William Pham v Professional Investment Services Pty Ltd T/A Centrepoint Alliance

[2017] FWC 1912

[2017] FWC 1912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Pham
v
Professional Investment Services Pty Ltd T/A Centrepoint Alliance
(U2016/12323)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 6 APRIL 2017

Application for an unfair dismissal remedy.

Introduction

[1] On 10 October 2016 Mr William Pham (the Applicant) lodged with the Fair Work Commission (the Commission), pursuant to s.394 of the Fair Work Act 2009 (the Act) an application for a remedy for unfair dismissal against his former employer Professional Investment Services Pty Ltd T/A Centrepoint Alliance (the Respondent).

[2] The Applicant commenced employment with the Respondent on 19 March 2006. The Applicant says that he was notified of the dismissal on 19 September 2016 and the dismissal took effect on that day. Four weeks payment in lieu of notice was made.

[3] The Applicant was employed as Business Development Manager but at the time of his dismissal he was in an office based “operation” role which, it appears, was essentially a sales role. The Respondent provides financial brokerage functions and lending services.

[4] The Applicant says that he was inappropriately and unfairly performance managed. He says that he was unfairly dismissed because of an alleged breach of policy.

[5] The Applicant seeks financial compensation.

[6] The Respondent says that the Applicant was not unfairly dismissed but rather was dismissed because of unsatisfactory performance and conduct. His termination letter of 19 September 2016 was signed by Paul Cullen, Advice Solutions Executive. It referred to a final formal warning letter of 12 September and a meeting with the Applicant’s Manager, Kevin Frost on 16 September. It referred to deficiencies of performance and breaches of the Respondent’s “Leave Entitlements Policy”.

[7] The Respondent says that the Applicant’s behaviour deteriorated from about March 2016. Issues about his attendance and attitude were raised with him by Mr Frost. He was given a verbal warning in June 2016. The Applicant was given extensive annual leave in July and August to attend to his personal affairs. His attendance was unsatisfactory on his return to work, leading to a warning letter on 30 August 2016 and the 12 September final warning. The issues raised in the 16 September meeting included:

● failure to complete tasks in time and accurately;

● attendance between the work hours of 8.30 am to 5.00 pm;

● the Applicant’s tendency to “disappear” for long periods during the day.

[8] The Respondent says that the Applicant was given repeated warnings, counselling and support in respect of his performance and attendance.

Commission Proceedings

[9] The matter was conciliated on 14 November 2016 but not resolved.

[10] I conducted a telephone programming hearing on 28 November 2016.

[11] The hearing took place on 24 January 2016.

[12] The Applicant represented himself. The Respondent was represented by Mr M. Carne who was in-house counsel for the Respondent.

[13] The Applicant relied on a written submissions and his oral evidence.

[14] The Respondent relied on written submissions and the witness statements and oral evidence of:

Kevin Frost

(Exhibit C1)

General Manager, Sales and Marketing

Paul Cullen

(Exhibit C2)

Advice Solutions Executive

Bridget Irvin

(Exhibit C3)

Human Resources Consultant

Protection from Unfair Dismissal

[15] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[16] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[17] The Applicant was covered by the Banking, Finance and Insurance Award 2010 [MA000019] and had a salary of $81,488 per annum plus a $5,000 vehicle allowance. It is therefore clear that he was a person protected from unfair dismissal in accordance with s.382 of the Act.

Preliminary Matters

[18] Section 396 provides that certain matters must be determined by the Commission before proceeding to deal with the merits of a matter. It provides:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[19] None of these matters were at issue in this case. In particular I note that the Respondent had 158 employees at the time of the dismissal so the Small Business Fair Dismissal Code has no application.

Was the dismissal unfair?

[20] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

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

[21] No issue was raised pursuant to s.385(a) (c) or (d).

Harsh, Unjust or Unreasonable

[22] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

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.”

Applicant’s case

[23] The Applicant submits that the dismissal was harsh, unjust or unreasonable because:

● The Applicant says that he was accused of “being under substance” which he denies. He also denies that he did not meet performance targets. He says that there was often a heavy workload and no proper performance requirements.

● The Applicant also submits that where he was absent from the work site there was a legitimate excuse.

● He further says that there was not a proper performance management plan and that his alleged deficiencies were not properly communicated to him. He was provided with the 12 September warning letter but no proper counselling.

● The Applicant further says that he was dismissed on a “technicality” under the leave policy.

● The Applicant was selected for jury duty just before his dismissal and the Applicant suggested that this was one of the reasons for his dismissal.

● The Applicant was part of the sales team. He blamed the unreasonable expectations of clients for any performance deficiencies. He was also under a number of personal stresses which contributed to some of the issues about his performance raised by the Respondent.

● The Applicant also argues that his health issues should be taken into account in excusing any deficiencies with respect to his performance.

The Respondent’s Case

[24] The Respondent submits that the Applicant’s dismissal was not harsh, unjust or unreasonable because:

● The Applicant was terminated because of his performance, his erratic attendance and time keeping and his lack of adherence to company policy. From 4 July 2016 to 16 September he was absent for 37 days on various forms of leave.

● The Respondent submits that it was accommodating of the Applicant because of his personal circumstances but the Applicant was erratic when at work and failed to follow policy when he was absent.

● Following a number of unexplained absences in July and August, Mr Frost, who was based in Queensland, met with the Applicant on 22 August to formally counsel him. The 8.30 am to 5.00 pm hours of the Respondent were restated to the Applicant. There was a further breach on 29 August and he was given a formal written warning on 30 August. There were subsequent absences with no notification leading to the final warning on 12 September. He was then instructed to advise his manager if he left the office for more than 15 minutes. The Applicant was late and absented himself, contrary to the instruction, leading to the dismissal on 19 September.

● The Respondent outlined examples of the Applicant not properly completing his work including information from clients.
● The Applicant continually failed to adhere to the policy of properly advising the Respondent’s representatives when he sought to take personal leave.

● The Respondent says that it made its expectations of the Applicant very clear as a result of a number of meetings and clear written instructions.

● Kevin Frost, in his evidence, provided the details of his management of the Applicant. He says that the Applicant’s workload was less than the other managers and there were continual complaints from brokers. He says that he provided personal and professional support to the Applicant. A number of emails from Mr Frost were tendered which set out the instructions and expectations of the Respondent.

● The formal warning letter of 30 August 2016 detailed the instances where the Applicant had been absent without authorisation or, often, notification. He was clearly told that he was expected to be in the office from 8.30 am to 5.00 pm.

● The final warning letter of 12 September detailed where the Applicant had taken personal leave but not advised the Respondent properly and/or complied with the policy with respect to medical certificates. The required notification procedure was very clearly set out.

● Paul Cullen, who was the decision maker for the dismissal, gave evidence of his direct observation of the Applicant’s absence from the office on 16 September.

● Bridget Irvin also gave evidence of her observation of the Applicant’s unexplained absences from the office.

● The Respondent’s personal leave policy is pretty standard. It provides that an employee who is sick must notify his manager as soon as practicable or within two hours of their starting time. Notification to a colleague, an email or a text message is not sufficient

Approach of the Commission

[25] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[26] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

Valid Reason - s.387(a)

[27] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.

[28] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

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

[29] In Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 1166, the Full Bench held:

“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.”

[30] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:

“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.
...
[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[35] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.
. . .

[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”

[31] I respectfully adopt this approach.

[32] I am satisfied that there was a valid reason for the dismissal of the Applicant. The evidence with respect to the Applicant’s time keeping and unexplained and, sometimes un-notified absences, establishes this in itself.

[33] I accept the evidence of Mr Frost, supported by Ms Irvin and Mr Cullen that there were serious problems with the Applicant’s attendance, attitude and performance since at least March 2016. These were continually raised with the applicant through counselling, verbal warnings, the written warnings of 30 August and 12 September and the final meeting on 16 September. On each occasion the Applicant continued to offend.

[34] On 16 September the hours of work of 8.30 am to 5.00 pm were reiterated to him. Because of his repeated unexplained absences, he was instructed to advise his manager if he left the office for more than 15 minutes, yet he almost immediately did so.

[35] Mr Frost, in his oral evidence, set out clearly the various examples of non-attendance and poor time keeping and he was not challenged. The Applicant did not deny these events but sought to explain them away and minimise their significance. The evidence of Mr Cullen and Ms Irvin was not challenged.

[36] I accept that the Respondent was quite supportive of the Applicant and made allowances for his personal circumstances. He was allowed to take extensive leave and provided with counselling. Mr Frost’s evidence in cross-examination was:

“[561 Sorry, can you - - -?---You weren't in any state to go back on the road and represent the company due to your emotional state and that we would play it by ear, based on trying to do the right thing by you to get you to a position where you could actually get back on the road.

[562] Was that ever clearly articulated to me or explained?---I believe so, yes.

[563] This is just through conversation?---Correct.

[564] You say that you observed my behaviour deteriorating.  Besides from the initial offer of counselling and stuff like that, were there any other times you had approached me to go back to counselling or offer assistance?---We offered you assistance originally at the first counselling session.  Hang on, I'll go back.  On the weekend of whenever that was, 7 July, I cut a personal trip short so that I could come and see you at Katrina Hickson's.

[565] Yes?---From there, there was assistance with counselling.  You went to one session and I asked you whether you had followed that up and you said that you had cancelled it because there was something else on.  I have no idea whether you went back or not.  I assumed that you weren't going back to counselling.  I came and visited in July because I was concerned about you.  From there, we tried to help manage the process of getting you back onto the road.  I think there was a lot of compassionate - there was the extensions of leave, there was recommending that you take leave, further leave.  Yes, I believe there was a lot of assistance that we gave you.”

[37] There is no doubt that the Respondent’s timekeeping requirements were made very clear to the Applicant. They were applied to all employees. It was only when the Applicant repeatedly flouted them that more specific instructions were given. The Applicant was given every reasonable chance to improve his performance but did not do so.

[38] The policy of the Respondent to properly notify the Respondent’s representatives when taking sick and other personal leave was also reasonable. It was applied equally to employees and the Applicant was made aware of it. Yet he disregarded it.

[39] I am also satisfied that the Respondent’s case with respect to the Applicant’s performance is made out. The Respondent submitted that he was never given a proper performance plan and the Respondent’s expectations of him made clear. I do not accept this. Performance issues including uncompleted tasks, complaints from clients and brokers etc were raised with the Applicant by Mr Frost in one-on-one discussions and in formal meetings. A number of follow-up emails listing these matters were in evidence. It was because of these issues that the Applicant was given office based work.

[40] Accordingly I find that there was a valid reason for the dismissal.

Notification of valid reason – s.387(b)

[41] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

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

[42] I have outlined earlier, in some detail, the steps taken by the Respondent in the performance management/disciplinary process including verbal counselling and monitoring, warning letters, and disciplinary meetings. There is no doubt that the Applicant was aware of the issues to be discussed at the 16 September disciplinary meeting.

[43] Accordingly, I am satisfied that the Applicant was notified of the valid reason for termination before it occurred on 19 September.

Opportunity to respond s.387(c)

[44] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal way to ensure the employee relating to the conduct or capacity of the person. This criterion is to be applied in a common sense is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[45] It follows from the above series of events, that the Applicant had an opportunity to respond to the allegations.

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

[46] 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.

[47] There is no suggestion that the Applicant was denied a support person at the various meetings.

Warnings regarding unsatisfactory performance – s.387(e)

[48] I have outlined the various written and verbal warnings that the Applicant received.

Impact of the size of the Respondent on procedures followed – s.387(f); Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[49] The Respondent is a medium sized business, and it followed a structured process with the Applicant. These factors did not therefore detract from the process adopted.

Any other matter that the FWC considers relevant

[50] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[51] There were no factors taken into account in this regard.

[52] For these reasons I find that the dismissal was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair within the terms of s.385.

[53] The Application for unfair dismissal relief is therefore dismissed. An order [PR591672] accompanies this decision.

DEPUTY PRESIDENT

Appearances:

W. Pham, self-applicant.

M. Carne for the Respondent.

Hearing details:

2016

Telephone conference:

November 28.

2017.

Sydney:

January 24.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR591595>