Wei Yang v SY Solutions Australia Pty Ltd T/A SY Solutions Australia Pty Ltd

[2021] FWC 1790

[2021] FWC 1790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wei Yang
v
SY Solutions Australia Pty Ltd T/A SY Solutions Australia Pty Ltd
(U2020/14592)

DEPUTY PRESIDENT CROSS SYDNEY, 31 MARCH 2021

Application for an unfair dismissal remedy.

BACKGROUND

[1] An application was filed on 9 November 2020 (the Application), by Ms Wei Yang (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), following her dismissal on 20 October 2020. The Applicant seeks an unfair dismissal remedy of compensation.

[2] The Applicant commenced employment with SY Solutions Australia Pty Ltd (the Respondent) on 20 June 2019. The Applicant was employed in Real Estate sales.

[3] On 13 January 2021, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Directions were as follows:

1. Wei Yang (the Applicant) is directed to file with the Fair Work Commission, and serve on SY Solutions Australia Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 27 January 2021.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 10 February 2021.

3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent’s witness statements and documents by 4pm on 17 February 2021.

4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 10 February 2021.

[4] The parties complied with the Directions. In particular:

(a) On 27 January 2021, the Applicant filed an Outline of Submissions (the Applicant’s Submission), together with various annexures;

(b) On 12 February 2021, the Respondent filed an Outline of Submissions (the Respondent’s Submission) with annexures, a statement of Mr Bob Popovski, Senior Area Manager, a statement of Mr Dhiraj Surve, Area Manager, and a statement of Tejas Dandekar, Senior Area Manager, as well as a number of supporting documents;

(c) On 19 February 2021, the Applicant filed a Powerpoint presentation containing the documents she relied upon in her application.

[5] The hearing of the matter occurred on 22 February 2021. Neither party sought to cross-examine the deponents of statements. 1

Background

[6] There were only a limited number of factual disputes between the parties, and the determination of those factual disputes is undertaken where those facts relate to the various issues for determination.

[7] The Applicant was employed in Real Estate sales, and commenced with the Respondent on 20 June 2019. While the Applicant maintained that she was not informed prior to her employment of the calls per day, meetings per day and sales per month targets required in her position, I prefer the evidence of the Respondent that such targets were outlined in the process of interviewing the Applicant for employment. Those targets were certainly referred to throughout the Applicant’s employment.

[8] While the Applicant seems to have broadly satisfied various targets regarding activity such as daily calls and meetings, she seems to have been quite unsuccessful at making sales.

[9] On Thursday 6th August and Saturday 8th August 2020, the Applicant met with Shailesh Khale (Vice President of the Respondent) regarding her performance. She was advised that her performance in the previous 14 months was not up to the expectations of her role. It was noted that since the Applicant joined the Respondent in June 2019, until March 2020, she only had three sales on the system sales ratio (SMX) of 1.14. It was further noted that from April 2020 until 8th August 2020, the Applicant had only one closed deal with SMX 0.72 (SMX is a calculation of business done by an employee divided by their salary).

[10] In the above meetings the Applicant was advised that she had to improve her performance, and complete two sales in the following 30 days. The Applicant was advised that she could request help from her team leader (Tejas Dandekar) or Mr Khale if she required any assistance in meeting the expected target, and if she did not achieve that target she would have to meet with the head of the Respondent in Australia (Gaurav Deshpande) as it may be necessary for the Company to make the decision to terminate her employment on the basis of non-performance. An email summarising the meetings was sent on 12 August 2020 (the First PIP Email)

[11] The Applicant responded to the First PIP Email, also on 12 August 2020, stating “I have received and carefully read your email, looking forward to improving my sales result as expected with the support and instruction of you and my team leader.”

[12] Mr Khale wrote to the Applicant on the 23 September 2020, advising her that the 30-day period that was given to her to improve had finished and she had failed to deliver the required results. The Applicant was advised she was put on a further one month performance improvement plan effective from Saturday 19th September 2020 to 18th October 2020. The Applicant was again required to make two sales with completed contracts in that period. She was further advised that in the event of not reaching the expected target in the one month period, her employment would be terminated on the grounds of non-performance (the Second PIP Email).

[13] The Applicant responded to the Second PIP Email, also on 24 September 2020, stating “I have carefully read through your email, understanding the context of it. Meanwhile I am trying to improve my calls and meetings, as much as possible, expecting the positive outcome. Please kindly advise and instruct me while needed.”

[14] In the hearing of the matter the Applicant asserted that, while she did not dispute the First PIP Email or the Second PIP Email in writing, she did dispute them verbally, and further that she did not challenge the in writing because the Respondent would get upset. 2 I reject that evidence. The Applicant’s contemporaneous written responses accurately record her disposition to the PIP Emails. It makes no sense to suggest that the Respondent would only react unfavourably to written, not verbal, responses.

[15] The Applicant did not complete any sales following the Second PIP Email. As a result, by termination letter dated 20 October 2020, which the Applicant signed, the Respondent advised the Applicant, after summarising the performance improvement steps, as follows:

“We had provided you with enough time and opportunity to improve and adequate support and guidance was provided by team leaders and members however, you failed to deliver the desired results. A detailed performance and sales report is attached with this letter.

We consider that your performance is still unsatisfactory and have decided to terminate your employment for the following reasons:

•  Failure to improve performance and to achieve sales numbers

•  Failure to meet expected target of 2 sales per month

•  Since your joining in June 2019, you only had 4 sales in the system (compared to a target of 2 sales a month).

Your employment will end immediately. Based on your length of service, your notice period is 1 month. You will be paid in lieu of the notice period (1 month: up-to the 19th of November 2020).”

Submission of the Applicant

[16] Essentially, the position of the Applicant was that she believed that the termination of her employment was unreasonable or unjust. Two reasons were advanced for such unfairness, being:

(a) That the assessment of her performance was not consistent or contractual; and

(b) Her sales were disturbed by the actions of management.

(a) Performance Assessment

[17] The Applicant noted that her employment contract did not state clearly the measure of her performance as a sales consultant. She claimed to have not received any notification in writing during the period of employment regarding performance requirements, except for the First PIP Email and the Second PIP Email.

[18] I have found above that the Respondent’s call, meeting and sales targets were referred to at the time of the Applicant commencing employment, and that those targets were referred to throughout the Applicant’s employment. Those targets did not need to be included in the Applicant’s contract of employment in order to be enforceable. Reasonable targets can be set, particularly in an industry such as real estate.

[19] Comparative sales documents listing the Sales Consultants of the Respondent were tendered in evidence by the Respondent. They showed the Applicant at the lowest level of sales performance when compared to other Sales Consultants.

(b) Disturbed Sales

[20] The Applicant claimed she had barely gained any support or opportunities from the initial ‘appointment setting team.’ She claimed she had to be accompanied when her clients meetings took place in the office, and her clients were requested to contact directly staff who were attending those meetings. The Applicant also claimed to have been requested to not attend a client’s meeting in which she had been working on, booked and confirmed.

[21] The Applicant’s Team Leader, Mr Dandekar, gave evidence regarding why he attended meetings with the Applicant. It was to assist and guide her. Rather than “disturbing” the Applicant’s sales, the Respondent was trying to assist her.

[22] I also find it telling that, when responding to the First PIP Email and the Second PIP Email, the Applicant made no mention of allegations of disturbed sales or unfair performance assessments. To the contrary, she expressed an intention to comply with the performance requirements.

CONSIDERATION

Preliminary findings

[23] I am satisfied that:

(a) The Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));

(b) Her unfair dismissal application was lodged within the 21 day statutory time limitation found at s 394(2) of the Act;

(c) The Applicant is a person protected from unfair dismissal in that:

i. she had completed the minimum employment period set out in ss 382 and 383 of the Act; and

ii. an award, the Real Estate Industry Award 2020 (the Award), applied to her employment (s 382(3)(b)(ii)); and

(d) Her dismissal was not a case involving the Small Business Fair Dismissal Code (s 385(c)).

Was the Dismissal Harsh, Unjust or Unreasonable?

[24] I must consider the question of whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable’ and therefore an unfair dismissal, pursuant to the considerations outlined in s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair.

[25] Section 387 of the Act identifies the matters that the Commission must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable”:

(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.

(a) Valid reason

[26] The reasons relied upon by the Respondent were best summarised in the show cause letter sent to the Applicant on 20 October 2020. There the reasons were listed as:

(a) Failure to improve performance and to achieve sales numbers;

(b) Failure to meet expected target of 2 sales per month; and

(c) Since joining the Respondent in June 2019, the Applicant only had 4 sales in the system (compared to a target of 2 sales a month);

[27] As the Full Bench found in Sydney Trains v Hilder: 3

“The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”

[28] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 4 and should not be “capricious, fanciful, spiteful or prejudiced.”5 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.6

[29] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision-making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[30] I find that the evidence supports a finding that there were valid reasons for the Applicant’s dismissal. There is clear evidence that the Applicant was underperforming. Indeed, in response to both the First PIP Email and the Second PIP Email, the Applicant confirmed, without dispute, that she would endeavour to comply with the performance requirements. Notwithstanding the clear and, when considered in relation to the salary received by the Applicant (the SMX), reasonable, performance requirements, the Applicant failed to achieve anywhere near the quantity of sales that were required.

[31] In summary, there was evidence to support a finding that there was a valid reason for the Applicant’s dismissal.

(b) Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[32] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 7 in explicit terms,8 and in plain and clear terms.9

[33] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to their conduct or capacity. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern. 10 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.11

The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to the Applicant before her dismissal was effected. The Applicant was notified of the valid reasons and was not given the opportunity to respond. So much is clear from the evidence, and in particular the Applicants responses to the First PIP Email and the Second PIP Email.

(c) Unreasonable refusal by the employer to allow a support person - s.387(d)

[34] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[35] The Applicant was not refused a support person, however she does not seem to have been aware that she may have required one. Nonetheless, I consider this a neutral factor.

(d) Warnings regarding unsatisfactory performance - s.387(e)

[36] A warning for the purposes of s.387(e) must clearly identify:

(a) the areas of deficiency in the employee’s performance;

(b) the assistance or training that might be provided;

(c) the standards required; and

(d) a reasonable timeframe within which the employee is required to meet such standards. 12

[37] The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.” 13

[38] I am satisfied on the evidence that the Applicant was appropriately warned regarding her alleged unsatisfactory performance. That warning outlined the areas of deficiency, standards required, timeframe, and that assistance might be provided.

(e) Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[39] I am satisfied that the size of the Respondent and the absence of dedicated human resource management expertise did not impact on the procedures followed by it in effecting the dismissal.

(f) Other relevant matters - s.387(h)

[40] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. In this matter there are no other relevant matters to be considered, and neither party submitted that any factors warranted consideration under this factor.

Conclusion on Dismissal

[41] Taking into account the matters referred to above, I find that the dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had valid reasons upon which it relied to dismiss the Applicant, and no procedural fairness issues arose.

[42] The termination of the Applicant was not harsh unjust or unreasonable. The Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR728304>

 1   Transcript PN 91, 92, 97, 98, and 103 to 106.

 2   Transcript PN 382 to 401.

 3   [2020] FWCFB 1373, at [26].

 4   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, at 373.

 5   Ibid.

 6   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, at 685.

 7   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 8   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.

 9   Previsic v Australian Quarantine Inspection Services Print Q3730.

 10   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, at 7.

 11   RMIT v Asher (2010) 194 IR 1, at 14-15.

 12   McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, at [32].

 13   Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), at [43]-[44].