Joshua James Wallace v Maximor Nominees Pty Ltd T/A Westralian Diesel

[2020] FWC 4428

[2020] FWC 4428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua James Wallace
v
Maximor Nominees Pty Ltd T/A Westralian Diesel
(U2020/2109)

COMMISSIONER WILLIAMS PERTH, 26 AUGUST 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Joshua James Wallace (Mr Wallace or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 24 February 2020. The Respondent is Maximor Nominees Pty Ltd T/A Westralian Diesel (the Respondent).

[2] At the hearing of this matter Mr Wallace gave evidence on his own behalf and called Mrs Mikayla Wallace as a witness. For the Respondent evidence was given by Mr Richard York (Mr York), Director of the Respondent, and Mr Ryan Litterick (Mr Litterick), Workshop Manager for the Respondent and Mr Daniel Vella (Mr Vella), Parts/Business Manager for the Respondent.

[3] Both parties in this matter were self-represented.

Evidence and factual findings

[4] Mr Wallace was first employed in June 2018. He worked for the Respondent as a Heavy-Duty Diesel Mechanic.

[5] He was dismissed on 7 February 2020 and the dismissal took effect that day.

[6] The Applicant’s evidence was that that the reason given by the Respondent for his dismissal was his poor performance and errors, which were costly mistakes for the company and had damaged the company’s reputation.

[7] His evidence was that in the months leading up to his dismissal he was experiencing mental health issues.

[8] The evidence of Mrs Wallace was that the Applicant suffered from depression and had done from many years. 1

[9] Text messages were included in the Applicant’s evidence referring to his request to have a period off work for personal reasons around 18 January 2020 which the Respondent was sympathetic and agreed to.

[10] The Applicant’s statement is that on 7 February 2020 a meeting was held with Mr York and Mr Litterick.

[11] The Applicant says at the meeting he was informed his employment was being terminated due to poor performance and several issues were discussed which had contributed to this. His evidence was that he was paid in lieu of notice.

[12] Mr Wallace says he was provided with a termination letter which outlined the discussions which occurred in the dismissal meeting.

[13] Following the dismissal, the Applicant gained employment on 25 February 2020 at a higher hourly rate than he was earning with the Respondent.

[14] His oral evidence at the hearing was that every time he was pulled up about an error in the workplace he always apologised and said he did not know how that happened and that he would make sure it did not happen again. His evidence was this was only met with a response from his employer “keep an eye on it next time.”

[15] Under cross-examination the Applicant’s evidence was that when he had been told in various discussions that “this cannot continue” or “we cannot keep going like this” he was never informed his employment would cease and it was not worded in a way that put his employment at risk. 2

[16] The evidence for the Respondent was at the time of Mr Wallace’s dismissal the respondent had 20 employees.

[17] The evidence of Mr York, a Director of the Respondent was that after many meetings and discussions with Mr Wallace over the course of his employment there had been no improvement in his performance and his employment was terminated.

[18] Mr York’s evidence was that Mr Wallace had numerous warnings regarding his poor performance. These occurred in the workshop but also in the office. Mr York says Mr Wallace had been told repeatedly that he needed to improve. He had been told repeatedly that these mistakes were very costly and would not be tolerated.

[19] Mr York says it had been discussed with Mr Wallace that distractions in the workplace needed to be minimised as this was possibly the reason for his mistakes and he had been warned about his excessive mobile phone use.

[20] Mr York’s evidence was that Mr Wallace had been unwilling to make changes to improve his performance.

[21] Under cross-examination Mr York’s evidence was that the Respondent filed all of the warnings Mr Wallace had received in their office system.

[22] Mr York provided a spreadsheet which detailed the dates, job number, customer, the mistake Mr Wallace had made, the cost to rectify the mistake, the customer response, the action taken and Mr Wallace’s response. 3

[23] The oldest recorded mistake of Mr Wallace recorded in the spreadsheet was in October 2018. There were seven instances of mistakes recorded and detailed in 2019 and three more in 2020.

[24] The most costly mistake was in April 2019. Mr Wallace had completed a rebuild on an engine however a liner O-ring had been rolled when he assembled it. Consequently the truck had broken down up north and had to be towed back to the workshop with a sump full of coolant. The Respondent says the cost to rectify this was $25,000.

[25] The second most expensive mistake to rectify was in January 2019. During an engine rebuild Mr Wallace did not time the engine correctly despite having a manual telling him how to align timing gear. He decided to do it by eye but Mr Wallace did not get it right. Consequently the engine did not run correctly and presented fault codes that could not be rectified until the base engine timing was completed which required the engine to be removed from the truck. The Respondent says the cost to rectify this was $10,000.

[26] In February 2020 there were three mistakes by Mr Wallace which were documented by the Respondent.

[27] On 4 February 2020 the spreadsheet records that when Mr Wallace was asked about checking work he seemed relatively unfazed and said he did not know, in regards to carelessness he said he knew he would do better. When it was brought up that this was becoming too frequent, he did not respond.

[28] Mr York’s evidence under cross-examination was that there had been many conversations with Mr Wallace where he should have appreciated his employment was in jeopardy. He was told that this cannot continue, and his evidence was Mr Wallace did not heed any warnings.

[29] During the meeting with Mr York and Mr Litterick on 7 February 2020 where the Applicant was asked to explain how damage to cylinder heads had occurred the spreadsheet records Mr Wallace’s response as saying he should have paid more attention. When he was told he was to be dismissed he said he understood the position they were in after all of the occurrences.

[30] The evidence of Mr Litterick was that Mr Wallace had received numerous verbal warnings from himself alone and from himself and Mr York together. His evidence was that he had spoken to Mr Wallace at length in his office and in the workshop.

[31] He says a typical response from Mr Wallace would be a shrug of the shoulders and a comment of sorts that would lead you to think that what you had just discussed had not sunk in at all.

[32] His evidence was the costs of Mr Wallace’s mistakes ran into thousands of dollars as detailed in the spreadsheet that summarise these. His evidence was many hours needed to rectify the mistakes could not be charged out to customers and as a result came off the Respondent’s bottom line.

[33] Mr Litterick’s evidence was the cost of Mr Wallace’s repeated mistakes could not be sustained.

[34] The evidence of Mr Vella was that their office has an open plan layout and as a result he had witnessed Mr Wallace receive verbal warnings on at least four and may be more occasions.

[35] Because his role includes procuring parts for jobs in the workshop Mr Vella says he was aware of some of the mistakes Mr Wallace had made because he had to source parts to rectify these.

[36] Under cross-examination Mr Vella said he could not recall exactly what was discussed but the conversations were about jobs that had gone wrong and mistakes that had been made and request that that sort of thing did not happen again.

[37] The termination of employment letter signed my Mr York and dated 7 February 2020 relevantly reads as follows.

“On multiple occasions, you have met with Richard and Ryan regarding your poor performance in the workplace. You were given feedback on where to improve and several chances were given to prove your ability to be left unsupervised on jobs. Communication to you regarding these issues have been documented.

Due to continuous errors during your employment, the cost of these mistakes to the company financially has been a burden and our reputation of providing high quality work has been damaged. Several customers have lost their trust in the company that we can fulfill their high expectation which has resulted in their business going elsewhere.

We consider that your performance is still unsatisfactory and have decided to terminate your employment effective immediately due to the reasons mentioned in previous meetings and above.” (sic)

Submissions

[38] The Applicant submits that he had mental health issues which lead to decreased attention in the workplace and subsequently to errors being made. He submits these issues increased in December 2019 and were reflected in him taking personal leave at that time.

[39] He says the performance issues were not discussed in any formal meetings and no assistance, training or support was offered for performance or other issues.

[40] He said he was only informed verbally of the errors and these were verbal alerts and instructions to resolve the issues.

[41] Mr Wallace submits he was not provided with written warnings.

The legislation

[42] Section 387 of the Act prescribes the matters the Commission must take into account when determining whether an employee has been unfairly dismissed. This is set out below.

“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.”

Consideration

Valid reason

[43] The evidence demonstrates that for an extended period Mr Wallace was performing poorly and making significant mistakes completing his duties as a Heavy-Duty Diesel Mechanic. His performance was unsatisfactory and had not improved.

[44] Mr Wallace was either unwilling to or unable to complete his work to the reasonable standard his employer required. This was a valid reason for his dismissal related to his capacity.

Notification of that reason

[45] Mr Wallace was notified at the meeting on 7 February 2020 of the reason he was being dismissed. After that meeting this was confirmed in writing in the termination of employment letter.

Opportunity to respond

[46] I am satisfied that at the meeting on 7 February 2020 Mr Wallace was given an opportunity to respond to the reason he was to be dismissed.

Refusal to allow a support person

[47] There was no refusal to allow a support person present at any discussions relating to his dismissal.

Warnings about unsatisfactory performance

[48] I am satisfied that Mr Wallace was warned on a number of occasions verbally that his performance was unsatisfactory. He had been told specifically by Mr York that his mistakes were very costly and would not be tolerated.

The degree to which the size of the enterprise and the absence of dedicated human resource management specialists or expertise likely impacted on the procedures followed

[49] The Respondent’s enterprise had only 20 employees at the time Mr Wallace was dismissed. There is no evidence the Respondent had human resource management specialists or expertise.

[50] I am satisfied that the small size of the business and the absence of human resource management specialists has likely impacted on the procedures followed by the Respondent; in particular not giving Mr Wallace a series of escalating written warnings stating his employment would end if his performance did not improve.

[51] The facts of this matter indicate this approach, commonly used by larger employers with in-house human resource management specialists, would have been entirely justified in this case.

Other relevant matters

[52] Mr Wallace submitted that his mental health difficulties were impacting on his work performance.

[53] There is no medical evidence before the Commission as to what his mental health difficulties were and that demonstrates his mental health issues explained his poor performance.

[54] Specifically, there is no evidence that this was impacting on his work performance in February 2020 when his most recent mistakes were made.

[55] Finally when the Respondent spoke to the Applicant in February 2020 about the three most recent mistakes he made Mr Wallace did not put forward his mental health difficulties as an explanation for these errors.

[56] Mr Wallace had been employed with the Respondent for less than two years.

Conclusion

[57] For a lengthy period Mr Wallace’s performance had been unsatisfactory. There had been multiple discussions with him and the Workshop Manager and the Director of the business about his mistakes. He had been told that this could not continue. Mr York, the Respondent’s Director, had told him that these mistakes were very costly and would not be tolerated.

[58] Mr Wallace had been told what was expected of him. He had been given opportunities to improve.

[59] There was no improvement. Mr Wallace was either unwilling to or unable to improve his performance.

[60] The implication that Mr Wallace would have improved his performance to meet the Respondent’s standards if they had told him in writing his job was at risk is, in the circumstances, disingenuous.

[61] Considering all of the issues above I am not satisfied that the dismissal of Mr Wallace was harsh, unjust or unreasonable. The dismissal of Mr Wallace was not unfair.

[62] Consequently this application will be dismissed and an order [PR722029] to that effect will now be issued.

Appearances:

J Wallace on his own behalf.
R York on behalf of the Respondent.

Hearing details:

2020.

Perth (telephone hearing):

June 8.

Printed by authority of the Commonwealth Government Printer

<PR722028>

 1   Transcript at PN61 and PN62.

 2   Ibid., at PN41 and PN42.

 3   Ibid., at PN79 and PN80.