| [2021] FWC 758 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Cristian Vasquez
v
CleanAway Operations Pty Ltd
(U2020/8149)
DEPUTY PRESIDENT BINET |
PERTH, 12 FEBRUARY 2021 |
Application for an unfair dismissal remedy.
[1] On 12 June 2020 Mr Cristian Vasquez (Mr Vasquez) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Cleanaway Operations Pty Ltd (Cleanaway).
[2] On 25 June 2020, Cleanaway filed a Form F3 Employer Response, noting it had no jurisdictional objections to the Application.
[3] On 6 July 2020 and 28 July 2020, the parties participated in conciliation but the issues in dispute could not be resolved.
[4] Taking into account the parties wishes and circumstances I determined that a Hearing rather than a Determinative Conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 6 November 2020 (Hearing).
[5] Directions for the filing of materials in advance of the Hearing were issued to the parties on 28 July 2020 (Directions).
[6] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.1
[7] Neither party sought permission to be represented at the Hearing.
[8] At the hearing Mr Vasquez represented himself and Cleanaway was represented by Mr Sean Edwards (Mr Edwards).
[9] On 5 August 2020, Mr Vasquez filed a Form F51 – Application for an order requiring a person to attend before the Commission. The application sought an order for the attendance of Mr Merril Mathias (Mr Mathias) at the Hearing. Mr Mathias was employed in a similar role to Mr Vasquez and also placed on a performance improvement plan before he resigned from Cleanaway in May 2020.
[10] An Order to Attend was issued on 23 October 2020 compelling Mr Mathias to attend the Hearing. On 5 November 2020 Mr Mathias applied to have the Order to Attend set aside on the grounds that he had no evidence to provide which was relevant to the issues in dispute. Mr Vasquez did not oppose the Order to Attend being set aside. The Order to Attend was set aside on 6 November 2020.
[11] At the Hearing the following witnesses gave written and oral evidence on behalf of Mr Vasquez: 2
a. Mr George Kalogirou (Mr Kalogirou);
b. Mr Alex Tiede (Mr Tiede);
c. Mr Damian Jon Gallivan (Mr Gallivan); and
d. Mr Vasquez.
[12] Mr Kalogirou was employed as a Business Development Manager (BDM) by Cleanaway between June 2019 and February 2020. Mr Tiede was employed as a BDM by Cleanaway between July 2019 and October 2019. Mr Gallivan was a Field Sales Manager for Cleanaway until 31 July 2019. Mr Kalogirou and Mr Tiede were peers of Mr Vasquez who commenced employment with Cleanaway at or around the same time as Mr Vasquez. Mr Vasquez reported to Mr Gallivan briefly before Mr Gallivan’s position was made redundant and Mr Gallivan was retrenched.
[13] The following witnesses provided written and oral evidence on behalf of Cleanaway:
a. Ms Sarah Costello (Ms Costello); and
b. Ms Siri Akre (Ms Akre).
[14] Ms Akre has been employed by Cleanaway for three years. Prior to commencing in her current position as Field Sales Manager – Business Development Solid Waste Services, she was employed by Cleanaway as a Territory Manager (TM) in the Pilbara Region of Western Australia. Ms Akre was Mr Vasquez’s line manager from at least January 2020 until his dismissal.
[15] Ms Costello has been employed by Cleanaway as a Human Resource Officer for nearly two years. She assisted Ms Akre in conducting the performance improvement and show cause process that resulted in Mr Vasquez’s dismissal.
[16] Final written submissions were filed on behalf of Mr Vasquez on 20 November 2020. Final written submissions were filed by Cleanaway on 27 November 2020.
[17] In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision. Despite clear warnings to the contrary, the Closing Submissions filed by Mr Vasquez contained new evidence and sought to dispute evidence tendered at the Hearing but not challenged in cross examination by Mr Vasquez during the Hearing. I have adjusted the weight I have given to this evidence and the assertions made in the Closing Submissions which were not put in cross examination.
[18] Cleanaway provides waste management and environmental services across Australia and employs approximately 6,000 employees.3
[19] Mr Vasquez commenced employment with Cleanaway as a BDM - Solid Waste Services in its Western Australian office on 24 June 2019 pursuant to an Employee Service Agreement. 4. Until 31 July 2019 he reported to Mr Gallivan.5
[20] BDMs are responsible for meeting agreed individual sales budgets, targets and key performance indicators (KPI’s) by attracting new customers and revenue to Cleanaway in alignment with the sales strategy. The sales strategy requires BDMs to achieve profitable revenue growth in line with delegated levels of authority, develop and execute sales pipeline and win business through offering waste management solutions to customers. 6
[21] Around the same time as Mr Vasquez commenced employment, Cleanaway also employed Mr Kalogirou and Mr Tiede as BDMs. Neither Mr Vasquez nor either of the other two BDMs had any experience in waste management. Shortly after Mr Vasquez commenced employment the then State Manager, Mr Dale Waters, resigned. On 31 July 2019 Mr Gallivan’s position as a Field Manager was made redundant and Mr Gallivan was retrenched. Mr Vasquez, Mr Tiede and Mr Kalogirou say that they were left without training or support. 7
[22] A new State Manager, Mr Phil Benjamin (Mr Benjamin) was appointed on 8 July 2019, however Mr Vasquez says that it was not until several months later that Mr Benjamin eventually organised for three key account managers (KAMs) to act as mentors for each of the BDMs. Mr Vasquez says that these three KAMs also subsequently resigned. 8
[23] Mr Vasquez asserts that the pricing model used by Cleanaway during the first six months of his employment was not competitive. 9 On 1 October 2019 Mr Benjamin agreed to changes to the pricing rules to provide increased opportunity to compete on price.10
[24] Sometime on or before January 2020 Ms Akre was appointed Field Sales Manager – Business Development Solid Waste Services. In her role Ms Akre was responsible for the Western Australian solid waste business development function, which includes the management of four BDMs (including Mr Vasquez) and four TMs.
[25] TMs are responsible for achieving new business development and business retention targets. This means that a TM is responsible for looking after a portfolio of customers across a geographical territory as well as acquiring new customers within their designated territory. A TM position has a broader scope to their role mandate than a BDM who is responsible for new business development growth. However, both functions have measurable business development and billed sales revenue targets. 11
[26] On 13 January 2020, Mr Benjamin emailed Ms Akre with respect to his concerns that Mr Vasquez was continuously failing to manage his open client opportunities within his sales pipeline that were identified as being overdue, despite this being raised with him in one-on-one meetings. Mr Benjamin directed Ms Akre to start working with Mr Vasquez to address these performance issues. 12
[27] On 20 January 2020, Mr Benjamin again emailed Ms Akre with concerns about Mr Vasquez’s performance and instructed her to place Mr Vasquez on a performance improvement plan (PIP). 13
[28] In the month of January 2020, Mr Vasquez was well below his performance targets sitting on 19% of billed revenue Financial Year to Date (FYTD) compared to the TMs within his team who were performing at between 94% and 102% of budget. 14
[29] On 13 February 2020 Ms Akre met with Mr Vasquez to commence the PIP. Ms Akre and Mr Vasquez discussed the expected performance standards of the BDM position and his actual performance results against those standards. 15
[30] The PIP expressed the following KPIs:16
a. Pipeline Management- (All opportunities in Salesforce; all opportunities accurately presented and zero overdue opportunities)
b. Sales Planning - (Journey plan completed weekly and face-to-face target achieved)
c. New Accounts – (SME accounts signed and SME accounts trading)
d. Billed Revenue – (% of YTD budget).
[31] Ms Akre says that during the PIP meeting Mr Vasquez did not mention that his sales targets were unachievable or that he felt that he needed additional training or support. At about the same time Mr Mathias was also placed on a PIP. 17
[32] During the PIP Ms Akre pointed out to Mr Vasquez that his FYTD budget was $150,508 and he had only achieved $24,484 of this budget. In light of this she agreed to further revise and reduce his FYTD budget target to $75,000 to alleviate some of the immediate sales pressure and allow him to focus on his sales pipeline, his face-to-face client visit targets, his new account targets and his revised billed revenue. 18
[33] At the end of the month, Mr Vasquez had failed to achieve revised targets, achieving only $34,000 of the revised $75,000 FYTD target. 19 Mr Vasquez was well below his performance targets, sitting on 16.8% of billed revenue FYTD compared to the TMs colleagues within his team who were performing at between 94% and 102% of budget.20
[34] Like Mr Vasquez, Mr Kalogirou and Mr Mathias also performed badly during this period. Both elected to resign from Cleanaway. 21
[35] Between 13 February 2020 and 10 May 2020, Mr Vasquez and Ms Akre met on a weekly basis to discuss Mr Vasquez’s sales performance against his KPI’s as expressed in the PIP. 22
[36] On 19 February 2020, Mr Vasquez and Ms Akre met to review his performance against the PIP metrics. During this meeting they discussed his weekly performance. Ms Akre told him that he was under performing in the following areas: 23
a. his opportunities were not accurately presented in Salesforce;
b. he did not have zero overdue sales opportunities;
c. his journey plan was not completed weekly;
d. he had not achieved his face-to-face client target;
e. he did not achieve his SME accounts signed;
f. he did not achieve his SME accounts training; and
g. he was well short of his FYTD budget.
[37] On 26 February 2020 Ms Akre met with Mr Vasquez again to review his performance against the PIP metrics. During this meeting they discussed Mr Vasquez’s underperformance in the following areas: 24
a. his opportunities were not accurately presented in Salesforce;
b. he did not have zero overdue sales opportunities;
c. his journey plan was not completed weekly;
d. he had not achieved his face-to-face client target;
e. he did not achieve his SME accounts signed;
f. he did not achieve his SME Accounts trading; and
g. he was well short of his FYTD budget.
[38] Mr Vasquez says that the Lead Indicator Report (LID) began showing that his performance was improving and that, in fact, he was achieving what was required of him. However, by that point, as the targets were cumulative, he was substantially behind in his year to date targets. He says that it was unreasonable to expect him to make up the differential in a short period of time. 25 In support of this assertion he tendered a copy of the Lead Indicator Reports for March and April 2020. These reports revealed that he was the highest sales activity performer in those months. I do note that the same reports showed that notwithstanding his assertions that the sales targets were unachievable, that all four of the TMs were at or above 93% of their year to date targets and that another BDM, Ms Beck, had better year-to-date results than Mr Vasquez.26
[39] In the month of March 2020, Mr Vasquez was well below the expected and agreed performance targets. He was sitting at 17.3% of billed revenue FYTD compared to the performance of his colleagues within his team: Lucy Harris (TM) @ 100.1% FYTD; (b) Kelly Kane (TM) @ 94.3% FYTD; (c) Brendon Cressell (TM) @ 98.S% FYTD; Valerie Beck (BDM) @ 208. 7%; and (d) Kristina McKenna (TM)@ 101.2% FYTD. 27
[40] On 4 March 2020 Ms Akre again met with Mr Vasquez to review his performance against the PIP metrics. During this meeting they discussed his performance, and it was noted that he was still underperforming in the following areas:
a. his opportunities were not accurately presented in Salesforce;
b. he did not have zero overdue sales opportunities;
c. his journey plan was not completed weekly;
d. he had not achieved his face-to-face client target;
e. he did not achieve his SME accounts signed;
f. he did not achieve his SME Accounts trading; and
g. he was well short of his FYTD budget.
[41] On 10 March 2020 Ms Costello met with Ms Akre and Mr Benjamin, to provide advice in relation to the management of Mr Vasquez’s PIP. From this point until his dismissal Ms Costello oversaw the PIP process to ensure that Mr Vasquez was assessed objectively and treated fairly. During this time Ms Akre conveyed to Ms Costello her concerns that Mr Vasquez was defensive to feedback and resistant to change. She reported that he failed to implement and apply tools and training he was provided with to assist him to satisfy the PIP. Ms Costello independently reviewed Mr Vasquez sales performance and behaviours against the KPI’s to ensure that he was being fairly assessed.
[42] On 11 March 2020, 16 March 2020, 23 March 2020 and 30 March 2020 Ms Akre met with Mr Vasquez to review his performance against the PIP metrics and his LID dashboard. During these meetings he was informed that his performance was still unsatisfactory and on each occasion was provided with a copy of the Revenue Leader Indicator dashboard. 28
[43] In the month of April 2020, Mr Vasquez was well below the expected and agreed performance targets. He was sitting at 19.8% of billed revenue FYTD compared to the performance of his colleagues within his team - (a) Lucy Harris (TM) @ 98.9% (FYTD); (b) Kelly Kane (TM)@ 93.3% FYTD; (c) Brendon Cressell (TM) @ 96.8% FYTD; Valerie Beck (BDM) @ 539.5%: and (d) Kristina McKenna (TM)@ 101.1% FYTD. 29 30
[44] Ms Akre says that during the PIP process, Mr Vasquez mentioned to her, on a number of occasions, that he struggled to stay self-motivated and focused and he needed continuous oversight to stay on track. 31
[45] On 6 April 2020, Ms Akre decided to move Mr Vasquez’s performance discussions from a PIP format to a Performance Actions and Priorities (PAP) format. Her reasoning for doing so was that the PIP process was more data driven and did not fully address the required changes in his sales behaviour. According to Ms Akre, Mr Vasquez’s performance issues included not only his failure to achieve sales metrics but his inability or desire to follow sales processes. Ms Akre believed the PAP provided a stronger focus on sales behaviours, process and metrics. 32
[46] Mr Vasquez was provided with a copy of the PAP which contained the following measures: 33
a. Specific – (Be as specific as possible to ensure clear line of sight of exactly what you are working on);
b. Commitment – (Achieve the tasks and goals you have set out to do);
c. Detail – (Ensure that attention to detail and accuracy are never overlooked when performing any part of your role (quality over quantity));
d. Business Acumen – (Ensure the prospective customers you are dealing with are "good customers" and qualify your customers early on in the process and evaluate whether they are worth investing significant time converting);
e. Structure – (Ensure approach to your day-to-day activity is structured veraciously);
f. Stay In Your Lane – (Ensure that you are only working on opportunities in the SME-market and Construction/Project work within your assigned territory);
g. Follow Up – (Ensure you are not missing anything or leaving any outcomes to chance by having a strong electronic to-do-list to guarantee follow up); and
h. Urgency – (Ensure that you expedite positive outcomes by establishing urgency around your actions whilst being cognisant of the above-mentioned points).
[47] On 13 April 2020, Ms Akre met again with Mr Vasquez to discuss the PAP format and to set and review his sales performance and behaviours against the PAP. 34
[48] On 20 April 2020 Ms Akre again met with Mr Vasquez to discuss the PAP format and review his sales performance and behaviours against the PAP. Mr Vasquez was continuing to fail to meet his sales performance and behavioural expectations. During this meeting Ms Akre says that she told Mr Vasquez that she had noticed that he was following up the same sale opportunities week after week without result. I explained to him that he needed to qualify his sales opportunities and allocate time to closing based on the immediacy of the opportunity. At all times he needed to control his sales pipeline. She noted that this particular issue had been outstanding since January 2020. 35
[49] The same day she wrote to Mr Vasquez to reconfirm the actions items they had agreed at the PAP meeting. She reinforced that he would need to, and he had agreed to, commit to working on improving his sales performance against each agreed action item. She noted that this included bringing supporting information to the performance review meeting scheduled for 4 May 2020. The action items included: 36
a. working on his closing pitch - bringing an example to the next meeting;
b. creating five new SME opportunities;
c. making 10 SME/Project cold calls per day;
d. preparing10 written quotes to C&D/Project customers per week; and
e. work with another employee to price his projects, copying her in.
[50] To assist Mr Vasquez in focusing on his business development activities, Ms Akre sent him a refresher on Cleanaway’s sales process for pricing C&D Projects. Ms Akre says that Mr Vasquez had mentioned to her that he felt Cleanaway’s pricing in this market segment was not competitive. She says that he mentioned to her that one of their competitors had quoted a rate for a bin that Cleanaway could not match. She informed him that Cleanaway had in fact recently provided cheaper rates than their competitors for projects in comparable locations. Ms Akre says that this was another example of Mr Vasquez's unwillingness to follow Cleanaway’s sales process and his failure to keep his Cleanaway and market knowledge fresh. 37
[51] On 20 April 2020 sales team members were requested to take additional leave in May and June due to the downturn in work associated with the COVID 19 pandemic. Consistent with this instruction Mr Vasquez took leave from 28 April 2020 to 4 May 2020 and booked to take leave from 1 June 2020 to 5 June 2020. 38
[52] On 27 April 2020 Ms Akre and Mr Vasquez met again to discuss the PAP format and to review his sales performance and behaviours against the PAP. He still was not meeting his sales performance and behavioural expectations.
[53] Ms Akre says that despite Mr Vasquez being midway through a PIP/PAP program, his poor attitude towards his work continued. She says that this was exemplified by Mr Vasquez’s substandard approach to building a sale opportunity with DSL Design and Build Pty Ltd. Instead of identifying the customers' needs and wants to establish an individual service solution and building a customer relationship, she says that Mr Vasquez took a lazy approach by emailing the prospective client a request for a list of information which should have been qualified during a call or a visit. Given Mr Vasquez's extensive BDM experience and all the coaching to date, she says that this reflected poorly on Mr Vasquez's professionalism and demonstrated a lack of desire to change and improve his unsatisfactory work performance.
[54] In an effort to help Mr Vasquez identify potential leads, Ms Akre says that she spent a significant amount of time researching prospective client opportunities within his BDM territory. She encouraged Mr Vasquez to contact a customer Cleanaway had failed to retain in 2018 based on their then pricing. Knowing how much work Cleanaway had put into making their pricing more competitive, she thought it would be a good opportunity to approach this ex-Cleanaway customer to see if they would be interested in coming back to Cleanaway based on its revised pricing. The revised pricing available was 17% cheaper than the rates offered to the customer in 2018. Mr Vasquez failed to pursue this prospective sales opportunity and did not contact the customer.
[55] Between January 2020 and May 2020, Ms Akre says that she researched and sourced a number of prospective clients within Mr Vasquez's BDM territory for him to initiate contact and commence action to build a client relationship. Whilst it is ordinarily the responsibility of the BDMs to undertake, she says that given her commitment to support Mr Vasquez to improve his unsatisfactory work performance she thought it might be productive if she gave Mr Vasquez some additional sales support and direction.
[56] On 18 May 2020, Cleanaway issued Mr Vasquez with a performance evaluation letter (Show Cause Letter). The letter stated that Mr Vasquez had failed to show any sustained improvement in his performance. 39 In particular that he:
a. had not taken clear action to improve the areas highlighted in his PIP/PAP;
b. failed to obtain sufficient contracted SME new business within his assigned territory;
c. failed to implement changes to improve his behaviour and sales performance based on the feedback he was provided;
d. taken a hands-off approach by sending template questions to customers rather than have a conversation and tailoring his sales pitch; and
e. consistently failed to prepare for one-on-one meetings as part of the PIP/PAP process.
[57] The Show Cause Letter stated that Cleanaway was considering terminating his employment but that before making a decision to dismiss him, Mr Vasquez was invited to provide a response to the Show Cause Letter. 40
[58] On 18 May 2020, Mr Vasquez requested additional time to respond to the Show Cause Letter. Cleanaway extend the time to close of business on 20 May 2020. 41 Mr Vasquez did oppose this extension or seek a longer extension.42
[59] On 19 May 2020 Mr Vasquez provided a written response to the Show Cause Letter (Show Cause Response). In that letter he acknowledged that he had not achieved his KPIs with respect to billed revenue. However, he asserted that he had changed his behaviour by increasing his call program and by focusing on larger billed revenue clients. He also asserted that he had been working to establish better relationships with internal stakeholders.
[60] On 21 May 2020, Mr Vasquez was invited to attend a meeting the following day to discuss his work performance and his ongoing employment with Cleanaway. The meeting invitation explained the purpose of the meeting and invited Mr Vasquez to bring a support person with him. 43
[61] Mr Vasquez attended the 22 May 2020 meeting with a representative from the Transport Workers Union. At the meeting, Mr Vasquez was provided with another opportunity to respond to the allegations of unsatisfactory work performance. 44
[62] Cleanaway took the view that Mr Vasquez’s responses to the Show Cause Letter failed to address the substantive issues that had been raised with him during the PIP and PAP. For example: 45
a. that he had only developed 63 ongoing new business opportunities in 11 months as opposed to his target of 220;
b. his call volume only increased in the last two weeks of his employment; and
c. During the PIP he had only achieved a 2.3 growth in billed revenue moving his sales metric from 16.8% FYTD to 19.1% FYTD.
[63] Mr Vasquez was verbally informed that he would be dismissed and the reasons for his dismissal by Ms Akre. He was also provided with a letter of termination (Termination Letter). 46
[64] On 12 June 2020 Mr Vasquez filed the Application with the Fair Work Commission.
[65] Mr Vasquez has since gained alternative employment, however he seeks an order for reinstatement.
[66] An order for reinstatement or compensation may only be issued if Mr Vasquez was unfairly dismissed and Mr Vasquez was protected from unfair dismissal at the time of his dismissal.
[67] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
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:
• a modern award covers the person;
• an enterprise agreement applies to the person in relation to the employment;
• 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 Fair Work Regulations (Cwth) 2009 (FW Regulations), is less than the high income threshold.
[68] The high income threshold as at the date of the Hearing was $148700.
[69] Mr Vasquez commenced employment with Cleanaway, who is a national system employer, on 24 June 2019 and was dismissed on 22 May 2020.47 Mr Vasquez’s total fixed remuneration was $105,00 per annum. There is no dispute, and I am satisfied that the sum of Mr Vasquez’s annual rate of earnings, and such other amounts worked out in accordance with the FW Regulations, is less than the high income threshold. Consequently, I am satisfied that Mr Vasquez was protected from unfair dismissal.
[70] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d. the dismissal was not a case of genuine redundancy.
[71] Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
[72] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[73] There was no dispute, and I find, that Mr Vasquez’s employment with Cleanaway was terminated at the initiative of Cleanaway.48
[74] I am therefore satisfied that Mr Vasquez has been dismissed within the meaning of section 385 of the FW Act.
[75] Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
a. the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
b. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[76] It was not in dispute,49 and I find, that Mr Vasquez’s dismissal was not due to Cleanaway no longer requiring his job to be performed by anyone because of changes in Cleanaway’s operational requirements.
[77] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[78] Section 388 of the FW Act provides that a person’s dismissal was consistent with the SBFD Code if:
a. immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
b. the employer complied with the SBFD Code in relation to the dismissal.
[79] It was not in dispute,50 and I find, that Cleanaway was not a small business employer within the meaning of section 23 of the FW Act, as at the relevant time having in excess of 14 employees.
[80] As Cleanaway is not a small business employer within the meaning of the FW Act, I am therefore satisfied that the SBFD Code does not apply to Mr Vasquez’s dismissal.
[81] Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.
[82] Section 394(2) of the FW Act requires that the Application be made within 21 days after the dismissal took effect.
[83] It is not disputed, and I find, that Mr Vasquez was dismissed from his employment on 22 May 2020 and made the Application on 12 June 2020. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
[84] 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.”
[85] Section 387 of the FW Act provides: that, 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);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
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;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
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.
[86] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.51
Was there a valid reason for the dismissal related to Mr Vasquez’s capacity or conduct?
[87] An employer must have a valid reason for the dismissal of employee, although it need not be the reason given to the employee at the time of the dismissal. 52 The reasons should be “sound, defensible and well founded”53 and should not be “capricious, fanciful, spiteful or prejudiced.”54 However, the FWC will not stand in the shoes of the employer and determine what it would do if it was in the position of the employer.55
[88] The test is not whether employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively. 56
[89] Cleanaway says that Mr Vasquez’s ongoing unsatisfactory work performance formed a valid reason for his dismissal.
[90] Mr Vasquez says that there was no valid reason for his dismissal because:
a. He was not provided with sufficient training and support to succeed in his role as a BDM;
b. During the first 6 months of trying to win business, the BDM’s were required to use a uncompetitive pricing rate card to pitch to potential customers;
c. Most customers were encumbered by a service agreement with their existing waste provider and trying to find a new opportunity was very difficult;
d. His sales targets compounded so became unachievable;
e. The sales targets failed to account for quiet times around Christmas or downturns such as the impact of COVID-19;
f. Of the contracts he did sign, he says over a dozen opportunities were unaccounted for and that this directly impacted on his sales numbers and performance for billed revenue. He says that this was raised as an issue with his manager but nothing was done;
g. The ‘goal posts’ for his performance kept on changing. For example, he says that initially he was told that he could seek opportunities with clients of over $100,000 per annum in billed revenue. But after seeking new opportunities over $100,000 he was told to hand over the opportunity to another department on 30 April 2012. If says that had he been allowed to pursue this opportunity it would have gone a long way to helping him achieve his performance goals.
h. His sales performance had improved during the time he was placed on the PIP and he was not given sufficient time to demonstrate his improvement.
i. He was not alone in not reaching his sales targets and in fact no BDM had met their targets in years. 57
Insufficient Training and Support
[91] Mr Vasquez asserts that he was not provided with sufficient training and support to succeed in his role as a BDM. While Mr Tiede and Mr Kalogirou also say that they were left without training or support,58 Mr Vasquez’s other witness Mr Gallivan says that Mr Vasquez was provided with appropriate onboarding to understand the product offering, marketing support, strategy and ongoing in field coaching to support him in achieving the objectives of his role.
[92] Mr Gallivan says that this included:
a. the opportunity to spend time with some of his peers in sales calls and to spend time on trucks to learn and understand their function and suitability to different environments;
b. contact details for key stakeholders within the organisation, along with pricing templates, sales contracts, and product information sheets;
c. encouragement to seek out some small business opportunities on his own volition to help solidify his product understanding through practical application and to revert to Mr Gallivan or colleagues with questions as required; and
d. encouragement for him to invite Mr Gallivan to client meetings so that he could assist Mr Vasquez with the complexities of waste management as required.59
[93] Cleanaway insist that Mr Vasquez was provided with sufficient training and support.
[94] Ms Akre says that based on Mr Vasquez’s resume he is a well-educated and highly experienced BDM who ought to have required limited training or support and should have readily been able to meet his sales targets. In support of this assertion she points to his resume which represents he: 60
a. exceeded his sales targets in 2014, 2015, 2016, and 2017;
b. had been ranked second in 2015 and 2017 and ranked first in 2016 in Western Australia;
c. exceeded 2010 annual targets by 109%;
d. won the national commercial BDM of the year in 2013;
e. increased new business growth from new client relationships by 75%;
f. achieved yearly sales targets of $70m within 10 months;
g. increased new business growth by 127% in 2006;
h. was awarded ‘Sales Person of the Year' in 2006 for best national sales result ($83m) and
i. between 2002 – 2005, was ranked in the top 3 national sales performers, year on year.
[95] Ms Akre asserts that the sales process has a generic and global application and can be applied in a similar fashion across all industries. She says that the only real changing variable in the sales process is the product and the target industry, neither of which she says is complex in Cleanaway’s solid waste management business. Ms Akre says that experienced sales people like Mr Vasquez normally learn the product and industry within the first three months of employment. 61
[96] Ms Akre also points out that on 3 October 2019, Mr Benjamin had emailed Mr Vasquez asking him to complete his three month on-boarding survey. However, Mr Vasquez failed to take the time to complete his on-boarding survey nor did he take the opportunity to raise any concerns about his induction or his training. 62 Ms Akre says that his failure to complete the survey was consistent with his failure to properly prepare for and undertake other tasks he was given, including their PIP and PAP meetings and action items.63
[97] According to Ms Akre when a BDM commences their employment with Cleanaway, they are onboarded into the business by the BDM's manager via the Sales Induction Guide (Guide). The Guide outlines detailed information on the organisation, the industry, the employee's sales and target expectations, sales tools and pricing strategies, the sales systems, products and services and other important information. The Guide is located on the Cleanaway Portal and is readily accessible to all BDMs, including Mr Vasquez. 64
[98] In addition to the Guide, the SME Sales Playbook provides BDMs with a detailed overview of the sales process and a description of each of the steps within the sales process. Ms Akre says that Mr Vasquez was introduced to sales process and had access to the SME Sales Playbook throughout the duration of his-employment. 65
[99] Ms Akre says that all BDMs, including Mr Vasquez, are trained in: 66
a. Cleanaway's products and services (including fees, charges and client risk assessment management plans).
b. Sales targets.
c. Sales incentives.
d. Performance expectations.
e. Weekly sales operating reporting requirements.
f. Solids and liquids rate cards.
[100] Ms Akre insists that Mr Vasquez was provided with a strong sales support systems and numerous opportunities to upskill and be assisted to achieve his sales objectives. In her witness statement she listed 19 different specific training, development or support opportunities offered to Mr Vasquez between 31 July 2019 and 8 April 20020 to upskill and improve his performance. 67
[101] Ms Akre she says that she found Mr Vasquez to be apprehensive and unwilling to engage in on the job and formal training or to utilise the business sales support programs. She says that he always needed to be pushed into participating in such offerings. 68
[102] For example, she says that one of the most effective coaching techniques available in combatting unsatisfactory sales performance is for the employees manager to spend time with the underperforming employee during client visits. This allows the manager and the underperforming employee to identify key areas of improvement in the employees sales techniques and techniques in building meaningful client relationships. Ms Akre says that on numerous occasions she asked Mr Vasquez nominate a time and schedule a placeholder for joint client visits, however Mr Vasquez failed to follow this direction, even when pressed to do so. 69
[103] Ms Akre says that notwithstanding his reluctance to engage in training and coaching, during the course of his employment Mr Vasquez demonstrated that he clearly understood Cleanaway’s total waste management services and solutions, his minimum performance targets and his role requirements. 70 She attributes his performance failures, to not a deficiency in training but rather to sub-standard sales behaviours, a refusal to follow sales pathways and a reluctance to accept assistance to do so. 71
Sales targets unreasonable.
[104] Cleanaway dispute that the sales targets were unreasonable.
[105] Ms Akre says that Cleanaway understands that it will take new BDMs some time to fully understand the solid waste services business, its service and solution offerings and to build relationships within the existing and prospective clients. For this reason, Cleanaway sets cascading performance sale targets for new starters for the first five months of their employment as follows: 72
a. Month 1 - no measures.
b. Month 2 - 25% to annual target run rate.
c. Month 3 - 50% to annual target run rate.
d. Month 4 - 75% to annual target run rate.
e. Month 5 - 90% to annual target run rate.
[106] In his first five months of employment Mr Vasquez failed to achieve any of these targets. Ms Akre says that normally Mr Vasquez would have been dismissed during his probationary period as a result, however ‘he slipped through the cracks’ and hence as soon as she became aware of his performance deficiencies she commenced a PIP. 73
[107] The other poorly performing BDMs either resigned before they were placed on a PIP or resigned after being placed on a PIP.
[108] Mr Vasquez tendered no evidence, such as industry benchmarking, competitors KPIs or sales data, to support his assertion that the targets set by Cleanaway were unreasonable, other than the opinions of the other BDMs with poor sales performance who exited the business on their own accord.
[109] On the contrary Ms Akre gave evidence of competitors sales models and targets. For example, she says that Cleanaway and its competitor JJ Richards & Sons Pty Ltd (JJ Richards) have very similar overall sales targets. She says that the key point of difference is that JJ Richards sets their BDMs a hard target of five new customers per week in comparison to Cleanaway who allows BDMs to set their own new customer weekly targets in-line with their budgeted MTO. 74
[110] With respect to Mr Vasquez’s complaint that many potential customers were encumbered by a service agreement with their existing waste provider, Cleanaway note that this is a reality faced by every sales person in the industry.
[111] Cleanaway dispute that its prices formed a barrier to Mr Vasquez achieving his sales goals. Ms Akre gave evidence that Mr Vasquez had numerous tools and support mechanisms available to him to win new business including price matching or undercutting a competitor’s price. 75 Mr Vasquez’s own submissions acknowledge that Mr Benjamin took steps to address concerns about price competitiveness in October 2019.
Sales Targets not the only performance measures
[112] Cleanaway say that Mr Vasquez’s unsatisfactory work performance was not confined to the underachievement of an established sales target but rather was assessed upon a number of factors, of which the sales target achievement was only one component.
[113] In addition to a requirement to achieve, at a minimum, 90% of his month to date sales targets, Mr Vasquez was required, but failed, to undertake various activities in relation to sales performance which included:
a. managing all opportunities in salesforce;
b. ensuring all opportunities were accurately presented;
c. ensuring that there were no zero overdue opportunities;
d. complete a journey plan on a weekly basis;
e. ensuring face-to-face targets are achieved;
f. ensuring SME accounts were signed;
g. ensuring SME Accounts trading were signed; and
h. ensuring MTD sales revenue budget is achieved.
[114] Cleanaway say that he was also required, and failed, to display the following sales behaviours:
a. a commitment to tasks and goals;
b. attention to detail (quality over quantity);
c. action to qualify the customers for conversion;
d. day- to-day structure;
e. a focus on SME-Market & Construction/Project work;
f. follow up; and
g. a sense of urgency.
Proactive assistance to achieve performance requirements
[115] Ms Akre says that as soon as she became aware of Mr Vasquez’s unsatisfactory performance she started engaging Mr Vasquez in weekly performance management meetings to discuss and measure his performance against the revenue lead indicator dashboard for the purposes of providing him with sales support, coaching and to ensure that Mr Vasquez was building and sustaining a healthy sales pipeline, prospective sales were being realized and he was able to overcome any sales roadblocks as quickly as possible. 76
[116] She says that her initial impressions of Mr Vasquez were that he was very unstructured and ill-prepared in his daily work. She says that this was further evidenced during the PIP/ PAP process where he would attend the meetings unprepared and without supporting information or materials. She says that she also found him easily distracted and unfocused on building client relationships and managing his sales pipeline. 77
[117] According to Ms Akre, generally sales success is simply a numbers game. The more customers a person contacts and builds a relationship with, the more likely that they will be able to convert a sales opportunity and meet their sales targets. As Mr Vasquez struggled to effectively manage his sales pipeline and achieve the required amount of quality customer contact she says that there was no surprise that he continuously struggled to achieve his sales targets. 78
Compounding effect of targets was unreasonable
[118] Mr Vasquez says that only were the targets unreasonable the compounding effect of the sales targets made the targes unachievable.
[119] However, Mr Vasquez’s own witness Mr Gallivan points out Mr Vasquez’s sales target for the 2020 financial year were adjusted to reflect his onboarding journey. 79
[120] Furthermore, in the month of February 2020, as part of his PIP, Cleanaway agreed to reduce his sales billed revenue targets to remove some of the immediate sales pressures allowing him to focus on his sales performance and sales behaviours.
Other employees did not meet their targets
[121] Cleanaway dispute Mr Vasquez’s assertion that no other employee achieved their KPIs. Cleanaway point as an example to another newly employed BDM, Ms Beck. Like Mr Vasquez, Ms Beck had no prior experience in waste management industry. Notwithstanding her more limited training and experience Ms Beck exceeded the same sales performance targets set for Mr Vasquez. Ms Beck commenced employment in February 2020 as the COVID -19 pandemic took hold. Notwithstanding this, in her second month of employment Ms Beck achieved 208.7% of her target as compared to Mr Vasquez’s 86%. In month three she achieved 539.5% as compared to Mr Vasquez’s 47.1%. In month four she achieved 428.4% as compared to Mr Vasquez’s 29.6%. In month five she achieved 300.7% as compared to Mr Vasquez’s 23.8%. 80
[122] Furthermore, whilst the roles were not identical, the evidence reveals that the TMs who were also set business development targets were able to achieve their individual business development targets on a regular basis averaging over 90% of FYTD in periods when Mr Vasquez achieved less than 20%. 81
Performance was improving
[123] Mr Vasquez says that the Lead Indicator Report (LIR) was showing that his performance was improving and that, in fact, he was achieving what was required of him. However, by that point, as the targets were cumulative, he was substantially behind in his year to date targets. He says that it was unreasonable to expect him to make up the differential in a short period of time. 82
[124] In support of this assertion he tendered a copy of the LIR for March and April 2020. These reports revealed that he was the highest sales activity performer in those particular months. The same reports showed that, notwithstanding his assertions that the sales targets were unachievable, that all four of the TMs were at or above 93% of their year to date targets. The reports also reveal that Ms Beck, a BDM new to the waste industry, was achieving her year to date targets notwithstanding the impact of COVID 19. 83
[125] Cleanaway point out that Mr Vasquez was subject to an extensive 13-week period of weekly formal performance management meetings where he and Ms Akre discussed and reviewed and measured his sales performance and sales behaviours against the agreed targets. 84 Each time, Mr Vasquez was put on notice, and given an opportunity to respond, that he was not meeting his sale performance targets and his behavioural expectations.85
[126] Cleanaway submit that the fact that Mr Vasquez made some last-minute efforts to show an improvement in only one element of the relevant key performance indicators cannot be characterised as a ‘tangible’ or ‘meaningful’ demonstration that he would meet the minimum performance expectations required of him in order to make his employment sustainable.
Conclusion
[127] Even on the evidence of Mr Vasquez’s own witness, he was provided with appropriate on-boarding. Between Mr Gallivan’s departure and Ms Akre’s appointment it appears probable that he had less direct supervision. However given his training, prior experience, the on-boarding he had received, the evidence of Mr Benjamin’s oversight, the training and development opportunities offered to him and the internal resources available to Mr Vasquez such as the Guide and the Playbook, I am not satisfied that this provides an adequate explanation for his unsatisfactory work performance during this period or after the appointment of Ms Akre.
[128] Given the evidence that other employees did achieve the sales targets set for them and in the absence of any objective data that the sales targets set by Cleanaway were unreasonable, I am not swayed by the evidence of the disgruntled, poorly performing former employees to the contrary.
[129] The evidence is that the sales targets were not inflexibly applied. New employees were given a period of nearly half a year before being expected to meet the targets in full. Furthermore, the targets were modified in the course of the PIP/PAP to assist Mr Vasquez achieve the PIP and PAP goals.
[130] I am satisfied, and Mr Vasquez agreed, that a 13-week period is more than a reasonable amount of time to demonstrate meaningful improvements in performance considering that Mr Vasquez had prior knowledge that his performance was unsatisfactory. 86
[131] During cross examination, Mr Vasquez acknowledged and accepted that during the 13-week performance management period his performance was anchored to, and measured against, the PIP and PAP metrics which were far broader than merely his billed revenue. 87
[132] While Mr Vasquez was able to achieve some improvement in his sales billed revenue in the last few weeks of his employment, Mr Vasquez conceded that he did not achieve his performance metrics within his Performance Improvement Plan or his Performance Action and Priorities. 88
[133] His improvement in his sales billed revenue was too little too late.
[134] Critically, the financial metrics of sales billed revenue was only one of a number of different key performance indicators. 89 Mr Vasquez’s deficiencies in performance were not limited merely to the revenue he was able to generate.90 More concerningly, in terms of the long term sustainability of his employment he demonstrated a lack of willingness to engage in activities that might improve his capacity to generate sales such as allowing Ms Akre to attend client visits with him or by coming prepared to PIP/PAP meetings.91
[135] I am satisfied that in all the circumstances a valid reason exists for Mr Vasquez’s dismissal.
[136] This weights against a finding that Mr Vasquez’s dismissal was harsh, unjust or unreasonable.
[137] 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,92 and done so in explicit,93 plain and clear terms.94
[138] In Crozier v Palazzo Corporation Pty Ltd95 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations FW Act 1996 stated the following:96
“[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.”
[139] For a period of 13-weeks during the performance management process Mr Vasquez was regularly put on notice, in explicit, plain and clear terms, of his specific unsatisfactory sales performance issues and his failure to meet his behavioural expectations.
[140] On 18 May 2020 Mr Vasquez was presented with an Opportunity to Respond letter, putting him on further notice of his failure to achieve his sales performance targets and his failure to demonstrate any meaningful improvements in his sales behaviour.
[141] In the meeting held on 22 May 2020 Ms Akre again notified Mr Vasquez of his unsatisfactory work performance before adjourning the meeting to consider his responses before making the final decision to terminate his employment.
[142] On 22 May 2020, Mr Vasquez was notified of the reasons for his termination in explicit, plain and terms, in writing, in the Termination Letter.
[143] I am satisfied that Mr Vasquez was notified of the reasons for his dismissal. This weights against a finding that Mr Vasquez dismissal was harsh, unjust or unreasonable.
[144] 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.97
[145] 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.98 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.99
[146] Mr Vasquez was provided with an opportunity to respond to the reasons for termination in the Show Cause Letter issued to him on 18 May 2020. Mr Vasquez took that opportunity and provided a response on 19 May 2020. Mr Vasquez was provided with a further opportunity to respond to the reasons for his termination at the meeting held on 22 May 2020.
[147] I am satisfied, that Mr Vasquez was given an opportunity to respond to the reason for his dismissal prior to the decision to terminate being made. This weights against a finding that Mr Vasquez’s dismissal was harsh, unjust or unreasonable.
[148] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[149] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:100
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”
[150] A representative of the Transport Workers Union attended the meeting held on 20 May 2020 as Mr Vasquez’s support person. There is no evidence to suggest that Mr Vasquez requested that a support person attend any other meetings he attended in relation to his performance issues.
[151] I am satisfied that Cleanaway did not unreasonably refuse to allow Mr Vasquez to have a support person present at discussions relating to his dismissal. This matter weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[152] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 101
[153] Mr Vasquez concedes that he was informed in the one-on-one PIP and PAP sessions that Cleanaway had concerns about his performance. However, he says that because of the compounding nature of the targets that it was impossible to reach the targets particularly in light of the impact of the COVID 19 pandemic.
[154] Mr Vasquez also says that he was not given adequate assistance to reach the targets. 102 He concedes that he met with Ms Akre on a weekly basis, however he says that she should have spoken to him during the week to provide more direct support in relation to the challenges he was experiencing.103
[155] Ms Akre provided detailed evidence of the support she provided to Mr Vasquez over the 13-week PIP/PAP. Her evidence reveals not only that she clearly articulated Cleanaway’s expectations and the consequences if those expectations were not met, but that she also provided extensive guidance with respect to how those expectations could be met and provided practical assistance in meeting those expectations, including by identifying potential clients.
[156] I am satisfied that Ms Akre diligently sought to both warn Mr Vasquez about his unsatisfactory performance and valiantly assisted him to avoid his dismissal occurring. This matter weights against a finding that Mr Vasquez’s dismissal was harsh, unjust or unreasonable.
[157] Where an employer is substantial and has dedicated human resources personnel and access to legal advice, there will likely be no reason for it not to follow fair procedures.104
[158] Cleanaway is a large business and the size of its operations would not have been likely to have significant impact on procedures surrounding the dismissal of Mr Vasquez. Mr Vasquez did not make any submissions about this factor.
[159] I therefore consider that this matter is a neutral consideration in determining whether the dismissal was harsh, unjust or unreasonable.
[160] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees ‘even when implementing something as difficult and unpleasant as the termination of a person’s employment’.105
[161] Cleanaway has a dedicated human resource management group. A member of the human resources team had oversight of the performance management process and the show cause process that led to the dismissal of Mr Vasquez.
[162] Mr Vasquez did not make any submissions about this factor.
[163] I therefore consider this factor is a neutral consideration in determining whether the dismissal was harsh, unjust or unreasonable.
[164] Section 387(h) requires the FWC to take into account any other matters that the FWC considers relevant.
[165] The question of whether or not the termination was harsh, unjust or unreasonable is to be determined on the basis of the circumstances in existence when the decision to terminate the employment was made. 106
[166] Cleanaway says that Mr Vasquez was subject to Cleanaway’s ordinary performance management practices on the same terms as Mr Kalogirou and Mr Mathias, both of whom chose to resign rather than complete a performance improvement process. Cleanaway submits that this weighs against a finding that the dismissal was harsh, unjust, or unreasonable.
[167] Mr Vasquez did not specifically raise any other matters that he considered relevant to the question of whether or not the termination was harsh, unjust or unreasonable. I have given consideration to the issues that he raised in relation to whether his dismissal was for a valid reason, such as his assertion that he was not given sufficient training or sufficient opportunity to improve. I have also given consideration to factors which are apparent on the evidence, such as the duration of employment. None of these matters cause me to believe that his dismissal was harsh, unjust or unreasonable in the circumstances.
[168] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Vasquez was not harsh, unjust or unreasonable. Accordingly, I find Mr Vasquez’s dismissal was not unfair. The Application is therefore dismissed.
[169] An Order to this effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
C. Vasquez for the Applicant.
S. Edwards for the Respondent.
Hearing details:
2020.
Perth:
November 6.
Final written submissions:
Applicant, 20 November 2020.
Respondent, 27 November 2020.
Printed by authority of the Commonwealth Government Printer
<PR726939>
1 Warrell v Walton (2013) 233 IR 335, 341 [22].
2 A letter was tendered on behalf of Mr Russell Stuart Saunders however he was unavailable to be cross examined at the Hearing and therefore I have attached more limited weight to his evidence.
3 Digital Court Book, 4 (‘DCB’).
4 Ibid 38, 64.
5 Ibid 4.
6 Ibid.
7 Ibid 22 - 23, 65 - 66, Transcript PN227.
8 Ibid 22 – 23.
9 Transcript 6 November 2020 at PN 104.
10 Ibid 265 – 266.
11 Ibid 89.
12 Ibid 99.
13 Ibid 99.
14 Transcript 6 November 2020 at PN 847, DCB 99.
15 Ibid 4.
16 Ibid 5.
17 Ibid 82.
18 Ibid 100.
19 Ibid 100.
20 Ibid, 99.
21 Ibid 100.
22 Ibid 4.
23 Ibid 100.
24 Ibid 101.
25 Ibid 22 – 23.
26 Ibid 24.
27 Ibid 101.
28 Ibid 101.
29 Ibid 102.
30 Ibid.
31 Ibid.
32 Ibid.
33 Ibid 5.
34 Ibid 103.
35 Ibid.
36 Ibid.
37 Ibid.
38 Ibid 31-32.
39 Ibid 5.
40 Ibid.
41 Ibid 6.
42 Ibid 107.
43 Ibid 6.
44 Ibid.
45 Ibid 107 – 108.
46 Ibid 6.
47 Ibid 4.
48 Ibid 3.
49 Ibid 3.
50 Ibid.
51 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
52 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373 (Starke J), 377-378 (Dixon J).
53 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
54 Ibid.
55 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
56 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 150 [62].
57 Transcript of 6 November 2020 at PN 229.
58 DCB (n3), 22 - 23, 65 - 66.
59 Ibid 67 – 68.
60 Ibid 90.
61 Ibid.
62 Ibid 91.
63 Ibid 92.
64 Ibid.
65 Ibid.
66 Ibid.
67 Ibid 94 – 96.
68 Ibid 94.
69 Ibid.
70 Ibid 92.
71 Ibid 97.
72 Ibid 93.
73 Ibid.
74 Ibid 97.
75 Ibid 98.
76 Ibid 93.
77 Ibid 93 – 94.
78 Ibid 91.
79 Ibid 67 – 68.
80 Ibid 99.
81 Ibid 99 – 100.
82 Ibid 22 – 23.
83 Ibid 24.
84 Transcript 6 November 2020 at PN 539.
85 Transcript 6 November 2020 at PN 872.
86 Transcript 6 November 2020 at PN 791.
87 Transcript 6 November 2020 at PN 758.
88 Transcript 6 November 2020 at PN 810, PN 818 – PN 820, PN791 of the Transcript.
89 Transcript 6 November 2020 at PN 849.
90 Transcript 6 November 2020 at PN 764.
91 Transcript 6 November 2020 at PN 865 – PN 866.
92 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73].
93 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
94 Ibid.
95 (2000) 98 IR 137.
96 Ibid 151 [73].
97 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [75].
98 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
99 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
100 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
101 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
102 DCB (n 3), 16 – 17.
103 Ibid 17.
104 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].
105 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
106 Dundovich v P&O Ports PR923358 (AIRCFB, Ross VP, Hamilton DP, Eames C, 2 October 2002), [78].