Nedim Dajanovic v Waco Kwikform Limited - [2022] FWC 3249

[2022] FWC 3249

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nedim Dajanovic
v

WACO Kwikform Limited

(U2021/10644)

COMMISSIONER P RYAN

SYDNEY, 9 DECEMBER 2022

Application for an unfair dismissal remedy

Introduction

Mr Nedim Dajanovic (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with WACO Kwikform Limited (Respondent) on 12 November 2021.

The matter was heard before me on 22-23 February, 10 March and 22 March 2022. Following the hearing of the matter, the parties filed written submission in accordance with directions.

The Respondent was represented by Mr J Li, solicitor with permission, as I was satisfied as to the matters set out in s.596 (2) (a) and (b) of the FW Act.

Shortly after the commencement of the hearing, the Applicant stated that the proceedings were affecting his health and requested that his support person, Mr A Laalaa, advocate his case. Although permission pursuant to s.596 of the FW Act was not required, as Mr Laalaa is not a lawyer or paid agent, this raised a complexity as the Applicant was intending to call Mr Laalaa as a witness in support of his case and it is generally undesirable that a witness act as an advocate.

The Respondent did not object to Mr Laalaa advocating the Applicant’s case, subject to him giving evidence first.

Taking the nature of the Applicant’s request into consideration and noting Mr Laalaa’s evidence was limited to his attendance at two meetings in August 2021 conducted as part of a performance improvement plan, I allowed Mr Laalaa to represent the Applicant.

Witness statements were tendered from the following persons, who also gave evidence at the hearing:

·Mr Adam Laalaa, the Applicant’s support person (Exhibit A1);

·The Applicant (Exhibit A2);

·Mr Andrew Heng, the Respondent’s human resources director (Exhibit R1);

·Ms Emily Sealey, an estimator employed by the Respondent (Exhibit R2);

·Mr Brett Sinclair, the Respondent’s national design and estimating manager (Exhibit R3 and attachments Exhibits R7, R8, R9 and R10); and

·Mr Marc Reed, the Respondent’s regional manager for NSW and ACT (Exhibit R6).

When can the Commission order a remedy for unfair dismissal?

Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Factual Background

The Respondent is a supplier of scaffolding, formwork, and associated labour to industrial, commercial and residential construction projects.[1]

The Respondent has 16 branches located throughout Australia and each branch is responsible for the sale and supply of scaffold to a particular geographical area.[2]

As part of its operations, the Respondent employs estimators whose role is to calculate the cost of supplying scaffold for various construction projects.[3]

The calculation of the cost of supplying scaffolding to a particular project is a critical element of the tendering process which requires estimates to be provided in an accurate and timely manner to ensure any tender deadline is met.[4] For example, an ‘underestimate’ of the actual cost of supplying scaffolding to a project could result in the Respondent incurring a loss on a project, whereas an ‘overestimate’ could result in the Respondent losing a tender on the basis of competitiveness, and failure to complete an estimate in a timely manner, could result in the Respondent not being considered for the project.[5]

The cost for the supply of scaffold should be similar, if not identical, irrespective of the estimator working on the project. However, for larger or complex jobs, the Respondent allows for a margin of error or tolerance of up to 5%.[6]

Historically, estimators were located within the Respondent’s branches and worked closely with the Respondent’s sales representatives on jobs within a defined geographical area. In some cases, the Respondent’s branches did not have dedicated estimators and the sales representatives were required to conduct their own estimates.[7]

In late 2019, the Respondent decided to centralise the estimating function by creating a National Estimation Team to prepare estimates across all branches. A key objective was to provide sale representatives with more time to focus on sales related activities.[8]

In January 2020, the Respondent employed Ms Peta Heffernan to implement the National Estimation Team.[9]

On 24 March 2020, the Applicant commenced employment with the Respondent in the role of Estimator, reporting to Ms Heffernan, the National Estimating Manager.[10] The terms and conditions of the Applicant’s employment were set out in a contract of employment dated 24 March 2020.[11]

Attached to the contract of employment was a position description setting out the Applicant’s duties which included:

· Preparing and completing estimates prior to the tender deadline;

· Preparing a detailed analysis of estimated cost of material, labour, equipment and transport;

· Preparing an accurate costing model; and

· Participating as a member of the National Estimation Team.[12]

On 4 February 2021, the Respondent advised the Applicant of the outcome of its annual salary review. The Applicant was given a performance rating of 3.00 and did not receive any adjustment to his annual salary.[13] In cross examination, Mr Heng stated that a rating of 3.00 is satisfactory, and that review would have been based on recommendations made by Ms Heffernan to Mr Simon Humphrey, the Respondent’s commercial director.[14]

On 29 March 2021, Mr Sinclair commenced employment with the Respondent in the role of national design and estimating manager, taking over as Ms Heffernan’s successor. In this role, Mr Sinclair oversaw the Respondent’s estimating function throughout Australia and all estimators, including the Applicant reported directly to Mr Sinclair. Mr Sinclair was based in the Respondent’s Brisbane office.[15]

On 13 April 2021, Mr Sinclair attended the Respondent’s Sydney office. The purpose of the visit was to introduce himself to the Sydney based estimators, including the Applicant. Following this meeting Mr Sinclair sent an email to the Applicant which attached the Respondent’s estimation template – version 2, an Excel spreadsheet which the Respondent developed for the purposes of preparing estimations (Estimation Template). It was Mr Sinclair’s understanding that the Applicant was already familiar with and using the Estimation Template at that time.[16]

On 5 May 2021, Mr Sinclair received a text message from Mr Reed[17], requesting a telephone discussion. Later that day, Mr Sinclair attended a video conference with Mr Reed and Mr Valentino Torres, one of the Respondent’s estimators. During this meeting Mr Reed and Mr Torres raised concerns about the Applicant’s work ethic and the accuracy of the estimates prepared by him.[18]

Following the video conference, Mr Sinclair proceeded to closely monitor the Applicant’s work and performance. This involved Mr Sinclair conducting what he described as an informal investigation and assessment of the Applicant’s work which included:

· Reviewing the Respondent’s job board, an application that enables the Respondent to track the status of projects and tenders, including who was working on a project at any given time and the time spent preparing estimates for each project;

· Reviewing and recalculating some of the Applicant’s estimates; and

· Seeking feedback from sales representatives across the business through which concerns were raised about the accuracy of the Applicant’s estimates and a lack of communication from the Applicant.[19]

Having regard to his information assessment, Mr Sinclair consulted with Mr Heng and Mr Sinclair decided to place the Applicant on a Performance Improvement Plan (PIP).[20]

PIP Initial Meeting – 31 May 2021

On 31 May 2021, Mr Sinclair met with the Applicant at the Respondent’s Sydney office to inform him of the Respondent’s concerns with his performance and that he was to be placed on a PIP.[21] Mr Sinclair’s concerns related to the Applicant’s incorrect use of the Estimation Template, inaccurate estimations, and not responding to pricing requests.[22]

The PIP was set out in a document identifying six areas requiring improvement: Timeliness/deadlines; Communication; Accuracy; Cost saving solutions; File management; and Productivity improvement. The document sets out the expected standard of performance and progress by each review date which were identified as: First Review Date – 1 July 2021; Progress Review Date – 2 August 2021 and Final Review Date – 1 September 2021. The document also states the current level of performance for each area as “not acceptable”.[23]

The purpose of the PIP was to improve the Applicant’s performance to the required standard.[24] The PIP also stated:

“Failure to meet or exceed the expected standard of performance at the schedule progress intervals or at the completion of the PIP; reduction in your performance at any time contrary to the level of progress required in accordance with the timeframe outlined…may result in disciplinary action, up to and including termination of your employment.”[25]

The Applicant signed and dated the PIP, acknowledging that he understood the expected level of progress and that failure to meet the level of progress required may result in disciplinary action up to and including the termination of his employment.[26]

There were two matters in dispute concerning the PIP Initial Meeting on 31 May 2021. First, whether Mr Sinclair showed the Applicant documents supporting Mr Sinclair’s concerns regarding the Applicant’s performance. Second, whether Mr Sinclair told the Applicant that the Respondent “wants to sack you”.

In relation to the first matter, it was the evidence of Mr Sinclair that he showed the Applicant various documents supporting his concerns before taking the Applicant through the PIP document.[27] The Applicant’s evidence in chief does not address the issue and is limited to addressing the meeting taking place on 31 May 2021, the implementation of the PIP, and that Mr Sinclair told the Applicant that the Respondent “wants to sack you.”[28] Under cross examination, the Applicant accepted examples of unsatisfactory performance were raised with him but denied he was shown any documents supporting this in the meeting.[29]

I do not consider much turns on whether Mr Sinclair showed the documents to the Applicant in this meeting. The Applicant was aware that the Respondent had concerns with his performance, accepted that the Respondent discussed examples of this with him, and that it decided to place him on a PIP. The purpose of the meeting was to implement the PIP.[30] Furthermore, the Applicant does not contend, nor is there any evidence, that he requested and was refused access to the supporting documents.

In relation to the second matter, Mr Sinclair denies that he told the Applicant the Respondent “wants to sack you” or that there was a plan to terminate the Applicant’s employment.[31] Rather, it was Mr Sinclair’s evidence that he wanted to get the best out of the Applicant and he had no intention of terminating his employment.[32]

As set out below[33], following the PIP First Review meeting on 1 July 2021, the Applicant wrote to Mr Heng expressing concerns that Mr Sinclair’s feedback in the PIP meetings on 31 May 2021 and 1 July 2021 was negative criticism and bullying, but did not raise the allegation that Mr Sinclair said the Respondent “wants to sack you”. In a subsequent discussion with Mr Heng on 8 July 2021, the Applicant did not raise this matter[34] and did not challenge Mr Heng’s account of this conversation during the proceedings. Given the nature of the matters raised by the Applicant in his correspondence to Mr Heng on 2 July 2021, it is in my view unlikely that the Applicant would have omitted informing Mr Heng of this allegation if Mr Sinclair had indeed said those words. Taking these matters into consideration, I prefer the evidence of Mr Sinclair over the Applicant and so find that Mr Sinclair did not say to the Applicant that the Respondent “wants to sack you” in the meeting on 31 May 2021.

PIP First Review Meeting – 1 July 2021 and subsequent events

On 1 July 2021, Mr Sinclair and the Applicant met via video conference for the purpose of the PIP First Review.

It was the evidence of Mr Sinclair that he referred to a range of examples of unsatisfactory performance by the Applicant, showed supporting documents to the Applicant via screen share, and that the Applicant was unable to provide any acceptable explanation for not meeting the expectations required. Following the meeting, Mr Sinclair provided an updated copy of the PIP which included Mr Sinclair’s assessment of the Applicant’s performance as at the PIP First Review Date. The updated PIP stated that the Applicant’s performance with respect to timeliness/deadlines had improved. However, the expected level of performance had not been achieved in all other areas. The dates for PIP Progress Review and PIP Final Review were also amended to 15 July and 30 July respectively.[35]

It was the evidence of the Applicant that Mr Sinclair ignored his responses and informed him that the dates for the PIP Progress Review and the PIP Final Review would be brought forward to fortnightly reviews rather than monthly reviews.[36] In cross examination, the Applicant accepted that Mr Sinclair showed him documents via screen share and confirmed that his timeliness had improved.[37]

On 2 July 2021, the Applicant wrote to Mr Heng expressing concerns that Mr Sinclair’s feedback was negative criticism and bullying. In particular, the Applicant described Mr Sinclair’s assessment of his performance as unfounded claims and invalid criticism.[38]

Following receipt of this email, Mr Heng requested an update on the PIP from Mr Sinclair. At 6.52am on 8 July 2021, Mr Sinclair sent an email to Mr Heng summarising the actions taken in relation to the Applicant’s PIP to date.[39]

On 8 July 2021, Mr Heng telephoned the Applicant to discuss the concerns in his email of 2 July 2021. Mr Heng’s evidence of this discussion, which was not challenged by the Applicant, is set out as follows[40]:

Mr Heng:When you say “invalid criticism and unfounded claims”, in your email, what do you mean?

The Applicant: Brett had “fabricated statements” to say I didn’t achieve the requirements.

Mr Heng: Did Brett show you examples of your results?

The Applicant: He showed me some emails.

Mr Heng: Did you bring any evidence to demonstrate that you had achieved the milestones in the PIP?

The Applicant: No I did not.

Mr Heng: You should come to these meetings prepared with all the available evidence to support your results. Further, if you disagree with the findings during the review you have the opportunity to provide supporting evidence to dispute the findings. You should collate the evidence and then go back to Mr Sinclair so as to reassess against the evidence.

The Applicant: Ok. I will do that.

Mr Heng: I just have a few questions about the way the meeting was conducted to see if you were provided with procedural fairness. Were you made aware of the meeting beforehand?

The Applicant: Yes, I was notified in advance.

Mr Heng: Did you know what the meeting was about?

The Applicant: Yes, I was told it was the PIP review.

Mr Heng: Did Brett provide you with an opportunity during the meeting to respond to the comments and findings presented by him?

The Applicant: Yes, I was given that opportunity, but I think the findings were fabricated and invalid.

Mr Heng: It’s important for you to have evidence to support your own assessment of your performance. If you’d like, I can speak to Brett to give you time before the PIP reviews to respond in writing to the results of the review. Do you want me to speak
to Brett to give you more time?

The Applicant: Yes, please speak to Brett.

Mr Heng: I will be able to participate in future meetings but I can’t be present as your support person. You can bring a support person if you wish.

Following this discussion, Mr Heng had a discussion with Mr Sinclair where it was agreed that the Applicant would be given additional time to respond and present supporting evidence at each stage of the PIP.[41]

On 12 July 2021, the Applicant sent correspondence to Mr Sinclair stating he had undertaken a detailed investigation and formed the view that he had performed to the standard required in each of the other five areas. The Applicant also advised that he would not be signing the updated PIP document on advice from his lawyer.[42]

On 14 July 2021, Mr Sinclair sent correspondence to the Applicant acknowledging his refusal to sign the updated document, inviting the Applicant to provide any information that will evidence improvement in the key areas in relation to the PIP First Review, informing the Applicant that the original dates for the PIP Progress Review and the PIP Final Review would be reinstated, and inviting to the Applicant to bring supporting documents to the PIP Progress Review.[43]

On 2 August 2021, Mr Sinclair sent correspondence to the Applicant advising that the PIP Progress Review scheduled to take place that day will be rescheduled to 16 August 2021 due to the COVID-19 Lockdown in Sydney.[44]

At 12.16pm on 13 August 2021, Mr Sinclair sent correspondence to the Applicant reminding him of the PIP Progress Review meeting at 3:00pm on 16 August 2021 and requested the Applicant provide his response to the PIP First Review by close of business so that it can be reviewed prior to the PIP Progress Review meeting.[45]

At 5.11pm on 13 August 2021, the Applicant responded to Mr Sinclair with an email titled “response to PIP improvements Mr Nedim Dajanovic”. In this correspondence the Applicant stated he had undertaken a detailed investigation and formed the view that he performed to the required standard. The Applicant then set out a generic response, without reference to specific examples, to each of the five areas that Mr Sinclair had assessed him as not achieving the required standard.[46]

At 1.19pm on 16 August 2021, Mr Heng sent correspondence to the Applicant querying whether he was intending to have a support person at the meeting and confirming he will be in attendance to observe but cannot act as a support person for the Applicant. Mr Heng also invited the Applicant to contact him if he wanted to talk further about these matters.[47]

At 1.21pm on 16 August 2021, the Applicant replied to Mr Heng confirming he understood Mr Heng’s position and that he will have a support person.[48]

PIP First Review Additional Meeting – 16 August 2021

At 3:00pm on 16 August 2021, Mr Sinclair and the Applicant met via video conference. The Applicant attended with his support person, Mr Laalaa and Mr Heng was in attendance to observe. While the initial purpose of this meeting was to go through the PIP Progress Review, having regard to the Applicant’s response to the PIP First Review (which was emailed to Mr Sinclair on 13 August 2021), Mr Sinclair decided to work through the PIP First Review again.[49]

However, not long after the commencement of the meeting, it was ended by Mr Heng. It was the evidence of the Applicant and Mr Laalaa that Mr Sinclair was making broad and non-specific accusations regarding the Applicant’s performance and that when Mr Laalaa intervened seeking specific details, which could not be provided by Mr Sinclair, Mr Heng ended the meeting.[50]

It was the evidence of Mr Sinclair that as he was going through his first point of concern with the Applicant’s performance, Mr Laalaa interrupted and began to advocate on behalf of the Applicant. Mr Sinclair described Mr Laalaa’s interruptions as aggressive and disruptive and after some attempts to get the meeting back on track Mr Heng decided to end the meeting after he got through the first point.[51]

It was the evidence of Mr Heng that Mr Sinclair opened the meeting explaining why the Applicant was placed on the PIP and proceeded to discuss his performance. Mr Heng further deposed that about halfway through Mr Sinclair’s explanation Mr Laalaa interjected and began to question the procedural fairness of the process and accusing the Respondent of bullying the Applicant.[52]

Mr Heng then advised Mr Laalaa that the Respondent has a process that it is following and that he needs to respect that process. Mr Heng reminded Mr Laalaa that he was the Applicant’s support person, that he was not there in the capacity of an advocate, and it was not appropriate to disrupt the meeting in that way.[53]

Mr Heng stated that Mr Sinclair took the Applicant through each of the performance areas and was explaining why the Applicant did not meet the required standard, however as the meeting progressed Mr LaaLaa’s interruptions became more frequent and increasingly aggressive. Mr Heng then ended the meeting to prevent any further escalation.[54] Mr Heng denied that he ended the meeting because Mr Sinclair was unable to provide any specific examples of the Applicant’s performance issues.[55]

Both Mr Sinclair and Mr Heng were extensively questioned under cross examination on this issue[56], and while the Applicant has attempted to discredit the witnesses based on their differing versions as to the progress of the meeting when was ended by Mr Heng, Mr Sinclair confirmed under cross examination that he had addressed the five areas in the PIP requiring improvement and was dealing with the first point (or example) of unsatisfactory performance when the meeting ended and was rescheduled for 24 August 2021.[57]

Having regard to all of the evidence, I find that Mr Sinclair commenced the meeting by providing an overview of each of the five areas of the PIP requiring improvement, before proceeding to deal with his specific concerns regarding the Applicant’s performance and in the course of dealing with the first point of unsatisfactory performance, Mr Heng ended the meeting due to Mr Laalaa’s interruptions and conduct.

PIP First Review – Additional Opportunity to Respond

At 5.12pm on 16 August 2021, Mr Sinclair sent correspondence to the Applicant attaching documents relating to ‘15 points’ of unsatisfactory performance relevant to the PIP First Review and directing the Applicant to provide a response within seven days.[58] The issues raised by ‘15 points’ can be summarised as follows:

· Point 1 – Accuracy and File Management: Applicant failed to price plywood as part of the estimate and poor file management;

· Point 2 – Accuracy: Applicant calculated scaffolding at 462 tonnes. The Respondent was unsuccessful in this tender as it was significantly more expensive than other companies. An internal review calculated that approximately 250 tonnes of scaffold was required;

· Point 3 – Accuracy: An additional building was priced as part of an estimate;

· Point 4 – Accuracy: An additional building level was priced as part of an estimate;

· Point 5 – File Management: Incorrect filing of documents;

· Point 6 – File Management: Incorrect use of Estimation Template;

· Point 7 – Communication: Failing to respond to queries from sales representative;

· Point 8 – File Management: Incorrect use of Estimation Template;

· Point 9 – File Management: Incorrect filing of documents;

· Point 10 – File Management: Incorrect filing of documents;

· Point 11 – Timeliness, Communication and File Management: Failed to respond queries from Mr Reed resulting in Mr Reed completing the estimate due to pending deadline;

· Point 12 – Accuracy – Incorrect calculation of lineal metres;

· Point 13 – Accuracy and File Management: Incorrect pricing of stairs. Incorrect use of Estimation Template resulting in a duplication of labour where the miscellaneous labour costs exceeded the labour to erect and dismantle the scaffold;

· Point 14 – File Management: The Applicant requested engineers to design and prepare drawings for a suspended stair which were previously completed and available on file.

· Point 15 – Cost Saving Solutions – The Applicant had not implemented any cost savings or productivity improvements over the PIP First Review Period.[59]

On 23 August 2021, the Applicant provided a written response to each of the ‘15 points’ raised by Mr Sinclair. The Applicant’s response can be summarised as follows:

· Point 1 – the Applicant accepted he failed to cost plywood as part of the estimate;

· Point 2 – the Applicant disputed the Respondent’s review of 250 tonnes, but submitted upon his review, the quantum should have been 402 tonnes;

· Point 3 – the Applicant disputed that he had priced an additional building;

· Point 4 – the Applicant disputed that he had priced an additional level, but accepted he had included a ‘little bit’ of additional scaffolding;

· Point 5 – the Applicant stated it was not fair to be check on his filing on an hour-by-hour basis while he was completing an estimate;

· Point 6 – the Applicant submitted that other employees of the Respondent had worked on the spreadsheet and were responsible for any errors;

· Point 7 – the Applicant stated that his communication skills are extraordinary and that he had discussed this matter with the sales representative;

· Point 8 – the Applicant accepted this feedback and modified his use of the Estimation Template accordingly;

· Point 9 – the Applicant accepted that he incorrectly filed documents;

· Point 10 – the Applicant explained that he completed an estimate late in the afternoon and was intending to file the documents in the correct manner the following day, but was absent on personal leave;

· Point 11 – the Applicant stated that he could not respond to Mr Reed’s queries because he had left the office for the day, and he was absent on personal leave the following day;

· Point 12 – the Applicant stated that he had conducted a ‘detailed investigation’ and found that the calculation of lineal metres in his estimate was correct;

· Point 13 – the Applicant stated that he did not understand the concerns raised;

· Point 14 – the Applicant explained that while he had initially requested the engineers to design the suspended stair, he recalled that request upon being provided the drawings;

· Point 15 – the Applicant stated that there is a difficulty in cost saving solutions when he prepares the estimate based on the drawings prepared by a design engineer and the client’s scope of works. In relation to productivity improvements, the Applicant suggested combining scaffold design drawings with the tender estimate and the implementation of a software program called Bluebeam to assist the estimators.[60]

The Applicant also provided Mr Sinclair with a self-assessment in which the Applicant stated he was generally performing well but the quality of the drawings made it difficult to read and that he would be assisted by information with respect to cost saving solutions.[61]

PIP First Review Further Meeting – 24 August 2021

On 24 August 2021, Mr Sinclair and the Applicant met via video conference. The Applicant attended with his support person, Mr Laalaa and Mr Heng was in attendance to observe. The purpose of the meeting was to finalise the outcome of the PIP First Review.[62]

At the commencement of the meeting, Mr Heng said the following to Mr Laalaa:

“The last meeting had to be shut down because of Mr Laalaa’s disruptive behaviour. We cannot have this happen today or I will stop the meeting again and you will no longer be welcome to attend as Nedim’s support person. The role of a support person is not to be an advocate and I would ask you to respect the process.”[63]

Mr Heng then said the following to the Applicant:

“Nedim, you have brought your support person today, so it is your responsibility to ensure that he is respectful of the process. If you cannot control him then the meeting cannot proceed. We will have to stop it again. Do you understand?”[64]

The Applicant confirmed he understood the Respondent’s requirements regarding the conduct of his support person.[65]

The meeting then proceeded with Mr Sinclair explaining each of his concerns as part of the PIP First Review as well as providing an overview of his concerns for the PIP Progress Review. It was the unchallenged evidence of Mr Sinclair that the Applicant did not provide any responses beyond stating “I will review” or “no comment, I will review”.[66]

While at the commencement of the meeting Mr Laalaa complied with the direction given by Mr Heng, as the meeting progressed, he began to interrupt the meeting in an aggressive manner and attempt to speak on behalf of the Applicant.[67] At the conclusion of the meeting, Mr Heng advised the Applicant and Mr Laalaa that Mr Laalaa was no longer welcome to attend meetings as the Applicant’s support person.[68]

Following the conclusion of the meeting, Mr Sinclair completed the PIP review document, rating the Applicant’s progress as at the PIP First Review stage as unsatisfactory[69], and sent a meeting request to the Applicant to discuss the PIP Progress Review on 2 September 2021.[70]

PIP First Review - Findings

As the Applicant disputes a number of the issues raised as part of the PIP First Review, it is necessary to make findings in relation to the performance concerns raised by Mr Sinclair.

Point 1

In relation to Point 1, the Applicant failed to calculate and include a price for the supply of plywood as an option for the client.[71] In cross examination it was put to Mr Reed and Mr Sinclair that to price an item as an option meant that it was optional as to whether the Applicant was required to price the item as part of an estimate. Both Mr Reed and Mr Sinclair rejected that contention and confirmed that the pricing of an item as an option was to include it in the estimate as an option for client to decide whether they will select that item.[72]

In closing submissions, the Applicant’s position shifted from contending that the task was optional to submitting that the instructions were sometimes confusing which can result in different outcomes for different estimators.[73]

The Applicant’s position in the proceedings ignores his response to Mr Sinclair on 23 August 2021, where he accepted that he failed to price the plywood as part of that estimate. Having regard to the evidence, I find that Applicant failed to price the plywood as part of that estimation.

Points 2, 3, 4, 12 and 13

Each of these points concern the Applicant’s accuracy in relation the preparation of estimates and involved incorrect calculation of the scaffolding and/or labour required for a particular tender.

In relation to point 2, while the Applicant disputed the Respondent’s review, his own review of his initial estimation resulted in a reduction of 60 tonnes of scaffold. Importantly, the Respondent was unsuccessful in winning this tender on the basis that it was significantly more expensive than other tenders.

In relation to point 3, it is clear on the quotation that the Applicant had priced an additional building.[74]

In relation to point 4, the Applicant acknowledged in his response to Mr Sinclair that he had added ‘a little bit’ of additional scaffolding (61 lineal metres) because there is a ‘top working deck’ above level 2 but stated that it was incorrect to characterise it as an additional level.[75]

The Applicant’s response contradicts the estimate prepared by him which clearly describes the additional 61 lineal metres as referable to ‘Level 2 – Level 3’[76] and ignores the scaffold drawings which are clearly marked as ‘Perimeter Scaffold, Scaffold Plan Ground Level – Level 02’.[77]

In relation to points 12 and 13, I accept the evidence of the Respondent that the Applicant made errors in the calculation of lineal metres and labour costs. Additionally in relation to point 13, the Applicant provided an allowance for miscellaneous labour which exceeded the labour cost to erect and dismantle the scaffold and provided for stair lengths of 6 metres despite his notes accompanying the estimate acknowledging the client required a maximum stair length of 5.2 metres.[78]

Having regard to the evidence and material before the Commission, I am satisfied, and so find, the Applicant made the errors in relation to points 2, 3, 4, 12 and 13.

Points 5, 9, 10, and 11

Each of these points concern the Applicant’s failure to correctly name files or save files in the correct file location.

In relation to points 5 and 9, the Applicant accepted that he had not saved files in the correct location. However, I consider these to be minor issues.

In relation to point 10, I accept the Applicant’s explanation and do not accept this constituted unsatisfactory performance.

In relation to point 11, the issue concerned the Applicant failing to notify Mr Sinclair of his absence on personal leave on 30 June 2021. While the Applicant sent a text message to a colleague, other employees were attempting to contact the Applicant without success in relation to an estimate that was imminently due. This prompted Mr Sinclair and Mr Heng to meet with the Applicant on 13 July 2021.

It was the unchallenged evidence of Mr Sinclair, and I so find, that the Applicant acknowledged that he was aware that he should have notified Mr Sinclair and agreed to do so in future. This resulted in Mr Sinclair issuing a ‘verbal warning’ to the Applicant.[79]

Point 6

Point 6 concerned the incorrect use of the Estimation Template, resulting in errors in the estimate prepared for job #8869-01-02. This issue was heavily contested during the proceedings. The Applicant submitted that other employees who worked on this job after him were responsible for the errors. In its final submissions[80], the Respondent properly conceded that the Applicant did not incorrectly use the Estimation Template on this occasion, and I so find.

Points 7 and 14

While I accept the Applicant failed to communicate as effectively as he could have[81], I am not satisfied that these points identify anything beyond minor performance issues.

Point 8

In his response to Mr Sinclair on 23 August 2021, the Applicant accepted the feedback from Mr Reed and modified his use of the Estimation Template. The Respondent properly accepts this was a minor issue[82] and I so find.

Point 15

Point 15 concerned a failure by the Applicant to identify cost saving solutions and productivity improvements. Having regard to the evidence and material before the Commission, I am not satisfied that the issue identifies unsatisfactory performance by the Applicant.

PIP Progress Review Meetings – 2 and 9 September 2021

At 3:00pm on 2 September 2021, the Applicant met with Mr Sinclair and Mr Heng. The meeting did not proceed as anticipated as the Applicant stated that he had not received any of the documentation relevant to the PIP Progress Review. The meeting was rescheduled for 9 September 2021.[83]

Later that day, Mr Sinclair sent an email to the Applicant attaching documents relating to ‘10 points’ of unsatisfactory performance relevant to the PIP Progress Review.[84] The issues raised by the ‘10 points’ can be summarised as follows:

· Point 1 – Communication: Failing to communicate with sales representatives as directed to confirm various matters relevant to the completion of the estimate;

· Point 2 – File Management: Incorrect filing of documents;

· Point 3 – Timeliness: Failure to meet deadlines – The Applicant did not promptly action an urgent variation;

· Point 4 – Cost Saving Solutions: The Applicant amended the Estimation Template by renaming “KwikAZ Clips” as “Scaffshield”. The two items are different products with different costings, and the amendment had the potential to adversely impact estimates generated;

· Point 5 – Productivity, Accuracy, Communication, Timeliness and File Management: Excessive time to complete estimate which was inaccurate in relation to the scope of works and labour costing;

· Point 6 – Accuracy: Failure to include various sections of scaffold in estimate;

· Point 7 – Accuracy, Timeliness: Excessive time to complete estimate and incorrect calculation of lineal metres. In forming these views, the Respondent requested Ms Sealey to prepare a comparator estimate which was provided to the Applicant;

· Point 8 – Accuracy: Incorrect calculation of lineal metres, scaffold weights and duration of project. In forming these views, the Respondent requested Ms Sealey to prepare a comparator estimate which was provided to the Applicant;

· Point 9 – Accuracy, Communication: Failure to include scaffold loading bays, hop-up movements and tie relocations. The Applicant also miscalculated hire durations and allowed an amount of $274,000.00 for manual handling as there was no crane on-site. The Respondent was concerned as to how the manual handling figure was calculated; and

· Point 10 – Accuracy, Communication; Failure to include various items in the estimate as per the scope of works.

On 8 September 2021, the Applicant provided a written response to each of the ‘10 points’ raised by Mr Sinclair. The Applicant’s response[85] can be summarised as follows:

· Point 1 – the Applicant denied that he failed to contact the sale representative, stating that communicates with the relevant sales representative on ‘an almost daily basis’;

· Point 2 – the Applicant stated this point was a repeat of Point 10 of the PIP First Review;

· Point 3 – the Applicant disputed that he failed to meet deadlines. The Applicant stated that the original direction to complete a variation by the next day was recalled. The Applicant stated a further variation relating to ‘double internal skin scaffolding’ was completed and issued at 9.25am on 13 July 2021.

· Point 4 – the Applicant accepted that he amended the Estimation Template and stated that “what I meant by that is quite clear to any construction professional.” The Applicant further stated that he has never costed KwikAZ Clips and wanted to remove the item from the Estimation Template;

· Point 5 – the Applicant stated that he ‘did well for this job despite discrepancies in the information from his manager and salesperson’. The Applicant stated he included chain wire and shade cloth as the information provided to him to prepare the estimate was ‘poor’;

· Point 6 – the Applicant stated that he was requested to undertake a variation for this job in relation to various sections of scaffold. The Applicant stated that he completed that variation, before being asked to undertake a further revision to include scaffold between the basement and ground level. The Applicant stated that the scope of the variation he was directed to price (which was highlighted in yellow) did not include any scaffold under ground level;

· Point 7 – the Applicant stated the two estimates cannot be compared because they include different items, and that further investigation is required to determine any deficiency by either estimator;

· Point 8 – the Applicant stated the two estimates cannot be compared unless the hire durations and variable rates were the same. The Applicant stated that the estimate had to be prepared in two stages and after he calculated the scaffold weights, the salesperson was to incorporate the applicable labour rates, transport rates and sundries. The Applicant stated that he did not agree with the comparison estimate and that further investigation was warranted;

· Point 9 – the Applicant stated that the labour cost was obtained and calculated after consultation with the construction team. The Applicant acknowledged there were discrepancies in the estimate, that he did not notice the document with hire durations in the scope of works folder, and that he did not include the loading bays and hop up movements. The Applicant suggested the salesperson could have assisted by highlighting the scaffold items required in the scope of works document; and

· Point 10 – the Applicant explained that he completed the estimate as requested and issued it to the salesperson and asked some for clarification regarding internal scaffold items. The Applicant stated he received an unexpected response from the salesperson that he needed to include all items. Shortly after receiving that response the job was reallocated, which was unfair.

On 9 September 2021, the Applicant met with Mr Sinclair and Mr Heng. During this meeting, Mr Sinclair explained his assessment of the Applicant’s performance as at the PIP Progress Review stage and provided the Applicant with an opportunity to respond.[86]

PIP Progress Review - Findings

As the Applicant disputes a number of issues raised as part of the PIP Progress Review, it is necessary to make findings in relation to the performance concerns raised by Mr Sinclair.

Point 1

This issue concerns the Applicant failing to contact a sales representative, as directed by Mr Sinclair, to ascertain further information that was required to prepare a complete an estimate. The result being that the Applicant prepared and circulated an incomplete estimate which had to be revised, thus delaying the submission of the estimate to the client.[87] The Applicant’s contention that he communicated adequately and as directed cannot be accepted.

Point 2

The Respondent conceded this point was repeated from the PIP First Review.

Points 3 and 6

It is convenient to deal with points 3 and 6 together, as they both relate to the job number 40-8717.

At approximately 6:55pm on 8 July 2021, Mr Sinclair sent an email to the Applicant, requesting a variation to be completed as soon as possible on 9 July 2021. Within the next minute, Mr Sinclair sent a further email stating “sorry, wrong email chain”. The Applicant interpreted this as Mr Sinclair ‘recalling’ the request to undertake the variation.[88] No further action was taken by the Applicant in relation to this request.

At approximately 6.57pm on 8 July 2021, Mr Sinclair sent an email to the Applicant requesting a different variation relating to ‘double internal skin scaffolding’, which the Applicant completed and issued at approximately 9:25am on 13 July 2021.[89]

At approximately 9:59pm on 13 July 2021, Mr Sinclair sent a further email to the Applicant and attached the plans on which Mr Sinclair had highlighted various sections in yellow for the Applicant had omitted to price as part of the variation he completed and issued earlier that day. The Applicant completed this variation on 14 July 2021. The Applicant was then requested to undertake a further variation to incorporate scaffold between the basement and ground level, which had been identified as being ‘missed’ in an email exchange between Mr Sinclair and the Respondent’s construction manager.

In relation to point 3, the Respondent accepts, and I find, that there was no unsatisfactory performance by the Applicant in not actioning the urgent variation request.

In relation to point 6, the Applicant submitted the original estimate was prepared by another estimator, and the Applicant’s involvement with this job was to undertake variations as requested by Mr Sinclair. The Applicant submitted that the scope of the variation set out in yellow highlighting did not include any underground or basement scaffold and that he was ‘falsely’ blamed for the missing scaffold between the basement and the ground floor.[90]

However, despite the Applicant focusing heavily on the issue of scaffold between the basement and ground level, that was not the concern raised by Mr Sinclair. Rather, the issue was that the Applicant had omitted numerous internal sections of the ‘double internal skin scaffold’ as part of the variation he prepared and issued at 9.25am on 13 July 2021.[91]

Having regard to the evidence and material before the Commission, I am satisfied, and so find, the Applicant failed to include the highlighted sections identified by Mr Sinclair in the variation prepared by him on 13 July 2021.

Point 4

KwikAz Clips and Scaffshield are different products serving a different purpose. KwikAZ Clips are used to secure netting or shade cloth to scaffold. Scaffshield is a locking mechanism which reduces the risk of scaffold ties and couplers from being detached from fixed scaffolding, reducing the risk of collapse.

The amendment made by the Applicant was one of ten suggested improvements to the Estimation Template, which were set out in an email to Mr Humphrey and copied to Mr Sinclair and Mr Reed.[92]

While the amendment and the Applicant’s response to Mr Sinclair demonstrate a lack of understanding of the functionality of Estimation Template and product knowledge by the Applicant, I do not consider this matter demonstrates unsatisfactory performance. Rather, the Applicant put forward a suggestion to senior management. Had the Applicant amended the Estimation Template in the context of a ‘live’ estimate, a different conclusion may have been reached.

Point 5

In his response to Mr Sinclair, the Applicant states that the information upon which he was to base the estimate was insufficient, but then proceeded to include chain wire and shade cloth – items that were not within the scope of works. It is also clear on the material before the Commission[93], and I so find, that the Applicant took an excessive period of time to complete the task, failed to include labour costs and included additional items that were not within the scope of works.

Point 7

This point related to job number 40-10428. The Applicant’s estimate resulted in 173.7 tonnes of scaffold with a cost of $215,841.00. The Respondent’s records identify that the Applicant took 478 minutes to prepare the estimate. By contrast, Ms Sealey prepared a ‘rough’ estimate in approximately 30 minutes. Ms Sealey’s estimate resulted in 136.6 tonnes of scaffold with a cost of $166,588.00.[94]

It was the unchallenged evidence of Ms Sealey that the Applicant’s estimate was set not out correctly in that he did not price the areas individually and floor by floor as management had directed, and that the Applicant’s calculation of lineal metres was incorrect.[95]

The Applicant submitted that the different number of items set out in the two estimates resulted in different outcomes and that the estimators were using different tools to prepare the estimate[96] and that Ms Sealey’s estimate cannot be used as a comparator because it was a rough estimate.[97]

Under cross examination, Mr Sinclair rejected the contention that estimators used different tools[98] and said that he asked Ms Sealey to conduct reviews of the Applicant’s work as she was the best estimator.[99] Further, Mr Sinclair stated that when he received Ms Sealey’s estimate, and noting the disparity between the Applicant’s and Ms Sealey’s estimate, he conducted his own ‘rough’ estimate which was closer to Ms Sealey’s than the Applicant’s.[100]

Although the estimates undertaken by Mr Sinclair and Ms Sealey were described as ‘rough’ estimates for the purpose of reviewing the Applicant’s work, I accept Mr Sealey’s evidence in relation to the errors she identified in the Applicant’s estimate, which is likely to have resulted in the inaccuracies in the lineal metres and consequently, the much higher cost calculated by the Applicant. Having regard to all of the evidence, I am satisfied and so find that the Applicant made the errors identified by Ms Sealey.

Point 8

The Respondent accepts the Applicant’s contention that comparing his estimate to Ms Sealey’s is not a ‘like for like’ comparison on the basis that the estimators applied different hire durations.

However, the concerns of the Respondent were no limited to the hire durations. Ms Sealey gave evidence that she identified the following issues with the Applicant’s estimate[101]:

·In relation to Stage 2, the Applicant allowed for three construction stairs, despite the drawings requiring an allowance for four construction stairs and the Applicant’s calculation of lineal metres was inaccurate resulting in a shortfall of approximately 20 tonnes of scaffold;

·In relation to Stage 3, the Applicant calculated 123 lineal metres compared to 96 lineal metres.

Ms Sealey stated that inaccuracies in lineal metres and scaffold weights will have a consequential impact on labour, transport and sundry costs.[102]

The Applicant did not address the issues identified by Ms Sealey in his response to Mr Sinclair, nor was Ms Sealey’s evidence on this matter challenged in cross examination, or in the Applicant’s closing submissions. I accept her evidence and find that the Applicant made the errors identified.

Point 9

This point relates to job number 40-10487. In an email exchange between the Applicant and Mr Reed on 10 August 2021, the Applicant acknowledges that he did not include hop-up movements and tie relocations. In relation to the manual handling cost, the Applicant advised Mr Reed that it was calculated in consultation with the construction team and acknowledged it could be improved by someone with more experience.[103]

While Mr Reed raised concerns regarding the calculation of the manual handling cost, the Respondent has not otherwise demonstrated that it was inaccurate.

However, in relation to the issues concerning the hire durations and the failure to include hop-up movements, loading bays and tie relocations, it is clear, and I find, that the Applicant did not accurately provide for these items in the estimate prepared by him.

Point 10

This point relates to job number 40-10529. On 11 August 2021, the Applicant was requested to prepare an estimate for Stage 1 and Stage 2 with two options: one option including a ‘3 board with 3 board hop-up’ and the other option including a ‘5 board with 3 board hop-up’. [104]

On 12 August 2021, the Applicant issued the estimate to the salesperson, Mr Hockley and noted in the covering email that although the scope of works for the job required “access stairs, lifts, roof overruns, hop-up movements, openings for hoists, openings for loading platforms, manual handling for dismantle and tie relocations” he has not yet included those items in the estimate.[105] A short time later, Mr Hockley sent an email to the Applicant questioning why the items were not included in the estimate if they were requested by the client in the scope of works.[106]

Although Mr Sinclair reallocated the job, on 16 August 2021, Ms Sealey was instructed to review the estimate prepared by the Applicant. Ms Sealey gave evidence that she identified the following issues with the Applicant’s estimate[107]:

· Incorrect hire durations; and

· Items such as hop-up movements, scaffold overruns, and allowances for stair access and internal lift cores were not including despite being requested in the client’s scope of works.

While the Applicant did not challenge Ms Sealey’s evidence, during the proceedings, it is put to Mr Sinclair that the Applicant could not complete the estimate without access to all of the plans.[108] However, the proposition put to Mr Sinclair ignores the fact that the Applicant had access to the client’s scope of works and identified those items were required, but for an unexplained reason did not include them. It also does not explain how the Applicant was able to calculate the perimeter scaffold if he did not have access to the required plans and documents.

Having regard to all of the evidence, I am satisfied and so find that the Applicant made the errors identified by Ms Sealey.

Written Warning – September 2021

On 13 September 2021, Mr Sinclair was copied into an email sent by a sales representative to the Applicant. The email identified a range of errors in an estimate prepared by the Applicant. This prompted Mr Sinclair to have discussion with Mr Heng regarding the Applicant’s lack of progress under the PIP.[109]

On 14 September 2021, Mr Sinclair met with the Applicant during which Mr Sinclair provided an opportunity to the Applicant to explain why his performance was not improving under the PIP. Mr Sinclair’s evidence of this meeting, which was not challenged by the Applicant, is set out as follows[110]:

Mr Sinclair: Nedim, I have invited you to this meeting because I am concerned that you are not meeting the criteria in the PIP. Can you please provide me with an explanation as to why you’re not achieving the required level of progress?

The Applicant: I don’t agree with your assessment. In my view, I am meeting the criteria and you are not providing me with the standard estimates to base my work on.

Mr Sinclair: Nedim, you are not meeting the criteria because your estimates are 20% off what others are estimating. We’ve seen instances where you have included or excluded items that are not required. Can you please explain why this is still happening?

The Applicant: can you put in writing what you want me to respond to? I will respond in writing.

Mr Sinclair: Ok. I will adjourn this meeting for a week until 20 September and you have until then to provide a response in writing.

Following the meeting, Mr Sinclair sent an email to the Applicant setting out two questions – why he has not been able to meet the performance standards; and is there anything that is preventing him from doing so.[111]

At 2.10pm on 20 September 2021, the Applicant sent his response by email to Mr Sinclair as follows[112]:

Dear Brett

I don’t agree with your markings. I am doing well, but your level of feedback is very negative.

I am meeting my deadlines and my work is consistent with other estimators.

Furthermore, it is up to the standards required.

You are constantly criticising my work performance in a negative way. If you are objective, you could mention some positive points about my work performance.

Please note that the continuous negative criticism of my performance is a form of bullying.

It would be really good if you can model a project as an example for estimators, how do you tackle a real life estimating project step by step.

So we all estimators can be consistent and meet your expectations. This can be documented as a Procedure manual as a reference.

Regards

Nedim.

At 3:00pm on 20 September 2021, the Applicant met with Mr Sinclair and Mr Heng. The Applicant did not bring a support person. Mr Sinclair’s evidence of this meeting, which was not challenged by the Applicant, is set out as follows[113]:

Mr Sinclair: Nedim, I have read and considered your written response. Your response doesn’t properly explain why your estimates are inaccurate. There is nothing you have said in your email that shows that the information I have relied upon to make my assessment of your performance is incorrect. Is there anything that you have to show for that?

The Applicant: No. I have nothing further to add to my written statement.

Mr Sinclair: I see on your statement, you have accused me of bullying you. That’s the second time you’ve made the accusation. If you truly believe that I am bullying you, you should speak to Andrew.

The Applicant: That’s not necessary.

Mr Sinclair: In your statement, you also request for a procedural manual to take you step-by-step estimating a project. I don’t have a manual on hand. However, I’m more than happy for you to speak to another estimator and organise a training session where they can take you through the process step-by-step.

On 23 September 2021, Mr Sinclair decided to issue a warning to the Applicant which unambiguously stated the Applicant’s performance was not satisfactory and that further instances of poor performance, including not achieving the milestones set out in the PIP may result in further disciplinary action including termination of employment.[114]

PIP Final Review

On 20 October 2021, Mr Sinclair commenced the PIP Final Review by requesting the Applicant complete a self-assessment ahead of a meeting to take place the following week.

On 22 October 2021, the Applicant provided this to Mr Sinclair in which described his performance as generally meeting the standard required. The Applicant stated that he required further guidance from Mr Sinclair with respect to cost saving solutions, and that additional software and guidelines would assist him to achieve satisfactory performance.[115]

On 26 October 2021, the Applicant met with Mr Sinclair and Mr Heng. As was the case at the earlier stages of the PIP, the meeting proceeded with Mr Sinclair explaining his assessment of the Applicant’s performance, before advising the Applicant that he will be provided with an opportunity to submit a written response.[116]

On 27 October 2021, Mr Sinclair sent an email to the Applicant attaching documents relating to ‘9 points’ of unsatisfactory performance relevant to the PIP Final Review.[117] The issues raised by the ‘9 points’ can be summarised as follows:

· Point 1 – Timeliness: Failing to complete estimate by deadline and excessive time (approximately 12 hours) taken to complete task;

· Point 2 – Timeliness: Failing to complete estimate by deadline and excessive time (approximately 12 hours) taken to complete task;

· Point 3 – Accuracy: Applicant failed to include a scaffold gantry in the estimate;

· Point 4 – Accuracy: Applicant prepared estimate based on incorrect scaffold system;

· Point 5 – Accuracy: Incorrect calculation of lineal metres;

· Point 6 – Accuracy: Incorrect calculation of lineal metres;

· Point 7 – Accuracy: Incorrect calculation of lineal metres;

· Point 8 – Incorrect filing: Applicant failed to save files in correct location;

· Point 9 – Communication: Applicant failed notify his supervisor that he could not access the ‘job board’. The Respondent’s concern was that the Applicant was not performing any work.

On 1 November 2021, the Applicant provided the following response to the ‘9 points’ raised by Mr Sinclair[118]:

Dear Brett

Regarding PIP-3 conducted on 26/10/2021.

As per my detailed records that was Meeting No. 9.

Your 9 x Points are taken out of context, and don’t reflect real working situation of my estimating workings.

I don’t agree with your conclusions.

In my view, I am providing good estimates to my sales teams.

Furthermore, I remain a rock-solid Waco member and continue to do so.

Yours sincerely

Nedim Dajanovic
Estimator

On 9 November 2021, Mr Sinclair sent correspondence to the Applicant summarising the PIP process to date and stated that the Applicant’s response to the PIP Final Review did not satisfactorily address the Respondent’s concerns. The correspondence stated that the Respondent had formed the view that the Applicant has not achieved the expected outcomes of the PIP, specifically in the areas of accuracy of estimates, productivity and timeliness, and invited the Applicant to meet with the Respondent the next day. The correspondence stated the purpose of the meeting was for the Respondent to explain why it considered that the Applicant has not reached the expected outcomes of the PIP and provide the Applicant with an opportunity to respond.[119]

On 10 November 2021, the Applicant met with Mr Sinclair and Mr Heng. The meeting proceeded by way of Mr Sinclair summarising the PIP process and seeking the Applicant’s views. It was the unchallenged evidence of Mr Sinclair that the Applicant did not dispute Mr Sinclair’s summary and declined to say anything in response when invited to do so by Mr Heng.[120]

Show Cause

Following the meeting on 10 November 2021, and having considered the Applicant’s response, Mr Sinclair concluded that the Applicant had not met the expected standards of the PIP and decided to issue correspondence to the Applicant inviting him to show cause as to why his employment should not be terminated for unsatisfactory performance. The ‘show cause’ letter requested the Applicant to provide a written response ahead of meeting to be held on 12 November 2021.[121]

On 11 November 2021, and in response to the invitation to show cause as to why his employment should not be terminated, the Applicant sent a response to each of the ‘9 points’ raised by Mr Sinclair as part of the PIP Final Review.[122] The Applicant’s response can be summarised as follows:

· Point 1 – the Applicant disputed that he spent 12 hours working on the estimate. The Applicant stated that he works on multiple jobs throughout the day and the tracking system does not accurately record that. The Applicant stated that he completed the job in a reasonable time and it was the Respondent’s tracking system that failed to accurately record his time;

· Point 2 – the Applicant disputed that he spent 12 hours working on the estimate. The Applicant stated that although this particular job had a unique requirement, he completed the job in a reasonable time and it was the Respondent’s tracking system that failed to accurately record his time;

· Point 3 – the Applicant stated this job required several items and it was priced correctly;

· Point 4 – the Applicant stated this job had several elements to it, including hoardings, scaffold and birdcages. The Applicant accepted that he incorrectly used birdcage elements instead of a perimeter scaffold system;

· Point 5 – the Applicant stated that he priced this job correctly and that it is not adequate to compare two estimates by estimators in different locations where different labour rates apply;

· Point 6 – the Applicant stated he priced this job correctly;

· Point 7 – the Applicant stated he priced this job correctly;

· Point 8 – the Applicant stated that he was not provided with the relevant documents to file; and

· Point 9 – the Applicant stated that the job board was not working properly and that the suggestion he was not doing work was not fair. The Applicant stated that he often assisted team members in other branches between jobs.

The Applicant did not otherwise respond to the invitation to show cause as to why his employment should not be terminated.

PIP Final Review - Findings

As the Applicant disputes a number of the issues raised as part of the PIP Final Review, it is necessary to make findings in relation to the performance concerns raised by Mr Sinclair.

Points 1 and 2

There are two aspects to the Respondent’s concerns regarding these points. That the Applicant spent approximately 12 hours undertaking each estimate, and that he failed to complete the estimate by the required deadline.

In relation to the issue of excessive time to complete the estimates, the Applicant stated that he often works on multiple jobs throughout the day. I understand that to mean that the Applicant leaves the ‘clock’ running while he undertakes the other tasks. Taking all of the evidence into consideration, on balance, I accept the Applicant’s evidence that he was working on other tasks.[123] However, this inevitably leads to the conclusion that the Applicant was not correctly recording his time spent on jobs.

In relation to the failure to meet deadlines, the evidence is clear, and I find, that the Applicant did not meet the Respondent’s internal deadlines for the completion and review of the estimates.[124] However, the evidence does not support a finding that the Applicant’s failure to meet the Respondent’s internal deadlines resulted in the Respondent missing the external tender deadline for the jobs.[125]

Point 3

This point related to job number 20-10979. It was the unchallenged evidence of Ms Sealey that she conducted a review of the Applicant’s estimate and while “his numbers looked good”, he failed to allow for a scaffold gantry.[126] The Applicant did not dispute this in his response to Mr Sinclair, nor challenge Ms Sealey’s evidence relating to her review. Accordingly, I accept the Respondent’s evidence and find that Applicant did not allow for the scaffold gantry.

Point 4

In his response to Mr Sinclair the Applicant accepted, and I so find, that he incorrectly used birdcage elements instead of perimeter scaffold.

Point 5

This point related to job number 55-10926. Ms Sealey completed a review of the Applicant’s estimate for this job and identified that the Applicant did not follow the client’s scope of works and multiple errors in the Applicant’s calculation of lineal metres. There were numerous items in the Applicant’s estimate that were incorrect by over 100 lineal metres.[127]

Although Ms Sealey’s breakdown and comparison of lineal metres was provided to the Applicant to respond to, he did not dispute those calculations in his response to Mr Sinclair or challenge Ms Sealey’s evidence in the proceedings. Rather, in his response to Mr Sinclair he challenged the comparison of two estimates that use different labour rates.

Having regard to all of the evidence, I am satisfied and so find that the Applicant made the errors identified by Ms Sealey.

Point 6

This point related to an incorrect calculation of lineal metres resulting in an underestimate of approximately $6000.00.[128] The Applicant submitted that this constituted a variance of 2.4% of the overall job value and was within the tolerance of 5%.[129]

The Respondent accepts this issue is minor and in re-examination Mr Sinclair stated that if this was the only issue arising under the PIP, the Applicant’s employment would not have been terminated.[130]

The Applicant’s estimate is within the Respondent’s tolerance range. Accordingly, I do not accept this point constitutes unsatisfactory performance.

Point 7

This point related to job number 55-10940. Ms Sealey completed a review of the Applicant’s estimate for this job errors in the Applicant’s calculation of lineal metres.[131] Despite the significant differences (approximately 25-30%) in lineal metres between the estimates, the cost each estimator arrived was within 5%.

Although Ms Sealey’s breakdown of lineal metres was provided to the Applicant to respond to, he did not dispute those calculations in his response to Mr Sinclair or challenge Ms Sealey’s evidence in the proceedings.

The Applicant submits that this is not an example of unsatisfactory performance as the variance in the estimation value within the tolerance range.[132] However, this submission misses the point. The Respondent’s concern is in relation to the Applicant’s incorrect calculation of lineal metres.

Accordingly, and having regard to all of the evidence, I am satisfied and so find that the Applicant made the errors identified

Point 8

This point concerns whether the Applicant saved files in the correct location. In his response to Mr Sinclair the Applicant stated that he was never provided with the documents to in order to save them in the job file. The Respondent accepts this response.[133] Accordingly, this does not constitute unsatisfactory performance.

Point 9

The point relates to Applicant failing notify his supervisor that he could not access the ‘job board’ on 20 October 2021 due to connection issues. The Respondent’s concern was that the Applicant did not raise this and was not performing any work. The Respondent relies on a MS Teams exchange between Ms Sealey and the Applicant in which the Applicant states he cannot access the job board and needs a new task. A screenshot of the Respondent’s tracking system shows the Applicant commenced working on the “Shoreline” job shortly after the MS Teams exchange with Ms Sealey.[134]

I accept the Respondent’s submission that the Applicant should have alerted his immediate supervisor or management if the job board was not working. However, there is insufficient evidence before the Commission to find that the Applicant was not otherwise performing any meaningful work for the Respondent in the period that he could access the job board.

Meeting on 12 November 2021 – Termination of Employment

On 12 November 2021, the Applicant attended a meeting with Mr Sinclair and Mr Heng. Mr Gasan Mohamed also attended as the Applicant’s support person.

There was no direct evidence adduced by either party as to what was said in this meeting.[135] However, it is not in dispute that the Applicant’s employment was terminated during the meeting. The letter of termination[136] summarises the meeting as follows:

“In Today’s meeting we discussed the written response you had provided where you claimed he performed adequately against the 9 areas of concern regarding the PIP. However, you were advised that you had not provided any reason as to why your employment should not be terminated for reason of poor performance as instructed in the Show Cause Letter.

You were also advised that the written response you provided had no evidence or information to support your claims and that the company reviewed your response to be a matter of opinion, not statements of fact that could be substantiated.

Although you had not provided reasons to show cause in your written response, the Company did ask if you’d like to provide a verbal plea in Today’s meeting.

To this, you stated:

·     English is your second language;
·     Throughout the 15 meetings regarding your performance you have had to defend your actions;
·     Your manager’s assessments were fabricated;
·     You claimed you had little support to perform your duties;
·     You claimed over the last few months you would ask for specific software which was not provided; and
·     You had not been permitted to attend any sites the last 18 months to view the scaffolding system.

After considering your further response, you are advised the Company does not agree with your assessment and that you have been provided with ample opportunity, support and time to be able to improve and elevate your performance to a satisfactory level.”

The letter confirms the Applicant’s employment is terminated for unsatisfactory performance effective from 5:00pm on 12 November 2021 and that the Applicant will receive a payment in lieu of notice.

Summary of the Applicant’s Submissions

The Applicant submitted that his estimates were the most accurate[137], that the “entire PIP process is questionable, flawed and fabricated”[138], and that there was not a valid reason for the termination of his employment.[139]

The Applicant submitted that prior to Mr Sinclair commencing in the role of national design and estimating manager, Mr Humphrey assessed the Applicant’s performance as satisfactory.[140]

The Applicant submitted that it was Mr Sinclair’s first managerial role and that he was prone to errors.[141] The Applicant submitted he was not afforded procedural fairness and was only permitted to have a support person present on two occasions.[142]

The Applicant submitted that the real reason for the termination of his employment was that the Respondent wanted to further restructure the estimation team.[143]

The Applicant also submitted that Mr Reed participated in the proceedings in retaliation for the Applicant making a complaint about loud music in the office.[144]

The Applicant submitted that he is 58 years old and the termination of his employment has had a significant impact upon his personal and economic situation.[145]

Summary of the Respondent’s Submissions

The Respondent submitted that the evidence clearly demonstrates a significant number of examples of unsatisfactory performance relating to accuracy, communication and productivity over a lengthy period.[146]

The Respondent submitted that it is well accepted that an employee’s poor (or unsatisfactory) performance may constitute a valid reason for dismissal.[147]

The Respondent submitted that the Applicant was afforded procedural fairness in that he was notified of the reason for the dismissal, given an opportunity to respond and warned throughout the PIP process that continued unsatisfactory performance may result in the termination of his employment.[148]

The Respondent submitted that there was no unreasonable refusal to allow the Applicant to have a support person present during the PIP and termination process. The Respondent further submitted that its refusal to allow Mr Laalaa to attend meetings as the Applicant’s support person after 24 August 2021 was not an unreasonable refusal taking into consideration Mr Laalaa’s conduct on 16 and 24 August 2021. The Respondent stated that at no stage did the Applicant inform it that Mr Laalaa was his only support person.[149]

The Respondent rejected the submission that there were ulterior motives for the termination of the Applicant’s employment and denied the Applicant was subject to bullying by Mr Sinclair.[150]

The Respondent submitted that the termination of the Applicant’s employment was not harsh, unjust or unreasonable and that the application must be dismissed.[151]

Has the Applicant been dismissed?

A threshold issue to determine is whether the Applicant has been dismissed from their employment.

Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.

Initial matters

Section 396 of the FW Act requires the Commission to decide four initial matters before considering the merits of the application.

There is no dispute between the parties, and I am satisfied on the evidence that:

(a) the application was made within the period required in s.394(2);

(b) the Applicant is a person protected from unfair dismissal;

(c) the Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and

(d) the Applicant’s dismissal was not a case of genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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 the FWC considers relevant.

I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[152]

I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[153] and should not be “capricious, fanciful, spiteful or prejudiced.”[154] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[155]

The reason for the dismissal was unsatisfactory performance in relation to the accuracy, and timeliness in preparing estimates.

The evidence is that in May 2021, the Respondent formed the view that the Applicant was not performing to a satisfactory level and placed the Applicant on a PIP.

(c) The PIP comprised three stages and ran for a period of five months. Throughout the PIP, the Applicant and the Respondent met regularly to review the Applicant’s performance.

I have set out above my findings with respect to each of the Respondent’s ‘points’ of unsatisfactory performance for each stage of the PIP. While I have found that some of the Respondent’s concerns did not constitute unsatisfactory performance or were minor issues in the context of the matter, the evidence demonstrates that the Applicant was not performing satisfactorily by frequently making errors, in some cases significant errors, in the preparation of estimates. Furthermore, the evidence shows there was no improvement by the Applicant throughout the PIP, a period of five months.

There was no suggestion that the standard required by the Respondent was unreasonable and the evidence shows that Ms Sealey, an employee with a background in sales who transitioned into the role of an estimator, was performing to the standard required and was the best estimator.[156]

I do not accept the Applicant’s submission that the PIP was fabricated and flawed. To the extent that there were some procedural fairness issues in the meeting on 1 July 2021, the subsequent involvement of Mr Heng in the PIP process and provision of documentation to the Applicant at each stage of the PIP cured any issue that arose in that meeting.

I do not accept the contention that the Respondent wanted to terminate the Applicant’s employment in order to further restructure the estimating team. I also reject the contention that Mr Reed participated in the proceedings in retaliation for the Applicant complaining about loud music in the office.

Having regard to all of the circumstances, I am satisfied, and so find, the Applicant’s unsatisfactory performance was a valid reason for his dismissal. This factor weighs in favour of the dismissal not being unfair.

Was the Applicant notified of the valid reason?

Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[157]

Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[158] and in explicit[159] and plain and clear terms.[160]

It is not in dispute, and I find that the Applicant was notified of the reason for the termination of his employment prior to the decision to dismiss being made, in explicit and plain and clear terms in the show cause letter and the meeting on 12 November 2021. This factor weighs in favour of the dismissal not being unfair.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[161]

The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.[162] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[163]

It is not in dispute that the Applicant was given an opportunity to respond to the reason for the dismissal in writing on 11 November 2021 and at the meeting on 12 November 2021.

In all of the circumstances, I find that the Applicant was aware of the precise nature of the Respondent’s concerns and was given an opportunity to respond to the reasons for his dismissal prior to the decision to dismiss being made. This factor weighs in favour of the dismissal not being unfair.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[164]

The discussion relating to dismissal took place on 12 November 2021. Mr Gasan Mohamed attended that meeting as the Applicant’s support person. There was no refusal to allow the Applicant to have a support person.

In relation to the Respondent’s decision to exclude Mr Laalaa from attending meetings as the Applicant’s support person in August 2021, I do not accept this was an unreasonable refusal for the purposes for s.387(d) of the FW Act for two reasons.

First, at that stage of the PIP process there were no discussions relating to dismissal. Second, I accept the evidence of the Respondent’s witnesses that in the meetings on 16 and 24 August 2021, Mr Laalaa was disruptive, argumentative, and attempted to advocate the Applicant’s case.

This factor weighs neutrally in my consideration.

Was the Applicant warned about unsatisfactory performance before the dismissal?

I am satisfied and find that the Applicant was warned about unsatisfactory performance before his dismissal. This factor weighs in favour of the dismissal not being unfair.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

It is not in dispute, and I find that the size of the Respondent’s enterprise had no impact on the procedures followed. This factor weighs neutrally in my consideration.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

It is not in dispute, and I find that the Respondent’s enterprise did not lack dedicated human resource management specialists and expertise. This factor weighs neutrally in my consideration.

What other matters are relevant?

Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

As stated above, the Applicant submitted that he is 58 years old and the termination of his employment has had a significant impact upon his personal and economic situation but did not provide any detail beyond that level of generalisation. I have taken these matters into account. However, in all the circumstances, I do not consider that these matters support a finding that the Applicant’s dismissal was harsh, unjust or unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[165]

Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable because there was a valid reason for the dismissal and no other factors weigh in favour of a finding that the dismissal was unfair.

In coming to this decision, I have taken into account all of the evidence and submissions of the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.

Conclusion

Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.

The Application is dismissed. An Order to that effect will be issued with this decision.

COMMISSIONER

Appearances:

Mr A LaaLaa, for the Applicant.
Mr J Li, solicitor, for the Respondent.

Final Written Submissions:
Applicant: 26 April, 31 May.
Respondent: 17 May.

Hearing details:

Sydney (via Microsoft Teams video-link):
2022.
10, 22 March.
22, 23 February.

[1] Exhibit R3 at [5].

[2] Exhibit R3 at [6].

[3] Ibid; Exhibit R1 at [6]; Exhibit R2 at [6].

[4] Exhibit R1 at [6]; Exhibit R2 at [7]; Transcript at PN278-280.

[5] Exhibit R2 at [7]-[8]; Exhibit R3 at [81].

[6] Exhibit R2 at [18].

[7] Exhibit R1 at [7]; Exhibit R2 at [2]-[5]; Exhibit R3 at [6].

[8] Exhibit R1 at [7]; Exhibit R2 at [3]-[5]; Exhibit R3 at [7].

[9] Exhibit R1 at [9].

[10] Exhibit A2 at [1] and [6]; Exhibit R1 at [4].

[11] Exhibit A2, Annexure E; Exhibit R1 at [4], Annexure AH1.

[12] Exhibit R1, Annexure AH1 (HB at pages 425-427); Transcript at PN395.

[13] Exhibit A2, Annexure A.

[14] Transcript at PN949-951.

[15] Exhibit A2 at [7]; Exhibit R1 at [12]; Exhibit R3 at [1], [3] and [8].

[16] Exhibit R3 at [10]-[11], Annexure BS1.

[17] Mr Reed was the Sales Manager for the Respondent’s Sydney branch from November 2020 until September 2021, Acting Sydney Branch Manager from September 2021 to December 2021, and Regional Manager NSW/ACT from 1 January 2022. Mr Reed was previously employed by the Respondent in various roles between February 2012 and November 2019.

[18] Exhibit R3 at [12]-[13]; Exhibit R4 at [5].

[19] Exhibit R3 at [14]-[16].

[20] Exhibit R1 at [13]-[14]; Exhibit R3 at [17].

[21] Exhibit R3 at [18]-[19].

[22] Exhibit R3, Annexure BS2.

[23] Exhibit A2 at [8], Annexure B; Exhibit R3, Annexure BS2.

[24] Exhibit A2, Annexure B (HB at page 54); Exhibit R3, Annexure BS2 (HB at page 273).

[25] Exhibit A2, Annexure B (HB at page 55); Exhibit R3, Annexure BS2 (HB at page 274).

[26] Exhibit R3, Annexure BS2 (HB at page 279).

[27] Exhibit R3 at [29]; Exhibit R7.

[28] Exhibit A2 at [8]-[9].

[29] Transcript at PN540-542, PN548-549.

[30] Transcript at PN3491, PN3657-3736.

[31] Exhibit R3 at [20]; Transcript at PN3012.

[32] Exhibit R3 at [20].

[33] See paragraph [40] below.

[34] See paragraph [42] below.

[35] Exhibit R3 at [23]-[28], Annexures BS3, BS4 and BS4A.

[36] Exhibit A2 at [15], Annexure C.

[37] Transcript at PN588-591.

[38] Exhibit A2 at [16], Annexure F; Exhibit R1 at [17], Annexure AH3.

[39] Exhibit R3 at [29], Annexure BS3. Transcript at PN1116; PN3818-3862.

[40] Exhibit R1 at [17]-[18], Annexure AH3.

[41] Exhibit R1 at [19].

[42] Exhibit R3, Annexure BS4.

[43] Ibid.

[44] Exhibit R3 at [35]-[36], Annexure BS7.

[45] Exhibit R3, Annexure BS9.

[46] Exhibit R3, Annexure BS10.

[47] Exhibit R1 at [23], Annexure AH5.

[48] Ibid.

[49] Exhibit R3 at [40].

[50] Exhibit A1 at [1]-[10]; Exhibit A2 at [18].

[51] Exhibit R3 at [40]-[43].

[52] Exhibit R1 at [25].

[53] Ibid at [26].

[54] Ibid at [27]-[28].

[55] Ibid at [38].

[56] Transcript at PN1008-1090; PN2905-2967.

[57] Transcript at PN2939-2945.

[58] Exhibit R3 at [45], Annexure BS12; Exhibit R8.

[59] Exhibit R3 at [45], Annexure BS12; Exhibit R8.

[60] Exhibit R3 at [46], Annexure BS13.

[61] Exhibit R3 at [47], Annexure BS14.

[62] Exhibit R3 at [50]-[51].

[63] Exhibit R1 at [31].

[64] Exhibit R1 at [32].

[65] Exhibit R1 at [33].

[66] Exhibit R3 at [51]-[53].

[67] Exhibit R1 at [34]; Exhibit R3 at [54].

[68] Exhibit A1 at [11]-[13]; Exhibit A2 at [19], Annexure G; Exhibit R1 at [34]; Exhibit R3 at [54]; Exhibit R11.

[69] Exhibit R3 at [56], Annexure BS17.

[70] Exhibit R3 at [55]; Exhibit R11.

[71] Exhibit R7, Item 1.

[72] Transcript at PN2167, PN2666-2672, PN4020-4026 and PN4616-417.

[73] Applicant’s closing submissions at [74].

[74] Exhibit R8, Point 3 at page 1.

[75] Exhibit R3, Annexure BS13.

[76] Exhibit R8, Point 4 at page 1.

[77] Ibid at pages 3 and 4.

[78] Exhibit R8, Point 12, Point 13

[79] Exhibit R3 at [33], Annexure BS5.

[80] Respondent’s closing submissions at [63]-[65].

[81] Exhibit R8, Point 7, Point 14.

[82] Respondent’s closing submission at [74].

[83] Exhibit R3 at [57].

[84] Exhibit R3 at [57], Annexure BS18; Exhibit R9.

[85] Exhibit R3 at [58], Annexure BS19.

[86] Exhibit R3 at [59].

[87] Exhibit R9, Point 1, Document titled “Scan Aus Grand Prix”.

[88] Exhibit R3, Annexure BS19.

[89] Ibid.

[90] Applicant’s closing submissions at [75] and [92].

[91] Transcript at PN4129-4140.

[92] Exhibit R9, Point 4.

[93] Exhibit R9, Point 5.

[94] Exhibit R9, Point 7 and “Team Timesheet”.

[95] Exhibit R2 at [12], Annexure ES1

[96] Exhibit R3, Annexure BS19; Applicant’s closing submissions at [39] “Fourth Project”.

[97] Ibid.

[98] Transcript at PN4370.

[99] Transcript at PN4409-4410.

[100] Transcript at PN4391-4393.

[101] Exhibit R2 at [13].

[102] Ibid.

[103] Exhibit R9, Point 9 “Scan BS”.

[104] Exhibit R9, Point 10 “Scan Lidcombe BS”.

[105] Ibid.

[106] Ibid.

[107] Exhibit R2 at [14], Annexure ES3.

[108] Transcript at PN4349-4364.

[109] Exhibit R3 at [60]-[61].

[110] Exhibit R3 at [62].

[111] Exhibit R3 at [63]-[64], Annexure BS21.

[112] Exhibit R3, Annexure BS21.

[113] Exhibit R3 at [65].

[114] Exhibit R3 at [66], Annexure BS22.

[115] Exhibit R3 at [68], Annexure BS23.

[116] Exhibit R3 at [69]-[70].

[117] Exhibit R3 at [71], Annexure BS24; Exhibit R10.

[118] Exhibit R3 at [72], Annexure BS25.

[119] Exhibit R3 at [73], Annexure BS26.

[120] Exhibit R3 at [74].

[121] Exhibit R3 at [75], Annexure BS27.

[122] Exhibit R3, Annexure BS28.

[123] Exhibit R3, BS28; Transcript at PN494-503.

[124] Exhibit R10, Point 1, Point 2.

[125] Ibid; Transcript at PN4523-4533.

[126] Exhibit R2 at [15], Exhibit R10, Point 3.

[127] Exhibit R2 at [17], Annexure ES6.

[128] Exhibit R10, Point 6 Email.

[129] Applicant’s closing submissions at [39] “Second Project”.

[130] Transcript at PN4518.

[131] Exhibit R10, Point 7 Email.

[132] Applicant’s closing submissions at [39] “Third Project”.

[133] Respondent’s closing submissions at [220].

[134] Exhibit R10, Point 10.

[135] See Exhibit A2 at [25]; Exhibit R3 at [77].

[136] Exhibit R3, Annexure BS29.

[137] Applicant’s closing submissions at [95].

[138] Ibid at [99].

[139] Ibid at [98].

[140] Ibid at [99].

[141] Ibid.

[142] Ibid at [100].

[143] Ibid at [93].

[144] Ibid at [41]-[42].

[145] Applicant’s pre-trial submissions; Applicant’s closing submissions at [101].

[146] Respondent’s closing submissions at [250]-[251], [254].

[147] Ibid at [249].

[148] Ibid at [257]-[259], [291]-[297].

[149] Ibid at [260]-[290].

[150] Ibid at [310]-[319]

[151] Ibid at [320]-[322].

[152] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].

[153] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

[154] Ibid.

[155] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685.

[156] Transcript PN4409-4410; Exhibit R10, Point 2, Email: “RE: 50.10944 Horizon apts”

[157] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].

[158] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.

[159] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[160] Ibid.

[161] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [75].

[162] RMIT v Asher (2010) 194 IR 1 at 14-15.

[163] Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7.

[164] Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].

[165] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7].

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