Mr Daniel Bowley v Trimatic Management Services Pty Ltd
[2013] FWC 2533
•24 APRIL 2013
[2013] FWC 2533 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Bowley
v
Trimatic Management Services Pty Ltd
(U2012/16616)
COMMISSIONER STEEL | ADELAIDE, 24 APRIL 2013 |
Termination of employment.
[1] This is an application by Mr Daniel Bowley (the applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The respondent is Trimatic Management Services Pty Ltd. This decision has been provided without benefit of the transcript and the Commission reserves the right to amend the decision accordingly if appealed.
[2] Mr Bowley commenced with the respondent on 20 November 2007 and at the time of his dismissal was engaged as a “Floor Manager” or “Customer Experience Sales Manager” in charge of a team of agents in the respondent’s facility in Adelaide. He was dismissed on 27 November 2012 with immediate effect. The reasons for the dismissal set out in his termination letter of that date refer to; unsatisfactory performance against key targets despite an extensive performance management improvement plan being in place since early September 2012, the lack of regular completion of trigger sessions with staff and a continued and evidenced unacceptable lack of professionalism and attitude within the workplace (the Commission’s paraphrasing).
[3] The application for remedy was made on 11 December 2012 within the time limit required by s.394(2) of the Act. The applicant is a person protected from unfair dismissal as defined in s.382 of the Act. The respondent is not a small business hence a consideration of the Small Business Code is not activated and the dismissal was not a redundancy.
[4] The conference determination was held on 16 April 2013 but owing to the lateness of the completion of the matter the Commission did not provide a determination at that time but has endeavoured to provide it as soon as possible thereafter.
[5] The applicant provided evidence on his own behalf and the Commission found him generally reliable save from some issues as to recall of specific meetings and events. Evidence was provided for the respondent by Mr Steve Spicer, General Manager of Sales, Mr Animitray Aditya Chaudhury, Centre Manager SA, Ms Candace Aditya Chaudhury Centre Lead and the applicant’s immediate supervisor and Ms Susan M Lawrence, National Human Resource Manager. The Commission found these respective witnesses generally reliable and helpful in identifying the facts of this matter. There was no evidence or submissions provided to the Commission in regard to the applicant‘s record of employment prior to March 2012, at which time the respondent initiated actions in relation to his performance.
The applicant’s submissions
[6] The applicant indicated his remuneration approximated $63000 per annum including various monthly bonuses. He asserted he was a long term, experienced, valuable employee and rejected the assertion his performance was less than acceptable in comparison with like employees. The applicant claims his dismissal for performance reasons cannot be relied upon and is unfair.
[7] In regard to not meeting specific targets in the later stage of his employment the applicant provided various reasons that had influenced his performance. In this regard he asserts the respondent acknowledged that the structural changes in regard to the conversion of contractors to employees within the workplace were beyond his control and that the facility was affected at times by dialler downtime and hence the sales targets and campaign targets were unreasonable in the circumstances.
[8] The applicant asserted that his ability to meet “trigger session” requirements was similarly affected by the above reasons and the conflicting priority to keep his agents on the phones for the maximum time affected this being a valid reason for dismissal.
[9] The applicant disputed the material facts in relation to various examples relied upon by the respondent in respect to his attitude and professional behaviour. He further indicated that the email relied upon in one instance with Ms Elizabeth was a private email, was not intended to reflect a worksite matter and should not be relied upon.
[10] Similarly the issue with Mr Vianna is denied and the applicant proffers a different scenario than the respondent. The request to call team members that were absent is similarly denied and the lateness to the pizza lunch was referred to as an oversight. The applicant denies a habit of lateness and points out his rostered time for work to commence is 9.00 am. The implications of the accusations of the respondent are to the effect he was to work unpaid before his starting time and hence cannot be relied upon for a dismissal.
[11] The applicant referred the Commission to the bullying and harassment complaint he had made in early 2012 against Mr Chaudhury. He complains that the investigator (Mr Bone) did not interview appropriate witnesses and he was unsatisfied with the outcome he received. However he did not prosecute the matter further with SafeWork SA (SafeWork) because he had formed an accommodation at work with his management.
[12] In this respect he was put on an informal performance management review plan by his management in March 2012. He complains however that the plan was applied inconsistently and lacked the necessary support of Mr Chaudhury. He asserts he was generally given new targets with no indication of how to achieve such targets. He approached Mr Spicer about a new role elsewhere in the organisation and was directed to Mr Chaudhury. The applicant subsequently was informed he was now on a formal performance improvement plan by his now supervisor Ms Chaudhury and Ms Lawrence on 26 September 2012. The applicant asserts that the performance plan with Ms Chaudhury was incomplete because of the influence of disruptions and structural changes in the facility.
[13] On 27 September 2012 the applicant, at short notice, was called to a meeting with Mr Chaudhury. He was aware it was important as Ms Lawrence was in attendance. He declined a support person. He was not advised in advance of an agenda for the meeting. Mr Chaudhury handed the applicant a letter and proceeded to read the letter to him. That letter was a letter of dismissal with the applicant being dismissed, effective immediately. He was then asked if he had any questions to which he expressed his disappointment and left. The applicant received four weeks pay in lieu of notice.
[14] In regard to the evidence provided by the respondent, the applicant did not take exception to a significant part of the evidence provided by the witnesses.
The respondent’s submissions
[15] The respondent asserts the applicant was dismissed for valid reasons as to his performance and conduct and that he was performance managed, initially informally and then formally for a period of eight months. It is also asserted that the applicant received support and encouragement but failed to sustain an improvement in his required conduct.
[16] In regard to his performance, on approximately 19 or 20 March 2012 the respondent recognised the applicant was not meeting his required CESM KPIs and he was put on an informal performance plan. Mr Spicer and Mr Chaudhury had discussions with the applicant about this plan. Targets were set for him and he agreed to these targets on 22 March 2012. 1 The respondent asserts these were in fact lower targets than other peer employees of the applicant. Mr Chaudhury was to meet with him on a weekly basis and provide feedback and direction.
[17] The applicant made a formal complaint against Mr Chaudhury for bullying. This proceeded to an investigation by an external contractor (Mr Bone) on behalf of the respondent. Mr Chaudhury continued to manage the applicant. Ultimately the report by Mr Bone did not find any justification for the complaint and offered ulterior motives for the applicant’s complaint against his manager. The respondent asserts the applicant did not assist this investigation and also that he made a similar complaint to SafeWork that SafeWork chose to close down at a later stage.
[18] The evidence of the respondent is notable in regard to the following:
● On 19 April 2012 the applicant was advised that his March KPIs showed he was performing well below the targets that had been agreed upon.
● On 30 March 2012 Mr Chaudhury had a one on one to review of the applicant’s daily performance, confirmed by email on 31 March 2012. 2
● There was a further one-on-one session and confirming email on 3 April 2012. 3
● On 19 April he was given an email showing his KPI were well below targets agreed. 4
● On 8 May 2012 he was counselled about not following routines regarding agents and focus sessions.
● On 28 May 2012, 2 and 19 June 2012 the applicant received specific feedback and instruction from Mr Chaudhury as to the performance plan.
● He had a one-on-one session on the 30 June 2012.
● On 2, 7 and 25 July 2012 the applicant received further information on his KPIs and follow up actions required.
● On 24 August 2012 the applicant had a further one-on-one session and on 27 August 2012 the applicant received his KPI results for July. 5 This document illustrates that the applicant was being instructed directly as to what to do in his role. For example “to do regular focus groups, to follow up on 5 contact trackers and micromanage during the day” and “enter all coaching includes SBS, trigger sessions and focus sessions”.
● The applicant received his August KPIs on 24 September 2012.
● On 27 October 2012 he received his KPIs for September.
● On 18 October 2012 he was advised of various requirements in regard to stakeholder meetings and preparing for morning agent meetings.
[19] The respondent asserts that the applicant was treated fairly and the same as other employees in terms of performance management plans.
[20] Ms Chaudhury took over the management of the applicant following her promotion in September 2012. The applicant at that time asked for the performance management plan to be concluded. However because of his absences it was extended for a further period.
[21] Ms Chaudhury, in September and October, assisted the applicant with action plans, directly in meetings and provided shared information sessions with other team leaders to assist him.
[22] Ms Chaudhury, on 26 September 2012, also commenced a formal performance management plan with the applicant. In document the applicant was given a document by Mr Chaudhury in the presence of Ms Chaudhury and with Ms Lawrence on the telephone. 6 This was a formal meeting. The letter is headed “Formal Warning and Performance Improvement Plan” and confirmed the view the applicant’s performance was still considered unsatisfactory against the respondent’s parameters. It provided a formal warning in that regard and set out the areas in which he must improve. It indicates that if the applicant’s behaviour, communication and overall performance remained unsatisfactory by 26 October 2012 that further disciplinary action will be considered including terminating employment. The document set out weekly meetings and also stated that the applicant was required to improve his performance to the satisfaction of the respondent by Friday 12 October 2012.
[23] On 4 October 2012 the respondent organised and held a performance review. This resulted in the letter to the applicant of 11 October 2012 confirming the agenda and the areas discussed and required to be addressed over the following weeks. This was a six page document and was comprehensive as to content, examples and expectations.
[24] On the 17 October 2012 a further review was held and the applicant received feedback on his performance, e.g. being negative with staff and the need to be more professional. There were some areas, such as coaching, which were unsatisfactory but in some areas there had been improvement by the applicant.
[25] The applicant received a further letter on 19 October 2012 which again outlined the areas required to be improved and that the improvement plan would be extended for three days due to his absences.
[26] On 25 October 2012 a further review meeting was held and the applicant was given specific key actions areas again that the needed to complete.
[27] The next review was held on 2 November 2012 and the applicant was assessed as having deteriorated, despite some structural issues applying and some absences in October.
[28] Ms Chaudhury at this time wanted to extend his review for a further four weeks. She also had identified the applicant was texting during training, was displaying rudeness in management meetings, providing unacceptable remarks or humour, displaying lateness and had not prepared for meetings. His operational statistics and metrics had improved during October but his sales had not.
[29] The respondent’s evidence is that the applicant, when compared with other like employees and allowing for absences and structural changes in the workplace, was the worst performing manager. They considered his attitude reflected a habit of lateness, an indifference to requirements and lack of concern for his work.
[30] Ms Chaudhury went on leave on 12 November 2012 and in that period up until 27 November 2012 the respondent considered that it was unlikely the applicant was going to improve and they decided to terminate his employment.
Consideration and Conclusion
[31] In such matter the Commission must have regard to the following sections of the Act:
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.
[32] Given the requirements of the above legislation on the Commission in these matters the following findings are made.
S.387(a) - Was there a valid reason for dismissal?
[33] Given the body of evidence provided by the respondent as to the nature and characteristics of their industry; the requirements of the role of the applicant and the nature and detail of the various performance management applied to the applicant, the Commission considers that a cogent case has been provided that the applicant did not perform to the legitimate requirements of the employer in the reported factual circumstances. The Commission is persuaded that such a reason is defensible on an objective assessment of the factual circumstances of the applicant’s management and dismissal. The respondent therefore has a valid reason for dismissal related to the applicant’s capacity or conduct in the unacceptable performance of the applicant and in his response to performance management. The characteristics of that role are dynamic and focused and it is apparent the weight of evidence is such that the applicant acted in contrast to that required.
[34] The applicant’s contrasting conduct seems to have its genesis in the attitude of the applicant to such a time critical and focussed workplace. It is accepted that he did not attain or reach the standards required in a number of areas. It would seem he consistently was manifesting his personal style in the workplace and demonstrated that he had issue with the expectations of the respondent.
[35] There are some matters of conduct relied upon that are disputed and in the consideration of the Commission seem somewhat excessive to be relied upon e.g. the missing of a lunch on a day the applicant was ill but came to work on the request of the respondent, the nature of the usage of Mr Vianna’s name and the issue of lateness identified by the applicant attending at one minute past starting time.
[36] However, taking the body of evidence into consideration and an assessment of the factual circumstances the Commission is persuaded that the respondent had a valid reason for dismissal of the applicant in terms of his deficient performance in his role.
S.387(b) and (c) - Whether the person was notified of that reason and whether the person was given the opportunity to respond.
[37] The applicant was provided with his “Termination of Employment” letter and it was read out to him in the final meeting with the respondent on 27 November 2012. 7 That letter is substantive as to the conclusions of the respondent as to his performance. The evidence is that the applicant was asked if he had any questions and he made some comments of his disappointment and then left.
[38] This scenario is deficient in procedural fairness in that the decision to dismiss the applicant was taken some time before the actual meeting. The respondent then planned the meeting, gave him his letter and orally confirmed its contents. The evidence of Mr Spicer is that he received recommendations from his management to dismiss the applicant from mid November. He recollects that he made the decision two days before the applicant’s dismissal meeting thus allowing the preparation of the dismissal letter and the organising of the meeting. 8 Given that the decision had been made by Mr Spicer, the officers of the respondent just informed the applicant by giving him the letter of dismissal.
[39] In the matter of Crozier v Palazzo Corporation Pty Ltd 9 a full bench of the Australian Industrial Relations Commission determined that:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment.”
[40] In the Commission’s view the above reference determination applies to the consideration within s387(b) of the Act. That notification of the valid reason for dismissal must be given to the employee before the decision to terminate is made. Thus in this matter the applicant was deprived of an opportunity to respond to an impending termination and thus potentially offer further information for the consideration of the respondent.
S.387(d) - Was there an unreasonable refusal by the employer to allow a support person present to assist the applicant?
[41] The applicant was given the opportunity to have a support person present at his dismissal meeting and did not take that opportunity.
S.387(e) - Whether the person had been warned of his unsatisfactory performance.
[42] This item is not contentious given the Commission’s earlier findings as to valid reason on performance grounds. There is ample evidence as to the respondent’s view on the applicant’s unsatisfactory performance, their communication of those views to the applicant and there are documents as to warnings of disciplinary action including a consideration of dismissal.
S.387(f) - Was the impact of the size of the respondent’s enterprise on procedures followed?
[43] The respondent has in excess of five hundred employees and has a small human resource team. The progression of the performance management plan both informal and formal would seem to be comprehensive. The Commission considers the respondent then became somewhat frustrated and hastily brought the matter to an end, probably confident that the applicant’s conduct and issues were now self evident and warranted dismissal. In that haste they have given insufficient consideration to the procedural approach and the impact on the applicant of their decision. The respondent has a geographically separated workforce and management in a dynamic industry which brings its challenges. Such challenges may have resulted in the scenario identified by the Commission.
S.387(g) and (h) - The degree to which the absence of dedicated human resources or expertise in the enterprise would impact upon the procedures followed in affecting the dismissal and any other matters considered relevant.
[44] The respondent has dedicated human resource staff and hence these are not neutral considerations. The Commission is persuaded having heard the evidence of the parties and considered the weight of evidence provided by the respondent that there was no intent at any time by the respondent to prejudice natural justice and fairness of the applicant’s dismissal and that the deficient approach was not intentional by the respondent’s staff.
Was the dismissal of the applicant harsh, unjust or unreasonable?
[45] After consideration of all the relevant criteria the Commission concludes that the dismissal of the applicant was lacking in procedural fairness and because of its personal and economic consequences on the applicant was harsh (see Stewart v University of Melbourne). 10
Remedy
[46] The provisions of ss.390 and 391 of the Act determine the Commission’s approach to remedy in these matters.
[47] The applicant is not seeking reinstatement and the respondent did not make submissions as to reinstatement. In consideration of the circumstances of this matter and the relevant statute sections above the Commission is satisfied that reinstatement is inappropriate in this matter and that an order for compensation should be made.
[48] The Act at s.392 determines the remedy of compensation and the Commission has considered the relevant criteria of s.392(1)-(6) and the evidence and submissions in this matter. The commission has determined the respondent had a valid reason applied with lack of procedural fairness.
[49] The award of compensation is a discretionary act of the Commission. Taking into account all the circumstances of the case and the above findings and the criteria within s392(2) the Commission determines that the applicant was unfairly dismissed and should receive compensation from the respondent in the amount of four week’s pay based on an annualised salary of $63000, including bonuses. An order shall be issued separately to this effect.
COMMISSIONER
Appearances:
Mr D Bowley in person
Ms Z Peggs for the respondent
Hearing details:
2013:
Adelaide
16 April
1 Exhibit R2, Annexure AAC3
2 Ibid, Annexure AAC7
3 Ibid, Annexure AAC10
4 Ibid, Annexure AAC12
5 Ibid, Annexure AAC31
6 Exhibit R3, Annexure CAC3
7 Exhibit R2, Annexure AAC42
8 PN 786-791
9 (2000) 98 IR 137 at 151
10 AIRC Print S2535, Unreported judgement of Ross VP, 20 January 2000 at [74]
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