Mohammad Moazzami v West Australian Mechanical Services Pty Ltd T/A West Australian Mechanical Services

[2014] FWC 7118

[2014] FWC 7118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohammad Moazzami
v
West Australian Mechanical Services Pty Ltd T/A West Australian Mechanical Services
(U2014/231)

DEPUTY PRESIDENT MCCARTHY PERTH, 14 OCTOBER 2014

Application for relief from unfair dismissal.

[1] Mr Mohammad Moazzami (the Applicant) lodged an Unfair Dismissal Application (the Application) on 29 January 2014. The Applicant claimed that he had been unfairly dismissed from his employment with West Australian Mechanical Services Pty Ltd trading as West Australian Mechanical Services (the Respondent).

[2] The Applicant had been employed by the Respondent on 21 March 2013 as a draftsman. Initially he was employed on probation for a period of three months. That probationary period was extended to six months.

The Evidence

The Applicant

[3] The Applicant gave evidence. He stated that that the Drafting Manager, Mr Joseph Lowthorpe, had bullied, harassed and discriminated against him. The Applicant stated that the conduct by Mr Lowthorpe included:

● undermining his skills;
● being too picky and searching for mistakes;
● not giving a reasonable timeframe to finish his work;
● deliberately holding up his projects;
● not giving proper instructions;
● not answering technical questions properly; and
● popping up at his back and checking him asking questions about why he is performing the work he was performing and not other (presumably higher priority) work.

[4] The Applicant says that he endeavoured to discuss his concerns with Mr Lowthorpe on 21 November 2013 however there was no clear answer given to him by Mr Lowthorpe. On 27 November 2013, the Applicant approached the General Manager, Mr Daniel Hunt. The Applicant says that Mr Hunt understood the Applicant’s concerns and that he would try and find a way to improve things. The Applicant also says that at that meeting he was not sure how long he could last as Mr Lowthorpe “continues to making hard time for me [him]”. The Applicant says that Mr Hunt suggested that a move to another department by the Applicant might be considered.

[5] The Applicant evidenced that on 2 December 2013, Mr Hunt told him that he had held a meeting with Mr Lowthorpe and was reassured about his employment with the Respondent. A further meeting was held between the Applicant and Mr Lowthorpe and Mr Hunt on 13 December 2013 from which the Applicant became concerned about his future employment.

[6] The Applicant evidenced that on 21 January 2014 Mr Lowthorpe questioned the Applicant about his timesheets. Later that day the Applicant met with Mr Hunt and he was dismissed.

[7] The Applicant asserts that he was not given appropriate training on the software that he was expected to use, that he was given no counselling over his work performance and that he was treated differently to the way that other employees were treated.

The Respondent

[8] Mr Lowthorpe gave evidence and stated amongst other things that:

● During the employment interview with the Applicant it was stressed to him that he would need to work in a team environment and that he would have to comply with the standards used by the Respondent.

● It became evident during the first month of the Applicant’s employment that he would need further training and he was given time off to undertake training.

● In May 2013 the Applicant had accessed and registered company software for his own use without authorisation which resulted in a written warning.

● The Applicant’s probationary period was extended as the Respondent considered more time was needed to assess the Applicant’s suitability and competence including:

• general drawing standards;



• presentation of work;



• information for manufacturing not being included on drawings; and



• drawings for the same project being inconsistent.

[9] Mr Lowthorpe brought drafting errors to the Applicant’s attention but this was poorly received and apparently not accepted as reasonable. It was explained to the Applicant the importance of the issues raised with him. The Applicant was also taken to sites and explained to him what the needs were for clients and installations. It was hoped the Applicant would gain a better understanding of the importance of his work being consistent with the Respondent’s standards and the cost implications if they were not.

[10] Mr Lowthorpe went on leave during November 2013 and a Mr Bognar acted in his place. Concerns were raised by Mr Bognar with Mr Lowthorpe regarding the Applicant’s co-cooperativeness and completion of tasks within the expected timeframes.

[11] When Mr Lowthorpe returned from leave he met with the Applicant. He says that at the meeting on 13 December 2013 it was intended to address the performance issues with the Applicant and to “bring him back on track”. At the meeting Mr Lowthorpe claims the Applicant was difficult and uncooperative. It appeared to him that the Applicant wanted to work independently from the rest of the team. It was agreed at the meeting that he would be given “greater freedom” and timeframes to complete tasks. The Applicant agreed to perform those tasks within the timeframes established. Mr Lowthorpe claimed that despite being given ample time another draftsperson had to be assigned to complete the drawings.

[12] On 20 January 2014 the Applicant handed Mr Lowthorpe a time sheet which Mr Lowthorpe states indicated that “far too much time was spent completing a minor task”. In Mr Lowthorpe’s view since the Applicant was less closely supervised he had been “bludging”. Mr Lowthorpe endeavoured to discuss this with the Applicant on 20 January 2014 however he says that the Applicant would not answer his questions directly and stated that “he will not volunteer for future works, even if it means sitting at his desk doing nothing.”

[13] Mr Lowthorpe discussed this with Mr Hunt who on 21 January 2014 advised him that it had been decided to dismiss the Applicant.

[14] Mr Hunt gave evidence. He confirmed the software registration issue and the decision to continue the Applicant’s employment notwithstanding the misconduct involved.

[15] Mr Hunt stated that Mr Lowthorpe had continually raised concerns with him about the Applicant’s performance. He explained that he regarded Mr Lowthorpe as a very accomplished draftsperson and he expected him to ensure drawings delivered to clients were of the highest standard.

[16] He stated that the Applicant approached him on 27 November 2013 and questioned him about Mr Lowthorpe’s attitude towards him. The discussion went for about 2 and a half hours during which the Applicant raised a range of issues and requested a transfer to another section. Mr Hunt endeavoured to explain to the Applicant that it appeared to him that Mr Lowthorpe was quite supportive of the Applicant. He also explained to the Applicant the reliance he had on Mr Lowthorpe to protect the business interests of the Respondent which included ensuring drawings were of the standard required and completed in a timely manner.

[17] Mr Hunt’s view of the meeting of 13 December 2013 was that Mr Lowthorpe was surprised by the Applicant’s allegations of a personal dislike by him towards the Applicant. Mr Lowthorpe endeavoured to convince the Applicant that there was no personal dislike but in Mr Hunt’s opinion the Applicant refused to accept that as the case and persisted with that view.

[18] Mr Hunt also explained to the Applicant that he was not aware that Mr Lowthorpe’s management style had created any problems with other staff and he believed other staff had a deep respect for him and loyalty to him. Mr Hunt says that the Applicant persisted with his opinion and also added that both Mr Lowthorpe and Mr Bognar were assigning the Applicant work which was demeaning. Mr Hunt states that:

“I asked him [the Applicant] directly what would resolve matters. The Applicant requested that he be left to do the work unsupervised as well as be given more substantial projects to complete. Joe [Mr Lowthorpe] proposed that he work on one of the largest projects we have. I agreed to this on the basis that this would be reviewed as part of a performance review.”

[19] Mr Hunt says that on 21 January 2014 Mr Lowthorpe raised the Applicant’s performance with him and in particular the quality of his drawings work and the timeliness of completing them. After discussing it with a company Director it was decided to dismiss the Applicant.

Consideration and Findings

[20] I accept the evidence of Mr Hunt and Mr Lowthorpe. I consider that their expectations of the Applicant’s capacity and performance were reasonable and consistent with the expectations and performance standards of other persons in a similar position to the Applicant. I also do not accept the Applicant’s allegations about Mr Lowthorpe in any respect. In my view the evidence establishes that Mr Lowthorpe was doing nothing more than ensuring that standards were maintained and that work was performed in a timely manner. Furthermore, I am of the view that Mr Lowthorpe gave the Applicant fulsome opportunity to be aware of, understand the importance of, and comply with the performance standards expected.

[21] In short I consider there was no differential treatment of the Applicant and that the standards and performance expected of him were reasonable. Whilst the Applicant may disagree with those standards it does not justify a failure to comply with them. The Applicant was given explanations of the reasons for the standards and the importance of them to the Respondent. He was also given ample opportunity to meet those standards and comply with them. Unfortunately he did not. It was inevitable in such circumstances and in such an environment that he was dismissed.

[22] I find that there was a valid reason for the Applicant’s dismissal in that his capacity demonstrated by his poor performance did not meet the reasonable expectations and standards required by the Respondent.

[23] The Applicant was notified about the Respondent’s concerns about his performance months before his dismissal and he was given reasonable opportunities to respond to those concerns.

[24] The Respondent did not unreasonably refuse to allow a support person to be present to assist at any discussions relating to the dismissal.

[25] The dismissal was related to unsatisfactory performance by the Applicant and he had been warned about that unsatisfactory performance before the dismissal and indeed given opportunity to improve that performance.

[26] I do not consider that the size of the Respondent’s enterprise impacted on the procedures followed in effecting the dismissal and nor did the absence of dedicated human resource management specialists or expertise.

[27] Taking these findings into account I find that the dismissal was not harsh, unjust, or unreasonable. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

M Moazzami on his own behalf.

D Jones of the Chamber of Commerce and Industry Western Australia for the Respondent.

Hearing details:

2014.

Perth:

August 26.

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