FWA 7317
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Arvind Puri
Sydney Strata Pty Limited
VICE PRESIDENT WATSON
SYDNEY, 27 AUGUST 2012
Application for an unfair dismissal remedy - whether termination consistent with the Small Business Fair Dismissal Code - whether employee given sufficient time to remedy performance issues - Fair Work Act 2009 - ss.385, 388, 394.
 This decision, edited from a decision on transcript on 9 August 2012, concerns an application for an unfair dismissal remedy by Mr Arvind Puri pursuant to s.394 of the Fair Work Act 2009 (the Act). The application concerned the termination of Mr Puri’s employment by Sydney Strata Pty Limited (Sydney Strata).
 At the hearing on 9 August 2012, Ms Tchoulak appeared on behalf of Mr Puri and Mr Chadwick appeared on behalf of Sydney Strata.
Issues for Determination
 The first issue that I am required to give consideration to is whether the termination is consistent with the Small Business Fair Dismissal Code (the Code) referred to in s.388 of the Act. It is common ground in this matter that the Code applies, that the business concerned is a small business as defined in the Act and that the relevant dismissal is covered by the heading “Other Dismissal” given that it was a termination on notice and was not a summary dismissal dealt with elsewhere in the Code.
 The section of the Code concerning a dismissal other than summary dismissal states:
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.”
 The terms relating to “Other Dismissal” are somewhat confusing. It is not clear to me whether the requirements of the Code include the existence of a valid reason for the dismissal, as distinct from a valid reason being given to an employee that there is a risk of being dismissed. If the meaning of the Code is that there must be demonstrated to be a valid reason for the dismissal, it appears that the requirements of the Code are similar, and perhaps even more stringent in some respects, than the requirements relating to unfairness for other dismissals generally.
 Nevertheless, in the circumstances of this case I am prepared to assume that the requirements of the Code involve the employer giving the employee a reason for the dismissal, and that the reason must be a valid reason based on the employee’s conduct or capacity, that there must be a warning that the employee risks being dismissed if there is no improvement, that the employee must be given an opportunity to respond to the warning and the employee must be given a reasonable chance to rectify the problem articulated in the warning having regard to the employee’s response.
 In relation to procedure there is also a requirement of the Code which is relevant in this matter, and that is whether the employee can have another person present to assist in discussions where dismissal is possible. The section states:
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
 On the evidence in this matter, I am satisfied that Mr Puri was warned on a number of occasions about his performance. Some of these warnings are disputed, but the evidence of Sydney Strata is that the warnings involved formal and informal communications and that they covered matters such as Mr Puri’s method of speaking to clients and other people involved in performing his role, including other employees within the business, his attention to detail and to matters which required attention in the course of performing his duties, as well as matters relating to time keeping and activities performed while at work during business hours. It is not in dispute that a formal written warning was provided on 30 January 2012 followed by a discussion on the following day in which the circumstances of Mr Puri's portfolio, and in particular, the loss of certain properties on the portfolio were drawn to his attention.
 I am satisfied that these matters articulated the loss of business which was the manifestation of performance issues which on Sydney Strata’s evidence had been raised previously with Mr Puri. I am satisfied that at the meeting of 31 January, Mr Webb and Mr Puri had a discussion about those matters and Mr Puri had an opportunity to address the matters of concern, and he provided a justification, in his view, for the loss of business. The evidence also establishes that a little less than three weeks’ later significant complaints were made concerning the administration of certain properties within Mr Puri’s responsibility. These matters were investigated by Mr Webb who spoke to Mr Puri about the matters. Mr Webb passed the communications he had received, or at least some of them, to Mr Puri and held a discussion with Mr Puri in relation to those matters. The evidence establishes that Mr Webb then inspected the property himself and considered all of those matters in coming to a decision to terminate Mr Puri’s employment.
 In all of the circumstances of this matter I am satisfied that Sydney Strata gave Mr Puri a reason as to why he was at risk of being dismissed. I am satisfied that the reason for termination was also communicated and that the reason for termination was a valid reason based on Mr Puri’s conduct being the various matters that had been subject to warnings in the past and specifically manifested in the warning letter of 30 January 2012. That reason was sound, defensible and well founded given its impact on the business of Sydney Strata.
 I am satisfied by virtue of the written warning of 30 January 2012 in particular, that Mr Puri was warned about his employment and the risk of being dismissed if there was no improvement. I am satisfied that both in relation to the issue of the warning and also prior to the termination of employment Mr Puri was given an opportunity to respond to the warning and he availed himself of that opportunity. An issue does arise as to whether the period of something less than three weeks was a reasonable chance to rectify the problem given that the problems at the site, in particular in Guilford, originally arose in December and Mr Puri believed he had addressed the matters by requesting photographs of the relevant circumstances and none were ultimately provided.
 However, in my view there was an available avenue for Mr Puri to address matters of that nature, including the site at Guilford, in the period from 30 January to 16 February 2012, that he was aware of complaints in relation to the site and that he was not aware that the problems had been remedied. Mr Puri could have followed up those matters to satisfy himself that the problems had been remedied such as to avoid further complaints and potential further loss of business of Sydney Strata. Mr Puri could have, for example, visited the site and satisfied himself as to the matters which were subject to the complaint, as indeed Mr Webb did on the day of dismissal, 20 February.
 In my view, Mr Puri’s failure to do so at any time, including the period from 30 January to 20 February, indicated that there was a reasonable chance to rectify the problems that had been brought to his attention, but that he had not taken appropriate action to rectify those problems.
 The further issue concerns the process regarding the termination and the discussions where dismissal is possible. I am not satisfied that Sydney Strata denied Mr Puri an opportunity for a support person to be present. I am not satisfied that such a specific request was made. Insofar as it was raised in discussions, it appears that it was raised following the handing of a termination letter to Mr Puri and in general opposition to the decision to terminate his employment.
 In all of those circumstances I find that the Code has been complied with by Sydney Strata. By virtue of s.385 of the Act it follows from that finding that Mr Puri was not unfairly dismissed. It is unnecessary for me to consider further matters that may arise, including whether the termination was harsh, unjust or unreasonable. For the reasons that I have given, the application is dismissed.
VICE PRESIDENT WATSON
L. Tchoulak with J. Conomos for Mr Arvind Puri
N. Chadwick for Sydney Strata Pty Limited
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