| [2017] FWC 6945[Note: An appeal pursuant to s.604 (C2018/190) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 8 March 2018 [[2018] FWCFB 1305] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Demosthenous
v
Jemena Asset Management Pty Ltd
(U2017/7518)
DEPUTY PRESIDENT MILLHOUSE |
MELBOURNE, 22 DECEMBER 2017 |
Application for unfair dismissal remedy – poor performance – performance improvement plans – failure to satisfy agreed outcomes – warnings – health issues – valid reason – dismissal not harsh, unjust unreasonable – application dismissed.
[1] This decision concerns an application by Andrew Demosthenous (Applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act).
[2] The Applicant’s employment was terminated by Jemena Asset Management Pty Ltd (Jemena) for failing to meet the performance standards required of the role. 1
[3] The Applicant contends that his dismissal was unfair. He seeks reinstatement as a remedy.
[4] The matter was the subject of a hearing before me on 17 and 18 October 2017. I had earlier determined, pursuant to s.399 of the Act, that the matter was most appropriately dealt with in a formal hearing. On 12 October 2017, Jemena was granted permission to be represented by a lawyer pursuant to s.596(2)(a) of the Act to assist the Commission in dealing with the matter more efficiently, noting its complexity.
[5] The Applicant gave evidence in support of his own application and also called evidence from Michael Tame, Team Leader, Field Testers for Jemena. Jemena called evidence from three witnesses: Andrea Salter, Senior HR Business Partner, John Hemsley, Routine Projects Manager and John Alchin, Routine Projects Manager.
[6] The Form 2 – Unfair dismissal application dated 12 July 2017 (Application) had named “Jemena Limited” as the respondent. It was common ground that the Applicant was employed by Jemena Asset Management Pty Ltd. Pursuant to s.586(a) of the Act, and with the agreement of the parties, the Application was amended to name Jemena Asset Management Pty Ltd as the respondent and an Order was issued to this effect.
[7] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the Application. These matters were not in dispute. I find that:
(a) the Application was made within the 21 day period required by s.394(2) (s.396(a));
(b) the Applicant was protected from unfair dismissal for the purposes of s.382 of the Act. I am satisfied his annual rate of earnings was less than the high income threshold and he completed the minimum employment period (s.396(b));
(c) Jemena is not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code is inapplicable (s.396(c)); and
(d) the dismissal was not effected for reasons of redundancy and so was not a case of genuine redundancy (s.396(d)).
[8] The Applicant commenced employment with Jemena on 10 July 1998. From 14 March 2008, he was employed as a Customer Projects Officer in the Projects and Construction section of Jemena’s Electricity Construction division. He reported to Mr Hemsley save for a period between mid-2015 and November 2015 when he reported to Mr Alchin. 2 In September 2015, Mr Alchin received two complaints from Jemena customers regarding the Applicant’s performance.3 In addition, Mr Alchin identified tasks that had not been completed by the Applicant.4
[9] Between September and November 2015, Mr Alchin conducted five informal progress meetings with the Applicant. 5 This involved the preparation of a spreadsheet which listed outstanding tasks to be completed and an agreed timeframe for completion (September 2015 Spreadsheet).6 Item 9 on the September 2015 Spreadsheet referred to an outstanding task on the “Melton Highway project,” with an estimated eight hours of work required to complete it.
[10] The Applicant’s performance did not show any improvement. Following a meeting on or about 12 November 2015, 7 Mr Hemsley reassumed management of the Applicant and decided that he should be placed on a formal Performance Improvement Plan (PIP).
[11] The first PIP (PIP 1) commenced on 1 June 2016 and provided for an assessment period until 22 August 2016. 8 PIP 1 listed the performance expectations and established review meetings. It contained a list of projects requiring the completion of specific tasks, with an agreed timeline for completion.9 This included the Melton Highway project work, with an agreed completion date of 15 July 2016. Mr Hemsley redistributed other day-to-day work to a large extent to allow the Applicant the opportunity to concentrate on completing the tasks in PIP 1.10 Mr Hemsley told the Applicant to concentrate on the tasks set out in the PIP.11
[12] During PIP 1, on 2 August 2016, the Applicant was advised of a planned restructure of Jemena’s Electricity Construction division affecting his role. 12 The Applicant applied for a Project Coordinator position on 19 August 201613 and was redeployed to this role with effect on 7 November 2016.14
[13] When PIP 1 concluded on 22 August 2016, the Applicant had not completed all of the required tasks. He was advised at a meeting on 28 October 2016 that Jemena would implement a further PIP. The second PIP (PIP 2) commenced on 1 November 2016 and provided for an assessment period until 28 February 2017. 15
[14] PIP 2 contained a list of projects requiring the completion of specific tasks, with an agreed timeline for completion. It listed the performance expectations and established review meetings. It included uncompleted tasks from PIP 1, including the Melton Highway project work, which had not been completed by the target date of 15 July 2016 and had a new timeline for completion of 15 February 2017.
[15] On 7 November 2016, the Applicant sent an email to Mr Hemsley raising concerns with the timing of PIP 2. Amongst other things, he said: 16
“One of my concerns with the formal commencement of the PIP, is that with the restructure, I and most in the group have applied for the new positions and subsequently been appointed to the new role of Project Coordinator. My understanding is that the Project Coordinator is a new position, and not just a re-name of the old position. I would not expect a PIP would be appropriate at the commencement of the new role which has the “go-live” date of 7th Nov 2017.”
[16] In addition, the 7 November 2016 email referred to specific health issues:
“It is no secret I have a few health issues.
● Diabetes, where I require insulin injections at least 4 times a day. Stress alone is sufficient to give me extremely high sugar levels. Persistently high sugar levels lead to many long term health issues.
● Presently under investigation is the cause for extremely low iron levels, which has caused excessive tiredness over more than a year now.
I must admit I was shocked to hear the news of the formal implementation of the PIP in the project review meeting on Friday 28th October. This certainly gave me notable stress, headaches, and insomnia, over the following week as I have difficulty understanding why it was being implemented, given I was about to commence a new role.
I recognise there is room for improvement in work output, and regardless of a formal PIP, I am keen to work pro-actively to achieve the required standard in order to continue my career with Jemena.”
[17] Performance review meetings were held with the Applicant and his support person on 30 November 2016, 1 March 2017 and 17 March 2017. 17 It is not in dispute that during the 17 March 2017 meeting, Ms Salter asked the Applicant, “What can John [Mr Hemsley] or Jemena do to assist you to meet the requirements Andrew?” to which the Applicant replied, “Once the backlog is out of the way, I will keep working through it. The pressure will then ease off. I want to continue at Jemena. I have never been a fast worker. I tend to think about things a lot. We are tight on numbers now.” Mr Tame, on behalf of the Applicant, asked Mr Hemsley what was required of the Applicant. Mr Hemsley responded, “that Andrew does what’s in his PIP.” 18
[18] On 24 March 2017, the Applicant was issued with a first written warning regarding his performance. 19 The letter set out Jemena’s concern that certain projects “had not progressed to the required stage” and other projects had not been “closed out.” The letter noted the Applicant’s responses, which included statements such as, “I should have picked a couple of simple projects to close out,” “I try to keep the Customer happy by being connected and SAP close out is a secondary focus,” “workload is high in the team and everyone is snowed under” and “I am a diabetic with health issues and feel drained.”
[19] The warning letter concluded that having carefully considered the Applicant’s responses, Jemena was not satisfied that he had met the mutually agreed performance standards, noting that he had not made any attempt to close out the outstanding projects from the prior year, he had been given support through on-going performance discussions, and there was no evidence him focussing on meeting the performance standards. In respect of the health issue raised by the Applicant, the letter said “please discuss with me at any time your health concerns, I am here to continue to support you and I encourage you to manage this with a medical professional.”
[20] The warning letter said that the Applicant’s performance would continue to be monitored through a new PIP and a failure to meet the performance standards may result in the issue of further written warnings “which may ultimately result in the termination of your employment.”
[21] The Applicant said that he read the first warning letter, but “I never envisaged Jemena would sack me...” 20
[22] The third PIP (PIP 3) commenced on 19 April 2017 and provided for an assessment period until 19 June 2017. 21 This was extended to 23 June 2017 at the Applicant’s request, as he had been absent from work for four days in the review period.22
[23] PIP 3 contained a list of projects requiring the completion of specific tasks, with an agreed timeline for completion. It listed the performance expectations and established review meetings. It included uncompleted tasks from both PIP 1 and PIP 2, including the Melton Highway project work, which had not been completed by 15 February 2017 and had a revised date for completion of 5 May 2017.
[24] As part of PIP 3, the Applicant prepared a progress sheet, which contained a list of 21 projects specifically requiring “close out.” 23 It is not in dispute that that the progress sheet included projects which had first appeared on the September 2015 Spreadsheet and remained incomplete.24
[25] On 12 April 2017, Ms Salter had a conversation with the Applicant and asked him, “What can I do to help you meet the requirements of the PIP now?” The Applicant responded, “I just need to do my work and tick off the PIP. There’s nothing you can do. I’m tired and I’m not coping. But you can’t help me with that.” Ms Salter asked the Applicant if he had sought medical assistance and the Applicant said, “yes.” 25
[26] A similar conversation took place at a performance review meeting on 30 May 2017. The Applicant attended with his support person, Mr Tame. It is not in dispute that during the meeting, Ms Salter asked the Applicant, “What can we offer to assist you?” to which the Applicant responded “I really can’t answer that.” Further, Ms Salter said, “As you have found counselling useful, can I arrange to have a counsellor in the workplace or nearby work?” The Applicant declined, stating, “I need to wipe out time to get this work done. I have had a lot of issues since the restructure. I want to meet the requirements of the PIP and then move on and then do counselling. I need to get over this hump. The warning letter offended me. I know I have not been performing. The PIP process has not helped the way I feel.” 26
[27] On 31 May 2017, Jemena issued the Applicant with a second written warning regarding his performance. 27 The letter said:
“Disappointingly, you have only made progress on a minimal portion of the assigned work. The vast majority of Projects in the schedule that you developed remain without any progress. This list of tasks have been in place since November 2016 and you have not been allocated a minimal number of current Projects, in order to allow you time to focus on finalising these projects. By your own admission, having such aged Projects has created further complexities in closing them out.
In summary, there is a continued lack of progress in the delivery of customer-initiated projects to meet the customer’s and Jemena’s timeframes, despite these being clearly outlined in the PIP.
When asked what your reasons were for such limited progress your responses were as follows:
● SAP continues to be a problem and you are writing out your own work instructions.
● Older projects have been created under old SAP process and there are problems with budgets.
● Workload is high in the team and everyone finds SAP difficult to use.
● It is a time thing and you need to devote time to the tasks.
● You explained that you are capable and can improve, although this PIP process has upset you.
● Since our last formal review meeting you have had approximately 8-10 days of absences.”
[28] Following a summary of why Jemena did not accept the Applicant’s response as valid, including the training he had been given in relation to the close out process in SAP, the letter said:
“During the meeting, several times we asked you, “What can Jemena do to assist you?” You stated there was nothing that could be done and that you remain committed to improving your work performance to meet the agreed requirements. On-going support for SAP and from myself is always available, so please ask for any assistance.
Please discuss with me at any time your health concerns, which you have cited as a contributory factor in your performance. I am here to continue to support you and I encourage you to manage any health issues with a medical professional.”
[29] The warning letter said that the Applicant’s performance would continue to be monitored through PIP 3 and a failure to meet the performance standards may result in further written warnings “which may ultimately result in the termination of your employment.”
[30] On 22 June 2017, the Applicant wrote to Ms Salter by email with the subject line “PIP – What You Can Do for Me.” 28 In the email, the Applicant referred to certain medical issues; diabetes, an “ongoing stomach issue which has caused me to have low iron which directly affects energy levels,” treatment for depression “a number of times over the last few years,” tiredness and insomnia. He said that he would “need to have a few weeks leave to switch off work and generally bring my mind at ease. I would expect this to occur after I clear the backlog of work from prior to the restructure of October 2016.”
[31] The next morning, 23 June 2017, Ms Salter met with Applicant to discuss his email of 22 June 2017 and the PIP 3 review meeting scheduled for later that day. It is not in dispute that during the meeting, Ms Salter said to the Applicant, in relation to the PIP 3 review meeting, “At this meeting, there will be one of three outcomes. We might extend the PIP, or you will have completed the PIP, or if you can’t demonstrate you can complete the PIP, then your employment may be terminated” to which the Applicant responded, “Well I know I haven’t completed what I need to complete.” Ms Salter replied, “Well we need to go ahead with the meeting and see how far you’ve been able to progress and consider any other information you need to give us.” 29
[32] A performance review meeting was held later on 23 June 2017. The Applicant attended with a support person, Mr Smallbone. Ms Salter and Mr Hemsley attended on behalf of Jemena. Mr Hemsley said that the Applicant had closed out two projects but had made no progress at all on the other 19 listed projects for close out (all of which had been included in PIP 2). 30 In addition, Mr Hemsley noted that the Melton Highway project work remained incomplete “despite me telling the Applicant that he needed to concentrate on those priority tasks.”31 It is not in dispute that during this meeting, a conversation to the following effect took place: 32
“Mr Hemsley: I have given you direction to focus on close outs. The PIP outlines what you have needed to focus on or the past months.
Applicant: I rushed the list of the schedule. I am not operating as I should be. If I had better foresight, I didn’t realise I would be held to the dates in the PIP. I need to lock myself in a room. In hindsight I should have done this. I don’t want to be a burden, want the opportunity to finish them.
Mr Hemsley: We agree that you have completed your day to day responsibilities like month end reporting and CATS time writing.
Applicant: I looked at the projects, made a request or a field assessment. I know you have been holding back other work.
Mr Hemsley: You have not met the requirements of the PIP. My concern is when you get through this list, can you meet the requirements of your role?
Applicant: It will be a completely different environment. I want the opportunity to tackle the projects and work at Jemena. The backlog is a perception of priorities. I can commit to a day a week to get through the backlog.
Mr Hemsley: You should have allocated time and used your schedule.
Mr Smallbone: There will be a disruption to the business to replace Andrew. You have acknowledgement and commitment that he has progressed. If he can be given the opportunity.
Applicant: I have mentioned my health concerns. I am not operating at full capacity.
Ms Salter: We have offered you on site EAP which you declined. In your warning letters we encourage you to seek assistance for your medical concerns with a medical professional. You have not provided us with any medical information that supports your claims. You have only provided medical certificates for absences.
Applicant: I should have focussed on the low hanging fruit.”
[33] The meeting was adjourned so that Mr Hemsley and Ms Salter could consider the Applicant’s response. When the meeting was reconvened, it is not in dispute that the following conversation took place: 33
“Mr Hemsley: We have considered everything you told us at this morning’s formal review meeting. The requirements of the PIP have not been met. We are considering terminating your employment.
Ms Salter: Is there anything else that you have not already told us today, or throughout the process that we need to consider?
Applicant: I have pretty well kept up to date with my day to day work. I need to clear the backlog, focus for another 4-6 weeks. I will do my best to get it done. The downfall is customers take priority. I have deliberately avoided going to the doctor. I have been sick but have been coming to work. I want to focus and be part of the group. John [Mr Hemsley] is aware that I have been on prescription medication and I would like that to be taken into consideration. If I hadn’t been sick I would have done the work.”
[34] Mr Hemsley and Ms Salter again adjourned the meeting to consider the Applicant’s response. When the meeting was reconvened, Mr Hemsley informed the Applicant that his employment was terminated.
[35] The jurisdictional facts relevant to the determination that a person has been unfairly dismissed are set out in s.385 of the Act, which provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[36] It is common ground that the Applicant was dismissed within the meaning of s.386 of the Act. 34 As earlier stated, Jemena is not a small business employer, so the issue of compliance with the Small Business Fair Dismissal Code does not arise, and it is not contended that the dismissal was a case of genuine redundancy. The only issue in contention is whether the dismissal was ‘harsh, unjust or unreasonable’ (s.385(b)).
[37] The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); 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 the FWC considers relevant.”
[38] I am obliged to consider each of these matters in reaching my conclusion. 35
[39] The ambit of the conduct which may fall within the phrase “harsh, unjust or unreasonable” was explained in Byrne & Frew v Australian Airlines Ltd 36 by McHugh and Gummow JJ as follows: 37
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the person and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[40] Each of the matters in s.387 of the Act are considered below.
[41] Jemena must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to him at the time of the dismissal. 38 The reason should be “sound, defensible or well-founded” and should not be “capricious, fanciful, spiteful or prejudiced.” 39
[42] According to a Full Bench in Robert Etienne v FMG Personnel Services Pty Ltd: 40
“Section 387(a) requires the Commission to consider whether there is a valid reason related to a person’s conduct or capacity. The distinction between conduct and capacity is not always a clear one. The question of whether an employee has engaged in a performance improvement process, for example, could be described as involving either conduct or capacity, or both. In either case, the Commission must consider whether the relevant reason is valid. If the reason for dismissal is said to have been deficient performance, the Commission must be satisfied that the performance was deficient.”
[43] The consideration prescribed by s.387(a) is whether there was a valid reason, and the Commission must satisfy itself of the validity of the reason and its factual underpinning. 41
[44] The test is not whether the employee was working to their personal bust, but whether the work was performed satisfactorily when looked at objectively. 42
[45] The termination letter specified the reason for the dismissal, being the Applicant’s failure to meet the mutually agreed performance standards required of the role. At the hearing, the Applicant conceded that there were two key areas in which Jemena identified performance shortcomings: 43
(a) customer project work; and
(b) SAP close out work.
[46] The Applicant raised a number of matters in response to (a) and (b) above. Where those arguments raise material considerations, I have addressed them below.
[47] The first area of concern in which Jemena identified performance shortcomings related to customer project work. It is not in dispute that the Melton Highway project work was one of many outstanding customer project work activities 44 or that a failure to co-ordinate the work had the potential to adversely affect Jemena customers.45 However, the Applicant did not accept any responsibility for its non-completion.46 During the course of cross-examination, the following exchange took place:47
“Mr O’Neill: Can you say that having a high voltage cable to these customers was a low priority job?
Applicant: No, it wasn’t a low priority job.
Mr O’Neill: And it was a job that had been outstanding for, by the time you were dismissed, eight years, correct?
Applicant: Well, if Mr Hemsley believed it was such a high priority level he should have said, “Andrew, stop working on these other projects. Just do this one. Get it out of the way because there’s imminent risk of loss of supply to the customer.”
Mr O’Neill: Well, I’m not asking you about Mr Hemsley’s prioritisation. You say that you prioritise your own work, correct?
Applicant: Mr Hemsley is ultimately responsible for the work that I do.
Mr O’Neill: You say that you prioritised your own work?
Applicant: Generally we do.
Mr O’Neill: Yes. And this was at least a medium, if not a high priority job, wasn’t it, Mr Demosthenous?
Applicant: Correct.
Mr O’Neill: And you didn’t get it done in two years?
Applicant: Correct.
Mr O’Neill: On one view you didn’t get it done in seven years?
Applicant: Well, it wasn’t done by the stipulated date, yes.
Mr O’Neill: It had the same priority essentially back in 2010, didn’t it?
Applicant: It did, but both managers were aware of the situation and I think it unreasonable that I take full responsibility for prioritising work when they’re aware of it. It reflects much on their own technical ability, their own management ability to manage projects.
Mr O’Neill: Well, that may be so, but do you say that it was acceptable terms of your performance that this job remained not done for seven years?
Applicant: It’s really not acceptable but it comes down to workload for everybody, how the section is run and managed.”
[48] The Applicant sought to shift responsibility for the non-completion of the Melton Highway project task to his managers. For the reasons below, I do not accept that the Applicant’s failure to coordinate the completion of this work can be attributed to the management skills of either Mr Hemsley or Mr Alchin, as alleged.
[49] This task first appeared on the September 2015 Spreadsheet. The Applicant and Mr Alchin agreed that it would take the Applicant approximately eight hours to co-ordinate the completion of the work, which dated back to 2010. At the time of the dismissal on 23 June 2017, the work (which involved co-ordinating the connection of a high voltage cable to certain properties) was not complete and had appeared on PIP 1 (with a target date of 15 July 2016), PIP 2 (with a target date of 15 February 2017) and PIP 3 (with a target date of 5 May 2017). It is not in dispute that the Applicant never completed the task.
[50] It is apparent that both Mr Alchin and Mr Hemsley took proactive steps to assist the Applicant to complete this, and other tasks. They identified the performance expectation and established review meetings with the Applicant. The September 2015 Spreadsheet and each of the PIPs are in clear and unambiguous terms. However, the Applicant chose not to complete the work, despite being on notice since at least September 2015 that Jemena required it to be done by him.
[51] Further, the Applicant submits that he did not complete the Melton Highway project work because he was still required to perform design work. This was contradicted by the evidence of Mr Hemsley, who said that design work was not part of the Applicant’s role following the restructure; that there was a separate design team within Jemena; and despite Mr Hemsley’s direction, the Applicant continued to concentrate on the task of drafting when he was not required to. 48 The Applicant conceded under cross examination that he continued to perform design work49 and accordingly, I accept Mr Hemsley’s evidence that the Applicant did not follow his instructions to “throw the designs out to the design group” and focus on closing out the Melton Highway project task. I do not accept that the Applicant’s failure to complete the Melton Highway project work can be attributed to any requirement imposed by Jemena on him to perform design work, as alleged.
[52] The second area of concern in which Jemena identified performance shortcomings related to SAP “close out” work. Mr Hemsley said that this was a standard transaction process to close projects. 50 He said the task was important to Jemena to ensure its records properly reflected the volume of work, resources needs, the financial status of each project and any ongoing work to be done.51
[53] Various project close out tasks were listed in the September 2015 Spreadsheet, specifying that the Applicant should “set 4 hours aside every second week and do bulk close out.” When asked under cross examination if he had set aside four hours every second week for that task, the Applicant said that he had not, that it was “an extremely poor suggestion” and that project close out work was “very low in the priority list.” 52
[54] I accept Mr Hemsley’s evidence, given his project management role, that project close out work was important to Jemena, including to ensure that an accurate summary of all company assets are contained in SAP for financial accounting purposes. The Applicant conceded that he did not have a full understanding of the importance to Jemena in closing out projects. 53 Given this, I do not accept his submission that the work was of a low priority.
[55] The Applicant raised a number of issues which he said affected his capacity to perform project close out work as directed. Where they raise material considerations, I have addressed them below.
The process for closing out projects was not clearly defined or was too complex
[56] The Applicant contends that the process for closing out projects was not clearly defined. 54 He also said that because many of the relevant projects were in an earlier version of SAP, the process for close out was more complex and that this affected his capacity to complete them.55
[57] The Applicant was critical of the fact that he had to write his own instructions for the close out process. 56 However, the Applicant said that he had prepared his own “step by step processes,” acknowledged that other members of the team were “getting by” without a SAP manual and agreed that he had attended a specific “project close out workshop,” a training program which Jemena provided to employees.57 He referred to the task as a “monkey task” that he had the ability to learn.58 Mr Hemsley said that the Applicant was trained in the process and had demonstrated that he could do it.59
[58] In relation to the Applicant’s complaint that some of the project close out tasks were so dated that SAP had been updated in the interim, Mr Hemsley said that the close out process was the same but for the added steps relating to budget constraints and electronic asset settlement, and the Applicant was trained in those extra steps. 60 The Applicant conceded that Mr Hemsley directed him to prioritise the closing of older, high value projects to clear the backlog, but he decided to exclude those more complex closing tasks from his priority list because he realised they were going to be “too time-intensive.”61
[59] I consider that it was within the Applicant’s skill and experience to complete the close out tasks, notwithstanding his frustration that there was no company-wide instruction manual and that some of the projects were so dated that SAP had been updated in the interim. On his own evidence, the Applicant was trained in these tasks but simply chose not to perform them, including because it would be too time intensive. Accordingly, I do not accept that these matters affected the Applicant’s capacity to perform close out work, as alleged. I have formed this view notwithstanding that the task required the performance of further steps under the new version of SAP.
The tasks in the PIPs were not prioritised and an estimate of hours was not provided against each task
[60] The Applicant contends that Mr Hemsley did not prioritise each of the tasks in the three PIPs, or provide an estimate of the number of hours’ work required for each of them. 62 However, the evidence shows that the PIPs clearly set out the activities that the Applicant was to prioritise, at Mr Hemsley’s direction.63 Each task specified an agreed target date for completion and the Applicant conceded that he understood that he was expected to meet the key dates established in the PIPs.64 Notwithstanding this, the Applicant failed to complete the majority of the identified close out tasks at all (irrespective of priority).
[61] I am not persuaded that an estimate of the number of hours’ work required for each task in the PIPs would have further assisted the Applicant, in circumstances where he helped set the target date for the overall completion of each task. The Applicant’s own evidence of his contribution towards these timeframes indicates that he clearly understood the tasks and allocated an achievable deadline.
[62] Given the above, I do not consider that the PIPs were compromised by any failure by Mr Hemsley to further assign a priority or an estimate of time to the tasks contained within them. Accordingly, I do not accept that these matters affected the Applicant’s capacity to perform project close out work (or indeed, the tasks in the PIP more generally), as alleged.
Jemena’s goal was to remove the Applicant from his employment and he was a target
[63] The Applicant said that Mr Hemsley “did little to assist me in achieving the SAP close-out apart from asking me to get advice from others” and that “Mr Hemsley’s focus was to do as little as possible to assist me to achieve the PIP targets.” 65
[64] Mr Hemsley’s evidence was that, in addition to directing the Applicant to prioritise work on the PIPs and assisting him with revising completion dates for the tasks, he: 66
● redistributed the Applicant’s work to others in the team to a large extent, so that the Applicant could concentrate on completing the tasks in the PIPs; 67
● provided the Applicant with access to SAP experts and encouraged him to obtain assistance from other team members; and
● provided the Applicant with access to EAP counselling. 68
[65] The Applicant conceded that he attended specialist SAP close out training and sought assistance from other employees, as suggested by Mr Hemsley, but that he didn’t want to “take them away from the work they need to do by interrupting them.” 69
[66] While the Applicant disputed the extent to which his day-to-day tasks were redistributed during the period of PIP 3, I am satisfied that the Applicant’s usual activities were reduced during the overall PIP process to enable him to complete the backlog of work, save for a small number of new projects issued to him by Mr Hemsley, with a view to ensuring that the Applicant remained up to date with existing work practices. 70 Under cross examination, Mr Hemsley accepted that he did not advise the Applicant of the proportion of his day-to-day work that was allocated to others,71 but I consider that to have been a matter for Mr Hemsley to manage at his discretion. I note that it was not in dispute that the Applicant was up to date with the confined number of day-to-day tasks issued to him by Mr Hemsley.72
[67] The issue was put squarely to Mr Hemsley during cross-examination and Mr Hemsley rejected the contention that he was working to get the Applicant out of the company. 73 I accept this evidence, which is supported by the weight of the PIP material and performance-related discussions since late 2015. I find that Mr Hemsley invested considerable time in the Applicant in order to assist him to meet the PIP deliverables. Further, Mr Hemsley’s conduct in ensuring the Applicant remained up to date with existing work practices leads me to the conclusion that Mr Hemsley was considering the Applicant’s ongoing employment with Jemena in the future, rather than setting the Applicant up for failure, as alleged.
[68] The above matters are at odds with the Applicant’s submission that Mr Hemsley did “little to assist” him to achieve the close out tasks. In the circumstances, I do not accept the Applicant’s submission that Mr Hemsley’s focus was on the removing the Applicant from the company, or that this matter affected the Applicant’s capacity to perform project close out work (or indeed, the tasks in the PIPs more generally), as alleged.
[69] Furthermore, the Applicant felt that he was unfairly targeted with a PIP on account of being outspoken about workplace issues. 74 Mr Hemsley and Mr Alchin agreed that the Applicant had been outspoken on certain workplace issues, but denied the Applicant was targeted.75 The evidence regarding the PIP process, including the Applicant’s own concessions that he was not performing to standard,76 makes it clear that the PIP process arose on account of the Applicant’s performance deficiencies. There is no evidence before me that would lead me to conclude that the Applicant was inappropriately placed on the PIPs or that the PIPs were implemented because the Applicant was outspoken on work related issues at times. The Applicant accepted that he had no evidence to substantiate his allegation that Mr Woolley (Mr Hemsley’s Manager) was putting pressure on Mr Hemsley to bring the Applicant’s employment to an end.77 Accordingly, I do not accept that the Applicant was inappropriately targeted with a PIP, as alleged.
[70] Having addressed the Applicant’s responses to the two key areas in which Jemena identified performance shortcomings (customer project work and SAP close out work), the Applicant raised another issue which he said affected his capacity to satisfy the requirements of the PIPs more generally.
[71] The Applicant contends that it was unfair to be issued with PIP 2 on 1 November 2016, which was six days prior to the effective date of his new role of Project Coordinator as part of the restructure. 78 He alleges that Jemena never gave him the opportunity to work under a “clean slate” in his new role.79
[72] It was not in dispute that:
● there were different procedural aspects concerning how the Applicant interacted with the SAP system following the restructure; 80 but
● there were no new duties associated with the Applicant’s new role as Project Coordinator. Rather, the new role of Project Coordinator saw the reduction in certain responsibilities such as customer facing functions for any new projects. 81
[73] It was Mr Hemsley’s evidence that he explained to the Applicant that the performance management process in PIP 2 would continue through the restructure, given that the Applicant’s “duties and responsibilities after the restructure were largely the same, particularly in respect of those matters where he was underperforming, that is, the close out process.” 82
[74] Noting that the parties were not in dispute about the changes to the Applicant’s duties following the restructure, I accept that PIP 2 was directed towards continuing to address the Applicant’s key performance deficiencies, given that these same tasks would be ongoing for the Applicant in his new role. Accordingly, in the circumstances, I do not consider that the issuing of PIP 2 six days prior to the effective date of the Applicant’s new role of Project Coordinator made compliance with PIP 2 unfair in these circumstances.
[75] Taking into account all of the above matters, I am satisfied that Jemena had a valid reason for dismissing the Applicant, based on his consistent poor performance, which he failed to remedy. I am satisfied, on the evidence before me, that the performance was deficient. Jemena’s reason for termination was therefore sound and defensible. My conclusion weighs against a finding that the dismissal was harsh, unjust or unreasonable.
Notification of the valid reason – s.387(b)
[76] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, in explicit terms 83 and in plain and clear terms.84 In Crozier v Palazzo Corporation Pty Ltd85 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 said the following: 86
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[77] There is no dispute that the Applicant was notified of Jemena’s reasons for dismissing him at the meeting on 23 June 2017 at which Mr Hemsley and Ms Salter outlined their ongoing concerns with his performance and asked him to respond. I am satisfied that the Applicant was notified of the reason for the dismissal prior to the decision to terminate his employment. This matter weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[78] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 87
[79] The Applicant does not contend that he was denied an opportunity to respond to the reason for his dismissal. The evidence in this matter establishes that there was a long history of meetings and performance counselling. The Applicant was invited to a meeting on 23 June 2017 to formally respond to Mr Hemsley and Ms Salters’ ongoing concerns with his performance. At this meeting, the Applicant provided a response causing Mr Hemsley and Ms Salter to adjourn the meeting twice to consider the matters he raised before a decision on dismissal was made. 88
[80] I am satisfied that the Applicant was given an opportunity to respond to the reason for the dismissal. This matter weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[81] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[82] There is no dispute that the Applicant attended the meeting on 23 June 2017 with Mr Smallbone as his support person to discuss the ongoing performance issues that founded the reason for his dismissal. I find that the issue of an unreasonable refusal does not arise. This matter weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[83] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.
[84] It is not in dispute that the Applicant received two written warnings regarding his performance prior to his dismissal. 89 Each warning letter said that the Applicant’s performance would continue to be monitored and a failure to meet the performance standards may result in the issue of further written warnings “which may ultimately result in the termination of your employment.”
[85] The Applicant did raise a concern as to the timing of the second written warning, which was issued six weeks into the 12 week review period of PIP 3 (and not upon the conclusion of PIP 3). In an email to Ms Salter on 22 June 2017, the Applicant said that it was a shock to him to receive the second warning letter following the 30 May 2017 meeting, as he had understood this to be a progress meeting.
[86] Mr Hemsley gave evidence that following the review meeting on 30 May 2017, he was not satisfied that there had been sufficient progress on the tasks in PIP 3; some had been “rushed” prior to the meeting and some had not been “touched” at all, 90 such that a written warning at that stage was appropriate.
[87] I have considered whether it was procedurally unfair for Jemena to have issued the second written warning to the Applicant prior to the conclusion of the PIP 3 review period. Jemena contends that it was not unfair 91 and notes that the Applicant was given a warning during the period of PIP 3; he was not dismissed, and this distinguishes the present case from the situation in Robert Etienne v FMG Personnel Services Pty Ltd92 (Etienne). In Etienne, a Full Bench of the Commission considered whether a decision to dismiss an employee one week into a six week PIP was unfair. In finding the outcome “counter-intuitive,” the Full Bench emphasised:93
“…we would note that our decision should not be understood as suggesting that employers are always required to conclude a performance improvement process once it has begun. There may be a valid reason not to do so. Each case will turn on its own facts.”
[88] In Jemena’s submission, unlike in Etienne, the Applicant was not prevented from continuing to work towards achieving the desired outcomes in PIP 3 following the issuing of the second warning. Further, the Applicant had been subject to a lengthy performance management process and was on his third PIP at the time of the second warning. He had received an earlier written warning on the topic. Mr Etienne, by comparison was one week into a six week PIP at the time he was dismissed.
[89] Furthermore, Jemena contends that when the Applicant was ultimately dismissed on 23 June 2017, it was because he “did not meet the performance standard.” It was not the case, as in Etienne, that the PIP 3 process was shortened because of a belief that further performance management would be futile. The Applicant was given an opportunity to complete the full PIP 3 review period before a decision was made that further performance management would have been futile, given the lengthy history of performance counselling by Jemena to that date.
[90] In the circumstances, I do not consider it to have affected the integrity or fairness of the process that the second warning letter was issued before the conclusion of the PIP 3 review period. While the first warning letter had been issued to the Applicant upon the conclusion of the PIP 1 and 2 review periods, there was nothing preventing Jemena from deviating from that course in the circumstances of this case. The Applicant had been on notice of his performance deficiencies since September 2015. The purpose of the warning letter was not simply an appeal to do better. It gave the Applicant an opportunity to address the identified performance inadequacies to avoid the consequences of dismissal. The Applicant did not respond favourably to the warnings, in circumstances where the performance issues were substantive.
[91] The Applicant received two written warnings regarding his performance prior to his dismissal. This is a factor that weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[92] Jemena is a large employer. There is no evidence that Jemena’s size, in and of itself, affected the procedures adopted in effecting the dismissal. The Applicant did not make any submissions about this factor and Jemena submits that it is not a relevant consideration. In the circumstances, I consider this matter to be a neutral consideration in determining whether the dismissal was harsh, unjust or unreasonable.
[93] There was no absence of a dedicated human resources function. It is apparent that Ms Salter, a human resources management specialist, was involved throughout the process leading up to (and including) the dismissal. The Applicant did not make any submissions about this factor and Jemena submits that it is not a relevant consideration. In the circumstances, I consider this matter to be a neutral consideration in determining whether the dismissal was harsh, unjust or unreasonable.
[94] Section 387(h) of the Act provides the Commission with broad scope to take into account any other matters it considers relevant. I have had regard to the following matters in considering whether the dismissal of the Applicant was harsh, unjust or unreasonable.
[95] The Applicant said that he was suffering from personal/health issues and that Jemena should have recognised this and required that he take leave or taken some other action to assist him, such as postponing the PIPs.
[96] The Applicant contends that he was “unduly stressed,” “physically and mentally run down,” and “not in a clear mental frame of mind since 2015 to take action to help myself by taking extended medical leave.” 94 He said that in addition to having diabetes, he was receiving treatment for Helicobacter Pylori stomach virus from late 2016 to the date of dismissal, which caused low iron and affected his energy levels and ability to concentrate.95
[97] The Applicant relied upon two letters from medical practitioners in support of his position that he was being treated for Helicobacter Pylori stomach virus from late 2016. 96 Both letters post-dated the dismissal.
[98] The letter from Dr Hermiz dated 4 August 2017 said that blood tests in late 2016 “showed iron deficiency” and a subsequent colonoscopy “showed Chronic Helicobacter infection” for which the Applicant was taking antibiotics. The letter concluded that, “I don’t think [the Applicant] was able to function at his full capacity taking into account his medical conditions and treatment.”
[99] The letter from Dr Yong dated 7 August 2017 said that Helicobacter Pylori is a stomach bacteria that causes gastric inflammation, abdominal discomfort and other symptoms. The letter said that “it is my understanding [the Applicant] made his manager aware of his medical issues, and symptoms, and that he would need further tests or treatment. In view of [the Applicant’s] ongoing medical issues, this would impact negatively on his work performance.”
[100] The question of whether or not the termination was “harsh, unjust or unreasonable” is to be determined on the basis of the circumstances in existence when the decision to terminate the employment was made. 97 I accept that at the time of the dismissal, the Applicant was suffering from Helicobacter Pylori stomach virus. Whether this fact was known to Jemena at the time of the decision to terminate the Applicant’s employment (as distinct from understanding he was suffering from low iron and tiredness) is not determinative. As a Full Bench in Dundovich v P&O Ports98 observed, facts which existed at the time of dismissal but only come to light after the decision may render a termination of employment harsh, unjust or unreasonable. I consider below the evidence before the Commission in relation to the Applicant’s personal/health issues.
[101] In relation to the Applicant’s diabetes, I am satisfied that, at least by the meeting on 12 November 2015 (by reference to the Applicant’s contemporaneous file note of that meeting) 99 that both Mr Alchin and Mr Hemsley were aware that the Applicant was a diabetic. At the hearing, the Applicant said that his diabetes “generally isn’t a problem provided I’m not stressed, overly stressed. It’s something which is reasonably controllable but if I become excessively stressed then there is issues with it.”100
[102] The Applicant made reference to his health issues in an email to Mr Hemsley on 7 November 2016. As earlier noted, this relevantly stated:
“It is no secret I have a few health issues.
● Diabetes, where I require insulin injections at least 4 times a day. Stress alone is sufficient to give me extremely high sugar levels. Persistently high sugar levels lead to many long term health issues.
● Presently under investigation is the cause for extremely low iron levels, which has caused excessive tiredness over more than a year now.”
[103] Under cross examination, Mr Hemsley said that the Applicant was not a quick worker, “especially with his diabetes.” However, Mr Hemsley said that he took that into account as part of the PIP process. 101 The weight of the PIP material is consistent with Mr Hemsley’s evidence in that respect, and I accept it. For instance, the completion date for the Melton Highway Project work was extended, with Mr Hemsley’s agreement, from September 2015 to, ultimately, 5 May 2017.
[104] The Applicant also made reference to his health issues in an email to Ms Salter on 22 June 2017. He said:
“I have stated a few times now that I have a number of medical issues as well as Diabetes. In particular I have an ongoing stomach issue which has caused me to have low iron which directly affects energy levels. Medical tests and treatment (3rd round of antibiotics has recently been completed) are still on-going to resolve the issue. I have a follow-up test to be done within the next week, and appointment with the specialist on 11th of July.
I have had treatment for depression a number of times over the last few years with assistance from prescription medicine and counselling.
Tiredness and insomnia are on-going issues which affects my work performance and general well being. I have a scheduled counselling session on 6th of July.
I have said to John Hemsley a few times now, and I believe I also mentioned this at our last PIP meeting, that I feel I need to have a few weeks leave to switch off work and generally bring my mind at ease. I would expect this to occur after I clear the backlog of work from prior to the restructure of October 2016.”
[105] The Applicant submits that Jemena made no further inquiry of his physical and mental health issues during the PIPs, “even though there was clear indication and evidence that I had issues.” 102 He said that the 22 June 2017 email to Ms Salter should have provided reason to defer the dismissal. He also said that Mr Hemsley failed to inquire about his well-being after the Applicant spoke with him in mid-April 2017 about the antibiotics the Applicant was taking.103
[106] Ms Salter gave evidence that the Applicant displayed no overt signs of health problems that were affecting his performance. 104 She said that the Applicant had told her that he was feeling tired and stressed,105 but Ms Salter felt that this was not an unusual response from someone undergoing performance management and he did not indicate how stress was preventing him from performing his duties.106 Ms Salter said that at no time did the Applicant:
(a) assert that he was currently suffering from depression or any other mental health condition (as distinct from having had treatment over the last few years);
(b) assert that any such condition prevented or hindered him from completing work tasks; or
(c) provide any medical evidence that any condition, whether mental or physical, was preventing or hindering him from completing work tasks. 107
[107] This is despite the fact that Ms Salter had repeatedly asked the Applicant during the PIP process how Jemena could help him and told him to discuss with them any health issues that he felt was impacting upon his performance.
[108] Ms Salter said that the 22 June 2017 email was the first time that the Applicant had raised with her that he had an “ongoing stomach issue” (and that he had the flu). She said that the Applicant did not present with any symptoms of the flu when she met with him on 22 and 23 June 2017. Further, she said that the Applicant had provided no medical evidence about his stomach condition and did not discuss the issue further with her when she met with him in person on 23 June 2017 to discuss his 22 June 2017 email.
[109] During cross examination, the Applicant asked Ms Salter why she did not defer his dismissal on 23 June 2017, given the content of his email to her on 22 June 2017.
“Applicant: You were aware I was receiving some ongoing medical assistance. I had a booking date for a specialist to further assess the H-pylori virus. I had a booking date with a counsellor to - and yet, you just proceeded with my dismissal. I’ll just repeat the question - I’ll rephrase it. Why did you not defer the dismissal, until you had received appropriate evidence of what my full medical condition was?
Ms Salter: We had many discussions over the months since we first met. I first met you on 23 March, and you only ever spoke in general terms and you had every opportunity to put evidence from a medical practitioner on the table that showed a direct link from any health concerns to your work performance. Yet you didn’t take that opportunity.
…
Applicant: Considering I had received a number of warning letters, my job was on the line, Jemena was seriously considering dismissing me. Regardless of whether it’s in writing the day before, progressively without the work group meetings, and matter of fact, in an email in 2016, I highlighted that I was being investigated for H-pylori which caused low iron levels. It’s not uncommon for people to be aware that low iron levels causes very low energy levels and will affect general health. So, in all that time it didn’t occur to you to ask for any further evidence?
Ms Salter: What did occur to me to do was in your warning letters to put we actively encourage you to seek medical assistance. Mr Hemsley signed those letters and instructed you to also speak to him with any concerns that you had. You were given those instructions as well, in writing to seek that medical assistance.
Applicant: You obviously felt that I was in a mental state of mind that I was able to take care of myself, that’s what you felt?
Ms Salter: Yes.
…
Applicant: Apart from referring me to a counsellor, were you ever concerned my health and wellbeing throughout the three consecutive PIPs?
Ms Salter: Not to an extent where I needed to take any action, no I was not.” 108
[110] Ms Salter was asked if she had received the letters from Dr Hermiz and Dr Yong prior to the dismissal, whether she would have considered alternative action to the dismissal. Ms Salter said she would have to be satisfied that there was a “direct causal link between any health condition and work performance” and if she was satisfied of that, then she would investigate further. 109
[111] Mr Hemsley gave evidence that at no stage during the PIPs did the Applicant say to him that his diabetes or his health issues were preventing him from either performing his role to the required standard or completing the tasks that he had been given. 110 During the hearing, the Applicant conceded this. The following exchange took place during cross examination: 111
“Mr O’Neill: At the meeting on 30 May of this year - can you have a look perhaps most conveniently at page 2 of attachment three, which is the second warning letter?
Applicant: Yes.
Mr O’Neill: Do you see on the second page after the bullet points it reads, “During the meeting several times we asked you, ‘What can Jemena do to assist you?’“ You stated, “There was nothing that could be done and that you remained committed to improving your work performance.” Do you agree that you were asked during that meeting what Jemena could do to assist you?
Applicant: I don’t deny that statement but - - -
Mr O’Neill: And do you agree that - - -?
Applicant: - - - but you need to consider my frame of mind when I make these statements. I was still extremely stressed - still am.
Mr O’Neill: Do you agree that you said there was nothing that could be done?
Applicant: Well, that is what I said at the time, correct.
Mr O’Neill: All right. You didn’t ever, did you, say to John Hemsley or Andrea Salter that the expectations and targets in this PIP are unreasonable because of my state of health?
Applicant: I believe that’s correct.
Mr O’Neill: You never told John Alchin that stress was stopping you from doing your job?
Applicant: I mentioned it at the meetings with John Alchin.
Mr O’Neill: I’m not saying you didn’t say that you were stressed. But you never said it was stopping you from doing your job?
Applicant: Well, the insinuation was that it was hindering my work significantly.”
[112] Mr Hemsley said that while he was aware, in around April 2017, that the Applicant was taking medication to address a stomach condition that causes low iron levels, he said “low iron to me doesn’t mean anything. There was nothing in there that said ‘I am unable to do my job, because I am taking this course of medication.’” 112 Mr Hemsley said that the Applicant did not provide him with any medical evidence which said that he was unfit for work during the period of the PIPs, aside from four medical certificates dated 18 April 2017, 10 May 2017, 1 June 2017 and 9 June 2017, each for a single days’ absence which specified generally that the Applicant was “unfit for his normal work” or “attended this clinic” on a particular day of absence.113 For completeness, I note that the Applicant was also absent from work on 1 February 2017 and 1 March 2017, but did not attend a doctor.114
[113] During cross-examination, the Applicant asked Mr Hemsley if Mr Hemsley had noticed that he was unwell: 115
“Applicant: You didn’t notice any change in my demeanour? I didn’t look tired, I didn’t look anxious, stressed, depressed during the duration of the PIP?
Mr Hemsley: Not to – no, I wasn’t aware of that.”
[114] Mr Hemsley gave evidence that he had invited the Applicant to take a period of leave. The Applicant agreed with this. 116 Despite this, during cross examination, the Applicant asked Mr Hemsley why he didn’t instruct him to take leave during the course of the PIP: 117
“Applicant: …why didn’t you see the need for me to take leave during the course of the PIP?
Mr Hemsley: Andrew knows the process that’s involved in leave. He’s just told you how much leave he had up his sleeve and as I said before, I was always asking him to get his leave down and to give me a plan of his leave. Now short of actually putting in leave for him and enforcing him to take leave, there’s not a lot else I can do.”
[115] Under cross examination, the Applicant accepted that he did not discuss with Jemena the impact he felt his personal/health issues were having upon his work performance during the PIPs, although he made comments about being stressed and having insomnia at times. The Applicant said: 118
“I really cannot recall conversations with Mr Hemsley where I said words to that effect. I did say I needed to recoup, I did say I was excessively tired, I felt run down. In my sick leave documentation going back to 2015, which you do not have copies - I do have copies now - a number of occasions I’ve said I suffer from insomnia, which happens to be one of the - I’ve said I’ve got insomnia, I’ve said I’m run down. I think I’ve used the word “stressed” on maybe perhaps one or two forms. But nothing was followed up from those points. Now, all of those sick leave forms go to my manager for review, so it was his choice whether he chose to accept them as factual or something of a lesser extent, I don’t know.”
[116] The Applicant said that “I’ve always been of the view that, you know, health it not something that I should be discussing with other people.” 119 He said he was not the sort of person to “tell everybody” his problems and that he tries to deal with them as best he can himself.120 He said he is reluctant “to discuss personal issues.”121 The Applicant was offered EAP counselling throughout the PIP process, but said that he decided not to make use of it during 2016 or 2017 because he wasn’t in the right frame of mind to use it.122 Despite this, the Applicant says Jemena should have recognised this and instructed him to take leave and deferred the PIPs.
[117] The Applicant said, in his closing submissions, that he was not working to his full potential and needed a break and time to recuperate. 123 During the hearing, the Applicant was asked whether he had ever asked the union for assistance in negotiating a break from work, or some time off, or sick leave. The Applicant conceded that he had not and said that it was his own expectation that he would achieve the PIP targets and take leave after that had occurred.124 The Applicant accepted that nobody from Jemena discouraged him from taking any leave or suggested that it would be detrimental to his employment situation.125
[118] Taking into account all of the above matters, I do not accept the Applicant’s submission that Jemena should have recognised that he was suffering from personal/health issues and either directed him to take leave or postponed the PIP process. I have formed this view for the following reasons:
(a) The Applicant was best placed to inform Jemena about his personal/health issues during the employment. For his own reasons, the Applicant chose not to share this information with Jemena in any detail.
(b) The Applicant did not say to Mr Hemsley or Ms Salter that his work performance was being affected by his personal/health issues during the performance management process, despite the numerous meetings held with him and the opportunities afforded to him to do so.
(c) The Applicant was encouraged to seek medical assistance, if necessary, in the warning letters issued to him. It was also suggested to the Applicant by Mr Hemsley that he take a period of leave.
(d) On his own evidence, the Applicant’s only suggested remedy was to take a period of leave after he had completed the tasks in the PIPs.
(e) During the PIPs, the Applicant did not apply for a period of annual leave. He had 8.7 weeks of accrued annual leave as at the termination date. 126
(f) During 2017, on his own evidence, the Applicant took only 5.5 individual days of personal leave. 127 He provided a medical certificate in respect of 3.5 of them.128 However, the Applicant had 19 weeks of accrued sick leave at the termination date.129 It was clearly open to the Applicant to take time off if he felt that he needed to, but he chose not to exercise this right. This was in the Applicant’s own hands to manage.
(g) The Applicant failed to complete tasks set out in both the September 2015 Spreadsheet and PIP 1, both of which pre-date any investigation and treatment of the Helicobacter Pylori stomach virus.
(h) In relation to PIP 2 and PIP 3, the evidence earlier referred to confirms that the Applicant was up-to-date with the confined number of day-to-day tasks that Mr Hemsley had issued to him in addition to the tasks in the PIP. Furthermore, the Applicant was performing design work, even though it was not a requirement of his role following the restructure. The Applicant therefore was seemingly quite selective about the tasks that he could (or wanted to) perform and those that he could not.
(i) Irrespective of the health issues he says he was confronting, the Applicant contributed to each of the target dates for the completion of each task in the PIPs.
(j) Jemena made reasonable enquiries of the Applicant to discuss with his managers any health or personal issues that were affecting his performance. The Applicant did not engage in this process.
[119] I am satisfied that Jemena made reasonable enquiries of the Applicant to discuss with his managers any health or personal issues that were affecting his performance. The Applicant was unwilling to engage in this process. In all of the circumstances, I do not accept the Applicant’s submission that his managers should have somehow recognised that he was suffering from personal/health issues and required that he take leave or taken some other action to assist him, such as postponing the PIPs. It follows that the Applicant’s personal/health issues, including the fact that he had the Helicobacter Pylori stomach virus during some of this period, does not render the termination of the Applicant’s employment harsh, unjust or unreasonable when assessed against all of the circumstances of this case, together with my finding that there was both a valid reason for the dismissal and a procedurally fair process undertaken.
[120] This weighs against a finding that the dismissal was harsh, unjust or unreasonable.
[121] The Applicant applied for the Project Coordinator position as part of the restructure in late 2016. 130 Mr Hemsley said that the Applicant had the necessary skills to fill the position and was redeployed to it. However, the Applicant contended that Jemena redeployed him to avoid a substantial redundancy payment.131 He said that “management had already decided I wasn’t suitable for the position and their intention was to remove me from the company with least possible payment.”132
[122] There is no evidence before me that would lead me to conclude that Jemena’s intention was to “remove” the Applicant from the company in the manner alleged. In any event, I do not consider this to be a matter that is relevant to my determination as to whether the dismissal on 23 June 2017, nearly eight months after the restructure, was harsh, unjust or unreasonable.
[123] In respect of the 2016 restructure, the Applicant sought leave to recall Mr Hemsley for further cross examination at the commencement of day two of the hearing. He said that he wished to ask Mr Hemsley questions about the Applicant’s pre-restructure position as Customer Projects Officer and the qualifications required to perform that role, compared with the Applicant’s post-restructure position as Project Coordinator. The Respondent opposed this course on the basis that it was not relevant. I declined to grant the Applicant leave to recall Mr Hemsley on the basis that I was not satisfied that the matters the Applicant proposed to raise with Mr Hemsley were relevant to the issues that the Commission needed to determine. 133
[124] In Sexton v Pacific National (ACT) Pty Ltd, 134 Vice President Lawler noted:
“Relatively advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken into consideration whether the termination was harsh, unjust or unreasonable and in applying the principle of a ‘fair go all round’.”
[125] I have taken into account that the Applicant is 59 years old and at the time of his termination, had nearly 19 years’ service, which is a significant period. I have also taken into account Mr Hemsley’s evidence that between in or about 2008 and 2012, Mr Hemsley had regarded the Applicant’s performance as acceptable, noting that the Applicant had handled some larger projects and had managed them quite well, but that Mr Hemsley was of the view that the Applicant had been underperforming for the last three or four years. 135
[126] Further, I have taken into consideration the Applicant’s submission that he may have to sell his house soon if he does not find full time employment in the near future. 136
[127] These matters are to be balanced against the genuine, lengthy and thorough performance improvement process and the extensive opportunities afforded to the Applicant to meet the expectations of his employer and thereby secure his employment. The Applicant had a history of performance based warnings. Jemena’s response must be viewed against the entire backdrop of the Applicant’s performance history, and not in isolation of it. When viewed in such a manner, I do not consider that dismissal for the Applicant’s sustained performance deficiencies was a disproportionate response, even taking into account the Applicant’s period of service, his age, his employment record and his potential economic situation. These additional matters do not weigh so heavily in favour of the Applicant as to render the dismissal in the circumstances, harsh, unjust or unreasonable.
[128] There are no other matters which would lead me to conclude that the termination of employment was harsh, unjust or unreasonable.
Conclusion
[129] Having considered each of the matters specified in s.387 of the Act, I am satisfied the Applicant’s dismissal was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair.
[130] The Application is dismissed. An order will be issued with this decision.
[131] On 29 November 2017, the Applicant sent correspondence to my chambers and to Jemena advising that the Helicobacter Pylori stomach virus appears to be eradicated from his system. Given my findings, it was not necessary for me to consider this material further.
DEPUTY PRESIDENT
Appearances:
A. Demosthenous, Applicant.
R. O’Neill of Counsel with E. Mentiplay for the Respondent.
Hearing details:
2017.
Melbourne:
October 17, 18.
Final written submissions:
Applicant, 2 November 2017
Respondent, 13 November 2017
1 Exhibit AD7, Attachment 1.
2 Exhibit R3 at [4]; Transcript [601]-[602].
3 Exhibit R3 at [12]; Transcript [603], [970].
4 Exhibit R3 at [15].
5 Exhibit R3 at [17]; Exhibit AD6 at [14]; Transcript [971]-[972].
6 Transcript [988]-[989] and [998]-[999]; Exhibit R3 at [19] and Annexure JA-1.
7 Exhibit AD4.
8 Exhibit AD7, Attachment C.
9 Transcript [1090].
10 Transcript [252], [267].
11 Transcript [268].
12 Exhibit AD6 at [23]; Exhibit AD7, Attachment F.
13 Exhibit AD6 at [24].
14 Exhibit AD6 at [27]-[29].
15 Exhibit AD7, Attachment D.
16 Exhibit AD7, Attachment L.
17 Exhibit AD7, Attachment U.
18 Transcript [941]-[944]; Exhibit R2 at [17]; Exhibit R1 at [5] and Annexure AS-1.
19 Exhibit AD7, Attachment 2.
20 Transcript [1185].
21 Exhibit AD7, Attachment E.
22 Exhibit AD6 at [31]; Exhibit AD7, Attachment 3; Transcript PN [1044].
23 Exhibit R2, Annexure JH-2.
24 Transcript [1063]-[1081].
25 Exhibit R1 at [11].
26 Transcript [941]-[944]; Exhibit R1 at [6] and Annexure AS-2.
27 Exhibit AD7, Attachment 3.
28 Exhibit AD7, Attachment R.
29 Transcript [941]-[944]; Exhibit R1 at [13].
30 Exhibit R2 at [47].
31 Exhibit R2 at [48].
32 Transcript [941]-[944]; Exhibit R2 at [32]; Exhibit R1 at [7] and Annexure AS-3.
33 Transcript [941]-[944]; Exhibit R2 at [34].
34 Exhibit AD7, page 2.
35 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14].
36 (1995) 185 CLR 410.
37 Ibid at [465].
38 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at pp.373, 377-378.
39 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at p.373.
40 [2017] FWCFB 3864 at [45].
41 Ibid at [46].
42 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [62], [(2000) 98 IR 137].
43 Transcript PN [307].
44 Transcript [506].
45 Transcript [1097].
46 Applicant’s Closing Submissions dated 10 November 2017 (Applicant’s Closing Submissions) at [16].
47 Transcript [1115]–[1123].
48 Exhibit R2 at [19], [20], and [48]; Transcript [566].
49 Transcript [387]; see also Exhibit AD6 at [38].
50 Transcript [363].
51 Transcript [318] and [374].
52 Transcript [1365]-[1368].
53 Transcript [1016]-[1026].
54 Exhibit AD6 at [32], [35].
55 Exhibit AD6 at [36]; see also the witness statement of Michael Tame dated 7 September 2017 at [4].
56 Exhibit AD6 at [36].
57 Exhibit AD6 at [35].
58 Transcript [1317]-[1325].
59 Exhibit R2 at [43].
60 Exhibit R2 at [44].
61 Transcript [1340]-[1344].
62 Exhibit AD6 at [34]; Applicant’s Closing Submissions at [7].
63 Transcript [268], [303].
64 Transcript [1168].
65 Applicant’s Closing Submissions at [7] and [17]; Exhibit AD7 at [8]; Exhibit AD6 at [45].
66 Exhibit R2 at [54].
67 Transcript [1355].
68 Transcript [1356].
69 Exhibit R1, Annexure AS-1; Transcript [941]-[944].
70 Transcript [274]. .
71 Transcript [270].
72 Transcript [274]-[275].
73 Transcript [326].
74 Exhibit AD6 at [13].
75 Transcript [447].
76 Transcript [181]; Exhibit AD7, Attachment L, p.2.
77 Transcript [1336]-[1337].
78 Exhibit AD7 at [2]; Exhibit AD6 at [30].
79 Applicant’s Closing Submissions at [17].
80 Transcript [317], [967].
81 Transcript [955]-[968].
82 Exhibit R2 at [22(f)].
83 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at pp.150-151.
84 Previsic v Australian Quarantine Inspection Services Print Q3730.
85 (2000) 98 IR 137.
86 (2000) 98 IR 137 at p.151.
87 RMIT v Asher (2010) 194 IR 1, pp.14-15 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at p.7.
88 Exhibit R2 at [32]-[36]; Exhibit R1 at [7].
89 Exhibit AD6 at [5], Attachment 2 and Attachment 3; Transcript [1141], [1144], [1169], [1173], [1187].
90 Transcript [488]-[492].
91 Respondent’s Closing Submissions dated 13 November 2017 at [87], [92].
93 [2017] FWCFB 3864 at [51].
94 Exhibit AD6 at [39], [40]; Applicant’s Closing Submissions at [2], [5], [10].
95 Exhibit AD6 at [41]; Applicant’s Closing Submissions at [9].
96 Exhibit AD7, Attachment P and Attachment Q.
97 Dundovich v P&O Ports PR923358 (AIRCFB, Ross VP, Hamilton DP, Eames C, 8 October 2002) at [79].
98 Ibid.
99 Exhibit AD-4.
100 Transcript [650]-[651].
101 Transcript [315].
102 Applicant’s Closing Submissions at [1].
103 Exhibit AD7 at [4]; Applicant’s Closing Submissions at [9].
104 Transcript [177].
105 Transcript [179].
106 Exhibit R1 at [16]-[17].
107 Exhibit R1 at [15].
108 Transcript [180]-[193].
109 Transcript [203].
110 Exhibit R2 at [23], [51], [60].
111 Transcript [1250]-[1256].
112 Transcript [477]-[480].
113 Exhibit R2 at [23] and Annexure JH-1.
114 Exhibit AD7 at p.6.
115 Transcript [328]. See also [279] and [312]-[314].
116 Transcript [323]-[324].
117 Transcript [325].
118 Transcript [1394]-[1395].
119 Transcript [1263]
120 Transcript [1387].
121 Transcript [60].
122 Transcript [1356]-[1358].
123 Applicant’s Closing Submissions at [10].
124 Exhibit AD7 at p. 5 and Attachment R.
125 Transcript [1267]-[1273].
126 Exhibit AD7 at p.5; Applicant’s Closing Submissions at [24].
127 Exhibit AD7 at p. 6.
128 Exhibit R2, Annexure JH-1.
129 Applicant’s Closing Submissions at [24].
130 Exhibit AD6 at [24]; Transcript [951]-[954].
131 Exhibit AD6 at [48].
132 Applicant’s Closing Submissions at [11], [30].
133 Transcript [908].
134 (2003) unreported, PR931440 at [30].
135 Transcript [570]-[573].
136 Exhibit AD6 at [47]; Applicant’s Closing Submissions at [35].
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