Tegan Wallis v Savannah Nickel Mines Pty Ltd T/A Panoramic Resources

[2016] FWC 773

[2016] FWC 773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tegan Wallis
v
Savannah Nickel Mines Pty Ltd T/A Panoramic Resources
(U2015/11566)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] Ms Tegan Wallis was employed by Savannah Nickel Mines Pty Ltd from 10 December 2007. She says her employment was terminated unfairly on 25 August 2015.

[2] Savannah employed Ms Wallis as an Environmental Officer. Savannah terminated Ms Wallis’ employment for unsatisfactory work performance. It relied upon her failure to follow water quality monitoring and reporting procedures. It said “a review of [her] work shows you have not followed procedure which has resulted in incorrect reporting. [Her] work performance is inconsistent with the requirements of the position and thus warrants your contract of employment to be terminated.” 1

[3] At the hearing, Ms Wallis sought orders that her name not be published. Ms Wallis submitted that the publication of her name means that she would be discriminated against by future employers in the mining industry. She submitted that she had only worked for this company and if a future employer looks up her name and Savannah, it will come to their attention that she brought these proceedings, that there were performance based issues and this will impact negatively on her. Savannah opposed the suppression order. It was submitted that there needs to be extraordinary reasons to suppress the name and that Ms Wallis’ reasons do not meet the test. That the information can be accessed on the internet is not sufficient.

[4] The Fair work Commission, in performing its functions, must do so in a manner that is open and transparent. 2 Hearings conducted by the Commission are required to be held in public unless the Commission decides otherwise.3

[5] The Commission has the power to prohibit the publication of the names and addresses of persons appearing at a hearing if it is desirable for any reason. 4

[6] The power to make the orders sought is discretionary. However, in exercising its discretion the Commission should have regard to “the general principles ….that proceedings should be held in public, and that fair and accurate publication of those proceedings should be permitted… should only be departed from where the Court is satisfied that some unnecessary harm which the proceedings do not justify is likely to be done to the public or to some individual or body by publicity….” 5

[7] Commissioner Bissett set out the approach of the Commission and the Courts to the issue of suppression orders in Justin Corfield. 6 I endorse the view expressed in that decision that, in deciding whether to grant a suppression order, it is necessary to balance the open justice principle against the effects of identification on Ms Wallis.

[8] I agree with the submissions of Savannah in this matter. The de-identification of Ms Wallis would not prevent her identification. Any prospective employer would be able to readily identify Ms Wallis if she were de-identified in this decision. Ms Wallis was one of two environmental officers employed at the time. The decision would identify Savannah. Ms Wallis, in seeking future employment, would need to refer to her employment with Savannah. Ms Wallis did not make an application that the decision not be published or that the name of the respondent and the other parties referred to in the decision be suppressed. Further, the matters raised by Ms Wallis are not out of the ordinary. Any employee alleging that his or her dismissal was unfair knows that in making the application, the outcome of the case is normally publically available and will be available to any prospective employer. I am not satisfied that Ms Wallis has put forward cogent reasons for the suppression of her name. I am not satisfied that she will suffer unnecessary harm and I decline to make the orders sought.

The evidence

Pre 2014 performance

[9] Ms Tracey Ram, Savannah’s General Manager, Human Resources, gave evidence that there had been a history of Ms Wallis not performing. She said that this had been raised in 2011. Ms Ram gave evidence that she was advised that Ms Wallis needed performance management. The document relied upon by Ms Ram simply stated that “if there are performance matters… there needs to be a PRP meeting.” 7 There was no evidence that a PRP meeting was required.

[10] While Ms Wallis denied there were any issues, it is clear from the email Ms Wallis sent to herself on 21 October 2011 that her manager at the time had raised issues about her performance and Ms Wallis considered this to be bullying and picky. 8 Further, Ms Kerry Clifton gave evidence that, on at least one occasion, she was required to redo work that Ms Wallis had done incorrectly.9 She gave further evidence that Ms Wallis had told her on several occasions that she had had disciplinary meetings with Mr Mark Recklies, the General Manager and Mr Mark Bantich, the Environmental Superintendent and Ms Wallis’ direct supervisor.10

2014 performance

[11] It was Ms Ram’s evidence that in June 2014, Mr Bantich contacted her to obtain formal performance management templates/processes because Ms Wallis’ performance was unsatisfactory. 11 There is no evidence that Mr Bantich ever put in place a formal performance management of Ms Wallis.

[12] Mr Bantich issued Ms Wallis with a counselling warning about her failure to follow his instructions about copying him in on all emails sent by her. 12 That verbal counselling note states that “the employee [was] advised of the consequences of continuing unsatisfactory behaviour.” However, there is no evidence about what was actually said to Ms Wallis.

[13] Ms Ram gave evidence that Mr Bantich consulted her about how he should go about documenting the process for Ms Wallis’ termination in July 2014 and again in October. 13 It was her evidence that Mr Bantich and Mr Recklies were attempting to performance manage Ms Wallis to the point where she recommended the termination of Ms Wallis’ employment in October 2014, but both Mr Bantich and Mr Recklies told her “to back off and to give them a go to change you [her].”14 Despite this, Ms Wallis was not placed on a formal performance improvement plan, nor was she advised that her performance was such that her employment was at risk. Nor was there any evidence that Ms Wallis was provided with any additional training to improve her performance. Ms Ram did not tell Ms Wallis her employment was at risk. Ms Ram’s evidence that Ms Wallis was told that her employment was at risk in October 2014 was not supported by either Mr Bantich or Mr Recklies. At most, Mr Recklies pointed to the diary note given in October 2014. Ms Ram’s evidence that Ms Wallis was aware that if she did not meet the KPI’s of the new PD, her employment was at risk, is not evidence that Ms Wallis was told by Savannah that her performance was such that her employment was at risk if she did not improve.

[14] Ms Wallis’ performance appraisal was conducted in October 2014. 15 That appraisal recorded Ms Wallis as not achieving the environmental monitoring objective. There was a hand written note referring to flowmeters. She achieved either an “achieved” or “exceeded” on all other performance objectives. The overall comment was that Ms Wallis’ “performance meets the expectations and requirements of the position. Provision of a key role description will further refine and assist in understanding and meeting expectations of the role. Additional training is required to ensure Tegan’s skills are maintained and enhanced as she develops additional skills required to further her career and step into a senior role.”

[15] Ms Wallis disputed that Mr Bantich discussed with her incorrect flowmeter readings at her performance appraisal. It was her evidence that there had been two flowmeters which had stopped working. She had read them correctly but had not picked up that they had malfunctioned. 16

[16] Mr Recklies gave evidence that at the performance appraisal Ms Wallis was “marked down… for water flow meter area readings and she argued that that wasn’t fair, but we went through it at that stage that is was so important to get these right.” 17 Mr Recklies rejected Ms Wallis’ contention that this was about malfunctioning flowmeters. He said “there was a flowmeter that read incorrectly and there were flowmeters that weren’t working and then weren’t – if a flowmeter isn’t working or hasn’t changed the last time you need to find out if water had been pumped through there or not and if nothing is followed up then potentially we’re not recording the data so then we’re giving incorrect data.”18

[17] Mr Bantich and Mr Recklies conducted the appraisal and Mr Recklies took notes of this meeting. Those notes relevantly record the following:

• Flowmeter readings – actions ->factor 10 out



• Rarely does Job Hazards Analysis



• Non conformance with Company procedures



• All care no responsibility ->in Audits 19

[18] Mr Recklies noted the following changes she needed to make:

• Reviewing data when entering eg flowmeters



• Thinking through the data before registering



• Utilising the computer program – Monitor Pro correctly



• Better communication between the Environmental Department



• Continue working on verifying information



• Ms Wallis’ role to manage environmental risk.

[19] Ms Wallis submitted that greater regard should be had to the final performance appraisal provided to her. She noted that while Mr Recklies stated in his notes that she rarely does JHA’s, in the actual review she received an excellent rating. She gave evidence that non-conformance with company procedures was not raised in the review or documented in the review. Further, the comment about no responsibility for audits is contrasted with her receiving an “excellent” for safety and the comments that she “has good audit skills”. 20 Mr Recklies was not able to satisfactorily explain these contradictions.21

[20] When asked by Ms Wallis why Mr Bantich did not follow the performance management process, Mr Bantich replied that “to my mind, sitting in a room with a General Manager and your supervisor, discussing issues and documenting them is formal counselling.” 22 I outlined the procedure identified in the company policy for dealing with unsatisfactory performance to Mr Bantich. In response to my question whether he followed that procedure prior to the incidents in 2015 , he said no.23

[21] On 6 August 2014, Ms Wallis received a bonus. The letter advising her of the bonus notes that it was calculated on a number of factors including the performance of the business and her individual performance. 24 Mr Recklies gave evidence that there were different levels of bonuses given and some people did not receive a bonus at all.25 However, it is clear that Ms Wallis’ performance did not disentitle her to a bonus.

[22] In November 2014, Ms Wallis was presented with a new position description. The PD had a KPI that data management required 100% accuracy. Ms Wallis considered this to be unrealistic and advised Mr Bantich accordingly. 26 Mr Recklies gave evidence that Ms Wallis “consistently resisted, argued and refused to sign the Role Description, even after many meetings and discussions around it and the KPI’s.”27 That PD was signed off by Mr Bantich on 30 June 2015.28 It notes that Ms Wallis refused to sign the PD and the KPI document. Ms Wallis denied that she refused to sign the new PD. Ms Wallis said she was asked to comment on the PD and she did.29 It was her evidence that her questions were not answered “to a level that made me feel that I understood clearly.”30 The discussion about the PD continued until 30 June 2015. On 27 June 2015, Ms Wallis was provided with the final draft.31 There was an exchange of emails between Ms Wallis and Mr Bantich in which it is clear that Ms Wallis did not accept the explanations provided by Mr Bantich. As a result, Mr Bantich decided to issue the PD without Ms Wallis’ agreement. Ms Wallis rejected the proposition that she was on notice prior to 30 June 2015 and that she was expected to perform to that level of accuracy because the PD had not been issued.32

2015

[23] In March 2015, Mr Bantich conducted another performance appraisal of Ms Wallis. Ms Wallis initially disputed some of the ratings given by Mr Bantich and as a consequence, some were altered. The possible scores are 0, 2 or 4. Ms Wallis was rated predominately at level 2, with two scores of 4. Her average was 2.21. A score of between1-3 means that the employee needs improvement in specific areas. Mr Bantich commented that “Tegan is able to make proactive decisions and has shown initiative where required.” Ms Wallis did not agree with the final assessment. Ms Wallis commented that she didn’t “agree with some of the scores allocated, for example I have always had suitable attire, not once have I ever been reprimanded about the appropriateness of my attire or PPE. I believe this should be a four as this has never been raised or addressed with me. When scores are allocated, evidence should be provided/discussed for how and why the employee has failed to meet the highest score for an indicator. It would also be beneficial if the assessor provided guidance on what exactly is required to meet the highest score for a capability indicator. I don’t believe that performance evaluation can be accurately assessed when goals and key performance indicators have not been set or discussed, and it has not been made clear what is required to succeed.” Mr Bantich accepted that he did not raise any issues with her at the performance appraisal meeting. 33 It was his evidence that the appraisal was done quickly as a benchmarking exercise.

[24] In early April 2015, Mr Bantich sent an email to both Ms Wallis and Mr Gordon Low, who was the Environmental Officer on the alternative shift to Ms Wallis, noting some issues with the piezometer readings. Ms Wallis replied advising that she entered the information as “[email protected]“ or “Dry” while Mr Low records it as “15.04 and then writes in the comments (dry)”. Mr Bantich replied about the need to automate the notification process for the piezometer readings. 34 He said “we will still need to record wet/dry – the true indicator of the risk in this instance – however, if the only way to automate the system to notify process is to quantify it with a number, then theoretically anything shallower than the bottom of the hole should indicate water.” He tasked Mr Low with finding a solution. Mr Low provided a solution and advised that for his system to work they needed to enter an actual numeric value and Dry@etc won’t be recognised but the dry/wet can be recorded in the comments. Mr Low then did a series of tests and then advised that in future an automated email alert would be sent if there is water recorded in the TSF Piezo bores.

The events leading to the termination

[25] On 9 August 2015, Mr Oliver Floyd reported discrepencies in the flowmeter data readings. He reported this to Mr Low. 35 Mr Low advised that the readings had not changed and it was just an issue of how they are recorded. Ms Wallis gave evidence that Mr Low measured it as 33.6 and she rounded it up to 40 because that was what she had been taught to do.36 Mr Low reported this to Mr Bantich.

[26] On 15 August 2015, Mr Bantich sent Mr Recklies an email about Ms Wallis’ repeated failure to enter numeric information for the piezometer readings. That email said that Ms Wallis continued to record the information as wet or dry. He also stated that one of Ms Wallis’ readings was 40 cm out. He put this down to her “basically just dropping the probe down and not taking the time to measure the slack properly – most of her incorrect readings are too deep – she does not allow for slack – it also suggests she just drops the probe down until it hits the ground, which is not a great way to manage a probe.” 37

[27] On the same date, Mr Bantich sent Mr Recklies an email advising that Ms Wallis, for 30 samples between February and June, had not been following the process to ensure the parameter readings were stable enough before taking results. He also advised that she is not measuring groundwater levels as required. 38

[28] On 24 August 2015, Mr Bantich spoke to Ms Wallis about a number of errors in her work. Later the same day, he sent Ms Wallis an email advising her that there was to be a meeting the next day to discuss her work performance. He identified three issues, namely piezometers, flowmeters and water quality monitoring. She was told that she could bring a support person if she wished. Ms Wallis requested a postponement of the meeting, but she was told it would proceed. 39

[29] Ms Wallis sent herself an email that day about her conversation with Mr Bantich. In her email she said he highlighted “some pathetic things he calls inconsistency’s (sic) and errors” 40 namely:

• 
  “The piezo data attached – which are all dry (asked why my data is inconsistent (because it is dry and difficult to gauge when the dipper is at the bottom/ [sic] also have used the blue dipper sometimes)



• The flow meter readings attached (forgot to times by 10 some data)



• Ground water monitoring data – not taking water level dips



• Not following procedure – not taking the level dips every five mins – never been done/missed/my bad/not been trained properly because I believed the water dips where[sic] only required for hiflo monitoring (had reviewed procedure – but missed this requirement – set in ways not was not explained to me – I should have asked



• Water stabilisation parameters – used judgement to take sample/under pressure and busy.”

[30] Ms Wallis sent an email 41 to Mr Christopher Armstrong, her support person, on 24 August 2015 in which she advised as follows:

“Here is an example of the water quality parameters.
- admittedly sometimes I have been a little lax with filling out the info the [sic] doesn’t change (i.e. bore depths, c etc).

He is referring to the parameters measured and me not collecting at the right time.
This is only an example – there are hundreds of these sheets – I’m not sure which ones he has trawled through – although he’s probably been through them all.

I’ve also attached a copy of gordons [sic] – for reference (I have found examples when he did it incorrectly also – although they were not long after he started – but he’s a professional and was given the procedure…evidence is evidence…right? I just wonder why he shaped up – perhaps he was spoken too [sic] – unlike me this is the first time ive [sic] heard of this issue).”

[31] At the meeting on 25 August 2015, a discussion occurred about the issues raised by Mr Bantich.

Flowmeters

[32] Ms Wallis was advised that she had incorrectly entered field data into the waterbalance spreadsheet because she had forgotten to “times the WSF202 flowmeter reading by a factor of 10.” Mr Bantich also said that she had not recorded the data he wanted in the field sheet.

[33] Ms Wallis accepted that she possibly made a mistake in forgetting to times the WSF202 flowmeter by 10.

[34] In relation to the collection of the readings, Ms Wallis argued that the way they were recorded did not mean that the readings were incorrect and that she simply recorded them using different units, which was clear. Ms Wallis gave evidence that she had recorded these readings the same way throughout her employment and if Mr Bantich wanted them recorded differently he should have told her and she would have done it that way. She submitted that the procedures did not require it to be done the way Mr Bantich wanted and the manual had not been updated since 2011. 42

Piezometers readings

[35] The minutes from the 25 August 2015 meeting show that Mr Bantich said that there was a discrepancy in the depth readings. Ms Wallis was of the view that it was not necessary to record the depth readings as the bores were always dry. She said the discrepancy may have been caused by the use of different water level indicators. She also was unsure of why this was an issue because the bores are recorded as dry.

Ground water quality sampling

[36] Mr Bantich alleged that Ms Wallis was not taking the depth to water reading every five minutes and that she was not waiting until the parameters had stabilized enough to take the sample.

[37] It was her evidence that taking the readings every five minutes had not been done for a long time (at least three to four years). She said she would do it if she was told to do it. She said that there appeared to be a discrepancy between how Mr Bantich calculated the percentage differences and how she did it. She said except on rare occasions, for example when a parameter did not stabilise due to bubbles, she always ensured the parameters had stabilised.

Other matters

[38] Ms Wallis gave evidence of a number of incidents where she says she was treated unfairly by Mr Bantich. 43 She formed the view that Mr Bantich had formed a personal animosity towards her.44 It was her view that Mr Bantich was trying to make her workplace difficult for her so that she would resign.45 Ms Wallis filed a statement of Mr Joshua Johnson project co-ordinator to support part of her allegations but Mr Johnson was not called as a witness and I therefore have had no regard to his documentation. Ms Wallis gave evidence that she raised these issues with Mr Recklies.46 Ms Wallis gave evidence that she saw a doctor and a psychologist about her anxiety and stress.47 Ms Wallis relied upon a statement from her treating psychologist which showed that Ms Wallis had attended for treatment in May, June, July and August 2014. She did not attend again until November 2015.48 The psychologist was not called to give evidence. Ms Wallis tendered emails sent by her to Mr Bantich in which she complains about a lack of communication by him.49

[39] Mr Recklies accepted that Ms Wallis raised some concerns with him about Mr Bantich and he spoke to Mr Bantich and told him to make sure he was providing her with information. 50 Mr Recklies did not accept Ms Wallis’ contention that Mr Bantich had animosity towards her.51 Mr Bantich denied he was biased towards Ms Wallis and that he treated her differently. It was his evidence that Ms Wallis did not accept any criticism and reacted when issues were raised with her. He described her as combative in her approach to criticism.52 Mr Bantich did not accept the proposition that he did not like Ms Wallis. Mr Bantich formed the view that when a problem was raised with Ms Wallis she first denied it, then she would blame and then she would make “emotive accusations.”53 Mr Bantich accepted that he had challenges managing Ms Wallis.54 He did not agree that he wanted to terminate her employment.55

Submissions

[40] Ms Wallis submitted that her employment was terminated because of her performance and that the allegations of misconduct were not raised until she submitted her unfair dismissal claim. No issue of misconduct was raised with her at the meeting on 25 August 2015. It was her submission that Savannah did not follow its own performance management procedure or its own code of conduct. She was not offered counselling nor was she provided with an opportunity to improve.

[41] She submitted that she had worked for Savannah for 7.8 years and had no written or verbal warnings about her work performance. She acknowledged the verbal counselling about not following Mr Bantich’s direction about copying him in on all emails.

[42] She submitted that the three performance issues raised with her on 24 and 25 August 2015 had not been raised with her before and she was given no opportunity to improve. She submitted that the issues were minor in nature; 56 and/or resulted from inadequate communication from Mr Bantich;57 and/or were a result of not being adequately trained and assessed or supervised;58 and/or she had no training relating to environmental procedures;59 and/or these were previously condoned behaviours.60

[43] It was her evidence that the requirement to monitor depth to ground water every five minutes had not been done by other members of the team as well. 61

[44] She submitted that there had been inadequate or unclear communication by her supervisor about his requirements and when procedures were changed the manuals were not updated. 62

[45] She submitted that she had inadequate supervision, training and assessment of competency. 63 Further, she was not advised her job was at risk and was given no opportunity to improve.

[46] She submitted that Savannah terminated her employment to avoid paying her redundancy pay and that Mr Bantich had been actively trying to find ways to dismiss her. 64

[47] Mr Trainer submitted that the monitoring undertaken by Ms Wallis and others was critical to the operation of the mine site. 65 The data she collected needed to be accurate.66

[48] It was submitted that Ms Wallis had made errors over a considerable period of time. 67 Mr Trainer said that this provided Savannah with a valid reason to terminate her employment. He relied upon the decision in Quattrocchi v Monsanto Australia Limited68 to support this proposition.

[49] Savannah relied upon Ms Wallis’ conduct and performance from August 2011 to August 2015 to justify the termination of her employment. 69 It was submitted that Ms Wallis knew or ought to have known that there were issues in respect of her employment and the manner in which she was doing her job.70

[50] Savannah rejected Ms Wallis’ submission that she had not been signed off on the procedures. It submitted that there was no evidence that this sign off procedure prevailed in that section of Savannah’s business. Further, it submitted that Ms Wallis had earlier acknowledged her skills. 71 It submitted that Ms Wallis had acknowledged that she had reviewed the procedure.72

[51] Mr Trainer submitted that the requirement that there be zero errors was not unreasonable. It was submitted that this was not a new requirement as Ms Wallis had complained that her previous supervisor expected perfection. 73

[52] Mr Trainer submitted that monitoring was Ms Wallis’ primary function, yet she had not reached the standard required in 2014. 74 This was clear from the performance appraisal provided to Ms Wallis.75 He submitted that Ms Wallis had admitted that she had been lax. He submitted that “given the severity of the consequences of the lax habits” this was a serious breach of the code of conduct.76

[53] Mr Trainer submitted that Ms Wallis “sought to reduce her culpability in respect of flow metres.” 77 That the meters had an error margin did not excuse her failure to read the meters accurately.78 Mr Trainer submitted that Ms Wallis admitted reading the procedures for bores and still failed to follow the procedure.79 Mr Trainer submitted that Ms Wallis had been advised of her lack of performance but regarded the issues raised as trivial.80

[54] Mr Trainer submitted that her failure to record data as proposed by Mr Low was a failure to follow a directive. 81

Was the termination of employment harsh, unjust or unreasonable?

[55] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the 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);

[56] Mr Trainer submitted that Savannah had a valid reason to terminate Ms Wallis’ employment based on her conduct which was careless and/or negligent. It was submitted that her inaccuracies were more than trivial. He submitted that the consequences for the mine were substantial.

[57] Mr Trainer relied upon both Ms Wallis’ capacity and conduct. I will deal with these submissions separately.

[58] Mr Recklies and Mr Bantich concluded that Ms Wallis was not performing her functions.

[59] Ms Wallis accepted that she made errors in performing her functions. In relation to flow meters, Ms Wallis considered her errors to be minor. Further, she submitted that the requirement was not documented in the flowmeter procedures and that the requirements were not clear.

[60] Ms Wallis accepted that she did not record the data for the piezometers as described by Mr Low. She said that Savannah had not established that she had not complied with procedures as there was no procedure for this and that Mr Bantich had not communicated his requirements clearly. She submitted that she monitored the bores and that no risk arose from her failure to monitor the piezometers in the way described by Mr Low. As far as ground water monitoring, Ms Wallis accepted she did not follow the procedure but said that this was common practice since 2011. Ms Wallis did not accept that she had always taken the samples for the stability parameters incorrectly.

[61] I find that on Ms Wallis’ own admissions, she had failed to perform the duties required of her. I accept that Savannah was entitled to require a high degree of accuracy. While the witness may have exaggerated the significance of some of the errors, I accept that the failure to monitor accurately increased the risk to the mine. I do not accept Ms Wallis’ submission that just because her errors could be easily corrected, that her errors were not important. She did have a responsibility to do the tasks accurately.

[62] Further, I do not accept her submission that she was not aware that she was required to enter a numerical figure for the piezometer. Mr Bantich had tasked Mr Low with finding a solution to a particular problem. Ms Wallis had input into the solution but Mr Low provided an explanation as to why the changes needed to be made. While I accept that Mr Bantich should have issued the direction to avoid any doubt, I do not accept that Ms Wallis was unaware of why the change needed to be made. She was familiar with spreadsheets and Mr Low’s explanation is very clear. She did not alter the way she entered the data knowing that it would impact on the alert system designed by Mr Low.

[63] I do accept her explanation as to why she did not do ground water monitoring every five minutes. The evidence supports a finding that prior to Mr Bantich’s employment, the practice had changed. However, Ms Wallis gave evidence that she subsequently read the procedures manual and overlooked the requirement to record the data every five minutes. I also accept that there is no evidence that Ms Wallis’ and others failure to record this data had been detected prior to August 2015.

[64] Ms Wallis received a positive performance appraisal in 2014 in all areas except environmental monitoring, and in particular, flowmeters. While Ms Wallis submitted that this only referred to her failure to notice that two flowmeters had failed to function properly, that view was not supported by Mr Recklies and the performance appraisal noted that she had not met the performance objectives for environmental monitoring and those standards referred to more than flow meters. However, despite this, no formal performance improvement plan was put in place.

[65] Ms Wallis was given another performance appraisal in 2015. That appraisal noted that Ms Wallis needed development in specific areas. No specific areas were identified and no formal performance improvement plan was put in place.

[66] I accept Ms Wallis’ evidence that she had not changed the way she performed her work. She commenced employment with Savannah in 2007 as an environmental graduate and was then employed as a environmental officer. At the time of her dismissal, she had worked for Savannah for 7.8 years. In 2013, there was a period of time when Ms Wallis was the only environmental officer employed and she worked without supervision. 82

[67] The only evidence that Ms Wallis changed the way she worked in this time was her evidence that the recording of water monitoring every five minutes was no longer done after 2011 or 2012. There was no challenge to Ms Wallis’ evidence that she performed work in the way she was shown to perform work.

[68] I do not accept Ms Wallis’ submission that Mr Bantich orchestrated her dismissal. I do not accept her submission that Mr Low was engaged so that her employment could be ended. Other than her conjecture, there was no evidence to support this serious allegation.

[69] I have found that Ms Wallis did not perform her work to the standard expected by Savannah. I accept the evidence of Mr Recklies that the environmental monitoring is an important part of the safety systems put in place by Savannah.

[70] In those circumstances I find that Savannah had a valid reason to terminate Ms Wallis’ employment.

[71] I do not accept that Ms Wallis’ failure to perform her duties to the standard required constituted conduct as opposed to capacity justifying the termination of her employment. I accept her submission that this was a re-characterisation of the reasons for her dismissal. This is not a case where Ms Wallis wilfully or negligently failed to comply with the procedures set by Savannah. Apart from some very general propositions put to Ms Wallis about her obligation to perform her duties using the best skills and endeavours and carry out all lawful directions, the only specific issue put to her about compliance with Savannah’s code of conduct, was about her excessive internet use which was not one of the matters relied upon in deciding to terminate her employment.

s387(b) whether Ms Wallis was notified of that reason;

[72] Ms Wallis was notified of Savannah’s concerns about her employment on the day before the meeting. Further, in the meeting on 25 August 2015 Mr Bantich explained the issues. I find that in relation to performance issues, Ms Wallis was notified of the reasons prior to the decision being taken to dismiss her. To the extent that Savannah relied upon Ms Wallis’ conduct, she was not notified of that reason prior to the decision to dismiss her being made.

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

[73] Ms Wallis was given the opportunity to respond to the reasons related to her performance before any decision was made to terminate her employment. She was not given any opportunity to respond to the allegations about her conduct.

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

[74] Ms Wallis had a support person present.

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

[75] Ms Wallis was never told her performance was such that her employment was at risk. Despite Ms Ram recommending that her employment be terminated in 2014, Ms Wallis was not then told that her employment was at risk. Ms Wallis was never issued with a counselling or formal warning about how she performed her measurements. Many of the concerns had not been identified prior to August 2015, or if they had been, there was no evidence that they had been formally discussed with Ms Wallis. Further, apart from Mr Recklies’ and Mr Bantich’s informal discussions, Ms Wallis was never advised that her overall performance was not meeting the standards required.

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;

[76] Savannah submitted that the size of the enterprise is not a factor.

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;

[77] Savannah submitted that it had a dedicated human resource function.

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

[78] Savannah has a detailed performance management procedure. It is a stepped process which commences with formal counselling then formal warnings. It reserves the right to not follow the steps for any valid and sufficient reason.

[79] As I have noted, issues with Ms Wallis’ performance were hinted at in August 2011. There was no evidence of any follow up and after Ms Mooney left, Ms Wallis was put in charge of the environmental section. 83 While Ms Wallis denied this, she accepted that for six months she was the only environmental officer. Clearly, Savannah’s concerns at this time about Ms Wallis’ performance could not have been significant.

[80] In 2014, despite recognising that Ms Wallis was deficient in one area, her formal appraisal advised her that her performance met expectations. Clearly, the message Mr Recklies thought he was conveying in his discussion with Ms Wallis did not translate into the formal appraisal provided to her. Her performance appraisal in 2015 did not give Ms Wallis any advice that her performance was not meeting the standards expected. To the extent that it said there was room for improvement, no specific areas were identified.

[81] There were no formal steps identified to assist Ms Wallis to improve her performance. Ms Wallis has been performing her work without Savannah taking formal steps to rectify any issues of competence and without, in most cases, even identifying that she had not been performing some tasks as required for a significant period of time.

Conclusion

[82] I find that the termination of Ms Wallis’ employment was unfair. Despite there being a valid reason for the termination of her employment, Savannah’s acceptance of her performance over a significant period of time means that it was unfair to terminate her employment without having provided her with clear notice that her performance was such that her employment was at risk. She was entitled to have her errors identified and she was entitled to be given an opportunity to improve her performance. Mr Bantich found Ms Wallis difficult to manage, but that did not absolve him of his obligation to manage her. Mr Bantich was not unaware of the procedures he needed to follow. He simply did not follow them. By the time he became aware of the extent of Ms Wallis’ errors, he decided to recommend the termination of her employment. If she had been properly managed, these problems would have been dealt with earlier and Ms Wallis may have been able to improve her performance. Because this did not happen, her dismissal was unfair.

Remedy

[83] Ms Wallis is seeking reinstatement of her employment, compensation and continuity of service. In the alternative, she is seeking compensation of three weeks’ pay per year of service, resignation, a statement of service, a reference and a confidentiality agreement.

[84] Savannah opposed reinstatement stating that there was no basis on which I could conclude that a working relationship could be re-established. 84 Savannah made this submission notwithstanding that Mr Bantich had resigned his employment. Savannah noted that a number of other key personnel were still employed. It submitted that Ms Wallis’ allegations of collusion are destructive of the relationship.85 It submitted, that given Ms Wallis’ response to criticisms in the past means, it is more unlikely that a working relationship would be able to be re-established.

[85] I note that Ms Wallis, in her final submissions, repeated her allegations against Mr Bantich and Mr Recklies. Ms Wallis also maintained her submission that her errors were minor. In fact, she goes further and implies that they may have been created. 86 Ms Wallis’ response to Savannah’s submission, that the employment relationship was broken, was to state that she can overcome any issues in relation to re-instatement.

[86] At the hearing, Ms Ram gave confidential evidence about the situation facing the mine. I note that since the hearing on 27 November 2015, Savannah announced that the mine was being placed in care and maintenance and as a result, a significant number of employees would be made redundant. However, Ms Ram did not give evidence that in the event that the mine was put into care and maintenance, environmental officers would no longer be needed.

[87] I am not satisfied that reinstatement is appropriate in all the circumstances. In particular, I note that Ms Wallis still does not acknowledge that her work was not at the standard required. That she still ignores the 2014 performance appraisal that showed that the performance of a key component of her duties was not satisfactory, and the comments made by Mr Recklies at the performance appraisal meeting, along with her responses to other criticisms, has not persuaded me that Ms Wallis would be able to re-establish the necessary working relationships with Mr Recklies and her co-workers as she lacks the necessary insight into her own performance and responses.

[88] In assessing any amount in lieu of reinstatement, the Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[89] I am not satisfied on the evidence that any order for compensation would effect the viability of Savannah.

(b) the length of the person’s service with the employer;

[90] Ms Wallis has had eight years’ service with Savannah. This is a lengthy period of service but I do not consider it should cause the compensation amount to be increased.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[91] Ms Wallis submitted that she was a long standing employee and she had no intention of leaving her employment. Savannah submitted that Ms Wallis would have remained in employment for, at most, four weeks because she would have resisted any performance management. 87

[92] I do not consider that Ms Wallis would have remained at Savannah for very long. Ms Wallis has resisted any suggestion that her performance was unsatisfactory. Had Ms Wallis not been terminated, Savannah would have placed Ms Wallis on a performance improvement plan. While Ms Wallis says she would have performed her work as instructed, I am not convinced that she would have reacted the same way had she been placed on a performance improvement plan rather than been dismissed. Given her length of service, it would have been reasonable to give Ms Wallis two months to improve her employment, but given her attitude to being corrected, I consider that she would have resisted those attempts and her employment would have been terminated at the end of the performance improvement plan.

[93] Had she remained employed for two months she would have earned $13,884.62 plus superannuation.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[94] Ms Wallis has not been employed since her dismissal. Ms Wallis has applied for seven positions since her dismissal. She submitted that she applied for every job that was available and suitable at her skill level. Savannah submitted that Ms Wallis had not sufficiently attempted to mitigate her loss as she had confined her applications to environmental positions and her skills extend beyond such positions. Ms Wallis has, since graduating, only worked for Savannah in the environmental field. It is understandable that she seeks work in this field. She did not limit her job search to the mining industry and sought roles with a variety of employers. Further, she did not limit her search to scientific positions as she also applied for an administrative role, albeit in the environmental field. It is not unreasonable to expect an employee, in the first instance, to seek employment in her area of training. I do not consider the small number of jobs applied for do any more than reflect the nature of the labour market at the time Ms Wallis was seeking employment. There is no need therefore to make any reduction on the amount awarded.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;

[95] Given my order this criteria is not relevant.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;

[96] Given my order this criteria is not relevant.

(g) any other matter that FWA considers relevant.

[97] No submissions were made on this criterion. I do not consider it appropriate to make any deduction for contingencies.

Misconduct

[98] Savannah submitted that any compensation should be discounted because of Ms Wallis’ misconduct. I do not accept this submission. Ms Wallis was dismissed because of her performance. I did not accept the submission that this amounted to misconduct. I therefore will not reduce the amount of compensation as proposed by Savannah.

Conclusion

[99] I therefore order that Savannah pay $13,884.62 less tax according to law to Ms Wallis and $1,319.04 to her nominated superannuation fund within 21 days of the final order in this matter.

DEPUTY PRESIDENT

Appearances:

T. Wallis on her own behalf.

K. Trainer for the Respondent.

Hearing details:

2015.

Perth:

25 and 27 November.

2015.

Melbourne and Perth, by video link:

11 December.

 1   Applicant’s Document List - Document 38 – letter of termination dated 25 August 2015.

 2   Fair Work Act 2009, s.577.

 3   Ibid, s.593.

 4   Ibid.

 5   Re Professional Radio and Electronics Institute of Australasia Print K2405.

 6   [2014] FWC 4887.

 7   Respondent’s Outline of Argument at Attachment 3.

 8   Ibid at Attachment 4.

 9   Exhibit R4 at [12] and Transcript PN 1971.

 10   Transcript PN 1963.

 11   Respondent’s Outline of Arguments: Merits at page 6.

 12 Exhibit R7 at [5].

 13   Transcript PN 2151.

 14   Ibid at PN 2152.

 15   Exhibit A3.

 16   Transcript PN 296.

 17   Ibid at PN 2268.

 18   Ibid at PN 2351.

 19   Respondent’s Outline of Argument at Attachment 6.

 20   Transcript PN 278.

 21   Ibid at PN 2582 – 2588.

 22   Ibid at PN 3044.

 23   Ibid at PN 3065.

 24   Exhibit A1 at Document 16.

 25   Transcript PN 2569.

 26   Exhibit A1 at page 6.

 27 Exhibit R6 at [8].

 28   Respondent’s Outline of Argument at Attachment 12.

 29   Transcript PN 301 and Respondent’s Outline of Argument at Attachment 14.

 30   Ibid at PN 300.

 31   Respondent’s Outline of Argument at Attachment 13.

 32   Transcript PN 866 – 868.

 33   Ibid at PN 2915.

 34   Exhibit R6 at attachment 1(D).

 35   Exhibit R3 at [5] and Appendix 1.

 36   Transcript PN 1084.

 37   Exhibit R6 at appendix 1(D).

 38   Ibid at appendix 1(C).

 39   Exhibit A1 at Document 27.

 40   Respondent’s Outline of Argument at Attachment 17.

 41   Ibid.

 42   Exhibit A1 at page 9.

 43   Ibid at page 4.

 44   Ibid at page 5.

 45   Ibid.

 46   Ibid at page 6.

 47   Ibid.

 48   Exhibit A1 at Document 43.

 49   Exhibit A1 at page 7 and Documents 19 and 20.

 50   Transcript PN 2372, 2459.

 51   Ibid at PN 2457.

 52   Exhibit R7 at [14]-[15].

 53   Transcript PN 3034.

 54   Ibid at PN 3036.

 55   Ibid at PN 3038.

 56   Applicant’s Final Submissions at page 1.

 57   Ibid.

 58   Ibid and Transcript PN 2980 – 2981, 2987.

 59   Applicant’s Final Submissions at page 1.

 60   Ibid.

 61   Ibid and Exhibit A1 at Document 35.

 62   Applicant’s Final Submissions at page 2.

 63   Ibid.

 64   Ibid.

 65   Transcript PN 3300.

 66   Ibid at PN 3302.

 67   Ibid at PN 3318.

 68   [2009] FWA 882.

 69   Transcript PN 3323.

 70   Ibid at PN 3333.

 71   Transcript PN 3345.

 72   Ibid at PN 3346.

 73   Ibid at PN 3347.

 74   Ibid at PN 3348.

 75   Ibid.

 76   Ibid at PN 3349.

 77   Ibid at PN 3350.

 78   Ibid.

 79   Ibid.

 80   Ibid at PN 3352 and Respondent’s Outline of Argument at Attachment 4.

 81   Ibid at PN 3364.

 82   Exhibit A1 at page 4

 83   Transcript PN 484

 84   Transcript PN 3416

 85   Ibid PN 3415

 86   Applicant’s Final Submissions at page 15.

 87   Transcript PN 3422

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