Prince David Joseph Raj v Department of Parliamentary Services
[2024] FWC 3552
•23 DECEMBER 2024
| [2024] FWC 3552 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Prince David Joseph Raj
v
Department of Parliamentary Services
(U2024/7843)
| DEPUTY PRESIDENT DEAN | CANBERRA, 23 DECEMBER 2024 |
Application for an unfair dismissal remedy – application dismissed.
Mr Prince David Joseph Raj (Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he was unfairly dismissed from his employment with the Department of Parliamentary Services (DPS or Respondent).
The application was heard on 17 October 2024. At the hearing, the Applicant appeared on his own behalf and Mr B Tutty appeared for the Respondent.
For the reasons set out below, I find the Applicant’s dismissal was not unfair.
Background and events leading to dismissal
The Applicant commenced employment with the Respondent on 21 August 2023, in the role of Broadcast Support Officer in DPS’s Broadcast Infrastructure and Support (BIS) section. In this role, he was responsible for the installation, set-up, operation, upgrade, maintenance and repair of broadcast and communication facilities in the Parliament House. During his employment, the Applicant was supervised by Mr Joshua Covington (BIS Team Supervisor) and Mr Leslie Hickey (BIS Assistant Director).
The Applicant’s employment with DPS was governed by the Parliamentary Service Act 1999 (PS Act) and the Department of Parliamentary Services Enterprise Agreement 2017 (Agreement). His role was classified as PSL 5 under the Agreement.
It is uncontroversial that the Applicant’s supervisors had concerns about his performance and in the probationary report recommended termination of the Applicant’s employment prior to the expiration of his probation period. The recommendation was not followed, rather, the Applicant was placed on a four-week informal performance improvement process (PIP) which commenced on 5 February 2024.
During that four-week period, meetings were conducted with the Applicant twice weekly, one to assign appropriate tasks and the other to discuss status and progress of those tasks. An ‘action plan’ was also developed for this period, which detailed each task to be performed, the timeframe and how performance would be measured, explained how the task linked to his duty statement, the outcome required from the task, and a final assessment of his performance of the task.
By letter of 15 March 2024, the Respondent informed the Applicant that his performance remained unsatisfactory after the completion of the informal PIP and he was issued with a formal warning of unsatisfactory performance. He was directed to undertake a formal underperformance process in accordance with clause 62 of the Agreement and Part 2 of the DPAS Performance Management Scheme. The Applicant was warned of possible actions including termination of employment if his performance did not improve to the required standard at the conclusion of the assessment period.
The letter identified the issues concerning his performance at the PSL 5 classification as follows:
“• allocated tasks are not delivered to a satisfactory standard expected at level,
· work outputs are consistently unsatisfactory and not delivered to the quality expected within agreed timeframes,
· lack of attention to detail upon completing tasks resulting in other officers double-checking or following up on work tasks
· supervisors have observed gaps between the technical capabilities displayed and the requirements of the role, when benchmarked against comparable roles, your qualifications and the work level standards (WLS).”
The formal PIP commenced on 20 March 2024. An independent assessor, Ms Sally Gilbey, was appointed to oversee the process. The Applicant was provided with a 4-week action plan detailing six ‘level-appropriate tasks’ which he was required to complete. Each task was given a time frame for completion. Mr Hickey and Mr Covington were responsible for the assessment of his weekly performance and provided feedback. The Applicant attended weekly meetings with Mr Covington and Mr Hickey on 27 March, 10 April and 17 April. Ms Gilbey was in attendance at all the meetings to observe and prepared a mid-point report on 3 April 2024 and a final assessment report on 23 April 2024.
In her final assessment report, Ms Gilbey found that the Applicant’s performance remained unsatisfactory and that he did not perform at the required standard of a PSL5 officer. The report contained the following remarks:
“Over the course of the review period, I have observed little change in Prince's work-related performance.
Prince's overall level of competence has not markedly improved given the level of instruction provided and the limited tasks he had been given. In particular, communication continues to be an issue with Prince unable to adequately explain the reasons for the decisions he made or the path he took to complete work. It may be that he did not understand to seriousness of the process, although this was reiterated at each meeting. I perceive a conflict in Prince between demonstrating that he can work independently and needing to consult to clarify tasks and procedures. This appears to also impact other areas of Prince's work. Prince is not performing the tasks to the standard required, and is needing extensions of deadlines to complete the work. His work has required substantial checking and rework by Josh, and at other times, other members of the team, which is not what is expected of a PSL5 officer.
Having regard to all the evidence available to me, it is my opinion that Prince will continue to require considerable instruction and supervision with respect to most elements of his work if he is to retain his position. At this stage he is not working at PSL5 level.”
The Applicant was given a copy of the report and was invited to provide his comments. He did so on 24 April 2024.
On 20 May 2024, the Applicant was provided with a letter in which the Respondent outlined it proposed to terminate his employment, and he was given an opportunity to make a written submission as to why his employment should not be terminated. The Applicant provided his response on 29 May 2024.
On 20 June 2024, the Applicant was notified of the Respondent’s decision that his employment was terminated for unsatisfactory performance of duties. The termination letter read as follows:
“Dear Mr Raj,
Termination of employment
1. I refer to my letter of 20 May 2024 regarding your employment and performance, including during your probation period.
2. The purpose of this letter is to advise you of my decision to terminate your employment in accordance with section 29(3)(c) of the Parliamentary Service Act 1999 (Cth) (PS Act), on the grounds of unsatisfactory performance.
3. Details regarding your employment with the department were outlined in your letter of offer, signed by you on 11 August 2023, which informed you that a requirement of your ongoing employment with the Department was to meet and maintain standards of conduct, work performance, attendance and behaviour in accordance with the Parliamentary Service Values, Employment Principles and Code of Conduct as set out in the PS Act and departmental policies.
4. Your managers recommended termination of your employment on 17 January 2024 prior to the expiration of your probation period.
5. I, as the delegate in that case, determined that additional evidence was required before I could decide on possible termination of your employment. Between 5 February 2024 and 1 March 2024 an informal performance improvement process (PIP) was implemented in accordance with the requirements under the DPS Performance Management Scheme.
6. On 18 March 2024, I issued you with a formal warning that your performance remained Unsatisfactory. You were advised that a formal underperformance process would commence in accordance with clause 62 of the DPS Enterprise Agreement 2017 and Part 2 of the DPS Performance Management Scheme. The letter cautioned you that your employment may be terminated if your performance did not improve.
7. On 23 April 2024 you were provided with a copy of the final assessment for your comment, which assessed you as not performing at the required standard of a PSL5 officer.
Paid miscellaneous leave and my preliminary view
8. My letter dated 20 May 2024 advised that, due to the concerns raised about your performance, I was considering terminating your employment. You were provided with an opportunity to make a written submission to outline why I should not terminate your employment and were granted paid miscellaneous leave to enable you to prepare your response. You submitted your response to me on 29 May 2024.
Consideration of your response
9. In your response you have provided examples of tasks that you have completed with minimum or no assistance from other officers. I acknowledge that you have completed some tasks during your employment. However, it remains that the totality of your performance has been assessed as not to the standard required of a PSL5 Broadcast Support Officer.
10. You stated you did not believe you had been provided with the support you need to succeed in your role, and you provided an example of another officer being advised not to assist you as you were undergoing a PIP. I will not comment on the appropriateness or otherwise of that comment, but I am satisfied that you had sufficient support through your supervisors and were encouraged to ask them for assistance.
11. An independent assessor was assigned to this process to ensure that it was conducted in a fair and balanced manner. The independent assessor did not make any findings consistent with your statements that you were not provided with the necessary level of support or that the treatment of you through the PIP and performance assessment was unfair. I am satisfied that you were provided an appropriate level of support and that the process was fair.
12. I acknowledge the comments you have made about the work environment, including an employee making racist jokes and hurtful remarks, and public comments regarding your PIP. I will be referring these matters through for appropriate action. This does not change the outcome of your performance assessment or my decision regarding your employment.
Termination of your employment
13. I have considered your response and I am not satisfied that the information you have presented should cause me to change my view. I have therefore determined to terminate your employment in accordance with section 29(3)(c) of the PS Act on the grounds of unsatisfactory performance.
14. Termination of your employment is effective today, 20 June 2024. You will be paid two weeks’ salary in lieu of notice. You will receive separate correspondence about exit arrangements and your final entitlements.
15. Please note that in accordance with section 33 of the Act, decisions relating to the termination of employment are not subject to review. However, you may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them, you can call 12 12 94 or visit their website at I understand that this may be difficult for you. Counselling and employee assistance is available to you by contacting the Department’s Employee Assistance Program (EAP). You can contact the EAP provider, Telus Health on [telephone number] if you feel you require support.
Yours sincerely
Amanda Harmer
Assistant Secretary
Corporate Operations Branch20 June 2024”
The case for the Applicant
The Applicant does not dispute that he underwent the performance management processes set out above during his 10 months of employment with the Respondent.
The Applicant contended that his manager did not manage his performance in accordance with the DPS probation policy and procedural fairness was not followed. Further, his manager did not assist him to learn and develop.
He alleged the feedback he received was not constructive or timely, in that he had to wait to for the probation report “to see what went wrong or right”.
The Applicant referred to an incorrect comment about his attendance record and said that it showed his manager’s approach towards his employment was careless and negligent, and the negative remarks on his probation report was due to bias and negligence.
He referred to the Respondent’s requirement for employees to have an individual work plan, and gave evidence that he did not have such a plan which was in breach of the Respondent’s policies.
He also contended that the workplace was not inclusive and he was subjected to racist remarks, and this affected his performance.
The Applicant submitted that the independent assessor failed to consider the concerns raised by him regarding how he had been treated during the PIP and the circumstances leading to negative feedback in the probation report which affected his employment with the Respondent.
He said he had given his best at work in circumstances where he was dealing with his wife’s cancer treatment.
In cross examination, the Applicant confirmed he was aware of his duties statement from the beginning of his employment. He confirmed that having read the five-month probation report and learning that the Respondent had decided not to dismiss him, he felt that he understood the requirements of his role and the expectations of his managers. He also confirmed he did not raise any concerns about the tasks listed for his completion as part of the performance improvement process that followed his probation.
The case for the Respondent
The Respondent contended that its concerns with the Applicant’s performance did not improve during the performance improvement process or the formal underperformance process, and as a result it had a valid reason to dismiss the Applicant, that being his continued unsatisfactory performance.
The Respondent also submitted that the Applicant was notified of the reason for his dismissal and was given an opportunity to respond to the performance matters that had been raised with him.
The Respondent provided extensive documentary evidence of the performance concerns and the process it followed to address those concerns with the Applicant.
Consideration
Protection from Unfair Dismissal
There is no dispute and I am satisfied that the Applicant is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.
Was the dismissal unfair?
A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
385 What is an unfair dismissal
A person has been unfairly dismissed if the 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.
There is no dispute that the Applicant was dismissed and that subsections (c) and (d) do not apply.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
a. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b. whether the person was notified of that reason; and
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
d. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
f. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
g. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h. any other matters that the FWC considers relevant.
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[1] 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.”
The onus is on the Applicant to prove his dismissal was harsh, unjust and/or unreasonable.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]
Valid reason - s.387(a)
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]
There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
Having considered all the evidence, I find that there was a valid reason for the Applicant’s dismissal.
I accept that the Respondent had ongoing and valid concerns about the Applicant’s performance, and these concerns related to duties he was asked to perform that were within the scope his duty statement. This is evident from the chronology of events set out earlier.
I have also taken into consideration that the independent assessor assigned as part of the formal underperformance process did not make any findings consistent with the Applicant’s statements that he was not provided with the necessary level of support or that the treatment of him through the PIP and performance assessment was unfair.
There is no doubt that the Applicant held a different view to that of the Respondent as to his performance. He did not accept or agree that he was underperforming.
Having fully considered all the evidence, I accept that his performance fell short of the Respondent’s expectations. These matters in my view support a finding that there was a valid reason for his dismissal.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[6] in explicit terms[7] and in plain and clear terms.[8] In Crozier v Palazzo Corporation Pty Ltd[9] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their 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.”[10]
An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.[11] 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.[12]
The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to The Applicant before his dismissal was effected.
I am satisfied on the evidence that the Applicant was notified of the reason for his dismissal and given an opportunity to respond to the performance matters that resulted in his dismissal.
The evidence is indisputable that the Applicant was provided with information to afford him a full and proper opportunity to understand and respond to the performance concerns held by the Respondent. This included:
a.His 3-month and 5-month probationary period reports;
b.The informal performance improvement process, detailed action plan and twice weekly meetings;
c.the formal underperformance process;
d.The written warning which cautioned him that his employment may be terminated if his performance did not improve; and
e.An opportunity to provide a response to the proposal to terminate his employment before doing so.
I am also satisfied that the Applicant was afforded a fair process as the Respondent assigned an independent assessor to ensure the process was conducted in a fair and balanced manner.
In relation to the Applicant’s concerns about the process and specifically that he did not have an individual work plan, I am not satisfied that the process was defective. The fundamental point is that an employee is provided with procedural fairness. In this case, the evidence shows a detailed and thorough process with extensive opportunity given to the Applicant to perform to the standard required of his role.
I also do not accept that feedback given to the Applicant was not constructive or timely. The action plan in particular is evidence of detailed and timely feedback.
Overall, I am satisfied on the evidence before me that the Applicant was notified of the reason for his dismissal and was given an opportunity to respond to that reason.
Unreasonable refusal by the employer to allow a support person - s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
The Applicant was not denied a support person.
Warnings regarding unsatisfactory performance - s.387(e)
A warning for the purposes of s.387(e) must clearly identify:
a. the areas of deficiency in the employee’s performance;
b. the assistance or training that might be provided;
c. the standards required; and
d. a reasonable timeframe within which the employee is required to meet such standards.[13]
The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”[14]
There is no doubt, based on the evidence set out earlier, that the Applicant was warned about this performance, and that the matters set out in this subsection were met.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
I am satisfied that the size of the Respondent and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal, and the process was undertaken to a standard that would be expected of an organisation of its kind.
Other relevant matters - s.387(h)
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
I have considered the impact that the dismissal has had on the Applicant, and I have also taken into account his relatively short length of service.
Conclusion
Having carefully considered each of the required matters, I am not satisfied that the Applicant has discharged his onus of proving that his dismissal was harsh, unjust or unreasonable. Accordingly, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act, and so his application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
P Raj on his own behalf.
B Tutty for Department of Parliamentary Services.
Hearing details:
2024.
By video:
October 17.
[1] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[4] Ibid.
[5] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[6] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
[7] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[8] Previsic v Australian Quarantine Inspection Services Print Q3730.
[9] (2000) 98 IR 137.
[10] Ibid at 151.
[11] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[12] RMIT v Asher (2010) 194 IR 1, 14-15.
[13] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
[14] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
Printed by authority of the Commonwealth Government Printer
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