Ms Sharron Marie Bowen v Chep Australia Ltd

[2011] FWA 3316

[2011] FWA 3316

FAIR WORK AUSTRALIA

DECISION

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

Ms Sharron Marie Bowen
v
Chep Australia Ltd
(U2010/12087)

COMMISSIONER WILLIAMS PERTH, 3 JUNE 2011

s.394 - Application for unfair dismissal remedy.

[1] This matter involves an unfair dismissal application made by Ms Sharon Bowen (the Applicant) under section 394 of the Fair Work Act 2009. The Respondent is Chep Australia Ltd (Chep).

[2] The matter was the subject of a conciliation conference before a Fair Work Australia conciliator however the matter was not resolved and so has been referred for determination.

Introduction

[3] CHEP operates a service centre at Canning Vale in Western Australia. At that centre approximately 48 employees along with 10 contractors perform repair and maintenance duties on wooden pallets and other CHEP products. A further three employees are engaged on support and administrative duties.

[4] The centre operates three shifts over a 24 hour period five days a week. Each shift has a Supervisor who is responsible for the operations of that shift and is usually assisted by a leading hand. The performance of the three shift Supervisors is overseen by the Production Supervisor. The Production Supervisor reports to the Respondent's Regional Operations Manager.

[5] Ms Bowen was employed in September 2007 as the Day Shift Supervisor.

[6] Ms Bowen's employment was terminated on 30 August 2010 following a show cause meeting with her regarding her employment.

[7] The Respondents letter of 30 August 2010 to Ms Bowen says the company's decision to terminate her employment arose as a result of the following,

• continued concerns since December 2009 regarding her performance and conduct,



• her failure since March 2010 to meet the expected level of performance agreed with her in writing,



• the issuance of a formal written warning on 19 May 2010 regarding her poor work performance and failure to obtain the required results in the 29 March 2010 performance plan,



• the issuance of a final written warning on 8 July 2010 regarding ongoing poor work performance and failure to achieve the required results in the performance plan dated 24 May 2010, and



• a complaint received on 7 July 2010 regarding the making of inappropriate and offensive comments.

[8] Ms Bowen's employment was terminated with pay in lieu of notice. At the hearing of this matter Ms Bowen was represented by her mother Ms C Mlynoskyj. Both Ms Bowen and Ms Mlynowskyj gave evidence.

[9] The Respondent was represented by Mr Heng, the Respondents HR Manager and evidence was given by Mr A Stewart the Production Supervisor at Canning Vale and Mr P Derbyshire the Respondent's Regional Operations Manager WA.

The Applicant and Respondents case

The Applicant's case

[10] The Applicant submits that she has done nothing wrong and the reasons given for dismissing her are unjust and unfair.

[11] The Applicant submits that she was subjected to unreasonably harsh treatment in an attempt to cause her to resign.

[12] The Applicant submits that the work performance plans are not evidence of poor performance because they were conducted solely by Mr Stewart. The Applicant disputes the accuracy and objectivity of the plans.

[13] The Applicant complains that while she did sign off on the first work performance plan she felt pressured to do so by Mr Stewart and objects to the second work performance plan because it covered only a period of two weeks and was not completed.

[14] The Applicant submits that the pressure brought to bear on her was probably because the company was consdering doing away with a shift at Canning Vale.

[15] The Applicant complains that she was not offered a support person until the meeting on 2 August 2010 nor given any pre-warning or preparation time for most of the meetings attended.

The Respondents case

[16] In the months leading up to November 2009 the Respondent says Mr Stewart identified a number of concerns regarding the performance of the day shift Ms Bowen was responsible for.

[17] On 22 January 2010 the Applicant was issued with a verbal warning regarding performance and conduct related matters.

[18] From 23 March 2010 a documented four week performance plan for Ms Bowen commenced.

[19] A written warning was issued to the Applicant on 19 May 2010 for failure to achieve the objectives in this performance plan.

[20] A second performance plan was drawn up commencing 24 May 2010 for Ms Bowen.

[21] A final warning was issued to Ms Bowen on 8 July 2010 for failure to achieve the agreed objectives in the second performance plan.

[22] Shortly after this a complaint was made by a third party about the Applicant because of offensive language and inappropriate conduct she displayed towards another employee.

[23] Following a meeting on 27 August 2010 with the Applicant where the Applicant's performance and the above complaint were discussed the Applicant was notified in writing that she was to attend a meeting on 30 August 2010 which would deal with the possible termination of her employment.

[24] On 30 August 2010 the Applicant attended a meeting with her support person Ms Mlynowski to discuss the potential termination of her employment. Following an explanation of the Respondent’s views and having provided Ms Bowen with an opportunity to respond the Respondent's managers adjourned to consider their decision and when they returned Ms Bowen was advised she was to be terminated.

[25] In all the circumstances the Respondent submits that the decision to terminate was not harsh, unjust or unreasonable.

Legislation

[26] Section 387 of the Act sets out what matters the tribunal must take into account when considering whether the dismissal of an employee was harsh, unjust or unreasonable as follows.

s. 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.

[27] I will consider these matters in turn.

Was there a valid reason for the dismissal?

[28] The evidence of the Respondents’ witnesses has satisfied me that for an extended period prior to the termination of the Applicant her performance was below the level of performance reasonably expected of her by the Respondent. Indeed the Applicant in her evidence agrees that at times she was struggling in her role and that there were problems with her performance and the performance of the day shift she supervised 1 however she complains that she felt she had no support and she was put in a position where she was left to sink or swim.

[29] Ms Bowen concedes that she does not have all the skills identified in her position description as necessary for her role. 2 Her argument is that the Respondent was responsible for her deficiencies in not providing her with sufficient support and training.

[30] Ms Bowen agrees she was aware of the Respondents’ performance expectations but was unsure how to achieve these. 3

[31] There may be cases where an employee is not able to achieve the reasonable level of performance expected of them by their employer but the fault is not theirs alone. If this is because the employer has not provided the employee with training that the employee could reasonable have expected to receive in the particular circumstances then the performance failure is at least partially the fault of the employer. When this is the case then whilst there may be a reason for dismissal the lack of necessary training, that objectively should have been provided by the employer, may support an argument that the reason for the dismissal was not valid.

[32] The Respondent agrees that when the Applicant was first employed they recognised that she did not have all the skills necessary for her to successfully discharge the position she was appointed to. However their belief was that she would be able to develop these skills over time in the workplace.

[33] The evidence is that Mr Stewart, who shared an office with Ms Bowen, was in daily contact with her and was on a regular basis informally advising, instructing and directing her where necessary to assist her in her duties. It was only after a period of approximately two years had passed did he feel that she was not performing to the required level. 4

[34] Ms Bowen concedes that she has attended a number of training courses provided by the Respondent. Ms Bowen has attended a one and a half-hour supervisors course, a two-day course in Melbourne about Developing a Productive Work Culture, a two-day Train the Trainer course and also refresher courses in forklift driving, fire extinguisher use and in first aid. Ms Bowen's evidence also was that she commenced a Six Sigma yellow belt course in Continuous Improvement but this was not completed and some of this course she did in her own time.

[35] The evidence is that the complaint of a lack of training raised by Ms Bowen in these proceedings was not an issue pursued by her with any vigour during the numerous counselling meetings about her performance. She did not request particular additional training nor did she request any particular support.

[36] The Respondents’ assessment was that given the nature of her role and the length of time she had been in that position she should have been able to achieve the performance levels expected of her and the shortcomings in her performance were not because of a lack of formal training or support. 5

[37] The skills, knowledge and experience identified in the position description as being required for the Day Dhift Supervisor, the Applicants role, are supervisory skills, communication skills, team leadership, customer relations and a number of other generic skill sets or knowledge bases that would commonly be expected for a Supervisory role. The position description does not identify that the position requires any particular level of educational achievement nor any particular qualifications.

[38] Mr Stewarts evidence was that at the beginning of Ms Bowen's employment, because of her inexperience he had been more hands-on and as time had passed he passed the responsibility over to her and that for the last nearly 2 years prior to her termination she had been fully responsible for the day shift.

[39] In all the circumstances I do not accept that the Applicant could reasonably expect to have received more training than she did from the Respondent. The Respondent was not in my view deficient in training the Applicant.

[40] Considering all this evidence I find then that, given the training and support that was provided to Ms Bowen, the Respondent’s assessment that after nearly 3 years in the role she should be performing to the level expected by the Respondent was reasonable in the circumstances.

[41] Throughout the two performance reviews that were conducted, which spanned 6 months, Ms Bowen received weekly reviews of her performance from Mr Stuart who as part of that feedback process also at times advised her of particular problems. Given by this time Ms Bowen had been employed in her role since 2007 I accept that this was more than adequate support in the circumstances for her to achieve the performance levels expected of her. The Respondent was also rightly concerned that Ms Bowen continued to reject the Respondents view about her performance and exhibited a general resistance to the company’s efforts to ensure she improved. 6 Her underperformance of itself was a valid reason for her dismissal.

[42] Separately from the day-to-day performance of Ms Bowen the Respondent during the show cause meeting that led to her termination raised the issue of a comment Ms Bowen had made in the workplace to an employee in her team. The comment in question was made by Ms Bowen on 7 July 2010 the same day the Respondent had issued Ms Bowen with a final written warning. That written warning amongst other things advised Ms Bowen that should there be any other misconduct by her that warranted disciplinary action in the future this could result in the termination of her employment.

[43] The comments made by Ms Bowen were overheard at the time by a Ms Shultz who is a consultant for a labour hire firm that supplies some workers to the Respondent. Ms Shultz contacted Mr Derbyshire to complain about the comment that Ms Bowen had made.

[44] The issue was raised by Mr Derbyshire with Ms Bowen at a meeting with her on 8 July 2010 when the final written warning was issued to her. Ms Bowen was asked for her version of events and agreed that she made the comment which Ms Shultz overheard. Ms Bowen however did not at the time see the matter as particularly serious and believed the comment she made was not inappropriate in a male dominated workplace. The Respondent continued to investigate this issue whilst Ms Bowen was away on a period of sick leave and the matter was not pursued with her further because of this absence and because a grievance she had raised with the Respondents HR Department was being investigated. Consequently this incident was not raised further with her until the meeting on 27 August 2010.

[45] The fact that Ms Schultz made the effort to complain to Mr Derbyshire should provide some guidance to Ms Bowen as to how others may have viewed her comment. Whilst Ms Bowen did apologise to Ms Schultz she only did so after the complaint was raised with her by Mr Derbyshire and he had warned her about her conduct.

[46] Mr Derbyshire’s view that the comment by Ms Bowen to one of her subordinates in front of other members of her team was both inappropriate and unprofessional was reasonable. I accept that the Respondents concerns about this were heightened by the fact that Ms Bowen did not readily recognise her comment as inappropriate. Whilst I accept that the comment made by Ms Bowen to the member of her team in isolation may have warranted only a low level response from an employer, such as a verbal warning, the Respondent did not view this incident in isolation. Rather the Respondent reasonably considered the incident in the context of earlier concerns that Ms Bowen as a Supervisor was too casual or informal in her relationships with her subordinates and so had to an extent lost their respect and that this approach was detracting from her authority as their supervisor. 7

[47] Mr Stewart had also given evidence that he had received informal complaints from a number of people about the language Ms Bowen used with her team. His evidence was that he had also spoken to her once about inappropriate behaviour towards the Maintenance Supervisor in early 2010.

[48] Ms Bowen's argument that this matter was over and done with because she believed the complaint was withdrawn by Ms Schultz ignores the fact that her behaviour had occurred and this was rightly of concern to the Respondent. In any event the evidence of Mr Derbyshire was that Ms Schultz had not withdrawn her complaint, whilst she may have accepted Ms Bowen's apology.

[49] In summary regrettably Ms Bowen was not able to achieve the performance levels expected of her and had recently made an inappropriate comment to one of her staff members in the presence of her team. It was reasonable for the employer to hold her responsible for her actions in both matters and to conclude she was not suitable to continue in the position as supervisor. Ms Bowen may have been doing her best but this job it seems was not for her.

[50] This underperformance by Ms Bowen and her inappropriate comment I do find were valid reasons for her dismissal.

Was the Applicant notified of the reason for her dismissal?

[51] The Applicant was provided with a show cause letter on 27 August 2010 confirming the outcome of the meeting held with her on 2 August 2010 which had followed on from a formal written warning issued to Ms Bowen on 19 May 2010 and then a final written warning provided to her on 7 July 2010. The show cause letter advised that a meeting would be held with her on 30 August 2010 to consider whether her employment would be terminated.

[52] The Applicant was advised at that meeting that she would be terminated and was later provided with a letter of the same date notifying her of the specific reasons for her dismissal.

Was the Applicants given an opportunity to respond?

[53] The Applicant over an extended period of time had an opportunity to respond to concerns raised by the Respondent had about her performance.

[54] On 29 March 2010 the Applicant was placed on a performance management plan that detailed the areas Ms Bowen specifically needed to improve on. As part of this performance plan weekly review meetings took place between Ms Bowen and Mr Stewart through until the completion of that plan on 28 April 2010.

[55] Ms Bowen met with Mr Derbyshire and Mr Stewart on 19 May 2010 where they discussed the outcome of the first performance management plan.

[56] Next on 24 May 2010 Ms Bowen met with Mr Stewart to discuss the intention of the Respondent to place her on a second performance management plan. Again weekly review meetings occurred from here until the conclusion of the plan around the end of June 2010.

[57] The Applicant attended a meeting on 7 July 2010 with Mr Derbyshire and Mr Stewart to discuss the outcome of the second performance management plan.

[58] Noting the Applicants evidence that she was spoken over or ‘shut down’ in some of the meetings, on balance I find that the Applicant did have the opportunity to explain her under performance and respond to the concerns the Respondent raised.

[59] On 26 August 2010 the Applicant was notified by e-mail that she was required to attend a meeting on the next day regarding her performance and regarding the complaint made by Ms Shultz. At their meeting on 27 August 2010 the Applicant's performance and the complaint was discussed and Ms Bowen was advised that there would be a further meeting on 30 August 2010. This was confirmed in writing wherein she was advised her future employment would be considered.

[60] At the meeting on 30 August 2010 the Applicant's performance was discussed as was the inappropriate comments made to her team member. The Applicant with her support person Ms Milynowskj had an opportunity to respond to the concerns raised by the employer. The meeting was adjourned for approximately an hour after which the employer returned and advised Ms Bowen that her employment would be dismissed.

[61] Clearly the employer has given the Applicant many opportunities to respond to the concerns they had raised with her.

Refusal to allow support person?

[62] At no time did the Respondent refuse to allow the Applicant to have a support person attend either at the final meeting or any of the earlier meetings concerning her performance.

[63] In the final show cause meeting the Applicant was accompanied by her support person Ms Mlynowskyj.

The size of the Respondent's business etc

[64] The Respondent is a large organisation with dedicated human resource personnel and the procedures adopted leading up to the dismissal of the Applicant were consistent with this.

Other matters that the tribunal considers relevant

Length of Service

[65] The Applicant had been employed for nearly 3 years a fact the Respondent did consider when concluding she should be dismissed.

Accuracy of the performance data

[66] The validity and accuracy of the data used in the performance plans is challenged by the Applicant. There is no direct evidence however that the data gathered regarding her performance and used in the performance plans was in any way manipulated by the Respondent to her detriment.

[67] Mr Stewart did concede that some of the data and the figures used in the quality audits across the site were not accurate. This however did not affect Ms Bowen and in fact appears to have been done to ensure that her poor performance did not damage the Canning Vale's site record as a whole. I do not accept the admissions by Mr Stewart regarding the lack of accuracy of that quality audit data as impugning the data used in the Ms Bowen's performance plans.

[68] Mr Stewart's evidence was clear that the product quality, safety and attendance data is all recorded and transparent for others to see. His evidence which was not contradicted was that Ms Bowen herself is responsible for inputting much of the data. His evidence was that the data showed that over the year day shift had been performing worse by comparison with the other shifts.

Industrial action

[69] Ms Bowen complains that the Respondent wrongly blamed her for industrial action that was taken by other employees. Having reviewed the evidence regarding this I accept that the Respondent may well have been disgruntled and to some extent held Ms Bowen responsible for a work stoppage in December 2009 that in fairness was beyond her control. There is however no evidence that this issue was a factor in the Respondent's decision to dismiss Ms Bowen. These incidents happened considerably earlier than the performance management process and subsequent warnings that were given to Ms Bowen.

Ms Bowen’s bullying and harassment grievance

[70] Early in August 2010 Ms Bowen made a formal complaint to the Respondents HR Department that she was being bullied and harassed by Mr Stuart and Mr Derbshire. The Respondents HR Manager conducted interviews with the Applicant and investigated the allegations. Ultimately the Respondent concluded the allegations were not made out and no further action was taken.

[71] The Applicant argues that the investigation of her grievance was incompetent but why this is said to be the case was not fully explained.

[72] The Applicants raising of these matters was after a period of months during which she was subject to close scrutiny and criticism by Mr Stewart and Mr Derbyshire as part of the performance management plans. As I have previously said the evidence supports the finding that the Applicant was not performing satisfactorily and this was the main reason for her dismissal. There is nothing to suggest the Applicants raising of this grievance influenced the Respondents decision to dismiss.

Cancelling day shift?

[73] Ms Bowen argues that the actions of the Respondent were really about removing her from the site as part of a plan the Respondent had to do away with the day shift at Canning Vale. Having considered this there is simply no evidence that supports this speculation and instead there is a significant amount of evidence that supports the Respondent's complaints about Ms Bowen's performance and conduct.

Conclusion

[74] My conclusion on this matter is that the standards the Respondent set in terms of performance for Ms Bowen were reasonable ones, these standards of performance were communicated to her and she understood what was required of her. The performance plans developed to monitor and improve her performance are quite detailed including comments which specifically go to identifying Ms Bowen's specific deficiencies in individual areas.

[75] Unfortunately Ms Bowen over an extended period of time either was not willing to or was not able to meet these reasonable performance standards set by the Respondent. I do not accept that the reason for this was the Respondent’s failure to provide necessary training or support to Ms Bowen during the period under which her performance was reviewed.

[76] In addition Ms Bowen showed a lack of judgement as to the appropriate behaviour when interacting with her subordinates.

[77] Considering all the circumstances I do not agree that the dismissal of the Applicant was harsh, unjust or unreasonable. Ms Bowen’s dismissal was not unfair. This application is dismissed.

COMMISSIONER

Appearances:

Ms C Mlynowskyj on behalf of the Applicant

Mr Heng, HR Manager, Chep Australia Ltd on behalf of the Respondent

Hearing details:

Perth.

2011:

February 16 & 17

 1   PN 294, 371 and 372

 2   PN 692 - 694

 3   PN 469 - 470

 4   PN 1167 - 1211

 5   PN 1403-1415

 6   Witness statement Mr Derbyshire 13.68

 7   PN 1299 - 1314

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