Kevin Vernon v Electricity Networks Corporation T/A Western Power

[2016] FWC 533

[2016] FWC 533

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Vernon
v
Electricity Networks Corporation T/A Western Power
(U2015/1513)

COMMISSIONER WILLIAMS PERTH, 29 JANUARY 2016

Termination of employment.

[1] This matter involves an application made by Mr Kevin Vernon (Mr Vernon or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Electricity Networks Corporation T/A Western Power (Western Power or the respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.

Background

[3] Mr Vernon was employed by Western Power in 2006.

[4] Mr Vernon’s employment was terminated effective 18 March 2015. A termination of employment letter dated 19 March 2015 states the decision to terminate his employment was a result of him not performing to the standard expected in his role as Property Specialist P2 and specifically having failed to reach the required level of competence in core areas of the role being:

• verbal and written communication



• situational analysis



• commercial and financial analysis



• time management

[5] Mr Vernon’s employment was terminated with five weeks pay in lieu of notice.

The evidence and factual findings

[6] At the hearing Mr Vernon gave evidence on his own behalf and called as witnesses Mr Paul Cecchini (Mr Cecchini), an Industrial Organiser with the Australian Municipal, Administrative, Clerical and Services Union (ASU), Mr James Butler (Mr Butler) who was Mr Vernon’s Team Leader until September 2013, Ms Kelly Young a work colleague of Mr Vernon’s and Mr Stephen Whittleston (Mr Whittleston) who is also a Property Specialist with Western Power. The respondent called as its witnesses Mr Andrew Boots (Mr Boots) currently the Acting Planning and Asset Manager of Western Power, Ms Laura Jones-O’Neil (Ms Jones-O’Neil) who is the Human Resource Business Partner, Corporate Services Business Unit at Western Power and Mr Gavin Hobbs (Mr Hobbs) who is the Head of Property and Fleet at Western Power.

[7] Having considered the evidence of all the above witnesses I make the following factual findings.

[8] Mr Vernon was first employed by Western Power in September 2006 in the capacity of Senior Property Officer.

[9] In mid-2013 Western Power underwent a restructuring process and as a result of this a number of positions were made redundant as they were no longer required. Employees in redundant positions were either offered redeployment into suitable alternative positions or had their employment terminated.

[10] By letter dated 14 October 2013 1, Mr Vernon was advised that he would be redeployed from the redundant position of Senior Property Officer into the role of Property Specialist, which had been identified as a suitable position for someone with his knowledge and experience. His remuneration remained the same and he was advised that all other terms and conditions of his employment remained unchanged.

[11] Having received this letter Mr Vernon did not avail himself of the opportunity offered in the redeployment process, and as outlined in that letter, to suggest any alternative positions.

[12] The evidence is that Mr Vernon did not at this time advise that he considered himself unsuitable for the Property Specialist role, nor did he request further training or development to allow him to perform the new role.

[13] Mr Vernon continued working but now in the role of a Property Specialist.

[14] Prior to this change for each of the years 2009/2010, 2010/2011 and 2011/2012 under Western Power’s performance appraisal and development system Mr Vernon’s performance had been overall rated as “Commendable” and for the year 2012/2013 his performance overall had been rated as “Meets expectations”. 2

[15] Mr Butler who was Mr Vernon’s previous Team Leader up until September 2013 recalls that Mr Vernon in his performance reviews consistently had a high level of achievement with ratings being above expectations and that he consistently achieved the highest performance ratings in the Land Management Team.

[16] The role description for the previous role of Senior Property Officer 3 has some similarities and some differences when compared to the position description of Property Specialist as it was when Mr Vernon was redeployed to this new role.4 Mr Vernon’s evidence which I accept is that in practice the role and the tasks he was required to perform at the time he was redeployed did not change.5

[17] The evidence is that Mr Vernon discharged his duties as a Property Specialist without any complaint from Western Power for over 7 months until May or June 2014. 6

[18] Mr Boots joined Western Power in March 2014 as the Property Team Leader, Property and Fleet. In this position he supervised the Property Team which at the time was staffed by six Property Specialists one of which was Mr Vernon.

[19] On his commencement he undertook a process review of the Property Team to ensure its structure and duties were process driven. That review involved identifying the key functions, the processes undertaken to support those functions and ensuring alignment with the duties of the Property Team against those processes and with the employees’ skill set.

[20] The review involved considering the skills and competencies of the employees, including against previous performance reviews and consulting with the employees about their duties.

[21] Mr Boots then made some changes, which he referred to as “refinements”, to the Property Specialist job description. 7 His evidence was that these changes were made in late 2014 however I have concluded that Mr Boots is mistaken as to the timing of this. Rather I prefer the evidence of Mr Vernon which was that the revised Property Specialist job description was put into effect approximately 3 months after Mr Boots commenced at Western Power.8 This timing is consistent with the concerns that Mr Boots had about Mr Vernon’s performance which first became apparent in May or June 2014 and more significantly during August 2014.9

[22] There are three relevant role or position descriptions. Firstly the role description for Senior Property Officer, which applied to Mr Vernon’s role before his redeployment, secondly the position description of Property Specialist as it was at the time of redeployment and thirdly the position description of Property Specialist as refined by Mr Boots which was in place from mid-2014.

[23] There are significant differences between the style and format of the role description for the Senior Property Officer and that of the first position description which applied at the time of redeployment for the Property Specialist. Whilst there is some difference in the expression as to the accountabilities between the role description and position description the evidence is that Mr Vernon’s performance was not criticised for the first 7 months or more as he worked subject to the original Property Specialist position.

[24] The evidence also is that Mr Vernon did not experience any change in the role or the tasks he was required to complete when he was redeployed. The evidence however, is that there was a change after Mr Boots became Mr Vernon’s Team Leader. One of the changes Mr Boots made was to revise the position description for a Property Specialist. A comparison of the original position description for a Property Specialist with the revised position description for a Property Specialist does identify that some elements are common to both but also identifies a number of changes which were made by Mr Boots. Some of these changes are set out below.

Position description -Property Specialist

“Position purpose”

(At redeployment October 2013)

“This position is accountable for acquiring, leasing and disposing of properties and property interests (such as easements) in line with the organisations property strategy.”

(As revised by Mr Boots mid-2014)

“To provide support to management of the Property area in actively managing the acquisition, leasing, disposal and management of a portfolio of properties and property interests (such as easements) required by Western Power, including financial and commercial analysis, subdivisions and administrative processes.”

“Impact”

(At redeployment October 2013)

“• Maintain a high performing, commercially and customer focused culture
• To uphold and embody the business orientation and purpose while championing the alignment of its values through its people and achieving Western powers objectives
• Property transactions are conducted in a timely, ethical and cost-effective manner
• Properties and property interests are required and disposed of in line with Western powers objectives”

(As revised by Mr Boots mid-2014)

“• Active management of property assets contributes to reducing costs and increasing affordability objectives
• Active management of property rights contributes to the objective of providing public safety and reliability of services to the public
• Active contributions to the property team to ensure a high performing, commercially and customer focused culture”

“Key challenges”

(At redeployment October 2013)

“• Ensure property transactions are conducted in a timely, cost-effective manner
• Ensure a best practice, commercial outcome in all property transactions”

(As revised by Mr Boots mid-2014)

“• To provide appropriate property related market advice that provides for inform decision-making on property transactions
• To undertake appropriate financial and commercial analysis (including provision of recommendations) that provides for informed decision-making on property transactions
• To support the balance of meeting Western powers operational property needs against the need to minimise the costs of holding property
• Manage the expectations of internal and external stakeholders through timely action on property transactions”

“Key accountabilities”

(At redeployment October 2013)

“• Manage a range of individual property transactions which include but are not limited to the acquisition of easements for transmission and distribution lines
• Provide consultancy services on all property related matters affecting Western Power, including compensation matters, assessment of property damage, rezoning and subdivision
• Coordinate liaise with landowners and stakeholders during project negotiations, planning and construction in order to secure interests in relevant property
• Follow all processes and legislative requirements associated with the acquisition, retention and disposal of properties and property interests
• Contribute to and support the planning, budgeting and reporting processes
• Contribute to and support enterprise risk management
• Contribute to and support the safety, health, environment and community programs”

(As revised by Mr Boots mid-2014)

“• Undertake detailed commercial and financial analysis (including net present value and internal rate of return calculations, market analysis and risk identification and mitigation) and present recommendations on property related transactions that provide for inform decision-making
• Undertake sensitivity analysis, cost/benefit analysis and option analysis (including preparation of findings and recommendations) on property related transactions that provide for inform decision-making.
• Negotiate lease and license agreements on Western Power property assets to achieve financially and commercially acceptable outcomes
• Prepare high-quality business cases and decision sheets on property related transactions
• Facilitate the transactional processes associated with the acquisition or disposal of property
• Negotiate with internal and external stakeholders to secure interests including easements required by Western Power
• Liaise with internal stakeholders including land access, safety, and line relocations to ensure both internal and external enquiries are handled in a professional manner and that the interests of Western Power protected
• Contribute to and support enterprise risk management
• Contribute to and support the safety, health, environment and community programs”

“Work experience/knowledge”

(As revised by Mr Boots mid-2014)

“• Significant and demonstrated experience in property analysis and financial evaluation” (Underlining added).

[25] The underlined extracts of the revised position description above demonstrate that Mr Boots made a number of changes to the Property Specialist position description to introduce an emphasis on financial and commercial analysis which was not present in the position description when Mr Vernon was redeployed in October 2013.

[26] Mr Butler’s evidence was that for the period of Mr Vernon’s employment as a Senior Property Officer between 2006 and when Mr Butler left in September 2013 his role did not require him to undertake any commercial or financial analysis or provide commercial reports on the acquisition or disposal of land or property. Microsoft Excel was used by Mr Vernon but only in a limited way such as a database of properties and any Microsoft Excel training was generic. 10

[27] Mr Boots’ evidence was that at the time he took over the role in March 2014 there were six persons employed as Property Specialists, including Mr Vernon, and whilst these team members were all classified as Property Specialists their functions were quite different as they had different skill sets.

[28] Mr Whittleston along with Mr Vernon was a Senior Property Officer until being transferred into the position of Property Specialist in 2013. His evidence which I accept is that it was not the role or responsibility of the Senior Property Officer, whether undertaken by himself or Mr Vernon, to do any commercial or financial analysis or provide commercial reports on the acquisition or disposal of land or property. Mr Whittleston agreed the Property Specialist position description now includes a requirement to undertake financial and commercial analysis. He says he received no training nor did he have any experience in doing this. He says he has now attended meetings where discounted cash flows and asset disposal models have been discussed but he has not been required in his role as Property Specialist to create or provide a discounted cash flow or asset disposal model or to provide net present value or internal rate of return calculations or any other form of financial or commercial analysis nor has he been required to write a commercial report for the acquisition or disposal of any land or property. Mr Whittleston is aware that Mr Vernon in the new Property Specialist role was being required to write commercial reports that included asset disposal models and discounted cash flows in the form of Microsoft Excel spreadsheets as part of the financial and commercial analysis in those reports.

[29] Western Power’s performance appraisal system is known as “Strive”.

[30] Strive Goal Planning and Reviews are conducted on a yearly basis for all employees.

[31] Mr Vernon completed his Strive self-assessment for the 2013/2014 financial year in late June 2014.

[32] Mr Vernon met with Mr Boots his Team Leader to discuss his performance on 3 July 2014.

[33] Mr Vernon had assessed his own performance on various criteria as meets or exceeds expectations. Mr Vernon did not identify any areas in which he felt he was struggling or required training or assistance.

[34] Mr Vernon’s self-assessment aligned with Mr Boots’ assessment of his performance on a number of criteria. However, there were also a number of differences, including that Mr Boots had assessed Mr Vernon’s performance in some areas as requiring development.

[35] Mr Vernon was given an overall Strive review rating of “Meets Expectations” by Mr Boots. Mr Vernon’s Strive rating underwent a moderation process and his final overall rating changed to “Development Required”.

[36] A grievance was lodged by the ASU on 2 September 2014 in relation to Mr Vernon’s final Strive rating. Following a meeting on 15 September 2014, there was no further escalation of the dispute by Mr Vernon or the ASU. As a result, the respondent considered it resolved.

[37] Around the same time a number of other issues arose involving Mr Vernon, which were of concern to Western Power. A meeting was held on 20 October 2014 to identify whether the issues were performance related or misconduct and to provide Mr Vernon with a formal opportunity to provide an explanation for what had occurred. Ultimately no further action was taken regarding these matters by Western Power.

[38] On 24 October 2014, Mr Vernon was advised he would be placed on a Performance Improvement Plan (PIP) to improve his performance. However, as Mr Vernon was due to take annual leave, the PIP was to commence after Mr Vernon returned.

[39] On 6 November 2014 Mr Boots provided a copy of the PIP to Mr Vernon. That PIP identifies various types of “support” that will be provided for each area of improvement required. For the area of improvement identified as “Verbal and written communication” one of the supports listed is “External business writing course”. For the area of improvement identified as “Financial and commercial analysis skills” one of the supports listed is “External Excel training course”.

[40] On 10 November 2014, the respondent received a grievance from the ASU, on behalf of Mr Vernon, in relation to the implementation of Mr Vernon’s PIP. After a meeting with Mr Vernon and the ASU on 11 November 2014, no further steps were taken by Mr Vernon to escalate the grievance.

[41] At one meeting in December 2014 with the ASU and Mr Vernon where the PIP was discussed Mr Boots made a comment to the effect that if Mr Vernon’s role was advertised he would probably not have got the job. Mr Boots acknowledges this comment was inappropriate and he apologised afterwards to Mr Vernon for making this comment.

[42] Mr Vernon had early on in dealing with Mr Boots about his performance explained he did not have high level skills in using Microsoft Excel and had requested training in this. 11 The evidence is that whilst Mr Vernon had previously used Microsoft Excel he had limited understanding of its functionality and had in the past only used it as a basic tool to record data in tables. Mr Vernon was not competent in setting up calculations and formulas within Microsoft Excel which would automatically manipulate data throughout a spreadsheet. Mr Vernon had undergone Microsoft Excel training in 2009/2010.

[43] In mid-December 2014 Mr Vernon attended an external intermediary Microsoft Excel course at his request however he did not complete the course on this day because he found the level at which the training was targeted to difficult.

[44] Mr Boots’ evidence is that the ability to use Microsoft Excel is a core component of the Property Specialist role as it is a required tool to perform financial and commercial analysis. 12

[45] Mr Boots raised his concerns about Mr Vernon’s lack of Microsoft Excel skills in an email dated 10 December 2014 to Ms Jones-O’Neil explaining that Mr Vernon would now have to undertake an introductory Microsoft Excel course as follows:

“…given Kevin’s requirement to learn basic excel reaffirms his inability to undertake the primary components of the Property Specialist role as he is unable to undertake base level financial analysis and therefore cannot undertake commercial analysis which is required for the Property Specialist role.” 13

[46] Mr Vernon did not receive this base level Microsoft Excel training until 2 months later.

[47] Throughout November, December and January Mr Vernon was provided with significant direction, advice, coaching and feedback by Mr Boots to assist him in improving his performance to the required standard. Much of this Mr Vernon referred to as critiquing which involved Mr Boots returning work he had been done, including emails or draft reports, spreadsheets, or calculations with detailed corrections and accompanying explanations as to why Mr Boots had made the particular changes he had. 14

[48] Under the PIP, Western Power formally met with Mr Vernon on a fortnightly basis to determine if progress was being made. These meetings were attended by Ms Jones-O’Neil. This was in addition to the one on one meetings Mr Boots had with Mr Vernon regarding his work as required.

[49] A formal PIP review meeting was held on 15 January 2015. This meeting had initially been scheduled for 19 December 2014 but had been delayed by agreement due to Christmas and work commitments. It was explained to Mr Vernon at this meeting that there remain significant performance issues he needed to address.

[50] In early February 2015 Western Power assessed that despite a significant amount of time and resources devoted to assisting Mr Vernon since October 2014, Mr Vernon’s improvement was limited and he was still performing below the required standard.

[51] Mr Vernon was directed to attend a disciplinary meeting to discuss his failure to meet the agreed PIP requirements. This was held on 9 February 2015. Mr Cecchini of the ASU attended as Mr Vernon’s support person. At the meeting, Mr Vernon was advised that his performance remained significantly below what was expected of a Property Specialist.

[52] Mr Vernon was advised that a rating of “Significantly below expectations” had been determined for: verbal and written communication, situational analysis, financial and commercial analysis and time management.

[53] During the course of this meeting Mr Vernon highlighted that there were three significant pieces of work outstanding which Mr Boots should assess before reaching a conclusion about his work overall. It was then agreed that before Western Power made a decision on consequential disciplinary action Mr Boots would review three additional pieces of Mr Vernon’s work.

[54] Mr Vernon then attended another Microsoft Excel training course, this time a beginner’s course, on 10 February 2015. Mr Boots had recognised that Mr Vernon could not perform basic Microsoft Excel functions such as creating a new column in a spreadsheet despite having previously received some Microsoft Excel training in 2009. 15

[55] Mr Vernon next attended a report writing course on 17 February 2015.

[56] On 20 February 2015, Mr Vernon attended a second disciplinary meeting with Mr Boots and Ms Jones-O’Neil. Mr Gerald Upham (Mr Upham) of the ASU attended as Mr Vernon’s support person.

[57] This was a follow up meeting to the 9 February 2015 meeting. There was a general discussion about Mr Vernon’s performance including his efforts on the three additional pieces of work that had been raised during the 9 February 2015 meeting.

[58] Following the meeting, Mr Vernon was issued with a formal written warning in relation to his unsatisfactory performance based on the body of work undertaken to date. 16

[59] The warning letter dated 20 February 2014 advised that:

“a. significant improvement was required in the areas of written and verbal communication, financial and commercial analysis, and time management;

b. the PIP process would be continued for a further 2 week period to provide Mr Vernon with a further opportunity to demonstrate improvement; and

c. a failure to satisfactorily address those matters may result in disciplinary action up to and including the termination of Mr Vernon’s employment at the conclusion of the two week period.”

[60] A few weeks later in early March 2015 Mr Boots’ assessment was that Mr Vernon had not demonstrated sufficient improvement despite the training and support he had been provided over a lengthy period. This was imposing time demands on Mr Boots as he had to attend to Mr Vernon’s work.

[61] In his evidence Mr Boots singles out Mr Vernon’s inability to understand and perform the financial analysis aspects of his role as being the critical issue. 17 Mr Boots’ evidence which I accept is that Mr Vernon would make incorrect assessments which if not corrected could have been very costly to Western Power.

[62] On 9 March 2015 Mr Boots made a recommendation to terminate Mr Vernon’s employment. This recommendation, including the PIP process and Mr Vernon’s work, was reviewed by Mr Hobbs as the Head of Property who supported the recommendation.

[63] On 18 March 2015, Mr Vernon attended a meeting with Mr Boots and Ms Jones-O’Neil. Mr Upham of the ASU attended as Mr Vernon’s support person. Mr Boots advised Mr Vernon that his performance in his role remained substantially below that required in core competencies including communication, financial and commercial analysis and time management. Mr Boots provided an opportunity for Mr Vernon to put forward any mitigating circumstances that should be taken into account. Mr Vernon responded and advised that he had not previously been required to undertake commercial and financial duties in his role as Senior Property Officer. Having considered all the circumstances, including Mr Vernon’s response, the significant training and support provided to Mr Vernon to enable him to perform these duties, that Mr Vernon had been in his current role for approximately 18 months, and the substantially similar duties between the Property Specialist and Senior Property Officer roles, Mr Boots advised that the respondent considered it had no option but to terminate Mr Vernon’s employment.

[64] Mr Vernon’s evidence was that he was performing his job to the best of his ability. His evidence was that he was not however able to meet the requirements for commercial and financial analysis and business case writing that was added to the role after Mr Boots was appointed. 18

[65] I find then that Mr Vernon at the time he was dismissed was not performing to the standard expected in the role of Property Specialist and the deficiencies Mr Boots identified in this regard had been ongoing for an extended period.

Submissions

The applicant

[66] The essence of the submissions for the applicant are that when he was redeployed in 2013 to the Property Specialist role he did not have experience in all aspects of the new role and so had not developed all of the required skills to properly discharge all his duties and upon being redeployed he was not provided with appropriate training to ensure he could develop these skills.

[67] The applicant also submits that the dismissal was largely predetermined by Mr Boots as early as October 2014 which was well before the performance improvement process was implemented.

[68] Finally it is submitted that there was no appropriate training provided to allow Mr Vernon to address the areas of underperformance that Mr Boots identified prior to the termination.

[69] In all those circumstances the dismissal of Mr Vernon was unfair.

The respondent

[70] The respondent submits the reason for the dismissal was the applicant’s failure to perform to the standard expected in the role of Property Specialist P2, specifically the failure to reach the required level of competence in the areas of verbal and written communication, situational analysis, commercial and financial analysis, and time management. These performance issues were communicated to the applicant and extensively documented.

[71] The respondent says Mr Vernon’s inability to perform the requirements of his role in accordance with his position description had a significant effect on the respondent as it diverted Mr Boots’ time and resources away from his role and his team resulting in delays to work being completed across the Property Team. In addition, the errors being made by Mr Vernon had the potential to cause financial detriment to the respondent given his work dealt with the acquisition and disposal of property.

[72] It is submitted Mr Vernon was aware that his performance was not to the required standard as early as August 2014 when he received a development required Strive rating on his 2013/2014 performance review.

[73] The respondent contends Mr Vernon was given opportunities to respond to the position being adopted by the respondent throughout the entire performance management process, including in meetings on 9 and 20 February 2015 in which the applicant was advised that his performance was significantly below expectations in certain areas.

[74] The applicant was also afforded an opportunity to respond to the reasons for termination at the meeting on 18 March 2015.

[75] Mr Vernon was put on a PIP in November 2014 following ongoing performance issues being identified between June and October 2014, the development required rating in the Strive review in August 2014, and other incidents which highlighted the applicant’s inability to perform the requirements of his role as Property Specialist to the standard required.

[76] On multiple occasions during the performance improvement process, Mr Vernon was advised both verbally and in writing that his performance continued to be below the required standard, including at the disciplinary meetings of 9 and 20 February 2015.

[77] It is submitted Mr Vernon was dismissed following a significant and comprehensive performance management process in which he was given every opportunity and support required to succeed in improving his performance. Despite these efforts Mr Vernon failed to demonstrate any significant improvement.

[78] The respondent considers there was nothing further it could have done to assist the applicant and by 18 March 2015, it had no other option than to end the applicant’s employment with notice. In the circumstances the dismissal was neither harsh, unjust or unreasonable.

The legislation

[79] Section 387 of the Act set out below identifies those matters the Fair Work Commission must have regard for when considering whether in this case the dismissal of Mr Vernon was harsh, unjust or unreasonable.

“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

[80] I am satisfied that Mr Vernon had not been performing to the standard expected in the role of Property Specialist for an extended period leading up to his dismissal. This was a valid reason for Mr Vernon’s dismissal.

Notification of the reason for dismissal

[81] Mr Vernon was notified of the reasons he was ultimately terminated for when he received a written warning regarding his performance on 20 February 2015 and he had been made fully aware during the PIP of the specific concerns Western Power had about his performance.

Opportunity to respond to the reasons for dismissal

[82] Throughout the PIP Mr Vernon had an opportunity to respond to the reasons he was ultimately dismissed for and during the disciplinary meetings on 9 and 20 February 2015 he had a specific opportunity to put his case in response to his employer’s concerns.

[83] Finally Mr Vernon was also afforded an opportunity immediately prior to being dismissed at the meeting on 18 March 2005 to put any views to the respondent about the complaint the respondent had about his performance.

Support person

[84] There was no refusal by Western Power to allow Mr Vernon to have a support person present during any discussions relating to his dismissal.

Warnings about unsatisfactory performance

[85] Mr Vernon was unambiguously warned at disciplinary meetings on 9 and 20 February 2015 that his employment was at risk.

Size of the employer and human resources expertise

[86] The respondent is a large enterprise with dedicated human resource specialists and the procedure followed was consistent with that and appropriate.

Other matters

[87] Mr Vernon had been employed since 2006.

[88] Mr Vernon experienced two changes which impacted on his position at Western Power and ultimately have led to him being dismissed.

[89] The first was the redeployment initiated by Western Power as a result of the restructure the business undertook. Western Power for its own business interests, which it is quite entitled to do, reviewed its operations and elected to make Mr Vernon’s position redundant. Western Power offered Mr Vernon a redeployment which he accepted. The impact on Mr Vernon was limited and Mr Vernon when redeployed in October 2013 continued to do the same work he had been doing as a Senior Property Officer in the new role of Property Specialist.

[90] Western Power had no complaints with Mr Vernon’s work in the new role of Property Specialist for the next 7 months, between October 2013 and May 2014. 19

[91] The second change was in March 2014 when Mr Boots became Mr Vernon’s Team Leader and in around June 2014 revised the Property Specialist position description. This revision included inserting a new requirement to undertake “property analysis and financial evaluation”. This has commonly been referred to as “commercial and financial analysis” in these proceedings. The central criticism Mr Boots had with Mr Vernon’s performance was his inability to understand and perform the financial analysis aspects of his role which effectively was this new requirement added to the position description in June 2014. 20 Whilst Western Power list other deficiencies in their letter of dismissal these were peripheral to this criticism which it is clear was the critical failing the employer acted on.

[92] Whilst I accept Western Power was entitled to adjust the position description of Property Specialist as it did it also had an obligation to ensure that employees who were already Property Specialists were provided with training and skill development as they might individually require to meet any new requirements the position description changes imposed upon them.

[93] I do not accept that the Microsoft Excel training from 2009/2010 should be viewed as having equipped Mr Vernon for the new requirement to undertake commercial and financial analysis work. The fact Western Power recognised in the PIP that he needed training support in Microsoft Excel counters this argument. That training, in 2009/2010, met his needs up until May 2014 but not beyond this when what his employer expected of him changed. 21

[94] The PIP from 6 November 2014 22 had identified that support would be provided to Mr Vernon in the form of him attending an external Microsoft Excel training course and an external business writing course. The Microsoft Excel training course however was not provided until December 2014 and this intermediate course proved to be at a level beyond Mr Vernon’s abilities and his training had to be rescheduled for a beginner’s course at an even later date, 10 February 2015, meanwhile the business writing training was not provided until 17 February 2015.

[95] So Western Power having acknowledged that Mr Vernon required support in the way of training in Microsoft Excel and business writing courses did not provide these for him for 3 months. Over that period Mr Vernon was subject to the PIP and was repeatedly being assessed by Mr Boots as not performing satisfactorily. Mr Boots was providing direction and one-on-one guidance to Mr Vernon including about various matters using Microsoft Excel however he only seems to have realised towards the end of this period that Mr Vernon’s skills in Microsoft Excel were undeveloped notwithstanding the training need had been expressly identified in the PIP from the outset. In his own statement Mr Boots says this,

“On 10 February 2015, Kevin attended an external beginners excel training course as part of the PIP. Kevin was on the beginners course as he could not perform basic excel functions such as creating a new column despite having previously completed an excel training course in 2009. I found it difficult to understand how someone in the role Kevin held now or previously working in the acquisition and disposal of property could not have basic excel skills.” 23

[96] Whilst Mr Boots might have been surprised by this the facts of the matter are that up until May 2014 Mr Vernon had worked in the role of Property Specialist for 7 months without there being any complaints about his performance and prior to that since 2006 he had worked in the role of Senior Property Officer without any complaint from Western Power about his performance.

[97] Mr Vernon’s Microsoft Excel skills, as limited as they were, had always previously been adequate for him to perform his job well. This fact is indicative of how significant the revisions to the position description of Property Specialist made by Mr Boots were. Neither Mr Boots nor Mr Hobbs seemed to have appreciated the significance of the change made to Mr Vernon’s role. Mr Vernon had been satisfactorily undertaking this role and the similar prior role since 2006 but was now viewed as being wholly deficient in his performance. This was largely a result of the new emphasis on providing commercial and financial analysis something unfortunately which was beyond Mr Vernon’s ability.

[98] Mr Boots and the Human Resource Advisors having identified that part of Mr Vernon’s performance deficiency was his lack of skills in report writing and Microsoft Excel did not ensure the training was provided promptly and he attended these training courses only five weeks before he was dismissed. Whilst the delay for the Microsoft Excel course was because Mr Vernon needed to do the beginner’s not the intermediate course the PIP and disciplinary process continued on without consideration for the delay in the delivery of either training course. Mr Vernon was disadvantaged in my view by the delay in providing this training and Western Power failed to recognise this in their decision to dismiss him. The evidence is that part of the decision to dismiss was based on the belief that Mr Vernon had been underperforming for many months however most of this period was before he received the training Western Power had recognised he needed. Indeed the first disciplinary meeting was held on 9 February 2015 before Mr Vernon attended either training course. It was not reasonable to discipline him in those circumstances.

[99] If Mr Vernon had for example received the training he needed soon after November 2014 when the need had been identified he would have had many more weeks to apply what he had been taught in practice and may also have been able to better understand and to benefit from the one-on-one coaching he received from Mr Boots. There can be no certainty that if this had happened he would have achieved a satisfactory level of performance however he would then have been given a fair go to try to achieve this.

[100] The evidence is also that it is Mr Vernon alone amongst the Property Specialists who had been required to undertake this problematic commercial and financial analysis. Mr Whittleston for example who was similarly redeployed in October 2013 has not been required to undertake this work under the revised position description for a Property Specialist. Had other Property Specialists also been required to now undertake commercial and financial analysis and if some had also perhaps struggled with this work the issue may have been viewed differently with more focus on the new expectations for Property Specialists rather than the underperformance of one individual.

[101] The circumstances were that Western Power unilaterally changed Mr Vernon’s role and rightly recognised some training was required. That training was expressly to deal with verbal and written communication shortcomings and commercial and financial analysis shortcomings both of which were identified as reasons for his dismissal by Western Power. However neither training course was provided until 4 or 5 weeks before his dismissal which disadvantaged Mr Vernon in meeting the performance standards required of him and this mitigating fact was overlooked by Western Power when making the decision to dismiss. In addition Mr Vernon alone of the Property Specialists was required to meet the challenge of the changes to the role. Mr Vernon had been working in Western Power since 2006 and had an unblemished work record prior to the above events. In these circumstances the decision to dismiss Mr Vernon was unreasonable.

[102] My decision is that Mr Vernon has been unfairly dismissed.

Remedy

[103] The matter will be listed for further evidence and submissions on the issue of remedy under sections 391 and 392 of the Act.

COMMISSIONER

Appearances:

G Upham of the ASU applicant.

B Robinson of Allion Legal for the respondent.

Hearing details:

2015.

Perth:

October 28 and 29.

Final written submissions:

Applicant, 12 November 2015.

Respondent, 5 November 2015.

 1   Exhibit A3.

 2   Exhibit R3, Attachment AB3 at page 16.

 3   Exhibit A2.

 4   Exhibit A5 and Exhibit R3, Attachment AB1. See also Transcript at PN75.

 5   Transcript at PN63.

 6   Exhibit R3 at paragraph 13.

 7   Transcript at PN1291 to PN1308 and Exhibit A4.

 8   Transcript at PN78.

 9   Ibid., at PN80.

 10   Ibid., at PN738 to PN740.

 11   Ibid., at PN1312.

 12   Exhibit R3 at paragraph 78.

 13   Ibid., Attachment AB24.

 14   Ibid., Attachments AB23A to AB23L, AB25J to AB25k.

 15   Ibid., at paragraph 90.

 16   Ibid., at Attachment AB 37.

 17   Ibid., at paragraph 103.

 18   Transcript at PN602.

 19   Exhibit R3 at paragraph 13.

 20   Ibid., at paragraph 103.

 21   Transcript at PN738 to PN740.

 22   Exhibit R3, Attachment AB16.

 23   Ibid., at paragraph 90.

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