Ufuk Bol v Metcash Limited T/A IGA Distribution (Vic) Pty Ltd

[2013] FWC 1074

[2013] FWC 1074

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ufuk Bol
v
Metcash Limited T/A IGA Distribution (Vic) Pty Ltd
(U2012/12268)

COMMISSIONER GREGORY MELBOURNE, 12 APRIL 2013

Application for unfair dismissal remedy.

Introduction

[1] This matter concerns an application by Mr Ufuk Bol (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) claiming he has been unfairly dismissed. The Employer is Metcash Limited T/A IGA Distribution (Vic) Pty Ltd (the Respondent). An outline of submissions and a witness statement was initially provided on behalf of the Applicant by his legal representative in accordance with the directions issued. However, on 20 December 2012 the Applicant’s representative forwarded a form F54 - Notice of Representative Ceasing to Act to the Commission. The Applicant subsequently appeared on his own behalf in the proceedings. The Respondent was represented by its in-house counsel, Mr Gary Johnson.

[2] It is also noted that the Applicant has previously made applications pursuant to both ss.372 and 739 arising from his employment with the Respondent. The s.372 application was made in April 2012 and dealt with in conference by Commissioner Roe in the following month. The matter was resolved on the basis of a Recommendation issued by the Commissioner on 15 May 2012 reflecting an outcome agreed by the parties. That Recommendation provided in part:

“Until the next conference before FWA the employer will not take further disciplinary action in respect to work performance provided that Mr Bol meets 90% of the standard. However, the employer is free to take action in respect of any other misconduct that may occur which is not related to the meeting of performance standards.” 1

[3] The other application initiated by the Applicant pursuant to s.739 concerned the legitimacy of warnings provided to him by the Respondent. A similar matter concerning another of the Respondent’s employees was dealt with in a decision handed down by Commissioner Lee in June 2012.

[4] In that matter, Champion v Metcash Limited t/as IGA Distribution (Vic) Pty Ltd 2(Champion), Commissioner Lee stated in conclusion in his decision:

“The question to be determined was agreed as follows;

‘Was the company entitled, under the terms of the IGA Distribution Vic. Pty Ltd and Shop Distributive and Allied Employees Association Enterprise Agreement 2010 to issue a written warning to Mr Champion?’

I determine that the answer to that question is yes.” 3

[5] That decision was appealed to a Full Bench of the Tribunal. The Applicant’s legal representative in the present matter subsequently forwarded a letter to the Tribunal on 24 October 2012 regarding his s.739 application indicating:

“This case depends on the outcome of the Full Bench decision in the matter of Champion v Metcash Limited t/as IGA Distribution (Vic) Pty Ltd dealing with the same issues. Commissioner Lee made a determination that our client’s case cannot be dealt with until the Champion case has been finalised.” 4

[6] The Full Bench decision in Champion was handed down on 11 December 2012. The Full Bench indicated in its conclusions:

“As we have intimated, we consider the written warning was entirely valid. These findings of the Commissioner were material to his determination that IGA was entitled under the terms of the Agreement to issue the written warning to Mr Champion.

Nonetheless, for the reasons we have given, we concur with the conclusion of the Commissioner that IGA was entitled under the terms of the Agreement to issue the written warning dated 6 February 2012 to Mr Champion. We therefore confirm the Commissioner’s determination in that regard.” 5

[7] On 4 January 2013 the Applicant in the present matter subsequently filed a Notice of Discontinuance with the Tribunal in regard to his related s.739 application.

The Evidence and Submissions

[8] The Applicant was first employed by the Respondent in 2006 and worked as a pick packer at its Laverton North distribution centre until his termination on 6 August 2012. The work involved filling orders for IGA stores and then packaging them for delivery. The Applicant indicated he was generally able to achieve the required standards until the situation began to change from July 2011 onwards. He also stated there had not been any complaints by the Respondent about his work performance, nor had he been issued with any formal warnings, prior to November 2011.

[9] On 6 August 2012 he was dismissed from his employment because of issues concerning allegations about time wasting and unsatisfactory work performance, and two days later he received a letter from the Respondent confirming the issues that had resulted in his dismissal. The specific allegations concerned the use of a mobile phone in the warehouse, and failure to adhere to work and break times, amounting to an alleged absence from the workplace of four and a half hours in one week.

[10] The Applicant claimed that pursuant to the earlier Recommendation made by Commissioner Roe the Respondent was not entitled to take action in respect of his work performance, provided the 90% standard was met. He submitted that the relevant enterprise Agreement does not state that a standard of 100% is required to be met by employees. The working conditions in the warehouse also made it difficult for this target to be attained, and he had previously provided details about this situation to his supervisors and managers on a number of occasions. He stated, in summary, his dismissal was unfair for the following reasons:

• he had been victimised by management since a series of management changes occurred in late 2011;



• he had been discriminated against because he had voiced his rights in the workplace and demanded changes. He had also been critical of the installation of CCTV surveillance in the warehouse;



• he had previously initiated proceedings before the Tribunal, concerning complaints against the Respondent alleging he had been unfairly treated and subject to constant and excessive monitoring, including an excessive number of Automatic Technique Reviews (ATR’s) in breach of the provisions contained in the relevant Enterprise Agreement;



• he was the relevant union representative and had voiced concerns on several occasions about the amount of time given to complete certain jobs; and



• he was threatened physically by Mr Glenn Sutcliffe, the Distribution Manager, in the warehouse in May 2012.

[1] The Applicant also indicated on several occasions the issues in the warehouse related to problems with the standards and targets employees were required to meet, rather than problems associated with his behaviour or work performance.

[2] He also made a number of claims against the Respondent. These included:

• being micro–managed by video cameras;



• being threatened with termination whenever a complaint or report about a breach of operating procedures was made;



• being physically intimidated and attacked. This included the claim he had been threatened on one occasion by the Distribution Manager who, in the Applicant’s words:




“...approached me with a weapon in his hand” 6;

• being subjected to intimidating interrogation by management;



• receiving disciplinary warnings without justification;



• being excluded from rotations on the basis of not meeting targets; and



• being subjected to excessive ATR’s in breach of the current Enterprise Agreement.

[1] The Applicant was employed under the terms of the IGA Distribution Vic. Pty Ltd and Shop Distributive and Allied Employees Association, Enterprise Agreement 2010 (the Agreement). Clause 38 of the Agreement provides as follows:

“38. WARNINGS PROCEDURE

The parties agree to implement the following Warnings Procedure:-

(a) Warnings

Where an employee’s attendance, punctuality of attendance or work performance is not to the satisfaction of the company, the employee shall be entitled to two separate warnings.

(b) Such warnings shall be given formally and shall be in writing. A copy of the warning report shall be given to the nominated representative.

(c) The nominated representative (if requested) of the shift in question shall be present at the time of warning.

(d) If following the aforesaid warnings the employee’s attendance, punctuality of attendance or work performance remains not to the satisfaction of the Company, the employment may be terminated forthwith.

(e) Warnings will be removed from the record when a period of nine months has elapsed since the last warning was given.” 7

[2] Clause 39 of the Agreement also provides as follows:

“39. ENGINEERED STANDARDS

(a) The parties recognise that the introduction of Engineered Standards has, and will continue to result in significant productivity increases. The parties also recognise that the Engineered Standards as a system of work will require continuing commitment by both parties to ensure the system operates in such a manner so as to be fair and reasonable to all concerned.

(b) The ‘Agreed Standards’ need to be well maintained so as to reflect work methods in use at the time. Methods and procedures may change frequently and facilities for updating need to be on hand to maintain the consistency of the Standards.

(i) Consequently a joint Engineered Standards Consultative Committee will be responsible for maintaining the Standards and to consider and resolve problems brought to its attention by employees regarding the operation of the Standards. The members of the joint Consultative Committee will be trained in the formulation and understanding of the basic application of the Standards. The training will include input by qualified Industrial Engineers.

The Committee must establish clear time lines and identify the person responsible to resolve the problem(s).

If the problem(s) cannot be resolved in the time allocated the issue will be referred the nominated representative and senior management of the Company for resolution.

(ii) If, into the future, there are reasonable grounds to believe that the basis of a particular standard has changed or is no longer appropriate or fair and reasonable, those trained members of the Committee will conduct a preliminary investigation as soon as possible and will adjust the Standard if necessary to ensure it is appropriate and fair and reasonable. If agreement is not reached on the appropriate remedial action the employee nominated representative and the Company’s State Distribution Manager will discuss the matter in an attempt to resolve the issue.

If unable to agree, the issue will be dealt with pursuant to the agreed Grievance Procedure.

(c) 100% of the agreed standard will be the target for all storeworkers.

The consistent achievement of this target will be measured over the normal weekly work period.

All storeworkers will be required to participate in an Associate Technique Review (ATR) as reasonably required. The objective of the ATR is for both the Company and the Storeworker to explore opportunities to improve the likelihood for achievement of the target and to ensure the use of the preferred method of work.

The ATR shall not be a substitute or another device for issuing warnings or the like.

Initially, a trained and competent Leading Hand should conduct the ATR. Further ATR’s may be conducted by a Supervisor or Management.

Remedial action recommended by the ATR should be followed through and its success reviewed.

All storeworkers must participate fully and cooperatively in the process of ATR’s.

Any reasonable directions to a Storeworker to adopt the preferred methods of work must be carried out.

(d)(i) Each Storeworker shall perform their duties diligently in accordance with the preferred method and conduct themselves in a manner consistent with the principle of ‘a fair days work for a fair days pay’.

(ii) Engineered work standards shall be adopted for each defined function in the Distribution Centre. However, insofar as the consistent achievement of ‘the target’ is concerned, its inclusion within an assessment of a storeworkers performance shall be indicative only i.e.

(a) No Storeworker shall be terminated merely for not achieving work standards or not achieving the target in an area where standards are established and implemented.

(b) No Storeworker shall be subject to unnecessary ATR’s if he/she is diligent and conscientious in his/her work performance and has completed any reasonable retraining requirements.

(c) The employer shall be fair and reasonable when expecting each Storeworker to achieve the target in an area where standards have been established and implemented.

(e) No Storeworker shall be disadvantaged in his/her employment status or grade if he/she is diligent and conscientious in his/her work performance but is not able to achieve the work standards or the target in an area where standards have been established and implemented.

(f) alleged misconduct and/or unsatisfactory work performance will be investigated and dealt with in accordance with the agreed disciplinary procedure.” 8

[3] The Respondent submits the Applicant was terminated for not following the “preferred method,” which resulted in the Applicant not meeting the required performance standards. It expects employees to work to achieve a productivity level equivalent to 100% of the Engineered Standards identified in the Enterprise Agreement, and the Applicant’s time wasting and failure to adhere to work and break times resulted in these targets not being attained.

[4] The Respondent submits the Applicant was formally counselled about his unsatisfactory work performance on 12 January and 22 June 2012 and advised on both occasions if his performance did not improve it would lead to further disciplinary proceedings and possibly termination of his employment. He also received the following formal warnings:

• a first written warning on 16 February 2012 for not following the preferred method in performing his work;



• a second and final written warning on 11 April 2012 for again not following the preferred method, which again directly impacted upon his work performance; and



• a further written warning on 31 July 2012 for time wasting, inappropriate use of a mobile phone, and improper language to a supervisor.

[1] The Respondent also submits it has complied with the procedures concerning management of work performance issues and the provision of warnings contained, in particular, in Clause 38 of the Enterprise Agreement which has previously been set out in full in this decision.

[2] Mr Cameron Trewin has been employed as the Warehouse Manager at the Laverton site since November 2010. He indicated the warehouse uses a computerised management system referred to generally as “Engineered Standards,” that indicate which items are required to be picked to complete a customer order, and how long it should take to complete each assignment. The standards are audited from time to time by the Logistics Operations Manager, who is accompanied in that exercise by a trained union site delegate. Mr Trewin indicated the Respondent requires employees to strive to achieve a productivity level of 100% of the standards and each week employees are advised of their level of performance in the preceding week. Any employee believed to be capable of meeting the standards, but failing to do so, is spoken to by their supervisor and encouraged and assisted to improve their performance.

[3] In order to assist and train employees the Respondent also conducts personal reviews of the techniques used by employees in carrying out their work functions by means of the assessment tool known as “Associate Technique Review” (ATR’s) referred to in Clause 39 of the Enterprise Agreement. If an employee’s work performance is found to be unsatisfactory, and there is no evidence of improvement, or a valid reason existing, the Respondent commences to formally manage performance through formal counselling sessions. Warnings can be issued as part of this process if performance does not improve. Mr Trewin indicated he was aware the Applicant has been involved in several ATR’s and in nearly all cases his performance was deemed to be satisfactory, indicating the Applicant was capable of performing to the appropriate standard under direct supervision, but did not or chose not to do so when unsupervised.

[4] Mr Trewin’s witness statement provided a detailed review of the Applicant’s employment history. On 12 January 2012 he was issued with formal counselling regarding unsatisfactory work performance. On 16 February 2012 he was issued with a first written warning regarding unsatisfactory work performance, due to not working to the preferred method. On 11 April 2012 he was issued with a final written warning based on the same grounds, and on 22 June again issued with formal counselling for failing to apply the preferred method when carrying out his work functions, which again impacted on his work performance.

[5] On 25 July 2012 Mr Trewin was approached by the Applicant and a union delegate concerning the allocation of overtime. That matter was resolved in discussions, however, later that day the Applicant was observed speaking on his mobile phone in the warehouse in breach of OHS requirements, and the established policy for mobile phone use. After further discussion involving the Applicant and the relevant union official the Applicant was issued with a written warning on 31 July 2012 regarding the use of a mobile phone, time wasting, and inappropriate language to a supervisor.

[6] Mr Trewin again met with the Applicant on 6 August 2012, together with Ms Tamara Douglas, the Human Resources Manager, and Mr Ray Price, a union delegate on the site. Mr Trewin said he raised the issue of extended break times being taken by the Applicant and, in particular, sought an explanation regarding an unaccounted gap on Friday 3 August 2012. In the absence of a satisfactory response and against the background of the previous counselling and warnings the Applicant was advised it was intended to terminate his employment. A termination letter confirming the reasons for termination was prepared the following day and subsequently provided to the Applicant.

[7] Mr Trewin also attended a previous meeting on 8 May 2012 with the Applicant to discuss the issue concerning the alleged threatening behaviour by Mr Sutcliffe, the Distribution Manager. The Applicant had made serious accusations in regard to this matter in a complaint to the HR department in writing where he stated Mr Sutcliffe had:

“...approached me with a weapon in his hand.” 9

[8] Mr Trewin investigated this matter and subsequently viewed CCTV footage of the incident. He concluded Mr Sutcliffe had simply picked up some cardboard rubbish from the warehouse floor and had, in no way, acted in a threatening or aggressive manner toward the Applicant. He said the Applicant was offered the opportunity to view the CCTV footage in this meeting but declined to do so. A union delegate was also present in this discussion.

[9] Mr Trewin also rejected the accusations made on a number of occasions by the Applicant that the conditions in the warehouse were in breach of occupational health and safety requirements and posed a threat to employees working in the warehouse.

[10] Mr Trewin also stated in his Examination in Chief:

“This has never been about the standard because we do understand that people have difficulty some weeks achieving the standard and some weeks they can comfortably get it. We terminated John in the end because we felt that we’d done everything within our power to guide, assist and recommend improvements, suggestions, different supervisors, different managers had spoken to him, different HR managers had spoken to him and at the end none of the instructions that were taken on board were actually actioned. And that was the end decision that we took into account to terminate.” 10

[11] Mr Shane Beech has worked at the Laverton warehouse since 2004 and is currently employed in the position of Warehouse Supervisor. He was previously employed as a Supervisor at the dry grocery warehouse where the Applicant worked. He conducts Associate Technique Reviews (ATR’s), which determine whether an employee is performing in the manner prescribed. The Applicant participated in a number of ATR’s conducted by Mr Beech between January 2011 and April 2012. Whilst the outcomes of these reviews were varied the Applicant was still not following the preferred method and needed to focus on minimising his re-handling and walking around pallets. There had also been no improvement in the urgency in which he performed his work. Mr Beech also asked Mr Brooks, the union site delegate, to conduct an ATR with the Applicant. Similar outcomes resulted from this assessment with the Applicant found to be not yet competent in that he did not apply the preferred method. Mr Beech also indicated when the Applicant was subsequently provided with his ATR assessment he refused to sign the document on several occasions.

[12] The Respondent’s submissions also made reference to a number of decisions of the tribunal. It referred to the decision of Vice President Watson in Ganso v. Global Perfumery Pty Ltd 11 (Ganso) and the following conclusions of the Vice President about whether there was a valid reason for termination:

“The evidence establishes that the reasons for termination are performance based and also relate to Mrs Ganso’s failure to provide constructive responses to her employer’s reasonable attempts to have her improve her performance in the workplace. I find that the issues were real; they impacted on the quality of the services provided by Global Perfumery and resulted in negative client feedback and the loss of customers. It appears that Mrs Ganso had a different approach to client service than her supervisors and when her supervisors attempted to raise their concerns with her she forcefully rejected those concerns.” 12

[13] The Vice President continued:

“Just as important as the performance issues was Mrs Ganso’s responses to the legitimate counselling and discipline by her supervisors. Mr Wong struck me as a diligent manager whose meticulous approach may have been interpreted as overbearing by some staff. Mrs Ganso appears to have reacted in a particularly negative way towards him and his attempts to change her behaviour. The evidence establishes that Mrs Ganso adopted an approach of resistance and defensiveness toward the allegations of her unacceptable behaviour. Even if she did not agree with the criticisms she should have made genuine attempts to understand and apply the standards of her employer and demonstrate her efforts in meeting those standards.

...Due to Ms Ganso’s negative response to counselling, Global Perfumery considered that ongoing employment became untenable. I do not believe that Global Perfumery’s concerns or its conclusions were unreasonable. Its reasons for termination were sound and defensible.” 13

[14] The Respondent also referred to the decision of Commissioner Cargill, handed down on 10 December 2010 in the matter of Mr Steven Bonser v Metcash Trading Limited t/as Australian Liquor Marketers Pty Ltd 14. That matter also concerned allegations by an employee that the termination of their employment for not achieving Engineered Standards was harsh, unjust or unreasonable. Similar to the present matter one of the conditions of employment at that workplace was a requirement employees work to the Company’s performance standards with failure to do so resulting in disciplinary action up to and including dismissal.

[15] Commissioner Cargill stated in that decision:

“I now turn to the question of whether there was a valid reason for the applicant’s dismissal related to his capacity, or more particularly, his performance. I accept that the respondent is entitled to use the Engineered Standards as a legitimate measure of performance even though the Standards are not specifically referred to or set out in the Agreement. The evidence showed that the Standards have been in place for some time.” 15

[16] She continued:

“I note that the evidence disclosed that the applicant had been encouraged to and offered assistance to reach the required performance levels but had not done so.

I am satisfied that the applicant’s performance failings amount to a valid reason for his dismissal.” 16

[17] The Commissioner concluded:

“I am satisfied that the applicant had been warned about his unsatisfactory performance prior to his dismissal. As outlined earlier in this decision, the applicant had been subject to both informal and formal counselling about his failure to meet the required performance levels and he had received a number of formal warnings for issues including time wasting and not meeting performance standards. The fact that the applicant chose not to sign some of the disciplinary records because he didn’t agree with them does not detract from the reality that he was spoken to and warned about his performance on several occasions. It is clear that the applicant was on notice that his employment was at risk.” 17

[18] The Commissioner indicated in conclusion the employee’s dismissal was not harsh, unjust or unreasonable and the application was dismissed.

[19] The Respondent also referred to the Full Bench decision in the Champion matter referred to earlier in this decision. That matter also involved a store worker employed at the Laverton warehouse and concerned the validity of a warning provided to him. Counsel for the Applicant in that matter submitted a written warning issued to him was issued solely for his failure to meet the 100% target of the Engineered Standards, however, in its submission Clause 39 of the Agreement does not permit the employer to issue a warning in relation to the standards in a way that applies the target is a mandatory requirement. As a result, the written warning should be held to be invalid. The Respondent also referred to the Full Bench conclusions contained at paragraph 15 and 16 of the decision in the following terms:

“In our view, when properly read, it is apparent that the written warning was issued to Mr Champion because of his unsatisfactory work performance, rather than solely or even partly because he failed to meet the 100% target of the Engineered Standards.

The unsatisfactory work performance of Mr Champion was his persistent departure from the Standard Operating Procedures, for which he had failed to acknowledge accountability. For example, his rehandling of boxes, the insufficient bending of his knees and the insufficient urgency in his work. It was a departure which was evident from the Associate Technique Reviews (ATRs) conducted in respect of Mr Champion over a period of time. The objective of the ATRs being ‘to explore opportunities to improve the likelihood for achievement of the target and to ensure the use of the preferred method of work.’ Further, it was a departure which persisted despite weekly support sessions from IGA management.” 18

Consideration

[20] Section 385 of the Act states a person has been unfairly dismissed if the Fair Work Commission is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.” 19

[21] In the present matter the Applicant submits his dismissal was harsh, unjust or unreasonable. In considering whether a dismissal was harsh, unjust or unreasonable the Act requires that the Commission must take into account the factors set out in s.387. It provides as follows:

“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.” 20

[22] Section 381(2) also provides the manner of deciding a matter is intended to ensure “a fair go all around” 21.

[23] The obligations imposed by s.387 are also clear and well understood. They were simply stated by a Full Bench of Fair Work Australia in the matter of L. Sayer v Melsteel Pty Ltd 22 in the following terms:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 23

[24] A Full Bench of the Tribunal in the matter of Parmalat Food Products Pty Ltd v. Mr Kasian Wililo 24 also came to the following conclusion in terms of the significance of a “valid reason” in terms of the various considerations contained in s.387:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 25

[25] I now turn to consider the circumstances in the present matter in the light of the considerations contained in s.387 of the Act that I must have regard to.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[26] Mr Bol was a long-standing employee at the Laverton warehouse. Latterly he had been involved as a union delegate and he had a history of raising issues about conditions in the warehouse and the legitimacy of the Standard Operating Procedures the Respondent required employees to comply with. However, there was a significant amount of evidence in the proceedings about issues to do with his work performance, in particular, repeated instances of time wasting, failure to follow the preferred work methods, and the required Standard Operating Procedures. The relevant engineered standards are dealt with in the Enterprise Agreement that covers the parties with provision made for regular review and auditing. The Applicant was counselled and warned on numerous occasions about these issues in a manner that made clear what was expected of him. He also participated in a number of ATR’s (Automatic Technique Reviews) designed to inform him about the Standard Operating Procedures required by the Respondent, and how to comply with those obligations. These included, on one occasion, an ATR conducted by a union delegate. The Applicant’s own submissions and the Respondent’s evidence also indicated he was often not prepared to accept the validity of or requirement to conform to the preferred work methods. This approach is encapsulated in his submissions in the proceedings:

“I’ve done nothing wrong...The management should be looked at, not me. Maybe the work performance should be looked at, the engineering standards should be looked at.” 26

[27] I am also satisfied the warnings given to the Applicant were not issued in contravention of the provisions contained in Clause 39 of the Enterprise Agreement. Those provisions provide the ATR’s are not to provide a basis of disciplinary action. Employees are not to be terminated simply for not achieving work standards or targets. This conclusion is similar to the outcome reached by the Full Bench in the Champion matter referred to previously when it concluded the warning issued to the employee in that matter were a result of his unsatisfactory work performance, rather than solely or even partly because he failed to meet the 100% target of the engineered standards.

[28] Clause 39 simply indicates that 100% of the agreed standards, as adjusted from time to time by the joint consultative committee, will be the target for all store workers. However, employees are not to be disadvantaged when standards are not able to be met providing they have been:

“...diligent and conscientious in his/her work performance.” 27

[29] Accordingly, a performance achievement of 100% is not a mandatory requirement; it is instead a target that operates in conjunction with acknowledgement that a variety of factors in the warehouse, and the particular work involved from time to time, will impact on whether the target is attained. Regardless, I am satisfied it was not the Applicant’s failure to achieve the agreed standard that resulted in the warnings, counselling and ultimately his termination. It was instead his failure to adopt and adhere to the work methods required in carrying out his work functions. It was a consequence of that failure that meant he did not attain the agreed target on a number of occasions. I am also satisfied the earlier recommendation of Commissioner Roe is of limited relevance to the determination of this matter. It was in any case, an interim position, pending further proceedings in the Tribunal. As indicated in an earlier part of this decision, those subsequent proceedings were eventually discontinued by the Applicant after a related decision handed down by a Full Bench of the Tribunal. In any case the recommendation that Mr Bol only be required for an interim period to meet 90% of the standard did not preclude the employer from taking:

“...action in respect of any other misconduct that may occur which is not related to the meeting of performance standards.” 28

[30] I am satisfied that is what has now occurred.

[31] I am also satisfied the Applicant’s termination was carried out in compliance with the provisions of Clause 38 of the Enterprise Agreement dealing with “Warnings Procedure”, which states, in part:

“Where an employee’s attendance, punctuality of attendance or work performance is not to the satisfaction of the Company, the employee shall be entitled to 2 separate warnings.” 29

[32] And further:

“If following the aforesaid warnings the employee’s attendance, punctuality of attendance or work performance remains not to the satisfaction of the Company, the employment may be terminated forthwith.” 30

[33] In all the circumstances I am satisfied the Applicant’s unsatisfactory work performance over an extended period of time and his failure to provide an adequate explanation for those shortcomings constituted a valid reason for his dismissal related to his capacity and conduct.

(b) whether the person was notified of that reason;

[34] I am satisfied the Applicant was notified of the reason for his dismissal. He attended a meeting with the HR manager and the Warehouse Manager on 6 August 2012 when he was asked to account for work performance issues related to not adhering to work and break times. This included, in particular, a non-performance period in the week of four and a half hours. A union delegate was also present at that meeting. It was subsequently decided by the Respondent that the Applicant had failed to provide an adequate explanation about the matters raised with him in those discussions. He was subsequently provided with a detailed letter dated 7 August 2012 confirming the reasons for his termination. In addition, the counselling sessions and various warnings previously provided to the Applicant, prior to his termination, should have left him in little doubt about the reasons for his termination.

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

[35] The Applicant was given numerous opportunities to respond to the reasons related to his capacity and conduct. The evidence referred to various counselling and warnings provided to the Applicant. The Applicant did respond on these occasions. Typically that response involved denial of any responsibility or fault. He was also given a final opportunity in the discussions that took place on 6 August 2012.

(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;

[36] There was no evidence of any refusal by the Respondent to allow a support person to be present. Mr Ray Price, a site union delegate, attended the final meeting on 6 August 2012 when the Applicant was told his employment was to be terminated. The evidence also indicates that the Applicant had a support person present on several occasions when meetings were convened to discuss his work performance. These included discussions on 17 January, 27 February and 8 May 2012, as well as on other occasions.

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

[37] The evidence details a range of warnings over an extended period of time about issues to do with the Applicant’s unsatisfactory work performance. These have been detailed already in this decision. It has also been noted the Applicant actively contested the validity of a number of those warnings. His responses appear to be similar to those of the employee in the decision of Vice President Watson in Ganso, referred to previously, where it was found the employee reacted in a negative way to legitimate counselling and discipline imposed by supervisors and adopted an approach of resistance and defensiveness towards the issues concerning her unacceptable behaviour and performance. Nevertheless, the evidence in the present matter indicates warnings were provided to the Applicant on numerous occasions.

(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;

[38] There was no evidence to indicate this was a relevant consideration. The Respondent is a large employer with specialist human resource personnel. The HR manager was involved on a number of occasions in discussions and meetings with the Applicant and the evidence suggests a rigorous procedure conforming to that set out in the Enterprise Agreement was followed.

(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;

[39] As indicated above there is no evidence to suggest that this was a relevant consideration.

(h) any other matters that FWC considers relevant.

[40] I am satisfied there are no other matters relevant to the determination of this matter.

[41] In conclusion, having considered the submissions and evidence of the parties in these proceedings, and having taken into account each of the factors in s.387 of the Act, I am not satisfied that the termination of the Applicant’s employment was harsh, unjust or unreasonable. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr Ufuk Bol on his own behalf.

Mr Gary Johnson on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

17 January.

 1   Recommendation, 15 May 2013 in matter C2012/3377

 2   [2012] FWA 4794

 3   Ibid at para 76-77

 4   Email correspondence received 24 October 2012

 5   [2012] FWAFB 9782 at para 23-24

 6   Transcript at PN638

 7   IGA Distribution Vic. Pty Ltd and Shop Distributive and Allied Employees Association, Enterprise Agreement 2010 at cl.38

 8   Ibid at cl. 39

 9   Transcript at PN638

 10   Transcript at PN836

 11   [2011] FWA 7644

 12  Ibid at para 20

 13   Ibid at para 22-23

 14   [2010] FWA 9325

 15   Ibid at para 157

 16   Ibid at para 160-161

 17   Ibid at para 164

 18   [2012] FWAFB 9782 at para 15-16

 19   Fair Work Act 2009 (Cth) at s.385

 20   Ibid at s.387

 21   Ibid at s.381(2)

 22   [2011] FWAFB 7498

 23   Ibid at para 20

 24   [2011] FWAFB 1166

 25   Ibid at para 24

 26   Transcript PN1258

 27   IGA Distribution Vic. Pty Ltd and Shop Distributive and Allied Employees Association, Enterprise Agreement 2010 at cl.39

 28   Recommendation, 15 May 2013 in matter C2012/3377

 29   IGA Distribution Vic. Pty Ltd and Shop Distributive and Allied Employees Association, Enterprise Agreement 2010 at cl.38

 30   Ibid

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