Mr Alan Cheek v ELB Pty Ltd T/A ELB Australia
[2018] FWC 2198
•29 MAY 2018
| [2018] FWC 2198 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Alan Cheek
v
ELB Pty Ltd T/A ELB Australia
(U2018/336)
COMMISSIONER RIORDAN | SYDNEY, 29 MAY 2018 |
Application for an unfair dismissal remedy.
[1] Mr Alan Cheek (the Applicant) lodged an unfair dismissal application against ELB Pty Ltd trading as Electroboard (the Respondent) on 10 January 2018. The Applicant commenced his employment with the Respondent on 29 March 2017. The Applicant was dismissed on 20 December 2017. The Applicant was paid 1 weeks’ pay in lieu of notice.
[2] Leave was granted in accordance with section 596(2) of the Fair Work Act, 2009 (the Act) to allow Mr Tim McDonald from Moray&Agnew Lawyers to represent the Respondent, on the basis that the matter was of sufficient complexity that the appearance of a legal representative would enable the matter to be dealt with more efficiently.
[3] Witness statements were attested to by:
• Mr Alan Cheek 1 (the Applicant);
• Ms Marie Kaliviotis 2 (Director, Electroboard);
• Mr Roger Tiller 3 (Executive Advisor, Electroboard);
• Ms Karen Hawes 4 (Human Resourced Manager); and
• Mr John Elphick 5 (National Sales Manager)
[4] All witnesses were cross examined.
Background
[5] The Applicant was employed as the NSW Project Manager for the Respondent. The Respondent is a contractor who specialises in the installation of audio visual / videoconferencing and IT equipment in Australia and the USA.
[6] It is not in dispute that the Applicant is not jurisdictionally barred from making his unfair dismissal application.
[7] The Applicant was issued with a formal warning letter on 17 November 2017, which stated:
“Dear Alan,
Warning Letter
I am writing to you about your performance and conduct during your employment with ELB Pty Ltd. We note that you commenced permanent employment with us as a Project Manager on 29 March 2017. We further note that your request for flexible working conditions of ‘9 day fortnights until the end of January 2018’ was agreed on 30 June this year.
This letter is a first formal written warning that been precipitated following concerns regarding your performance and conduct; which, has been unsatisfactory and requires immediate improvement.
Alan, examples of your unsatisfactory performance and conduct include:
• Not responding to direction from the Director (your manager);
• Inadequate communication with your manager; particularly in relation flagging critical issues and seeking resourcing guidance.
• Unacceptable project management behaviours i.e. projects not delivered on time and within budget and yet no urgency or escalation demonstrated by you.
• Failing to maintain adequate or relevant communication with key client and project contacts; (this causes a perception that you have an indifferent attitude and an uncaring approach or commitment to both the company and our customers).
• Being frequently unavailable to take telephone calls [without your whereabouts being apparent];
• Arbitrarily not attending the office or making it clear where you are.
After considering the situation it is expected that your performance and conduct improves and specifically that you:
1. Following directions from your manager which at this time is the Director. In her absence or should she be uncontactable then you are to respond in order to the Executive Advisor and the National Manager – Government. (Previous verbal advice that you will report to Paddy Hallinan, National Manager – Government was not correct – your reporting line is unchanged and as set out here).
2. Maintain clear daily communication with your manager on all project matters, particularly issues that relate to meeting project deadlines.
3. Establish and maintain regular contact with client and project staff, and, ensure those communications are captured in each relevant PTS.
4. Update project management data (PTS notes in particular) on a regular basis.
5. Be present and contactable on working days. You are not to leave the office without your manager’s concurrence and having updated both the staff locator and installation ‘schedule’ (you have now been included in the Sydney Project Coordination team as ELB-SydPM1).
Alan, by following the above direct requirements and by drawing on available support from within the company, it is expected your performance will improve to the level considered to be fully satisfactory from this date forward.
It is requested that at mutually convenient times, you meet weekly with the Human Resources Manager to review your progress.
This is your first warning letter. Your employment may be terminated if performance and conduct does not demonstrate improvement over the next four weeks.
If you wish to respond to this formal warning letter please do so by contacting me by phone or by replying in writing.
Yours sincerely
Roger Tiller
Executive Adviser” 6
[8] The Applicant was invited to attend a meeting on 20 December 2017 with Mr Tiller and Ms Hawes. The Applicant was not advised of the nature of the meeting, nor was he advised to bring a support person. The Applicant’s employment was terminated at this meeting by way of a pre meeting prepared and signed letter by Ms Kaliviotis.
[9] It is not in dispute that the Applicant had only been at work for 13 days during the period between 17 November and 20 December 2017 due to the Applicant taking 5 days sick leave and 5 days pre-arranged annual leave.
[10] It is not in dispute that the Applicant was not provided with any allegations in writing on 20 December 2017, nor was he given an opportunity to provide a considered and written response.
Statutory Provisions
[11] The following provisions of the Act are relevant in relation to this unfair dismissal application:
Section 381 Object of this Part
The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.
Section 382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
Section 383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer--one year ending at that time.
Section 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.
Submissions
[12] The Applicant submitted that, prior to receiving a telephone call from the recently appointed Human Resources Manager on 14 November 2017 and the subsequent warning letter on 17 November 2017, he had no idea that his performance was not satisfactory.
[13] The Applicant submitted that he had only been at work for 13 days between his warning and termination and that he had been given no support, training or advice as to how to improve his performance.
[14] The Applicant claimed that he had been bullied and harassed at work via verbal abuse, false accusations and threatening emails. The Applicant also claimed that he had been barred from entering Ms Kaliviotis’ office or from instigating direct verbal communications with her.
[15] The Applicant submitted that any delay in the completion of the projects that he was managing was due to the lack of skilled installation staff across the organisation.
[16] The Applicant submitted that Ms Kaliviotis changed her attitude towards him virtually overnight where the Applicant went from being the “golden boy” to being on the outer, where Ms Kaliviotis made it very clear that she “wanted me out.”
[17] The Applicant submitted that he was not given the opportunity to respond to any direct allegation prior to being dismissed. Further, that he was handed his termination letter at the start of the meeting on 20 December 2017, therefore his termination was pre-ordained.
[18] The Respondent submitted that the Applicant’s on-going performance provided a valid reason for his termination. Further, that the Applicant was given an opportunity to respond to the reasons for his termination as well as having been provided with a written warning letter in relation to his poor performance some 5 weeks prior to his termination.
[19] The Respondent submitted that the Applicant’s performance did not only not show any signs of improvement following the provision of the warning letter, the Applicant’s performance deteriorated to the point where the Applicant’s colleagues believed that the Applicant just did not care anymore and displayed an ostensibly blasé attitude.
[20] The Respondent submitted that the Applicant’s termination was not harsh, unjust or unreasonable.
Consideration
[21] The boundaries of the conduct which falls within the phrase of “harsh, unjust or unreasonable” was explained by McHugh and Gummow JJ in Byrne v Australian Airlines 7where they said:
“128. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[22] In Australia Meat Holdings a Full Bench of the AIRC held, when referring to the extract from Byrne:
“The above extract is authority for the proposition that a termination of employment may be:
• unjust, because the employee was not guilty of the misconduct on which the employer acted;
• unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
• harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.” 8
[23] I now turn to my consideration of each of the criteria identified in section 387 of the Act.
Section 387(a) valid reason
[24] In Selvachandran v Peterson Plastics Pty Ltd 9it was held:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.”
[25] Following the issuing of the warning letter on 17 November 2017, the Applicant was required to meet with Ms Hawes on a weekly basis. I note that these meetings only occurred on two occasions due to the Applicant taking a week of annual leave and a week of personal leave. I have taken into account that the only advice that Ms Hawes gave the Applicant during these meetings was to “repair his relationship with the Director”. Ms Hawes claimed that providing advice to the Applicant in relation to his warning letter was not her role.
“PN1195 Did you at any time give me advice on what I could do to address these issues?---I believe, from memory, we spoke of where the issues - that you did not have a good working relationship with the director, and I asked you what you were going to do to try and address that.
PN1196 But did you actually give me any advice on what I could do?---No, I don't believe that's my role.” 10
[26] The Applicant claims that he was not given any valid examples of how he was underperforming so he simply continued to work to the best of his ability in the same manner as before he received his written warning. I have taken this into account.
[27] I have taken into account that the Applicant accepted that as project manger, he was responsible to oversee the whole project, including the necessary oversight and completion of the relevant and necessary documentation.
“PN174 Yes?---The coordinator's role would be scheduling of staff, also contacting and driving quite small projects and also the booking of accommodation, and such. Also the project coordinators at times raised any - not purchase orders, but variations with equipment that was needed under my advice. My role as a project manager is to obviously oversee the whole project. To be the client contact and liaison on these projects; to supply and have signed off all relevant documents; to advise the project coordinators on when and where I need staffing, and how long I need this staff, so how long the project would take. Would you like me to continue?
PN175 You need to manage the project, don't you, as the project manager?---Of course, yes.
PN176 You need to drive that project to a satisfactory completion?---Yes.
PN177 You need to do that within the projected time?---Correct.
PN178 You also indicated you needed to sign off on the relevant documents?---I meant the client signing off, but, yes.
PN179 So you need to make sure that if there are variations, for example, they're properly documented?---Correct.
PN180 If there are purchasing orders, the purchasing orders are raised?---Yes, well - yes. Get that information to those in finance, yes.” 11
[28] It is not in dispute that the project notes form a vital business record for the Respondent. They keep track of the progress of a project including any requests for variations by the client, hours worked, etc. I have taken into account Ms Kaliviotis’ evidence that the Project Tracking System is the Respondent’s bible and that “everything is captured on our PTS system” 12.
[29] I have taken into account that the Applicant accepted that he had not maintained the project notes in the computer system. In response to a question from Mr McDonald in relation to the warning letter the Applicant said:
“Establish and maintain regular contact with client and project staff, ensure those communications are captured in each relevant PTS and update project management data notes on a regular basis." I put it to you in relation to the TAFE project, in particular, that you didn't do that?---Yes, there was definitely times I failed to update the project notes.” 13
[30] On 29 November 2017, Ms Kaliviotis sent the Applicant the following email:
“29 November 2017 9:34pm
Hi Alan,
I have AztraZeneca under control. We are almost done.
No need for you to confuse the customer. If you receive any correspondence, please forward it to me.
Thank you
Regards
Marie Kaliviotis” 14
[31] The Applicant accepted that he understood that he was not to contact this client from this date. I have taken this into account.
[32] On 12 December 2017, the Applicant contacted Mr Tuting from AstraZeneca by email in relation to on-going defect issues emanating from 12 October 2017. The Applicant did not refer this issue to Ms Kaliviotis in accordance with her direction, an action that he now regrets 15. I have taken this into account.
[33] The Applicant knowingly failed to follow a lawful direction by contacting AstraZeneca despite being explicitly directed not to do so. Further, the Applicant failed to regularly update the project notes as required by the Applicant’s warning letter. As a result of the Applicant’s actions in relation to these two issues, I find that the Respondent had a valid reason to terminate the Applicant.
Section 387(b) person notified of reason
[34] In Crozier v Palazzo Corporation Pty Ltd 16, a Full Bench of the Commission held:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[35] The Applicant attended a meeting on 20 December 2017 and was provided with a termination letter detailing the reasons for his termination.
[36] I note that the termination letter cited four reasons for the Applicant’s termination:
“20th December 2017
…
• Failure to provide daily report to the Director as requested
• Communicating with customers, in particular AstraZeneca, against the specific instructions of the Director issued on 29 November
• Failure to provide support required by National Sales Manager with regard to completing quotations
• Failure to provide support to the National Manager, Government to complete carious projects with specific deliverables requested of you”
[37] The only issue which is common to both the warning letter and the termination letter is in relation to daily communication with Ms Kaliviotis. After receiving advice from Ms Hawes in relation to how to provide this information, I note that the Applicant was of the view that he satisfied the requirement to communicate daily with Ms Kaliviotis.
[38] I note that the third and final issues identified in the termination letter were issues that had not been previously raised with the Applicant.
[39] I have taken these issues into account.
Section 387(c) Opportunity to respond
[40] In relation to an employee being given an opportunity to respond, the Full Bench in Crozier 17 held:
“[75] Section 170CG(3)(c) provides that the Commission must have regard to "whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee". For the reasons we have set out in relation to s.70CG(3)(b) we think that the "opportunity to respond" referred to in s.170CG(3)(c) is a reference to any such opportunity which is provided before a decision is taken to terminate the employee's employment.”
[41] In Wadey v YMCA Canberra 18 Moore J held that an employee had a right to defend themselves against allegations made against them by their employer:
“The opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
[42] In Gibson v Bosmac Pty Ltd 19, Wilcox CJ stated that procedural fairness steps should be applied in a common sense and practical manner:
“Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.”
[43] I note that the Applicant’s termination letter was signed by Ms Kaliviotis prior to the termination meeting. I accept Mr Tilling’s evidence that if he had decided that the Applicant had turned over a new leaf and wanted to have “a red hot go” then he would not have issued the letter and would have taken responsibility for this decision with Ms Kaliviotis. Whilst Mr Tuting is a decorated and outstanding Australian citizen, based on the conduct that Ms Kaliviotis displayed towards the Applicant, I am not convinced that he would have been able to persuade Ms Kaliviotis to withdraw her letter.
[44] Also, the Applicant was claiming that he was unaware of any specific concerns in relation to his performance. He challenged Ms Hawes at the two performance meetings in relation to the veracity of her information and the allegations against him.
[45] Ms Hawes testified that she was aware of section 387(c) of the Act and the need for an employee to be given the opportunity to respond.
“PN1233
Are you aware of that?---Yes, I am.
PN1234
Do you think the Applicant was given adequate opportunity to respond in this circumstances?---In the meetings I had with him I was waiting for him to respond, and give me something to show me that he was interested in turning around the performance.
PN1235
Sure. What about the meeting on the 20th?---On the 20th? Yes, we asked him how did he feel it was going. Were things – was he making improvements.
PN1236
Were there any specific allegations put to Mr Cheek on the day of the 20th in writing?---Before the termination?
PN1237
Before the termination?---Not in writing, no.
PN1238
Is that fair?---Under the circumstances and the attitude I felt it was, yes.
PN1239
Is it not the case Mr Cheek was terminated on the 20th without due notice, without appropriate opportunity to respond simply on the basis that it was the day before the close down?---I think he was given an opportunity to respond, yes.
PN1240
Well, you provided nothing in writing. I'm not sure how you can make that comment when he hasn't been provided anything in writing to respond to?---Certainly at both of the meetings I had with him I made it clear did he understand where this was going, the process, and that termination was a consequence.
PN1241
I understand that?---So I felt he did have an opportunity to respond.
PN1242
I understand that, but he wasn't given it in writing on the day of the 20th, and he wasn't given an opportunity to take any document away, consider it and respond to it?---Correct.
PN1243
Was that process followed on the basis it was the day before the annual shut down?---That could be one interpretation but I personally felt, based on my previous meetings with him, it wouldn't have made any difference because he didn't show any inclination to address the issues or change the way he was performing.” 20
(my emphasis)
[46] I am satisfied that the Applicant was not provided with an appropriate timeframe to provide a considered response to the allegations contained in the termination letter in writing.
[47] I have taken into account the Respondent’s decision to not provide the Applicant with an opportunity to respond. I have also taken into account that Ms Kaliviotis had made up her mind to terminate the Applicant before the termination meeting, as evidenced by the prepared and signed termination letter that was given to the Applicant during the meeting on 20 December 2017.
Section 387(d) refusal of a support person
[48] The Applicant was invited to a meeting, that ended up being the termination meeting, on the morning of the meeting. It was not suggested to the Applicant that he bring along a support person.
[49] I have taken into account that the Applicant did not ask for a support person after he became aware of the subject matter of the meeting.
Section 387(e) warning about unsatisfactory performance
[50] It is not in dispute that the Applicant was provided with a written warning on 17 November 2017.
Section(f) size of employer
[51] The Respondent is a successful and medium sized employer with a designated human resources manager. The Respondent has a reasonably high turnover of labour, which is, from my experience, fairly normal for contracting enterprises. I have taken this into account.
Section 387(g) absence of dedicated human resources specialists
[52] The Respondent had very recently employed Ms Hawes as its Human Resources Manager. Ms Hawes advised that she has more than 20 years’ experience as a Human Resources professional, albeit the last 10 years have been focused on policy. I have taken this into account.
Section 387(h) any other matter
[53] The Applicant was of the view that he had a very good relationship with Ms Kaliviotis prior to the phone call he received from Ms Hawes on 14 November. The Applicant testified that his relationship with Ms Kaliviotis basically disappeared after this date and that he knew he would eventually be terminated on the basis that he had seen Ms Kaliviotis treat other employees in this manner before they eventually left or were terminated. I have taken this into account.
[54] Ms Kaliviotis testified that she has a good relationship with her staff. It is obvious that Ms Kaliviotis decided not to communicate directly with the Applicant after the warning letter was issued.
“PN903
Commissioner: You were obviously fairly close work colleagues during that period of time?---Close work colleagues? I would like to think that I am close with all of our staff and I wanted him to work with me technically on some projects and I felt that I could teach him, but I just could not get him to follow directions.
PN904
Did you tell him that he was not welcome in your office?---No. I have an open door policy.
PN905
Did you basically tell him not to initiate conversation with you?---Initiate conversations with me? I think if the conversations were (indistinct) I probably would have asked Karen to come into the office, especially after the letter of warning, but not before.
PN906
Thank you. It seems to me that, as you say you like to get on with all of your staff, so you'd probably talk to your staff about their families or what they might have done with their social activities on the weekend and that type of thing?---If I have the time, yes.
PN907
Can you recall ever doing that with Mr Cheek?---Yes. Yes.
PN908
Did you do that after - do you recall doing that after he had been issued with his warning letter?---After he has been issued with his warning letter, I was so busy with trying to bring three projects back on track, I nearly had a nervous breakdown. It was so busy and before Christmas, and I was going away for Christmas, I didn't have time to talk to anybody during that time.
PN909
That's a bit unrealistic though, isn't it?---Three projects off the rails, in addition to all my day-to-day.
PN910
All right. Let me ask you a very simple question?---Mm-hm.
PN911
During a very busy time, would you say hello to people?---Hello. Yes.
PN912
Did you say hello to Mr Cheek?---Yes. If he spoke to me. I would nod. Sometimes I would walk through and I would nod to everybody, "Good morning", "Hello". Yes.” 21
(my emphasis)
[55] In response to a question from me, Ms Kaliviotis gave a description of how she managers her staff.
“PN962
…
I don't like terminating people. I will work with them and I will say to them, "Whilst I'm still passionate in expressing myself, you're fine." When I stop talking is when I give up. I've tried everything possible. Then I just don't want to do it anymore because I've run out of giving.” 22
(my emphasis)
[56] I have taken into account Ms Kaliviotis’ evidence that she had given up on Mr Cheek but that was because she formed the opinion that the Applicant was not trying to improve. I have also taken into account that Ms Kaliviotis was basically verbally ignoring the Applicant.
[57] I have also taken into account that Ms Kaliviotis’s evidence, at times, was unconvincing. For example, the Applicant had been removed from working as the project manager on all projects post his warning letter on 17 November 2017, except for the NSW TAFE project. As well, on 29 November 2017, Mr Kaliviotis sent Mr Cheek an email advising him not to contact AstraZeneca. Under cross examination Ms Kaliviotis claimed that she had told the Applicant verbally not to contact AstraZeneca:
“PN813
Your instruction not to contact the client from AstraZeneca any more, was that instruction not given to me on 29 November?---Via email perhaps, but verbally I told you that I was taking the account over beforehand so you're not to contact the client.” 23
[58] I note that there is no mention of this verbal directions in the original email on 29 November 2017, the Applicant’s termination letter, the Respondent’s submissions, the witness statement of Ms Kaliviotis nor was it the subject on any questions from the Respondent’s legal representative to the Applicant. I find that the evidence of Ms Kaliviotis in relation to the alleged verbal instruction to Mr Cheek to not contact AstraZeneca to be unconvincing.
[59] I have taken into account that the witness evidence of the Respondent is quite contradictory. The Applicant and Ms Kaliviotis agree that the Applicant was only the project manager of the TAFE NSW project from 17 November 2017. The National Sales Manager, Mr John Elphick testified that Mr Cheek was the project manager for the AstraZeneca project up until 10 December 2017. Mr Elphick claims that AstraZeneca stopped communicating with Mr Cheek out of frustration 24 when the facts are that Ms Kaliviotis had actually taken over the project management of the AstraZeneca project two weeks prior.
[60] Also, Ms Kaliviotis testified she simply asked Ms Hawes to manage Mr Cheek and not terminate him on 14 November 2017. Yet, after prolonged questioning, Ms Hawes agreed that she had raised the issue of termination in the telephone discussion on 14 November 2017.
“PN1139
I ask again, you don't remember saying to me that Marie wished to terminate my employment?---I do remember we discussed termination.
1140
Do you remember asking me whether or not I wished to resign during this conversation?---I do remember we discussed was than an alternative for you.” 25
“PN1160
THE COMMISSIONER: Ms Hawes, Mr Cheek has testified that in the first phone call on 14 November, you said to him that the director wished to terminate his employment, effective immediately?---I don't believe those were the words I used.
PN1161
Well, let's not get too cute about it?---Yes.
PN1162
What words did you use?---I don't remember.
PN1163
I don't expect you to remember word for word, obviously?---Yes, I don't remember exactly. We did talk about whether the term - whether his work was viable ongoing with the organisation, with his lack of working relationship with the director, who was his boss. One of the options spoken about was termination.” 26
“PN1168
So, the director has got some concerns about your working relationship?---Yes.
PN1169
Doesn't think it's going to continue and you basically put the offer to him to resign?---Yes.” 27
[61] I have taken into account that Ms Hawes could not contradict the evidence of the Applicant in relation to the telephone conversation with the Applicant on 14 November 2017.
[62] I have taken into account that Ms Hawes made no attempt to investigate, clarify or substantiate any of the responses made by the Applicant to answer the allegations except by going back to the person who made the original allegations, ie, Ms Kaliviotis. This lack of independent process identifies a flaw in the investigation. In reality, it mattered not what the Applicant said in response to the warning letter or during the two performance meetings because Ms Kaliviotis simply disagreed with the Applicant’s responses on these issues.
[63] I have taken into account that the Applicant was advised by Ms Hawes that the most important thing for him to do during the two performance meetings was to improve his relationship with Ms Kaliviotis. The obvious problem with this advice was that Ms Kaliviotis was refusing to talk to the Applicant. In fact, Ms Kaliviotis stated that she would not even verbally acknowledge the Applicant. In my view, this type of behaviour is a form of workplace bullying and cannot be condoned. It is not satisfactory, in any circumstance, for an employer or an employee to isolate or deliberately not communicate with a fellow employee.
Conclusion
[64] Ms Kaliviotis is very passionate about her family company. She is the sole Director. It is abundantly clear that she is a “hands on” manager. It is self-evident that the Respondent was under staffed of critical personnel during 2017, namely installers. The fact that regular meetings of senior personnel were conducted to allocate personnel to the priority projects identifies the regular stresses associated with resource allocation. This conclusion is substantiated by the way in which Ms Kaliviotis was able to finish the AstraZeneca project by simply allocating an appropriate number of personnel to work on the project.
[65] The Applicant has been described as having a “laid back” personality. This characteristic is not a fault or a character deficiency. However, in this circumstance, it has portrayed a perceived negative or “don’t care” attitude. I do not accept this characterisation. If the Applicant “did not care” then I doubt that he would have personally performed installation work on time critical projects in an attempt to meet the project deadline.
[66] Although I have already found that the Respondent had a valid reason to terminate the Applicant, that does not mean that the Applicant’s termination was not harsh, unjust or unreasonable.
[67] In accordance with section 381(2)of the Act and following the obiter in Loty v Holloway 28, both the Applicant and the Respondent are entitled to a “fair go”. One important element of the Applicant’s statutory right to a fair go is the opportunity to respond to any allegations in writing. Ms Hawes conceded that the Applicant was not given this opportunity.
[68] I regard this breach of section 387(c) to be of fundamental significance when assessing whether the Applicant was given a fair go. Clearly he was not. Based on the obiter in Gibson, Wadey and Crozier, the Applicant was entitled to an opportunity to respond to the allegations in writing. The failure of the Respondent to act in this manner had more to do with the pending annual closedown rather than providing the Applicant with procedural fairness.
[69] I am of the view that the Respondent’s failure to provide the Applicant with an opportunity to respond to the allegations in writing, renders the Applicant’s dismissal by the Respondent as unreasonable.
[70] Performance reviews should not be conducted as simply a step in the disciplinary process on the pathway to termination. The Applicant was entitled to be given clear and concise examples of his substandard performance. The Applicant was then entitled to be given an opportunity to improve. The Applicant was entitled to seek clarification and guidance from Ms Hawes. This did not occur. In many respects Ms Hawes summed up the situation accurately, ie, the most important remedial action for the Applicant to perform in order to maintain his ongoing employment was for the Applicant to improve his relationship with Ms Kaliviotis. For Ms Hawes to simply ignore or not properly investigate the Applicant’s protestations that her information was wrong makes the Applicant’s termination unfair.
[71] For the reasons identified above, I find that the Applicant’s dismissal was unfair and unreasonable.
[72] The relevant provisions of the Act in relation to remedy are:
Section 390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Section 391 Remedy--reinstatement etc.
Reinstatement
(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person's employment;
(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
Section 392 Remedy--compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's enterprise; and
(b) the length of the person's service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period--the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
[73] The Applicant is not seeking reinstatement. I agree that reinstatement would not be appropriate in this circumstance.
[74] The Applicant is seeking compensation for the time between when his notice expired up until the date that he gained new employment on 2 March 2018. The Applicant has calculated this shortfall to be 47 days (ie $18,980.75).
[75] The Respondent submitted that zero compensation should be awarded on the basis that, given the problems that Mr Cheek was experiencing at work, it was clear that the period of his on-going employment was going to be short. Further, the Applicant had expressed his intention to leave the Respondent’s employment in the New Year.
[76] I do not agree with the calculations of the Applicant. The Applicant worked and was paid for 9 days per fortnight. Following the resumption of work after the annual close down on 8 January 2018, there were 8 weeks between 8 January and 2 March 2018, which equates to a total of 36 work days for the Applicant, not 47. I also note the Respondent has paid the Applicant a further two days to cover any possible NES issues in relation to Christmas Day and Boxing Day.
Consideration
[77] It is necessary for me to take into account all of the provisions of section 392(2) in determining the appropriate level of compensation to be paid to the Applicant as a result of his unfair dismissal.
Section 392(2)(a) the effect of the order on the viability of the employer's enterprise
[78] I have taken into account that the Respondent is a successful business and can afford the amount that I will order as compensation.
Section 392(2)(b) the length of the person's service with the employer
[79] I have taken into account that the Applicant had only nine months service with the Respondent.
Section 392(2)(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[80] Despite the unfairness of the Applicant’s termination, I am of the view that the Applicants employment would only have continued for a further two weeks post 8 January 2018. If the Applicant had been afforded procedural fairness then I would have envisaged that the Applicant would have been given a “show cause” letter on 20 December 2017. The Applicant should have been given until 10 January (ie, the 3rd day back at work in 2018) to respond in writing to the allegations that he deliberately defied a lawful direction and failed to maintain the project notes as required. The Respondent would then have been required to consider the Applicant’s responses, including any requirement to check the Company’s records, interview Mr Elphick and consult with Ms Kaliviotis. I have assumed that this process would have taken until Tuesday, 16 January 2018. The Respondent would then have had to provide the Applicant with notice of the meeting, advising him of the subject matter of the meeting, thereby giving sufficient time for the Applicant to organise a support person, if the Applicant was so inclined. This meeting could have occurred on 18 January 2018. I am of the view that the Applicant would have been employed for a further 9 days by the Respondent. I believe that even after considering and investigating any written response form the Applicant, the Respondent would have dismissed the Applicant due to his failure to follow a written direction from Ms Kaliviotis. I have taken this into account.
Section 392(2)(d)the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[81] I have taken into account that the Applicant began searching for work in order to mitigate his loss.
Section 392(2)(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[82] I have taken into account that the Applicant advised that he received no income until March 2018.
Section 392(2)(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation
[83] I have taken into account that the Applicant is now working in a new role.
Section 392(2)(g) any other matter that the FWC considers relevant
[84] I am not aware of any other relevant matter.
Conclusion
[85] I have adopted the methodology utilized in Bowden v Ottery Homes 29.
[86] I have decided not to reduce my order for any contingencies.
[87] I have not found any misconduct by the Applicant that contributed to his dismissal.
[88] Based on my assessment in accordance with section 392(2) of the Act, I hereby order that the Respondent pay to the Applicant 9 days’ pay (less appropriate tax), including his statutory superannuation entitlement within 14 days.
[89] I note that the amount ordered does not exceed the compensation cap of the Act.
[90] I am satisfied that the Applicant’s dismissal was unfair and unreasonable and that a remedy of 9 days’ pay plus superannuation is appropriate. On the basis that the Applicant works a 9 day fortnight, this means that he is to be paid his normal fortnight salary plus superannuation.
[91] I so Order.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR602078>
1 Exhibit 1 witness statement of Alan Cheek
2 Exhibit 4 witness statement of Marie Kaliviotis
3 Exhibit 3 witness statement of Roger Tiller
4 Exhibit 6 witness statement of Marie Hawes
5 Exhibit 5 witness statement of John Elphick
6 Exhibit 1 Annexure A
7 (1995) 185 CLR 410
8 (1998) 84 IR 1
9 (1995) 62 IR 371
10 PN1195-1196 Transcript 12 April 2018
11 PN174-180 Transcript 12 April 2018
12 PN834 Transcript 12 April 2018
13 PN408 Transcript 12 April 2018
14 Exhibit 4 witness statement Marie Kaliviotis
15 PN224 Transcript 12 April 2018
16 (2000) 98 IR 137 at [73]
17 (2000) 98 IR 137 at [9]
18 [1996] IRCA 568
19 (1995) 60 IR1 at [7]
20 PN1233-1243 Transcript 12 April 2018
21 PN903-912 Transcript 12 April 2018
22 PN9652 Transcript 12 April 2018
23 PN813 Transcript 12 April 2018
24 Exhibit 5 PN14
25 PN1139-1140 Transcript 12 April 2018
26 PN1160-1163 Transcript 12 April 2018
27 PN1168-1169 Transcript 12 April 2018
28 [1971] AR (NSW) 95.
29 [2013] FWCFB 431
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