Mr Steven Bonser v Metcash Trading Limited trading as Australian Liquor Marketers Pty Ltd
[2010] FWA 9325
•10 DECEMBER 2010
[2010] FWA 9325 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Steven Bonser
v
Metcash Trading Limited trading as Australian Liquor Marketers Pty Ltd
(U2010/1006)
COMMISSIONER CARGILL | SYDNEY, 10 DECEMBER 2010 |
Termination of employment.
[1] This decision arises from an application by Mr S. Bonser (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Metcash Trading Limited t/as Australian Liquor Marketers Pty Ltd (the respondent, the company or ALM). The applicant’s dismissal occurred on 15 June 2010 and his application was lodged with Fair Work Australia (FWA) on 28 June 2010.
[2] The matter was dealt with by an FWA Conciliator but did not settle. It was then heard by me in Sydney on 6, 25 and 26 October and 3 November 2010. In addition there were proceedings on 1 and 20 October which dealt with specific evidentiary issues.
[3] The arbitration of the matter took place by way of hearing as I considered that it was appropriate to do so having taken into account the factors set out in section 399 of the Act including the views of the parties as reflected in the conciliator’s report.
[4] The applicant was represented by Mr Mueller, Senior Industrial Officer with the National Union of Workers, New South Wales Branch (NUW). The respondent was represented by Mr Sant and Mr Cooper, solicitors, who appeared by permission.
[5] The applicant gave evidence. His witness statement was marked Exhibit Applicant 1 and his statement in reply was marked Exhibit Applicant 2. His oral evidence is at PN 38-566 of Transcript. The following witnesses also gave evidence in the applicant’s case:
Mr J Cronin | Colleague of the applicant and NUW delegate. His witness statement was marked Exhibit Applicant 4 and his statement in reply Exhibit Applicant 5. His oral testimony is at PN 614 - 1094 of Transcript; |
Mr S Freshwater | Colleague of the applicant and NUW Delegate. His witness statement was marked Exhibit Applicant 6 and his oral testimony is at PN 1101-1597 of Transcript. |
[6] The following witnesses gave evidence on behalf of the respondent:
Mr G Mitchell | Warehouse Manager at the respondent’s Silverwater site. His witness statement was marked Exhibit Respondent 1 and his supplementary statement Exhibit Respondent 2. His oral testimony is at PN 434-1406 of the Transcript of 25 October. |
It should be noted that the Transcript paragraph numbering began again at PN 1 in the Transcript for 20 October and then followed through consecutively until the conclusion of proceedings on 3 November; | |
Mr T Riggs | Assistant Warehouse Manager at the respondent’s Silverwater site. His witness statement was marked Exhibit Respondent 4 and his oral testimony is at PN 1470-2073 of Transcript; |
Ms T Douglas | Human Resources Manager with the respondent. Her witness statement was marked Exhibit Respondent 5 and her oral testimony is at PN 2134-2328 of Transcript; |
Mr B Williams | Presently the respondent’s General Manager - Northern Region. At the time of relevant events he was the General Manager - Eastern Region and responsible for the management and operation of a number of the respondent’s warehouses including the one at Silverwater. |
Mr Williams’ witness statement was marked Exhibit Respondent 6 and his oral testimony is at PN 2348-2449 of Transcript. |
[7] There was extensive evidence and much material provided in these proceedings. Whilst I do not specifically refer to each and every issue raised, in reaching my conclusions I have had regard to all relevant materials and evidence before me.
SUMMARY OF FACTS AND EVIDENCE
[8] The respondent operates a number of warehouses at which alcohol and tobacco products are stored prior to their delivery to retailers. One of those warehouses is located at Silverwater in Sydney.
[9] Mr Bonser commenced his employment with the respondent on 15 October 2001. He was employed as a Storeworker Grade 1 throughout the entire period of his employment and was located at the Silverwater warehouse. There are approximately 60 warehouse employees at the site. These employees work an average of 36 hours each week worked either as a four day week or a nine day fortnight. The applicant’s usual hours of work were 5am to 2.15pm with a 30 minute lunch break. Mr Mitchell’s evidence is that, from time to time, the applicant worked a different shift.
[10] The duties of warehouse employees such as the applicant include the receipt of stock, picking and packing orders for dispatch, moving goods around the warehouse, loading trucks and assisting in the management of stock. The applicant’s evidence is that, since 2008, he had been required to load trucks on one occasion only. Mr Mitchell agreed that the applicant had not been regularly directed to load trucks since around 2008.
[11] The applicant’s evidence is that, when he began his employment, he was informed by the Warehouse Manager at the time that it was expected that he pick around 85 cartons an hour and that he was “to do a fair day’s work for a fair day’s pay”. It is Mr Riggs’ evidence that the average weight of the cartons is 15 kilograms.
[12] Mr Mitchell’s evidence is that part of the respondent’s recruitment process requires potential employees to sign a document which includes an acknowledgement that one of the conditions of employment is that they work to the company’s performance standards and that failure to do so may result in disciplinary action up to and including dismissal. A copy of part of the document said to have been signed by the applicant is Attachment GM5 to Exhibit Respondent 1.
[13] In his statement in reply, Exhibit Applicant 2, the applicant states that he cannot recall signing the document. Under cross-examination he conceded that he had signed it.
[14] Mr Mitchell’s evidence is that, in about 2003, the respondent introduced a new work system at the Silverwater site. This is the Dallas System and includes what is known as “Engineered Standards”. Mr Mitchell’s evidence is that the Engineered Standards allow the respondent to identify the time required for an employee to complete the assembly of an order. This includes moving around the warehouse, picking the relevant items and taking them to the dispatch area.
[15] Mr Mitchell’s evidence is that the Engineered Standards include inbuilt allowances for factors such as toilet breaks, fatigue, access and location of goods and blockages in the aisles. The applicant’s evidence is that his performance percentage drops if he has a toilet break. Mr Mitchell’s evidence is that an audit of the Engineered Standards is undertaken approximately every two years. His evidence is that an audit was carried out in 2008 and one was being undertaken at present.
[16] Mr Mitchell’s evidence is that ALM requires employees to achieve a performance productivity level equal to 100% of the Engineered Standards.
[17] His evidence is that, when the Engineered Standards were introduced at Silverwater, employees were given a printed list of items to pick and the order in which they were to be picked. In about November 2006 the system was upgraded to include a function known as “voice pick”. This requires an employee to wear a headset which connects to a device worn on a special belt. As the name suggests, the system is voice activated. An employee is directed to a location within the warehouse. They then state a code number and the system informs them of the amount of stock to be picked at that location. This process continues until the particular order is complete at which time the employee takes it to the dispatch area. The system then allocates the next job.
[18] Mr Mitchell’s evidence is that the system identifies the length of time each job should take. It also identifies when an employee takes longer than the time set by the Engineered Standards to complete a task or an order. The system is able to identify breaks in work due to ordinary occurrences such as meals and unusual occurrences such as time wasting.
[19] Mr Mitchell’s evidence is that, when changes are made to the respondent’s induction program document, including the Engineered Standards, these changes are communicated to employees. His evidence is that the applicant received a copy of the relevant document in February 2006, Attachment GM4 to Exhibit Respondent 1. It shows an “RTS” beside the names of the applicant and a number of other employees. Such a notation means “refused to sign”. Under cross-examination Mr Mitchell agreed that he had not seen the applicant being given a copy of the document.
[20] A copy of the current induction program document is Attachment GM3 to Exhibit Respondent 1. The final section in the document is titled Engineered Standards. Under cross-examination Mr Mitchell agreed that the document does not set out any requirement to meet 100% of the Engineered Standards.
[21] The applicant’s evidence is that, when the Engineered Standards were introduced, there was a monetary incentive for achieving more than 120% of the Standards. Mr Mitchell’s evidence is that the incentive was actually payable from 101% productivity. Mr Mitchell later cancelled the system as he said that it was not achieving the desired results and there were too many stock breakages.
[22] The applicant’s evidence in Exhibit Applicant 1 is that, from 2005, ALM required employees to achieve 100% accuracy per day. In his statement in reply the applicant’s evidence is that there was no specific announcement that 100% was required. Various supervisors had indicated that 80-90% was good enough. It is the evidence of Mr Williams that he had never held that view that such performance levels were good enough. Mr Mitchell’s evidence is that his understanding is that ALM has not changed its accuracy target during his time at Silverwater which began in March 2003.
[23] The applicant’s evidence is that, from the time the system was introduced, his daily rate averaged between 80-90%. His evidence is that, until 2010, he had not received any warnings for failing to meet the Engineered Standards or time wasting. If he made a mistake a supervisor would tell him about it but no further action was taken by ALM.
[24] Mr Mitchell’s evidence is that, at some point during 2008, it was identified that the performance of the Silverwater site was substantially below that of other sites operated by the respondent. Consequently he took steps to improve the performance levels of underperforming employees. Mr Mitchell’s evidence is that he initially adopted an informal approach which led to a marked improvement.
[25] His evidence is that, nevertheless, the performance of a number of employees, including the applicant, continued to fall short of the expected level. Mr Mitchell decided to take a more formal approach and, from early 2010, a number of employees were subject to formal counselling and other disciplinary action. Mr Mitchell’s evidence is that, in most cases, performance improved and the process was concluded. However, in the case of the applicant and a few other employees there was no improvement.
[26] Mr Mitchell’s evidence is that he is not particularly concerned if an employee’s performance on a single day is below the standard provided their performance on a weekly basis is satisfactory. His evidence is that, following discussions in early 2010 with Ms Douglas and Mr Williams, he decided that employees who failed to meet the standards on three days in any one week would be subject to a formal disciplinary process.
[27] Mr Mitchell receives a daily computer generated report of the performance level of each employee who carried out warehousing duties on the previous day. These are known as ARDAC Reports. Copies of the reports for the period 1 December 2009 until 11 June 2010 are at Attachment GMS1 to Exhibit Respondent 2.
[28] Mr Mitchell’s evidence contains two summaries which, he states, were compiled from information in the ARDAC Reports. The first is a comparison of performance levels of relevant employees during the period. The second is the applicant’s daily performance levels during the same period.
[29] The first of these summaries is at Attachment GM6 to Exhibit Respondent 1 and also Attachment GMS 2 to Exhibit Respondent 2. The first-mentioned Attachment does not identify employees by name but only by number. The second-mentioned Attachment identifies them by name. The second summary is Attachment GM8 to Exhibit Respondent 1.
[30] Mr Mitchell’s evidence is that Attachment GM6 demonstrates that the applicant was the least productive employee.
[31] Mr Mitchell’s evidence in relation to the other low performing employees set out in Attachment GM6 is as follows: employee 1 had been on workers’ compensation at the time the statement was prepared but not at the date of the hearing; employees 2, 3, 4, 5, 6, 7 and 9 had been the subject of performance management; and, employee 2 had received a written warning in relation to his performance.
[32] The applicant’s evidence is that he checked his performance at the end of each shift. There were times when the screen showed a higher performance percentage than that which appeared on the printout from the system.
[33] It is Mr Mitchell’s evidence that ALM undertakes an Assessment Technique Review (ATR) on each employee on a quarterly basis. This is part of the company’s occupational health and safety management plan. Additional ATRs are carried out on employees who are undergoing performance management. Mr Mitchell’s evidence is that this is to help such employees improve their performance.
[34] Mr Mitchell’s evidence is that, generally, an ATR takes about 20 to 50 minutes and involves a supervisor following an employee for one or two assignments. This is followed by a discussion on the times achieved and other feedback. His evidence is that, occasionally, an ATR will last a whole shift in order to provide detailed assistance for the particular employee.
[35] I now turn to Mr Bonser’s disciplinary history with ALM. The evidence of Mr Mitchell and Ms Douglas is that, on 13 August 2008, a meeting was held with the applicant, Mr Cronin and Mr Freshwater. The applicant was counselled about his performance following a number of ATRs. The employee counselling record is Attachment GM9 to Exhibit Respondent 1 and Attachment TDI to Exhibit Respondent 5. It is identified as a first counselling. It notes that the applicant’s performance is below the acceptable rate despite a number of ATRs. It further notes that the applicant’s attitude to improving is poor.
[36] The applicant’s evidence is that he could not recall the counselling. Under cross-examination he could recall some of the words attributed to him in the document but not the rest. The applicant’s evidence is that he probably didn’t sign the document because he didn’t accept the warning. His evidence is that it is his decision not to sign these types of documents. There is no direction from the NUW to that effect.
[37] Mr Freshwater’s evidence is that he refused to witness the document with his signature because he does not agree that employees should be subject to any disciplinary action because of their performance in an ATR.
[38] On 3 March 2009 the applicant was counselled by a supervisor, Mr Winterbottom, about a “mispick”. Mr Freshwater was also present. A record of counselling notes that it is a first counselling. This record is Attachment GM10 to Exhibit Respondent 1. The applicant’s evidence is that he thought that this counselling had been cancelled by Ms Douglas. Ms Douglas denied that she had ever withdrawn the counselling.
[39] On 24 June 2009 the applicant received a written warning in relation to his failure to wrap pallets in the manner required. This warning was issued by Mr Riggs at a meeting at which Mr Freshwater and Mr Winterbottom were also present. The applicant’s evidence is that he did not agree with the warning which was the first he had ever received and he was shocked. A copy of the disciplinary interview record which notes that the warning was issued is Attachment GM11 to Exhibit Respondent 1 and Attachment TR1 to Exhibit Respondent 4.
[40] Mr Riggs’ evidence is that the meeting and the warning followed on from the fact that he had spoken to the applicant on six occasions about the issue of his ongoing failure to wrap pallets as required. Mr Riggs’ evidence is that these earlier discussions took place on specific dates in March, April, May and June 2009.
[41] Mr Mitchell’s evidence is that, in late January 2010, it came to his attention that the applicant had been spoken to by supervisors on a number of occasions about his failure to meet the required performance levels. He intended to meet with the applicant to discuss this as well as another issue about an “overpick”.
[42] Mr Mitchell’s evidence is that, before he could organise such a meeting, the applicant came to his office to talk about a broken headset. As it happens Mr Freshwater was in Mr Mitchell’s office at the time. After some discussion about the headset Mr Mitchell raised the issue of the overpick. Mr Mitchell’s evidence is that the overpick involved the applicant picking a carton which the system had not directed him to pick. His evidence is that this differed from the situation where an employee might pick an extra carton of a product they had been directed to pick. The applicant’s evidence is that he couldn’t recall the incident, however, if it had happened it was a mistake.
[43] There is conflict in the evidence as to exactly what was said, in particular, Mr Mitchell’s evidence is that the applicant swore at him and told him that he could make as many mistakes as he wanted. The applicant denies swearing or making such a statement. Mr Freshwater’s evidence is that the applicant did not swear at Mr Mitchell and he didn’t think that the applicant made the alleged statement. Mr Mitchell informed the applicant that he would receive a written warning.
[44] On 1 February 2010 a meeting was held at which Mr Mitchell, Mr Douglas, Mr Freshwater and the applicant were present. Mr Mitchell told the applicant that the written warning was going to stand. There was some discussion about whether the applicant had been spoken to previously about mispicks and whether other employees had been counselled about such an issue. Ms Douglas’s evidence is that Mr Freshwater stated that ALM were picking on the applicant because Mr Mitchell didn’t like him. Mr Freshwater denies making any such statement.
[45] It is the evidence of Ms Douglas that, at the meeting, she went through provisions of the applicable enterprise agreement, the Australian Liquor Marketers Pty Limited and the National Union of Workers NSW Branch Union Collective Agreement 2009(the Agreement) which relate to ALM’s ability to performance manage employees, in particular, clause 29 of the Agreement. It should be noted that this clause is set out in full at paragraph 108 of this decision. Ms Douglas informed the applicant that it was a serious matter.
[46] The applicant’s evidence is that he did not agree with the warning and could not recall being spoken to by supervisors on the dates mentioned in the warning. The written warning was actually provided to the applicant in a meeting on 4 February 2010. It is Attachment GM13 to Exhibit Respondent 1, Attachment TD2 to Exhibit Respondent 5 and Attachment SB1 to Exhibit Applicant 1. The document notes that, if poor performance continues, further disciplinary action will result which may lead to termination of employment.
[47] It is Mr Mitchell’s evidence that, at about this time, he provided the applicant with a copy of the company’s Standard Operating Procedure for the performance of assembly duties, Attachment GM2 to Exhibit Respondent 1. The applicant denies ever having seen the document before these proceedings.
[48] Mr Mitchell’s evidence is that, also at about the same time, he issued a warning to another employee in relation to an overpick. In addition, he terminated the employment of a casual employee for a similar issue. Mr Freshwater’s evidence is that the applicant’s situation was different to that of these other two employees.
[49] The applicant’s evidence is that he became increasingly stressed after receiving the warning. Supervisors treated him differently and co-workers told him they were “getting into trouble” because of him. The applicant’s evidence is that Mr Winterbottom and other supervisors as well as Mr Mitchell told him that his performance was not good enough and he needed to work faster. His evidence is that he was working as hard as he could and there were a lot of other employees who didn’t achieve 100% of the Engineered Standards. It is the applicant’s evidence that he was only spoken to when his performance was not good enough. He never received any positive feedback.
[50] It is Mr Mitchell’s evidence that the applicant was absent from work on 8 and 9 February without a medical certificate. On 11 February ALM received a Workcover NSW Medical Certificate which certified that the applicant was unfit to work from 10 to 19 February. The Certificate noted that the applicant was suffering from “anxiety and stress and work phobia due to personal harassment by management”. This certificate is Attachment GM14 to Exhibit Respondent 1.
[51] It is Mr Mitchell’s evidence that the applicant lodged a workers’ compensation claim in relation to his condition. This was subsequently denied by ALM’s insurer.
[52] On 19 February there was a meeting at which Mr Mitchell, Ms Douglas, the applicant, Mr Freshwater, Mr Cronin and an NUW Organiser, Mr Cripps, were present. The NUW sought to have the applicant’s written warning downgraded but Mr Mitchell refused. It is Mr Mitchell’s evidence that the applicant became agitated and was swearing. The applicant denies this although under cross-examination he agreed that he might have been agitated. Mr Freshwater’s evidence is that he couldn’t recall the applicant swearing.
[53] It is Mr Freshwater’s evidence that, at that meeting or thereabouts, he asked Ms Douglas for access to employee performance records but was informed that she would have to seek legal advice. Mr Freshwater’s evidence is that Ms Douglas did not get back to him about the issue. He made the same request of Mr Mitchell who did not provide the information.
[54] The applicant was rostered to work on 22 February. He did not attend until 1 March and did not contact ALM about his absence. The applicant’s evidence is that there had been a miscommunication with the company and he thought he had a further medical certificate to cover the extra absence.
[55] After discussion with Ms Douglas, Mr Mitchell sent a letter to the applicant advising him that, due to his unexplained absence, he was required to attend a meeting at Silverwater on 1 March to show cause why further disciplinary action should not be taken. The letter is dated 24 February and is Attachment GM15 to Exhibit Respondent 1 and Attachment TD3 to Exhibit Respondent 5.
[56] The meeting on 1 March was attended by Mr Mitchell, Ms Douglas, Mr Freshwater and the applicant. There was some discussion about the applicant’s absence and the relevant terms of the Agreement. The applicant was informed that he would receive a written warning. In the event this warning was actually issued during a subsequent meeting on 4 March. The applicant accepted the warning and both he and Mr Freshwater signed it. The warning is Attachment GM16 to Exhibit Respondent 1 and Attachment TD4 to Exhibit Respondent 5. The document advises that a final written warning will be issued “if current sub standard behaviour continues”.
[57] There was also a meeting held on 3 March. This meeting was attended by Ms Douglas, Mr Freshwater and the applicant. Mr Freshwater had requested that Mr Mitchell not be present. During the meeting the applicant told Ms Douglas that he was being bullied and victimised by Mr Mitchell and picked on by other employees. He also told her that he was working as hard as he could. Ms Douglas asked him for specific details of the bullying but the applicant indicated that he didn’t want her to follow it up.
[58] Ms Douglas’s evidence is that she didn’t do anything about the applicant’s claims as he had not provided specific examples and he asked her not to do anything about it. The applicant’s evidence is that Ms Douglas already knew about his complaints about Mr Mitchell as he had previously informed her that Mr Mitchell had asked him to clean the toilets, a task he considered to be degrading.
[59] Mr Freshwater’s evidence is that the applicant was anxious about losing his job. It is also his evidence that he had been informed that the supervisors had been told to put pressure on the performance of other employees because of the applicant. This in turn added to the applicant’s anxiety. Mr Freshwater complained to Mr Mitchell about the situation. Mr Mitchell informed him that he would look into it. Sometime later Mr Mitchell told him that a supervisor had been disciplined.
[60] Mr Mitchell was absent from the Silverwater site between 8 March and 10 May due to business requirements and then an injury. His evidence is that, during this absence, he checked his emails each day and was available to provide advice and support to Mr Riggs who was acting as the Warehouse Manager. During this period Mr Riggs received the daily ARDAC Reports referred to earlier.
[61] It is Mr Riggs’ evidence that the applicant was two hours and 33 minutes late for work on 10 March and had failed to notify the company. On 11 March he held a meeting to discuss the issue with the applicant and Mr Freshwater. Mr Winterbottom was also in attendance. After some debate about whether the Agreement included a requirement for employees to contact ALM Mr Riggs telephoned Mr Mitchell who clarified that the requirement was actually contained in the company’s policies not the Agreement.
[62] Mr Riggs then returned to the meeting, explained the confusion and issued the applicant with a second and final warning. The employee counselling record and Mr Riggs’ notes are Attachment TR2 to Exhibit Respondent 4. The counselling record is also Attachment GM17 to Exhibit Respondent 1. Neither the applicant nor Mr Freshwater accepted or signed the warning.
[63] It is the applicant’s evidence that he was late on 10 March because his alarm clock had not worked. It is also his evidence that he stayed back for about two hours past his usual finishing time on that day to make up the lost time. Under cross-examination Mr Riggs agreed that the applicant may have done this. He could not recall being told whether or not that had occurred.
[64] On 11 or 12 March there was a telephone discussion between Ms Douglas and Mr Freshwater about the need to discuss the warning given to the applicant on 11 March.
[65] On 15 March a meeting was held at which Mr Williams, Ms Douglas, Mr Freshwater and Mr Cronin were present. There was a general discussion about performance measures.
[66] It is Mr Mitchell’s evidence that the applicant was formally counselled by Mr Winterbottom on 29 March. The counselling was for failing to meet the required performance standards on 23, 24 and 25 March. The disciplinary interview record is Attachment GM 18 to Exhibit Respondent 1. The applicant’s evidence under cross-examination is that he could not recall that the discussion with Mr Winterbottom was a counselling session. It is also the applicant’s evidence that he hadn’t previously seen the record of interview.
[67] It is Mr Mitchell’s evidence that Mr Winterbottom formally counselled the applicant again on 8 April. The counselling was for failing to meet the required performance standards on 29, 30 and 31 March. The relevant documentation is Attachment GM 19 to Exhibit Respondent 1. The applicant’s evidence under cross-examination is that he had not seen the document before, however, he could recall the counselling session.
[68] I note that at paragraph 26 of Exhibit Applicant 1, the applicant’s evidence is that there were discussions with Mr Mitchell, Ms Douglas and Mr Freshwater on the dates mentioned in paragraphs 65 and 66 above. The applicant’s evidence is that he was informed that he had to reach 100% of the Engineered Standards. As it seems to be generally agreed that Mr Mitchell was absent on leave during the period covering both 29 March and 8 April, it appears that the applicant may have mistaken either the dates or the participants in the discussion.
[69] Mr Riggs’ evidence is that on 19 or 20 April he was reviewing the details of employees who had not met the required performance standards. The applicant had failed to meet the standards on 1, 6, 7, 13, 14 and 15 April. On 20 April Mr Riggs met with the applicant, Mr Winterbottom and an NUW delegate, Mr Herbert.
[70] Mr Riggs referred to the earlier counsellings given to the applicant and informed him that, since then, he had failed to meet the standards on the dates set out in the previous paragraph. The applicant stated that he was working as hard as he could picking 800-1000 cases per day over a nine hour period. The applicant stated that the times were too hard and complained that the afternoon shift employees were not being counselled about their performance.
[71] It is Mr Riggs’ evidence that he is certain that the applicant stated that he didn’t go by the standards and that this was the applicant’s usual response when the subject was raised with him. The applicant’s evidence is that he denies ever saying that he doesn’t go by the Engineered Standards either in this meeting or at any other time. He also denies time wasting.
[72] The applicant was given a first written warning for failing to meet the respondent’s performance standards. The employee counselling interview document which records the warning is Attachment SB2 to Exhibit Applicant 1, Attachment GM20 to Exhibit Respondent 1 and Attachment TR3 to Exhibit Respondent 4. The document notes that, if poor performance continues, further disciplinary action will result which may lead to termination.
[73] At some point later on 20 April the employees held a stop work meeting in protest at the applicant receiving a written warning for performance issues. After a discussion with Mr Williams they returned to work.
[74] On 21 April Ms Douglas issued a final written warning to each employee who had participated in the stop work meeting. The warning issued to the applicant is Attachment GM21 to Exhibit Respondent 1 and Attachment TD5 to Exhibit Respondent 4. The warning advises that any further issues relating to matters which warrant future disciplinary action may lead to termination.
[75] It is the evidence of Mr Riggs that, as a result of the performance warning he issued to the applicant on 20 April and discussions with Ms Douglas, he decided to conduct two ATRS on the applicant. The first was conducted on 29 April. Mr Winterbottom observed the applicant during the first assignment and Mr Riggs undertook the rest of the ATR. Mr Riggs’ evidence is that the review was conducted between 10.30am and 1.30pm.
[76] Mr Riggs’ observations are summarised in paragraph 26 of Exhibit Respondent 4 and the applicant’s responses are set out in paragraphs 22 to 32 of Exhibit Applicant 2. Mr Riggs’ report of the ATR and the notes on which it is based are at Attachment TR4 to Exhibit Respondent 4 and Attachment GM22 to Exhibit Respondent 1.
[77] In those notes Mr Riggs concludes that there is no physical or mental reason why the applicant cannot achieve 100% of the Engineered Standards. Mr Riggs observes that the applicant’s overall performance during the ATR was 95% which considerably higher than his usual rate. Mr Riggs also observes that the applicant had adopted several ways to waste time.
[78] It should be noted that only a few of the ATR Assembly Activity sheets are completed, especially in relation to whether there was a pass or fail on specific tasks. It is Mr Riggs’ evidence that he did not speak to the applicant about the results of the ATR but sent them to Mr Mitchell and Ms Douglas.
[79] The second ATR was conducted on the applicant on 6 May. It is the evidence of Mr Riggs that he was assisted in the review by Mr Winterbottom and another supervisor, Mr O’Brien. This ATR took place over almost the entire shift, 5am to 2.10pm.
[80] Mr Riggs’ observations are summarised in paragraph 28 of Exhibit Respondent 4 and the applicant’s responses are set out in paragraphs 33 to 39 of Exhibit Applicant 2. Mr Riggs’ report of the ATR and the notes on which it is based are at Attachment TR5 to Exhibit Respondent 4 and Attachment GM23 to Exhibit Respondent 1.
[81] In his notes Mr Riggs concludes that the applicant is more than capable of achieving 100% of the Engineered Standards when he “simply gets on with his work”. He observes that the applicant chooses not to work at a reasonable pace and had adopted different ways to waste time. Mr Riggs concludes that the applicant would meet the required standards if he just increased his walking pace. He notes that the applicant needed further training on pallet stacking.
[82] It is Mr Riggs’ evidence that he did not speak to the applicant about the results of this ATR but sent them to Mr Mitchell and Ms Douglas.
[83] Mr Riggs elaborated on his observations concerning both ATRs during his examination in chief and was cross-examined at length about the issue.
[84] On 14 May a meeting was held between a number of representatives of both the respondent and the NUW. These included Mr Williams, Mr Mitchell, Ms Douglas, Mr Cronin and Mr Freshwater. It is the evidence of Mr Cronin and Mr Freshwater that, during the meeting, Mr Williams stated that he would be happy if the applicant got up to 90% and that perhaps job rotation would help.
[85] Mr Williams denies that he made such statements. His evidence is that he said that employees, including the applicant, need to get “at least into the 90’s to start with and then up to 100%”. He also denied stating that the applicant should be rotated into jobs where he would not be subjected to the Engineered Standards.
[86] The evidence of both Mr Mitchell and Ms Douglas is that Mr Williams did not make the statement about being happy if the applicant reached 90%.
[87] It is Mr Cronin’s evidence that, following this meeting, the applicant was not rotated as a picker. Mr Mitchell’s evidence is that the applicant was rotated to a role which included picking of individual bottles which is less labour intensive. His evidence is that the applicant’s performance still did not improve.
[88] On 19 May a meeting was held at which Mr Mitchell, the applicant, Mr Cronin and Mr Freshwater were present. Mr Mitchell informed the applicant that he was consistently the lowest performing warehouse employee and asked if there was anything he could do to help the applicant reach the required standards. The applicant replied in the negative.
[89] It is Mr Mitchell’s evidence that he also told the applicant to stop disrupting other employees. His evidence is that the applicant became aggressive and swore at him. Mr Mitchell then stopped the meeting. Mr Freshwater’s evidence is that he did not hear Mr Mitchell say that the applicant was disrupting other staff. His evidence is that he did not observe the applicant become aggressive or swear. Neither could he recall the meeting being stopped. Mr Freshwater’s recollection is that the meeting was amicable. The applicant’s evidence is that he could not recall the meeting but refuted Mr Mitchell’s evidence as to his behaviour.
[90] It is Mr Mitchell’s evidence that, in early June, after reviewing employees who had been informally counselled about their performance levels during the previous week, he arranged a meeting with the applicant to discuss the issue. Mr Mitchell’s evidence is that he had also noticed unexplained time gaps in the Dallas System reports of the applicant’s work. These reports are Attachment GM25 to Exhibit Respondent 1.
[91] The meeting was held on 1 June and was also attended by Ms Douglas and Mr Cronin. Mr Mitchell went through the computer reports and the applicant was asked to explain the time gaps. The applicant’s evidence is that, although he was not sure what he had been doing during each of the gaps, he tried his best to explain what might have occurred.
[92] During a break in the meeting Mr Mitchell and Ms Douglas discussed the applicant’s responses and decided that he had not justified the time gaps. They decided to issue the applicant with a second and final written warning for time wasting and failing to meet the required performance levels. They returned to the meeting and informed the applicant of the warning. It is Mr Mitchell’s evidence that the applicant said he was being harassed and was going to see a lawyer. He also gives evidence that the applicant swore. The applicant denies this and also denies that he said he would see a lawyer.
[93] The applicant’s evidence is that he was under the impression that ALM had already decided to dismiss him regardless of what he did. Mr Cronin also gave evidence to this effect and, further, that Mr Mitchell and Ms Douglas were not interested in the applicant’s explanations. Ms Douglas denies this. Her evidence is that she had considered the applicant’s responses but did not find them to be satisfactory. Mr Mitchell denies that he had decided to dismiss the applicant. The purpose of the counselling was to improve the applicant’s performance.
[94] It is the applicant’s evidence that he was given the written warning at the conclusion of the meeting. Mr Mitchell’s evidence is that the document was prepared after the meeting and given to the applicant at a meeting on 3 June. The warning is Attachment SB3 to Exhibit Applicant 1, Attachment GM27 to Exhibit Respondent 1 and Attachment TD6 to Exhibit Respondent 4. The warning notes that termination of employment may result if sub standard performance continues. It is dated 3 June 2010.
[95] Mr Cronin informed Mr Mitchell and Ms Douglas that the warning was in dispute. It is the evidence of Mr Mitchell that the NUW did not invoke the disputes procedure under the Agreement in relation to the warning.
[96] It is the applicant’s evidence that between 1 June and 15 June he continued to work as normal. No-one approached him about his performance.
[97] Mr Mitchell’s evidence is that, on 11 June, he reviewed the applicant’s performance. His evidence is that the applicant had again failed to meet the required levels. Mr Mitchell also obtained reports from the Dallas System which he says show a number of unexplained time gaps in the applicant’s work. Those reports are Attachment GM28 to Exhibit Respondent 1.
[98] On 15 June a meeting was held at which Mr Mitchell, Ms Douglas, the applicant and Mr Freshwater were present. Mr Mitchell went through the Dallas System reports mentioned in the previous paragraph and asked the applicant for explanations of various time gaps. The evidence of Mr Mitchell and Ms Douglas is that the applicant was unable to provide any such explanation.
[99] Mr Mitchell and Ms Douglas left the meeting to discuss what action should occur. Mr Mitchell decided that the applicant’s employment should be terminated. Ms Douglas agreed. Mr Mitchell’s evidence as to the reasons for his decision is set out in paragraph 65 of Exhibit Respondent 1. The reasons include: the applicant’s counsellings and warnings; the level of the applicant’s performance despite such counselling and warnings; the fact that assistance and training had been offered to the applicant; the applicant’s behaviour and failure to meet the standards during the ATRs; and, the applicant’s continued refusal to acknowledge that he had performance issues and his refusal to accept the standards.
[100] Mr Bonser was informed of the decision to terminate his employment. Mr Mitchell accompanied him to his locker then escorted him off the premises.
[101] Ms Douglas’s evidence is that, later that day, she drafted the termination letter which was posted to the applicant. The applicant’s evidence is that he received it “some days later”. The letter is Attachment SB4 to Exhibit Applicant 1 and Attachment TD7 to Exhibit Respondent 5 and, formal parts deleted, reads as follows:
“I refer to your last 3 meetings on 20 April 2010, 1 June 2010 and 15 June 2010 regarding time wasting which has resulted in the inability to meet performance expectations against engineered standards.
As per your previous first written warnings on 28 January and 20 April, your second and final warning on 1 June 2010 and numerous counselling’s and discussions with the Warehouse Manager and Warehouse Supervisors, your inability to reach the required targets was not an isolated incident. Your inability to meet the performance expectations was a result of time wasting. You have been counselled on numerous occasions and additional training was offered to you to assist in you being able to meet these performance expectations.
Following the outcome of today’s meeting, the Company has decided that your employment is to be terminated with effect from today.
Your final payment will be deposited into you bank account including four weeks in lieu of notice.” (sic)
[102] It is Ms Douglas’s evidence that, on about 13 July, she became aware that, because of an administrative error, the applicant had not received his proper payment in lieu of notice. He had been paid one week only. Her evidence is that she immediately contacted the payroll department and instructed them to remedy the situation. Ms Douglas wrote to the applicant to inform him of the error and to confirm that the additional payment would be made. That letter is Attachment TD8 to Exhibit Respondent 5. The applicant agreed under cross-examination that he had received four weeks pay in lieu of notice.
[103] On the applicant’s Centrelink Separation Certificate, Exhibit Applicant 3, the box noting that the reason for separation was “misconduct as an employee” has been ticked. In the space provided for further details the word “performance” has been inserted. The Certificate also notes that one weeks’ pay in lieu of notice was provided to the applicant. The Certificate was completed by the Payroll Officer of ALM’s parent company.
[104] It is the evidence of both Mr Mitchell and Ms Douglas that the applicant’s dismissal was for performance reasons and that the Separation Certificate was inaccurate. An internal Employment Termination Advice signed by both Mr Mitchell and Ms Douglas notes the reason for dismissal as “performance”. This document is Exhibit Respondent 3.
[105] The applicant seeks reinstatement. His evidence is that he likes the work and generally enjoys working with his former colleagues. The applicant’s evidence is that he was doing the best he could and was working in the same way he had always done throughout his employment with ALM.
[106] The applicant’s evidence is that, since the termination of his employment, he had done some casual work. He joined an employment agency a few weeks before the hearing and had gone to a couple of interviews.
[107] The evidence of Mr Mitchell is that the applicant’s reinstatement would be untenable for him and his supervisory team. Mr Riggs’ evidence is that he would feel very uncomfortable if the applicant was to be reinstated. He believed it would affect the morale of the supervisory team and would lower the general performance of the site. Ms Douglas’s evidence is that the applicant’s reinstatement would make it difficult for the warehouse to operate efficiently and effectively.
[108] Before turning to the submissions, I need to refer to two of the provisions of the Agreement and its predecessors, which are relied upon by the parties. Clause 29 “Counselling Procedure” is in the following terms:
“(i) Where an employee’s attendance and punctuality is not to the satisfaction of the employer, the employee shall be entitled to two separate warnings.
(ii) Such warnings shall be given formally and shall be in writing.
(iii) If following the aforesaid warnings, the employee’s attendance and punctuality of attendance remains not to the satisfaction of the employer, the employee may be terminated forthwith.
(iv) The procedure outlined in this clause shall be adopted in respect to the issue of work performance.”
[109] Clause 33, “Standard of Work” provides as follows:
“(i) The employer shall manage so as to achieve the highest productivity and efficiency reasonably open to his business from the employee. This will be achieved by improved management and application by employees in order to maximise the number of cartons out the door per paid hour of work.
(ii) The employees accept the need to work to their best efforts in accordance with the principle of a fair day’s work.”
[110] Clause 33 is also contained, in the same terms, in previous enterprise agreements between the respondent and the NUW dating back to 2002. These earlier agreements are Exhibits Applicant 7, 8, 9 and 10. The current Agreement is Attachment GM1 to Exhibit Respondent 1.
SUBMISSIONS ON BEHALF OF THE APPLICANT
[111] A written outline of submissions on behalf of the applicant was provided prior to the hearing. Mr Mueller also made oral submissions.
[112] It is submitted that the applicant’s performance, which had been satisfactory to the company for more than eight years, had not significantly dropped. Mr Mueller referred to the applicant’s evidence that he had been doing the best he could. He noted that the applicant had remained at the same classification level throughout his employment. The evidence showed that the applicant had been working to the limits of his capability and that was all that could be expected of him.
[113] Mr Mueller referred to clause 33 of the Agreement and noted that this set out the key requirement of the applicant’s position, namely, a fair day’s work. There is no mention in the Agreement of the Engineered Standards or any requirement to achieve 100% of those Standards. It followed that this could not therefore be a key requirement of the position. Mr Mueller noted that the terms of clause 33 could have been reviewed when the Agreement was negotiated in 2009.
[114] Mr Mueller submitted that the respondent had the burden of proving that there was a valid reason for the termination based on the applicant’s capacity. In this regard it would be necessary for the respondent to establish that the applicant was incapable of carrying out the inherent requirements of the job. Mr Mueller referred to Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 @ 150 and Hurskin v Australian Jewish Press Pty Ltd (1996) 69 IR 123 @ 141/2 (Hurskin) as being relevant in this regard. He also referred to the decision of Culpeper v Intercontinental Ship Management Pty Ltd [PR944547] @ paragraph 19 (Culpeper) as setting out a useful summary of the proper approach to be taken in matters of this kind.
[115] Mr Mueller submitted that the counselling procedure in clause 29 of the Agreement could only be related to mutually agreed standards set out in the Agreement. The wording of clause 33 is clear and makes no reference to the Engineered Standards. All that is required is that an employee makes their best efforts. Mr Mueller referred to the decision in Shop, Distributive and Allied Employees Association v Coles Group Supply Chain Pty Ltd[2010] FWA 7813 @ paragraph 53 as being relevant to the requirement for parties not to operate outside of the terms of an agreement.
[116] Mr Mueller rejected the respondent’s summary of the applicant’s performance during the period 1 December 2009 to 11 June 2010. He noted that the material had been compiled for these proceedings and consequently could not have been relevant to the decision to dismiss the applicant. Mr Mueller also noted that the applicant had not been counselled about his performance until early 2010. In this regard he referred to the applicant’s evidence that the 2008 warning had been withdrawn.
[117] Mr Mueller submitted that the Engineered Standards were not reasonable and noted the evidence that a number of employees regularly fail to meet the Standards. Mr Mueller submitted that any document signed by the applicant in 2001, which predated the introduction of the Standards, could not require him to achieve 100%.
[118] The Agreement codifies the parties’ rights and obligations and must prevail over any job application or policy document. In this regard Mr Mueller referred to Quickenden v O’Connor (2001) 109 FCR 243 @ paragraphs 69 and 131. He submitted that, consequently, there was no proper source for any obligation that the applicant achieve 100% of the Engineered Standards.
[119] Mr Mueller submitted that the reason for the applicant’s dismissal had been a “moving target” throughout the proceedings. The Separation Certificate identified misconduct as the reason and there was nothing to suggest that had ever been amended. Mr Mueller submitted that the respondent had not discharged its onus in establishing that the applicant had been wasting time. Further, it was unfair that the applicant had been asked about specific time gaps but had not been asked for a general response about his overall performance.
[120] Mr Mueller submitted that the Engineered Standards did not properly allow for human variabilities and were inherently unfair. He submitted that the system did not take into account the fact that picking for an entire shift might be more difficult than for a short time. Mr Mueller also submitted that it would have been reasonable for the respondent to have considered CCTV footage rather than have subjected the applicant to a memory test as to what he might have been doing when Mr Mitchell had suggested that there were unexplained time gaps in his performance.
[121] Mr Mueller submitted that it was reasonable to conclude that some employees worked more slowly than others. The respondent had given scant attention to lightening the physical burden on employees whilst it enforced the Engineered Standards. Mr Mueller submitted that job rotation would have provided relief in this regard.
[122] Mr Mueller noted that there had been no consultation with employees or the NUW before the company had unilaterally moved to formally enforce compliance with the Engineered Standards in 2010.
[123] Mr Mueller submitted that the evidence showed that, during 2010, the respondent had been trying to manage the applicant out of the business. The applicant had been subject to a constant cycle of negative feedback and was worried about the pressure on both himself and his colleagues. Mr Mueller submitted that the respondent should have taken action over the applicant’s complaints about Mr Mitchell and should have telephoned the applicant when he didn’t return from his period of stress leave in February.
[124] Mr Mueller submitted that it was reasonable to conclude that any drop in the applicant’s performance was due to fatigue. He noted that the applicant had not been provided with copies of the ATR reports, neither had he been spoken to about them. Mr Mueller submitted that an adverse inference should be drawn about the company’s failure to have called Mr Winterbottom and Mr O’Brien.
[125] Mr Mueller submitted that I should decide that the applicant had been able to fulfil the key requirements of the job and consequently his dismissal was unfair. Further it is submitted that the termination was unreasonable because it was based on an inference that the applicant was not a productive employee merely because he had not achieved 100% of the Engineered Standards.
[126] It is submitted that the applicant’s claim for reinstatement is fundamental to his case. The legislation makes it clear that reinstatement is the primary remedy. The evidence of the respondent’s witnesses as to the inappropriateness of reinstatement should be carefully scrutinized.
[127] Mr Mueller submitted that it would be an unjust result if the applicant was not reinstated. In this regard he referred to the decisions of Australian Meat Holdings v McLauchlan (1998) 84 IR 1 @ 16 and 18 and Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.
[128] Mr Mueller submitted that orders should also be made for continuity of the applicant’s service and for pay lost by reason of his dismissal.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
[129] A written outline of submissions was provided prior to the hearing. Mr Sant also made oral submissions.
[130] The respondent concedes that the only issue to be determined is whether the applicant’s dismissal was harsh, unjust or unreasonable and refers to the provisions of section 387 of the Act.
[131] Mr Sant rejected Mr Mueller’s submission that the respondent bore the onus in establishing that the reason for the applicant’s dismissal had been made out. He noted that Hurskin had been decided in the context of a different statutory regime which had specified that a respondent had the onus of proof. The present legislation does not contain such a provision.
[132] Mr Sant submitted that the present legislation places the evidentiary onus upon the applicant unless the dismissal is for serious misconduct, which is not the situation in this case. He referred to the following decisions as being relevant in this regard: Rode v Burwood Mitsubishi [Print R4471] @ paragraphs 30-33; Hinchey v North Goonyella Coal Mines Pty Ltd [2009] AIRCFB 94 @ paragraph 35 (Hinchey); and Wilson v IGA Distribution (WA) Pty Ltd [2009] AIRC 442 @ paragraph 59 (Wilson).
[133] Mr Sant submitted that there was a valid reason for the applicant’s dismissal based upon his time wasting and a consequent failure to meet the required performance levels. He submitted that there was no evidence to suggest that the Engineered Standards were unreasonable. The applicant had been informed of the Standards and had acknowledged that ALM could manage employee performance by use of the Standards. Mr Sant submitted that the applicant’s actions had demonstrated that he didn’t accept the Standards.
[134] Mr Sant referred to the evidence as to the process adopted by Mr Mitchell to counsel and warn the applicant about his performance. He submitted that the evidence of the respondent’s witnesses should be preferred to that of the applicant and his witnesses where there was any conflict.
[135] Mr Sant submitted that the evidence clearly showed that the applicant was the least productive of the warehouse employees. He also submitted that there had been no inequity in the manner the respondent had dealt with the applicant and other low performing employees.
[136] Mr Sant submitted that the reason for dismissal given to the applicant in the final interview and in the letter of termination related to his time wasting and failure to meet the performance standards. It was clear that the dismissal was not for misconduct. Mr Sant noted that the applicant had agreed that there was no mention of misconduct at the dismissal meeting.
[137] Mr Sant rejected the submission put on behalf of the applicant that there was no proper basis for the respondent to rely upon the Engineered Standards for the dismissal because they were not specifically referred to in the Agreement. He noted that the respondent had been using the Standards at the Silverwater site since 2003.
[138] Mr Sant rejected the suggestion that the respondent should have utilised CCTV footage to determine what the applicant had been doing during the identified time gaps. He also rejected the submission that Mr O’Brien and Mr Winterbottom should have been called to give evidence.
[139] Mr Sant submitted that the applicant had been notified of the reason for his dismissal and had been provided with an opportunity to respond. The applicant had been shown the various computer reports and had been given the chance to explain the time gaps. Mr Sant submitted that the evidence showed that the decision to terminate the applicant’s employment was reached after a break in the meeting during which due consideration had been given to the applicant’s responses.
[140] Mr Sant submitted that the applicant had been supported by NUW delegates and/or officials throughout the disciplinary process.
[141] Mr Sant submitted that the applicant had been subject to a number of informal and formal counselling sessions concerning various issues including his failure to meet the required performance standards. He had also been given a number of formal warnings. Mr Sant submitted that the applicant was aware that dismissal was a possible outcome of the process if improvement was not made.
[142] Mr Sant conceded that the respondent was a very large employer with specialised human resources personnel. He submitted that the disciplinary process had been consistent with the provisions of clause 29 of the Agreement.
[143] Mr Sant submitted that the applicant’s entire disciplinary history was relevant to be considered.
[144] Mr Sant submitted that the application should be dismissed. He submitted that if I find that the dismissal was unfair, reinstatement should not be ordered. Mr Sant submitted that it would be untenable and inappropriate. It would encourage further disputation and place the various managers and supervisors in a difficult position.
[145] Mr Sant submitted that, if compensation was considered, it should be nominal. In view of the applicant’s performance failings and his refusal to accept criticism dismissal would have taken place shortly after 15 June. The applicant had made insufficient efforts to mitigate his loss.
SUBMISSIONS IN REPLY ON BEHALF OF THE APPLICANT
[146] Mr Mueller reiterated his earlier submissions that the reason for termination was that which was set out on the Separation Certificate, namely, misconduct. He referred again to Culpeper and noted that the obligation was on the respondent to establish that the applicant had been time wasting. Mr Mueller submitted that paragraph 35 of Hinchey was not authority for the fact that a respondent has the onus of proof only in cases of misconduct.
[147] Mr Mueller submitted that there was no reason why the CCTV footage could not have been used in this matter. I should draw a conclusion that it would not have assisted the respondent’s case.
[148] Mr Mueller provided a copy of the enterprise agreement which was relevant in Wilson’s case and noted that it included specific reference to Engineered Standards. The absence of such a reference in the Agreement meant there was no obligation for the respondent’s employees to meet the Standards.
CONCLUSIONS
[149] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[150] As indicated in paragraph 1 of this decision, the application was made thirteen days after the termination. This is within the period required in subsection 394(2). There is agreement that the applicant was protected from unfair dismissal within the meaning of section 382. Paragraphs (c) and (d) of section 396 have no relevance in this particular matter.
[151] Section 385 provides that 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) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[152] Paragraph (a) is clearly met. Paragraphs (c) and (d) have no relevance in this matter.
[153] In order to decide whether the applicant’s dismissal was harsh, unjust or unreasonable it is necessary to turn to section 387 which sets out the factors which must be taken into account by FWA. Those factors are as follows:
“(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.”
[154] Before turning to consider the factors set out above, it is necessary for me to examine the issue of whether the applicant was dismissed for misconduct or unsatisfactory performance. As mentioned earlier in this decision, in the Separation Certificate provided to the applicant, the box noting that the reason for separation was “misconduct as an employee” has been ticked. In the space provided for further details the word “performance” had been inserted in handwriting. The evidence of both Mr Mitchell and Ms Douglas is that the completion of the Separation Certificate in that fashion was an error on the part of the Payroll Officer.
[155] I accept that evidence and am satisfied that the real reason for the termination of the applicant’s employment related to his performance. That was the reason which was communicated to the applicant in the meeting on 15 June and was set out in the letter of dismissal which he received shortly thereafter. I note that, at PN 532 of Transcript, the applicant agreed that there had been no mention of “misconduct” at the meeting on that date.
[156] It follows therefore that there is no particular evidentiary onus upon the respondent such as is referred to in paragraph 19 of Culpeper and paragraph 35 of Hinchey. Both of those cases were concerned with alleged misconduct.
[157] I now turn to the question of whether there was a valid reason for the applicant’s dismissal related to his capacity, or more particularly, his performance. I accept that the respondent is entitled to use the Engineered Standards as a legitimate measure of performance even though the Standards are not specifically referred to or set out in the Agreement. The evidence showed that the Standards have been in place for some time.
[158] I am satisfied on the basis of the evidence of Mr Mitchell and Mr Riggs and the material set out in Attachment GM6 to Exhibit Respondent 1 and Exhibit Respondent 2 that the applicant consistently failed to meet the required performance levels. Attachment GM6 reveals that, during the period 1 December 2009 until 11 June 2010, the applicant’s average achievement was 83.77% of the Engineered Standards. Employee 1, who was the person who had been on workers’ compensation for a period of time, achieved an average of 85.37%. Employee 2, who received a written warning in relation to his performance level, had an average of 86.03%. Employees 3, 4, 5, 6, 7 and 9, who were all subject to performance management, had averages ranging from 89.34% to 94.82%.
[159] Attachment GM 8 to Exhibit Respondent 1 sets out the applicant’s actual daily performance levels for the same period, 1 December 2009 to 11 June 2010. It ranges from a low of 42.18% on 10 December 2009 to a high of 115.43% on 19 December 2009. The majority of his scores were between 80% and 90%. I also accept the evidence of Mr Mitchell as to the applicant’s time wasting.
[160] I note that the evidence disclosed that the applicant had been encouraged to and offered assistance to reach the required performance levels but had not done so.
[161] I am satisfied that the applicant’s performance failings amount to a valid reason for his dismissal.
[162] Mr Mitchell provided cogent explanations for the fact that other employees who had similarly failed to reach the required level had not been dismissed. A number had been subject to performance management and one has received a written warning in relation to his performance. There is no inequity between the applicant and other low performing employees such that the reason for termination could be said to have been other than “sound, defensible or well founded” within the well known words of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 @ 373.
[163] I now turn to what might be termed the “procedural fairness” factors in section 387, paragraphs (b), (c) and (d). I am satisfied that the applicant was notified of the reasons for his dismissal and he was given an opportunity to respond to those reasons prior to the respondent making a decision to terminate his employment. The applicant had at least one support person with him at each of the discussions with the respondent which took place in the period during which he was subject to performance management. This included the final meeting on 15 June 2010.
[164] I am satisfied that the applicant had been warned about his unsatisfactory performance prior to his dismissal. As outlined earlier in this decision, the applicant had been subject to both informal and formal counselling about his failure to meet the required performance levels and he had received a number of formal warnings for issues including time wasting and not meeting performance standards. The fact that the applicant chose not to sign some of the disciplinary records because he didn’t agree with them does not detract from the reality that he was spoken to and warned about his performance on several occasions. It is clear that the applicant was on notice that his employment was at risk.
[165] I have had regard to paragraphs (f) and (g). Although there was no evidence as to the overall number of employees, the respondent is clearly a sizeable enterprise. The presence of Ms Douglas demonstrates that it has dedicated human resources management specialists. I am satisfied that these factors had a positive impact on the procedures which were followed in effecting the applicant’s dismissal.
[166] There are three matters which I wish to consider under paragraph (h). The first is the considerable length of the applicant’s service with the respondent of almost nine years.
[167] The second issue of relevance is the length of that service in the context that, for much of that time, the applicant’s performance levels were not called into question. I note however that situations change and, in my view, there is nothing unreasonable in Mr Mitchell deciding, firstly, that performance levels at Silverwater needed to improve and then, secondly, to take a more formal approach to that task when the informal approach was not working for all employees.
[168] The third factor of relevance is that the applicant worked on only four days between his last warning and his dismissal. This indicates some undue haste. However, in the circumstances and considering the applicant’s disciplinary history concerning his performance, I do not believe that a longer period of time would have led to any different outcome.
[169] In all of the circumstances and having taken into account each of the factors in section 387 and my findings thereon I have determined that the termination of Mr Bonser’s employment was not harsh, unjust or unreasonable. The application is dismissed.
COMMISSIONER
Appearances:
S. Mueller with M. Valentin for the applicant
M. Sant and M. Cooper solicitors, for the respondent
Hearing details:
Sydney.
2010.
October, 6, 20, 25 and 26,
November, 3.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR504636>
1
9
0