Willard Smith v Transmin Pty Ltd

[2013] FWC 641

[2013] FWC 641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Willard Smith
v
Transmin Pty Ltd
(U2012/12153)

COMMISSIONER WILLIAMS PERTH, 31 JANUARY 2013

Termination of employment.

[1] This matter involves an application made under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The applicant is Mr Willard Smith (the applicant or Mr Smith) and the respondent is Transmin Pty Ltd (the respondent).

[2] This matter was referred to a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.

Background

[3] Mr Smith was employed in the store/warehouse department of the respondent on 25 July 2011.

[4] He was dismissed on 25 July 2012.

[5] The respondent has advised that at the time of the applicant’s dismissal it employed approximately 109 full-time employees.

[6] The respondent provided the applicant with a letter of termination dated 25 July 2012 which refers to a meeting held that day during which the applicant’s employment was terminated.

[7] The letter explains that during that meeting an incident was discussed which involved Mr Smith knowingly using the incorrect address details for a dispatch the previous day, 24 July 2012.

[8] The letter of termination states that this involved a failure to display basic initiative, a reasonable level of independent thought and a lack of due care in performing the daily tasks of the store person. The letter says this incident followed various other issues that had been discussed with the applicant on 5 June 2012 and 19 June 2012 and demonstrates that the applicant has not been making an attempt to improve his performance and attitude towards his duties. Attached to the letter was a separation certificate which identified the reason for separation as being unsatisfactory work performance.

[9] The dismissal was effected with one weeks pay in lieu of notice.

[10] At the hearing of this matter the applicant was self represented and gave evidence on his own behalf. The respondent was represented by Mr Brock Deighton, the Corporate Services Manager, who also gave evidence on behalf of the respondent.

Submissions

The applicant

[11] The applicant submits that his dismissal was unfair because he had originally been hired as the store’s supervisor however due to a company restructure he was approached by the respondent’s management and advised that his title would be changed to that of store person which he accepted.

[12] Some time after this change in role the applicant received a cash bonus.

[13] Some months later Mr Deighton and a Mr Roy Wilson discussed with him various issues regarding his job performance. This however did not make any sense to the applicant because he had received the cash bonus shortly before this and because he had not received any written or verbal warnings from his immediate superior, Mr Boyer, as the store manager.

[14] In the weeks prior to his termination he received several compliments about his job performance from his new immediate superior Mr Ian Wilson.

[15] On 25 July 2012 Mr Deighton and Mr Roy Wilson met with the applicant and during that meeting he was told he was to be terminated.

[16] The applicant says all of this was unfair because the true intention of these meetings with Mr Deighton and Mr Roy Wilson was for him to sign three warning letters giving the respondent the tools needed to fairly terminate his employment.

[17] The applicant says it was unfair because he at times felt bullied in the first meeting when the managers discouraged him from having a support person present.

[18] The applicant says it was also unfair because the company had a lack of empathy for employees with children which was demonstrated when he sought time off work to assist in rebuilding his child’s school that had been damaged in a fire.

[19] The applicant says his dismissal was unfair because his immediate superiors were not present in any of the meetings and only they would have been aware of his performance on the job.

[20] The applicant also says he witnessed other complaints of other employees not being addressed by management.

The respondent

[21] The respondent submits that the applicant was terminated due to unsatisfactory work performance.

[22] The dismissal followed previous formal warnings and counselling regarding his unsatisfactory work performance.

[23] On the final day of his employment three issues regarding Mr Smith had been reported which raised concerns again about his performance. These were discussed with him at a meeting and his response to these was unsatisfactory and demonstrated an unwillingness or inability to achieve an improvement in his performance and so he was advised his employment was terminated.

[24] The respondent submits in all of these circumstances the dismissal was not unfair.

The facts

[25] Mr Smith was cross-examined on a range of the assertions he made in his witness statement and in his oral evidence.

[26] Mr Deighton was not cross-examined by Mr Smith on his witness statement.

[27] Considering the evidence then I find the following.

[28] At the time of dismissal the applicant was engaged as a store person.

[29] Counselling sessions were held with the applicant on 5 June 2012 and 19 July 2012.

[30] The detail of what was discussed in both of those sessions is as set out in the attachments to Mr Deighton’s witness statement specifically the letters to the applicant headed “Record of Counselling Session” respectively dated 5 June 2012 and 25 July 2012 and the corresponding file notes.

[31] At both of these counselling sessions the applicant had an opportunity to respond to the concerns that were being raised by the respondent with him and he did so.

[32] The 5 June 2012 counselling session explained to the applicant that he was no longer to be a supervisor but rather would be a store person reporting to the senior store person whom would be his supervisor but that his wage rate would be unchanged.

[33] This counselling session detailed a range of expectations the respondent had of the applicant and explained that his performance would be monitored over the coming four weeks to determine whether improvements required had been satisfactory.

[34] The 19 July 2012 counselling session dealt with concerns regarding the applicant’s performance involving:

• being regularly late for work;



• taking a long time to complete allocated tasks;



• failing to perform his job adequately and shirking his responsibilities; and



• behaving in an unprofessional manner.

[35] Mr Smith was advised that his performance and behaviour would be monitored for a further four weeks to determine what further action if any would be taken.

[36] Subsequently Mr Smith refused to sign a copy of that letter until he had read through the letter and talk to someone about it.

[37] On 25 July 2012 three separate incidents involving Mr Smith were reported.

[38] One of these had occurred on 24 July 2012 and involved Mr Smith addressing a dispatch incorrectly. Mr Smith knew the address was incorrect but did not contact the sender to remedy the error.

[39] On the same day it was reported that Mr Smith had short packed a dispatch which necessitated another employee fixing this by making a separate trip to Midvale.

[40] And finally on 25 July 2012 Mr Smith was late to work because of road works which he had been previously warned about by Mr Ian Wilson.

[41] In light of these reported problems with Mr Smith he was asked to attend a meeting at 4.00 p.m. on 25 July 2012 wherein those issues were put to him and he was given an opportunity to respond.

[42] The only evidence regarding Mr Smith being late to work on 25 July 2012 and Mr Smith’s short packing a dispatch was the file note of Mr Deighton attached to his witness statement.

[43] Mr Smith did not challenge this information provided by Mr Deighton. On balance I find that Mr Smith was late to work in the circumstances as explained by Mr Deighton on 25 July 2012 and had short packed a dispatch.

[44] The more important issue, as viewed by the respondent, was that Mr Smith on 24 July 2012 had marked a dispatch for a mining company with what he knew was the company’s CBD address in the full knowledge that this was not the correct address they wanted the goods dispatched to. Notwithstanding that the CBD address was that provided in error on the information Mr Smith was working off he could have corrected this error but deliberately chose not to do so. His explanation for his decision not to correct the known error was to say that this was not his responsibility but rather his supervisors whom he had alerted and his responsibility was simply to follow the information provided to him.

[45] I find then that the applicant made a deliberate decision not to exercise his initiative to correct an addressing error which he was able to, but rather chose to refer this on to his supervisor.

Consideration

[46] Section 387 of the Act sets out the matters the Commission must take into account when considering whether the dismissal of an employee was harsh, unjust or unreasonable.

“387 Criteria for considering harshness etc.

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

[47] In this case there was a valid reason for the dismissal of Mr Smith which was his ongoing unsatisfactory performance over a period of months.

[48] There were a number of individual instances of unsatisfactory performance and behaviour that had been raised with Mr Smith in the two counselling sessions on 5 June 2012 and 19 July 2012. Shortly after the last of these counselling sessions the evidence is that Mr Smith deliberately chose to escalate a minor addressing error to his supervisor when it was both within his power and capacity to immediately correct that error. This would have been the most efficient and sensible way of dealing with the problem. On the background of the prior counselling sessions wherein it was explained that his past actions demonstrated a lack of commitment, some lack of responsibility and were sometimes childish and churlish, his decision not to correct the addressing error himself demonstrated the applicant was not trying to improve his performance at all but rather was continuing to act in ways that were to the detriment of the respondent’s business.

[49] The applicant was notified of the reason he was to be dismissed in the meeting on 25 July 2012 and during that meeting he did have an opportunity to respond to those reasons.

[50] The respondent did not refuse to allow the applicant to have a support person present at the discussions that related to his dismissal.

[51] Before the dismissal occurred the respondent had held two counselling sessions wherein the applicant was advised that his behaviour and performance was unsatisfactory and that on each occasion he was subject to a four week period of probation during which his performance would be monitored and to then see what further action would be taken. The applicant has obviously been warned about his unsatisfactory performance.

[52] The respondent is a medium-sized enterprise with dedicated human resource management specialists and the processing procedure adopted was appropriate in the circumstances.

[53] The applicant’s period of employment was relatively short being approximately one year.

[54] The circumstances here were that the applicant has been made aware over a period of time of the respondent’s dissatisfaction with his performance and behaviour. The applicant had been given a period of time on two separate occasions to improve his behaviour and performance and he had been advised what was expected of him. The expectations of the respondent were quite reasonable. The applicant was fully aware, as he explained in his own evidence, that potentially his job was at risk however unfortunately and for whatever reasons he has continued to perform unsatisfactorily. Consequently I can see no basis for a conclusion that the dismissal of the applicant’s employment was harsh, unjust or unreasonable.

[55] The applicant has not been unfairly dismissed. Consequently this application will be dismissed and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

W Smith on his own behalf.

B Deighton on behalf of the respondent.

Hearing details:

2012.

Perth:

December 10.

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