Mr David Brasted v Cerebral Palsy Alliance
[2012] FWA 2414
•16 APRIL 2012
[2012] FWA 2414 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Brasted
v
Cerebral Palsy Alliance
(U2011/11810)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 16 APRIL 2012 |
Alleged unfair dismissal.
[1] Mr David Brasted (the applicant) applied on 19 September 2011 for an unfair dismissal remedy in relation to the termination of his employment by the Cerebral Palsy Alliance (the respondent) on 6 September 2011. The matter did not settle at conciliation and was referred to me for determination. Hearings were conducted on 8 and 9 February and 15 March 2012. Ms Johnston (with Mr William Ash) of the Health Services Union East Branch represented the applicant and Mr Borrow of Leana Street Consulting Pty Ltd represented the respondent.
The evidence
[2] Mr Brasted gave evidence on his own behalf. In addition, the following witnesses gave evidence for the applicant:
- Ms Brenda Ibels (Mr Brasted’s support person)
- Ms Joan Bratel (Senior Consultant)
The following witnesses gave evidence on behalf of the respondent:
- Ms Kylie Miller (former Community Links Manager)
- Ms Karen Durrell (Senior Employee Relations Advisor)
- Ms Ann Fletcher (Clinical Supervisor)
- Ms Susan Brown (Regional Manager)
[3] Mr Brasted commenced employment with the Cerebral Palsy Alliance as an Intensive Family Support Options (IFSO) Family Therapist on 29 January 2008. The IFSO program is funded by the NSW Department of Family and Community Services, Ageing, Disability and Home Care (ADHC). The program was established to provide a flexible in-home service to assist families with a child or young person with a disability. The program is designed to work closely with families under severe stress, with the aim of reducing the likelihood of permanent out of home placement.
[4] IFSO therapists need to dedicate time to build trust with each family so the family is able to share their vision and identify goals that matter most for their family’s well being. They look for ways to build on a family’s strengths and need to be alert to recognise signs of safety for a child with a disability and their siblings. They may be required to defuse escalating situations and make reports as necessary. They also assist the family to build new or better connections and relationships with other services that will be engaged in the longer term.
[5] The IFSO program has flexible hours of delivery so that home visits can be arranged at a time that works best to support each family to implement their strategies. This typically includes early morning and evening periods. This will vary with each family and will vary over the 8 to 12 weeks of the family’s IFSO program.
[6] IFSO Family Therapists work 38 hours a week. Start and finish times occur outside normal office hours. Therapists are able to provide a flexible service to fit with the needs of families and the times when they want to implement new routines. Therapists are able to adjust their daily start and finish times and/or to record additional hours as time off in lieu so as to keep their hours to 38 a week. IFSO Family Therapists, for safety reasons, alert their manager by text of times when they are starting and finishing each home visit. 1
[7] As part of the respondent’s contract with ADHC, it gave a commitment that each Family Therapist would deliver:
a) support to 12 families per year, therefore carrying a caseload of 2-3 families at a time;
b) an intensive service of 6-12 weeks per family dependent on family need; and
c) an average of up to 10 hours per family per week.
[8] In her written statement, Ms Miller indicated that
‘In order to ensure the contractual arrangements with funding bodies are met and therefore contracts maintained the Respondent’s managers set a benchmark or target for the percentage of client attributable hours staff would be required to complete in each week.
Below is the calculation of the benchmark or target work hours an IFSO Therapist needs to provide as client attributable hours:-
a) 12 families annually x 10 weeks service (as generous average) = 120 weeks service delivered annually;
b) 120 weeks delivered annually/48 weeks work (after 4 weeks annual leave) = 2.5 families per week;
c) 2.5 families per week x 10 hours per week per family = 25 hours of client attributable support per week;
d) 25 hours client attributable per week/38 hours per week x 100 = 66% of work hours should be client attributable.
The ideal benchmark figure for a full-time IFSO Family Therapist is consequently 66%.
In order to meet our contractual funding agreement and maintain the IFSO contract a benchmark range of 60-70% of client attributable work hours was set for all IFSO Family Therapists in the Hunter and Central Coast region.
REX is the client information database for Cerebral Palsy Alliance. This database is used to record events of service for clients plus provide vital information for planning, research and government reporting. All staff working directly with families is required to input their work time spent each day against specific client intervention and non-client intervention codes in REX. Client attributable hours and codes cover tasks such as:-
a) client intervention
b) family intervention
c) reports and correspondence
d) travel related to client support-such as to and from home visit etc.
e) assessment and planning
f) client troubleshooting
g) group preparation
Non-client attributable hours and codes include hours such as:
a) Meetings
b) Supervision
c) information and resources collection (not related to a specific client)
d) administration and maintenance (such as general e-mails, etc)
e) Research
f) professional development leave’ 2
[9] Ms Miller, as the Community Links Manager, met with all her staff, including Mr Brasted, on an individual basis every 4-6 weeks. On 22 November 2010 Ms Miller raised with Mr Brasted her concern that his client attributable hours were quite low with an average of 35%. The rest of the team's average was 60 to 70% which is the benchmark. The applicant was told that the hours he spent on client related work needed to almost double his current average per month. He was told that he needed to increase the depth of service offered to families in order to work at the intensity required for the IFSO service to meet the outputs of the contractual agreement with ADHC and also the workload expectation of the organisation was stressed and documented. The applicant was advised to arrange additional specific training by particular experienced colleagues after issues with REX data entry was raised in supervision sessions with him on 2 April 2008, 29 April 2009, 28 May 2009 and 5 August 2011. Reminders to ensure REX data was updated to meet the respondent's accountabilities were provided specifically to the applicant and 23 July 2010, to August 2010, 7 March 2011, and 17 June 2011. 3
[10] In October 2010, as part of a performance appraisal process, a 360 degree assessment was conducted, with contributions from staff, managers and client families. After reviewing the feedback, Ms Miller considered that various issues regarding Mr Brasted’s work performance, competency, work ethic, accountability and professional conduct needed to be addressed. She sought advice from Ms Durrell as to how to handle these alleged performance issues 4.
[11] This led to a meeting on 10 December 2010, between Ms Miller, Ms Durrell and Mr Brasted to discuss the alleged performance concerns with him. The matters discussed at this meeting are set out in Ms Miller’s statement, including
- Time management and worth ethic - I questioned whether [Mr Brasted] was actually completing 38 hours of work a week at either the office or at client’s homes as reports from colleagues and referrers did not indicate adequate work hours were being completed.
- Role Performance - feedback received indicated a general lack of confidence from colleagues and referrers in the Applicant’s work and a concern for the portrayal of the IFSO service in the broader community.
- Inappropriate internet usage - recent internet usage reports indicate that the applicant has been utilising the internet for personal usage rather than for work purposes on the majority of occasions.’ 5
‘ Minimal Client Attributable Hours - the amount of time the Applicant spent working directly with clients or in other client related tasks was less than ½ what the ideal benchmark for IFSO therapists which is 60-70%. ...
[12] In response to these concerns, the applicant said that he did not believe that the families he was working with needed or wanted him to spend more support hours with them. It was agreed that he would work with an additional family for the next three months to increase his client-attributable hours.
[13] Concerns were also raised regarding Mr Brasted’s use of the internet and other resources to assist the families he was working with:
‘The Applicant did not agree with the need to use the internet much to research information or resources for his families or utilise the toys, books and other resource provided in the IFSO loan pool in his work with families because he used his own skills and knowledge as his resource. He also commented that “I guess I should look at the resources but I am probably too lazy”’. 6
In his own witness statement, Mr Brasted stated:
‘My broad experience and ability to research as required meant trolling through the internet was not going to be useful unless I had a specific inquiry. We had a good library of reference books available in our office.’ 7
[14] At the conclusion of the meeting, the applicant was informed that he would be issued with a written warning on the basis that he had breached the internet usage policy. He was told that he would risk his ongoing employment if he did not improve in the identified work performance areas 8.
[15] A personal development plan was subsequently prepared and sent to the applicant in order to address these issues. As part of this plan, fortnightly supervision sessions were held by Ms Fletcher. Ms Fletcher’s evidence in relation to these sessions included the following:
‘When supervising the Applicant, I was made aware that home visits were being conducted at a rate of one per week. The usual expectation, and the practice applied by other Family Therapists on staff, is to visit at least two to three times per week. ...
The IFSO service offers flexible home visiting to ensure that it suits the family. This will often require visits after hours and during the weekend. To the best of my knowledge and recollection the Applicant rarely conducted visits out of hours.
... During supervision, I would recommend tools and resources that I considered were appropriate and would assist the Applicant to provide support and strategies to a family. The Applicant would dismiss these ideas, responding with words to the effect: “that wouldn’t work with this family” or “the family would not be interested in that.”
The Applicant frequently reported that he had referred families to other agencies for support with interventions that our IFSO service provided, such as visual communication tools, diet and nutritional changes, sensory modulation techniques, and behaviour intervention services, thus providing a case management rather than intensive family support. ...
During one-on-one supervision, group supervision sessions and team meetings, the Applicant would state words to the effect: “I don’t know anything about Autism” or Downs Syndrome or other disability types.
As a service that requires a family to have a child with a disability to be eligible to access service the Applicant had a responsibility to seek knowledge about the disability type and how to best manage and interact with the child.
During supervision, the Applicant would make statements such as: “I can see that there is a lot of issues between Mum and Dad” or “I feel that Mum really baby’s the kid”. When I would ask how the Applicant will address these issues with the family, the Applicant would state words to the effect: “I don’t think it’s something they want to talk to me about’. 9
[16] On 11 April 2011, a review meeting was held. The applicant, Ms Ibels, Ms Miller and Ms Durrell were present. At this meeting, Ms Miller raised various issues including:
- Minimal client attributable hours - the applicant had increased his client attributable hours to 60% in January, 56% in February and 48% in March. It was reinforced to the applicant he was required to reach the target of 60-70% consistently each month.
- Provision of support to families to be more in line with the IFSO model - the applicant was informed that he was required to work more intensively with a particular family based on the feedback provided by a member of that family to other service providers.
- Demonstrated work hours need to be a minimum of 38 hours ‘I also raised the issue that his work log demonstrated that on numerous occasions he was working from home prior to attending an appointment with a family. Although at times this is unavoidable as this may be the only time that suits a family, I requested that the Applicant tried to make the appointments closer to the start of the day if visits were local to his home (keeping client needs in mind) or start his day later and finish later, as the majority of the staff members time should be at either the office or client visits not at home doing notes or prep work prior to later visits. 10
[17] It was agreed that amendments would be made to the personal development plan and a further meeting would be held in four weeks. It was acknowledged by Ms Miller that:
‘the Applicant had made a number of changes to his work practices and progressed towards achieving the level of performance expected of a Family Therapist.’ 11
[18] On 30 May 2011 another review meeting was held. The following issues were discussed:
- Client attributable hours - Mr Brasted had not met the 60-70% target in April or May. He requested further training in the REX program. He suggested that his colleagues had used the program differently and were therefore able to ‘make their hours look better’ in REX. However when challenged about this at the meeting he was unable to provide an example of this occurring. Ms Miller did however agree to arrange some additional REX training with a staff member from the IT Department if this was possible. 12
- Provision of support to be more in line with the IFSO model - Mr Brasted had been attending regular clinical support supervision sessions with Ms Fletcher since February 2011. Based on the feedback she had provided with respect to these sessions, Ms Miller was of the opinion that ‘the Applicant still did not appear to be grasping the requirement for depth of work with [a particular] family.’ In her statement, Ms Miller states:
‘The Applicant was still only providing weekly visits to a family with several phone calls. This was highlighted in a recently received report from the referrer for the “K” family. In response to the question, what would you have liked to have been different about the program? the referrer who was the school counsellor wrote:
“would have liked him (the Applicant) to spend more time than an hour and a half each week with the family working with ‘M’ and helping getting him into a routine” ...
In response to the question “Please comment on the amount of contact we kept with you while IFSO worked with the family, and whether this was sufficient”. The referrer responded:
“Very little contact was made with me regarding strategies put in place. I only heard second hand from “M”’s aunty what help had been provided”’. 13
- Demonstrated work hours needed to be a minimum of 38 hours per week: The applicant work log showed that he had worked less than 38 hours per work since the review meeting that was held on 11 April 2011. There were also some discrepancies between the applicant’s work log and his REX data. The applicant was reminded by Ms Miller to complete the work log in a timely manner to ensure its accuracy.
[19] At the conclusion of the meeting, Mr Brasted was told that a second warning letter would be issued as he had failed to meet the IFSO Family Therapist benchmark for client attributable hours of 60-70%. A further review was scheduled for six weeks. Ms Miller stated:
‘It was made clear to the applicant that if after the review on 18 July 2011 the Respondent was not satisfied with [the] Applicant’s progress and performance, he may be terminated.’ 14
[20] Another review meeting was held on 27 July 2011. Mr Brasted, Ms Giblett (an organiser from the Health Services Union), Ms Miller, and Ms Durrell were in attendance. The issues raised in this meeting included:
- Client attributable hours - Mr Brasted’s client attributable hours for June were 53%, which was below the benchmark of 60-70%. Mr Brasted’s responded that he had not yet received the REX training that he had requested at the meeting on 30 May 2011. Ms Miller indicated that she had reviewed the REX data against client file notes and it showed the Applicant was entering the client attributable data appropriately. 15 She also suggested that the applicant could refer to the REX Task Cards for assistance, which are available on the organisation’s intranet page.
During cross-examination, Ms Miller was questioned as to why the applicant was not provided with this training. Ms Miller responded as follows:
‘[Mr Brasted] advised that he had not had formal REX training. The process of training staff in the use of REX, which is throughout our whole organisation, is we don’t actually have a training session that people attend to do that. It’s actually a coaching session, as we do most of our other orientation. So we do a lot of training courses but for REX in particular it’s about documenting your hours.’ 16
- Provision of support to be more in line with the IFSO model - In Ms Miller’s statement she outlined the following:
‘I discussed the progress the Applicant had made with increasing the intensity of his work with families. The Applicant had met with Ann and I on 10 June 2011 to provide clarity on the expectation of an intense service as outlined by the funding body. The applicant had reported that this was helpful to us at the time and he again indicated that the meeting was useful.
... Ann and I also actively sought feedback from recent referrers and clients that the Applicant had worked with as identified in the last meeting. ...
With regard to the “W” family the school counsellor reported “he was very gentle with the family. IFSO was a good model but needed it for longer. Behaviour had not changed at school but reports were that he was a little better at home.”
The mum of the “S” family provided the following feedback:
“He referred me to other services mainly, he was supportive of me rather than setting goals and he would do one home visit a week or I would go in there. He didn’t offer to see more than that”.
I then went on to say that in some instances this feedback indicates the Applicant still does not appear to be grasping the requirement for depth of work with the family or make himself available in a flexible way as the service was designed to do’. 17
- Demonstrated work hours - The applicant had not yet increased his work hours to the required 38 hours per week.
[21] At the conclusion of this meeting, Ms Brown pointed out to the applicant that he had failed to meet the expectations that had been set out in his personal development plan. Ms Brown’s statement sets out the conversation that followed:
‘Despite this, I said that the Applicant would have one final opportunity to address the outstanding work performance issues.
I outlined four areas that he needed to meet to avoid having his employment terminated:
(a) The Applicant needed to meet the benchmark for client attributable hours of 66%. Zelda, his support person, confirmed that the Applicant understood 66% client attributable would mean he would need to spend 5 to 6 hours a day dedicated to working with or following up on matters directly related to his clients.
(b) I said the Applicant needed to demonstrate that he was working a 38 hour week and so to continue to record the Work Logs.
(c) By the next meeting, the Applicant would be required to share examples of documented notes to demonstrate clear communication of plans and goals and a formal professional therapeutic letter written on exit that communicated a family’s goals and key strategies with the family’s ongoing support services; and
(d) The Applicant would need to have maintained professional behaviour at all meetings.
I stressed the importance of the matter set out in the preceding paragraph of this statement, by stating that the Applicant had to meet all four areas of accountability to avoid termination of his employment.
The Applicant responded by stating:
“I’ve not heard Sue talk passionately like this before.” He went on to say he was: “clear about the seriousness of the situation” and “liked the clarity”.
Karen Durrell stressed that the Applicant’s previous meetings with her and Kylie Miller had clearly identified the seriousness of the situation. This was followed by the letters of warning and in meeting notes.
A commitment was made to the Applicant to assist him to meet the competencies of his role through provision of a development plan, supervision sessions and completing a work log.’ 18
[22] A performance review meeting was held on 6 September 2011. Mr Brasted, Ms Giblett, Ms Miller and Ms Durrell were present at the meeting.
- Client-attributable hours - The applicant’s client-attributable hours were reported as 59% for July and 71% for August.
- Demonstrated work hours - There appeared to be discrepancies between the handwritten work logs that the applicant had submitted for this period and the computer ‘log-in’ time that was recorded on the IT log-in register. Ms Brown’s witness statement explains the following:
‘The Applicant’s work logs had been given to me shortly before the meeting.
I focussed on the Applicant’s entries over the 6 week period between 25th of July and 2nd of September 2011.
The Applicant recorded commencing work at 9.00am and leaving between 5.00pm and 5.15pm on 18 out of 30 days.
On most of those 18 days, the Applicant recorded “email” from 9.00am.
The other 12 days, he did not record “email” from 9.00am. This included one sick day, one training day, one meeting day, three late starts to use accrued time in lieu for previous late finish (6.00pm), two morning home visits, and one cancelled morning home visit. There were also three days for which I could not find the log record.
I was surprised there were not more logs of morning home visits that would have required later starts than 9.00am at the office. I was also surprised that there had only been four home visits between 6 and 5.30-6.00pm over this 6 week period. This pattern did not fit with my expectations for a flexible, home based service.
Prior to the meeting, I compared the Applicant’s time log for “emails” against the time recorded on the IT log-in register. I chose six random dates spread between the 25th July 2011 and 2nd of September 2011 here the Applicant had nominated “emails” as first activity in the morning.
(a) On the 29 July 2011, the Applicant’s Work Log said “emails” from 9.00am and the IT log-on report was at 10.20am
(b) On 19 August, the Applicant’s Work Log was emails from 9.00am and the IT log-on report was at 9.20am.
(c) On 23 August, the Applicant’s Work Log was emails from 9.00am and the IT log-on report was at 9.33am
(d) On 26 August, the Applicant’s Work Log was emails from 9.00am and the IT log-on report was at 10.05am
(e) On 29 August, the Applicant’s Work Log was emails from 9.00am and the IT log-on report was at 9.55am
(f) On 01 September, the Applicant’s Work Log was emails from 9.00am and the IT log-on report was at 11.06am
Following the meeting, I checked all 18 of those log entries that started the day with “emails” and the pattern was a significant delay (greater than 15 minutes) between the time the Applicant recorded “emails” in the work log and the time registered on the IT log-in records.
So I concluded that the sample dates were a reflection of the Applicant’s work practices.
At the meeting I checked with the Applicant that he believed the entries he made to the Work Log were true. I asked what he meant by 9.00am “emails”. He responded that he first thing he did each morning when he came into work was emails.
I asked the Applicant whether the entries he made in his Work Log were a true record of his start time and of his first activity at work and he responded: “yes”. ...
I told the Applicant that the false entries in his work log were a breach of trust. I said that the issue of trust was crucial, as the Applicant’s role required that he could be trusted working solo with vulnerable families and building trusting partnerships.’ 19
[23] After a short break and an opportunity for the applicant to respond, Ms Brown stated to the applicant that she did not believe that he met the basic requirements of his role, including working for a minimum of 38 hours a week and falsifying time records. Ms Brown stated that she felt that she had ‘no alternative other than to terminate his employment effective immediately’ 20.
[24] After this final meeting, Ms Miller became concerned that the applicant had not been honest and accurate in entering REX hours into the computer database.
‘After the meeting when I had time to consider that the Applicant had misled the organisation by presenting written logs that were inconsistent with his work hours and tasks performed on a daily basis. ...
I ran a report together with the Applicant to determine his statistic for the month and the report on that day revealed that on [the Friday prior to the disciplinary meeting] revealed that this client attributable figure was 59%. ...
By Tuesday this figure was 71% which was a significant increase in hours.
This has raised my concern that the REX hours entered by the Applicant for the months of July and August may also not be a true and accurate record when compared with the work logs submitted by the Applicant.’ 21
[25] Ms Miller was briefly cross examined about this evidence.
‘---Ms Miller, when did you reconcile the work logs and the REX data; before or prior to termination? --- Prior to termination. Yes. I was concerned---
Okay? --- So as I wrote in my statement it actually-when I met with David on the Friday for supervision his REX data, we printed off a report and it was 59%, and then by the Tuesday it had jumped to 71%. It didn't click to me straightaway as to how-you know, how quickly that had changed.
Okay but you did reconcile the work logs and REX prior to termination? ... I had had a look at them. Based on the actual information, not based on the individual detail, I guess. Yes.
Did you ever mention any of this at the final meeting?--- No.
Okay? --- Because it didn't click to me till afterwards. But it made me think if he was providing wrong worksheets.’ 22
[26] An analysis of the data contained in the Capacity Report by Individual Staff for selected days in the month of August 2011 23, which were entered into REX by the applicant, show irregularities of the kind referred to by Ms Miller. As Mr Borrow noted, these were the hours the applicant claimed to have worked on those particular days (hours which he confirmed during his cross examination). Thus for example, according to the data entered into REX by the applicant, on 9 August he worked 12 hours (including 8 hours and 45 minutes client attributable) - but during his cross examination he confirmed the hours in his work log which had him working 7.5 hours that day. The discrepancy between his client attributable work hours recorded in REX and those in his work log equals 22.5 hours.
[27] Mr Brasted’s employment was terminated at the conclusion of the meeting on 6 September 2011 with immediate effect. The applicant received a termination letter dated 8 September 2011, which included the following:
‘As you are well aware, over the past nine months you have received many hours of professional development, mentoring and support from managers and colleagues so that you could bring your work performance up to a standard that would be reasonably expected from a person in a professional role such as yours.
From the organisation’s observations, your professional behaviour and current style of working do not meet and appear unlikely to meet in the near future the required professional standards of the role. In addition, the discovery and your acknowledgement of deliberately falsifying your time records, which constitutes misconduct, is a gross breach of trust in your employment relationship with Cerebral Palsy Alliance.
As a result of your actions and after due consideration, we have decided to terminate your contract of employment, effective 6 September 2011. In accordance with your letter of offer and the National Employment Standards, you will be paid directly into your nominated bank account on 15 September 2011.’
[28] The applicant has given evidence that he does not believe that he was provided with adequate support and found the performance review process to be a stressful one. During cross examination, Mr Brasted stated:
‘So you would’ve been left with absolutely no misunderstanding of the requirements that were to follow that performance management meeting [on 10 December 2010]; is that so?--I was told what I had to, you know, improve my client attributable hours. Yes, and - but I didn’t know exactly what they meant by all the work patterns and things like that.
All right?--But yes, I did understand that I needed to get - basically my most important thing was to get my client attributable hours up to the required 60 to 70 per cent.
And you were given a lot of support. You had Kylie Miller providing you with direct supervision?--I had Kylie Miller giving me the monthly normal mentoring sessions. I had Anne - I wouldn’t say Anne’s supervision was much support but I did have her on a regular basis. Yes.’ 24
[29] With respect to the performance management process, Mr Brasted gave the following evidence:
‘The employer has provided you with ample opportunity to address the issues of concern to them?--Yes. With a, you know, lack of training and other things that they didn’t do as well.
And you acknowledge that so far as the client attributable hours are concerned, apart from that period in January, you continued to labour well below the expected target?--Yes, but I think there were reasons for that, and I think the stress of the whole process I was under had some contribution to it, and me taking sick leave and things like that.’ 25
[30] The oral evidence provided by Ms Ibels was of limited utility as she had no direct knowledge of the applicant’s performance after April 2011. Similarly, the oral evidence of Ms Bratel, whilst useful in explaining the applicant’s role in the organisation, could not shed any light on the applicant’s performance after 2009.
Consideration
[31] The issue I need to determine is whether the applicant’s dismissal was harsh, unjust or unreasonable. In considering this matter, I must take into account the factors referred to in s.387 of the Fair Work Act 2009 (the Act). These are:
‘(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.’
[32] Ms Johnston submitted that the gravity of the applicant’s conduct and the circumstances that surrounded it do not support a finding that there was a valid reason for his dismissal. In particular, the discrepancies in the applicant’s work logs were an honest mistake made inadvertently by the applicant as a result of undergoing an intense period of scrutiny. Moreover the number of discrepancies was small and the logs were not official time records. The applicant had co-operated with the performance management process, his performance was improving and he had exceeded the client attributable hours target prior to his dismissal.
[33] Mr Brasted was dismissed both for poor performance and for misconduct. In relation to performance, the respondent was very clear about its expectations. The applicant was told repeatedly what was expected of him. Nor were those expectations in any way unreasonable. The applicant was given a lengthy period of time to bring his performance up to scratch, and considerable assistance by way of professional support. While he complained that he did not receive REX training there is no evidence that this in any significant way contributed to his poor performance.
[34] The applicant continually failed to meet the target for client attributable hours. I note that he did appear to meet this target in the month before his dismissal. However the evidence before the tribunal casts severe doubt about whether this result was genuine. Having regard to all the relevant evidence, I am satisfied that the applicant’s poor work performance by itself constituted a valid reason for his dismissal.
[35] In addition to his poor performance, the applicant’s employment was terminated because of the deliberate falsification of his work log. This log was put in place partly to ensure that the applicant was working his 38 hours per week. While six discrepancies were specifically drawn to the applicant’s attention in the final meeting, it is clear from the evidence that there were many more such discrepancies. In other words, the applicant was systematically cheating in the way he filled out his work log. This was of particular concern because of the high degree of autonomy involved in the applicant’s role.The respondent’s conclusion that this constituted misconduct is amply justified, and reinforces my finding that the respondent had a valid reason for dismissing the applicant.
[36] The applicant was clearly advised of the reason for his termination at the meeting on 6 September 2011 (and subsequently confirmed in writing on 8 September 2011.) He was given an opportunity to respond to those reasons at the meeting on 6 September 2011. He was permitted to have his support person attend discussions related to his dismissal.
[37] Mr Brasted was given repeated warnings about the unsatisfactory nature of his performance over a long period of time, and was given a considerable opportunity to improve his performance.
[38] The respondent’s procedures were consistent with its size and access to human resource management expertise.
[39] I have had regard to the applicant’s personal and economic circumstances. However I do not consider that - adopting the principle of a ‘fair go all round’ - they render his dismissal harsh, unjust or unreasonable.
Conclusion
[40] Mr Brasted’s dismissal was not unfair. His application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms Fran Johnston for the applicant
Mr Stephen Borrow for the respondent.
Hearing details:
2012.
Sydney.
8 February
9 February
15 March
1 Exhibit C26, paragraph 6
2 Exhibit C1, paragraphs 15-20
3 Exhibit C1, paragraph 13
4 Exhibit C1 paragraphs 34-37
5 Exhibit C1, paragraph 40
6 Exhibit C1, paragraph 42
7 Exhibit B1, paragraph 22
8 Exhibit C9, paragraph 43
9 Exhibit C23 paragraphs 8-20
10 Exhibit C1, paragraph 54
11 Exhibit C1, paragraph 59
12 Exhibit C1, paragraph 74 (a)
13 Exhibit C1, paragraph 74 (b)
14 Exhibit C1, paragraph 83
15 Exhibit C1, paragraph 91
16 PN1196
17 Exhibit C1, paragraph 91.
18 Exhibit C26 paragraphs 37-44
19 Exhibit C26, paragraphs 56-70
20 Exhibit C26, paragraph 88
21 Exhibit C1, paragraphs 145-150
22 PN1178-1183
23 Exhibit C2
24 PN527 - PN529.
25 PN663 - PN664.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR521497>
0
0
0