Mr Joseph Jensen v Diageo Australia Pty Ltd
[2013] FWC 1078
•14 JUNE 2013
[2013] FWC 1078 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Joseph Jensen
v
Diageo Australia Pty Ltd
(U2012/9487)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 14 JUNE 2013 |
Application for unfair dismissal remedy; unsatisfactory performance.
[1] Mr Joseph Jensen (the applicant) filed an application for an unfair dismissal remedy on 22 August 2012 in relation to the termination of his employment by Diageo Australia Ltd (the respondent) on 20 August 2012. The application did not resolve at conciliation and was referred to me for determination. Arbitration hearings were held on 4, 5 and 6 February and 20 May 2013. The applicant was represented by Mr Acev of the Liquor and Hospitality Division of United Voice, and the respondent by Mr Darams, of counsel.
[2] Evidence was given on behalf of the applicant by Ms L Proctor (an organiser with United Voice) as well as the applicant himself. The following gave evidence on behalf of the respondent:
● Ms K Patterson (Employee Relations Manager);
● Mr L Delucyk (HR Business Partner - Supply);
● Mr B Odenthal (Value Stream Facilitator);
● Mr S Xuereb (Machine Operator);
● Ms J Massoud (HR Consultant - Supply);
● Mr R Eltom ((Production Manager);
● Mr A Woods ((Regional Continuous Improvement Manager); and
● Mr M Chapman (Site Manager).
The evidence
[3] The respondent manufactures and distributes alcoholic products, such as Bundaberg rum, Smirnoff vodka, and Johnnie Walker whiskey. The respondent packages and distributes its products at its manufacturing plant at Huntingwood. This is where the applicant was employed.
[4] The applicant commenced his employment with the respondent on 1 October 2002. He worked on the Bottle Line (Line 4) until mid-2010, when he went across to the Can Line (Line 5). According to the applicant, about six months prior to his permanent assignment to the Can Line he had been floating between the Can Line and the Bottle Line. 1
[5] In his statement, Mr Chapman explained that the introduction of the "RTD tax" had had a significant impact on operations which led to Diageo not being able to guarantee an afternoon shift on Line 4, whereas Line 5 ran an afternoon shift 95% of the year. The move to Line 5 suited the applicant because he had previously indicated to Diageo that he had childcare commitments that meant he did not want to work the day shift. Moving him from Line 4 to Line 5 means that Diageo could accommodate his family situation. 2
[6] According to Mr Odenthal (the Value Stream Facilitator for Line 5) there are a lot of similarities between the two lines. The work on Line 5 involves aluminium cans being filled, packed into cartons and prepared for storage. Line 4 involves bottles rather than cans being filled and packaged. Both lines have depalletisers (machines that remove the cans or bottles from pallets and place them on the line ready for filling). Both lines also have a "filler" machine, which fills the cans or bottles with the product. The filled cans and bottles then have lids placed on them; are date stamped; are checked for correct volumes of liquid and are then put through the packer machines in which they are packaged in cardboard into either four, six or 10 packs or cases. The machines on Line 5 that the operators have to operate are the depalletiser, the “filler", the "kister" packer machine, the "multi-packer", the "cube” packer and the "khs palletiser". Each of the machines is similar to its counterpart on Line 4. According to Mr Odenthal "the only real differences between the two lines are the fact that on Line 4 there are also machines that label the bottles which is not required on Line 5, and Line 5 has a cube-packer machine which Line 4 does not.” 3
[7] Operators employed by the respondent generally start at level 1 (introductory level) and most soon progress to level 2. An operator who demonstrates full competence on a line then has an opportunity to move to a level 3. In order to move up a level Diageo requires an operator to complete the relevant Diageo Learning Units (DLUs) which are competency-based assessments for each of the various machines. An appropriately trained operator will assess an operator against the requirements in the DLU and can sign the operator off as being fully competent on a machine. 4 This arrangement has been in place since at least mid-2010.5
[8] At the time that the applicant moved to Line 5 he was already a level 3 operator and indeed had worked as a line coordinator on Line 4. Line coordinators are more senior employees who usually have extensive experience on the lines and are responsible for assigning operators to the various machines on the line. Given that the applicant was already a level 3 operator and had at times worked as a line coordinator on Line 4, it was expected by his managers that he would pick up the work on Line 5 quickly and with relative ease. 6
[9] The respondent requires all level 3 employees who work on Line 5 to be proficient on all machines. This is because the respondent does not generally keep an operator on only one machine. Operators are rotated around the machines. This is done partly for variety and partly because when an operator is absent on leave, it is necessary for the other operators to be able to cover each of the machines. It is also important because in the respondent's peak period it is stretched for resources and often has to use casual employees. Permanent level 3 employees are needed to cover the more difficult to operate machines, such as the filler, so that the casuals can operate the more basic machines. 7
[10] While the respondent does not need all the operators to be level 3 operators at any one time, there must be at least two level 3 operators (i.e. fully competent operators). This is because a level 3 operator is needed to work on the filler (the most complicated machine) and when that operator goes on a break there is a need to have another level 3 operator to provide cover. 8
[11] The applicant's evidence was that when he moved to Line 5 no formal training plan was prepared or issued to him by the respondent. 9 Nor was he told by anyone from the respondent that it was a condition of his going over to Line 5 that he needed to be competent on all machines on the line.10 According to his statement, the respondent did not confirm to him in writing who would be responsible for training him until 5 July 2011.11
[12] According to Mr Eltom, he had expected the applicant to have little difficulty picking up how to operate the machines on Line 5 given his previous experience on Line 4, and the commonality of basic processes and machines between the two lines. 12 However, in or around October 2010 he was told that there were performance issues with the applicant. These included alleged poor relationships with other members of the term, including the line coordinator, Mr Amos Semisi.13
[13] On 18 October 2010, a meeting was held between the applicant, Mr Semisi, Mr Odenthal, and Mr Eltom. Mr Odenthal’s notes of the meeting were attached to his statement 14. Based on those notes, Mr Odenthal gave the following version of events:
‘JJ: I don’t get to spend enough time on each machine to learn it properly.
RE: The current situation is unacceptable Joseph. Amos is the Line Coordinator. He provides training to enable the team to succeed. We need you to focus on learning the packer machine. We will let you stay on the packer machine for the next 30 days, during which time you should learn the packer and not challenge Amos. Amos, you will treat all the team members with respect and you will focus on team development. If there are issues that cannot be resolved, these need to be addressed professionally. Joseph, you should only approach Brendan if you cannot resolve things once you have discussed them with Amos. We will have another discussion 30 days from now.’ 15
[14] The applicant said there were limited opportunities to learn about problems with the machines. If the machine stopped, he would go over to the fault and try to find out what had happened, "and maybe learn about it." He said that the coordinator of the can line, Mr Amos Semisi, did not "prominently" involve him in assessing the problem or its correction. 16
[15] According to Mr Eltom’s evidence, on 27 October 2011 he became aware of an incident which had occurred the previous day when the applicant put a case back in the line that was outside the respondent’s specifications. “This was a serious incident because Joseph knowingly put a case back on the line that was out of ‘spec’, which would have resulted in a quarantine of finished goods.” 17
[16] In his statement, the applicant gives a version of a conversation he had with Mr Odenthal and Ms Massoud on 9 May 2012. In his outline of the conversation, the applicant refers to his relationship with Mr Semisi:
‘Me: How am I contributing to this poor relationship, I follow his instructions no matter how unfair I think they are, he even tried to punch me at the mezzanine floor which was witnessed by Riyad. I was told by Riyad that Amos got a formal warning over it.’ 18
[17] In his evidence, Mr Eltom said that this was not an accurate description of the incident (which occurred on 30 November 2010).
‘I witnessed part of the incident. Joseph and Amos were walking on the mezzanine floor. Amos was quite upset by something that Joseph had said in a team meeting. In the meeting Joseph had criticised the team and how the team was being coordinated. I do not recall what in particular Joseph was criticising, but I intervened and changed the topic and tone of the conversation to a more positive one. I sensed that the team and Amos did not find Joseph's comments constructive from their body language and facial expressions in the meeting. After the meeting I witnessed Amos step towards Joseph. Amos’ hands went down next to his hips. He did not touch Joseph. I got the impression from Amos’ facial expression and aggressive posture when he stepped towards Joseph that Amos was angry but he then stepped back away from Joseph. I spoke to both Joseph and Amos separately about the incident and their relationship more generally. I said to both of them that I was not happy that the relationship was in this state. The conversation I had with Joseph was to the following effect:
JJ: “What would have happened if Amos had hit me?"
RE: “If that had occurred it would be a disciplinary issue.”
There was no formal warning issued to Amos over this incident as there was no physical contact and Amos had backed away. I then had a meeting with Amos and Joseph to discuss improving the relationship. We walked away with them shaking hands.’ 19
[18] According to Mr Odenthal, Mr Semisi indicated in January 2011 that he was not coping on the afternoon shift as the applicant was causing him to be very stressed. As a result it was agreed to allow Mr Semisi to move temporarily to the day shift. 20
[19] Mr Odenthal had a meeting with the applicant on 25 February 2011. This followed advice from Mr Xuereb, that the applicant was not carrying out his share of "preventative maintenance tasks" (PMs). A PM is a relatively straightforward task, contained on a job sheet each week. Typically in a three-month period around 240 PMs would be undertaken by a team of 10 operators, equating to around 20 to 30 PMs a week, i.e. two or three a week per operator. 21
[20] According to Mr Odenthal’s notes of the meeting, when he told the applicant that it was unacceptable that he was leaving the PMs to the other team members, the applicant told him they were not doing them either. Mr Odenthal told him he had to work on his relationship with the operators as his number one priority. The applicant replied that he felt like he had “a brilliant” relationship with Mr Matthews and Mr Xuereb. 22
[21] Shortly after this meeting, Mr Xuereb was asked to assist the applicant. In his statement he says:
‘I was asked to give Joseph some one-on-one training, as a "buddy" in or around March 2011. As part of this training I tried to show him the best ways to do things. Joseph was very able when he put his mind to it, but he was inconsistent and would try to cause trouble with me or the other operators on Line 5. I trained Joseph for about three months, but after that I could not take any more.’ 23
[22] During his oral evidence, Mr Xuereb expanded on how he provided the applicant with training.
‘In that training I provided just help and feedback for Joe. Like I would run the machine and he would like follow me and just watch what I do. And then I'd let him try and do it and watch what he does, to tell him if he's made any mistakes or anything.’ 24
[23] Mr Xuereb said he provided training to the applicant over a six-month period. 25 He would work with him at least three times a week during this period.26 This was in relation to the packer and multi-packer machines.27 The applicant could not work on the depalletiser as he did not have a forklift licence.28 He was not however “formally assigned” to the applicant.29
[24] Mr Xuereb’s evidence is that he was asked by Mr Odenthal to train the applicant after he had been working on Line 5 for about six months. Mr Xuereb said:
‘When I joined the line it took me about three months to learn the basic skills that allowed me to operate the machines. I had no previous experience in this type of role. I had worked in a completely different industry before joining Diageo. I therefore considered six months to be a long time to work on the line without picking up the basic skills of operating the machines, especially considering Joseph had moved from Line 4 which is similar to Line 5.’ 30
[25] Mr Xuereb continued:
‘There was always some conflict when Joseph was around and it brought down the team morale on Line 5. On Line 5, we generally work well together as a team. We have team days and social functions. Joseph would never get involved with the other members of the team socially. He was always a bit standoffish with the other team members.’ 31
[26] According to Mr Xuereb’s statement:
‘The training at Diageo is hands-on. Operators learn to troubleshoot as problems occur. If there is a problem, the alarm on the machine will indicate what the problem is and where it is. On a normal day of operation, if the line is down for about five minutes or more I will normally walk down the line to see if the other operators need help. If an operator wants to learn to fix problems, he has to get involved when problems occur. Joseph would hardly ever get involved and would rarely volunteer to help others. For example, if an alarm at the machine on which Joseph was working sounded, I would have to walk past him to his machine to fix his alarm. He did not take much of an interest in fixing problems or learning to troubleshoot.’ 32
[27] In response to questioning from the Bench Mr Xuereb expanded on how the applicant “caused trouble”:
‘Cause trouble like wouldn't listen to you if you gave him like something to do.... There’s a few situations that I'd be doing something and I would need help, and he wouldn't come and help and he could see that I needed help clearly, you know what I mean?
...
...part of training and learning to run the line, you have to volunteer to help because there is only four of youse running a line that’s over 100 meters long. So you know what I mean? Like I said in the statement, if a machine is broken down for five minutes, we all go down to help the operator on the line, you know what I mean? And that would cause problems if one doesn’t help the other. Like, it has to be, how do you say? Everybody has to do it, otherwise it breaks down.
Did Joseph ever - did he used to talk about the fact that he didn’t know how to do things? Didn’t feel like he was trained in how to fix particular bits of the machinery, or to use bits of the machines? ---Not to me.
So he didn’t sort of say look, I can’t help because I don’t know how to do it? ---No.
And you said in paragraph 14 that:
“I don’t think Joseph really struggled to do the PMs; he just didn’t want to do them.”
What do you base that on? ---Well, he worked on line four previously. So line four has the same PMs as line 5 because there’s roughly similar machines. So I can’t see the difference that would be from line 5 to 4. Does that answer it?’ 33
[28] Mr Xuereb gave evidence of an incident where the applicant criticised him while Mr Xuereb was trying to fix something on the packer machine.
‘During the incident Joseph would not stop criticising me about it. I was only trying to help Joseph and kicked up a storm. I was at the end of my patience and I felt that I could not deal with Joseph anymore. I struggled to walk away from the confrontation with Joseph and I was worried about the risk of losing my job. The stress of dealing with Joseph began to impact on my home life, so I asked Brendan Odenthal if someone else could have the responsibility for training Joseph.’ 34
[29] During his cross-examination, Mr Xuereb agreed there was a heated confrontation between himself and the applicant, and that his relationship with the applicant became a bit strained thenceforth, though he continued to work with him on the same line. 35 The relationship did eventually improve and by 2012 he agreed to train the applicant with regards to the depalletiser machine36. However he said that the applicant created disharmony at work.
‘You know, everybody was arguing with everybody. It just wasn’t...
And what role do you say that Mr Jensen played in that? -- -- -- A lot.
Do you say that he was the main instigator of those problems on the line? -- -- -- Yes, yes.’ 37
[30] In the applicant's statement he said that in about May 2011 he was handed PMs to do for the packer by Mr Xuereb. Mr Chapman was present at the time. According to the applicant the conversation was along the following lines:
‘Xuereb: “Amos wants you to do these PM’s”
Me: "If you show me how to do it I will be more than happy to do them"
Xuereb: "just do them the same way you do them on line 4”
I turned to Mark Chapman and said words to the effect of
Me: “This PM states check all photo cells and pneumatic sensors are working. I know how to check them but where are they located on this machine".
Mark Chapman turned to Steve Xuereb and said words to the effect of "This machine is not the same as line 4 packer"
Steve Xuereb then walked away’ 38
[31] According to the applicant's statement, a few days later, he was approached by Mr Eltom and Mr Odenthal. The former said to him that he had been told that the applicant did not want to do PMs. The applicant replied that he was happy to do them, if someone showed him how. 39
[32] In his statement, Mr Eltom said that he did not agree with the applicant's description of the meeting. He said that Mr Xuereb and Mr Lindsay Matthews had raised concern with him and Mr Odenthal that the applicant was not doing his share of PMs and it was becoming frustrating for them.
‘Brendan and I had a meeting with Joseph in the Guinness room and our conversation included words to the following effect:
JJ: "I can't do the PMs because I have not been shown how to do them."
RE: "If you haven't been shown how to do them, my concern is that you didn't raise it with anyone. Coming from Line 4, you should understand how important PMs are and at least raise it with Brendan. The fact that this has gone on so long without you telling anyone for asking this support is concerning.
"There are 3 other guys on the line with you that can help. If you have an issue with the PMs, speak to the other operators and if they cannot assist I expect you to ask your Line Coordinator to walk you through it and if they can't help, escalate the issue to Brendan."
I did not walk away from the conversation; there was a clear resolution from the meeting. The whole conversation went on about forty minutes. Joseph had a tendency to change the subject when he was being held accountable. I therefore made a point in this conversation to focus purely on the PMs issue and to try to not let Joseph go off on a tangent. I very clearly remember walking in with one objective: to make my expectations perfectly clear when it came to the PMs and how Joseph should be behaving. We came away with my expectation having been made clear: that Joseph was going to make an effort at asking his team mates to support with the PMs.’ 40
[33] In his statement, Mr Chapman said, in relation to the PMs:
‘If Joseph did not know where the cells and sensors were all he had to do was ask Steve or one of the other operators to show him where they were. I do not believe that it is a valid or reasonable excuse for failing to complete the PM of the kind which Joseph is referring to... Further, the PMs on Line 4 are quite similar to those for Line 5. The cells and sensors may be in a different place on a machine on Line 5 than on Line 4, but the task in itself is very similar. Joseph had worked on Line 4, for 8 years and I believe that the skills that he developed on that line were transferable to Line 5. The PMs themselves tend to be quite straightforward. I believe that I could carry out the PM and I have not been trained on the machines. If an operator does not know how to do a PM, I believe that it is a reasonable expectation that the operator ask one of the other operators working how to do it. In my view, once an operator has completed a PM once or twice they should then be able to complete it for themselves in the future.” ’41
[34] On 1 July 2011, the applicant met with Mr Eltom and Mr Odenthal about training and performance issues. According to his statement, on or about 5 July 2011, he received an email from Mr Eltom confirming that Mr Matthews would be responsible for providing him with training. "This was the first written confirmation of any trainer being assigned, since my move to the can line.” 42
[35] In his statement, Mr Odenthal said in relation to the 1 July 2011 meeting:
“The meeting was to discuss the fact that it had been a year since Joseph had moved to the Can Line but he was still not fully competent and was not troubleshooting and problem-solving when the machines broke down or there were issues. The lines work on the basis that there is a team learning environment. When there is a problem on a machine, the person nearest to the machine tries to fix it. If it takes too long, the others on the line will radio asking if assistance is required or will come to the machine to see if they can help. I was receiving feedback from the other operators that Joseph would stand back, even if the problem was on his machine, and let the other operators fix the problem.’ 43
[36] According to Mr Eltom’s statement, Mr Matthews had already been “buddying” with the applicant for some months at this stage, but there was an opportunity to free him from his duties working on the line so that he could spend most of his time helping the applicant 44. The email was attached to Mr Eltom's statement. It included the following
‘After a review of Joseph's progress with his trainer Lindsay, Brendan and I took this opportunity to make our expectations clear with Joseph going forward as part of his on-going training on line 5. The following specific issues were discussed:
1. The expectation is that all team members are flexible around break times as to share the load equally. This is to be coordinated by the line coordinator.
2. As part of the best practice ways working on Line 5, the Multi-Packer operator is not fully utilised during normal running and is hence expected to support the packer operator due to the high labour demand required at the packer. Working together as a team is key and my expectation is that Joseph follows Lindsay's lead in how to operate the Multi Packer efficiently so that he is able to support the packer area as the rest of the team have demonstrated.
3: My expectation is that all team members spend minimal time at the computer and are constantly operating and observing their line and taking every opportunity to clean and conduct PMs. Any computer tasks that are not related to direct operation of the line must be coordinated by the line management team as to not interfere with operating, observing and maintaining the line.
4. My expectation is that Joseph will make a strong effort to quickly attend to jam-ups and breakdowns as to learn from observing how the team recovers the equipment. Lindsay will provide answers to questions in these scenarios. Lindsay will also manage the flow of information so as to ensure Joseph is learning at a steady pace and is not overwhelmed.
Agreed course of action:
Lindsay will continue training Joseph and mentoring him in the areas discussed above. We will meet again in three weeks to review progress. Brendan will arrange a review week commencing the 18th July.’ 45
[37] In response to a question from the Bench, Mr Eltom said it was normal to provide more extensive training for a new employee with very little experience.
‘It is, however, not the case when we’ve got an experienced operator from another line moving across to another line. The machines are very similar. So we do not normally do this, no.’ 46
[38] Indeed, Mr Eltom’s evidence was that Diageo had had other operators classified below level 3 who within a few weeks of commencing on Line 5 were “running the line”. 47 The applicant, by contrast, was having difficulties with “the basics” and failing to meet expectations throughout late 2010 and most of 2011.48
[39] Mr Odenthal met with the applicant on 26 July 2011. The applicant accused the rest of the afternoon shift of leaving early to go to the pub on the night of the State of Origin game (on 6 July 2011). He reiterated this allegation on 10 August 2011. Mr Odenthal investigated the automated records of when the filler was running on Line 5. This contradicted the applicant's allegation. According to Mr Odenthal's evidence, when confronted with these findings, the applicant admitted to making the whole thing up. 49
[40] During his cross examination, the applicant at first confirmed that he had told Mr Odenthal that those who were working on the line had gone to the pub to watch the State of Origin. 50 He then said “I don’t agree that I said they went to the pub. I said there was talk of going to the pub. Now, to say that I said they went to the pub is misleading. I said there was talk of going to ... the pub to watch the league, right? There was talk, but I didn’t say - I said they went to the pub. I heard talk of going to the pub.”51 He then said “...yes, I did say to him that they’ve gone to the pub, right, but I didn’t say I said they went to the pub. I said I overheard they were going to the pub to watch the game.”52
[41] He then agreed with the proposition that he had told Mr Odenthal that they had gone to the pub to watch the State of Origin. 53 He then said he was willing to take a lie detector test that the line was not running.54 He denied that he had conceded to Mr Odenthal that he had made the whole thing up.55 The respondent provided computer records indicating that the line was running at the relevant time.56
[42] Mr Odenthal sent the applicant an email on 22 September 2011 inviting him to attend a “P4G” (“performance for growth” i.e. performance review and appraisal) meeting on 26 September 2011. His evidence was that the applicant failed to attend. Mr Odenthal sent Mr Eltom an email about what occurred, which was attached to his statement. It included the following:
‘I booked in Joseph's P4G for 4:00 pm today in the Bundy Room. He didn't show up and so I went out to the line to get him and found him in the corridor near the toilets. I asked him if he was ready for his P4G and it appeared to me from his facial expression that he hadn't realised it was on. At this stage, Dave Stoddart interrupted to check whether there were any problems on the line he should know about the afternoon shift. I briefly updated Dave that all was well and then turned to follow Joseph who had started walking down the corridor to ask again if he was ready for his P4G.
He said it didn't interest him. I asked him what he meant. He said that he just didn't feel the P4G was working for him. I asked him why he felt it wasn't working for him. He said that whatever he asks for he doesn't get. I asked if he wanted to sit down and discuss it and he said that he didn't. He said he just wanted to come to work and do his job and didn't want to do the P4G. Faced with this refusal, I thought it better not to have the P4G with Joseph because neither of us were then in the right frame of mind to discuss it at that time. I said that was fine and walked away.
At this stage, I plan to talk to Joseph tomorrow and see if we can agree that he should attend his P4G. I thought I should let you know in case you think a different course of action is required.’ 57
[43] Following advice from Mr Eltom, Mr Odenthal approached the applicant again shortly after to get him to agree to come to a re-scheduled meeting. The meeting eventually took place on 30 September 2011. The applicant was given a rating of “Below Expectations”. Mr Odenthal included the following comments on the appraisal form:
‘Joseph is a new member to the team and it has been necessary to provide additional training because he was initially struggling when he first came to the line. In recent months, Joseph's skills have improved but this has taken a little longer than was originally hoped. Joseph has done well in requesting the extra help that he needs.
...
Joseph has had difficulty fitting in with the team and there has been a level of conflict with the line coordinator as well as other team members. The focus of the coming months will need to be establishing better relationships with the other team members.’ 58
[44] According to Mr Odenthal, the applicant declined to provide any comments. He told Mr Odenthal that he was looking for a new job. 59
[45] According to the applicant, he spoke with Mr Chapman about his performance review. His evidence is that he said to Mr Chapman:
‘I delivered the SOP’s for cleaning for the whole production floor. I was put back on line 4 filler and I ran the first line of Project Darly, which included liaising with joint-venture partners Schweppes. I didn't think 0.3% was a fair rating and pay rise.”
Chapman: “I have challenged Brendan about it and insisted that you get something, and that's why you got 0 .3%’ 60
[46] Mr Chapman agreed in his statement that he had spoken to Mr Odenthal about the applicant's bonus. 61
[47] In the applicant's statement he says that he told Mr Chapman, at around the same time, that he was seriously considering leaving the company. 62 Mr Chapman organised a meeting to try and improve the relationships between the applicant, Mr Odenthal, Mr Matthews and Mr Xuereb.63
[48] On 26 October 2011, the applicant met again with Mr Chapman and Mr Odenthal to discuss the applicant’s progress and to agree on a way forward. At this meeting, the applicant asked for a training plan. 64 Mr Odenthal attached to his statement a printout of what was agreed at this meeting.65 The applicant asked for a commitment from management to clear what he saw as the “blockages” to his training, to be provided with a “strong trainer”, and to have regular reviews of his progress. Management asked the applicant to be honest with Mr Odenthal, and to commit to operating all the equipment by 30 April 2012. The training plan was documented under which the applicant would learn to operate one machine per month over the following six months (leaving a gap in December for any catch up required). Management advised the applicant that he needed to work on building his relationships, there could be no quality issues, to maximise the performance of the line, and to do so safely66.
[49] According to Mr Odenthal, the applicant was asked to complete the DLUs because he had been working on the line for over a year and the feedback from other employees was that he was not pulling his weight, particularly with the troubleshooting and problem-solving aspects of the job. Completing the DLUs would ensure that the applicant was aware of what was required to be an effective member of the team. Normally, a new operator to the line would work with the more experienced operators and learn how to operate and change over the machines through the more experienced operators. As this had proven not to work in the applicant's case, the DLUs were provided. Mr Matthews agreed to be the applicant's dedicated trainer and the applicant agreed that Mr Matthews would be “a strong trainer”. 67 During cross examination, the applicant said he was not asked whether he had a problem with Mr Mathews as his trainer.68
[50] By December 2011, the applicant should have completed two DLUs; however he had not done so. In January 2012 the applicant told Mr Odenthal that he was making “good progress” with the DLUs, though in fact he had still not completed any by 6 April 2012. 69
[51] In around April 2012 Mr Odenthal approached Ms Massoud and advised her that there were some performance issues with the applicant and that he might need her assistance in developing a formal Performance Improvement Plan (PIP). She then gave him some guidance and coaching on what he would need to do to put together a formal PIP. 70
[52] On 9 May 2012, Mr Odenthal met with the applicant and Ms Massoud. Mr Odenthal attached his handwritten notes of the meeting to his statement. 71 At the meeting, Mr Odenthal and Ms Massoud went through a PIP which put in place some objectives and goals for the applicant and timeframes in which he had to complete them. The PIP identified a series of performance gaps including: “lack of ownership and accountability for line performance”, “poor relationship with other members of team”, “poor punctuality”, “leave not being entered into payroll system promptly”, “unable to operate forklift because your forklift licence expired at the beginning of the year and was not renewed”, “incomplete training documentation for multipack machine, Kister packer, cube packer, palletiser, depalletiser, filler,”, and “support required from other operators for troubleshooting and changeovers”. The PIP spelt out specific objectives, actions, and target dates.72
[53] The applicant’s evidence is that he said:
‘How can I have ownership when I ask for training and I don’t receive it.’ 73
[54] Ms Massoud's evidence was that the tone of the meeting was positive. The managers were trying to explain to the applicant that the PIP was a tool in order to help him improve and supportive to improve. However when Mr Odenthal raised any performance gaps the applicant became defensive and would not take any responsibility for his actions. His tendency was to just blame each of the performance gaps on someone else. 74
[55] In his statement the applicant said:
‘I was required under the PIP to personally pursue the updating of my forklift licence. I am aware that the company organised for WorkCover to come on site and facilitate the updating of forklift licences for operators. As far as I am aware I was the only operator that had to pursue the renewal on their own and submit the expenses Diageo Concur System.... Despite my licence being finalised the issue remained on the PIP plan.’ 75
[56] In his statement Mr Odenthal said:
‘With regards to the renewal of Joseph's forklift licence an email from the OHS department had been sent out on 7 March 2012 advising that I could not allow Joseph to operate the forklift as his licence had expired.... I was aware that Joseph's licence was not valid as he had told me that he could no longer work in the depallitiser area (as the work in the depallitiser required him to drive the forklift). I believe that he told me this in or around December 2011. I had already asked Joseph on a number of occasions to get his licence renewed as without a valid licence he could not use the forklift and this in turn meant he could not work in the depallitiser area. All the operators are personally responsible for renewing their licences. It is a condition of employment as an operator that the operators have valid forklift licences. It is not Diageo's responsibility to arrange the renewal, although Diageo does reimburse the operators for the cost of the renewal.’ 76
[57] A follow-up meeting was held on 11 May 2012 between Ms Massoud and Mr Odenthal. Ms Massoud attached her notes of the meeting to her statement. 77 These make clear that Mr Odenthal would be talking to Mr Semisi about the applicant and that the team would be asked to give the applicant "a go”. Ms Massoud and Mr Odenthal met with the applicant the same day. Ms Massoud's notes of the meeting indicate that the applicant told them he would have completed the form in relation to renewing his forklift licence by 18 May. The applicant said that he wanted a training plan, to which Mr Odenthal replied that that was contained in the PIP. The applicant said that he was not prepared to sign the plan. Following the meeting, a copy of the PIP was sent to the applicant.78
[58] A meeting was held on 27 June 2012, attended by the applicant, Ms Proctor, Mr Odenthal, Ms Dalby (the then HR Business Partner - Supply) and Mr Delucyk as an observer. During the meeting management offered to move the applicant onto the day shift in order that he could get more support; however this was not acceptable to the applicant. It was decided to issue the applicant a first written warning as he had failed to complete the DLUs within the timeframe set out in the PIP. 79
[59] The applicant failed to turn up for his P4G meeting which had been scheduled for 18 July 2012. Nor had he completed certain objectives under the PIP which were due for completion by 14 July 2012. He was therefore called to attend a disciplinary meeting on 23 July 2012. The meeting was attended by Mr Odenthal, the applicant, Ms Proctor, Ms Patterson and Mr Delucyk. 80 Ms Patterson attached her typed notes from the meeting to her statement. According to Ms Patterson's statement, even though the applicant and his representative complained that there had been a lack of training, the applicant acknowledged that he had received training from Mr Xuereb, Mr Matthews and Mr Brownlie. He said that he had forgotten the training. He said that he had forgotten to turn up to his P4G meeting. He also said that he considered the timeframes which he had to complete its objectives as unreasonable. The applicant was issued with a second written warning.81 Mr Delucyk’s evidence supported Ms Patterson’s version of the meeting.82
[60] The applicant wrote letters on 23 and 26 July 2012 challenging his first and second written warning and complaining that he had endured bullying and harassment. This appeared to relate to his allegation that he had received insufficient training. 83
[61] A further meeting was held on 7 August 2012. The applicant was asked to give examples of the bullying he had complained about. He alleged that Mr Semisi had bullied the applicant the previous week and that Mr Etuale Euse had witnessed the incident. Ms Patterson subsequently conducted an investigation and concluded that the allegation was not substantiated by any evidence. 84
[62] The applicant had failed to complete the outstanding objectives under the PIP when it finished on 17 August 2012. The applicant was invited by Mr Odenthal in writing to attend a disciplinary hearing on 20 August 2012 to discuss why his employment should not be terminated. He was given a letter that set out the respondent’s concerns with regard to his performance. 85
[63] At the meeting on 20 August 2012, the applicant was accompanied by Mr Acev. According to Mr Delucyk’s statement part of the discussion included a conversation to the effect of:
‘CA: “Joseph needs to be given training.”
BO: “He's been given training. He's been given training on the job for the last two years. He also had eight years on Line 4.”
LD: “Joseph, how long have you been on Line 5?”
JJ: “The operating equipment efficiencies were good on Line 4.”
LD: “How come you can do it on Line 4 but not on Line 5?”’
[64] According to Mr Delucyk’s evidence, the applicant kept deflecting these questions. He said words to the effect of "Michael Brownlie’s trained me. He's been the only one who's been any good.” Mr Delucyk’s statement continued:
‘Brendan then walked through the specifics that were required under the PIP and the sections of the PIP that had not been completed. By this point, Joseph had not completed the training documentation, including the DLUs, for the cube packer, that depalletiser or the filler machine, nor had he been completing regular “preventative maintenance" tasks. The conversation continued to the effect of:
JJ: “I haven’t had enough time to complete the DLUs.”
During the meeting I was challenging Joseph’s comments by saying things like, “So the filler never ran over a three month period?” and “The packer never ran over a three month period?” Joseph initially acknowledged the machines had run but then started deflecting saying words to the effect of to the effect of,
“I do what the Line Coordinator tells me. No one gives me a chance. They deliberately keep me off the machine.”’ 86
[65] The meeting was then adjourned while the management representatives met separately to discuss the applicant's responses. They decided that the applicant's responses were not sufficient to alter their preliminary view that his employment should be terminated. The meeting was subsequently reconvened and the applicant was advised that his employment had been terminated effective immediately. Mr Odenthal handed the applicant a letter to that effect.
[66] The letter included the following:
- Completing training documentation for the cube packing machine which would enable you to operate and changeover the machine within the scheduled timeframes of the changeover matrix and without the need for other personnel. This also includes completing the Diageo Learning Unit (DLU) for the cube packer.
- Completing training documentation for the depalletising machine which would enable you to operate and changeover the machine within the scheduled timeframes of the changeover matrix and without the need for other personnel. This also includes completing the Diageo Learning Unit (DLU) for the depalletiser.
- Completing training documentation for the filler which would enable you to operate and changeover the machine within the scheduled timeframes of the changeover matrix and without the need for other personnel. This also includes completing the Diageo Learning Unit (DLU) for the filler.
- Not completing operator preventive maintenance (PM) tasks regularly.’ 87
‘Following discussions with yourself on 17th August 2012, you are hereby issued with a final warning regarding your failure to meet agreed performance and/or conduct standards applying to your position as a Machine Operator.
As you are aware, we have discussed this matter several times. You have been working under a Performance Improvement Plan since 9th May 2012. On 27th June 2012 you were issued your first written warning and on 23rd July 2012 you received a second written warning highlighting the consequences of continued poor performance. Despite this, your performance and/or conduct remain unsatisfactory.
Over this time there has not been sufficient improvement in performance standards. Therefore, Diageo has decided to terminate your employment, effective immediately. You will not be required to work out your notice period.
The reasons for termination of employment are due to you failing to meet the Company’s required standards performance, including:
The applicant's submissions
[67] In his outline of submissions filed in writing on 22 March 2013 the applicant claimed that the respondent had failed to provide him with the necessary training by which to achieve competency in the operation of machines on Line 5. He further claimed that despite clear and earnest efforts to identify difficulties impeding his training with the respondent, no or little effort was made by the respondent to address these difficulties. The respondent had unjustly attributed the failure to complete training documentation to the applicant, rather than recognise the inability of the applicant to do so, due to the respondent’s inadequate training and failure to address problems raised.
[68] The applicant stated that he had been deprived of adequate access to equipment on Line 5. This included involvement in the troubleshooting and rectification of machine breakdowns. The applicant's evidence was that he was not provided with adequate information from his co-workers in relation to machine problem-solving and breakdown. While Mr Odenthal met with the applicant on 6 April 2012 to check on his progress in completing the DLUs, Mr Odenthal failed to make any enquiries to establish why the DLUs had not been completed. It was submitted that there had been no effort to direct Mr Semisi to deploy the applicant on machinery that reflected the completion dates for each machine. The applicant continued to raise concerns about the training he was receiving after he had been issued with the PIP.
[69] The applicant submitted that I should make an adverse inference in accordance with the principle enunciated in Jones v Dunkel 88 in relation to the failure by the respondent to call Mr Semisi, Mr Mathews and Mr Brownlie as witnesses. It was submitted that this had been done knowingly and deliberately by the respondent due to the concern that their testimony (particularly under cross examination) would not have been beneficial or supportive of the respondent’s claim that the training provided to the applicant was satisfactory and adequate enough for the applicant to become competent and complete the DLUs. According to the applicant, the performance deficiencies stated by Mr Odenthal largely rely on what he had been told by the three employees. As the only person who had given first person evidence about any training, the evidence of the applicant should be preferred over that of Mr Odenthal.
[70] The applicant submitted that based on the evidence there was no valid reason for his termination. The warnings he had been issued with were issued unjustly and did not create a sound foundation for the applicant’s dismissal.
Consideration
[71] I indicate at the outset that I do not consider the applicant to be a credible witness. During cross-examination he was often evasive and self-serving in his responses. 89 I found some of his evidence, such as that relating to his allegation that members of the afternoon shift went to the pub to watch the State of Origin, to be completely unbelievable. By contrast the respondent’s witnesses generally gave clear, responsive and consistent evidence, often backed up by contemporaneous written notes. Where there is a conflict between the applicant’s evidence and that of the respondent’s witnesses I prefer the latter.
[72] I reject the applicant's submission that I should draw an adverse inference from the respondent's failure to call Mr Semisi, Mr Mathews and Mr Brownlie. The respondent’s witnesses gave considerable evidence about the training provided to the applicant. In Mr Xuereb’s case that included direct evidence of the training he himself provided. Moreover, it is clear from Mr Odenthal’s evidence that he worked closely with the operators on Line 5, and was well aware of what was happening on the line.
[73] It was reasonable for the respondent to require the applicant to be proficient on all the machines on Line 5 within a reasonably short time frame after he moved to that line. (The move itself was at least partly designed to help him with his family responsibilities.) The need to be able to work on all the machines was also reasonable from a business perspective. The applicant was already an experienced operator when he moved to Line 5. The evidence is clear that most employees - including ones with less experience than the applicant - are able to pick up the skills in a relatively short time. Moreover it was a reasonable expectation that he should have become competent without the need for a formal training plan. Nevertheless, when it became clear that he was struggling, the respondent went to great lengths to try and help the applicant become competent. I reject the applicant’s submissions that his failure to become competent was due to a failure by the respondent to provide adequate training. Rather, I find based on the evidence that it was due to the applicant’s own lack of cooperation and general unwillingness to learn. This was exacerbated by the applicant’s generally poor relationships with his colleagues - something which I find - based particularly on the evidence of Mr Xuereb and Mr Eltom, as well as the “State of Origin” episode - was largely of his own making. The applicant generally displayed a lack of responsibility - as demonstrated for example by the time he took in renewing his fork lift licence, and by his unwillingness to do his share of the PMs. The respondent clearly places a strong emphasis on team work and gives significant responsibility to line operators. This works well if everyone performs their role as part of the team. Unfortunately the applicant was unwilling to do so.
[74] The PIP process cannot be viewed in isolation from all that went before. The applicant had already been given a great deal of time and support to reach a satisfactory level of competence before the PIP was implemented. By April 2012 he had failed to meet the commitment he gave to be able to operate all the machines on Line 5. Nor had he renewed his forklift licence. The implementation of the formal PIP process by the respondent was therefore quite reasonable. I find that the specific requirements of the PIP were also reasonable. The applicant was given every opportunity to meet the goals contained in the PIP. He could have been under no misapprehension as to the consequences of failing to meet those goals. He must bear the full responsibility for his failure to do so.
[75] Section 387 of the Fair Work Act 2009 requires that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
‘(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.’
[76] I am satisfied that the applicant’s poor performance and inability to achieve the required level of competence - despite the extensive support and training with which he was provided - was a valid reason for the respondent to terminate his employment.
[77] I am satisfied that the applicant was notified of the reasons why the respondent was considering terminating his employment in Mr Odenthal’s letter of 17 August 2012. Moreover, the respondent had regularly and clearly indicated its concerns to the applicant throughout the PIP process - and for some time before that.
[78] The applicant was given an opportunity to respond to those concerns at the meeting on 20 August 2012. The respondent considered the applicant’s response - but quite reasonably did not regard it as grounds for not proceeding with his dismissal.
[79] The applicant was accompanied by union officials at the formal disciplinary meetings relating to his dismissal.
[80] The applicant was repeatedly warned about his unsatisfactory performance before his dismissal.
[81] The procedures followed in effecting the applicant’s dismissal were appropriate having regard to the size of the respondent.
[82] I do not consider that there are any other relevant matters to be considered.
Conclusion
[83] I find that the applicant’s dismissal was not unfair. His application is accordingly dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr C Acev of United Voice for the applicant
Mr J Darams of Counsel for the respondent
Hearing details:
Sydney
2013
5 February
6 February
20 February
1 Exhibit J2, paragraph 58
2 Exhibit D11, paragraph 7
3 Exhibit D4, paragraph 6
4 Exhibit D4, paragraph 7
5 PN1170
6 Exhibit D4, paragraph 8
7 Exhibit D4, paragraph 9
8 Exhibit D4, paragraph 10
9 Exhibit J2, paragraph 63
10 Exhibit J2, paragraph 64
11 Exhibit J2, paragraph 66
12 Exhibit D9, paragraph 10
13 Exhibit D9, paragraph 8
14 Exhibit D4, attachment BO2
15 Exhibit D4, paragraph 13
16 Exhibit J2, paragraphs 68-71
17 Exhibit D9, paragraph 15
18 Exhibit J2, paragraph 154
19 Exhibit D9, paragraphs 29-30
20 Exhibit D4, paragraph 14
21 Exhibit D4, paragraph 16
22 Exhibit D4, paragraph 17
23 Exhibit D7, paragraph 10
24 PN1995
25 PN2003
26 PN2006
27 PN2008
28 PN2010
29 PN1186
30 Exhibit D7, paragraph 6
31 Exhibit D7, paragraph 7
32 Exhibit D7, paragraph 9
33 PN2016-2024
34 Exhibit D7, paragraph 11
35 PN2130-2132
36 PN2133-5
37 PN2191-2193
38 Exhibit J2, paragraph 72
39 Exhibit J2, paragraph 73
40 Exhibit D9, paragraphs 19-20
41 Exhibit D11, paragraph 13
42 Exhibit J2, paragraphs 74-76
43 Exhibit D4, paragraph 26
44 Exhibit D 9, paragraph 22
45 Exhibit D9, attachment RE-4
46 PN2326
47 PN2329
48 PN2332-2333
49 Exhibit D4, paragraphs 29-32
50 PN185
51 PN188
52 PN191
53 PN192
54 PN194-197
55 PN210
56 Exhibit D6, PN1121-1130
57 Exhibit D4, attachment BO-10
58 Exhibit D4, attachment BO-11
59 Exhibit D4, paragraph 35
60 Exhibit J2, paragraphs 85-86
61 Exhibit D11, paragraph 14
62 Exhibit J2, paragraph 98
63 Exhibit J2, paragraphs 102-119
64 Exhibit J2, paragraph 126
65 Exhibit D4, attachment BO-13
66 Exhibit D4, paragraphs 42-44
67 Exhibit D4, paragraph 45
68 PN263-274
69 Exhibit D4, paragraphs 56-58, 62
70 Exhibit D8, paragraph 5-6
71 Exhibit D4, attachment BO-24
72 Exhibit D4,attachment BO-25
73 Exhibit J2, paragraph 141
74 Exhibit D8, paragraph 13
75 Exhibit J2, paragraphs 146-148
76 Exhibit D4, paragraph 66
77 Exhibit D8, attachment JM-2
78 Exhibit D8, paragraphs 26-31, attachment JM-3
79 Exhibit D3, paragraph 14
80 Exhibit D1, paragraphs 10-11
81 Exhibit D1, paragraphs11-21
82 Exhibit D3, paragraph 16
83 Exhibit D1, attachment KP-3
84 Exhibit D1, paragraphs 24-34
85 Exhibit D4, attachment BO-51
86 Exhibit D3, paragraphs 23- 24
87 Exhibit J2, attachment K
88 Jones v Dunkel (1959) 101 CLR 298 (3 March 1959) Windeyer J. 10-11
89 For example, PN262-274
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