Shane Gentry-Pike v Manpower Services (Australia) Pty Limited T/A Manpower Professional

[2011] FWA 2039

[2011] FWA 2039

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Gentry-Pike
v
Manpower Services (Australia) Pty Limited T/A Manpower Professional
(U2010/13311)

COMMISSIONER GAY MELBOURNE, 8 APRIL 2011

Termination of employment - arbitration.

[1] The following decision, now edited, was given in transcript at the conclusion of proceedings in Brisbane on 18 March 2011.

[2] “This is an application for remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Shane Gentry-Pike (the applicant) following the termination of his casual employment by Manpower Services Australia Pty Ltd T/A Manpower Professional (Manpower, the respondent) on 5 October 2010. Mr Gentry-Pike had been employed as a casual by Manpower and deployed at IBM to provide hardware warranty support for certain personal computers and laptop computers since 27 November 2006.

[3] The remedy sought was given as Fair Work Australia providing Manpower a direction to provide Mr Gentry-Pike with sufficient evidence as to constitute proof of wrongdoing on the matters specified in the warnings given to the applicant or pay compensation to remedy the unfair dismissal, and further, that Manpower pay Mr Gentry-Pike lost wages during the interim period prior to him taking up further employment, meet his ongoing economic loss, and any other further order thought appropriate by Fair Work Australia.

[4] An attempted conciliation engaged in at the very outset of proceedings, with the agreement of both parties (but not traversing merit), did not result in an agreement, notwithstanding the helpful participation of the parties. In the conciliation and in the case generally, Mr Gentry-Pike was self-represented and Ms Hunt, a solicitor employed by the respondent, appeared for Manpower. There was no jurisdictional deficit, and I am going to go through these jurisdictional issues. I am obliged to do so.

[5] The application is one capable of determination pursuant to the s.396 considerations in that it is made within time, s.396(a). Mr Gentry-Pike was protected from unfair dismissal within the meaning of s.396(b) in that the s.382 stipulations are met, because the s.384(a) employment period has been completed, and s.382(b)(i) and (ii) apply because the clerical modern award - I am not giving it its proper description - applies, and the earnings of Mr Gentry-Pike, although they fluctuate, are well under $60,000 per annum, being well within the scope permitted by the high income threshold quantum. The s.383 minimum employment period is met as the s.384 period of employment particularises for casuals. The s.396(c) consideration, referable to small business, is not applicable in this case, and the case does not involve genuine redundancy, s.396(d).

[6] As the matter wholly involved contested facts - s.397 - I was obliged to conduct a hearing and, quite naturally, did so. I have also had regard for when a remedy may be granted - s.390 - and of course whether Mr Gentry-Pike was unfairly dismissed within the meaning of s.385(b), that is, that the termination was harsh, unjust or unreasonable as provided for in s.387. That section sets out the considerations, not exhaustively, by which means Fair Work Australia can be satisfied that a termination is or is not harsh, unjust or unreasonable. They are well known, and I have had regard for each of the heads within that section in considering the evidence and submissions put in this case. Even though it is true of course that Mr Gentry-Pike did not address those, they were addressed by Ms Hunt.

[7] I do not propose to now recite the cases presented. To do so is unnecessary in that the parties are well aware of their accounts of the narrative of events, of descriptions properly applied to the events; they are well aware of the contested facts - for example, of a sneeze into a customer’s ear, a series of sneezes into a customer’s ear during a telephone conversation, and I give that as an example - but also as to do so would further delay the parties. Close regard, however, has been paid to all that has been put and said in the written and oral submissions. I have also had regard for the written submissions provided prior to the matter coming on for hearing.

[8] I have already said non-recitation now should not be regarded as an indication that an argument or contention has not been considered or that it has been lightly disregarded. I do intend to give a broad outline of what evidence I have accepted in coming to the views I have reached in this case. This largely reduces to accepting one account over that of the other party, so opposed are they. Mr Gentry-Pike for his part submits that his performance was of the very highest order, that his efforts were first-rate and that he always treated clients of Manpower with respect and courtesy. Mr Gentry-Pike had been given two written warnings, one of 19 October 2009 and the other of 13 August 2010 prior to his 5 October 2010 termination.

[9] For Mr Gentry-Pike, the unfairness of his termination had several principal sources. The first was that his customer satisfaction results had, over the latter portion of his employment, been artificially affected to the negative, in contrast to his earlier period of exemplary service. The second principal source, in Mr Gentry-Pike’s submissions as to unfairness, stem from Manpower and IBM’s view that complaints made against him as to customer service were accepted by Manpower without satisfactory evidence of Mr Gentry-Pike’s poor performance and, I might interpose to say, without evidence satisfactory to him of his poor performance.

[10] Such poor performance extended broadly from failing to satisfy the clients - particularly this is true of the Lenovos - their literal sign-on and sign-off protocols, to technical advice being faulty, to disclosing unnecessarily and ill advisedly in-house procedures to a client, poor telephone techniques ranging from poor listening skills to over-talking the client, rudeness, poor time-keeping and poor collegiality. I sought to place proper weight upon Mr Gentry-Pike’s argument that an undue emphasis has been placed on his later performance reviews at the expense of those undertaken prior to the harassment and bullying campaign said to have been engaged in by a previous manager, Ms Tapiolas, and more latterly Ms Hema, aided, perhaps unwittingly, by Ms Lange.

[11] On the evidence there is nothing to support the claimed harassment. Certainly insofar as performance appraisals are concerned, the reviews conducted in 2007, 2008 and 2010 are in evidence and they reflect in varying degrees that Mr Gentry-Pike was not at the top of his group, and rather, the first, of 22 February 2007, shows a ‘below required’ standard for Mr Gentry-Pike in teamwork, time management and time attendance and administration, as did Ms Tapiolas’ review of Mr Gentry-Pike in December 2008.

[12] I give those because I have sought, as I have already said, to place the emphasis, or to see if there is any purpose in placing emphasis, on an alleged disparity in the performance reviews conducted by the company when one compares the latter portion of his employment, not a particularly lengthy period, with the earlier portion. I do not think it is made out on the evidence, but in any event, it would not be compelling. This is because what is relied on by Manpower in relation to the termination is the performance prior to and from the time of the first written warning leading to the second warning and then of course leading to the reasons given for the termination, and I do not propose to deal with each instance of poor performance.

[13] I do that for a number of reasons. I do not know that it is in Mr Gentry-Pike’s interests for me to, in a deeply forensic sense, publicly outline the matters. I will though, set out some findings. I have formed the view that a principal reason or principal basis for Manpower’s criticism of performance was Mr Gentry-Pike’s abrupt, unhelpful and occasionally argumentative manner of dealing with clients which manner breached the minimum standard reasonably required of him. I have formed that view having regard for the evidence as a whole. There is a summary of these imperfections in the respondent’s submissions and I will not now repeat it. In my view they, with the other specified shortcomings, justified the giving of the first and second warnings.

[14] I am going to deal now with some of the principle themes of the case put forward by Mr Gentry-Pike. I have not accepted that Mr Holladay can, on the evidence before me, be found, on the balance of probabilities, to have bullied or harassed Mr Gentry-Pike. Rather, two of his (Mr Gentry-Pike’s) quality reviews, taken at times of particular controversy for Mr Gentry-Pike, were generally supportive. They are not indicative of someone poorly intended towards Mr Gentry-Pike, and nor is there any basis for me to think that there was a campaign of unfairness being engaged in by Mr Holladay, in company with others or not, against which these (the non-critical reviews) are somehow ruses to take one off the scent. There simply is no evidence to support that sort of general complaint of poor intention on the part of authority figures at Manpower or at IBM.

[15] I wish to comment upon the evidence again in a more general sense. Where there is conflict in the accounts of Ms Hema and Ms Lange with that of Mr Gentry-Pike, I have had no reluctance in accepting that of the IBM and Manpower officers. Their evidence was given directly, in detail, not faltering in cross-examination, and is to be preferred to that of Mr Gentry-Pike who, I have concluded, is unable to see that his manner did not conform to that required of him, although there are occasions in Mr Gentry-Pike’s evidence and set out in the evidence of the company which occasions instance where Mr Gentry-Pike did make such concessions, and it would be wrong not to now bring those to notice.

[16] I accept Ms Hunt’s submission that Ms Lange’s offer of further assistance to Mr Gentry-Pike after the second warning of 5 August was entirely genuine, and no conclusion of bullying and harassment is supported on the evidence. The evidence of the company officers is highly detailed. They were not cross-examined on a deal of that evidence, and I have accepted it. Finally, I have been unable to accept Mr Gentry-Pike’s evidence as to the complaint which formed the principal foundation for the final decision to dismiss. I know there was more than one basis for that final decision but that is set out at exhibit I of Ms Lange’s statement, exhibit MP1.

[17] There is no disputing that this is a difficult issue. There is no recording of the encounter, but I have formed the view that Manpower’s conclusion that Mr Gentry-Pike’s faulty performance was behind the complaint received was soundly based and that the service provided to that client - the client which I have refrained deliberately from naming - did not meet the standard which Mr Gentry-Pike had been warned he must meet. That finding is based on the complaint itself, as against the evidence denying it and as against the detailed elements which were given by Mr Gentry-Pike in his responses to the investigating officers. I note that Mr Gentry-Pike’s account of the client’s comments has been much more fully given and more floridly given in the presentation of the case than had been given before, and I am referring there to the assertion of the very bad language on the part of the customer and general rudeness, which I have accepted was not originally given to the inquiring officers by Mr Gentry-Pike.

[18] I have not accepted that, on the evidence before me, there is any basis upon which I could conclude there was a campaign of harassment designed to damage Mr Gentry-Pike’s cause engaged in by Ms Lange or Ms Hema. I will make the necessary findings in relation to s.387. I am required to make findings as to whether there was a valid reason for the dismissal related to Mr Gentry-Pike’s capacity or conduct as revealed in the evidence in this case. It is likely that both of those apply. There are conduct issues and, inferentially at least, there are capacity issues. I find there was a valid reason for the termination. I find that Mr Gentry-Pike was notified of that reason. I will not give all the dates that these things occurred.

[19] I find further - this is pursuant to s.387(c) - that Mr Gentry-Pike was given an opportunity to respond to the reason related to his capacity or conduct. The possibility of any unreasonable refusal being accorded weight is not relevant in this case. In relation to s.387(e), I will read that:

“If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal.”

[20] I find in this case that it did relate to unsatisfactory performance and that in a general sense Mr Gentry-Pike had been previously warned, and in relation to s.387(f), which deals with the size of the enterprise, whether it be likely to impact on the procedure followed in effecting the dismissal, I do not find that to be relevant in this case. The increasing size of an employer should conduce to a more formal approach being taken, and such an approach was taken in this case, and similarly, the dedicated human resource management specialists - I place no weight on s.387(g). There are no other matters that I found particularly relevant which would fall within subsection (h).

[21] I have also had regard, relevant to any order that might be contemplated - so that is in the subjunctive; “which might be contemplated” - as to compensation were I to consider making such an order. I have had regard for Manpower’s submission that the email messages sent post-termination by Mr Gentry-Pike to clients of IBM were relevant. I wish to make this very clear. While they are not relevant to valid reason, that is, s.387(a), and I have not included them in my reasoning to this point, they are relevant for the limited purpose described by Ms Hunt, and that is, as a relevant consideration in the event that one was minded to make an order for compensation.

[22] Mr Gentry-Pike’s email messages contain vile language, and directly put to the clients and officers of the customers of Mr Gentry-Pike’s employer - by which I mean personally addressed and personally put to people. They are intended to frighten and are representative of a fearful misconduct that could never be permitted. Mr Gentry-Pike submitted that those recipients “deserved it”. I am not minded to make any order for compensation, having regard for the finding I have made that there was a valid reason. However, it is proper for me to comment upon the submission put by Ms Hunt in this regard.

[23] For all those reasons, the application must be dismissed. In due course an order will issue, dismissing the application. I now adjourn.”

ORDER

[24] I order that the application made in the above matter be dismissed.

COMMISSIONER

Appearances:

S Gentry-Pike the applicant.

J Hunt, solicitor, appearing for Manpower Services (Australia) Pty Limited T/A

Manpower Professional, the respondent.

Hearing details:

2011.

Brisbane:

March 17, 18.

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