Fair Work Act 2009
s.394—Unfair dismissal

Andrew McDougall
v
Skyfield Homes Pty Ltd
(U2021/8691)

Application for an unfair dismissal remedy

[1] On 28 September 2021, Mr Andrew McDougall (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Skyfield Homes Pty Ltd (the Respondent).

[2] The matter was listed for a conciliation before a Commission Conciliator on 4 November 2021 but did not settle. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 16 November 2021. The matter was initially set for a substantive hearing on 12 and 13 January 2022, although this was adjourned until 20 and 21 January 2022.

[3] At the Hearing, the Applicant represented himself, and the Respondent was represented by Mr D Freeman of Counsel instructed by Ms Margaret Miller of Bell Legal Group. All parties appeared by video via Microsoft Teams. The Applicant is protected from unfair dismissal as it is not disputed that he was dismissed and that he satisfies the minimum employment period having been employed for approximately eleven months and it is conceded that the Respondent is not a small business.

REPRESENTATION

[4] The Applicant raised an objection to the Respondent being legally represented at the hearing. The Applicant stated that because he wasn’t legally represented, he felt it was unfair for the Respondent to be. I considered the submissions from both sides and took into account that the Applicant was initially represented until 22 November 2021. I was satisfied the Applicant had been on notice from at least the 15 December 2021 that the Respondent was being represented by lawyers, even though the Form F53 wasn’t filed until 19 January 2022. I was satisfied that any sensible assessment of the material indicated the Respondent was being represented from mid-December.

[5] On the question of efficiency, given the level of complexity and the number of witnesses, I was persuaded that having a lawyer involved would assist me in dealing with the matter more efficiently as there was a range of factual disputes. The absence of a lawyer would cause delay due to neither party having familiarity in examination of statements and the critical issues. Taking into account the issue of fairness, whilst the Respondent has more than 15 employees, it is not a business that is large or has sophisticated Human Resources and given the fact that Mr Tamati Reweti (Mr Reweti), Director of the Respondent would have been conducting the matter, that weighed in favour of me granting leave. Leave was granted for the Respondent to be represented.

BACKGROUND

[6] The Applicant commenced employment with the Respondent as a full-time Estimating Manager on 7 October 2020. In his Form F2, the Applicant stated that he had completed his probationary period and consistently received positive feedback from his managers and clients.

[7] The Applicant was notified of his dismissal on 26 August 2021 following a meeting with Mr Reweti. On 31 August 2021, the Applicant received a letter confirming that a decision had been made to terminate his employment on 26 August 2021 with notice. The Applicant subsequently completed his two-week notice period, which he stated involved finishing up estimates that he had started, entering supplier/subcontractor pricing into the catalogue and setting up the estimating system. The Applicant’s dismissal took effect on 9 September 2021 when his notice period ended.

[8] The Applicant alleged in his Form F2 that his dismissal was unfair as he was not notified of any valid reason for his termination and therefore was not provided with an opportunity to respond. The Applicant has also raised several other deficiencies in the Respondent’s process including that he was not given an opportunity to have a support person.

[9] The Respondent has maintained that the Applicant was dismissed due to his poor communication and inability to support his team members.

EVIDENCE AND SUBMISSIONS

[10] On 30 November 2021 the Applicant filed submissions, a statement of Scott Kilborne as well as his own evidence. On 12 January 2021, the Applicant submitted a further statement of Mr Luke Cini.

[11] On 15 December 2021 the Respondent filed submissions and statements of various employees including:

•  Witness statement of Tamati Reweti

•  Witness statement of Nikola Brac

•  Witness statement of Ash Turner

•  Witness statement of Yi Xia (Sean Xia)

•  Witness statement of Frank Feng

•  Witness statement of Monica Benjumea

•  Witness statement of Alejandro Sanchez

•  Witness statement of Dazhi Wang (Dave Wang)

October to December 2020

[12] Shortly after commencing employment, the Applicant approached Mr Reweti suggesting that the existing software program, Buildxact should be replaced with Databuild, a program used for Builder Estimations and Financial Accounting. The Applicant’s concern was that the previous program was not linked to an accounting program. According to Mr Reweti, the Applicant also suggested that the Respondent install an estimate program called, ‘Client Manager’ which according to Mr Reweti, he said linked to DataBuild and was suitable for semi-skilled users, such as in-house sales employees. Mr Reweti said that the Applicant insisted he set up the new programs as he had more expertise in those programs.

[13] Mr Reweti stated that he was concerned about the impact of the new software given the money the Respondent had invested in the previous programs which had been suitable for their purpose. Mr Reweti recalled that he met with the Applicant on 8 October 2020 to discuss such concerns. Mr Reweti’s evidence is that the Applicant was very persistent and sent him a fee proposal on 9 October 2020 noting that the cost of the new programs was $38,000 including training. Mr Reweti stated that the Applicant assured him that he could implement the new program and have it operational within 2 months, delivering training to two junior estimators, five salespeople and liaise with the company accountant. At the hearing Mr Reweti explained that although he was apprehensive about DataBuild, he believed in the Applicant’s ability and decided to move ahead with the new program. The Applicant stated that the Databuild order/job costing system is very similar to that used by junior estimators previously and they were able to continue using the system previously used until he was able to get data uploaded to the new system. Therefore, staff were able to continue ordering materials as they previously had.

[14] Mr Reweti recalled that on 3 November 2020 the Applicant requested to work from home to perform Databuild work so that he would have less distraction. The Applicant told Mr Reweti it would take him 5 to 7 days. Upon the Applicant’s return, Mr Reweti said that he was disappointed that there had been no progress to the stage where the team could feel confident to use the program, however Mr Reweti felt that he had no option but to “push ahead” because of the money and manpower that had already been invested.

[15] Mr Reweti stated that it was around this time that he began receiving complaints from sales staff about the slow responses for sales quotations. Mr Reweti stated that it was also around this time that the Applicant advised that he would not use the Respondent’s choice of quick internal communication, “Whatsapp” which made internal communications difficult, despite the additional use of email communication. Mr Reweti further noted that the Applicant “became difficult” regarding joining Zoom meetings for company communication, especially during early 2021 lockdowns and when he was working from home.

[16] On 14 December 2020, Mr Reweti stated that he spoke with the Applicant about the complaints from sales staff regarding slow responses for sales quotations on Databuild and Client Manager. According to Mr Reweti, the Applicant said that the problem was not his fault and instead was because the salespeople were inexperienced and did not use the program properly. Mr Reweti told the Applicant that the complaints related to lack of training and a failure to implement program templates. The Applicant told Mr Reweti that the problems would be resolved but maintained that he was not at fault.

February – March 2021

[17] The Applicant stated that on 4 January 2021, after the Christmas shut down period, the server on which the new programs were installed had collapsed, severely impacting his ability to have the new programs up and running. The Applicant explained this was the ideal time to work on the programs as sales costing requests were generally slower in January. A new server was installed in approximately mid-February however by this time the sales request workload was heaver, making it difficult for the Applicant to get the new databases “up and running”. At the hearing the representative for the Respondent alleged that because the Applicant was working from home in January 2021, the sever breakdown did not affect him. The Applicant did not recall working from home at the time, but in any case stated that he relied on it even if he was working from home.

[18] The Applicant stated that from the time he started with the Respondent he was assured that it could employ additional estimators, preferably two, one sales estimator and preferably, at least one production estimator. The Applicant further stated that he made several requests for additional estimator(s) and an accounts/book keeper as the current book keeper was uncooperative and refused to use Databuild. At the hearing, Mr Reweti stated in cross-examination that finding the right people to come into the industry at the time was not easy, although they did hire more staff “later on”. Mr Reweti’s evidence is that during the initial discussions the Applicant indicated that he had the necessary experience and there would be no issues with the DataBuild program.

[19] Mr Reweti stated that on 8 February 2021 he met with the Applicant who had requested a third program, ‘Onsite Companion’. The Applicant insisted the program would provide a quick and efficient workflow from preconstruction to the construction process and would integrate with Databuild. Mr Reweti denied the request. The Applicant continued to arrange a quotation to be sent to the Respondent. The Respondent again denied the request.

[20] On 12 February 2021 Mr Reweti stated that he received a complaint from Ms Monica Benjumea, a member of the Sales and Marketing team, regarding the Applicant. Ms Benjumea told Mr Reweti that she had made several attempts to communicate with the Applicant by emails and verbally to assist her with Client Manager for accurate quotations. Ms Benjumea complained of slow response times, ‘negative body language’ of the Applicant when she approached him and overall a lack of communication. In the hearing, Ms Benjumea stated that she had to develop a certain way to approach the Applicant, in that she had to approach his desk because she would not get answers in a timely manner if she were to call or email.

[21] Ms Benjumea recalled that on 5 December 2020 she had asked the Applicant via email to send her information about three homes that should have been estimated so that she could make an agreement with a partner agent. After Ms Benjumea did not receive a reply, she approached the Applicant for the information. The Applicant asked Ms Benjumea to send the information in an excel document, which Ms Benjumea did although she did not receive a response until January 2021 and therefore had to use out of date pricing with no estimation confirmation.

[22] Ms Benjumea further stated that she was unable to estimate a home for a client with some upgrades in November 2020 because there was information missing or not updated in the Client Manager system. On 10 February 2021 Ms Benjumea emailed the Applicant requesting assistance with the final estimation of the home however as he did not reply she was required to do it herself manually. At the hearing the Applicant denied that he left sales staff to prepare their own sales quotes, although sales staff would change tenders in PDF format, which made him upset.

[23] In the hearing, Ms Benjumea further contended that the quotes couldn’t be provided in real time like the competitors did, and this resulted in sales being affected. Ms Benjumea said that since the Applicant has left, more clients have bought houses as a result of immediate pricing.

[24] In cross examination Ms Benjumea was asked about a ‘procedure for requesting sales estimate document’ that was emailed from the Applicant. Ms Benjumea said she saw a document the Applicant created that listed processes but didn’t see the procedures put in place. The Applicant asked her why she didn’t follow them. Ms Benjumea said that the Applicant never had a meeting with anyone about it, and the Applicant couldn’t expect to just create a sheet with information without providing the proper training.

[25] Mr Reweti stated that from March through to the Applicant’s termination in August, he continued to receive complaints from staff about the Applicant’s performance.

[26] For example, Mr Dazhi Wang, Estimate Manager, gave evidence regarding his complaints about the Applicant. Mr Wang stated that he found the Applicant difficult to work with due to the Applicant’s lack of communication and poor time management. Mr Wang stated that the Applicant would often make mistakes with pricing which caused a huge loss to the company if the contracts had been signed and meant that in the event the contracts weren’t signed, the price offered to clients would need to be adjusted.

[27] Mr Wang provided a specific example of a multi-million-dollar job that he received on 12 March 2021. Mr Wang arranged a meeting with the Applicant, the General Manager and Construction Manager where everyone received tasks with relevant due dates to ensure the job could move forward. The Applicant said that he was not able to advise when he could provide the price for the house, but that he would get onto it as soon as possible. Mr Wang told that Applicant that he required the quote in two weeks. The Applicant failed to provide the quote in the requested timeframe and as such the client decided not to engage the Respondent to build the house. Mr Wang described that over four weeks of effort from the team was wasted by the Applicant’s poor time management.

[28] At the hearing, the Applicant responded that he was working on other sales quotations at the time and was not asked by Mr Wang to prioritise the project.

April – May 2021

[29] Mr Reweti stated that in early April he met with the Applicant who again agitated for the purchased of the Onsite Companion program. On 16 April 2021 Mr Reweti recalled that the Applicant had arranged for a demonstration of the Onsite Companion program, after which he met with Nikola Brac, Construction Manager, to discuss the Respondent’s position. Mr Brac stated that he felt the program was too expensive and complicated for what the Respondent business need. Mr Reweti and Mr Brac again met with the Applicant and advised him that the Respondent would not acquire Onsite Companion.

[30] Mr Reweti and Mr Brac both stated that days after his meeting with the Applicant, Alejandro Sanchez, Company Head Architect, told Mr Reweti and Mr Brac that the Applicant had discussed acquiring Onsite Manager with him, looking for his support. Mr Reweti felt that the Applicant’s behaviour undermined his authority and he told the Applicant to stop. Mr Brac also approach the Applicant and told him that his behaviour was unacceptable.

[31] In his written submissions, the Applicant referred to a meeting with Mr Reweti and Mr Brac, sometime approximately in May 2021 where he was advised that two junior estimators required close guidance. The Applicant reiterated his requests for at least a production estimator that could guide them more closely as he was spending a great majority of time doing sales estimates. The Applicant said his workload had increased greatly in response to the housing market nationally, and in particular in Queensland. At the hearing, the Applicant accepted that it was his responsibility to train and supervise junior estimators and therefore, Mr Reweti and Mr Brac expressing their view that they were unhappy with the training and supervision was a case of them being critical of his performance. However, the Applicant denied that Mr Reweti and Mr Brac also told him that he needed to prepare sales quotations more quickly or that they spoke to him about his communication skills with other employees.

[32] At the hearing Mr Reweti confirmed that he did meet with the Applicant in May 2021 to discuss concerns that he had about the Applicant, although according to Mr Reweti only the Applicant and himself were present.

Meetings on 1 and 5 July 2021

[33] On 1 July 2021 Mr Brac said he met with Mr Reweti to discuss ongoing complaints regarding the Applicant, including his failure to communicate with Senior Managers and train junior estimators. Mr Brac was particularly concerned about deadlines being repeatedly missed.

[34] Regarding support for junior estimators, at the hearing Mr Brac stated that junior estimators would often come into his office asking for help and support. Mr Brac would direct them to the Applicant however they said that they felt uncomfortable approaching the Applicant. During cross-examination the Applicant asked Mr Brac what specific queries the junior estimators had as they were using the same “Takeoff” system and were ordering materials in the same way as they did prior to the Applicant’s employment with the Respondent. Mr Brac explained that the junior estimators had various queries including DataBuild not being set up correctly, how to input information, although he reiterated that he was not an estimator and therefore was not across the detail.

[35] On 5 July 2021, Mr Reweti and Mr Brac met with the Applicant to discuss his performance issues. Mr Brac stated that he had received complaints that there was little or no support for Sean Xia or Jacky Leong in addition to the failure to meet deadlines to hand in quotations. Mr Brac stated that the Applicant said he would take two weeks to finish the quotations, however despite that fact he rarely met those deadlines. Mr Reweti recalled asking the Applicant if he needed any support however the Applicant’s reaction was “full of excuses” and he was not willing to take responsibility for any of the issues.

[36] Mr Xia is an estimator employed by the Respondent. Mr Xia stated that he felt dissatisfied because the Applicant did not provide training he was told he would receive. Mr Xia described feeling lost about the tasks or projects he was involved in. Mr Xia provided the example of a project he was assigned on 3 October 2020 to a property in Sanctuary Cove. Mr Xia stated that he had little experience in precisely measuring how many external cladding sheets and accessories were needed on site. Mr Xia said that he asked the Applicant for help but he did not respond. Mr Xia stated that the Applicant told him to leave him alone as he was busy and would often leave the office for hours at a time. Mr Xia was therefore forced to get quotes from suppliers and contractors instead. In the hearing, Mr Xia stated that it was often Mr Brac having to assign tasks and not Mr McDougall as it should have been, and he thought Mr McDougall as a manager should have done more for the department.

[37] Mr Brac said that he spoke to the Applicant at least three times a week about his workload and asked if he could help support him. According to Mr Brac, the Applicant never communicated that he had any problems and did not ask for any support. At the hearing Mr Brac accepted that he spoke to Mr Reweti about how the Applicant was handling the role. Mr Brac and Mr Reweti spoke regularly about getting more estimators.

[38] The Applicant was also questioned about the meeting between himself, Mr Reweti and Mr Brac on 5 July 2021 where he was counselled about his supervision of junior estimators. The Applicant said that he could not remember dates, but it was possible that the same issues were raised at that meeting as were raised at the previous meeting in May 2021 and he again would have reiterated “the reasons why”.

[39] Further, while under cross examination the Applicant accepted as a general proposition that Mr Reweti and Mr Brac, as directors and managers, were concerned with the performance of their employees, and when they spoke to him about his performance, they were in fact complaining. However, the Applicant added that he was never given the complaints of any other alleged complainants and that he “explained the reasons” to Mr Reweti and Mr Brac at the meeting. The Applicant later referred to “workload” and “the need to hire a productions estimator and sales estimator” as the reasons.

[40] Regarding his workload the Applicant explained that all standard house designs were revamped to achieve more cost-efficient designs which involved 25 designs being costed and listed in the new sales program. The Respondent established three levels of inclusions. The Applicant stated that once the three levels were set up, he was able to pass some of the sales estimating to the junior estimators who grasped the process well and were able to estimate for simple customer designs. The Applicant continued to estimate custom designs as the existing estimators did not have enough experience.

[41] Mr Reweti stated that in July 2021 the Respondent retained an external business coach, Mr Grant Chatham, to provide one on one training to the Applicant to assist him improve his performance. According to the Respondent the Applicant failed to follow the training advice. At the hearing, Mr Reweti said that Mr Chatham expressed concerns about whether the Applicant would be able to turn around his attitude, telling Mr Reweti, “was it worth your while persevering with Andrew”.

[42] In oral evidence the Applicant confirmed that he did meet with Mr Chatham, although he provided group training and spoke about company team building, company culture and building the Respondent’s position in the marketplace, as opposed to discussion about his individual performance.

Launch of ‘Focus Living’ and office relocation

[43] Following the launch of ‘Focus Living’, the Applicant stated that at the beginning of August he moved to an office at the opposite end of the complex at Hope Island. The Respondent’s evidence is that the move occurred on 9 July 2021 and when questioned at the hearing the Applicant conceded he did not remember the date. The Applicant said that the two existing estimators remained in the previous location. Additionally, a sales estimator, Frank Feng was hired, without any consultation from the Applicant. Mr Feng sat in the main office with the Applicant and Mr Dave Wang.

[44] The Applicant explained that ‘Focus Living’ involved the creation of a further approximately 20 standard designs. The Applicant stated that two additional levels of inclusions were required for Focus Living. The second level was a lower level than the initial inclusions, creating additional work for the Applicant than if the first level had been the lower level as the costing spreadsheet had to be reverse engineered.

[45] At the hearing, the Applicant confirmed that following the meeting on 5 July 2021 and his relocation to the Focus Living office, he ceased supervision and training of junior estimators. The Applicant said that junior estimators still asked him questions, however he accepted it was no longer his direct responsibility. The Applicant maintained that he was not informed of the change that Mr Feng would take over this responsibility, stating that he found out after a “couple of weeks after the change happened.” The Applicant did not agree that he was moved to the Focus Living office because the Respondent no longer wanted him to supervise and train junior estimators.

[46] At the hearing Mr Reweti explained that he decided to relocate the Applicant to Focus Living because he had concerns about the Applicant’s relationship with other people in the company and he wanted to give the Applicant a “fresh start”, including being able to work with a new sales manager. The Applicant would not be required to train junior staff and Mr Reweti had also predicted that Focus living would be ‘slower paced”. The Applicant maintained that these reasons for his relocation were never provided to him.

[47] The Applicant stated that Mr Ash Turner, Sales Manager for Focus Living, had no concept of the Applicant’s workload and continually brought in designs from other companies through agents to be costed. According to the Applicant the requests from Mr Turner were mostly “urgent” requiring him to stop what he was doing.

[48] Mr Turner commenced employment with Focus Living on 5 July 2021 and worked closely with the Applicant to set up the new construction company. Mr Turner described the Applicant’s behaviour towards him as “stand-offish”, recalling problems with communication from the first week. Mr Turner stated that whenever he asked for help with his process, or training on programs he was expected to use and general information about what he was doing, the Applicant either did not answer or delayed responses. In the hearing, Mr Turner confirmed that he found the Applicant hard to communicate with and that the Applicant would often get frustrated and walk out, returning hours later like nothing had happened. Further, Mr Turner said he felt the Applicant didn’t want to be a part of the team as he wouldn’t spend time with anyone in the team and kept to himself.

[49] Mr Turner requested that the Applicant provide pricing for standard designs, and he was advised it would take him two weeks. When the Applicant had not delivered the work within two weeks Mr Turner said he “chased him up”. Mr Turner stated it was impossible to get an answer about where he was up to, and he was told to leave him alone to do his work. Mr Turner further stated that the Applicant would leave the office for hours at a time. At the hearing the Applicant denied the claim that he left his desk for hours without explanation or regularly finished at 3:30pm.

[50] On 19 July 2021, Mr Turner met with Mr Reweti to complain about the Applicant’s attitude, poor communication and poor work ethic. Mr Reweti stated that he met with both the Applicant and Mr Turner the same day to discuss the issues. Mr Reweti reminded the Applicant that Mr Turner was a Senior Manager and he gave both a “verbal warning that they had to address the issues”. At the hearing Mr Reweti confirmed that the Applicant did not receive any written communication regarding the complaint by Mr Turner.

[51] On 26 July 2021, Mr Turner again asked the Applicant about his pricing task and was advised that he had only completed half of the task. Mr Turner explained that due to the Applicant’s failure to communicate the delay, the team were stuck and unable to move forward. Mr Turner made a further complaint to Mr Reweti that despite best efforts, the Applicant would not cooperate. Mr Turner’s view was that the Applicant was not a good fit for the company and was not fulfilling his job as an estimation manager.

[52] At the hearing the Applicant asked Mr Reweti whether having to estimate 30 or 40 standard designs for Focus Living including having to go back for a second set of inclusions, on top of estimating the non-standard designs from other builders as requested by Mr Turner, would have greatly increased his workload. Mr Reweti did not accept that the Applicant was himself estimating 30 to 40 plans, and in any case, he came from the Respondent company which was “full on customs” meaning it would not be out of his range to make small customisations. Mr Reweti reiterated that Focus Living was a new company and it was unrealistic for the Applicant to think that everything would be exactly right from the start. Mr Reweti admitted that possibly the workload was too much for the Applicant without the support of other estimators and stating that at the time he endeavoured to get more people on board, although it was difficult.

[53] The Applicant stated that he ran through the sales estimating system with Mr Feng, checked on his estimates and asked him to make a few adjustments and to come back. The Applicant said that Mr Feng did not come back to him with the estimate for checking, instead zeroed the price increase the Applicant had initiated in June and issued the sales costing/tender to the sales manager. The Applicant stated that the next interaction he had with Mr Feng was to discuss procedures for incoming costing requests, as Mr Feng was frustrated that sales were approaching him directly with initial costings and amendments to existing costings and the lack of detail included in their requests.

[54] The Applicant’s evidence was that in December 2020 he issued a procedure to sales for the process of costings and amendments, requesting feedback to hone the procedure to work for all concerned, however this was ignored by sales people and the sales manager, to the extent that the Applicant was asked about procedures to follow by the sales manager in approximately March/April 2021. The Applicant said he presented the procedure to him and still got no response.

[55] At the hearing Mr Reweti acknowledged that the Applicant developed a sales procedure that “looked pretty good” but explained that the Applicant was unable to effectively communicate and implement the procedure to sales staff. Mr Reweti admitted that on at least four occasions the Applicant had advised him that Mr Wang was not following the sales procedure.

[56] The Applicant asked Mr Reweti whether he agreed that these issues regarding the procedures were affecting his workload and this was the reason he perceived the Applicant wasn’t getting estimates out in time. Mr Reweti, responded that simply sending 1 or 2 emails to staff with the new procedure and expecting them to change was not reasonable, especially given the new system. Mr Reweti accepted that this probably affected the Applicant’s workload, however Mr Reweti maintained that the Applicant knew “what he was getting himself into” starting at a new company that did not have all their processes set up.

[57] The Applicant stated that a meeting was held regarding procedures for costings with himself, Mr Feng, the drafting manager and the interior design manager, and all were frustrated with sales not following processes and interrupting the flow of production in the office generally. It was decided for Mr Feng to reissue the procedures to sales.

[58] Mr Feng’s evidence was that the Applicant hardly ever provided training, and Mr Feng would have to go to the Applicant’s office to look for support, but the Applicant was impatient which made it hard to communicate with him. Additionally, Mr Feng said that the company processes or working method were never explained, which made working difficult. Mr Feng further corroborated this in the hearing, noting that he needed support but always felt he was annoying the Applicant, and at times, was told that he was disrupting the Applicant when he would ask questions. Additionally, Mr Feng’s evidence was that when he would email The Applicant, there were times where the Applicant would not reply.

[59] At the hearing the Applicant said that he gave Mr Feng all of the assistance that he asked for, although it was difficult being in a new office. The Applicant admitted that in July 2021 he changed Mr Feng’s permissions in the sales estimation software without consultation with IT or Mr Feng, as it would allow him to have less issues using and developing the system.

Meeting on 12 August 2021

[60] Mr Reweti stated that on 12 August 2021 Mr Brac requested a meeting to discuss the Applicant’s performance. Mr Brac was concerned that the Applicant was not a team player and did not fit into the company culture of supporting each other. Additionally, Mr Brac thought that the Applicant lacked the necessary skills to manage an estimation department.

[61] Mr Reweti’s evidence was that at this meeting he told the Applicant it was an official warning and that he needed to see improvement within the next two weeks.

[62] The Applicant’s evidence was that he was not told what the purpose of the meeting was. During the meeting, the Applicant said that he was informed that people found it hard to approach him. The Applicant stated that despite the repeated requests, he was not given any further details or any further insight into who or on what basis it was considered that people found it hard to approach him.

[63] The Applicant further stated that the decision to dismiss him had clearly already been made prior to this meeting as evidenced by Mr Reweti’s comments about David wanting to let him go immediately.

Meeting on 27 August 2021

[64] The Applicant’s evidence was that on 26 August 2021 Mr Reweti confirmed that the Applicant would be given two weeks’ notice of termination, which he was required to work, and a discussion was had regarding the work the Applicant would complete during this notice period.

[65] Mr Reweti’s evidence was that on 26 August 2021, he scheduled a meeting with the Applicant on 27 August 2021 where he advised the Applicant that there had been no improvement and the other staff were dissatisfied and had lost confidence in his ability as a Senior Estimation Manager. Mr Reweti further stated that the Applicant had promised to fix the problems but did not appear to have taken any steps to address the performance issues.

Termination Letter of 31 August 2021

[66] On 31 August 2021 the Applicant received a letter confirming that his employment had been terminated on 26 August 2021. The letter stated as follows:

“Dear Andrew,

After careful consideration, I regret to inform you a decision was made regarding your employment with Skyfield Homes/Focus Living which will end two weeks from the date of our discussion 26^th August 2021.

You will receive your entitled annual leave accrued whilst employed with us, including your normal pay up to and including the last day of employment, this will be included in your final pay.

You are required to return any company items if applicable on or before the last day of employment. (Also, keep in mind the confidentiality agreement of Skyfield Homes/Focus living in any future endeavours you may pursue).

We appreciate your time and effort with past projects you worked on for the companies and, if you require a letter of recommendation for any future Estimating positions you apply for, please be assured we will assist you in providing any references needed.

Please let us know if we can assist you during this transition.”

[67] The Respondent has submitted that the following performance issues resulted in the Applicant’s dismissal:

(a) Failure to communicate effectively with his team members;

(b) Repeated failure to complete estimating tasks in a timely manner;

(c) Failure to provide training to his team;

(d) Failure to provide support to team members when required.

[68] The Respondent contended that it held meetings with the Applicant to assist him with improving his performance after repeated complaints from other employees. According to the Respondent, the Applicant said he would fix the identified issues and blamed other employees for the problems. The Applicant failed to accept personal responsibility for his problems and although he agreed to improve his performance, he did not do so.

[69] At the hearing the Applicant asked Mr Reweti whether he considered convening a meeting between himself, Mr Reweti, the complainants and other directors. Mr Reweti said that he did not, acknowledging that he did not want to make it awkward for the staff who had complained, especially for those whose second language was English and who came to him confidentially. Mr Reweti acknowledged that if he held a meeting between the Applicant and the complainants it could have possibly broken down communication barriers.

[70] The Respondent accepted that it would have documented the Applicant’s employment issues, meeting and performance management steps if it had the benefit of a HR specialist. At the hearing Mr Reweti reiterated that the company was “young” and had not invested in human resources.

[71] In oral evidence, Mr Reweti stated that the Applicant was “out of [his] depth” taking on the estimating managers position, and instead the Applicant is more suited “to a bigger business”. The Applicant was required to implement procedures, train juniors and connect with fellow team leaders, which were all out of his depth.

[72] The Applicant maintained that he was not given a reason for dismissal. To the extent that it may be inferred that the reason for dismissal was that “people find it hard to approach [him]” the Applicant’s position is that this does not constitute a valid reason for dismissal. In any case, the Applicant denied that he was hard to approach. To this point, the Applicant relied on the evidence of Mr Scott Kilborne, Interior Design Manager at Skyfield Homes. Mr Kilborne said that he has known and worked with the Applicant “on and off” for over 15 years, describing him as a friend while being cross-examined at the hearing. Mr Kilborne stated that he always found the Applicant to be professional, up-front, honest and hardworking. Mr Kilborne never had any issues with the Applicant personally or professionally and would have no problems working with him again.

[73] Under cross-examination, Mr Kilborne stated that he had a “great relationship” with Mr Reweti, Mr Brac and Mr Wang, despite a small issue that he had previously regarding the questioning of his role, which he had managed to work through. Mr Kilborne admitted that he had heard whispers that “Dave”/Mr Wang was having some issues trying to get pricing through when the Applicant was employed as an estimator.

[74] The Applicant also relied on the evidence given by Mr Cini who stated that he had worked with the Applicant a “couple of times” over the past 20 years and the Applicant had recommended him. Mr Cini recalled that Mr Reweti spoke extremely highly of the Applicant, including about how he brought confidence to the estimating team, pricing for the sales side of the business and purchase pricing for the production estimating side also. According to Mr Cini he met with Mr Reweti three times prior to the end of 2020, and each time the Applicant was mentioned as bringing extremely positive changes.

[75] Further, the Applicant submitted that he was not given sufficient notice of the reason for dismissal. At the meeting on 12 August 2021 when he was told that people found it hard to approach him, he was not given any details or sufficient particulars so as to enable him to understand the issue at hand.

CONSIDERATION

[76] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the considerations under section 387 of the Act.

(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[77] A valid reason was described in Selvachandran v Petron Plastics Pty Ltd 1 as one which is “…sound defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based on the operational requirements of the employer’s business.”

[78] The evidence is clear that the Applicant was engaged to perform the role of an Estimating Manager and that role included managerial responsibilities including supervision of more junior staff.

[79] His role went beyond that of performing estimates. Attempts were made to assist the Applicant develop as a manager including by the engagement of an external consultant. On balance it seems reasonably clear the Applicant was either unable or unwilling to perform the specific supervisory functions that the role he was engaged to perform entailed, and this was impacting on the efficiency and profitability of the Respondent.

[80] There was evidence that senior management was receiving a series of complaints from staff about the Applicant’s performance. There was a consistency in the evidence of the witnesses for the Respondent critical of the Applicant’s communication and interpersonal skills, a failure to train more junior staff, and to meet deadlines. Complaints were made from staff both more senior to the Applicant, and also subordinate to the Applicant. On the basis of the evidence overall, I am prepared to accept on balance that there were deficiencies in the Applicant’s performance in regard to each of the areas that were the subject of complaints.

[81] The Applicant also complained that he had issued certain procedures that staff did not follow however the evidence supports a conclusion that the Applicant did not take the appropriate steps that would be expected of a manager in his role to ensure the adoption of these new procedures.

[82] I am satisfied that the evidence supports a conclusion that the Applicant did not demonstrate the necessary communication skills to adequately fulfil his managerial responsibilities, both in relation to supervision of more junior staff, and in terms of his relationships with other staff and managers within the Respondent.

[83] I am not satisfied the evidence of the two witnesses called for the Applicant to assist his case should be afforded any significant weight. Mr Kilborne conceded he was friends with the Applicant, had lived with the Applicant and had never managed the Applicant. Mr Kilborne also conceded that he had been the subject of performance management during his own employment at the Respondent but felt that the process was respectful and fair to him. The other witness did not provide evidence that was of much direct assistance to the significant factual issues in dispute.

[84] I am satisfied based on the evidence that the Respondent had a valid reason for dismissal.

(b) Whether the person was notified of the reason

[85] The reason for termination should be notified to an employee before the termination occurs. Whilst it is true that the Respondent did not explain to the Applicant at the meeting where he was advised of his termination, or in the letter of termination, the full extent of the reasons the Respondent relied upon for the purposes of the hearing in the Commission, I am satisfied that the Applicant was made sufficiently aware of the nature of the issues that had been being raised with him over a period of time for the consideration in section 387(b) not to weigh in favour of the dismissal being unfair.

[86] This includes four occasions where performance issues were raised with the Applicant, including in May, 5 July, 19 July and 12 August 2021. The evidence supports the conclusion that the nature of the issues raised at these discussions was consistent with the complaints being received by the Respondent, and therefore the Applicant was not notice of these matters.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[87] An employee must be given an opportunity to respond to a reason related to their capacity or conduct, and allowed an opportunity to explain their capacity or conduct throughout the process and before the termination occurs.

[88] The Applicant maintained a decision had already been made by the Respondent before he was given an opportunity to put his case as to why he should not be dismissed. The Applicant also maintains that he was not told that the move to Focus Living was connected to his performance. It may be the case that the Applicant was not told this specifically however it is clear issues were being raised with the Applicant by the Respondent before this decision was taken.

[89] There were a series of discussions between senior managers of the Respondent and the Applicant about the concerns the Respondent held about his capacity throughout 2021 including in May and on 5 July 2021 before the subsequent meeting on 12 August where the Applicant was put on notice. That Applicant conceded meetings occurred with senior management about his performance. The Applicant was given a reasonable opportunity to respond to the concerns being raised by management.

[90] I do not accept that the Applicant’s contention that the Respondent had already made a final decision to terminate the Applicant by 12 August as the evidence does not provide a proper basis to draw that conclusion.

(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal

[91] This consideration will only be relevant where an employee seeks to have a support person present to assist in discussions in relation to dismissal and the employer refuses. The evidence does not establish that the Applicant requested a support person for the meetings in August where the termination was discussed. This is therefore a neutral consideration.

(e) Was the Applicant warned about unsatisfactory performance before dismissal

[92] The Applicant submits he was never warned that he was in danger of being dismissed. The Applicant said that he was told by Mr Reweti in the meeting on 12 August that Mr Wang wanted him dismissed at that time. The history of discussions set out above establishes that it should have been sufficiently clear to the Applicant that his job was in jeopardy at this stage.

[93] I am satisfied that the Applicant did receive a formal warning from Mr Reweti at the 12 August meeting, and this occurred in the context of earlier counselling that had occurred in May and July.

(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

[94] The Respondent is not a small business however the business is a new home building business that had only been operating for two years at the time the Applicant was employed and Mr Reweti said he had never been involved in dismissing an employee and did not have human resources experience or training. The Respondent did not keep the level of written records of performance management meetings that would be ordinarily expected in a larger business.

(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

[95] The Respondent did not have a dedicated human resource management specialist or expertise in the enterprise, and this would have been likely to impact on the procedures followed in effecting the dismissal. Mr Reweti’s background was that of a carpenter not of a human resources specialist.

(h) Any other matters that the FWC considers relevant

[96] The Applicant said that the termination affected him financially and emotionally. He said in relation to his financial position he had to stop mortgage payments on his own property and on an investment property. He said he had roughly 40 years’ experience in the building industry and had worked for numerous employers in the industry and he had never been terminated before, excepting on account of redundancy. He gained other employment in the same industry within four months of his termination.

[97] The Applicant was paid two weeks’ notice despite being entitled to one week. There are no other matters that I consider relevant.

CONCLUSION

[98] I have made findings in relation to each of the considerations under section 387 of the Act and have weighed those findings including that the Respondent had a valid reason for dismissal and afforded Mr McDougall procedural fairness in reaching its conclusion. On the basis of those findings, I am satisfied the dismissal of Mr McDougall was not harsh, unjust or unreasonable. Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Mr A. McDougall appearing on his own behalf.
Mr D Freeman of Counsel instructed by Ms M. Miller of Bell Legal Group for the Respondent.

Hearing details:

2022
Brisbane (via Microsoft Teams Video)
20 and 21 January

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 1   (1995) 62 IR 371 at 373.