Phillip Jenkins v Advanced Mining Production Systems Pty Ltd T/A Parker Business Enterprises
[2020] FWC 5759
•18 DECEMBER 2020
| [2020] FWC 5759 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Phillip Jenkins
v
Advanced Mining Production Systems Pty Ltd T/A Parker Business Enterprises
(U2020/9183)
DEPUTY PRESIDENT BEAUMONT | PERTH, 18 DECEMBER 2020 |
Application for an unfair dismissal remedy – valid reason for dismissal but reason not sufficiently communicated – application granted – compensation ordered.
[1] This decision concerns an application by Mr Phillip Jenkins for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Jenkins held the position of production engineer with Advanced Mining Production Systems Pty Ltd (AMS) and was placed within its clients’ businesses to fill vacant roles.
[2] He was dismissed for unsatisfactory performance, but disputes this. Mr Jenkins said his performance was not poor and he performed his duties to a more than satisfactory level. As such, he contends his dismissal was unfair and seeks compensation from AMS, rather than reinstatement.
[3] Section 396 of the Act requires the Commission to decide four matters before considering the merits of Mr Jenkins’ application. There is no dispute between the parties concerning these matters, and I am satisfied of the following. First, the application was made within the 21 day period required by s 394(2) of the Act. Second, Mr Jenkins was a person protected from unfair dismissal, as he earned less than the high income threshold. 1 Third, Mr Jenkins’ dismissal was not a case of genuine redundancy. Fourth, no question of compliance with the Small Business Fair Dismissal Code arose. While AMS was modest in size (in respect of headcount), it was not a ‘Small Business’ as that term is understood in the Act.
[4] Turning to the merits, for the reasons that follow, I have concluded that Mr Jenkins was unfairly dismissed. Reinstatement was not appropriate and as such a compensatory amount has been ordered. That amount has been discounted due to the misconduct engaged in by Mr Jenkins. Further, in light of the evidence provided, I held the view that the anticipated period of employment would have been relatively short given that on two occasions the clients of AMS had declined to extend Mr Jenkins’ engagement.
Background
[5] Mr Jenkins is a young production engineer. He was employed by AMS for the period 21 October 2019 until 12 June 2020. 2 AMS provides engineers on a contract basis to its clients.3 Mr Jenkins was one such engineer and in effect was employed to work on a consultancy basis; although the evidence shows he was placed within client businesses to ‘fill’ a role.4
[6] During his employment with AMS he worked at three locations:
(a) Goldfields Granny Smith Operation (GSM) from October 2019 to January 2020, working eight days on and six days off roster on a fly in fly out basis from Perth;
(b) Glencore’s CSA Operation in Cobar NSW (CSA) on a 12 days on and nine days off roster until April 1010; and
(c) from home for the period 27 March 2020 until 12 June 2020.
[7] On his first assignment with GSM, Mr Jenkins said that he was provided with ‘less than a day’s notice of ‘admin/training’ regarding the mining method at that mine. He again confirmed that his role was that of a ‘fill a role’ working in the drill and blast team, designing drill and blasting plans. 5
[8] Clarification concerning what constituted a ‘drill plan’ and a ‘charge plan’ was provided by Mr Jenkins. A drill plan indicates the holes to drill, their length, orientation, azimuth, diameter and dip. 6 A charge plan sets out the design of the firing sequence, type and length of explosive, primer number, location and delay.7 Mr Jenkins gave evidence that prior to him arriving at GSM, the average charge plan output was 12, and those were produced by four engineers.8 By the time he left GSM he was preparing the majority of charge plans and was often called upon by the Senior Engineer to redesign the plans provided by the other swing.9
[9] It was said that the client advised AMS that they did not want to continue Mr Jenkins’ engagement at the GSM site due to performance issues. Mr Jenkins confirmed that prior to his last swing, AMS informed him that his contract with GSM would not be extended. However, Mr Jenkins said he was not provided with any kind of clear statement of the reasons, albeit he stated: ‘I was told that I had made design errors and other unspecified mistakes’. 10 While Mr Jenkins asked why GSM would be doing this (not extending his contract), he was not provided with an answer.11 An official answer that appeared to have been provided was that Mr Jenkins was not needed due to the shifting of engineers.
[10] Mr LeRoy, the Underground Consulting Manager for AMS, gave evidence of having a discussion with Mr Jenkins on 31 January 2020 about his performance at GSM. 12 Mr LeRoy explained that it was his intention to take a positive tone and approach – supporting Mr Jenkins to enable him to improve and be able to take on future assignments.13 Mr LeRoy gave evidence of the notes that he had prepared for the purpose of the meeting.14 It is observed that the original notes were not provided, but rather, Mr LeRoy purported to have obtained the notes and inserted them into his witness statement.15
[11] Insofar as Mr Jenkins was informed that he was underperforming and as such, was placing his employment at risk, Mr LeRoy stated:
I also discussed with Phil that the nature of his role as a consultant required ongoing site-based work. If he was unable to fulfill client needs satisfactorily we wouldn’t be able to place him on-site. This would in turn jeopardise his employment with AMPS. 16
[12] Evidence was given that AMS’ clients typically extended their contracts for engineers. Therefore, AMS held the view that it was unusual that the contract for Mr Jenkins’ services was not extended, by GSM. Mr Parker, the Managing Director of AMS elaborated. On 1 January 2019, Mr LeRoy received an email from Goldfields Underground Manager, Ms Sara Young. 17 Mr Parker, said he had read the email, and formed the view that the gist of it was that ‘Goldfields’ were unhappy with the standard of Mr Jenkins’ work and on that basis did not want to continue Mr Jenkins’ engagement on site.18 Mr Parker said that Ms Young asked whether there were any other blast and drill engineers that AMS could provide.19
[13] The email that was purported to be from Ms Young stated:
…As we spoke about yesterday, the feedback that I got from the Senior’s is that his cross shift’s would spend an excessive amount of work amending Phil’s work, primarily changing plans. The Senior’s mentioned that it was discovered that a lot of the issues came from Phil using his own template for charge designs which he had saved onto his C Drive. This has since been rectified. In my own conversations with Phil it was clear he was very focused on achieving a certain number of plans – I did mention to him it is about quality, not quantity. If I could liken him to an Engineer we have both worked with it would be … before we performance managed him…
[i]f you have any other Drill and Blast Engineers available, I would like to discuss securing them for a stint as [sic] GSM. 20
[14] Another assignment was arranged for Mr Jenkins at CSA. On this occasion, Mr Parker rearranged his existing schedule, flew to CSA, and spent time with Mr Jenkins over the course of 3 to 5 February 2020. This action was taken to provide support to Mr Jenkins in the role. Discussions were held between the two, which included how Mr Jenkins should liaise with clients, and adopt a focus on the quality of his work and not just the quantity. 21 The discussions concluded with Mr Jenkins being purportedly informed that he had to be able ‘to get along and perform the client’s expectations out on site. Otherwise we don’t have a job’.22
[15] The handover at CSA became a little more complicated because one of the two drill and blast engineers left shortly after Mr Jenkins arrival and another one gave notice three days after he arrived. 23 It was therefore the case, according to Mr Jenkins, that the Senior Engineer was the only other resource, and he had booked leave for most of February 2020.24
[16] Mr Jenkins explained that the handover was further complicated by all guidelines being out of date, and the engineering checklist related to an engineering software package that was not being used. 25
[17] Mr Parker made a phone call to Mr Jenkins, following the trip to the CSA site. 26 He discussed compliance with the client’s fatigue management policy. An email was thereafter sent on 14 February 2020 that, in Mr Parker’s words, confirmed the ‘identified areas requiring performance improvement and providing guidance on how to achieve these as discussed during the site visit’.27 That email read:
… Below are some of the points we discussed that I would like you to review and try to focus on. May even carry a copy in your note book.
1. Stop and Think before responding
1. Be resourceful to find information needed before asking others
2. Listen more and collect all information before reacting or making judgement on a situation. There may be several other factors you ae unaware of that influenced a previous decision.
2. Ask yourself, how will my response, question or email be received by the other person or group.
1. I personally ask myself this question before every phone call, email I send and conversation I have with people. Many times I reword emails or restructure conversations to deliver my message in a different way that will be received better.
3. Is it critical I comment or do I really need to ask the question or make comment. What difference will it make?
1. Sometimes things may not be clear to you or you didn’t hear correctly, but some of this information isn’t critical to your role and it’s just for your own interest and potentially wasting someone else’s time. This doesn’t mean not finding an answer, it just means you find it another way or at a more convenient time when it suits others.
4. Collate general queries over the day/week and arrange a suitable time to discuss with the required person, rather than discussing every time you have a question.
1. Asking questions is important to learn, but people don’t like to be interrupted as they’re normally busy with their own task list.
If any of these are in [sic] clear or you would like to discuss them in more detail please let me know and as always if you’re unsure of anything on-site, feel free to discuss the situation with Richie or myself first. We will manage all the commercial and contract side of things so if asked about any of these types of issues, just defer everyone to myself or Richie. 28
[18] A subsequent phone call was made on 4 March 2020, in which Mr Parker again checked with Mr Jenkins about his fatigue management and performance. Mr Jenkins sent Mr Parker an email on 16 March 2020, in which he acknowledged the guidance provided in the email dated 14 February 2020 and thanked Mr Parker for his mentoring. 29
[19] Because of Covid-19 and the subsequent restrictions that followed, Mr Jenkins began working from home on 1 April 2020. 30 He was provided with a ‘Glencore laptop and VPN set-up, to enable him to work on the tasks assigned to him by Glencore site management’.31 Mr Jenkins stated that AMS did not supply any IT infrastructure, but he was still able to remain in almost daily contact with the Senior Engineer.32
[20] According to Mr Parker, there were two ‘Zoom’ calls held between him and Mr Jenkins over the course of six days, in April 2020. The first addressed improving the design process and bettering Mr Jenkins’ communication with clients. The second was to review a drill plan and allow Mr Jenkins to practice delivering a plan, so feedback and guidance could be provided on how to work remotely and communicate with the client via video conference. 33
[21] Mr Jenkins reports that, during the period with CSA, the only feedback he received from Mr Parker was a suggestion that he used PDF editing software, so there was a live ‘electronic’ version (presumedly of designs or plans) for review. 34 He did, however, acknowledge that there was also an opportunity provided whereby he was able to run Mr Parker through a design that he had created.35 Mr Jenkins recalls that he did not receive any negative feedback regarding his presentation.36
[22] AMS received a report from CSA on 20 April 2020 that Mr Jenkins had not been able to be contacted for two days in the previous week and concerns were expressed about his performance. 37
[23] It was Mr Jenkins’ account that on 9 April 2020, he experienced IT difficulties that prevented him from accessing the workplace remotely. Mr Jenkins gave evidence that the timing was bad because he was working on a time sensitive task and IT Support was unable to fix the problem (which he said he ultimately resolved for himself). 38
[24] AMS subsequently received feedback from a Mr Jan Jacobs, Glencore Management, about the quality of Mr Jenkins’ work and difficulty of getting plans to a standard where they could be approved. Mr Jacobs was said to have indicated that CSA did not want to engage Mr Jenkins beyond the end of the current contract. 39
[25] Mr Parker called Glencore the same day as having received Mr Jacobs’ feedback. 40 He spoke to a Mr Owen Wells, the Senior Mining Engineer.41 The observations provided were that Mr Jenkins not taking on board guidance provided, was not getting plans completed on time, and was not getting ‘all the finishing bits done’.42 Mr Wells was said to have also mentioned that when Mr Jenkins departed the CSA site, the designs were half done with nothing ready to print. This, in turn, meant that Mr Wells had to ‘drop’ (not proceed with) a stope charge.43
[26] Mr Parker explained that, by this point, he was concerned about the reputation of AMS, which was known for providing competent, quality engineers; it was the first time Mr Parker had experienced such a situation where two clients in a row had voiced concerns over an engineer’s performance. 44 The amount of effort that had been put into coaching Mr Jenkins, without the necessary improvement, caused Mr Parker to have no confidence in Mr Jenkins succeeding on a third assignment.
[27] On 6 May 2020, AMS was said to have registered Mr Jenkins for Jobkeeper. Mr Jenkins stated that on 8 May 2020, Mr Parker emailed him to enquire if everything was going well and informed him that it was. 45 On that same day, AMS sent him an email to arrange a meeting for the following week. The invitation was said to have been titled ‘[C]atch-up and Next Plans’. While other meetings in the past and had been arranged in a similar manner, on this occasion, Mr Jenkins noted he was required to bring in his laptop and documents, relating to the CSA work, and, in addition, the meeting was to be held face to face instead of via Zoom.
[28] Mr Jenkins stated that, on 15 May 2020, the Senior Engineer contacted him to ascertain his plan for completing hand over notes. 46 Mr Jenkins explained that, on 21 April 2020, he had learned that there was another staff member who had started on the drill and blast team.
[29] A meeting was held with Mr Jenkins on 15 May 2020 to discuss his performance issues at CSA. Present at the meeting were Mr Jenkins, Mr Parker and Mr LeRoy. 47 According to Mr Parker, the discussion went for 90 minutes and involved discussion about all aspects of Mr Jenkins’ role, the observation that there had been no improvement in the previous performance issues raised and that AMS was unable to provide other work opportunities, due to these performance concerns. In giving his evidence, Mr Parker explained that Mr Jenkins was asked to bring with him the laptop and plans because they belonged to the client and that assignment had concluded.
[30] Mr Jenkins was provided with four weeks’ notice of termination with his employment coming to an end on 12 June 2020.
Unfair dismissal
[31] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable (s 385(b)).
[32] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.48
[33] In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. It is convenient to use those criteria set out in s 387, to outline my consideration of the matter. However, before doing so, I note that s 387 contemplates the Commission will undertake an overall assessment as to the nature of the dismissal. In so doing, the criteria in s 387 must, where relevant, be weighed up in totality.
Valid reason for the dismissal related to capacity or conduct (including its effect on the safety and welfare of other employees)
[34] While the Commission is obliged to take into account whether there was a valid reason for dismissal, relating to the employee’s capacity or conduct,49 this provision should not be construed as requiring there to be a valid reason. Although, whether there is or not will have bearing on the decision reached.
[35] To explain further, ‘valid’ in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal.50 The provisions must be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.51
[36] In the context of termination of employment related to the conduct of an employee, it is well established that the Commission must make a finding as to whether the conduct in question occurred. So much is clear from the decision of the Full Court of the Federal Court in Edwards v Giudice,52 and numerous subsequent decisions of the Full Bench of the Commission.53 The question is whether the conduct took place, and the Commission determines the answer based on the evidence in the proceedings before it. The test is not whether the employer reasonably believed that the conduct occurred.
[37] There may sometimes be a blurring of the line between what constitutes conduct and what constitutes capacity. It is accepted that performance is more likely to relate to capacity than to conduct. 54 Capacity, refers to the level at which the employee renders performance, including factors such as diligence, quality, the care taken and so on.55 However, the overlap between the concept of unsatisfactory performance and the concept of misconduct can be seen, for example, in relation to the neglect of duty or poor timekeeping.56
[38] AMS purports that the reason for Mr Jenkins’ dismissal was unsatisfactory performance. However, I consider that it was twofold. The first reason was premised on Mr Jenkins’ unsatisfactory performance. The second, his failing to be contactable for the client for two working days. In my view, the second reason touches not on Mr Jenkins’ ability to perform the role of production engineer; it sits squarely within the remit of his conduct over the course of those two working days.
[39] It is the second reason that is examined first. It was accepted that essentially Mr Jenkins’ placement at CSA was to fill a role. He was not a consultant in the sense of the word that he was engaged for his wealth of expertise, experience and acumen, and could determine his working hours and days. Mr Jenkins was required to be ready, willing and able to work on his rostered hours. Further, while it was the case that he was working from home, this did not negate his responsibility to explain, to both client and employer, when he was not contactable or absent. Hence, when he became uncontactable for two days whilst working for CSA and failed to notify his employer (line manager) of such ‘absence’, his conduct became misconduct.
[40] Mr Jenkins gave evidence concerning the lack of support from his employer regarding the provision of IT infrastructure. AMS disputed that there was a lack of support, emphasising that they outlined to Mr Jenkins what he would need (such as a router). They were informed by Mr Jenkins that he wanted a specific router and would purchase it himself. Evidence was given that AMS would have provided any IT equipment required.
[41] Nevertheless, by 1 April 2020, things were in place such that Mr Jenkins could work effectively from home. However, Mr Jenkins explained that on 9 April 2020, he experienced IT difficulties such that it prevented him from accessing the workplace remotely. There is no persuasive evidence to show that he contacted his employer to notify of his lack of accessibility or sought IT support at this time. Mr Parker gave evidence, which was not disputed, that Mr Wells had on 20 April 2020 expressed concern not only about Mr Jenkins’ performance but that he was not contactable for two days in the previous week. 57 From all accounts, this appears to have been the first indication that AMS knew of Mr Jenkins’ lack of accessibility to the workplace. That information came from the client of AMS, not AMS’ employee, Mr Jenkins.
[42] There was much made of the IT deficiencies faced by Mr Jenkins and the difficulties associated with working remotely. Still, those deficiencies and difficulties do not, in turn, abrogate his duty to inform his employer when he is unable to access the workplace remotely. There was no compelling evidence before me to show that Mr Jenkins had notified his employer or had sought assistance from his employer to rectify the issue. The failure to be ‘accessible’ for work absent a contemporaneous and plausible explanation to the employer, is of sufficient gravity to constitute a valid reason. In this respect, I refer to clause 9 of Mr Jenkins’ ‘Standard Terms of Employment’, and his breach of the same.
[43] Predominately, AMS relied upon Mr Jenkins’ capacity to perform the role, or lack thereof, to justify his dismissal. While Mr Jenkins called witnesses, who gave favourable testimony concerning Mr Jenkins’ ability, I note that both had limited exposure working with Mr Jenkins. While counsel for Mr Jenkins identified that AMS had not called the relevant representatives of its clients to give evidence, it was evident that AMS had made enquiries with its clients to ascertain, generally, the issues concerning Mr Jenkins’ performance.
[44] While on its face it seems plausible that Mr Jenkins lacked the capability to perform the role of a production engineer, so much is evinced from the email purported to be from Ms Young and Mr Parker’s conversation with Mr Wells – the evidence is not sufficiently compelling for a finding to be made that more likely than not Mr Jenkins’ performance was unsatisfactory, such that it constitutes a valid reason, or forms part of a valid reason, for Mr Jenkins’ dismissal.
[45] Ms Young’s account appeared to have been garnered from unnamed ‘Senior’s’ who had been informed from unnamed ‘cross shifts’ that they would spend an excessive amount of time amending Mr Jenkins’ work. 58 The accounts provided are third hand, in that the Seniors have relied upon that which has been communicated by ‘cross shifts’, and thereafter Ms Young has relied upon the account of the Seniors. AMS relied upon Ms Young’s account.
[46] Further, Mr Parker gives evidence of what was communicated to him by email from Mr Wells. The email from Mr Wells goes no further than stating ‘[H] will be transitioning to stope reconciliations as it is proving more difficult than we anticipated to get drill and charge plans agreed remotely. 59 We have secured recruitment which will join us within the next month’.60 Mr Parker stated that Mr Owen ‘expressed concerns with Phil’s performance’.
[47] While it was evident that neither GSM nor CSA required Mr Jenkins going forward, and that AMS had received information from its clients regarding concerns about Mr Jenkins’ performance, there remained a lack of direct evidence to support a finding being made, and the evidence about performance concerns was at best ‘second hand’.
[48] AMS placed reliance on the evidence of Mr Parker and Mr LeRoy, which was absent the setting of key performance indicators, measuring achievement against the same, and having in place a tangible plan that identified the areas of concern and what was to be actioned by Mr Jenkins. Aside from the accounts of Mr Parker and Mr LeRoy, which were premised on the feedback from client representatives, there was little else to go on.
[49] Mr LeRoy provided a copy and paste in his statement of his notes of a conversation held on 31 January 2020. However, save Mr LeRoy’s evidence to the contrary, there is little before me to verify that the notes were contemporaneously prepared – and not, for example, prepared sometime after the event in preparation for these proceedings. However, I am appreciative that Mr Jenkins’ evidence does disclose in some respect, the account detailed at paragraph 8 of Mr LeRoy’s witness statement. Mr Jenkins gave evidence, for example, which affirmed he had been informed that he made it harder by modifying plans and that there were reasons that sites had in place their own processes.
[50] When Mr Jenkins was asked whether he was informed that if AMS could not meet client needs, this would mean perhaps he couldn’t be placed with clients and that there wouldn’t be any work for him, Mr Jenkins replied to the effect that he believed the issues were rectified, so he did not believe his job was at risk. The belief appears most plausible given the lack of regular performance management meetings.
[51] Whilst Mr Parker spoke of the support provided when Mr Jenkins commenced with CSA, and the email sent on 14 February 2020 confirming areas where performance improvement was required, I do not consider these actions can be accurately depicted as ‘performance management’. By this, I mean where the term ‘performance management’ connotes a process whereby performance improvement is evaluated regularly and assessed against clear indicators with a view to ending employment if the performance does not meet the requisite standard.
[52] The approach adopted by AMS was supportive and tempered, but it did not plainly set out for Mr Jenkins that his performance was unsatisfactory, what precisely he needed to do to address it (and the time frame for doing so) and that a failure to improve would result in the loss of his employment. The evidence provided by AMS was that Mr Jenkins believed other people were in the wrong, he was difficult to coach and take on board guidance, he thought he was right and wants to challenge everything. Yet, when asked whether Mr Parker expressed to Mr Jenkins his issues as a performance failing – Mr Parker said ‘no’.
[53] The Commission’s function is not to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Commission. It is for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct.61
[54] Insofar as Mr Jenkins’ conduct is concerned, the two days where he was not accessible for work and failed to notify his employer constitutes misconduct and, it follows, is a valid reason for dismissal. In respect of AMS having a valid reason to dismiss Mr Jenkins, in part, or otherwise wholly reliant on his performance, I do not consider this to be the case. The evidence did not lend itself to a finding of unsatisfactory performance, such that it constituted a valid reason for dismissal or formed part of a valid reason.
[55] In Parmalat Food Products Pty Ltd v Wililo62 the Full Bench held that the existence of a valid reason is a very important consideration in any unfair dismissal case, the absence of which will almost invariably render the termination unfair. However, I am satisfied that AMS had a valid reason for Mr Jenkins’ dismissal.
Notification of the valid reason and an opportunity to respond
[56] The Commission must take into account whether notification of a valid reason for termination has been given to an employee protected from unfair dismissal before the decision is made,63 and in explicit,64 plain and clear terms. It is accepted that this is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality.65
[57] Mr Parker gave evidence of having held a 90-minute meeting with Mr Jenkins on 15 May 2020, in which all aspects of Mr Jenkins role were said to have been discussed. It was said that Mr Jenkins was notified that there had been no improvement from the previous performance issues raised. It was unclear whether, in the course of this discussion, the two-day ‘absence’ from work was raised.
[58] From the evidence provided by all witnesses, it is difficult to ascertain precisely what was communicated in the meeting with Mr Jenkins. No letter was provided to Mr Jenkins setting out the performance issues or the conduct issue.
[59] Mr Jenkins does not refer to having been provided with an opportunity to respond, but rather that his handover notes were reviewed, and thereafter he was informed that his employment would be terminated because of reputational damage to AMS. Mr Parker gave evidence of not having made a decision to dismiss Mr Jenkins prior to the meeting on 15 May 2020, but having resolved to take that course after Mr Jenkins provided answers that evinced no ownership of issues and having adopted a combative style in the meeting. AMS submitted that Mr Jenkins presented at the meeting prepared to defend his performance. However, the calendar invite sent to Mr Jenkins did not illuminate the disciplinary purpose of the meeting. Therefore, it seems unusual that Mr Jenkins would present prepared to defend his performance; the more plausible explanation being he was requested to return the laptop and relevant paperwork.
[60] Whilst difficult to ascertain, on balance, I am not persuaded that, more likely than not, Mr Jenkins was notified of the valid reason in the sense referred to in paragraph [35] of this decision and provided with an opportunity to respond to the same.
An unreasonable refusal by the respondent to allow a support person
[61] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.
[62] It was Mr Jenkins’ position that he considered the invite for the meeting on 15 May 2020 was to ‘Catch-Up’ to discuss ‘Next Plans’, in accordance with the calendar invite sent. While Mr Jenkins was not unreasonably refused the presence of a support person, he was not aware that the meeting scheduled warranted bringing one. I have taken this point into account in arriving at my decision.
Dismissal is related to unsatisfactory performance
[63] Where the dismissal arises from a person’s unsatisfactory performance, the Commission must take into account whether the person had been warned about such performance before the dismissal.
[64] As observed, unsatisfactory performance is more likely to relate to the employee’s capacity to do the job rather than her or his conduct. 66 When taking into account the criterion, the Commission considers whether there was a period between the employee being warned about unsatisfactory performance and the subsequent dismissal. This period gives the employee the opportunity to understand that her or his employment is at risk with a view to allowing time for them to try to improve performance.67
[65] What constitutes having been ‘warned’ has been considered previously. The word in and of itself conjures up thoughts that the communication will relay something somewhat alarming or ominous. It is, therefore, of no surprise that it is a communication said to demonstrate the seriousness of the concerns held by an employer about an employee’s performance. The Full Bench decision in BlueScope Steel Limited v Sirijovski 68 discussed the nature of warnings in the context of s 387(e) of the Act. At paragraph 37 of that decision, the Full Bench stated:
The purpose of a warning contemplated by s.387(e) of the Act is to demonstrate the seriousness with which an employer regards an employee’s performance and/or conduct and to provide an opportunity for the employee to address those concerns and thereby avoid or reduce the risk of dismissal. A warning should identify the relevant aspects of the employee’s performance which is of concern to the employer and should make it clear that the employee’s employment is at risk unless the performance is improved. In James McCarron v Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd the nature and purpose of a warning about unsatisfactory performance is described as follows:
“[32] The purpose of a warning about unsatisfactory performance must be to identify the performance that is of concern and must make it clear that a failure to heed the warning places the Applicant’s employment at risk. Such a warning gives an employee an opportunity to improve in those areas identified as requiring improvement. An integral part of such a warning must be to clearly identify the areas of deficiency, the assistance or training that might be provided, the standards required and a reasonable timeframe within which the employee is required to meet such standards.” (Footnotes omitted)
[66] The Act requires me to have regard to whether AMS gave warning to Mr Jenkins about his unsatisfactory performance, as held to exist at a time before his dismissal. In the statutory context, a warning must have been conveyed (with an appropriate level of gravity) so as to leave Mr Jenkins in no doubt that AMS anticipated change in one particular area of performance or another.
[67] AMS submitted that Mr Jenkins’ performance of work was unsatisfactory, and it warned Mr Jenkins of this and the need for him to improve. I have considered the evidence of Mr Parker and Mr LeRoy as both were involved in managing Mr Jenkins. I do not consider that either of them warned Mr Jenkins in the sense conveyed in s 387.
[68] No warning was reduced to writing, and in my view the verbal communication of both did not disclose an unequivocal warning that his continued employment was in jeopardy because of unsatisfactory performance, whilst alluded to, it was not unequivocally clear. The approach taken by AMS was best characterised as an attempt to further develop Mr Jenkins via the provision of guidance, mentoring, and support.
[69] I appreciate that warning Mr Jenkins may have been a difficult course of action. Mr Jenkins is a young, newly graduated engineer. Understandably, in my view, AMS sought not to deflate his confidence and aptitude, but rather foster it. However, there comes a point where a forthright approach is warranted in circumstances where unsatisfactory performance is on the verge of rendering the continuation of employment precarious. This is particularly so where improvement is so very much required, or the employment relationship will end. Mr Jenkins was not warned that this was the case. However, if it were the case that Mr LeRoy had ‘warned’ Mr Jenkins about his work performance, back in January 2020, given the time that had passed absent clear feedback that his performance remained unsatisfactory, understandably Mr Jenkins was none the wiser that his performance was at risk for the remaining half of 2020.
Impact of the size of the respondent on procedures followed and absence of dedicated human resources management specialist/expertise on procedures followed
[70] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (a) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (b) 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.
[71] It was evident that AMS did not have its own internal human resource capability given its modest size. I am of the view that this impacted upon the procedures followed and, as such, this factor has been considered.
Other relevant matters
[72] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.
[73] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation,69 the Full Bench stated that:
That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable.70
[74] Mr Jenkins had worked for a short period and possessed limited work experience in the engineering field. It appeared that he had worked for one company previously in an engineering role, and that was for a short duration. Whilst evidence was provided that the type of work allocated to Mr Jenkins was typical of that assigned to graduate engineers, it nevertheless remained the case that Mr Jenkins’ initial orientation to the role was limited.
[75] Whilst Mr Jenkins was relatively inexperienced, and the initial support provided to him in the role was lacking, he failed to alert AMS, in a timely manner, of his lack of accessibility for a two day period. His lack of experience does not excuse this. In my view, his misconduct constituted a valid reason for dismissal. However, AMS’ enquiries into the circumstances of the absence were limited. It appeared that Mr Jenkins may have informed AMS that he was fatigued or ill, or otherwise there were IT issues. Nevertheless, AMS did not pursue the misconduct further, and it is not apparent that a disciplinary process ensued.
[76] The predominant reason relied upon to dismiss Mr Jenkins was his unsatisfactory performance. The evidence did not support such a finding. Whilst the efforts of AMS to support Mr Jenkins, particularly in the circumstances of this second assignment are acknowledged, the evidence did not persuade that Mr Jenkins was on notice that his employment was at risk for the remaining half of 2020. I appreciate that Mr Jenkins was with AMS for a relatively short period. However, I am of the view that the dismissal was attenuated with procedural unfairness, such that it rendered the dismissal unfair.
Conclusion on nature of the dismissal
[77] Whilst there was a valid reason for Mr Jenkins’ dismissal, there was a fundamental failure to accord him procedural fairness, as understood by reference to ss 387(b), (c), (d) and (e) of the Act. The procedural flaws were unacceptable, albeit I have taken into account the size of AMS and its lack of human resource management specialists. I consider that in all the circumstances, the procedural deficits gave rise to unfairness in the particular circumstances of this case. The dismissal was, therefore, unfair within the meaning of the Act.
Remedy
[78] Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is not appropriate, and that it considers an order for the payment of compensation to be appropriate in all the circumstances of the case.
[79] While reinstatement is the ‘presumptive’ remedy, I do not consider it appropriate in all the circumstances to order it,71 and am reassured that there is no right to reinstatement consequent upon a finding that a person has been unfairly dismissed.72 The Commission has discretion as to whether any remedy will be awarded, and reinstatement will be ordered only if the Commission is satisfied that it is appropriate to do so.73
[80] Regarding the first of these issues, I do not consider reinstatement appropriate in light of AMS’ loss of confidence in placing Mr Jenkins with future clients. The concern does not appear to be unsound or irrational given two clients had not extended the contract for Mr Jenkins’ services. It was uncontroversial that AMS was of modest size and I am appreciative of its circumstances. Mr Jenkins had submitted he sought compensation by lodging his application.
[81] With respect to the second issue, concerning whether an order for compensation is appropriate, I note that compensation is intended to provide a person who has been unfairly dismissed with reparation for losses reasonably attributable to the unfair dismissal. It is not intended to be punitive.74 The amount of compensation ordered by the Commission must not include a component for shock, distress or humiliation, or other analogous hurt, caused to the person by the dismissal.75
[82] In determining the amount, all the circumstances are to be taken into account, including those prescribed by s 392(2) of the Act. The ‘Sprigg’ formula is to be applied to arrive at an appropriate amount.76 The method for calculating compensation, under s 392, is also informed by the decision of the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc,77 in relation to the order in which the considerations in s 392 and other factors should be applied.
[83] In my assessment, this is a case in which an order for compensation is appropriate, however, for the reasons outlined below, compensation would amount to $6,315.00 (gross) due to the application of the ‘Sprigg’ Formula.
[84] In Haigh v Bradken Resources,78 the Full Bench reaffirmed the principles set out within Sprigg, and in particular the steps needed to be taken in assessing compensation. The first of those steps is to estimate the amount the employee would have received, or would have been likely to receive, if the employment had not been terminated; the second step being to deduct moneys earned since termination; the third is to make deductions for contingencies; fourth, to calculate any impact of taxation; and fifth, to apply the legislative cap.79
[85] The Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries80 stated:
The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic’81. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.
[86] The notion of ‘taking into account’ a matter (such as those described in s 392 of the Act) connotes a genuine consideration of the relevant provision and the apportionment of the appropriate weight in the circumstances.82 In Construction, Forestry, Mining and Energy Union v Hamberger and Another,83 Katzmann J pointed out that ‘[t]o take a matter into account means to evaluate it and give it due weight’84 and that ‘mere advertence will not be enough.’85
Remuneration that the person would have received, or would have been likely to receive if the person had not been dismissed
[87] It was said that Mr Jenkins annual salary at the time of his dismissal was $109,500.00 (gross). 86 There is no evidence before me to dispute that this is not the case, and for the purpose of determining a compensatory amount, I have proceeded on the basis that Mr Jenkins’ weekly gross income was $2,105.00 (gross).
[88] The question of the anticipated period of employment can be a particularly vexed issue, requiring an exercise of judgement on what would be reasonable, considering all the circumstances. It is particularly vexed in the circumstances of this matter because AMS was unequivocal in its evidence that Mr Jenkins’ performance was plainly unsatisfactory and it considered that it could not place him with another client going forward.
[89] Throughout the course of the merits hearing, Mr Parker verbalised he had concerns about Mr Jenkins’ work performance. Concerning the merits of the matter, I have found that the evidence before me was insufficiently probative to demonstrate the extent of the purported unsatisfactory performance – noting the issues arising from the evidence presented.
[90] In such circumstances, I could not reasonably find that Mr Jenkins’ work performance was so deficient that it gave rise to a valid reason for his dismissal. However, it does not follow that there were no performance issues or problems with his ongoing employment.
[91] The submissions and evidence provided in respect of remedy were limited. This was notwithstanding the direction that remedy would be traversed. Mr Jenkins provided little in the way of submission concerning the anticipated period of employment. I am unpersuaded that Mr Jenkins would have remained with AMS for long, in light of the work performance issues that were percolating and given the fractious relationship which was developing, such that AMS considered it could not risk placing Mr Jenkins with any further clients.
[92] Based upon the evidence and having regard to the submissions of the parties, I have reached the conclusion that Mr Jenkins employment would have continued for a period of eight weeks. This period represents the time it may have taken to have informed Mr Jenkins of his work performance issues, to have addressed the same by way of a performance management process, and to have ended his employment with the requisite notice paid out in lieu.
[93] In short, the eight weeks would have proved time for Mr Jenkins to demonstrate improvement in both attendance to detail (quality) over the quantity of work product. While not wanting to adopt a fatalistic stance, in the sense that the outcome inevitably would have been the same, after that eight week period, I am unpersuaded that the employment relationship would have remained on foot. Not because performance improvement was unfeasible, per se, but because to improve one’s performance there is a necessity to be receptive to feedback. While an email at Attachment 1 to the Witness Statement of Mr Parker, evinced Mr Jenkins’ receptiveness to the guidance given in the email from Mr Parker dated 14 February 2020, Mr Parker’s evidence concerning Mr Jenkins’ reticence to, in effect, take on board feedback, was unchallenged.
[94] The anticipated employment period is, therefore, eight weeks. However, notice is payable at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum notice period. Payment in lieu of notice was provided (or otherwise Mr Jenkins was not required to work during the notice period but was otherwise provided payment for the same) and can be deducted from the length of service or otherwise considered under the anticipated period of employment.
The effect of the order on the viability of the employer’s enterprise
[95] The effect of the order on the viability of AMS’ enterprise is unable to be assessed because no evidence has been given regarding this factor, notwithstanding that both parties were directed to address remedy.
Length of the person’s service with the employer
[96] Mr Jenkins had been with AMS for a relatively short period. His length of service does not lend support to the making of an order for compensation.
The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[97] Mr Jenkins gave evidence that he had applied for several jobs without success. There is no reason to disbelieve him and his evidence in this respect is uncontested.
The amount of remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[98] AMS submitted that it had made payment to Mr Jenkins of four weeks’ pay in lieu of notice. Reference was also made to having paid Mr Jenkins some $8,000.00 that it was not contractually obliged to pay. However, no further evidence was led with respect to this payment, and therefore it cannot be ascertained whether the payment was made because of Mr Jenkins’ dismissal, or whether there was a temporal reference to the same.
[99] There does not, from the evidence provided, appear to have been any remuneration earned.
Any amount of income reasonably likely to be earned during the period between the making of the order and the actual compensation
[100] I am satisfied that between the making of the order and the actual compensation, Mr Jenkins is unlikely to have earned an amount of income.
Misconduct and shock, distress or humiliation
[101] I consider there was misconduct which would require me to reduce the amount of compensation. With regard to the merits of the case, I found, based on the evidence of Mr Jenkins and AMS, that Mr Jenkins had engaged in misconduct. That misconduct was sufficiently serious to constitute a valid reason for dismissal. Therefore, I have sought to reduce the amount of compensation by 25%.
[102] I do not include any component by way of compensation for shock, distress or humiliation caused by the manner of the dismissal.
Compensatory cap
[103] The amount of compensation the Commission may order is capped. If the appropriate quantum of compensation initially assessed exceeds that cap, then the Commission must reduce the amount to the amount of the cap.
[104] The Act stipulates that the compensation cap is the lesser of:
the amount of remuneration received by the person, or that he or she was entitled to receive (whichever is higher) in the 26 weeks before dismissal; or
half the amount of the high income threshold immediately before dismissal.87
[105] For the purpose of s 392(5) of the Act, I am satisfied the amount is $54,750.00.
Any other matter that the Commission considers relevant
[106] I have considered the circumstances of the case, and there are no further matters that I consider relevant when arriving at the compensatory amount.
Conclusion and Orders
[107] After consideration of the foregoing issues, I find that Mr Jenkins was dismissed and that it was unfair within the meaning of the Act.
[108] Reinstatement is not an appropriate remedy in this case, and therefore, I find that compensation is appropriate. The calculation for compensation is set out in the following table.
Compensation | Calculation | Gross | Total Gross Amount (inclusive 9.5% superannuation where necessary) |
Anticipated employment period | 8 weeks at $2,105.00, gross per week (inclusive of superannuation) | $15,384.00 | $16,840.00 |
Deduct payment in lieu of notice | Less $7,692.00 - equivalent to 4 weeks’ pay | $7,692.00 | $8,420.00 |
Deduct monies for misconduct | 25% deduction - $1,923.00 | -$1,923.00 | $2,105.00 |
Deduction for contingencies | 0% as no significant element of future economic loss (no basis for any deduction for contingencies) | $0 | $0 |
Calculate any impact of taxation | To be taxed according to law | $0 | $0 |
Apply the compensation cap | Last six months remuneration received by Mr Jenkins = $50,000.00 or Half the amount of the high income threshold = $746,800.00 | Cap applied | |
TOTAL | $6,315.00 |
[109] For the reasons I have given earlier, and on the basis of the calculations completed, I observe that AMS is required to make a compensatory payment to Mr Jenkins. In determining the amount for the purpose of the order, I have taken into account all of the circumstances of the case including the criteria set out in s 392(2) of the Act.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR724038>
1 Fair Work Act 2009 (Cth) s 382.
2 Witness Statement of Phillip Jenkins (Jenkins Statement) [2].
3 Witness Statement of Brendan Parker (Parker Statement) [3].
4 Jenkins Statement [6].
5 Ibid [7].
6 Ibid [9].
7 Ibid [10].
8 Ibid [12].
9 Ibid [14].
10 Ibid [16].
11 Ibid [18].
12 Witness Statement of Mr Richard LeRoy (LeRoy Statement) [7].
13 Ibid.
14 Ibid [8].
15 Ibid.
16 Ibid [9].
17 Parker Statement [5].
18 Ibid.
19 Ibid.
20 LeRoy Statement, Attachment 1.
21 Parker Statement [5].
22 Ibid [8].
23 Jenkins Statement [24].
24 Ibid.
25 Ibid [26].
26 Parker Statement [10].
27 Ibid [11].
28 Ibid, Attachment 1.
29 Ibid [13].
30 Ibid [15].
31 Ibid.
32 Jenkins Statement [36].
33 Parker Statement [20].
34 Jenkins Statement [42].
35 Ibid [41].
36 Ibid.
37 Parker Statement [21].
38 Jenkins Statement [44].
39 Parker Statement [16].
40 Ibid [17].
41 Ibid.
42 Ibid.
43 Ibid.
44 Ibid [22].
45 Jenkins Statement [50].
46 Ibid [52].
47 Parker Statement [24].
48 (1995) 185 CLR 411, 463.
49 Fair Work Act 2009 (Cth) s387(a).
50 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
51 Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17, [36].
52 (1999) 169 ALR 89, 92.
53 King v Freshmore (Vic) Pty Ltd, Print S4213, per Ross VP, Williams SDP, Hingley C.
54 Homer Abarra v Toyota Motor Corporation Australia Ltd[2018] FWCFB 7566, [92].
55 Ibid.
56 Ibid.
57 Parker Statement [21].
58 LeRoy Statement, Attachment 1.
59 Parker Statement, Attachment 2.
60 Ibid.
61 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
62 (2011) 207 IR 243, [24].
63 Trimatic Management Services Pty Ltd v Daniel Bowley[2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
64 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Previsic v Australian Quarantine Inspection Services Print Q3730.
65 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15.
66 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
67 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2, [58].
68 [2014] FWCFB 2593, [36]-[42].
69 (2013) 238 IR 1.
70 Ibid 41.
71 Hatwell v Esso Australia Pty Ltd[2019] FWC 931 [28].
72 Nguyen and Le v Vietnamese Community in Australia[2014] FWCFB 7198.
73 [2014] FWCFB 7198, [35].
74 Kable v Matilda Greenbank[2015] FWCFB 3512, [17].
75 Fair Work Act 2009 (Cth) s 394(4).
76 See Ellawala v Australian Postal Corporation (AIRCFB, Print S5109, 17 April 2000), [33]; and see Bowden v Ottrey Homes Cobram and District Retirement Villages Inc.[2013] FWCFB 431.
77 Ibid.
78 [2014] FWCFB 236.
79 Ibid [10].
80 [2016] FWCFB 7206, [17].
81 Smith, Arthur and Kimball, Brett v Moore Paragon Australia Ltd PR942856, [32].
82 Lewis v Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg [2014] FWC 1086.
83 (2011) 195 FCR 74.
84 Ibid [103].
85 Ibid.
86 Jenkins Statement, Attachment 4.
87 Fair Work Act 2009 (Cth) sub-s 392(5) and (6).
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