Priscilla Mushayabasa v Rombola Family Farms Pty Ltd
[2024] FWC 2940
•28 OCTOBER 2024
| [2024] FWC 2940 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Priscilla Mushayabasa
v
Rombola Family Farms Pty Ltd
(U2024/7722)
| DEPUTY PRESIDENT DEAN | CANBERRA, 28 OCTOBER 2024 |
Application for an unfair dismissal remedy – application dismissed.
Ms Mushayabasa (Applicant) was employed by Rombola Family Farms Pty Ltd (Respondent) as a HR Administrator on a full time basis from 26 June 2023 until she was dismissed on 27 June 2024 on the ground of unsatisfactory work performance. The Applicant has made an application pursuant to s.394 of the Fair Work Act 2009 claiming that she was unfairly dismissed.
In short, the Applicant contends that she did not underperform and that the performance standards she was held to were unreasonable in all the circumstances. The Respondent contends there was a valid reason for her dismissal related to sustained failure to improve ongoing issues associated with her work performance.
The application was heard on 9 October 2024. At the hearing, the Applicant appeared and gave evidence on her own behalf. Mr A Wilson of Counsel appeared with permission for the Respondent, and Mr R Wood (Acting HR Manager) gave evidence on behalf of the Respondent.
For the reasons set out below, I find the Applicant’s dismissal was not unfair and will dismiss the application.
The background and case for each party
The Applicant was employed as a HR Administrator for just over one year.
Her main duties, which were set out in a position description annexed to her employment contract, involved:
a.Providing recruitment support to business managers which included preparation of position descriptions and job advertisements, posting of job advertisements across various platforms, shortlisting applicants, and coordinating interviews. It also involved ensuring applications were dealt with efficiently and effectively and that candidate data was collected for each job application, preparing reports to inform managers of the status of each application when required, and preparing employment contracts;
b.Coordinating induction and onboarding of new employees;
c.Providing support in scheduled training; and
d.Maintaining all data in the Respondent’s human resources information system in an accurate and timely manner.
At the time the Applicant’s employment commenced, there were five members in the HR team, including the Applicant.
The Respondent uses a software system called Dynamics to maintain records of all employees and contractors engaged by the Respondent. It was the Applicant’s responsibility to manage the recruitment module in the system. This required her to create new ‘recruitment projects’ for each vacant position the Respondent sought to fill. Applications were generally submitted through SEEK.com. She was also required as part of this process to upload all applications received through SEEK.com to Dynamics, make and record recruitment related notes in the system, and save applications in the relevant recruitment project file.
In January 2023, Mr Wood said he noticed that the Applicant was not putting the required information into Dynamics that related to recruitment processes, including not preparing and uploading recruitment reports and not uploading progress notes which was a part of her role. Mr Wood said this caused great inconvenience when the Respondent could not identify where the recruitment process was up to and what needed to be done.
Mr Wood gave evidence that he spoke with the Applicant about his concerns on numerous occasions and reminded her that she was required to keep the recruitment project folders up to date, and she should contact him if she needed additional support.
Mr Wood said he spoke with the Applicant in late March 2024 about uploading the recruitment report for several recruitment projects and reminded her she needed to complete this task.
In addition to conversations, there were multiple emails to the Applicant about her role in relation to the recruitment process. The Applicant did not dispute she received these emails.
For example, on 15 February 2024 Ms Antia, the HR Manager at that time, sent an email to the Applicant saying:
“Hi Priscilla,
I have been noticing that there are crucial data missing in Dynamics data base, we urgently need your attention to ensure that all employee details records are updated in the Dynamics database. This information is crucial for our audit readiness, and any delay is no longer permissible.
To expedite the process, kindly prioritise updating the data for at least 15 employees today, with the remainder scheduled for completion tomorrow. This task is relatively brief and should not pose a significant time constraint. While navigating Dynamics, please access the employee window to identify and rectify any missing data. This step is essential to maintaining up-to-date records.
It has come to our attention that the data has been missing since October, and immediate action is imperative. We cannot afford any further delays as we need to complete the SEDEX questionnaire, and the availability of this data is pivotal for its completion.Please ensure that all the information is included:
1) Worker’s summary.
2) Name details.
3) Address
4) Contact information.
5) Family information.
6) Work history.
7) Terms of employment.
8) Files are created in the server under the current employee folder.
9)Contracts, passports, birth certificates, visa details and other documents are attached to Dynamics file.
…”
On 30 March 2024 Mr Rombola sent an email to the Applicant which said:
“Priscilla,
I was just going through seek and noticed these two jobs have applicants that haven't even been read by us. How often are you checking seek? Do you need assistance with this?
I would like to see all of our applicants checked daily, we are in desperate need for the positions to be filled so cannot afford to miss any decent applicants”
On 2 April 2024 Mr Wood sent an email to the Applicant in the following terms:
“Hi Priscilla
I’ve noticed that the folders haven’t been getting updated on the ‘current recruitment on the go’ folder and on Dynamics (specifically the People and culture manager recruitment project). This is quite important to keep updated as I was searching for information and could not find any notes or the application itself. Please make this a priority as it allows for any member of our team to see where the project is up to in the case of sick leave or annual leave.
I’ve created the folder and uploaded the new applications if you could please go back and upload the shortlisted applicants and going forward, every new applicant. The only applications we do not add every single application to Z drive and Dynamics is the seasonal workers applications as there would be too many to keep up.
I’ve attached the work instructions as a reference. Please let me know if you have been instructed otherwise as I will need to do the same and update the work instructions.”
On 17 April 2024 Mr Wood sent another email to the Applicant as follows:
“Hi Priscilla
Just following this up, could you please make it a priority to update all recruitment projects on Dynamics. As mentioned in our meeting a couple of weeks ago, it is crucial that all the data and notes are on Dynamics as when you are away, one of the team can continue and see where the project is up to. For an example, currently there is only one applicant on the Head of People and culture which was the applicant I added. I’ve also noticed that the jotforms, though collecting the data, is not being carried over to Dynamics which would mean that the flow is either not created or not functioning properly which further adds to the work load as we need to then manually enter the data captured on the jotform. Could you please look into this and either create the flow or contact IT if the flow is not working.”
On 22 April 2024 Mr Wood sent an email to the Applicant requesting a meeting to discuss the Respondent’s concerns. The email said:
“Hi Priscilla,
I hope this email finds you well. I am writing to follow up on our recent discussion. As we discussed, it has become necessary to address certain concerns that have arisen.
Tomorrow morning at 9am, you will receive a formal letter of warning outlining the issues that need to be addressed. This letter is intended to provide you with a clear understanding of the areas where improvement is needed and the expectations moving forward.
I want to reiterate that this is not meant to be punitive but rather a proactive measure to support you in reaching your full potential within our organization. We value your contributions and want to ensure that you have the necessary support and resources to succeed.
If you have any questions or require clarification on any points outlined in the letter, please do not hesitate to reach out.”
A meeting took place on 23 April 2024 which was attended by the Applicant, Mr Wood and Mr Rombola. Mr Wood gave evidence that the issues regarding the Applicant’s performance were set out, and she was invited to indicate whether she required any additional support in performing her role. Mr Wood said that the Applicant’s only response was “OK, is that all?”.
It was Mr Wood’s evidence that he had undertaken the Applicant’s role between January and June 2023 prior to her commencing in the role and was aware of the requirements of the role. He disputed her assertion that the demands of the role were unreasonable. He also said during this period he regularly made offers of assistance to the Applicant, and those offers were rejected.
The Applicant was subsequently given a formal warning letter of 23 April which is in the following terms:
“Dear Priscilla,
I am writing to summarise and confirm the key points from your recent discussion on the 11 February 2024 with Erika Anita (HR Manager) and email communication from April 2 2024 and April 17 2024 with Robert Wood and Fernando Rombola regarding certain performance concerns that require your attention to ensure the smooth functioning of our operations.
During this meeting and follow up emails, specific areas were highlighted that require immediate focus and improvement on your part:
1.Recruitment:
· Timely input of data of inducted employees on Dynamics
· Updating Recruitment Projects on dynamics and Z Drive, including creation of recruitment projects, adding application details from SEEK and notes on screenings & interviews.
· Ensuring Workflows on Power Automate function as intended to capture JotForm information and transfers information to Dynamics.
· Ensuring applications are followed up in a timely manner which includes shortlisting of applicants on both SEEK and JotForm and scheduling interviews.
Priscilla, it is crucial to emphasise that certain improvements are non-negotiable. The issues outlined above do not align with the standards set by Rombola Family Farms Pty Ltd. And must be promptly rectified.
We have confidence in your commitment to addressing these concerns, and we are committed to providing the necessary resources and support. It is essential to understand that our aim is to collaborate towards a positive outcome. Failure to demonstrate improvement in your work may result in termination of your employment. Should you require further clarification or have questions related to the matters addressed in this letter, please do not hesitate to reach out.
To confirm your acknowledgement of the discussed points, kindly sign at the bottom of this page and return the letter to me. A copy of this letter will be retained in your file for future reference.”
Mr Wood said that during the period from 23 April to 27 June 2024 (noting he was on leave for part of that time), he did not observe any noticeable improvement in the Applicant’s performance. In particular, much of the required employee data and recruitment information remained missing from the computer systems.
As a result, Mr Wood invited the Applicant to a meeting to be held on 27 June, advising her it was a follow up performance meeting and that she could bring a support person with her. At that meeting she was informed that her employment was terminated. The termination letter dated 27 June 2024 is as follows:
“Dear Priscilla
Re: Notice of termination of employment
I refer to the Warning Letter you received from Fernando Rombola on 23 April 2024 and confirm that Rombola Family Farms wishes to terminate your employment, you will receive 2 weeks notice starting today. You have failed to improve in the areas as highlighted in the Warning Letter and meetings with HR Manager, Erika Anita and Managing Director, Fernando Rombola.
The Company will satisfy your entitlements to notice and unused leave, as well as ensure the requisite superannuation contributions are made.
I remind you of your continuing obligations to keep confidential all information that is confidential to the Company and/or its clients. Please see attached relevant excerpts from your contract of employment. If you have any questions or concerns, please don’t hesitate to contact me. We wish you all the best in your future endeavours.
Yours sincerely
Fernando Rombola
On behalf of Rombola Family Farms Pty Ltd”
Mr Wood gave evidence that immediately after providing the Applicant with the termination letter, she began deleting files on her computer and tearing up papers and throwing them into the rubbish bin. Mr Wood said she continued to delete computer files despite a direction not to do so. As a result, he felt it necessary to supervise her while she packed up her personal belongings and left the building.
It was the Applicant’s case that there were ‘obstructions’ which affected her ability to perform her role, which included an unusually large volume of audits, harvest preparations, issues with having to assist employees at other sites owned by the Respondent, all of which affected her workload.
In relation to the emails to the Applicant between 11 February and 23 April 2024, the Applicant said there were valid reasons for why issues had arisen, and she was not offered any support or assistance when she raised concerns about the HR team’s workload. The Applicant in her evidence said she had no recollection of any meeting on 11 February 2024 that was referenced in the warning letter and the Respondent had “started a campaign of sending emails that they could use to justify the written warning”.
In relation to the 23 April meeting, the Applicant said she did not receive sufficient particulars in relation to the performance concerns to be able to prepare a full and proper response. Further, the time of the meeting changed from the morning to the afternoon, and she felt pressured to proceed with the meeting at the end of the day. The Applicant said she chose not to sign the warning letter as she felt the information contained in the letter was not an accurate representation of what was going on.
The Applicant disagreed with the statement that the Respondent was committed to providing the necessary resources and support to her. She said she experienced a “massive increase in workload” in 2024 because of the harvest season and unusual auditing requirements. She contended that some of the work she had been asked to do involved a duplication and double handling of information, and she understood from the meeting on 23 April that project updates in the ‘z drive’ would no longer be required.
In terms of ‘workflows’, she said there were constant errors that were the responsibility of the IT department to fix. She also said that undertaking inductions regularly took the whole day rather than the two hours that was allocated for this task.
The Applicant gave evidence that there were no follow up meetings or discussions after she received the written warning on 23 April until the meeting on 27 June when her employment was terminated. In relation to the termination meeting, the Applicant said the only time she was asked if she had anything to say was at the end of the meeting, after she had received the termination letter.
In summary, the Applicant considered that the Respondent had provided a false and misleading version of events, that her dismissal was unjust in that the performance allegations were untrue and unreasonable, and that the decision to dismiss her was predicated on a false assertion that the Applicant had been given opportunities to improve on those performance concerns.
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 her 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 her 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.
The emails to the Applicant outlined earlier, as well as the warning letter, set out the performance expectations of the Applicant. The matters of concern were clearly within the scope of her job description. I accept the evidence of the Respondent that she did not adequately address the concerns that were communicated to her regarding her work performance.
I do not consider there is a basis for finding that the expectations were unreasonable in the circumstances, given the contents of the position description and the evidence of Mr Wood that he had previously performed the role himself to the standard required.
There is no evidence to suggest the matters raised by the Respondent were anything other than genuine. I reject the Applicant’s assertion that she was subjected to a campaign of emails that were used for the purpose of justifying a written warning and her subsequent dismissal.
It is clear that the Applicant did not accept that she was underperforming. However, having fully considered all the evidence, I accept that her work performance fell short of the Respondent’s expectations, and those expectations were not unreasonable. These matters in my view support a finding that there was a valid reason for her 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 her dismissal was effected.
There is no dispute that the Applicant was notified of the reason for her dismissal in the form of the termination letter, that being she had not addressed the performance concerns that had been raised with her. I am satisfied that she was given an opportunity to respond to the performance matters that resulted in her dismissal.
The performance expectations were detailed in the written warning and other emails to the Applicant, and she was given an opportunity to respond at the time the warning was issued.
I do not accept the Applicant’s assertion that she was not provided with examples or explanations as to why her performance did not meet the Respondent’s requirements. I am satisfied that the Respondent, through the emails and the written warning, provided her with sufficient particulars for her to be able to understand and respond to the issues raised.
Overall, I am satisfied on the evidence before me that the Applicant was notified of the reason for her 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 specifically invited to bring a support person to the meeting which led to the written warning and the termination of her employment.
The Applicant contended that the change in time for these meetings deprived her of an opportunity to have her preferred support person. I am not satisfied, however, that the Applicant was denied a support person, which is what this criterion is directed to.
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 given warning in writing, and that the requirements of this subsection were met. Further, the emails and the evidence of Mr Wood, which I accept, show that the Applicant was offered support and assistance during the relevant period.
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 her relatively short length of service. I do not consider there are other relevant matters to be taken into account.
Conclusion
Having carefully considered each of the required matters, I am not satisfied that the Applicant has discharged her onus of demonstrating that her 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. As a result, this application is dismissed.
DEPUTY PRESIDENT
Appearances:
P Mushayabasa on her own behalf.
A Wilson of Counsel for Rombola Family Farms Pty Ltd.
Hearing details:
2024.
By video:
October 9.
[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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