Mr Vishwehwar Gundelli v Department of Human Services

[2014] FWC 8149

[2014] FWC 8149

FAIR WORK COMMISSION

DECISION

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

Mr Vishwehwar Gundelli
v
Department of Human Services
(U2014/11167)

COMMISSIONER ROE MELBOURNE, 4 DECEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Gundelli was employed as a housing officer for the Department of Human Services (DHS) from 2003 until his dismissal on 9 July 2014 for alleged unsatisfactory performance. Mr Gundelli was notified of his termination on 7 July 2014. Mr Gundelli is seeking to be reinstated and compensated because he says that termination was harsh having regard to his age, length of service and employment record and that dismissal was not a proportionate response to the alleged unsatisfactory performance. Mr Gundelli also denies that his performance was unsatisfactory to the extent alleged by DHS.

[2] I am satisfied that the following matters which establish that Mr Gundelli is protected from unfair dismissal are not contested:

1. Mr Gundelli had been employed for a continuous period of more than 12 months at the time of the termination.

2. The Respondent is a national system employer.

3. Mr Gundelli was dismissed, with payment of notice, at the initiative of the employer for reasons of unsatisfactory performance.

4. The dismissal was not for reasons of redundancy.

5. The Application for unfair dismissal remedy was made on 24 July 2014 which is within 21 days of the dismissal.


6. The Respondent is a large employer (Section 387(f)) and is not a small business employer for the purposes of the Fair Work Act 2009.

[3] Mr Gundelli accepts he was notified of the reason for his termination and was given an opportunity to respond to the reason prior to the termination decision (Section 387(b) and (c)). Mr Gundelli was not refused access to a support person to assist at any discussions relating to dismissal (Section 387(d)). Mr Gundelli accepts that he was warned about the unsatisfactory performance prior to the dismissal through a performance management process which extended from September 2013 until June 2014 (Section 387(e)). DHS has access to human resource management expertise (Section 387(g)).

[4] The matters which are in contention in respect to whether the termination was unfair are: whether or not there was a valid reason associated with capacity or conduct (Section 387(a)); and any other matters which the Fair Work Commission considers relevant (Section 387(h)).

[5] Mr Margiolakis and Ms Misale provided evidence concerning the performance management process applied to Mr Gundelli and also the nature of the performance concerns. Mr Gundelli provided a supplementary witness statement which set out the points in the evidence of Ms Margiolakis and Ms Misale with which he disagreed. Mr Gundelli did not challenge the evidence concerning the performance management process which was conducted over the period from September 2013 until June 2014. Mr Gundelli did challenge some of the instances of unsatisfactory performance raised in the evidence. Mr Gundelli says that during the performance management process he met most of the expectations to an acceptable degree.

[6] Mr Gundelli says that in 2009, 2011 and 2012 he was given an expectation by three managers that he would be given an opportunity to implement work on integrating community development with housing practice. Mr Gundelli says that this was a concept that he developed in 2004 - 2006 and that he expected to be able to have a role in implementing it. Mr Gundelli says that the failure of DHS to allow this to happen distracted him and that this affected his performance. During the performance management process Mr Gundelli says that the Housing Services Manager advised him that he would recommend that Mr Gundelli either move to an alternative role or be dismissed. He says this raised expectations that he may be transferred. The DHS managers responsible for Mr Gundelli’s performance management in 2013 and 2014 say that the issue of the housing development role was never raised with them. Mr Gundelli did apply for a community housing development role in 2011 but was unsuccessful.

[7] I am satisfied that DHS was not required to provide Mr Gundelli with alternative employment of the sort which he was seeking. I am satisfied that DHS was entitled to expect Mr Gundelli to perform the duties allocated in accordance with his position and classification satisfactorily. The fact that Mr Gundelli was distracted or disappointed does not alter the fact that Mr Gundelli could reasonably be expected to perform his duties satisfactorily. I am not satisfied that Mr Gundelli’s expectation about a changed role is a relevant factor in determining whether or not there was a valid reason for dismissal. I put this to Mr Gundelli early in the proceedings and he accepted that this was correct.

[8] Mr Gundelli says that he was told that the team manager who was managing his performance was new to the performance management process and that he should cooperate. Mr Gundelli says that for this reason he protected the errors made by his team manager during the performance management process. No substantial evidence was produced of the alleged errors in the performance management process. This matter was not pressed by Mr Gundelli and he accepted that the performance management process had been conducted properly.

[9] Mr Gundelli did not challenge the evidence and submissions of DHS that in managing Mr Gundelli’s performance they followed the performance management process in accordance with the Victorian Public Service Workplace Determination 2012. I am satisfied that Mr Gundelli was clearly advised of the performance concerns at each stage of the process, was provided with clear expectations of what was required to improve performance in respect of each of the performance concerns, was provided with a manager, Ms Misale, to support him in the performance management process, and had regular weekly meetings with the responsible manager about performance. At various stages in the process Mr Gundelli was provided with a remedial plan and monitoring document which set out the record of Mr Gundelli’s progress against each indentified area of poor performance and any changes required to the remedial plan and any further support or assistance required. These documents were signed by the manager and Mr Gundelli.

[10] Ms Misale gave uncontested evidence that she spent about six hours per day assisting Mr Gundelli during the period from February 2014 until June 2014. At each stage of the process Mr Gundelli was given the opportunity to respond to the performance concerns and assessments and he was also given written notice at a meeting on 6 May 2014 that failure to improve at the end of the following four week period could result in termination. Mr Gundelli’s responses to concerns were documented and considered by DHS during the process.

[11] I am satisfied and it was not contested that the performance management process was conducted fairly and over a reasonable time frame and provided Mr Gundelli with a reasonable opportunity to address the identified performance concerns.

[12] The issues to be determined in this case are:

1. Was Mr Gundelli’s unsatisfactory performance a valid reason for termination?


2. Was there any other matter relevant to determining if the dismissal was unfair?

3. Was the dismissal unfair?


4. If the dismissal was unfair what is the appropriate remedy?

1. Was Mr Gundelli’s unsatisfactory performance a valid reason for termination?

[13] The original performance issues raised fell under the following headings:

a. Punctuality

b. Failure to act on the instructions and directions of Mr Gundelli’s supervisor

c. Failure to follow departmental policy, processes and guidelines in respect of the duties required


d. Failure to deliver on specific key performance indicators relating to the role of housing services officer

e. Failure to adhere to the departmental values and behaviours

[14] Mr Gundelli provided a spread sheet which explained why he believed that some of the performance concerns were unjustified or overstated. These matters were put to the DHS witnesses. In some cases these matters were not raised during the performance management process. Where there is a conflict in the evidence and the matter is documented in the remedial plan and monitoring document which was signed by Mr Gundelli and the relevant manager I prefer the documented evidence.

[15] I was satisfied by the evidence of Ms Misale that she conducted the performance management of Mr Gundelli in a fair and supportive manner. I consider that she was able to very clearly articulate the performance expectations, the reasons for them and the reasons why they had not been met. I consider that she was prepared to acknowledge the occasions when performance was improved. Ms Misale demonstrated an impressive capacity to listen carefully and respond to what Mr Gundelli had to say. The same can be said for the other manager, Mr Margiolakis. During the performance management process Mr Gundelli was given every opportunity to succeed. His work area was reduced from 250 homes to 100 homes. I am satisfied that the remedial plan and monitoring documents which were agreed to by Mr Gundelli were not overly intrusive or ambitious in the circumstances.

[16] I found Mr Gundelli to be sincere and I have no doubt of his commitment to housing and community services. Mr Gundelli was prepared to acknowledge shortcomings and errors in his performance. Mr Gundelli accepted that he may not have taken the performance management process seriously enough. I accept that this has been a very difficult time in Mr Gundelli’s life.

[17] Mr Gundelli was denied incremental progression in the last two years of his employment but he did receive incremental progression and promotion in earlier years. I am satisfied by the evidence of Mr Margiolakis that it is relatively uncommon for employees to be denied progression and that in some cases an employee might not meet all KPIs but still achieve progression.

[18] I have considered the matters which were the subject to some contest. I am satisfied that Mr Gundellli:

● Improved his punctuality and DHS acknowledged this and took it into account.
● Generally complied with the requirements in his improvement plan to not make personal telephone calls and to communicate respectfully with clients.
● Failed in the reported instances to follow policies in respect to entering matters into the Hiip system and scanning documents without delay.
● Did underperform in respect to tenant arrears. I do not accept that the fact that it was a new area explained this underperformance. The other factors raised by Mr Gundelli are common to the other housing officers and do not explain underperformance.
● Did underperform in respect to the MCAT project. I accept that Mr Gundelli did complete the low level claims and may have been instructed to do this first but this does not explain the level of underperformance.
● Did fail to appropriately report an incident which arose when on standby. It is accepted that the incident was reported at the time but the required follow up did not occur in a timely manner and this affected DHS performance.
● Did fail to adequately and accurately complete SHASP reports and this had potentially serious consequences for vulnerable clients. The fact that reports are signed off by more senior managers does not mean that there should not be an expectation that reports are accurately completed.
● Did on occasion fail to effectively communicate with peers. It is acknowledged that on some occasions Mr Gundelli did communicate effectively and appropriately.
● Failed to act promptly enough in respect to a damaged exterior door which posed a risk to tenant safety. I accept the evidence of Ms Misale in respect to this incident.
● Failed to immediately record returned keys as required by policy. Mr Gundelli says that he was busy with another client at the time when keys were left. Although this response is not recorded in the remedial plan and monitoring document I accept that this is a possible explanation.
● Raised a maintenance order against the wrong property.
● Placed a tenant on direct debit without written authority. I accept that verbal authority was given but the policy is to require written authority.
● Failed to reschedule an appointment with a tenant in a timely manner. I accept the evidence of Mr Gundelli that he did reschedule the appointment but accept the evidence of Ms Misale that it was not in a timely manner.
● Failed to use an interpreter when necessary and failed to accurately report high risk client issues.

[19] I am satisfied that the unsatisfactory performance of Mr Gundelli was a valid reason for termination.

2. Was there any other matter relevant to determining if the dismissal was unfair?

[20] I accept that Mr Gundelli had a relatively long period of employment with DHS. I also accept that as a social worker a significant proportion of available job opportunities will lie within the public sector. I accept that the termination will cause Mr Gundelli significant hardship. I consider that these factors should be taken into consideration in support of a finding that the termination was harsh.

Conclusion in respect to unfair dismissal?

[21] I am satisfied that termination of employment is a proportionate response to Mr Gundelli’s underperformance. I have taken into account the length of Mr Gundelli’s service and the particular impact the termination has on Mr Gundelli but given the valid reason for termination this is insufficient to make the termination harsh in the circumstances of this case. I am satisfied that the procedural factors stand in favour of a finding that the termination was not unfair and the other factors I am required to take into account are neutral considerations in this case.

[22] I am not satisfied that the termination was unfair. The Application is dismissed and an order to this effect will be issued.

COMMISSIONER

Appearances:

Mr V Gundelli appeared for himself.

Mr J Cooney and N Richmond appeared for DHS.

Hearing details:

2014

Melbourne

November 14

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