Mr Quong Quoc [Steve] Pham v Binder Group Pty Ltd

[2013] FWC 1022

Note: An appeal pursuant to s.604 (C2013/4110) was lodged against this decision - refer to Full Bench decision dated 28 May 2013 [[2013] FWCFB 3386] for result of appeal.

[2013] FWC 1022

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Quong Quoc [Steve] Pham
v
Binder Group Pty Ltd
(U2012/15006)

COMMISSIONER CLOGHAN PERTH, 9 APRIL 2013

Unfair dismissal.

[1] This is an application by Mr Pham seeking a remedy for alleged unfair dismissal from his employment with Binder Group Pty Ltd.

PROCEDURAL BACKGROUND

[2] On 12 November 2012, Mr Quong Quoc Pham (“Applicant”) made application to Fair Work Australia, now Fair Work Commission (“Commission”) seeking a remedy for alleged unfair dismissal from his employment with Binder Group Pty Ltd (“Employer”).

[3] Mr Pham’s employment was terminated on 2 November 2012.

[4] Mr Pham was not required to work beyond 2 November 2012 and was given five (5) weeks pay in lieu of notice including one (1) week because he was over 45 years of age.

[5] The application was made pursuant to s.394 of the Fair Work Act 2009 (“FW Act”).

[6] The application was unable to be resolved at conciliation and was referred to me for arbitration on 4 December 2012.

[7] On 12 December 2012, I issued procedural directions for a hearing on 13 February 2013.

[8] At the hearing on 13 February 2013, Mr Pham represented himself and gave evidence on his own behalf. Mr Pham’s wife, Ms Lien Dao, also gave evidence for the Applicant.

[9] The Employer was represented by Mr Ian Sampson, Safety & Resource Manager. Evidence, on behalf of the Employer, was given by:

● Mr I Sampson, Safety & Resource Manager

● Mr L Berger, Procurement & Inventory Manager

● Mr S Asanoski, General Production (GP) Leading Hand

● Mr T Nastasi, Assembly Leading Hand

● Mr J Mazey, Operations Manager

● Mr S Lawler, Stores Manager.

[10] Extensive written documentation was received as a result of the procedural directions and incorporated into proceedings. Having received the written material, heard oral evidence and submissions, I reserved my decision on 13 February 2013. Having considered all the material and evidence, this is my decision and reasons for decision.

RELEVANT STATUTORY FRAMEWORK

[11] It is not in dispute that Mr Pham is protected from unfair dismissal pursuant to s.382 of the FW Act and that the application was made within the statutory timeframe in paragraph 394(2)(a) of the FW Act.

[12] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

● 385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) …
(d) …

[13] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:

● 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.

RELEVANT BACKGROUND FACTS

[14] Mr Pham commenced employment on 20 April 2006 and was dismissed on 2 November 2012.

[15] At the time of his dismissal, Mr Pham was employed as Process Operator/Storeperson.

[16] Mr Pham’s notice of termination of employment relevantly provides as follows:

“This discussion is the Fourth official discussion in the corrective action procedure in the area of Behaviour & Performance in terms of your continued employment with the Binder Group.

At the conclusion of the discussion you were issued with a formal Notification Of Termination a copy of which will be placed in your personnel file.

This documented Notification of Termination is issued due to your unsatisfactory performance in relation to the following:

1) Failure to comply with clear instruction.

2) Non-adherence to formal work practices.

3) Lack of attention to important detail.

4) General attitude (lack of ownership and responsibility)

The behaviour demonstrated has consistently fallen below the minimum professional standard required for the position of Storesperson/Process Operator.

Since issuing you with a Final Written Warning on the 2nd May, 2012 no improvement has been evident. Your unwillingness to improve your performance in these areas despite our best efforts to guide and assist you, along with your continued poor attitude and lack of co-operation in this process amount to wilful misconduct and leave us little alternative but to remove you from your current position. We note that we have previously removed you from two other departments in an attempt to provide you with the best opportunity to improve. We note that staff and managers in these departments (as in your current department) are unwilling to continue to work with you. In the light of this we are unable to offer you an alternative post elsewhere.” 1

[17] As the notice of termination of employment refers to the “Fourth official discussion”, it is appropriate to set out the dates and purposes of the previous three official discussions.

[18] The most immediate prior official disciplinary procedure was on 2 May 2012. The relevant documentation is as follows:

“This discussion is the third official discussion in the corrective action procedure in the area of Behaviour & Performance in terms of your continued employment with the Binder Group.

...

This documented written warning is issued due to your unsatisfactory performance in relation to the following:

1) Failure to comply with safe and reasonable instruction.

2) Non-adherence to accepted work practices.

3) Consistent opposition to such practices.

...

Since your recorded verbal warning in Feb 2012 no improvement has been evident. I am still observing instances of an unsatisfactory nature. This is particularly evident in relation to your unwillingness to follow clear verbal and written instruction.

In order to rectify this unsatisfactory performance you are required to

1) Promptly comply with any safe and reasonable instruction.

2) Follow accepted work practices.

3) Demonstrate co-operation in the workplace.

If the substandard performance continues then we may need to proceed with termination of our employment with the Binder Group.

We note that to assist in this process and give you the maximum opportunity to comply we have previously moved you from GP department where you had issues into Assembly department with a new Team Leader where you continued to have issues. You are now working in Stores department on light duties where the Manager James Lawson also reports continued failure to comply with clear instruction. Our records show that you have recently been spoken to on several occasions and also notified in writing of our responsibilities.

Cuong [Mr Pham] I wish to reiterate that the purpose of the discussion is to correct and improve performance and I look forward to working with you to do so, but please take note that this is the final warning. If improvements in performance are not met as outlined above and there is continued failure to comply with clear instruction from authority this may result in further performance management or termination of your employment with the Binder Group.

It is noted that on your last recorded warning that you refused to sign that you had read and understood the document.

This signature does not signify an admission or agreement on your part. It does however demonstrate your co-operation in this process, and shows that you clearly understand what is required of you to correct your performance. Failure to enagage (sic) in this process may be seen as a further lack of compliance and co-operation and may be treated accordingly at our discretion.” 2 (my emphasis)

[19] The second official disciplinary action took place on 22 February 2012. The relevant parts of the documentation are as follows:

“This decision is the second official discussion in the corrective action procedure in the area of Behaviour & Performance in terms of our continued employment with the Binder Group.

...

This documented written warning is issued due to your unsatisfactory performance in relation to the following:

1) Failure to comply with safe and reasonable instruction.

2) Non-adherence to accepted work practices.

3) Consistent opposition to such practices.

...

Since our recorded verbal warning in Oct 2011 no improvement has been evident. I am still observing instances of an unsatisfactory nature. This is particularly evident in relation to your unwillingness to follow safe and reasonable instruction.

In order to rectify this unsatisfactory performance you are required to

1) Promptly comply with any safe and reasonable instruction.

2) Follow accepted work practices.

3) Demonstrate co-operation in the workplace.

Any further instances will result in the issuing of a Final Written Warning.

To assist in this process and give you the maximum opportunity to comply we have decided to move you to Assembly where you will be working with a new Team Leader. On occasion however and as the business demands you may be requested to return to GP to carry out work. Failure to comply with clear instruction from whatever authority will result in further performance management that may led to termination of your employment with the Binder Group.” 3

[20] The “first official discussion and the first formal corrective action procedure” took place on 11 October 2011. The documentation reads as follows:

“You have previously been spoken to by your Leading Hand and also by the Production Manager about these issues. This is the first formal corrective action procedure this year in the area of Behaviour in terms of your continued employment with the Binder Group.

...

This verbal warning is issued due to your unsatisfactory performance in relation to the following:

1) Failure to comply with safe and reasonable instruction.

2) Non-adherence to accepted work practices.

3) Consistant (sic) opposition to such practices.

...

In order to rectify this unsatisfactory performance you are required to:

1) Promptly comply with any safe and reasonable instruction.

2) Follow accepted work practices.

3) Demonstrate co-operation in the workplace.

...

...

Quong, [Mr Pham] I wish to reiterate that the purpose of the discussion is to correct and improve performance and I look forward to working with you to do so.” 4

[21] Mr Pham signed to say that he read and understood this first formal corrective procedure document.

[22] In addition, I was provided with numerous memoranda prior to, and subsequent to, the first formal corrective procedure ranging from documented verbal and written warnings about Mr Pham’s performance and behaviour.

[23] Finally, I received contemporaneous notes from various employees relating to Mr Pham’s performance or behaviour from 2010 onwards.

APPLICANT’S SUBMISSION

[24] The Applicant submits that:

● his dismissal was unfair, unjustified, unreasonable and harsh towards a dedicated and committed employee of six (6) years;

● he was the subject of workplace bullying;

● he was issued with warnings one after the other during his employment including during a period of workers’ compensation rehabilitation;

● only one (1) warning was warranted and the others were based on ridiculous grounds;

● all allegations by the Employer were “successfully argued, defended and proven to be unfounded”;

● a conspiracy against him existed and that supervisors and managers collaborated. All events were premeditated;

● the decision to terminate his employment was opportunistic, seized up and disastrous procedurally; and

● his employment was terminated while on workers’ compensation. 5

[25] Mr Pham is seeking reinstatement and if that is not possible, the maximum compensation permissible under the FW Act.

EMPLOYER’S SUBMISSION

[26] The Employer submits:

● a due and proper process was utilised in performance managing Mr Pham and genuinely engaged in by the Employer;

● the Applicant was provided with ample opportunity to engage in his performance management, however, his cooperation was minimal;

● the Employer made every practicable effort to accommodate the Applicant by moving him to multiple departments with different managers and staff over a period of time;

● the Applicant’s behaviour was un-cooperative, aggressive, and in their view, less than open or honest;

● the Applicant refused to follow clear instruction and to fully engage in written and informal accepted practices and procedures which, on one occasion, had a financial cost to the business;

● Mr Pham’s comments to and about the Employer’s staff were disrespectful, abusive and derogatory;

● some managers and other employees found it difficult to work with Mr Pham which, in cases, impacted upon their health and well being; and

● an internal appeal process supported the Employer’s original decision.

[27] In conclusion, the Employer submitted Mr Pham was treated fairly, however, his deliberate and wilful behaviour breached the fundamental trust between employer and employee which negatively impacted upon staff. As a consequence of this behaviour, Mr Pham has made himself unemployable with the Employer. 6

[28] I now turn to the issue of whether Mr Pham’s dismissal was unfair.

CONSIDERATION

Was there a valid reason for the Applicant’s dismissal? - s.387(a)

[29] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[30] Mr Pham concedes that he received seven (7) formal verbal or written warnings between 12 January 2010 and the termination of his employment on 2 November 2012. In response to these verbal or written warnings, he submits:

“...six out of the seven verbal and written warnings, they were unsigned documents. They have no legal implication whatsoever. By that it would completely overturned the whole termination process. The Verbal Warning from Brian Peart dated 11/02/2011 was the only one signed...” 7.

[31] Mr Pham’s submission pre-supposes that written warnings, without his signature, have no probative value in this Commission. I am unable to agree with his submission.

[32] The burden of proof for a claim of unfair dismissal falls to the Applicant. For the Commission to put aside the evidence of six (6) verbal or written warnings on the basis that he refused to acknowledge their existence, contradicts the ordinary meaning of action that is sound, defensible or well founded. An employee may disagree with a formal verbal or written warning and that specific disagreement can, and should be, noted.

[33] For the Commission to determine that such unsigned documents do not come within its scope, when defining unfairness, is not sustainable.

[34] The Employer has reduced to writing why Mr Pham’s conduct is not satisfactory and the need for improvement less it lead to more serious sanctions, including termination of employment. If I adopted the course of action submitted by Mr Pham, the exclusion of a signature of the employee would defeat the normal workplace practice of bringing to the attention of employees, unsatisfactory performance, and the need to remedy such performance. Mr Pham cannot absolve himself of responsibility for his conduct by not signing such documents.

[35] Notwithstanding his submission that the unsigned verbal and written warnings had no legal “implications”, Mr Pham submits that they were unwarranted and unjustified 8. At the hearing, Mr Pham submitted his reasons why the warnings were unjustified and unwarranted.

[36] A written record of the first informal warning on 12 January 2010 notes that Mr Pham was “reminded that he was expected to undertake any reasonable and safe request by his leading hand. Steve [Mr Pham] was very loud, very accusatory of others and argumentative, and had great difficulty in accepting his status here and the need to take instruction. He was very personal in his comments about Sam [Mr Asanoski]” 9.

[37] In his oral evidence, Mr Asanoski stated that Mr Pham was difficult to deal with, he would disagree on things to do, “doesn’t take orders too well. Mr Pham likes to do his own things. Always argues and disputes certain tasks given” 10.

[38] The first formal recorded verbal warning took place on 30 March 2010 and referred to the fact that this was the second official discussion regarding Mr Pham’s behaviour.

[39] The incident which led to the first formal recorded verbal warning related to a clean down of the work area in the final 15 minutes of shift After being observed doing nothing for the first 10 minutes, Mr Asanoski asked Mr Pham why he was not doing his clean up and to commence such work. Mr Pham “raised his voice and appeared to get angry and stated that his work area was clean” 11. Mr Pham was asked to clean the general area. Mr Asanoski gave evidence that he raised his voice even louder and then said, “it was time to go and that he was leaving” - at which he turned his back and walked away. Mr Pham was asked not to walk away as his leading hand was talking to him. Mr Pham was told that if he did not return he would be issued with a warning.

[40] In oral evidence, Mr Pham stated that, “it should never have been issued...it’s over issue of what? Over what issue really? All I said was ‘let’s sort it out tomorrow’, you know ‘time to go home’...so they just went ahead and you know issue a warning - a verbal warning and expect me to sign...”. In respect to signing, he gave evidence that “I need to agree to [the content]”. 12

[41] I have no contemporaneous evidence of why Mr Pham did not do as requested by Mr Asanoski, however, his written statement of facts provided to the Commission does not deny that the incident took place though he submits that: he was working in another area; if more work of him was required; another supervisor should have instructed him; he was being discriminated against because another person was not given the same instruction, and finally, Mr Asanoski was trying to get him into trouble.

[42] I have taken some time to consider these early incidents because they illustrate the approach taken by Mr Pham. He gives evidence:

“You know, like all the warnings - six or seven of them is all unwarranted. Everything is successfully argued as far as I am concerned” 13.

[43] Mr Pham conceded in evidence that if he receives an instruction by his leading hand, he makes a judgement, based on what he considers to be the facts (not the authority of the person giving the instruction) as to whether it is reasonable to comply with the instruction. 14

[44] Between the first formal recorded verbal warning in March 2010 and a formal written warning in July 2010, Mr Pham received a reminder letter in April 2010 over taking three sick days on a Monday or Friday in 2010. The reminder was made because eight (8) of the nine (9) sick days in 2009 were on a Monday or Friday. In addition, he received a verbal reminder to follow proper inspection procedures in May 2010. Finally, did not notify the Employer concerning sickness until after the standard notification time; for this, Mr Pham received an unrecorded verbal reminder.

[45] The second written warning occurred on 27 July 2010. The issue that led to the written warning related to whether Mr Pham had followed the correct procedures in clocking on and clocking off On the evidence I am not able to determine whether the correct procedures were followed or not. However, I am from the evidence able to form a conclusion as to the manner in which the discussion took place.

[46] Mr Pham, in his written statement of facts submits that he did clock off, however the bundy clock was plagued with problems and invited me to draw the conclusion that, if he didn’t clock off, it was because of a clock malfunction. In Mr Pham’s view, the fact that he received a warning was a joke 15.

[47] There is no dispute between the parties that the issue developed into a protracted argument. In this particular incident, the discussion escalated from a dispute between Mr Pham and his Production Manager, to an argument with the Operations and Safety and Resources Managers. For the Employer, Mr Pham was quarrelsome, defensive, impatient, disinterested, uncooperative, loud and dismissive 16.

[48] Mr Pham, in oral evidence, describes the incident as trivial 17 and that because his side of the story was not accepted, it was a “joke”.

[49] I observe that, on this occasion, when asked to sign the written warning it has a notation “The conversation turned into an argument, Steve [Mr Pham] denied everything that was discussed, and stated he is being victimised. Steve says he will seek legal advice before signing the document”. I am unaware of whether Mr Pham sought legal advice, but he did not sign the document. In conclusion, I note that the written warning contains the following paragraph:

“This signature does not signify an admission or agreement on your part. It does however demonstrate your cooperation in this process and shows that you clearly understand what is required of you to correct your performance. Failure to engage in this process will be seen [as] a further lack of compliance and cooperation and may be treated accordingly at our discretion.” 18

[50] I consider it reasonable to draw the conclusion, as invited to do so by the Employer, that on the basis that Mr Pham refused to sign six (6) of the seven (7) warnings, Mr Pham demonstrated, during performance management, a lack of cooperation and engagement.

[51] The next recorded verbal warning occurred in February 2011 concerning the failure of Mr Pham to read and manufacture, to drawings, resulting in the material having to be recut. Simply put, a failure by Mr Pham to apply due care and attention. On this occasion, Mr Pham signed the warning and I will not dwell any further on the incident.

[52] The next incident which resulted in a warning occurred in October 2011. Put shortly, Mr Pham was asked to pick up a pen by the leading hand during clean down of the work area. Mr Pham’s response was “it’s not my pen I’m not picking it up”. When asked again he refused stating that the pen had been there for a while and no other person had picked it up. Mr Pham turned his back on the leading hand and walked away refusing to comply and stating to the leading hand, “I’m not listening to you” 19.

[53] Mr Pham describes the incident as “miniscule”, “pathetic” and that he was not interested in the leading hand’s “bad habit” 20 of leaving things to the last moment.

[54] While it appears that the incident may be trivial, Mr Pham fails to appreciate that he is been given an instruction by a leading hand. This is best illustrated in his cross examination which went as follows:

“...You talk about moving things and doing what you were expected to do, as trivial. You said it was a joke and you used the word "miniscule". I'm just wondering - you know, here a part of our issue, you know, between ourselves and you is that really it's not about picking up the pen or about the fan. It's about your ability to follow clear instruction and these are small examples of many other things that happened in between; so I'm wondering, you know, whether, you know, failing to follow a clear and safe instruction from your supervisor or your leading hand is actually for you a trivial or a miniscule or a small matter?---If the instruction were reasonable, right - - -” 21

“Yes, okay. Who makes that decision, Mr Pham?---I do make the decision, right?” 22

[55] I repeat what I have already stated that Mr Pham elucidates his view that compliance with a lawful and reasonable instruction is a matter for him to determine. Further, any view by the Employer to the contrary can be challenged, is trivial and does not acknowledge the “facts” as seen by him.

[56] Put simply, Mr Pham has, in the employment relationship, ascribed to himself the right of being the decision maker when given lawful and reasonable instructions if he disagrees with the right.

[57] The next incident occurred on 20 February 2012 which resulted in a written warning.

[58] Mr Pham was requested to put away a fan in the work area; he refused. The leading hand spoke to the Operations Manager. Mr Pham continually debated where the fan should be, but eventually agreed to move it. Mr Mazey, Operations Manager, explained to Mr Pham that it was not a case of where the fan should go but that the leading hand had a clear line of authority to issue such a lawful and reasonable instruction 23.

[59] Mr Pham, in the discussion, felt he was being victimised and stated that he didn’t like doing things that were “unreasonable” and that the Employer did not “listen to him” 24.

[60] Mr Pham refused to sign the written warning. On this occasion, the Employer made a decision to move him to another department in the factory.

[61] A first worker’s compensation medical certificate was issued by Mr Pham’s general practitioner on 16 March 2012 noting the date of injury being 22 February 2012. The Employer’s insurer has declined liability on the basis that Mr Pham did not suffer a compensable injury, to his lower back, during the course of his employment. Mr Pham was placed on light duties.

[62] While on light duties, further disputes arose concerning various absences from work which, apart from verbal warnings, included correspondence dated 27 April 2012. The correspondence sets out a series of recent absences and requires him to make the necessary arrangements with his Manager, in advance, when attending appointments related to his workers’ compensation claim.

[63] Mr Pham did not dispute the facts relating to his absence but what is relevant to this application, is his position to the absences as demonstrated in cross examination.

[64] Mr Pham acknowledged that he should have commenced work at 6:00 am on 24 March 2012. He did not attend but went to an appointment at 9:15 am. At 10:15 am, he telephoned the Employer if he needed to return to work. Mr Pham would have finished at 2:00 pm 25.

[65] When asked whether three hours was reasonable to attend an appointment, he replied:

“Reasonable or not, it’s because I didn’t know whether I have enough time to get there on time or not.” 26

[66] With respect to the remainder of the day, Mr Pham took the view that he may as well take it off because of the “travelling” involved. As the Employer endorsed taking the rest of the day off, I make no further comment. 27

[67] When confronted with the need to advise and make prior arrangements with his supervisor when appointments are known, Mr Pham defended himself by giving evidence, “it never happened in GP” 28 or that “he had no idea of that [Company policy]”29.

[68] Despite the correspondence of 27 April 2012 informing him the need to make prior arrangements for known medical appointments, Mr Pham was found to have taken a whole day off for either one or two medical appointments which were eventually claimed as sick leave. On the following Monday, 30 April 2012, he was found absent, without authorisation, to attend a physiotherapy appointment at 1:15 pm 30.

[69] Mr Pham, on being confronted on 1 May 2012, as to why he did not inform management, replied “I didn’t know I had to do that”  31. In cross examination, Mr Pham gave evidence he could not recall the conversation because, “it wasn’t recorded”32 and, in any event, “I report it verbally to James or to Brian, I couldn’t recall now, because it happened, you know, some time ago”. I did not find the Applicant’s evidence convincing, especially in view of the contradictions, with respect to his inability to make the necessary arrangements with management to attend appointments during work hours.

[70] It was these incidents that led the Employer to issue its Final Written Warning with the observation to Mr Pham of his unwillingness to follow clear verbal and written instructions. The warning also advised Mr Pham that if his unsatisfactory performance continues, the Employer may need to proceed with termination of his employment.

[71] The final incident involved the Warehouse Manager, Mr Lawler, and Mr Pham on 31 October 2012. By way of context, Mr Lawler gave evidence that on his initial transfer to the stores, Mr Pham was pleasant but in the period leading to his termination, Mr Pham had no respect for Mr Lawler’s role and disobeyed and disregarded him. Mr Lawler gave examples of Mr Pham’s behaviour 33 to which Mr Pham’s response was initially, he was being singled out, he had given a reasonable explanation and finally that, if he had known what was required, he would have carried out the task. Mr Pham’s explanation was not convincing.

[72] The facts of the final incident are that Mr Pham refused to sweep the work area. Mr Pham does not contest Mr Lawler’s evidence that he stated, “I’m not a cleaner, if I was - if I wanted to be a cleaner, I would have got a job as a cleaner.” 34 At some time afterwards, Mr Pham cleaned the work area. However, his “question” or more accurate statement, in cross examination, illustrates his approach on being given an instruction by the supervisor:

“So the question again is why - after he cleaned, why did you went and reported to Luke Berger, Mr Berger, that he refused to clean? Why did it happen like that after he did the cleaning and that was the end of the story as far as he incident was concerned, even though he [Mr Pham] made that statement, right.” 35 (my emphasis)

[73] Two days later on 2 November 2012, Mr Pham and his representative, Mr Osborne, met with Mr Berger and Mr Lawler.

[74] The meeting commenced with Mr Berger referring to previous performance management discussions which Mr Pham denied had occurred. Mr Berger proceeded to discuss issues of: failing to comply with reasonable instructions; non-adherence to formal work practices; lack of attention to detail and his general attitude in the workplace 36. It was explained to Mr Pham that the Employer had tried to accommodate him in three various work areas. Notwithstanding this, workplace issues continued37.

[75] Mr Pham maintained that the problem was with others. When Mr Berger disagreed with this contention, Mr Pham became angry. Mr Berger ended the discussion by providing Mr Pham with his notice of termination of employment and requested him to leave the premises. Mr Pham, in what appears to be an angry exchange, stated to Mr Berger that he could not make the decision to terminate his employment 38.

[76] Mr Sampson entered the office and Mr Pham continued to debate his termination of employment. Mr Pham was again requested to leave the premises. Mr Pham retorted that he would not leave until he spoke with the Managing Director, Mr Bennett 39.

[77] Mr Pham left the office and proceeded to Mr Bennett’s office where Mr Berger explained what had happened. Mr Pham put his case that he was a good worker and had been treated unfairly. Another argument ensued until Mr Bennett ended the discussion and advised Mr Pham that he supported the decision of his managers and that Mr Pham should leave the premises 40.

[78] For Mr Pham, many of the incidents which I have set out are similar, in that they are “miniscule”, “trivial”, in which warnings were given out “freely” and based on “ridiculous grounds”. In his concluding submission, Mr Pham states he was “picked on” and overall the incidents were “laughable”.

[79] In the scheme of the workplace, Mr Pham’s description of the actual events may be small, but there was a repetitive element of failing to comply with reasonable and lawful instructions or a consistent challenge to the authority and role of his leading hands. For the Employer, the sameness does not relate to their minor level of importance, but the similarity of Mr Pham confronting the authority of his supervisors.

[80] While I have only highlighted the more significant incidents, the Employer provided, in evidence, other performance incidents which I have not detailed.

[81] There is evidence, which is not denied by the Applicant, that he was relocated to different departments and different supervisors to assist in his performance and personal relations. Relocation proved ineffective. However, I do not attribute its ineffectiveness to the Employer.

[82] It was telling of Mr Pham’s attitude to being given lawful and reasonable instructions, that he was the arbiter of what was reasonable.

[83] The incidents over a period of approximately 2.5 years are connected not by whether they are “trivial” or “miniscule” but by his attitude to being instructed on what to do. They are not isolated but a continuing challenge to the authority of his supervisors. The subject matter is not a “pen” or “fan” or “sweeping the floor” or the numerous other matters, but his obligation to obey lawful and reasonable instructions.

[84] I have considered Mr Pham’s submission that he was the victim of workplace “bullying”. I find no evidence to support such an assertion. It was notable that the Employer was not critical of Mr Pham’s competency. In evidence, the Employer pointed out certain instances where he failed to perform as expected, but the essence its case focussed on how the Applicant responded to lawful and reasonable instructions.

[85] Mr Pham may have felt he was being picked upon but he, in my view, failed to reflect upon the fact, supported by evidence, that his repetitive behaviour shaped the future of further events which ultimately led to his dismissal.

[86] Finally, from the evidence, I am not satisfied that there was a conspiracy or collusion against him. In this respect, based on the evidence, I reject his assertion that management “premeditated” the incidents that led to his dismissal. Mr Pham attempted to draw a link between management “supporting” Mr Asanoski in managing the Applicant, and collusion and a conspiracy against him. No conclusion can follow from such a situation. It is clear from Mr Asanoski’s evidence, he was “stressed” and had significant difficulties with managing Mr Pham. Asking for support from fellow managers and seeking to be placed in another area of the workplace away from Mr Pham, takes courage, but is not evident of a conspiracy against the Applicant.

[87] Having considered the meaning of valid reason as defined by North J in Selvachandran v Peterson Plastics Pty Ltd in paragraph [29] and balancing the needs of employers and employees, I am satisfied for the reasons considered above, that the Employer had a valid reason for terminating Mr Pham’s employment.

Notification of the reason for termination of employment - s.387(b)

[88] Mr Pham was given notice of the reasons for the termination of his employment in an internal memorandum dated 2 November 2012.

[89] The notification of termination refers to the memorandum is the fourth official discussion in the area of behaviour and performance and the most recent incident on 31 October 2012.

[90] I am satisfied that, over a period of approximately 2.5 years, Mr Pham was aware, in an accumulation of incidents and discussions, the reasons leading to his dismissal.

Opportunity to respond - s.387(c)

[91] Mr Pham was given an opportunity to respond on the final incident and other behaviour and performance incidents over a period of approximately 2.5 years.

[92] I am satisfied that Mr Pham was not constrained in any response to the Employer. Unfortunately, as given in evidence, Mr Pham’s ability to respond exaggerated behavioural issues at the workplace, especially the relationship between himself and his immediate supervisors.

Support person - s.387(d)

[93] Mr Pham was provided and elected to have a support person present during the final discussion in which his employment was terminated.

Unsatisfactory performance - s.387(e)

[94] I have set out above, particularly in paragraphs [14] to [23] and paragraphs [30] to [86], that Mr Pham had been formally warned that continued unsatisfactory performance would lead to the termination of his employment.

Size of the enterprise - s.387(f)

[95] There is no evidence or submissions that the size of the Employer’s enterprise impacted upon the procedures effecting Mr Pham’s dismissal.

Human resources - s.387(g)

[96] While there is absence of dedicated human resources expertise in effecting the dismissal, this situation did not impact on the fairness of procedures leading to Mr Pham’s dismissal.

Other matters - s.387(h)

[97] I have not taken any other matters into consideration in reaching this decision.

CONCLUSION

[98] In conclusion, for the reasons set out above, I am satisfied that Mr Pham’s dismissal from his employment with the Employer on 2 November 2012 was not unfair. Accordingly, the application will be dismissed and an order issued to this effect.

COMMISSIONER

Appearances:

Q Pham, on his own behalf.

I Sampson, on behalf of the Respondent.

Hearing details:

2013:

Perth,

13 February.

 1   Exhibit R8

 2   Exhibit R8

 3   Exhibit R5

 4   Exhibit R5

 5   Exhibit A1

 6   Exhibit R1

 7   Exhibit A2

 8   Exhibit A2

 9   Exhibit R5

 10   Transcript PN 605

 11   Exhibit R5

 12   Transcript PN 73

 13   Transcript PN 93

 14   Transcript PN 127

 15   Exhibit A2

 16   Exhibit R6

 17   Transcript PN 101

 18   Exhibit R5

 19   Exhibit R5

 20   Exhibit A2

 21   Transcript PN 126

 22   Transcript PN 127

 23   Exhibit R5

 24   Exhibit R5

 25   Exhibit R8

 26   Transcript PN 189

 27   Transcript PN 194 to PN 196

 28   Transcript PN 197

 29   Transcript PN 198

 30   Exhibit R6

 31   Exhibit R6

 32   Transcript PN 205

 33   Transcript PN 1085 to PN 1090

 34   Transcript PN 1092

 35   Transcript PN 1099

 36   Exhibit R8

 37   Exhibit R8

 38   Exhibit R8

 39   Exhibit R8

 40   Exhibit R8

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