Jing Ouyang v Visionstream Pty Ltd
[2014] FWC 3661
•3 JUNE 2014
[2014] FWC 3661 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jing Ouyang
v
Visionstream Pty Ltd
(U2013/15168)
DEPUTY PRESIDENT KOVACIC | MELBOURNE, 3 JUNE 2014 |
Application for relief from unfair dismissal.
[1] On 22 October 2013 Mr Jing Ouyang (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the FW Act) alleging that the termination of his employment by Visionstream Pty Ltd (Visionstream - the Respondent) on 10 October 2013 was harsh, unjust or unreasonable.
[2] The application was heard on 21 March 2014. Mr Ouyang represented himself. Mr Benjamin Gee with Ms Emma Reilly appeared with permission for Visionstream. Closing submissions were provided in writing and filed by Visionstream on 11 April 2013 and by Mr Ouyang on 27 April 2013.
[3] Mr Ouyang gave evidence on his behalf, while Ms Sarah Coleman, a Senior People and Capability Consultant with Visionstream, and Mr Michael Bruce, Visionstream’s Chief Technology Officer, both gave evidence for the Respondent.
[4] I have found that Mr Ouyang’s termination was not harsh, unjust or unreasonable and therefore dismiss the application.
Background
[5] Mr Ouyang was employed by Visionstream as a Senior IP Networking Engineer on 30 April 2012. In that role he reported to Mr Bruce. It is not disputed that Mr Ouyang was dismissed. While in its Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy Visionstream disputed that Mr Ouyang was protected from unfair dismissal, this jurisdictional objection was not subsequently pressed by Visionstream.
[6] Mr Bruce first became aware of performance issues regarding Mr Ouyang around October 2012. Mr Ouyang was not counselled at that time. However, Mr Ouyang was informally counselled in late February 2013 regarding his communication style and lack of organisation. In the ensuing months, such performance discussions continued in the context of regular one-on-one meetings between Mr Bruce and Mr Ouyang. Mr Ouyang disputes much of the detail regarding these discussions, both in terms of whether the discussions occurred and what may have been said in the discussions.
[7] Mr Ouyang was issued a verbal warning regarding his performance on 7 May 2013 (again Mr Ouyang disputes this), a first written warning on 4 July 2013 and a second written warning on 12 September 2013 (though the warning was dated 11 September 2013). Mr Ouyang challenged both of the written warnings. In both instances the warnings were upheld following an investigation by Ms Coleman. The warnings remained in place. On 23 September 2013, Visionstream wrote to Mr Ouyang stating, among other things, that a failure to participate in the performance management process and to significantly improve his performance would result in further action being taken, including the possibility that his employment would be terminated. 1 On 7 October 2013 Mr Ouyang wrote to Visionstream indicating that he did not agree with the performance issues that had been raised with him. Visionstream met with Mr Ouyang on 10 October 2013 indicating that it intended to terminate his employment and providing him with an opportunity to respond. Mr Ouyang did not respond.
[8] Visionstream dismissed Mr Ouyang on 10 October 2013 for “... unsatisfactory performance, and your unwillingness to participate in the performance management process ...” 2
The Applicant’s submissions
[9] Mr Ouyang submitted that he had not been convinced that he had a performance issue while working for Visionstream as the evidence or material relied on by Visionstream did not support their claims. He further submitted that, as the accusations of poor performance could not be substantiated, Visionstream’s ensuing actions were unreasonable and unjustifiable. 3
[10] In his written closing submissions, Mr Ouyang submitted that Visionstream “used fanciful, capricious and therefore invalid reasons with regards to my capacity/performance to dismiss me.” 4 In support of that submission, Mr Ouyang disputed key aspects of the allegations of poor performance made against him, emphasising that the allegations were not founded on evidence and asserting that in some cases Mr Bruce had fabricated evidence5. Mr Ouyang also questioned the integrity of Ms Coleman’s investigation of his challenge to the first written warning and emphasised that the performance management process conducted in his case was inconsistent with Visionstream’s Performance Management Procedure in a number of respects.
[11] As to remedy, Mr Ouyang indicated that as he had secured other employment he was not seeking reinstatement. Accordingly, he submitted that monetary compensation of either $112,534.63 or the legal maximum amount, whichever is the lower, was appropriate.
The Applicant’s evidence
[12] Mr Ouyang attested that in the absence of convincing evidence related to his capacity, the accusations against him of poor performance were based on personal opinion rather than concrete facts. With regard to the accusation concerning the quality of his written documents not meeting the standard expected, Mr Ouyang cited two design documents he was involved in the development of and which had been relied upon by Mr Bruce as examples in their performance discussions. Mr Ouyang highlighted that Mr Bruce had in fact approved one of those documents, ITS LAN Upgrade Detailed Design Phase 1 to 3, while the other document, M1 Outer West Wireless IP Design, had also been approved by Visionstream management. 6
[13] Mr Ouyang further attested that his “capacity/performance while working for Visionstream was excellent” as evidenced by the remuneration increase he received in December 2012 and the performance bonus he received for 2012 (the bonus was paid in March 2013). 7 He also attested, among other things, that he believed Mr Bruce’s intention throughout the performance management process was to dismiss him as this is what Mr Ouyang alleged Mr Bruce told him before process started.8
[14] Under cross examination Mr Ouyang, inter alia:
(a) disputed suggestions that email correspondence from him to Mr Bruce 9 and another colleague, Mr Allen10, were disrespectful or may have caused offence11;
(b) agreed that his 2012 remuneration increase and performance bonus were decided in 2012, with the bonus based on his performance in 2012 12;
(c) disagreed that performance counselling commenced on 26 February 2013 in his weekly meeting with Mr Bruce 13;
(d) disputed or could not recall aspects of the conversations between he and Mr Bruce relating to his performance, conduct and/or the performance management process, e.g. he could not recall Mr Bruce explaining concerns about his communication style and work organisation at their meeting on 26 February 2013 14, similarly he could not recall if Mr Bruce reiterated those concerns in their weekly meeting of 19 March 201315 and disputed that at their 7 May 2013 meeting Mr Bruce raised any other performance concerns beyond alleging that Mr Ouyang had been disrespectful to a colleague, Mr Janssen16;
(e) indicated that 7 May 2013 was the only weekly meeting with Mr Bruce where he could recall performance issues having been raised 17;
(f) acknowledged, when discussing Visionstream’s Performance Management Procedure, that some aspects had been satisfied but added that the policy could be breached “in a whole by just observe some of the steps, and while it’s most of other steps” 18;
(g) disagreed that the first written warning issued to him on 4 July 2013 was a culmination of the various counselling sessions which Visionstream contended had occurred since 26 February 2013 19;
(h) acknowledged that on and from 12 September 2013 he was aware that, absent any significant improvement in his performance, further disciplinary action, including termination of his employment, could occur 20;
(i) stated that while he was aware that his performance would be discussed at the meeting of 10 October 2013 with Mr Bruce and Ms Coleman, he was not aware that the meeting was to discuss the termination of his employment 21;
(j) confirmed that he did not bring a support person to that meeting 22; and
(k) indicated he had not changed his behaviour between receiving the second written warning and the meeting of 10 October 2103, stating “There’s no problem with my behaviour. Why would I change it?” 23
Visionstream’s submissions
[15] Visionstream submitted that the application should be dismissed as the termination was not harsh, unjust or unreasonable. In its submissions Visionstream set out the chronology of the performance counselling, discussions and warnings which lead to Mr Ouyang’s dismissal on 10 October 2013. More particularly, Visionstream submitted that in the year leading up to his dismissal in October 2013, Mr Ouyang’s employment discloses a period of unsatisfactory poor performance, in particular in his aggressive and confrontational written and verbal communication, and his lack of work organisation skills. 24 Relying on several decisions, including Ms A v The Commonwealth of Australia, represented by Centrelink25 and Ross Fischera v Thomas Warburton Pty Ltd26, Visionstream submitted that Mr Ouyang’s performance over this period demonstrated that he was not capable of performing the inherent requirements of his role and this constituted a valid reason for his dismissal. Further, when looked at objectively and relying on Crozier v Palazzo Corporation Pty Ltd27, Mr Ouyang’s performance provided a valid reason for his dismissal. Visionstream also submitted that Mr Ouyang was notified of the reason for his dismissal, given an opportunity to respond, to have a support person present at the termination meeting and that Mr Ouyang expressly refused to have a support person at that meeting and at each of the disciplinary meetings conducted with him.
[16] Visionstream submitted that, were Mr Ouyang’s dismissal to be found to be harsh, unjust and unreasonable, reinstatement would be inappropriate as he has secured ongoing alternative employment and because there is no safe or tenable working relationship. Accordingly, in the circumstances, Visionstream submitted that were the application not dismissed, compensation of $5139.85, which is equivalent to two weeks’ pay, would be appropriate. 28
Visionstream’s evidence
[17] Ms Coleman’s witness statement 29 set out in some detail Visionstream’s performance management procedure before outlining her involvement in the performance management process regarding Mr Ouyang. Ms Coleman was not involved in the early stages of that process, attesting that she became involved following Mr Ouyang’s complaint of 22 July 2013 challenging the first written warning and raising concerns about Mr Bruce’s conduct30.
[18] Key aspects of Ms Coleman’s evidence were that:
(a) she concluded that the first written warning was justified based on the material provided by Mr Bruce and that the allegations that Mr Bruce had breached Visionstream’s Code of Conduct were unsubstantiated 31;
(b) in advising Mr Ouyang of the outcome of the review on 21 August 2013 she confirmed that that the performance management process was an ongoing process and offered Mr Ouyang assistance to improve his performance 32;
(c) in August and September 2013 Mr Bruce was having great difficulty in assigning Mr Ouyang meaningful work because he could not allow him to interact with customers 33;
(d) she participated in further performance discussions with Mr Ouyang and Mr Bruce on 11 and 12 September 2013, with the second written warning being issued at the latter meeting 34;
(e) Mr Ouyang responded to the second written warning letter by emailing Mr Bruce and her indicating that the warning was based on “clumsy, cowardly and scandalous lies” and later that day challenged the warning 35;
(f) she subsequently reviewed the evidence in support of the second written warning and recommended to her senior manager, Mr Vine, Visionstream’s Senior People and Capability Manager, that the warning should be supported by the business as she found Mr Ouyang’s complaint to be unsubstantiated 36;
(g) in her view, based on the email correspondence she had received from Mr Ouyang and his reaction to and challenge of both written warnings, Mr Ouyang was not willing to participate in the performance management process and was actively resisting it 37;
(h) as there had been no change in Mr Ouyang’s behaviour or performance during the performance management process he was unable to perform the requirements of his role as a Senior IP Engineer, resulting in a recommendation to Mr Vine from her and Mr Bruce that Mr Ouyang be dismissed 38; and
(i) at the termination meeting of 10 October 2013, Mr Ouyang was informed of Visionstream’s intention to terminate his employment and provided with an opportunity to respond and provide feedback in relation to that decision - however he chose not to respond 39.
[19] Under cross examination Ms Coleman:
(a) stated that Mr Ouyang would not have been dismissed on 10 October 2013 if at the termination meeting he had accepted the performance management process and the feedback he had been provided 40;
(b) acknowledged that aspects of Visonstream’s Performance Management Procedure had not been complied with 41;
(c) confirmed that she had not read one of the reports relied on by Visionstream as indicative of the poor quality of Mr Ouyang’s written work, indicating that she was not a technical specialist in that area and as such relied upon her discussions with Mr Bruce and the evidence he provided by way of emails and his discussions with Mr Ouyang’s peers and clients 42; and
(d) disagreed with Mr Ouyang that Mr Bruce’s diary notes from his weekly meetings with Mr Ouyang did not say anything about performance, quality of documentation or ineffective communication, adding that when asked by Mr Ouyang what the diary notes meant that she had a lengthy conversation with him around what the performance management issues were. 43
[20] In his witness statement Mr Bruce set out the background to Mr Ouyang’s recruitment by Visionstream and the Applicant’s role and responsibilities, highlighting the “soft” skills he considered necessary for the role. Those soft skills included “the ability to work with senior level project stakeholders to create solutions to meet the project needs by interactive sessions.” 44 The statement then set out in some detail his concerns with Mr Ouyang’s performance and the various discussions he had with Mr Ouyang regarding those concerns. Key aspects of Mr Bruce’s evidence in this regard were that:
(a) concerns regarding Mr Ouyang’s performance first arose in or around October 2012 - the issue involved an exchange Mr Ouyang had with a customer where Mr Bruce considered that Mr Ouyang had been argumentative and which lead to the customer requesting that Mr Ouyang be removed from the project 45;
(b) at the time he viewed the incident as a one-off which did not warrant formal performance management 46;
(c) during his weekly meetings with Mr Ouyang, Mr Ouyang was totally unresponsive to any feedback and completely disagreed with any of the performance issues raised with him 47;
(d) at no stage of the performance management process did Mr Ouyang’s performance improve, largely because he did not accept that he had a performance problem 48;
(e) following Mr Ouyang receiving his first written warning, one of the difficulties he had in managing Mr Ouyang related to work flow, particularly as no other teams wanted to work with Mr Ouyang and had specifically requested that he not be involved in their projects 49;
(f) in late July 2013 to test whether Mr Ouyang’s performance had improved to the required standard, he created a study on a project, the Pilbara Wireless Network Project, which he considered to be straightforward for someone at Mr Ouyang’s level - however Mr Ouyang did not perform on the project to the required standard and subsequently did not agree with the feedback he was provided in a review of the project 50;
(g) there was no change in Mr Ouyang’s behaviour or performance after he received his second written warning 51; and
(h) by 10 October 2013 he had lost any confidence that Mr Ouyang intended to improve his behaviour and, as a result, he could not effectively use Mr Ouyang as a functional member of the Engineering Team. 52
[21] Under cross examination Mr Bruce:
(a) indicated that after receiving an email response from Mr Ouyang on 13 September 2013 to the second warning letter in which Mr Ouyang described the warning as “based on clumsy, cowardly and scandalous lies” 53, he felt an overall sense of frustration as whenever Visionstream tried to provide feedback about real issues it would get strongly worded responses54;
(b) stated that after the Pilbara Wireless Network Project task in late July/early August, he did not think that Mr Ouyang had any material tasks, though there may have been some follow-up tasks from previous projects 55;
(c) acknowledged that his characterisation of the various conversations reflected in his witness statement were his best recollection of the nature of those conversations rather than a verbatim account of them, but disagreed that he had intentionally omitted material not to Visionstream’s advantage 56;
(d) indicated that in discussing the omissions and errors in the documents referred to in the first warning letter he had talked through the subjects with Mr Ouyang but did not go through every specific error or omission with his views based on discussions with a variety of persons and his observations 57;
(e) conceded that Visionstream did not comply with aspects of its Performance Management Procedure in respect of Mr Ouyang 58;
(f) said that he believed that he had acted fairly in indicating to Mr Ouyang that he intended to use Visionstream’s Performance Management Procedure as a guide and outlining the steps he would go through as part of the process 59; and
(g) expressed the view that he did not consider that there was an outcome from the 10 October 2013 meeting which could have avoided Mr Ouyang being dismissed. 60
The statutory framework
[22] The Fair Work Commission (the Commission) exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that the Applicant is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which read as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.”
[23] There is no dispute that Mr Ouyang was dismissed, so s.385(a) of the Act is satisfied. Mr Ouyang contends that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. Visionstream is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Mr Ouyang was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).
Was the dismissal harsh, unjust or unreasonable?
[24] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately.
(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)
[25] In Rode v Burwood Mitsubishi (Rode’s Case) 61a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.62 The following is an extract from the Full Bench’s decision in Rode’s Case.
“[17] In relation to the meaning of "valid reason" the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:
"Section 170DE(1) refers to a 'valid reason, or valid reasons', but the Act does not give a meaning to those phrases or the adjective 'valid'. A reference to dictionaries shows that the word 'valid' has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: '2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value. ' In The Macquarie Dictionary the relevant meaning is 'sound, just or wellfounded; a valid reason'.
In its context in s 170DE(1), the adjective 'valid' should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC."
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
[26] The evidence in this matter is that Visionstream had a number of concerns regarding several aspects of Mr Ouyang’s performance, in particular his communication style with both colleagues and customers and the quality and timeliness of his written work. Mr Bruce’s evidence was that customers and colleagues had raised concerns with him and that this limited his capacity to delegate work to Mr Ouyang with the obvious impact on others.
[27] With regard to Mr Ouyang’s communication style, Mr Bruce’s uncontested evidence was that Mr Ouyang’s role required him to possess a range of “soft” skills which he considered essential for the role, including the ability to work with senior level project stakeholders to create solutions to meet the project needs by interactive sessions.
[28] In this regard, Mr Bruce’s evidence highlighted the concerns he had about Mr Ouyang’s capacity to work with clients based on feedback he had received and his own observations. Concerns initially arose in October 2012 regarding Mr Ouyang’s interactions with a customer 63. Concerns again arose in February 2013 when Mr Bruce received feedback from a Visionstream Manager, Mr Janssen, to the effect “You can’t leave this guy alone with a customer.”64 Further, feedback Mr Bruce received from Mr Allen, a Senior Technical Manager in Visionstream’s Engineering Team, also highlighted problems with Mr Ouyang’s interaction style with others and the impact of that.65 Beyond challenging the veracity of the allegations, Mr Ouyang did not provide any probative evidence to refute the concerns.
[29] As to the concerns regarding his written work, as noted at paragraph 12 above, Mr Ouyang’s evidence was that in respect of two design documents relied upon by Mr Bruce as examples of his written work not meeting the expected standard, one had been approved by Mr Bruce and the other had been approved by Visionstream management. Mr Bruce’s evidence was that in respect of the document he approved, he basically looked at whether the various quality assurance steps were taken in the development of the document in approving it and relied on Mr Ouyang’s technical knowledge to ensure the accuracy of the technical content of the document. However, Mr Bruce added that his concerns regarding the document were based on feedback from Messrs Allen and Janssen and his own observations 66. As to the other document, Mr Bruce’s evidence was that Mr Allen was strongly of the view that it was not fit for purpose and that as a result it was agreed that together they would rework the document67.
[30] Mr Ouyang’s evidence undermines the significance Visionstream attached to its concerns regarding the quality of the two documents. However, it also needs to be acknowledged that Visionsteam relied on other examples of Mr Ouyang’s written work. These include the bluntness of some of Mr Ouyang’s emails, which essentially goes to his communication style, and his work on the Pilbara Wireless Network Project task which Mr Bruce created in late July 2013 to test whether Mr Ouyang’s performance had improved to the required standard (see paragraph 20(f) above). Feedback to Mr Ouyang regarding that task was provided to him in the meeting of 11 September 2013 and is also set out in the second written warning issued to him on the following day. In short, Mr Bruce’s evidence was that Mr Ouyang “didn’t perform on the project to the necessary standard - he did the opposite.” 68
[31] Also relevant in considering whether Visionstream had a valid reason for dismissing Mr Ouyang is Mr Bruce’s evidence as set out at paragraph 20(e) and (h) above which pointed to Mr Bruce’s inability to effectively delegate work to Mr Ouyang as a result of the continued performance issues and the implications of this, resulting in Mr Ouyang effectively having few, if any material tasks to perform.
[32] Finally, Mr Ouyang did not lead any evidence which supported a finding that the reasons for his dismissal were, drawing on the language used in Rode’s Case, capricious, fanciful, spiteful or prejudiced.
[33] Taken together, these factors support a finding that there was a valid reason for the dismissal. Mr Ouyang’s persistence in failing to accept the concerns regarding his performance or to even entertain the possibility that there were issues regarding his performance in my view only adds weight to the reason for his dismissal.
(b) Whether the person was notified of that reason
[34] Mr Ouyang’s evidence was that at the termination meeting, Mr Bruce said that Visionstream had decided to terminate him due to his performance issue and ineffective communications 69.
[35] Mr Bruce’s evidence was that at the termination meeting Mr Ouyang was provided a copy of the termination letter by Ms Coleman and asked whether he had any comments on it. Mr Ouyang indicated he did not. 70
[36] Further the termination letter itself sets out the reason for Mr Ouyang’s dismissal, i.e. “Your performance and behaviour has been reviewed and has still not met expectations.” The letter also refers to the various performance counselling sessions and verbal and written warnings provided to Mr Ouyang. 71
[37] Taken together, the above supports a finding that Mr Ouyang was notified of the reason for his dismissal.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[38] Ms Coleman’s evidence was that at the termination meeting of 10 October 2013, Mr Ouyang was advised of Visionstream’s intention to terminate his employment and that he was provided with an opportunity to respond and provide feedback in relation to that decision. 72 As noted at paragraph 19(a) above, under cross examination Ms Coleman said that Mr Ouyang would not have been dismissed on 10 October 2013 if at the termination meeting he had accepted the performance management process and the feedback he had been provided.
[39] Mr Bruce’s evidence indicated that at the termination meeting Ms Coleman advised Mr Ouyang that Visionstream was proposing to terminate his employment and asked to him provide reasons as to why this shouldn’t happen. Mr Ouyang did not provide any reasons and responded to the effect that he was relieved that it was over. Further, Mr Bruce’s evidence was that Mr Ouyang was provided a copy of the termination letter and asked whether he had any comments on it. Mr Ouyang indicated he did not. 73 As noted at paragraph 21(g), Mr Bruce expressed the view under cross examination that he did not consider that there was an outcome from the 10 October 2013 meeting which could have avoided Mr Ouyang being dismissed.
[40] On the other hand, under cross examination Mr Ouyang disputed that Ms Coleman had said at the termination meeting that Visionstream was proposing to terminate his employment and invited him to respond, but could recall that he said when provided with the termination letter that he was relieved. Mr Ouyang’s further evidence was he could not recall what Mr Bruce said in that meeting other than Visionstream had decided to terminate him due to his performance issue and ineffective communications. 74
[41] While there is an inconsistency between Ms Coleman’s and Mr Bruce’s evidence as to the scope for Mr Ouyang’s responses at the termination meeting to avert his dismissal, the evidence supports a finding that Mr Ouyang was given an opportunity at that meeting to respond to the Visionstream’s concerns regarding his performance. That opportunity also needs to be viewed against the various performance discussions with Mr Ouyang which occurred across 2013 and which are outlined at criterion (e) below.
(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
[42] It is not disputed that Mr Ouyang was invited to bring a support person to the meeting of 10 October 2013 but chose not to do so.
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[43] Visionstream submitted that it raised performance issues with Mr Ouyang across much of 2013. A chronology of those discussions and the warnings issued to Mr Ouyang leading up to his dismissal is set out below (these are also referred to in the termination letter 75):
- meetings with Mr Ouyang where performance issues discussed were held on 26 February 2013; 19 March 2013; 7 and 8 May 2013; 11 June 2013; 25 and 26 June 2013; 1 July 2013;
- a verbal warning was issued to Mr Ouyang regarding areas of his performance and behaviours at the meeting of 7 May 2013;
- a first written warning was issued on 4 July 2013;
- further counselling sessions with Mr Ouyang were held on 6 and 16 August 2013, 11 September 2013;
- a second written warning was issued on 12 September 2013; and
- the termination meeting was held on 10 October 2013.
[44] Mr Ouyang disputed that he received any performance counselling prior to 7 May 2013. He also disputed much of Ms Coleman’s and Mr Bruce’s account of the various performance discussions with him on the basis that they were not verbatim records of the conversations. However, both Ms Coleman and Mr Bruce were able to support their evidence with diary notes of the conversations which supported their version of events. On the other hand, Mr Ouyang was unable to provide any probative evidence which contradicted Ms Coleman’s and Mr Bruce’s evidence and at times could not recall parts of the disputed performance conversations. Against that background, I prefer Ms Coleman’s and Mr Bruce’s evidence to that of Mr Ouyang regarding the various performance discussions with Mr Ouyang.
[45] Further, both the first and second warning letters issued to Mr Ouyang set out very clearly the areas requiring attention. The first written warning issued on 4 July 2013 includes the following passage:
“During our discussions and counselling sessions over the past few months, you have been provided with the opportunity for feedback, and in most instances your response has been to attribute the issues to Project Management and/or other people’s behaviour, and only to a limited extent have acknowledged your own behaviours may be an issue. This behaviour cannot continue due to the negative impacts they are having on projects and other team members.
As communicated to you, we are implementing a more formal Performance Improvement Plan, ... I will be reviewing your performance on an ongoing basis, through regular review meetings ...
At the review meetings your performance will be assessed in accordance with the expectations as articulated in the attached document, and you will be provided with the opportunity for further feedback and comments on activities and progress to date.
Failure to on your part to demonstrate significant improvement and further ongoing performance issues may result in further disciplinary action which may ultimately include termination of employment.” 76
[46]
Similarly, the second written warning states:
“Jing, I’m concerned that your behaviour and response to our performance conversations to date has not been productive. I note your response to this feedback in your email dated 9 September 2013. You mention it’s your duty to offer a professional explanation where feedback is provided. As discussed, professional explanations are always valued where relevant to the task. The priorities are always to understand the tasks and look to ensure that the scope is correct, facts and analysis cover the task appropriately. Questions to clarify any aspects of this, or to discuss possible methods to address a situation are also valuable. However, your opinion/professional judgement, where it blocks the performance of the task (in this case the improvement of the report) are not acceptable.
I must remind you that failure on your part to demonstrate significant improvement and further ongoing performance issues may result in further disciplinary actions which may ultimately include termination of employment.
As agreed, you will continue to attend our weekly meetings where we discuss your current performance and progress. People & Capability will also be involved in these meetings (effective Friday 13 September 2013) to offer support and also assist in facilitating any action to improve your performance.” 77
[47] Together these factors support a finding that Mr Ouyang had been warned about his unsatisfactory performance before his dismissal.
(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
[48] Visionstream has an in-house human resource function. As such, the size of the enterprise is not a relevant consideration.
(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
[49] As noted above, Visionstream an in-house human resource function. As such, this criterion is not a relevant consideration.
(h) Any other matters that FWC considers relevant
[50] Visionstream submitted that consideration should be given to Mr Ouyang’s relatively short period of employment with the Respondent and his attitude in denying the performance concerns raised with him 78.
[51] I have considered the latter issue in the context of criterion (e) above, while the first consideration is not particularly relevant in my view in determining whether or not the dismissal was harsh, unjust or unreasonable.
[52]
Mr Ouyang made much of the failure by Visionstream to follow its Performance Management Procedure to the letter. In particular, Mr Ouyang highlighted that the first warning letter had been issued absent an investigation into his alleged poor performance and that the documentation at Attachment B to the Procedure had not been completed by either Mr Bruce or Ms Coleman.
[53] Key elements of the Procedure are set out below:
“Allegations of poor performance, misconduct ... will be dealt with according to the following procedure. Termination of employment is a possible outcome.
With problems relating to performance, the supervisor may decide to use counselling (as described below) in an attempt to avoid further disciplinary action. Counselling is unlikely to [sic be] used in cases of misconduct. Counselling, including informal counselling, may be used at any time a supervisor considers it appropriate.
4 MANAGING UNSATISFACTORY PERFORMANCE OR MISCONDUCT
4.1 Performance Counselling
A supervisor may utilise formal or informal counselling when an employee’s behaviour, conduct or performance is showing signs that future disciplinary action may be necessary and when the supervisor believes that counselling may assist in preventing that disciplinary action.
The supervisor must hold any discussions in private and maintain discretion. All discussions should be noted in a diary or a file note kept in a secure directory on the server.
...
4.2 Investigating suspected policy breaches, allegations of misconduct or poor performance.
The supervisor must fully investigate all incidents where employees are suspected of inappropriate behaviour, poor conduct or poor performance. Whether or not a warning or other penalty is appropriate will be decided only once the investigation is complete.
The investigation will usually involve the following steps shown in the flow chart - Attachment A
1. Questioning anyone likely to have relevant information to best discover what has actually happened.
2. Develop specific allegations to be put to the employee(s) believe to have been involved.
3. Interview the employee(s), put the allegations to them with evidence and ask for a response. (in writing and sometimes in advance is sometimes appropriate)
4. Having heard the response, decide where necessary involving the manager once removed the appropriate penalty (if any).
...
The supervisor is responsible for completing the attached form (Attachment B), documenting the session and the People and Capability team are responsible for reviewing this document and preparing the warning or termination letters. The People and Capability team will require a signed copy to be held on the employees online personnel file - Documents of Record.
...
4.3 Deciding the Outcome
If the supervisor establishes a breach of policy or standard has taken place, it needs to be assessed in terms of seriousness. First time, less than serious breaches should result in a first warning. More serious breaches will justify more serious outcomes. Only when the serious breaches have been established or the matter involves on-going breaches, will termination be appropriate. ... As a general rule, a previous warning makes the behaviour more serious than if there were no previous warnings. This includes formal counselling sessions. ...” 79 (Attachments not included)
[54] Ms Coleman and Mr Bruce both conceded under cross examination that some elements of the Procedure were not followed to the letter in this case. For instance, it was acknowledged that the form at Attachment B to the Procedure had not been completed. Clearly this is an important issue and consideration in the context of this matter. However, the question that flows from it is whether the performance management process undertaken in Mr Ouyang’s case was either compromised or made unfair as a result of it.
[55] The evidence in this case indicates that the process followed commenced with informal counselling in the context of the weekly meetings Mr Bruce had with Mr Ouyang. When that failed to lead to an improvement in performance more formal steps, interspersed with continuing performance counselling discussions, were taken in the form of a verbal warning on 7 May 2013, a first written warning on 4 July 2013, followed by a second written warning on 12 September 2013 and finally dismissal on 10 October 2013. The evidence further indicates that Mr Ouyang was consistently informed of the areas where his performance and conduct needed to improve, offered assistance in that regard and informed of the consequences of failing to improve his performance.
[56] In short, the evidence is indicative of a process where Mr Ouyang was given every opportunity to address the performance concerns raised with him.
[57] However, the evidence also indicates that Mr Ouyang did not consider that he had a performance problem. As noted at paragraph 14(d) above, under cross examination Mr Ouyang indicated he had not changed his behaviour between receiving the second written warning and the meeting of 10 October 2013, stating “There’s no problem with my behaviour. Why would I change it?”
[58] Visionstream’s approach was entirely appropriate in that the concerns were initially raised informally with Mr Ouyang and subsequently formally. In my view, the approach adopted by Visionstream gave Mr Ouyang considerable opportunity to address the performance issues raised with him despite not following Visionstream’s Performance Management Procedure to the letter. To be frank, I consider that Visionstream demonstrated admirable patience in the face of Mr Ouyang’s consistent failure to entertain the possibility that any of the performance issues raised with him had any substance. Mr Ouyang’s lack of openness to feedback and any willingness to either acknowledge and/or seek to address the issues raised with him in a constructive fashion is bewildering.
[59] Against that background, I am not satisfied that Visionstream’s failure to follow its Performance Management Procedure to the letter resulted in the process followed in Mr Ouyang’s case being fundamentally flawed or unfair to him.
[60] Accordingly, I am satisfied that there are no other relevant matters which the Commission should take into account.
Conclusion
[61] Drawing on the above analysis, I find that there was a valid reason for Mr Ouyang’s dismissal, that he was notified of the reason and was given an opportunity to respond, that he was able to and but did not seek the assistance of a support person and that there are no other relevant matters.
[62] For all these reasons I do not consider that Mr Ouyang’s dismissal was harsh, unjust or unreasonable. Accordingly, I dismiss the application. An order to this effect is attached at PR551374.
DEPUTY PRESIDENT
Appearances:
J. Ouyang on his own behalf.
B. Gee with E. Reilly for the Respondent
Hearing details:
2014.
Melbourne:
March 21.
1 Exhibit G3 at Attachment SCC12
2 Exhibit G4 at Attachment MDB21
3 Outline of Submissions
4 Closing Submissions for the Applicant at paragraph 1
5 Ibid at paragraph 7
6 Exhibit O1 at paragraphs iii. and iv.
7 Ibid at paragraph v.
8 Ibid at paragraph vi.
9 Exhibit G4 at Attachment MDB14
10 Ibid at Attachment MDB17
11 Transcript at PN107-200
12 Ibid at PN201-216
13 Ibid at PN217-218
14 Ibid at PN365-367
15 Ibid at PN368-373
16 Ibid at PN374-411
17 Ibid at PN257-258
18 Ibid at PN260-287
19 Ibid at PN476-480
20 Ibid at PN511
21 Ibid at PN615-619
22 Ibid at PN614
23 Ibid an PN620
24 Outline of Submissions for the Respondent at paragraph 24
25 [2011] FWA 3532
26 [2012] FWA 4382
27 (2000) 98 IR 137
28 Closing Submissions for the Respondent at paragraphs 105-109
29 Exhibit G3
30 Ibid at paragraphs 13 and 14
31 Ibid at paragraphs 19 and 20
32 Ibid at paragraph 22
33 Ibid at paragraph 25
34 Ibid at paragraphs 26 to 31
35 Ibid at paragraphs 32 and 33
36 Ibid at paragraph 34
37 Ibid at paragraph 35
38 Ibid at paragraphs 43 and 44
39 Ibid at paragraph 46
40 Transcript at PN680-681
41 Ibid at PN689-696
42 Ibid at PN703-727
43 Ibid at PN778-791
44 Exhibit G4 at paragraph 18.b.
45 Ibid at paragraphs 23 and 24
46 Ibid at paragraph 25
47 Ibid at paragraph 84
48 Ibid at paragraph 63
49 Ibid at paragraph 64
50 Ibid at paragraphs 66-70
51 Ibid at paragraph 83
52 Ibid at paragraph 85
53 Ibid at Attachment MDB20
54 Transcript at PN896
55 Ibid at PN897-901
56 Ibid at PN985-993
57 Ibid at PN953-964
58 Ibid at PN1055-1064
59 Ibid at PN1065-1068
60 Ibid at PN1133-1134
61 Print R4471
62 (1995) 62 IR 371
63 Exhibit G4 at Attachment MBD5
64 Ibid at paragraph 26
65 Ibid at paragraph 33
66 Transcript at PN955-964
67 Ibid at PN970-976 and PN997-999
68 Exhibit G4 at paragraph 69
69 Transcript at PN633
70 Exhibit G4 at paragraph 88
71 Ibid at Attachment MDB21
72 Exhibit G3 at paragraph 46
73 Exhibit G4 at paragraph 88
74 Transcript at PN621-633
75 Exhibit G4 at Attachment MDB21
76 Exhibit G4 at Attachment MDB13
77 Ibid at Attachment MDB18
78 Outline of Submissions for the Respondent at paragraph 40
79 Exhibit G3 at Attachment SCC2
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