Robert Schade v Transend Networks Pty Ltd

[2013] FWC 873

[2013] FWC 873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Schade
v
Transend Networks Pty Ltd
(U2012/12004)

COMMISSIONER GOOLEY MELBOURNE, 8 FEBRUARY 2013

Application for unfair dismissal remedy.

[1] Mr Robert Schade (the Applicant) was employed by Transend Networks Pty Ltd (the Respondent) from 11 August 2008 until his employment was terminated on 31 July 2012.

[2] The Applicant lodged an application for relief pursuant to section 394 of the fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed.

[3] Mr Ben Green was given permission to appear for the Applicant and Ms Audrey Mills was given permission to appear for the Respondent.

[4] Mr Schade gave evidence on his own behalf and Mr Martin O’Bryan, the Manager Protection and Control and Ms Sharyn Daniels a Workplace Relations Advisor gave evidence for the Respondent.

Jurisdiction of the Fair Work Commission

[5] There is no dispute that the Applicant is a person who was protected from unfair dismissal. The Fair Work Commission has the jurisdiction to determine the application.

The reasons for the termination of the Applicant’s employment

[6] On 28 March 2012 the Applicant was advised that an independent review of his performance concluded that the Applicant’s performance and conduct did not meet the required standard of a Senior Technical Officer and he was provided with a first warning and a summary of the independent review. A formal twelve week performance management process was then put in place.

[7] On 22 May 2012 a further meeting was held and the Applicant was advised that his performance had not improved to the level required of Senior Technical Officer and he was given a final warning on 7 June 2012. On 13 July 2012 the Applicant was given a further final warning. On 31 July 2012 the Applicant was provided with a letter of termination which advised that his employment was to be terminated that day because his performance was still unsatisfactory. He was paid five weeks pay in lieu of notice.

[8] The reasons for the termination were:

(a) inability to demonstrate being able to work autonomously to deliver the standard of work required by a Senior Technical Officer - Protection and Control

(b) not accepting personal accountability to deliver work in a timely manner and being accountable for the work outputs

(c) tasks completed contain inaccuracies or errors which necessitate additional rework and effort (often from others)

(d) not demonstrating work practices and understanding of the power system to the standard of a Senior Technical Officer - Protection and Control

The evidence of the Applicant

[9] The Applicant had worked in the electrical industry since 1979 and had worked at senior levels. 1

[10] In 2008 he commenced with the Respondent as a Senior Technical Officer. He successfully passed his probationary period and received a pay increase after his first yearly performance review. 2

[11] In 2010 the Applicant did not receive a pay increase. 3 At this time the Applicant’s team leader was Mr Nick Theodoropoulos and Mr Martin O’Bryan was the Protection and Control Manager.

[12] The Applicant could not recall Mr Theodoropoulos raising any issues with his performance in 2010 or 2011. In mid 2011 Mr Theodoropoulos offered him an Acting Team Leader position for five weeks but Mr O’Bryan vetoed this appointment. 4

[13] In late 2011 the Applicant placed a piece of foam under another employee’s keyboard as a “joke” about the employee bashing his keyboard loudly. The employee raised this with Mr O’Bryan who told the Applicant “what goes around comes around.” 5

[14] The Applicant found Mr O’Bryan’s statement threatening. 6

[15] In December 2011 the Applicant met with Mr O’Bryan who criticised the Applicant’s performance. He referred to the Applicant’s attitude, lack of ability to work autonomously and inflexibility. The Applicant said he was surprised by this criticism. 7

[16] Mr O’Bryan wanted to meet with the Applicant each day at 4.45pm. The Applicant told Mr O’Bryan that he finished work at 4.30pm and he wanted to leave on time because of his family responsibilities. 8 Mr O’Bryan questioned him about this and the Applicant said Mr O’Bryan’s tone was berating and his manner demeaning.9 As a consequence, he left the meeting. He sent Mr O’Bryan an email about his concerns. He accused Mr O’Bryan of constant harassment and goading.

[17] In December 2011 the Applicant arranged for a business support officer to have a crack in his work vehicle windscreen repaired. He said to her at the time “it might have been you” as though she was responsible for the damage to the windscreen. 10

[18] Either the business support officer complained to Mr O’Bryan or Mr O’Bryan overheard the comment as the incident was included in the document provided to the Applicant on 20 January 2012 outlining issues with the Applicant’s employment. 11

[19] That document raised issues with his work performance. The document raised five areas and gave examples of each. They were:

• Misrepresenting the truth and failure to be open in [his] communications



• Inappropriate behaviour in the workplace



• Failure to properly undertake duties in respect of SCADA audit



• Failing to seek clarification when issues arise to enable them to be quickly resolved



• Failure to take up training opportunities and a lack of positive attitude to learning where challenges are embraced and not avoided 12

[20] The Applicant responded in writing to these issues. 13

[21] A meeting was held on 25 January 2012 to discuss these issues. The Applicant denied saying that the issues raised about his conduct were frivolous or that he believed there were no work performance issues. 14

[22] On 2 February 2012 the Applicant received a letter from the Respondent in which he was advised that the Respondent had agreed to appoint an independent person to report on the complaints and if the outcome of that investigation was that his conduct was inappropriate and that his performance was unsatisfactory, he would be required to participate in a formal performance management process and a formal warning would be placed on his file. 15

[23] The Applicant replied to that letter on 3 February 2012. On 7 February 2012 the Applicant says he was given a choice of a formal warning and performance management or an independent review. He chose the independent review. 16

[24] The Applicant was interviewed twice by Mr Terence McCarthy who was the independent investigator.

[25] On 28 March 2012 the Applicant received a letter from the Respondent advising him that the work performance issues had been proved and he was required to participate in a twelve week performance management process. The letter was also his first warning. 17

[26] The Applicant was then placed on a twelve week work plan. He had some concerns about the plan and he sent an email to Ms Daniels outlining his concerns. 18 Because the work plan said that he was to only contact Nick or Martin if he had any difficulties with the work he formed the view that he was required to complete all the tasks himself.19

[27] He considered that the time lines on the work plan were tight and that it was often difficult to predict times in advance and at times there were faults that required attention that were not accounted for in the work plan. Also the work plan required him to perform work he had not done before. 20

[28] He requested more time to complete some of the tasks and was in regular communication with Mr Theodoropoulos about these issues. He said Mr Theodoropoulos agreed with him about needing extra time but Mr Theodoropoulos would deny agreeing in meetings. 21

[29] In his view he would have needed to work twelve hour days including weekends and Easter to complete the work plan. 22

[30] The Applicant attended meetings with Mr O’Bryan and Mr Theodoropoulos to discuss his progress. He felt that he was being grilled in these meetings and he did not consider he was given a fair opportunity to respond. 23

[31] Meetings were held on 23 April, 27 April, 11 May, 22 May, 19 June, 17 July and 18 July 2012.

[32] The Applicant contended that the minutes of the meetings kept by the Respondent were inaccurate. 24

[33] The Applicant contended that the work plan was not adjusted to take into account annual leave and personal leave. 25

[34] The Applicant was criticised for his report writing. He said that his report writing had not been criticised in his other jobs. He also said he had received no training or detailed instruction about how to complete reports. Despite Mr Theodoropoulos saying he would help the Applicant with this, he did not do so. 26

[35] On 30 May 2012 Mr Rodney Burles, the Applicant’s union organiser, wrote to the Respondent about the work plan. That letter complained that the weekly meetings had not been occurring and that the meetings that had occurred were scheduled outside of working hours. Further Mr Burles complained that the records of the meetings omitted the Applicant’s statements or misrepresented them. 27

[36] On 4 June 2012 Mr Nicholas Ross, the Manager People Strategy & Performance, replied to Mr Burles. He advised that the meetings were held during ordinary working hours and that the Applicant was given an opportunity to comment on the minutes and he had not done so. He said that formal and informal meetings were occurring in line with the work plan and that the work plan was adjusted to take account of leave, training and any additional time required to complete tasks due to unexpected events or if he required additional time or support to complete the tasks. 28

[37] At some time in June 2012 the Applicant told the Respondent that he would accept a demotion to Technical Officer in order to retain his employment.

[38] On 7 June 2012 the Applicant received a final warning. That letter advised that his performance was not at the standard required of a Senior Technical Officer. He was advised that the 12 week plan would be extended to take into account any personal leave he took. It also advised him if significant improvement was not achieved by the end of the twelve weeks, his employment may be terminated. 29

[39] On 13 July 2012 the Applicant received another final warning. 30 The Applicant replied to that letter and he denied that any of his fellow team members had any issues with his performance and that it was Mr O’Bryan who had “waged a constant campaign against [him] since [his] arrival.” He accused Mr O’Bryan of “an orchestrated campaign of bullying and harassment.”31

[40] On 31 July 2012 the Applicant’s employment was terminated.

[41] The Applicant denied he was ever provided with a mentor to assist him though he acknowledged that Mr Steve Curtis went on jobs with him and he was a valuable source of information for him. 32

[42] In cross examination the Applicant was questioned about his earlier performance reviews. His performance plan for 2009-2010 identified areas for improvement. 33 The Applicant’s response to this was that this was a fairly standard comment.34

[43] The 2011 performance plan stated that the Applicant had not met technical expectations. In four of the six Key Result Areas the Respondent said the Applicant required development. While the Applicant signed the document he attached a statement which advised that he did not agree or ratify the comments. That document referred to mentoring received by the Applicant from Mr Curtis. 35

The evidence of the Respondent

[44] Ms Daniels gave evidence that issues with the Applicant’s employment were raised in 2011. There is no factual dispute about the process that was then adopted by the Respondent.

[45] It was her evidence that in January 2012 the Applicant expressed the view that a performance review was not warranted and that there was a personal vendetta against him. 36

[46] Ms Daniels says that the Respondent concluded after the review was completed that the Applicant’s performance had not improved significantly and the decision was taken to terminate his employment. 37

[47] Ms Daniels gave evidence that in twelve months prior to the termination of his employment the Applicant had been provided with a mentor and he had also been provided with internal and external training. 38

[48] Mr McCarthy’s report was attached to Ms Daniels’ statement. Mr McCarthy had been recommended by the Applicant’s ETU organiser as an appropriate person to conduct the review. Mr McCarthy’s report addressed behavioural issues as well as performance issues. He found on the balance of probabilities that the allegations were substantiated. That report noted that “until recently [the Applicant] [was] not aware of his work performance shortcomings. This demonstrates a certain lack of self-awareness, but also a failure on the part of his immediate and past supervisors to call him to account.” 39

[49] Ms Daniels’ exhibited copies of the minutes of the work plan meetings. 40 While the Applicant disputed the accuracy of the minutes, both Ms Daniels and Mr O’Bryan attested to their accuracy.41

[50] Mr O’Bryan gave evidence that he had concerns about the Applicant’s performance and he proposed the Applicant be placed on a formal performance review process. 42

[51] Mr O’Bryan formed the view when the Applicant was working in the electrical laboratory that he was having difficulty in learning and picking up skills. 43 It was decided to take him out of this role and bring him into Mr O’Bryan’s office where he was required to work under his team leader’s supervision and Mr O’Bryan’s supervision.44

[52] Mr O’Bryan met with the Applicant in July 2011 to discuss performance issues. He wanted to set up a regular meeting time with the Applicant because there were deadlines to be met on the project and other team members were being held up because the Applicant was not completing work. 45

[53] Mr O’Bryan wanted to meet at 4.45pm. He agreed that the Applicant told him that he had difficulties with this time. He denied asking the Applicant what his family responsibilities were. He explained to the Applicant that as he was busy this was the most convenient time to meet. He did ask the Applicant if he had some flexibility about the time. He said the Applicant became angry and walked out of the meeting. 46

[54] Mr O’Bryan met with the Applicant in late 2011 to discuss his 2011 review. He did this because he had written comments on that review that he considered were fairly serious and he considered it appropriate that there be a face to face meeting to discuss the review. 47 The evidence of the Applicant and the Respondent differ about what occurred at this meeting. I accept that it was at this meeting the dispute about the timing of the meeting occurred and the Applicant’s family responsibilities and not at the meeting in July 2011. However I accept Mr O’Bryan’s evidence that on two occasions he sought to discuss the Applicant’s performance with him and those discussions were unsatisfactory.

[55] Mr O’Bryan said that the Applicant became angry in this meeting and left this meeting as well. It was his evidence that in both these meetings Mr O’Bryan’s demeanour was professional. 48

[56] Mr O’Bryan was involved in developing the work plan as was Mr Theodoropoulos and Mr Curtis. 49 Mr Curtis was a contractor to the Respondent who was a leading expert in the SCADA field in Tasmania.50

[57] Mr O’Bryan said that Mr Curtis acted as a guide and mentor to the Applicant for the previous twelve months. This had been organised by Mr O’Bryan and Mr Theodoropoulos because they recognised that the Applicant was struggling to pick up the technical parts of the role. 51

[58] It was Mr O’Bryan’s opinion that the work in the work plan was work that the Applicant could do. In response to the contention that the Applicant’s call out work showed that he could work autonomously, he accepted that the Applicant did call outs. It was his evidence that the Applicant could solve simple problems but if the problems were more complex he couldn’t and needed to discuss the problems with other staff and contractors. 52

[59] It was his evidence that the Applicant should have been able to meet the time lines in the work plan as they had included a buffer of 20% additional time into the time line to ensure it was fair. 53

[60] It was his evidence that the Applicant was given assistance in writing reports. 54

[61] Mr O’Bryan explained that during the work plan the Applicant was directed that if he required assistance he was to contact Mr Theodoropoulos or himself. This was done because one of the issues about the Applicant’s performance was that he was very dependent on other staff and contractors and as they were trying to assess the Applicant’s capabilities they needed to know if he required assistance from others. 55 This was explained to the Applicant.

[62] Mr O’Bryan was cross examined on aspects of the work plan and the work performed by the Applicant during the work plan. I do not intend to canvass that evidence in detail only to say that Mr O’Bryan maintained that the tasks required of the Applicant during the work plan period were not complex, that the Applicant was given sufficient time to complete the work and his work was not up to standard expected of a Senior Technical Officer.

Was the termination of employment harsh, unjust or unreasonable?

[63] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[64] The Applicant’s employment was terminated for poor performance.

[65] The Applicant submitted that there was not a valid reason for the termination of his employment.

[66] The Applicant submitted that the evidence did not support the reasons for the termination set out in the letter of termination.

[67] The Applicant submitted that over the period of the work plan the Applicant showed improvement in relation to the ground set out in [8](b) above.

[68] The Applicant submitted that at each review meeting there was an agenda item headed “deliver on promises, Take personal accountability for outcomes.” It was submitted that this related to the complaint raised in [8](b) above. After the first meeting, at each meeting the first component of this measure was assessed as okay. At the second and third meetings there were concerns expressed about missed deadlines and failure to comply with time frames. At the meeting on 22 May 2012 the minutes disclose that the issue of personal accountability was raised again but at the 19 June 2012 meeting it was found that he was meeting this criterion to Senior Technical Officer standard and at the 17 July 2012 meeting no significant issues were raised. 56

[69] Mr O’Bryan had acknowledged in cross examination that there had been some improvement in this area. 57 In cross examination Mr O’Bryan said that the matters raised in [8](b) above were broader than this agenda item because it went to timeliness of work.58

[70] The Applicant rejected this description and submitted that the finding was inconsistent with the records of the work plan meetings. 59

[71] Further the Applicant submitted that the Respondent relied on incorrect information about the Applicant’s work performance. The Applicant’s denied that items 10, 11 and 14 were not completed because of lack of time. It was his evidence that item 10 was not work of a Senior Technical Officer and his team leader agreed that he was not to perform the work. 60

[72] The Applicant gave evidence that he commenced item 14 but found that someone else was already performing this task. It was submitted that Mr O’Bryan understanding about his job was wrong. 61

[73] The Applicant submitted that even if the Applicant had not completed the jobs allocated to him in the work plan the time frames were unreasonable. 62

[74] The Applicant submitted that the reasons set out in [8](a), (c) and (d) raise issues about the Applicant’s technical skills. It was submitted that the Applicant did call outs and this required him to work autonomously. It was accepted that his work did contain errors but those errors were not significantly greater or worse than those of other employees. 63 No evidence was called by the Applicant to support this contention.

[75] The Applicant submitted that his work reports were comparable to that of his colleagues. 64

[76] It was submitted that regard should be had to the Applicant’s work history and the fact that criticism of his performance with the Respondent commenced after two years in the job. 65

[77] It was also submitted that Mr O’Bryan had a propensity to find fault with the Applicant. The Applicant relied upon Mr O’Bryan’s response to incidents with two other colleagues to demonstrate this. The Applicant had made comments to these two employees which upset them at the time they were made. The Applicant’s excuse was that he was only joking and he apologised to both employees who accepted the apology and did not make a formal complaint. Mr O’Bryan did not talk to the Applicant about these incidents before he escalated the matter. 66

[78] The Respondent submitted that contrary to the submissions of the Applicant there had been performance issues raised in the Applicant’s performance reviews from his first review. 67

[79] During 2010 the Applicant was provided with a mentor to assist him. 68 In November 2011 further issues were raised with the Applicant in his performance review.69

[80] In addition Mr O’Bryan raised issues with the Applicant about his SCADA work in July 2011. 70

[81] It was submitted that the Applicant lacked insight into these performance issues. It was submitted that this is supported by his reaction to criticisms by Mr O’Bryan in July and November 2011 and his unwillingness to accept that he needed to participate in a work plan in 2012. Even after the independent review undertaken by a person recommended by his union found that there were issues with his performance he was unwilling to accept that there were issues with his performance. 71

[82] The Respondent rejected the contention that the Applicant was being targeted by Mr O’Bryan. 72

[83] The Respondent submitted that the Applicant failed to perform to the required standard. It was submitted that the minutes of the work plan meetings identified a number of errors and matters not completed. It was submitted that Mr O’Bryan’s evidence should be accepted not only because he was an experienced engineer but because his assessment was supported by Mr Theodoropoulos and Mr Curtis. 73

[84] I accept the evidence that the issues related to the Applicant’s employment were not recent inventions. Some of these issues were identified in the Applicant’s performance reviews. Unfortunately the Applicant did not understand the message these reviews were sending him. In cross examination the Applicant advised that he saw the comments as fairly standard comments. 74 He did not see them as a criticism of his work. I accept the evidence of Mr O’Bryan that the Respondent arranged for Mr Curtis to work with the Applicant to improve his skills. I accept that the Applicant was not told that this was the reason but he did accept that he found working with Mr Curtis beneficial.75

[85] I do not accept the submissions that Mr O’Bryan had a propensity to view the Applicant negatively. That Mr O’Bryan escalated what he saw was inappropriate behaviour to a higher level in circumstances where the employees concerned did not want to make a formal complaint is not evidence of any ill will towards the Applicant. There are many reasons why employees do not make formal complaints against fellow employees. There are circumstances where an employee’s “joking” behaviour may offend others. While the offended employee may accept the apology, that does not turn unacceptable behaviour into acceptable behaviour.

[86] I am unable to conclude from this evidence that Mr O’Bryan’s judgement about the Applicant’s work is tainted by any personal animosity towards the Applicant.

[87] While Mr Theodoropoulos and Mr Curtis were not called to give evidence both Ms Daniels and Mr O’Bryan gave evidence that the assessment of the Applicant’s performance was not done by Mr O’Bryan alone. 76

[88] Problems were identified with the Applicant’s performance in his 2010 and 2011 reviews. This is not the case of an employee who has been performing the role satisfactorily who, when a new manager is appointed, is then assessed as unsatisfactory.

[89] While I accept that there were some errors in the assessment of the work performed by the Applicant during the work plan, I also accept that what occurred was an overall assessment of the Applicant’s skills. I am unable to find that the times for the tasks in the work plan were unreasonable or that the expectations of the Respondent were unreasonable.

[90] I accept the evidence of the Respondent that the Applicant was not able to perform the role of Senior Technical Officer. That is a valid reason for the termination of his employment.

s387(b) whether the Applicant was notified of that reason;

[91] The Applicant submitted that he was not told of the reasons for the termination of his employment prior to the decision being made. This submission was made because the reasons set out in termination letter were not previously put to the Applicant. It was submitted that the reasons are so vague that the Applicant could not respond.

[92] I do not accept these submissions.

[93] At the meeting on 18 July 2012 Ms Daniels advised the Applicant that he had not performed to the standard of a Senior Technical Officer and this may lead to the termination of his employment. She referred to the minutes, conversations and previous correspondence to support this conclusion. 77

[94] While the Applicant denied receiving the documents attached to the minutes at the meeting of 18 July 2012 at the meeting, the minutes of the meeting make it clear that the matters set out in the attachments were discussed at the meeting. Further those documents were forwarded by email to the Applicant on 27 July 2012. 78

[95] While the language in the letter of termination is expressed differently to the language used in the work plan meetings, there can be no doubt that the Applicant was notified of the reasons for dismissal before the decision to terminate his employment was made.

s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[96] The Applicant submitted that he was not provided with an opportunity to respond. 79 I do not accept that the Applicant was ambushed at the work plan meetings. He knew that the purpose of the meetings was to review his performance. Further the Applicant had the opportunity and took the opportunity to respond to what he saw as inaccuracies in the record.

[97] I do not accept that the matters raised in the work plan meetings were broad and vague criticism. The minutes disclose that specific criticisms were made of the Applicant’s performance. While the Applicant rejected many of these specific criticisms, the Respondent disagreed with the Applicant’s assessment.

[98] It was submitted that the Applicant did not know that he only had until 31 July 2012 to respond. In fact the minutes of the 18 July 2012 meeting disclose that the Applicant was advised that he had an opportunity to respond to the matters raised. At that time the next meeting was scheduled for 27 July 2012. It is inconceivable, given work plan review had been concluded, that the Applicant did not know that a decision was to be made about his employment. In fact the minutes disclose that at that meeting the Applicant asked if he was going to be sacked. He was advised that “the focus was on finalising the outstanding matters. SD advised RS that RS had not performed to the standard of a STO through the review and this may lead to termination.” The Applicant was told he could respond to any outstanding issues.

[99] The meeting of the 27 July 2012 was postponed to 31 July 2012.

[100] I find that the Applicant was given an opportunity to respond to the reasons related to his capacity.

s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;

[101] The Applicant submitted that due to the scheduling of the meetings, and in the case of the first meeting, because he did not know what was to occur, he did not have a support person with him. This submission misunderstands the criterion. The Applicant was not refused the opportunity to have a support person present and in fact did have representation at some of the meetings. There is no evidence to suggest that the Applicant asked for meetings to be rescheduled so that he could have a representative present and that was refused.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether the Applicant had been warned about that unsatisfactory performance before the dismissal;

[102] The Applicant submitted that he was not warned about “that” unsatisfactory performance. I do not accept the submissions of the Applicant that the performance issues were not raised with any specificity. This is not a case of a mere exhortation for the employee to improve his or her performance. 80

[103] The Respondent had identified issues in the performance reviews and provided the Applicant with training and assistance. While the Applicant did not know the motivation of the Respondent in having Mr Curtis work with him, I accept the evidence of Mr O’Bryan that this occurred to assist the Applicant develop the skills he needed for the job.

[104] The Respondent conducted an independent review of the Applicant’s claim that he was the victim of an unfounded negative assessment by Mr O’Bryan. That report acknowledged that the Applicant had not been provided with accurate feedback about his performance by his team leader.

[105] The Respondent put in place a detailed work plan which set out the Respondent’s expectations.

[106] Throughout the work plan the Respondent provided feedback to the Applicant about his work performance. The Applicant received formal advice that his work was not up to standard and while those letters were general in nature that work plan meetings addressed the deficiencies in his performance in greater detail as is evidenced by the minutes.

[107] I find that the Applicant was warned about his unsatisfactory performance before the dismissal.

s387(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;

[108] The Respondent is a large government business enterprise and the Applicant submitted that it should not be excused of any shortfalls in its process.

[109] The Applicant submitted that the Applicant’s work performance was commended after his first year and “at least tolerated without significant comment or criticism for the next two years.” 81

[110] This submission is supported by the independent review conducted by the Respondent. However this was not a case of an employee’s poor performance being accepted and then without a fair process the employee’s employment was terminated. Mr O’Bryan first sought to discuss the Applicant’s employment in a less formal way in July 2011 and then November 2011. The Applicant did not respond positively to these criticisms. The Applicant then put in place an open and transparent performance management process which involved the Applicant. I do not accept the submission that the process adopted by the Respondent was unfair.

s387(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;

[111] The Respondent had dedicated human resources management specialists so this criterion has no relevance.

s387(h) any other matters that FWA considers relevant.

[112] The Applicant submitted that from 2008 until late 2011 there had only been minor issues with the Applicant’s performance. It was submitted that criticisms raised by the Respondent during the work plan had not previously been an issue. It was submitted that the Applicant was asked to do jobs he had not done before. It was further submitted that the applicant was required to work without his usual supports. It was further submitted that the Respondent did not provide any specific training during this period. Further the Applicant offered to be demoted.

[113] I had regard to many of these matters in considering whether there was a valid reason for the termination of the Applicant’s employment.

[114] The Applicant offered to accept a demotion. However he accepted that he was advised that there was no vacancy for a Technical Officer at the time. 82 No evidence to the contrary was provided by the Applicant. I am therefore unable to have regard to any failure of the Respondent to redeploy the Applicant.

[115] I have had regard to the Applicant’s length of service with the Respondent however his length of service does not cause me to conclude that the termination of his employment was harsh, unjust or unreasonable in all the circumstances.

[116] I have had regard to the role occupied by the Applicant. The Applicant was employed as a Senior Technical Officer. The Applicant was required to provide “specialist technical expertise.” 83 That the Applicant was not able to perform at this level was supported by the evidence considered by the Respondent.

Conclusion

[117] There was a valid reason for the termination of the Applicant’s employment. The Respondent made an assessment of the Applicant’s performance after a detailed review of the Applicant’s performance and having put the Applicant on notice that the Applicant was not performing to the standard required of a Senior Technical Officer. The Applicant was afforded procedural fairness. There are no other matters which would lead me to conclude that the termination of employment was harsh, unjust or unreasonable. The application is dismissed.

COMMISSIONER

Appearances:

B Green for the Applicant.

A Mills for the Respondent.

Hearing details:

2012.

Hobart:

10 December.

 1   Exhibit A1 at [1]-[4]

 2   Ibid at [16]-[19]

 3   Ibid at [27]

 4   Ibid at [31]-[32]

 5   Ibid at [40]-[42]

 6   Ibid at [43]

 7   Ibid at [44]-[45]

 8   Ibid at [46]

 9   Ibid at [47]

 10   Ibid at [52]-[54]

 11   Ibid at [55]-[60]

 12   Exhibit R5 at attachment 1

 13   Ibid

 14   Exhibit A1 at [63]-[65]

 15   Exhibit R5 at attachment 1

 16   Exhibit A1 at [69]

 17   Ibid at [75]

 18   Exhibit R5 at attachment 11

 19   Exhibit A1 at [84]

 20   Ibid at [85]-[91]

 21   Ibid at [92]

 22   Ibid at [97]

 23   Ibid at [98]-[100]

 24   Ibid at [102]-[105]

 25   Ibid at [108]

 26   Ibid at [109]-[112]

 27   Exhibit R5 at attachment 8

 28   Ibid at attachment 9

 29   Ibid at attachment 10

 30   Ibid at attachment 11

 31   Ibid at attachment 12

 32   Transcript PN 91

 33   Exhibit R2

 34   Transcript PN 171

 35   Exhibit R3

 36   Exhibit R5 at [4]

 37   Ibid at [19]

 38   Ibid at [21]

 39   Ibid at attachment 4

 40   Ibid at attachment 7

 41   Exhibit R9 at [6]

 42   Ibid at [4]

 43   Transcript PN 719

 44   Ibid

 45   Ibid PN 733

 46   Ibid PN 735-740

 47   Ibid PN 745

 48   Ibid PN 746-747

 49   Ibid PN 749

 50   Ibid PN 750

 51   Ibid PN 751-754

 52   Ibid PN 763

 53   Ibid PN 774

 54   Ibid PN 779-781

 55   Ibid PN 800

 56   Final Submissions of the Applicant at [7]

 57   Transcript PN 1093

 58   Ibid PN 1098

 59   Final Submissions of the Applicant at [7](d)-(e)

 60   Ibid at [8](a)

 61   Ibid at [8](d)-(g)

 62   Ibid at [9]

 63   Ibid at [10]-[12]

 64   Ibid at [12]

 65   Ibid at [13]

 66   Ibid at [14]

 67   Final Submissions of the Respondent at [6]-[8]

 68   Ibid at [11]

 69   Ibid at [12]

 70   Ibid at [13]

 71   Ibid at [17]-[20]

 72   Ibid at [22]-[28]

 73   Ibid at [30]

 74   Transcript PN 171

 75   Ibid PN 173

 76   Ibid PN 813, PN 1095, PN 1104 and PN 637

 77   Exhibit R5 at attachment 7

 78   Exhibit R12

 79   Final Submissions of the Applicant at [22]-[29]

 80   Fastidia Pty Ltd v Goodwin Print S9280 at pn 44

 81   Final Submissions of the Applicant at [37]-[39]

 82   Transcript PN 319

 83   Exhibit R5 at attachment 1A

Printed by authority of the Commonwealth Government Printer

<Price code C, PR533891>