Mr Timothy Neil Willot Vickridge v Signature Security Group

[2011] FWA 2501

[2011] FWA 2501

FAIR WORK AUSTRALIA

DECISION

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

Mr Timothy Neil Willot Vickridge
v
Signature Security Group
(U2010/12431)

COMMISSIONER WILLIAMS PERTH, 3 MAY 2011

s.394 - application for unfair dismissal remedy

[1] This matter involves an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) made by Mr Timothy Vickridge (the Applicant). The respondent to the application is Signature Security Group (the Respondent).

[2] A conciliation conference was conducted by a Fair Work Australia conciliator however the matter was not resolved and so it was referred for arbitration.

Background

[3] Signature Security Group (Signature) provides security products and systems for home and business security which are designed to provide protection from burglary, fire, and medical or personal emergency. The products and services include access control systems, alarm systems, CC TV camera and video surveillance, alarm monitoring, perimeter monitoring and emergency response services.

[4] Mr Vickridge was employed by Signature in March 2004 as a Sales Manager. At that time he was engaged by and reported to Mr Burns the W.A. Branch General Manager.

[5] Following discussions with Mr Burns in September 2005 by mutual agreement Mr Vickridge stepped down from the Sales Manager role to become a sales consultant with the title 'Corporate Accounts Manager'.

[6] In September 2010 following the issuance by Signature of a first written warning and later a second written warning Mr Vickridge was terminated for performance reasons.

[7] Mr Vickridge was self represented and gave evidence on his own behalf. Signature was represented by Ms Shields and called five witnesses to give evidence.

The Applicant's case

[8] Mr Vickridge submits that Signature’s decision to terminate his employment was unfair because:

1. He exceeded sales targets agreed to in July 2010.

2. The performance management process commenced in June 2010 was for a period of six months which had not been completed when he was terminated.

3. Signature did not follow the company's own policy on performance management processes.

4. He had only recovered in February 2010 from injury caused by bullying and harassment at work.

5. The bullying and harassment at work continued from June 2010 until he was dismissed.

6. He was expected to achieve sales targets when he was on annual leave and sick leave.

7. Signature repeatedly made allegations about him that were proven to be false.

[9] Mr Vickridge expanded on some of those seven issues above and raised a number of other complaints about his treatment by Signature summarised as follows:

• The bullying and harassment by the Sales Manager is supported by reports from the Applicants psychologist and psychiatrist.



• Signature allowed the bullying and harassment to continue after he had made formal complaints.



• After the Sales Manager was relocated to Adelaide other managers continued the bullying and harassment.



• Signature did not support him even though they knew he was mentally ill and planning suicide.



• Signature ignored its own policies by commencing a performance management review period prematurely and without preparing a performance improvement plan as required.



• He was terminated three months into the performance management review and before the review had run its full six months.



• Signature falsely stated that the performance review commenced in February 2010.



• Signature called his family without his knowledge or consent and made untrue statements to them.



• Signature consistently provided inaccurate figures.



• Signature wrongly issued a warning in relation to providing unpaid help in a toy store on a Saturday.



• He was wrongly warned for having a meeting that never occurred and the warning was never retracted.



• A number of false accusations were made by the General Manager and Group General Manager of Human Resources, Occupational Health and Safety and Compliance about him.



• Signature have refused to pay him sales commissions based on a change in company policy that was not advised to him nor were any such changes made to his employment agreement.



• Signature refused to pay sales commissions consistent with his employment agreement.



• The Group General Manager of Human Resources, Occupational Health and Safety and Compliance twice refused to bring in a mediator to assist in resolving issues contrary to the company's occupational health and safety policy.

The Respondent's case

[10] The Respondent denies Mr Vickridge was unfairly dismissed and submits that there was a valid reason for termination being his continued underperformance.

[11] The Respondent submits that throughout the majority of 2009 the Applicant had failed to perform at a level satisfactory and that from February 2009 until his termination he received support, assistance and counselling regarding this.

[12] In October 2009 Mr Vickridge advised the Respondent that he had serious personal issues and was having mental health difficulties. The Respondent immediately attempted to address those personal issues and provided him with ongoing personal support.

[13] The Respondent submits that in March 2010 the Applicant told the Respondent that he had resolved his personal issues and was fully recovered and was refocusing on his job.

[14] From that time onwards however his performance continued to be below the standard acceptable and in June 2010 a formal performance management process was commenced. Formal written warnings were provided the first of those on 9 June 2010 and the second on 16 July 2010.

[15] The Respondent submits that notwithstanding the formal performance management meetings and formal written warnings Mr Vickridge’s performance in terms of his actual sales performance against his sales budget and the volume and quality of his “sales pipeline” were consistently below a satisfactory level. Whilst there at times were temporary improvements in performance these were not maintained and ultimately the decision was taken to terminate the Applicants employment in a meeting with him on 7 September 2010 due to his failure to improve and maintain his performance to a satisfactory level.

[16] In terms of procedural fairness the Respondent submits that the performance management process and various meetings conducted under it ensured that Mr Vickridge was notified of the reason he was likely to be terminated for and at the conclusion of the process was given an opportunity to respond to that reason. The written warnings clearly demonstrated that the Respondent had warned him about his unsatisfactory performance before his dismissal.

[17] In all the circumstances then the Respondent submits that the Applicants employment was not dismissed in a manner that could be said to have been harsh, unjust or unreasonable.

Consideration

[18] Significant parts of the history leading up to the termination of Mr Vickridge are not in dispute between the parties.

[19] The important issues that are in dispute which potentially are relevant to the question of whether or not the dismissal of Mr Vickridge was harsh, unjust or unreasonable are as follows:

1. Whether Mr Vickridge was subject to ongoing bullying and harassment.

2. Whether Signature failed to properly take into account Mr Vickridge’s mental health difficulties.

3. Whether Mr Vickridge’s performance throughout 2009 and particularly from June 2010 until his termination was unsatisfactory.

4. Whether Signature failed to comply with its own performance management policy.

5. Whether Signature wrongly issued him with warnings and falsely accused him of other wrongdoing.

6. Whether Signature failed to comply with its occupational health and safety policy by not appointing a mediator.

Bullying and harassment?

[20] Mr Vickridge in his evidence detailed a series of interactions with his Sales Manager Mr Miller that he characterizes as bullying and harassment. The majority of these interactions occurred throughout 2009.

[21] If these events occurred as Mr Vickridge says they did these examples range from quite serious matters through to quite minor matters that would not amount to bullying or harassment.

[22] In his evidence Mr Miller agreed that many of the interactions did occur but his version of events often was at odds with that of Mr Vickridge. Mr Miller denies bullying or harassing Mr Vickridge at all.

[23] Around February 2009 Mr Vickridge complained to Mr Burns about Mr Miller and in April 2009 he met with Mr Burns, Mr Miller and Mr Armstrong the Group General Manager of Human Resources, Occupational Health and Safety and Compliance (who participated by phone) where his concerns were discussed.

[24] In September 2009 Mr Vickridge having consulted with his doctors and therapists again complained verbally to Mr Armstrong about being bullied and harassed by Mr Miller. Mr Armstrong looked into these matters and arranged a number of meetings individually first with Mr Vickridge and later with Mr Vickridge and with Mr Miller in an attempt to resolve the concerns Mr Vickridge had.

[25] Mr Armstrong's evidence was that he was of the view that these meetings had largely resolved the matter. Mr Miller was now aware that his behaviour at times had been upsetting Mr Vickridge and he had indicated that that was not his intent and that he would attempt to avoid repeating this in the future. 1

[26] Mr Vickridge however did not believe these meetings had satisfactorily resolved the problems and on 1 October 2009 he made a written complaint to Mr Armstrong listing the same concerns he had raised previously. The following day in discussions after work between with Mr Burns and Mr Miller Mr Vickridge told them that he had been contemplating suicide.

[27] Immediately following this Mr Vickridge took a period of absence being a mixture of annual leave and sick leave during which he sought treatment for his mental health problem.

[28] The context in which all these interactions occurred was that the business was not performing well in 2009 and all of the sales consultants including Mr Vickridge and also Mr Miller as the Sales Manager were under some pressure. The evidence is that the work environment is robust in the sense that there is a level of competition between sales consultants and that the Sales Manager does have a role to push sales consultants to ensure that they achieve their budget targets. Mr Vickridge does not dispute that during this period in 2009 his performance was below the required standard and he was not always achieving his budget targets although his argument is that this was because of him being bullied and harassed.

[29] Given his poor performance it is unremarkable that Mr Vickridge would have been in particular subject to scrutiny by Mr Miller around this time.

[30] In respect to some issues about which Mr Vickridge complained such as being contacted at home by phone or email whilst absent on annual leave or sick leave, or being required to meet budget targets regardless of periods of leave, the evidence is that these were not unique experiences of Mr Vickridge. Rather these were common experiences for other employees at Signature. Mr Vickridge was not being singled out at all.

[31] Having observed Mr Miller give his evidence it is fair to say that he has a sometimes forceful and blunt manner. Equally having observed Mr Vickridge it is not hard to understand that in their work environment there might at times have been some clash of personalities between these two individuals.

[32] It is not necessary to make findings on each complaint that Mr Vickridge has raised involving Mr Miller. My conclusion about these together is that on a number of occasions the behaviour of Mr Miller was inappropriate, unreasonable or overbearing. However many of the other interactions about which Mr Vickridge complains were nothing more than examples of differences of opinion about operational matters or examples of friction between the two individuals. Such uncomfortable interactions do commonly happen in workplaces from time to time and should be recognized as a normal part of working with others. Finally some of the complaints of Mr Vickridge involved Mr Miller treating Mr Vickridge the same as he did other staff and that treatment was not unreasonable.

[33] Considering all the evidence and materials provided I am not satisfied that throughout 2009 Mr Vickridge was subject to ongoing bullying and harassment as he characterized the behaviour of Mr Miller. Further whilst the actions of the Respondent and in particular Mr Armstrong may not have fully resolved the concerns Mr Vickridge had raised it was an appropriate set of actions taken in good faith to address those concerns.

[34] The actions of Mr Miller that I agree were inappropriate or unreasonable occurred well prior to the Respondent commencing the performance management process with Mr Vickridge in 2010 and in my view have limited bearing on the fairness or otherwise of the dismissal in this case.

[35] Mr Vickridge says that after Mr Miller left to work in Adelaide in early 2010 that the bullying and harassment was continued by Mr Burns and also by Mr Armstrong. Notwithstanding this Mr Vickridge in his evidence also says that prior to this he had always enjoyed a positive and supportive relationship with Mr Burns and that he was a good General Manager.

[36] Some of the actions of Mr Burns in late 2009 and 2010 that Mr Vickridge has characterized as bullying and harassment, such as advising him he would not be allowed after hours entry to the premises unaccompanied and contacting Mr Vickridge’s family members were, I have no doubt, taken in good faith by Mr Burns because of concerns he naturally had after Mr Vickridge told him of his suicidal thoughts and disturbed mental state.

[37] The evidence is that Mr Miller was relocated to Adelaide in early February/March 2010. From that point onwards my conclusion is that Mr Vickridge had no grounds on which to complain about bullying and harassment at all. That the actions of Mr Burns and Mr Armstrong throughout 2010 about which Mr Vickridge complains, were taken as part of the performance management process and were not bullying and harassment.

Not properly taking into account Mr Vickridge’s mental health difficulties?

[38] Mr Vickridge submits that's in making the decision to dismiss him the Respondent did not properly take into account his earlier mental illness

[39] The evidence is that Mr Vickridges performance was below the required standard throughout 2009 however no disciplinary action was taken against Mr Vickridge at this time.

[40] During this latter part of 2009 Mr Vickridges mental-health was declining. I note that his medical reports record the self reporting by Mr Vickridge that his mental disturbance was because of being bullied and harassed by Mr Miller.

[41] Mr Miller ceased to be Mr Vickridge’s Manager when he relocated to Adelaide in February/ March 2010.

[42] On 29 March 2010 having had a period of three weeks annual leave in the U.S.A. Mr Vickridge returned to work and advised the Respondent that he was no longer stressed and anxious and his mental health problems were behind him and he had no personal issues affecting his job. 2

[43] In light of the health problems that the Applicant had experienced when setting his new budget targets the Respondent reduced these compared to other sales consultants.

[44] A period of over two months passed following Mr Vickridge’s return in March 2010 before the Respondent raised with the Applicant his performance deficiency. The first written warning regarding performance was given on 9 June 2010.

[45] Throughout the subsequent performance management process it was agreed that the Applicant would be deemed to have performed satisfactorily if he achieved above 70% of his budget targets. 3 The evidence was that for sales consultants generally they are expected to reach 100% of their budget targets and if they were to fall below 80% of their targets this would lead to their being “a conversation” with them about their performance.

[46] My conclusion then is that the Respondent was rightly conscious of the mental health difficulties Mr Vickridge had suffered in 2009 and had waited until those problems were resolved before holding him to account for his performance. It is wrong to say that the Respondent had not properly taken into account the Applicant's mental health difficulties when making the decision to dismiss him.

Was his performance unsatisfactory?

[47] There was significant debate between Mr Vickridge and the Respondent over whether or not his performance from March 2010 through to the time of his dismissal was unsatisfactory. This debate largely revolved around an analysis of the budget targets and his month by month performance to these targets versus his year to date performance and arguments as to whether or not re-signing of existing customers was included in these budgets or not.

[48] On this last point the weight of evidence is strongly against Mr Vickridge. The evidence of the Respondent's witnesses is consistent on the issue of re-signs and I am satisfied that re-signing existing customers did not count towards achieving monthly budget targets for Mr Vickridge. 4

[49] I am satisfied that the monthly budget targets set for Mr Vickridge were reasonable in all the circumstances. The evidence of Mr Burns which is not contradicted was that the Applicants budget targets for 2010 - 2011 were significantly reduced below the budget targets for 2009 - 2010 because of Mr Vickridge’s poor performance in 2009. 5This significantly reduced the monthly target budget for Mr Vickridge in July and August of 2010, two of the months during which he was subject to the performance management process.

[50] Mr Vickridge sought in his evidence to argue that he had at times during the performance management period achieved significantly higher percentages of the monthly budget target than the Respondent said he had. His argument was that where the monthly budget figures i.e. 100% was for example $ 30,000 then as agreed he was required to achieve only 70% of this, being $ 21,000 to be deemed satisfactory. If he actually achieved $ 19,000 for that month then he had achieved $ 19,000 of the $ 21,000 which he says was 90% of “his” 70 % budget and so he argues he was performing satisfactorily (i.e. at 90%) whereas the Respondent says $ 19,000 was only 63% of the 100 % target budget and so he had not achieved a satisfactory level of 70%. 6 I am satisfied that this approach of the Applicant to the budget performance calculations was disingenuous and that the Respondent did correctly assess his performance month on month against the budget and against the agreed benchmark of 70% of budget.

[51] Further I am satisfied that on both of the monthly budget target measures, cash sales and recurring monthly revenue, Mr Vickridge was not performing satisfactorily because he was not regularly achieving 70% of his monthly budget targets in the months leading up to his dismissal. This 70 % level had been set as the minimum acceptable level for him in discussion with him and his lawyers whilst meeting with Mr Burns and Mr Armstrong.

[52] I also accept the assessment of the Respondent's witnesses that the 'pipeline' of future potential business leads Mr Vickridge had in place was not great enough to support a conclusion that he was likely to achieve 70% of the monthly budget targets in future months and this clearly indicated that his performance in future would continue to be unsatisfactory.

[53] Finally I accept that there is evidence that during this period some customers had complained about Mr Vickridge’s service and performance.

Non-compliance with the performance management policy?

[54] Mr Vickridge argues that the Respondent did not follow its own policy when subjecting him to the performance management process. Mr Vickridge tendered a series of PowerPoint presentation printouts that are headed “Poor Performance Guidelines”. Having reviewed these it seems that if there was a failure to strictly follow these guidelines it may be that a document entitled “Performance improvement plan” was not provided to Mr Vickridge at the outset of the process. Whilst no document labelled as such was provided to him the expectations the Respondent required him to meet were clearly set out in writing in the warning letters and this amounted to a “Performance improvement plan” in any event. Regardless the guidelines are just that and I accept that the Respondents approach to the performance management process substantially followed those guidelines.

[55] Mr Vickridge also argues that the performance review period was to be for 6 months however it seems that this was never the case and the Respondents warning letters to him clearly said there would be a review to determine the future of his employment after the end of August 2010.

[56] Mr Vickridge may have misunderstood the statement in the first warning that this warning would remain in effect for 6 months. However any confusion he had was clarified by the final warning which stated that whether or not his employment would be brought to an end would be reviewed at the end of August 2010.

Baseless warnings and accusations?

[57] Mr Vickridge submits that the Respondent wrongly issued him with warnings and falsely accused him of other wrongdoing on a number of occasions.

[58] These concerns were raised by Mr Vickridge and responded to by Mr Armstrong. 7 Whilst I accept that the Respondent may have erred in issuing a reprimand to Mr Vickridge on occasion these matters had no bearing on the decision to dismiss him and are not relevant to this application.

Non-compliance with the occupational health and safety policy?

[59] Mr Vickridge argues that the Respondent failed to comply with its occupational health and safety policy by not appointing a mediator when he raised his complaints about bullying and harassment and when he requested this during the performance management process.

[60] Whilst the Respondents occupational health and safety policy does allow for outside mediation in some situations in regard to complaints and grievances that employees raise I do not accept that this policy applies at all to the concerns Mr Vickridge raised throughout the performance management process many of which were dealt with in correspondence on his behalf to the Respondent from his lawyer. 8

Legislation

[61] Section 387 of the Act sets out what matters the tribunal must take into account when considering whether the dismissal of an employee was harsh unjust or unreasonable.

s. 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.

Was there a valid reason to the dismissal ?

[62] The evidence is that the Applicant had been not been performing satisfactorily for a period of time although through much of 2009 this may well have been because of his poor mental health.

[63] After March 2010 when the Applicant said he was now over his health difficulties the Respondent monitored his performance and concluded that it was appropriate to impose on him a performance management process from June through to the end of August 2010 because his performance continued to be unsatisfactory overall.

[64] At the conclusion of the performance management process in early September 2010 the Respondent reviewed the Applicant's performance over the previous month's and could clearly identify that he was not performing at a satisfactory level in that he was not achieving actual sales to achieve even 70% of his monthly budget target and he had not built a sufficiently large and high-quality sales pipeline to assure the Respondent that his sales performance in the future was likely to improve.

[65] The Applicant’s unsatisfactory performance in failing to achieve reasonable performance compared to his monthly budget targets was a valid reason for his dismissal.

Was the Applicant notified of the reason for his dismissal?

[66] During the meeting on 7 September 2010 the Applicant was notified of the reason for his dismissal. The likelihood of him being dismissed if he did not achieve a satisfactory level of performance in terms of sales had been made clear to him in previous meetings and through previous formal written warnings.

Was the Applicants given an opportunity to respond?

[67] At prior meetings during the performance management process the Applicant was advised of the Respondent's concerns about his performance and there had been significant dialogue backwards and forwards with the Applicant during which time he had the opportunity to explain his situation.

[68] The Applicant directly and through his legal representatives prior to the final meeting on 7 September 2010 had set out his views on the Respondent's concerns about his performance.

[69] During the final meeting on 7 September 2010 the Applicant was given considerable opportunity to express his views about the Respondent's complaints and respond to the concerns they have raised in that meeting. I note the meeting went for an extended period of over one hour. The Applicants responses in that final meeting were considered before the final decision of the Respondent was made to dismiss him.

Refusal to allow a support person?

[70] At no time did the Respondent refuse to allow the Applicant to have a support person attend either the final meeting or any of the earlier meetings concerning his performance. During the earlier meeting on 14 July 2010 the Applicant attended with his legal representative.

Whether the Applicant had been warned about unsatisfactory performance before the dismissal?

[71] The Applicant would have been aware as early as 2009 the Respondent was concerned about his unsatisfactory performance. In 2010 there were meetings in early June regarding the initiation of a formal performance management process and following this the Respondent provided the Applicant with a formal written warning letter in relation to his performance. This was followed by a further formal performance management meeting on 14 July 2010 and again following this the Applicant was provided with a formal written warning in relation to his performance dated 16 July 2010.

[72] Notwithstanding these two performance management meetings and formal written warnings the Applicant's performance did not improve such that he was able to demonstrate that he could maintain consistently a satisfactory level of performance. Consequently on 7 September 2010 the Respondent had a final meeting with the Applicant where his performance was reviewed and discussed and he was advised that his employment would be terminated because of his unsatisfactory performance.

The size of the Respondent's business etc

[73] The Respondent is a medium-sized organisation with dedicated human resource personnel. The procedures adopted leading up to the termination of the Applicant were consistent with this.

Other matters that the tribunal considers relevant

[74] Other matters that are relevant to this application are that the Applicant had been employed with the Respondent for a little over five years at the time of his dismissal.

[75] It is also relevant that for approximately 18 months prior to his dismissal there had been significant shortcomings in the Applicant's performance. The Respondent was aware that in 2009 the Applicant was suffering from mental health problems that were interfering with his capacity to perform to an acceptable standard. Consequently no formal action was taken regarding his poor performance until these issues were resolved in March 2010. It is relevant that the health difficulties the Applicant was experiencing in 2009 also had a detrimental effect on the Respondent in that his underperforming had a negative commercial impact on the Respondent business.

[76] Other matters that are relevant are those raised by Mr Vickridge regarding bullying and harassment, his mental health difficulties, the alleged failure of the Respondent to comply with its own policies and the alleged false accusations and consequential warnings issued to him by the Respondent. These have all been addressed in some detail earlier in the decision.

Conclusion

[77] Whilst the Applicant does dispute many of the concerns raised by the Respondent about his performance the evidence clearly supports the conclusion that the Applicant for a considerable period was not performing satisfactorily to achieve his monthly budget targets and he was aware that if this continued it was likely to lead to his dismissal. The Applicant certainly had reason to complain at times about his experience in the workplace throughout 2009 however these events pre-dated the period over which his performance was reviewed and these past events do not protect the Applicant from the conclusion that he was not achieving the reasonable standard of performance that the Respondent expected in 2010.

[78] Having taken all of the matters in section 387 into account my conclusion is that in all the circumstances here the decision to dismiss the Applicant was not harsh, unjust or unreasonable.

COMMISSIONER

Appearances:

Mr T Vickridge, the Applicant, on behalf of the Applicant

Ms A Shields, Associate, of Norton Rose Australia on behalf of the Respondent

Hearing details:

Perth.

2010:

February 10, 11

 1   Wit Sate Mr. Armstrong para 23 - 26

 2   Wit state Mr Vicridge para 90 , Transcript Pn 587 , 603

 3   Signature letter 16 July 2010 - The performance management process -Attachment TA 5 to Wit Sate of Mr Armstrong

 4   Transcript para 1596, 1597,

 5   Transcript para 1313 - 1317

 6   Transcript para 714 to 735

 7   Signature letter 16 July 2010 - Point 7 -Attachment TA 5 to Wit Sate of Mr Armstrong

 8   Letter dated 26 July from Mr Millward W.A. Workplace Law to Mr Burns re Meeting with Tim Vickridge.

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