| [2021] FWC 6634 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Prinsloo Dube
v
Energy Australia Pty Ltd T/A Energy Australia
(U2021/1715)
MELBOURNE, 21 DECEMBER 2021 |
Application for an unfair dismissal remedy
[1] On 2 March 2021, Mr Prinsloo Dube made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Energy Australia Services Pty Ltd (Energy Australia). Mr Dube was employed as an Asset Management Leader in the Central Engineering Department from 1 February 2018. In around June 2020, Energy Australia appointed a new Engineering Leader and also conducted a restructure. Because of the restructure, Mr Dube was appointed as Principal Engineer - Boilers in around July 2020 and he was dismissed on 9 February 2021 after the introduction of performance improvement plans and performance reviews. Mr Dube seeks a remedy of reinstatement.
[2] Energy Australia contends that the dismissal was not harsh, unjust or unfair and further gave evidence that following Mr Dube’s dismissal, a review of the IT account discovered that he had during his employment, performed engineering consulting services as the Managing Director of SUBSAH and also copied numerous commercially sensitive and confidential documents belonging to Energy Australia to his personal email address. It submits that had Mr Dube not been dismissed for poor performance, and had it known of his work for SUBSAH including the copying of Energy Australia documents, he would have been dismissed for breaches of his contract of employment, the Code of Conduct, Workplace Behaviour Policy and Conflicts of Interest Policy and Corporations Act 2001 (Clth).
[3] It is not in dispute that Mr Dube’s application satisfies the requirement of minimum employment period and s.382 (a) of the Act. Even though he was paid in excess of the high-income threshold, he had coverage under the Electrical Power Industry Award 2020, therefore his application satisfies s.382 (b) of the Act. Energy Australia is not a small employer covered by the Small Business Unfair Dismissal Code. It is not in dispute that Mr Dube’s employment was terminated on 9 February 2021. Energy Australia terminated Mr Dube’s employment on performance grounds having assessed his performance as unsatisfactory. There were no jurisdictional matters raised.
[4] The parties requested that the matter not proceed with a video hearing and due to the COVID-19 lockdowns the original dates for hearing in May were adjourned. The in-person hearing took place over 30 June, 1 July and 8 July 2021. The parties tendered written submissions in closing and reply in late August and September 2021.
[5] Mr Dube gave oral evidence and a witness statement of Mr Ralf Kriege, Director of SUBSAH Resources Investment Pty Ltd was accepted into evidence.
[6] Energy Australia called two witnesses:
• Mr Glenn Schumacher, Head of Engineering; and
• Mr Ralph Villarosa, Leader Engineering Portfolio.
[7] I received substantial documentary evidence prior to and during proceedings.
[8] The Applicant was granted leave to be represented by an Agent and the Respondent was granted leave to be legally represented.
[9] Energy Australia is a retailer and generator of electrical power. It has six power stations and one coal mine. Engineers are based at the individual power and mine sites and a central team based in Melbourne to provide technical and engineering support and leadership. The Head of Engineering, also based in Melbourne, has oversight and is the most senior engineering position at Energy Australia.
[10] Mr Dube commenced employment on 1 February 2018 as an Asset Management Leader in the Central Engineering Department reporting to the Head of Assets, and from October 2018, he reported to Mr Glenn Schumacher, the newly appointed Head of Engineering.
[11] In February 2020, Mr Dube submits that he stumbled across a job description on the shared printer for an Engineering Leader, Energy Portfolio. He submits that it was identical to his own role. At the same time, Mr Villarosa who was subsequently engaged as the Engineering Leader was in fact engaged to provide consultancy services. The position as provided in the Job description was advertised externally and was filled in June 2020 by Mr Villarosa on a 12-month contract.
[12] Mr Dube was informed in June 2020 that his position would be restructured. He reported to Mr Villarosa as Engineering Leader, Energy Portfolio and ceased reporting to the Head of Engineering. His new role became Principal Engineer - Boiler and Pressure Parts. Also in June 2020, Mr Villarosa conducted a mid-year performance review, which Mr Dube describes as inaccurate, and he states that he was not given an opportunity to provide a proper response. A performance improvement plan (PIP) followed in October 2020, with an adjustment to a goal during the PIP process and the final annual performance review was in November 2020. In January 2021, Mr Dube participated in the final PIP meeting, and he was dismissed on 9 February 2021. He submits that his dismissal was harsh, unjust and unreasonable, both in terms of reason for the dismissal and the procedure.
[13] Energy Australia submit that they terminated Mr Dube’s employment following a performance management process. They submit that Mr Dube was employed in senior engineering roles within Energy Australia’s central engineering team and that there have been concerns with his employment from the outset. His probationary period was extended, his performance reviews consistently showed low scores, and he was rated as partially meeting expectations.
[14] The letter of termination from Mr Villarosa dated 9 February 2021 was sent to Mr Dube by email, and it provided the following:
“….Unfortunately, I have assessed your performance in the role of Principal Engineer – Boilers as unsatisfactory. This is on the basis that key targets for 2019 and 2020 were not delivered to the level required; resulting in the following performance review ratings.
2019 End of Year Assessment Rating: Partially Meets Expectations
2020 Mid-Year Assessment Rating: Partially Meets Expectations
2020 End of Year Assessment Rating: Partially Meets Expectations
On 14 and 22 October 2020, the Company met with you and initiated an 8-week Performance Improvement Plan (PIP) in order to address performance concerns. Present in the meeting was myself, Stephanie Walls (Senior People Advisor), yourself and your support person (Gordan Chakaodza). The meetings spanned over two sessions, with the purpose for you to provide commentary and input into the proposed plan. The PIP focussed on the achievement of KPIs that had been set for yourself, and captured goals, actions and supportive measures to achieve the requirements of the Principal Engineer – Boilers role
Thereafter, I met with you on 6 November, 20 November and 4 December as agreed, to discuss progress against the objectives and to provide you with additional feedback and support. Unfortunately, no goals were assessed as Achieves throughout, and on 22 January 2021, I met with you to review the PIP assessment to date. During the meeting, I communicated with you that the level of improvement required to perform in the role ongoing had not been evident. As discussed with you, the facets of underperformance included your inability to apply the necessary level of technical authority and direction to stakeholders that is required, to lead initiatives rather than transact them, and to influence stakeholders and provide insights, guidance and direction; leveraging deep technical knowledge and a strategic level of execution
As these skills ultimately form the foundations for success in the position, and as a result of your inadequate performance assessment, I no longer have the necessary confidence in you to perform the role. As such, I have decided not to continue the employment relationship
You will be paid 2 months’ pay in lieu of notice of termination…”
[15] Energy Australia states in response to the restructure that any changes made were within the scope of Mr Dube’s duties and they say that he appeared happy with the changes. Further they say that he did not object at the time that the changes were made to his role, reporting line or level of responsibility. Energy Australia says that the new role was the same just with a narrower focus.
[16] Following the dismissal, Energy Australia discovered that Mr Dube was the Managing Director of SUBSAH Resources Investment Pty Ltd (SUBSAH) and at no time disclosed his external interest, and also in his final week of employment he sent a large number of documents including confidential and sensitive documents owned by Energy Australia to his private email address. It submits that both of the actions either separately or together constitute a valid reason for the dismissal and also rely on this reason to justify the dismissal.
[17] Mr Dube submits that while his termination of employment is alleged to be due to poor performance, the reasons in the letter of termination are not supported by the evidence
[18] He states that the change in the role in 2020, was from a management role with five direct reports including consultants and contractors, to one that is a technical subject matter expert and his duties in his former role were withdrawn and combined into Mr Villarosa’s role.
[19] On appointing Mr Villarosa on 17 June 2020, Mr Schumacher restructured Mr Dube’s role immediately, informing him that he would report to the new Engineering Leader, Energy Portfolio with immediate effect. His title was changed to Principal Engineer with one direct report, which at the time was yet to be appointed. On 22 June Mr Villarosa asked Mr Dube if he was comfortable working with boilers or turbines. Following this discussion Mr Dube’s role changed to Principal Engineer- Boilers. Mr Dube states there was no consultation regarding this change to his position.
[20] Mr Dube is critical that the new role required skills and capability for which he was not equipped, and further that Energy Australia failed to satisfy itself that he had the required skills to perform the new role. He submits that Energy Australia failed to provide training before placing him in a role that he was ill equipped to perform. He submits that drawing on the evidence of Mr Schumacher that the reason the other principal engineer roles were not filled at the time of the hearing was because, “They’re very specialised people. They take time.” 1 On this evidence, Mr Dube submits that he was not given support to perform the new specialised role.
[21] On 16 July 2020, Mr Villarosa performed the mid-year review of Mr Dube’s performance. Mr Dube submits that Mr Villarosa had no knowledge of his performance to conduct the review and no performance issues were raised in the meeting.
[22] On 20 July 2020, Mr Villarosa raised with Mr Dube two outstanding online courses he was required to complete. Mr Dube submits that he attended to the courses immediately and successfully submitted them after the IT issues that prevented their lodgement was resolved on 28/29 July 2020.
[23] In addition to the criticism of the implementation of the performance improvement plans, Mr Dube submits there were no warnings relating to his performance before his dismissal. He submits that the criteria for considering harshness in s.387 falls short of a valid reason and procedurally fair dismissal.
[24] In relation to the allegation that he copied and used Energy Australia documents including commercially sensitive documents, Mr Dube submits that there is no evidence that he used them or that the documents were confidential or commercially sensitive. He further states that while giving witness evidence he was not taken to the materials attached to Mr Villarosa’s statement which are alleged to be confidential or commercially sensitive.
[25] Mr Dube submits that Mr Villarosa’s notebooks which were submitted into evidence shows that there was a plan to dismiss Mr Dube from mid to late October 2020, which is prior to the commencement of the PIP. On this evidence the dismissal was unfair. 2
[26] Mr Dube submits that the evidence shows that his dismissal was unfair and he seeks reinstatement.
Submissions of the Respondent
[27] Energy Australia denies that Mr Dube’s dismissal was unfair. It submits that Mr Dube’s role was a senior engineering role and there was no other engineer with equivalent seniority reporting to Mr Schumacher. 3 In addition to his salary, Mr Dube was entitled under his contract of employment to bonus payments based on individual and company performance. This role, prior to the restructured role was a leadership position where he led a team across the energy business to drive best practice asset management.
[28] Energy Australia submits that Mr Schumacher consulted Mr Dube before the restructure and it is submitted that the new role was the same, just with a narrower focus. It is further submitted that this change was because he was not performing well. 4 The restructure, it submits, was within the remit of the position as the contract of employment provides that “the company may require you to serve in different positions, from time to time” (clause 1.1) and in clause 2.1 “the company may vary these duties at any time.” Mr Dube’s salary was not affected by the restructure.5
[29] Energy Australia say that there were issues with Mr Dube’s performance from the outset, with the first indication coming from the extension of the probationary period. The consistent low scores on his reviews characterised his performance as “partially meets expectations” and this was another indicator. Energy Australia also state that because Mr Dube failed to acknowledge that there were any performance issues, this signified in its view that this “attitude” indicated that it was inevitable that there would be a termination as he “denied himself the opportunity to improve.” Mr Villarosa gave evidence that he had concerns regarding Mr Dube’s level of performance and regularly counselled him. 6
[30] Energy Australia acknowledge that Mr Dube sought a position description for his new role. However, Mr Villarosa gave evidence that he continued to talk to him about his role and worked closely with him; he says more than would be required for such a senior position.
[31] Instead of providing a revised position description, Mr Villarosa managed Mr Dube’s performance by helping him to set specific performance goals and objectives. Energy Australia also submit that for such senior positions they are required to be self-directed and act with autonomy, so Mr Dube’s insistence on a position description suggested to him that he was seeking a precise statement of duties which indicated to them, that he was not up to the task of performing in a senior, self-directed role. 7
[32] Following the performance improvement plans (PIPs), Energy Australia met with Mr Dube on 27 January 2021, and invited him to bring a support person. It is submitted that at that meeting he was informed that he failed the PIP and a without prejudice offer for separation was put to him for consideration. Mr Dube informed Energy Australia soon after the meeting that he considered, but did not accept the offer. A further meeting of 9 February 2021 was called by Energy Australia to terminate his employment with two months’ notice paid in lieu. 8
[33] Section 390 of the Act provides that the Commission may order a remedy if it is satisfied that the Applicant is protected from unfair dismissal, and the Applicant is unfairly dismissed. Section 385 of the Act provides that a person is unfairly dismissed if the Applicant has been dismissed, and the dismissal was harsh unjust or unreasonable.
[34] Having been satisfied that Mr Dube is protected from unfair dismissal, and that he was dismissed, I am required to consider the merits of the Applicant’s application.
[35] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I 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 Commission considers relevant.
[36] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 9
[37] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.” 10 The reason must be “defensible or justifiable on an objective analysis of the relevant facts”.11 Further, it is the role of the Commission to consider the employer’s reasoning to assess whether that reasoning is valid.12
[38] There was a significant amount of material tendered in this matter which was contested, and while I do not address each point in this decision, I have considered the material even though I do not specifically address it, such as the two bonus payments made over Mr Dube’s employment. For the purpose of providing a more succinct decision, I address a number of the significant matters in contention, and by not including reference to each contested matter does not affect my decision in relation to the considerations I am required to take into account.
[39] Energy Australia rely on three matters separately and together for the valid reason to terminate Mr Dube’s employment. Those three matters are:
1. The applicant’s performance;
2. The misconduct associated with Mr Dube’s role with SUBSAH; and
3. The misconduct associated with his sending of Energy Australia’s confidential and commercially sensitive information to his private email address in his final week of employment.
Post-employment conduct - SUBSAH
[40] Energy Australia submit that it may rely on misconduct discovered post termination of employment to justify dismissal and rely on the authority of Lane v Arrowcrest. 13
[41] Energy Australia gave evidence that it discovered after Mr Dube’s dismissal, his involvement in SUBSAH Resources Investment Pty Ltd (SUBSAH) while employed, which was without their knowledge, and in breach of his contract of employment, the Code of Conduct and policies. It also discovered that Mr Dube sent company documents to his private email address in his last week of employment. These discoveries, it submits, are valid reasons to justify a dismissal even if the information came to light after the termination of employment.
[42] However, Mr Dube challenges the assertions that his involvement in SUBSAH was a “significant undertaking” whilst employed or that his “outside hours” interest was in breach of his contract and the Code of Conduct. The involvement in SUBSAH, he submits commenced in 2013 when it was established, prior to his employment with Energy Australia. He is the Managing Director, the Secretary and a Shareholder of the company. He describes SUBSAH as a start up, “it does not operate in conflict” with Energy Australia, it has not generated any revenue and it has not paid anyone for their work. He offered to produce the SUBSAH bank account on a confidential basis to show its low level activity and that he was not paid. 14
[43] It is correct to state that if the circumstances were in existence at the time of the termination which would have justified a dismissal, then it may justify the termination, “by subsequent proof of those circumstances...” 15 For there to be a valid reason relating to the conduct, the Commission must find the conduct occurred and justified termination.16 Further, where the Respondent argues that the dismissal is justified on the basis of alleged misconduct, it bears the evidentiary burden.
[44] Mr Villarosa attached to his witness statement evidence of Mr Dube’s interest in SUBSAH. It shows that the business was registered on 25 October 2013 and that he was a Director. 17 Evidence of a website was also tendered and Mr Dube’s participation in the Australian Zimbabwe Business Council (AZBC) Investment Forum on 2 November 2018. Payroll records show that Mr Dube had not taken any leave on the day to attend the Forum. Energy Australia suggested the Forum was held during work hours because the photographs showed that it was held in daylight.
[45] In addition, Mr Villarosa stated that an audit of the computer, revealed thousands of SUBSAH documents, but for the purpose of the proceedings he attached a selection of random documents. These documents attached show three 2018 documents, eight 2019 documents, eight 2020 documents and one in 2021. Among the selection of documents four documents relate to the period from restructure to dismissal. The documents also reveal work on SUBSAH during Mr Dube’s extended probation period.
[46] Having reviewed this material relating to SUBSAH, it is in my opinion, that it is difficult to sustain the assertion that the involvement was just a hobby. Mr Villarosa’s evidence that there were thousands of documents on the computer was not challenged. Even if there were not thousands, but many more documents like those tendered in evidence, it is observed that the nature of the business propositions are high stake, complex and detailed which reasonably would involve more than low level activity. On the matter of Mr Dube’s contention that SUBSAH was a start-up and did not earn any revenue, I do observe that it is not uncommon for start-ups to take time to generate revenue. However, I also observe that Mr Dube and Mr Kriege both state that SUBSAH did not earn any revenue, which is an interesting proposition given that Mr Kriege describes the work as “sourcing investment funding for small to medium projects.” 18 It cannot be concluded that SUBSAH did not bring in any income or investments, even though it may not have earned revenue which is the term used to describe the income from sale of goods or services. Further failing to earn revenue is not indicative of low level activity, and it is not a reasonable proposition that where no revenue is earned from external business interests, there is no conflict of interest.
[47] There was much contention that the evidence of the “website” was a website. There was evidence that it was removed after Mr Dube commenced the proceedings and after he was challenged in respect of downloading Energy Australia documents. 19 Mr Dube argued that it was not a website but a development platform accessible to the public and it was never launched. However, the “website” was subject to correspondence between the directors of SUBSAH regarding the functional capability in its planning phase and that it would be on a secure online platform available to government, private companies, academic institutions and individual entrepreneurs. The live version taken down reflects the same functional capability in planning stage and it also shows that it was copyrighted in 2020.20
[48] I do not accept Mr Dube’s characterisation of the website, the evidence shows that the “website” was placed in the GI Hub, a place where the global infrastructure community can collaborate to create positive impacts through infrastructure. 21 This makes sense given the involvement of the SUBSAH team in relation to where each Director is based and their international experience. On assessment of the range of SUBSAH documents, the MOU’s for business projects and agreements to maintain confidentiality while information sharing to explore opportunities with a range of corporations spread over France, South Africa, Ghana, Zimbabwe and Mongolia, I do not accept that it was just a hobby.
[49] On the evidence of the documents, emails, involvement with AZBC and the public presence of a “website” it is reasonable to conclude that SUBSAH was not low level activity. However, while the potential for a conflict of interest is apparent, the evidence was not compelling that this activity affected his hours of work in performing his role with Energy Australia.
[50] While I do not agree with Mr Dube’s characterisation of SUBSAH, Energy Australia did not satisfy the Commission that Mr Dube was conflicted in respect of his obligations toward his employer. The evidence was lacking that he used work time to conduct business, that he misrepresented Energy Australia in his SUBSAH endeavours, or that he used Energy Australia intellectual property or other confidential or commercially sensitive information.
[51] The evidence of Mr Kriege 22 a Co-Director of SUBSAH was that it was a start-up entity to facilitate project investment in the Sub-Sahara Region of Africa. He gives evidence that the “majority” of their activities are conducted during the working hours of the Southern Africa Development Committee time zone. He also gives evidence that SUBSAH had not managed to generate revenue since it was established in 2013.
[52] It is reasonable that had Energy Australia been aware of the level of involvement in SUBSAH, during his employment, even if there was no revenue generated that it would have identified a potential risk to its own interests. The evidence is that while the majority of activities may have been conducted outside Australian work time, it is evident that some activities were or were likely to have been conducted during Energy Australia work time. While the evidence was limited in respect of identifying a quantum of period that conflicted with Mr Dube’s work time, it was evident that some activity had occurred during work time, and this is all the more reason that Energy Australia ought not have been denied the opportunity to manage any risk relating to a perceived conflict of interest.
[53] The undated contract of employment 23 at clause 13 provides that Energy Australia expects a high level of ethical standards of its employees in undertaking their duties. This extends not only to suppliers and clients but “conflicts of interest due to associations/ interests in external companies, participation in outside business activities or general conduct outside the office.” The second paragraph of clause 13 relevantly provides:
“You must not, during the course of your employment, without the prior written approval of the person you report to, undertake any appointment, position or work that:
• Results in you competing with the Group;
• Otherwise adversely affects the Group; or
• Hinders the performance of your duties owed to the Group.”
[54] Mr Dube submits that SUBSAH did not compete with Energy Australia and he could not have practically complied with clause 13 as SUBSAH was established in 2013. For these reasons there was no conflict and no breach of his contract of employment. This view is taking a narrow interpretation of his obligations under his contract of employment, clause 13 is not restricted to competing with his employer and clause 13 is intended for disclosure and permission of outside interests prior to undertaking any “position, appointment or work,” while employed, that affects the employer or performance of duties including competition. It is not contingent on when the business was established, but prior to committing, engaging or taking on the conduct during the course of employment.
[55] The contract of employment is undated but was provided to Mr Dube prior to commencement of employment. Mr Dube tendered in evidence a cover letter dated 14 December 2017, which contained the contract and various attachments. The evidence is that Mr Dube had in his possession the contents of clause 13 prior to commencement of employment, at least around 14 December 2017. It is reasonable that for such a senior role, and the fact that he had engaged in conduct on behalf of SUBSAH at an international level that clause 13 ought to have triggered at least an enquiry whether his interests with SUBSAH required disclosure and permission. Mr Dube consciously chose not to disclose the information, despite the stated obligations in clause 13 of his contract of employment and his awareness of the Code and policies. 24
[56] Despite awareness of clause 13, Mr Dube admitted to using his work computer to conduct personal business 25 and the evidence shows that at times he used his work email address in SUBSAH affairs. In this regard, Mr Dube had breached his contractual obligations, however, whether the conduct was so serious to warrant a dismissal is another matter.
[57] A breach of company policy if wilful and substantial may justify dismissal but all of the circumstances and strength of the evidence must be taken into account. Conduct considered misconduct may be a repudiation of the contract of employment, particularly where it causes harm to the employer, causes real or potential harm to the employer’s interests, the relationship between the employer and employee is harmed or is contrary to an employee’s duties. Relevant to the assessment of misconduct is the gravity of the conduct.
[58] Mr Dube consciously determined not to inform his employer of his external business interests despite his awareness of Energy Australia’s position on conflict of interest. I also observe that Mr Dube completed training on the Code of Conduct on both 8 May and 30 November 2018. 26 The training itself appears to not have prompted any enquiries from Mr Dube regarding his involvement with SUBSAH.
[59] Even if Mr Dube may have been correct in his view that his SUBSAH activity did not directly breach clause 13 prior to commencement of employment, his subsequent activity, where he used Energy Australia resources for his external business interest, clearly created a potential conflict of interest. Even then, rather than taking an ethical and prudent approach of informing his employer, Mr Dube chose to conceal the information and argue in this matter that there is no prohibition to be involved in business outside of Energy Australia and he referred to Glenn Schumacher’s connection with MM Technology to justify this position. 27 His view of another’s possible transgressions (if they are in fact transgressions) are not a reasonable justification for his concealment of activity from his employer relating to a conflict of interest.
[60] Had Energy Australia discovered Mr Dube’s engagement with SUBSAH and his use of Energy Australia resources while he was employed, it would have had the capacity to assess any potential risk. However, the non-disclosure of the interest in SUBSAH, on any objective basis reasonably may give rise to a loss of trust in the relationship. Even though Mr Dube concealed the information, the evidence does not suggest that had the information come to light during employment that the parties could not overcome any mistrust. Energy Australia failed to submit convincing evidence that had it known of the conduct that it was so grave to repudiate the contract of employment, cause harm to the employer or that it was contrary to Mr Dube’s duties in order to justify a dismissal.
Post-employment conduct – Confidential information
[61] In relation to the second reason concerning post-employment conduct,the copying and sending to his private email address of Energy Australia’s alleged confidential information, Mr Dube admits to copying the information after he was informed on 27 January 2021 that his employment would be terminated.
[62] In relation to the documents that he emailed himself, he submits that Energy Australia had failed to demonstrate that they were confidential, and he further states that he emailed the documents to himself because he thought he may need them “in the case of pursuing an unfair dismissal claim.” 28
[63] There is no evidence that Mr Dube copied Energy Australia documents for his own personal use at any other time. In fact, Energy Australia did not tender any convincing evidence that he used the documents for SUBSAH business or for any other purpose. I do accept that by sending the documents, Energy Australia had valid concerns and I accept the witness evidence of Mr Villarosa in relation to the sensitivity of them.
[64] I do observe that Mr Dube’s contract of employment defines confidential information, and one descriptor is any material that is not in the public domain. On assessment of the list of documents sent by Mr Dube to himself, they can be reasonably described as documents that are not in the public domain and hence is confidential information. Documents which are engineering based concerning power plant summer readiness, pressure vessel registers, pressure vessel internal requirements, tenders, power plant audits, reports on equipment failures, Energy Australia asset management policy and reliability reports, pricing policy and the other operational plans, reports or policies cannot be said to be in the public domain. As there is no evidence that Mr Dube copied confidential documents to himself on any other occasion, I am satisfied that Mr Dube sent this information to himself because he was aware he was to be dismissed. While not the correct thing to do, the conduct itself does not justify Energy Australia’s contention that the conduct constitutes a valid reason for the dismissal, even though the information came to light after the dismissal.
Alleged poor performance
[65] In relation to Mr Dube’s performance, Energy Australia submits that he held a senior position which required demonstratable technical authority and leadership to influence decisions and drive outcomes. It states that the outcomes are “difficult to measure by reference to objective milestones.” 29 Mr Schumacher describes Mr Dube’s role as one which cannot be reduced to a precise statement of duties or tasks, although at times there could be specific initiatives where he could be assigned specific tasks. He refers to the position description of Asset Management Leader where the key activities and deliverables are provided in broad terms. He describes the role as self-directed with a high degree of autonomy, one of leadership, requiring the formation of deep relationships with site based engineers, to lead them, to drive initiatives and to act as a technical authority.30
[66] Energy Australia submits that those in the best position to test his performance are the two witnesses Mr Schumacher and Mr Villarosa, both qualified engineers with experience in the energy industry. 31
[67] Mr Dube reported directly to Mr Schumacher prior to the appointment of Mr Villarosa. Mr Schumacher gave evidence that the position description for Asset Management Leader demonstrates that it is a senior leadership role, and the key responsibilities included: improve and lead best practice asset management across the asset portfolio and investments, lead the team and influence across the energy business. Key behaviours expected of the role included customer is the priority, do the right thing and lead change, and the metric for business support, improvement and transformation is positive feedback from stakeholders. Mr Schumacher states that Mr Prinsloo did not achieve the requirements of the job description.
[68] The 2018 end of year performance review was completed by Mr Schumacher who himself was appointed in October of that year. In relation to the performance review, Mr Schumacher, noted that Mr Dube commenced in February of that year, his probationary period was extended to 1 November 2018 and he had little time to assess Mr Dube’s performance. He states that there was limited time to assess his performance plus there was a workplace tragedy that consumed his time from November 2018 for a period of 6-8 months. Due to the inability to properly assess Mr Dube’s performance, he marked him as “meeting expectations” and a rating of 3 out of 5. 32 The performance review marked up as GS-3 contains comments from both Mr Dube and Mr Schumacher. Relevantly, Mr Dube acknowledges deficiencies in adjusting to the corporate culture and the additional training as helpful to enhance social awareness in supporting his ability to influence and engage with stakeholders. Mr Schumacher’s comments point out the difficulties in getting his head around key issues and understanding the audience or stakeholders. The comments also state that Mr Dube is more comfortable with technical issues but the role requires a more strategic approach including influencing across the sites. While rated as meeting expectations, the comments do indicate that there are deficiencies in performance at a senior leadership level and they need to be addressed.
[69] Mr Schumacher gave evidence that once he was able to focus on to his role, he noted performance concerns. He described the work of being of a low standard and how Mr Dube failed to deliver on specific tasks. Examples provided that were not addressed, or were insufficiently addressed by Mr Dube, that he ineffectively demonstrated leadership delivery and technical knowledge included:
• The expression of frustration from Jenny Ratsep in May 2020 regarding the Master Key Project because Mr Dube had not read her email and communicated with the team resulting in an assumption that the leadership of the Mount Piper Power Station did not support the project, when the project was not intended for the Mount Piper Power Station; 33
• His failure to attend and not advise key individuals of his absence to two prominent and key events in 2019: one in Hong Kong and the other due to not catching the right tram to attend the strategic planning forum; 34
• Declining a staff member’s long service leave because he took too long to action and ultimately confused the dates resulting in the cancellation of an overseas trip; 35
• Failing to act on a request for information from CLP (the parent company) which he offered to do himself on 11 May 2020, he failed to respond to two requests for feedback in June and July then requested his direct report to perform the task in July. However, the email did not go to his direct report, but rather to Ralph Villarosa. The email from the direct report (having it forwarded to him by Mr Villarosa) shows he knew nothing of the request. This caused embarrassment for the team, and ultimately required reallocation of the task, as the person Mr Dube directed the request to, did not have engineering capability; 36
• During an Energy Australia Yallourn Unit #2 Boiler Pressure Parts Review Workshop on 25 November 2020, Mr Dube asked in front of the attendees what an attemporator is. Mr Schumacher states that term is common knowledge to any engineer that has experience with boilers. Mr Schuamacher also gave evidence that Mr Dube asked what a superheater temperature split was on 16 April 2020. Mr Dube denies he asked what an attemporator was, and in relation to superheater temperature split he submits it is not a common term.
[70] In relation to the above examples, I prefer the evidence of Mr Schumacher. The tendered material into evidence supports Mr Schumacher’s witness evidence. The above examples demonstrate the concerns of Energy Australia in terms of leadership, maintaining and building relations with stakeholders, delivery of tasks/ projects and technical knowledge. A Google search confirms that both terms are common engineering expressions used by engineers in the area of boilers and pressure vessels. Curiously, even if the term is peculiar to Energy Australia, one would reasonably expect exposure to the terms given his role in asset management since February 2018 had required direct engagement with stakeholders that are based at the power plants and at head office.
[71] Mr Schumacher gave evidence that the 2019 performance review resulted in an overall rating of 2- partially meets expectations, while Mr Dube self assessed himself as meeting expectations. A rating of 2 by Mr Schumacher is described as highly unusual for a senior role. Unfortunately, the performance review provides no commentary by Mr Schumacher for the year’s performance, and the assessment of objectives set at the start of 2019 do not relate to broader requirements of the role including leadership responsibilities. The list of objectives set for 2019 were measured against specific task metrics, which Mr Dube identified as “met.”
[72] I do accept the evidence of Mr Schumacher that there were legitimate concerns regarding Mr Dube’s performance of his Asset Management Leader role, and I do not accept Mr Dube’s evidence that there were no concerns regarding his performance; the extension of the probation period, his own references in his performance reviews to experiencing difficulties and the examples given which are difficult to interpret in any other way than concerns with his performance. A performance review that rates his overall performance as partially meeting expectations cannot be interpreted as performance of the job at the level required. “Partially meets” clearly does not mean anything other than not meeting the expectations of the role.
[73] Following the restructure, Mr Dube reported to Mr Villarosa and was given the role of Principal Engineer- Boilers and Pressure Parts. Mr Villarosa described Mr Dube’s responsibilities as: providing support to each of the thermal steam operating sites, to review their asset management plans, run workshops to address issues and to assist with major investigations. The technical work included validating and signing off as the technical authority and develop the standards. To perform this role, the principal engineer must influence and guide the site based engineers to drive outcomes, following this engagement among the central peers, issues are resolved and strategies set for the future. 37
[74] Mr Dube however states that Mr Villarosa was wrong about his role. He states that he was not responsible for reviewing the asset management plans in his prior role. He states that prior to the commencement of Mr Schumacher and Mr Villarosa, consultants developed the asset management plans and therefore his role was to support and not review, and he adds that he was to lead and initiate technical workshops. 38
[75] However, the Asset Management Leader position description lists asset management as a key activity and deliverable, which provides that the role is to manage the review of the assets, and in doing so, to improve productivity, optimise revenue, ensure long term viability, prioritise opportunities for optimising production, reduce costs and reduce risks. The role is one of leadership which I observe requires reviewing the asset management plans in order to be able to drive the key deliverables. In any event, even if consultants were engaged prior to the appointment of Mr Schumacher, one would reasonably understand from the job description that to meet the key activity and deliverables, the asset management leader would need to review those plans.
[76] I observe that Mr Villarosa’s description of Mr Dube’s role as principal engineer has consistency with the purpose of the role of Asset Management Leader, and the key activities and deliverables job description (asset management, people, business support, improvement and transformation, management systems), 39 except that the new role is restricted to boilers and pressure parts, rather than assets more broadly.
[77] Mr Villarosa gave evidence that Mr Schumacher had concerns with Mr Dube’s performance and particularly his progress of the Boiler Integrity Management (BIM) System. Mr Schumacher formally raised the BIM with Mr Dube on 9 January 2020 in an email where he states that in 2019, they had discussions about a boiler management system at Yallourn. The discussion did not advance in the aftermath of the 2018 workplace tragedy. However, Mr Schumacher goes on to provide to Mr Dube information on his research, initial discussions with Yallourn, his prior experience in the area and makes clear that Mr Dube can own and drive the project which will involve developing a business case, reviewing Plant Track as a potential provider of the software system and to bring along the site “on the journey.” 40 Mr Schumacher gave evidence that Mr Dube failed to deliver on tasks relating to the project and tendered in evidence an email of 8 May 2020 where he asks for an urgent update.41
[78] Mr Villarosa gave evidence that there was no reason that Mr Dube with his experience could not deliver the BIM project. As Mr Villarosa formed the view that the Yallourn site required direction, he instructed Mr Dube to form a working group to work on the planning, contracting and delivery of the system. He further gave evidence that he attended the weekly meetings and observed that Mr Dube was not driving the project. Specifically, he observed that Mr Dube struggled with project management, the preparation of technical specifications, skills in tendering, tender evaluation and contract formation. 42 On 24 July 2020, Mr Villarosa sent to Mr Dube, an email setting out the basis for a project plan with milestones and activities for the BIM project. He also sent a copy of the email to Mr Schumacher and HR advising that this level of support to a Principal Engineer is unsustainable.43
[79] Mr Dube disputes Mr Villarosa’s criticism of the BIM project and asserts that he was not floundering but rather the pace of the project was in line with the expected trial to be rolled out at the end of 2020. He adds that Mr Villarosa changed the working group by adding representation from Procurement in addition to the team that he put together. He states that he led the working group by putting together the agenda and chairing the meetings.
[80] I note the witness evidence of Mr Dube is inconsistent with the evidence of Mr Villarosa almost on all points. Mr Dube gave evidence that he understood his role and that he had ultimate authority and responsibility as principal engineer, and this means it was a self directed role. 44 However, even though he accepted that Mr Villarosa provided guidance, he struggled to grasp the expectations of a leader.45 This admission it seems was at the heart of the difficulties he had with the role, his understanding relating to the PIP, and the observations of Messrs Villarosa, Schumacher and his key stakeholders. This evidence is contrasted with the unwavering and consistent evidence of Mr Villarosa in regard to the failures in meeting the PIP.46
[81] On 28 July 2020 Mr Villarosa completed Mr Dube’s mid year performance review. I observe that each rating for the objectives was either below expectations or partially meets expectations. While Mr Dube rated himself as meeting expectations on each objective, he admits there were concerns regarding the BIM project and that he would need to apply greater focus if he was to meet the revised target of 30 June 2021. He also acknowledges that his mentoring and leadership, setting clear directions and expectations for his team, plus further work with stakeholders and CLP needs improvement. The same performance review makes mention of the introduction of the PIP with an expected end date of 18 December 2020. None of the comments from Mr Villarosa can reasonably be interpreted that Mr Dube’s performance was acceptable.
[82] It was submitted in the final reply submissions that the principal concerns regarding Mr Dube’s performance where as follows:
• Failure to deliver expected outcomes in a timely manner or at all
• Failing to produce work to an acceptable standard, even when the work should have been straightforward for a person at his level
• Failing to act in a manner consistent with or to gain a reputation as a trusted authority on technical matters, and displaying a lack of interest in activities with the potential to further his technical ability
• Failing to provide appropriate leadership, to drive initiatives rather than simply transact them
• Failing to build effective relationships with site based engineers
• Failing to be able to work in the self directed, strategic and proactive manner that was expected of the Applicant as a senior leader . 47
[83] The evidence relating to whether Mr Dube met the requirements of the BIM project in particular, and the PIP, was highly contested. I am satisfied that Mr Dube’s performance which was previously characterised below meeting expectations in 2019 and early 2020 was still a valid concern when the PIP was introduced, at the time of the end of year review and at the time of dismissal. I am satisfied that as Principal Engineer that not meeting the technical requirements, leadership and influencing qualities including the ability to drive strategic initiatives occurred, and was a valid reason for dismissal.
[84] On 9 February 2021, Mr Dube was sent via email a letter of termination 48 from Mr Villarosa. The letter states that he had assessed Mr Dube’s performance in the role of Principal Engineer- Boilers, and in doing so considered the 2019 end of year assessment rating, 2020 midyear assessment rating and 2020 end of year assessment rating. The letter further states that an eight week performance improvement plan was initiated to address performance concerns following meetings on 14 and 22 October 2020. Further meetings occurred on 6 November, 20 November and 4 December and on 22 January Mr Dube was informed that his performance to meet the required role was not evident. Mr Dube was paid two months in lieu of notice consistent with his contract of employment. The reason for the termination of employment in the letter reads as follows:
“the facets of underperformance included your inability to apply the necessary level of technical authority and direction to stakeholders that is required, to lead initiatives rather than transact them, and to influence stakeholders and provide insights, guidance and direction; leveraging deep technical knowledge and a strategic level of execution.”
[85] In support of their decision to dismiss Mr Dube on poor performance, Energy Australia also refer to evidence of poor performance prior to the introduction of the PIP, and prior to the appointment of Mr Villarosa or Mr Schumacher, namely the extension of the probationary period of employment
[86] Mr Dube submits there was no evidence of poor performance.
[87] On the evidence of Energy Australia and Mr Dube, it was understood that the role was a senior leadership role. It is not unusual for such roles to have job descriptions drafted in broad terms rather than contain lists of tasks. I observe that Mr Dube accepted the Asset Management Leader job description which is drafted broadly and contains some metrics. It is notable that for the key activity “business support, improvement and transformation” one of the metrics is “positive feedback from stakeholders,” this is the same metric that Mr Dube criticised for his performance assessment in the position of Principal Engineer – Boilers.
[88] Mr Dube also submits that he was not given a chance because his role was unclear due not having a job description for his new role. What Energy Australia did instead, is set key objectives as part of a performance improvement plan to focus his attention on specific deliverables. There is no reasonable explanation that failure to provide a job description would have materially produced a different outcome. While perhaps on reflection Energy Australia should have and could have provided one by simply adapting the earlier job description, I am not satisfied that any difference would have been made to Mr Dube’s performance. On this point I observe that Mr Dube’s failure to influence stakeholders, create effective relationships with site-based engineers and more particularly failure to provide leadership to drive initiatives would not have been assisted by providing a job description, as this requirement of the role was not materially different from the earlier role.
[89] Having considered the evidence of the witnesses together with the materials concerning behaviour and conduct, and the performance improvement plans, I prefer the evidence of Energy Australia that Mr Dube was dismissed for poor performance, and consequently, I do consider that there was a valid reason which is sound and defensible.
[90] Further, on the evidence, I do not consider that Mr Dube’s conduct that came to light post-employment justifies dismissal had Energy Australia known of the conduct prior to dismissal.
[91] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 49 and in explicit50 and plain and clear terms.51
[92] Mr Dube submits that he was not informed of the reasons until he received the dismissal letter after the dismissal. He concedes that at the PIP meeting of 22 January 2021 that he was informed that he had significant gaps in his performance.
[93] In addition, Mr Dube states that in the course of the hearing, Mr Villarosa gave evidence that in December 2020 he decided that Mr Dube’s employment would be terminated, 52 and further, subsequent to the filing of Mr Villarosa’s note books, it is clear that there was an intention to dismiss him in October 2020.53
[94] Mr Dube was invited to a PIP meeting on 22 January 2021. At this meeting Mr Dube was informed that there were significant gaps in his performance. Mr Villarosa explained that he relied on feedback from Mr Dube’s stakeholders and was satisfied that that he did not have the competence to perform the job. Mr Dube challenged the reliability of feedback to form the view that he was not suited to the role, he also questioned the goals. Mr Dube admits that at this meeting he formed the view that his employment would be subsequently terminated.
[95] On 25 January 2021, Mr Dube was invited to a further follow-up meeting. Mr Dube requested a copy of his PIP report, which he received, and the follow up meeting took place on 27 January 2021. The evidence is that Mr Dube was invited to have a support person and at this meeting he was informed that he failed the PIP. In addition, Mr Dube was offered a without prejudice proposal to terminate the employment relationship. Mr Villarosa gave evidence that the purpose of the meeting was to terminate the employment with a release agreement. 54 There is no evidence that Mr Dube was informed that the purpose of the meeting was to terminate his employment, however, the discussion left him clear that he had the option to accept the offer or be dismissed. The subsequent meeting set for 9 February 2021 was to formalise the termination, given that Mr Dube had already informed Energy Australia that he did not accept the offer.
[96] Until 27 January 2021, while he may have suspected he may be ultimately dismissed, the information to him was that should he fail to meet the performance improvement plan that he may be subject to disciplinary action. 55 The meeting invite for 27 January 2021 does not appear to inform Mr Dube of the risk of dismissal. There was no suggestion that the meeting was called to discuss separation, Mr Dube has reason to understand that the meeting was called to discuss the outcome of the PIP.
[97] A PIP is not a disciplinary process, ordinarily a PIP is a plan to address deficiencies to enable an employee to succeed. These plans can be used to engender a change in behaviour, capacity or conduct and often includes additional support or training to achieve a desired result. Energy Australia implemented a PIP and its features included identified goals, regular feedback discussions and periods of review.
[98] A PIP should not be confused with a disciplinary process where the objective is to firstly make clear what the concern is with capacity or conduct, articulate clear expectations and warn that failure to meet the expectations may result in dismissal. After a reasonable period of review or assessment, the employee is afforded an opportunity to reply and show cause why a dismissal should not occur. Mr Dube was not subject to a disciplinary procedure.
[99] While Mr Dube may have suspected his performance was a concern that may lead to a disciplinary process, and a potential dismissal, (which he denies), and even though Mr Villarosa formed the view that a dismissal was likely on the basis that the requirements of the job would not be met, the evidence shows that notification of the reason for the dismissal did not occur before the decision to dismiss to allow an opportunity to respond.
[100] This consideration weighs in Mr Dube’s favour.
[101] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 56
[102] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 57 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, this is enough to satisfy the requirements.58
[103] Mr Dube wrote to Mr Villarosa on 25 January 2021 seeking a meeting to discuss the news that he had failed his performance improvement plan. Specifically, he wrote:
“I am more than happy to have this follow up discussion; however, as requested in our last discussion, please may you provide me with a formal and written outcome of the Performance Improvement Plan. This will help to structure and focus our discussion. After receiving the written outcome, I should also be afforded enough time to review, analyse and respond to the written outcome prior to the follow up meeting.” 59
[104] While Mr Dube was given the PIP with comments, a subsequent meeting as requested did not occur. Instead, Mr Dube was offered the without prejudice offer to terminate, and this was followed up with the dismissal meeting on 9 February 2021. At no time was Mr Dube informed that the improvement plan would result in a dismissal if he failed. Nor was he was given an opportunity to respond to the reason of poor performance before the decision to dismiss his employment.
[105] While I accept that the concerns regarding performance were made evident to Mr Dube, fundamentally, this information was through a performance improvement plan and not a disciplinary procedure. The PIP document is clear that it is an improvement plan, and not a disciplinary plan, further it makes provision for the next step of discipline if the plan does not produce improvement. At no point was there any communication to Mr Dube that the disciplinary process would be bypassed. If Mr Dube was not afforded a disciplinary process, he could not in all reasonableness been afforded the opportunity to respond to the reasons for the dismissal before the decision to terminate his employment.
[106] On the day of the proposed meeting, Energy Australia invited Mr Dube to a meeting to finalise the dismissal. While the meeting invite was not obvious in respect to its purpose, it was reasonable to conclude the reason. Mr Dube requested the meeting planned for 9 February be postponed to 12 February, which Energy Australia did not agree to do. It did however agree to postpone to a time later in the day to enable Mr Dube to arrange a support person. In the circumstances Energy Australia did not unreasonably refuse to allow Mr Dube to have a support person.
[107] Mr Dube contends there were no warnings that his unsatisfactory performance would lead to his dismissal. In his submissions, the reliance by the Respondent on the Performance Improvement Plan falls well short of what is required of a warning. The deficiency in his performance was not clearly identified, it was not stated that employment was at risk unless performance improved, he was not given an opportunity to improve, there was no training or assistance provided and the standards required to be met were not identified. 60
[108] Energy Australia contend that Mr Dube was aware that failing the PIP would result in his termination of employment.
[109] I do not agree that Mr Dube was informed that failing the PIP would result in termination of employment. The PIP process is outlined in Part 3- Acknowledgement of PIP, which is on each PIP. Relevantly it states:
“Managing for performance improvement is the commencement of formally managing performance that is below expectations. It is commenced if performance continues to be below expectations following a reasonable period of addressing performance concerns.
The aim is for the employee and manager to continue to work together to improve performance until it meets expectations. It is also an essential step to take before any disciplinary action may occur, should performance continue to be below expectations.
I understand that continued performance that does not meet the requirements of my role or if any part of the plan is not met during the specified timeframe, disciplinary action may occur in line with Energy Australia’s Workplace Behaviour s Policy.”
[110] Mr Dube was set objectives with deliverables over the performance improvement period and I am not satisfied that he was informed that failure to meet the requirements of the plan would lead to dismissal without a disciplinary process. Put simply Mr Dube was not given a warning. A warning must be “clear that the employee’s employment is at risk unless the performance issue identified is addressed,” and it is not sufficient to merely have a discussion about performance, 61 and in this matter there is a distinction between a warning and the PIP introduced by Energy Australia.
[111] Energy Australia is not a small employer and there is no reason for it to not follow a fair process.
[112] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[113] Mr Schumacher also gave evidence that once he was able to focus on his role, he was charged with addressing the lack of documentation of engineering changes to plant and he decided to do this by introducing an Energy Australia Management of Technological Change (MoTC) system. This resulted in the engagement of Ralph Villarosa as a consultant to work on the MoTC. Another change that he considered necessary was the introduction of specialist engineers to focus on key engineering risk areas and for them to report to an intermediary rather than himself. He states that he spoke to Mr Dube about this proposed change and that Mr Dube appeared happy with the change in reporting and the position of Principal Engineer - Boilers and Pressure Parts. Mr Dube denies there were discussions with him or that Mr Schumacher proposed the new role to him.
[114] There is no evidence of consultation over the change from Asset Management Leader and introduction of Principal Engineer. Mr Schumacher contends that the new role was the same just more focussed. While the role was still fundamentally an engineering role and it remained a leadership role, its responsibility was narrowed, the reporting structure removed from the highest level of engineering authority and the number and breadth of direct reports was removed. These are major changes, even though the salary was unchanged. Further, I am not satisfied by the proposition that the contract allowed for the change, certainly the contract allows for temporary amendments and amendment to duties, but not to displace the consultation requirements of the Electrical Power Industry Award 2020.
[115] Despite the lack of consultation, the change occurred in June 2020 and there is no evidence that Mr Dube challenged the change to his role at that time, instead he accepted the new role and proceeded to work as Principal Engineer- Boilers and Pressure Parts until his dismissal in February 2021. Further I do not accept that the evidence supports the contention that a demotion was part of a larger plan to dismiss Mr Dube by Mr Schumacher or Villarosa, either individually or combined.
[116] I am satisfied that there had been valid concerns regarding Mr Dube’s performance from the outset and Energy Australia took action to improve his performance in a senior engineering leadership role. Mr Dube’s evidence that he was never informed of concerns with his performance is inconsistent with the evidence and I suspect that either he ignored the evidence or could not comprehend the gravity of the concerns raised with him. I do observe that despite the extension to the probationary period, followed by concerns raised by Mr Schumacher and subsequently by Mr Villarosa, that he used Energy Australia resources for his personal interests in SUBSAH, which also appeared to have been a steady level of involvement, regardless of the issues at work. While a conflict of interest was not established, Energy Australia was denied the opportunity to assess a risk of conflict because of the non-disclosure of the interests in SUBSAH. Ordinarily an extension to a probation period suggests that employment is still tenuous, discussions regarding concerns over performance and a demotion to the position ought to have put an employee on notice to step up and avoid potential conflicts. This was not the case with Mr Dube.
[117] Mr Dube submits that he transferred from WA to take up the position in Melbourne with Energy Australia. His CV shows that he worked for Metro Power Company in WA and a BHP Billiton Iron Ore Pilbara & Power Generation Consultant from 14 December 2015 until 31 January 2016. 62 While Mr Dube had transferred to Melbourne for employment, he did not resign from permanent employment and I note that Energy Australia paid a $10,000 relocation allowance.63 On this matter I do not find that it weighs in favour of Mr Dube in respect to unfairness.
[118] I have considered each matter specified in section 387 and in reaching my decision I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case.
[119] I am satisfied that while Energy Australia had a valid reason based on performance, the procedure of using a performance improvement plan without affording Mr Dube a procedure meeting the requirements of a fair disciplinary/ termination process renders the dismissal unfair. It is also evident that Energy Australia determined that Mr Dube could not address the performance issues and a decision to terminate his employment was made well before the dismissal. Importantly, Mr Dube’s dismissal occurred without a warning and having regard for the circumstances of this matter, providing an opportunity to show cause why he ought not be dismissed would have been reasonable. The relevant considerations in s.387 weigh in favour of a finding that the dismissal was procedurally unfair.
Remedy
[120] Mr Dube seeks a remedy of reinstatement. I consider the remedy of reinstatement inappropriate. The matter of post-employment conduct was considered in respect to whether dismissal was justified, had Energy Australia known of the conduct while employed. I did not find for Energy Australia in respect of this matter, however the circumstances relating to the same conduct is relevant to the consideration of remedy. During proceedings, I observed that Mr Dube was disingenuous in his representation of his association with SUBSAH and despite the signed statutory declaration regarding his copying of confidential information, he contended during proceedings that the material was not confidential.
[121] In addition, I observed that despite the assurance that all confidential documents were returned or destroyed, the appearance of additional material during the hearing raised questions about whether the statutory declaration was reliable. The confidential document marked Exhibit A4, was a screenshot of Mr Dube’s inbox of job applications. Among the job applications there was a line item from one of SUBSAH’s Directors to Mr Dube attaching an Energy Australia document that had been converted for Mr Dube. Unhelpful and implausible responses did not clarify what the document was or why it was converted to a Microsoft Word file. However, the evidence clearly shows that a SUBSAH Director had access to an Energy Australia document. Due to Mr Dube’s witness evidence, I find that any prospect of overcoming issues of trust while they may have been likely while he was employed, was seriously shaken during the proceedings. Given my findings, I consider the remedy of compensation is appropriate and is ordered in lieu of reinstatement.
[122] Section 392 of the Act provides:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(c) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(d) if the employee was on leave without pay or without full pay while so employed during any part of that period--the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
[123] I now consider each of the criteria in s.392 of the Act.
Viability: s.392(2)(a)
[124] Energy Australia is not a small business and there is no evidence that an order of compensation would materially affect the viability of the business.
Length of service: s.392(2)(b)
[125] Mr Dube had worked for Energy Australia for a period of three years, of which 9 months was subject to a probation period and a period of some three months in relation to a performance improvement plan.
Remuneration that would have been received: s.392(2)(c)
[126] Had Mr Dube not been dismissed on 9 February 2021, his employment would likely to have continued for a period of three months, to cover a reasonable disciplinary process. On the evidence long term ongoing employment with Energy Australia was unlikely due to the shortcomings in leadership, stakeholder engagement, technical authority and strategic qualities required of a Principal Engineer.
Efforts to mitigate loss: s. 392(2)(d)
[127] Mr Dube submits that he made efforts to secure employment but had not managed to find employment. He tendered in evidence a confidential document that lists his job applications for the period May and June 2021. 64 He submits that his contract of employment contained a restraint clause preventing employment for a period of two months following dismissal, therefore, he submits that the two months’ notice should not be deducted from any order for compensation.
[128] On review of Schedule 2 of the employment contract, I observe that the restraint clause limits employment for a two-month period to provide services, or to be engaged, in the same or similar services to which he provided to Energy Australia. The restraint clause is not as Mr Dube contends, that is, that it restricted him from any employment for a period of two months. Mr Dube had not taken appropriate steps to mitigate his loss and for this I deduct 20% from the amount of compensation.
Any remuneration earned by the person from employment or other work: s.392(2)(e)
[129] Mr Dube submits that he did not earn any income since his dismissal since he has been out of work. However, he gave evidence that he has continued his engagement with SUBSAH, admitting to some projects coming in, particularly in the two days preceding the first hearing day. 65 No evidence was tendered in relation to any earnings for any work with SUBSAH. I am not satisfied that Mr Dube had not earned any income and I discount the compensation by 20%.
Any amount of income likely to be earned until the order: s.392(2)(f)
[130] As Mr Dube submits that he earned no income as he did not obtain employment and did not disclose any income from his SUBSAH arrangements I cannot consider any income likely to be earned. However, I do note that work with SUBSAH had picked up so I deduct 10% contingency for any likely income from SUBSAH.
Any other matter: s.392(2)(g)
[131] Mr Dube submits that I should award a period of 12 months and take into account the high-income cap. I disagree with Mr Dube’s submission and there are no other matters to be considered.
Amounts to be deducted
[132] I have not found misconduct on the part of Mr Dube, I have not considered any components for shock or distress and the amount I award does not exceed the compensation cap.
[133] Having considered all the relevant factors, I do consider Mr Dube’s termination of employment procedurally unfair.
[134] I do not consider a remedy of reinstatement appropriate but do consider a remedy of compensation is in order.
[135] I order three months wages, less the two months’ notice already paid in lieu, which leaves a balance of one month. This is a gross sum of $14,431.1266. I deduct for mitigation 20% and this leaves a figure of $11,544.9013 gross. I have further deducted 10% contingency for any income from work associated with SUBSAH and this leaves a balance of $10,390.41 gross.
[136] Energy Australia is to deduct the appropriate level of tax and make the payment within 14 days of the order. In addition, an employer superannuation contribution of 10% on the gross sum is to be paid into Mr Dube’s superannuation fund.
[137] An order is issued in conjunction with this decision.
COMMISSIONER
Appearances:
Mr G. Dircks for the Applicant
Mr W.Spargo and Ms A. Alexander for the Respondent
Hearing details:
2021
Melbourne
30 June, 1 July and 8 July
Printed by authority of the Commonwealth Government Printer
<PR736930>
1 Applicant’s closing submissions at [5] and transcript at PN1368.
2 Applicant’s closing submissions at [11] and extracts from Notebook 2 October 2020.
3 Respondent’s outline of argument at [10].
4 Ibid at [12].
5 Exhibit A2, witness statement of Prinsloo Dube, attachment PD-2.
6 Respondent’s closing submissions at [7]-[9].
7 Exhibit R3, witness statement of Ralph Villarosa at [93] and [97]-[98].
8 Respondent’s outline of argument at [27].
9 Sayer v Melsteel Pty Ltd (2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
10 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
11 Rode v Burwood Mitsubishi, Print R4471 (AIRCFB) at [19].
12 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
13 (1990) 27 FCR 427, 456.
14 Exhibit A2, witness statement of Prinsloo Dube at [87] - [92].
15 Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21, per Starke J.
16 Edwards v Justice Giudice [1999] FCA 1836, [7].
17 Exhibit R3, witness statement of Ralph Villarosa at [180] and attachment RV-46.
18 Exhibit A1, witness statement of Ralf Kriege at [8].
19 Exhibit R3, witness statement of Ralph Villarosa at [179].
20 Exhibit R3, attachment RV-47 and RV-45 and Exhibit R1, witness statement of Glenn Schumacher attachment GS-27.
21 Gihub.org
22 Exhibit A1, witness statement of Ralf Heinze Kriege.
23 Exhibit A2, attachment PD-2.
24 Transcript PN188, PN169-PN198.
25 Exhibit A3 Supplementary witness statement of Prinsloo Dube at [259].
26 Exhibit R1, witness statement of Glenn Schumacher attachment GS-26.
27 Exhibit A3 Supplementary witness statement of Prinsloo Dube at [60].
28 Exhibit A2, witness statement of Prinsloo Dube at [97].
29 Respondent’s reply submissions at [27].
30 Exhibit R1, witness statement of Glenn Schumacher at [10].
31 Ibid at [28].
32 Exhibit R1, witness statement of Glenn Schumacher at [16] – [20] and attachment GS-3.
33 Exhibit R1, witness statement of Glenn Schumacher at [23 (c)] and attachment GS-5.
34 Exhibit R1, witness statement of Glenn Schumacher at [24].
35 Exhibit R1, witness statement of Glenn Schumacher at [26] and attachment GS-7.
36 Exhibit R1, witness statement of Glenn Schumacher, attachment GS-10.
37 Exhibit R3 witness statement of Ralph Villarosa at [20] – [23].
38 Exhibit A3, supplementary statement of Prinsloo Dube at [77] – [79].
39 See Exhibit R1, Asset Management Leader job description attached to GS-1 employment agreement
40 Exhibit R1, witness statement of Glenn Schumacher, attachment GS-5.
41 Exhibit R1 witness statement of Glenn Schumacher at [22] – [23] and attachment GS-5.
42 Exhibit R3, witness statement of Ralph Villarosa at [25] – [29].
43 Exhibit R3, witness statement of Ralph Villarosa at [34] – [35], attachment RV-3.
44 Transcript PN519, PN526-528.
45 Transcript PN540.
46 Transcript PN1955, PN1956, PN1996 – PN2022, PN2057- PN2066, PN2078, PN2101- PN2112 and PN2149.
47 Respondent’s reply submissions at [32] referencing the relevant sections of the Schumacher and Villarosa statements.
48 Exhibit A2, witness statement of Prinsloo Dube, attachment PD-13.
49 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
50 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
51 Ibid.
52 Transcript at PN2176.
53 Page 8 of Notebook 2.
54 Transcript PN 2173.
55 In relation to the meeting of 1 October 2020 see Exhibit R3, witness statement of Ralph Villarosa at [82]-[83] and 22 October 2021 see witness statement of Ralph Villarosa at [107] – [111].
56 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
57 RMIT v Asher (2010) 194 IR 1, 14-15.
58 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
59 Exhibit A2, witness statement of Prinsloo Dube attachment PD-11; and Exhibit R3 witness statement of Ralph Villarosa attachment RV-33 page 2.
60 Applicant’s closing submissions at [28] – [29].
61 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
62 Exhibit A2 witness statement of Prinsloo Dube attachment PD2.
63 Exhibit R1 witness statement of Glenn Schumacher, schedule 3 of attachment GS-1.
64 Confidential - Exhibit A4, List of job applications.
65 Transcript PN92.