Neville Pyle v CVGT Australia

[2013] FWC 1944

[2013] FWC 1944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neville Pyle
v
CVGT Australia
(U2012/8713)

COMMISSIONER RYAN MELBOURNE, 2 APRIL 2013

Termination of employment - valid reason.

[1] This matter involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Mr Neville Pyle (the Applicant) and the respondent employer is Central Victorian Group Training Australia (CVGT).

[2] The Applicant is a carpenter with 30 years of experience in the building industry and was employed by the Respondent, Central Victorian Group Training Australia (CVGT) as a Trainer primarily of apprentices. The Applicant was recognised by the Respondent to be a particularly good hands on trainer. In September 2011 a performance appraisal of the Applicant described him as follows:

“When it comes to delivering training on apprentices and your knowledge of B&C In (sic) carpentry you excel and have the skills to impart this knowledge onto the apprentices under your control.

Again as above your skills and knowledge within the B&C carpentry industry is unsurpassed and when required you are able to train apprentices to a competent standard and in excess of this.

Neville you have the subject knowledge and expertise and are very willing to share this and use this knowledge to help in the development of courses, when required.”  1

[3] Despite these quite accurate complimentary comments the Applicant was dismissed in May 2012 for poor work performance.

[4] The situation presented by this case seems to me to be a classic case of a round peg in a square hole! The applicant was an “old school” carpentry trades trainer, who was very good at his way of training, but who found it difficult to operate in conformity with the “new school” way of delivering training.

Background

[5] In 2005 the Applicant commenced employment with the Respondent as a Trainer providing VET training to secondary school students in their schools on 1 day a week and providing apprenticeship training to apprentices at the CVGT workshop. In 2010 CVGT changed its method of operation and moved to an on site training approach in which the Applicant was required to visit the work site where apprentices were employed to assess their capacity to perform the various elements that make up the apprenticeship. Some residual training and assessment was conducted from the CVGT workshop. In 2012 the Applicant was given the additional responsibility of providing the training for the construction industry induction course, with each course requiring 6 hours of training.

[6] Issues leading to the dismissal of the Applicant began in 2011. On 9 June 2011 the Applicant was given a formal warning. The formal warning related to a number of performance issues of the Applicant. The performance /behavioural problem was identified in the formal warning as follows:

“Neville has been provided with a Training and Assessment document (TAS) for the delivery of the apprentice Building and Construction course. Neville has been instructed to by the Gen Mng Training to schedule and to deliver quarterly work placed visits (these have been scheduled in the B&C calendar by Admin staff but not actioned). Neville has not completed these on-the-job visits and as a consequence has put CVGT at significant risk in not fulfilling the commitment/s made to apprentices and employers. Neville is not following or complying with the Training & Assessment Strategy with reference to the class based delivery or on-the-job visits, that is to take place Apprentices compliance and commitment (sic).

Neville has given employers and apprentice’s information which does not show the RTO in the way in which it should be. He has told an apprentice that he cannot be fast tracked in his assessment because he (Neville) does not have the time and resource to do so. This is incorrect and should have been discussed with the manger before providing this advice.”  2

[7] The remedial action agreed between the Applicant and the Respondent to address the issues was described in the formal warning as follows:

“The TAS document must be specifically followed.

Appointments will be put into the diary for workplace visits and these must occur - support in reference to booking and follow up phone calls will be provided.”  3

[8] On 25 September 2011 the Applicant was subject to a performance appraisal which was conducted by Mr Haywood. The performance appraisal contains some very positive as well as some quite negative comments about the Applicant but the performance appraisal also identifies weaknesses with the Respondent’s previous practices. The positive comments are referred to in para [2] above.

[9] The negative comments included the following:

“There is a need to adhere and plan your training and assessment to comply with both CVGT & AQTF requirements for contact and visits.

There is a need to adhere to AQTF requirements in relationship to monthly contacts and quarterly contacts as it is obvious that this has not been happening in the past.

Neville is not one for a lot of paperwork but is willing to learn and comply but will need constant training and monitoring.”  4

[10] The comments which related to the Respondent were:

“This relevance to AQTF standards of the training material is under review as it does not appear to meet the AQTF standards, although this is also a management issue, there is a need for a trainer to alert management of this apparent non compliance.

...there is a real need for further training on the CVGT/AQTF requirements. It would appear that there has been little or any previous training and or monitoring in this area by past management. This will need to be carried out within the next four weeks and monitored ongoing.

It is evident that Neville has had little or no real training and/or monitoring of compliance to CVGT policies and procedures and this will need addressing to ensure that Neville has the knowledge and skills to ensure he will comply in the future.”  5

[11] On 23 November 2011 the Respondent through its managers met with the Applicant for the purpose of giving the Applicant a letter dated 21 November 2011 which identified non compliance by the Applicant with:

(1) the requirement to undertake regular contact with students and

(2) an instruction to enter movements into Outlook Calendar and

(3) instructions to comply with reporting requirements given by the Training Manager and (4) instructions to rectify “file submissions rejections” and

(5) the requirement to submit a monthly contact report (TRF068).

[12] The Applicant was given until 2 December 2011 to respond to the issues raised. On 9 December 2011 the Applicant replied in writing to the Respondent. The Applicant was issued with a second formal warning on 21 January 2012. The formal warning described the performance/behavioural problem as:

“Workplace visits were not sufficient to meet the CVGT RTO contact requirements and to get participants signed off in the required number of units by the Training Plan and budget forecast.

Class based delivery did not occur - meaning that primarily 1st year but also other years did not commence in units as they should have according to the Training plan.

As a result of both of these things we had to pay back fees to participants who were unhappy with the amount of training they received in the 2011 year.”  6

and the employee’s response as follows:

“Neville has provided a written response to these issues, this was provided to me in December of 2011. I accept his response and proposed actions.”  7

and the proposed further action as follows:

“All apprentices must be contacted monthly as evidenced by site visits. All apprentice workplaces must be visited once every 3 months at a minimum and units commence and completed according to the training plan.

The training and assessment document must be followed with reference to class based delivery for each year level. Class based delivery must be evidenced with session plans and attendance rolls - handed to Administration on the Friday of the week when training is done.

A completion report has been provided to Neville - the outstanding units that have been paid need to be assessed as a matter of priority - the agreed timeline is March 2012.

The completion target of 35 completed nominal hours per month per participant to be met or exceeded (given that some will not be paid) every month commencing Feb 2012.

Failure to carry out the agreed actions listed above will result in further disciplinary action including termination of employment.”  8

[13] On 17 February 2012 and 24 February 2012 Ms Sharron Andrea, Training Manager, met with the Applicant to discuss issues concerning the Applicant’s non compliance with the actions agreed between the Applicant and the Respondent in January 2012. On 16 March 2012 the Respondent, through its managers, met with the Applicant for the purpose of giving the Applicant a letter dated 13 March 2012 which was a third and final warning to the Applicant. The basis for the final warning was that “evidence provided by the Training Manager, Sharron Andrea and the General Manager Training, Gayle Newnham, indicates that you have not complied with the agreed actions as requested in the second written warning”. The Applicant was given until 5 April 2012 to “rectify these issues”.

[14] On 10 May 2012 the Respondent through its managers together with 3 representatives of Macquarie Homes, a major client of the Respondent, met with the Applicant to discuss Macquarie Homes complaints against the Applicant relating to 2 apprentices.

[15] On 22 May 2012 Mr Green, the CEO of the Respondent, prepared a report and recommendation for the Board of the Respondent recommending the closure of the Registered Training Organisation (RTO) conducted by the Respondent and which was the area in which the Applicant worked.

[16] On 23 May 2012 the Respondent through Mr Green, the CEO, convened a meeting with the Applicant for the purpose of dismissing the Applicant from his employment. At that meeting the Applicant was given a letter dated 21 May 2012 (which was also read to him at the meeting) which dismissed the Applicant from his employment. The letter, Exhibit A2 is in the following terms:

“You have now received three written warnings regarding issues of your work performance. The details of these warnings were outlined to you in a letter dated 13 March 2012, which constituted the Third and Final Warning. You were formally advised that your failure to rectify issues in the letter would result in the termination of your employment.

I have received and reviewed advice that you have again failed to meet the requirements of your role in that you have not complied with the TAS guidelines as discussed with you on a number of occasions during this performance management process. I also note that you have been provided with a range of assistance in this regard.

The particular incidents referred to in this report of non-compliance relate to apprentices in your training program with host employer Macquarie Homes - SN and CC. S has subsequently been “handed back” to Group Training due to your lack of follow up. I have been further advised that you have failed to provide a mandatory Working With Children check despite repeated requests from your manager.

I now advise you that your employment will be terminated effective immediately. You will be entitled to receive your period of notice as per the National Employment Standards and any outstanding annual leave and long service leave entitlements due to you under legislation.

Yours sincerely

Paul Green

Chief Executive Officer”  9 10

[17] After the dismissal had been effected the meeting continued and the Applicant responded to the assertion that he had not supplied a valid Working With Children Check (WWCC) by producing his valid WWCC and advising the Respondent that a copy of this had been given to the Respondent. The Applicant also responded to the grounds for dismissal relating to CC and SN.

[18] After the dismissal had been effected the Respondent redrafted the letter of dismissal to remove reference to the WWCC but retaining the date of 21 May 2012.

[19] On 30 May 2012 the Board of the Respondent met and adopted the recommendation of Mr Green to close the RTO and make the relevant employees redundant.

[20] The application in this matter was the subject of an arbitration hearing on 20 and 21 September 2012 and 8 January 2013. Witness evidence was given in this matter by the Applicant and by Ms Andrea, Mr Millard and Mr Green, who gave evidence on behalf of the Respondent.

The Applicant’s Case

[21] The Applicant’s case was summed up quite effectively by his legal counsel, Mr Cameron as follows:

“Look, I’ll try and be brief, Commissioner. It really comes down to credibility and who to believe in this particular case. But let’s have a look at what is known where there is no dispute. There’s no dispute that Mr Green had written a paper for his board recommending the area close and there would be redundancies prior to the dismissal. The board meeting was after the dismissal but before the dismissal that paper had been written.

What is not in dispute is that Mr Pyle was taken to a meeting on the, I think we’ve in the end agreed it’s 23 May, notwithstanding that there are letters dated 21 May. But he was taken to a meeting and he was read aloud a letter which dismissed him which is exhibit A3. In that letter it talked about the Working With Children Check and after he was fired Mr Pyle has produced the Working With Children Check, something that he carried around with him and the evidence of the organisation was that they sent a follow-up letter in the mail.

That letter appears at PG17 to Mr Green’s statement, where they removed that reference. So it was a case of: he was taken in, they would shoot first and ask questions later. And in the ask questions later he said that in relation to S.N, that S had learning difficulties. There was evidence that Mr Pyle had given about that and that he had had very large amounts of training compared to other people, that he had been handed back in the past and that he had been handed back now as at the time when he was dismissed together with someone else from Macquarie Homes. And he just said he’s just not copping it. That’s not right.

In relation to C C, you’ve heard evidence that C had been stuck doing metal framing and that he had spoken to C about that. He went to C’s house and drew up a plan and told him something had to happen. C has mentioned to his boss that that may involve him going to work elsewhere for a bit which his boss has then become very irate. And there has been evidence from the respondent that Macquarie Homes is an important client to CVGT and as a result, without any questions being asked Mr Pyle was being dismissed.

The other thing that’s not in dispute and this I canvassed with Mr Green in his evidence who eventually conceded it, is that in the dismissal letter the particular incidents for which Mr Pyle was dismissed related to C C and S N with not following the procedures. No reference is made in the letter to anyone else. So at the time of the dismissal the particular people involved, where there’s complaints about, is C C and S N and you have heard extensive evidence about that and Mr Pyle’s explanation but he is glad that C C was eventually moved to do the woodwork that he was required to do and that Mr Pyle will not do anything that will compromise the training of the apprentices that are in his care.

After he is dismissed CVGT then construct what we might call in the vernacular a hatchet job which is exhibit 20 of Mr Green’s. And Mr Pyle, he goes through that and he disputes it, which is exhibit A3 and he says Mr Green is wrong. And CVGT of itself when you compare who is telling the truth between Mr Green and Mr Pyle when you just do it on a numerical basis and this is CVGT’s own admission and you’ve heard Ms Andrea give it today, Mr Pyle is correct on more occasions. This really goes to the credibility and the believability of the applicant vis-a-vis the respondent. Mr Pyle says he did all of the contacts that he did on exhibit A3 and he doesn’t resile from that. The only party that has done some resiling and they have resiled in a big way to in fact agree in the majority of counts with Mr Pyle is CVGT.

When it comes to the issue of credibility on the first day of the hearing there were three files and three dates. They were chosen and they were chosen by you, Commissioner, after you questioned Mr Pyle and that was to go to that question of believability and it was Mr Pyle who was believable. There were subsequent names put up by CVGT and I’ve gone through those today with Ms Andrea, the six files and on a majority – and what we see, while there is a difference of view between Mr Pyle and CVGT in fact it’s Mr Pyle who on the whole is telling the more believable story and we had CVGT’s concessions around that. And what Mr Pyle has said is that he has done what was asked of him and before he was dismissed he thought things were actually working well. He was doing what he was meant to do except if it was impractical to do that.

So what we have is a situation where Mr Pyle in his seven years has had nine managers and five general managers, a very good work history until 2011. He says that he has done what was asked of him in relation to contacts. He bears that out with his diary note. He also says that there is a trainer’s file which Ms Andrea appeared to concede when she gave evidence but now says didn’t exist but which Mr Pyle is adamant that you have to have a separate file so you know what’s going on and what’s occurring with an apprentice. Put all of that together the dismissal is unfair. The dismissal is unjust.

When we also take into account the evidence of Mr Pyle that Gayle Newnham was pushing him to get things signed off, to tick and flick to use his language, but to sign them off, and he wasn’t prepared to do it until it was actually properly done because he has old-fashioned standards about training, the dismissal is harsh as well.

And you heard last time that Mr Pyle has been unemployed since and has little prospects of employment. That’s still the case and in those circumstances I would submit that the appropriate course is a finding that his dismissal was unlawful and he should be provided with 26 weeks of compensation. Thank you, sir.”  11

The Respondent’s Case

[22] The Respondent’s closing written submissions contended as follows:

“4) The Applicant was dismissed for poor performance following an exhaustive performance management process involving ongoing verbal and three written warnings issued over a period of approximately 11 months. The ‘valid reason’ was the Applicant repeatedly failed to comply with the training requirements of his role, including complying with the CVGT Standard Operating Procedures (“CVGT SOP”), SASVP, the Australian Quality Training Framework (“AQTF”) Guidelines and the Respondent’s Training and Assessment Strategy (“TAS”).

9) The Respondent contends that it had ‘sound, defensible or well founded’4 reason to terminate the Applicant’s employment based on:

a. The Applicant’s continually failing to comply with the Respondent’s policies and procedures. Specifically, this included training requirements contained in the TAS, AQTF, CVGT SOP and SASVP documents which form an inherent requirement of his position as an employee of an RTO;

b. The Applicant’s continual underperformance in his role over many months, following a rigorous performance management process.

Contrasting evidence and factual dispute

5) In determining the appropriateness of the Respondent’s actions to dismiss the Applicant one of the considerations for the Commission will be – given the contradictory nature of the evidence given between the Applicant and the multiple Respondent manager witnesses – which evidence should be preferred.

6) There appears to be quite a degree of contrasting evidence concerning relevant events and role requirements between the Applicant and the various Respondent managers who gave evidence. Such contrasting evidence includes:

a. the Applicant denying he had read the TAS (PN661) or was provided with a copy of the TAS at the 9 June 2011 meeting (PN746) as opposed to:

i. him agreeing it was an important part of his role to comply with the TAS (PN658);

ii. his letter dated 9 December 2011 at PG-10 in which the Applicant writes “I agree to follow the specifics contained in the TAS document” (PN936) and “I agree to adhere to Training and Assessment Strategies in relation to Class Based Delivery. I am aware that I have made errors in this area and I intend to rectify these errors going forward”;

iii. him having signed a Record of Warning (PG-11) in which he agrees to the “Training and assessment document” needing to be followed;

iv. him having received a copy of meeting notes2 (PG-14) which stated “The training and assessment document must be followed with reference to class-based delivery for each year level”;

v. the evidence of Mr Paul Green concerning the familiarity of CVGT trainers with the TAS: PN1380 - PN1382.

vi. The evidence of Ms Andrea concerning the familiarity of CVGT trainers with the TAS (at PN2006 and PN2007)

b. the Applicant claiming he visited the apprentices he was training on a quarterly basis 99.9% of the time (PN768), before reducing that to 90 – 95% (PN769) as opposed to:

i. the training files lodged with the Tribunal and served on the Applicant and

ii. the supplementary witness statement of Sharon Andrea which shows this requirement was not met for three (3) of the six (6) apprentices chosen by the Tribunal for closer inspection (PN2225) – therefore, only achieving compliance for 50% of apprentices selected;

iii. Paul Green’s assessment the Applicant’s compliance with the quarterly visits and monthly contact requirement was “more likely to be 50 to 60 per cent” (PN1362) and Ms Andrea’s estimation this figure was as low as 25% (PN1813).

c. that class-based delivery did occur to the requirements of the training plan (PG960 - PN967) as opposed to:

i. the 23 January 2012 second written warning (PG-11) which states “DETAILS OF PERFORMANCE/BEHAVIOURAL PROBLEM - … Class based delivery did not occur”; and

ii. the Applicant’s own letter dated 9 December 2011 at PG-10 in which he writes “I agree to adhere to Training and Assessment Strategies in relation to Class Based Delivery. I am aware that I have made errors in this area and I intend to rectify these errors going forward”.

7) The Applicant also provided contradictory evidence concerning the adequacy of training delivered to those apprentices he was responsible for training. Under cross-examination the Applicant was initially adamant his service was adequate and claiming there were no issues with training requirements for apprentices he trains,3 before later conceding (at PN874) – referring to PG-8 (letter re performance issues dated November 2011) – CVGT Group Training (Epping) were forced to change the RTO of an apprentice (Trent Murphy) due to lack of service from Neville Pyle as his trainer. He provides no explanation – nor can he provide any reasonable explanation for the other significant number of apprentices he was responsible for training who did not receive training in accordance with CVGT requirements and expectations.

8) Given the above inconsistencies and the vague, contradictory and evasive nature of the Applicant’s evidence, the multiple Respondent managers who provided clear and cogent evidence should be preferred over the Applicant for the above contradictions, and any other contradictory evidence.”

Preliminary Matters

[23] An application for an unfair dismissal remedy was filed by the Applicant on 5 June 2012 in relation to the termination of his employment on 23 May 2012. The application was filed within the time frame specified in s.394(2) of the Act.

[24] The Applicant was employed by the Respondent from 13 June 2005 until 23 May 2012, therefore the Applicant was employed for at least the minimum employment period specified in s.383 of the Act.

[25] The Respondent concedes and I so find that the Applicant was a person protected from unfair dismissal under s.382 of the Act.

[26] Both the Applicant and the Respondent agree and I so find that the Respondent is not a small business employer and therefore the Small Business Fair Dismissal Code does not apply.

[27] Both the Applicant and the Respondent agree and I so find that the dismissal of the Applicant was not a case of genuine redundancy.

Consideration

[28] Having dealt with the preliminary matters I now turn to the matters raised by s.387 which provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

[29] In considering the criteria in s.387 I am required to consider each criteria which is relevant and only those criteria which are relevant.  12

[30] The level of satisfaction that I am required to have in relation to each relevant criteria under s.387 is that I be satisfied on the balance of probabilities.

Valid reason - 387(a)

[31] There are a number of obvious weaknesses in the case for the Respondent.

[32] Mr Ritchie contended that the Applicant should not have had any material relating to the training of apprentices as all relevant material must be kept on the official file. Mr Ritchie contended that the Respondent frowned upon the Applicant or other employees keeping a diary 13. However the direct evidence of Ms Andrea was that trainers, including the Applicant, were required by the Respondent to keep diaries. 14

[33] The Respondent’s own records, produced to the Commission at the request of the Commission, contain obvious errors. There were clear instances where records which did not relate to a particular student were on that student’s file.

[34] The Respondent in building a case against the Applicant identified students who, the Respondent said, were not properly trained by the Applicant, only to have it emerge that the Applicant was not the allocated trainer for those students.

[35] Some aspects of the evidence of witnesses for the Respondent were clearly contradictory.

[36] The decision to dismiss the Applicant was made before the meeting which took place on 23 May 2012 and the decision was probably made on or before the 21 May 2012 which is the date on the letter of dismissal.

[37] One of the reasons for dismissal concerning failure to provide a WWCC has been conceded by the Respondent through it rewriting the letter of dismissal to not be a valid reason for dismissal.

[38] Whilst the letter of dismissal made a general allegation of non compliance with the requirements of the role the letter then particularised the “particular incidents” of non compliance as being related to two specific students SN and CC.

[39] An examination of the evidence in this matter from both the Respondent and the Applicant simply does not support the allegation made by the Respondent that SN “has subsequently been “handed back” to Group Training due to your lack of follow up.”

[40] At its bluntest it would appear that two of the specific incidents relied upon by the Respondent in the letter of dismissal do not constitute a valid reason for the dismissal.

[41] The third specific issue in the letter of dismissal concerns an apprentice CC.

[42] The decision to dismiss was taken by the Respondent after a meeting held on 10 May 2012. A record of that meeting was provided to the Commission through Mr Green and it is is as follows:

“Meeting with Supervisors of Apprentices at Macquarie Homes to discuss complaint re: Neville Pyle not delivering Training to Apprentices SN and CC.

The following issues pertaining to Neville Pyle’s delivery of training were discussed:

• Supervisor concerned that C had not had a visit from Trainer since September 2011 and Supervisor had not been contacted regarding C’s non attendance at Training.



• Supervisor also concerned that C had said that Neville had commented to the Apprentice at one time that if he wasn’t getting to experience all the different things that he needed to in his training with this company that he may get more experience with another builder. Neville denied that he said this in the way that it was stated and that Neville suggested if he wasn’t hanging doors and doing wood frames etc that maybe they could shift him around to other places to get the practical skills.



• Supervisor concerned that S was being signed off as Competent when he cannot retain into and is not competent on the Job and the employer is not prepared to have him signed off. Sam is not competent to undertake tasks with power tools and also independently without support.

Discussions on strategies going forward:

• Discussed the need for Trainer to contact C and the supervisor on a regular monthly basis and meet with both Employer and Apprentice in future.



• Suggested extra training for Sam and some intensive assessment and training to assist Sam to be competent in his role.



• Supervisor was going to discuss the situation with the Director of the Company to decide the way forward with S and the decision may be to hand Sam back to Group Training to be placed with a more supportive builder that can offer one to one training.

Neville Pyle has not delivered a service as per the TAS and as per the agreement made in subsequent warnings. When asked why by Sharron Griffiths Neville’s response was that C had not turned up to training at Kings Street in Feb and March this year. I asked about the other months that Neville had not delivered training and Neville admitted that it was his fault and he should’ve gone to see the kid, but he was all over the place.”  15

[43] Importantly the record of meeting has the Applicant admitting non compliant behaviour in relation to CC.

[44] To put this in context the Applicant was given a third and final warning on 16 March 2012 and the minutes of that meeting were in evidence as and are as follows:

“Performance Meeting Notes

Neville Pyle- Friday 16th March 2012 at 4:00pm - King Street office

Present: Sharron Andrea (SA), Neville Pyle (NP) & Ritchie Millard (RM) to take minutes.

Note: NP was advised that he could have a support person present and he declined this.

SA began the meeting advising NP that issues of performance raised on other occasions and in the form of two previous formal written warnings were the subject of the meeting today.

SA explained that issue remained of action that still had not been addressed from the agreed actions in the second warning.

SA advised NP that he was now subject to a third and final warning, a copy of which was issued to NP at that time.

SA then proceeded to discuss the four issues from the second warning in the order that they were issues in that warning.

1. All apprentices must be contacted monthly as evidenced by site visits. All apprentice workplaces must be visited once every 3 months at a minimum and units commence and completed according to the Training Plan.

NP stated that this was impractical to achieve.

SA discussed ways to assist with this (All apprentices must be contacted monthly evidenced by site visits) and NP explained that it could not be done as there were many issues with arranging such visits and he did not have the time to do this.

SA explained that the 3 month visits had not been completed.

2. The Training and Assessment document must be followed with reference to class based delivery for each year level. Class based delivery must be evidenced with session plans and attendance rolls handed to Administration on the Friday of the week when training is done.

NP stated he did not have the time to do a "box full of paperwork" each week - that this was not his job.

SA explained that NP had not been doing class rolls or session plans.

NP gave examples of how he manages this and how it was impractical to do session plans when the apprentices were at so many varied levels of learning.

SA explained that from an auditor's point of view, rolls and session plans were all about compliance.

SA and NP discussed ways 'in which session plans could be achieved and SA gave some examples and offered to assist NP with this process.

NP stated that it was very difficult to achieve any goals due to the fact that all resources had been removed from his access since the closing of the ITC. He stated that it was impossible to train apprentices properly without practical demonstration and having to do more and ignore paperwork.

NP stated that he “was the wrong man for the job”, not because he cannot do it but because he has a conscience and could not teach apprentices this way.

NP then stated he was willing to “give this one more crack”.

3. A completion report was provided to you and the outstanding units that have been paid need to be assessed as a matter of priority. The agreed timeline for this was March 2012.

SA discussed this as NP stated that he did not understand what the item actually referred to.

SA explained what this was and NP replied that it was very difficult to get these signed off and gave examples.

SA explained that submissions not received amounted to loss of income for the company.

4. The completions target of 35 completed nominal hours per month per participant was to be met or exceeded (given that some will not be paid) every month commencing February 2012.

NP explained that this was very difficult as some employers did not actually do the activities listed and therefore these could not be achieved.

NP stated that his only concern was for the apprentices, not the company income or the training administration activities.

SA explained that she was trying to work with him and assist him to achieve all the agreed actions required of the job. SA offered again to assist with session plans and general administration requirements.

The meeting concluded with NP being advised that he needed to take the warning letter home and think about the content and what he planned to do about it.

SA requested that NP respond back to her on Monday 19 March 2012 and discuss the actions further.

The meeting concluded at around 4:40pm.  16

[45] The record of that meeting was signed off by each present on 20 March 2013.

[46] As the record of that meeting clearly identifies, the Applicant was warned about his failure to make monthly contact with apprentices and his noncompliance with the TAS. Yet on 10 May 2012 when the Applicant was asked about the lack of training provided to CC the Applicant “admitted that is was his fault and he should’ve gone to see the kid, but he was all over the place”.

[47] Ms Andrea, the Respondent’s Training Operations Manager was questioned in examination in chief as to the reasonableness of the expected outcomes required of the Applicant:

“Lastly, in your experience of the industry and of CVGT, do you consider it was impossible for Mr Pyle to complete the requirements of his role concerning monthly and quarterly contact and visits and the C and I training whilst ensuring that all the compliance paperwork was completed to management’s requisite standard?---Not impossible, no. Given the workload and comparison to a full-time workload trainer, that should have been achieved.”  17

[48] Two issues emerge from the evidence. Firstly, the Applicant did not challenge the accuracy of PG-16 and did not dispute that he made the admissions contained in PG-16. Secondly, the expectations placed upon the Applicant when he was given a third and final warning were reasonable.

[49] For a reason for dismissal to be a valid reason it must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason”. 18

[50] In the present circumstances where the Respondent dismisses the Applicant after 11 months of performance management of the Applicant and where the Applicant admits, after having received a third and final warning, that he has not complied with reasonable instructions from the Respondent, then I have no hesitation in finding that the Respondent had a valid reason for the dismissal. There is nothing in the totality of this case which suggests that the reason for dismissal was capricious or spiteful or prejudiced. The fact that the Respondent relied upon two other invalid reasons for the dismissal cannot lessen the validity of the dismissal where there remains, as in this case, a valid reason for the dismissal.

Notified of reason for dismissal and opportunity to respond 387(b) and (c)

[51] On 10 May 2012 the Applicant was notified of his continued failure to comply with the Respondent’s requirements. The Applicant was given an opportunity to respond and the Applicant admitted non compliance. Although the minutes of the meeting of 10 May 2012 also show that discussions occurred on ‘strategies going forward’ which were based upon the Applicant’s continued employment, the fact that the Respondent chose after that meeting to dismiss the Applicant does not derogate from the fact that the Applicant was notified of the reason for dismissal and given an opportunity to respond.

Support person 387(d)

[52] I am satisfied on the material before me that there was no unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to the dismissal.

Warning as to unsatisfactory performance 387(e)

[53] What is abundantly clear on the evidence in this matter is that the Applicant had been warned about his unsatisfactory performance before the dismissal. The very fact that the Respondent managed the Applicant’s unsatisfactory performance over at least 11 months shows that the Respondent made reasonable and constant efforts to warn the Applicant about his unsatisfactory performance. The third and final warning to the Applicant on 16 March 2012 clearly put the Applicant on notice that further unsatisfactory performance could lead to his dismissal.

Size of employer’s enterprise 387(f)

[54] The size of an employer’s enterprise must by virtue of the very language used in s.387(f) always be a relevant factor to consider. In the present matter I consider that the size of the employer’s enterprise operates as a neutral factor in considering whether the dismissal is harsh, unjust or unreasonable.

Presence of HR specialists or expertise 387(g)

[55] It is only the absence of human resource management specialists or expertise which triggers the operation of s.387(g).

[56] In the present matter the Respondent had HRM expertise in the enterprise and therefore thus criteria is not relevant.

Other relevant matters 387(h)

[57] The Respondent contends that the dismissal of the Applicant is unjust and unfair for a number of reasons including the fact that Mr Green the CEO of the Respondent “had written a paper for his board recommending the area close and there would be redundancies prior to the dismissal. The board meeting was after the dismissal but before the dismissal that paper had been written.” 19 In other words the dismissal is unjust because if Mr Green had not dismissed the Applicant on 23 May 2012 then the Applicant’s job would have become redundant as a result of the Board’s decision on 30 May 2012 and the Applicant would have received a redundancy payment.

[58] Implicit in the contention of the Applicant is that Mr Green dismissed the Applicant in circumstances where Mr Green would have expected the Applicant to have been made redundant shortly after the date of dismissal.

[59] The evidence in this matter and particularly the evidence of Mr Green under cross examination  20 from Mr Cameron for the Applicant simply does not support the contention of the Applicant. Nor does the evidence support any contention that because the Board decided, after the dismissal of the Applicant, to close the area where the Applicant worked then the Applicant’s dismissal was either harsh or unjust. Mr Green’s evidence was that the two matters: the viability of the RTO and the employment of the Applicant, were two separate issues and that he “didn’t draw the two together” 21.

[60] The evidence of Mr Green establishes that there was a coincidence in timing with the end of the process of managing the Applicant’s underperformance and with the start of the process which lead to the closure of the RTO but not that there was any other connection between the two processes. The contentions of the Applicant are based upon nothing other than a coincidence of timing.

[61] Although the Applicant was dismissed on 23 May 2012 it is apparent that the decision to dismiss the Applicant was made before that date and most likely on or before the 21 May 2012 which was the date of the letter of dismissal. Mr Green on 22 May 2012 wrote his paper to the Board recommending closure of the RTO. The dismissal of the Applicant was effected on 23 may 2012. The Board met on 30 May 2012 and decided to close the RTO.

[62] I accept the evidence of Mr Green that he had no idea how the Board would treat his recommendation to close the RTO when he said:

“Mr Cameron: Yes, so at the time when you dismissed Mr Pyle you knew that a week later there may very well be - he may very well be made redundant?---

Mr Green: It was a possibility.

Mr Cameron: Well, it was a recommendation by the CEO and there had been discussions over many years about the viability of training and there had been a significant shake up of training funding announced. It was pretty inevitable what the outcome was going to be, wasn't it?---

Mr Green: No, my board is very unpredictable in regard to my recommendations.” 22

[63] Given that the process for the closure of the RTO is separate from the process which led to the Applicant’s dismissal I find that the conduct of Mr Green in recommending to the Board the closure of the RTO and then the conduct of the Board in deciding to close the RTO and make employees redundant is not a relevant matter for the purpose of considering whether the dismissal was harsh, unjust or unreasonable.

[64] The Applicant’s age and length of service are clearly matters which are relevant to a consideration of whether the dismissal is harsh or unjust.

[65] At the time of the dismissal the Applicant was 61 1/2 years old and had worked for the Respondent for a period of 6 years and 11 months. The age of the Applicant meant that any dismissal would be harsh on the Applicant. A male aged 61 ½ and free of any health or medical concerns which may limit the capacity to work would have great difficulty finding employment in the Bendigo region. The Applicant was not only 61 ½ but had health issues which limited the type of work that he could do. In such circumstances the dismissal was quite harsh on the Applicant.

[66] The timing of the dismissal being 20 days before the Applicant completed 7 years service with the Respondent meant that the Applicant could not get the benefit of pro rata long service leave on termination of employment. The loss of a contingent benefit is a relevant matter to be considered under s.387(h) but caution must be exercised in weighing up its value as an offset to the factors under the other provisions of s.387 which support a finding that the dismissal was not harsh, unjust or unreasonable. The very fact that the ability to access a pro rata long service leave payment on termination was contingent upon the Applicant having served 7 years of service with the Respondent meant that at the date of dismissal the Applicant had no vested benefit or right under the long service leave legislation.

Conclusion

[67] Balancing those relevant criteria under s.387 which support a finding that the dismissal was not harsh, unjust or unreasonable against those relevant criteria which support a finding that the dismissal was harsh unjust or unreasonable I find that the balance falls strongly in favour of a finding that the dismissal was not harsh unjust or unreasonable.

[68] I fully appreciate that from the perspective of the Applicant if only his dismissal had been put off for a short period he would have received both a redundancy package and a pro rata long service leave entitlement. But as my decision makes clear the criteria for deciding whether a dismissal is harsh unjust or unreasonable is not based on considering “what ifs” or “if only’s” but must be based upon considering what did happen.

[69] Being a round peg in a square hole must have been difficult for the Applicant but as the evidence makes clear and as my decision confirms, the Respondent made efforts over a lengthy period to shape the Applicant into a square peg so that he would easily fit into a square hole. The failure of that exercise simply reflects the fact that the Applicant was committed to being a trade teacher of the old school, at which he excelled, and that he couldn’t change to be a teacher of the new school.

[70] I dismiss the application.

COMMISSIONER

Appearances:

B. Cameron, for the Applicant

M. Ritchie, of VECCI, for the Respondent

Hearing details:

2012

Bendigo

September 20, 21

2013

Bendigo

January 8

 1   Attachment PG-7 to Exhibit R2

 2   Attachment PG-6 to Exhibit R2

 3   Ibid

 4   Ibid

 5   Ibid

 6   Attachment PG-11 to Exhibit R2

 7   Ibid

 8   Ibid

 9   Exhibit A2

 10   The names of the apprentices referred to in all documentation and in transcript have been redacted and referred to only by their initials.

 11   Transcript of proceedings PN2992 - PN3001

 12   Sayer v Melsteel P/L[2011] FWAFB 7498 at pns [14] and [20] and Chubb Security Australia P/L v Thomas Print S2679 at pn41)

 13   Transcript at PN2522

 14   Ibid at PN2958 - PN2961

 15   Attachment PG-16 to Exhibit R2

 16   Attachment SA-6 to Exhibit R4

 17   Transcript at PN2035

 18   Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373, 7 July 1995, Northrop J.

 19   Transcript at PN3946

 20   Transcript at PN1460 - PN1517

 21  Ibid at PN1517

 22   Ibid at PN1515 - PN1516

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