Mr Boris Jurisic v ABB Australia Pty Limited

[2014] FWC 4018

[2014] FWC 4018

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Boris Jurisic
v
ABB Australia Pty Limited
(U2013/15883)

COMMISSIONER CLOGHAN PERTH, 25 JULY 2014

Unfair dismissal.

[1] On 14 November 2013, Mr Boris Jurisic (Mr Jurisic or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, ABB Australia Pty Limited (ABB or Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] At the hearing on 1 May 2014, Mr Jurisic represented himself and gave evidence on his own behalf.

[4] ABB was represented by Ms K Aistrope, of counsel, and evidence was given on behalf of the Employer by:

● Mr Manjit Saini, State Sales Manager;
● Mr Anthony Meggs, Divisional Controller;
● Mr Mikko Makarainen, Business Unit Manager, Low Voltage Products (LVP);
● Ms Beverly Stacey, Human Resources Business Partner.

[5] At the conclusion of the hearing, I dismissed Mr Jurisic’s application. These are my reasons for dismissing the application.

RELEVANT LEGISLATIVE FRAMEWORK

[6] It is not in dispute that Mr Jurisic’s application was made within the statutory timeframe pursuant to paragraph 394(2)(a) of the FW Act.

[7] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) ...

(d) ...”

[8] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:

“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.”

RELEVANT BACKGROUND

[9] The Applicant commenced employment with ABB on 14 March 2011.

[10] Mr Jurisic was employed as a LVP Solutions Manager, Western Australia, for the LVP business unit.

[11] The national budget for LVP was set in October 2012 and allocated on a geographic basis. The sales budget for Western Australia was, in turn, apportioned to individual employees, including Mr Jurisic, having regard to historical data, forecasting and growth potential.

[12] Individual employee sales budgets for the VLP business unit were set within a portfolio of customers both existing and targeted. Mr Saini discussed with the LVP business unit employees how the targets were to be reached both individually and collectively.

[13] Mr Saini was also responsible for monitoring performance against the budget.

[14] Mr Saini and Ms Stacey met with Mr Jurisic on 21 February 2013. Mr Saini expressed his concerns that the Applicant was already falling behind in his sales target and failing to engage in the required activities to achieve his target. 1

[15] In May 2013, Mr Makarainen and Mr Saini met with Mr Jurisic and emphasised to him that he was not engaging in sufficient activity to achieve the sales budget required. 2

[16] In or around June 2013, Mr Jurisic’s portfolio of customers was changed. As a consequence, his sales budget was revised to meet projected additional revenue.

[17] Up to June 2013, Mr Jurisic’s performance had been managed on an informal basis.

[18] On 11 June 2013, Mr Jurisic was formally placed on a Performance Improvement Plan (PIP). The PIP has essentially the following elements: “Business Activities”, “Business Results”, “Punctuality”, “Progress Checkpoints” and scheduled weekly review meetings with Mr Saini. The PIP was signed by Mr Saini and Mr Jurisic 3.

[19] On 15 July 2013, Mr Jurisic was given a first written warning by the Employer. The written warning refers to the situation where he had failed to make budget for the last six months. Secondly, the warning refers to review meetings for the previous four weeks where Mr Jurisic failed to show progress in his performance.

[20] The correspondence states:

“This is your first written warning, and I expect to see a marked improvement in the areas outlined. However, if you commit to modifying your work performance, work behaviour as discussed you have the ability to address these issues and improve [y]our work performance/work behaviour.

Failure to make the necessary improvements may place your employment in jeopardy.” 4

[21] Mr Jurisic did not sign the first written warning as a fair summary of matters he had agreed to address.

[22] On 18 September 2013, the Applicant was given a “second and Final Written Warning”. The correspondence referred to Mr Jurisic failing to meet budget for the past 8.5 months. The correspondence again indicated that failure to improve would place his employment at risk.

[23] Similar to the last occasion, Mr Jurisic did not sign the correspondence as a fair summary of the issues he had agreed to address.

[24] On 22 October 2013, Mr Saini and Ms Stacey met with Mr Jurisic and requested a formal response to the Employer’s concerns regarding the Applicant’s workplace performance/behaviour in the following areas:

● failure to make sales budget in the last 10 months;

● despite coaching, assistance, easier reporting template and review meetings, the Applicant had failed to show progress; and

● not meeting the Employer’s expectation of improvement in performance and behaviour following the written warnings on 15 June and 18 September 2013.

[25] Mr Jurisic was required to provide a written response by the following day (23 October 2013) as to why his employment should not be terminated.

[26] Mr Jurisic required clarification on certain issues relating to the Employer’s tentative view that he should be dismissed. The Applicant corresponded with Ms Stacey during the period 23 to 27 October 2013. Two further meetings were held between Mr Jurisic, Mr Saini and Ms Stacey on 23 and 24 October 2013.

[27] On 28 October 2013, the Employer responded to Mr Jurisic’s letter of 27 October 2013. The Employer referred to his tardiness in replying to Ms Stacey on 27 October 2013 when he should have replied on 25 October 2013. In the words of  Ms Stacey, “this represents to me a total lack of commitment and respect for the process [why his employment should not be terminated] we are engaged in”. Further, Mr Jurisic’s practice of sending FYI emails attaching data which he believed relevant and providing “no explanations or covering content, just attachments”. 5

[28] On 28 October 2013, a further meeting occurred with Mr Jurisic, Mr Saini and Ms Stacey in which the Applicant was asked to respond to why his employment should not be terminated. After adjourning the meeting to consider Mr Jurisic’s responses, the Applicant was advised that his employment was terminated.

[29] The Employer terminated Mr Jurisic’s employment with four weeks’ notice to take effect immediately. The Employer, in its correspondence to Mr Jurisic, states that “contrary your assertions in your responses...ample opportunity has been provided and every attempt we have made to provide the detail and explain things to you have been rebuffed.” Further,

“Having taken into account your responses and considered a range of potentially mitigating factors, I am not satisfied that you have provided me with anything that explains or justifies or ultimately overcomes your lack of performance.

I have closely assessed among other things your age, length of service, prospects of alternative employment and appropriateness of alternative employment.

Finally, it is apparent to me that you have demonstrated no ownership in the issues...” 6

APPLICANT’S CASE

[30] The Applicant relied on the material attached to his application of 14 November 2013.

[31] The Applicant relied on the documentation provided by the Employer as part of its compliance with the Directions.

[32] Mr Jurisic sought for his statement of facts to be his written witness statement. His purported statement of facts/witness statement is as follows:

“Summary of Facts Summary

1. At the end of May 2013 I received worst performing portfolio in Western Australia (WA) in terms of sale vs. budget key performance indicator (KPI).

2. After September the portfolio was not worst performing in WA in terms of the KPI.

3. Over 5 (June to October) months I have improved sale vs. budget KPI, while the rest of the team deteriorated the KPI.

4. Employer sacked me for underperformance despite being the only team member to improve the KPI over the period.

5. The state trend over the period was that of contraction.

6. The state trend in 2012 was also that of contraction.

7. I was only WA’s team member to go against the state performance trend and exceed KPI target in 2012.” 7

EMPLOYER’S SUBMISSION

[33] The Employer restated its submission that, the application should be dismissed in accordance with s.399A of the FW Act in that the Applicant failed to comply with the directions of the Commission relating to the application.

[34] The Employer submits that Mr Jurisic was not unfairly dismissed within the meaning of the FW Act or at all.

[35] The Employer relies predominately upon the evidence of Mr Saini, Ms Stacey, Mr Makarainen and Mr Meggs in support of its assertion that Mr Jurisic was not unfairly dismissed.

[36] The Employer submits that the Commission can be satisfied that the dismissal was not harsh, unjust or unreasonable in accordance with the criteria in s.387 of the FW Act.

CONSIDERATION

s.387 (a) - was there a valid reason for the Applicant’s dismissal?

[37] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:

“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, commonsense way to ensure that the employer and employee are treated fairly’.”

[38] Mr Jurisic was dismissed at the conclusion of an eight (8) month informal and formal review of his performance.

[39] Mr Jurisic asserts that, “...we should look at performance over full period of time and not just focus on the particular period of time that suits you for whatever reason” 8.

[40] After commencing employment on 14 March 2011, Mr Jurisic gave evidence that calendar years 2011 and 2012 went well in terms of achieving sales results to budget 9.

[41] In 2012 Mr Jurisic achieved sales of around $1.2M. 10

[42] Mr Jurisic agreed with the Employer that knowing and developing customer relationship is “extremely important” 11. Where the relationship has matured, existing customers would make orders without first seeking quotations from their respective sales persons.

[43] For new customers, an important part of building the relationship is quotes for particular products. With respect to quotes, LVP employees had to liaise frequently with their manager because of the need to cultivate the new customer relationship. .

[44] Mr Jurisic agreed that his portfolio of customers in 2013 had not changed considerably from those in 2012. In addition to Mr Jurisic’s established clients, he had type “B” clients who were existing customers but who made relatively small number of purchases and consequently, there was potential growth in sales which required development. Finally, there are a third category of customers who were described as “new targets”, that is, organisations that have to be contacted to determine if the Employer could produce products to meet the customer’s needs.

[45] Sales targets for each category of customer was set based on a combination of historical information, forecasting and industry knowledge. For example, the sales targets for existing mature customers were based on actual sales made in 2011 and 2012. In the case of one existing mature customer, the sales target for Mr Jurisic was $280,000 per annum, whereas for a new “target” customer, the sales target was $10,000 per annum.

[46] Mr Jurisic’s yearly budget target of sales initially increased by $468,000 from the previous year. Excluding Mr Saini and a new sales person, of the remaining four (4) sales persons, Mr Jurisic had the second least sales target increase in dollar terms.

[47] In addition, to the expected sales targets, each sales persons’ performance included making so many telephone calls and face to face contact with the relevant customer representatives. Finally, based on historical analysis, the conversion of “quotations” to “sales” had a historical ratio of 4:1. Accordingly, the Employer monitored the “pipeline” of quotations because if they were not in the region of 4:1 or greater, it was unlikely that the sales person would achieve their target sales figure.

[48] Before I turn to Mr Jurisic’s sales performance and conduct in 2013, I note that in 2012, he unsuccessfully applied for the position of State Sales Manager, LVP. Mr Saini was the successful applicant and was appointed State Manager in October 2012.

[49] On 21 February 2013, Mr Saini met with Mr Jurisic to discuss the Applicant’s performance. Mr Jurisic gave evidence that he recalled the meeting but could not remember whether the meeting was about his performance.

[50] Mr Saini’s written evidence as to how the meeting originated was as follows:

“In the process of understanding where my team was at when I started I noticed that Boris [Mr Jurisic] had the lowest budget of all in 2012. He had achieved sales well in excess of his target but those sales were predominately obtained through existing regular customers rather than new business.

...there were some changes made so that everyone had an even spread of existing customers and growth opportunities but I made sure that existing relationships had not changed.

In around mid February 2013 Boris came to me about the customers allocated to him. He said he wanted to service a number of major customers who already had existing relationships with other team members because [it] would be more in line with his segment. This concerned me because it seemed to me that Boris wanted these customers because they were an easier way to obtain sales than putting work in to develop the growth opportunities allocated to him...Mark [Mr Anning] made decision that the customers not shift to Boris’ portfolio.

...Towards the end of February having observed how Boris was working, I had become seriously concerned about the quality of customer visits he was doing.

...On 21 February 2013 I attended a meeting with Boris and Bev Stacey from Human Resources and went through my concerns with Boris about his level of activity with customers...another thing which I could see from Boris’ activity spreadsheet was that Boris’ calls had been to existing customers...” 12

[51] Mr Saini’s detailed file notes of the meeting is entitled “Performance Management” and indicate that the answers given by Mr Jurisic lacked supporting documentation and facts. The presence of Ms Stacey should have demonstrated to Mr Jurisic the seriousness of the meeting. At the conclusion of the meeting, Mr Jurisic was requested to provide a plan to achieve the 2013 budget and have his plan to implement when he meets with customers.

[52] Following the 21 February 2013 meeting, Mr Saini monitored Mr Jurisic’s performance against the assessment criteria of pipeline quotations, customer phone contact, customer visits and actual sales. The monitoring occurred during weekly meetings that Mr Saini had with all sales persons.

[53] When cross examined on these meetings, Mr Jurisic’s answers were either irrelevant, avoided the question or had a lack of recollection. I prefer Mr Saini’s evidence of the weekly meetings.

[54] In May 2013, Mr Jurisic met with Mr Saini and his direct supervisor, Mr Makarainen. Mr Makarainen was aware of concerns with Mr Juricis’s performance. When asked whether Mr Makarainen and Mr Saini expressed concerns about his performance against targets and overall performance he replied, “I can’t really remember” 13.

[55] I am satisfied on the evidence that the meeting between the Applicant, Mr Saini and Mr Makarainen not only discussed Mr Jurisic’s performance, but also explored options for him to achieve growth in his current customer portfolio by swapping customers and adding new customers 14.

[56] In May, the Applicant was a long way off his performance target 15. For the month of May, Mr Jurisic had a target sales of $153,000 and had actual sales of $30,000. Mr Jurisic’s “Year to Date” (YTD) target was $767,000 and he had achieved $303,000 actual sales.16

[57] On 11 June 2013, Mr Jurisic went from an informal performance review, to a formal performance management plan.

[58] The performance management plan set out not only the sales results to May 2013 but the: business activities which Mr Jurisic had to focus upon; issues of punctuality; documents against which performance improvement would be measured and a schedule of meetings.

[59] Both parties signed the document 17. Mr Jurisic could not remember the details of the meeting18 or what was required of him to improve his performance19.

[60] Mr Saini met weekly with Mr Jurisic. During this period, Mr Saini raised with Mr Jurisic his practice of relying on quotations which had not been revalidated with customers. Consequently, his “pipeline” was being misrepresented.

[61] On 15 July 2013, Mr Jurisic had a further meeting with Mr Saini. At that meeting, Mr Jurisic was given his first written warning. The first written warning details the assistance given by the Employer to Mr Jurisic, the Applicant’s failure to achieve budget in the first six months of 2013 and his failure to develop, in particular, new business. The Employer further set out the Applicant’s performance since the meeting between Mr Saini and Mr Jurisic on 11 June 2013.

[62] In addition, to the first written warning, I was given, in evidence, Ms Stacey’s detailed written notes of the meeting on 15 July 2013. Ms Stacey’s notes indicate that: Mr Jurisic declined a support person, could not see the justification of a warning, agreed with the figures presented, provided an alternative view of the reasons why the targets had not been met and would “think” about whether he would sign the first written warning memorandum as a fair summary of the issues to be addressed.

[63] Mr Jurisic could not recall the details of the meeting 20 and did not sign the first written warning memorandum.

[64] Mr Saini, as Mr Jurisic’s direct Manager, provided a detailed witness statement which addressed the budget setting process, performance requirements, monitoring, concerns about the Applicant’s performance management plan, the two warnings and the events leading to the Applicant’s termination of employment. Despite all this detailed written evidence which was provided to the Applicant in advance, Mr Jurisic did not cross-examine Mr Saini. Instead, Mr Jurisic attempted to persuade Mr Saini, in cross-examination, of graphs the Applicant created from data which the Employer was not sure was correct, relevant or how it was created 21.

[65] Despite the Commission requesting Mr Jurisic to focus cross examination of Mr Saini on matters relevant to his unfair dismissal, the Applicant continued to use the opportunity to put his own views about his performance, “pipeline” quotations and the budget transmission from the 2012 to 2013. I am satisfied on the evidence that Mr Jurisic did attempt to manipulate quotations 22.

[66] The Applicant chose how to run his case. Mr Jurisic chose not to cross examine Mr Saini on crucial and relevant reasons for his dismissal. This failure by Mr Jurisic to deal with the reasons for his dismissal as set out so clearly by Mr Saini, leads me to conclude that they were sound, defensible and well founded. I should note that I have reached that conclusion not entirely because of the failure of Mr Jurisic to cross examine Mr Saini, but also because of other evidence given in the hearing both oral and documentary.

[67] Ms Stacey gave evidence concerning her involvement in Mr Jurisic’s dismissal. Similar to Mr Saini, Mr Jurisic did not cross examine Ms Stacey on those matters which were relevant to his dismissal.

[68] Ms Stacey gave evidence that following the second and final written warning on 18 September 2013, she followed up the matter with Mr Saini on 16 October 2013. Subsequently on 22 October 2013, Mr Jurisic, Mr Saini and Ms Stacey participated in a video conference. Ms Stacey’s evidence is that:

“...Boris [Mr Jurisic] was presented with the data relating to his performance up to that date in relation to the KPIs that were set out in the performance management plan. The data showed that Boris was not meeting the expectations and Matt asked him to provide a response. Boris’ response did not actually address the KPIs and seemed as though he was trying to divert away from the issues at hand. He did not provide a response which actually dealt with his lack of improvement in relation to the KPIs that had been set for him. He also stated that he was performing as well as the other sales people and compared his performance to Matt’s. I reiterated that this process was about Boris’ individual performance and we were not comparing him to others. I made it clear to Boris in this meeting that his ongoing employment with ABB was in jeopardy. I asked Boris directly if he understood that this meeting may result in the termination of his employment. He responded with “yes”. At the conclusion of this meeting Matt and I discussed that we should provide Boris with the opportunity to respond in writing. Boris was subsequently provided the request for formal response letter, and a follow up meeting arranged for the following day, the 23 October 2013.

Matt again met with Boris on 23 October 2013 and I again joined by video conference. In the meeting Boris presented a document titled “KPI report” as his response to our request for him to show why his employment should not be terminated We went through the document in the meeting. I informed Boris that we need to review and consider his response and I stated that I may have further questions for Boris as a result. I explained to Boris that this is an important part of the process to ensure that everyone has a common understanding. My view of the document Boris provided was that it demonstrated an unwillingness to actually address the issues that were being raised with him, particularly around his activities with customers and targets.

On 24 October 2013 I received a total of 4 emails from Boris which were simply forwarded emails with attachments but no explanations of that (sic) the attachments were. I then sent Boris a clarification and further information letter, requesting further information from the response provided the previous day. After I sent this letter, I received an additional 4 emails from Boris, which again were simply forwarded emails with attachments and no explanations. Because I had received no actual response from Boris to my letter that morning requesting additional information, just the emails, I emailed Boris to ask if that constituted his response. Boris then responded that those emails were not a response but did not explain their purpose. Early the next morning on 25 October 2013 I received a further “FYI” email from Boris with no explanation and then a further letter.”

[69] Ms Stacey’s evidence remained intact and I find accordingly.

[70] By 24 October 2013, Mr Jurisic was considerably behind in quotations, sales and was required to answer simple and direct questions regarding manipulation of quotation data. Mr Jurisic was confronted with this data and questions knowing that his employment was at risk. Mr Jurisic responds with “attachments”. In response to a communication from the Employer, Mr Jurisic engaged in definitional issues, required clarification, made comparisons with Mr Saini’s performance and Mr Saini’s inability to take responsibility, and finally, how Mr Saini could improve his grammar.

[71] Having observed Mr Jurisic, I also noted generally his inability to provide a simple straightforward answer to a question. Mr Jurisic spent an inordinately long time in answering questions in cross examination. Consistently, he provided answers which attempted to distract, confuse or simply agitate an issue whether relevant or otherwise. Given this propensity to disengage from the hearing process, the Employer’s complaints that Mr Jurisic would not take ownership of the performance process was recognizable.

[72] Mr Jurisic asserts, in his defence, that the Employer should have taken the “long view” regarding his performance and not focus entirely on the period February to October 2013. Shortly put, he says judge me by the past, not the present Whether the market the Employer operates in is able to accommodate such an approach is one thing, but Mr Jurisic’s reluctance or inability to engage in a process to improve his performance was critical. Similarly, in the hearing, the most commonly recognised response to meetings to discuss his performance, were words to the effect, “I can’t remember”.

[73] The Employer did not shy away from the fact that with respect to LVP, no salesperson met their budget - but, in my view, that is not the point. No LVP employee achieved 100% of their target, but they were getting 70%-80% 23. Irrespective of actual sales, Mr Jurisic was not demonstrating to Mr Saini that he was putting in the “hard yards” compared to other employees in relation to the number of calls to customers, structured customer visits, developing new customers and pipeline quotations. This lack of demonstrable effort led the Employer to issue warnings and advising Mr Jurisic that his employment was at risk. Despite giving Mr Jurisic the opportunity to improve his performance, the outcome was neither sufficient nor indicated any commitment to the process. By late October, Mr Jurisic’s engagement in the process reached a low point when on 27 October 2013, the Applicant states that he is disappointed by Mr Saini’s inability to take responsibility for the performance of his portfolio and choosing to blame team members instead. Finally, Mr Jurisic resorted to making an assessment between himself and Mr Saini.

[74] Mr Jurisic, at the hearing, essentially attempted to put a competing view to the Employer’s assessment of his performance. Mr Jurisic asked the Commission to prefer his account of his performance and reject the Employer’s account. The Applicant did not explain why I should take this course of action. Mr Jurisic, at the hearing, considers that the presentation of “his” data was sufficient to repel any argument of the Employer. This application was not a case of conflicting accounts “on-the-papers” but a situation when Mr Jurisic had the opportunity to cross-examine the Employer’s detailed statement of facts and witness statements and, for a large part, chose not to do so. Consequently, I was able to make an assessment of the competing views of the Applicant’s performance and engagement in the disciplinary process from February to October 2013.

[75] Having considered all the facts and evidence, I am satisfied that the Employer had a sound and defensible reason to terminate Mr Jurisic’s employment.

s.387(b) - notification of the reasons for termination of employment

[76] As I have set out above, Mr Jurisic was aware of his performance being monitored since February 2013 and the reasons for his termination of employment. The reasons contained in his termination of employment are, shortly put:

● sales deficiencies;
● conduct;
● written warnings;
● lack of openness and honesty with respect to the “pipeline” quotations;
● lack of ownership of issues relating to his performance; and
● no improvement following reminders, coaching and written warnings.

s.387(c) - opportunity to respond

[77] I am satisfied, on the evidence, that Mr Jurisic had, over a long period of time, the opportunity to respond to both his performance and conduct regarding the matters which ultimately led to his termination of his employment.

s.387(d) - support person

[78] I am satisfied, on the evidence, that there was no refusal by the Employer to allow Mr Jurisic to have a support person present to assist in any discussions relating to his dismissal.

s.387(e) - unsatisfactory performance

[79] The evidence demonstrates that Mr Jurisic was, among others, counselled informally regarding his performance and subsequently formally warned about his performance.

s.387(f) - size of enterprise

s.387(g) - Human Resources

[80] The Employer is a relatively large employer, and accordingly, demonstrated a high standard of human resources practices leading to Mr Jurisic’s termination of employment.

s.387(h) - other matters

[81] I am satisfied that there are no other matters involved in this application which require consideration. The Employer considered the Applicant’s age, length of service, prospects of alternative employment and the appropriateness of alternative employment prior to his termination of employment.

[82] Where the Employer refers to a breakdown and trust because of the Applicant’s conduct and performance in the letter of termination of employment, it appears to me that it went to significant lengths to achieve a viable and productive employment relationship; ultimately the relationship failed but it was not for the want of trying on the Employer’s behalf.

CONCLUSION

[83] In conclusion, for the reasons set out above, I was satisfied that Mr Jurisic’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application was dismissed on 1 May 2014. An Order to this effect is issued conjointly with these Reasons for Decision.

COMMISSIONER

Appearances:

B Jurisic, the Applicant on his own behalf.

K Aistrope of counsel on behalf of the Respondent.

Hearing details:

2014:

Perth

1 May.

 1   Exhibit R7

 2   Exhibits R6 and R7

 3   Exhibit R8 (BS-3)

 4   Exhibit R7(8)

 5   Exhibit R7(11)

 6   Exhibit R8(13)

 7   Exhibit A2

 8   Transcript PN66

 9   Transcript PN89

 10   Transcript PN91

 11   Transcript PN101

 12   Exhibit R7

 13  Transcript PN143

 14   Transcript PN157

 15   Transcript PN161

 16   Exhibit R7(6)

 17   Exhibit R7(6)

 18   PN198

 19   PN208

 20   PN238

 21   PN674 and PN676

 22   PN764 to PN775

 23   Transcript PN591

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