. This was particularly the case given the very late notice that Mr Sajjad was seeking to be represented in circumstances when he was on notice since March that the employer was represented.
[34] It was not suggested that the additional witnesses, Mr Kot and Mr Worth, would give evidence in support of Mr Sajjad. The argument for their attendance is that they can give more direct evidence about Mr Sajjad’s performance. It is not disputed that Mr Fetterplace, as the general manager, made the decision to terminate and was present at the relevant meetings when it is said that Mr Sajjad was put on notice concerning his performance. The relevant documents which outline the outcome of the various performance meetings are not disputed. No summons had been requested for the attendance of the additional witnesses. The company believed that it can establish that the dismissal was in accordance with the small business code without the need for the attendance of the two additional witnesses. However, the company, in response to the matters raised did call Mr Worth as a witness and he gave evidence concerning the performance concerns of the company.
[35] For the reasons outlined on transcript I granted Dacland permission to be represented on a limited basis after considering the matters in Section 596(2) of the Act.
What is the appropriate remedy?
[36] Mr Sajjad does not seek reinstatement as he has obtained other employment. That employment is full time and pays better than his employment with Dacland. In those circumstances I am satisfied that reinstatement would be inappropriate. I consider that an order for compensation is appropriate.
[37] Mr Sajjad did not earn any income from employment between the dismissal and 28 March 2016 when he obtained new employment.
[38] I am satisfied that he made adequate efforts to mitigate his loss in that he applied for approximately 20 jobs before he was successful and he started this process immediately after the dismissal.
[39] I am satisfied that if the termination had not occurred Mr Sajjad would not have remained in employment for more than two weeks. This period would have enabled Mr Sajjad to respond to the show cause letter. There was nothing raised by Mr Sajjad in the proceedings which satisfied me that he would have raised anything new in his response that would have demonstrated that his performance had improved or had the prospect of immediate improvement.
[40] During that two week period Mr Sajjad did not earn anything from employment.
[41] The considerations in Section 392(e) and (f) are not relevant beyond the two week period after the dismissal.
[42] There was no submission that the viability of Dacland would be affected by any order I might make.
[43] The length of Mr Sajjad’s employment is a neutral consideration in this case.
[44] There is no suggestion of any misconduct in this case.
[45] There is no reason to make any deduction for contingencies given the short period I judge that employment would have continued.
[46] There are no other factors I consider relevant.
[47] I therefore Order that Dacland pay Mr Sajjad two weeks’ compensation within 14 days. Appropriate taxation is to be deducted.
[48] The Order for compensation is issued separately.
COMMISSIONER
Appearances:
Mr H Sajjad represented himself.
Mr C Power and Mr J Fetterplace appeared for the Respondent.
Hearing details:
2016
Melbourne
May 9
1 Exhibit D3, Mr Fetterplace’s Statement of 22 March 2016 at para 14.
2 Exhibit D3, Mr Fetterplace’s Statement of 22 March 2016 at para 15.
3 Exhibit D2.
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