Mr Christopher Edward Firman v Ground Transport Services Pty Ltd T/A Hughes Limousines
[2009] FWA 1418
•30 NOVEMBER 2009
[2009] FWA 1418 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Ground Transport Services Pty Ltd T/A Hughes Limousines
(U2009/866)
DEPUTY PRESIDENT MCCARTHY | PERTH, 30 NOVEMBER 2009 |
Background
[1] On 6 September 2009 an application was lodged by Christopher Firman (“the applicant”) asserting that his employment was terminated unfairly by Ground Transport Services Pty Ltd T/A Hughes Limousines (“the respondent”). The application stated that the termination was for the reason of "unsatisfactory work performance."
[2] The respondent objected to the application on the grounds that:
- the person was notified of the reason for his dismissal;
- the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
- the person had been warned about that unsatisfactory performance before the dismissal; and
- the person failed to take all reasonable steps to ensure improvement in performance.
[3] A conference was held before a conciliator of Fair Work Australia on 23 September 2009 and the matter remained unresolved. The application was then allocated to me.
[4] As it occurred from the information on the application that the employer may be a small business employer I sent a letter to the applicant and attached a copy of the Small Business Fair Dismissal Code and the checklist that is part of that Code. I asked that the checklist be completed and returned to my office. A completed checklist was returned on 29 October 2009. This letter had been sent in error to the applicant.
[5] On 10 November 2009 a copy of the Small Business Code and the checklist were sent to the respondent. The respondent returned a completed checklist on 11 November 2009.
[6] I conducted a conference by telephone on 12 November 2009. Both parties agreed that I deal with the application by taking statements under oath and that I determine the application based on those statements and the material that had been lodged.
[7] It is clear that the respondent is a small business employer. It is also clear that the applicant was dismissed for unsatisfactory performance. It is not disputed that the applicant was clearly warned that the respondent was of the view that the applicant was not doing his job properly and would have to improve his performance or otherwise be dismissed.
[8] The respondent stated that the applicant was warned verbally and in writing on 10 August 2009 that his performance was unsatisfactory and would need to improve. This is not disputed by the applicant. A timeline of three weeks was placed on the period in which the applicant would need to show improvement. Two weeks into that period further issues arose regarding the applicant’s performance during that period and the applicant’s employment was terminated.
[9] The respondent says that the period provided was a reasonable period of time to improve performance given the applicant’s experience and length of service. The applicant disputes that the time was sufficient and claims that the length of his previous satisfactory service should have resulted in more opportunity being given to improve. It was also inferred that there were personal circumstances that may have been affecting the applicant’s performance during that period.
[10] The applicant asserts that he was not given any further training or opportunity to develop his skills. The respondent appears to assert that he was given that opportunity through matters brought to his attention through that period. It is clear no formal training was scheduled or given.
[11] The respondent asserts that the applicant’s performance did not improve. The applicant asserts that it did. It is not disputed that the applicant was given the reason for dismissal but he claims that he was not given an opportunity to respond.
[12] The respondent stated that records of warnings and discussions were kept.
[13] The Fair Work Act 2009 ("the FW Act") provides that a person has been unfairly dismissed if FWA is satisfied that the dismissal was not consistent with the Small Business Fair Dismissal Code. A person’s dismissal is consistent with the Small Business Fair Dismissal Code if the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
Conclusions
[14] I am satisfied from the materials lodged and the sworn statements of the applicant and the respondent that:
1. the respondent is a small Business employer;
2. the respondent gave the applicant a reason why he was at risk of being dismissed;
3. the reason given was a valid reason based on the employee’s conduct or capacity to do the job;
4. the applicant was warned verbally and in writing, that he risked being dismissed if there was no improvement;
5. the respondent provided the applicant with an opportunity to respond to the warning and gave the employee a reasonable chance to rectify the problem, having regard to the employee’s response. In this regard the respondent ensured the employee knew the employer’s job expectations.
[15] I am therefore satisfied that the termination of employment was consistent with the Small Business Fair Dismissal Code by a small business employer. The applicant therefore cannot have been unfairly dismissed.
DEPUTY PRESIDENT
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