James Ashcroft v City Group Pty Ltd

[2013] FWC 8375

[2013] FWC 8375

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Ashcroft
v
City Group Pty Ltd
(U2013/1780)

COMMISSIONER DEEGAN CANBERRA, 24 OCTOBER 2013

Application for unfair dismissal remedy - dismissal not unfair - application dismissed.

[1] This decision arises from an application made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr James Ashcroft (the applicant) alleging that he had been unfairly dismissed from his employment with City Group Pty Ltd (the respondent) .

[2] The applicant had been employed by the respondent as a cleaner, initially as a casual (from September 2010), then part-time (from October 2010) and as a full-time permanent employee from 31 January 2011.

The Applicant’s Case

[3] It was the applicant’s case that his dismissal was unfair as the respondent did not take into account factors which served to mitigate the reason given for the dismissal, i.e. underperformance.

[4] The applicant filed a statement of evidence 1. It was the applicant’s evidence that he had been employed as a cleaner by the respondent since 2010. He was given notice of his dismissal on 6 May 2013 and ceased employment on 20 May 2013. According to his evidence, in December 2012 the applicant commenced working in Buildings F3 and F4 at Fairbairn Offices. In February 2013 he was moved to Building F2.

[5] The applicant claimed that the first cleaning inspection of Building F2 was carried out on 1 March 2013 by his supervisor and the building was assessed as satisfactory. A second inspection carried out by Ms Barnes, the respondent’s Business Manager, found the building to be below standard and the applicant was issued with a written warning. A subsequent inspection conducted on 23 April also found the building to be below standard, as did the next inspection which was carried out on 3 May 2013.

[6] The applicant did not deny that his work was below the standard expected by the respondent but claimed that there were mitigating circumstances:

• No particulars of the cleaning required were provided to him by the respondent;



• The respondent did not provide him with adequate training/retraining;



• He was forced to take 2 days off work in late April to care for his wife after an operation;



• The building was below standard when he commenced cleaning it and was not given sufficient time to bring it up to standard;

[7] It was also the applicant’s evidence that the tenant of Building F2 was satisfied with his standard of work and had made no complaints and until the warning given on 6 March he had no reason to believe that there was any problem with his standard of cleaning.

[8] In his oral evidence the applicant explained that his supervisor, Ms Proctor, had never really explained to him where the problems were with his cleaning. He described the size and layout of Building F2 and noted that he cleaned the building for seven and a half hours a day five days a week. It was the applicant’s claim that the size of the building was such that he was unable to clean it to the standard required without additional assistance. He noted that when cleaning the priority areas were the kitchens and bathrooms and that by concentrating on those areas he may have neglected to dust some other areas.

[9] When cross-examined by Ms Barnes, the applicant was taken to the three cleaning reports from 6 March, 23 April and 3 May 2013. It was put to him that those inspection reports clearly spelt out which areas of cleaning were not up to standard. It was also noted that all three cleaning inspection reports stated that the sinks needed to be bleached despite the applicant claiming that the kitchen and bathrooms were his cleaning priority. In response the applicant contested that the sinks were that bad, claiming that he cleaned them at least once per day. When it was put to the applicant that directions such as ‘clean under mats in showers’, dust tops of partitions’ and ‘scrub build up around taps’ could not have been more clearly expressed, the applicant stated that more specific advice should have been given about the location of the problem areas.

[10] The applicant conceded that when his supervisor told him to raise any concerns about workloads with Ms Barnes he did not contact her and further, he agreed that he should have done so. It was his evidence that he did not realise that he was having so many problems.

[11] It was also the applicant’s evidence that one of the items on the cleaning report noted his failure to clean a particular room. He claimed that the room had been locked and he was unable to access it. He claimed that waiting for locked rooms to be opened often took time from his day. He did not agree that in such circumstances his time would have been more usefully occupied if he had performed other work while he waited for the rooms to be unlocked. It was his evidence that it was necessary for him to wait at the door for periods of more than 10 minutes several times a week.

[12] When asked why he took advice in relation to the cleaning from the building tenants rather than the Area Manager, the applicant responded that the tenant knew what they wanted cleaned. He agreed that he gave more time to the areas the tenants wanted cleaned than to the areas identified in the inspection reports by the Area Manager.

[13] When questioned about his failure to rectify matters raised in inspection reports so that the same deficiencies were identified from one report to another, the applicant stated that he did not consider that at the time. It was also his evidence that he did not explain any reasons for the deficiencies identified to the Area Manager as she knew the cleaning timetable and had had experience as a cleaner. The applicant also stated that perhaps the Area Manager was exaggerating a bit but was unable to specify any particular area he claimed was exaggerated.

[14] Christine Wagland filed a witness statement 2 in support of the applicant’s case. Ms Wagland has been employed by the respondent since 2000 and has worked in the cleaning industry for 29 years. Ms Wagland currently holds the position of Vice-President of the ACT Branch of United Voice. Ms Wagland worked in the building next door to the applicant and considered him a competent cleaner if given sufficient time. She did not think the applicant had been given sufficient time to rectify the deficiencies noted in the inspection reports.

[15] Under cross-examination, Ms Wagland was asked if she considered that the five months from December 2012 until May 2013 was not sufficient time for the applicant to ‘fix the building’. She responded that it was enough time ‘in that sense’ but she still did not think that the matters raised in the final cleaning inspection report were sufficient to justify the termination of the applicant’s employment. When asked if she had read the final report she said that she had and that it was ‘mainly just dusting’. It was put to the witness that the report included floors that required vacuuming and buffing, sinks and taps that required bleaching, as well as the tops of the fridges being dusty.Ms Wagland noted that the toilets and showers were clean. When asked if there would be a need to bleach and scour sinks if they were done each day, Ms Wagland replied that she bleached her sinks every day. Further, when it was put to the witness that the applicant had claimed that the sinks, bathrooms and rubbish were his priorities, and that the kitchens were being cleaned each day, she agreed that in those circumstances it was fair to say that they would not need to be scrubbed with a scourer to be rectified.

The Respondent’s Case

[16] Evidence was given for the respondent by Ms Cindy Barnes, Ms Barnes filed an outline of submissions 3 that included an explanation of the facts surrounding the termination of the applicant’s employment. At the hearing Ms Barnes supplemented her statement with oral evidence.

[17] It was Ms Barnes’ evidence that she had been contacted by phone by a client who stated that there were some cleaning issues, both at Fairbairn and some of the sites over at the Brindabella side of the airport. The phone call was followed up by an email. Ms Barnes informed the client that in response to the complaint City Group would commence cleaning inspections. These were conducted in the hope of bringing the building up to standard. The inspection reports that resulted were those that were in evidence in the matter.

[18] Despite the carrying out of inspections and the inspection reports being provided to the applicant, the matters identified were not rectified. As the respondent had a contract with the client which required a service to be provided and for which City Group was being paid, it was necessary to change the cleaning staff to provide that service.

[19] Ms Barnes clarified that the respondent’s cleaning contract was with the Canberra Airport (the client) who owned the buildings, not the tenant of the building. It was the client who determined the standard of cleaning required.

[20] Ms Barnes had tendered documents which related to previous problems the respondent had had with the standard of the applicant’s cleaning. Those documents showed that the applicant had been moved from one site after complaints were made about the cleaning standard.

[21] When cross-examined, Ms Barnes agreed that she has good experience in the cleaning industry and had been a manager with the respondent for ten or eleven years.

[22] Mr Barnes conceded that no cleaning reports had been provided by the respondent for the building that the applicant had cleaned for the period 1 January 2012 until 1 March 2013. She agreed no cleaning inspections had been carried out during that period. It was her evidence that no inspections had been necessary as during that period the client carried out a walk through each month and no complaints were received from the client.

[23] According to Ms Barnes both she and the Area Manager carried cleaning inspections after the complaint was received in late February.

[24] The witness disagreed that the cleaner in which the applicant had replaced at the building had been removed for underperforming. She noted that after the applicant had been dismissed that cleaner had been returned to the building and there had been no further complaints.

[25] Ms Barnes was asked whether, upon finding that the applicant was underperforming, she had given him an opportunity to retrain, or had counselled him. She responded that the Area Manager had been asked to go through the inspection reports with the applicant. Ms Barnes had also written to the applicant advising him that if he wished to contact her and discuss what was happening he could do so. The applicant did not contact her.

[26] It was the evidence of Ms Barnes that she had worked with the applicant at a site at Russell and she knew that the applicant knew how to clean things properly. She did not believe he needed any training but had he contacted her and asked for training it would have been provided. In addition, the applicant’s employment paperwork indicated that he was fully qualified to perform the work.

[27] Finally, it was the evidence of Ms Barnes that she had wanted to keep the applicant as an employee but that when, given his experience and the fact that despite her offer that he do so, he failed to contact her about the situation she did not think he cared.

Consideration

[28] There are no jurisdictional issues in relation to the application. The evidence is clear that at the time of the dismissal the applicant was a person protected from unfair dismissal. The employer is not a small business within the meaning of that term in the Act and there was no claim that the dismissal was a case of genuine redundancy.

[29] In determining whether the dismissal was harsh, unjust or unreasonable, and thus unfair, I am required to take into account those matters set out in s.387 of the Act, which is 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.

[30] I will deal with each of the elements in s.387 of the Act separately.

Valid reason

[31] On the basis of the cleaning reports provided in evidence, which substantiated the respondent’s claim that the applicant was not performing his work to the required standard, I must find that there was a valid reason for the termination. The applicant’s failure to reach a satisfactory standard with his cleaning may have jeopardised the respondent’s cleaning contract with the client.

Notified of reason

[32] The applicant was notified of the reasons for his termination. The letter of termination of 6 May 2013 clearly sets out those reasons.

Opportunity to respond

[33] The applicant was given every opportunity to respond to the allegations of underperformance. He was presented with each inspection report by his direct supervisor but there was no evidence that he disputed the accuracy of those reports with her. On raising a concern that he needed additional help with that supervisor the applicant was advised to contact Ms Barnes. He did not take that advice.

[34] The applicant was represented at the hearing by his union. The evidence was that the local Vice-President of the union worked in the next building and that they met frequently. Had the applicant considered he was being unfairly treated at any stage he could have raised the matter with Ms Wagland. Despite this it appears that he did not seek the assistance of the union until his employment was terminated.

Unreasonable refusal of support person

[35] There is no evidence that the applicant was denied the presence of a support person in any discussions concerning the termination.

Warnings of unsatisfactory performance

[36] The applicant was advised in writing in early March 2013 that if the standard of his cleaning did not improve his employment would be terminated. He was provided with a number of cleaning inspection reports and directed to rectify the deficiencies identified in the reports. Each subsequent report showed that despite having the areas that required rectification clearly pointed out, many of the same matters appeared on the subsequent reports.

[37] It appeared, from the applicant’s own evidence that he did not believe that it was necessary for him to follow the directions given to him by his Area Manager so long as he satisfied the requirements of the building’s tenants. There is no reason why the applicant should have believed that he could ignore the directions of his supervisor and work to his own, or the tenant’s priorities. If the applicant considered that there was some validity to his views in this regard it was incumbent upon him to raise them with his supervisor, or if necessary, Ms Barnes. He did neither.

Impact of size of employer’s enterprise

[38] I do not believe the size of the employer’s enterprise impacted in any detrimental manner upon the procedures adopted in effecting the termination. The applicant was provided with procedural fairness and invited to discuss any matter with Ms Barnes. He did not avail himself of that opportunity.

Absence of dedicated human resources expertise

[39] While there was no evidence that the respondent has dedicated human resources expertise available to it I am satisfied that the absence of such resources did not adversely affect the manner in which the termination took effect.

Other matters

[40] In determining this matter I have taken into account the applicant’s relatively short period of employment and the evidence of the earlier concerns with the standard of his cleaning. It may be that as the applicant was poorly transferred as a result of the complaint made in the past he did not take the warning he was given in March 2013 seriously. The applicant gave no satisfactory reason for his failure to address the concerns raised by his supervisor in the cleaning inspection reports. He did not raise with his employer any mitigating circumstances for his failure, nor did he contact Ms Barnes in order to justify his position. It is understandable that Ms Barnes reached the view that he ‘just didn’t care’.

Conclusion

[41] Taking into account all the matters set out above, I do not find that the termination of the applicant’s employment was harsh, unjust or unreasonable.

[42] As the dismissal was not unfair, the application is dismissed. An order [PR543755] to that effect is published separately.

Appearances:

Mr G. Coburn, United Voice, for the Applicant.

Ms C. Barnes, for the Respondent.

Hearing details:

2013.

Canberra:

September 18.

 1   Exhibit A1.

 2   Exhibit A2.

 3   Exhibit C1.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR543751>