Ross Cottee v State Trustees Ltd T/A State Trustees

[2011] FWA 7901

[2011] FWA 7901

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Cottee
v
State Trustees Ltd T/A State Trustees
(U2011/7447)

DEPUTY PRESIDENT IVES MELBOURNE, 17 NOVEMBER 2011

Termination of employment.

[1] This decision relates to an application pursuant to s.394 of the Fair Work Act 2009 (the Act), by Mr R. Cottee (the Applicant) alleging that the termination of his employment on 18 April 2011 by State Trustees Ltd T/A State Trustees (the Respondent) was unfair within the meaning of s.385 of the Act.

[2] The matter proceeded by way of hearing on 8, 9 and 23 September 2011.

[3] Evidence, both written and oral, was adduced from the following persons:

• The Applicant;



• Dr. E. Cole, Psychiatrist, for the Applicant;



• Mr P. Sier, Union Delegate, for the Applicant;



• Mr G. Beckman, Lead Organiser of the Community and Public Sector Union (CPSU), for the Applicant;



• Mr C. Morrison, Senior Advisor - People and Culture, for the Respondent;



• Ms G. Theodoris, Manager - Personal Financial Solutions, for the Respondent.

The background

[4] At the time of termination of his employment the Applicant was employed by the Respondent in the Personal Financial Solutions division of State Trustees. The Applicant had been initially employed on 13 June 2006 in the role of Pension Assistant.

[5] The Applicant suffers, and continues to be treated for, an acquired brain injury (ABI) that he sustained in an accident in 2003. The Respondent was aware of his ABI at the time the Applicant was employed.

[6] The Applicant had demonstrated competency in the role of Pension Assistant and was as a consequence promoted to the position of Pension Consultant on 9 January 2008.

[7] After the Applicant had been employed for some months in the role of Pension Consultant, the Respondent formed the belief that the Applicant was experiencing difficulties performing to the standard required of the role.

[8] Given these concerns, on 22 September 2008, the Applicant was offered and accepted the role of Team Assistant within the Personal Financial Solutions Division. The Respondent believed the role of Team Assistant would better suit the Applicant’s capabilities. His rate of pay was maintained at the higher level of Pension Consultant. 1

[9] After some time in the role of Team Assistant, the Respondent formed a view that the Applicant was experiencing difficulty meeting performance requirements. In March 2009 the Applicant was offered reduced part-time hours to assist him in dealing with difficulties experienced in this role. The Applicant declined the offer.

[10] On 10 September 2009 a formal performance discussion was held with Ms Josie Brown, Manager of the Customer Contact Centre of Personal Financial Services to discuss concerns about a serious work error. A written ‘first stage warning’ was given to the Applicant. 2

[11] In the period that followed the warning, the Respondent took various measures to assist the Applicant in improving his performance.

[12] The measures included:

• Reducing the number of tasks the Applicant was required to perform as part of his role;



• Providing further training;



• Engaging with the Applicant’s occupational therapist;



• Liaising with the Applicant’s treating psychologist, Dr Ed Theologis, to obtain advice on how to best support the Applicant in his role;



• Allocating a Senior Assistant to check the Applicant’s completed work;



• Holding regular performance discussions with the Applicant to provide feedback;



• Holding a weekly meeting between the Applicant, his occupational therapist and his team leader and manager; and



• Providing the Applicant with each Friday off for eight weeks in order to attend an ABI program. 3

[13] Dr Theologis recommended that additional work breaks be implemented into the Applicant’s daily work schedule, including a 30 minute mid-morning break and a 90 minute lunch break. The Respondent accepted and implemented these recommendations. 4

[14] The Applicant at times chose not to take the breaks recommended by Dr Theologis, despite the Respondent’s highlighting the importance of taking them. 5

[15] The Applicant later withdrew his consent for the Respondent to liaise with Dr Theologis in relation to his employment.

[16] After determining that insufficient improvement had occurred in the Applicant’s performance, the Respondent sent a letter dated 22 June 2010 to the Applicant that contained an offer to return to his previous position of Pension Assistant at the rate of pay of Pension Assistant. The Applicant, in his evidence states that he ‘did not take the job as it was less money because I believed I was doing a good job.’ 6It is noteworthy that the rate of pay offered was consistent with what his pay rate would have been as a Team Assistant had he not retained the Pension Consultant rate. 7

[17] The Applicant was aware that, if he was to remain in the role of Team Assistant, he would be required to meet the performance expectations of this role and his performance was to be monitored. 8

[18] On 22 August 2010 a formal performance discussion was held with the Applicant. A formal ‘first warning’ was issued to the Applicant on 27 August 2010. The warning referred, in particular, to ‘failing to complete allocated work within expected time frames, in that you completed on average, approximately 40 per cent of work allocated to you each day, over a three week period.’ 9The warning also included an ‘Action Plan’ detailing the Respondent’s expectations of the Applicant in relation to his role.

[19] On 21 December 2010 and 7 January 2011, meetings were held to review the Applicant’s performance. On 10 January 2011 the Applicant was issued with a ‘final warning’.

[20] The Applicant’s performance continued to be monitored following this warning.

[21] On 8 April 2011 a meeting was held to discuss further concerns about the Applicant’s performance. The Applicant attended with Ms Kathleen Hughes of the CPSU. Performance concerns raised at the meeting were put in writing at the request of the Applicant.

[22] The concerns included that over a four week period from 22 February 2011 to 23 March 2011 the Applicant completed 88.1 per cent of tasks allocated to him. The Respondent’s expectation was that 100 per cent of work allocated daily was to be completed with a minimum accuracy rate of 96 per cent, 10 according to the ‘Action Plan’ implemented by the Respondent which set out a graduated series of expectations in relation to the ongoing monitoring of the Applicant’s performance.11 The Applicant’s average accuracy over the period was recorded as 91.38 per cent.

[23] On 13 April 2011 the Applicant responded in writing to the performance concerns.

[24] On 18 April 2011 the Applicant attended a meeting with the Respondent, at which the Applicant was advised of the termination of his employment on the following grounds:

‘STL has decided to terminate your employment with immediate effect (18 April 2011) on the basis that your performance has not improved to an acceptable level and that you are unable to perform the inherent requirements of your role.’ 12

Performance related termination

[25] In my view a proper determination of this matter largely turns upon the answer to one, or if necessary, both of the following questions:

• Were the work expectations imposed upon the Applicant by the Respondent reasonable in all the circumstances of his employment?



• In the event that a finding of reasonableness can be made in relation to the above, did the Applicant, to an acceptable degree, meet such expectations?

Were the Respondent’s expectations reasonable?

[26] As has been noted above, after performance first became a concern, the Respondent instituted a range of measures to assist the Applicant in the performance of his duties. Those measures have been previously summarised.

[27] After the institution of those measures, the Respondent indicated to the Applicant that it required him to achieve 100 per cent completion rate of work allocated to him each day. It also expected graduated improvement in the accuracy of the Applicant’s work up to a figure of 96 per cent.

[28] The number of tasks allocated to the Applicant represented a reduction in the variety of tasks allocated to other employees in the same role. 13

[29] I consider that the expectation that 100 per cent of work allocated per day would be completed, subject to unforeseen events, is a reasonable expectation and that the opportunity to progressively improve accuracy rates up to the level specified by the Respondent is also reasonable in the circumstances.

[30] It seems to me to be an unfortunate circumstance that the Applicant revoked the permission of the Respondent to maintain consultation with Dr Theologis to assist in developing a work program that would provide assistance to the Applicant in accordance with his medical needs, and the requirements of his role. It must be noted, however, that in the absence of being able to receive up to date recommendations from Dr Theologis, the Respondent continued to maintain the recommendations previously provided and implemented prior to the revocation of permission by the Applicant.

[31] At all times the Respondent appears to have considered, and, in fact, implemented options to allow the Applicant to cope with the demands of his continued employment. The options include the offer of the role of Team Assistant which the Applicant accepted in lieu of his role of Pension Consultant and the offer of a return to the role of Pension Assistant which the Applicant declined. The latter represents a critical decision of the Applicant as it is perhaps this decision which left the Applicant on the path which, unfortunately, ultimately led to the termination of his employment.

[32] I find that the expectations placed upon the Applicant were, in all the circumstances, reasonable.

Were the expectations met?

[33] I am unable to find any evidence that, on any reasonable assessment, demonstrates that the Applicant met, on an ongoing basis, the expectations of the Respondent in relation to his performance.

[34] Since commencing in the role of Team Assistant, the Applicant was verbally counselled about his performance on not less than five occasions from 10 September 2009 to 8 April 2011 and formally warned about his performance in letters dated 27 August 2010 14 and 10 January 2011.15 Each of the letters provided to the Applicant included an ‘Action Plan’ for ‘moving forward’ that clearly outlined the expectations placed on the Applicant and instituted a requirement that he was to immediately raise any concerns he had in relation to the expectations of his role with his Manager.

[35] The Applicant failed to meet the standards required, and there is no evidence that he raised any concerns about the expectations of his role with his Manager.

[36] The Respondent provided documentation that was the subject of an Order to Produce Documents, that consisted of accuracy and output statistics of the Applicant and two employees engaged in the same role over a particular period of time.

[37] Mr Beckman, on behalf of the Applicant, compiled those statistics into two separate spreadsheets in an attempt to demonstrate that the data does not represent a fair comparison and that the Applicant completed more tasks accurately per week compared to the two employees. 16

[38] The evidence is not supportive of Mr Beckman’s compilation, therefore I do not find it persuasive as an assessment of the Applicant’s performance.

[39] The evidence demonstrates that the Applicant did not meet the performance expectations of the Respondent, nor was his performance commensurate with what one would expect from an employee in a comparable position.

[40] The evidence is, as the Respondent contends, ‘supportive of the conclusion that it was a failure to meet the performance expectations of the employer over a lengthy period and despite the employer’s best attempts to try and remedy that issue.’ 17

The Act

[41] In considering whether a termination of employment is harsh, unjust or unreasonable hence unfair within the meaning of the Act, I am required by s.387 of the Act to take into account the following factors:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.’

Valid reason

[42] Given my finding that the expectations of the Respondent were in all the circumstances reasonable, and that those expectations were not met to an acceptable degree by the Applicant, I find that there was a valid reason for the dismissal. That reason is the Applicant’s continuing failure to perform satisfactorily in his role of Team Assistant.

Advice of reason and opportunity to respond

[43] The Applicant was aware at all relevant times that his performance was being monitored and what the expectations were in relation to his performance. He had received formal warnings on at least two occasions.

[44] The Applicant attended a formal performance management meeting on 8 April 2011 to discuss performance concerns. He received a letter from Ms Theodoris of the same date that confirmed that the Respondent was considering his ongoing employment. The letter states, ‘State Trustees is considering your ongoing employment. We request your response as to why State Trustees should not proceed to terminate your employment on performance grounds.’ 18 The Applicant was also required to explain why he had not completed allocated work in expected time frames and why he had not achieved the expected accuracy rate. The Applicant provided a response to the letter and the questions outlined within it on 13 April 2011.19

[45] There is no doubt therefore that the Applicant was properly notified of the reason for the termination of his employment and provided with an opportunity to respond.

Support person

[46] No issue arose between the parties in respect of whether or not the Applicant was given an opportunity to have a support person present at the meeting of 8 April 2011.

Unsatisfactory performance

[47] The Applicant was issued, as has been recorded above, with warning letters in respect of unsatisfactory performance on 27 August 2010 and 10 January 2011. He also attended formal performance counselling over a period from September 2011 to April 2011.

[48] I am satisfied that the Respondent made all reasonable attempts to warn the Applicant regarding his unsatisfactory performance before the dismissal.

Size of employer and access to human resources expertise

[49] The Respondent is a large employer and had access to dedicated human resources personnel for the duration of the performance management and subsequent dismissal of the Applicant.

Other - Disability Discrimination Act 1992 (Cth)

[50] Mr Beckman on behalf of the Applicant submitted, 20 in essence, that an unfair termination of the Applicant’s employment had occurred on the basis that the Respondent indirectly discriminated against the Applicant on the basis of the Applicant’s disability and in contravention of s.6 of the Disability Discrimination Act 1992 (Cth) (the DD Act).

[51] Section 6 of the DD Act provides as follows:

‘6 Indirect disability discrimination

(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.’

[52] I have made findings above with respect to the reasonableness, in all of the circumstances, of the work performance expectations that were placed upon the Applicant. These findings are fortified by the evidence of the reasonable accommodations and options provided to the Applicant by the Respondent to assist him to cope with the demands placed upon him.

[53] Evidence such as that before me and findings such as those that I have made would be of obvious relevance if they were to occur in response to any action for breach of the DD Act. So much is clear from ss.6(3) of the DD Act.

[54] The Applicant’s competent performance in the role of Pension Assistant and evidence of that role’s similarity to Team Assistant in terms of complexity is likely to be highly relevant to ss.6(4) despite evidence of Dr Cole regarding the Applicant’s inability to perform satisfactorily due to his ABI. 21 I note, in any event that Dr Cole’s evidence was that he would have varied his report with respect to negative comments about measures taken by the Respondent had he been in possession of all the facts with respect to options offered to the Applicant.22

[55] I am unable to find, upon the materials before me that s.6 of the DD Act has been contravened in respect of the Applicant.

[56] Further, I am of the view that a hearing pursuant to the Act relating to an application alleging unfair termination of employment is not the appropriate jurisdiction to fully and properly consider actions for breach of the DD Act in circumstances where an opportunity existed for the Applicant to apply, should he have desired to do so, within the proper jurisdiction.

Conclusion

[57] It is perhaps apposite to comment that in considering the relevant materials before me I have not been able to reach a concluded view as to what the cause of the Applicant’s failure to adhere to the reasonable expectations of the Respondent was. There may have been particular stresses and pressures faced by him that are potentially related to the monitoring processes that impacted his performance. There may have been other factors in play.

[58] It is pertinent, and I have found accordingly, that the Applicant did not meet the inherent requirements of the position. Without more, and notwithstanding Dr Cole’s evidence, it is not possible to say with any assurance that he was incapable of meeting those requirements. This is particularly so in the light of evidence of his previous demonstrated competence in the position of Pension Assistant - an, apparently, not dissimilar position in terms of workload and complexity.

[59] In any event there was a legitimate basis for terminating the Applicant’s employment due to his failure to achieve satisfactory performance standards.

[60] It is adequately demonstrated by the evidence that the Applicant did not perform satisfactorily despite the reasonable, and, in fact, laudable efforts of the Respondent to assist him.

[61] This is not a case where there is either fault or blame. It is perhaps best described as an unfortunate result despite all parties exercising their best efforts.

[62] I find that the Applicant’s employment was not harshly, unjustly or unreasonably terminated hence the Applicant was not unfairly dismissed within the meaning of the Act.

[63] The Applicant’s application is dismissed. An order giving effect to this decision will issue as PR516764.

DEPUTY PRESIDENT

Appearances:

G. Beckman of the Community and Public Sector Union (CPSU) for the Applicant.

R. Millar of counsel, for the Respondent.

Hearing details:

2011.

Melbourne:

September 8, 9 and 23.

 1   Exhibit A3, PN 16

 2   Exhibit R1, Attachment 5

 3   Exhibit R1, PN 11

 4   Exhibit R1, Attachment 6

 5   Exhibit R1, Attachment 7

 6   Exhibit A3, PN 25

 7   Transcript, PN 673-674

 8   Exhibit R1, Attachment 7

 9   Exhibit R1, Attachment 8

 10   Exhibit R1, Attachment 13

 11   Exhibit R2; See also Transcript, PN 1306-1307

 12   Exhibit R1, Attachment 16

 13   Exhibit R1, Attachment 7; See also Transcript, PN 472-479

 14   Exhibit R1, Attachment 8

 15   Exhibit R1, Attachment 12

 16   Exhibit A5, PN 13-17, Attachments D1, D2

 17   Transcript, PN 1786

 18   Exhibit R1, Attachment 13

 19   See Exhibit R1, Attachment 15

 20   Final Submissions on behalf of Applicant, PN 8-20

 21   Transcript, PN 101-104

 22   Transcript, PN 80-88

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<Price code C, PR516763>