Teressa Belachew v Australian Bureau of Statistics

[2016] FWC 2532

[2016] FWC 2532 [Note: An appeal pursuant to s.604 (C2016/3727) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Teressa Belachew
v
Australian Bureau of Statistics
(U2015/4543)

DEPUTY PRESIDENT KOVACIC CANBERRA, 21 APRIL 2016

Application for relief from unfair dismissal - harsh, unjust or unreasonable – dismissal found to be fair - application dismissed.

[1] Dr Teressa Belachew (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 2 April 2015 alleging that the termination of his employment by the Commonwealth of Australia as represented by the Australian Bureau of Statistics (ABS – the Respondent) on 17 March 2015 was unfair.

[2] The application was heard on 27 July 2015. At the hearing, Dr Belachew appeared and gave evidence on his own behalf. Mr Andrew Dillon of the Australian Government Solicitor appeared with permission on behalf of ABS. ABS did not lead any evidence.

[3] For the reasons outlined below, I have found that Dr Belachew’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Background

[4] Dr Belachew commenced employment with the ABS on 12 July 2010 as a Senior Research Officer at the APS5 classification level. Prior to the termination of his employment, Dr Belachew worked in the Data Integration, Analytics and Confidentiality Methodology Unit in the Analytical Services Branch performing technical research and assigned project tasks.

[5] In May 2014 Dr Belachew’s supervisor, Mr Phillip Wise, raised a number of performance concerns with Dr Belachew. Specifically, Mr Wise highlighted “delivering work within agreed timeframes, working under limited day-to-day direction and supporting strategic directions” as key areas of concern 1.

[6] On 30 June 2014 Dr Belachew commenced a Performance Improvement Plan which continued for seven weeks.

[7] On 11 September 2014 Dr Belachew received a written warning 2 which was signed by Mr Wise. The warning stated that Dr Belachew had not met an acceptable standard of work performance at the APS5 Level and set out how Dr Belachew had fallen short of the expected standard. The letter advised Dr Belachew that ABS would be looking to appoint an independent assessor to assess his work performance for a period of up to twelve weeks. The letter also indicated that a failure to attain or sustain the expected standard of work performance may result in, among other things, a termination of Dr Belachew’s employment. The letter provided a period of seven days for Dr Belachew to respond. Dr Belachew did not respond to the letter, though he contended that he did provide verbal feedback to Mr Wise.

[8] On 24 September 2014, Mr Brett Frazer, an ABS employee based in Brisbane, was appointed as the independent assessor for the managing underperformance process concerning Dr Belachew. Dr Belachew subsequently indicated that he was happy with Mr Frazer’s appointment.

[9] An underperformance work plan was developed by Mr Wise and discussed with both Dr Belachew and Mr Frazer on 8 October 2014, with Mr Frazer’s assessment of Dr Belachew’s performance to be made against that work plan. The assessment period commenced on 10 October 2014. Throughout the assessment period, Dr Belachew had separate weekly meetings with both Mr Wise and Mr Frazer, though Dr Belachew and Mr Frazer discussed Dr Belachew’s performance in weeks 9 and 10 of the assessment period at the same meeting due to Mr Frazer’s leave arrangements. Mr Wise and Mr Frazer also spoke on a weekly basis. During those weekly meetings, Dr Belachew was provided with feedback on his performance, including areas that he needed to focus on and areas of concern. Notes of the weekly meetings were provided to Dr Belachew, with Dr Belachew invited to comment on those notes. The assessment period concluded on 22 January 2015.

[10] Mr Frazer’s report was finalised on 11 February 2015. The report concluded as follows:

“82. It is my assessment that Dr Belachew is not performing at the level expected of an APS5. While the assessment period began well, with Mr Belachew meeting deadlines, after the first three weeks, Mr Belachew did not meet another deadline. My assessment is that Mr Belachew did not communicate effectively with the clients, did not show personal drive and initiative to progress the project and this led to delays.

83. Mr Belachew also did not demonstrate his knowledge of the client area, the project or the general theory behind his analysis with feedback from clients and team members highlighting these aspects.

84. Mr Belachew has not taken on board feedback provided throughout this period, maintaining that all feedback is either wrong, just the opinion of one person or that he should not be judged on the delays caused by others.

85. These are similar concerns to those identified throughout the PIP process and my summary is that these concerns are warranted and enough to assess that Mr Belachew is not performing at the level expected when APS5.” 3

[11] The report was provided to Ms Donna Nicholson, the delegate responsible for determining the outcome and action to be taken as a result of the managing underperformance process. In a letter dated 2 March 2015, Ms Nicholson wrote to Dr Belachew indicating that she had formed a preliminary view that his employment was no longer tenable and that termination was the most appropriate outcome. The letter provided Dr Belachew until close of business on 10 March 2015 to respond to the letter.

[12] Dr Belachew provided an email response on 10 March 2015 which disputed key findings of Mr Frazer’s report. In his response Dr Belachew stated, inter alia, that:

“While I have been expecting a promotion for my contributions … to date, the turnaround of the situation to underperformance has caught me by real surprise. In my view, the whole process that took place between 13 March 2014 and 11 September 2014 is unfair and unjust if not more. The way the underperformance issue came to surface following a feedback I gave to my supervisor on the ways things progressed between 13 March 2014 and 15 April 2014.” 4

[13] Dr Belachew subsequently met with Ms Nicholson on 11 March 2015, with the minutes of that meeting provided to Dr Belachew on 13 March 2015. Dr Belachew also wrote to Ms Nicholson on 16 March 2015.

[14] On 17 March 2015 Ms Nicholson wrote to Dr Belachew terminating his employment with effect from close of business that day. In her letter, Ms Nicholson stated, among other things, that she had considered whether to assign Dr Belachew to other duties or to reduce his salary or classification but decided that this was not a reasonable option as she considered the skills that he had not demonstrated would be applicable to any position within the ABS 5.

[15] As previously stated, Dr Belachew’s unfair dismissal application was received by the Commission on 2 April 2015.

The Applicant’s case

[16] In his application Dr Belachew disputed the findings of Mr Frazer’s assessment report, contending that most of his assessment was defamatory rather than looking into the reality of his work. Dr Belachew also stated that Mr Frazer’s conclusions were based on misrepresentation and misinformation sourced from Mr Wise and that accessing the relevant data and related information as required by the underperformance work plan in a reasonably short time was beyond his control.

[17] Dr Belachew’s witness statement 6 comprised 629 paragraphs and essentially transcribed the discussion in his meetings with Mr Frazer as part of the managing underperformance process. At the hearing, Dr Belachew attested that he had recorded those conversations without Mr Frazer’s agreement. Under cross-examination, Dr Belachew was taken through in some detail the various notes of his meetings with Mr Frazer and Mr Wise during the managing underperformance process, with a focus on the performance concerns discussed in those meetings.

[18] Key aspects of Dr Belachew’s oral submissions were that:

• the performance concerns raised with him in May 2014 had come “out of the blue”;



• with regard to the underperformance work plan, he met the first two deadlines specified in the work plan but subsequent delays stemmed from the delays in the required data being provided to him by the client area;



• the project he was required to undertake during the managing underperformance process had previously been unsuccessfully attempted by two more senior employees;



• the notes of his weekly meetings with Mr Frazer and Mr Wise were not an accurate record of the discussions, with some comments being lies;



• the was no natural justice in the process which led to his dismissal;



• Mr Wise had undue influence on Mr Frazer’s report; and



• Mr Frazer had been influenced by senior management as he had been appointed by and was answerable to senior management.

The Respondent’s case

[19] In its submissions ABS outlined the steps that had been taken in relation to Dr Belachew’s underperformance as follows:

“28.1 The applicant had a Development and Performance Agreement

28.2 He had been given feedback and a Performance Improvement Plan had been undertaken without the applicant attaining the required performance.

28.3 The Managing Underperformance Program involved:

28.3.1 A formal warning letter dated 11 September 2014.

28.3.2 The applicant being given 7 days to respond to the letter.

28.3.3 The appointment of Mr Brett Frazer as the independent assessor.

28.3.4 The applicant being given 7 days to comment on the appointment of Mr Frazer

28.3.5 The development of a Work Plan against which performance would be assessed during the 12 week assessment period.

28.3.6 Assessment of the applicant’s performance during the 12 week assessment period by the independent assessor.

28.3.7 The preparation by the independent assessor of a final report to the People Management and Wellbeing Section.

28.3.8 Consideration of the final report by the delegate.

28.3.9 The delegate issuing a preliminary decision giving the applicant 8 days to comment.

28.3.10 The delegate receiving comments and meeting with the applicant.

28.3.11 The delegate issuing a final decision including a notice of review rights.”

[20] In particular, ABS submitted that the steps taken in relation to Dr Belachew’s underperformance were consistent with its policies and procedures, the Public Service Act 1999 and the Act.

[21] The ABS also submitted that in substance and in form, the ABS took all the necessary steps to identify issues in the Applicant’s performance, to give the Applicant feedback and the guidance and opportunity to improve, and to assess the Applicant’s performance formally. According to ABS, it was only after this extensive process, during which the Applicant did not attain the necessary or expected level of performance that it took the necessary steps to terminate his employment.

[22] At the hearing, ABS relied on its written submissions and further submitted that:

• Dr Belachew had not been maliciously or capriciously dismissed;



• there could be no suggestion that Dr Belachew had been denied natural justice;



• as ABS had ticked every box there was no unfairness due to a failure to follow process; and



• the Commission should find that there was a valid reason for Dr Belachew’s dismissal.

The statutory framework

[23] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Dr Belachew is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

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

[24] There is no dispute that Dr Belachew was dismissed, so s.385(a) of the Act is satisfied. Dr Belachew contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The ABS is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Dr Belachew was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[25] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria. I note that Dr Belachew did not address each of the criteria in his submissions.

(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)

[26] In Rode v Burwood Mitsubishi 7 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.8 The following is an extract from the Full Bench’s decision in Rode:

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[27] In short, Dr Belachew disputed that there was a valid reason for his dismissal on several grounds, including that the underperformance work plan was unachievable, that his inability to meet the timeframes for aspects of the underperformance work plan was due to factors outside his control and that his comments during the underperformance process were not accepted.

[28] ABS submitted that Ms Nicholson decided to terminate Dr Belachew’s employment because she found, on Mr Frazer’s recommendation, that Dr Belachew had failed to attain the required standard of performance for an APS5 Level employee, with her reasons for so deciding set out in her letter to Dr Belachew of 2 March 2015. The reasons relied upon by Ms Nicholson were summarised by ABS in its submissions as including that:

• the tasks given to Dr Belachew in the underperformance work plan were appropriate at the APS5 Level and typical of the work that he would be expected to undertake;



• Dr Belachew had been provided with consistent and fair feedback in relation to his work performance issues and with every opportunity to address areas of concern;



• Dr Belachew had demonstrated a significant lack of initiative, poor communication skills and a distinct inability to consistently meet deadlines across the 12 week underperformance process; and



• Dr Belachew was unable to perform his role at the required standard, lacked the preparedness to accept or apply feedback and failed to apply the expected level of subject matter knowledge to his work.

[29] In relation to Dr Belachew’s submission that the delays in producing his work were not his fault, ABS pointed to the final assessment report. In particular the finding in the report that the delays experienced were not outside of Dr Belachew’s control and that he contributed to the delays by leaving large gaps in contact with clients when trying to get access to the data he needed to complete his work, unclear communication to clients as to what he needed to progress his work and a failure to escalate matters to his supervisor to obtain assistance in a timely way.

[30] One of the recurring concerns regarding Dr Belachew’s performance was his failure to meet deadlines. With regard to the underperformance process it is not disputed that Dr Belachew met the first two deadlines specified in the underperformance work plan but failed to meet the rest, despite some of those deadlines being pushed back. Dr Belachew pointed to factors beyond his control as to reasons for not meeting those deadlines, whereas ABS effectively submitted that it was his lack of initiative. During Dr Belachew’s oral evidence the Commission asked Dr Belachew a question as to why, in circumstances where the importance of obtaining the required data from the client area was consistently emphasised to him, he did not push the client area sooner or harder to provide the data or, alternatively, escalate the issue. Dr Belachew’s response was that he wanted to maintain the relationship with the client area even if it meant losing his job. Apart from being surprising, the response suggests a lack of judgement and in my view reinforces the integrity of Mr Frazer’s report and conclusions. It also supports a finding that there was a valid reason for Dr Belachew’s dismissal based on his performance. Further, drawing on the language in Rode, I am satisfied that Dr Belachew’s termination was not “capricious, fanciful, spiteful or prejudiced.”

[31] This consideration therefore does not favour Dr Belachew.

(b) Whether the person was notified of that reason

[32] ABS submitted that Dr Belachew was notified on multiple occasions of its concerns regarding his performance, emphasising that its letters of 2 and 17 March 2015 outlined the reasons for the proposed and the final decision to terminate Dr Belachew’s employment. ABS also submitted that the written warning of 11 September 2014 and the mid-assessment report of 28 November 2014 given to Dr Belachew both set out the details of its concerns regarding Dr Belachew’s performance.

[33] A Full Bench of the then AIRC in Crozier v Palazzo Corporation Pty Ltd 9 when considering this factor in the context of appeal against an unfair dismissal decision made under the Workplace Relations Act 1996 stated:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[34] Based on the material before the Commission it is clear that Ms Nicholson wrote to Dr Belachew on 2 March 2015 providing him with a copy of Mr Frazer’s report and indicating that she had formed a preliminary view that his employment was no longer tenable and termination was the most appropriate outcome. In her letter, Ms Nicholson not only referred to the performance concerns outlined in the written warning of 11 September 2014 but also those discussed as part of the managing underperformance process. Specifically, Ms Nicholson stated that she concurred “with Mr Frazer’s findings that you did not attain and sustain the required standard of performance at the APS5 level and my preliminary decision is to terminate your employment.” 10 Further, Ms Nicholson provided Dr Belachew with the opportunity to comment on her preliminary decision, which he did on 10 and 16 March 2015. Ms Nicholson also met with Dr Belachew on 11 March 2015 to discuss her preliminary decision. Ms Nicholson’s letter of 17 March 2015 also clearly set out the reasons for Dr Belachew’s dismissal.

[35] Against that background, I am satisfied that Dr Belachew was notified of the reasons for the termination of his employment. This weighs against a finding that his dismissal was harsh, unjust or unreasonable.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[36] ABS contended that Dr Belachew was given opportunities to respond to its concerns about his conduct throughout the process.

[37] The Performance Improvement Plan which commenced on 30 June 2014 and the managing underperformance process which commenced on 10 October 2014 were key opportunities for Dr Belachew to address ABS concerns regarding his performance. Based on the material before the Commission and Dr Belachew’s oral evidence, it appears that Dr Belachew dismissed the concerns regarding aspects of his performance as being someone else’s fault and failed to accept and take on board the feedback provided regarding his performance. Against that background, I am satisfied that Dr Belachew was given numerous opportunities to respond to the concerns expressed by ABS relating to his capacity or conduct.

[38] This consideration therefore does not favour Dr Belachew.

(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

[39] Dr Belachew did not contend that the ABS had refused to allow him to have a support person present at any discussions relating to his dismissal.

[40] Accordingly, I consider this factor to be a neutral consideration.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[41] ABS set outits concerns regarding Dr Belachew’s performance on a number of occasions. For instance, the written warning of 11 September 2014 set out in some detail the ways in which Dr Belachew had failed to meet the standard of work performance expected of an APS5 Level employee. Further, the notes of the weekly meetings which Dr Belachew had with both Mr Wise and Mr Frazer set out the concerns regarding his performance which had been discussed in those meetings with Dr Belachew. While I accept that Dr Belachew disputed those performance concerns, this does not alter the fact that ABS raised its concerns regarding his performance with him consistently and over an extended period of time.

[42] I am satisfied that Dr Belachew had been warned about his unsatisfactory performance. This does not support a finding that the dismissal was harsh, unjust or unreasonable.

(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

(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

[43] ABS contended that it followed its prescribed procedures throughout the process and that it has a dedicated People Management and Wellbeing Section within the Human Resources Branch

[44] ABS is a large employer. Based on the material before the Commission, I consider the process it followed in this case was both thorough and fair. As such, I consider these factors to be neutral considerations.

(h) Any other matters that FWC considers relevant

[45] ABS submitted that Dr Belachew had employment experience in both the public sector and academia and that he lived in Canberra where the unemployment rate is below the national average, contending that these factors were relevant considerations as to how easily he would be able to find alternative employment. While I note this submission, I do not consider it to be relevant.

[46] Accordingly, I find that there are no other relevant considerations.

Conclusion

[47] Drawing on the above analysis, I find that there was a valid reason for Dr Belachew’s dismissal; that Dr Belachew was notified of that reason and given an opportunity to respond to that reason; that Dr Belachew had been warned about his performance before his dismissal, as well as being given opportunities to improve his performance; and that there are no other relevant matters. Beyond this, I find that the remaining criteria in s.387 of the Act are neutral considerations in this case.

[48] Having considered all of the criteria in s.387 of the Act I find that Dr Belachew’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

T. Belachew on his own behalf.

A. Dillon for the Australian Bureau of Statistics.

Hearing details:

2015.

Canberra:

July 27.

 1   Exhibit B1 at page 31 of Tab D

 2   Ibid at page 29 of Tab C

 3   Ibid at page 11 of Tab C

 4   Ibid at page 42 of Tab B

 5   Ibid at page 1 of Tab B

 6   Ibid

 7   Print R4471

 8 (1995) 62 IR 371

 9 (2000) 98 IR 137 at paragraph 73

 10   Exhibit B1 at page 38 of Tab B

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