John Soper v Teekay Shipping (Australia) Pty Ltd
[2016] FWCFB 5436
•8 AUGUST 2016
| [2016] FWCFB 5436 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Teekay Shipping (Australia) Pty Ltd
(C2016/3886)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 8 AUGUST 2016 |
Appeal against decision [2016] FWC 2288 of Deputy President Gostencnik at Melbourne on 5 May 2016 in matter number U2015/14232.
[1] This decision concerns an appeal against the Decision 1 of Deputy President Gostencnik dated 5 May 2016 in which he dismissed an application for relief from unfair dismissal lodged by Mr Soper on 16 November 2015. Deputy President Gostencnik concluded that Mr Soper’s dismissal was not harsh, unjust or unreasonable.
[2] On 26 May 2016 Mr Soper filed an application for permission to appeal and an appeal against the decision of the Deputy President. The application for permission to appeal was set down for a hearing before this Full Bench on 15 June 2016 by video link between Melbourne and Perth. Mr Mullally from Workclaims Australia appeared for Mr Soper. Mr Wade from Ashurst, solicitors, appeared for the respondent. Mr Mullally filed an Outline of Submissions on behalf of Mr Soper. 2 Both parties made oral submissions.
Background
[3] Deputy President Gostencnik provided a detailed summary of the facts for determination before him. We will not provide more than a short overview of the background to this application.
[4] Mr Soper was engaged as a Chief Engineer by Teekay Shipping (Australia) Pty Ltd (the respondent) at its Port Hedland terminal from September 2009 until termination of employment on 26 October 2015.
[5] From February 2015 the respondent had increasingly identified performance issues related to Mr Soper’s work. These performance issues were manifested in two separate incidents which resulted in warnings being issued to Mr Soper. The first warning, in relation to an incident on 20 February 2015, was retracted by the respondent shortly after the event. The second and final warning was issued on 18 August 2015 after an incident on 10 August 2015.
[6] The respondent concluded that both incidents demonstrated a failure by Mr Soper to meet his responsibilities and/or created serious safety risks. As a result, from 20 February 2015, Mr Soper was extensively managed by the respondent through a mentoring program and a Performance Improvement Plan (PIP). The PIP operated from 6 August 2015 to 28 October 2015. It nominated the next formal review date as being “…the end of each of the next two swings”.
[7] Before the expiry of the PIP, on the morning of 22 October 2015, Mr Soper was directed by telephone to immediately attend work for the purpose of completing a practical competency test. Mr Soper did not receive any prior notification of the assessment. Mr Soper’s evidence was that he was given one hour to be at work and be ready to complete the competency assessment.
[8] Mr Soper failed the competency assessment. He successfully completed only 3 of 18 tasks. He was subsequently stood down from work on full pay until his dismissal for underperformance on 26 October 2015.
Grounds of appeal
[9] In his Notice of Appeal Mr Soper identified his grounds of appeal as follows:
“The learned Deputy President found that a competency assessment carried out by the respondent on the appellant on the 22nd October 2015 was central to both the cases of the parties to the application below. He also found that the appellant’s failure to pass the competency assessment constituted a valid reason for the dismissal under s387 (a). The learned Deputy President therefore erred in fact and in law as follows:
1. Making a finding (by inference) under s387(e) that the appellant had been sufficiently warned about the competency assessment;
2. Failing to take account of or have any regard to clear evidence that the competency assessment carried out on the 22nd October 2015 was done in circumstances by way of surprise, without prior notice and without any warning that the competency assessment would or could determine the appellant’s future employment with the respondent.”
[10] In submissions filed on 10 June 2016 Mr Mullally expanded on the grounds of appeal as follows:
“3. It is clear from the dismissal letter and the findings of the learned Deputy President that the practical competency assessment test was pivotal in the decision to terminate the employment.
4. It is equally clear from the evidence before the learned Deputy President that the practical competency assessment was thrust upon the appellant without prior notice or warning and he described it in his evidence as his “worst nightmare” and in his witness statement described how he was awoken early on the morning of the 2nd October 2015 by a telephone call from his operations manager Luke Westlake and told to be on board the tug Boodarie in one hour.
5. The respondent’s witnesses agreed that the appellant had no prior notice of the competency assessment and it was designed to test him in the practical aspects of his duties as a Chief Engineer. It was not included as an item or possible outcome in the PIP.
6. It is equally clear from all of the evidence regarding the competency assessment that the appellant was never warned that his performance in the competency assessment and its outcome could impact on the continuation of his employment.
7. The thrust of the appeal is that the learned Deputy President failed to give due consideration to the absence of a warning with respect to the appellant’s performance under the competency assessment.
8. The provisions of s387(e) of the Fair Work Act involving dismissal based on unsatisfactory performance issues require the Fair Work Commission to have regard to whether the appellant was warned about his unsatisfactory performance before the dismissal.
9. The learned Deputy President found that there had been warnings about the appellant’s unsatisfactory performance, but no specific findings were made by him regarding warnings leading to the competency assessment, but by inference found that the appellant had been sufficiently warned about the likely outcome of a failed competency assessment. This is disputed.”
[11] Mr Mullally submitted that a warning is a significant event in the decision-making process and ought to have been given to Mr Soper in the circumstances of this application. He did not dispute that the applicant was aware that his performance was an issue but submitted that it must be made clear to an employee that his employment is at risk. Mr Mullally submitted that the respondent did not warn Mr Soper that if he did not pass the competency test his employment would be at an end and it should have.
[12] Mr Mullally submitted that the appeal raises an important point of law regarding the application and interpretation of s.387(e) of the Act. The absence of any specific warning to the effect that termination of employment might flow if Mr Soper was unsuccessful in the competency assessment demonstrates that the finding made by the Deputy President is at variance with previous decisions of the Fair Work Commission. The public interest is enlivened because this issue is a matter of general importance and application, manifests an injustice and is disharmonious when compared with other recent decisions dealing with similar matters.
The Respondent’s Submissions
[13] The respondent submitted that the competency assessment must not be viewed in isolation but should be seen as the part of an extensive performance management process 3 which the respondent was attempting to draw to an end.4 Mr Wade submitted that the competency assessment was the respondent’s attempt to resolve an impasse reached in the PIP, an attempt to ascertain whether the respondent’s concerns already identified in the final warning were well grounded.
[14] Mr Wade focused his submissions upon what he alleged was a transparent, protracted and genuine performance management process and competency assessment. He submitted that the Full Bench should not be persuaded that there was an issue with the performance management process.
Permission to Appeal
[15] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 5 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[16] This appeal is one to which s.400 of the Act applies. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[17] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 6 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.7 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 8
Conclusion
[18] Section 387(e) of the Act is set out below:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
---
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;”
(our emphasis)
[19] The Deputy President made a number of factual findings including:
● That the respondent’s concerns regarding Mr Soper’s competence were soundly based and that it was on the basis of those well-founded concerns that the respondent implemented a peer monitoring program and the PIP.
● Mr Soper’s criticism of the peer monitoring program was not credible.
● Mr Soper should have been clear as to what areas of his performance and competence were being assessed and reviewed, how feedback would be gathered and when reviews of his performance and competence would take place.
● Mr Soper demonstrated in the PIP that he could not competently and safely fulfil the duties of a Chief Engineer.
● The respondent’s criticism of Mr Soper which led to his final warning was justified.
● Mr Soper’s request for an additional day of mentoring was not likely to be genuine.
● Mr Soper had an opportunity to respond during the competency assessment which he did not take up or make good use of.
● Mr Soper’s evidence highlighted his intransigence and his unwillingness to accept deficiencies in his performance.
● It was Mr Soper’s repeated refusal to acknowledge any shortcomings which caused the respondent to take the decision to subject Mr Soper to a competency assessment.
● None of the tasks to which Mr Soper was directed and which he failed were complex.
● Sufficient time was allocated for the performance of those tasks in the competency assessment.
● Mr Soper’s failure to perform those tasks successfully did not arise from stress and anxiety.
[20] The Deputy President then concluded:
“[71] For the reasons given earlier in this decision I am satisfied that on the evidence, the Applicant failed a competency assessment that he was required to undertake and that he did not then and has not during proceedings before me, provided any credible explanation for his failure to pass the assessment. I am also satisfied for the reasons already given, that the Respondent’s concerns as to the Applicant’s competency were reasonably based, and so I conclude that the requirement for the Applicant to undertake the competency assessment was reasonable. There is nothing in the evidence to suggest that the Respondent acted with caprice or that it had anything other than the Applicant’s competency in mind when it dismissed him. It seems to me that concerns about the Applicant’s competency were not fanciful, but as I indicated were reasonably held. The Applicant was given a chance to demonstrate his competency and he failed to do so. Dismissing the Applicant, in the circumstances of the history leading up to the dismissal, because he failed to demonstrate competency during the competency assessment, seems to me to be a valid reason for dismissal of the Applicant. Therefore, in the circumstances, I am satisfied that there was a valid reason for the Applicant’s dismissal relating to his capacity.”
[21] We can identify no error of fact significant or otherwise in the Decision. We have considered all of the factual issues determined by the Deputy President. Having considered the evidence before the Deputy President we are satisfied and find that the Deputy President’s conclusions were available to him on the evidence before him, and in the circumstances of this application.
[22] Having determined the facts surrounding the context in which the decision to terminate Mr Soper’s employment took place and the existence of a valid reason for the termination of employment, the Deputy President considered the operation of s.387(e) of the Act. He concluded:
“[77] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.
[78] It seems to me, clear on the evidence earlier described, that the Applicant had previously been warned about his performance or capacity. I do not take into account the withdrawn warning issued following the February Incident. I am also satisfied on the evidence that the Respondent took positive steps to bring to the attention of the Applicant, areas of deficient competency, and set about assisting the Applicant to improve his performance. This is evident in the implementation of the PIP and in the mentoring arrangements that were put in place in August and May 2015 respectively for the benefit of the Applicant.”
[23] Without the context of the ongoing PIP and the Deputy President’s findings regarding the applicant’s attitude to that process, the short notice of a competency test, and the requirement to attend it, might well be considered in light of the authorities to be unfair. The Act requires consideration of whether or not an employee was warned about unsatisfactory performance.
[24] The authorities support the proposition that if unsatisfactory performance is likely to result in termination of employment that possible outcome should be brought to the attention of the employee.
[25] Mr Mullally characterised the competency test as the primary issue on which the Deputy President decided this application. This mischaracterises the decision making process of the Deputy President. Deputy President Gostencnik conducted an extensive forensic examination of the performance issues of Mr Soper evident prior to commencement of the peer mentoring program and the PIP, the attitude of the respondent to those processes and Mr Soper’s level of cooperation with them. He made findings regarding those issues.
[26] The competency assessment was the ultimate event in a comprehensive process dealing with the respondent’s legitimate concerns about Mr Soper in a safety critical role. The Deputy President found that Mr Soper was uncooperative in that process. Mr Mullally suggested that the fact that Mr Soper’s engagement in a competency assessment would be the ultimate decider as to whether Mr Soper was competent or not, “screamed out” for a warning when considering s.387(e) of the Act. It is clear that the Deputy President determined that the existing context of Mr Soper’s employment made any further warningunnecessary.
[27] The Presiding Member asked why somebody had to be warned that termination of employment might be a consequence of failing a competency test. It might seem likely that termination with notice might necessarily arise for consideration if an employee cannot pass a competency test. It might be one of the outcomes arising in the ordinary course of events. Mr Mullally responded that it was an interruption to the PIP, an extension to it, without any understanding between Mr Soper and the respondent that it would arise. Mr Mullally submitted that it was Mr Soper’s evidence that he was satisfactorily completing the PIP when this was thrust upon him. However, the submission that Mr Soper was completing the PIP satisfactorily is contrary to the conclusions of the Deputy President, which we have found was a conclusion supported by the evidence.
[28] We have considered the evidence before the Deputy President and his conclusions. The Deputy President was satisfied that Mr Soper was aware that the respondent was considering his unsatisfactory performance. A greater opportunity for awareness could hardly be possible. The seriousness of the issues under review in both the mentoring program and the PIP could leave no reasonable person in doubt that a competency assessment, initiated towards the end of that PIP, in which the Deputy President found Mr Soper’s cooperation was negligible, was likely to lead to termination of employment if unsuccessful. The Deputy President’s conclusions in this regard are supported by the evidence and we can find no error in those conclusions.
[29] We are not satisfied that there is any public interest in granting permission to appeal. There are no matters of importance or general application raised by the appeal. There is no diversity of decisions at first instance requiring appellant guidance. The outcome of Mr Soper’s application was not counterintuitive. The legal principles applied by the Deputy President followed recent Full Bench decisions and are harmonious with those decisions.
[30] We therefore refuse permission to appeal and dismiss the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr Mullally of Workclaims Australia for the appellant.
Mr Wade of Ashurst Australia for the respondent.
Hearing details:
2016
June 15
Melbourne and Perth via videolink
1 [2016] FWC 2288
2 Exhibit Appellant 1
3 Transcript PN77
4 Ibid., PN75
5 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
6 (2011) 192 FCR 78 at [43]
7 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46]
8 [2010] FWAFB 5343 at [27], 197 IR 266
Printed by authority of the Commonwealth Government Printer
<Price code C, PR583824>
0
5
0