FWA 5713
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The attached document replaces the document previously issued with the above code on 28 September 2010.
References to Financial Services Union have been changed to Financial Sector Union in paragraphs 6, 7 and 26.
Acting Associate to Commissioner Lewin
4 October 2010
 FWA 5713
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ken Laker
Bendigo and Adelaide Bank Limited
MELBOURNE, 28 SEPTEMBER 2010
Unfair termination – performance – valid reason – opportunity to respond – representation – other relevant matters
 This decision concerns an application by Mr Ken Laker for relief in relation to the termination of his employment with Bendigo and Adelaide Bank Limited (Bendigo Bank) alleging that the termination of his employment was harsh, unjust and/or unreasonable, pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was lodged in Fair Work Australia on 10 November 2009.
 Mr Laker commenced employment with Bendigo Bank from 5 July 2005 and the employment relationship came to an end on 30 October 2009 during an interview with senior management of Bendigo bank.
 On 19 November 2009 the application was listed for conciliation by telephone before a Conciliator on 3 December 2009. On 24 November 2009, Bendigo Bank filed a Form 3 - Employer’s Response to the Application for Unfair Dismissal Remedy on 24 November 2009.
 The application did not settle during the Conciliation on 19 November 2009. On 16 January 2010 the application was listed for Conference/Hearing on 12 and 13 April 2010. Directions were issued with the Notice of Listing. Mr Laker was directed to file Submissions, Witness Statements and other documentary materials by noon on 22 February 2010. Bendigo Bank was directed to file Submissions, Witness Statements and other documentary materials by noon on 8 March 2010. On 3 March 2010 the Directions were amended, directing Bendigo Bank to file by 12 March 2010.
 On 26 February 2010 Mr Karl Rozens of Hall and Willcox filed a Form 53 - Notice of Representative Commencing to Act on behalf of Bendigo Bank.
 On 8 April 2010, Bendigo Bank filed a Supplementary witness statement of Mr Ashton Capp. On the same day Mr Alex Leszcynski of the Financial Sector Union objected to the filing of the witness statement at short notice prior to the Hearing in the form of an email. On 9 April 2010 my Associate responded to the email of Mr Leszcynski to inform him that I would deal with his objection at the Hearing on 12 March 2010.
 At the Hearing on 12 April 2010 Mr Alex Leszcynski of the Financial Sector Union appeared on behalf of Mr Ken Laker. Mr Joseph D’Abaco of Counsel appeared on behalf of Bendigo Bank.
 At the outset of the Hearing, I dealt with the objection of Mr Leszcynski to the filing of supplementary material by Bendigo Bank. In dealing with proceedings, Fair Work Australia is bound by the provisions of sections 577 and 578 of the Act with are set out below:
FWA must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that FWA performs its functions and exercises its powers efficiently etc. (see section 581).
578 Matters FWA must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWA must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
 I decided to admit the supplementary statement and I also adjourned the Hearing in order to conduct the proceedings fairly in accordance with the abovementioned provisions of the Act. The application was relisted for Hearing on 30 April 2010 and 3 and 4 May 2010. At the Hearing on 30 April 2010, Mr Leszcynski appeared on behalf of Mr Laker. Mr Joseph D’Abaco appeared on behalf of Bendigo Bank. Mr Laker gave evidence on his own behalf. Mr Ashdon Capp, Mr Scott Elkington, Mr Jy Pertzel and Mr Michael Petering gave evidence for Bendigo Bank. During the Hearing on 4 May 2010, parties were directed to file final written submissions in Fair Work Australia by the close of business on 6 August 2010. The application was listed on 13 August 2010 for final submissions.
 Before turning to deal with the facts and circumstances of Mr Laker’s employment and its termination, I must determine whether or not Mr Laker was a person protected from unfair dismissal by the provisions of the Act.
Termination at the initiative of the employer
 There is no dispute that Mr Laker’s employment was terminated at the initiative of Bendigo Bank.
 There is no evidence before me to suggest that Mr Laker’s dismissal was a case of genuine redundancy.
Small business employer
 There is no suggestion that Bendigo Bank is a small business to which the Small Business Fair Dismissal Code applies.
 Having regard to all of the above I find that Mr Laker was a person protected from unfair dismissal at the time of the termination of his employment.
 When considering an application for relief in relation to an allegedly harsh, unjust or unreasonable dismissal of an employee, Fair Work Australia is required to take into account criteria set out in s.387 of the Act which is set out below:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
 I find that there was a valid reason for the termination of Mr Laker’s employment. That reason was unsatisfactory performance of the sales and marketing function of the financial planning position in which Mr Laker was employed.
 On what is before me, Mr Laker received a formal performance warning on 17 May 2007. In performance reviews of August 2007, January 2008 and July 2008 Mr Laker received a rating “improvement required”. I consider Mr Laker showed limited performance improvements and was not able to successfully implement methods and techniques suggested to him during the performance review process. Mr Laker was issued with a further first formal warning on 8 August 2008. On 8 July 2009 Mr Laker was issued with a final performance warning. This final performance warning was accompanied with an action plan setting out various targets which Mr Laker was required to achieve in a time frame which was eventually extended to 30 October 2009, with a revised final performance warning having been issued on 10 August 2009. I am not satisfied that Mr Laker met the targets set out in the action plan. Mr Laker’s employment was terminated on 30 October 2009. In my judgment, looked at over the life of the employment, Mr Laker performed poorly in respect of the budgetary outcomes which he achieved as a financial planning service provider and in some other respects.
 I am satisfied, on what is before me, that Mr Laker was informed of Bendigo Bank’s concerns in relation to his work performance. Bendigo Bank provided Mr Laker with performance improvement plans, including the suggestion of ideas and methods he might implement in order to improve his performance and achieve a higher level of sales of financial planning services to customers.
 Mr Laker’s evidence and submissions suggested that the performance management process was flawed and at times confused. In particular, Mr Laker gave evidence that he believed that the involvement of the state manager of the Bank caused a breakdown in the effectiveness of the management of the required improvement in the performance of his duties. In my view, there was an element of confusion of this kind during the course of the management of Mr Laker’s performance. However, looked at all round, Mr Laker was the subject of a substantial, lengthy and diligent performance management process. Moreover, the imperfection complained of is not fundamental and is collateral to the central factual issue of Mr Laker’s performance.
 In my judgement Mr Laker’s performance, as opposed to the performance management process, is the critical issue when considering the validity of the reason for the termination of Mr Laker’s employment. A valid reason for the termination of an employee’s employment is a reason which will be judged by Fair Work Australia to be sound, defensible and well founded. Whatever might be said about the management of Mr Laker’s performance, I consider that the reason for the termination of his employment, based as it was on Mr Laker’s inability to generate and execute financial planning business at an appropriate level, was valid in accordance with the relevant principles.
 Mr Laker submitted that the cause of his poor performance was the client base in his territory and in particular a lack of quality client referrals. On what is before me I am not satisfied that there is a cogent case in evidence to ground a finding that Mr Laker was individually and distinctly disadvantaged by a poor client and customer base or quality of referrals, which could clearly distinguish his experience from that of other financial planners working with the Bank in other areas.
 Mr Laker submitted that there was a lack of validity in the reason for the termination of his employment because other financial planners had performed as or more poorly than him. I have considered this matter. On the evidence before me, while the budgetary performance of individual financial planners fluctuated over the period of Mr Laker’s employment, I am not satisfied that a cogent case is made out on the evidence to the effect that Mr Laker was singled out and treated oppressively in relation to his performance or that his relative performance was substantially better over the life of the employment than was perceived by the bank. More importantly, in my objective judgement, the evidence does not lead to a conclusion that there is any substantial anomaly in the appraisal of Mr Laker’s performance in that time. On my observation of the evidence Mr Laker’s relative performance as a financial planner ranked in the first or second decile. A number of financial planners whose was relatively poor have left the Bank and some have been the subject of informal or formal performance management.
 Accordingly, I find that Mr Laker’s poor performance was a valid reason for the termination of his employment.
 Mr Laker’s employment was terminated in meeting on 30 October 2010. I am satisfied that Mr Laker was notified of the reason for the termination of his employment. Mr Laker was aware of the issues regarding his performance which were subject to performance management and review at various times from the early stages of his employment and that these matters might lead to the termination of his employment.
Opportunity to respond
 On what is before me, the notification to Mr Laker of the termination of his employment and the reason therefore was advised to him verbally in a meeting on 30 October 2009. However, the history of the performance management review process was such that Mr Laker was well aware that his failure to achieve a satisfactory sales budget and to develop his sales and marketing achievements was jeopardising his continued employment by the Bank. To consider whether or not Mr Laker was given an opportunity to respond will involve some consideration of the circumstances applying to the conduct of the meeting of 30 October, which is further dealt with below. In my view, looked at all round, there was an opportunity to respond at the meeting, in literal terms, however, I consider the opportunity was compromised for the reasons which follow.
 Mr Laker was without representation at the termination meeting due to the unavailability of a representative of the Financial Sector Union on the 30 October 2009. Mr Laker made a request that the meeting be rescheduled in order to enable his chosen representative to attend. Bendigo Bank declined to reschedule the meeting because of the availability of Mr Petering, the Regional Manager - Eastern Region, on alternative dates. I consider that in the relevant circumstances there is an element of unreasonableness in Bendigo Bank’s refusal to postpone the termination meeting to a later date which would have enabled Mr Laker to be represented at the postponed meeting. It is debatable if the refusal to postpone the meeting was a refusal of representation, however it had that effect.
 For reasons outlined above, the termination of Mr Laker’s employment was related to the unsatisfactory performance of Mr Laker’s duties in generating revenue as a financial planner. On the facts, it is clear that Mr Laker had been warned that the termination of his employment could occur because of the bank’s dissatisfaction with his performance.
Size of the employer’s undertaking
 Bendigo Bank is a large employer and followed a structured procedure which preceded and attended the termination of Mr Laker’s employment. The procedure was not affected in any relevant way by the size of the bank.
Human resource management expertise
 Bendigo Bank employs specialised human resource managers who were involved in the management of the process which lead to the termination of Mr Laker’s employment.
 I consider it relevant that over a lengthy period of performance management between 2007 and 2009, Mr Laker was unable to make substantial and continuous improvement or progress in achieving a satisfactory budgetary outcome as a financial planner.
 In addition, if the refusal of the Bank to adjourn the meeting of 30 October 2009 is not properly characterised as the type of consideration to which ss.387(c) or (d) of the Act applies, I nevertheless consider it relevant.
Harsh, unjust and unreasonable
 On balance, I have decided that there was an element of unreasonableness in the termination of Mr Laker’s employment in all the circumstances of the case. While I have found that there was a valid reason for the termination of Mr Laker’s employment, there was an element of unreasonableness in the conduct of the termination meeting at a time when Mr Laker had requested an adjournment. While I accept that Mr Laker had been notified of a meeting to take place on this date and he may well have failed to take adequate notice of it, nevertheless, in all the circumstances, his request for an adjournment did not present an unreasonable burden upon the Bank. The adjournment need not have been lengthy, but would have enabled Mr Laker to be represented. In addition, this would have allowed Mr Laker to take full advantage of preparation in order to respond to the reason for the termination for his employment when it arose. Whether this is considered under the heading of a reasonable opportunity to respond to the reason for the termination of Mr Laker’s employment or an unreasonable refusal to allow Mr Laker to have a support person present for the purposes of discussion at the termination meeting or as another relevant matter to those criteria otherwise prescribed by s.387 of the Act, or all three when considered in context, is not axiomatic for the purposes of determining whether or not the termination was harsh, unjust or unreasonable.
 Looked at all round, in the long history of the performance management process and the particular factual circumstances it would have been reasonable to grant Mr Laker’s request to adjourn the meeting of 30 October 2009 and, in my view, it was unreasonable not to. I therefore judge that the termination of Mr Laker’s employment was unreasonable in all the circumstances of the case having regard to these considerations.
 Having regard to the circumstances in which Mr Laker’s employment with Bendigo Bank was terminated I turn to consider whether a remedy is appropriate in all the circumstances of the case.
 In light of my finding in relation to Mr Laker’s performance and the validity of the reason for the termination of his employment, I consider reinstatement inappropriate. Reinstatement is not sought by Mr Laker.
 I have given consideration to the appropriateness of awarding an amount in lieu of reinstatement. In the circumstances of this case that question is finely balanced and is ultimately a matter of discretion. I have decided to make an appropriate award of an amount in lieu of reinstatement for particular reasons which will become clearer below. The remedy which will be provided, in my view, carefully reflects a detailed consideration of what will constitute a fair go all round having regard to the particular circumstances of this case.
 Section 392 of the Act sets out the matters which must be taken into account when ordering than an amount of compensation in lieu of reinstatement be paid. Those provisions are set out below:
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Viability of the employer’s enterprise
 There is no evidence that the order I consider appropriate below would affect the viability of Bendigo Bank.
Length of service of the employee
 The length of Mr Laker’s employment was sufficient to justify a remedy in the circumstances of the case.
Remuneration the employee would have received had the employment not been terminated
 In my judgement, on the evidence before me, Mr Laker would not have been employed with Bendigo Bank for a substantially longer period if the termination meeting did not take place on 30 October 2010. In my view, the termination meeting might reasonably have been rescheduled to a time shortly after the 30 October 2010 to enable Mr Laker representation at that meeting. In my view, Mr Laker might have been employed with Bendigo Bank for a further period of no more than 4 weeks. Therefore the remuneration Mr Laker would have received if the employment was not terminated is equal to 4 weeks pay.
 What I consider to be relevant in this regard is the circumstances of Mr Laker’s performance in the month of October. There is conflict and an element of uncertainty over what Mr Laker achieved in his position against his performance management targets in October. At the time of the termination meeting Mr Laker had not completed his report of his business activities for October. This was a relevant report to be considered prior to the decision to terminate Mr Laker’s employment. Had Mr Laker been able to show improvement in performance or achievement of his performance management targets for October he might have been in a position to successfully argue for the continuation of his employment. A competent manager charged with the decision to continue or terminate the employment would surely have sought to accurately establish what the situation concerning Mr Laker’s performance in October was.
 At the termination meeting, Mr Laker made certain claims of his October performance which the decision makers were unable to fully investigate at the time. In the absence of corroborative information or Mr Laker’s claims what information the decision makers had to hand contradicted Mr Lakers representation. In fact, the information was that Mr Laker had written no business in October. This information was obtained from the IT system. However, because of the timing of the meeting Mr Laker had not entered his monthly report on the system. Mr Laker’s evidence of his performance was not confined to sales. Moreover, Mr Laker had responded to a request from the Bank to its employees generally to take 10 days unpaid leave in October because of the impact of what is referred to as the global financial crisis. This, in my view, would have also needed to be considered against the circumstances of Mr Laker’s performance in that month once carefully established. The circumstances can be properly construed as a loss of a chance for Mr Laker to save his employment.
 Since the termination of Mr Laker’s employment, enquiries have been made which do not lead to corroboration of the claims made by Mr Laker at the meeting of 30 October 2001. However, I consider there is some residual uncertainty concerning what Mr Laker did achieve in October and what his activities generally were. Mr Laker of course did not have a further opportunity to deal with the divergence of his account and the information subsequently compiled by the Bank from the records available in his office, after the termination of his employment. It would have been reasonable, in my view, to adjourn the meeting of 30 October 2010, to enable representation and to fully investigate the differences concerning Mr Laker’s and the Bank’s information of Mr Laker’s performance in October. Doing so would have enabled Mr Laker to complete his monthly report for October. This would have ensured that a carefully settled reckoning of Mr Laker’s performance in October was established and allowed discussion of that outcome as part of the performance management process and the procedures adopted in relation to the consideration of the termination of Mr Laker’s employment. Account could have been taken of the period of unpaid leave in October in light of the facts established. Mr Laker may have been able to secure continuation of his employment and may have improved his performance. However, looked at overall I am not convinced on the evidence that it is more probable than not that Mr Laker would still be employed by the bank if the lost chance had nevertheless been made available.
 In my view, Mr Laker has taken reasonable steps to mitigate the loss he incurred as a result of the termination of his employment. Mr Laker had been actively seeking work since the termination when on the last day of the hearing he informed the Tribunal that he had secured employment.
 There are no other earnings.
Monies earned between order and payment
 There is no relevant amount under s.392(f) of the Act.
 There was nothing which I consider comprises misconduct within the meaning of the Act which can be relied upon as a basis for reducing the appropriate amount in lieu of reinstatement.
 It is relevant, in my view, to have regard to the fact that Mr Laker received five weeks pay in lieu of notice of termination. It is also relevant that while the remedy I consider appropriate is very modest, the effect on Mr Laker of the termination of his employment at a time when the financial services industry was under considerable pressure was that the prospects of a successful job search were likely to be more attenuated than usual.
 I have decided that a short adjournment of the termination meeting to enable representation and the resolution of the factual basis of Mr Laker’s performance in October, which would enable discussion of that performance would more likely that not would have taken no more than two weeks. Mr Laker may have been successful in continuing his employment if this was done until the end of November, when a further monthly report would have been due.
 I have decided to exercise my discretion to provide a remedy accordingly. That remedy that will constitute consideration of the extension of the employment to fully and properly complete the performance management progress with representation, a completed monthly business report and due consideration of whether in light thereof Mr Laker’s employment should continue under performance management. This remedy includes allowance, although minimal, for the chance that Mr Laker may have been able to secure further patience in the performance management process and continued his employment. It will be clear for the amount below that I consider the chance to have been possible but limited. Notwithstanding all of the above I am unable to be satisfied, on what is before me, that it is more probable than not that Mr Laker would have been able to continue his employment longer than for the month of November.
 An Order that Bendigo Bank pay Mr Laker an amount equal to four weeks pay will issue. The amount is to be taxed as required by law as an eligible termination payment.
Mr Alex Leszcynski, Applicant
Mr Joseph D’Abaco, Respondent
Final written submissions:
6 August 2010, Mr Alex Leszcynski from FSU, on behalf of Mr Ken Laker, final submissions
6 August 2010, Mr Joseph D’Abaco, on behalf of Bendigo Bank, final submissions
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