Ms Candy Choi v Country Fire Authority T/A CFA

[2013] FWC 469

Note: An appeal pursuant to s.604 (C2013/3015) was lodged against this decision - refer to Full Bench decision dated 22 March 2013 [[2013] FWCFB 1809] for result of appeal.

[2013] FWC 469

FAIR WORK COMMISSION

DECISION

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

Ms Candy Choi
v
Country Fire Authority T/A CFA
(U2012/9766)

COMMISSIONER ROE MELBOURNE, 23 JANUARY 2013

Termination of employment.

[1] The matter arises from an application received by the Fair Work Commission on 21 September 2012 under s 394 of the Fair Work Act 2009 (the Act) by Ms Candy Choi (the Applicant) for relief in respect to the termination of her employment from the Country Fire Authority (CFA or the Respondent).

[2] I am satisfied of the following preliminary matters:

• The Applicant was employed by the Respondent from 23 November 2006 as a Business Analyst ICT Services. The Applicant was dismissed at the initiative of the employer on 20 September 2012 and was paid 4 weeks in lieu of notice. The period of notice at least meets the requirements under the applicable collective agreement and the National Employment Standards for dismissal with notice.



• The Applicant was employed continuously for a period in excess of six months. The CFA employs more than 15 employees. The employment of the Applicant was covered by the CFA Professional Technical and Administrative Agreement 2011 (the Agreement). The termination was not for reasons of redundancy but related to conduct and performance.



• The Applicant is protected from unfair dismissal.



• The termination letter of 20 September 2012 1 specified that the reasons for termination of employment include: “your inappropriate workplace behaviour, breaches of the CFA Code of Conduct and your failures to meet the required standards of performance and behaviour as detailed to you in the performance management process, the warning to you of 25 May 2012 and the final warning of 13 June 2012.”

[1] The parties elected to proceed by way of a hearing.

[2] I granted leave for the Respondent to be represented by Ms L Mumme of Herbert Geer Lawyers. The Applicant represented herself and gave evidence in support of her claim. Evidence for the Respondent was given by the following CFA managers: Mr Michael Foreshew, Executive Manager ICT Services; Ms Nicole Black, Acting Manager HR Service Centre; Ms Michelle Taylor, Diversity Consultant; Mr Darren Matthews, Coordinator On Line Services; and Ms Andria Cayas, Acting Senior HR Consultant.

Consideration of the evidence concerning conduct and performance

[3] There were no concerns about the performance of the Applicant raised prior to the 2009/10 Performance Planning and Review (PPR) process which occurred in November 2010. In the November 2010 PPR the Applicant’s managers did not assess her performance as satisfactory. However, this assessment was vigorously contested by the Applicant and after intervention from the CFA HR department the assessment was adjusted to satisfactory in March 2011 on the grounds that the feedback given at the conclusion of relevant projects undertaken by the Applicant during the year had been inadequate. However, the final PPR identified areas for improvement including in relation to communication style. The Applicant did not agree with these comments.

[4] In July 2011 the Applicant was assigned to the BDOS project. The Applicant’s manager had concerns about the Applicant’s unwillingness to follow instructions. A meeting was held between the Applicant and her manager and the Applicant was advised as to the aspects of the project in which she had performed well and the areas of concern. A client for whom the BDOS project was being conducted was happy with the Applicant’s work, however, the IT Department felt that internal communication and accountability was inadequate. In particular they were concerned that “on one occasion, when pressed for details on the assignment, Candy became aggressive, used demeaning language and then walked out of the meeting” and that “her preferred method of interaction with TS (Technical Services) staff is via email which does not build collaborative working relationships.” 2 The Applicant argues that management changed the goal posts regarding what her role was in respect to the project and that the concerns about her behaviour were “based on a whim and not substantiated.”3 Even if I was to accept the Applicant’s view that she had to deal with changing expectations, an examination of the email material4 satisfies me that management’s concerns about poor communication skills and resistance to reasonable instructions were justified. I am also satisfied that management did acknowledge that the client was satisfied with the work of the Applicant on the project.

[5] In August 2011 Mr Foreshew received an email from a third party contractor, Fujitsu, which drew attention to allegations that the Applicant had been engaging in unwanted communications with a Fujitsu consultant. Mr Foreshew was concerned about two aspects of this matter: firstly, the unwanted communications; and secondly, that the communications contained information which could potentially compromise a tendering process. The communication did not contain detailed commercial data but did contain some general information about the nature of a business case under development. A meeting took place between Ms Cayas, Mr Foreshew and the Applicant about this matter in September 2011. The Applicant was not provided with a copy of the complaint. However, I am satisfied that the Applicant was aware of the emails which were the subject of the complaint at the time of the meeting. I am satisfied that the emails 5 are inappropriate for the reasons identified by Mr Foreshew. However, this issue was not particularly serious as the Applicant did not persist with the communication and accepted the advice about confidentiality.

[6] In August 2011 Mr Foreshew assigned the development of a Personal Protective Clothing business case to the Applicant. Mr Foreshew believed that the case produced was not of an acceptable standard. He believed that it “contained poor spelling and grammar, was verbose and repetitious, it contained irrelevant information and parts of it did not make any sense.” 6 Mr Foreshew rewrote the business case and forwarded it to the Applicant on 14 September 2011.7 The Applicant responded by saying that her business case was of a high standard. Mr Foreshew asked the Applicant to review the two documents before commenting and offered to make time to review the two documents with her to help her improve her skills. The Applicant responded that she could only see “minor changes” to her document and noted that there had been “ongoing performance issues” raised with her over the last six months which she considered to be “rubbish.” The Applicant stated that she believed that the case should be presented to the diversity unit.8

[7] Mr Foreshew was cross examined about his assessment of the Applicant’s business case. Mr Foreshew was able to point to examples of each of the matters of which he complained and to establish that his version was considerably more concise and fit for purpose. I am satisfied that the Applicant’s version covered the technical issues and considerations adequately and that the shortcomings identified were not particularly serious. However, the real issue here was that the matters which the employer wanted addressed were reasonable and able to be substantiated and despite a number of attempts by Mr Foreshew the Applicant was not prepared to consider the matters raised by her manager with an open mind. The manager had to expend considerable time and energy just to get the Applicant to consider what was raised only to have the Applicant continue to deny that there was any problem. The Applicant submitted that she was never told what was so fundamentally wrong with her business case that led to it being considered unacceptable. I am satisfied that Mr Foreshew offered to assist the Applicant to understand his concerns but that the behaviour of the Applicant made this difficult.

[8] A meeting was held between Ms Cayas, Mr Foreshew and the Applicant on 16 September 2011. The Applicant made it clear that she regarded the raising of ongoing performance issues by her managers as bullying. The conclusion of the meeting was that this matter could be dealt with internally by Mr Foreshew or the Applicant could elect for it to be considered by the Diversity section of the CFA. A meeting with Ms Taylor occurred on 3 October 2011. When mediation was not able to be arranged because the manager concerned did not wish to participate the Applicant was advised by her work email to contact the Diversity section if she wished further information. 9 The Applicant says that she did not receive this email. Nothing further happened about the informal bullying complaint until April 2012 when the Applicant made further allegations. The Applicant submits that the reason why her complaint was not taken further during this period was because Mr Foreshew exerted undue influence. There is no evidence to support this submission. I consider it much more likely that the CFA was waiting for further advice from the Applicant before acting further. It is possible that the Applicant did not understand that the CFA considered that the “ball was in her court.” However, a conspiracy is the least likely explanation as to why there was no further action at this stage.

[9] Meetings were held in December 2011 and February 2012 concerning the PPR for the 2010/2011 year. The Applicant was advised that her managers did not believe her performance had been satisfactory on any of the projects which she had been assigned. The Applicant said that this was the first time these issues had been raised with her. However, in September she had complained about ongoing performance issues being raised with her over the previous six months. 10 The Applicant accepted that she may have raised her voice in the meetings and agreed that she vigorously denied that there was any basis for the performance concerns raised by her managers. Feedback was presented to the Applicant including an email from Mr Luke Corbett a Project Manager. The Applicant says that she never worked with Mr Corbett and responded by claiming that the email had been fabricated. She continued to maintain this position. The Applicant refused to sign off on the PPR which evaluated her performance as unsatisfactory. The Applicant claimed that the assessment of the managers concerned was not consistent with the positive feedback she had received from others, particularly clients of the IT Department. The Applicant gave evidence that she cannot recall seeing the final version of the PPR but the email evidence suggests that it was provided to her. I consider it likely that the Applicant received the document but in any case the Applicant was well aware of the performance concerns raised in the document. The Applicant would not sign off on the PPR because she disagreed with it. I accept that she may not have used these exact words but I am in no doubt that this was the message she communicated to the CFA. The Applicant walked out of at least one of the meetings as part of the PPR process.11

[10] In January 2012 the Applicant was asked to produce a document on the NSP project. The relevant manager, Mr Tragas, told the Applicant that the document was not of a satisfactory standard. The Applicant says that she did not rewrite the document despite being requested to do so because she considered that she had done a good job. The Applicant argues that she did not specifically tell Mr Tragas that he had to rewrite the document himself. However, the Applicant agrees that Mr Tragas refused to submit her document and that she would not agree to rewrite it because she believed it was a quality product.

[11] In February 2012 the Applicant was assigned to the Data Relocation Project. The Applicant told her manager that she did not feel that she was the right person for the project because of her lack of data relocation experience. The manager responded by stating that “there is no expectation that you work on any Data Relocation activities” and by outlining the work that was required and why he believed it was within the Applicant’s capability. The Applicant continued to resist in two subsequent emails. The manager then made it clear that he was unhappy with her refusing to perform work and gave her a further opportunity to reconsider or discuss the matter. The manager suggested he might have to do the job himself. The Applicant responded by saying that she “will take on board your suggestion to reconsider” and “I am of the firm opinion also that your are also not the right person to perform dependency analysis”. The Applicant later responded by reiterating her earlier position. The Manager then reiterated that the job did not require any data centre relocation experience and that the Applicant would have the necessary assistance. The Applicant then made it clear she would not do the work and that “if you continue to ignore the reason for my views on not taking on task 2 I am more than happy to take this up with HR.” She also stated that she considered her manager’s actions to be a form of bullying. 12 I am satisfied that the Applicant refused a reasonable direction from her manager.

[12] In April 2012 Mr Tragas told the Applicant that the CRM Marketing Proposal she had produced was unsatisfactory. The Applicant claims that Mr Tragas was intentionally trying to sabotage her work and trying to get her to do a worse version. Mr Tragas in a note at the time to Mr Foreshew says that the Applicant refused to accept any of his comments and refused to revise the document in any way. 13 The Applicant says that she refused to make changes to her document unless it was submitted in tracked changes form so that the end user could see what was her original version. The Applicant submitted that the manager who was seeking changes could have inserted tracked changes to her document if he wished.

[13] The Applicant was allocated to the VV project. The Applicant says that she originally worked on this project and then it was to be assigned to an external consultant and she was then asked on 1 March 2012 how much more effort was required to finalise the project. The Applicant queried why she was being asked to resume work on the project given the continuing concerns about her performance. 14 A meeting was later conducted about this matter where the Applicant alleges she was blamed for the problems with the project which she says are attributable to poor project management and were not her responsibility. CFA saw this as another situation where the Applicant was telling her managers what to do and was not open to feedback or reasonable direction. The Applicant argues that the relevant manager was not familiar with the details of the project and was not in a position to objectively justify his criticisms of the document produced.

[14] The Applicant alleges that her car was scratched in the car park at her apartment block in March/April 2012 and she believed that: “Michael Foreshew appeared extremely angered” by his contacts with the Applicant concerning performance issues and “due to his behaviour and demeanour, this made me suspect there could be a link between the damage done to my car and the bullying claim I raised of IT Management that included Michael Foreshew.” The Applicant said that: “I believe he (Michael Foreshew) was having difficulties containing his rage. This seriously concerned me as the level of intensity of his anger was worrying.” 15 The Applicant also believed that an attempted break in to a neighbouring apartment a few weeks later may have also been linked to her complaint.

[15] Mr Foreshew gave evidence that the Applicant told him on 30 April 2012 that she believed that he had vandalised the car because of the bullying claims she had raised. The Applicant denies that she specifically named Mr Foreshew in her conversations with the CFA at that time. However, in her bullying complaint of 18 May 2012 she says: “I strongly believe that someone who is linked to the bullying claim appears to be mentally unstable and behaving in an erratic manner.... I told her (Joanne Tregunna) that a person I was lodging a bullying claim against appeared to mentally unstable.” I accept the evidence of Mr Foreshew on this point and am satisfied that the Applicant did accuse Mr Foreshew of damaging her car. I am not satisfied that there was any reasonable basis for such an accusation. The Applicant could not produce any evidence to support her suspicions. In my view it was reckless for the Applicant to make the allegation that there was any link between the scratching of her car and the break-in in a neighbouring apartment and her work given that there was no basis for such a linkage.

[16] After the complaint about the damage to the car was raised by the Applicant the CFA made the decision to have an independent investigation into the Applicant’s allegations of bullying even though no formal complaint had been made by the Applicant. The independent investigator provided the CFA with their report on 30 August 2012 and the outcome was advised to the Applicant on 6 September 2012. The investigators interviewed the Applicant and the relevant managers. The investigator found that the claims were unsubstantiated and that there was no evidence that the behaviour of any of the Applicant’s managers had been inappropriate, unreasonable or could be characterised as bullying behaviour. 16 The Applicant was provided with an opportunity to respond to the findings prior to the CFA finalising its position in respect to the allegations. The Applicant did provide a response and Ms Taylor gave evidence it was considered.

[17] I do not consider that the Applicant has provided evidence to substantiate allegations that she was treated in a discriminatory manner or that the performance concerns were pursued as part of a campaign of bullying or harassment. I do not exclude the possibility that the Applicant may have been correct in an isolated instance that the criticism of her performance was poorly based or that in an isolated instance a manager may have developed a negative view of her behaviour and performance and this may have affected their judgment of a particular instance. However, I do not consider that this negates the validity of such a wide range of performance and conduct allegations from a range of different managers.

[18] The evidence and submissions do not lead me to dispute the outcome of the preliminary assessment of 6 September 2012 of the bullying allegations made by Angela Seach and then confirmed by Ms Black and Ms Taylor. That conclusion was:

“The documentary evidence, including feedback from the business units, provided by various witnesses does not support your claims of bullying. There is no evidence to suggest the behaviour of any of your managers has been inappropriate, unreasonable or could be characterised as bullying behaviour.”

The evidence of the Applicant did not convince me that this conclusion is incorrect. The independent investigators appear to have done a reasonable, thorough and fair job. The evidence outlined in the independent investigator’s report 17 overwhelmingly supports a conclusion that the managers’ performance concerns and actions were reasonable and did not constitute bullying or harassment. In reaching this conclusion I have read and considered the response of the Applicant to the preliminary assessment and the evidence and submissions in these proceedings.18

[19] I accept that the Applicant did find the management of her performance distressing and stressful. However, this was compounded by her failure to constructively engage. Just because performance management is stressful does not make it inappropriate or unfair.

[20] The Applicant regarded Mr Foreshew as the main instigator of unfair and unreasonable treatment. However, it is not in contention that Mr Foreshew supported the shift of the Applicant from a fixed term contract to ongoing employment in August 2009, nominated the Applicant for a mentoring program and on occasion acknowledged positive aspects of the Applicant’s work.

[21] There is a sharp difference between the Applicant and the Respondent about the performance issues in the period 2010-2012. I consider that the evidence is sufficient to support a finding that the performance of the Applicant did not meet the requirements of the Respondent. In my view the evidence also suggests that the requirements were generally reasonable and sufficiently explained to the Applicant.

Performance management

[22] On 5 March 2012 the Applicant was advised that a performance management meeting was scheduled on 13 March 2012 to discuss concerns about performance and behaviours at work. 19 A draft performance management plan was provided to the Applicant and specific examples of the performance and behaviour concerns were provided in writing. A further meeting was held on 4 April 2012. The Applicant continued to deny that there were any problems with her performance. A further meeting was held on 19 April 2012. At this meeting the Applicant was advised that a performance management plan would be put in place for three months and that there would be fortnightly meetings during that time. Direct evidence of these events was given by Ms Cayas, Mr Foreshew and the Applicant.

[23] On 8 May 2012 the Applicant and her manager Mr Tragas signed a performance management plan to address perceived unsatisfactory performance and behaviour. The Applicant argued before the Tribunal that she signed this document because she was scared about her safety. However, in her detailed and lengthy bullying complaint of 18 May 2012 she makes no mention that she signed under duress but she does mention the facts surrounding the performance management and the incident concerning her car.

[24] It is not necessary for me to find that every instance of poor performance was proven and adequately explained to the Applicant. The Respondent made it clear to the Applicant that there were concerns about her performance and about the nature of those concerns. This occurred on a number of occasions and in respect to a number of specific projects. The required changes to conduct and performance are clearly set out in the 8 May 2012 performance management plan. The requirements in the performance management plan 20 are in my assessment:

● Clear.
● Link to matters which had been raised directly with the Applicant on earlier occasions and often in relation to specific projects or incidents. In particular the performance management plan focused on the need to communicate more respectfully and appropriately and to respond more positively to direction and feedback.
● Reasonable in all of the circumstances.

[25] Even if the Applicant strongly believed that every one of the performance concerns raised earlier was unjustified the Applicant clearly understood in signing the 8 May 2012 performance management plan what was required of her in the future. I am satisfied that these were matters which were reasonable for the employer to require of an employee.

[26] The Applicant agrees that she had a new manager to report to from June 2012. She says that she produced a number of documents for this manager and that manager responded that her reports were “poor in quality and did not flow logically.” 21

First warning, Final Warning and Termination

[27] On 22 and 23 May 2012 Mr Tragas, Ms Cayas and the Applicant attended a formal counselling session. This was part of the performance management process and also because of an alleged incident on 18 May 2012. The Applicant was given an opportunity to respond to the allegations about the incident of 18 May 2012. Ms Cayas took detailed notes of the various meetings and generally speaking the evidence of the Applicant and cross examination allowed me to conclude that these contemporaneous notes can generally be relied upon.

[28] On 25 May 2012 a first written warning was issued to the Applicant. 22 The warning stated that:

“CFA makes it very clear to you that your behaviour to date has not been to an acceptable standard. There are certain conditions/expectations that CFA have in relation to your future performance. They are as follows:

• That you take immediate steps to ensure that both your written and verbal communication as well as your conduct is in a professional manner at all times, representing CFA in a professional and positive way to both internal and external stakeholders



• That you behave in a courteous and respectful way towards co-workers and line managers at all times



• That you raise issues respectfully and appropriately



• That you ask for, provide input to and accept feedback provided on behaviours and performance.”

[29] The Applicant says that the frequent meetings concerning performance between February and May 2012 caused her stress and she visited her general practitioner on seven occasions during this period.

[30] On 13 June 2012 a further formal performance counselling session was held with Mr Tragas and Ms Cayas. Two further incidents were raised. On 6 June 2012 the Applicant was alleged to have spoken loudly over the top of others, refused to participate and walked out of the meeting before it had concluded. On 7 June 2012 the Applicant allegedly terminated an internal meeting without having addressed the issues raised and refused to undertake a requested task. The Applicant was given an opportunity to respond to the allegations. On 13 June 2012 a final written warning was issued. The warning repeated the expected future behaviours outlined in the first warning. The final warning advised that dismissal could result should the behaviour continue. 23

[31] On 25 June 2012 it is alleged that the Applicant shouted at a colleague and slammed his office door and acted in an unprofessional and inappropriate manner. The Applicant says that the incident occurred on 4 July 2012 and that the colleague had slammed the door and called her a nutbag. The Applicant says that 25 June 2012 is a day on which she gave a statement to the investigators of her bullying complaint. It is not necessary to determine the issue of the date of the incident.

[32] I am satisfied that the behaviour of the Applicant on 18 May 2012 justified a warning. The Applicant says that she walked out of the meeting because she was tired and believed that she was being blamed for incomplete work that was not her fault. 24 The Applicant also responded inappropriately in an email to Mr Tragas.25 In response to her manager’s email that he found her behaviour in walking out on the meeting “completely inappropriate and inexcusable” the Applicant said “I have made a conscious attempt to be more controlled in my response to listening to BS (bullshit)”. The Applicant says that she walked out of the meeting to protect her health however she accepts that she did not raise this at the time. There is no evidence that the Applicant is reluctant to articulate her concerns directly at the time they arise. In the context of the performance management plan the Applicant’s explanation was inadequate. I also accept the evidence of Ms Cayas that the Applicant spoke loudly over the top of others.

[33] I am satisfied that, having regard to the performance management plan and the earlier warning, the behaviour of 6 and 7 June 2012 justified the issuing of the final written warning. Again the Applicant’s explanation for walking out on the meeting because she had a headache and was tired of having a discussion which she believed was going nowhere is inadequate when considered in context. 26 I am also satisfied that the Applicant spoke loudly over the top of others at the meeting on 6 June 2012 and also refused Mr Wright’s request to undertake a task on 7 June 2012. I am satisfied having considered the evidence that the request was reasonable and that the Applicant made the statement that Mr Wright could complete the task himself and that this statement was inappropriate.

[34] I am satisfied that the Applicant received and understood the contents of the final warning letter issued on 15 June 2012. 27 The Applicant was clearly on notice of the behaviour which could result in the termination of her employment.

[35] A meeting was held between the Applicant and Mr Wootten, Ms Seach and Ms Black on 6 September 2012. The Applicant was advised of the outcome of the investigation into the bullying allegations. The Applicant was advised that she could respond and did so in writing on 7 September 2012. The Applicant was then advised of the outcome of the investigation into the alleged incident of 25 June 2012 and advised that she had the opportunity to respond which she did in writing on 6 September 2012.

[36] Direct evidence of what occurred on 25 June 2012 was provided by the Applicant and by Mr Matthews. Mr Matthews made contemporaneous notes which were attached to his statement. 28 Mr Matthews did not see the Applicant slam the door but he did hear the Applicant shouting very loudly, did hear the door slam and then immediately after that saw her walking from the door to her desk a short distance away. The Applicant accepts that she raised her voice. The Applicant denies that she slammed the door and alleges that Sam Leung called her a nutbag and slammed a door first. I am satisfied that the Applicant did slam the door and yelled at Mr Leung in an abusive manner. I also accept the evidence of Mr Matthews that the door was only slammed once. I am unable to conclude whether or not Sam Leung called the Applicant a nutbag. Notwithstanding this point I accept Mr Drew’s finding that the behaviour of the Applicant considered in context was unacceptable and unreasonable conduct. I accept that the Applicant says that the incident took place on a different date but whether this is true or not does not affect my findings.

[37] On 6 September 2012 the Applicant was provided with a letter 29 which confirmed “the outcome of the recent investigation into allegations concerning your behaviour and conduct during an incident that occurred on 25 June 2012. As you are aware based on the previous instances of unsatisfactory performance and behaviour it was determined that this incident would be dealt with in accordance with the misconduct process (clause 21) of the CFA Professional Technical Administrative Agreement 2011.” The outcome of the investigation by Doug Drew Regional HR Manager was that the allegations were substantiated and that they constituted a breach of the CFA Code of Conduct. A copy of the investigator’s report was provided to the Applicant. The Applicant was advised that the CFA was proposing termination of employment as the discipline outcome. The Applicant was provided with an opportunity to respond.

[38] On 20 September 2012 the Applicant was advised at a meeting that her responses to the bullying investigation and the investigation into the alleged incident of 25 June 2012 had been considered. The CFA advised the Applicant that having considered the responses the CFA did not change their findings and had decided to terminate her employment. The Applicant was provided with the opportunity to have a support person present but declined to do so.

[39] The Applicant agrees that she was also provided with an opportunity to have a support person present at the meetings which led to the first warning and the final warning. The Applicant declined to have a support person present.

Submissions

[40] I have considered the submissions of the parties. I do not consider it necessary to comment on every aspect of those submissions.

[41] The Applicant was critical in her submissions about the delays in her 2009/10 and 2010/11 performance assessments. I do not regard this as affecting the validity of the reasons for termination.

[42] The Applicant argues that because she did not sign off on the 2010/11 PPR the assessment should not be accepted. I do not accept this argument given the evidence to support the assessment provided by the CFA.

[43] The Applicant argues that the evaluation of her work performance was not measured using clear and transparent assessment criteria. I am not in a position to judge whether or not this was true in every case, however, overall I was satisfied that the performance management plan and the performance assessments did use clear and transparent assessment criteria. Although it was true that the feedback on performance may not have been timely during 2009/10 the evidence shows that there was regular feedback on performance during 2011 and 2012.

[44] The Applicant raises the lack of power balance between her and her managers. She asserts her right to disagree with management directions and assessments of her performance. I agree with the Applicant that in a modern workplace it is consistent with the objective of both fairness and productivity that employees provide feedback about the best way to achieve outcomes and objectives and that employees should be able to appropriately challenge and question. However, debate cannot continue indefinitely without being detrimental to productivity and efficiency. There comes a point when reasonable directions must be issued and followed. The Applicant in my view unreasonably and consistently failed to constructively deal with feedback and direction. The Applicant submits that in many cases the feedback provided by managers was incorrect or not based upon evidence. In many of the instances which were the subject of evidence in this proceeding I am satisfied that the managers had a reasonable basis for the feedback they provided. This does not mean that every aspect of their views was beyond question but it does mean that there was an obligation upon the Applicant to engage constructively and in many cases this did not occur.

[45] The Applicant points to the positive assessment by external clients and cites the BDOS project as an example. This is not in contention however CFA management have the view that the assessment by the clients is not the only issue which determines performance. There are also requirements for the IT team to operate effectively and efficiently and consistent with its objectives. It is therefore possible for there to be issues with performance even where external clients are satisfied.

[46] The Applicant submits that during the performance management process she was constantly criticised, was faced with a number of attempts to sabotage her work, was isolated and kept out of the loop particularly on the data relocation project, and was subject to unfounded negative accusations and innuendo and sarcasm. 30 I have no doubt that the process was stressful for the Applicant. The CFA produced detailed contemporaneous notes of many of the meetings and the Applicant herself produced many of the email communications. It is therefore possible to conclude that on occasion managers did express their frustration with the Applicant and made comments which reflected negatively on the Applicant. I am satisfied that the amount of critical comment was to a significant extent due to the refusal of the Applicant to engage constructively with feedback which led to managers having to repeat their position with increasing emphasis. The evidence does not support the contention that the Applicant was kept out of the loop on the data relocation project. I am satisfied that the managers did not require changes to work produced by the Applicant in order to sabotage her work.

[47] The Applicant maintains her view that the performance complaints are part of a bullying process by her managers and she rejects the conclusions of the investigation into her informal bullying complaint and claims that the investigation must have been influenced by Mr Foreshew to come to the conclusion that it did. The Applicant maintains that the investigation report does not adequately justify its conclusions. For the reasons discussed earlier I reject these submissions.

[48] The CFA provided a comprehensive submission which it says demonstrated that there was a valid reason for termination and that the process of the performance management and of the termination was procedurally fair.

Was the termination unfair?

[49] I am required by the Act to have regard to the following in determining whether or not the dismissal was unfair:

“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.”

[50] I am satisfied that the Applicant’s performance was not satisfactory. The Applicant did not communicate in an appropriate way with her managers, the Applicant did not respond appropriately to direction, and the Applicant did not respond appropriately to feedback. I am satisfied that the CFA ensured that the Applicant was aware of the performance concerns and provided the Applicant with adequate opportunities to improve her performance and that the Applicant failed to improve her performance. I am also satisfied that the conduct of the Applicant was unreasonable. The Applicant received a written warning about unsatisfactory conduct. I am satisfied that the first warning was appropriate and was understood by the Applicant. The conduct was repeated and the Applicant received a final written warning. I am satisfied that the final written warning was appropriate and was understood by the Applicant. The Applicant then repeated the conduct. The final incident in itself was not particularly serious and would not in itself justify termination of employment. However, the final incident followed a first and final warning for similar conduct. I am satisfied that there was a valid reason for termination based upon both conduct and performance.

[51] I am satisfied that the Applicant was notified of the reason for termination, had the opportunity to respond, and was given the opportunity for a support person at the relevant meetings. The CFA is a large employer with dedicated human resource management specialists and so these factors did not influence the procedures followed.

[52] I have considered the submissions of the Applicant concerning the impact of the termination. The Applicant was employed for some six years and she has a substantial mortgage. Despite significant efforts over the past few months she has not been successful in finding new employment. The Applicant was committed to the CFA and was dedicated to her work. I have no doubt about her high level of technical competence and her diligence. These positive features were acknowledged by others in some of the material before me. The problems with the Applicant’s conduct and performance relate to inappropriate responses to the feedback and direction of her managers. It does not appear that the Applicant was wilfully antagonising others or was generally aware of the impact of her behaviour.

[53] The validity of the reasons for termination in this case are strong and the process was fair and the mitigating factors are insufficient to render termination a disproportionate response.

[54] The termination was not harsh, unjust or unreasonable.

[55] An Order will be issued dismissing the Application.

COMMISSIONER

Appearances:

The Applicant represented herself.

Ms L Mumme of Herbert Geer Lawyers represented the Respondent.

Hearing details:

2013

Melbourne

January 16 and 17

 1   Exhibit C 2, Attachment CC201.

 2   Exhibit C 2, Attachment CC213.

 3   Exhibit C 2 at point 14(ii).

 4   Exhibit CFA 3, Attachment AC1.

 5   Exhibit CFA 6, Attachment MF4.

 6   Exhibit CFA 6 at paragraph 16.

 7   The Applicant’s business case is at Exhibit CFA 6, Attachment MF2 and Mr Foreshew’s version is Attachment MF3.

 8   Exhibit C 2, Attachment CC214.

 9   Exhibit CFA 4, Attachment MT5.

 10   Exhibit C 2, Attachment CC214.

 11   Exhibit C 2, Attachment CC302.

 12   Exhibit C 2, Attachment CC217.

 13   Exhibit CFA 6, Attachment MF8.

 14   Exhibit C 2, Attachment CC304.

 15   Submissions of Applicant at point 17 and 18.

 16   Exhibit CFA 4, Attachment MT6 at page 22.

 17   Statement of Michelle Taylor, Attachment MT6.

 18   Statement of Michelle Taylor, Attachment MT7.

 19   Statement of Applicant, Attachment CC100.

 20   Statement of Michael Foreshew, Attachment MF12.

 21   Exhibit C1 at point 20.

 22   Statement of Applicant, Attachment CC102.

 23   Statement of the Applicant, Attachment CC103.

 24   Notes of Andria Cayas in Statement of Andria Cayas, Attachment AC7 and AC8.

 25   Statement of Andria Cayas, Attachment AC6.

 26   Statement of Andria Cayas, Attachment AC10.

 27   Exhibit C 2, Attachment CC103.

 28   Exhibit CFA 7, Attachment DM1 and DM2.

 29   Statement of Applicant, Attachment CC203.

 30   Exhibit C 1 at paragraph 21.

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