Michael Rigaldi v Panoramic Resources Limited
[2012] FWA 4140
•18 MAY 2012
[2012] FWA 4140 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Rigaldi
v
Panoramic Resources Limited
(U2011/10396)
COMMISSIONER WILLIAMS | PERTH, 18 MAY 2012 |
Termination of employment.
[1] This matter involves an application made by Mr Michael Rigaldi (the Applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The respondent is Panoramic Resources Limited (the Respondent).
[2] The application was the subject of a conciliation conference with a Fair Work Australia Conciliator however the matter was not resolved and has been referred to myself for determination.
Background
[3] The Applicant was first employed in May 2008 as a Storeman at the Lanfranchi Nickel Mine. He was dismissed on 21 July 2011.
[4] At the hearing of this matter Mr Rigaldi was self represented and gave evidence on his own behalf.
[5] The Respondent was represented by Mr Cameron from the Australian Mines and Metals Association. Seven witnesses employed by the Respondent gave evidence in support of the Respondent’s case. These were Ms E. Johnston Administration Environmental Officer, Ms W. Price Purchasing Officer, Mr A. Wittorff Purchasing Manager, Mr A. Craig Maintenance Supervisor, Mr R. Thorburn Operations Manager, Mr A. Math Finance Manager and Mr S. Clark IT Manager.
The Applicant’s case
[6] Mr Rigaldi argues that his dismissal was unfair from a number of reasons in particular because:
1. At times his Supervisor spoke to him in an unacceptable manner and engaged him in a heated argument;
2. He had been asked by a company employee to attend a tribunal hearing regarding a dismissed employee which would have involved him lying before the tribunal;
3. He was told by a fellow employee that this employee had been asked by his Supervisor to set up Mr Rigaldi to lose his job;
4. He was moved from his room at the site accommodation camp, where he had been for over three years, to another room with no bathroom shower or running water;
5. He was constantly spoken down to and felt his job was under threat which brought on an anxiety attack;
6. He approached the Operations Manager about these issues but they were not acted upon;
7. His work internet access was cancelled without notice and without explanation; and
8. On his second last day of work he was given his first and only written warning for leaving a store’s cabinet open.
[7] Mr Rigaldi’s evidence in support of his case addressed the above complaints but in some instances with little detail.
The Respondent’s case
[8] The Respondent submits that the evidence of the company’s witnesses regarding Mr Rigaldi paints a compelling picture of an employee who was performing at an unacceptable level in every facet of his work.
[9] The Respondent says the evidence demonstrates that Mr Rigaldi also spent a large amount of time using his computer for non work related activity including receiving pornographic emails.
[10] In addition he would often not open emails that were work related even those from his immediate superior.
[11] Mr Rigaldi was also regularly away from his post and left the store area he was responsible for unlocked and unsecured.
[12] Mr Rigaldi was not properly recording the movements from the store such as parts and material and this caused problems for the Respondent leading to unnecessary downtime of equipment or other consequential costs for the Respondent.
[13] The Applicant’s original accommodation at the site camp was withdrawn because he would not keep it in a fit and proper state for the other employees who would use the room in his absence.
[14] The Applicant had been spoken to and counselled about these matters on a number of occasions but had not improved his performance.
[15] The Applicant’s unsatisfactory performance was a valid reason for his termination.
[16] The Respondent submits that an appropriate process of interviewing the Applicant prior to making the decision to terminate was conducted and the dismissal was procedurally sound.
Consideration
[17] It is not necessary to go through every aspect of the oral evidence and the witness statements that were provided to the Tribunal in the hearing of this application.
[18] Having considered the evidence I do accept that as Mr Rigaldi complains that at times his superiors spoke to him in an inappropriate manner and that there was one heated argument. However this is not to accept that Mr Rigaldi was a blameless in this at all.
[19] Having said that I accept the evidence of Mr Rigaldi that he raised his concern about the manner in which he was spoken to by staff with the Operations Manager the evidence is however that no action was taken about this. In the circumstances I agree with Mr Rigaldi that the Respondent’s management should have dealt with this issue appropriately notwithstanding any views they had that other staff were speaking inappropriately to Mr Rigaldi out of frustration with his poor performance which was causing them difficulties.
[20] Mr Rigaldi did not elaborate on his assertion that he had been requested by a company employee to attend a tribunal hearing regarding a past employee and assumedly lie on behalf of the Respondent. Consequently I make no finding about this assertion. In any event Mr Rigaldi has not argued that these events were somehow related to the decision to dismiss him.
[21] I am not satisfied that the evidence supports Mr Rigaldi’s assertion that his Supervisor was setting him up to lose his job even if indeed that is what another employee had told Mr Rigaldi.
[22] I accept that Mr Rigaldi may well have felt for an extended period that his job was under threat however this largely was because his performance had been criticised by the Respondent’s management and as the evidence demonstrated for good reasons.
[23] In terms of being moved to a another room in the camp I accept the evidence of the Respondent’s witnesses that this only followed a process where Mr Rigaldi had been advised that when he was not on site his room would be used by another employee and so he was required to leave it in a neat and tidy state before he left site. On a number of occasions when he left site his room was left in an inappropriate state causing disruption for other employees and the camp management. He was spoken to about this by the Respondent and when it became apparent that he was not willing to improve his performance in this regard he was moved to another room of a lesser standard. I accept that Mr Rigaldi brought this upon himself. What is of significance in terms of this application is that these events all occurred quite some months prior to the decision to terminate him however they did form part of the background that led the employer to make the decision to terminate him.
[24] Turning to the Respondent’s evidence regarding Mr Rigaldi’s performance there is no doubt that around 25 January 2011 Mr Rigaldi was required to attend a meeting with Mr Thorburn, Mr Wittorff and Mr Doig, the Senior Mine Engineer. The issues discussed in that meeting were documented in a letter of the same date by Mr Thorburn which was provided to Mr Rigaldi.
[25] That meeting focused specifically on performance concerns the Respondent had regarding Mr Rigaldi’s management of the store. Eleven particular issues were raised with respect to receiving stock, seven particular issues were raised with respect to issuing stock and two other general issues were raised with him. The letter set out the expectations of the Respondent with respect to all of these issues.
[26] The letter explained that a simple procedure has been set up for store people to follow regarding the receiving and issuing of goods and the procedure was to be followed properly and the letter reinforced that the accurate control of stores is important for proper control.
[27] The letter explained that the receiving and issuing of store items and the accurate control of the store is a fundamental part of Mr Rigaldi’s work and any deviations by him would be considered very seriously.
[28] The letter explained that over the next three weeks Mr Thorburn would be reviewing his work performance and if there was no improvement disciplinary action would be taken.
[29] The evidence of Mr Thorburn is that it was subsequent to this January meeting, in April 2011, that the difficulties with Mr Rigaldi not leaving his accommodation in an acceptable standard of tidiness when he left site arose.
[30] Following this there was a meeting on 19 May 2011 with Mr Thorburn, Mr Rigaldi and the Respondent’s HR Manager Ms Ram. That meeting discussed Mr Rigaldi’s complaint about his accommodation and what had occurred. The evidence is that he was advised that his behaviour and conduct was not acceptable. Separately that meeting also reinforced that his performance in terms of following directions from his Supervisor and properly receiving and issuing stock in accordance with the Respondent’s requirements was still unsatisfactory and if this was not improved it may lead to further disciplinary action.
[31] There is further evidence, which I accept, that in early July 2011 Ms Price issued the Applicant with a written warning for leaving the lifting cupboard unlocked. Further there is evidence, which I accept, that following this meeting, on around 20 July 2011, another employee reported in writing that the registered lifting gear cupboard had been left open by Mr Rigaldi and that Mr Rigaldi had provided open access to maintenance staff to get their own parts from the store.
[32] I accept the evidence of Mr Thorburn regarding the meeting held with Mr Rigaldi and Ms Ram on 21 July 2011 which culminated in Mr Thorburn’s decision to dismiss Mr Rigaldi.
[33] The evidence of the five Respondent’s witnesses who at times worked on site at the mine was quite damning in terms of the unsatisfactory work performance of Mr Rigaldi. These witnesses were cross-examined and were unshaken in their complaints and criticisms of Mr Rigaldi. I accept their evidence as to the poor performance generally of Mr Rigaldi over an extended period.
[34] Considering all of the above evidence I find that for an extended period leading up to the time of his dismissal Mr Rigaldi was not properly carrying out his duties at all, his performance was highly unsatisfactory and causing significant problems for other employees at the site and also causing unnecessary costs and losses to be incurred by the Respondent.
[35] With respect to the alleged misuse of the email system by Mr Rigaldi it is not clear from the evidence what if any policy the Respondent has about using email for private purposes at work. Separately the evidence of the email records of Mr Rigaldi implicates a number of other employees of the Respondent as being the senders of emails which include self-evidently inappropriate content such as pornography.
[36] Consequently it is not correct to characterise Mr Rigaldi’s email usage as being contrary to the Respondent’s policies. However the high volume of non work related emails that Mr Rigaldi was receiving, viewing and sending reinforces the findings above that Mr Rigaldi was simply not giving proper attention to his work responsibilities in general.
The legislation
[37] Section 387 of the Act details what matters the Tribunal must take into account when considering whether or not the dismissal of Mr Rigaldi was harsh, unjust unreasonable. This provision is set out below.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[38] In this case I do accept that there was a valid reason for Mr Rigaldi’s dismissal related to his conduct that being his poor performance over an extended period of time.
[39] Mr Rigaldi was advised of the reason he was ultimately dismissed for during the meeting held with him on 21 July 2011. During that meeting he was provided with an opportunity to and did respond to the issues raised by the Respondent which were the reasons relied upon by the Respondent for his dismissal.
[40] There was no refusal by the Respondent to allow Mr Rigaldi to have a support person present during those discussions.
[41] The evidence is clear that in January 2011 and again in May 2011 in formal meetings with Mr Rigaldi he was warned about his unsatisfactory performance and further in July 2011 Ms Price gave Mr Rigaldi a written warning for leaving the lifting cupboard unlocked.
[42] The procedure and process adopted by the Respondent was consistent with the size of the Respondent’s enterprise and also involved the participation of human resource management specialists as was appropriate.
[43] In terms of other matters that are relevant considerations I note the length of service of Mr Rigaldi was just over three years with the Respondent.
[44] Considering all of the above criteria I am not at all satisfied that the dismissal of Mr Rigaldi was either harsh, unjust or unreasonable. In all the circumstances the dismissal of Mr Rigaldi was not unfair and this application will be dismissed.
[45] An order to this effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
M Rigaldi on his own behalf.
A Cameron of the Australian Mines and Metals Associationfor the Respondent.
Hearing details:
2012.
Perth:
March 13.
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