Mrs Idalete Bicho De Sousa Ganso v Global Perfumery Pty Ltd T/A Nina Ynez-Modern Apothecary
[2011] FWA 7644
•9 NOVEMBER 2011
[2011] FWA 7644 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Idalete Bicho De Sousa Ganso
v
Global Perfumery Pty Ltd T/A Nina Ynez-Modern Apothecary
(U2011/8992)
VICE PRESIDENT WATSON | SYDNEY, 9 NOVEMBER 2011 |
Application for unfair dismissal remedy - whether termination harsh, unjust or unreasonable - whether valid reason for termination - whether employee warned for unsatisfactory performance - whether reasons for termination sufficient for the termination to be fair - dismissal not harsh, unjust or unreasonable - application for remedy dismissed - Fair Work Act s387, 394.
Introduction
[1] This decision relates to an application for an unfair dismissal remedy by Idalete Ganso in relation to the termination of her employment by Global Perfumery Pty Ltd T/A Nina Ynez-Modern Apothecary (Global Perfumery). The application is made under s394 of the Fair Work Act 2009 (the Act).
[2] At the determinative conference regarding this matter on 7 October 2011 Mr D Fitzpatrick, of counsel, represented Mrs Ganso and Ms S Arabi represented Global Perfumery. Evidence was given by Mrs Ganso, and on behalf of Global Perfumery by Mr Wong, Ms Arabi and Ms Scow.
Background
[3] Most of the general circumstances in this matter are not contested. Each side sought to emphasise certain aspects of the employment history and did not take issue with most matters raised by the other side. Hence much of the evidence led by the parties was uncontested except on the grounds of relevance to the ultimate matters required to be determined.
[4] Global Perfumery is part of a large group of companies engaged in retail and beauty services employing approximately 800 employees in Australia. Mrs Ganso was employed as a Beauty Therapist with Global Perfumery from 18 February 2008 at its operation at St Ives Shopping Village until the termination of her employment on 8 June 2011. In that capacity she reported to the manager of the facility, Mr Kam Wong.
[5] There were two important features of her employment. The first was an aggravation of a previous back injury in October 2009 allegedly due to a defective chair. This caused various absences from work and some difficulty in Mrs Ganso’s ability to perform her duties.
[6] The second important feature was that the working relationship between Mr Wong and Mrs Ganso was seriously strained. They each had numerous complaints about each other. The evidence discloses strong disagreements and verbal altercations between them and other staff members. The evidence establishes that Mr Wong attempted to speak to Mrs Ganso about performance issues as they arose and Mrs Ganso often responded in a loud and aggressive manner to counselling and warnings. Mrs Ganso complained to Global Perfumery that Mr Wong bullied her. The allegations were investigated and dismissed.
[7] During 2011 Global Perfumery convened a number of performance/conduct disciplinary meetings with Mrs Ganso to discuss her performance. The Global Perfumery Human Resources Coordinator, Ms Arabi, conducted these meetings. In each case the meeting was preceded by a letter that provided details of allegations to consider in advance of the meeting and informed Mrs Ganso of her right to representation at the disciplinary meeting.
[8] A disciplinary meeting was held on 23 March 2011 which led to a first written warning dated 25 March 2011.
[9] A second disciplinary meeting was held on 6 April 2011 which led to a second written warning on 7 April 2011.
[10] A third disciplinary meeting on 7 May 2011 resulted in a final written warning on 9 May 2011. The 9 May 2011 letter stated:
“Dear Idalete,
Re: Unsatisfactory Work Performance
This is my third letter to you regarding your continuing unsatisfactory work performance following our discussion on 7/5/2011 and to indicate to you the consequences of a failure to achieve the reasonable standards required.
The areas itemised in my letter of 7 April, 2011:
1. Running late with appointments.
2. Lack of punctuality.
3. Bringing personal issues at workplace.
4. Visiting music store during toilet break and spending working hours over there.
5. Disrespecting Manager and using abusive words in front of the customers/clients.
6. Sharing personal issues with customers.
7. Not informing at the front when you add service with your running clients
Still require significant improvement to reach an acceptable standard.
You have been given appropriate instructions at your previous counselling and this letter is a final WARNING [original emphasis]. Your work performance will be reviewed again on 25/5/2011. Should it then be considered that there has not been a significant improvement in all the areas identified, I will, unfortunately, have no other alternative but to end your employment.
If you have doubts about any of the above or if you require any additional training or assistance in order to meet your job expectations please discuss it with me and I will be able to clarify matters for you and provide further training [original emphasis].
Yours sincerely,
Shahida Arabi
HR Coordinator”
[11] The final warning letter indicated that Ms Ganso’s employment would be reviewed on 25 May 2011. However Mrs Ganso only worked one day between 7 May and 25 May and in order to better assess her performance the review meeting was rescheduled to 4 June 2011.
[12] At the meeting held on 4 June Mrs Ganso adopted what I would describe as a confrontational approach. She personally attacked Mr Wong and Ms Arabi. She was repeatedly asked to cease speaking in a loud and aggressive manner. Following the meeting Global Perfumery considered her responses and her behaviour at the meeting and decided to terminate her employment. The letter of termination written by Ms Arabi stated as follows:
“8 June 2011
Dear Ida,
In my letter to you dated 09/05/2011 relating to your continued unsatisfactory work performance, I indicated that your performance level would be reviewed on 25/5/2011, which was extended for 10 days and reviewed on 04/06/2011.
I have to advise that the review has been finalised and that I consider there has been no significant improvement in all the areas in which I had previously expressed concern. As a result your services are being terminated today.
In accordance with the National Employment Standards and the applicable industrial instrument (Hair & Beauty Industry Award 2010) a period of notice of 4 weeks will be included in your termination pay. You are provided with payment in lieu of working out this notice period. This amount, in addition to pro rata annual leave, will be deposited into your nominated bank account within 24 hours of issuing this letter.
This letter should be seen as a formal advice of the end of your employment with us. Your last working day is Wednesday, 8 June, 2011.
A Certificate of Service and an Employment Separation Certificate are available upon request. [original emphasis]
We thank you for your efforts and wish you the very best for the future.
Yours sincerely,
Shahida Arabi
Human Resources Coordinator”
The issues for determination
[13] Counsel for Mrs Ganso submits that Mrs Ganso was harassed in her employment and the employer failed to accept the difficulties Mrs Ganso had in performing her work due to her back injury. Counsel also submits that when Mrs Ganso was unable to attend meetings Ms Arabi became increasingly hostile towards her and that this led to the development of a stress and anxiety related mental condition to such an extent that she was referred by Global Perfumery’s Workcover insurer for a psychiatric assessment.
[14] Counsel for Mrs Ganso contends that the performance review meetings and warnings were scheduled with such frequency that no meaningful assessment of work performance could be made. It is submitted that the complaints against Mrs Ganso were petty and insignificant, such that there was no valid reason for the dismissal and no proper procedural fairness.
[15] Global Perfumery contends that Ms Ganso was the most difficult employee of the Group’s 800 employees to manage. It contends that she was difficult to talk to, did not treat her supervisors with respect, did not cooperate in dealing with performance issues and failed to adhere to instructions from management regarding her performance. It contends that the problems in her performance included time management issues, running overtime with most of her appointments, upgrading services without notifying the front desk, coming late to work, visiting other stores during working hours and failing to follow instructions to refrain from raising personal issues with clients.
[16] Global Perfumery contends that Mrs Ganso’s performance led to a loss of customers. It submits that it attempted to address the issues with Mrs Ganso and her abrasive response gave it no confidence that her performance would improve.
Whether termination harsh, unjust or unreasonable
[17] In considering whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the factors set out in s 387 of the Act. That section provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[18] The manner of deciding the matter is intended to ensure that there is a fair go all round: s381(2). I will consider the factors in s 387 in the circumstances described above.
[19] The key issues in this matter are whether there was a valid reason for the termination of Mrs Ganso’s employment especially having regard to her medical condition, whether Global Perfumery adopted a fair and sufficient process to deal with the performance issues (including an adequate opportunity to respond and warnings) and whether the conduct and performance issues were sufficient grounds to terminate her employment. I have considered the evidence in this matter in relation to each of the relevant factors discussed below.
Section 387(a) - Valid Reason
[20] The evidence establishes that the reasons for termination are performance based and also relate to Mrs Ganso’s failure to provide constructive responses to her employer’s reasonable attempts to have her improve her performance in the workplace. I find that the issues were real; they impacted on the quality of the services provided by Global Perfumery and resulted in negative client feedback and the loss of customers. It appears that Mrs Ganso had a different approach to client service than her supervisors and when her supervisors attempted to raise their concerns with her she forcefully rejected those concerns.
[21] I am not satisfied on the evidence that the performance problems can be attributed to any health issue or disability. Mrs Ganso did have a painful back condition which inhibited her movement and normal work activities. However the performance problems were behavioural, stemming from a negative attitude, and deteriorated over time.
[22] Just as important as the performance issues was Mrs Ganso’s responses to the legitimate counselling and discipline by her supervisors. Mr Wong struck me as a diligent manager whose meticulous approach may have been interpreted as overbearing by some staff. Mrs Ganso appears to have reacted in a particularly negative way towards him and his attempts to change her behaviour. The evidence establishes that Mrs Ganso adopted an approach of resistance and defensiveness toward the allegations of her unacceptable behaviour. Even if she did not agree with the criticisms she should have made genuine attempts to understand and apply the standards of her employer and demonstrate her efforts in meeting those standards.
[23] When Mrs Arabi became involved in counselling and communicating with Mrs Ganso, she too became subject to considerable criticism from Mrs Ganso. This made attempts to modify Mrs Ganso’s attitude and behaviour more difficult. Due to Ms Ganso’s negative response to counselling, Global Perfumery considered that ongoing employment became untenable. I do not believe that Global Perfumery’s concerns or its conclusions were unreasonable. Its reasons for termination were sound and defensible.
[24] In all the circumstances I find that the performance and behaviour of Mrs Ganso constituted a valid reason for termination.
Section 387(b) - Notification of reason
[25] I find that Mrs Ganso was notified in writing of the performance issues that led to the warnings and ultimately her termination on the grounds of her responses to those performance issues. Global Perfumery adopted a careful approach by documenting concerns and conducting meetings subsequently. Unfortunately the meetings were not constructive. I find that Mrs Ganso’s behaviour was the major cause of this. She had additional opportunities to discuss the expectations of her and deal with them in a constructive manner. Her abrasive approach prevented her taking advantage of these opportunities.
Section 387(c) - Opportunity to respond
[26] Mrs Ganso had an opportunity to understand and respond to the counselling and warnings and ultimately the termination of her employment. The meetings organised for this purpose were not as productive as they might have been but nevertheless a full opportunity was provided.
Section 387(d) - Support person
[27] The employer permitted Mrs Ganso to be accompanied by a support person in the counselling and disciplinary meetings.
Section 387(e) - Warnings of unsatisfactory performance
[28] As indicated above, a number of dedicated meetings were organised to discuss Mrs Ganso’s performance preceded by letters which indicated the matters to be discussed. Warning letters were issued after these meetings.
Section 387(f) - Size of the Enterprise
[29] This factor is not relevant.
Section 387(g) - Human Resource Management Specialists
[30] This factor is not relevant.
Section 387(h) - Other factors
[31] I consider that in this case the question of the sufficiency of the reason for termination is relevant to the conclusion of whether the termination was harsh, unjust or unreasonable. The criticisms of Mrs Ganso’s behaviour and performance were not insignificant but the formal warnings were given over a relatively short space of time towards the end of the three and half years of her employment.
[32] Given this perhaps unusually short period of time between the various warnings, a question arises as to whether there was a sufficient opportunity for Ms Ganso to improve her performance and demonstrate that improvement. The reason why the period of review was short is that Mrs Ganso did not adopt a constructive approach to improving her performance. Ultimately, as I have found, the reasons for termination include Ms Ganso’s negative responses to the warnings and counselling as well as the performance issues themselves.
[33] Warnings are important because they give employees an opportunity to improve performance. If an insufficient opportunity is given prior to termination then the termination could well be unfair. In this case Mrs Ganso was not responding favourably to the warnings. The performance issues were substantive. Faced with such a negative response it was not an option to simply provide more warnings. Having regard to the additional ingredient of resistance to improvement I find that the reasons for termination, in combination, were sufficient to justify termination of Mrs Ganso’s employment.
Conclusion
[34] In all of the circumstances I find that the termination of Mrs Ganso’s employment was not harsh, unjust or unreasonable. As Mrs Ganso was not unfairly dismissed her application for an unfair dismissal remedy must be dismissed.
VICE PRESIDENT WATSON
Appearances:
Mr D. Fitzpatrick, of counsel,for Ms Ganso.
Ms S. Arabi for Global Perfumery.
Hearing details:
2011.
Sydney.
Oct 7.
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