Thomas Fisher v Deutz Australia Pty Ltd
[2020] FWC 2350
•5 MAY 2020
| [2020] FWC 2350 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Thomas Fisher
v
Deutz Australia Pty Ltd
(U2019/12535)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 5 MAY 2020 |
Application for an unfair dismissal remedy.
[1] On 11 November 2019, Mr Thomas Fisher made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Deutz Australia Pty Ltd (Deutz). Mr Fisher seeks compensation.
The Hearing and Witnesses
[2] Mr Fisher’s application was the subject of a hearing before me on 24 and 25 February 2020. Mr Fisher was represented by his mother, Ms Julie Reynolds. Deutz was represented by Ms Helen Politis, Workplace Adviser.
[3] Mr Fisher gave evidence on his own behalf and the following witnesses also gave evidence on his behalf:
• Mr Damian Dickson – Former Small Parts Manager at Deutz
• Mr Simon Reynolds – Stepfather of Mr Fisher and Sales Coordinator at Deutz
• Ms Julie Reynolds – Mother of Mr Fisher
[4] The following witnesses gave evidence on behalf of Deutz:
• Mr Max Torkar – Finance and General Manager at Deutz
• Mr Thorben Jaeschke – Logistics Supervisor at Deutz
• Ms Helen Politis – Workplace Advisor
Submissions
[5] Mr Fisher filed an Outline of Argument, witness statements and documents in the Commission on 15 January 2020. A further statutory declaration of Mr Damian Dickson was filed in the Commission on 18 February 2020. Deutz filed an Outline of Argument, witness statements and documents in the Commission on 6 February 2020.
Initial Matters
[6] Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:
• the application was made within the period required in subsection 394(2);
• Deutz is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;
• Mr Fisher was an employee who had completed a period of employment with the Respondent of at least the minimum employment period;
• at the time of dismissal, Mr Fisher was a person protected from unfair dismissal; and
• the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.
[7] I have concluded that Mr Fisher’s dismissal was not unfair. These are my reasons for that conclusion.
Witness Evidence
[8] I first make some preliminary remarks about the evidence.
Ms Reynolds
[9] As set out above, Mr Fisher’s mother, Ms Reynolds gave evidence on behalf of Mr Fisher. Ms Reynolds is not an employee of Deutz and, with one exception to which I refer later in this decision, was not involved in Mr Fisher’s employment or his dismissal. Accordingly, Ms Reynolds had no direct involvement in or knowledge of the matters relating to Mr Fisher’s employment, his alleged underperformance, the process adopted to manage that underperformance or the events that led to his dismissal. Accordingly, I have not relied upon Ms Reynold’s evidence in relation to those matters.
Ms Politis
[10] Ms Politis is a casual employee of Deutz. 1 She is also employed casually and on a part-time basis by other employers.2 Ms Politis’ witness statement3 goes primarily to her view as to the fairness of the process adopted by Deutz in relation to Mr Fisher’s dismissal, the merits of Mr Fisher’s application, and certain factual matters in relation to that process. On her own evidence, Ms Politis had no direct involvement in, or knowledge of, Mr Fisher’s alleged underperformance, the process adopted to manage that underperformance, or the events that led to Mr Fisher’s dismissal. Accordingly, I have not relied upon Ms Politis’ evidence in relation to these matters. Further, whether Mr Fisher’s dismissal was procedurally fair and/or whether his application has merit is a matter for the Commission.
Mr Fisher
[11] I make three observations regarding Mr Fisher’s evidence. Firstly, Mr Fisher’s evidence in chief appeared, at times, to be coached and somewhat contrived. For example, when asked by Ms Reynolds to read the Letter of Improvement, Mr Fisher took the letter but made no discernible effort to attempt to read it before declaring that he could not read it or understand it. Secondly, I do not consider Mr Fisher’s evidence in chief always reflected his own evidence. On many occasions it appeared to reflect Ms Reynolds’ evidence and language rather than his own recollection or understanding of events. In contrast, I found his answers under cross examination, largely, to be considerably more spontaneous. Thirdly, I observe that Mr Fisher was able to follow and respond to questions, although with less ease if the question was complex or long and communicate adequately.
Factual Background and Findings of Fact
Employment with the Respondent
[12] Mr Fisher is a 33-year-old man. He commenced employment with the Respondent in August 2017 as a casual workshop assistant. Mr Fisher’s employment in this position was facilitated by Mr Fisher’s stepfather, Mr Reynolds, who is also employed by Deutz. In September 2018 Mr Fisher gained a permanent part-time position with Deutz as a warehouse store person, working 32.5 hours per week.
[13] Mr Fisher’s permanent part-time position was subject to a six-month probationary period, which concluded in March 2019.
[14] Mr Fisher’s role included picking and packing of orders, booking orders on the computer, loading and unloading trucks, moving engines with a forklift, processing inbound deliveries and refilling shelves. 4
[15] During his employment with Deutz, Mr Fisher obtained a forklift licence. Mr Fisher sat his forklift licence orally rather than sitting a written test.
[16] At the time of his dismissal, Mr Fisher reported to Mr Thorben Jaeschke. Prior to 1 March 2019, Mr Fisher reported to Mr Damian Dickson.
[17] On 7 December 2018 Mr Fisher was issued with a first warning letter.
[18] On 6 May 2019 Mr Fisher was issued with a second warning letter.
[19] On 19 September 2019 Mr Fisher was issued with a further letter entitled “Letter of Improvement”.
[20] On 24 October 2019 Mr Fisher’s employment was terminated, effective immediately, for failing to meet the standards of performance required of his position. He was provided with six weeks’ pay in lieu of notice, being four weeks in excess of his legal entitlements.
[21] The termination letter provided to Mr Fisher on 24 October 2019 (Termination Letter) provides as follows:
“Dear Thomas,
I refer to our meeting on 24th of October 2019, which was held to discuss matters relating to your unsatisfactory performance.
As you are aware, we have been working with you over a period of time towards addressing performance issues. Most recently, we engaged you in performance discussions that took the place on the 16th of July 2019, 19th of September 2019 and 4th of October 2019. During those meetings we aimed to support you to improve
performance to expected standards.
You were advised at this time that a failure to meet these required standards may result in termination of your employment.
As advised to you in our meetings, your performance has not met the required standards, which included the following:
- Break times - long unproductive time and too much socializing with colleagues during work time
- Following set procedure to fill in and work with parts picking checklists
- Proper inbound parts checking and put away in correct storage locations
- Forklift operation skills
You were provided with the opportunity to respond to these concerns and you were unable to provide any specific reason for this.
I hereby confirm that your employment is terminated on the basis that your performance has not met the required standards effective close of business 24th of October 2019.
Please find attached the details of your final payment, which includes:
- All accrued annual leave entitlements
- Six weeks’ pay in lieu of notice (less already paid October salary)
Your final payment will be transferred into your bank account by COB 25th of October 2019.
Thank you for your service to DEUTZ. We take this opportunity to wish you all the best with your future endeavours.” 5
Mr Fisher’s disability
[22] It is uncontentious, and I accept, that Mr Fisher has partial deafness and some speech impairment. Mr Fisher says he has profound hearing loss in his right ear and severe hearing loss in his left ear. 6 Mr Fisher wears a hearing aid in his left ear.7 As a result, Mr Fisher says his hearing is limited to a distance of five to eight feet. After that distance he relies upon body language and lip reading.8
[23] Mr Fisher submits that further to his partial deafness, he experiences difficulties with language and comprehension including:
• Speaking in broken sentences; 9
• An understanding of approximately one quarter to one third of words that others use; 10 and
• Limited mathematical skills. 11
[24] Mr Fisher says he is a visual-spatial learner 12 and that he often does not comprehend all of what is being said to him, and even less so when in writing.13 Mr Fisher’s evidence was that he cannot read.14 However, he also gave evidence that he holds a drivers’ licence, drives a car,15 could read the address for dispatch of goods,16 used and read the warehouse computer17 and completed the picking slips.18 Ms Reynolds’ evidence is that Mr Fisher has a very low reading and comprehension level19 and understands and uses about 30-50 percent of the words other people use.20 She gave further evidence that Mr Fisher lives independently.21
[25] Mr Fisher submits that Deutz was generally aware of his language comprehension difficulties and that speaking clearly to Mr Fisher was not sufficient to ensure his understanding. 22
[26] Deutz submits that it understood that Mr Fisher could have some difficulties comprehending long complex sentences, 23 however at no stage did Mr Fisher advise his immediate supervisor or management of difficulties in performing his duties.24
[27] Mr Jaeschke’s evidence was that he had no difficulties communicating with Mr Fisher 25 but he was aware that Mr Fisher sometimes had difficulty reading long and complex sentences.26 Mr Jaeschke also gave evidence that the literacy and language comprehension requirements of Mr Fisher’s role were very basic. He says that the role required visual skills to match material numbers and storage locations. His evidence was that Mr Fisher’s work involved “basically kind of tables” and short instructions of usually three to four words.27 He says further that mathematical skills were not required, only basic numerical skills.28 Mr Torkar’s evidence was that Deutz was aware of Mr Fisher’s hearing disability and speech impairment.29 He says Mr Fisher had no difficulties communicating with him.30
[28] Mr Fisher’s induction checklist, signed by his stepfather, Mr Reynolds, states only at “Special Medical Needs/Allergies” that Mr Fisher has partial deafness. 31
[29] Mr Dickson’s evidence was that the role occupied by Mr Fisher required literacy and numeracy “to an extent.”
[30] I accept that Mr Fisher has partial deafness and some speech impairment. I find that Deutz was aware these matters. However, Mr Fisher filed no medical evidence to support his asserted language, reading and comprehension deficits and, in my opinion, there is no probative evidence before the Commission upon which it could be concluded that Mr Fisher is unable to read or has the language and comprehension abilities asserted by him and Ms Reynolds. I note that Mr Reynolds, his stepfather, did not identify any matters other than “partial deafness” on Mr Fisher’s induction checklist. Further, Mr Fisher was able to follow and respond to questioning whilst giving his evidence. There was evidence before the Commission that Mr Fisher would chat and engage in the workplace, which appears to indicate that Mr Fisher was able to communicate adequately. 32 That Mr Fisher is illiterate would appear to be contradicted by Mr Fisher’s ability to hold a drivers’ licence and drive a car and his own evidence that he had sufficient literacy to read and use the warehouse computer. However, I accept that Mr Fisher may have difficulties with long and complex sentences and may require additional explanation of written materials. I also accept that this was known to Deutz. I accept Mr Jaeschke’s evidence that Mr Fisher’s role required only very basic literacy and comprehension skills and that mathematical skills were not required, only basic numerical skills. This is consistent with Mr Dickson’s evidence that the role required literacy and numeracy to an extent only. Accordingly, whilst I find that Mr Fisher did have hearing loss, some speech impairment and difficulty with long or complex sentences, on the basis of the evidence before the Commission, there is no evidence to conclude that he was illiterate or did not have sufficient literacy and comprehension skills to enable him to perform his role with Deutz.
First Warning Letter
[31] It is uncontested that on 7 December 2018 Mr Dickson issued Mr Fisher with a warning letter regarding break times and length of lunch breaks (First Warning Letter). 33 Mr Fisher did not contest the circumstances leading to the issuing of the First Warning Letter.
Second Warning Letter
[32] On 3 May 2019 Mr Fisher used a high reach forklift to unload a truck outside the warehouse. On 6 May 2019 Mr Fisher was issued with a second warning letter for ignoring an instruction to not use the high reach forklift outside the warehouse (Second Warning Letter). 34 That letter provides, relevantly, as follows:
“On the morning of Friday, the 3rd of May, I brought to your attention that we had some issues with the Crown high reach truck driving outside the warehouse. This forklift has a very low ground clearance which can cause serious damages to the machine on uneven surfaces.
Based on this, you were instructed not use this high reach truck outside the warehouse to unload trucks and use the counter balance forklift instead. This was clearly explained and understood by you.
Later this day, it was brought to my attention that you have ignored this instruction and used the high reach truck to unload a truck. You took the risk of damaging the machine without any reason.
…
This is your second warning letter. You have received your first warning letter on December the 7th 2018 for extended lunch breaks. Your employment may be terminated if your performance does not improve in the next few months.”
[33] Mr Jaeschke’s evidence is that all licensed forklift drivers employed by Deutz were instructed not to use the high reach forklift outside the warehouse. He says Mr Fisher drove the high reach forklift outside the warehouse. 35 Mr Jaeschke says he issued the Second Warning Letter to Mr Fisher for failing to comply with the instruction not to do so.36
[34] Mr Fisher conceded that this instruction was given to him 37 and that in breach of this instruction he used the high reach forklift outside the warehouse.38 He also agreed that in doing so he took a risk and it was dangerous.39
[35] Mr Fisher contends that he was issued the Second Warning Letter for damaging the high reach forklift after he drove it outside and considerable time was spent in the hearing addressing this matter and related alleged occupational health and safety issues regarding Deutz’s forklifts. 40 I reject this contention. Firstly, I consider the terms of the Second Warning Letter to be clear. In my opinion, it was not issued because Mr Fisher damaged the forklift. It clearly references the instruction given to Mr Fisher and that he “ignored” that instruction. Secondly, this is consistent with Mr Jaeschke’s evidence as to why he issued the Second Warning Letter. I accept that evidence.
[36] Accordingly, I find that Mr Fisher was issued with the Second Warning Letter for not following a direction given to him not to drive the high reach forklift outside.
Mr Jaeschke’s Commencement in the Role of Logistics Supervisor
[37] Mr Jaeschke’s evidence is that he commenced in the role of Logistics Supervisor on 1 March 2019 and assumed responsibility for the warehouse operations. Mr Dickson previously held this role. He says that during the handover from Mr Dickson, Mr Dickson recommended that he terminate Mr Fisher’s employment before the end of his probationary period as he was not performing adequately and was making too many mistakes. 41 Following discussion with Mr Chamberlain, the Managing Director of Deutz, and Mr Torkar, it was determined to continue Mr Fisher’s employment and that Mr Jaeschke would make his own assessment of Mr Fisher’s performance.42 Mr Dickson denies that he told Mr Jaeschke that he should terminate Mr Fisher’s employment and says he made this recommendation in relation to another employee.43 He gave evidence that notwithstanding the issuing of the First Warning Letter, Mr Fisher was a good employee44 and did not make errors more frequently than any other employee.45 I do not consider it necessary for me to determine whether Mr Dickson recommended Mr Fisher’s employment be terminated before the end of his probationary period, as it is clear that whether this recommendation was made or not, Mr Fisher’s employment was not terminated at that time. As to Mr Dickson’s view that Mr Fisher was a good employee, Mr Dickson ceased employment with Deutz prior to March 2019 and was therefore not privy to any of concerns Mr Jaeschke alleges arose in respect of Mr Fisher’s performance. Mr Dickson’s own evidence was that he could not comment on Mr Fisher’s performance in the “last 10 months.”46
Letter of Improvement
[38] On 19 September 2019 Mr Fisher was issued with a further letter entitled “Letter of Improvement” (Letter of Improvement) which raised the following concerns regarding Mr Fisher’s performance including:
• Punctuality;
• Private mobile phone use;
• Break times;
• Completion of the parts checking list;
• Putaway of parts;
• Packing instructions; and
• Forklift driving.
[39] The Letter of Improvement stated the following:
“Your performance will be monitored over the next 4 weeks and your employment status will be reviewed at that stage.”
[40] Mr Jaeschke’s evidence was that the Letter of Improvement was the result of matters that had been identified over a long period of time. His evidence was that it was a summary of all the ongoing verbal discussions with Mr Fisher over the “weeks and months” before. 47
[41] The Termination Letter does not assert that a reason for Mr Fisher’s termination of employment was his punctuality, mobile phone use or the following of packing instructions. Mr Jaeschke’s evidence is that Mr Fisher’s performance in relation to these matters improved following the Letter of Improvement. 48 Accordingly, I consider it unnecessary to traverse the evidence in relation to these matters.
Break Times
[42] In relation to break times, the Letter of Improvement provides as follows:
“Every employee is entitled to a 30-minute lunch break as well as a short break in the morning and afternoon. If the short breaks in the morning and afternoon are taken, other unproductive time or socialising with colleagues during working time should be avoided.”
[43] Mr Jaeschke’s evidence is that Mr Fisher spent a lot of time socialising with colleagues during working hours 49 and that he counselled Mr Fisher on this, including in performance discussions.50 Mr Jaeschke says the issue was not with Mr Fisher’s lunch breaks, but that Mr Fisher took additional breaks. He says that if Mr Fisher needed to check something with the sales department, he would disappear for 15 minutes and would be found “chatting with everybody.” He says that colleagues in the sales department would telephone him and inform him that Mr Fisher was staying for a long time and interrupting their work.51 He says this created an unfair workload on the other store person who was required to perform the work of two people.52
[44] Mr Fisher’s evidence is that he took his breaks on time and did not take longer than allowed. 53 He further says that he would sometimes go into the office and say hello to staff, however this was a frequent occurrence amongst staff.54
[45] I accept the evidence of Mr Jaeschke over that of Mr Fisher as to this matter and find that Mr Fisher did spend an unacceptable amount of time socialising with colleagues during work hours. Firstly, I found Mr Jaeschke to be a credible witness, who gave honest, direct and spontaneous evidence. My observation of Mr Jaeschke was that he was sympathetic towards Mr Fisher and distressed by his dismissal. I consider it unlikely that Mr Jaeschke would give untruthful evidence as to Mr Fisher’s performance. Secondly, I have earlier expressed my perceptions of Mr Fisher’s evidence in chief. Thirdly, Mr Fisher agrees that he would sometimes go into the office to say hello to the staff. He gave evidence that he was very happy at Deutz because “all my people love me, I love them.” 55 In light of this, I consider it likely that Mr Fisher was “chatting with everybody” as asserted by Mr Jaeschke.
Parts Picking Checklist
[46] In relation to the parts picking checklist, the Letter of Improvement provides as follows:
“Picking checklists must be used in their designated way to minimise errors in outbound deliveries. All fields need to get filled in step by step to avoid costly mistakes.”
The Checklist
[47] Mr Jaeschke’s evidence is that upon commencing in the role of Logistics Supervisor he received many customer complaints and complaints from other departments about errors and mistakes in goods being dispatched from the warehouse. 56 One of the measures implemented by Mr Jaeschke in order to try to assist Mr Fisher and minimise errors in goods dispatched from the warehouse was the creation and utilisation of a parts picking checklist (Checklist).57 Mr Jaeschke introduced the Checklist for outbound parts to accompany the picking slip to enable employees to double check their own work and to break down the work into steps. He says this was introduced around the beginning of April 2019.58 The Checklist required employees to sign off on each task. This also created a record of who had performed each task.59 Mr Jaeschke’s evidence is that Mr Fisher was reluctant to use the Checklist and failed to use it as required.60 He says Mr Fisher would take short cuts with the Checklist61 and would sign it before the tasks had been done, or complete all the tasks and then sign it, rather than using it to work through the process.62
[48] Mr Jaeschke’s evidence is that when an error was identified, he spoke to the employee who had completed the task as identified on the Checklist. His evidence was that Mr Fisher made two to three errors per week 63 and he spoke to Mr Fisher each time an error was identified as being made.64 His evidence was that even when the Checklist indicated that Mr Fisher was responsible for the error, he would straightaway say “It wasn’t me, I didn’t do a mistake.”65
[49] Mr Fisher does not contest that the Checklist was introduced and concedes that on occasion he made mistakes in the Checklist. 66 Mr Fisher’s evidence was that Mr Jaeschke did speak to him about mistakes he made.67 He says this occurred a “few times”68 and “not a lot”.69 He says that the mistakes could not be his because everyone makes mistakes70 and warehouse mistakes were not his fault as other people were doing the wrong thing.71 He says that he learnt from Mr Jaeschke and his co-worker so that the mistakes would not happen again.72 He says that Mr Jaeschke introduced the Checklist73 to reduce the errors being made in the warehouse and to “check and double check”.74 Mr Fisher says he used the Checklist and it helped a little bit75 but it was a “lot of work” and used time that could have been used on other things.76 He says it made the process slow.77 Under cross examination he said he was able to read the Checklist and said it was “simple”.78 He also said under cross examination that picking and dispatching was a “very simple basic job”79 and that he gave “feedback” to Mr Jaeschke regarding the Checklist.80
[50] I accept the evidence of Mr Jaeschke as to Mr Fisher’s reluctance to use the Checklist and that that he failed to use it as required. I consider it consistent with Mr Fisher’s own evidence that the Checklist was a lot of work, made the process slow and used time that could be used on other things. It is uncontested that Mr Jaeschke raised Mr Fisher’s errors with him. As to how often this occurred, I prefer the evidence of Mr Jaeschke over that of Mr Fisher. Firstly, I have already found that I consider it improbable that Mr Jaeschke gave untruthful evidence as to Mr Fisher’s performance. Secondly, in my view, Mr Fisher sought to downplay the number of mistakes made by him and sought to justify them, or alternatively not accept them, on the basis that “everyone makes mistakes”. I therefore consider his assertions that Mr Jaeschke raised mistakes he was making in the dispatch of goods only a “few times” to be unreliable. Accordingly, I find that on each occasion that an error was identified as being made by Mr Fisher, Mr Jaeschke spoke to Mr Fisher about that error.
[51] Mr Fisher submits that no help was given to him with reading the Checklist or support provided with his low literacy level. 81 I reject this submission. Mr Fisher’s evidence at hearing was that he could read the Checklist and that it was simple. Further, he also says he was able to give feedback to Mr Jaeschke regarding the Checklist which, in my view, is inconsistent with a contention that he had difficulties reading and understanding the Checklist.
The Error Log
[52] Mr Jaeschke’s evidence is that in order to accurately determine how many errors were occurring and to have an objective measurement of them he also introduced an error log (Error Log) 82 on 1 April 2019. The Error Log recorded complaints from customers in relation to dispatched goods.83 Mr Jaeschke’s evidence is that the Error Log was accessible to all employees84 and available on the server.85 Other sales department employees could input information into the Error Log when a customer complaint was received but it was mainly managed by Mr Jaeschke.86
[53] Mr Torkar’s evidence is that he approved a performance process to address Mr Fisher’s error rate and low productivity issues. 87 Mr Torkar’s evidence is that by May 2019 the Error Log indicated that Mr Fisher had made 11 costly errors in the previous month.88 Mr Torkar’s evidence is that errors were usually discovered by way of customer complaint.89
[54] Deutz produced an extract from the Error Log specific to Mr Fisher’s errors (Fisher Error Log). 90 Deutz submits that the Fisher Error Log demonstrates that between April 2019 and October 2019 Mr Fisher made at least 50 dispatch errors.91 The Fisher Error Log identifies the following errors:
• Short supply;
• Dispatched to wrong address;
• Dispatched with wrong carrier;
• Dispatched on wrong freight account;
• Wrong parts dispatched; and
• Others.
[55] Deutz submits that these errors resulted in customer complaints, additional freighting costs, reputational costs and lost parts. 92
[56] Mr Fisher disputes the veracity and accuracy of the Fisher Error Log 93 and contends that it is fabricated.94 Mr Fisher contends that it was arbitrarily created for the selective and discriminatory management of his performance, or alternatively, in support of Deutz’s response to his unfair dismissal application. This submission appears to be based on Mr Dickson’s evidence that such documents did not exist when he was employed at Deutz95 and that the document produced does not have a Deutz document management number on it.96 Mr Dickson’s evidence was also that whilst errors were monitored during his time at Deutz, they were not documented in a targeted manner.97
[57] Mr Torkar’s evidence was that Mr Jaeschke created the Error Log. 98 It was put to Mr Torkar in cross examination that the Fisher Error Log was fabricated. Mr Torkar denied this saying it was completely untrue.99 His evidence was that the focus was on reducing errors in the warehouse and this was tracked by way of the Error Log. The Error Log was kept for all store persons. The Error Log demonstrated that in a six-month period Mr Fisher made at least 50 errors whereas the other store person made virtually none.100 Mr Torkar’s evidence was that it is “not the case” that all Deutz documents have a number.101
[58] I reject the contention that the Fisher Error Log was fabricated. Firstly, Mr Jaeschke’s evidence is that he created and implemented the Error Log on 1 April 2019 in order to track the number of errors occurring in the warehouse in relation to dispatched goods. Mr Jaeschke’s evidence as to this is supported by the evidence of Mr Torkar and was not challenged in cross examination. Secondly, Mr Dickson’s employment with Deutz ceased prior to the creation of the Error Log by Mr Jaeschke. Mr Dickson’s evidence that such a document did not exist during his employment is therefore entirely unremarkable. It does not establish or, in my view, even suggest, that the Fisher Error Log is fabricated. As to the contention that the Fisher Error Log is fabricated because it does not have a document number, Mr Torkar refutes that all Deutz documents have a specific number. Further, Mr Dickson is no longer employed by Deutz. At best, his evidence goes to his understanding of how Deutz managed documents while he was employed. It is not, in my view, reliable evidence as to how Deutz managed documents at the relevant time the Fisher Error Log was created. As to Mr Dickson’s evidence that errors were not documented in a targeted manner, the evidence is that all dispatch errors were recorded and a document reflecting those errors attributable to Mr Fisher was produced. Accordingly, it is not the case that errors were recorded in a “targeted” manner. I therefore find that the Fisher Error Log reflects the errors made by Mr Fisher for the period April 2019 to October 2019 in relation to the dispatch of goods from the warehouse. It therefore follows, in light of my finding above, that Mr Jaeschke spoke to Mr Fisher each time an error was identified that was attributable to him, that in the period April 2019 to October 2019 Mr Jaeschke spoke to Mr Fisher around 50 times regarding mistakes in the dispatch of goods. I also accept that these errors resulted in customer complaints, additional freighting costs, reputational costs and lost parts.
Inbound Parts Checking
[59] In relation to inbound parts checking, the Letter of Improvement provides as follows:
“All incoming parts must be labelled with correct material numbers and put into the designated storage location. As discussed on several occasions, all parts locations must be checked against the listed location on the putaway slip when receiving goods via air and sea freight deliveries.”
[60] Mr Jaeschke says that Mr Fisher was required to check inbound deliveries for their quantities and place them into the designated storage locations. His evidence is that Mr Fisher frequently placed parts into the incorrect locations. 102 He also gave evidence that Mr Fisher would not update the parts location slip, resulting in parts being put in the wrong location. He says that when a storage location was full, Mr Fisher would place parts in a nearby location, rather than parts being relocated to a correct storage area and would not update location documentation.103 Mr Jaeschke’s evidence is that parts putaway is simply the reverse of parts picking. He says that the parts have a list that shows the material number, the location in the warehouse and the quantity of goods. To put parts away, you take the part, look at the material number, find the location, double check it against the list and put it away.104 The putaways are written in table form, in the same way as the picking slips.105
[61] Mr Fisher concedes that he sometimes made mistakes in relation to the correct storage of parts. 106 However, he submits that the mistakes made were minimal and for the most part, parts were stored correctly.107 He submits that in comparison to the “huge” amounts of parts which were delivered to the warehouse, the mistakes were very few.108
[62] The Fisher Error Log deals only with dispatch (outbound goods) errors and does not record putaway (inbound goods) errors. These are recorded in the Employee Performance Log (a matter which I address below). Mr Fisher concedes, and I find that, he made errors in relation to the correct storage of goods. As to the frequency of this, I find that this occurred on more occasions than “very few”. Firstly, as set out above, Mr Fisher tended to downplay his errors. Secondly, there is no evidence of the number of parts delivered to the warehouse such that it may be concluded that there were “huge” number of parts delivered and the errors made by Mr Fisher were therefore relatively very few. Thirdly, inbound goods errors are recorded in the Employee Performance Log. For the reasons set out below, I accept that document does not accurately reflect all of Mr Fisher’s performance issues. However, even based on the Employee Performance Log, there are five instances of errors between 3 May 2019 and 15 October 2019 in relation to inbound goods, including two instances where three engines were incorrectly stored.
Forklift Operation Skills
[63] In relation to forklift driving skills, the Letter of Improvement provides as follows:
“Employees in the warehouse must be able to load and unload trucks and containers without supervision within an appropriate time.”
[64] Mr Jaeschke’s evidence is that Mr Fisher was required to load and unload trucks and place and remove engines on and from racking. He says that Mr Fisher repeatedly avoided these tasks and was reluctant to improve his forklift skills. He says Mr Fisher would disappear from the warehouse when a truck came to be loaded or unloaded. 109 He says that Mr Fisher was licensed to drive a forklift so knew “the basics” but practice was required to get a feel for the forklift and gain the skills needed to load and unload trucks.110 His evidence is that he asked Mr Fisher why he did not want to load and unload trucks and he simply said “I don’t want to do it.”He says this was the case even if he offered to supervise Mr Fisher.111Mr Jaeschke’s evidence is that he had ongoing discussions with Mr Fisher about the need for him to do these tasks.112
[65] Mr Fisher’s evidence is that he understood that forklift driving was part of his job. He says the reason for his reluctance to practice was because there was no one to supervise him. However, he says that he did sometimes practice in the warehouse. 113 He gave evidence that he was nervous to drive the forklift.114
[66] I accept Mr Jaeschke’s evidence as to these matters. Mr Fisher’s own evidence is that he knew forklift driving was part of his job, that he was nervous driving the forklift and reluctant to practice. I consider this to be consistent with Mr Jaeschke’s evidence that Mr Fisher avoided loading and unloading trucks and moving engines with the forklift and was reluctant to improve his forklift skills. Mr Fisher has a forklift licence and is therefore competent to drive a forklift. I therefore do not accept Mr Fisher’s evidence that he did not practice as there was no one to supervise him. Further, I accept Mr Jaeschke’s evidence that Mr Fisher would not practice even if Mr Jaeschke offered to supervise him. Accordingly, I find that Mr Fisher avoided loading and unloading trucks and moving engines with the forklift and was reluctant to improve his forklift skills.
Employee Performance Log
[67] Mr Jaeschke’s evidence is that he also recorded matters of concern in relation to Mr Fisher’s performance in an employee performance log document (Employee Performance Log). 115 Mr Jaeschke’s evidence is that due to having to move the warehouse to a new premises, and taking over the role of Logistics Manager, the Employee Performance Log was not started until 3 May 2019.116 His evidence was that employee performance logs are used in mid-year and annual performance reviews.117 He gave evidence that he “did not do a good job with documenting everything” in the Employee Performance Log.118 Under cross examination Mr Jaeschke also agreed that the Employee Performance Log contained some errors as a result of cutting and pasting text from one entry into another and not amending the date of the event.119
[68] Mr Torkar’s evidence is that Mr Jaeschke was responsible for and produced Mr Fisher’s Employee Performance Log. 120 Employee Performance Logs are meant to be maintained for all employees, although he agreed that it was probable that one was not completed for every employees.121 Entering information into an Employee Performance Log is the responsibility of the relevant manager.122 His evidence was that the Employee Performance Log is part of Deutz’s performance management system123 which was implemented four to five years ago.124 The document includes the notation “PMS Form 2” on the bottom of the document.125 It is used for discussion at mid-year and annual performance reviews.126
[69] The Employee Performance Log was in evidence before the Commission. 127 The log contains 17 entries for the period 3 May 2019 until 15 October 2019. Of those entries, nine relate to punctuality and use of mobile phone during work hours, five relate to putaway errors (including storage of goods in the wrong location and failure to document parts location changes), one relates to the forklift incident on 3 May 2019, one relates to forklift operation skills and one relates to packing instructions. Accordingly, the matters contained in the Employee Performance Log reflect five of the seven matters contained in the Letter of Improvement.
[70] As with the Fisher Error Log, Mr Fisher disputes the veracity and accuracy of the Employee Performance Log 128 and contends that it is also fabricated.129 This also appears to be based on Mr Dickson’s evidence that he had never seen the Employee Performance Log document before130 or a Deutz document that collated workplace errors and mistakes only.131 He said it was in the same format as the yearly performance review document, albeit he considered it was a modified version. He also gave evidence that in his view, he considered that the Employee Performance Log was “put together afterwards - after the fact”.132 Mr Fisher also submits that five of the entries are “inexplicably identically worded” and is devoid of any inbound receipt/processing errors.133 In addition, regardless of the legitimacy of the Fisher Error Log or the Employee Performance Log, Mr Fisher submits that the dates of entries in both documents pre-date performance discussions.134
[71] In cross examination Mr Torkar rejected as completely untrue the contention that the Employee Performance Log was fabricated. 135 Although all the evidence was that Mr Jaeschke was responsible for populating the Employee Performance Log, this contention was never put to him in cross examination.
[72] I reject the contention that the Employee Performance Log is fabricated. In my view, Mr Dickson’s assertion that the document was created after the fact is unsupported by any evidence. It is denied by Mr Torkar and was not directly put to Mr Jaeschke in cross examination. It is contradicted by both Mr Torkar and Mr Jaeschke’s evidence. Mr Dickson’s evidence is that the document is in the same format as the yearly review document. I consider this to be consistent with Mr Torkar and Mr Jaeschke’s evidence that the document is the document used in mid-year and annual performance reviews. Further the document is identified as “PMS Form 2.” In my view, this supports Mr Torkar and Mr Jaeschke’s evidence that the document is part of Deutz’s performance management system. Accordingly, I find that the Employee Performance Log was created by Mr Jaeschke to record certain performance issues of Mr Fisher. Mr Jaeschke conceded that he had not done a “good job” of documenting matters in the Employee Performance Log. I accept that evidence and find that it is not a complete record of Mr Jaeschke’s concerns regarding Mr Fisher’s performance.
[73] Mr Jaeschke also accepted that the document contained errors, most particularly in relation to entries concerning Mr Fisher’s punctuality. His evidence was that these errors were the result of cutting and pasting entries in relation to the same repeated performance concern. I find nothing remarkable in this, in circumstances where there is a repeated performance concern (in this case punctuality). I therefore reject the submission that there are a number of “inexplicably identically worded” entries. In any event, Deutz says that Mr Fisher’s punctuality improved after the Letter of Improvement and does not rely upon it as a reason for Mr Fisher’s dismissal. I note that the Employee Performance Log contains no entries in relation to Mr Fisher’s lateness after that date.
[74] I also find nothing remarkable in the fact that the Employee Performance Log does not contain any outbound goods errors. These were separately recorded in the Error Log. I accept that ordinarily such a document would record both positive and negative performance matters. However, in the present circumstances, I find nothing unusual in the absence of positive matters. Mr Fisher’s performance was unsatisfactory. Mr Jaeschke sought to make a contemporaneous record of Mr Fisher’s performance issues. This seems to me to be not only unremarkable but also entirely appropriate.
[75] Mr Fisher’s contention that the Employee Performance Log is devoid of any inbound receipt/processing errors is incorrect. Entries on 13 May 2019, 2 July 2019, 1 October 2019, 8 October 2019 and 15 October 2019 relate to inbound goods errors.
[76] Finally, I accept that the entries in the Employee Performance Log and the Fisher Error Log predate the performance discussion of 19 September 2019. However, there is no articulation by Mr Fisher as to why he considers this of relevance in the present circumstances. For my part, I find nothing remarkable in that fact. Mr Jaeschke’s evidence is that he created and implemented the Error Log to quantify the number of outbound goods errors from the warehouse. He says he did this following taking over the role of Logistics Supervisor in March 2019 and receiving complaints regarding dispatch errors. Likewise, he gave evidence as to why the Employee Performance Log commenced in May 2019. I find the inclusion of entries in the relevant documents from their commencement to be consistent with Mr Jaeschke’s evidence that from at least April 2019 he had concerns regarding Mr Fisher’s performance and he sought to quantify the dispatch errors being made and record those concerns. I also consider it entirely appropriate that there be objective evidence of performance concerns before such matters are raised with an employee. Accordingly, I find nothing of note in these circumstances and further, it is not clear to me what Mr Fisher says arises from it.
Performance Discussions and Warnings
[77] Mr Jaeschke’s evidence is that he met with Mr Fisher when he issued the Second Warning Letter, the Letter of Improvement and also on 4 October 2019 to discuss Mr Fisher’s progress in relation to the matters raised in the Letter of Improvement. Mr Jaeschke’s further evidence was that during performance counselling, it was explained to Mr Fisher verbally and in writing that these continual errors could result in the termination of his employment. 136
[78] In relation to the Second Warning Letter, Mr Jaeschke’s evidence is that he went out to meet Mr Fisher as he arrived at the warehouse and told him that he would like to speak with him about his performance. He says they went to a meeting room and that he discussed with Mr Fisher his breach of the direction not to use the high reach forklift outside and the consequences which could have arisen. He says he told Mr Fisher that this was a second warning and that he still needed to see improvement around the errors Mr Fisher was making in the warehouse. He says he then handed Mr Fisher the Second Warning Letter. Mr Jaeschke’s evidence is that in response Mr Fisher said “Shit, this is my second warning letter. One more letter and I will be kicked out.” 137
[79] In relation to the Letter of Improvement, Mr Jaeschke says he also gave this to Mr Fisher at a meeting, after meeting him as he arrived at the warehouse and telling him he would like to speak with him about his performance. He says he went through each of the issues identified in the Letter of Improvement verbally. He says that Mr Fisher did not deny any of the performance issues raised. He says Mr Fisher understood the issues and what he was doing wrong. 138 He says Mr Fisher understood that at the end of the four week review period his employment might be terminated if he did not show improvement. He says at the end of the meeting, Mr Fisher asked, “Is this a written warning?” and Mr Jaeschke told Mr Fisher that it was a final warning and that improvement in his performance was required.139
[80] Mr Jaeschke’s evidence is that he met with Mr Fisher again on 4 October 2019 to review Mr Fisher’s progress against the matters raised in the Letter of Improvement. He says he told Mr Fisher the meeting was to see how he was progressing. He says he told him that there had been improvement with punctuality, following packing instructions and private use of his mobile phone but that there was no clear improvement in break times, parts picking checklist, parts putaway and forklift driving. 140 Mr Jaeschke says he made hand written notes on a copy of the Letter of Improvement to record the discussions held at this meeting.141 That document was in evidence before the Commission142 and includes the following handwritten notes in relation to the six matters set out in the Letter of Improvement:
Punctuality – “OK”
Private mobile phone use – “OK”
Break times – “spent lots of time in spare parts department- colleagues keep reminding him to go back to work”
Parts picking checklist – “2 errors this week – concentrate and use check list”
Parts putaway – “some parts and 3 engines still ended up into incorrect locations”
Packing instructions – “OK”
Forklift driving – be a bit more pro active – don’t deny loading cause you don’t like the driver” (reproduced as written).
[81] Mr Jaeschke’s evidence as to these matters was not challenged.
[82] Under cross examination Mr Jaeschke’s evidence was that when he had a meeting with Mr Fisher he never simply gave him a letter. He says that he would explain in detail the contents of the letter, make sure he understood it, then give him the letter and finally read the letter out to Mr Fisher. 143 He says he never gave Mr Fisher a letter and got him to read it.144
[83] Mr Jaeschke says prior to each meeting he offered Mr Fisher the opportunity to have a support person attend and that on each occasion, Mr Fisher declined saying he did not need a support person, he could do it himself. 145
[84] Mr Fisher’s evidence in chief is that he recalls having a couple of meetings with Mr Jaeschke but he thought they were unimportant as everyone has meetings. 146 Mr Fisher submits that at no point did performance discussions make clear or explicitly state that his employment was in jeopardy if his performance did not improve.147
[85] Mr Fisher’s evidence in chief in relation to the warning letters is that he recalls getting maybe two letters but he does not know what he did with them. 148 He does however concede that he found a copy of the Letter of Improvement, but did not know what was written in it as he could not properly read it.149 Mr Fisher’s evidence in chief is that he does not know what a warning is.150 His evidence was that he did not understand the warnings and did not know what they meant.151 He gave evidence that everybody gets warnings152 and that they are helpful.153
[86] However, under cross examination, Mr Fisher said that Mr Jaeschke spoke to him about the Second Warning Letter, 154 that Mr Jaeschke explained it to him155 and he understood it was a warning.156 He gave further evidence under cross examination that he understood it was a second warning.157 The following exchange occurred between Ms Polities and Mr Fisher:
“It says here, ‘Your employment may be terminated if your performance does not improve in the next few months.’ What did you understand that to mean? -By giving a third warning then I’ll go.
Is that what you understood? -Yes, I understand good.
So you understood that if you were given a third warning - did you say that at the time, to Thorben? -Yes.
You said that? -He told, me and I said okay.
So Thorben told you? -And I - and then I understand what’s going on. 158
…
All right. But we’ve established that you knew this was a second warning? -Yes.
And that you knew that if you were to go back into a meeting for a third time, that it was likely your employment would end? -Yes.” 159
[87] In relation to the meeting on 19 September 2019 in which Mr Fisher received the Letter of Improvement, Mr Fisher’s evidence under cross examination was that Mr Jaeschke told him this was his third letter, 160 that it was his final letter and that he had four weeks to show why he should not be terminated.161 He said that Mr Jaeschke explained the letter to him.162 He gave further evidence that he understood as a result of the third letter he “might go”.163 He understood that it was a warning.164 The following exchange occurred between Ms Politis and Mr Fisher:
“Or something like that? -But it never happened to when I working my myself warehouse, you know, in my - like this - this is something new.
This was something new? -It’s like checking people to do the right thing at work. We need to do the right thing at work.
Okay, so did you think that this was a test? -It’s the test. I know this is a test and everyone get a warning. So that’s it. And I understand it’s four weeks, if you - if you let me go.
Yes? -I don’t know, see what happen.
Yes. But he did say that there would be a meeting in four weeks and that in four weeks that your employment might come to an end? -Yes.” 165
[88] He gave further evidence under cross examination, that after work that day he showed the Letter of Improvement to his stepfather. 166 He says his stepfather also told him it was a final warning.167 Mr Reynolds denied that Mr Fisher had shown him the Letter of Improvement.168 In closing oral submissions Ms Reynolds sought to reconcile Mr Fisher’s evidence on this point with that of Mr Reynolds’ submitting that Mr Fisher had misunderstood the question in cross examination and that he was referring to showing the First Warning Letter to Mr Reynolds. I reject that submission. I also reject Mr Reynolds’ evidence on this point and accept that of Mr Fisher for the following reasons. Firstly, I found Mr Reynolds to be an evasive witness and to be tailoring his evidence to both support Mr Fisher and also protect his employment relationship with Deutz. He was often unresponsive under cross examination and on occasion responded to questioning with a question. Secondly, I have carefully reviewed the transcript of Mr Fisher’s questioning on this matter. I am satisfied that Mr Fisher understood that the warning he was being questioned as to was the Letter of Improvement. Further, Mr Fisher in response to question from the Bench Mr Fisher confirmed that he showed his stepfather the letter after he met with Mr Jaeschke.169 This therefore cannot be reference to the First Warning Letter. Thirdly, Mr Reynolds’ evidence was that Mr Fisher did not show him any of the warning letters, including the First Warning Letter.170
[89] Mr Fisher agreed there was a further discussion with Mr Jaeschke regarding his performance two weeks later to review his progress against the matters raised in the Letter of Improvement. 171 He says Mr Jaeschke gave him feedback at this meeting.172 He says that Mr Jaeschke told him that at the end of the four weeks he might be terminated.173 He agreed that Mr Jaeschke spoke to him about further mistakes that had happened since 19 September 2019174 and that he went through the matters in the Letter of Improvement.175
[90] Under cross examination, Mr Fisher also agreed that he had other “work” discussions with Mr Jaeschke about the matters in the Letter of Improvement. 176
[91] Mr Fisher says that he was never offered a support person at any of the meetings he had with Mr Jaeschke. 177
[92] I find that Mr Fisher was issued with and received the First Warning Letter, the Second Warning Letter and the Letter of Improvement. He did not contest the circumstances of the First Warning Letter. On his own evidence, the contents of the Second Warning Letter and the Letter of Improvement were explained to him by Mr Jaeschke and he understood they were warnings. He understood that the Letter of Improvement was a final warning and that as a result of it he “might go”. That it was a final warning was further told to him by his stepfather. Accordingly, I find the Mr Fisher did understand what a warning was. I find that he also understood that he had been issued with three warnings and that following the issuing of the Letter of Improvement he had four weeks to improve or he might be dismissed. I find that he was aware of the contents of the Second Warning Letter and the Letter of Improvement. I find that he did understand that his employment was at risk. I also find that on 4 October 2019, Mr Jaeschke identified that Mr Fisher’s performance was still not to the level required in relation to break times, parts picking checklist, parts putaway and forklift driving, and that his employment might be terminated at the end of the four week review period. Finally, Mr Fisher concedes that the matters the subject of the Letter of Improvement were also the subject of other discussions with Mr Jaeschke. Accordingly, I also find that Mr Jaeschke discussed the performance concerns identified in the Letter of Improvement with Mr Fisher, outside of the formal meetings on 6 May 2019 and 19 September 2019.
[93] I reject Mr Fisher’s evidence that he was not offered the opportunity to have a support person with him at any of the meetings he had with Mr Jaeschke, including in relation to the Second Warning Letter and the Letter of Improvement. I found his evidence in relation to these matters to be contrived and rehearsed and to lack credibility.
[94] For completeness, I note that the Termination Letter refers to a performance meeting on 16 July 2019. There is no evidence before the Commission in relation to this meeting and I do not rely upon it.
Dismissal
[95] Mr Fisher’s employment with the Respondent was terminated on 24 October 2019 at a meeting between Mr Jaeschke and Mr Fisher (Termination Meeting).
[96] Mr Fisher submits that the Termination Meeting lasted approximately 10 minutes 178 and that he was not given an opportunity to defend the performance allegations.179 He says that at the Termination Meeting, Mr Jaeschke handed him a sealed letter and told Mr Fisher that he had to sack him.180 Mr Fisher’s evidence is that he opened the letter and attempted to read it but could not make sense of it. He says that Mr Jaeschke did not read the letter to him,181 did not explain anything, and accordingly Mr Fisher did not know why he was being dismissed.182
[97] Mr Fisher’s evidence is that he asked Mr Jaeschke why and for what reason he was being dismissed 183 and whether it was because of an earlier forklift incident where Mr Fisher dropped an engine (Second Forklift Incident). Mr Jaeschke said no. Mr Fisher’s further evidence is that he asked if he could have a chance to fix things, however Mr Jaeschke advised that he could not help as Mr Torkar had already signed the termination letter.184
[98] Mr Fisher says that he asked Mr Jaeschke whether he could work another two weeks, however this request was also refused as Mr Torkar had already signed the termination letter. 185 He says that he was told that his termination pay would be paid into his account.186
[99] Under cross examination, Mr Fisher agreed that he understood that his termination of employment followed the three formal warning letters, the review meeting on 4 October 2019 and other performance meetings. 187
[100] Mr Jaeschke’s evidence is that he approached Mr Fisher on the morning of 24 October 2019 and told him that he wanted to speak with him that afternoon about his performance. He says he told him he could bring a support person but Mr Fisher said he did not need anyone to attend with him. 188 He says that during the Termination Meeting, Mr Jaeschke and Mr Fisher had a lengthy discussion about ongoing performance issues.189 He says he went through all of the matters where Mr Fisher’s performance was not to the required level again.190 He says that he explained to Mr Fisher that there had been some improvement over the past four weeks but he was still not performing to the level required.191 He says Mr Fisher asked if he could have a second chance and asked why his employment as being terminated.192 He says that at the end of the Termination Meeting he provided the Termination Letter to Mr Fisher.193 He says he read it through for Mr Fisher and asked if he had any more questions. He denies that the Termination Letter was handed to Mr Fisher in a sealed envelope and says that the only sealed envelope provided to Mr Fisher was the one containing his final pay slip.194
[101] Mr Fisher denies that he was asked 195 or told he could have a support person present.196
[102] I prefer Mr Jaeschke’s evidence as to the conduct of the Termination Meeting over that of Mr Fisher for the following reasons. Firstly, I found Mr Jaeschke to be a credible and direct witness. In contradistinction I often found Mr Fisher’s evidence, particularly his evidence in chief, to be rehearsed and contrived. I found this to be the case in relation to his evidence as to the Termination Meeting. Secondly, Mr Jaeschke’s evidence as to the conduct of the Termination Meeting is consistent with the evidence, including Mr Fisher’s evidence under cross examination, as to the conduct of the meetings in which the Second Warning Letter and the Letter of Improvement were provided to Mr Fisher. I consider it likely that Mr Jaeschke would have taken the same approach to the Termination Meeting. Thirdly, Mr Jaeschke’s evidence is that he was aware that Mr Fisher had some difficulty with long or complex sentences, and, in those circumstances, I consider it unlikely that he would have simply handed Mr Fisher a sealed letter informing him of his termination. Finally, Mr Fisher’s evidence is that Mr Jaeschke told him he had to sack him. He says that Mr Jaeschke used the word “sacked”. 197 Having observed Mr Jaeschke, and heard his evidence, I consider it improbable that Mr Jaeschke would have expressed himself in this manner. Further, it appears uncontested that Mr Jaeschke was upset by Mr Fisher’s dismissal. In those circumstances, I also consider it improbable that Mr Jaeschke would have expressed himself in such a blunt and insensitive manner.
[103] For the reasons set out earlier in this decision, I reject Mr Fisher’s evidence that he was not offered the opportunity to have a support person with him at the Termination Meeting.
[104] As to any suggestion that Mr Fisher did not understand that his employment was terminated in the Termination Meeting, I consider this is unsustainable in light of his own evidence that he asked for an opportunity to fix things and to work a further two weeks.
Was the Dismissal Harsh, Unjust and/or Unreasonable?
[105] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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 the FWC considers relevant.
[106] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 198
[107] I set out my consideration of each below.
Was there a Valid Reason for Mr Fisher’s Dismissal? – Section 387(a)
[108] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 199 and should not be “capricious, fanciful, spiteful or prejudiced.”200 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.201
[109] The Termination Letter refers to performance discussions held on 16 July 2019, 19 September 2019 and 4 October 2019 and alleges that Mr Fisher’s performance had not met the required standards of the position. The Termination Letter outlined areas in which it says Mr Fisher was not performing including:
“• Break times - long unproductive time and too much socializing with colleagues during work time;
• Following set procedure to fill in and work with parts picking checklists;
• Proper inbound parts checking and put away in correct storage locations;
• Forklift operation skills.” 202 [reproduced as written]
Breaks
[110] I have found that Mr Fisher spent an unacceptable amount of time socialising with colleagues during work time.
[111] Mr Fisher submits that the frequency and time he spent speaking with other colleagues was no greater than other employees and that other employees were not subject to any consequence as a result. 203 Mr Fisher further submits that, even if he did spend more time than others speaking with colleagues, this can be explained by:
• the absence of a formal training plan, compounded by a lack of reasonable adjustments for the position, meaning that Mr Fisher did not have suitable alternative duties or tasks at times when there were no inbound/outbound orders;
• heavy literacy dependent processes which meant that Mr Fisher had to clarify and confirm orders with the spare parts department when his manager was unavailable; and
• Building relationships with colleagues is an inherent and healthy obligation of an employer/employee relationship. 204
[112] Further, Mr Fisher submits that he often missed lunch breaks during busy periods. 205 The Respondent disputes this and says that it has never refused lunch breaks for a store person.206
[113] I do not accept Mr Fisher’s submission that going into the office to speak to staff was a frequent occurrence for other staff and that the frequency and time he spent speaking with other colleagues was no greater than other employees. There is no evidence before the Commission as to these matters upon which such a conclusion could be made.
[114] I also do not accept Mr Fisher’s submissions in the alternative. Firstly, Mr Jaeschke’s evidence, which I have accepted, is that Mr Fisher’s socialising created an unfair workload for the other store person. Accordingly, times when there were no inbound or outbound orders are not at issue. Further, the asserted relevance of the absence of a formal training plan to Mr Fisher’s time spent socialising is entirely unclear to me. No evidence was led, or submissions made, in support of this contention. I address the question of reasonable adjustments later in this decision. Secondly, the evidence does not support a finding that Mr Fisher’s work involved heavy literacy dependent processes. Mr Jaeschke’s evidence is that Mr Fisher’s role required only very basic literacy and comprehension skills. He says that the role required visual skills to match material numbers and storage locations. His evidence was that Mr Fisher’s work involved “basically kind of tables” and short instructions of usually three to four words. 207 Mr Dickson’s evidence was that the role required literacy to an extent only. Further, Mr Fisher’s evidence under cross examination was that he could read the address for dispatch of goods,208 use and read the warehouse computer,209 complete the picking slips210 and that picking and dispatching goods was a “very simple job”. As to relationship building with colleagues, while I accept that building relationships with colleagues is a component of a healthy workplace, it is uncontroversial that an employee is required to devote their full time and attention to the discharge of their duties while at work. An employee is at work to perform work. It is that for which they are paid. This obligation cannot be displaced by or be subservient to a desire to socialise with one’s colleagues.
[115] Finally, I do not consider the issue of lunch breaks to be relevant to the questions to be determined by this Commission. Deutz does not rely upon any matter related to Mr Fisher’s lunch breaks in support of his dismissal.
Filling in and Working with the Parts Checklist and Putaway Goods
[116] I have found that Mr Fisher was reluctant to work with the parts picking checklist and did not use it as it was intended. I have found that between April 2019 and October 2019 Mr Fisher made 50 outbound goods (dispatch) errors. I consider this to be a very significant error rate. I have also found that he made inbound goods (putaway) errors.
[117] Mr Fisher submits that the errors he made were no different to those made by other staff. 211 Mr Fisher submits that a reasonable explanation can be provided for the errors, including:
• that the errors were at times caused by an increase in inbound receipts and outbound orders, combined with a shortage of staff; 212
• that the procedures were heavily literacy dependent and that Deutz failed to provide reasonable adjustments to Mr Fisher to accommodate this; 213 and
• that there is a procedural issue in the warehouse, whereby the current processes can, and often do, cause confusion or incorrect delivery. 214
[118] Mr Fisher submits that if a thorough investigation of the inbound receipt and outbound dispatching workplace processes had been done, it would identify that the processes are inherently flawed and create a risk of errors. 215
[119] I reject these submissions. Firstly, there is no evidence before the Commission as to the errors made by other employees in relation to inbound goods. Secondly, the evidence before the Commission in relation to outbound goods is that “virtually no” errors were made by the other store persons. 216 Thirdly, I have earlier dealt with the submission that the processes was heavily literacy dependant. I deal with the issue of reasonable adjustments later in this decision. Fourthly, the “procedural issue” referred to is unclear and no evidence as to any specific procedural issue which caused confusion or incorrect delivery was led. This would also seem to be contradicted by Mr Torkar’s evidence as to the very limited number of errors made by the other store person in dispatching goods. Finally, no evidence was led to support the assertion that the processes are inherently flawed and create a risk of errors.
Forklift Operation Skills
[120] I have found that Mr Fisher avoided loading and unloading trucks and moving engines with the forklift and was reluctant to improve his forklift skills.
[121] Mr Fisher submitted in his written materials 217 and pressed at hearing that Deutz breached its obligations under the Occupational Health and Safety Act 2004 and that consequently Deutz is responsible for the forklift incidents. I reject those submissions. Firstly, in relation to the forklift incident on 3 May 2019, those submissions are premised on a contention that Mr Fisher was issued with the Second Warning Letter for damage to the high reach forklift. I have found that the Second Warning Letter was issued to Mr Fisher for driving the high reach forklift outside in breach of an instruction not to do so and was not for any damage of the high reach forklift. Secondly, I do not consider matters going to Deutz’s compliance with occupational health and safety obligations to be relevant to the matters which are currently before the Commission. Thirdly, no probative evidence of these matters was led. Mr Fisher also made submissions and gave evidence in relation to the Second Forklift Incident.218 Mr Fisher made various submissions as to occupational health and safety issues which he says arose from this incident. I also reject those submissions. Firstly, this incident was not relied upon by Deutz as a reason for Mr Fisher’s dismissal. Further, the evidence of Mr Fisher was that this incident was an accident and that Mr Jaeschke had told him so.219 Secondly, Mr Fisher was not able to identify any specific occupational health and safety obligation with which he says Deutz did not comply in relation to this matter and further, provided no probative evidence of any non-compliance with occupational health and safety obligations. Thirdly, as already set out, I do not consider matters going to Deutz’s compliance with occupational health and safety obligations to be relevant to the matters which are currently before the Commission.
[122] Accordingly, I find that Mr Fisher’s performance in relation to break times, dispatch of goods and working with the Checklist, checking of inbound parts and putaway and forklift operation skills was not to the standard required. In particular, the errors in relation to the dispatch of goods were significant and sustained, continuing for a period of approximately six months. I find that collectively these matters provided a valid reason for Mr Fisher’s dismissal.
Notification of Reasons for Dismissal and Opportunity to Respond – Section 387(b) and (c)
[123] The Commission must take into account whether an employee has been notified of the reason for dismissal and whether the person was afforded an opportunity to respond any reason related to their conduct or performance. Notification of a valid reason for termination should occur before the decision to dismiss is made, 220 and be made in explicit,221 plain and clear terms.222 The question of whether an employee had an opportunity to respond to reasons related to conduct or performance should be understood in a common sense way; the focus of the consideration is whether the employee was treated fairly, rather than on any formality.223
[124] Mr Fisher submits that a firm decision was made to terminate his employment prior to the Termination Meeting and consequently he was not afforded an opportunity to respond. 224
[125] I reject that submission. The Letter of Improvement provided to Mr Fisher on 19 September 2019 set out specifically and individually each of the concerns regarding Mr Fisher’s performance. Mr Jaeschke met with Mr Fisher on 19 September 2019. At that meeting Mr Jaeschke verbally explained the contents of the Letter of Improvement to Mr Fisher. Mr Jaeschke met with Mr Fisher again on 4 October 2019. At that meeting Mr Jaeschke verbally went through each of the performance issues raised in the Letter of Improvement again. Mr Fisher’s evidence is that he understood that his employment might end if his performance did not improve to the requisite standard. The reasons for dismissal were notified to Mr Fisher in the Termination Letter. Each of those reasons was included in the Letter of Improvement. I consider that Mr Fisher was notified of the reasons for dismissal. I also consider that Mr Fisher had an opportunity to respond at the meetings on 19 September 2019 and 4 October 2019 to those reasons and that opportunity was reasonable.
[126] I have considered whether Mr Fisher’s disability affects the question of whether he was properly notified of the reasons for dismissal or whether he was provided a reasonable opportunity to respond. On both 19 September 2019 and 4 October 2019, Mr Jaeschke verbally went through the Letter of Improvement and explained its contents. He did the same with the Termination Letter at the Termination Meeting. Accordingly, Mr Fisher was notified of the concerns regarding his performance and the reasons for dismissal verbally and was not dependant on reading or understanding written notification. I am therefore satisfied that he was properly notified of the reasons for dismissal and that that he had an opportunity at the meetings on 19 September 2019 and 4 October 2019 to respond to those reasons.
[127] Mr Fisher submits that at no stage during performance discussions or at the Termination Meeting were either the Fisher Error Log or the Employee Performance Log referred to, 225 nor had Mr Fisher heard of or seen the Fisher Error Log.226 I have also considered whether the failure of Deutz to put the Fisher Error Log or the Employee Performance Log to Mr Fisher affects the question of whether he was adequately notified of the reasons for dismissal and whether he had an opportunity to respond to them. I accept it may have been prudent for Deutz to have put these documents to Mr Fisher. However, as a result of the meetings on 19 September 2019 and 4 October 2019, and the verbal information conveyed to him at those meetings, I consider that Mr Fisher was clearly on notice that Deutz considered his performance in relation to the matters included in the Fisher Error Log and Employee Performance Log to be unsatisfactory. In those circumstances, I consider no unfairness arises from Deutz’s failure to put these documents to Mr Fisher.
[128] Accordingly, in all the circumstances, I find that Mr Fisher was notified of the reasons for dismissal and was given an opportunity to respond to them.
Unreasonable Refusal to Allow a Support Person – Section 387(d)
[129] The consideration under section 387(d) is directed to whether the employer unreasonably refused to allow a support person to be present, not whether one was offered. There is no positive obligation on an employer to offer an employee the opportunity to have a support person.227 Further, this consideration is relevant in relation to discussions in relation to dismissal only. It is not relevant to performance discussions or discussions other than in relation to dismissal. Mr Fisher did not have a support person present at the Termination Meeting. However, Mr Fisher does not say he requested a support person to be present at the Termination Meeting. Accordingly, there was no refusal to allow a support person to assist at discussions related to his dismissal. Section 387(d) is therefore not presently relevant.
Warning about Unsatisfactory Performance before Dismissal – Section 387(e)
[130] If a dismissal relates to unsatisfactory performance, section 387 requires the Commission to consider whether the person has been warned about the unsatisfactory performance prior to dismissal.
[131] Mr Fisher’s evidence in chief is that he does not know what a warning is. 228 For this reason, it is submitted that if a warning was given to Mr Fisher, it was not received and understood by him229 and that Mr Fisher’s behaviour evidenced the fact that he did not understand the meaning of the term “warning” nor that such a warning had placed, and would continue to place, his employment in jeopardy in the absence of improved performance.230
[132] For the above reasons, Mr Fisher submits that Deutz held a higher responsibility to ensure he fully understood the implications of any poor performance and failed in doing so. 231 Mr Fisher submits that Deutz was aware of Mr Fisher’s poor comprehension and limited literacy skills and this is highly relevant in the consideration of the performance management processes undertaken by Deutz, particularly in ensuring that Mr Fisher understood the implications of the poor performance.232
[133] I reject those submissions. Mr Fisher’s evidence under cross examination was the he understood he had received three warnings. He said that he understood that the Second Warning Letter was a warning and that if he got a third warning his employment might end. 233 Further, Mr Jaeschke’s evidence that upon receiving the Second Warning Letter, Mr Fisher said “Shit, this is my second warning letter. One more letter and I will be kicked out” was not challenged. In relation to the Letter of Improvement, Mr Fisher’s evidence under cross examination was that he understood it was a warning, that Mr Jaeschke told him it was his third and final letter, and he understood that as result of the letter he “might go”. He also gave evidence that Mr Jaeschke explained both letters to him. His stepfather told him the Letter of Improvement was a warning. I therefore reject that Mr Fisher did not know what a warning was. Further, he knew that he had been issued with three warnings. He knew when he got the second warning that if he got a third warning he might “be kicked out”. He knew when he got the third warning that he “might go”. He therefore knew what the implications of getting the warnings were, and that as a consequence his employment might end.
[134] I have considered whether calling the third warning a “Letter of Improvement” affects whether Mr Fisher was adequately warned about his unsatisfactory performance. I accept that the letter ought more properly to have been identified as a final warning. However, in light of Mr Fisher’s own evidence as set out above, I am satisfied that Mr Fisher was adequately warned about his unsatisfactory performance, that he understood the Letter of Improvement was a final warning letter and that no unfairness arises in the present circumstances.
Size of the Enterprise and Dedicated Human Resources – Section 387(f) and (g)
[135] Section 387(f) and (g) requires the Commission to take into account the degree to which the size of the employer’s enterprise and the absence of dedicated human resources personnel would have been likely to impact upon the procedures followed in effecting dismissal.
[136] Mr Fisher contends that Deutz is a wholly owned subsidiary of Deutz AG, a German company with approximately 4500 employees. As such, he submits that the size and scale of Deutz’s enterprise ought have positively impacted upon the procedures followed in effecting dismissal. He further submits that Deutz therefore had access to significant internal global resources, including dedicated human resources personnel. 234 No evidence was led in support of these submissions.
[137] Deutz conceded that it is a wholly owned subsidiary of Deutz AG. However, it says Deutz is a small enterprise, employing 18 employees. It says it does not have in-house human resources support to assist with day to day workplace matters. 235 Mr Torkar’s evidence under cross examination was that Deutz is completely independent236 and highly autonomous.237 It does not have access to, or any dealings with, the Deutz Australasia Human Resources Office in Singapore238 or access to the Head of Human Resources Australasia based in Shanghai.239 Ms Politis’ evidence is that she is employed by Deutz on a casual basis as a Workplace Adviser. Her evidence is that she provides strategic and recruitment advice and market and salary intelligence to Deutz.240 Her engagement is mainly with Mr Chamberlain, the Managing Director.241 She provides human resources support to Deutz only periodically.242 Her evidence was that she was not consulted in relation to Mr Fisher until after the 4 October 2019 meeting.243
[138] I accept the evidence of Mr Torkar and Ms Politis. Whilst Deutz is not a small business employer for the purposes of the Act, it is nonetheless a small enterprise. It has no in-house human resources function or expertise. The evidence discloses that for the most part Mr Jaeschke was responsible for the implementation and management of Mr Fisher’s performance process and termination. I consider that these factors did impact on the procedures followed in effecting Mr Fisher’s dismissal.
Other Relevant Matters – Section 387(h)
[139] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Bullying
[140] Mr Fisher submits that during his time with Deutz, he experienced bullying in the workplace from Mr Reynolds and that he was given no support to help him deal with the bullying. 244 Mr Fisher submits that this bullying impacted on his ability to do his job and as such, it was reasonable for mistakes to be made under such “fear and stress”.245
[141] Deutz submits that following the alleged bullying being reported by Ms Reynolds, Mr Fisher and Mr Reynolds were separated and their workplace interactions were kept to a minimum. 246 Further, Deutz submits that there were regular follow ups with Mr Fisher, and Mr Jaeschke regularly asked if Mr Fisher was okay and if any other assistance was required.247
[142] It is uncontested that Ms Reynolds contacted Mr Jaeschke during Mr Fisher’s employment and complained that Mr Reynolds, her husband and Mr Fisher’s stepfather, was bullying Mr Fisher in the workplace. Ms Reynolds says she was informed of the bullying behavior by Mr Fisher. 248 Mr Reynolds acknowledges that he bullied Mr Fisher.249 Mr Reynolds’ evidence is that he was called to a meeting with the Managing Director, informed of the complaint and asked to explain.250 He says his actions in relation to Mr Fisher were “misguided”251 and he was told to keep his interactions with Mr Fisher to those necessary. He says this action “worked” and there has been no further discussion about the matter subsequently.252
[143] I reject Mr Fisher’s submissions on this matter. Mr Fisher gave no evidence about Mr Reynolds’ behaviour, or its impact on him. There is therefore no evidence before the Commission upon which a finding could be made that because of the “fear and stress” of the bullying, it was reasonable for Mr Fisher to make mistakes. Further, there is no evidence as to the frequency, or even indeed the precise nature, of the offending conduct. As to Mr Fisher’s submission that he was given no support to deal with the bullying, on the evidence before the Commission, the matter was addressed once it was brought to Deutz’s attention and that action “worked”.
Efforts to Assist Mr Fisher and Reasonable Adjustments
[144] Mr Fisher submits that Deutz ought reasonably have sought to understand the root cause of Mr Fisher’s alleged errors and provided him with additional support in the form a formal training and development plan, provided extra supervision and assistance, and made reasonable adjustments to Mr Fisher’s work environment. 253
[145] Deutz submits that on the job training and assistance was provided to Mr Fisher, including Mr Jaeschke showing Mr Fisher the correct way to pick and pack. Further, Deutz submits that Mr Fisher was encouraged to ask questions and advise of any additional support which could assist him. 254 Mr Jaeschke’s evidence is that Mr Fisher would frequently refuse help and assistance, and would state that he could do things himself.255 Mr Jaeschke’s evidence is that he spent four to five hours a week assisting, coaching, shadowing and double checking Mr Fisher’s work.256 He says he also worked through orders with him to ensure he understood how to use the Checklist and asked him questions to make sure he understood the process and what he was to do.257 He says in order to ensure Mr Fisher understood what had been explained to him he would ask him to repeat it and confirm what had been said.258 In addition, he says that he involved the other store person to oversee Mr Fisher’s work, coach him and explain things to him.259
[146] Mr Torkar’s evidence is that Mr Jaeschke spent an inordinate amount of time overseeing Mr Fisher’s work and correcting his errors. 260
[147] I accept Mr Jaeschke’s evidence as to these matters. It was not challenged in any way by Mr Fisher. It is supported by the evidence of Mr Torkar. I therefore find that extra supervision, support and assistance was provided to Mr Fisher to assist him to reach the required standard of performance. Further, the Checklist was introduced specifically to assist Mr Fisher to reduce dispatch errors. While best practice may have included the implementation of a formal development or performance improvement plan, it is not necessarily required and I consider the steps taken to be adequate in all the circumstances.
[148] As to reasonable adjustments, Mr Fisher gave no evidence as to what reasonable adjustments ought to have been made or would have further assisted him. Further, neither Ms Reynolds 261 nor Mr Reynolds262 were able to identify what reasonable adjustment ought to have been made for Mr Fisher.
Process Adopted by Deutz
[149] In closing submissions, while maintaining that Mr Fisher’s termination of employment was not harsh, unjust or unreasonable, Ms Politis conceded that the process adopted by Deutz “wasn’t perfect”. 263 She agreed that the Letter of Improvement should have been more clearly identified as a final warning.264 Further, I consider it would have been prudent to put, in particular, the Fisher Error Log to Mr Fisher. However, perfection is not what is required. What is required is that the employee is treated fairly. Mr Fisher was clearly put on notice of Deutz’s concerns regarding his performance, Mr Jaeschke had a conversation with him every time a dispatch error was identified for which he was responsible, he understood that a failure to improve to the necessary standard may lead to the termination of his employment, he was given an opportunity to improve and was provided with additional support, supervision and assistance to do so. In those circumstances, whilst not perfect, I do not consider that the process adopted by Deutz resulted in any unfairness to Mr Fisher.
[150] For completeness, I have considered whether any unfairness arises from the absence of a support person in the meetings on 19 September 2019 and 4 October 2019. I have found that Mr Jaeschke did offer Mr Fisher the ability to have a person attend those meetings and that offer was declined. Deutz could not compel Mr Fisher to have a support person attend the meeting with him nor could it disclose matters in relation to Mr Fisher’s employment or performance with other employees, including Mr Reynolds, without Mr Fisher’s consent. In those circumstances, I do not consider any unfairness arises from this consideration.
Proportionality
[151] The proportionality of the dismissal to the valid reason is a matter to be considered in connection with section 387(h). In all the circumstances, I do not consider the termination of Mr Fisher’s employment to be disproportionate to the extent of his underperformance. His performance was not to a satisfactory level in numerous respects, over a significant period. In particular, dispatch errors were significant, repeated and sustained. They caused financial loss and reputational damage to Deutz. In all the circumstances I consider termination to be proportionate to the valid reason for Mr Fisher’s dismissal.
Additional payment
[152] I note that Mr Fisher’s employment was terminated on notice and that he was provided with payment in lieu of six weeks’ notice, being four weeks in excess of his legal entitlement. Mr Fisher submitted that dismissing him “in the way that [he] was dismissed”, demonstrates that Deutz was not a good corporate citizen. 265 I do not consider the actions of Deutz in providing additional payment to Mr Fisher on termination to be the actions of a poor corporate citizen. Rather, I consider this reflects the reluctance with which Deutz concluded that Mr Fisher’s performance continued to not meet the standard required of his role and that his employment was to end.
Mr Fisher’s evidence
[153] I have also considered whether Mr Fisher’s disability affected his understanding of questions put to him at hearing. I carefully observed Mr Fisher while he gave evidence and have carefully reviewed the transcript. I consider Ms Politis’ questioning of Mr Fisher was undertaken in a measured, sensitive manner. She clarified questions where necessary and sought to confirm Mr Fisher’s responses where there was a lack of clarity as to his response. I am satisfied that Mr Fisher was adequately able to understand what was asked of him and was able to adequately follow questioning. I am satisfied that Mr Fisher did not provide responses which may not be relied upon as a result of any confusion or misunderstanding by him as to the question asked or the circumstances to which it pertained.
Personal Circumstances
[154] As already set out, Mr Fisher is a 33-year-old man. His employment with Deutz was his first permanent role and a “dream come true”. 266 He submits, and I accept, that he will have considerable difficulty obtaining alternate employment. He says he will now be reliant on a disability pension.267 I have taken into consideration that in these respects, and no doubt others, dismissal has had a significant effect on Mr Fisher.
Conclusion
[155] I have made findings in relation to each matter specified in section 387 as relevant.
[156] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 268
[157] While feeling considerable sympathy for Mr Fisher, having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, I am satisfied that the dismissal of Mr Fisher was not harsh, unjust or unreasonable.
[158] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that was unfairly dismissed within the meaning of section 385 of the Act. The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
J Reynolds for the Applicant.
H Politis for the Respondent.
Hearing details:
2020.
Melbourne:
February 24 to 25.
Printed by authority of the Commonwealth Government Printer
<PR719125>
1 Transcript PN2415
2 Ibid
3 Exhibit R12
4 Exhibit R10 at [2.1]
5 Exhibit A3 and R7
6 Exhibit A1, q.3.2
7 Ibid
8 Ibid
9 Ibid
10 Ibid
11 Ibid
12 Ibid
13 Exhibit A2, q.5 at [1.3]
14 Transcript PN183
15 Transcript PN1020-1022
16 Transcript PN363
17 Transcript PN357-359
18 Transcript PN360
19 Exhibit A8 at [1.7]
20 Ibid at [1.9]
21 Transcript PN1644
22 Exhibit A2, q.5b at [3.3]
23 Exhibit R1, q.3.2 at [1]
24 Ibid
25 Exhibit R10 at [1.5]
26 Transcript PN2231
27 Transcript PN2232
28 Exhibit R10 at [2.2]
29 Exhibit R11 at [2]
30 Ibid at [12]
31 Exhibit R3
32 Exhibit A7 at [12]; Exhibit R10 at [2.12]; Transcript PN2086, PN2148 and PN2173
33 Exhibit R4
34 Exhibit R5
35 Transcript PN2124
36 Transcript PN2127
37 Transcript PN457 and PN465
38 Transcript PN461, PN464 and PN483
39 Transcript PN508
40 Transcript PN119-121, PN457-474, PN928-949, PN1096, PN1180-1197, PN1478, PN1852, PN1997-2006, PN2124-2128 and PN2241-2253
41 Exhibit R10 at [1.4], Transcript PN2081
42 Exhibit R10 at [2.5], Transcript PN2083
43 Exhibit A11
44 Transcript PN1133
45 Transcript PN1122, Exhibit A10 at [1]
46 Transcript PN1248
47 Transcript PN2387
48 Transcript PN2189
49 Exhibit R10 at [2.12]
50 Ibid
51 Transcript PN2148
52 Transcript PN2150
53 Exhibit A7 at [11]
54 Ibid at [12]
55 Transcript PN266
56 Transcript PN2087-2088, PN2122 and PN2378
57 Exhibit R2, q.5e
58 Transcript PN2334
59 Transcript PN2093
60 Exhibit R10 at [2.8]
61 Transcript PN2151
62 Transcript PN2154
63 Transcript PN2104
64 Transcript PN2104
65 Transcript PN2102
66 Exhibit A1, q.3.2
67 Transcript PN418 and PN426
68 Transcript PN419
69 Transcript PN421
70 Transcript PN424
71 Transcript PN362
72 Transcript PN426 and PN430
73 Transcript PN437
74 Transcript PN434
75 Transcript PN685
76 Transcript PN440-442
77 Transcript PN685
78 Transcript PN443
79 Transcript PN365
80 Transcript PN689 and PN697
81 Exhibit A1, q.3.2
82 Transcript PN2088 and PN2122
83 Transcript PN2122
84 Transcript PN2122
85 Transcript PN2375
86 Transcript PN2375
87 Exhibit R11 at [7]
88 Ibid at [9]
89 Ibid
90 Attachment to Exhibit R1, q.3.2 at [3]
91 Exhibit R1, q.3.2 at [3]
92 Ibid
93 Exhibit A2 at [3.11]
94 Transcript PN1909
95 Exhibit A2, q.5b at [3.11], Transcript PN1146
96 Transcript PN1147
97 Exhibit A10 at [1]
98 Transcript PN2057
99 Transcript PN1909
100 Transcript PN1909
101 Transcript PN2023
102 Exhibit R10 at [2.11]
103 Transcript PN2158
104 Transcript PN2159
105 Transcript PN2161
106 Exhibit A1, q.3.2
107 Ibid
108 Ibid
109 Exhibit R10 at [2.9]
110 Transcript PN2169
111 Ibid
112 Transcript PN2171
113 Exhibit A7 at [17]
114 Transcript PN235
115 Transcript PN2369
116 Transcript PN2370
117 Transcript PN2279
118 Transcript PN2389
119 Transcript PN2273
120 Transcript PN2047
121 Transcript PN2053
122 Transcript PN2055
123 Transcript PN1930
124 Transcript PN2048
125 Transcript PN2030
126 Transcript PN2052
127 Exhibit R1, Attachment
128 Exhibit A2, q.5b at [3.11]
129 Transcript PN1909
130 Transcript PN1151
131 Transcript PN1153-1154
132 Transcript PN1154
133 Exhibit A2, q.5b at [3.10]
134 Ibid
135 Transcript PN1909
136 Exhibit R10 at [4.1]
137 Transcript PN2129-2130
138 Transcript PN2137
139 Transcript PN2177
140 Transcript PN2189
141 Transcript PN2182-2183
142 Exhibit A1, Attachment
143 Transcript PN2239
144 Transcript PN2306
145 Transcript PN2129
146 Exhibit A7 at [9]
147 Exhibit A2, q.5b at [3.21]
148 Exhibit A7at [10]
149 Ibid
150 Ibid at [9]
151 Transcript PN196
152 Transcript PN990
153 Transcript PN993
154 Transcript PN536
155 Transcript PN563
156 Transcript PN545, PN561 and PN563
157 Transcript PN599-602
158 Transcript PN604-608
159 Transcript PN611-612
160 Transcript PN714
161 Transcript PN712
162 Transcript PN717-718
163 Transcript PN721-722
164 Transcript PN765
165 Transcript PN723-727
166 Transcript PN739
167 Transcript PN753, PN766
168 Transcript PN1556, PN1558, PN1566
169 Transcript PN742-743
170 Transcript PN1554-1558
171 Transcript PN760
172 Transcript PN771-773
173 Transcript PN816
174 Transcript PN871-872
175 Transcript PN833-837
176 Transcript PN792-803
177 Transcript PN566-569
178 Exhibit A2, q.5b at [1.5]
179 Ibid
180 Exhibit A2, q.5b at [2.2]; Exhibit A7 at [2-3]
181 Exhibit A2, q.5b at [2.2]; Exhibit A7 at [3]
182 Exhibit A7 at [4]
183 Ibid
184 Ibid
185 Exhibit A1, q.3.2
186 Ibid
187 Transcript PN870-875
188 Transcript PN2193
189 Exhibit R10 at [5.3]
190 Transcript PN2193 and PN2305
191 Transcript PN2193
192 Transcript PN2196
193 Exhibit R10 at [5.3]; Transcript PN2306
194 Transcript PN2306
195 Exhibit A7 at [1]
196 Exhibit A1, q.3.2
197 Transcript PN284
198 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
199 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
200 Ibid.
201 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
202 Exhibit A3 and R7
203 Exhibit A2, q.5b at [1.6.5.3]
204 Ibid at [1.6.5.4]
205 Exhibit A1, q.3.2; Exhibit A7 at [11]
206 Exhibit R1, q.3.2 at [2]
207 Transcript PN2232
208 Transcript PN363
209 Transcript PN357-359
210 Transcript PN360
211 Exhibit A2, q.5b at [1.6.2]
212 Ibid at [1.6.3]
213 Exhibit A2, q.5b
214 Exhibit A2, q.5 at [4.12.4]
215 Ibid at [1.6.2]
216 Transcript PN1909
217 Exhibit A2, q.5b at [4.13]
218 Ibid at [4.13.8.2], Transcript PN213-224, PN698-706, PN754-756, PN771-786 and PN950-963
219 Exhibit A7 at [3] and [24], Transcript PN782-786, PN963
220 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
221 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
222 Ibid.
223 RMIT v Asher (2010) 194 IR 1, 14-15.
224 Exhibit A2, q.5b at [5.5]
225 Ibid at [3.13]
226 Exhibit A7 at [14]
227 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
228 Exhibit A7 at [9]; Transcript PN196
229 Exhibit A2, q.5b at [1.4.5]
230 Ibid
231 Exhibit A2, q.5b at [5.4]
232 Ibid at [4.5]
233 Transcript PN604-608 and PN612
234 Exhibit A2, q5b at [1.6.5.5-1.6.5.6]
235 Exhibit R2, q.3i and q.3j
236 Transcript PN1887
237 Transcript PN1897
238 Transcript PN1886
239 Transcript PN1888
240 Transcript PN2417
241 Transcript PN2422
242 Transcript PN2417
243 Transcript PN2431
244 Exhibit A1, q.3.2
245 Ibid
246 Exhibit R1, q.3.2 at [5]
247 Ibid
248 Exhibit A8 at [3.2]
249 Exhibit A9 at [2] and [3]
250 Ibid at [2]
251 Ibid at [3]
252 Ibid at [6]
253 Exhibit A2, q.5b at [4.12.8]
254 Exhibit R1, q.5e
255 Exhibit R10 at [3.5]
256 Transcript PN2119-2120
257 Transcript PN2103
258 Transcript PN2110
259 Transcript PN2116
260 Exhibit R11 at [11]
261 Transcript PN1755
262 Transcript PN1540 and PN1606
263 Transcript PN2533
264 Transcript PN2537
265 Transcript PN2518
266 Transcript PN2517
267 Ibid
268 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
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