Mrs Carolyn Bolger v Shamrock Consultancy Pty Ltd T/A Allied Express

[2010] FWA 6723

[2010] FWA 6723

FAIR WORK AUSTRALIA

DECISION

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

Mrs Carolyn Bolger
v
Shamrock Consultancy Pty Ltd T/A Allied Express
(U2010/8538)

COMMISSIONER CAMBRIDGE SYDNEY, 1 SEPTEMBER 2010

Unfair dismissal - work performance and attitude - history of warnings - procedural deficiency - verbal dismissal during meeting - harsh and unreasonable dismissal - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 3 May 2010. The application was made by Carolyn Bolger, (the applicant) and named the respondent employer as Shamrock Consultancy Pty Ltd trading as Allied Express, (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 19 April 2010. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act. Conciliation of the claim was unsuccessful and the matter proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 6 August 2010.

[3] At the Hearing the applicant was self represented and was also the only witness called to provide evidence in support of the claim. The employer was represented by Mr J Hassett, solicitor, who called one witness, Noel Edward Ryles, the General Manager of the employer.

Factual Background

[4] The applicant had worked for the employer for a little over 14 years. The applicant worked as a Site Supervisor for the substantial proportion of the period of her employment. In January 2010 the applicant was transferred into an office based role involving driver training. The employer is part of the Allied Express Transport group of Companies.

[5] The applicant appeared to have a broadly unblemished employment record during the first 10 years of employment. Unfortunately from about 2006 problems developed with the applicant’s relationships with several of the employer’s clients.

[6] The applicant experienced difficulties with representatives of the employer’s client when working at the “Officeworks” site and the employer decided to move the applicant to another site. Unfortunately further difficulties emerged with the relationship between the applicant and other clients of the employer. Between 2006 and January 2010 the employer moved the applicant to various sites all of which experienced problems with the applicant’s work performance. These problems culminated with the applicant being issued formal warnings about her work performance.

[7] In January 2010 the applicant was moved “off-site” to an office role involving work with driver training. The move to the office role was described as the applicant’s “last chance”. The applicant had been issued with a final written warning in May 2009 regarding her work performance at the “Fairfax” site. Further difficulties arose with the applicant’s work in the office environment and on 12 April 2010 the employer’s General Manager, Noel Ryles, met with the applicant and reprimanded her for not adequately dealing with the concerns of one of the employer’s drivers who had decided to resign.

[8] The applicant did not attend for work on the following day, Tuesday 13 April, and she was absent from work for the remainder of that week. The applicant advised the employer that her absence was caused by sickness and she provided medical certificates upon her return to work on Monday 19 April.

[9] On 19 April the applicant was called into a further meeting with Mr Ryles. In the previous week, during the absence of the applicant, Mr Ryles had discovered other aspects of what he considered to be inadequate work performance on the part of the applicant. At the meeting on 19 April Mr Ryles raised these matters with the applicant and although there was contest about the detail of the conversation that followed, the meeting culminated in Mr Ryles advising the applicant that she was dismissed from employment with immediate effect.

The Applicant’s Case

[10] The applicant represented herself at the Hearing and referred to an outline of submissions that she had filed. The applicant's outline of submissions document was admitted as evidence and marked as Exhibit 1. Exhibit 1 contained both submissions and material that had been identified as evidence relating to the applicant's employment. The applicant supplemented this material with oral submissions.

[11] The applicant submitted that her dismissal was unfair because there was not a valid reason for dismissal. The applicant submitted that she had never been the subject of disciplinary action nor had she been given an opportunity to respond to allegations regarding her work performance and attitude. The applicant also submitted that she had not received any previous warnings regarding her performance or attitude.

[12] The applicant asked FWA to note that she had worked for the employer for a long time and that during that period she had done a lot of things for the employer above and beyond what might ordinarily be required. The applicant mentioned that she had used her personal credit card when the employer's fuel card had been cancelled. Further she said that she had only ever received three pay rises during her 14 years of employment.

[13] The applicant further submitted that she had not been given an adequate opportunity in the driver training role. The applicant said that she had felt very intimidated when she arrived at work on 19 April and was called into a meeting with Mr Ryles. She said that if she had known that she was going to be terminated during that meeting, or that there was going to be a discussion of that nature during the meeting, she would have asked for a support person to be present.

[14] In summary, the applicant asserted that her dismissal was unfair and that it had caused her to be out of pocket by over $8,000.

The Respondent’s Case

[15] Mr Hassett, solicitor, appeared on behalf of the employer, and referred to a written outline of submissions that he had filed. Mr Hassett submitted that the dismissal of the applicant was not harsh, unjust or unreasonable. Mr Hassett submitted that there was valid reason for the applicant’s dismissal related to the applicant's inadequate work performance and poor attitude.

[16] Mr Hassett recounted the recent employment history of the applicant. Mr Hassett submitted that in recent years the applicant's work performance had deteriorated greatly. Mr Hassett said that the employer had attempted to manage the applicant's work performance issues by moving her from site to site. According to Mr Hassett, the applicant's move to an office based role in driver training was the “last throw of the dice”.

[17] Mr Hassett submitted that contrary to the applicant's assertions, she had been provided with numerous warnings over an extended period of time. Mr Hassett said that the employer had been very patient and provided every opportunity for the applicant to improve her work performance. The applicant’s poor work performance continued in the driver training role and when Mr Ryles raised the ongoing problems with the applicant she displayed carelessness in attitude towards her employment that compelled Mr Ryles to move to dismissal.

[18] In summary, Mr Hassett submitted that the applicant had been employed for a long time and in the last few years had become bored and disenchanted with her job. According to Mr Hassett the applicant had been given lots of chances to improve her work performance and had been either unwilling or unable to do so. Mr Hassett submitted that the employer had no option but to conclude that the applicant was unable to rectify the identified deficiencies in her performance and therefore the employer was entitled to dismiss her.

Consideration

[19] Section 385 of the Act stipulates that FWA must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[20] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that FWA must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

Valid reason for the dismissal related to capacity or conduct

[21] The applicant was not provided with a letter of dismissal. However, despite significant conflicts in the respective versions of the detail of conversation during the termination interview held on 19 April, there was no dispute that Mr Ryles stated two reasons for the applicant's dismissal. Mr Ryles said that the applicant was dismissed “due to ongoing performance issues and poor attitude...” 1. The applicant's evidence confirmed that when asked the reasons for her dismissal the applicant was told “attitude and work performance”2.

[22] The evidence of the applicant’s recent employment history has confirmed that there were numerous complaints about the applicant's work performance. These complaints were serious enough to require the employer to remove the applicant from particular worksites and relocate her in the hope that improvement would follow. Unfortunately, the deterioration in the work performance of the applicant could not be rectified despite the earnest attempts of the employer.

[23] The particular work performance issues that developed during March and April 2010, while the applicant was working in the driver training role, confirmed that the applicant was unable or unwilling to satisfy the reasonable work performance standards of the employer despite having been given adequate opportunity to meet such standards. Consequently there was a valid reason for the applicant's dismissal relating to inadequate work performance.

[24] That aspect of the reasons for dismissal relating to alleged poor attitude involved a degree of subjectivity that is problematic in establishing such a reason to be valid basis for dismissal. The alleged poor attitude appeared to relate to the applicant's answers to questions during the meeting with Mr Ryles on 19 April. Specifically it appeared that the applicant’s alleged poor attitude was displayed by her confirmation that she was not happy in her employment and not keen to “be part of the team”.

[25] The evidence clearly established that the applicant had lost enthusiasm for her employment particularly when compared with her diligence during the earlier years when she was successfully performing on-site work. However, I am not prepared to accept that a loss of enthusiasm for work could translate into a valid reason for dismissal in the absence of some other established manifestation of performance or conduct connected to the loss of enthusiasm. Put simply, being unhappy at work cannot of itself represent a valid basis for dismissal. Consequently I reject that aspect of the reasons for the applicant's dismissal relating to poor attitude as providing a valid basis for dismissal.

Notification of reason for dismissal

[26] Unfortunately the employer did not provide the applicant with documented reason(s) for the dismissal. Although a Centrelink Employment Separation Certificate was subsequently issued, the verbal advice that was provided by Mr Ryles during the meeting held on 19 April was an inadequate explanation that failed to properly finalise the employment of a long-standing employee.

[27] The employer had taken the applicant’s length of service into account when attempting to provide opportunity for rectification of the applicant’s performance issues. It was therefore surprisingly inconsistent for the employer to finalise the employment without proper notification and related documentation. The employer did not provide the applicant with proper notification of the reason(s) for the dismissal.

Opportunity to respond to any reason related to capacity or conduct

[28] Prior to the meeting with Mr Ryles on 19 April, the employer had provided the applicant with ample opportunity to respond to the various performance matters that had been the subject of complaints. Perhaps it was because of the extensive period during which the applicant was given opportunity to improve her work performance that there was an absence of proper opportunity extended to the applicant during the meeting on 19 April.

[29] The meeting of 19 April represented a significant departure from the employer's previous careful and reasonable treatment of the applicant's work performance issues. Even upon a version of the detail of the meeting of 19 April that would be most beneficial to the employer, the process conducted by Mr Ryles did not give the applicant proper opportunity to make out a defence or offer explanation for the most recent performance issues that had been identified. Regrettably, Mr Ryles appeared to arrive at the decision to dismiss the applicant as the meeting on 19 April developed.

[30] There was no apparent reason for the haste that Mr Ryles adopted when he moved to advise the applicant of her dismissal during the meeting of 19 April. The employer had attempted to rectify the applicant's performance problems over a period of some years. Given that timeframe, there would have been little difficulty in adjourning the meeting on 19 April to permit a proper process to be followed with what then would have been anticipated to have been the finalisation of the applicant's employment. The applicant could have been advised that termination of employment was being contemplated, and an opportunity for further meeting with the benefit of that advice would have represented a process far less likely to provide criticism.

[31] The procedure adopted by the employer on 19 April that involved the applicant being told of her dismissal almost immediately upon her return to work after absence due to sickness, denied proper opportunity for the applicant to respond in a manner which may have dissuaded rather than convinced Mr Ryles to decide to dismiss.

Unreasonable refusal to allow a support person to assist

[32] There was no evidence that the applicant was given any opportunity to have a support person to assist because she was not told of the purpose of the meeting with Mr Ryles on 19 April. The applicant made justifiable complaint about the absence of a support person during the meeting with Mr Ryles. As the meeting developed and the prospect of dismissal gained momentum, Mr Ryles should have paused, adjourned the meeting and re-convened the process once the applicant had been informed of the potential for dismissal and given an opportunity to have a support person in attendance.

Warning about unsatisfactory performance

[33] The evidence established that the applicant had been given clear and repeated warnings in respect of unsatisfactory work performance. The warnings involved reasonable standards required by the employer and appropriate timeframes for rectification by the applicant to meet those reasonable standards. The warnings about unsatisfactory performance were conveyed and articulated without any perceivable ambiguity or potential for misunderstanding.

Size of enterprise likely to impact on procedures

[34] This issue is not relevant in this instance.

Absence of management specialists or expertise likely to impact on procedures

[35] This issue is not relevant in this instance.

Other relevant matters

[36] The applicant had worked for the employer for more than 14 years. Up until 19 April 2010, the employer had regard for the applicant's long service as a positive factor when it was dealing with work performance issues. Unfortunately the employer's previous recognition of the applicant's long service seemed to disappear as the meeting of 19 April moved with unnecessary haste, to a decision to dismiss.

[37] There was evidence that the employer contemplated other measures less severe than dismissal as a means to address the difficulties that had arisen from the applicant’s deteriorating work performance. Over an extensive period of time the employer had relocated the applicant's place of work and altered the nature of the tasks she was required to perform as measures aimed as alternatives to dismissal.

Conclusion

[38] The applicant was dismissed because of poor work performance and attitude issues. Upon analysis, poor work performance has been established as a valid reason for the dismissal of the applicant. The applicant failed to meet reasonable work standards required by the employer. The applicant had been given clear directives and appropriate opportunity to meet the reasonable standards required by the employer and had been unable or unwilling to achieve a satisfactory level of work performance.

[39] Regrettably the procedure that the employer adopted on 19 April involving the applicant being dismissed during a meeting without any prior notification that the meeting may have involved such an outcome, represented a significant departure from the employer's prior, reasonable conduct. The essential determination of this matter has therefore involved a balance between the established substantive basis for dismissal, weighed against appreciably defective process in the final instance.

[40] I have given careful consideration to all of the relevant circumstances of this case and although there was valid reason for the dismissal of the applicant, the final determination and implementation of the decision to dismiss must, on balance, render the dismissal to be harsh and unreasonable.

Remedy

[41] The applicant did not clearly articulate the outcome that she sought to obtain from these proceedings. However, during the Hearing it became apparent that reinstatement would be inappropriate and that payment of compensation would represent an appropriate remedy for the applicant's unfair dismissal.

[42] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 3 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd4.

[43] Firstly, I confirm that an Order of payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[44] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[45] Specifically I note that there was no suggestion that any Order of compensation would have any particular impact on the viability of the employer's enterprise. The applicant had been employed for a period of more than 14 years. I accept the applicant's evidence about the amount of financial loss suffered as a consequence of the dismissal.

[46] Thirdly, the question of any misconduct that may have contributed to the employer's decision to dismiss the applicant is not a relevant consideration in this instance.

[47] Fourthly, the amount Ordered does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal.

[48] Fifthly, the amount of compensation Ordered does not exceed the lesser of the total remuneration of the applicant for the period of her employment during the 26 weeks immediately before the dismissal, and half the amount of the high income threshold immediately before the dismissal.

[49] Consequently, for the reasons outlined above, I have decided that an amount of $3000.00 should be Ordered as compensation to the applicant. Accordingly separate Orders providing for remedy in these terms will be issued. [PR501184]

COMMISSIONER

Appearances:

Applicant unrepresented.

Mr. J. Hassett (Hassett Dixon Solicitors and Attorneys) for the Respondent.

Hearing details:

Friday 6 August 2010

 1   Exhibit 2 at paragraph 33.

 2   Exhibit 1, Attachment “J”, at page 5/5.

 3   Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 4   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR501155>