Praveen Banadar v Synchronoss Software Australia Pty Ltd

[2016] FWC 2728

[2016] FWC 2728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Praveen Banadar
v
Synchronoss Software Australia Pty Ltd
(U2015/5705)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 4 MAY 2016

Application for relief from unfair dismissal – harsh, unjust or unreasonable – dismissal found to be fair – application dismissed.

[1] Mr Praveen Banadar (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) on 2 June 2015 alleging that the termination of his employment by Synchronoss Software Australia Pty Ltd (Synchronoss – the Respondent) on 13 May 2015 was unfair.

[2] The application was heard on 9 September 2015. At the hearing, Mr Banadar appeared on his own behalf, while Mr Robert Laudati appeared for Synchronoss. Mr Laudati, Synchronoss’ Vice President Product Development and General Manager Australia; Ms Natalie Sarkies, Synchronoss’ Human Resources Manager; and Mr Frank Capaldo, Synchronoss’ Quality Assurance (QA) Manager, all gave evidence for the Respondent. Ms Sarkies was not required for cross-examination.

[3] For the reasons outlined below, I have found that Mr Banadar’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Background

[4] Mr Banadar commenced employment with Synchronoss on 7 July 2014 as a QA Tester.

[5] In his 2014 Annual Performance Review, which was completed on 13 January 2015, Mr Banadar was assessed by his manager, Mr Capaldo, as “Improvement Needed” 1. The Annual Performance Review form defines “Improvement Needed” as “Employee delivered inconsistent performance and had difficulty meeting expectations and objectives. Significant improvement is required in multiple competency areas. Employee requires a formal coaching plan to improve performance.” Synchronoss’ Annual Performance Review form provides for “Additional Comments” to be made by an employee’s manager against each core competency. In Mr Banadar’s case, the comments made by Mr Capaldo included the following:

• “struggles to complete task assigned to him in a satisfactory timeframe and needs to be micro managed”;



• “struggling to understand and gain the required knowledge of the Spatial products … for him to become self sufficient [sic]”;



• “struggles to clearly articulate his instructions in the test scripts he has written. After review of these scripts and strict guidance he then rectifies the instructions to a satisfactory standard”;



• “when working with other staff members Praveen needs to ensure that he takes notes so that he does not have to regularly go back to the staff members to repeat previous instructions on how the functionality should behave”; and



• “was instructed on multiple occasions by different staff members to take notes when instructions were given him on functionality behaviour that he was validating which would assist him in completing his tasks in a timely manner. Praveen kept forgetting to do so which then resulted in his productivity and time management suffering due to the fact he did not understand what was required of him and the task at hand. He then needed to be instructed again as to how the functionality should behave. This occurred multiple times which led other staff being frustrated as it impacted on their productivity and time management and his tasks were not been completed in a timely manner.”

[6] In the absence of any subsequent improvement in Mr Banadar’s performance, Mr Banadar was placed on an eight week Performance Improvement Plan which commenced on 16 March 2015. The PIP report prepared by Mr Capaldo concluded as follows:

“Based on his PIP performance, Praveen has shown little improvement and I feel that he would not be able to perform the Role required of him to a satisfactory level unless he continuously spoon feed [sic]. I believe that Praveen will continue to struggle in this environment and as a result will impact on the overall team’s performance which will result in deadlines being meet [sic].” 2

[7] As noted above, Mr Banadar was dismissed on 13 May 2015. The termination letter states, inter alia, that:

“On 12 March 2015, you met with your manager Frank Capaldo, Peter O’Driscoll and Natalie Sarkies. In that meeting, you were advised that effective 16 March 2015 you would be placed on a performance improvement plan for a period of 8 weeks. You were advised that if your performance did not improve to a satisfactory level then it may result in termination of your employment with the company. You also had a phone conversation on the same day with Natalie Sarkies who reiterated the plan and potential consequences.

During the 8 week period you attended multiple follow up meetings with Frank Capaldo to assess progress.

We consider that your performance is still unsatisfactory and have decided to terminate your employment for the following reasons:

• Inability to adhere to all agreed strategies and;



• Lack of improvement in overall performance

Your employment will end immediately. Based on the length of service, your notice period is one month. In lieu of receiving that notice, you will be paid the gross some of $5,750.00.

You will also be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including your last day of employment in the 15 May 2015 payroll.” 3

The Applicant’s case

[8] At the hearing, Mr Banadar submitted that he considered it unfair that he had been dismissed based on his work and performance. In his oral submissions, Mr Banadar reiterated aspects of his oral evidence (see below), in particular contending that:

• he considered the regular meetings with Mr Capaldo as part of the PIP process did not assist in enhancing his knowledge; and



• he felt victimised by the PIP process.

[9] Key aspects of Mr Banadar’s viva voce evidence were that:

• he understood the role for which he had been hired;



• no concerns regarding his performance were raised with him prior to his 2014 Annual Performance Review;



• he did not accept the performance review report, adding that he raised a number of concerns with the report which were not accepted by Synchronoss;



• prior to the PIP commencing, he received no support or further training from Synchronoss;



• the PIP process was extended to 8 weeks at his suggestion;



• during the PIP process, he was assigned the same tasks as before and again he received no extra support or training;



• he considered that Mr Capaldo had misled him during the PIP process by asking that he include further detail in his test scripts, with Mr Banadar disagreeing that the additional detail was necessary;



• he was advised that he could bring a support person to the termination meeting but chose not to; and



• he considered that he had performed his tasks very well as all of his work had been accepted.

The Respondent’s case

[10] Synchronoss stated in its Form F3 – Employer Response to Unfair Dismissal Application that Mr Banadar had failed to perform to the requirements and expectations of his role. Among other things, Synchronoss contended that Mr Banadar:

• had problems with analysis and was unable to tie everything together;



• struggled to comprehend the tasks assigned to him, with the tasks assigned to him being less complex than what was expected of him;



• failed to complete daily tasks in a timely manner;



• did not comprehend instructions;



• had trouble interacting with development staff and interpreting instructions on how to validate functionality; and



• did not understand products after being exposed to them before and during the PIP.

[11] Synchronoss also disputed many of the statements contained in Mr Banadar’s application.

[12] At the hearing, Synchronoss contended that it considered it had given Mr Banadar ample opportunity to improve his performance, but that as a small team it could not carry non-performing team members. Synchronoss further contended that there were other employees who were junior to Mr Banadar who worked on far more complex tasks yet performed better than Mr Banadar. In summary, Synchronoss submitted that Mr Banadar’s dismissal was not unfair.

[13] Mr Capaldo deposed in his witness statement 4 that:

• he was part of the panel which interviewed Mr Banadar for his role with Synchronoss;



• during the interview process he highlighted to all candidates that to be successful in the role was not easy as they would need to work closely with other employees to gain the relevant knowledge;



• it was evident to him that Mr Banadar struggled to gain the required knowledge to perform his job;



• on numerous occasions he was approached by both QA and development staff stating that they found Mr Banadar difficult to work with as they would need to repeat the same instructions to him multiple times;



• both prior to and after the PIP process, he encountered the same difficulties when instructing Mr Banadar on tasks;



• as such, he would ask Mr Banadar before their discussion ended if he understood what needed to be performed, with Mr Banadar very rarely stating that he did not understand; and



• he had several formal and many informal meetings with Mr Banadar as part of the PIP process.

[14] In his oral evidence, Mr Capaldo provided a comprehensive overview of the work performed by his team, which included Mr Banadar, and the way that work was performed. Beyond that, key aspects of Mr Capaldo’s oral evidence were that:

• he first raised concerns with Mr Banadar regarding his performance about two to three months after Mr Banadar commenced employment with Synchronoss;



• the PIP process was designed to assist Mr Banadar understand how to interact with the development team so as to extract the required knowledge;



• the PIP process involved a mix of simple and difficult tasks;



• had Mr Banadar successfully completed the PIP there would have been no issue regarding his continued employment by Synchronoss;



• it took Mr Banadar a long time to understand how Synchronoss’ applications work;



• he probably discussed work more with Mr Banadar than any other staff member;



• as part of the PIP process, Mr Banadar provided a list of issues each Friday so that they could be discussed the following Monday;



• he made himself available to Mr Banadar at all times, adding that he probably made himself more available than he should have;



• the PIP was undertaken for success not failure;



• when assigning a task to Mr Banadar he always asked, as he did with all team members, whether he understood the task that he had been assigned;



• he made it quite clear what his expectations were in respect of tasks and where performance was not up to the mark; and



• as to Mr Banadar’s claim that he had been misled by him during the PIP process, he attested that there were things that he expected Mr Banadar to include in the test scripts he had prepared so that the next person looking at that script could perform any task in efficient manner and that he explained to Mr Banadar on several occasions what was required in this regard.

[15] Mr Capaldo was not cross-examined by Mr Banadar. In other words, Mr Capaldo’s evidence was unchallenged.

[16] Mr Laudati deposed in his witness statement 5, inter alia, that:

• Synchronoss employees are generally self-starters and information seekers willing to independently develop solutions through collaboration;



• given Mr Banadar’s previous work at Synchronoss in India, along with the skills documented in his resume, he expected Mr Banadar to be a good fit given the circumstances of the work environment at Synchronoss which was covered in detail at the interview;



• his observations of Mr Banadar, which were based on the weekly development meetings which Mr Banadar occasionally attended, were that Mr Banadar had difficulty relating the status of his work and did not seem to grasp some of the basic concepts of the applications he was testing;



• he received feedback from development staff on Mr Banadar’s performance, with that feedback being that he was not able to retain information and that developers had to repeat concepts and instructions several times;



• he reviewed examples of test cases developed by Mr Banadar and found them to be very basic relative to those compiled by his peers; and



• as a result, he was supportive of putting in place a PIP for Mr Banadar.

[17] In his oral evidence, Mr Laudati attested that:

• on one occasion, two developers were in his office expressing their frustration that Mr Banadar repeatedly sought the same information from them;



• he supported the initiation of the PIP process;



• the decision to dismiss Mr Banadar was made jointly by Mr Capaldo, Ms Sarkies and himself; and



• the decision was based not just on the PIP process but also had regard to Mr Banadar’s body of work for the period he had been employed by Synchronoss.

[18] Again, Mr Laudati’s evidence was not challenged by Mr Banadar.

[19] Ms Sarkies deposed in her witness statement 6 that she had conversations with Mr Capaldo regarding Mr Banadar’s poor performance and supported Mr Capaldo in informally performance managing Mr Banadar, adding that she assisted Mr Capaldo put in place the PIP. Ms Sarkies also deposed that she had a number of conversations with Mr Capaldo during the PIP process and noted that he was concerned that Mr Banadar was not improving and that the amount of time and effort that was being put into supporting him was having a toll on productivity in an already understaffed team. Beyond this, Ms Sarkies deposed that she prepared the termination documentation and lead the dismissal meeting where she answered all of Mr Banadar’s questions. As previously noted, Ms Sarkies was not required for cross-examination.

The statutory framework

[20] The Fair Work Commission (the Commission) exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Banadar is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWC considers relevant.”

[21] There is no dispute that Mr Banadar was dismissed, so s.385(a) of the Act is satisfied. Mr Banadar contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. Synchronoss is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Mr Banadar was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[22] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria. I note that Mr Banadar did not address the criteria in his written submissions.

(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)

[23] In Rode v Burwood Mitsubishi 7 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.8 The following is an extract from the Full Bench’s decision in Rode.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[24] The unchallenged evidence of Mr Capaldo in particular and Mr Laudati paints a compelling picture of an employee who, despite his experience, never came to grips with the way things were done at Synchronoss. Further, their unchallenged evidence points to Mr Banadar being given adequate opportunity to improve his performance over a period of several months. While I do not doubt that Mr Banadar did his best, the material before the Commission supports a finding that he was not up to the task. As to Mr Banadar’s contention that he was misled by Mr Capaldo during the PIP process, Mr Banadar’s characterisation appears to stem from his disagreement with Mr Capaldo regarding the level of detail that should be included in his test scripts. I do not accept Mr Banadar’s contention that this difference of opinion compromised the integrity or fairness of the PIP process.

[25] Against that background, I am satisfied that there was a valid reason for Mr Banadar’s dismissal based on his performance. Further, drawing on the language in Rode, I am satisfied that Mr Banadar’s termination was not “capricious, fanciful, spiteful or prejudiced.”

(b) Whether the person was notified of that reason

[26] Synchronoss submitted that Mr Banadar had been told that he had been dismissed in a private meeting with Ms Sarkies and Mr Laudati, with Mr Capaldo attending for the first few minutes and Mr Banadar subsequently given written notification of his dismissal. Synchronoss further submitted that Mr Banadar was told at the termination meeting that unfortunately he did not meet all the requirements and strategies of the PIP and that his overall performance had not improved to a satisfactory level.

[27] Mr Banadar did not dispute this at the hearing.

[28] I am therefore satisfied that Mr Banadar was notified of the reason for the termination of his employment. This weighs against a finding that his dismissal was harsh, unjust or unreasonable.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[29] Mr Banadar was not dismissed as a result of his conduct, but rather as a result of his failure to perform to the requirements and expectations of his role. It is clear that Synchronoss’ performance concerns were raised with Mr Banadar during his Annual Performance Review in January 2015 and that, in the absence of any subsequent improvement in his performance, he was placed on a PIP which commenced on 16 March 2015. This supports a finding that Mr Banadar was given an opportunity to respond to Synchronoss’ concerns regarding his capacity to perform his role. Further, based on Mr Capaldo’s evidence, I am satisfied that Mr Banadar was provided with appropriate support during the PIP process in an endeavour to assist him in improving his performance. I note that Mr Banadar disputes this. Nevertheless, I prefer Mr Capaldo’s evidence in this regard.

[30] This factor does not support a finding that Mr Banadar’s dismissal was harsh, unjust or unreasonable.

(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

[31] As previously noted, Mr Banadar attested that he was advised that he could bring a support person to the termination meeting but that he chose not to.

[32] Accordingly, I consider this factor to be a neutral consideration.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[33] Synchronoss submitted that Mr Banadar was on a PIP and was aware that, if his performance did not improve, it could lead to his dismissal. Synchronoss further submitted that during his annual performance review meeting Mr Banadar was made aware of the areas where his performance needed to improve and that, in the absence of any subsequent improvement, he was placed on a PIP where he was given a large amount of support to help him improve. Synchronoss also contended that Mr Banadar had been verbally spoken to a number of occasions in the months prior to his annual performance review and was advised that his performance needed to improve. Synchronoss submitted that, while no formal training was provided to Mr Banadar, it operated a buddy system designed to assist employees gain the required knowledge.

[34] The comments made by Mr Capaldo as part of Mr Banadar’s 2014 Annual Performance Review (see paragraph [5] above), support a finding that Mr Banadar had been warned of his unsatisfactory performance prior to his dismissal. Further, the subsequent PIP provided him with a further opportunity to improve his performance. As Mr Banadar attested, during the PIP process he was assigned the same tasks as before. As such, I do not consider that the PIP process was set up to see Mr Banadar fail. To the contrary, Mr Capaldo’s and Mr Laudati’s evidence suggests that Synchronoss would have been more than happy to see Mr Banadar’s performance improve to the required level, particularly in view of the costs associated with replacing an employee.

[35] The above analysis does not point to Mr Bandar’s dismissal being harsh, unjust or unreasonable.

(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

(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

[36] Neither party made any submission regarding these factors. As such, I consider them to be neutral considerations.

(h) Any other matters that FWC considers relevant

[37] Neither party pointed to any other matters which the Commission should take into account. Accordingly, I find that there are no other relevant considerations.

Conclusion

[38] Drawing on the above analysis, I find that there was a valid reason for Mr Banadar’s dismissal; that Mr Banadar was notified of that reason and given an opportunity to respond to that reason; that Mr Banadar had been warned about his performance prior to his dismissal, as well as being given opportunities to improve his performance; and that there are no other relevant matters. Beyond this, I find that the remaining criteria in s.387 of the Act are neutral considerations in this case.

[39]
Having considered all of the criteria in s.387 of the Act I find that Mr Banadar’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

P. Banadar on his own behalf.

R. Laudati for Synchronoss Software Australia Pty Ltd.

Hearing details:

2015.

Melbourne:

September 9.

 1   Attachment to Form F2 – Unfair Dismissal Application

 2   Attachment to Form F3 – Employer Response to Unfair Dismissal Application

 3   Attachment to Form F2 – Unfair Dismissal Application

 4   Exhibit L1

 5   Exhibit L2

 6   Exhibit L3

 7   Print R4471

 8 (1995) 62 IR 371

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