Mr Christopher Woodford v Telstra Corporation Ltd
[2019] FWC 8280
•5 DECEMBER 2019
| [2019] FWC 8280 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Christopher Woodford
v
Telstra Corporation Ltd
(U2019/118)
COMMISSIONER SPENCER | BRISBANE, 5 DECEMBER 2019 |
Application for unfair dismissal remedy – lengthy performance management process - performance issues made out – application dismissed.
[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Mr Christopher Woodford (the Applicant), alleging that the termination of his employment from Telstra Corporation Ltd (the Respondent/Telstra/the Employer) was harsh, unjust or unreasonable.
[2] The Applicant was employed by the Respondent from 27 March 2010 until the termination of his employment on 14 December 2018. At the time of his dismissal, the Applicant was employed in the position of Retail Store Leader in the Respondent’s Carindale shopping centre, Level 1 store. The Applicant’s roles in this position were to lead and develop the retail store staff, and the management of the store, so that profit and various store performance levels were achieved, including sales targets, customer targets, and team performance levels.
[3] The Applicant’s employment was terminated due to performance issues. The Applicant denied performing poorly during his employment with the Respondent and took issue with various aspects of the performance management process. The Applicant sought reinstatement to his position, and wages for the intervening period.
[4] The Respondent submitted that it primarily measures its Store Leaders’ performance using a “Biannual Performance and Partnership Program scorecard” referred to as a “BAPS Scorecard”. The Respondent submitted that the BAPS Scorecard reports on the following key metrics:
“(a) sales metrics: a measure of the number of products and services sold in store and the revenue from those sales; and
(b) customer advocacy: assessed using a methodology called the Net Promoter Score (NPS), which measures the willingness of customers to recommend Telstra’s products or services”. 1
[5] The Respondent submitted that the Scorecard uses a colour coding system, whereby red indicates an employee is “not meeting minimum expectations” of the role, amber is “partially meeting expectations” and green is “meeting minimum expectations”. The Respondent submitted that the Applicant failed to achieve the consistent performance level that was expected of him as a Store Leader. A decision to terminate his employment was taken after a period of both “informal performance management” and “formal performance management”. 2
[6] The matter was listed for conference, however was unable to be resolved. Directions were set for the filing of material. The Applicant was represented by Mr R Green of counsel, instructed by Ms J Morgan of FC Laywers and the Respondent was represented by Mr J Darams of counsel, instructed by Ms A Ash of Seyfarth Shaw Australia. Both representatives were granted permission to appear pursuant to s.596.
[7] The matter was heard over two days in Brisbane, with a further Hearing in Brisbane for final submissions.
[8] Whilst not all of the submissions and evidence are referred to in this decision, all of such has been considered.
RELEVANT LEGISLATION
[9] s.394 of the Act sets out:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[10] Further, ss.385, 386 and 387 relevantly provide 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) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.”
“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.”
[11] As to any remedy to be ordered, s.390 provides:
“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.
Note: Division 5 deals with procedural matters such as applications for remedies.”
SUMMARY OF THE APPLICANT’S ARGUMENTS
[12] The Applicant denied that the performance issues justified dismissal. The Applicant prepared a detailed timeline with reference to the associated performance management process and other relevant documents and events. The Applicant alleged that the performance management process was flawed and that his dismissal was unfair. He considered initially that the dismissal could have been characterised as a redundancy, as he stated the store he had managed, had been closed some months later. He therefore sought to be paid the related financial benefits in terms of a redundancy; consisting of compensation taking into account that situation and that the dismissal was harsh, unjust or unreasonable. In addition he sought a formal written statement acknowledging the unfairness of his treatment. However at the Hearing, then with representation, he sought reinstatement.
[13] It was set out, that the Applicant commenced casual employment with Telstra in July 2002 through to 2007. He recommenced employment in March 2010 and then moved to full time employment in July 2011.
[14] It was stated that the Applicant was appointed acting store leader of the George Street store in 2012, during the upgrade to the Edward Street store until 2015 when it closed. It was submitted that he was invited to act as Queensland regional sales coach in 2015 and then moved to the Carindale store in 2016.
[15] The Applicant emphasised that he had not obtained a performance rating of two (on the Telstra scale) until August 2017. The Applicant reported, in October 2017 to Mr Trocas, General Manager Retail and at that time Mr Trocas implemented a targeting trial. In 2018 it was submitted that the Applicant commenced to have difficulties meeting the expected performance levels and performance management processes were put in place to manage the Applicant’s store performance. His employment was terminated on the stated basis, that his performance did not improve, to the requisite level.
[16] The Applicant’s representative stated that the store in which the Applicant was employed as a leader was closed on 7 April 2019, some five months after the Applicant’s dismissal on 14 December 2018.
[17] It was set out that there are no allegations of improper conduct or misconduct on the part of the Applicant, but the reasons for dismissal relate to alleged under performance as measured by reference to the Respondent’s criteria. It was submitted by the Applicant that these criteria were imposed upon him. It was argued that the performance criteria related to revenue outcomes, rather than specific behaviours and it was also argued that other mitigating factors were not considered.
[18] It was submitted that there were a number of factors, demonstrating why the dismissal could be considered to be harsh, unjust or unreasonable. Amongst these the Applicant contended he was, not aware that the meeting he was to attend prior to his termination, was a meeting at which the termination of his employment was under consideration.
[19] Further the Applicant asserted, that during the performance management process, he had presented information indicating that his store’s performance had improved and that this information was not considered in relation to justifying his continued employment. Furthermore, it was argued that other information relevant to his performance was not taken into account by the Respondent.
[20] The Applicant also submitted that it was not considered, that he was operating in a store with unique circumstances, that affected the store’s trading. These factors were not taken into account for the purpose of measuring his or the store’s performance. In addition the Applicant stated he was not provided with appropriate support during his employment and he was not treated in a manner consistent with other employees, in particular other store managers. It was also submitted that interpersonal issues had arisen between the Applicant and Mr Trocas and that these had impacted on the fairness of the process, which led to his dismissal. The Applicant had made a complaint about Mr Trocas and the manner in which he had conducted the performance management process.
[21] It was specifically argued on behalf of the Applicant, pursuant to s.387, that the dismissal was harsh. In particular it was noted, that it must be determined, whether there is any ‘disconnect’ between the proportionality of the outcome of the dismissal, when assessed against the gravity of the performance of the employee. It was argued on behalf of the Applicant, that the performance was not so severely poor as to warrant termination.
[22] It was further submitted on behalf of the Applicant that there were numerous arguments upon which the dismissal could be regarded as harsh, unreasonable and unjust in terms of the basis upon which the dismissal was affected, but also the process adopted to implement the termination.
[23] In particular, the Applicant took issue with the nature of the adopted performance measurement process. That is, the Applicant stated it was simply a case that the Respondent formulated a performance management process and the Applicant’s performance was measured or identified as unsatisfactory by reference to the goals or criteria that the employer, had imposed upon the employee, and the employee was consequently terminated for that unsatisfactory performance. The employer then adopted this as a valid reason for the termination of employment.
[24] The Applicant argued that the performance process was improper, as there was some artifice to the manner in which the goals were imposed and measured on the formulated performance criteria.
[25] In terms of the relevant considerations, the Applicant took issue with what the Respondent asserted was a valid reason for the dismissal; that is that he had failed to perform, in accordance with the Respondent’s expectations, that had been set for him.
[26] The Applicant criticised the validity of the reason, as there had been no specific evidence establishing the appropriateness of the criteria, by which the Applicant’s performance was to be measured.
[27] The Applicant submitted that the highest the evidence got (on behalf of the Respondent was) in terms of the performance criteria, was that they were their assertions, as to the required performance level. The Applicant argued the Respondent simply stated that the criteria was appropriate in the circumstances. The Applicant argued there was no communication developed, or shared understanding in relation to the nature of the performance ‘settings’ of the local store; between the local store and the group setting targets. The Applicant also stated that performance measures were stated without recourse or an assessment of specific matters, relevant to his store or other store’s trading.
[28] In addition, it was argued that the performance criteria set for the Applicant, were made by way of an individual approach, rather than being consistent with the overall policy adopted by Mr Trocas.
[29] The Applicant submitted that the required compliance with the set performance targets, constituted a significant feature of the initiation of the dismissal process. The benchmarks were used to demonstrate that the Applicant was not performing as expected, when measured against these performance criteria. The Applicant argued the Employer’s justification of the appropriateness of the valid reason, is interwoven with the manner in which these performance measures were implemented, adopted and utilised, as the basis for the dismissal.
[30] The Applicant set out that the performance measures, set benchmarks that created the required sales increases, expected from him. It was stated that these sale’s levels did not reflect the particular circumstances, in which he undertook his employment. The Applicant had objected to the performance criteria and challenged the data supporting the measurement of his performance, on the basis of the improper set of criteria.
[31] It was argued that the criteria against which his performance was measured was subsequently increased to more onerous levels and that he objected to this, but they were not varied. He stated that his store was in a special location and there were associated customer traffic difficulties, with this location, which influenced the trade performance of the store and therefore his performance rating.
[32] Specifically, the Applicant set out that the reason for the dismissal, related to the Respondent’s view that his store did not meet certain revenue outcomes; identified by reference to specifically formulated measures. It was argued that the capacity of the Applicant to achieve these relevant revenue outcomes was dependent on factors, some of which were outside of his control. Some of these included specific retail matters, the conduct of particular employees within the store, the customers and numbers that went to the store, the type of products being sold, and some dependence on the timelines of the technicians implementing the products. The Applicant identified several factors, associated with the particular store in which he operated, which he noted had not been taken into consideration in moderating the performance outcomes. The Applicant stated he was not treated similarly to other employees and that this was consistent, with the evidence submitted by Ms Debra Paten. 3
[33] The Applicant raised significant concerns given the deterioration of the Applicant’s relationship with Mr Trocas, whom the Applicant had raised a bullying complaint against. Mr Long, Retail Sales and Service Executive for the Respondent, investigated Mr Trocas’ conduct, against this complaint and as a result a verbal warning was implemented against Mr Trocas. However, there was no subsequent intervention, imposed between him and the Applicant, in the performance measurement appraisal or the dismissal process.
[34] Mr Long, after conducting the investigation as to whether the Applicant was being treated differently to other store leaders, concluded he was satisfied that the Applicant, was not being treated differently. However, the Applicant noted that in undertaking this investigation, he did not speak to other store leaders and that given he considered Mr Trocas’ behaviour warranted a warning, it was improper that Mr Trocas was permitted to continue with the Applicant’s performance process.
[35] The Applicant also argued that there was no correlation between the business needs and the required increase in the performance criteria used in measuring the Applicant’s performance. On this basis the Applicant stated the imposition of the targets was capricious and harsh.
[36] The Applicant denied he was properly notified of the basis of the meeting which resulted in his dismissal. He stated he was not aware what would transpire at that meeting and in particular he made reference to the performance email he received from Mr Trocas dated 13 December 2018, as causing confusion on his part when he received the notification of the meeting invite on the same date; as to the basis for the meeting.
[37] Furthermore, whilst the Respondent asserted that the Applicant was not performing as expected in terms of the performance measures, the Applicant stated this was by reference only to sales data and not store behaviour. In fact the Applicant submitted that the feedback from his store and his immediate employees demonstrated not only a positive workplace but a responsible attitude to performance of his duties.
[38] The Applicant stated he was not provided with a reasonable opportunity to respond and was not able to secure a support person, to assist him at the final meeting given the time in which the meeting request was made and the timing of the actual meeting.
[39] The Applicant challenged Mr Trocas’ position, that at the time he provided the meeting invitation email he stated he had not made a determination that the Applicant would be dismissed. In this regard, the Applicant emphasised that he was provided with a letter of termination at the meeting and that his store credit card was terminated during the course of that day, even though the meeting was scheduled for 2 pm. The Applicant emphasised that the evidence of Mr Trocas, was that he accepted that there was nothing in his emails of 13 December to convey to the Applicant that, his employment would be terminated. 4
[40] The Applicant submitted that he was given no prior meaningful notification of that or alternatively any consideration as to what might have been done, to preserve the employment relationship.
[41] In terms of the preparation of the warnings, relating to the alleged unsatisfactory performance, Mr Trocas had been assisted by HR employees of Telstra such as Ms Ghorishy, Human Resources Specialist for the Respondent.
[42] The Applicant argued that he was confused in relation to the criteria being used concerning his performance and in relation to the data relied on to characterise his performance as unsatisfactory and that further he argued, he had not been given any meaningful particularised warnings as to his underperformance.
[43] In critiquing the standard to which the employer’s enterprise undertook the assessment of performance and the dismissal procedures, the evidence of Ms Ghorishy, that she had provided support to Mr Trocas, but did not undertake any informed comparison of the manner in which the process as adopted by Mr Trocas, complied with the relevant policy.
[44] In regard to other alleged matters, relating to the unfairness of the process, the Applicant made reference to personal issues he was experiencing contemporaneously, such as ‘the loss of a loved one’, the impact of which, he stated, was not taken into account during this performance period, which was being significantly assessed. Further, the dismissal occurred 11 days prior to Christmas, in circumstances in which he had stated that his performance on the measurements, did not warrant dismissal at that time.
[45] It was also argued, as indicative of the store’s trading difficulties, that the store that he operated was closed within months of the termination of his employment and that this was indicative of the impact of such, on performance factors. He had relayed, that these were relevant to the store and outside of his control. It was submitted that the decision to close the store also calls into question the validity of the termination, based on the contribution of the store’s performance. In particular it was submitted that the Applicant was being held accountable for economic factors being the physical location of the store, which could not deliver the customer traffic or the retail performance expected of it.
[46] It was submitted that the Applicant’s account of the conversations, he had with other employees of Telstra, regarding the performance measures and the retail trade factors should be preferred. It was submitted contrary to the evidence of Mr Trocas, that the Applicant made concessions in his evidence where appropriate and acknowledged the accuracy of the material, even when he did not agree with its representation.
[47] The Applicant submitted that Mr Trocas was attempting to drive a higher level of profit from the store, that he was managing, hence the increase in targets, imposed upon the Applicant, regardless of the actual circumstances and capacity to achieve the targets.
[48] The evidence of Ms Debra Paten, an Employee of the Applicant’s store was that the store targets changed between the financial years 2018 and 2019. She stated they did not query the 20% increase in the store target in the Retail Life System received, but they were attempting to query how the targeting was set and the methodology behind it, however she stated they did not receive a straight answer.
[49] The evidence was that from 2018 to 2019, the store missed its targets and this triggered the performance management and also affected their pay, with no bonuses, given after they received the Red coding for performance.
[50] Ms Paten’s evidence was that she considered the targets as being unachievable as a 20% increase across the board, on every metric, she considered was a large increase in targets. This position was based on the foot traffic in the centre, that she stated had not increased dramatically and that there have been no actual action, put in place, to suggest that it was going to increase by 20% in numbers. 5
[51] The evidence of Ms Georgette Pintilie, was that she considered the emails (shown to her by the Applicant) that were sent by Mr Trocas to the Applicant, caused stress, derived from the language used in the emails. She stated that the nature of the emails were that you were either performing or you weren’t and if not what are we going to do to fix it? She stated there was not a big margin for error, the performance measure was to hit the store target.
[52] She further stated that Mr Trocas had introduced a leadership style of the green and red performance indicators. She stated that you had to use all of the tools available, to meet your team performance and hit the green indicator every week and month otherwise you had to provide an explanation. She stated that this caused significant stress. She claimed that the explanation provided, often wasn’t good enough and this invoked further pressure.
[53] She stated that the Applicant was continually worried about consistently not performing as it was difficult under the environment that we had because the store was much smaller from where we had come from Capalaba to Carindale and that the foot traffic was less. It was submitted, in the telecommunications environment, it’s not like selling food, you have to talk to the customer, listen to triggers and indicators to see what products you can sell the customer because every day we had multiple products to sell. 6
[54] The Applicant denied a number of the reports of communication made by Mr Trocas. The Applicant stated that in his entire time when he took over Carindale in November, he had never had a store visit, and no weekly phone calls from him. He said the acquisition of sales was extremely difficult when you don’t have people in the telco aisle roaming around which he stated was why his stores performance had a high number of retention units and the store downstairs had a higher percentage of acquisition sales, as they were in a telco aisle they had Optus and Vodafone and Virgin down the other side of them whereas the Applicant did not have that opportunity to feed of competition. He stated acquisition sales are of higher value to any Telstra shop and he stated that given the store downstairs had a higher customer traffic flow and they knew that they were struggling they would often refer lower value retention sales to his store. He said one of their major difficulties was the retail environment, stating that he was well aware of the retail environment as he used to manage, as the area manager for Toowong and Chermside’s privately owned shops.
[55] The Applicant also pointed to the effects of claimed and confirmed data. He stated that Mr Trocas acknowledged that. He explained advocacy points are made in real time when a customer gives you feedback. The Applicant took issue also with the notification for the final meeting, and also that he had been performing at levels that were not all below par. The Applicant stated that it is a business wide understanding that the data reports are volatile and there are inconsistencies on the reporting, and often data integrity issues.
[56] During cross-examination, the Applicant was asked questions about the matters he considered were affecting his performance; staffing issues, the store location for traffic of customers, the sales parameters of the performance support plans when they commenced again in August 2018. The Applicant agreed that February was prior to the formal performance management plan the Applicant stated he was away for nearly all of the month on stress leave and he stated that was his only red month. It was put to the Applicant that store leaders were expected to achieve green sales on their BAPS. It was also put to the Applicant that in determining whether he achieved the objective of green for that PSP period, Telstra took into account not only confirmed sales, but claim sales as well, to which he agreed. This being in contrast that what’s tracked ordinarily is the confirm sales, which would likely lead to the generation of revenue.
[57] The Applicant agreed that for the PSP in May and April the performance was measured on both confirmed and claim sales as the Applicant had asked for that, this was different from other managers. The basis of the performance measurement on sales changed from this for August and the applicant was aware that that was going to occur.
[58] In summary terms, it was argued on behalf of the Applicant, that the dismissal was not justified, and there were a number of matters impacting on the process and there was no valid reason that formed the basis of the decision to terminate. However if it was accepted that there was a valid reason, the Applicant’s representative argued the following relevant circumstances confirm that the dismissal was harsh, unjust and unreasonable:
• The confusion experienced by the Applicant from the terms used and the way the performance process was applied;
• The lack of integrity in relation to the data relied upon for the purpose of characterising his performance as unsatisfactory;
• The personal and family circumstances impacting upon the Applicant and his capacity to perform in accordance with the stated expectations;
• The lack of connection between the imposition of targets and the capacity of Mr Woodford to meet the targets;
• The support for Mr Woodford’s managerial endeavours from other employees consistent with him performing in a manner that was appreciated and respected by other employees.
[59] The Applicant confirmed that he had not gained full time employment until some time after the dismissal, despite numerous applications and therefore reinstatement was sought with ‘compensation providing for continuation of his wage, for the maximum duration provided for under the Act was sought’.
[60] The Applicant maintained he was confused by the below email exchanges between himself and Mr Trocas, prior to his termination, on 14 December 2018:
“Evening Onez,
Thanks for the recognition of our achievements below.
We’ve actually hit green across the triggers quite a few times this half, but it’s great to be able to add another one to the list!
It was a rough start to Q2 given the challenges we had within the team, the biggest being the effect of the T22 tiering impact.
Despite the obstacles we have faced, I am most certain we will land green for our sales performance, and are only 6 advocacy points off green for the half. Very exciting!
It’s important that I take a moment to recognise the hard work of (redacted). As the only ASL for the store (a one of a kind opportunity in QLD!) she has taken on both performance pillars and worked with the entire team to deliver success in so many facets of the business.
Thank you to (redacted) and thank you team! Great to have (redacted) on board for the rest of the month too and I really appreciate the support while I had to take that unexpected leave.
Let’s get that green team!
Cheers,
Chris”
[61] And the below email from Mr Trocas to the Applicant, also on 13 December 2018:
“Thank you for your summary Chris and congratulations to you, (redacted) and the entire Carindale level 1 team.
You are green across all 3 performance triggers (4 week AVG), for the 1st time. This is a terrific result and I thank you for all your efforts.
In addition, while it has been a slow start in half 1 and QTR 2, you have an opportunity to close out the QTR strong. Up to 07/12/18, you are 14 Advocacy BAPS points off the green zone – see following. Due to the nature of the advocacy metric, it looks like an amber for Carindale Level 1, but you will carry some good momentum into the new year if you maintain your focus and continue to deliver the best experiences for our customers. I look forward to celebrating your success in the new year.
Thanks again.
Onez”
[62] These results had been preceded by a series of red results for prior weeks; with a descending fortnightly trajectory.
[63] In terms of the earlier background of the prior performance management, an exchange of emails occurred between the Applicant and Mr Trocas regarding the Applicant’s store roster; the below email, from the Applicant occurred on Friday 22 December 2017:
“Hi Onez,
For Q3 I will be moving to a Monday to Friday rhythm.
The only potential variation to this may be times when my leaders have leave and I will manage this on a case by case basis.
Cheers,
Chris”
[64] On 22 December 2017 Mr Trocas responded to the above email, stating:
“Chris,
Re below and to serve the needs of the business, I am directing you to adjust to Tuesday to Saturday for QTR 3. I will review this requirement with you from time to time, taking various factors (including performance) into account.
Call me with your questions.
Thank you
Onez Trocas”
[65] On 24 December 2017 the Applicant responded, stating:
“Hi Onez,
Tues to Saturday was my preferred rhythm, however I am unable to get any family support for Saturdays. This is primarily due to my partners mental health currently (which you and I have discussed previously) and the need to look after my daughter.
This leaves me with two options below:
• I can shift to a rostered Saturday to Tuesday rhythm and put in Saturday’s as carer’s leave until (redacted) mental health is at a point where I am no longer needed. This will only give me 4 days in my business;
• I can move from my current rhythm to Monday-Friday and switch to Tuesday-Saturday when (redacted) health condition improves. This will give me 5 days in my business.
I hope to be able to align with my peers on this rhythm in the near future.
What would you like me to do from here?
Chris”
[66] On 28 December 2017 Mr Trocas responded, stating:
“Thanks Chris.
I will come back to you on this matter shortly.”
[67] Further to this, the Applicant made the following complaint against Mr Trocas, as set out below on 17 January 2018:
“Hi Onez,
In light of the recent communications and interactions between you and me, I am writing this email to you to let you know that I am becoming increasingly uncomfortable with you behaviour towards me and how you are managing our professional relationship.
I find that elements of your communication towards me have now reached a level that can be considered as bullying, harassing and inhibiting of my further success within Telstra.
Particular expectations that you have given me are unfair and unrealistic. Your behaviour towards me is having an increasing negative impact on my health, my family, and my attention to my business and my people.
I take my role within Telstra extremely seriously and am nothing by 100% committed to developing great leaders in my team and increasing the level of success within my business so that our region can be more successful.
I embrace our agreed values of professionalism, pride, respect and authenticity and use them to grow my people and my business. I feel though your behaviour towards me, and your approach to our relationship, does not live up to these values. It is critical for our success that we realign them in the right direction together.
I will be sending you a calendar invite for a face to face meeting so that we can discuss the matters above and improve the quality of our relationship. This will make us more productive with our time together and drive a higher level of success and effectiveness for Queensland and my store.
You are welcome to bring a support person if you like, as I will be.
I encourage you to take this email very seriously because I do.
Chris”
[68] Mr Trocas responded to this email on 17 January 2018, stating:
“Chris,
Re below, please call me when you have 5 mins to discuss.
Thank you”
[69] The Applicant further responded to this on 17 January 2018, stating:
“Hi Onez,
In relation to the below. I am going to need to keep any conversation between you and me for this matter to face to face only meetings.
This is due to the seriousness of the matter and my preference to have a support person present until we resolve this issue at hand.
I am more than happy to discuss any other business related matters over the phone with you though should you have things that you would like to discuss.
Chris”
[70] In the email of 18 January 2018 Mr Trocas proposed a face to face meeting in response to this:
“Chris,
Re below, I propose a meeting tomorrow at 1:00pm. Please let me know if this suits.
Thank you”
[71] The Applicant further responded on 18 January 2018, stating:
“Hi Onez,
Unfortunately my support person is not available tomorrow for a meeting together.
I will look for a suitable time for us all to come together early next week and match something up with your calendar.
Chris”
[72] The further set of emails were referred to as evidence of the tension, in pursuing the performance management between the Applicant and Mr Trocas. Mr Trocas considered the information he was seeking was regular and reasonable as related to business matters, and enabling the Applicant’s performance.
[73] On 23 January 2018 the Applicant emailed Mr Richard Foster and Mr Trocas, stating:
“Hi Rich,
I joined the session with the Ground Floor team.
Cheers.
Chris”
[74] Mr Trocas responded to this email on 23 January 2018, stating:
“Hi Chris,
Re below and to confirm, you were on this session beginning to end as representative of your team as per commitment at last Fridays Store Leader Forum. Please confirm with reply message.
Thank you”
[75] The Applicant responded to this on the same day, stating:
“Hi Onez,
Unfortunately I didn’t get to make it to the very end.
I knew about the Thursday session before leaving and will be joining it to cover what I missed along with some of my new business experts.
Cheers
Chris”
[76] Mr Trocas further responded, stating:
“Thanks Chris,
Was there any unavoidable circumstances that made it impossible for you to attend the entire call as per your original commitment?
Thank you.”
[77] On 25 January 2018 Mr Trocas emailed the Applicant again, stating:
“Chris,
Re below. Following up seeking your reply.
Thank you.”
[78] The Applicant responded to these emails on 25 January 2018, stating:
“Hi Onez,
Yes there was. I had an unexpected customer complaint that needed my immediate attention to prevent them from taking it further to the Telecommunications Ombudsman.
Delegating it to someone else was not an option and I was not prepared to have the customer wait on me and risk them taking the situation further.
This was the only reason for me not being able to attend the call in its entirety.
As I mentioned. I made the decision knowing that there was a repeat call on this morning which I attended to catch up on what I missed.
Chris”
[79] Mr Trocas responded as follows:
“Thanks Chris.
Please forward all pertinent details on this matter at your earliest convenience.”
[80] The Applicant further responded on 25 January 2018 as follows:
“Hi Onez,
The only real detail that I have to share with you at the moment is that the customer, Steve, was told by one of our Telstra technicians that he would not have to pay the 2nd Foxtel outlet fee for his home Foxtel service.
He was upgrading to the new Foxtel IQ3. As a result of this misinformation by the technician, Steven went out and spent $2000 on a new TV for this second outlet.
He is now seeking compensation for this expense that he wouldn’t have made he been told the right information by the technician.
He has spent hours and hours on the phone with our customer service team and had what appears to be no support.
We have engaged with the saves team and they are unable to cover the cover anything significant enough for us yet.
I have reached out to Dan Smith too, however his is on leave until the end of January.
Once I get further details as how we can support Steve and his situation I will let you know.
Chris”
[81] Mr Trocas replied to this email, stating:
“Thanks Chris.
Please reply with your customers first and last name and his account number at your earliest convenience.”
[82] Mr Trocas sent a further email to the Applicant on 26 January 2018:
“Chris,
I am following up on my direction to you below.
Thank you.
[83] The Applicant responded on 27 January 2018 as follows:
“Hi Onez,
Thanks for following up on the situation below.
Good news, today I was able to reach a resolution with Steve that he is more than happy with which means that I now do not need any additional support in preventing this from being escalated further.
Chris”
[84] Mr Trocas provided a further response, stating:
“Chris,
Good to hear that Steve had a positive outcome.
I am asking for the 3rd and final time for Steve’s full name and account number. I am comfortable that you understand my direction. I am stipulating a deadline of Monday 29/01/18, 9:00am for your reply.
Thank you.”
[85] The Applicant replied to this direction on 29 January 2018, stating:
“Hi Onez,
Please see the relevant account number below:
(Redacted)
Our privacy policy doesn’t allow me to send through the customer’s full name to you via email due to the fact that you have not been involved in support the resolution of the matter at hand.
I will however be able to send you through the interaction number relating to the credits for Steve as further evidence when I have successfully applied them. I will have that for you by the end of the week.
Chris.”
[86] Mr Trocas further responded on the same day with the following email:
“Chris,
Re below, for the 4th and final time, I am directing you to reply with the following information:
• Customer full name; and
• Confirm with reply message that Steve’s account number is as you have stated below, in yellow.
You will do this at your next available 2 minutes free. If you have no free time today, you will do this prior to leaving work this afternoon.
Thank you.”
[87] The Applicant responded to this direction with an email at 6:37pm that same day , stating:
“Onez,
I can confirm for you that the account number below is the correct number.
In terms of sending you the customers full name via email, I have already informed you that I am not able to provide this to you via email.
This guidance has come directly to me from the Senior Risk team.
If you are asking me to go against their instruction, please respond to this email telling me to go against this and I will do so according to your email in the morning.
The risk team have assured me that at your level the account number is all you need in order to investigate any quality assurance work that you need to as you will be able to look through all the interactions for further detail.
As I mentioned below, you will also receive the relevant interaction number for the resolution that we have reached when it is completed.
I am finding your persistence/obsession with this micro-level detail to not only be unusual behaviour, but very stressful to me, my family and distracting to my work.
Please consider this should you respond to this email.
Chris”
[88] Mr Trocas replied to this email on 30 January 2018, stating:
“Hi Chris,
In terms of the stress you are experiencing, I understand that responding to my direction may be confronting to you and as such I am encourage you to consider whether the services of Work Life Coaching may be beneficial to you at this time. The service is free and available to you and your immediate family confidentially. They can be contacted 24 hours a day, 7 days per week on (redacted).
In terms of what can and what cannot be sent via email, clarity on this matter is key. Please respond ASAP with the full name of the person in the risk team who is advising on this matter. I will follow up an advise.
To the Steve and his claims for compensation, I will be speaking with him directly today on this and any other matters required to ensure that I am satisfied that he has the best possible service experience with Telstra.
I will call you this morning for a brief on your contact and conversations with Steve to date. I anticipate that this call will take no longer than 10 minutes and expect that you will be able to prioritise the conversation.
Speak soon.
Thank you.”
[89] After this exchange of emails, the Applicant made the bullying complaint as set out in the prior emails.
[90] On 2 november 2018 the Applicant emailed Mr Trocas, stating:
“Afternoon Onez,
RE the below, I missed the deadline for getting the relevant feedback in by 8:00am this morning as per Derek’s original email. Just a domino effect of a flat tyre and I didn’t get into the store until about 8:30 this morning and that was when I updated it.
Cheers
Chris”
[91] Mr Trocas responded with the following email on 3 November 2018:
“Hi Chris,
Re below, in this instance your task execution and attention to detail doesn’t meet the minimum standards required for Store Leaders. I encourage you to make the necessary changes to lift your standards of delivery.
As always, call me to discuss if you would like to cover off in greater detail or have unanswered questions.
Thank you”
[92] The Applicant considered that given his complaint against Mr Trocas, he should not have been further involved in his performance management. This and other arguments on behalf of the Applicant are further dealt with in the ‘Consideration’, in this decision.
SUMMARY OF THE RESPONDENT’S ARGUMENTS
[93] The Respondent refuted the Applicant’s submissions and relied on the Respondent’s performance management process of the Applicant to demonstrate, there was a valid reason for the Applicant’s termination of employment.
[94] The Respondent stated that Telstra is an Australian telecommunications company which builds and operates telecommunications networks and markets voice, mobile, internet, pay television and other products and services to customers in Australia and overseas.
[95] The Respondent submitted that significant effort was devoted to assisting the Applicant to improve his performance. The informal performance management of the Applicant included “coaching, guidance and support through face to face meetings, store visits and telephone discussions, carried out by the Applicant’s manager, Mr Onez Trocas, General Manager, Retail”, and that this process took place between December 2017 and April 2018. 7 The Respondent submitted that despite these steps, the informal performance management process failed to result in consistent improvement of the Applicant’s performance.8
[96] From April 2018, the Respondent implemented a formal performance management process, whereby the Applicant was placed on a number of “Performance Support Plans” (PSP). The Respondent submitted that the first PSP commenced on 9 April 2018 and ended on 6 May 2018; the second PSP commenced on 25 August 2018 and ended on 21 September 2018; and the third PSP commenced on 20 October 2018 and ended on 16 November 2018. 9
[97] The Respondent submitted that the PSPs set out the performance objectives the Applicant was failing to meet, they outlined why the Applicant was failing to meet them, and they outlined what the Applicant was required to do in order to meet the objectives and what support he might need to do so. 10
[98] The Respondent conceded that it saw some initial improvement by the Applicant; however his performance for June and July 2018 again declined. The Applicant was therefore issued a first, written warning, which the Respondent stated:
“(a) set out the performance objectives that the Applicant had failed to achieve;
(b) reiterated that the PSP set out the performance objectives that the Applicant was required to meet, the timeframe by which they had to be met and the support that Telstra had agreed to provide in order to assist the Applicant achieve the objectives;
(c) confirmed that the Applicant’s employment would be reviewed again and further action including the termination of employment might result.” 11
[99] The Respondent submitted that further to the written warning, the second PSP was implemented. During this second PSP period, the Applicant’s performance was still unsatisfactory, and as a consequence Mr Trocas again met with the Applicant to discuss his performance. The Respondent submitted the Applicant was issued a second written warning which:
“(a) set out the performance objectives that the Applicant had failed to achieve;
(b) identified further matters that Mr Trocas had identified through “weekly catch ups” that they had had during the preceding period;
(c) stated that Mr Trocas expected the Applicant to take the warning “seriously and improve [his] performance”;
(d) reiterated that the PSP set out the performance objectives that the Applicant was required to meet, the timeframe by which they had to be met and the support that Telstra had agreed to provide in order to assist the Applicant achieve the objectives;
(e) noted that if the Applicant was of the view that there were additional things that Mr Trocas or someone else could do to help him meet his objectives, then the Applicant should let Mr Trocas know; and
(f) confirmed that the Applicant’s employment would be reviewed again, but also during the coaching each week that Mr Trocas was providing to the Applicant, and that if the Applicant’s performance did not improve to the required standard, then Telstra might take further action including the termination of employment.” 12
[100] Accordingly the Respondent emphasised that contrary to the Applicant’s submissions he was on notice that his employment was in jeopardy.
[101] The Respondent submitted that the third PSP was implemented for the period 20 October 2018 to 16 November 2018. On 20 November 2018, the Applicant took three weeks’ leave, and during that period the results for the PSP period 22 October 2018 to 16 November 2018 became available. The Respondent submitted that in accordance with these results, for three of the four weeks, the Applicant was “not meeting expectations” and for one week he was “partially meeting expectations” for his role. 13
[102] Further to the performance management process, the Respondent submitted the Applicant continued to fail to meet the performance expectations required of his role. Accordingly, the decision was made to terminate the Applicant’s employment. The Respondent submitted that the Applicant was informed of that decision in writing, and at a meeting on 14 December 2018. The Respondent submitted that it terminated the Applicant’s employment, with the Applicant being paid out his 4 weeks’ wages in lieu of notice. 14
[103] Despite some improvement in the assessment immediately prior to this date the Respondent argued that it had a valid reason to terminate the Applicant’s employment on the basis of his continued deficiency in performance. The Respondent stated that the Applicant was afforded procedural fairness and there were no other matters that would have rendered the dismissal unfair.
[104] The Respondent emphasised that the Applicant’s failure to perform to its expectations over a period of time, constituted a valid reason for the termination. The Respondent, submitted it was entitled, as his employer, to determine howit would measure his performance; a proposition the Applicant initially accepted. 15
[105] The Respondent submitted that the setting of objectives and targets by which the Applicant’s performance was to be measured, was nothing more than an exercise by the Respondent of its prerogative to manage its business. The performance measures and system was known in the business and documented. There is no evidence or suggestion that the Respondent was constrained from implementing its performance measurement system, by contract, policy or applicable Enterprise Agreement. Despite the criticisms by the Applicant of the performance management system, there is no objective evidence that the targets that were set by the Respondent, were unachievable or unreasonable. The Respondent stated, this was demonstrated by the performance figures. When reviewing his performance in terms of the sales targets, the Applicant was only asked to achieve what his colleagues were also being asked to do and the Respondent stated the measures were being achieved by other employees in equivalent roles.
[106] The Respondent argued, that there was no challenge by the Applicant, that he had not performed to the level set for or expected, of him in the performance support plans (PSPs) set for August to September 2018 and October to November of 2018. The Respondent also submitted, that the Applicant did not provide any objective evidence, demonstrating that the performance objectives were unfair, unattainable or unreasonable. The Applicant’s criticism can be challenged on the basis, that the employer has the right to set targets and manage its business. The Respondent noted that there was a valid reason for dismissal as assessed from Telstra’s perspective, to adopt the plan to conduct the Respondent’s business, 16 in relation to the viability and required performance of the business, (not the Applicant’s view of that).
[107] Further, the Respondent pointed out that the Applicant’s submission that there is “no specific evidence establishing the appropriateness of the criteria against which the Applicant’s performance was measured, 17 was the wrong approach.
[108] The Respondent stated the Applicant bears the onus to demonstrate, that the Respondent did not have a valid reason for the purposes of s.387(a). 18 That is, the Applicant has to satisfactorily address each of the matters in s.385.19 Telstra’s evidence establishes that the Applicant was terminated because he did not perform to the level expected of him. It was submitted that, that constitutes a valid reason. Given the Applicant’s argument challenging the targets and other set objectives, it is for him to adduce the evidence to establish that they did not constitute a valid reason.
[109] In response to the Applicant’s allegation that there was no specific evidence establishing the appropriateness of the criteria against which the Applicant’s performance was measured; the Respondent submitted that this proposition should not be accepted. The evidence was that in each of the three performance support plans (PSPs) that were implemented, an important, but not sole, performance measure was, the Applicant achieving a “green” Biannual Performance and Partnership Program scorecard (BAPS scorecard) result for sales and advocacy targets. That result equated with the Applicant’s store “meeting minimum benchmark expectations”. The Respondent set out they were the same parameters that the Applicant’s colleagues were measured against. The Applicant understood that green was the benchmark, that he and his colleagues needed to consistently achieve.
[110] The evidence was that the sales targets that were assigned to a store, were specifically set to take into account localised market conditions, competition, “opportunity” and the objectives of the Telstra retail network. Contrary to the Applicant’s arguments in the proceedings, the targets were set to take into account of a store’s specific attributes and circumstances. It was stated that it is incorrect for the Applicant to submit that performance goals or criteria are set without recourse to, matters specific to a store. The Respondent argued, that submission misunderstands the evidence of Mr Trocas, and Mr Long about the performance measurement system.
[111] The Applicant’s performance measurement, was based on the sales performance of his store, by reference to the same measure by which his Store Leader colleagues were measured. This appropriately demonstrated, that the Applicant was being treated fairly. Moreover, as the Applicant accepted, 20 he was given a special dispensation under the first PSP when Telstra (through Mr Trocas) measured his performance by reference to both “claimed” and “confirmed” sales, when “confirmed” sales was the basis on which performance was usually measured.21 Mr Trocas gave evidence, that after, allowing for the additional sales for the first PSP, he measured the Applicant’s performance in line with how others were measured.22
[112] The Applicant had submitted, the targets that were set for him formed an important part of his performance management. However, the Respondent argued, what the Applicant overlooked was that the performance measure was set by reference to his store’s specific attributes and characteristics and that they were, set to be able to be met. Mr Long’s evidence was that the targets, were achievable, very little complaint was received generally about the targets, and multiple stores achieved the targets and that often when store leaders were changed, targets that were not hit previously, were attained. 23
[113] The Respondent stated that the Applicant was employed as a Store Leader, a role that required him to manage a store, and its employees in accordance with the Respondent’s guidance to achieve the required store profit, including sales targets. It was submitted that it is inconceivable that a person with such responsibilities could fail to appreciate that if they did not achieve sales targets that had been set for them, that it would not be an issue their employer, would be concerned about. This performance was a key matter, emphasised in his role.
[114] The Respondent submitted that the evidence does not support the findings sought by the Applicant. The Respondent submitted, that some of the Applicant’s criticisms related to a period before 2018, when the formal performance management process commenced in April 2018. The Respondent distinguished the Applicant’s comments about the performance management process, stating that by 14 December 2017, the Applicant had moved from Capalaba to Carindale. 24 The Applicant stated that his targets in Carindale “were far more attainable” than Capalaba because [when at Capalaba] he was in some “opportunity metric trial”.25 The Applicant submitted that he was talking about the trial at Capalaba.26 And so to the extent that the Applicant “objected to the criteria”, the Applicant submitted (which Telstra does not accept), that the Applicant was referring to the discussion he had on 14 December 2017 by reference to the Capalaba store.27 In Telstra’s submissions, these matters about the prior store, are irrelevant to the assessment of his performance at Carindale.
[115] The Respondent submitted that the Applicant has not demonstrated that the targets and objectives that were actually set for him, were inappropriate and/or unachievable. It was incumbent on the Applicant in light of the Respondent’s evidence, to actually demonstrate why they were inappropriate.
[116] The Respondent pointed out, that in the Applicant’s submissions dated 4 April 2019 he did not rely on any other matters under s.387(h) of the Act. However, in the Applicant’s closing submissions he submitted that the Commission should take into account other personal issues; such as the loss of a loved one, and the dismissal being implemented before Christmas.
[117] The Respondent objected to the Applicant being entitled, to rely on these arguments. The Respondent stated it would be prejudiced if the Commission allowed him to do so now, in closing submissions after the evidence has been heard. Telstra stated it was not given any advance notice that these matters would be relied upon, even though the Applicant was given leave to adduce further evidence. As a matter of fairness, the Respondent stated the Applicant should not be entitled to rely on them now. 28 As set out later, these matters have been given consideration in this decision. They were squarely part of the Applicant’s evidence and the Respondent was on notice of such.
[118] The Respondent submitted that the prejudice is particularly acute in respect of the submissions the Applicant makes about the circumstances surrounding the closure of the Carindale store, and the inferences and findings he asked the Commission to draw from such. Mr Trocas dealt with the matter in his evidence, that Telstra had understood the Applicant was advancing, that he was terminated in order to avoid being paid a redundancy. The only questions put to Mr Trocas in that regard were in the following exchange:
“All right, Mr Woodford's store was closed wasn't it?---It was.
That's obviously a step that Telstra has to sometimes take, in circumstances that vary?---Yes.
One of the key circumstances that would determine a store closing is that it just wasn't making money?---That's one of the things that are considered by Telstra.
That was the only basis they put to you, so are you accepting what I said?---Yes.
But there are others, apart from profitability?---I can only speak second-hand to that.
Okay, well I'm not going to ask any more questions about that. Mr Woodford wasn't offered redundancy was he?---No.” 29
[119] The inference that the Applicant asks the Commission to draw, could have been the subject of evidence from the Respondent. Further, but related to that, the Applicant did not put these propositions to Mr Trocas, or Mr Long for their comment. That is, the Applicant could have put to Mr Trocas that the Carindale Store:
• was a poor performer generally; and/or
• that that poor performance was not due to the Applicant’s performance as Store Leader; and/or
• that that poor performance was due to factors outside the Applicant’s control.
[120] The Respondent submitted that these other matters were not properly identified to the Respondent and do not displace the reasons for the dismissal.
[121] The Respondent submitted that the Commission will not be required to consider the application of s.392 of the Act, because it should not find that the Applicant was unfairly dismissed, and therefore entitled to relief.
[122] For the purposes of s.392(2)(b), the Applicant was employed by the Respondent for approximately 6 ½ years at the date of termination. It was noted that this is not a significant nor inconsequential period of service. The Respondent submitted however that if the Applicant’s employment had not terminated on 14 December 2018, it would not have continued for any period greater than 3 months. The Respondent emphasised that the Applicant had been subject to performance management (at that time) since August 2018. He had consistently failed to perform to the level expected. There is simply no evidence to support the proposition that if his employment had not terminated on 14 December 2018, that it would have continued for any considerable duration. That is relevant for the purposes of s.392(c).
[123] There is no evidence before the Commission, because the Applicant has not adduced it, that allows the assessment required by s.392(2)(e) and (f) of the Act to be undertaken. The Applicant confirmed he was employed, 30 stating that employment commenced in “March”,31 and he was starting a new position in a couple of months.32 The Applicant’s submission was that he had not “obtained employment on a full-time basis consistent with the nature of his employment at the time of termination”,33 even if accurate given his evidence, is irrelevant.
[124] The Respondent therefore submitted that it is not possible for the Commission to make any proper or valid assessment required under s.392 of the Act, in the circumstances.
CONSIDERATION
[125] The Respondent’s closing submissions critiqued the Applicant’s arguments that provided an invitation to look behind the performance management criteria process. In this regard the Respondent made the following observations:
“To a large extent the Applicant’s submissions do not rise higher than bare assertions made by the Applicant;
The Applicant’s submissions are, in a number of important aspects, inconsistent with the actual evidence.”
[126] The Respondent argued that there was a valid reason and that the Applicant was afforded procedural fairness.
[127] The Applicant took issue with the manner in which his performance as store leader was managed however the evidence demonstrated that the dismissal occurred after both formal and informal performance management. The continuation of the early performance management process was adopted, when the Applicant failed to improve the store performance and accordingly further performance management occurred from April 2018. Performance support was adopted, with discussions regarding the performance objectives, and communication on the issues as to why he was failing to meet the targets. The Respondent acknowledged that that there was some improvement as a result of the initial PSP, however a further decline in performance, occurred by June and July 2018. The Applicant received a first written warning in August 2018 and the plan was set for the Applicant’s appointment to be reviewed again and he was notified that the termination of his employment might be an outcome.
Section 387 of the Act
[128] It is necessary in considering whether the dismissal is harsh, unjust or unreasonable, to have regard to the matters in s.387 of the Act:
s.387(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);
[129] The Applicant stated that the reason for the dismissal, was nothing more than a failure to meet certain revenue outcomes. The Respondent argued that there are a number of reasons why there was no substance to those submissions by the Applicant. Primarily, the Respondent submitted that it is not an accurate reflection of the evidence, to submit that the reason for termination was “nothing other” than a failure to meet revenue outcomes. That submission overlooks the fact that the performance objectives set out in the PSPs, were not limited to achieving sales only. By way of example, the third PSP (20 October 2018 to 16 November 2018), set out the performance objectives that Telstra required the Applicant to achieve. The Applicant’s performance against those objectives, was then measured and recorded in the PSP.
[130] The Respondent argued the second warning given to the Applicant on 19 October 2018, also identified the failures, that were not restricted to the lack of achievement of sales targets.
[131] The reasons for termination were not limited to the non-achievement of revenue outcomes.The evidence demonstrated the link between the Applicant’s failure to deliver on those objectives and Telstra’s assessment of the skills and capabilities of the Applicant as a Store Leader; as identified in the success profile for the Store Leader role. The evidence of Mr Trocas in explaining the Applicant’s lack of store results was consistent with this position. 34
[132] The Respondent, in its performance management (in contrast to the Applicant’s submissions), had regard to the “particular store” in which the Applicant operated or matters said to be “outside of his control”. In respect of the first matter, the evidence was that targets were set by reference to store attributes and circumstances. In respect of the second matter(s), the evidence of Mr Trocas was that the matters, the Applicant identified, 35 were all taken into account by him, when the Applicant raised them, as being matters that explained his poor performance.36 Mr Trocas was not significantly challenged in cross-examination, on this evidence and his position of recognising those issues was not disputed.
[133] The matters were dealt with also on re-examination as follows:
“MR DARAMS: Yes, so one of the matters you've identified that was affecting your performance during this period of time - and I'll come to more specifics in a moment, but one of them you identified was the location of the store. That's correct?---In a way, yes that is correct.
Yes?---Yes.
Just in relation to store location, I think you've described that in a number of different ways and tell me if I'm wrong about this, but this is what I have taken down. One was the fact that the store you were in was one of two within the Westfield complex. Is that right?---?---Mm-hm.
Another is that it wasn't located on a telco alley?---It was originally.
Yes?---Its environment changed then.
When did it change?---So it began around April.
Yes?---When our neighbouring competitor Optus closed down.
Yes, I see. The other one that I - and I'm referring to these as store location issues?---Sure.
And I'll ask in a minute whether you agree with that. But the other one that I understood was a lack of foot traffic. Do you agree with that?---Yes, absolutely.
That was another matter you raised?---Yes, within that time period. Yes.
Would you agree with me that those three things I've then identified colloquially, or we might refer to them as being issues associated with the location of the store?---Yes, so initially - so just to be I guess clear, the environment changed. The location was fine when we took over because we had the competitors, we had the foot traffic, we were in a telco alley.
Yes?---Later on within - about 2018, so from April onwards is when the environment changed. So, yes, you could then say because the environment changed, the store's location was far from ideal.
Yes, okay. I haven't left anything out - because I'll refer to store location - I haven't left anything out as matters are indicative of the store location or it's affecting its foot traffic?---Not for the environment, no.
And you say that the store location became an issue from April 2018?---Yes, from about April in terms of its environment. Yes.
Yes?---Yes.
The second matter I understood you had identified is labour or staffing issues with your store?---Yes.
When did that become an issue?---So our labour got significantly reduced at the beginning of FY19, so from July. And then as a consequence of that I began losing team members because I just didn't have the labour budget to retain, which was a problem. And then in October is when I lost one of my assistant store leaders due to the restructure within the company. So I went from having two pillars of support down to one.
The third matter you identified as I understood yesterday was a change in the - if I can call it this, the data used in determining whether you had achieved the sales figure, the sales objectives under the PSP from April/May to when it commenced again in August 2018. Correct?---Yes, I guess the parameters, is that what you mean?
Yes, that parameters?---Yes, that's correct
So in the April - I'll call it the April/May PSP, the first PSP, whether you achieve a green sales target was based at that time on - I think these are your words - claimed and confirmed sales?---That correct.
In the PSP which was started in August that went to just - or your performance as based then on confirmed styles. Correct?---That's correct, yes.
I'll come back to that in a moment?---Sure.
The fourth matter I understood you identified was that you had experienced, did you say, some issues with sales because technicians did not turn up and because of bad weather?---One of the elements, yes. There was a lot more, that was just one of them. Yes.
When you say other elements, what other elements are you relying upon?---In terms of getting sales confirmed in Telstra systems?
No, no, not in terms of that. One of the management issues you had identified or have identified are the issues with your sales because technicians do not turn up in bad weather?---That was one of them, yes, that's one of the examples.
Yes, what was the other ones you say?---So system delays in those completed orders. So when a technician completes an order, Telstra system delays in them landing on our reporting.
Yes?---So where we might be able to verify instore that an order completed say on a Friday - and they're timestamped so you can see that - they may not land in Telstra's systems for another one, two, three, five days and that's an IT side of things. We don't really have much sway over that.
But just on that, the sale would ultimately land at some stage?---Absolutely. Absolutely, but in a following week or potentially a following month depending on the issue. Yes.
So you've identified that's a sort of a timing issue. Is there anything else?---So just to be clear, you're asking me everything that I feel impacted when sales completed?
I'm asking you about the evidence you gave yesterday?---Yes, yes.
And the sort of matters that I - - -I just want to make sure I give you information. So I guess to make sure I cover everything, the elements that impacted when a sale confirmed for my store and my team were things like weather, because when we have an appointment if weather was bad or our pits had been flooded out an appointment couldn't be completed at that point in time. It needed to be rescheduled which meant the activation date would be delayed however long it took for the technician to go out. In addition to that if a technician didn't turn up, which again was out of our control, so everything would line up and we had an instore system where we liaised with customers, confirming dates. If a technician for some reason didn't turn up or turned up to the wrong address it wouldn't complete so we would have to reschedule - and those appointments could be a week, two weeks, three weeks, depending on the demand on technicians. You had the system issues which there's quite a few but the core of it is if they get completed in the field, they may land and a lot of time land after the fact of completion from a technician. So these are - that's probably the more specifics as to how they work. Yes.
Well, I was just asking - but I think you've already identified those matters. I was asking whether there were any more matters, and you've just gone into more detail about the ones we've identified?---Yes.
So no other matter - - -?---Off the top of my head they're the biggest ones that I can recall.
Yes, okay. So if I could say this, there were effectively four groups of matters that you identified were affecting your performance. Would you agree with that?---Just in terms of what you referred to with activations. So there were other ones around we've got - just to recap, the loss of leadership, the staffing in terms of the labour and loss of my team. I did have for myself in November that - I guess that time of more personal stress when my auntie was dying, where I had to take that time off. So again, a three weeks break in the business.
Just on that, you took the period of time off after the PSP had completed. Correct?---That's correct.
Yes?---Yes.
And so - - -?---But I noticed in those particular times too it was hard on my team because I wasn't there.
But you accept that in relation to the PSP, the last PSP, and we'll come to talk about this later on?---Yes.
That wasn't based upon any period of time that you were out of the business?---No, no, I was present for all the PSPS parts.
Yes?---That's correct. Yes.
Sorry, so I had put the proposition to you that there were four groups or matters that were affecting your performance. Would you accept that, that you've identified in your evidence?---Yes, sorry, just give me a sec because I want to make sure I cover all the time periods because I believe it's very important. So outside those pieces there was - actually, no, there was an additional one around the - I'll just call it Onez's behaviour, and I know I mentioned it yesterday, in January with the Online Essentials saga and his - what I defined in the email team as obsession for customer information. That - just that interaction in itself was the cause for me to take those three weeks off in February. Okay, so that had a big part - and that was my only month in red. So that definitely had an impact on my team's performance or my store's performance. I'm just going through the rest of the months to make sure that I haven't missed anything for you.” 37
[134] In the circumstances, there was no other evidence that the Respondent (through Mr Trocas) did nottake those matters into account and no other objective evidence, that demonstrated that those matters identified by the Applicant, explained his performance. The Respondent submitted that the Commission cannot find that the alleged “matters outside” the Applicant’s control, explained his failure to achieve targets and objectives, that were set for him.
[135] In reply to the Applicant’s ‘catalogue’ of other matters said to demonstrate that the Respondent did not have a valid reason, the Respondent submitted as follows:
• To the extent that the Applicant did give evidence 38 that his performance was measured, set or increased at a “more onerous level” (c.f. Applicant’s Submissions at [22]), it was no more than the Applicant’s subjective view. There is simply no evidence that they were set at a more onerous level. As set out in paragraphs [111] to [113] above, he was being measured against the parameters that applied to all Store Leaders; he was only being asked to meet the “minimum benchmark expectations”.
• In relation to the submissions that there was no negotiation or input from employees as to the performance criteria imposed, the short answer is that Telstra was entitled to set the criteria in the exercise of its management prerogative without that input. In any event:
• the Applicant did have input into the criteria that was set for the first PSP – in terms of claimed and confirmed sales – and Telstra measured his performance during the PSP based on that; 39
• each time that a PSP was set, Mr Trocas sat down with the Applicant and explained the PSP and what was expected and asked him whether he had any questions:
• the matters raised by the Applicant as to why he could not achieve the targets set for him were considered by Telstra. Telstra was entitled to reject those explanations. The Applicant has not adduced any evidence in the proceedings that demonstrate that Telstra was wrong to reject them, and conceded (at least in respect of issues caused with sales technicians not attending to carry out work) that he did not have any evidence and did not endeavour to obtain some evidence. 40
• The submission that the Applicant was not treated the same as “other employees” is too broad and unsupported by the specific evidence required for the Commission to undertake a proper evaluation as to whether there was any “differential treatment”; that is whether the position of the Applicant was “comparable” to others 41. Further, Mr Trocas rejected that type of proposition when it was put to him in cross-examination.42
• In relation to the submissions about the relationship between Mr Trocas and the Applicant, the Respondent’s evidence is that it was satisfied that this did not have any impact on the performance management of the Applicant. 43 Neither Mr Long nor Ms Ghorishy were challenged on this evidence. It was also not suggested to Mr Trocas in cross – examination that the Applicant’s complaint against him, made on about 29 October 2018,44 had any relationship with any of the imposition of the performance management process, the assessment of the Applicant’s performance during the process or the decision to terminate the Applicant’s employment. It is a matter that needed to be put to the Respondent’s witnesses.45 There is therefore no basis for it to be submitted or for the Commission to find that there was any relationship between the Applicant’s complaint and the actions taken by the Respondent.
• In relation to the Applicant’s submissions that there “was no connection between the business needs” and “the increase in criteria imposed” on the Applicant, they are incorrect on both counts. Firstly, there is a clear connection between an employer’s desire or wish for its employees to perform at the level expected of them in their role. Employees are remunerated to do that. That observation is apposite in terms of the expectation that the Applicant’s store achieve sales and advocacy targets given that, in essence, was the primary function of the stores; they were intended to sell products and provides service to Telstra’s customers. Secondly, for the reasons submitted above, the Applicant was not subjected to increased criteria. His performance was monitored against whether he was achieving the minimum benchmark level for a Store Leader. Accordingly, there was nothing capricious about the targets that were set for the Applicant.
So in relation to that there, did you make a comparison of Mr Woodford's performance against other of his cohort?---Yes
What was the result of that?---So across the range for the stores, for a particular time there is a mean number, about three to one. So three of those recontract and prepaid conversations to one new service, and Chris averaged anywhere from between 4.5 to 6.5 over the period of the last six months prior to his dismissal, meaning that it took more of those opportunities to create a new service.
THE COMMISSIONER: Is that for his team, or for him?---So that is the store's result, so yes, that's his team.
MR DARAMS: Were you able to form any view about what the consequences of that conversion ratio meant for the ability for Mr Woodford to meet the targets that were set for him?---Yes. So the better the conversion rate, the more likely the store leader would be able to achieve the targets that were set.
Why is that?---Because they were able to convert their opportunity at a higher rate, and therefore are more likely to achieve their target.
And when you were referring to "achieve their target", what target are speaking of?---The Telstra mandated target for each store.
Which is - or which was Mr Woodford?---The target inside the BAPS report was green. So that's your benchmark.
Mr Woodford also said that he in that discussion referred to the, I guess, lack of foot traffic. Were you able to then - the evidence we understand from Mr Woodford was you denied that that was causing the poor performance. Do you agree that that's what you did say, or you didn't accept that as an explanation?---Yes.
Why is that in terms of the foot traffic, or the persons coming into the store? Why didn't that - - -?---So the foot traffic methodology or understanding of activity is less reliable than - in my view - is less reliable than the number of conversations that were actually had with customers who were keen to buy, or demonstrated that they were purchasing at that time. So I had a look at how many - in terms of opportunity, how many of those conversations were actually occurring, as opposed to how many times the foot traffic meter had been triggered by people coming in and out of the store. And yes, I formed the view that that was a more precise way of understanding the opportunities in terms of sales conversion.
What about in relation to the suggestion that Mr Woodford's performance was impacted because there was - it wasn't in telco alley, or there were no competitors. Did you take that into account, and if you did, how did you take it into account, and explain why you didn't accept that?---Yes. I considered that to have minimal impact. So it is true that without your competitors immediately around you, not as many customers are going to come to your store, it is likely. That's why the way that the shopping centres are set up, there are people around them. However, again returning to what does the opportunity actually look like when customers are in the store, I felt strongly that that was a far better guide as to how strong the operation inside that store was for converting that opportunity. So I was comfortable that the opportunity that existed inside Chris's store was there, but not being converted at that rate.
And another - Mr Woodford also gave evidence that another issue that he raised with you as affecting his ability to achieve the objectives under the performance support plan was labour or staffing issues. Do you recall him raising those matters with you?---I do.
And did you take them into consideration in relation to your assessment of Mr Woodford's performance?---Yes, I did consider the impact of labour and staffing.
Yes. And what was that consideration? How did you take it into account, and why did you - as we understand the evidence, you reject that as being a factor that explained his not meeting the targets?---Yes. So one of the main things I considered in terms of the labour allocation was that the amount of labour that is delivered to a particular store is directly connected to the target of that store, and therefore, that fair allocation was the way that, and remains the way that Telstra delivers labour into all of those stores. On that basis, I didn't feel that Chris was being unfairly treated by the amount of labour that he received, but in fact it was a reflection of what the business has as an expectation for him to deliver against his targets. So the two were connected.
The third matter that Mr Woodford has raised in his evidence was a change from the - I'll call this the data that was used, or you had regard to, in assessing his performance in the April to May PSP from confirmed and claimed sales, so that was used in April/May, and then in the August PSP when you re-started it, his performance was then being measured based upon confirmed sales only. Do you agree that that's what occurred?---Yes.
Can you explain, firstly, why in relation to the April/May PSP you included, or Telstra included, both claimed and confirmed sales? What was the reason for that?---So before the PSP is established, there is a conversation between myself and the person, Chris in this instance, Mr Woodford, and the decision to consider claimed sales at that time I made to counter the effect of the lag between when a sale is claimed, so when the conversation completes with a customer, and when it actually is settled, in a sense. Now, that can be delayed over a period of time for a range of factors that are just built into our business, especially around the fixed products that we sell.
What are the fixed products by way of example?---They would be an internet connection, a broadband connection, an NBN connection, something of that nature.
Yes. Just in terms of how performance of store leaders at that time was being measured, in terms of whether they were achieving the green sales score, what was the basis of the measurement at that time?---Delivered sales.
So confirmed sales?---Confirmed sales, yes.
In relation to the PSP when it started again in August 2018, why did you - or why did Telstra at that time change the basis of the assessment of whether Mr Woodford achieved the sales by reference to just confirmed sales? Why did you do it at that time?---Yes. So at that time, PSP2 and 3, I actually brought myself back into line with the way that the business was measuring for everybody. In the first instance, PSP1, that was a concession made so that I could connect activity in the store, in terms of the behaviour, directly to a claimed sale, and allow Chris to increase his effort, and for us to see the results of that effort immediately. However, for PSP2 and forward, I brought that back into line with assessing the business, including that lag between the claimed and the delivered sales.
The fourth matter that Mr Woodford has given some evidence on is that his performance and ability to achieve the performance expectations under the PSP were impacted because of what he called uncontrollable issues, such as technicians not turning up for effectively work, or to install some product or the like, and/or bad weather. Now, again, do you recall that he did raise those matters?---I do.
He also gave evidence that you rejected or didn't accept them as explaining his inability to achieve the performance targets, is that correct?---It is.
Can you explain to the Commission how you came to the view that those matters didn't explain the performance?---Yes. So bad weather and technicians not arriving do impact sales being delivered. However, those circumstances are not unique to Chris and the store that he was running at the time. So I didn't accept it as being specifically driving that poor outcome for him. I did look at the level of performance that was being attained across a number of different stores, including the store that is local to level one on the ground floor, who share the same assets and have the same experience in terms of the network as well as things like weather, and I formed the view that the differential was what was happening in the store in terms of the management as I looked at their results and Chris's results.
Were there any particular figures or anything that you had regard to in coming to that assessment?---Yes. So I had a look to have a look to see what the performance actually looked like. Over this period of time, the differential between the two was plus target achieved: for the ground floor 102 per cent, and Chris was anywhere between 89/90 per cent of the target against fixed products. …
By reference to the specific information?---Yes, absolutely. So you'll note that the months of July, August and September deliver an amber result, and yet the quarter, which is a summary ,is a green result. So what you're seeing there is the impact of sales that Telstra doesn't accept as being legitimate, and what it does in terms of the way that it allocates the points of that method, that methodology BAPS, is that it will deliver them first, and then it will take some points away if it identifies that there are too many of these fraudulent sales. In the case of the months in question - sorry, let me continue on that. How is that measured? It's a percentage of the overall activity. There are two products that are being measured. One of them is voice mobile, and the other is broadband mobile, and the business says we cannot have any more than 3 per cent of one as an overall, and 4 per cent of the second as an overall, as these non-legitimate sales. So if there are too many of those and they exceed that gate, what the business does is remove a certain number of points, and for the month that we see here, the first one, there were - I'm trying to recall exactly now, but there were 10 points on one of those months, five points on another, and no points taken out on another. So in one of those months there was compliance ,and in the other there were variations of compliance. In the overall, the number of points that were reduced was only five points for the quarter, and the reason for that was that the percentage of the whole, as a summary, that how the impact played out.
Mr Woodford also gave some evidence that he said that in periods where he was being performance-managed, where he was not achieving the expectations under the performance process, he was still delivering or achieving the expectations for a particular quarter overall or a particular half overall. Is there any response you would like to give in respect to that evidence?---In terms of the halves, there was no half in the two-year period where Chris was able to achieve the expectation. There were quarters, and we've seen two of them in the summary, where that was achieved. The periods of time when the formal performance management occurred was framed by the document that we use, the performance support plan, and while outside of that there were variations in that performance, in terms of being fair and consistent with Chris and others, who were also doing these plans, I felt that it was the right thing to do, to reference only the performance inside that timeframe.” 53
[154] The Respondent has relied on the performance management process as providing the valid reason for the dismissal. A common consideration is whether or not there is a “valid” reason for the dismissal. In repsect of such considerations, North J said in Selvechandran v Peteron Plastics Pty Ltd (1995) 62 IR 371:
““Valid” should be given the meaning of sound, defensible or well-funded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.. 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 employee’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 provision must “be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.”
[155] The Applicant submitted that the Respondent’s reasons for the dismissal were not defensible nor justifiable nor well-founded. Further, that the Respondent’s dismissal of the Applicant in response to alleged poor performance was not a proportionate response. 54
[156] I find that the Applicant had exhibited ongoing unsatisfactory performance in his position as Store Leader, and that this constituted a valid reason for the dismissal.
[157] The Applicant on the evidence, failed to consistently perform to the required expectations of his employer, over a period of time and this constituted a valid reason. The employer in managing the performance of their store and optimizing revenue, was entitled, against this, to determine how to measure the employees, including the Applicant’s performance. It further confirmed that this was a proposition that the Applicant had accepted as follows:
“Do you accept this though; do you accept that Telstra as your employer was entitled to, if it saw fit, to manage your performance by introducing or including parameters by which it would be measured? For instance measuring you on a weekly basis or monthly basis. They're entitled do that as your employer. You accept that?---Well, absolutely. Yes, they're paying me my wage, so.
Yes, and if they had determined that this was the way that they - they'd identified a particular issue with your performance and this was a way that they were going to measure whether or not you were achieving to the levels that they expected, then they were entitled to set those parameters and you as the employee would accept those parameters?---I'd have to accept whatever was directed to me to do.” 55
[158] The store management performance reasons as set out provided a valid reason for the termination of employment in accordance with s.387(a) of the Act.
(b) whether the person was notified of that reason; and
[159] In response to the Applicant’s submissions, the Respondent submitted that the Applicant accepted that he was notified of the reasons for his dismissal on 14 December 2018. That concession was proper, having regard to the Termination Letter. 56 The Applicant’s evidence is that Mr Trocas informed him of the reason on 14 December 2018 and read out the contents of the Termination Letter.57
[160] The Applicant took issue with the notification. It was submitted that the Commission should reject those submissions and find that the Applicant was notified of the reason, and that s.387(b) was complied with. The Applicant’s “confusion” about the email on 13 December 2018 is not relevant to whether he was notified of the reason for termination (on 14 December 2018). The Applicant’s submission that his non-performance was “measured by reference only to sales data” was incorrect. It reflected a selective understanding of the content of the PSPs and the conversations that Mr Trocas, in particular, had with the Applicant during the PSPs.
[161] The Applicant conceded he was notified of the reasons for the dismissal at the meeting of 14 December 2018. 58 Prior to this there had been a series of communications and meetings regarding his deficient performance, whereby he was on notice that termination maybe an outcome. The reasons were provided in the termination letter.
[162] The Respondent submitted that the Applicant was on notice from 24 August 2018, that his continued underperformance placed his employment at risk. 59 The Applicant was notified of the reasons for the termination at the meeting and by letter. The prior preparation of the letter was noted, but did not significantly derogate from the circumstances, as set out justifying dismissal. The Applicant had been already aware of the outcome of the prior performance management steps as set out in the letter.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
[163] The Respondent principally relied upon the following paragraphs of the Respondent’s outline, to demonstrate that it complied with s.387(c) and (e) of the Act.
“Telstra submits that the setting of objectives and targets by which the Applicant’s performance was to be measured was nothing more than an exercise by Telstra of its prerogative to manage its business. There is no evidence or suggestion that Telstra was constrained by contract, policy or applicable enterprise agreement in that respect. Despite a myriad of submissions by the Applicant, there is simply no objective evidence that the targets and objectives that were set by Telstra were unachievable or unreasonable. As demonstrated below, at least in terms of the sales targets, the Applicant was only asked to achieve what his colleagues were also being asked to do and (other than those whose performance was also being managed) were achieving.
The Applicant disputes (Applicant’s Submissions at [28]) that Telstra had a valid reason to terminate his employment. The submissions he articulates in that regard can be generally described as follows:
• There was no specific evidence establishing the appropriateness of the criteria against which performance was to be measured (Applicant’s Submissions at [15] – [19]);
• The reason for termination was nothing more than a failure to meet certain revenue outcomes (Applicant’s Submissions at [20] – [21]); and
• A catalogue of other matters said to demonstrate that there was no valid reason (Applicant’s Submissions at [22] – [27]).
It is also salient to note that there is no challenge by the Applicant that he did not perform to the level set for or expected of him in the performance support plans (PSPs)set for August – September 2018 and October – November 2018. Given there is noobjective evidence demonstrating that the performance objectives/targets were unfair,unattainable or unreasonable, the Applicant’s challenge therefore really amounts tonothing more than inviting the Commission to “stand in the shoes” of Telstra anddetermine what it would have done. The Commission has consistently held that it doesnot do that (Walton and the cases that apply that). There is no reason for it to do it inthe circumstances of this case. The Commission is required to determine whether therewas a valid reason assessed from Telstra’s perspective, and not that of the Applicant(B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191;(2013) 238 IR 1 at [35]).”
[164] The Applicant’s submissions state that the Commission should find that the Applicant “was given no meaningful notification that his employment would be terminated, or more importantly, what might have been done to preserve the employment relationship”. The Respondent refuted this and submitted the Applicant understood the notification, because he was told this by the Respondent, by the conclusion of his meeting with Mr Trocas on 19 October 2018 that if he did not achieve the objectives set for him in the third PSP (dated October to November 2018) then one of or the likely consequence was the termination of his employment. 60 That consequence was also set out in the second written warning dated 19 October 2018.61 The Applicant read that warning letter.62 He knew the seriousness of it.63 The email to the Applicant on 13 December 2018,64 whilst not expressly mentioning that his employment might be terminated, did indicate that his performance remained unsatisfactory.
[165] The Respondent emphasised it was a matter for the Applicant to demonstrate that he could perform to the level expected of him as a Store Leader. That is particularly the case given that the Applicant’s performance had been monitored, informally and formally, for almost 12 months by that time.
[166] The Applicant’s submission, that he was “not given any meaningful warning as to his underperformance”, could not be satisfied on the evidence. The Respondent stated the evidence overwhelmingly demonstrated, through the three PSP processes and two written warnings, provided to him, that the Applicant was warned about his performance and managed on this basis for a reasonably lengthy period.
[167] The Applicant submitted he was not provided a fair notification of the meeting nor the opportunity to respond to the allegations of poor performance that were raised at the 14 December 2018 meeting. The Applicant submitted he was not provided with requisite information to understand the nature of the allegations, nor was the information sufficient for him to “prepare and articulate” a proper response. 65 The Applicant had set out that he was somewhat confused about the basis for the meeting. On the facts of the performance process, the Applicant was well aware of the Respondent’s ongoing concern, with his performance. The process had been on foot for some time and took various forms. The Applicant was aware of the Employers view of his performance levels. However the Applicant’s submitted uncertainty regarding the correspondence on 13 December has been taken into account. These were the additional matters he was able to address at the Hearing and respond to, which he has now done. This matter, and his response does not however alleviate, the real reasons of performance.
(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
[168] The Applicant submitted that while there was no unreasonable refusal by the Respondent to allow him to have a support person present at the meeting of 14 December 2018, he was of the understanding that it was to be a “Performance Meeting” and not a meeting that would result in the termination of his employment; hence he had not sought the assistance of a support person. 66 The Applicant conveyed his reasons for his lack of clarity for this meeting, this lack of clarity was not based on not having a support person. Some weight has been attributed to the manner in which the final meeting occurred. However, the meeting arose out of a lengthy context of performance management, at which he was able to respond at all intervals at this meeting. His subsequent responses in this hearing have been heard, but such did not diminish the Applicant’s understanding of the reasons for dismissal.
(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
[169] These matters of performance management have also been dealt with above, however the Applicant conceded he had been warned about his poor performance, prior to his dismissal. However, he denied that he had performed poorly. 67 The Applicant also stated that the continuing involvement of Mr Trocas in the process, after his complaint had reduced the efficacy of the process. This complaint by the Applicant is recognised and the process could have been amended to include a third party. The process was considered. This procedural issue was recognised, the Applicant had been warned about the performance issues.
(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
[170] The Applicant submitted he had made two complaints against “Onez”; hence he should not have been involved in implementing the dismissal. Further, he submitted there was a lack of procedural fairness such that he was denied natural justice, on this basis. 68
[171] The Respondent submitted that the procedure it followed was appropriate to the size of its undertaking. Contrary to the Applicant’s Submissions it was argued that Ms Ghorishy’s role was not “limited”, but appropriate in terms of her HR functions and Telstra’s performance management policy. That is the policy, generally, vests managers with the task of managing the performance of their reports, rather than imposing intervention. 69 That is, it was Mr Trocas’ role as the Applicant’s manager to manage his sales performance and address his underperformance in a retail environment. Mr Long expected Mr Trocas to do that, and would have performance managed him, in turn, if he failed to do so.70 Ms Ghorishy’s role included providing assistance to Mr Trocas in performing the management task in accordance with Telstra’s policy.
[172] In this respect, the Applicant did not point to any specific matter in this regard that he says rendered his dismissal unfair. The Respondent submitted that the Commission should find that this factor is a neutral one, in this determination.
[173] Given the size of the Respondent’s business, and its dedicated Human Resources specialist, the process after the Applicant complained about Mr Trocas could have been amended to include an additional sales manager to monitor the Applicant’s perception of the process and to eliminate any criticism associated with Mr Trocas’ continuing involvement. However it is noted that Mr Trocas was the sales performance manager for this group, and on the performance findings against the Applicant, as per the scorecard, were not altered by Mr Trocas’ involvement.
(h) any other matters that the FWC considers relevant.
[174] The Respondent pointed out that in the Applicant’s submissions dated 4 April 2019 he did not rely on any other matters under s.387(h) of the Act. However, in the Applicant’s closing submissions he submitted that the Commission should take into account other personal issues including a period of leave, the loss of a loved one, and the dismissal before Christmas.
[175] The Respondent objected to the Applicant being entitled to rely on these arguments, and that the Respondent would be prejudiced if the Commission allowed him to do so now, in closing submissions, after the evidence has been heard. As previously referred to it is considered that Telstra, was given advance notice arising from the Applicant’s evidence that these matters would be relied upon, (even though the Applicant was given leave to adduce the further evidence). Mr Trocas in managing the Applicant’s performance, was aware of these matters.
[176] It is noted in respect of the submissions, the Applicant makes about the circumstances surrounding the closure of the Carindale store, and the inferences and findings the Commission has been asked to draw from that. Mr Trocas dealt with the matter that Telstra had understood the Applicant was advancing, that he was terminated in order to avoid being paid a redundancy. The only questions put to Mr Trocas in that regard were in the following exchange:
“All right, Mr Woodford's store was closed wasn't it?---It was.
That's obviously a step that Telstra has to sometimes take, in circumstances that vary?---Yes.
One of the key circumstances that would determine a store closing is that it just wasn't making money?---That's one of the things that are considered by Telstra.
That was the only basis they put to you, so are you accepting what I said?---Yes.
But there are others, apart from profitability?---I can only speak second-hand to that.
Okay, well I'm not going to ask any more questions about that. Mr Woodford wasn't offered redundancy was he?---No.” 71
[177] The conclusion that the Applicant asks the Commission to draw could have been the subject of specific evidence put to the Respondent. The Applicant did not clearly put these propositions to Mr Trocas, or Mr Long. That is, the Applicant could have put to Mr Trocas that the Carindale Store was a poor performer generally; and/or that that poor performance was not due to the Applicant’s performance as Store Leader. The issues endeavouring to link the Applicant’s poor performance, to factors outside the Applicant’s control, was not satisfactorily made out.
[178] The disciplinary process was based on the system of the ‘BAPS Scorecard’ as developed by the Respondent, taking into account retail, and employee factors and the necessary store profits. It is open to retailers to reasonably set the level of performance required. The criticism by the Applicant of the performance assessment levels and the process used, on the evidence did not disrupt the validity of the approach the employer had undertaken. This was particularly so given the lengthy period of assessment, the range of methods used, and the scores.
[179] Whilst it is recognised that the Applicant took issue at the steps of the disciplinary process, the process has not been demonstrated to be a termination brought about swiftly. The Applicant was given an understanding of what was required. The Respondent required a consistent improvement in performance, and this did not result, over the management period. There was no evidence justifying the need for the Respondent to continue the process.
[180] Furthermore, in terms of other issues; with regard to the Applicant’s bullying complaint; the evidence of the relevant exchanges between the Applicant and Mr Trocas has been set out, whereby Mr Trocas queried issues with the Applicant. For example, issues of why the Applicant had not stayed for the whole managers’ ‘meeting, particularly in the context where he was being performance managed, in relation to the store performance. In addition, Mr Trocas’ directions to the Applicant were reasonable, to provide the details of the customer complaint, (that the Applicant stated he was dealing with and was the reason he could not stay at the meeting). The Applicant’s responses to Mr Trocas were belligerent and defiant. Mr Trocas had provided a direction, the Applicant did not comply with such. The evidence did not justify the bullying complaint and no procedurally fatal flaws have been demonstrated.
CONCLUSION
[181] The Applicant submitted that the trust and confidence in the employment relationship had not been lost, such that reinstatement would not be impractical and therefore he sought reinstatement as a remedy, with intervening wages or compensation.
[182] On the evidence of the performance management process and outcomes, the dismissal was justified. Therefore, neither reinstatement nor compensation is applicable on the material as set out. The Respondent had a valid reason to terminate the employment and the associated dismissal was procedurally fair. I am not satisfied that the dismissal was harsh, unjust or unreasonable.
[183] For the aforementioned reasons, the application pursuant to s.394 is dismissed.
[184] I Order accordingly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR714932>
1 Respondent’s Outline of Submissions dated 29 April 2019, at [4].
2 Ibid at [6].
3 PN737.
4 PN1959 to PN1965.
5 PN193 to PN300.
6 PN156 to PN160.
7 Ibid.
8 Ibid at [7].
9 Ibid.
10 Ibid.
11 Ibid at [8].
12 Ibid at [9].
13 Ibid at [10].
14 Ibid at [11].
15 PN631.
16 B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191, (2013) 238 IR 1 at [35]).
17 Applicant’s submissions at [15].
18 Jain v Infosys Limited T/A Infosys Technologies Limited[2014] FWCFB 5595 at [37]; Barone v Zero In Pty Ltd T/A Shoreline Caravan Park[2018] FWC 3993 at [24]).
19 Teterin v Resource Pacific Pty Limited[2014] FWCFB 4125 at [32(2)].
20 PN614-PN615.
21 PN573-PN585.
22 PN1604.
23 PN1251 – PN1254.
24 PN307.
25 PN301.
26 PN311.
27 PN309.
28 Browne v Dunn (1893) 6 R 67 (HL); see also discussion by the Full Bench of the AIRC in Huang v Rheem Australia Pty Ltd [2005] AIRC 108 at [21] – [31].
29 PN1772 to PN1777.
30 PN211.
31 PN217.
32 PN212.
33 at [45].
34 PN1716, PN1757 – PN1759 and PN1921.
35 PN506, PN522, PN530, PN537 and PN544.
36 PN1573-PN1598, PN1605-PN1612.
37 PN522 to PN562.
38 It is not apparent from the Applicant’s Submission what evidence is relied on in support of this submission.
39 PN1600; PN1604.
40 PN744-PN762.
41 Sexton v Pacific National (ACT) Pty Ltd (Lawler VP, PR931440, 14 May 2003) at [36]; Darvell v Australian Postal Corporation[2010] FWAFB 4082 at [21] – [24].
42 PN1761-PN1768.
43 Ex 4 at [39]; Ex 5 at [48].
44 Ex 4 at [13].
45 Browne v Dunn (1893) 6 R 67 (HL); B v Brisbane City Council T/A Brisbane Transport[2010] FWA 3856 at [64] per Spencer C.
46 PN639 to PN641.
47 PN1223.
48 PN1255 to PN1256.
49 PN1259.
50 PN1335.
51 PN1337 to PN1340.
52 PN1368 to PN1369.
53 PN1582 to PN1618.
54 Applicant’s Outline of Submissions dated 4 April 2019 at 2.3.4-2.3.5.
55 PN631 to PN632.
56 Ex 6 at page 138 (OTT-21).
57 PN874-PN876.
58 Applicant’s Outline of Submissions dated 4 April 2019 at 2.4.1.
59 Respondent’s Outline of Submissions dated 29 April 2019, at [13].
60 PN819-PN829.
61 Ex 6 at page 105.
62 PN707.
63 PN708.
64 Ex 6 at page 122 (OTT-18).
65 Applicant’s Outline of Submissions dated 4 April 2019 at 2.5.1.
66 Applicant’s Outline of Submissions dated 4 April 2019 at 2.6.1.
67 Applicant’s Outline of Submissions dated 4 April 2019 at 2.7.1.
68 Applicant’s Outline of Submissions dated 4 April 2019 at 2.8.1.
69 Ex 5 at [5] – [10].
70 Ex 4 at [12].
71 PN1772 to PN1777.
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6
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