Prabhjot Singh v Coles Supermarkets Australia Pty Ltd T/A Coles Supermarkets
[2018] FWC 3309
•6 JUNE 2018
| [2018] FWC 3309 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Prabhjot Singh
v
Coles Supermarkets Australia Pty Ltd T/A Coles Supermarkets
(U2017/7376)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 6 JUNE 2018 |
Application for an unfair dismissal remedy.
[1] Mr Prabhjot Singh (Singh) was employed by Coles Supermarkets Australia Pty Ltd T/A Coles Supermarkets (Coles) from 24 June 2014 as a Team Member in the Coles Services Division at the Shepparton Central store until he was dismissed from his employment on 18 June 2017 at the initiative of his employer. The dismissal took effect immediately and Mr Singh was paid two weeks’ pay in lieu of notice.
[2] On 7 July 2017, Mr Singh made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Coles.
[3] Coles submitted that Mr Singh was underperforming and had received both informal counselling and coaching as well as formal performance management on a number of occasions prior to his dismissal. 1 Coles considered that Mr Singh’s performance remained unacceptable and the decision was made to terminate his employment.2
[4] Mr Singh submits his dismissal was unfair because he was not given the opportunity for additional coaching prior to his dismissal and he had been given additional tasks to complete which did not form part of his original duties.
[5] For the reasons set out below I have concluded that Mr Singh’s dismissal was not unfair and the application will be dismissed.
Procedural Background
[6] This matter was conciliated on 7 August 2017 however remained unresolved. The matter was subsequently listed for arbitration before me in Shepparton on 26 and 27 October 2017. Final written submissions were received on 22 December 2017.
[7] To assist the Commission in dealing with the matter more efficiently, Mr Will Spargo of Lander & Rogers was granted permission to appear on behalf of Coles.
[8] Mr Singh gave evidence on his own behalf.
[9] The following witnesses gave evidence on behalf of Coles:
• Mr Adam Cochran, Area Manager – Coles Services
• Mr Adrian Harbas, Area Manager – Coles Services for area V306
• Mr Leigh Steuart, Team Leader for Coles Services at the Kialla store
• Ms Linda Crosby, Team Leader of the Coles Services team at the Shepparton Central store; and
• Ms Ruby Saunders-Mills, Coles Services Human Resources Business Partner for Victoria.
Preliminary Matters
[10] Section 396 of the Act requires that the following matters be decided before the merits of Mr Singh’s application may be considered:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code);
(d) whether the dismissal was a case of genuine redundancy.”
[11] There was no contest between the parties in relation to the items above. I am satisfied that Mr Singh was a person protected from unfair dismissal.
[12] Therefore the issue for me to determine is whether Mr Singh’s dismissal was harsh, unjust or unreasonable.
Background
[13] Coles Services is the division of Coles that is responsible for cleaning and trolley collection in stores. The daily, weekly and monthly tasks that form part of the work performed by Coles Services are detailed in the Coles Service Standards Guide (the Standards) 3.
[14] Mr Singh usually worked evening shifts from 6pm to 11pm Wednesday to Friday and 10:30am to 7pm on Sundays. His tasks included cleaning the bakery, fresh produce, the chook room and the delicatessen, in addition to collecting trollies. 4
[15] Mr Singh submitted his role with Coles was to complete the daily cleaning tasks and that in April of 2017 his Area Manager, Mr Cochran, added the additional task of deep cleaning all departments to his task list without increasing his hours. These tasks were also referred to as ‘weekly tasks’. Mr Singh submitted that due to the increased workload he was unable to complete all of the required tasks within the time frame he was given and therefore the dismissal was unfair. 5
[16] Coles submitted in addition to the duties outlined in paragraph [14] Mr Singh was also responsible for mopping aisles 9 & 10 of the supermarket, spot mopping as required and the storeroom floor cleaning. 6 They submitted that both the daily and weekly tasks are as set out in the Standards and that these deep cleaning tasks have formed part of Mr Singh’s role since the commencement of his employment.7
[17] Mr Singh was trained in the Standards on commencement of his employment however he alleges that he only received training on how to perform the daily tasks. 8 At the commencement of his employment and again on 22 February 2017, Mr Singh received training in the safe work practices statement titled “Housekeeping”. 9 Mr Singh was directed to this document during his performance meetings as the document specifically addressed the safety standards that he was required to meet.10 This document specifically states that employees must keep all areas clean and tidy, free of slip and trip hazards, spills or breakages. There is also a requirement for Coles Services employees to “clean as they go”.
[18] Coles submit that Mr Singh received informal counselling and coaching regarding his failure to complete all tasks to the standards required, as well as formal performance management on a number of occasions. 11 Specifically, he received a warning on 20 January 201612, received informal performance feedback in November 201613, a written warning on 21 April 201714 and a final written warning on 19 May 201715.
[19] Coles submit that despite numerous warnings and the training provided to Mr Singh his performance remained unacceptable with the same issues occurring repeatedly. 16 They submit that Mr Singh advised he did not have enough time to complete his work, however had done so on previous occasions and whilst being observed on 31 May 2017. Further, they submit that other team members are able to comfortably complete their work within their usual shift time.17
[20] Accordingly, Coles submit that the decision was made to terminate Mr Singh’s employment. 18 Coles provided the reasons for Mr Singh’s dismissal in some detail during a meeting held on 18 June 2017.
[21] On 19 June 2017 Mr Singh received a letter confirming his dismissal for the reasons as notified in the meeting of 18 June 2017. 19
The cases presented
Evidence of Mr Singh
[22] Mr Singh essentially argued two points. Firstly, that he was assigned the additional task of deep cleaning (weekly tasks) which did not form part of his role, and as such it was impossible for him to complete all of his work on time. Secondly, Mr Singh argued that he was not provided with “one on one” training by Mr Cochran as discussed and recorded during his performance meeting on 19 May 2017, therefore his dismissal was unfair.
[23] Mr Singh raised two other incidents that had occurred during the course of his employment, being a dispute regarding parental leave arrangements and a failure of Coles to pay him overtime, however it was unclear whether Mr Singh was alleging that these incidents contributed to his dismissal.
Additional Tasks
[24] Mr Singh submitted that the allegations regarding his poor performance were either incorrect or occurred because he did not have sufficient time to complete his tasks. 20 He submitted that Coles expected him to perform over 12 hours’ worth of work within 5 hours and as such he was unable to complete all of his allotted tasks.21
[25] Mr Singh injured his back in November 2015 and had 10 days off work. When he returned he was unable to perform some of his daily tasks due to his injury. He exchanged the mopping of aisles 9 and 10 for the cleaning of the stockroom and Liquorland with the Team Leader, Ms Crosby. Mr Singh says Ms Crosby refused to swap back when he had recovered from his injury and he was left doing the additional tasks of both the mopping and cleaning. He submitted that mopping the aisles was a one hour job and scrubbing the stockroom was a three hour job. 22
[26] Mr Singh advised that he notified the Area Manager and nothing was done. Further, Mr Singh submitted that Ms Crosby bullied him for a year and a half when he was unable to complete all of his tasks and would point out the ‘silly errors’ from his previous shifts when she was being paid to complete those tasks. 23 Mr Singh subsequently ceased mopping the aisles because he was still cleaning the stockroom and therefore thought Ms Crosby should be doing this task.24
[27] Mr Singh’s oral evidence was that prior to the commencement of Mr Cochran he had been performing his role in accordance with how he had been trained since he commenced with Coles. He submitted that he followed the Standards completing daily cleaning tasks and would receive assistance from additional employees with the deep cleaning tasks every Thursday and Friday night for two hours. 25 Mr Singh’s evidence on this matter tended to be vague and during cross-examination he was at times evasive. Mr Singh says that the employees he referred to had been doing the deep cleaning since he had commenced his employment.26 He says that once those employees ceased doing the deep cleaning at the store it was not done for a period of four to five months.27
[28] Mr Singh was unable to provide specific details as to who had provided him with assistance. During cross examination it was put to Mr Singh that one of those employees was Myra and that she, along with others, had been engaged during busy periods (such as Christmas) at the initiative of Coles to assist with trolley collection and some cleaning tasks. Mr Singh conceded that Myra may have been one of the temporary employees that assisted him. 28
[29] Mr Singh gave evidence that there was no task list in store for him to follow. He later gave evidence that he followed the task list in store and says it did not include any deep cleaning tasks. Mr Singh agreed that the weekly and daily tasks were detailed in the Standards however he says he was only trained in the daily tasks and not the weekly tasks as they did not form part of his role. Mr Singh’s concedes that the task list referred to was the Standards however he did not accept that he was responsible for performing the weekly tasks as outlined. 29
[30] Mr Singh submitted that in April of 2017 Mr Cochran added the additional task of deep cleaning all departments to his task list. 30 Mr Singh’s evidence was that prior to this he was able to complete all his tasks.
Performance discussions, coaching and training
[31] Mr Singh’s evidence was that he received training from Ms O’Halloran on how to complete the deep cleaning of the bakery, with the task taking them three hours working “shoulder to shoulder”. 31 Mr Singh says that the cleaning was still not finished due to a lack of equipment so Ms O’Halloran informed Mr Cochran an additional coaching session would be required.32
[32] Mr Singh attended a performance discussion on 21 April 2017. 33 The matters discussed at that meeting included Mr Singh’s failure to adequately perform his duties on a number of occasions. Mr Singh was provided with photos of each of the concerns raised and signed the performance document acknowledging receipt.
[33] Mr Singh’s evidence was that he had an opportunity to respond to each of the concerns. Mr Singh confirmed that the comments recorded in the performance discussion on 21 April 2017 were an accurate record of his responses. 34 In that performance discussion record Mr Singh’s responses were recorded as either “what is the big deal” or that “it was not his problem” or he simply agreed with the concerns raised.35 At the conclusion of the meeting an action plan was put in place and Mr Singh was provided with a first disciplinary warning.
[34] During the hearing Mr Singh was presented with the same photos he had been shown at this meeting depicting each of the tasks Coles alleged he had failed to complete to the required standard. Those items included fat left in the delicatessen sink, rubbish on the ground in the fresh produce area, failure to put the liner in the bins and failure to clean the bin in the bakery properly. Mr Singh did not dispute that most of the items in question were daily tasks. 36 Mr Singh gave evidence that he did not have time to complete the tasks or that he did not need to complete the tasks.37
[35] On 26 April 2017, Mr Singh submitted that was trained by both Mr Cochran and Ms Crosby in the deep cleaning of the bakery. Mr Singh’s evidence was that Mr Cochran and Ms Crosby not only instructed him on how to do these tasks but they also assisted him by doing some of the tasks for him. Mr Singh submitted that Ms Crosby told him he would not be able to complete all the tasks himself. Mr Singh advised that the three of them working together “shoulder to shoulder” took 3 hours to complete the deep cleaning, therefore he submitted that it would take one person 9 hours to complete the work on their own. 38 By this reasoning Mr Singh had formed the view that Coles expected him to complete 12 hours and 15 minutes’ worth of work in a five hour shift.39
[36] On this same night, Mr Singh submitted that as Mr Cochran was leaving he advised him that he would not be finished with the chook room until 11pm and still had to clean the delicatessen and collect the trollies. Mr Singh submitted that he asked Mr Cochran if he would receive overtime for the additional work required, to which Mr Cochran responded that a ghost would pay him. He submitted that Mr Cochran later advised that if Mr Singh did the work he would sort it out, however Mr Singh did not receive payment for this overtime despite repeatedly requesting it. 40 Mr Singh’s oral evidence was that prior to the hearing he had received the overtime payment.41
[37] Mr Singh submitted that on 4 May 2017 he received a call from Mr Cochran advising him that he had not completed his required tasks and that they would be meeting with human resources on 19 May 2017. 42 Mr Singh’s oral evidence was that he interpreted Mr Cochran bringing a human resources representative to the meeting as a threat.43
[38] At this meeting, Mr Cochran and Ms Saunders-Mills were in attendance. Mr Singh submitted that they discussed his performance and expectations of the role, and that he told Ms Saunders-Mills that he was being bullied, harassed, treated as a slave and victimised by Mr Cochran. 44 Mr Singh signed the performance discussion record which makes no mention of any comments to that effect made by Mr Singh.45
[39] Mr Singh does not dispute he was again taken through the areas of concern relating to his performance during the 19 May 2017 meeting. Again he was shown photos of the tasks that Coles alleged he had not performed to Coles’ standards. 46 Each photo was presented to Mr Singh again during the hearing. Mr Singh did not dispute that he had failed to place a liner in the bakery bin and that there was water on the bakery floor that had not been mopped up. Mr Singh says that the water was there because it runs down from under the shelves and he did not have time to go back and mop it up. His evidence in response to some of the alleged failures to perform his duties included that he did not have time to do the trolley wrap up, that he did not have time to clean the bakery and delicatessen walls and that, whilst he did not clean the drain, he did clean the bin in the delicatessen area.47
[40] It was also alleged that Mr Singh did not empty the bin in the fresh produce area. Mr Singh’s initial evidence was that he did not empty the bin because it was too heavy, however he later submitted that he had emptied it and that he had taken photos of the emptied bins every night. Mr Singh was not sure which reason was the reason he wanted to rely on but went on to say “I think I deny it because I deny it”. 48
[41] Mr Singh’s reasons for failing to refill the paper towel dispenser and clean the delicatessen drain were that he did not have enough time. 49 Mr Singh did not deny leaving equipment out that should have been put away.50 Mr Singh did not deny that the tasks outlined above were predominantly daily tasks and his responsibility.51
[42] Mr Singh was questioned in cross-examination about the water that had run from the bakery into the stockroom and was left as a possible slip hazard. Mr Singh’s reason for not mopping up the water from his area was that it had gone into the stockroom and he wasn’t responsible for cleaning that area. He also ignored the rubbish on the floor which was clearly visible to him. 52 Mr Singh agreed that it was a Coles Services principle to clean as you go, however he was not going to perform extra duties because he didn’t want to do “anything for love”.53
[43] Mr Singh’s evidence was that he was given a final disciplinary warning. He was advised of the action plan set out in the performance discussion record and that Mr Cochran would review his performance in four weeks’ time. Mr Singh says that he requested Ms Saunders-Mills to attend the following meeting and was told that she would attend either in person or by telephone. 54
[44] On 31 May 2017, Mr Leigh Steuart from Kialla Coles observed Mr Singh on his shift. 55 Mr Singh submitted that Mr Steuart advised him he was not there to train Mr Singh and was just there to observe.56 Mr Singh first gave evidence that Mr Steuart did not assist him during the evening and that he didn’t complete all of his tasks as he was unable to complete the trolley collection. However, during cross-examination, Mr Singh conceded that there was a blocked sink in the delicatessen which he decided not to clean as he did not “want to spend 10 to 15 minutes on the sink to clean it” that Mr Steuart subsequently unblocked.57 Mr Singh submitted that at the end of his shift he asked Mr Steuart for feedback, and that Mr Steuart stated that he had done a fabulous job, that he could not have completed the work that Mr Singh had and that no one could complete every task in the time period.58
[45] Mr Singh advised that he attended a meeting on 14 June 2017 in which Mr Cochran asked him to work for five nights a week instead of four. When Mr Cochran advised him that he would not be getting any additional hours, Mr Singh refused to change his roster. 59 Mr Singh denied that Mr Cochran had suggested that the new roster would result in different task allocations with fewer weekly deep cleaning tasks.60
[46] On 16 June 2017, Mr Singh was contacted by Mr Cochran who advised him that he was to attend a meeting on 18 June 2017 to discuss his performance and was asked to bring a support person. Mr Singh submitted that he asked for Ms Saunders-Mills to attend, however he was advised that she was unavailable and that instead the store manager would attend. 61
[47] Mr Singh submitted that the meeting was due to commence at 5pm however Mr Cochran was running late and accordingly the meeting did not commence until 6.40pm. Mr Steuart was in attendance at the meeting rather than the store manager. 62
[48] Mr Singh submitted that at this meeting the same concerns were raised as at the previous meeting. He was again shown photos of each of the tasks he had failed to complete to the required Coles standards. He responded to Mr Cochran advising him that he had not been provided with any training and that he did not have the time to complete all of the tasks. 63
[49] Mr Singh was again shown the photos from the 18 June 2017 meeting during the hearing. There was some conjecture over whether or not Mr Singh had been provided with a copy of those photos during the performance meeting however it became clear during his evidence that he had seen most of the photos prior to being dismissed. The photos were largely agreed to have been taken of work he had performed. 64 Mr Singh contested some of the photos stating that they were not his duties. Mr Singh gave evidence on the alleged performance concerns, being his failure to clean the floor in the fresh produce area, the chicken oven, delicatessen wall and delicatessen sink.
[50] Mr Singh’s evidence was that some of the issues raised did not occur on the dates proposed. For example, his evidence was that the photos from the night he didn’t clean the prover belonged to the night of 14 June 2017 because he recalls having a discussion with the duty manager “Daniel” who had raised a concern with Mr Singh about rubbish he had not cleaned up. Mr Singh says on that night he did leave the rubbish there and didn’t do the deep cleaning of the bakery because he didn’t have time. 65
[51] Mr Singh also gave evidence that he had decided not to clean what he thought was juice on the floor on one evening because it was his job to sweep the floor and not wash it. 66 His reason for not cleaning the top of the chicken oven was that it was not his responsibility. He also said that after he had cleaned the inside of the chicken oven grease would drip down from the side wall panels which he was unable to access.67 Mr Singh submitted that when he discussed these issues at the meeting on 18 June 2017 he told Mr Cochran that they were going over the same kind of issues raised at previous meetings.68
[52] Mr Singh submitted that he attempted to leave the meeting at 8pm because it was past the end of his shift and he was no longer being paid. He advised that Mr Cochran stated that he would be paid, however Mr Singh did not trust him and stated that he had not been paid previously for overtime worked.
[53] Mr Singh advised that he requested to speak to Ms Saunders-Mills, who was eventually contacted by phone. He submitted that she advised him that she was unable to help him as it was the Area Manager’s decision and that she apologised. 69 Mr Singh submitted that Mr Cochran asked what Mr Singh would do if he were in Mr Cochran’s position, to which Mr Singh responded that he would retrain his team member, show him how to do the tasks in the allocated time period and, if this was not able to be done, provide him with extra support. His evidence was that Mr Cochran responded that he would not do this and Mr Singh was subsequently dismissed.70
Other issues
[54] In December of 2016, Mr Singh submitted that he requested to take two weeks’ parental leave from his then Area Manager Mr Harbas. He submitted that whilst Mr Harbas had advised that this leave was approved, after one week he received a call from Mr Adam Cochran who had taken over as Area Manager advising that his leave had only been approved for one week and that he had failed to attend work. 71 Mr Singh said that he advised Mr Cochran that his leave had been approved for two weeks however Mr Cochran paid him annual leave for the second week. He submitted that Mr Cochran would not correct this despite his requests.72
[55] Mr Singh also submitted that Mr Cochran would yell at him because of his race. 73 During the hearing Mr Singh provided no evidence or specific examples in support this vague submission.
Evidence of Coles
Evidence of Mr Cochran
[56] Mr Cochran is employed as Area Manager – Coles Services for area V301, which includes the store in which Mr Singh worked. 74 In October 2016 Mr Cochran performed relief work as an Area Manager at the Shepparton Central store before commencing in the position of Area Manager for Coles Services in January 2017.75
[57] Mr Cochran submitted that the Standards provide a comprehensive list of all the tasks that team members are expected to complete on a weekly and daily basis and there have not been any major changes to the Standards since they were first introduced in June 2014. 76 During their initial induction he submitted that team members go through the Standards and afterwards receive approximately 12 hours of on the job training to reinforce the Standards. Mr Cochran says Coles Services employees receive training in all of the tasks in the Standards.77 Further, a copy of the Standards is kept on site at the Shepparton Central store in the Coles Services room in the cupboard for team members to refer to along with a list of daily and weekly tasks that are to be done each shift.78
[58] Mr Cochran’s evidence was that over the busy holiday periods Coles employs additional casual employees to help out. He recalled an employee by the name of Myra who had been engaged to assist with the trolley collections. Mr Singh in cross-examination raised that there had been two other employees assisting with his cleaning tasks however Mr Cochran did not recognise the names Mr Singh referred to and said that they had not been engaged during the period he has been managing the store. 79
[59] Mr Cochran had previously worked as a Coles Services team member therefore he was of the view he has a thorough understanding of the type of work that needs to be completed by team members. 80
[60] His evidence was that deep cleaning has always been a part of the weekly duties of Coles Services team members and that, when he was a team member, he was able to comfortably finish all of the tasks required of him during the evening shift. 81 Further, he submitted that the current team members at the Shepparton Central store are able to complete all of their usual daily and weekly tasks during the allocated time period.82 He gave evidence that the same tasks are being completed by another employee over less hours than those allocated to Mr Singh. He also says that he is responsible for 16 stores and he has employees at other stores completing the same tasks as Mr Singh within the same rostered hours. Mr Cochran says the roster and tasks assigned to Mr Singh is replicated across other stores without issue.83
[61] Mr Cochran submitted that he first met Mr Singh in October 2016 whilst completing relief work in the Shepparton Central store, however became more familiar with Mr Singh when he was appointed as the Area Manager in January 2017. 84 Mr Cochran submitted that he noticed that Mr Singh was not undertaking his duties to the same standard as the other team members and was often not completing all of his allocated tasks. Specifically, he was not performing deep cleaning tasks, which were a requirement of the position.85
[62] Mr Cochran had a number of informal discussions with Mr Singh about the standard of his cleaning, and would speak to him about once per fortnight about his work and provide strategies to allow Mr Singh to manage his time better. 86 Mr Cochran’s evidence was that these discussions would take place whilst he was at the store, and sometimes whilst he was there with his wife doing the shopping, however if he was notified of or noticed more serious deficiencies he would call Mr Singh to discuss the issue.87
[63] Mr Cochran submitted that Mr Singh was always defensive when discussing these issues and would state that he did not have enough time or was doing his best. Mr Cochran advised he asked Ms Crosby, Team Leader, to keep notes and take photos of the concerns she had so that they could be addressed as soon as possible. 88
[64] After a number of informal discussions, Mr Cochran submitted that he did not notice an improvement in Mr Singh’s standards or efficiency and as such arranged to have a formal performance discussion with him on 21 April 2017. 89
[65] In the interim, Mr Cochran arranged for Ms Christine O’Halloran, team member from the Kialla store, to provide Mr Singh with further training. He submitted that he chose Ms O’Halloran as she was an experienced team member who worked to a good standard. 90
[66] He submitted that Ms O’Halloran spent three hours with Mr Singh, training him on how to perform deep clean tasks in the bakery department. He submitted that Ms O’Halloran did not physically do the cleaning with Mr Singh but rather provided a demonstration as to how to do the work and coached him as he performed it. Whilst Mr Singh was unable to complete the work due to some missing equipment, Mr Cochran submitted he was advised that if not for that Mr Singh would have been able to complete all the cleaning allocated to him during the shift. 91
[67] On 21 April 2017, the performance discussion took place with Mr Singh, with Ms Crosby attending as a witness. Mr Cochran submitted that he invited Mr Singh to bring a support person however he did not do so. 92
[68] Mr Cochran advised that he set out the performance issues he had discussed informally with Mr Singh over the past few months as well as the additional training Mr Singh had been provided to address those issues. He provided Mr Singh with photos taken by Ms Crosby demonstrating these concerns on a number of dates, including 18 February 2017, 31 March 2017, 13 April 2017, 15 April 2017 and 16 April 2017. 93
[69] Mr Cochran submitted that Mr Singh acknowledged some of the issues with his performance, but denied others or did not appreciate the impact of his poor performance on other team members. 94
[70] Mr Singh was issued with a first written warning and an action plan was developed to assist Mr Singh. This action plan included Mr Singh re-reading the code of conduct and areas of responsibility of the role, being retrained in cleaning departments, being provided with a copy of the Standards, writing in the communication book about daily tasks completed, sending photos of completed work to Mr Cochran and seeing the duty manager prior to leaving at the end of his shifts to have them sign off on the work he had completed. 95
[71] Mr Cochran, Ms Crosby and Mr Singh all signed the discussion record of this meeting. 96
[72] On 26 April 2017, Mr Cochran and Ms Crosby attended Mr Singh’s evening shift and trained him in deep cleaning of the bakery from 6pm to 9pm. He submitted that he was not physically undertaking the work but was overseeing Mr Singh and providing guidance, pointers and demonstration where necessary. 97 He submitted that he and Ms Crosby would provide assistance for a few minutes for demonstration purposes then ask Mr Singh to complete the task.98
[73] Mr Cochran submitted that at one stage he left the bakery to get the scrubber and overheard Mr Singh telling Ms Crosby that he did not see the point in her being there. He submitted that he suggested Ms Crosby leave the training session and she did. 99
[74] Mr Cochran submitted that in this training session Mr Singh was slow however performed his duties to the minimum standard required and demonstrated that he could achieve the tasks expected of him if he put his mind to it. However he did not feel that Mr Singh made much progress during the session because of his attitude, and he did not feel that Mr Singh would maintain the standard of work without constant supervision. 100
[75] On 4 May 2017, Mr Cochran was advised by Ms Crosby that Mr Singh had again not completed some of his tasks to an acceptable standard or at all during his shift. He advised that he contacted Mr Singh by phone to advise him of these concerns. 101
[76] Mr Singh attended a performance meeting on 19 May 2017, as scheduled in the meeting of 21 April 2017. Mr Cochran asked Ms Saunders-Mills to attend the meeting as a company witness as he felt his previous discussions and training sessions with Mr Singh had not been as fruitful and effective as he had hoped. Mr Singh was offered and chose not to bring a support person to the meeting. 102
[77] At this meeting Mr Cochran highlighted the previous performance discussions they had had and went through some of his more recent concerns, which included instances of Mr Singh failing to complete all of his allocated duties on 21 April 2017, 28 April 2017, 4 May 2017 and 18 May 2017. He submits that he also showed Mr Singh photos during this session. 103
[78] Mr Cochran submitted that Mr Singh agreed that he had failed to complete a number of tasks but also argued that he did not have enough time on other occasions. Mr Cochran also advised that he informed Mr Singh that he was failing to meet the safe work practices when he failed to carry out all of his allocated duties, such as failing to clean the chicken trollies which transported raw chicken and could potentially contaminate the chicken. 104 He submitted Mr Singh had been trained in the safe work practices earlier that year.105
[79] Mr Cochran issued Mr Singh with a final written warning and a further action plan with required Mr Singh to re-read the code of conduct, re-read the areas of responsibility of his role, write in the communication book about daily tasks completed, send photos to himself and Ms Crosby of completed work, having the duty manager sign off on work completed during his shifts. The action plan also included exploring proving further one on one support to Mr Singh. 106
[80] Mr Cochran submitted that Mr Singh was advised that failing to meet the requirements of his role and the safe work practices would not be tolerated and that any further breaches may result in disciplinary action up to and including termination of his employment. 107
[81] Mr Cochran advised that Mr Singh asked Ms Saunders-Mills who he should report concerns he had with his Area Manager to and that she advised him he could speak to her, however he was not aware whether a discussion actually occurred. 108 Mr Cochran denied that Mr Singh ever mentioned that he was being bullied, harassed, treated as a slave or victimised at any stage in the meeting. He submitted that had Mr Singh done so he would have discussed it with their human resources department immediately.109
[82] The discussion record of this meeting was signed by Mr Cochran, Ms Saunders-Mills and Mr Singh. 110
[83] Mr Cochran says he subsequently arranged for Mr Steuart to attend the Shepparton Central store and observe Mr Singh completing his tasks, providing guidance if required. Mr Cochran says Mr Singh requested for someone to come and watch him to see if he could complete the tasks to standard. 111 This took place on 31 May 2017, and Mr Cochran submitted that Mr Steuart advised him that Mr Singh had not wasted any time during the shift and the work was completed to an adequate standard.112
[84] On 14 June 2017, Mr Cochran called a team meeting to discuss a roster re-set. His evidence was that because Mr Singh was complaining that other team members weren’t completing their tasks it wasn’t fair that Mr Singh be judged on those tasks not being completed, so Mr Cochran offered Mr Singh a new roster to resolve the issue. 113 He asked Mr Singh if he would be interested in doing the same hours per week over five nights with a different task allocation or working five hours a day, Monday to Friday during the day shift. He submitted that Mr Singh rejected these offers.114
[85] Mr Cochran submitted that he organised a further meeting with Mr Singh on 18 June 2017 to again discuss his performance and invited him to bring a support person. He submitted that Mr Singh queried if Ms Saunders-Mills would be attending and was advised that she may be unavailable. 115
[86] Mr Cochran says he had formed the view that Mr Singh was still not completing his work to the expected standard, based off his own observations by checking the work after Mr Singh had completed it, Ms Crosby’s photos and reports from the store manager. 116
[87] Mr Cochran advised that he was running late for this meeting and, in his haste preparing notes for the meeting, mistakenly stated that the performance concerns relating to Mr Singh’s shift on 9 June 2017 had occurred on 10 June 2017. He submitted that during this meeting, when Mr Singh pointed out that he had not worked on 10 June, he immediately corrected his mistake and confirmed that Mr Singh understood the conduct occurred on 9 June. He noted the error on the discussion record form. 117
[88] Mr Singh queried where Ms Saunders-Mills was and Mr Cochran advised that he explained that she was unable to be present, but would be available on the phone shortly. 118
[89] Mr Cochran advised he confirmed with Mr Singh that he had been provided with a first disciplinary warning on 21 April 2017 and a final disciplinary warning on 19 May 2017. He then went through the specific performance issues identified on 9 and 15 June 2017, along with photographs, and gave Mr Singh an opportunity to respond to each issue. Mr Cochran submitted that Mr Singh did not argue with the photos however did not take any responsibility for his performance either. He advised that Mr Singh stated that he had photos too, however would not provide them. 119
[90] Mr Cochran submitted that he advised Mr Singh that he was considering terminating his employment and queried what Mr Singh would do if he were in his position. Mr Cochran advised that Mr Singh stated that he would have sympathy and empathy as Mr Singh had a baby, and did not make any comments to suggest that he should be retrained. 120
[91] At that point, Mr Cochran advised that Mr Singh requested to speak to Ms Saunders-Mills however she was still unavailable. Mr Cochran submitted that Mr Singh began to walk out of the meeting room and said that he had to leave as it was 8pm and he was not being paid. Mr Cochran advised Mr Singh that he would pay him for the additional time he was at work however he still left the room. Mr Cochran did not recall Mr Singh saying anything to the effect that he had not been paid previously. 121
[92] Mr Cochran was then able to get Ms Saunders-Mills on the phone and allowed Mr Singh to speak with her. He submitted that Mr Singh was raising issues with his paternity leave and that Ms Saunders-Mills stated that she had tried to make contact with Mr Singh regarding this. After approximately 20 minutes, Mr Cochran advised that Ms Saunders-Mills told him that he needed to make a decision and wrap up the meeting. 122
[93] Mr Cochran advised that he called a break in the meeting and considered that, given Mr Singh’s ongoing poor performance despite further training, coaching and warnings, it was appropriate to terminate his employment. Mr Cochran submitted that he took into account Mr Singh’s young child, however did not consider that it should excuse Mr Singh from complying with reasonable performance standards. 123
[94] Mr Cochran advised that he called Mr Singh back into the meeting and terminated his employment. Mr Singh left the meeting without signing a copy of the discussion record before Mr Cochran could provide him with an amended copy with the correct dates. 124 Mr Singh was paid two weeks’ in lieu of notice and a formal termination letter was sent on 19 June 2017.125
[95] Mr Cochran submitted that since Mr Singh finished employment at the Shepparton Central store there have been no issues with team members completing their allocated tasks during their shifts. Further, he says that the evening shifts from Wednesday to Sunday have been reduced from five hours to four hours and that team members are still able to comfortably complete their tasks in this time. 126 127
[96] In relation to the submission made by Mr Singh regarding his parental leave, Mr Cochran submitted that he had been advised by Mr Harbas that Mr Singh had taken one week of parental leave as per the Coles parental leave policy. 128 He submitted that Mr Singh did not apply for any unpaid paternity leave and had been emailed a copy of the roster for the week he was expected back at work.129
[97] Mr Cochran submitted that Mr Singh did not arrive for his shift and, when contacted, advised that he believed he was entitled to two weeks of paid parental leave. Mr Cochran explained that he was only entitled to one however paid out the additional week as annual leave. 130
[98] In relation to the submission made by Mr Singh that he had refused to pay him overtime for time worked on 26 April 2017, Mr Cochran submitted that he had intended to pay Mr Singh overtime however forgot to inform payroll. 131 He submitted that Mr Singh did not raise with him that he had not been paid the overtime.132
[99] Mr Cochran denied making comments to Mr Singh to the effect that the work was not approved overtime or that a ghost would pay him for the work. 133 Mr Cochran advised that he organised for payment to be made to Mr Singh for these hours after the issue was brought to his attention in Mr Singh’s materials on 28 September 2017.134
Evidence of Mr Harbas
[100] Mr Harbas is the Area Manager – Coles Services for the area known as V306. 135 In January of 2016, Mr Harbas was appointed as the Area Manager for V301, which includes the store in which Mr Singh worked.136 Prior to being appointed to an Area Manager position Mr Harbas worked as a Coles Services team member and sometimes worked the evening shift, albeit not at the Shepparton store. He submitted that during this shift he performed all of the tasks Mr Singh was directed to perform, with the exception of collecting the trolleys, in a shorter shift with ease.137
[101] Mr Harbas submitted that he first met Mr Singh when he commenced as Area Manager and noticed early on that Mr Singh would not complete tasks to the standard expected and sometimes struggled to get everything done during his shift. He submitted that other team members completed all of their allocated tasks during their shifts with ease. Mr Harbas also submitted that Mr Singh would not complete certain tasks unless specifically asked to do so. 138
[102] Mr Harbas’ evidence was that during the period that he was the Area Manager for Shepparton there was a one hour cross over on a Friday between the employee working the 12pm to 7pm shift and Mr Singh’s shift which commenced at 6pm and finished at 11pm. He submitted that the employee would sometimes assist with trolley collection and at other times in the bakery. This was part of the roster arrangement that Mr Harbas had set up at the time. 139 Mr Harbas says that he also ensured that during the extreme weather conditions, such as the heat, he would allocate an extra three hour shift to assist with trolley collection so that employees could be rotated.140
[103] Mr Harbas submitted that he had performance discussions with Mr Singh on 20 January 2016 regarding Mr Singh taking extended breaks, pushing more than 10 trolleys without a safety strap and not meeting the cleaning standards required of his role. He submitted that Mr Singh stated he had made a mistake, apologised and advised that it would not happen again. Mr Harbas issued Mr Singh with a first and final disciplinary warning regarding this behaviour. 141
[104] Mr Harbas noticed a marked improvement in Mr Singh’s performance immediately following this discussion, however submitted that it again declined in around November of 2016. 142 At this time, Mr Harbas submitted that he approached Mr Singh informally to query why he was not completing the basic tasks he was allocated along with the deep cleans. Mr Harbas submitted that Mr Singh apologised and said he would try harder, and as he was comfortable with that response Mr Harbas did not take the matter further.143
[105] Mr Harbas left the position of Area Manager for V301 in January of 2017, at which point Mr Cochran took over. 144
[106] In relation to the allegations made by Mr Singh regarding his parental leave, Mr Harbas submitted that the Coles parental leave policy only provides for one week of paid leave to secondary carers. He submitted that he advised Mr Singh of this and that he could apply for further unpaid parental leave if he wished. Mr Harbas submitted that it was his understanding that Mr Singh only wanted secondary carer parental leave for the period that it was paid leave. 145
Evidence of Mr Steuart
[107] Mr Steuart is the Team Leader for Coles Services at the Kialla store. As Team Leader, he submitted that his day to day duties involve overseeing the work of his team members, making sure trolleys are collected and ensuring the store is kept clean. 146
[108] Mr Steuart submitted that team members are expected to complete tasks around the supermarket in accordance with the Standards, a copy of which is kept in each store and is easily accessible. He submitted that team members know where the book is kept and are trained in the Standards when they commence employment in the Coles Services team. 147
[109] Mr Steuart submitted that the Kialla store and Shepparton stores are similar in size however the Kialla store, having approximately 200 additional trolleys, presents a larger workload for their team. He gave evidence that the team members at the Kialla store always manage to complete their daily tasks and the once a week deep cleaning task unless something unusual occurs to prevent this. 148
[110] He also submitted that prior to becoming team leader he worked some evening shifts at the Shepparton store and, within a few days, was able to complete all of the tasks allocated to him without a problem. 149 Mr Steuart also says that the shift structure at the Kialla store is similar to the Shepparton store and therefore he has an understanding of the role Mr Singh was to perform. He further submitted that staff members at the Kialla store are generally able to get all their duties done.150
[111] Mr Steuart gave evidence that he had briefly overseen the Shepparton store whilst Ms Crosby was on leave, and had noticed that Mr Singh was not mopping underneath his allocated aisles. He submitted Mr Singh did not take his feedback well which resulted in quite a lengthy discussion. 151
[112] Mr Steuart submitted that Mr Cochran asked him to observe Mr Singh performing his evening shift on 31 May 2017 as there had been concerns with Mr Singh’s performance. 152
[113] Mr Steuart gave evidence that at the commencement of the shift he advised Mr Singh that he was there to observe but that he was welcome to ask any questions he had regarding his tasks. 153 Mr Steuart gave evidence that he did not assist Mr Singh with his tasks apart from pulling out a plug and debris that was blocking a sink,154which took him roughly two to three minutes.155 Mr Steuart’s evidence was that Mr Singh managed to get his tasks done to the minimum standards other than the trolley wrap up and did not ask him any questions throughout the shift.156
[114] Mr Steuart denied that he had told Mr Singh that he had done a fabulous job and that he himself would not have been able to complete all of the tasks. His evidence was that, whilst he could not specifically recall what he had said, he would not have made those comments as he and his team at Kialla were able to complete all of the same tasks to a much higher standard whilst Mr Singh had done the bare minimum. 157
[115] Mr Steuart was also present at Mr Singh’s termination meeting. He gave evidence that during the meeting Mr Cochran went through his specific concerns with Mr Singh’s performance and provided Mr Singh with photos for his consideration. 158 His evidence was that Mr Singh’s response to each of these concerns was that he did not have enough time to complete his tasks and required more training.159
[116] Mr Steuart’s evidence was that Mr Cochran advised Mr Singh that he was considering terminating his employment, to which Mr Singh requested to speak to Ms Saunders-Mills. After the two had spoken, and after a short break was taken, Mr Steuart submitted that Mr Cochran terminated Mr Singh’s employment. His evidence was that Mr Singh did not say anything in response. 160
Evidence of Ms Crosby
[117] Ms Crosby is the Team Leader of the Coles Services team at the Shepparton Central Store. 161 She submitted that in her role as team leader she is the link between management and team members and is responsible for assisting with rosters and allocating tasks.162
[118] She gave evidence that Coles Services team members are responsible for the day to day cleaning of the stores as well as trolley collection and recovery, and that the responsibilities or team members are clearly set out in the Coles Services Standards Guide. 163
[119] Ms Crosby gave evidence that team members working the evening shift manage to complete the daily and weekly tasks allocated to them for each shift without having to work overtime unless there are unusual circumstances. Mr Singh, however, was unable to complete all his allocated tasks to the required standard on a consistent basis. 164 Ms Crosby submitted that Mr Singh was aware of the tasks that he needed to complete based on a task list that was put up in the store for each shift. She submitted that she noticed that Mr Singh was not undertaking the weekly deep cleans as part of his normal duties.165
[120] Ms Crosby submitted that Mr Cochran commenced as Area Manager in January 2017 and was much more proactive about ensuring all the tasks were done. She submits Mr Cochran asked her to be more proactive in her management of Mr Singh and other team members and asked her to commence taking photos of the areas Mr Singh cleaned at the end of his shifts if they weren’t up to standard. 166
[121] Ms Crosby submitted that on 21 April 2017 she was asked by Mr Cochran to attend a meeting with him and Mr Singh, the purpose of which was to discuss Mr Singh’s performance. 167 Ms Crosby submitted that at this meeting, Mr Cochran went through Mr Singh’s recent performance issues and referred to previous discussions they had had about Mr Singh’s standard of work. She submitted Mr Singh was shown numerous photos that she had taken at the end of Mr Singh’s shifts.168
[122] Ms Crosby submitted that whilst Mr Singh accepted that some of the tasks had not been completed, he also disputed others and advised that he had his own photos. She submitted Mr Cochran asked Mr Singh to show them to him however Mr Singh refused. She also submitted that Mr Singh provided explanations in relation to some of the uncompleted tasks, usually being that he didn’t have enough time to complete them. 169
[123] She submitted that Mr Singh was given a first written warning and a number of action points were put together to assist him going forward, including that both herself and Mr Cochran would retrain Mr Singh in cleaning the departments in accordance with the Standards. 170
[124] Ms Crosby submitted that this training subsequently took place on 26 April 2017 from 6pm to 9pm. She submitted that she attended primarily as an observer with Mr Cochran supervising the training and providing Mr Singh with coaching and demonstrations as required. 171 She gave evidence that Mr Singh made comments during this training to both herself and Mr Cochran that there was no point in her being there, and that there was no point in Ms Crosby demonstrating tasks if he could not complete them in the time frame. She subsequently left the training early.
[125] After this training session, Ms Crosby submitted that she continued to notice mistakes Mr Singh would make and tasks he failed to complete, to which Mr Singh would respond that he did not have time to complete everything. Ms Crosby submitted that everyone else was able to complete their tasks within the time frame. 172
[126] She submitted that she continued to report her concerns to Mr Cochran regularly, along with continuing to provide him with photos, and Mr Cochran confirmed he would manage the issues with Mr Singh directly. 173
[127] Ms Crosby commenced employment at the same time as Mr Singh. Ms Crosby’s evidence was that she undertook training in the Standards around the same time as Mr Singh and that she was trained in both the daily and weekly tasks. Ms Crosby advised that everybody received the same training regarding the tasks for each shift, including deep cleaning. 174
[128] Ms Crosby’s oral evidence was that in a cupboard located in the Coles Services room there was a task list for employees to follow, a ‘How To’ guide, a comments book, wall charts with guidelines for trolley collection and the Standards. There was also a list of tasks up on the wall on either side of the cupboard in the services room. Mr Cochran had updated the list with some slight rearrangements, having different tasks completed on different days so that specific days now have specific tasks. 175
[129] In response to Mr Singh’s questions relating to the exchange of duties, Ms Crosby submitted that it was agreed that she would do the mopping underneath the aisles until Mr Singh had recovered from his back injury. Ms Crosby submitted that sometime after his recovery her hours were reduced and she was working the morning recovery, meaning she did not have time to clean the stockroom. Ms Crosby submitted that she was working 5 hours and Mr Singh was working 7 hours so she allocated the additional task of cleaning the stockroom to Mr Singh. She submitted that it was very achievable for Mr Singh to complete these tasks. 176
[130] Mr Crosby also gave evidence that she had been writing in the comments book for Mr Singh to mop the aisles however she “got fed up with the aisles being so disgusting” that she ended up doing the mopping herself. 177
Evidence of Ms Saunders-Mills
[131] Ms Saunders-Mills was the Coles Services Human Resources Business Partner for Victoria from February 2017 to 1 July 2017. 178
[132] Ms Saunders-Mills gave evidence that she first met Mr Singh when she attended a performance meeting with him and Mr Cochran on 19 May 2017. 179 She submitted that Mr Cochran had previously raised concerns regarding Mr Singh’s performance however they had not discussed it in detail until around mid-May.180
[133] Ms Saunders-Mills gave evidence that Mr Cochran requested that she attend this performance meeting as he felt he needed support and someone with a HR background present to ensure the discussion was effective. 181 Ms Saunders-Mills submitted that at this meeting Mr Cochran went through the previous performance discussions with Mr Singh and the specific issues raised, outlined the additional training Mr Singh had been provided and then gave him examples of his recent concerns complete with photo evidence.182
[134] She gave evidence that Mr Singh was defensive, speaking over the top of Mr Cochran and not taking Mr Cochran’s concerns on board. She also gave evidence that Mr Singh agreed with a number of the issues raised by Mr Cochran however argued that he did not have enough time to complete the tasks. 183
[135] She submitted that Mr Singh was issued with a final written warning and that a further action plan was put into place to support Mr Singh in improving his performance. This plan included Mr Singh familiarising himself with his areas of responsibility and Mr Cochran exploring further training or coaching that could be provided to Mr Singh. 184
[136] Ms Saunders-Mills denied that Mr Singh said anything to her regarding bullying and harassment from Mr Cochran at the conclusion of the meeting. 185
[137] Ms Saunders-Mills gave evidence that she was not able to attend Mr Singh’s performance discussion on 18 June 2017 as she was interstate. She submitted that she received a phone call from Mr Cochran during this meeting and spoke to Mr Singh, who complained that he had not received sufficient support or coaching. Ms Saunders-Mills gave evidence that as she was unable to calm Mr Singh down she advised Mr Cochran that he should break the meeting and consider the next steps he wanted to take. 186
Was the dismissal harsh, unjust or unreasonable?
Harsh, Unjust Unreasonable
[138] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd.187 McHugh and Gummow JJ explained 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.”188
[139] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the following criteria:
(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.”
Was there a Valid Reason for the dismissal- s.387(a)
[140] Coles must have a valid reason for the dismissal of Mr Singh, although it need not be the reason given to Mr Singh at the time of the dismissal. 189 The reason for the dismissal should be “sound, defensible and well founded”190 and should not be “capricious, fanciful, spiteful or prejudiced.”191
[141] According to a Full Bench in Robert Etienne v FMG Personnel Services Pty Ltd:
“Section 387(a) requires the Commission to consider whether there is a valid reason related to a person’s conduct or capacity. The distinction between conduct and capacity is not always a clear one. The question of whether an employee has engaged in a performance improvement process, for example, could be described as involving either conduct or capacity, or both. In either case, the Commission must consider whether the relevant reason is valid. If the reason for dismissal is said to have been deficient performance, the Commission must be satisfied that the performance was deficient.”
[142] The consideration prescribed by s.387(a) is whether there was a valid reason, and the Commission must satisfy itself of the validity of the reason and its factual underpinning. The test is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.
[143] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 192 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).193
[144] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.194 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 195
[145] The three main issues in dispute between the parties are whether the deep cleaning tasks formed part of Mr Singh’s role, whether he was provided with sufficient time to complete those tasks, and whether Mr Singh received adequate training prior to his dismissal. I will address each of these matters in turn.
[146] The Standards set out the tasks to be performed by Department team members and the Coles Services team members. The Standards set out each of the areas to be cleaned on either a daily or weekly basis. They also set out the specific tasks that are to be performed and whether those tasks are to be performed on a daily or weekly basis. Essentially, the Standards provide, in detail, the responsibilities of a Coles Services team member.
[147] It is not in dispute that Mr Singh was employed as a Coles Services team member. Regardless of whether or not Mr Singh was assigned weekly tasks at the commencement of his employment, as a Coles Services team member he could be assigned weekly tasks and directed to perform those tasks. Mr Singh did not appear to accept this. Mr Singh was of the view that because he was not assigned any deep cleaning tasks at the commencement of his employment then he did not have to do those tasks. This is simply not the case.
[148] Mr Singh may not have been assigned weekly tasks at the commencement of his employment however Mr Harbas had directed Mr Singh to perform weekly tasks whilst he was his manager, as had Mr Cochran, and I am satisfied that they both had the authority to do so as those tasks clearly formed part of the role Mr Singh was engaged to perform.
[149] As to whether Mr Singh had a reasonable amount of time in which to perform these tasks, I prefer the evidence of Mr Steuart. Mr Steuart presented as a reliable witness and gave evidence that the role Mr Singh was performing was similar to Coles Services team members at the Kialla store and that those team members have no difficulty in performing those tasks within the allotted time.
[150] Mr Steuart’s evidence was supported by Mr Cochran who submitted that employees at the other stores he was responsible for have the same tasks to complete on the same or similar roster as Mr Singh, and that the employee hired to replace Mr Singh has been able to complete those tasks in less rostered time than Mr Singh was allocated. Therefore I am satisfied that it was reasonable to expect Mr Singh to complete his allocated tasks in the allotted time.
[151] I accept the evidence of Mr Cochran and Mr Harbas that during seasonal busy periods, such as the Christmas holidays, Coles engage additional resources to assist with the trolley wrap ups and sometimes the cleaning. I accept that Mr Singh may have received some form of assistance over the busy holiday periods when there was greater demand for trolley collection and the store was likely to have had increased traffic requiring more cleaning. Whilst Mr Singh may have received assistance during these periods I am satisfied that this was not an ongoing arrangement.
[152] I do not accept Mr Singh’s submission that he was required to complete over 12 hours’ worth of work within his 5 hour shift. Mr Singh’s submission is based on the reasoning that, because Mr Cochran and Ms Crosby assisted him with deep cleaning the bakery for three hours on one evening, it should be accepted that it would therefore take one person 9 hours to complete this task. I do not accept Mr Singh’s interpretation of this training session. Mr Cochran and Ms Crosby were providing Mr Singh with coaching and training on that occasion and it stands to reason that when one is being coached or trained the actual performing of the duties would take longer.
[153] Although Mr Singh alleges that his problems started from the time of Mr Cochran’s commencement it is clear from the evidence that Mr Singh had not been completing all of his tasks on time or to a standard acceptable to Coles long before Mr Cochran had commenced. Mr Singh did not deny Mr Harbas had issued him with a final warning for his failure to do so. Mr Singh’s own evidence was that Ms Crosby had raised her concerns about his performance for over a year and a half, which he described as “bullying him and pointing out the silly things” he hadn’t completed. Mr Singh was unable to give any examples of Ms Crosby’s conduct that would constitute bullying. Rather, it appeared Mr Singh was reluctant to receive feedback about his performance from Ms Crosby at any stage throughout his employment.
[154] Mr Singh’s attitude towards feedback about his performance was also reflected in his performance review discussions in which he is quoted as saying “what is the big deal” and that it was “not [his] problem”. Mr Singh did not deny that these had been his responses. The evidence supports a finding that Mr Cochran had simply been more proactive in his management of Mr Singh’s continued underperformance than Mr Singh’s previous manager.
[155] It may be the case that Mr Singh was unable to complete all of his tasks, however I am satisfied it was as a consequence of his reluctance to do so and not as a result of being allocated insufficient time. Even if Mr Singh was not allocated sufficient time to complete all of the tasks, Mr Singh was still not performing the tasks he was completing to the standard required by Coles. Mr Singh had failed to perform a number of his duties to standard on a number of occasions and had conceded to this point on numerous occasions, such as during his first performance discussion with Mr Harbas, his first performance discussion with Mr Cochran and during the hearing.
[156] Whilst Mr Singh had clearly not accepted that he could be directed to perform weekly tasks, the majority of the performance issues raised were his failure to perform his daily tasks, simple things like cleaning the bins, mopping up water and leaving equipment out that should have been put away, most of which Mr Singh did not deny.
[157] The final issue for me to consider is whether Mr Singh was provided with adequate training in order to effectively perform his role. Ms Crosby and Mr Singh commenced their employment at the same time. Ms Crosby gave evidence that she had been trained in what was required of her from the Coles Standards and that the same training was delivered to each group of employees who were to commence at the same time as her. Mr Cochran’s evidence was that all new employees receive training in both daily and weekly tasks as both tasks form part of their position duties.
[158] It stands to reason that it is more likely than not that Mr Singh would have been trained in each of the processes contained in the Standards. There was no evidence led by either party that Mr Singh had failed to attend any of the training. I accept that it is highly unlikely that Coles would conduct different training for each employee who was engaged at the same time to do the same role at the same store.
[159] However, regardless of whether or not Mr Singh was trained at the time of his commencement, by his own evidence he was provided with the Standards, he was refreshed in the content of the Standards, he received training from Ms O’Halloran, Mr Cochran, Ms Crosby and observed by Mr Steuart. Mr Singh was provided with feedback at each of his performance meetings as to the standard of performance required of him and provided with photographic examples of what was not acceptable.
[160] Mr Singh was consumed by the fact that the 19 May 2017 performance meeting records that Mr Singh was to receive “coaching/support 1:1 at a date to be confirmed” and it was his perception that the “coaching/support 1:1” did not take place. I am satisfied that this coaching did occur in the form of Mr Steuart’s visit and observation of Mr Singh on 21 May 2017. Mr Steuart’s evidence was that he observed Mr Singh complete all of his tasks except for the trolley round up and that he was available to respond to any questions Mr Singh may have had during that shift. Mr Singh’s evidence was that Mr Steuart had told him he was only there to observe and did not provide any assistance, however Mr Singh subsequently described the assistance Mr Steuart had provided him in cleaning out the blocked sink.
[161] I am satisfied that Mr Singh had been given sufficient training and coaching by Coles during the management of his performance. Furthermore, up until his meeting on 18 June 2017 Mr Singh had received sufficient feedback about his performance and it was evident by this time that he had not taken this feedback on board. By Mr Singh’s own evidence the same issues were reoccurring at each stage of the performance reviews without any improvement. It was therefore acceptable for Coles to make the decision that it would not invest in any further training and move to the next stage of the performance management process being the termination of Mr Singh employment.
[162] I have considered all of the evidence before me and taking into account all of the matters, I am satisfied that Coles had a valid reason for dismissing Mr Singh based on his continued poor performance which he failed to remedy even after a number of coaching and training sessions. I am satisfied on the evidence before me that Mr Singh had failed to meet the Coles Standards and that his performance was deficient. Therefore the reasons for his dismissal were sound and defensible.
Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)
[163] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 196, and in explicit197 and plain and clear terms.198 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[164] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 199
[165] It was not in dispute that Mr Singh was notified of Coles’ reasons for dismissing him at the meeting on 18 June 2017 at which time Mr Cochran outlined his ongoing concerns with Mr Singh’s performance. It is not in contention that Mr Singh was informed at each of the performance meetings leading up to the 18 June 2017 meeting that the possible consequences of a failure to improve his performance could be dismissal.
[166] I am satisfied that Mr Singh was given a reasonable opportunity to respond to those reasons prior to the decision to terminate his employment. He was given numerous opportunities to improve his performance after specific issues were raised with him during each of the performance management meetings and failed to do so.
Unreasonable Refusal of a Support Person – s.387(d)
[167] In 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.200 With respect to this consideration, the Explanatory Memorandum states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”201
[168] It is not in contention that Mr Singh was offered the opportunity to have a support person attend with him at all meetings relating to his dismissal and performance management, however it was not taken up on any occasion. 202
[169] Mr Singh submits that he requested that Ms Saunders-Mills be in attendance at the final meeting. He submits that because she didn’t attend he was denied procedural fairness.
[170] I do not consider the absence of Ms Saunders-Mills from the meeting to be a denial of procedural fairness and I am satisfied that Mr Singh was not denied the opportunity to have a support person present. Ms Saunders-Mills was not asked to be present as a support person, rather I consider that Mr Singh felt Ms Saunders-Mills was sympathetic to his cause and preferred that she be present. In any case it would not have been appropriate for her to act as a support person to Mr Singh during a disciplinary meeting as it would likely have resulted in a conflict of her duties. It was at all times open to Mr Singh to nominate an appropriate support person.
Warnings regarding Unsatisfactory Performance – s.387(e)
[171] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.203 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job rather than their conduct.204 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try to improve their performance.205
[172] The history of Mr Singh’s performance management goes back to a period during 2016 where he attended formal performance discussions with his previous manager. It is not in dispute Mr Singh had received disciplinary action as an outcome of those performance discussions. Further, there were very few factual disputes as to how the performance meetings conducted by Mr Cochran occurred.
[173] I am satisfied that Mr Singh received informal counselling and coaching about his performance throughout his employment. I am also satisfied that Mr Singh had received formal warnings regarding his unsatisfactory performance and failure to complete his duties on 20 January 2016, 21 April 2017 and 19 May 2017.
[174] I am satisfied that Mr Singh was notified, after several discussions about his performance, that he was required to attend a meeting on 21 April 2017 to discuss his failure to adequately perform a number of tasks. 206 Mr Cochran arranged for Mr Singh to receive training from Ms Christine O’Halloran from the Kialla Store on the 19 April 2017. I am satisfied that training took place and that Mr Singh received training on how to perform the deep cleaning tasks207 in accordance with the Standards.208
[175] A number of action items were set out in the action plan for Mr Singh to complete. Mr Singh was provided with a copy of the Standards and was presented with photos of each of the tasks he had failed to adequately complete. Mr Singh was provided with the opportunity to respond to each of the concerns raised by Mr Cochran and those responses were recorded in the discussion record. Mr Singh was also informed of the possible consequences should he continue to fail to perform to the expected level set out in the Standards.
[176] It was not in dispute that during that meeting he agreed to and did read the “What we expect from our team member’s” section of the Code and was refreshed on the Standards. Regardless of Mr Singh being familiar with the content of the Standards he received further training throughout the process of managing his performance and was still failing to meet the standards required.
[177] I am satisfied that Coles undertook the same process at the meeting held on 19 May 2017. Mr Singh was again provided with an opportunity to have a support person, he was notified of all the concerns Coles had with his performance and provided with photographic examples. An action plan was put in place and Mr Singh was issued with a final disciplinary warning.
[178] Mr Singh disputes he was presented with the photo’s outlining Coles concerns at the performance meeting on the 18 June 2017. Mr Singh’s evidence on this matter was confusing and inconsistent. Mr Steuart and Mr Cochran both gave evidence that Mr Singh was shown the photos on Mr Cochran’s laptop. At one stage during the hearing Mr Singh denied ever having been shown any photos at any of the meetings, however later when he cross-examined Ms Saunders-Mills he asked her to recall some of the photos he had been shown. It became clear that Mr Singh’s evidence on this matter was inconsistent and he had provided responses that suited him at the time. Therefore I prefer the evidence of Mr Steuart and Mr Cochran and I am satisfied that it was more likely that Mr Singh had been shown photos of the areas of concern at the meeting on 18 June 2017.
[179] Even if this was not the case, the evidence of the parties was that Mr Singh was provided with the details of the performance concerns and photos at the meetings of 21 April 2017 and 19 May 2017 and was given an opportunity to respond to each of those concerns.
[180] Mr Singh submitted that he should have been provided with warnings at his final meeting on 18 June 2017 and instead of being dismissed because he should have received further coaching as outlined in the performance record dated 19 May 2017. 209
[181] As previously stated I am satisfied that Mr Singh had been given sufficient training and coaching by Coles during the management of his performance. I am also satisfied that Mr Singh received support and a one on one session with Mr Steuart after his 19 May 2017 performance review. Coles had provided sufficient feedback to Mr Singh about his performance and it was evident by 18 June 2017 that Mr Singh had not taken this feedback on board.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)
[182] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.210 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.211
[183] Mr Singh submitted that the procedures followed by the Respondent were unreasonable. He submitted that human resources management ‘did not stand with the truth’. 212
[184] The Respondent submitted that they are not a small business and do not lack human resources expertise. 213
[185] There was no absence of a dedicated human resource function. Coles is a large employer and there is no evidence that the size of the employer affected the procedures adopted in effecting the dismissal. Mr Singh did not elaborate on his submission that the human resources management did not stand with the truth. Mr Singh had initially been of the view that Mr Cochran’s involvement of human resources intended to threaten him, however was subsequently aggrieved by the fact that Ms Saunders-Mills was unable to attend the meeting of 18 June 2017. Neither of these issues demonstrates any failure by Coles to adequately managing Mr Singh’s dismissal.
Other Relevant Matters – s.387(h)
[186] In relation to Mr Singh’s claims regarding his parental leave, I am satisfied that the Coles policy provides for one week of secondary carers leave for permanent full-time or part-time employees. There seems to have been some confusion as Mr Singh believed he was entitled to two weeks of leave. Given this confusion, Mr Cochran did not deny Mr Singh the additional week of leave and instead provided him with the additional leave as annual leave. I do not consider that this matter had any impact or bearing on the decision to dismiss Mr Singh.
[187] Mr Singh also raised the issue of Mr Cochran not paying him for the overtime worked on 26 April 2017. There were no other examples of Mr Singh not being paid his entitlements and Mr Cochran’s evidence was that when he became aware that the payment had not been made he arranged for the matter to be rectified immediately. Mr Singh’s evidence during the hearing was that he had since received payment in full. I do not consider that this matter had any bearing on the decision to dismiss Mr Singh.
Finding
[188] Having considered each of the matters specified in s.387 of the Act, I am satisfied Mr Singh’s dismissal was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair.
[189] The application is therefore dismissed. An order 214 to that effect will be published with this decision.
COMMISSIONER
Appearances:
P. Singh on his own behalf;
W. Spargo on behalf of the Respondent
Hearing details:
2017
Shepparton
26 and 27 October
Final written submissions:
Applicant 29 November 2017;
Respondent 22 December 2017
Printed by authority of the Commonwealth Government Printer
<PR607875>
1 Respondent’s outline of argument, [11] –[24]
2 Ibid. [26] – [28]
3 Exhibit R1, Annexure AC1
4 Transcript PN502
5 Exhibit A1
6 Respondent’s outline of argument, [10]
7 Ibid. [8] – [9]
8 Transcript PN419
9 Transcript PN409
10 Transcript PN406-414
11 Respondent’s outline of argument, [11]
12 Ibid. [12] – [13]
13 Ibid. [14]
14 Ibid. [21]
15 Ibid. [23]
16 Ibid. [26]
17 Ibid. [27]
18 Ibid. [28]
19 Exhibit R1, Annexure AC-12
20 Exhibit A1
21 Ibid.
22 Ibid.
23 Ibid.
24 Transcript PN2390-2391
25 Transcript PN447-448
26 Transcript PN468 & 492
27 Transcript PN538
28 Transcript PN478-479
29 Transcript PN526-528
30 Exhibit A1
31 Transcript PN117-118
32 Transcript PN121-123
33 Transcript PN650
34 Transcript PN713-717
35 Exhibit R1, Annexure AC-5
36 Transcript PN673-693
37 Transcript PN676-688
38 Transcript PN122-126
39 Exhibit A1
40 Ibid.
41 Transcript PN137
42 Exhibit A1
43 Transcript PN793
44 Exhibit A1
45 Exhibit R1, Annexure AC-8
46 Transcript PN818
47 Transcript PN880-998
48 Transcript PN889- 909
49 Transcript PN946-980
50 Transcript PN1037
51 Transcript PN821-878
52 Transcript PN1039-1049
53 Transcript PN1047
54 Exhibit A1
55 Transcript PN1101
56 Exhibit A1; Transcript PN1112
57 Transcript PN1319
58 Exhibit A1; Transcript PN1123-1124
59 Exhibit A1
60 Transcript PN1164
61 Exhibit A1
62 Ibid.
63 Ibid.
64 Transcript PN1318-1329
65 Transcript PN1265-1268
66 Transcript PN1271-1275
67 Transcript PN217-219
68 Exhibit A1
69 Ibid.
70 Ibid.
71 Ibid.
72 Ibid.
73 Ibid.
74 Exhibit R1, [1] – [5]
75 Ibid. [2] – [4]
76 Ibid. [9]
77 Transcript PN1622
78 Exhibit R1, [10]; Transcript PN1624
79 Transcript PN1876-1877 & 1959-1965
80 Exhibit R1, [11]
81 Ibid. [13] – [14]; Transcript PN1627
82 Ibid. [14]
83 Transcript PN1838-2013
84 Exhibit R1, [16]
85 Ibid. [23]
86 Ibid. [24]
87 Ibid. [25]; Transcript PN1827-1830
88 Ibid. [26] – [27]
89 Ibid. [28]
90 Ibid. [29]
91 Ibid. [30] – [31]
92 Ibid. [31] – [33]
93 Ibid. [34], Annexure AC-4
94 Ibid. [35]
95 Ibid. [36]
96 Ibid. Annexure AC-5
97 Ibid. [40]
98 Ibid. [41]
99 Ibid. [41]
100 Ibid. [42]
101 Ibid. [49]
102 Ibid. [50]
103 Ibid. [51], Annexure AC-7
104 Ibid. [52]
105 Ibid. [53]
106 Ibid. [54]
107 Ibid. [55]
108 Ibid. [56]
109 Ibid. [57]
110 Ibid. [59], Annexure AC-8
111 Transcript PN1959
112 Exhibit R1, [60] – [61]; Transcript PN1965-1968
113 Transcript PN1983
114 Exhibit R1, [62] – [64]
115 Ibid. [65]
116 Ibid. [66] – [67]; Transcript PN1975
117 Ibid. [68] – [69]
118 Ibid. [70]
119 Ibid. [71]
120 Ibid. [73]
121 Ibid. [74]
122 Ibid. [75] – [77]
123 Ibid. [78] – [79]
124 Ibid. [80], Annexure AC-11
125 Ibid. [81]
126 Transcript PN1831-1837
127 Exhibit R1, [82]
128 Ibid. [19], Annexure AC-2
129 Ibid. [19] – [21]
130 Ibid. [22]
131 Ibid. [46]
132 Ibid. [47], Annexure AC-6
133 Ibid. [44], [48]
134 Ibid. [46]
135 Exhibit R2, [1]
136 Ibid. [2]
137 Ibid. [4] – [6]
138 Ibid. [7] – [9]
139 Transcript PN2164-2190
140 Transcript PN2190
141 Exhibit R2, [10] – [14]
142 Ibid. [15] – [16]
143 Ibid. [16] – [18]
144 Ibid. [20]
145 Ibid. [21] – [23]
146 Exhibit R3, [1] – [3]
147 Ibid. [5] – [6]
148 Ibid. [8] – [9]
149 Ibid. [10]
150 Transcript PN2223-2227
151 Exhibit R3, [12]
152 Ibid. [13]
153 Transcript PN2247
154 Transcript PN2234-2243
155 Transcript PN2277
156 Exhibit R3, [14] – [15]; Transcript PN2249-2252
157 Ibid. [16]
158 Transcript PN2217
159 Exhibit R3, [17] – [18]
160 Ibid. [19] – [21]
161 Exhibit R4, [1]
162 Ibid. [4]
163 Ibid. [5] – [6]
164 Ibid. [12]
165 Ibid. [13]
166 Ibid. [14]
167 Ibid. [19]
168 Ibid. [20]
169 Ibid. [21]
170 Ibid. [22]
171 Ibid. [24] – [25]
172 Ibid. [29]
173 Ibid. [30]
174 Transcript PN2308-2314
175 Transcript PN2400-2410
176 Exhibit R4, [16] – [17]
177 Transcript PN2390
178 Exhibit R5, [2]
179 Ibid. [5]
180 Ibid. [7]
181 Ibid. [7]
182 Ibid. [9]; Transcript PN2436
183 Ibid. [10] – [11]
184 Ibid. [12]
185 Ibid. [16]
186 Ibid. [22] – [24]
187 (1995) 185 CLR 410.
188 Ibid at 465.
189 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
190 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
191 Ibid
192 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
193 Ibid.
194 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
195 Ibid
196 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
197 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
198 Previsic v Australian Quarantine Inspection Services Print Q3730
199 RMIT v Asher (2010) 194 IR 1 at 14-15
200 Fair Work Act 2009 (Cth) s.387(d).
201 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].
202 Respondent’s closing submissions, [59]
203 Fair Work Act (Cth) s.387(e).
204 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
205 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
206 Transcript PN609-611
207 Transcript PN597-600 & 629-623
208 Transcript PN623-627
209 Applicant’s closing submissions.
210 Fair Work Act (Cth) s.387(f).
211 Fair Work Act (Cth) s.387(g).
212 Applicant’s closing submissions.
213 Respondent’s closing submissions, [62]
214 PR607877
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