Mr Andreas Zimmermann v MBA Building Services Pty Ltd

[2010] FWA 4038

[2010] FWA 4038

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Mr Andreas Zimmermann
v
MBA Building Services Pty Ltd
(U2009/13884)

COMMISSIONER SMITH MELBOURNE, 1 JUNE 2010

INTRODUCTION

[1] This is an application by Mr A. Zimmermann pursuant to s.394 of the Fair Work Act 2009 (the Act) challenging his termination of employment by MBA Building Services Pty Ltd (MBA). Mr Zimmermann’s employment was terminated on 6 November 2009 on the basis that MBA found that he lacked timely communication with members, clients and colleagues. Mr Zimmermann commenced employment in April 2008.

[2] Mr Zimmermann’s termination of employment was with notice but he was not required to work out his notice.

[3] The termination is challenged by Mr Zimmermann on the basis that there was no:

• valid reason for his termination,



• opportunity to respond, and



• opportunity to have a witness or support person present.

THE EVIDENCE

[4] The Managing Director of MBA, Mr Geoff Woolcock, gave the key evidence on behalf of the employer. It was the evidence of Mr Woolcock that Mr Zimmermann was:

• not able to meet and did not meet his position description and the personal attributes contained within that position description.



• counselled about complaints from clients.



• advised of the importance of treating customers in line with customer service standards.



• advised as to how to communicate with clients and consider solutions.

[5] Mr Woolcock’s evidence was that his staff had advised him of major frustrations experienced by members in Mr Zimmermann not returning calls, difficulties in making contact with him and unprofessional service. Mr Woolcock said that he failed to make contact with the office in a timely manner.

[6] The witness statement of Mr Woolcock recorded the following:

“Mr Zimmermann also failed to communicate his absence from the office in a timely manner. On certain occasions when he took sick leave, he would fail to make contact with the office until much later in the day to advise of his inability to attend work.” 1

[7] In his evidence Mr Woolcock stated that he counselled Mr Zimmermann on 25 July 2008. The notes of that meeting 2 were taken by Ms M. Short, the Human Resources Co-ordinator and disclose that Mr Woolcock expressed concern at Mr Zimmermann’s interaction with clients. In particular, complaints had been received from a number of clients. The substance of those complaints was that Mr Zimmermann did not attend to matters promptly and was pedantic.

[8] Mr Woolcock’s evidence was that he gave a final warning to Mr Zimmermann on 8 July 2009; nearly 12 months later. At this meeting, Mr Woolcock said that again discussion took place on complaints from companies 3 and his failure to call the office at the earliest possible opportunity. At this meeting Mr Woolcock said that he also expressed concern at Mr Zimmermann not keeping his diary in Lotus notes which would make it available to other employees. This would enable work commitments to be checked. There are no notes of this meeting which is described as a final warning, although a letter was sent to Mr Zimmermann which contained the warning.

[9] MBA also called Ms M. Short to give evidence. It was the evidence of Ms Short that she was advised that there had been a compliant made by a client about Mr Zimmermann being overly pedantic. Her evidence was that she then discussed the matter with Mr Woolcock and a decision was made to counsel Mr Zimmermann about this and other complaints.

[10] Ms Short’s summary of the 2008 meeting 4 with the exception of a handwritten word, which was subsequently added, was accepted by Mr Zimmermann as being accurate.5

[11] Mr Butera put in a witness statement in which he outlined a circumstance where Mr Zimmermann had not returned a phone call. Mr Butera was not called nor cross-examined. It is clear that this statement was put in to also support the MBA contention that Mr Zimmermann was exhibiting a pattern of behaviour which did not treat customers in line with the MBA customer service standards.

[12] Mr Zimmermann gave evidence that details of complaints were not known to him and that there was only one where details were given to him. 6 His evidence was that the requests of the MBA were vague. The evidence was that he would attend to matters as required and in a timely manner.7 Mr Zimmermann stated that he felt that his approach was perhaps more stringent than what customers had been used to.

[13] Mr Zimmermann was particularly concerned at the allegation that he did not inform MBA when he was not available as he did contact the office and office staff knew of any standing appointments. Mr Zimmermann also expressed his concern that he did not have a support person at the interview which led to his dismissal. He accepted that he was asked but in hindsight now, knowing the direction the meeting took, he would have preferred to have support.

THE ISSUES

[14] In examining the issues I have had the benefit of seeing the witnesses and their reactions to matters raised. In this case I consider this to be important as I am uneasy about the clarity of the communication with Mr Zimmermann. It is clear that MBA were unhappy with Mr Zimmermann and largely this was made known to him—although at the meeting on 25 July 2008 he was a “little surprised” by the complaints. It appears to me, from the evidence, that performance issues raised tended to deal with interpersonal relationships and possible delays rather than any professional failings. Whilst there are accepted notes of the first counselling there are no notes of what is said to be the final warning although, the details of that meeting are contained in the witness statements of Ms Short and Mr Woolcock, 8 together with a letter dated 20 July 2009.9

[15] It is also relevant to note that in October 2009, Mr Woolcock advised Mr Zimmermann that he would not be receiving a bonus as a consequence of a poor performance assessment. Mr Zimmermann’s evidence was that he was not invited to comment upon any view relating to his performance before a decision was taken about his performance. It was accepted that a review took place and that conclusions were drawn but Mr Zimmermann did not agree with those conclusions.

[16] It is made clear that the reason for the dismissal of Mr Zimmermann was his continued failure to ensure timely communications with members, clients of MBA and colleagues. 10 The “last straw” was a meeting which was set so that Mr Zimmermann could be present and at which he did not attend. This meeting was with a firm of Architects.

[17] It is appropriate to examine this matter in slightly more detail as it provides a good backdrop to circumstances facing both Mr Zimmermann and MBA in their relationship.

[18] From the position of MBA the following constituted the background.

• Complaints had been made against Mr Zimmermann about his attention to clients and treatment of clients.



• Those complaints 11 had been drawn to Mr Zimmermann’s attention and Mr Zimmermann had received counselling in relation to those matters.



• Mr Zimmermann had been advised that Mr Woolcock was always available on his mobile phone.



• Mr Woolcock did not know about Mr Zimmermann’s absence until after concerns were raised by the Architects.

[19] From Mr Zimmermann’s perspective:

• he was ill on the day he was due to meet the Architects; 12



• he telephoned the office at 9.00 a.m. to advise of his illness and absence from work; and



• due to his illness he forgot about the appointment.

[20] Given that this incident was said to be the “last straw” in the series of events which were said to be of concern to MBA there is a serious problem. Mr Woolcock was not aware of the phone call made to the office until material was tendered in the proceedings. Until then he believed that Mr Zimmermann rang in later that morning.

[21] Central to the dismissal of Mr Zimmermann is the question of whether or not this event constitutes: “yet straw upon straw was laid till the last straw broke the camel’s back.”

CONCLUSION

[22] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia is satisfied that, relevantly, the dismissal was harsh, unjust or unreasonable. In reaching such a conclusion s.387 provides:

387 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.”

[23] The circumstances which constituted the last straw did not constitute a valid reason. Mr Zimmermann was ill and he advised his employer of his inability to attend for duty. The message did not reach Mr Woolcock. Indeed it was not until the hearing of Mr Zimmermann’s application that Mr Woolcock became completely aware of the time Mr Zimmermann contacted the office.

[24] At a meeting 13 on 3 November to deal with the absence, Mr Zimmermann advised that he had rung the office but Mr Woolcock had emphasised that he had invited Mr Zimmermann to ring him on his mobile phone if he was absent and this was not done.

[25] Mr Woolcock said the incident had greatly embarrassed MBA. Mr Zimmermann’s response as to why he was absent and why he forgot about the meeting with the Architects was reasonable in the circumstances. To the extent that this incident was the catalyst for the termination it was unreasonable.

[26] I don’t need to deal with the other aspects of s.387. It follows that I find that Mr Zimmermann has been unfairly dismissed.

[27] I now turn to remedy.

REMEDY

[28] Section 390(3) provides that Fair Work Australia must not order payment of compensation to the person unless the Tribunal is satisfied that reinstatement of the person is inappropriate and compensation is appropriate in all the circumstances. I am satisfied that reinstatement is inappropriate.

[29] Whilst I have reached the conclusion that the event which led to the dismissal should not have been such a catalyst, it is clear that MBA had serious concerns about Mr Zimmermann’s work performance and that these concerns were well founded. There had been complaints which were drawn to his attention. Further, Mr Zimmermann had not acted in a prudent manner by contacting Mr Woolcock directly or making efforts to ensure that his appointments were available for all to see.

[30] MBA were justified in its concerns about its service and, in particular, Mr Zimmermann’s commitment to ensuring timely communications with members, clients of MBA and colleagues.

[31] On this basis I find that reinstatement is inappropriate.

[32] I now turn to deal with compensation. Section 392 directs attention to what matters should be considered. I have examined those matters but in particular s.392(c) which provides: “the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed.”

[33] This matter was addressed by MBA in the alternative. It submitted that the applicant would have only remained in employment for a short period of eight weeks but that no compensation should be awarded. It submits that consideration should be given to:

• the prospect that the applicant may have resigned,



• whether or not the applicant would have continued the pattern of behaviour,



• the failure of the applicant to follow instructions constituting misconduct, and



• monies paid by MBA and monies received from other employment.

[34] I have considered these matters. I have also considered that at the time of his termination, the final warning issued on 20 July was still operative as it had an expiry date of 23 December 2009.

[35] From the evidence of Mr Zimmermann I do not believe that he would have resigned, nor do I accept that a clear direction was given in relation to telephone contact to only be with Mr Woolcock via his mobile phone. I do accept that Mr Zimmermann had not taken appropriate steps to create entries and access to his electronic diary. I cannot reach the conclusion on the material before me that Mr Zimmermann had acted in such a way as to constitute misconduct. However, I am satisfied that Mr Zimmermann’s approach to communication with his colleagues and members of the MBA may not have changed. The employment relationship was not a happy one.

[36] Given the history of this matter I am satisfied that MBA would have addressed this matter properly prior to expiration of the final warning letter. In this connection, the assessment of MBA that Mr Zimmermann would have remained in employment for a further period of eight weeks appears appropriate. I see no justification for discounting that further as sought by MBA.

[37] An order will issue providing eight weeks remuneration as compensation for the unreasonable termination of Mr Zimmermann’s employment.

COMMISSIONER

Appearances:

G. Dircks for the applicant.

T. Lange, Solicitor on behalf of the respondent.

Hearing details:

2010.

Melbourne:

April, 14; and

May, 24.

 1   Exhibit L7 at paragraph 35.

 2   Ibid Attachment GW4.

 3   See Exhibit L7, Attachment GW8.

 4   Exhibit L5, Attachment MS2.

 5   Transcript PN157.

 6   The Rob Roy case.

 7   The witness statement indicated that he believed he dealt with 60—70% of matters within one day and 100% of the matters within three days.

 8   See paragraphs 22—24 of Mr Short’s statement and paragraph 46 of Mr Woolcock’s statement.

 9   Attachment AZ 4 to Mr Zimmermann’s statement.

 10   Final submissions of MBA—paragraph 4.

 11   Notes were taken; see for example Exhibit L2 but those notes do not completely reflect what was put to Mr Zimmermann on that occasion—see PN 771.

 12   There is no issue as to his illness and it is accepted by the MBA.

 13   Exhibit L4, attachment GW10.

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