Mr Glenn Boyd v SPI PowerNet Pty Ltd
[2012] FWA 5962
•25 JULY 2012
[2012] FWA 5962 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Glenn Boyd
v
SPI PowerNet Pty Ltd
(U2011/13460)
COMMISSIONER CRIBB | MELBOURNE, 25 JULY 2012 |
Application for unfair dismissal remedy.
[1] This decision concerns an application by Mr Glenn Boyd (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that his dismissal by SPI PowerNet Pty Ltd (the respondent) was harsh, unjust or unreasonable. Mr Boyd is seeking a remedy in respect of his dismissal.
[2] A conciliation conference was held on Tuesday, 20 December 2011 but no agreement was reached between the parties to settle the application.
[3] The application was heard on 5 and 6 March 2012. Ms M Jackson for the Australian Services Union (ASU) represented Mr Boyd whilst the company was represented by Ms M Butler.
[4] Evidence was given by Mr Boyd and Mr L Cherry, Organiser with the ASU. On behalf of the company, Ms J Paterson, People Services Manager, Ms D Hicks, Procurement Support Services Team Leader and Mr M Mercuri, Commercial Manager gave evidence.
THE EVIDENCE
APPLICANT
Mr Boyd
[5] Mr Boyd gave oral evidence and provided a written witness statement. 1 He commenced with the State Electricity Commission of Victoria on 6 February 1989 and his employment was transmitted to SPI PowerNet in 2000. Prior to his dismissal, he was employed in the position of Procurement Coordinator.2
[6] It was Mr Boyd’s evidence that, at the meeting on 18 March 2010, his behaviour and conduct were raised but not any issues regarding work output. 3
[7] With respect to the written warning 4 he received on 25 March 2010, it was Mr Boyd’s evidence that the issues raised concerned his behaviour, communication and conduct with his colleagues but not about his work performance.5 The warning was given in relation to an incident involving a former supervisor Ms Isik. He confirmed that the warning made reference to an offer from Mr Jukic regarding the provision of support and advice on how to approach such a situation. Mr Boyd indicated that he did take Mr Jukic up on his offer but that he had refused to provide that assistance.6
[8] It was recounted that the incident related to his coming into work and finding a note on his chair saying that it was in an inappropriate position and was deemed to be in an unsafe position He said that, given the environment within the department at the time, it caused him some stress as he did not know who had left the note, implying that they had not approached him directly about it. He had then asked Ms Isik about it and she seemed to take it personally and had tried to engage in a confrontation. He explained that he was undergoing an extreme amount of stress at the time, having issues with his former wife so that he was not seeing his son who had just started walking. Also, he had just been involved in a car accident where the person who was liable for the damage to his car was refusing to pay. 7
[9] Mr Boyd stated that he had then raised this issue with a colleague, Mr Sullivan, as none of the managers were at that time. 8 He said to Mr Sullivan that it could be considered harassment but was told to basically “suck it up”.9 It was indicated that Mr Sullivan was aware of a number of other issues to do with Ms Isik and of the huge potential for confrontation between the two of them. He also said that she was generally considered by all of his colleagues to be toxic.10 Mr Boyd agreed that this outburst in the office was caused by frustration but denied that he had sworn in the open office.11
[10] It was stated by Mr Boyd that he would not refuse to do something if he did not agree with the process. 12 He also said that his ultimate responsibility was to his employer.13 By this, Mr Boyd explained that he meant that his obligation was to his employer, not to his immediate team leader. If his immediate team leader was doing something that was not in the company’s best interests, he was to raise it.14
[11] Mr Boyd explained that, during the meeting on 15 October 2010, he had raised a number of concerns with Ms Hicks, Mr Ventura and Mr Anthony and had said that they could potentially be raised as a whistle blowing incident. Mr Ventura's response was recalled to be “are you threatening me?” 15 Mr Boyd stated that the policy that was being breached was the purchasing policy and process (particularly the process) and that the exposure to the company was in terms of monetary losses.16 It was also said that a number of high level company policies state that he has an obligation to raise any issues, risk issues, company losses with his team leader and to escalate it, if needed be, in terms of the whistleblower policy.17
[12] Mr Boyd indicated that the existing policy at the time was changed after he had raised the issues with Mr Ventura on 15 October 2011. It was stated that the policy was changed to conform with Mr Ventura’s desired process. 18 He explained that his e-mail to Mr Ventura was to point out that Mr Ventura was not following company procedure.19 Mr Boyd indicated that he had raised his concerns with Mr Anthony (who was senior to Mr Ventura) some months prior. He stated that Mr Anthony had issued an e-mail on 6 July 2010 confirming the process as he understood it.20 It was recounted that his manager at the time, Mr Jukic, was also aware of the issues but that there was no response from him.21
[13] It was Mr Boyd’s evidence that his intention was sincere. He just wanted the issue fixed. He did not want to create issues with his team leader. He agreed that he was aware that the company had policies and processes to report wrongdoing or whistle blowing. He said that he did not follow those policies and regretted not doing it. He said that he felt intimidated and threatened by the two managers and the team leader during the meeting on 15 October 2010. 22 With respect to the whistleblower process, it was Mr Boyd's understanding that that was only to be used in terms of fraud and he did not consider the matter fraud- rather - negligence.23
[14] Mr Boyd confirmed that, following continuation of the use of Mr Ventura’s process and not his, he made a formal complaint against Mr Ventura to Human Resources (HR). This was on the basis of discrimination (HR’s interpretation) with his interpretation being that it was bullying. Specifically, the complaint concerned Mr Ventura ignoring his concerns, on an ongoing basis for six months, in relation to the losses the company was sustaining. 24
[15] With respect to the final warning 25 he received in January 2011, Mr Boyd said that this was the result of his raising issues in October 2010. He confirmed that he was represented at the two meetings that were held in January 2011, prior to the issuing of the final warning. It was stated that it had been contested at the time that the previous warning was not a valid warning. It was Mr Boyd’s view that the company did not wish to investigate his counter allegations.26
[16] There was said to have been a slight change in his role due to the introduction of the Ariba software whilst he was away on leave. Mr Boyd acknowledged that he had had communicated to him that there was some sort of reorganisation during that time. 27 It was Mr Boyd’s evidence that, when he returned to work on Monday, 12 September 2011, he was given a half hour of training on the Ariba system. He said that, another person who was in a very similar role to himself, had expressed frustration to him that she had been given insufficient training on the system even though she had been given two days of training.28
[17] Mr Boyd agreed that, to some extent, there were specific concerns raised with him in regard to his performance in the first and second weeks following his return to work. His response to the concerns was said to be to continue to undertake his work diligently. 29
[18] It was explained by Mr Boyd that his former wife’s lawyer (they separated in 2009) was required to provide the orders relating to custody within a certain timeframe. She did not do so and the orders were not provided until late September/early October 2011. 30 It was explained that, in August 2009, he started to experience issues in relation to the custody of his child and that his former wife breached court orders between May 2011 and August 2011. He did not see his two-year-old child for a period of over three months. It was stated that Ms Hicks was aware of these custody breaches by his former wife.31
[19] Mr Boyd stated that, prior to the hearing on 9 September 2011 to decide custody, he had not put to the court that he could have custody of his child during the week. 32 Mr Boyd confirmed that the orders issued by the court were that he was to work three days a week and care for his child for two days a week. He indicated and that this was for a minimal amount of time - a maximum of two months. It was recalled that in June 2011, he had raised with the company his desire to start work part time until approximately early 2012. He said that the company had not responded to his request.33
[20] Mr Boyd agreed that his contract of employment was for full-time work (five days a week). It was explained that his request to work part-time in June 2011 was not in relation to custody but to allow a transition arrangement because of his concerns regarding the toxic and bullying culture within the department. As well, there were ongoing issues in relation to his former wife potentially breaching orders again, in him not seeing his son again and his former wife refusing to proceed with a financial settlement. Mr Boyd explained that he was in dire financial circumstances and was not even able to pay his rent on a regular basis. He had had to make a specific application to the court so that he could continue to fund his court application. 34 He agreed that he did not request of his employer, in advance of returning to work, to be able to work part-time or advise that he was contemplating it.35
[21] With respect to being paid for the time he was involved in court attendances regarding his divorce, if he was entitled to it under the Agreement, he believed he should have been paid it. 36
[22] Mr Boyd agreed that, on 7 October 2011 he had been told that there were concerns about his performance and behaviour. 37 It was explained that the reason that he could not demonstrate, on 10 October 2011, that he had begun to address their concerns was that there had been no performance plan given to him. He said that about 50% of the performance plan related to duties in his position description.38 It was his view that the performance improvement plan dated 10 October 201139 did not show areas of incompleteness. It was agreed that the performance improvement plan dated 17 October 201140 did state areas of incompleteness but it was said that he was away sick that week. He indicated that he was not present at work for the period of time covered by that plan.41
[23] With respect to the MDI project, Mr Boyd explained that he had developed, based on his own ingenuity, a way of converting the data over in a format suitable for the intended system. It was stated that this was not recorded in the review. 42
[24] It was confirmed by Mr Boyd that he believed that he had raised issues with the company about the performance plan which were not being responded to. He believed that to be unilaterally handed out tasks that were not able to be completed within the required time period was potentially bullying. He said that it had caused him a lot of concern and he recalled Ms Paterson specifically saying that it was fair and him disagreeing. He said that he did not have any say in the matter. It was stated that the company did not agree with him. 43 He explained that the concerns he had were because he did not agree in terms of the workload that was being assigned to him rather than him not agreeing with what had been assigned to him. The tasks he was required to perform work depended on the workload of his colleagues and them complying with his requests.44
[25] In terms of approaching Ms Hicks to discuss his concerns and receive feedback on his performance, it was Mr Boyd’s evidence that he was concerned that Ms Hicks would allege that he was raising his request in an inappropriate manner and so, he did pretty much everything via e-mail. 45 He agreed that it was in the letter of 11 October 2011 that he was on notice about his performance and behaviour. He said that he and Mr Cherry, his union representative, raised concerns in the meeting on 7 October 2011.46
[26] Mr Boyd stated that he had sent an e-mail to Ms Paterson 47 asking for his manager's comments around his performance. It was recalled that he did not receive a response.48 Further, he confirmed that he sent an e-mail to Ms Hicks raising some issues about the Master Period Order spreadsheet and indicating that he did not believe it was achievable within the timeframe.49 With respect to his e-mail50 to Ms Hicks on 24 October 2011 seeking clarification of her expectations, it was Mr Boyd's view that her response did not give him the support and direction that he required in order to complete the task.51
[27] With respect to the performance improvement plan dated 17 October 2011, 52 Mr Boyd stated that it was not the review of the week of 10 October 2011 to 14 October 2011 as it was issued on 17 October 2011 with an agreed review date of 14 October 2011. He believed that it was for the week starting 17 October 2011.53
[28] It was stated by Mr Boyd that, at the meeting when he was terminated, he was told then that he had not met his performance plan. He said that management did not outline where he had not met the performance plan. It was his recollection that, during that meeting, Ms Butler referred to some instances where colleagues had raised concerns about him. He said that she did not elaborate in any detail about his performance or his output in terms of complying with the plan. Also, he was not given the opportunity to present any of the work that he had completed during that week or review the e-mails he had sent to Ms Hicks. 54
[29] Mr Boyd said that his dismissal had exacerbated his medical condition and he has been unable to work or to seek work from the time of his dismissal. He was currently receiving Centrelink sickness benefits. 55 He was unfit for any work from 2 November 201156 and his current medical certificate57 stated that he is able to perform up to 2 days suitable alternative employment from 2 February 2012 until 3 March 2012.58
Mr Cherry
[30] Mr Cherry is an Organiser with the ASU. He gave oral evidence and also provided a witness statement. 59
[31] It was indicated by Mr Cherry that, at the time, he was aware that Mr Boyd was been given a performance plan. 60
[32] With respect to the dismissal meeting on 28 October 2011, Mr Cherry recalled that in attendance was himself, Mr Boyd, Mr Mercuri, Ms Hicks and Ms Butler. He said that the organisation raised that they did not feel that Mr Boyd’s performance had improved enough. There was some discussion back and forth with he and Mr Boyd taking the view that Mr Boyd was performing and the organisation taking the contrary view. There was further discussion and ultimately the organisation stated that it was their intention to terminate Mr Boyd's employment. 61 Mr Cherry stated that it was his impression that, right from the outset, they intended to terminate Mr Boyd’s employment.62
[33] Mr Cherry did not believe that the actual performance improvement plan was either tabled or discussed at the meeting. There were discussions around the company’s belief that Mr Boyd was not performing but he did not recall any black-and-white information provided to show where. 63
[34] It was indicated that he was aware that Mr Boyd had been in active discussions with the company over the content of his performance plan in the period from 11 October 2011 to 28 October 2011. 64 He said that he was not particularly surprised that the company had terminated Mr Boyd's employment on 28 October 2011.65
RESPONDENT
Ms Paterson
[35] Ms Paterson gave oral evidence and also provided a witness statement. 66 She is the People Services Manager for the respondent.67
[36] It was Ms Paterson’s evidence that there were a number of formal and informal conversations held with Mr Boyd following his return to work. The consequences of his not improving his behaviour or performance were clearly advised to him. She believed that he understood that he would be terminated if these did not improve. 68
[37] In terms of the meeting held with Mr Boyd on 23 August 2011, Ms Paterson confirmed that she was in attendance but that she had not been involved in any discussions prior to the meeting. 69 She stated that, prior to the meeting, Mr Boyd had accepted another role in the Logistics and Procurement department. What was offered at the meeting was a position description for that role. She said that she had no knowledge of Mr Boyd being offered anything other than that role.70
[38] With respect to the issues with Mr Boyd’s computer on Tuesday, 13 September 2011, she witnessed Mr Boyd shaking and saying that he had to get out of the office as he was experiencing a series of IT issues. She said that she had received an e-mail from IT support which said that, because Mr Boyd had been on an extended period of leave, there was an expiry that had occurred on his computer. They had replaced it but not because it was operating any differently than it should have been other than being a bit slow. 71
[39] It was confirmed by Ms Paterson that, on Monday 19 September 2011, she was made aware of a complaint made by Ms Woo that Mr Boyd had acted aggressively towards her. She recalled that Mr Boyd had come to see her and told her that there had been issue between he and Ms Woo. She recalled that she had discussed with Mr Boyd that speaking to people in that way was not appropriate. It was stated that she had spent some time giving him tools and ways in which he could address people professionally. Ms Paterson indicated that no action was taken against Mr Boyd with respect to this incident. 72
[40] Ms Paterson explained that, on Friday, 23 September 2011, Mr Boyd came to see her to discuss his care arrangements. She said that she did not tell him that his request to work three days a week would not be an issue as his child was less than five years of age. Rather, she had advised Mr Boyd of what the process was for putting in a flexible workplace application and said that the company would consider his application because he had a child under the age of five. She said that she did not ever guarantee that his application would be accepted. 73 Ms Paterson recalled that she said to Mr Boyd that he could fill the application out but he asked if he could have an electronic copy on the Monday. She had responded that she was not in the office on that day and so she sent it through first thing on the Tuesday morning.74
[41] It was indicated by Ms Paterson that the company did not actually make a request of Mr Boyd to see the custody orders. She said that the company wanted evidence that he needed to work three days a week rather than the four days a week which he had initially requested. 75
[42] Ms Paterson recounted that, on Thursday, 6 October 2011, she had walked into the office at the time that Ms Isik ran out quite upset. She said that Mr Boyd had asked if he could go out as well. As she did not want Mr Boyd following Ms Isik out, she asked him if he wouldn't mind going into the lunchroom and calming down and she would be in there in 5 minutes to have a chat about what had happened. She did not tell Mr Boyd that he could not leave the office. Shortly afterwards, she recalled that she had received a call from Ms Butler saying that Mr Boyd had just advised his union representative that she was holding him hostage. 76
[43] It was Ms Paterson’s view that Mr Boyd was treated differently to the other employees and his personal circumstances were taken into account. She said that he was probably offered more support and assistance. 77
[44] From Ms Paterson’s perspective, there was no evidence that Mr Boyd was bullied by Ms Hicks nor any basis for his claim. 78 She confirmed that she and Mr Boyd met on Friday, 21 October 2011. It was recalled that he advised that Ms Hicks had been bullying him in that she refused to meet with him and that he did not appreciate the way that she said his name when addressing him.79 Ms Paterson confirmed that she investigated Mr Boyd’s claim with Ms Hicks. Ms Hicks said that Mr Boyd had come to her and said that he needed to meet with her. As she had prior commitments and deadlines to meet, she had responded that she could not do that right now but that she could meet with him at whatever time in the afternoon. She had also asked Ms Hicks about the way she said Mr Boyd’s name and asked her, in the future, to be conscious of that.80
[45] Ms Paterson recalled that she became aware of a complaint by Mr Steen that was made to Mr Mercuri regarding Mr Boyd’s behaviour towards Ms Hicks on 6 October 2011. It was stated that she did not witness the incident but was advised about it afterwards by Ms Hicks (on 21 October 2011). 81 She indicated that she had spoken to Ms Hicks about what had happened. It was stated that Ms Hicks had said that she did not want her to take it any further because she felt that it was going to be hard to manage Mr Boyd if there were any further investigations complicating that.82 Having spoken to Ms Hicks, Ms Paterson explained that she decided that there had been a pattern of behaviour from Mr Boyd. This was said to have been why there was a meeting about his performance and behaviour shortly after that.83
[46] With respect to the complaint by Mr Steen, it was stated by Ms Paterson that she did not put the allegations regarding this incident to Mr Boyd. Rather, it was the pattern of his behaviour that was put to him at the meeting on 7 October 2011. She was not present at the meeting and so could not comment as to whether the allegations regarding Mr Boyd standing over Ms Hicks were raised at the meeting. 84
[47] It was Ms Paterson’s evidence that, at this point in time (7 October 2011), she was advised by Mr Mercuri and Ms Hicks that Mr Boyd’s performance was unsatisfactory. 85 She stated that she had received complaints from Ms Isik, Ms Woo, Mr Steen and Mr Ventura regarding Mr Boyd’s inappropriate conduct. She was not aware as to whether these complaints were put to Mr Boyd at the meeting on 7 October 2011.86
[48] Ms Paterson confirmed that Mr Boyd continued to absent himself from work without permission. She agreed that she had been advised of this by Ms Hicks but had not witnessed it. 87 It was conceded that she had been told by other people that Mr Boyd was raising his voice at colleagues in the office and having uncontrolled and aggressive outbursts.88 In response to such behaviour, Ms Paterson explained that the company was continuing to monitor Mr Boyd’s performance and behaviour through weekly meetings. He was therefore being told, on a weekly basis, as to what was acceptable and not acceptable.89 This was said to be a process that the company needed to follow to make sure that Mr Boyd was given the opportunity to improve his behaviour and performance.90
[49] Ms Paterson recalled that there was a meeting on 7 October 2011 where it was agreed that Mr Boyd would be placed on a performance improvement plan from the following Monday. 91 On Monday 10 October 2011, it was then clearly outlined to Mr Boyd, on a weekly basis, what the expectations of his performance and behaviour would be and the tasks were set out clearly so that Mr Boyd was aware of what was required of him. She explained that, on Monday 10 October 2011, it was explained to Mr Boyd as to what needed to be completed for the week.92 There was then a follow-up meeting the week after on Monday 17 October 2011. It was stated that there was one item on the performance plan that was required to be completed by somebody else because of contractual obligations but everything else was carried over into the following performance week.93
[50] It was Ms Paterson’s view that, particularly in the time that was set out in the plan, it was very obvious that Mr Boyd was not completing the majority of the tasks that were set for him, if completed at all. If they were completed, the quality was said to be very poor. 94 In terms of Mr Boyd's behaviour, it was described as highly unprofessional, inappropriate and quite aggressive towards his colleagues and his manager. Ms Paterson said that, when he spoke to people, there was an element of anger or frustration and he would yell at people. His behaviour was also said to have been erratic in that, one minute, he would be sitting there and the next minute he would be up and slamming things.95
[51] It was Ms Paterson’s evidence that, between the beginning of the performance improvement plans and the termination of Mr Boyd's employment, there were two meetings to give him feedback about how he was going. 96 She indicated that, present at these meetings was Ms Hicks and herself with Mr Mercuri at a majority of them.97 Ms Paterson confirmed that the performance improvement plan dated 10 October 201198 was the plan that was set on 10 October 2011.99
[52] With respect to the performance improvement plan dated 17 October 2011 100, it was agreed that it stated that Mr Boyd did not complete any items for the week 10 October 2011 to 14 October 2011. It was confirmed ultimately, by Ms Paterson that, at this point in time, Mr Boyd was working three days a week (Monday, Tuesday and Friday).101 She argued that, even though Mr Boyd has said that he did not receive the plan until after 5pm on 10 October 2011, he could have completed the work as it was not aligned to what was specifically stated in the plan. In addition, there was a meeting, around 10am on that day (10 October 2011), to discuss the plan before it was sent out. Therefore, Mr Boyd was aware of the content of the plan before he received it as he had seen it.102
[53] If Mr Boyd had been sick on Tuesday 11 October and Friday, 14 October 2011, she did not think it was reasonable to have said that he did not complete any items for the week 10 October 2011 to 14 October 2011. It was stated that some of the items were taken off the list and transferred to the next week’s list, in recognition that he had been on sick leave. 103 With respect to the first item on the list (MDI project), Ms Paterson stated that the item was incomplete as of 14 October 2011 but that Mr Boyd had had a prior opportunity to complete it.104 It was explained by Ms Paterson that on Mondays, the plan would be formalised and agreement reached on all of the items and then on Friday, the plan would be reviewed. Therefore, the review on 21 October 2011 would be a review of the plan for the week starting 17 October 2011.105
[54] In terms of the change in the categorisation of a number of items (from incomplete to ongoing) between the performance improvement plans dated 17 October 2011 106 and 24 October 2011,107 it was Ms Paterson’s evidence that that did not indicate that Mr Boyd’s performance had improved in that week. She indicated that the items were exactly the same as they had been carried over and had not actually been started.108 She said that they needed to be completed by the Friday of each week. It was explained that it was the non-commencement of the tasks that went to the poor performance.109
[55] With respect to the complaint concerning Mr Boyd’s behaviour by Ms Isik on Monday 24 October 2011, Ms Paterson stated that she considered the complaint to be serious. She said that she did not do anything with the complaint. This was because Mr Boyd did not work on Wednesday or Thursday at that stage and so there was only the review meeting on the Friday. It was indicated that the next meeting that was conducted with Mr Boyd was the termination meeting on 28 October 2011. 110 She said that the complaint was not put to him and so was not used by the company in making the decision to terminate him.111 It was stated that, prior to receiving Ms Isik’s complaint, the company had not decided that Mr Boyd should be terminated. However, there was a clear pattern forming.112
[56] With respect to the decision to terminate Mr Boyd’s employment, Ms Paterson indicated that this was made by herself, Ms Butler, Ms Hicks and Mr Mercuri. She explained that the decision came about at the point when they realised that, after multiple opportunities to improve his behaviour and performance, Mr Boyd was not doing either. It was stated that it was her recommendation that Mr Boyd be dismissed. She recounted that this group were having daily check-ins to see how Mr Boyd's performance was tracking. Ms Paterson said that the actual decision was made on 28 October 2011 prior to the meeting with Mr Boyd and his representative. The decision was made on the basis that his performance and behaviour had not improved. It was decided that, if there was nothing that Mr Boyd said at the meeting that was going to give them any more indication or reason as to why his behaviour had not improved, then he would be dismissed. 113
[57] It was recalled by Ms Paterson that, at the meeting on 28 October 2011, the company had commenced by going through the plan and demonstrating that, over the last few weeks, Mr Boyd had not actually completed a majority of the tasks that had been set for him. As they got stuck on arguing every single point again, the company had summarised it. She said that she did not know whether Mr Boyd had been provided with a copy of the plan. 114
[58] Ms Paterson recounted that, during the meeting, Mr Boyd had put forward no mitigating reasons for his performance or his continued and escalating aggressive behaviour. 115 With respect to his behaviour, it was stated that Mr Boyd was aware of it and it was just that the complaints were not put to him.116 She said that Mr Boyd was aware because she and Mr Boyd had conversations all the time during which she would walk him through how to move forward and how to react to people in a professional way if he got frustrated with them for whatever reason.117 Ms Paterson explained that Mr Boyd sought her out to have those discussions. She recalled that, sometimes, he was just advising her of what had happened and other times, it was from the point of view that he was the victim in these interactions. She said that one time Mr Boyd felt aggrieved - about Ms Hicks allegedly bullying him.118 In answer to the question as to how does it follow that he would know that his behaviour was aggressive if he felt that he was the victim in those circumstances, Ms Paterson’s response was that she did not think that it was hard to know if your behaviour was professional in the workplace if you are yelling at people.119 It was then stated that she had not witnessed this behaviour.120 During re-examination, Ms Paterson stated that she had observed aggressive behaviour by Mr Boyd.121
Ms Hicks
[59] Ms Hicks gave oral evidence and also provided a witness statement. 122 Her position is Procurement Support Services Team Leader, Logistics and Procurement. Mr Boyd came under her direct supervision on 16 August 2010.123
[60] Ms Hicks explained that she came to the view that Mr Boyd’s performance was unacceptable because he was not completing work on time or providing work back to her. She said that she used the same standard as she would use for any other person doing that role and that other people had performed that role when Mr Boyd was on extended leave. 124
[61] It was Ms Hicks’ evidence that she did not put up with Mr Boyd’s behaviour because she chatted to him and also organised meetings for him and then that led to the performance meetings. 125 She was unable to provide the dates of the meetings.126 It was her assessment that she spent a few hours a day managing Mr Boyd’s performance and behaviour through meetings and discussions with him from October 2010 to January 2011.127
[62] It was explained that the discussions with Mr Boyd were about his behaviour, how he could be volatile and to calm down. She said that examples of Mr Boyd’s behaviour were that he could be yelling and thumping on the desk. Ms Hicks said that this behaviour could be directed towards her or to other people eg, Ms Isik (in December 2010) and over the phone to other employees. 128
[63] Ms Hicks said that, after an outburst in the office, Mr Boyd would absent himself from work without permission for half an hour or an hour or longer. Sometimes, he would go for half a day, being sick, or sometimes the next day, he would ring in sick. 129 She said that these were longer than the normal breaks and not necessarily due to Mr Boyd being in some other part of the building.130
[64] With respect to her written statement where she said that Mr Boyd had a number of issues with other team members, Ms Hicks did not have all of the dates with her regarding when Mr Boyd was allegedly aggressive towards other staff members. However, she stated that she had seen Mr Boyd act aggressively within the office. 131
[65] Ms Hicks confirmed that there was a meeting around 7 November 2010 but she did not recall Mr Saunders asking Mr Boyd as to the nature of his medical condition and whether or not he was on medication. 132
[66] It was recounted by Ms Hicks that, on 13 December 2010, following an interaction with Ms Isik, Mr Boyd had started talking about his mother in law and his wife in derogatory terms. She said that he would often make such comments about his wife but she could not name the specific dates except for the one on 13 December 2010. Further, it was stated that Mr Boyd had heated telephone conversations with his wife in the open office but she did not write the dates down. 133
[67] Ms Hicks gave evidence that, in October 2011, Mr Boyd continued to refuse instructions he did not agree with, acted aggressively towards other staff and appeared to take his frustrations out on others as well as the computer keyboard. 134 In terms of instructions Mr Boyd continued to refuse, Ms Hicks stated that he did not like to put an extra column in a spreadsheet. She confirmed that she did not have evidence supporting this in front of her.135
[68] With respect to when Mr Boyd acted aggressively to other staff, Ms Hicks indicated that there were a number of times but that she did not write down every single date. She explained that, when people were trying to help Mr Boyd or were trying to talk things through with him, he would get angry with them. This resulted in her having to go over and say to Mr Boyd that they are just trying to help you with your role. She said that, if she witnessed it, she would pull him aside and try and speak to him and tell him to calm down eg, after he had upset Mr Opperman. 136
[69] In terms of Mr Boyd taking all of his personal leave to deal with family issues, Ms Hicks said that he was directed to do so by the company in January 2011. She did not recall any discussion at the time about Mr Boyd’s state of mind. 137 It was also Ms Hicks’ evidence that, at that time, the company was contemplating the termination of Mr Boyd’s employment because of his performance and behaviour.138
[70] With regard to Mr Boyd making bullying complaints about her, Ms Hicks recalled that that Mr Boyd told her that she was bullying him when she said his name. She understood that he had gone to Ms Paterson and made a complaint. Ms Paterson had asked her if she wanted to do anything about it but she said no because she did not want to cause any problems with Mr Boyd’s performance management. It was clarified that she meant that Ms Paterson had asked her whether she had done any bullying of Mr Boyd. The response had been no and that all she had said to Glenn was his name and that he had then turned around and told her that she was bullying him. 139
[71] Ms Hicks’s evidence was that, in October 2011, Ms Paterson spoke to her and advised her that she had received complaints from the team about Mr Boyd’s apparent aggressive behaviour towards her. Her response was that she did not want to take it any further as it would impact on her ability to continue the performance management process of Mr Boyd. She explained that all she was trying to deal with was Mr Boyd’s performance and she did not want any more other things going on to cause any problems for anybody. If the complaints were raised, it would just cause more issues and more aggravation. She indicated that this was not because the complaints were not serious enough that some action needed to be taken. 140 She also denied that she did not deal with Ms Isik’s complaint because she had already determined that she wanted to terminate Mr Boyd's employment.141 It was stated that she was told by Ms Paterson that Mr Steen and Ms Isik had made complaints but she did not know whether they were verbal or written as she did not see them at the time.142
[72] With respect to the first performance improvement plan dated 10 October 2011, 143 it was Ms Hicks’ evidence that Mr Boyd had already been provided with the work for the MDI spreadsheets when he came back to work on 12 September 2011.144 With respect to the second performance improvement plan dated 17 October 2011,145 Ms Hicks agreed that, between the first performance improvement plan and the second one, new tasks had been added, despite Mr Boyd not having been able to complete the work on the previous plans. The reason for adding new tasks was that they would not take a long time to do and that she would have provided them to other employees who were doing the same work.146 It was not accepted by Ms Hicks that, at the time of the final review,147 Mr Boyd’s performance had improved in the week ending 21 October 2011. This was because, even though he had completed the MDI spreadsheets on 18 October 2011, he had been provided with that work on 12 September 2011.148 Ms Hicks stated that the performance improvement plans reflected Ms Boyd’s normal weekly workload.149
[73] Further, it was stated that items such as contract extension letters were completed by other staff members. 150 It was agreed that the contract extension letters were in a performance improvement plan which was for a period when Mr Boyd only worked one day that week.151 Another example given by Ms Hicks was contract price reviews which she indicated Mr Ma had assisted with. She had no evidence with her at that time to support this contention.152
[74] Ms Hicks did not agree that the majority of the plan was completed by Mr Boyd because, if he was not around, the work could not just stop because he was not there. She said that she did not have evidence with her that the items that were not completed by Mr Boyd within the timeframe were required to be completed. 153 During the three-week period of performance improvement plans, it was Ms Hicks’ evidence that Mr Boyd was away due to approved leave and sick leave and other times when he left the office without approval. However, she could not specify these dates and indicated that she could not find any such dates in her diary.154
[75] It was Ms Hicks’ evidence that Mr Boyd’s role in regards to the organisation was important and that they all played a part in the team. After his dismissal, a lot of his work was passed out to other people. She indicated that, at this stage, no one had been appointed to his role. She was unable to say as to whether that work was currently up-to-date. 155 With respect to the 212 period contracts that needed to be closed by Mr Boyd by 28 October 2011 if not earlier, Ms Hicks stated that, five months later, she was not sure but that they may not all be closed. She was not sure as to whether all of the contracts had expired in the week prior to 10 October 2011 but she thought it unlikely.156 It was conceded that the task of closing the 212 period contracts not only included Mr Boyd's weekly work but included him completing a backlog of work which occurred whilst he was on eight months’ leave. Ms Hicks indicated that, at the meeting, it was believed that there were about 50 period contracts. She also said that it would not be part of Mr Boyd's normal work to process 129 contracts in a week.157
[76] In terms of her written statement where she indicated that, during Mr Boyd’s absence, a contractor was able to perform his role in half the time and to a higher standard, Ms Paterson could not explain as to why, when he returned there were 212 period contracts that were expired and needed to be closed and also 129 contracts in Ariba that required a price mechanism loaded against them. 158
[77] With respect to the e-mail that Mr Boyd sent to her on 24 October 2011 asking for her to update him as to what she saw as the priority plan task items for that week, 159 Ms Hicks stated that she did not respond to the e-mail because it was going to be discussed at the Friday meeting. She could not honestly say that she had spoken to him verbally about it.160
Mr Mercuri
[78] Mr Mercuri gave oral evidence and also provided a witness statement 161 He is Commercial Manager for the respondent and, on 8 August 2011, was assigned to the role of Manager, Logistics and Procurement in an acting capacity.162
[79] It was stated that, during October 2011, he became involved in reviewing Mr Boyd’s work performance. He indicated that this was done through the two management levels between his position and that of the applicant’s. Mr Mercuri indicated that it was made quite clear to Mr Boyd that he was likely to be terminated if his performance did not improve. This had occurred during the meeting on 7 October 2011 which he had attended. 163
[80] Mr Mercuri stated that, with the benefit of hindsight, the company should have moved to terminate Mr Boyd much sooner than it did. This was because, in January 2011, Mr Boyd was on a final notice and was going to be terminated when the company decided to allow him a period of leave to resolve his personal issues. Given what occurred on his return on 12 September 2011 until his dismissal, in terms of the impact on others in the office and his lack of work output, it was said that it would have been better to have terminated Mr Boyd in January 2011 rather than have him return. The intent of the company in allowing him to return was to try and give him a fresh start. It was stated that Mr Boyd had been given every opportunity to come to work and focus on his work. Had he done that and produced good work and worked well with his colleagues, he would still be employed. 164
[81] It was Mr Mercuri’s evidence that, on Mr Boyd’s first day back on 12 September 2011, he witnessed him being involved in a heated discussion with Ms Hicks. He said that there was a confrontation between Ms Hicks and Mr Boyd and that Mr Boyd, in a distressed fashion, decided to leave the office. It was stated that this was Mr Boyd’s normal response to those sorts of incidents. 165 He said that Mr Boyd had come back sometime later. When reminded of his statement,166 Mr Mercuri was positive that his statement was correct and that Mr Boyd did not return for the rest of the day.167
[82] With respect to Mr Boyd’s request that he work on a part-time basis, Mr Mercuri stated that, before Mr Boyd returned to work, there was no indication that it was not on a full-time basis. As well, the company did not have the luxury of turning a full-time job into a part-time job just because an employee requests to work part-time. It was recalled that it was agreed that Mr Boyd could work four days a week and three days a week for the period of October 2011 when the company extended the contractor’s time. He said that Mr Boyd had indicated his acceptance of this to his manager. 168 It was confirmed by Mr Mercuri that there were two other staff within the Department who worked part-time due to parental responsibilities. One of those employees was at a similar level to Mr Boyd and had returned on a part-time basis from parental leave and the other one performed a role at a higher level.169
[83] In terms of the steps taken by the department to familiarise Mr Boyd with the new system, Mr Mercuri was not aware of the details of how this was done as he was the manager twice removed from Mr Boyd's position. 170 With regard to his written statement where he said that he saw Mr Boyd’s behaviour spiral into a pattern of non-productive time and gave examples, Mr Mercuri indicated that he did not have the dates when these incidents had occurred off the top of his head nor did he see every incident. He made the statement because he was aware that it was true as he had discussed with his managers what was going on in the office.171
[84] In terms of his contention that Mr Boyd was not producing what was required of him in his role, Mr Mercuri explained that he did not have the detail of the work that Mr Boyd failed to produce. However, he was advised of the lack of performance and shown the actual work that was not produced. He said that, during October 2011, he became personally involved in the weekly meetings with Mr Boyd and so, at that stage, he was directly involved. 172
[85] It was confirmed by Mr Mercuri that, at the end of the performance improvement process, he made the decision to terminate Mr Boyd's employment on 28 October 2011. It was stated that there was an agreed plan of work to be completed at the beginning of each week and it was not achieved even though it was not a full-time workload. He said that the non-completed work was associated with MDI spreadsheets and contracting spreadsheets but he did not know the actual detail. However, he was part of the discussions where the work was allocated and then reviewed and was confident that it was a reasonable workload because he had detailed discussions with the managers who were managing Mr Boyd. 173
[86] Mr Mercuri confirmed that Mr Boyd's dismissal was based on his work performance, his output and his behaviour. He agreed that Mr Boyd was put on a performance improvement plan on 10 October 2011. 174
[87] It was stated that Mr Boyd’s behavioural issues, between 10 October 2011 and 28 October 2011, were consistent with the behavioural issues prior to 10 October 2011. These were said to be that he was unable to work cooperatively with colleagues and that, when he became upset, he would still tend to leave the office although this was less so after he was on the performance plan. 175 The behaviour was described as being completely unacceptable in that Mr Boyd was insubordinate, he did not take reasonable directions from his manager and he did not work cooperatively with his colleagues, accusing others of bullying him when that was not the case. Mr Mercuri was unable to give itemised dates but stated that Mr Boyd’s behaviour was consistent from when he returned to work on 12 September 2011 until the day of his dismissal.176
[88] Specifically, for the period between 10 October 2011 and 28 October 2011, Mr Mercuri described the main behavioural issues with Mr Boyd as being in relation to his questioning the tasks that were allocated to him. It was his belief that Mr Boyd knew that, if he did not perform and deliver the work, he would eventually be terminated. This was because that was what Mr Boyd had been told at the meeting on 7 October 2011 and formally in writing on 11 October 2011. Therefore, he believed that Mr Boyd was trying, while he could, to divert attention from his performance, by questioning work and saying that the work took more time than was reasonable. Mr Boyd’s pushing back and questioning of his manager at the time was unacceptable. However, he did notice a slight reduction in terms of Mr Boyd’s “blowups” in the office during this period. 177
[89] It was stated by Mr Mercuri that behavioural issues were raised with Mr Boyd during the weekly meetings. He recalled saying to Mr Boyd a couple of times that he was exaggerating the amount of time it took to do that work. It was Mr Mercuri's view that Mr Boyd was unable to demonstrate that it was an unreasonable workload. He gave an example of discussing a particular spreadsheet activity in detail with Mr Boyd. The result was said to be that, something that Mr Boyd said was going to take days, turned out to be an hour. This was described as a common behavioural pattern from Mr Boyd, based only on that discussion. 178
[90] Some of the assessment of Mr Boyd’s behaviour was said to be the result of his own observations together with feedback from the four managers who reported to him who told him that he needed to do something about the situation with Mr Boyd. 179 With respect to the complaints that he received from these managers, Mr Mercuri indicated that they were ongoing but that he did not have the dates with him or in his head. It was stated that the complaints were in late September 2011 and during October 2011.180 Mr Mercuri explained that, part of dealing with the complaints was to implement a process whereby Mr Boyd was advised that his behaviour and performance were unacceptable and of the things that he needed to address (the performance review plan). He was also told that, if his performance and conduct did not improve, the company would seek to terminate his employment.181
[91] In terms of Mr Boyd's heated discussions with co-workers, Mr Mercuri said that he had not recorded the dates and that most of these were reported to him by the department. He said that he witnessed a couple involving Ms Hicks because she sat directly in line of sight of his office. 182
[92] With regard to the complaints by the four Managers, Mr Steen’s complaint (around 24 October 2011) about Mr Boyd was said to concern the way Mr Boyd was treating Ms Hicks. Mr Curls’ complaint was about the way Mr Boyd was treating Mr Ma, who was trying to help Mr Boyd learn the Ariba system. Mr Anthony’s complaint was a general complaint about how Mr Boyd’s behaviour was affecting the people on the team. The fourth complaint was from Mr Dancey, Ms Hicks’ Manager, regarding Mr Boyd’s general behaviour and work output. 183 It was Mr Mercuri’s evidence that, at the meeting on 7 October 2011, Mr Boyd was advised that Mr Steen and Mr Curl had made complaints about him. He said that the complaint by Mr Steen was not the one he made around 24 October 2011 but was based on verbal discussions with him about Mr Boyd. It was agreed that the complaints from Mr Anthony and from Mr Dancey were not put to Mr Boyd during this meeting.184
[93] Mr Mercuri’s view that Mr Boyd did not have the capacity to perform in his role and that his behaviour in the office had become completely unacceptable was said to have been based on what he witnessed happening in the office and issues with Mr Boyd which were being escalated to him. He said that there was a general, constant pattern of behaviour by Mr Boyd which was aggressive and akin to “tantrum throwing”. It was indicated that he did see Mr Boyd throw things and bang things down on the desk, bang his keyboard and throw his stapler on occasion but he did not have the specific dates. On a couple of occasions, he heard some banging and assumed it was Mr Boyd which was then confirmed by Ms Hicks and the other managers on some occasions. 185
[94] It was recounted by Mr Mercuri that, at one point, Mr Boyd came into his office and claimed that he was being bullied by Ms Hicks and that Ms Hicks (and also the HR manager) were not available when he wanted to meet with them. He responded to Mr Boyd that it was he who was doing the bullying. 186
[95] Mr Mercuri confirmed that it was agreed that Mr Boyd could work three days a week (Monday, Tuesday and Friday), temporarily, from 11 October 2011 until 28 October 2011. This was because the contractor, who had been working full-time prior to Mr Boyd’s return, was kept on for an extended period. 187
[96] With respect to the performance improvement plans and the meetings associated with them, Mr Mercuri was unable to give specific evidence about them. He believed that Mr Boyd’s manager had given him a copy of the performance improvement plan at the meeting a week prior. 188
[97] In terms of the e-mail sent by Mr Boyd to Ms Paterson, on 24 October 2011, 189 Mr Mercuri did not know why there was no response to Mr Boyd’s e-mail. He commented that Mr Boyd’s view of all work allocated to him was that it was unachievable and impossible.190 With respect to Mr Boyd’s e-mail to Ms Hicks of the same date, regarding the number of period contracts that had expired, Mr Mercuri indicated that he did not get involved in that detail. He said that he worked with Mr Boyd’s managers to determine his work output and his work performance. He did not need to do the work himself to be able to determine that. He was the manager. It was stated that the work that was allocated to Mr Boyd was more than reasonable and less than would be expected of a fully performing employee.191
[98] Mr Mercuri explained that the decision to terminate Mr Boyd was made in concert with Mr Boyd’s manager and in consultation with the HR department. He said the decision was made on 28 October 2011. It was recalled that, on 28 October 2011, he, Ms Hicks and Ms Paterson met with Mr Boyd and Mr Cherry. During the meeting, Mr Mercuri said that the company ran through the things that Mr Boyd did and did not do during that week. He stated that, at beginning of the meeting, Mr Boyd was given an opportunity to explain the work he had produced, not only during the review period but since he had returned to work on 12 September 2011. However, it was recalled that Mr Boyd was unable to articulate any work that he had produced between 12 September 2011 and 28 October 2011. 192 He stated that there was not much coming from Mr Boyd in terms of what he had actually delivered from a performance point of view. At the end of the meeting, Mr Boyd was advised that the company was terminating his employment.
[99] From a conduct point of view, even though the company still saw it as an issue, Mr Mercuri indicated that it was not widely discussed at the meeting as it was felt that there was no need to go into any detail on conduct. This was despite being in receipt of two complaints - from Ms Isik and Mr Steen. It was Mr Mercuri’s view that there was enough there without those two complaints to justify Mr Boyd’s dismissal and he did not feel the need to put them to Mr Boyd. The two complaints were said to have not been factored into the decision regarding his termination. 193 They were cited as evidence of the behaviour that Mr Boyd had exhibited. Mr Mercuri said that, even if Mr Boyd had defended himself against those two complaints, it would not have changed the course of events. This was because there was enough in terms of performance and other behavioural issues that easily justified the decision to terminate his employment.194
[100] Mr Mercuri indicated that, prior to the meeting, they had reviewed Mr Boyd's performance to date and the work that he had performed since his return in September 2011. It was decided that, unless Mr Boyd could demonstrate clearly, in the meeting, that he had performed reasonable work and that his conduct had changed, he would be dismissed. 195
[101] With respect to the two complaints, Mr Mercuri believed them to be true as Ms Isik came into his office distressed and explained to him what had occurred. 196
[102] Following Mr Boyd’s dismissal, his position was abolished for operational reasons and the duties were spread around the Department. He said that there was no one in the position to make redundant. It was recounted that the intent, at the time of Mr Boyd's dismissal, was to fill the position. 197
SUBMISSIONS
Applicant
[103] It was submitted by Ms Jackson that the employer had made a number of statements in their submissions that were speculative and not supported by the evidence. The witness evidence of Ms Paterson, Ms Hicks and Mr Mercuri also failed to support their written statements. It was argued that the employer’s case relied on hearsay as they did not call the relevant staff as witnesses.
[104] Mr Boyd was said to have been set up by his employer to fail when he returned from his period of leave. Ms Jackson stated that they changed his job, provided inadequate training in the new system, made it difficult for him to convert to part-time to care for his child and refused to address any issues he was experiencing with Ms Hicks and other staff. Rather, they took on face value complaints that these staff made against him. Finally, the employer engaged in a sham performance management process whilst being aware of his depression and anxiety. Instead of providing reasonable support, it was argued that they put him under pressure and allowed other staff to also put him under pressure which they would have known would have made his condition worse and also affected his behaviour. Further, whilst Mr Boyd was on leave, his position was made redundant. Instead of offering him a redundancy, they created a new position and then performance managed him out of it. Once he was gone, they abolished the position because they really did not need it in the first place. 198
[105] Although his termination letter of 28 October 2011 cites behaviour as one of the reasons for the termination, the applicant submitted that the complaints about Mr Boyd’s behaviour from Ms Woo, Ms Isik and Mr Steen were not put to him and therefore he did not have an opportunity to respond. Mr Boyd was put on notice, in a letter dated 11 October 2011, about his behaviour but no behavioural issues were raised between 11 October and 28 October 2011. However, they were still listed as a reason for his dismissal. 199 The union argued that it would have been impossible for the employer to have pushed these allegations out of their mind and for them not to have influenced the decision to dismiss Mr Boyd. Mr Mercuri’s evidence was said to have been that the company already had enough to terminate Mr Boyd. Therefore, it was contended that the decision to terminate Mr Boyd was made before the complaint was received on 24 October 2011.200
[106] It was submitted by Ms Jackson that, when Mr Boyd returned to work in September 2011, the employer had no intention of continuing the employment relationship and manufactured a process to terminate his employment. The termination was said to be harsh, unjust and unreasonable. This was particularly so as Mr Boyd had been directed to take eight months of accrued leave prior to starting the performance improvement process. If Mr Boyd had been terminated prior to taking that leave, he would have had at least eight months’ pay which would have given him time to find another job. If he had been given a redundancy payment when his position was made redundant, he would have had around 44 weeks of pay to enable him to re-establish himself. 201
[107] The performance improvement plan was argued to have been unachievable as it included, not only Mr Boyd’s weekly work but also the completion of the backlog of eight months of work, that was not done whilst he was on leave. 202
[108] With respect to the meeting on 28 October 2011, the union submitted that the company did not show Mr Boyd where he had not met the requirements of the performance improvement plan or where his behaviour had been unacceptable. 203
[109] The union contended that there was not a valid reason for Mr Boyd's dismissal because:
- During the performance improvement process, Mr Boyd requested feedback on his performance, clarification of the tasks and support, none of which was forthcoming.
- The workload within the plan together with the normal requirements of Mr Boyd's position were unachievable.
- During the review period of three weeks, Mr Boyd worked a total of 5.5 days which the employer failed to take into account.
- There was no final assessment of Mr Boyd's performance against the plan and so therefore he was not given the opportunity to respond.
- Mr Boyd was denied representation at the meetings held on 16 September 2011 and 20 September 2011.
- The company’s refusal of Mr Boyd’s request to work three days per week caused him undue stress which adversely affected his medical condition. 204
[110] The termination of Mr Boyd’s employment was argued to have been harsh, unjust and unreasonable, particularly as the allegations were not put to him and he was denied procedural fairness and natural justice. 205
Respondent
[111] On behalf of the company, it was submitted by Ms Butler that there were valid reasons for Mr Boyd’s dismissal based on capacity and conduct. The reasons were poor performance and behaviour. 206 It was argued that there was nothing in Mr Boyd’s evidence which disputed that there was poor performance or behaviour. It was stated that he has had the opportunity to establish, by way of evidence, that he did not behave in an unacceptable manner. However, Mr Boyd has not disputed that he had uncontrolled outbursts in the workplace, was aggressive and abusive.207
[112] It was submitted that there may be criticisms of the company’s handling of the complaints by Mr Boyd’s co-workers. However, the company argued that this did not change the fact that no evidence has been brought by Mr Boyd to dispute the claim of unacceptable behaviour in the workplace. Statements and evidence, from three people who have witnessed first-hand Mr Boyd’s behaviour, have been provided during the hearing. Further, Mr Boyd’s behaviour is documented in various warnings issued to him, dated 25 March 2010, 20 January 2011 and 11 October 2011. None of these were said to have been contested. 208
[113] In relation to poor performance, Ms Butler submitted that Mr Boyd had produced no credible evidence that his performance was at an acceptable level or that it had improved from 12 September 2011 to 28 October 2011. It was noted that Mr Boyd had been placed on a final warning for behaviour and performance, in lieu of termination, before going on extended leave in January 2011. Contrary to Mr Boyd’s contention that feedback on his performance was not provided, the evidence of Mr Mercuri, Ms Paterson and Ms Hicks, in this respect, was highlighted. 209 The company contended that, even if the Tribunal was to accept Mr Boyd’s assertions that the work quantity and the timeframes were unreasonable, they only related to 3 items of assigned work. Further it was stated that there was no evidence to support Mr Boyd’s claim.210
[114] Mr Boyd’s evidence that he knew he was under performance management and was on notice of termination if he did not improve his performance and behaviour was referred to. 211 It was argued that Mr Boyd was unable to describe the work that he had completed nor did he elaborate on any performance improvements. Mr Cherry’s indication that he was not surprised that Mr Boyd was terminated was noted. It was contended that this was because the company had followed a proper and fair process in identifying that Mr Boyd had performance and behaviour issues which were discussed and Mr Boyd was given a chance to improve. It was asserted that Mr Boyd chose not to.212
[115] Instead of providing credible evidence relating to an improvement in his performance or behaviour, it was contended that Mr Boyd relied instead on personal issues to try and excuse some of the behaviour. However, Mr Boyd’s submission was said to be deficient as there was no medical evidence of his long-standing condition of depression and anxiety except for a Centrelink certificate. In addition, there was stated to be no evidence of Mr Boyd’s capacity to resume work on a full-time basis, being only fit for two days of work up until 3 March 2012. 213 Further, the company submitted that there was no evidence as to whether his custody arrangements would continue to impact on his capacity to work full time.214
[116] It was argued that the length of Mr Boyd’s service and his relatively unblemished previous employment record does not, and should not, discount the fact that, for a period of approximately 18 months, whilst he was under active performance management, Mr Boyd demonstrated an apparent disinterest in addressing his employer’s concerns relating to his inability to fulfil his employment contract. 215
[117] Further, the company was not advised, at any point, that he suffered from anxiety and depression and was on medication. Early on in his employment the company had cause to question whether or not he may be suffering a condition that required medication but was advised only that he was suffering from chronic fatigue. 216 It was argued that Mr Boyd’s suffering from depression and anxiety should not be a mitigating factor in his favour.217
[118] The company submitted that the Tribunal was entitled to draw a negative conclusion from the lack of evidence put forward by Mr Boyd on various matters but particularly regarding the issues of performance and behaviour. It was stated that Mr Boyd knew he was under performance management for his unacceptable performance and behaviour. Ms Butler argued that Mr Boyd has not made out a case that his dismissal was harsh, unjust or unreasonable and his application should be dismissed. 218
[119] If the Tribunal was of the view that the application should succeed, the company repeated its concerns in relation to a claim for reinstatement to a full-time role. This was in light of the lack of material relating to the claimed health issues, 219 the custody orders and the seeking of a potential disablement claim. These matters were said to raise a valid doubt as to whether or not Mr Boyd has the capacity to be reinstated.220
[120] It was submitted by the company that Mr Boyd was notified of the reason for the disciplinary action related to his conduct and capacity and was provided with an opportunity to have a support person, to respond to the allegations put and provide any mitigating/new or relevant information. He was also given time to consider and respond to the company's decision regarding the outcome of each of the stages of the disciplinary process. 221
[121] The company stated that a support person was present with Mr Boyd at all of the discussions relating to his dismissal. Further, Mr Boyd received a number of warnings about his unsatisfactory performance before the company moved to terminate his employment. 222
[122] Ms Butler submitted that the company is a large employer and that Mr Boyd was dealt with fairly. It was contended that there are no other matters that the Tribunal should take into account. 223
[123] With respect to remedy, it was argued that there was no basis for either reinstatement or compensation and that the applicant’s submissions demonstrate that there was a clear and irreconcilable breakdown of the relationship. Further, the company stated that the applicant’s submissions make no claim for compensation in the event that reinstatement is not granted. As well, it was said that the company has been made aware that Mr Boyd has sought to access his superannuation. Therefore, it was submitted that reinstatement is not possible and compensation is unjustifiable. 224
CONSIDERATIONS AND CONCLUSIONS
[124] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[125] The application was made within the period required in subsection 394(2) and the requirements of s.396(b) have been met. Therefore, the applicant was protected from unfair dismissal within the meaning of s.383 of the Act. Sections 396(c) and (d) have no relevance in this matter.
[126] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia 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.”
In this matter, s.385(a) has been met and s.385(c) and (d) are not relevant. Therefore, what remains to be determined is whether Mr Boyd’s dismissal was harsh, unjust or unreasonable (s.385(b)).
Was the dismissal harsh, unjust or unreasonable?
[127] In order to determine whether the termination of the Mr Boyd’s employment was harsh, unjust or unreasonable, Fair Work Australia is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:
“Section 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.”
I will deal with each of these factors in turn.
Valid reason – s.387(a)
Reason(s) for Mr Boyd’s dismissal
[128] Mr Boyd’s letter of termination, 225 dated 28 October 2011, stated that his employment was terminated for poor performance. The letter referred throughout to concerns about his work performance and his behaviour. However, when it came to specifying the reason for his dismissal, it said “...the Company has decided to terminate your employment for poor performance effective as of 28 October 2011”.226
[129] It was Ms Paterson’s evidence that the decision to dismiss Mr Boyd was made on the basis that, after many opportunities to improve his behaviour and performance, this had not happened. 227 Mr Mercuri, who ultimately made the decision to terminate Mr Boyd’s employment, indicated that it was based on Mr Boyd’s work performance, output and behaviour.228
[130] In terms of what Mr Boyd was told at the meeting on 28 October 2011, as to the reasons for his dismissal, there does not appear to be a lot of evidence on this aspect of the matter. In his written statement, Mr Boyd stated that he was told that the company was still not happy with his performance and had decided to dismiss him. He said that he was not given an opportunity to speak about the tasks he had successfully completed that week or go through the Performance Improvement Plan. It was also indicated that the company did not provide any evidence of the tasks he had not completed. 229
[131] During his oral evidence, Mr Boyd confirmed that the company did not outline during the termination meeting, where he had not met the performance plan and was not given the opportunity to present any of the work that he had completed during that week. In addition, Mr Boyd recalled that Ms Butler had referred to some instances where his colleagues had raised concerns about him. However, it was said that Ms Butler did not elaborate in any detail on his performance or his output in terms of the plan. Mr Boyd said that that matter was not discussed. 230
[132] Mr Cherry’s written and oral evidence was to the effect that the company stated at the meeting on 28 October 2011, that it did not believe that Mr Boyd’s performance had improved enough. It was recalled that there was then debate about whether that was correct. He did not believe that the Performance Improvement Plan was tabled or discussed or that clear information was provided to show where Mr Boyd had not met the performance plan. The company had stated, ultimately, that it was their intention to terminate Mr Boyd’s employment. 231
[133] It was Ms Paterson’s recollection that, at the meeting on 28 October 2011, the company had commenced by going through the plan and demonstrating that Mr Boyd had not completed the majority of tasks that had been set for him. As they got stuck on arguing every point, they had summarised it. She said that Mr Boyd had not put forward any mitigating reasons for his performance or continued and escalating aggressive behaviour. It was stated that Mr Boyd was aware of the issues regarding his behaviour - it was just that the complaints were not put to him. His behaviour was said to have been part of the Performance Improvement Plan as well as his performance. 232
[134] Mr Mercuri’s written evidence was that, at the 28 October 2011 meeting, Mr Boyd was advised that he had not completed his assigned work to a satisfactory level. He recalled Ms Paterson starting to go through the items he had not completed with Mr Boyd denying it but not offering an explanation as to why the task had not been completed. 233
[135] During his oral evidence, Mr Mercuri also indicated that the company still saw Mr Boyd’s conduct as an issue. He recounted that it was not widely discussed at the meeting as it was felt that there was no need to go into any detail on that issue. It was not felt necessary to put the complaints from Ms Isik and Mr Steen to Mr Boyd as they had not been factored into the decision to dismiss him. Mr Mercuri stated that there was a sufficient basis, without those events, to justify dismissal. 234 He said that there was “enough in terms of performance and other behavioural issues and conduct in the office, that easily justified our decision to terminate”.235 It was agreed that one of the reasons for terminating Mr Boyd’s employment were behavioural issues.236
Conclusions
[136] In the letter, dated 11 October 2011, sent to Mr Boyd following the meeting on 7 October 2011, the company stated that the issues of concern regarding his work performance and his behaviour would be monitored with the last review meeting to be held on 28 October 2011 [emphasis added]. If his performance and behaviour had not significantly improved, that meeting would consider whether his employment would be terminated. 237 The three Performance Improvement Plans, dated 10 October, 17 October and 21 October 2011, all included behaviour and unexplained absences from the office for prolonged periods as areas requiring improvement.238
[137] In addition, Mr Boyd had been given a written warning, dated 25 March 2010 239 and a final written warning dated 20 January 2011.240 The written warning referred only to unacceptable behaviour whilst the final warning concerned behaviour and work performance.
[138] It would appear from the material before me that Mr Boyd’s behaviour has been an issue for the company, from at least March 2010. It continued to be a concern and was formally part of the Performance Improvement Plan of October 2011. However, it was not stated to be the reason for Mr Boyd’s dismissal in the letter of termination. Further, the final two complaints were not relied upon nor were they put to Mr Boyd for his response. I have also not been convinced that behavioural issues were raised with him sufficiently during the Performance Improvement Plan period. It was Ms Paterson’s evidence that Mr Boyd’s conduct and performance were monitored at the weekly review meetings and he was given feedback if his performance or behaviour were unacceptable. 241 Mr Mercuri’s evidence regarding whether the behavioural issues concerning Mr Boyd were raised with him between 10 October 2011 and 28 October 2011 was that they were only raised during the weekly meetings. It was recalled that he had told Mr Boyd a couple of times during these meetings that his continual questioning of the work that was reasonably allocated to him was unacceptable behaviour. He stated that there was a slight reduction in terms of “blow - ups” during this period.242
[139] Further, Mr Boyd’s unacceptable behaviour seems not to have been given to him as a reason for his dismissal during the meeting on 28 October 2011. The evidence appears to show that the focus of the meeting was on Mr Boyd’s unsatisfactory performance and that, as that discussion became bogged down in an argument between the two parties about that, the company “summarised” the performance issues and terminated his employment.
[140] It therefore appears that, although the behavioural concerns were not stated, in either the 28 October 2011 meeting or in the termination letter, as a reason for Mr Boyd’s dismissal, it is plain on the evidence before me that it was a reason for Mr Boyd’s dismissal - in addition to poor performance. Accordingly, it will be taken that there were two reasons for Mr Boyd’s dismissal - poor work performance and unacceptable behaviour in the workplace. I will deal with each of these in turn.
Poor work performance
[141] The letter of termination stated that Mr Boyd had been made aware since his return to work on 12 September 2011 of concerns relating to his work performance and output. Three weeks later, on 7 October 2011, a meeting was held with Mr Boyd to discuss, amongst other things, his work performance. The outcomes of the meeting were put in writing to Mr Boyd in a letter dated 11 October 2011. 243 It said that, since his return to work, there were significant concerns about his work performance and output, particularly his frequent absences from the workplace during the course of the day. The letter indicated that it was agreed that his performance would be monitored beginning with a review meeting on Friday 14 October 2011 and further ones on 21 October 2011 and 28 October 2011.
[142] The first Performance Improvement Plan, dated 10 October 2011 was reviewed on Friday 14 October 2011. The second one, dated 17 October 2011 was to be reviewed on 17 October 2011 and the third, dated 24 October 2011 was to be reviewed on 28 October 2011. It does not appear from the evidence that the third plan was reviewed in detail during the meeting on 28 October 2011.
[143] It was the company’s contention that the tasks set out in the plans were reasonable and achievable as they reflected Mr Boyd’s normal weekly workload. Ms Paterson’s evidence was that it was very obvious that Mr Boyd was not completing the majority of the tasks set out for him, if at all, and that the quality of his work was very poor compared with what could reasonably be expected. She also stated that, except for one item on the first plan (which was completed by a contractor), all of the other items on that plan were carried over into the following week as they had not been completed. 244
[144] Ms Paterson rejected Mr Boyd’s argument that he could not complete any work on Day 1 (Monday 10 October 2011) because he did not receive the plan until 5.00pm on that day. This was on the basis that he could have completed work because it was not aligned to what was specifically stated in the plan. 245 Further, the plan had been discussed with him and he had seen it on the Monday morning, 10 October 2011.246 It was agreed that, during the first week, Mr Boyd would not have completed the plan due to having been away on sick leave. She said it was not unreasonable for the second plan to have recorded that Mr Boyd did not complete any items for the week 10 - 14 October 2011. This was because some of the items on the first plan247 eg MDI spreadsheets, were actually tasks he had been given on 12 September 2011 and that he was responsible for, prior to them being part of a plan.248
[145] It was Ms Paterson’s evidence that, by the second review meeting on Friday 21 October 2011 (which reviewed the plan dated 17 October 2011), 249 it was clear that Mr Boyd did not have the capacity to perform his role. Further, she did not believe that the change in status of a number of items from “incomplete” on the plan dated 17 October 2011250 to “on going” on the plan dated 24 October 2011251 meant that Mr Boyd’s performance had improved. This was because each of the tasks needed to be completed by the Friday of each week and that there was not a “drop - dead date” on those particular tasks. It was stated that these items had not been started.252
[187] It was recalled by Mr Boyd that he had raised issues about the performance plans with Ms Hicks which were not responded to. He was concerned about unachievable plans being unilaterally given out which he considered to potentially be bullying. 308
Conclusions
[188] In his evidence, Mr Boyd denied swearing in the open office and stated that he and Mr Cherry had challenged the validity of the final written warning. He believed that it was a consequence of his having raised issues in October 2010 regarding what he believed was the non adherence to policy which was resulting in financial losses to the company. In terms of the note on the chair incident and Ms Isik, Mr Boyd explained it in terms of the stress he was under in his personal life for a number of different reasons. He spoke of the verbal bullying complaint he had made against Mr Ventura and of the toxic and bullying culture within the department. Mr Boyd also talked about his reasons for requesting part time work in June 2011 and the financial and emotional stresses on him at the time. With respect to his unacceptable behaviour, Mr Boyd agreed that this had been raised with him as an issue in March 2010 ahead of the issuing of the written warning.
[189] Mr Boyd’s evidence does not indicate a challenge to or a denial of the poor behaviours that he was alleged to be exhibiting except for a denial of swearing and that the final written warning was contested. There was no denial of specific instances which had been raised by the company. Rather, he gave an explanation of the stresses he was under and the reasons for them.
[190] In his witness statement, it was stated by Mr Boyd that he was diagnosed about 21 years ago with depression and anxiety and that it had been successfully controlled with medication and treatment. 309 It was also said that his employer was aware of his condition.310 On the other hand, it was submitted by the company that the only information they had of Mr Boyd’s medical condition was a report dated 23 June 1997 which stated that Mr Boyd was suffering from chronic fatigue syndrome.311 There is no evidence before me that Mr Boyd told his employer or provided a medical report about his depression and anxiety. Accordingly, it would be difficult for this to have been taken into account if they were not aware of it. However, given that Mr Boyd’s behaviour was an ongoing issue by at least March 2010, a logical question from the employer would have been as to whether there was a medical condition that may be related to the inappropriate behaviour.
[191] Despite a lack of detail to support the company’s generalised contentions about Mr Boyd’s aggressive behaviour, his yelling, banging and throwing things, it is most probable that the incident with Ms Woo (on 16 September 2011); the incident with Ms Isik (on 6 October 2011) and Mr Boyd’s behaviour towards Ms Hicks on 6 October 2011 (as reported by Mr Steen) involved behaviour by Mr Boyd as stated by the complainants. As there was no evidence proffered to the contrary by Mr Boyd, I also accept the evidence of Ms Paterson, Mr Mercuri and Ms Hicks where they witnessed various other behaviours eg aggression towards other employees, banging things out of frustration.
[192] Therefore, taking all of this into account, I find that there was a valid reason for Mr Boyd’s dismissal based on his unacceptable behaviour in the workplace.
[193] Accordingly, even though I have found that there was not a valid reason for Mr Boyd’s dismissal based on performance, I am satisfied that there was a valid reason for his dismissal based on his unacceptable behaviour in the workplace.
Notification – s.387(b)
[194] Mr Boyd was provided with a letter of termination. As set out earlier, although both his behaviour and work performance were discussed in the letter, it specifically stated that he was being dismissed for poor performance. It is also apparent from the evidence that he was not told, at the termination meeting, that he was being dismissed for his unacceptable behaviour.
[195] It is apparent from the evidence that the final written warning of 20 January 2011 concerned both Mr Boyd’s behaviour and performance. The performance review plans in October 2011 listed behaviour and performance. However, the former does not appear to have been discussed at the two weekly review meetings that were held.
[196] However, it is clear from the material before me that the reasons for Mr Boyd’s dismissal related to both his behaviour and his work performance. Therefore, I am satisfied only that Mr Boyd was notified of one of the reasons for his dismissal (work performance) but not the other (unacceptable behaviour).
Opportunity to respond – s.387(c)
[197] As I have found that Mr Boyd was not notified of one of the two reasons for his dismissal (unacceptable behaviour), he was, therefore, not provided with an opportunity to respond to that reason.
[198] With respect to the poor work performance reason as, at the meeting on 28 October 2011, the company did not review the Performance Improvement Plan for that week fully with Mr Boyd, it is not possible to find that he was given an opportunity to respond to the reason of poor performance.
[199] Therefore, I am not satisfied that Mr Boyd was given an opportunity to respond to either of the two reasons for his dismissal. Further, it was the evidence of Mr Mercuri and Ms Paterson that the complaints by Mr Stern and Ms Isik were not put to Mr Boyd for his response. This was excused on the basis that they were not taken account of in making the decision to terminate Mr Boyd’s employment. Ms Paterson’s comment that “There was a clear pattern forming...” 312 would tend to indicate, though, that the two complaints had an indirect influence as they confirmed a pattern regarding Mr Boyd’s behaviour that was forming in Ms Paterson’s mind. However, they were never put to Mr Boyd for his response.
Support person – s.387(d)
[200] Mr Cherry, from the ASU, was present with Mr Boyd at the meetings in January 2011 and at the meeting on 28 October 2011.
[201] In his written statement, 313 Mr Boyd alleges that he was denied access to Mr Cherry for meetings on 16 September and 20 September 2011 regarding his performance. There is no other material before me on this aspect of the matter. As there was no challenge to this contention by the company, Mr Boyd’s evidence, in this regard, is accepted.
[202] Therefore, with respect to the January 201 and 28 October 2011 meetings, I find that Mr Boyd was represented by Mr Cherry from the ASU. However, in terms of the meetings on 16 September and 20 September 2011, I find that Mr Boyd was refused representation by the Company.
Previous warnings regarding the unsatisfactory performance – s.387(e)
[203] Mr Boyd was given a final written warning dated 20 January 2011 concerning, amongst other things, his work performance.
[204] Therefore, I am satisfied that Mr Boyd had been warned about his unsatisfactory work performance prior to his dismissal.
Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)
[205] The company is a large employer with a dedicated human resources area which was involved in the process which culminated in Mr Boyd’s dismissal.
Any other matters – s.387(h)
[206] Neither party submitted that there were other matters that the Tribunal should take account of.
CONCLUSIONS
[207] In all of the circumstances of this matter and, having taken account of each of the factors in s.387 of the Act, I determine, on fine balance, that the dismissal of Mr Boyd was harsh, unjust or unreasonable.
[208] On the one hand, there was a valid reason for Mr Boyd’s dismissal. On the other hand, the performance review process did not provide Mr Boyd with a genuine opportunity to improve his work performance. It covered a period of 6.5 working days; there was no review of the third week of the plan; Mr Boyd’s Manager did not respond to an email from him on 24 October 2011 seeking clarification of the priority tasks for the last week of the performance review and new tasks were added to the carried over list from the first plan. Further, the concerns about his behaviour were not discussed during the termination meeting and barely, if at all, at any of the two review meetings. Two complaints about his behaviour were not put to Mr Boyd prior to his dismissal. Even though it was said that they were not taken account of in making the decision to dismiss Mr Boyd, they appear to have had an indirect influence in confirming for the company what appeared to be a pattern of behaviour by Mr Boyd.
[209] It therefore follows that, pursuant to s.385 of the Act, Mr Boyd has been unfairly dismissed.
REMEDY
[210] Section 390 of the Act sets out when Fair Work Australia may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA 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) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[211] With respect to the requirements of s.390, I am satisfied that Mr Boyd was protected from unfair dismissal at the time of his dismissal (s.390(1)(a)) and that he has been unfairly dismissed (s.390(1)(b)). Further, Mr Boyd has made an application under s.394 of the Act (s.390(2)).
[212] Section 390(3) states that Fair Work Australia must not order the payment of compensation unless two conditions have been met.
[213] The first condition is that Fair Work Australia is satisfied that reinstatement is inappropriate (s.390(3)(a)). There was no material or evidence before me as to whether or not Mr Boyd is seeking reinstatement. In all of the circumstances of this matter, I am satisfied that returning Mr Boyd to the workplace is inappropriate, given the nature of the issues (behaviour) that formed one of the reasons for his dismissal.
Compensation
[214] Section 390(3)(b) requires that Fair Work Australia consider it appropriate in all of the circumstances of the case to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.
[215] The requirements regarding an order for compensation are contained in section 392 of the Act. Section 392(2) sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:
“(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.”
[216] I will deal with each of the criteria in turn.
s.392(2)(a) - viability of employer’s enterprise
[217] There was no material before me that any order made would affect the viability of the respondent. Therefore, I am satisfied that the order I intend to make will not impact in this regard.
s.392(2)(b) - length of applicant’s service
[218] Mr Boyd commenced employment with a predecessor organisation on 6 February 1989. He had 22 years service at the time of his dismissal. Given the length of Mr Boyd’s service, this criteria must be taken into account.
s.392(2)(c) - remuneration would have been likely to receive
[219] There were no submissions from the union regarding compensation. The respondent argued that compensation was not justified.
[220] Having considered all of the material before me, I find that it is likely that, in the absence of dismissal, Mr Boyd would have continued with the company for a period of three months.
[221] On the basis of Ms Paterson’s response to a potential disablement claim, 314 it appears that Mr Boyd’s annual salary at the time of his dismissal was $79,757.14.
[222] Therefore, the provision compensation amount is $19, 939.28.
s.392(2)(d) - efforts to mitigate the loss
[223] There is no evidence before me regarding Mr Boyd’s efforts to find alternative employment. Attached to his witness statement was a medical certificate stating that he was unfit for work from 2 November 2011 to 2 February 2012. 315 His condition was stated as depression/anxiety. A second medical certificate indicated that, from 3 February 2012 until 3 March 2012, Mr Boyd was able to undertake two days per week of suitable employment.316
[224] On the face of these certificates, it appears that, due to his medical condition, Mr Boyd was not in a position to undertake alternative employment prior to 3 February 2012. For the month after that, he was able to work two days per week.
[225] Therefore, I find that, up until 3 February 2012, Mr Boyd was not able to perform any alternative work. For the month after that, he was able to undertake suitable employment for two days per week. There is no evidence before me that Mr Boyd has taken any steps to obtain alternative employment from 3 February 2012 onwards.
[226] In these circumstances, some discount on the compensation otherwise payable should be made. The discount needs to recognise, however, that for the first three months after his dismissal, Mr Boyd was unfit to perform any work and for the month after that, only two days per week of suitable employment. I consider that a discount of 15% is appropriate. This means that the provisional compensation amount is $19,939.28 - $2990.90 = $16,948.38.
s.392(2)(e) and (f) - the amount earned between dismissal and the making of the order and between the order and receipt of compensation
[227] Mr Boyd was paid 4 weeks’ in lieu of notice at the time of his dismissal - $6135.16. 317 In his statement, Mr Boyd indicated that he was receiving Centrelink Sickness Benefits.318 These are not, however, taken account of in calculating the amount earned.
[228] As the Tribunal is unaware of any amount earned, (not including any Centrelink payments), since the date of the hearing, the union is to provide the Tribunal and the respondent with the amount, if any, earned by Mr Boyd, not including Centrelink payments, between 3 February 2012 and the date of the decision. This information is to be provided by Wednesday 1 August 2012.
s.392(2)(g) - any other matters
[229] There were no other relevant matters sought by either party to be considered by the Tribunal.
s392(3) - misconduct
[230] On the material before me, I am not satisfied that Mr Boyd’s unacceptable behaviour constituted misconduct. It was not suggested by the respondent that this was the case.
[231] Therefore, I find that this section is not relevant in this matter.
Contingencies
[232] In the final calculation of compensation, I propose to make a small adjustment of 10% on the basis that the projected period of continual employment was short.
Shock or distress
[233] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Boyd (S.392(4)).
[234] Once the information is received from the union as to any earnings by Mr Boyd, the Tribunal will be able to finalise the amount of compensation taking into account the payment in lieu of notice and an adjustment for contingencies of 10%, as set out in paragraphs 227 - 232 above.
COMMISSIONER
1 Exhibit A2
2 Ibid at paragraph 2
3 Transcript PN 72
4 Exhibit A2 at Attachment C
5 Ibid at paragraph 9 and Transcript PN 72 - 77 and 87 - 89
6 Ibid PN 95 - 96
7 Ibid PN 89 - 91
8 Ibid PN 91 - 92
9 Ibid PN 92
10 Ibid
11 Ibid PN 94 and 96 - 100
12 Ibid PN 108 and 171
13 Ibid PN 104
14 Ibid PN 166
15 Ibid PN 123 and 297
16 Ibid PN 124 - 126
17 Ibid PN 164
18 Ibid PN 116 and 297 and Exhibit A2 at paragraph 20
19 Ibid PN 117 - 118 and ibid at paragraph 11
20 Ibid PN 112, 114, 120 and 295 - 296 and ibid at paragraph 13
21 Ibid PN 120
22 Ibid PN 173 - 176
23 Ibid PN 164 and 177
24 Ibid PN 188 - 195 and Exhibit A2 at paragraph 22
25 Exhibit A2 at Attachment G
26 Ibid at paragraph 23 and Transcript PN 196 - 203
27 Ibid PN 184 - 186
28 Exhibit A2 at paragraph 27 and ibid PN 207 - 214
29 Transcript PN 217 - 219
30 Ibid PN 220 and Exhibit A2 at paragraph 6
31 Ibid at paragraph 6
32 Transcript PN 240 - 242
33 Ibid PN 243 - 245
34 Ibid PN 246 - 247
35 Ibid PN 248 - 249
36 Ibid PN 250 - 256 and Exhibit A2 at paragraph 40
37 Ibid PN 65 and Exhibit A2 at paragraph 41
38 Ibid PN 626 - 268
39 Exhibit A2 at Attachment M
40 Ibid Attachment at 10
41 Transcript PN 272 - 277
42 Ibid PN 278 - 281 and Exhibit A2 at paragraph 48
43 Ibid PN 259 - 260
44 Ibid PN 261
45 Ibid PN 282 - 285
46 Ibid PN 288 - 291
47 Exhibit A2 at Attachment P
48 Transcript PN 300 - 301
49 Ibid PN 302 - 303 and Exhibit A2 at Attachment Q
50 Ibid at Attachment S
51 Transcript PN 304
52 Exhibit A2 at Attachment N
53 Transcript PN 305 and 309 - 313
54 Ibid PN 314 - 318
55 Exhibit A2 at paragraphs 3 - 4
56 Ibid at paragraph 4 and Attachment A
57 Ibid at Attachment B
58 Ibid at paragraph 5
59 Exhibit A3
60 Transcript PN 357
61 Ibid PN 371
62 Ibid PN 373 and Exhibit A3 at paragraph 3
63 Ibid PN 374 and ibid at paragraph 4
64 Ibid PN 375
65 Ibid PN 376
66 Exhibit R2
67 Ibid at paragraph 2
68 Transcript PN 413 - 415
69 Ibid PN 463 - 468 and Exhibit R2 at paragraph 7
70 Ibid PN 478 - 480 and ibid at paragraph 7
71 Ibid PN 487 - 498 and ibid at paragraphs 14 - 15
72 Ibid PN 499 - 505 and ibid at paragraph 17
73 Ibid PN 506 - 508 and ibid at paragraph 20
74 Ibid PN 509 - 511 and ibid at paragraph 22
75 Ibid PN 512 - 517 and ibid at paragraph 29
76 Ibid PN 423, 521 - 524 and 544 - 545 and ibid at paragraphs 31 - 33
77 Ibid PN 424
78 Ibid PN 425, 445 and 446
79 Ibid PN 442 - 445 and Exhibit R2 at paragraphs 42 - 43
80 Ibid PN 446 - 447 and ibid at paragraph 46
81 Ibid PN 526 - 530 and 567 - 570 and 576 and ibid at paragraph 31 and Attachment 1E
82 Transcript PN 532
83 Ibid PN 533 - 534
84 Ibid PN 534 - 542 and Exhibit R2 at paragraph 36
85 Ibid PN 546 - 550
86 Ibid PN 551 - 566
87 Ibid PN 577 - 578 and Exhibit R2 at paragraph 47
88 Ibid PN 579 and 581 - 583
89 Ibid PN 580
90 Ibid PN 584
91 Ibid PN 416 and Exhibit R2 at paragraph 36
92 Ibid PN 416 and ibid at paragraph 37
93 Ibid PN 417
94 Ibid PN 418
95 Ibid PN 419 and 423
96 Ibid PN 597
97 Ibid PN 602 and Exhibit R2 at paragraph 15
98 Exhibit A2 at Attachment M
99 Transcript PN 609
100 Exhibit A2 at Attachment N
101 Transcript PN 614 - 621
102 Ibid PN 624 - 629 and 725 - 730
103 Ibid PN 627 - 641
104 Ibid PN 636
105 Ibid PN 661
106 Exhibit A2 at Attachment N
107 Ibid at Attachment O
108 Transcript PN 687 - 688 and 733
109 Ibid PN 689 and 734
110 Ibid PN 690 - 693 and 748 - 750
111 Ibid PN 699 - 701 and Exhibit R2 at paragraph 59
112 Ibid PN 702
113 Ibid PN 452 - 459 and Exhibit R2 at paragraphs 61 - 63
114 Ibid PN 708 - 791 and ibid at paragraph 61
115 Ibid PN 713 and ibid at paragraph 63
116 Ibid PN 716
117 Ibid PN 717
118 Ibid PN 718 - 721
119 Ibid PN 722
120 Ibid PN 723
121 Ibid PN 758
122 Exhibit R3
123 Ibid at paragraphs 2 and 4
124 Transcript PN 776 - 778
125 Ibid PN 773
126 Ibid PN 798 - 799
127 Ibid PN 779 and 797 and Exhibit R3 at paragraph 6
128 Ibid PN 804 - 814
129 Ibid PN 774 and Exhibit R3 at paragraph 7
130 Ibid PN 816 - 818
131 Ibid PN 819 - 821 and 992 - 993 and Exhibit R3 at paragraph 8
132 Ibid PN 822 - 824
133 Ibid PN 825 - 834 and Exhibit A3 at paragraphs 17 - 19
134 Ibid PN 835 - 842 and Exhibit R3 at paragraph 15
135 Ibid PN 843 - 844
136 Ibid PN 845 - 853
137 Ibid PN 858 - 873 and Exhibit R3 at paragraph 28
138 Ibid PN 1003 - 1005
139 Ibid PN 874 - 877 and Exhibit R3 at paragraph 42
140 Ibid PN 884 - 887 and 896-901 and ibid at paragraph 43
141 Ibid PN 902
142 Ibid PN 888 - 890 and 894 - 895 and 1007 - 1015
143 Exhibit A2 at Attachment M
144 Transcript PN 903 - 909 and 1018 - 1019
145 Exhibit A2 at Attachment N
146 Transcript PN 910 - 913
147 Exhibit A2 at Attachment O
148 Transcript PN 914 - 917
149 Ibid PN 963 - 965
150 Ibid PN 918 - 919
151 Ibid PN 920 - 921
152 Ibid PN 922 - 925
153 Ibid PN 927 - 928
154 Ibid PN 931 - 940
155 Ibid PN 941 - 948
156 Ibid PN 949 - 955 and 965 - 968
157 Ibid PN 971 - 977
158 Ibid PN 984 - 985 and Exhibit R3 at paragraph 31
159 Exhibit A2 at Attachment Q
160 Transcript PN 956 - 962
161 Exhibit R4
162 Ibid at paragraphs 2 - 3 and Transcript PN 1055 - 1057
163 Ibid PN 1050 - 1051
164 Ibid PN 1052 - 1053 and 1326 and Exhibit R4 at paragraph 34
165 Ibid PN 1084 - 1086
166 Exhibit A4 at paragraph 7
167 Transcript PN 1087 - 1090
168 Ibid PN 1091 - 1093, 1095 and 1322 - 1324 and Exhibit R3 at paragraph 8
169 Ibid PN 1262 - 1268
170 Ibid PN 1097 - 1101 and 1259 - 1261 and Exhibit R4 at paragraph 9
171 Ibid PN 1102 - 1113 and ibid at paragraph 10
172 Ibid PN 1118 - 1120 and ibid
173 Ibid PN 1121 - 1126
174 Ibid PN 1128 - 1129
175 Ibid PN 1130
176 Ibid PN 1131
177 Ibid PN 1309
178 Ibid PN 1310 - 1314
179 Ibid PN 1132 - 1133
180 Ibid PN 1152 - 1156
181 Ibid PN 1157
182 Ibid PN 1940 - 1143 and Exhibit R4 at paragraph 12
183 Ibid PN 1158 - 1163
184 Ibid PN 1165 - 1169
185 Ibid PN 1170 - 1183 and Exhibit R4 at paragraph 19-20
186 Ibid PN 1184 – 1194 and 1280
187 Ibid PN 1201 - 1205
188 Ibid PN 1230
189 Exhibit A2 at Attachment P
190 Transcript PN 1232
191 Ibid PN 1234 - 1246
192 Ibid PN 1206 - 1229
193 Ibid PN 1292 - 1296 and 1302
194 Ibid PN 1303 - 1304
195 Ibid PN 1284 - 1291
196 Ibid PN 1298 - 1301
197 Ibid PN 1273 - 1277
198 Ibid PN 1340 - 1341
199 Ibid PN 1342
200 Ibid PN 1345
201 Ibid PN 1343
202 Ibid PN 1344
203 Ibid PN 1346
204 Exhibit A1 at paragraph 15
205 Transcript PN 1346
206 Ibid PN 1348 and Exhibit R1 at paragraph 3
207 Ibid PN 1348 and ibid at paragraphs 61 - 62
208 Ibid PN 1349
209 Ibid PN 1350
210 Ibid PN 1351 - 1352
211 Ibid PN 1353 and Exhibit R1 at paragraph 44
212 Ibid PN 1353 - 1354 and ibid at paragraph 5(a)
213 Ibid PN 1355 - 1356
214 Ibid PN 1357
215 Exhibit R1 at paragraph 18
216 Ibid at paragraph 20 - 21
217 Ibid at paragraph 60
218 Transcript PN 1359
219 Exhibit R1 at paragraphs 58 - 60
220 Transcript PN 1360
221 Exhibit R1 at paragraphs 65 - 67
222 Ibid at paragraph 69
223 Ibid at paragraphs 70 - 71
224 Ibid at paragraph 73 - 77
225 Exhibit A2 at Attachment T
226 Ibid
227 Transcript PN 454
228 Ibid PN 1128
229 Exhibit A2 at paragraph 54 - 55
230 Transcript PN 314 - 317
231 Ibid PN 371 and Exhibit A3 at paragraph 4
232 Ibid PN 709 and 713 - 716 and Exhibit R2 at paragraphs 61 and 63
233 Exhibit R4 at paragraph 24
234 Transcript PN 1292 - 1308
235 Ibid PN 1304
236 Ibid PN 1308
237 Exhibit A2 at Attachment L
238 Ibid at Attachments M, N and O
239 Ibid at Attachment C
240 Ibid at Attachment G
241 Transcript PN 580 - 583
242 Ibid PN 1309 - 1310
243 Exhibit A2 at Attachment L
244 Transcript PN 417 - 418
245 Ibid PN 626 - 629
246 Ibid PN 725 - 730
247 Exhibit A2 at Attachment M
248 Transcript PN 630 - 641
249 Exhibit A2 at Attachment N
250 Ibid
251 Ibid at Attachment O
252 Transcript PN 642 - 686 and 733 - 734
253 Ibid PN 903
254 Exhibit A2 at Attachment N
255 Transcript PN 908 - 919 and 916 - 917
256 Ibid PN 910 - 913
257 Exhibit A2 at Attachment N
258 Ibid at Attachment O
259 Transcript PN 910 - 917
260 Ibid PN 928
261 Ibid PN 918 - 927
262 Ibid PN 935 - 940
263 Ibid PN 949 - 955
264 Ibid PN 965 - 985
265 Exhibit A2 at Attachment Q
266 Transcript PN 956 - 962
267 Ibid PN 1118 - 1126
268 Ibid PN 1121
269 Ibid PN 1239 - 1240
270 Exhibit A2 at Attachment C
271 Ibid at Attachment G
272 Transcript PN 835 - 842 and 855
273 Ibid PN 843 - 844
274 Ibid PN 845 - 852
275 Ibid PN 858 - 873
276 Ibid PN 874 - 877
277 Ibid PN 884 - 901
278 Ibid PN 419
279 Ibid PN 423 and 524
280 Ibid PN 423, and 543 - 545
281 Ibid PN 443 - 446
282 Ibid PN 485 and Exhibit R2 at paragraph 15
283 Ibid PN 499 - 504
284 Ibid PN 527 - 532
285 Ibid PN 551 - 575
286 Ibid PN 580, 583 and 585
287 Ibid PN 581 - 582
288 Exhibit R2 at Attachment 1G
289 Transcript PN 690 - 701
290 Ibid PN 713 - 716
291 Ibid PN 717 - 722
292 Ibid PN 1102 - 1109
293 Ibid PN 1130 - 1143
294 Ibid PN 1309
295 Ibid PN 1310
296 Ibid PN 1133 and 1144 - 1164
297 Ibid PN 1165 - 1169
298 Ibid PN 1177 - 1183
299 Ibid PN 1184 - 1194 and 1280
300 Ibid PN 72 - 91
301 Ibid PN 91
302 Ibid PN 92 - 95
303 Ibid PN 95 - 97
304 Ibid PN 98 - 101
305 Ibid PN 188 - 195 and Exhibit A2 at paragraphs 20 - 22
306 Ibid PN 198
307 Ibid PN 199 - 205
308 Ibid PN 259
309 Exhibit A2 at paragraph 3
310 Ibid
311 Exhibit R1 at paragraph 56 and Attachment 5
312 Transcript PN 702
313 Exhibit A2 at paragraphs 30 - 31
314 Exhibit R2 at Attachment 1H
315 Exhibit A2 at Attachment A
316 Ibid at Attachment B
317 Exhibit A2 at Attachment T
318 Ibid at paragraph 4
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