Mr David Quattrocchi v Monsanto Australia Limited
[2009] FWA 882
•12 NOVEMBER 2009
[2009] FWA 882
The attached document replaces the document previously issued with the above code on 12 November 2009.
By deleting the word “to” which appeared after the word “continue” in paragraph [19].
Kate Schaffner
Associate to Commissioner Lewin
Dated 3 December 2009
[2009] FWA 882 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Monsanto Australia Limited
(U2009/10499)
COMMISSIONER LEWIN | MELBOURNE, 12 NOVEMBER 2009 |
Alleged harsh, unjust or unreasonable termination of employment – valid reason for termination–procedural fairness.
[1] In this matter Mr David Quattrocchi has applied for relief in relation to the termination of his employment by Monsanto Australia Limited (Monsanto). Mr Quattrocchi was employed by Monsanto at its Fairfield warehouse from 26 November 2007 until 10 July 2009, when the employment relationship ended. The company is a supplier of seedstock to the horticultural industry. The warehouse receives, stores and dispatches a wide variety of seeds for use throughout Australia. Mr Quattrocchi was employed on assorted tasks, receiving, dispatching and managing the inventory of seeds at the Fairfield warehouse.
[2] An application was filed by Mr Quattrocchi on 20 July 2009 pursuant to s.394 of the Fair Work Act 2009 (the Act), alleging that the termination of his employment was harsh, unjust or unreasonable.
[3] On 20 July 2009, the matter was listed for a conciliation conference by telephone before Conciliator Bourke at 9.15 am on 4 August 2009. Upon Mr Quattrocchi’s request, the conciliation was listed at the same time, but for a face to face conciliation. On 3 August 2009, Monsanto filed a response to Mr Quattrocchi’s application.
[4] The matter did not settle at conciliation. The Tribunal considered it appropriate to hold a hearing to resolve the matter pursuant to s.399 of the Act. On 18 August 2009, the matter was listed for arbitration on 5 and 6 October 2009. On the same day, directions were issued requiring Mr Quattrocchi to file and serve all relevant documentary material by 14 September 2009. Monsanto was required to do the same by 28 September 2009. Witness statements were filed on 10 September 2009 Mr Quattrocchi filed submissions. On 28 September 2009, Denise Louey filed submissions and witness statements on behalf of Monsanto.
[5] At the hearings on 5 and 6 October 2009, Mr David Quattrocchi appeared on his own behalf and Mr Jeff Billing (Director, Monsanto) and Ms Sonja Laverman (human resources representative) appeared on behalf of Monsanto.
[6] The following witnesses gave evidence for Mr Quattrocchi:
- Mr David Quattrocchi
- Ms Sarah McArt
Ms Hand had been employed by Monsanto during the time of Mr Quattrocchi’s employment as a Warehouse Supervisor.
[7] The following witnesses gave evidence for Monsanto:
- Ms Catherine Reed (Operations Manager)
- Ms Denise Louey (Human Resources Specialist Australia/New Zealand)
Statutory Considerations
[8] When dealing with an application made under s.394 of the Act in a hearing, the Tribunal is required to have regard to a number of matters. The relevant statutory provisions are set out below:
[9] 387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
[10] In broad terms, the reason for the termination of Mr Quattrocchi’s employment advanced by Monsanto was for poor performance of his work. More particularly, it can be said that Monsanto considered Mr Quattrocchi did not pay sufficient attention or apply due concentration to the administrative aspects of his work, which led to mistakes in the management, recording, documentation and dispatching of goods. This led variously to orders being incorrectly filled, or despatched and failure to provide the necessary documentation.
[11] In determining whether or not an employee’s employment was terminated for a valid reason and whether the termination of an employee’s employment was harsh, unjust or unreasonable, the Tribunal must reach its own conclusions on the evidence before it. Where the reason for the termination of the employee’s employment is based on contested facts, the Tribunal must make findings of fact accordingly and reach its own decision on that basis.
[12] Mr Quattrocchi conceded that he had made mistakes and specifically some of those referred to in the evidence of Monsanto’s witnesses. However, Mr Quattrocchi disputed responsibility for some of the mistakes referred to and submitted that that the accuracy of the performance of his duties should be looked at overall. He submitted that his error rate was not so significant as to justify the termination of his employment.
The Factual basis of the reason for the termination of employment
[13] The relevant facts that give rise to the decision of Monsanto to terminate Mr Quattrocchi’s employment occurred between March 2008 up until the termination of the employment in July 2009.
[14] During the employment Mr Quattrocchi was the subject of several performance reviews whereby his performance was found to be unsatisfactory. The cause of this conclusion was the periodic occurrence of the type of mistakes referred to above. Mr Quattrocchi was advised in the first mid-year performance review, in March 2008, that his performance was unsatisfactory. Subsequently, in August 2008, in his yearly assessment, Mr Quattrocchi’s performance was also found to be below a satisfactory level.
[15] In late 2008 to early 2009, Monsanto considered that there were factors beyond Mr Quattrocchi’s control that had contributed to his poor performance, namely, the resignation of his supervisor, and the introduction of a new software system for the management of the inventory. For these reasons, notwithstanding the outcome of the performance reviews, Mr Quattrocchi received an increase to his salary in January 2009.
[16] In March 2009 Mr Quattrocchi was subject to another performance review. Monsanto again considered that Mr Quattrocchi’s performance was unsatisfactory. He was placed on a performance improvement plan for 60 days in May 2009. At the conclusion of that process Monsanto considered that Mr Quattrocchi’s performance was not improving. Specifically, according to Monsanto, Mr Quattrocchi continued to make the same type of mistakes which had prompted the earlier performance reviews. At the completion of the 60 day performance improvement plan, Mr Quattrocchi’s employment was terminated. Tellingly, three significant errors, responsibility for which he did not deny, were made by Mr Quattrocchi during the late stages of the performance improvement program.
Valid reason for the termination
[17] Mr Quanttrocchi’s termination was for reason of lack of attention to and concentration on the administrative aspects of his work. This manifested in a number of errors made in the appropriate recording, documentation, management and dispatch of Monsanto’s products from its Fairfield warehouse to its customers which were identified in the proceedings.
[18] Based on the evidence before me, I am satisfied that Mr Quattrocchi made errors in the performance of his functions in the period between March 2008 and July 2009 which tested the patience of Monsanto and ultimately led to the termination of his employment. Moreover, on my understanding of Mr Quattrocchi’s evidence and concessions made by him from the bar table, in relation to the errors referred to by Monsanto, Mr Quattrocchi does not dispute the fact of his making a number of such errors or his responsibility for those errors.
[19] On what is before me, I am satisfied that Mr Quattrocchi was unable to continuously bring to bear the required level of concentration and attention to detail necessary for the efficient and precise performance of his duties involving the various tasks of managing and dispatching the inventory of Monsanto’s products. In my view, Monsanto’s conclusion that Mr Quattrocchi was prone to periodic and occasional lapses of concentration and attention to detail, which was likely continue to adversely to the efficient management of the warehouse and the company’s relationships with its customers, was valid. While the errors over the life of the employment in isolation and individually, with some notable exceptions, were not grave, the tendency to repeat them constituted a valid reason to terminate Mr Quattrocchi’s employment. Occasionally Mr Quattrocchi’s lapses of concentration led to significant errors and embarrassments for Monsanto. On what is before me, Monsanto had a reasonable basis to conclude that such events were likely to recur.
Notification
[20] I am satisfied that Mr Quattrocchi was well aware of the nature of Monsanto’s concerns about his work performance and that he was prone to errors of the kind which led to the performance improvement programme and had caused earlier reviews prior to the termination of his employment. Mr Quattrocchi was also informed of the reasons for the termination of his employment prior to it occurring at a termination interview.
Opportunity to Respond
[21] Mr Quattrocchi gave evidence that throughout the 60 day performance improvement plan he took it for granted that his employment would be terminated. It appears he was somewhat passive accordingly. He was critical of the process. However, in my view, there was ample opportunity in this time for him to put his case for retention. Moreover, at the termination interview he had the opportunity to respond, but on my view of the evidence, seems to have said little.
Procedural Fairness
[22] Before departing from the broad subject of procedural fairness captured in the statutory considerations referred to immediately above, I should observe that, while on balance I have accepted that Mr Quattrocchi was notified of the reason for the termination of his employment and had an opportunity to respond thereto, I consider that features of the process which lead to the termination of Mr Quottrocchi’s employment were somewhat lacking.
[23] Ms Reed, who was responsible for the operation of the performance improvement process and Ms Denise Louey, the relevant Human Resources Specialist, seem to have taken a minimalist view of the procedure to be applied. From the evidence before me there was no rigour in the process. Clear goals were not established, agreed and recorded. No system of measurement of progress was resolved, and little if anything was formalised in the way of support for improving Mr Quattrocchi’s performance.
[24] The process was further confused in the reporting process to senior executives in Singapore when errors which were attributed to Mr Qattrocchi during the performance improvement process had in fact occurred prior to its commencement, those errors could have potentially misled and confused the senior decision maker, Ms Chui San who relied at some disadvantage on Ms Reed’s report, which had been provided by facsimile transmission.
[25] However, in all the circumstances of the case, including the number, duration and frequency of reviews of the relevant issues, the length of the performance improvement plan and the opportunity it offered to Mr Quattrocchi to address Monsanto’s concerns about his lapses in concentration; I consider, on balance, that the limitations to the manner and process by which the termination of Mr Quattrocchi’s occurred do not ultimately give rise to a conclusion that the termination of Mr Quattrocchi’s employment was harsh, unjust or unreasonable.
Support Person
[26] Mr Quattrocchi claims that he was denied an opportunity to have a support person at the termination interview. Ms Reed and Ms Louey’s evidence is that he did not make any such request. I have decided to accept the evidence of those persons in relation to this issue. This is not because of any finding of credibility as between the witnesses. Rather, I have had regard to the inherent probability of Mr Quattrocchi making such a request in light of the evidence and all the circumstances of the case. In my view, Mr Quattrocchi had made up his mind shortly after the performance improvement process commenced that it would end in the termination of his employment and acted accordingly. I accept the evidence that during the conduct of the performance improvement process My Quattrocchi made enquiries about notice or payment in lieu of notice which would apply when the termination occurred. It seems inherently improbable that Mr Quattrocchi would depart from an apparently benign acceptance of the outcome of the performance improvement process over 60 days and seek what he referred to as ‘legal representation’. Moreover, there is no evidence of Mr Quattrocchi engaging legal representation or attempting to do so.
Warning–unsatisfactory performance
[27] Mr Quattrocchi was warned that his performance was unsatisfactory by a letter dated 11 May 2009. The letter provided a clear explanation of the aspects of Mr Quattrochi’s work which were unsatisfactory and explained the performance improvement plan. The letter warned Mr Quattrocchi that failure to improve his performance could lead to the termination of his employment. Mr Quattrocchi acknowledged receipt and understanding of the contents of the later that day in writing.
Size of the employer–procedures
[28] Monsanto is a large multinational corporation. The company has correspondingly developed management procedures which it applied to the termination of Mr Quattrocchi’s employment. While the application of those procedures was somewhat lack lustre, particularly the performance improvement program, in the factual circumstances of this case, the bare application of those procedures did not, in my view, cause the termination of Mr Quattrocchi’s employment to be harsh, unjust or unreasonable.
Human resource management specialists and expertise
[29] There were present within Monsanto human resource specialists. Ms Louey in particular, authored the performance improvement process in conjunction with Ms Reed. The process resulting, was nonetheless adequately structured, although barely, to ensure that the manner of the termination of Mr Quattrocchi’s employment was not harsh, unjust or unreasonable.
Other matters
[30] There are no other matters I consider relevant.
Harsh, unjust or unreasonable
[31] This is a borderline case. In my view, there was something to be desired in the manner in which Mr Quattrocchi’s performance was managed. There was some instability in the relevant staffing of the warehouse and the supervision of Mr Quattrocchi. New inventory control software had been introduced during the period of the employment. Mr Quattrocchi was left unsupervised for some time. Ms Reed arrived from New Zealand as Mr Quattrocchi’s supervisor in May 2008. Ms Reed struck me as a highly expeditious manager. In my judgment, her evidence, at times lack of recollection and sometime confusion of detail indicated a certain detachment from the careful management of Mr Quattrocchi’s performance. In my judgment, Ms Reed came to the view that Mr Quattrocchi wasn’t the man for the job. On my view of her evidence and demeanour, Ms Reed was dissatisfied at having to deal with the customer relations consequences of Mr Quattrocchi’s errors. I think she came to consider Mr Quattrocchi impervious to change and improvement. I think she took the view that this was a matter of letting the management process of the company take its course and the problem posed by Mr Quattrocchi’s proneness to periodic lapses in concentration would solve itself. I think she hoped for his exit from the warehouse, to be replaced by another person of greater concentration and attention to detail, who would not require close supervision by her.
[32] However, on the other hand, Mr Quattrocchi impressed me as a person with a tendency to see himself as somewhat detached from his work, to seek to attribute responsibilities to others and to make occasional inexplicable and entirely unsatisfactory errors in the course of his duties; such as sending shipments to the wrong customers, sending incorrect shipments to customers, or sending shipments without paperwork, to the considerable annoyance to the company’s customers. He gave evidence that during the performance improvement plan process he really said little: “I just wanted to go to work with no trouble, do my hours, go home, get my money and that’s it, that was my plan”. 1 At the end of the day I was not convinced that Mr Quattrocchi had determined to address the obvious issues and demonstrate the capacity to eliminate such errors.
[33] Having regard to my findings in relation to the statutory considerations, my final conclusion is that, on balance, the termination of Mr Quattrocchi’s employment was not harsh, unjust or unreasonable. The application is dismissed.
COMMISSIONER
Appearances:
Mr D Quattrocchi, applicant
Mr J Billing, for the respondent
Hearing details:
2009,
5 and 6 October
Melbourne
1 PN 734, Transcript in matter U2009/10499 of 5 October 2009.
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