[2012] FWA 7828 |
|
DECISION |
Fair Work Act 2009
s.394—Application for unfair dismissal remedy
Mr Sergiy Kolodka
v
Virgin Australia Airlines Pty Ltd trading as Virgin Australia
(U2012/940)
DEPUTY PRESIDENT SMITH |
BRISBANE, 12 SEPTEMBER 2012 |
Termination of employment; conduct relating to behaviour; application dismissed.
INTRODUCTION
[1] Mr S. Kolodka believes that he has been unfairly dismissed by Virgin Australia Airlines Pty Ltd trading as Virgin Australia (Virgin). Mr Kolodka was employed as a Systems Engineer on 8 December 2008 until his employment was terminated for poor performance and behaviours on 13 April 2012.
[2] Mr Kolodka seeks reinstatement to his previous position. I considered the provisions of ss.398 and 399 of the Fair Work Act 2009 (the Act) and concluded that a hearing was the most effective and efficient way to resolve the matter.
[3] I should also note at this stage that there were applications made in relation to the hearing of this matter and in the end Mr Kolodka thought it important to have the hearing on 10 September 2012 and to fly from Perth to attend the hearing. Mr Kolodka feels very strongly that he was victimised.
[4] I also note that no submission was made that Mr Kolodka was not a person protected from unfair dismissal. I am satisfied that there are no matters under s.396 of the Act which would impact upon a consideration of the application made by Mr Kolodka.
BACKGROUND
[5] There was no apparent complaint about Mr Kolodka’s performance until around June of 2011. 1 Mr Kolodka argues that criticism of his behaviour coincided with the appointment of Mr M. Plattz as his Team Leader by Mr A. Wylie. Mr Kolodka stated that Wylie and Plattz were good friends and that this is why the appointment occurred. It was the evidence of Mr Wylie that his concern about Mr Kolodka was evident before then and that Mr Kolodka was against the appointment of Mr Plattz as his team leader2 and stated that if Mr Plattz was appointed as team leader it would be: the worst thing that ever happened to the place and it would be my (Mr Kolodka) downfall.3 A further incident referred to in the witness statement of Mr Wylie was:
“For example, there was one time where he poked me in the chest. I was in the lift lobby of our building about to go down to the ground floor and I passed Mr Kolodka and he said to me after poking me in the chest [that] he was going to get me demoted and Mr Plattz fired. There was also another occasion where he was yelling and carrying on at me. On these occasions I told Mr Kolodka that it was not appropriate to threaten your leaders.”
[6] Following the appointment of Mr Plattz as Team Leader, it was the evidence of Mr Wylie that Mr Kolodka’s behaviour dipped. In his submissions Mr Kolodka stated that he was an applicant for the position of Team Leader too.
[7] Mr Kolodka took the view that given he was a critic of both Mr Wylie and Mr Plattz then his dismissal was an act of revenge by those two persons.
[8] It is therefore necessary to carefully examine the issues raised against Mr Kolodka to ascertain if the decisions were tainted in the way he suggests. I pause to note that Mr Kolodka did not seek to cross-examine any of the witnesses put forward by Virgin and their witness statements were marked. Given that Mr Kolodka was unrepresented care was taken to give him the opportunity to cross-examine and he declined to do so.
[9] As stated earlier Mr Wylie expressed some concern about the behaviours of Mr Kolodka in about June 2011. After Mr Plattz was appointed as his team leader, more informal counselling took place until 15 December 2011 when a performance improvement plan (PIP) was put in place. This plan was for an initial period of six weeks. During this time there was weekly catch-up meetings designed to assist Mr Kolodka. At the meeting on 15 December 2011 a number of matters were raised with Mr Kolodka. For example:
[10] Following the weekly catch-up meetings an email was sent to Mr Kolodka drawing his attention to the expectations of Virgin and the areas in which he was not succeeding in overcoming its behavioural concerns. In particular, Virgin was relying upon the implementation of three policies: The Behavioural Guide, the Code of Conduct and the KOWF ( Keeping the Workplace Fair) policy.
[11] Mr Kolodka, whilst initially agreeing that his behaviour warranted improvement, did not share the view held about him and described his performance as “awesome” and “fantastic”. 5
[12] I pause to note that following the implementation of the PIP in December 2011, Mr Kolodka made a complaint against both Mr Wylie and Mr Plattz in relation to bullying and harassment. This was investigated by Ms L Boyle from Virgin and on 11 January 2012 she provided a letter to both persons concluding that she had been unable to substantiate the allegations and did not propose to take any further action at this stage. 6
[13] On 18 January 2012, Mr Kolodka was advised that Mr Plattz was not satisfied with his progress and that his PIP would be extended, in addition, he would be issued with a formal warning. 7 This was a serious letter which foreshadowed that if there was not an immediate improvement then further disciplinary action may be taken, up to and including his termination of employment.
[14] On 2 February Mr Plattz met with Mr Kolodka and confirmed that his PIP would run until 6 March 2012. Again weekly meetings were held. At the meeting of 27 February 2012 Mr Kolodka was advised that a compliant had been made about his behaviour to which he replied that he thought his behaviour was “absolutely fine”. 8
[15] On 7 March 2012, Virgin was still not satisfied with Mr Kolodka’s progress and he was issued with a final warning. 9 The PIP was to continue until 5 April 2012. There were again weekly meetings from which an email was sent on each occasion. Because the behavioural matters had not been resolved, Mr Plattz escalated the matter to higher levels within Virgin’s leadership structure and Mr Wylie reviewed the file.
[16] Following that review, Mr Wylie concluded:
“(a) I did not see any acknowledgement that there was a need to improve his behaviour. I wanted to see a tangible change in the way he behaved. I could see within the team that Mr Kolodka’s behaviour was affecting other team members and this was causing a lot of disruption to other team members and the team’s overall output
(b) I also formed the view that he may have been a potential risk to critical systems he was working on because of his attitude. For example, he was agitated and angry and I was also concerned that he may choose to do something malicious to the systems he was working on.” 10
[17] Mr Wylie conveyed his views to Mr Truscott who had the final decision in relation to the termination of employment of Mr Kolodka. Mr Truscott is the manager of IS operations for Virgin. Mr Truscott was aware of the PIP and asked, because of the time being taken, whether or not further counselling was going to make a difference. It was also the evidence of Mr Truscott that both Mr Plattz and Mr Wylie were objective people and that the efforts being made in relation to Mr Kolodka were genuine.
[18] Mr Truscott met with Mr Kolodka on 5 April and advised him that a “show cause” letter would be issued and he took Mr Kolodka through that letter. This letter 11 advised Mr Kolodka of the view held by Virgin and invited him to show cause why his employment should not be terminated. Mr Kolodka was given until noon on 10 April to respond and then he would be invited to a meeting on 11 April to provide him with a further opportunity to discuss his response. He stated that following that meeting a decision would be made as to whether or not his employment would continue at Virgin. Mr Kolodka was given an opportunity to bring a support person to that meeting.
[19] At that meeting Mr Kolodka was advised that his employment would be terminated. Mr Truscott conveyed his decision to Mr S. Reddy who was the Chief Information Officer and the person to whom Mr Truscott reported. Whilst Mr Truscott was the decision maker, Mr Reddy could veto his decision. It was the evidence of Mr Truscott that Mr Reddy endorsed his decision.
[20] It is appropriate to deal with the matters raised by Mr Kolodka in his response to the “show cause” letter. This was a detailed letter of some nine pages. In this letter he set out a list of completed tasks which he argued were not acknowledged by Mr Plattz. I note that Virgin did not criticise the technical competence of Mr Kolodka but said that he performed functions he considered to be important and did not follow reasonable directions from Mr Plattz. Mr Kolodka detailed his concern about bullying and harassment but without reciting those, I accept the evidence that Ms Boyle found that she been unable to substantiate the allegations.
[21] In his reply, Mr Kolodka acknowledged that his ‘behaviour in particular situations was unacceptable and that it needs to be changed”. 12 Mr Kolodka instanced work that was assigned to him for which he had no prior experience and added in his submissions that this was done so that he would fail. Mr Kolodka expressed concern about the way his name was spelt and pronounced in a way which he found highly offensive. He argues that his interaction with other staff had been acceptable and that it may be that his accent makes him sound rough and aggressive but he is sure that in one case he was understood.
[22] Mr Kolodka was critical of being removed from a project which was critically important to Virgin and being given inconsistent instructions. He particularly provided examples of where he thought that he had not been given credit for positive changes in his behaviour.
THE ACT AND CONCLUSION
[23] Section 387 of the Act directs attention to the criteria for considering whether a dismissal was harsh, unjust or unreasonable. It provides:
Section 387 Criteria for considering harshness etc.
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.
[24] It is appropriate that consideration is given to each aspect of the legislative direction. To begin, I turn to s.387(a). There is no doubt that Virgin was unhappy with the attitude of Mr Kolodka and his interaction with both his peers and supervisors. This is documented very fully in all the reports and emails. No real challenge is made to these by Mr Kolodka other than his overview response that it was an act of revenge by both Mr Wylie and Mr Plattz. Further, Mr Kolodka stated that his improvement was not properly recognised. An examination of the material does show that Virgin carefully documented its expectations and sought to coach Mr Kolodka to meeting those expectations. Whilst it is acknowledged that he made some changes, Virgin takes the view that there were many areas still in need of improvement.
[25] It is appropriate that I consider the view of Mr Kolodka that the actions taken against him were an act of revenge. It appears to me from a reading of all the material that Mr Kolodka was unhappy with his new team leader and the views of Mr Wylie. I can find no evidence that either Mr Wylie or Mr Plattz were acting in a revengeful way. The evidence of Mr Truscott was that both persons, in his view, were objective in their dealings with Mr Kolodka. The material prepared and presented by Mr Plattz was both detailed and comprehensive. It included feedback notes and clear statements of what was expected. Further, the written warnings were, themselves, structured to provide Mr Kolodka the opportunity to improve his behaviour.
[26] The nature of the material would have been difficult to fabricate if the motive was simply revenge and that Mr Kolodka did not display behavioural traits needing remedial action. In the brief time Mr Kolodka appeared, he did seem dismissive of the concerns of Virgin and his approach was consistent with that complained of by Virgin. I find that it was improbable that Mr Wylie and Mr Plattz simply sought to create a situation where Mr Kolodka would fail in the matters expected of him. It follows that I find that there was a valid reason for the termination of his employment related to his conduct.
[27] The next matter is whether or not he was notified of that reason. It is clear from the evidence that he was notified of the reason for the termination of his employment. Further he was given an opportunity to address any of those stated reasons. The next issue relates to whether or not there was an unreasonable refusal of the employer to deny him a support person. There are confusing submissions in relation to this. The notes record that Mr Kolodka sought Ms T. Witt although this was contested by Mr Kolodka. I make no finding in relation to this matter although I am content that Mr Kolodka was not shy about expressing his view.
[28] In relation to s.387(e), the evidence discloses that significant and clear warnings were given to Mr Kolodka. Virgin is a significant employer and has dedicated human resource management as the processes demonstrated.
[29] Having regard to all the evidence and submissions I find that the termination of employment of Mr Kolodka was not harsh, unjust or unreasonable. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
S. Kolodka the applicant.
T. Saunders of Counsel on behalf of Virgin Australia Airlines Pty Ltd T/A Virgin Australia.
Hearing details:
2012.
Brisbane:
September, 10.
1 Exhibit S1 at paragraph 8
2 Ibid at paragraph 11
3 Ibid
4 Examples taken from Exhibit S3, Attachment MAP2
5 Exhibit S3 at paragraph 26
6 Exhibit S1, Attachment AJW2
7 Exhibit S1. Attachment MAP8
8 Ibid at paragraph 40
9 Exhibit S1 at attachment AJW1
10 Ibid at paragraph 31
11 Exhibit S2, Attachment JLT1
12 Exhibit K1
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