Ms Kathryn Erna Pearson v Haljent Pty Limited T/A Tanby Foods
[2011] FWA 5853
•2 SEPTEMBER 2011
[2011] FWA 5853 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kathryn Erna Pearson
v
Haljent Pty Limited T/A Tanby Foods
(U2010/11345)
DEPUTY PRESIDENT SWAN | ROCKHAMPTON, 2 SEPTEMBER 2011 |
.
[1] Ms Kathryn Pearson (the applicant) has lodged an application pursuant to section 394 of the Fair Work Act 1999 (the Act) alleging that she was unfairly dismissed by Haljent Pty Ltd T/A Tanby Foods (the respondent).
[2] The applicant was dismissed for unsatisfactory work performance by the respondent.
Background to Respondent’s business
[3] The respondent operates a food manufacturing and distribution business. The manufacturing division has approximately 26 cold, dry and chilled seafood and meat products and distributes to approximately 146 distributors within Australia.
[4] The respondent states that its membership of National Food Distributors of Australia’s buying group is conditional upon it being accredited with the Hazard Analysis and Critical Control Point (HACCP) and/or Safe Food Products Queensland (SFPQ). The applicant says that the respondent does not fit the definition in Safe Food Legislation.
Applicant’s Claim
[5] Ms Pearson commenced employment with the respondent in May 2007 in the position of Credit Controller,
[6] At the start, there was no written position description given to the applicant. She worked 45 hours per week and was responsible to Ms Carmel McLeod, the respondent CEO.
[7] In the second year of her employment, her position changed to that of System Controller. Part of this role was to oversee audits by SFPQ. This was to ensure compliance with basic safe food procedures.
[8] The applicant had not found her workplace pleasant and she had found Ms McLeod intimidating.
[9] In September 2009, the applicant had approached another employer seeking work. Ms McLeod became aware of this and requested that the applicant continue working with the respondent. Ms McLeod advised that there was two years of work to complete with the respondent which involved the introduction of the HACCP program. The applicant said she was a keen supporter of the HACCP program and had run a business previously which had delivered all aspects of this program.
[10] Ms McLeod denied that she requested that the applicant stay at the respondent’s workplace as she had noticed that the applicant had seemed unhappy at work. She agrees that the applicant was advised of the respondent’s desire to implement the HACCP program, but says she did not tell the applicant that there was a further two years of work to be done.
[11] The applicant states that the respondent failed to introduce the HACCP program.
[12] The applicant had previously made an application to WorkCover. The claim was rejected and the decision was reviewed by QComp. The applicant was again unsuccessful.
[13] It is at around this time that the applicant says she became aware of the respondent’s views regarding her work performance.
[14] An incident occurred in January 2010 when the applicant had applied to SFPQ to have two work trucks accredited. SFPQ had asked the applicant to provide more documents. This occurred and the trucks were issued with accreditation two days later. However, the respondent took exception to what had occurred.
[15] In 2009, the respondent had hired a consultant to set up the Driver Fatigue Management process. The applicant and Mr Franceschin (warehouse manager) worked with the consultant.
[16] The applicant understood that Mr Franceschin was responsible for the program. He had signed all documentation with regard to it and the applicant saw her role as more administrative in nature.
[17] The respondent had claimed that during the auditing of the program, Mr Franceschin was unable to find all appropriate documents and had blamed the applicant for this.
[18] During the applicant’s three years of work with the respondent, she had never been the subject of adverse comments from the respondent.
[19] Upon taking leave from work in May 2010, there was an unexpected SFPQ audit undertaken.
[20] Out of that audit, the respondent received two Corrective Actions (CARs) at a Major level. SFPQ has only two levels of CARs. The lower level is Major and the upper level is Critical.
[21] Usually, if a Major CAR occurs, then time is given to correct it. If that is not done, then a ‘show cause’ may ensue to explain why accreditation should not be withdrawn. The CARs were rectified in time and the applicant believed that to be the end of the matter.
[22] As a consequence of that matter, the applicant received a first and final warning from the respondent. The respondent put to the applicant that the business was put at risk by the failure and that all employees could have lost their jobs.
[23] Upon returning to work on 7 June 2010, Ms McLeod asked to meet with the applicant to discuss issues surrounding the audit.
[24] On 8 June 2010, Ms McLeod requested another meeting with the applicant which was termed a “performance” meeting, but the applicant was given no further information as to what to expect from the meeting.
[25] At this meeting the applicant was given a new Position Description which advised her that she was on a Performance Management program and she had to sign a document to that effect. The period of the program was to last one month. In effect, the applicant was given one month in which to improve her work performance.
[26] The respondent had kept a record of the applicant’s responses at the meeting but the applicant claims that she did not see the record until some four weeks before the hearing.
[27] During the performance management period, the applicant says that she became very stressed. She attempted to comply with all requests made by the respondent, but there was too much required of her.
[28] The applicant says she failed to understand why, under a Performance Management program, the respondent sought to give her a new Position Description. In effect, she was not being evaluated on her current work performance, but under a new set of criteria.
[29] With the work load given to the applicant, she says that she would have needed 15 to 25 days to complete that work. To her understanding, this had to be completed, along with her other duties within a period of 22 days.
[30] The applicant prepared a list of the work she had completed by the time of the second meeting with the respondent under the program. However, she says that the meeting only lasted a couple of minutes and the issue were not addressed.
[31] The applicant’s strong complaint is that while she was under a Performance Management program, she was still required to do two jobs.
[32] The applicant alleges that she had overheard a conversation between Ms McLeod and Mr Newton (Ms McLeod’s husband and respondent General Manager) to the effect that they had to go through the motions of a one month review process with the applicant in order to cover themselves in the event of a court case because of the applicant’s pending termination of employment.
Background to Respondent’s response
[33] The respondent says that the reason for the applicant’s dismissal was her continued poor work performance.
[34] The meeting held between Ms McLeod , Mr Newton, Ms Carter and the applicant on 7 June 2010 was held for the purpose of discussing the applicant’s work performance concerns. The applicant was given documentation detailing those concerns in the form of an Employee Performance/Disciplinary Issue Form and a meeting discussion agenda.
[35] The applicant had been given an opportunity to respond to those concerns on that date. Notes of the meeting were taken by Ms Carter.
[36] The respondent says that after raising the issues of concern with the applicant, she was given her first and final warning.
[37] The applicant was given a period of one month in which to improve her work standard. The applicant was given a specific task to perform within the one month period which was that all manuals and documents be compiled and/or completed to an acceptable standard.
[38] The applicant was asked to supply a time frame in which she believed that this could be achieved and she nominated a period of between 16 and 25 working days.
[39] Further review meetings were conducted with the applicant on 17 June 2010, 24 June 2010 and 1 July 2010.
[40] At each meeting, the applicant was advised that her performance had not improved.
[41] On 8 July 2010 the respondent determined and advised the applicant that she should be asked to respond as to why her services should not be terminated.
[42] On 26 July 2010, the respondent advised the applicant that her employment would be terminated with notice. [EX 16 - CAM-29]
Ms McLeod’s evidence
[43] Ms McLeod is a director and shareholder of the respondent business.
[44] Ms McLeod says that after the applicant had worked for a year with the respondent, she was assessed as not being competent to perform her duties as Administration Controller. The applicant had been unable to reconcile the accounts of the respondent and they were required to obtain the services of an accountant to finalise the accounts.
[45] The respondent did not at that point formally counsel the applicant nor take steps to terminate her employment.
[46] An alternative position was offered to the applicant in around July 2008 - ie that of Administration, Staff Recruiting and Systems Controller.
[47] As the applicant had a range of experience from prior employment, she was given the role of ensuring respondent compliance with Driver Fatigue Management and SFPQ systems.
[48] Before a business can legally supply meat and meat products in Queensland, it must be accredited with SFPQ.
[49] SFPQ conducts regular audits to ensure the production and processing of primary produce is carried out in a way that makes the produce fit for human or animal consumption.
[50] The respondent had been accredited with SFPQ since May 2000.
[51] ON 3 June 2010, the respondent was advised by SFPQ that a compliance audit would be conducted on 4 June 2010. The respondent had always passed the SFPQ audits.
[52] The audit of 4 June 2010 produced a “major” Corrective Action Request. This audit stated:
(a) there was no evidence of food safety training records for staff;
(b) there was no evidence of management review activity taking place; and
(c) the manual required updating to reflect current legislation. [Ex 16, CAM-6]
[53] Ms McLeod stated that a major Correction Action Request is issued for serious non-conformance which requires corrective action within a period of 10 days.
[54] The respondent was very concerned about this outcome and apprehensive about losing its accreditation.
[55] This issue needed immediate rectification.
[56] Ms McLeod, being concerned as to whether the applicant was performing her duties appropriately, reviewed the files which had been worked on by the applicant. Ms McLeod says that the applicant had not responded to correspondence she had received from SFPQ concerning non-compliance.
[57] As the respondent employs a number of transport drivers in its distribution division, it is required to be accredited with the Australian National Transport Commission (ANTC).
[58] From time to time the respondent is audited by ANTC.
[59] Part of the applicant’s duties was to ensure that the respondent was compliant with ANTC’s requirements.
[60] On 27 May 2010, an audit was conducted by ANTC and the respondent failed the audit.
[61] The applicant was away from work when the Ms McLeod directed Mr Franceschin to correct the non-compliant issues.
[62] As a consequence of the two issues connected to the applicant (the SFPQ and ANTC audits), the respondent sought to formally raise its concerns with her.
[63] At the meeting of 7 June 2010, the respondent raised issues with the applicant and supplied to her in writing its concerns.
[64] The applicant was asked to respond to these concerns at that meeting. Notes were taken of the applicant’s responses. A copy of those notes was given to the applicant on 8 June 2010. A formal warning was also issued to the applicant at this meeting.
[65] On 8 June 2010, the respondent met with the applicant and asked her to sign a document agreeing to participate in a month long Performance Management Program.
[66] The applicant was advised that it would meet weekly with the applicant to review her progress. The applicant was also advised that she could have a support person present with her at these meetings.
[67] The applicant was given a position description for the Performance Management Program. Ms McLeod said that the position description had been formulated with the assistance of the applicant.
[68] The applicant was not told that she had to complete all the tasks set out in the program but that the position description “was only meant to be of assistance and guidance to her during the performance management”. [Ex 16 - point 48]
[69] On 10 June 2010, the applicant provided to the respondent a list of estimated time frames in which she believed she could complete the tasks.
[70] At the meeting held on 17 June 2010, the applicant was asked if she would like to work in a different role with the respondent as she had not been performing well in the current role. This offer was rejected by the applicant on the grounds that she still wished to be involved with the HACCP program when it eventuated. Further meetings ensued over the one month period and on 8 July 2010, the respondent met with the applicant to discuss its overall assessment of the program.
[71] At that meeting, the applicant was advised that her work performance had not improved, given that:
“(a) she displayed a lack of understanding of the information and detail required to implement programs, policies and procedures;
(b) the quality of the work she presented was not of the standard expected of a Systems Controller;
(c) she did not sufficiently complete program manual(s);
(d) she failed to correctly maintain a document filing system;
(e) failed to correctly identify and detail critical information from key staff members regarding Food Safe and Hygiene Training programs; and
(f) she failed to provide documentation to management for review when it was requested”. [Ex 16 - point 53]
[72] The applicant was afforded an opportunity to respond to these claims and was to provide her response by 12 July 2010.
[73] A written response was provided by the applicant on that date. On 14 July 2010 the applicant was away from work on sick leave and did not return to work until 19 July 2010 when she stayed at work for one hour and then returned to work on 20 July 2010.
[74] On 26 July the applicant attended work and the respondent met with her and advised her of its decision to terminate her employment. Ms MsLeod detailed why she believed the applicant had not been unfairly dismissed:
“I do not believe that Kathryn was unfairly dismissed by Tanby Foods given that:
(a) there was a valid reason for Kathryn’s dismissal relating to her capacity or conduct;
(b) Kathryn was provided with a written warning clearly notifying her of the areas of concern regarding her performance and/or conduct;
(c) Kathryn was provided with an opportunity to respond to the warning and was given an opportunity to improve her work over a month long performance review period;
(d) throughout the performance review period, Kathryn was always told that she could have a support person attend with her to assist in any of the discussions relating to her employment and performance review process;
(e) Kathryn was warned that her performance was unsatisfactory well in advance of being dismissed;
(f) Kathryn was notified of the reasons for dismissal.” [Ex 16 - point 61]
Applicant’s submissions
[75] A major complaint of the applicant is that, during the Performance Management Program, the time frame in which she was required to perform a range of duties was unreasonable. The applicant had believed that she could complete the tasks required of her in up to 25 days. However, there were only 21 working days within the respondent’s time frame.
[76] The applicant held the view that, notwithstanding the respondent’s drawn out Performance Management Program, she was set up to fail. The areas that were to be improved upon by the applicant during her performance management period related to issues which had never been raised with her before. None had been issues covered in the first and final warning.
[77] One of those issues related to the Forklift Manual. The applicant says that the warehouse manager, Mr Franceschin was happy with the manual. Unfortunately, for the applicant, Ms McLeod became involved in the process and held it up for months and changed its nature. The matter then became an issue for the applicant to rectify.
[78] A complaint had been made about the applicant’s apparent lack of attention to detail.
[79] The applicant pointed out that she was paid just over $37,000 for a 38 hour week and was expected to perform her duties at an advanced level.
[80] The respondent had asked the applicant to do current procedures, policies and forms and put together a system to manage. The applicant says that this would amount to an enormous body of work which would take months to complete.
[81] The applicant has been asked to process credit card transactions. The example, by way of complaint by the respondent, provided during the hearing related to a one off situation where the applicant was attempting to assist a customer.
[82] The applicant believed that Mr Franceschin was responsible for the Driver Fatigue Management process. He was the officer who signed off on all matters related to it. The applicant was adamant that she was not responsible for this area of work.
[83] With regard to the SFPQ Audit, the applicant states that she was able to rectify any problems which had occurred quickly and the emphasis placed upon her shortcomings in this regard were exaggerated.
[84] Many of the issues raised with the applicant as examples of her poor work performance lacked specificity as to what the applicant was actually required to do.
[85] There had been no real attempt made by the respondent to help, support or train the applicant to be able to perform at the level required by the respondent.
Respondent’s Submissions
[86] The respondent’s submissions go to points already raised in Ms McLeod’s evidence. Primarily the submissions highlight the steps taken by the respondent to draw matters to the attention of the applicant; to provide timeframes for the applicant to respond to concerns raised and then to make a determination based upon a range of factors as to whether to terminate the employment of the applicant.
[87] The respondent points to occasions when the applicant had previously been definitive on a point, only to qualify the point later and say that at best she held the impression that particular words had been said to her by the respondent. An example of this occurred when, upon making application to Fair Work Australia the applicant had stated that she had to agree to sign her “Position Description for Performance Warning” or she would be dismissed. Upon being cross examined in this hearing the applicant said those words had not been said to her by the respondent, but rather it was the impression she had gained from the manner in which the respondents were conducting themselves at the time.
[88] The applicant had called witnesses to support her application. Those witnesses are Mr Sharpe and Ms Firth who were former employees of the respondent.
[89] Mr Sharpe was the applicant’s flatmate. Because of the nature of his work with the respondent, Mr Sharpe only saw the applicant at work on occasions.
[90] Ms Firth gave evidence around tensions and stress being a feature of work in the respondent’s workplace.
[91] The respondent submits that very little could be taken from the evidence of these two former employees of the respondent. Save for their views generally about the workplace and certain persons at the workplace, there was little evidence that went to the issues under consideration in this hearing.
[92] The applicant had claimed that when she was undergoing the one month Performance Management Program, she was required to undertake new duties as well as continue to perform her existing duties and this made the process inherently unfair.
[93] The applicant had set the time frame during which she would be able to complete the QA manuals. While the applicant had said it could take 25 days to complete the process, there were only 22 working days from the date the applicant was first placed on performance management. The respondent believed it to be reasonable to expect that the manuals would either be completed to an acceptable standard or significantly completed to an acceptable standard at the end of the performance review.
[94] The difficulty with those submissions is that the applicant confirmed that no-one actually told her that she had to complete all of the tasks in the Position Description within a one month period. The applicant also accepted that the Position Description was a guideline only of the type of tasks which might be asked of an employee.
[95] What was critical was that the applicant complete the Manuals because this is where the respondent had fallen down when audited by outside bodies which made decisions as to whether or not to accredit the respondent’ business.
[96] The applicant had alleged that the respondent was only “going through the motions” of performance appraisal when in fact they had made their minds up to terminate her employment. This allegation required consideration.
[97] The applicant had asserted that she had overheard a conversation between Ms McLeod and Mr Newton to the effect that they were required to follow a particular process with the applicant in order to avoid potential court action presumably because they were going to dismiss her services.
[98] Ultimately, through the course of cross-examination, the applicant agreed that she was in the front reception area when the conversation allegedly took place. There was a door between the front reception and the stairwell. The door was shut and there was a wall separating her from Ms McLeod and Mr Newton. She also agreed that she could not hear what Ms McLeod was saying nor could she see either Ms McLeod or Mr Newton.
Consideration of Evidence
[99] The primary witnesses in this matter, the applicant and Ms McLeod presented as plausible and genuine witnesses.
[100] This is a case of termination of employment because of alleged poor work performance of the applicant. The matters to be determined here require a consideration of events which had evolved at the respondent’s workplace over some years.
[101] The applicant was in receipt of a very average wage rate for the hours worked. Normally, it would be presumed that the wage rate paid to an employee reflected the responsibilities attached to the job undertaken.
[102] The applicant had a wide range of duties. There were specific responsibilities and there were also a range of very general responsibilities attaching to the position held by the applicant.
[103] The criticism levelled at the applicant’s handling of the SFPQ accreditation by the respondent was warranted, in my view. Notwithstanding that the matter was able to be resolved quickly, it is understandable why the respondent was very concerned at being issued with major CARs. The respondent had never received an adverse audit before and to suddenly receive two CARs from the one audit would be worrying for the respondent given there was a possibility that its accreditation could be withdrawn.
[104] The Driver Fatigue Management program was problematic for the applicant as well. While Mr Franeschin had the ultimate authority to sign off on all matters related to the program, there was also a responsibility on the part of the applicant to ensure accreditation was achieved. The applicant appeared to hold the view that one person was solely responsible for the audit and that it was not her. It suggests in my view an underestimation on the applicant’s part that she had duties to perform and she was a part of a team.
[105] During the month when the applicant’s work performance was being reviewed, she claims that she was given different duties to perform as well as being required to perform her existing duties. Ms McLeod’s response to that was as follows:
“Kay had made comment previously that she didn’t wish to take up an administration role in our organisation. We had failed the two audits and wewere really wanting Kay to focus on company manuals to identify and demonstrate that she had the skills and understanding to put these manuals together.” [PN 1401]
[106] Within that context, the views expressed by the respondent are not unreasonable. There was a priority for the manuals to be up to date because of the failed audits. In my view, because the applicant had not attributed as much weight as was warranted to the two failed audits, the emphasis on attempting to resolve the problem with the manuals was not given the urgency which was required.
Consideration
[107] 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;
(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.
Considering the s.387 criteria:
s.387(a)
[108] A valid reason existed for the termination of the applicant’s employment with notice.
[109] In order to put into perspective the issues which had brought about the termination of the applicant’s employment, it is important to understand the history of the applicant’s employment. Without that knowledge, it would be difficult to see why the respondent was put into the position of issuing the one month Performance Management Program.
[110] The history of the employment relationship has been cited previously and it is not a history without significant difficulties. The applicant was not dismissed because of the two failed audits, however, it would be unrealistic to say that those events did not underpin the concerns being expressed by the respondent about the applicant’s ability to perform her duties appropriately.
[111] Against that background, I have accepted that the respondent set tasks for the applicant to perform during the one month Performance Management Program in order to assess her ability to respond to the requirements of the employer. That these tasks were not identical to the tasks she had already been performing in my view was at the prerogative of the respondent.
[112] I have accepted the respondent’s submissions that because the applicant had not been disposed to performing the tasks she had previously performed, the respondent was assessing her ability to demonstrate that she had the skills and understanding to do these tasks.
[113] The respondent’s determination that the applicant had failed that test was not unreasonable, in my view.
s.387(b)
[114] The applicant was notified of the reason for her dismissal.
s.387(c)
[115] The applicant had been given ample opportunity to respond to the various issues raised by the respondent.
s.387(d)
[116] I have accepted that the applicant was, on all occasions, invited to have a support person present with her.
s.387(e)
[117] The applicant had been warned about her unsatisfactory performance generally and specifically.
s.387(f)
[118] There were no submissions around this point.
s.387(g)
[119] The respondent had sought human resource advice from an employer organisation.
s.387(h)
[120] There are no other reasons to be put forward.
[121] I dismiss the application.
DEPUTY PRESIDENT
Appearances:
Mr Byrne instructed by Mr Schroder for the Applicant
Mr Mossman for the Respondent
Hearing details:
2011
Rockhampton, Yeppoon
11 & 12 April, 30 & 31 May
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