| [2020] FWC 1771 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vuong An
v
Glass Expansion Pty Limited
(U2019/11902)
DEPUTY PRESIDENT HAMILTON |
MELBOURNE, 3 APRIL 2020 |
Application for unfair dismissal remedy.
[1] Mr Vuong An (the applicant) has made an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for un unfair dismissal remedy following his dismissal from employment with payment in lieu of notice with Glass Expansion Pty Limited (GE Pty Limited) (the respondent).
[2] I conducted a Mention/Directions Hearing on 27 February 2019. It was agreed that the matter be conducted by way of determinative conference consistent with s.399. No objections to this method were raised by the parties.
[3] It is agreed that there are no jurisdictional objections to this application and that the only matter in dispute is s.387 of the Act. I find that in relation to the matters set out in s.396 of the Act requiring initial determination as follows:
(a) Mr An’s application was made within the period required by s.394(2);
(b) Mr An was a person protected from unfair dismissal;
(c) the Respondent was not a ‘small business employer’ as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and
(d) the dismissal was not a case of genuine redundancy.
[4] The matter was heard on 12 March 2020 with both parties representing themselves. The following witnesses gave evidence:
• Mr Vuong An (Applicant);
• Ms Susan Sharry (Respondent - HR Manager); and
• Mr David Sultana (Respondent - Research and Development Manager).
[5] GE Pty Limited is a designer and manufacturer of sample introduction components for ICP emission and mass spectrometers. Mr An was employed as a Detail Draftsperson with Glass Expansion Pty Limited (GE Pty Limited) and commenced employment during mid-March of 2019.
[6] According to the respondent, the following is the sequence of events. It should be noted that Mr An disagrees with a number of aspects of this account, and I deal with the differences in evidence later. On 18 September 2019, a Probationary Review Meeting was organised for Mr An. During this meeting, Mr An was advised by Mr Sultana of various areas where he required improvement in his performance. Mr An was provided with a Probationary Review Document which summarised areas needing improvement and performance gaps. 1
[7] According to the respondent, at the conclusion of the Probationary Review Meeting, Mr An enquired as to whether he would receive a pay increase provided for in his employment contract. After subsequent review of the terms of his contract, Ms Susan Sharry (Human Resources Manager) advised Mr An the following day that he would not receive the pay increase until there was an improvement in his performance. Mr An was encouraged to take the Performance Review Document home with him to review.
[8] Subsequent attempts to follow up with Mr An were made during the week commencing 23 September 2019 to obtain his signed Performance Review Form. On 1 and 2 October 2019 Mr Sultana and Ms Sharry met with Mr An and said that they required him to sign the Performance Review Form and enter into a performance review plan. During these meetings, they restated the deficiencies in his performance and the purpose of the Performance Review Form.
[9] On 4 October 2019, a further meeting was held with the aid of an interpreter. At the conclusion of the meeting conducted with the interpreter, Mr An requested that he have a support person present and asked for Mr Graham Jordan (IT Manager) to be his support. Mr An became more distressed throughout this meeting with a break in the meeting being called. Mr Sultana and Ms Sharry met with Ms Carly Brezni (Administration Manager) and Mr Danny Brezni (Director), to consider the situation. It was during these discussions that the respondent decided that as Mr An was refusing to work toward improving his performance and standard of work that his continued employment would be untenable. The meeting was reconvened where Mr An was advised that his employment was to be terminated effective immediately with notice and his entitlements to be paid in lieu.
[10] A summary of the submissions is attached. 2 I have had regard to all submissions and evidence.
[11] Section 387 of the Act provides the criteria I must have regard to when considering whether dismissal of an employee is harsh, unjust, or unreasonable.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the 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.”
[12] In relation to s.387, valid reason, the respondent submits that Mr An ‘categorically refused to work with GE towards improving the standard of his work’. 3 The improvements the respondent considered necessary were mistakes in drawings, failing to use the ERP system, lack of product knowledge, poor communication skills, and reluctance to engage with production staff as needed.4 Mr Sultana gave evidence that these were deficiencies in Mr An’s skills.5 He also gave evidence that while there were some improvements in the applicant’s performance, “he did not improve significantly during his 6 month probation period”.6
[13] Mr Sultana also gave evidence about the contents of meetings they held with Mr An in which these issues were raised with him on 4 April 2019, 2 May 2019, 18 September 2019, 1 October 2019, 4 October 2019. Ms Sharry was present at the 17 September 2019 meeting, 18 September 2019, 1 October 2019, and 4 October 2019 meeting. Their evidence is largely consistent but not identical. It is not necessary to summarise in detail the content of each meeting. However, on their evidence the above problems with Mr An’s performance were raised with him, and he refused to improve his performance, apparently believing that his performance was not deficient in the way described by the employer. According to their records of meeting, he said for example on 30 September that his work was better than others, 7 said words to similar effect again on 1 October 2019 and said “I am doing my job”,8 said on 4 October 2019 that there was nothing wrong with his work performance and he was better than others:
“There is nothing wrong with my work and my performance and I am better than Ken was so I don’t want any more reviews. You should just leave me alone to do my job and no more reviews because you don’t give me package increase. You should stop picking on me. David just goes and gets Suzie and makes me emotional and just picks on me. You just want me to sign the document so I cannot take action against the company!” 9
…
“My work is good enough and this is it” 10
[14] Ms Sharry advised Mr An that the company would not be able to continue with his employment if continued to refuse to engage with the company to improve his performance. Mr An responded:
“My work is good enough and this is it” 11
[15] Mr An said in submissions before me that he did acknowledge the problems raised with him by the employer at the meetings, and said that he agreed to improve. However, Mr An’s witness statements are in large respects at variance with these submissions.
[16] He accuses Ms Sharry of making “untrue statements”, and that all statements attributed to him at the various meetings “are completely a lie”. 12
[17] Mr An pointed to a statement at paragraph 5 of his written submission, to the effect that “I would accept the fourth issue on item #20 not because I was unwilling to engage with other departments or personnel in the company but because I was a subject of bullying and bad treatments”. This is a limited acceptance of performance issues at best.
[18] Mr An seems to reject accusations of lack of product knowledge, and says that even if he lacked this Mr Sultana was not entitled to “use insulting words”. 13 He appears not to accept or to reject Mr Sultana’s witness statement at paragraphs 15-19 for various reasons.14 These paragraphs contain Mr Sultana’s account of the meeting on 2 May at which Mr Sultana allegedly raised the various performance issues with Mr An.
[19] In addition at paragraph 6 Mr An said:
“No one is perfect, same as me, special with a stringent supervisor like him. I accepted his comments and pledge that improvement works output was my compulsory attitude that’s why I was still in the position. The HR manger [sic] was just copied cat whatever critics from him and repeatedly asked me to admittance. I just nodded to get the meeting come to an end.”
[20] He says in relation to a meeting on 19 February, that he was pressed to admit performance problems and he assured her of “improvements outputs are my compulsory attitude from the first day to as long as I work at the company regardless my packaging his increased or not.” 15
[21] He says that he refused to sign the probation report at the 4 October meeting because he was worried he would be terminated. 16 He appears to reject the meeting records, and statements attributed to him.17
[22] Mr An appears to claim that his performance was acceptable and to reject the criticisms made by Mr Sultana. He says that:
“If I was truly under performance, why the production manager had expected me to ‘take my works to the next level’ and to undertake a duties of graphic designer by learning another Autodesk drafting software.” 18
[23] In the same paragraph he compares himself favourably to another employee, and possibly does the same thing in his next paragraph in comparing himself to a “new graduate student employee”. 19
[24] He then rejects the employer claims that his performance was lacking, stating that the issues were not his performance, but the ‘demanding attitude’ of Mr Sultana and “abuse of power” by Ms Sharry:
“The issues was not in my performance, it was a demanding attitude of the production manager and abuse of power from the new HR manager who likes to show off the authority. They just wanted me to sign in the performance review form to use that as a guarantee document to prevent any complaint of salary review, which I refused to do.” 20
[25] Similarly, he accuses the employer of having:
“…found any excuse to replace me. That’s why the production manager had put a great expectation beyond the title of the position and even wanted me to take the ownership including responsibility of my works, denial the co-operate, assistance or supervise from others including him.” 21
[26] Mr An’s evidence appears to be at best that he formally accepted the employer criticisms of his performance and agreed to improve, but that these criticisms were not justified, and were improperly motivated, and he more or less rejects them, or only partly accepts them while blaming others in various respects. At worst the evidence and submissions are contradictory, and highly inconsistent, and a rejection of employer attempts to ask him to improve his performance in certain areas. Mr An’s acceptance of problems with his performance was at best limited and accompanied by very serious accusations of bad faith on the part of the employer that he did not back up in any way. This is, with respect, not a satisfactory response to what seem on their face to be legitimate issues to raise with an employee. It is unfortunately easy in proceedings of this kind to make general accusations of bad behaviour on the part of others, but such accusations should be backed up and explained, or they may be rejected. In this case they were not backed up or demonstrated. In those circumstances it is, with respect, difficult to know what version of Mr An’s evidence to accept, even if I wished to accept his version of events.
[27] In addition, the employer evidence about meetings and issues raised was properly documented, internally consistent, and on its face convincing. I had the opportunity to observe the witnesses giving evidence, and I prefer the evidence of Ms Sharry and Mr Sultana, whose evidence I accept. I find that Mr An did in fact refuse to improve his performance as alleged by the respondent, and that there were performance deficiencies as claimed. I find that there was a valid reason for termination of employment.
[28] In relation to s.387(b) and (c), I find on the basis of the employer evidence that the applicant was notified of the alleged issues in the meetings described above and did in fact in substance respond to refuse to improve his performance, although possibly at best with some limited acknowledgements of problems with his performance.
[29] In relation to s.387(d) it is agreed that the respondent did not refuse to provide a support person, and that he did have such a support person when he requested it, that the reason did not relate to unsatisfactory performance within s.387(e), and that the respondent’s enterprise was relatively large in nature with specialist human resource practitioners, and that accordingly no discount should be made in terms of the conduct of the termination on account of those factors within s.387(f) and (g).
[30] In relation to s.387(h), I take account of all submissions and evidence.
[31] The valid reason is serious in nature. Performance issues were raised with the applicant, and the applicant refused to improve his performance. Having regard to all the factors in s.387, I find that the termination of employment was not harsh, unjust or unreasonable. I dismiss the application. An order is contained in PR718019.
DEPUTY PRESIDENT
1. Mr An submitted the following with respect to his application for relief from unfair dismissal.
2. Mr An submits that he was not advised of the purpose of the meeting on 18 September 2019 and that he had not had any performance reviews previously. 22 It was only when the meeting had commenced that Mr An was notified by Mr Sultana what the purpose of the meeting was for.23
3. Mr An does not agree with the reason of his dismissal as he had been advised by the Production Manager that he had passed his probation period and had the potential to take on additional tasks as well as being tasked with reviewing technical drawings for graduate level employees. 24
4. With respect to concerns raised relating to Mr An’s deficiencies with product knowledge and use of the ERP drawing management system, Mr An submits that he did understand the importance of removing previous drawings on the system. Further, Mr An states that he did possess product knowledge and even if he was deemed not to have sufficient product knowledge, this should not give rise to allow Mr Sultana to use insulting words against him. 25
5. The suggestion that Mr An was not performing is at odds with his duties he was conferred with when assisting graduate staff of GE Pty Limited as well as setting up company templates. 26
6. At all times when Mr An received feedback of a negative nature on his performance and personality, he remained silent. While his command of the English language may be low, Mr An took the view that as long as he understood the tasks required of him and he produced the output required of him, that this would be sufficient. 27
7. Mr An did not communicate with other employees, not because he was unwilling to, but rather on the basis that he was subjected to bullying and ill-treatment within the workplace. 28
8. With respect to the enquiry made to the pay rise increase in the contract of employment on 18 September 2019, Mr An submits he stated that he did not mind that a pay increase was not to be provided to him and that he did not repeat or raise the issue concerning his pay rise in any subsequent meetings with Mr Sultana or Ms Sharry. 29
9. On the interaction with Ms Sharry on 19 September 2019, Mr An submits that he explained that he was not minded to the pay increase and that he was focussed on continuously improving his performance. Mr An maintains that Ms Sharry pushed him to admit that he was underperforming. Mr An submits that he calmly prompted Ms Sharry to compare where his performance levels were at in comparison to a retired and current graduate employee so as to assist him concentrate on areas where his performance and output levels were less than satisfactory. Mr An was of the view that by signing the Probationary Review Form it would indicate that he accepted he was underperforming which would limit his ability to lodge a complaint about not receiving a salary increase. 30
10. Where Mr An has been directly quoted in Ms Sharry’s witness statement, Mr An states that he did not make those statements and they are “untrue quotation marks”. 31
11. From 30 September to the date of termination, Mr An submits that he was taken to a meeting room everyday for several hours where Ms Sharry would insist that he must acknowledge his underperformance by signing the Probationary Review Form. Mr An recalls being distressed and feeling that the report may be used against him to legitimise his termination of employment. 32
12. Mr An suggests that his dismissal was pre-planned and that hiring him was the cause of disagreement amongst management, to the extent that it resulted in the then appointed HR Manager leaving. The categorisation of performance issues was merely used as a convenient strategy to dismiss him. 33
1. GE Pty Limited submitted the following with respect to the application for relief from unfair dismissal.
2. Mr Sultana would meet with Mr An approximately every four weeks in a mentoring capacity to assist in his professional development. During these meetings, Mr An was provided with feedback and support. 34
3. A Probationary Review meeting was scheduled with Mr An on 18 September 2019 where he was provided with information about his performance, explanations about areas where he required improvement, and subsequent support mechanisms to assist Mr An with his performance. Mr Sultana explained to Mr An that:
• there were a number of mistakes in his drawings which are then required to be sent back to Mr An for revision and amendment;
• there is often a need to review Mr An’s drawings in great detail which is a timely and counterproductive exercise; and
• there were other areas which required improvement such as failing to use the ERO system, lack of product knowledge, poor communication skills, and a reluctance to engage with production staff. 35
4. At the conclusion of the Probationary Review meeting, Mr An enquired as to whether he would receive a pay increase conferred in his employment contract to which Ms Sharry advised that it would not be provided until there was improvement in his performance. Mr An insisted that he should receive the increase as it was provided for in his contract of employment. Ms Sharry advised that she would review Mr An’s contract. After review of Mr An’s contract of employment, Ms Sharry advised the following day to Mr An that he would not be provided with the pay increase until there was an improvement in his performance. Mr An was provided with a Probationary Review Form with Mr Sultana suggesting to Mr An that he review the document and have further discussion about it the following day. 36
5. Mr Sultana made attempts to follow up with Mr An throughout the following week about when they would receive his signed copy of the Probationary Review Form however Mr An at no time had the document with him and claimed that the document had been left at his home. 37
6. On 1 October 2019, Ms Sharry followed up with Mr An about the Probationary Review Form and his feedback with Mr An replying:
“It is simple, I don’t have any salary package increase given to me, so I don’t expect any more reviews like this. You need to leave me alone and let me do my job and my work is ‘good enough’!” 38
7. Referring to an ex-employee, Ken, Mr An provided further:
“I am much higher standard than Ken and he made lots of mistake and they said he was very very good in his retirement speech. You should look at Ken’s pay and compare e me to Ken and I know I am much better – So why do Reviews with me?” 39
8. Ms Sharry explained to Mr An that Probationary Reviews were being introduced for all staff across GE Pty Limited and that Mr An was not being targeted alone. Mr An replied:
“Why HR come on board here? We have no HR and everything OK. You should go and get other things to do and leave me alone! I am doing me job and I don’t like this scare campaign you have on me!” 40
9. Another meeting was held on 2 October 2019 to reiterate the purpose of the document to Mr An. GE Pty Limited submits that Mr An largely repeated the comments he made on 1 October 2019. Following from this meeting, Ms Sharry advised that she would organise another meeting to occur on 4 October 2019, this time with the aid of an interpreter as there was concern that Mr An may not understand what was being asked of him due to his limited English skills. 41
10. On 4 October 2019 a meeting was conducted with the aid of an interpreting service over the telephone. Ms Sharry explained the details of the performance review process, that it was the position of the company to assist and aid Mr An in his development, and that the pay increase would not be provided as it was not commensurate with Mr An’s current performance levels. Mr An responded:
“I understand everything that is spoken in English but David is a man of authority and he doesn’t like me personally! We didn’t have meetings about me work for improvement, just meetings saying my work was “quite well” but no increase now for me!
I respected that but I shouldn’t have to sign the document for the review because you give me no increase. David is afraid I may get my Contract and take action against the company so you want me to sign the document to stop me taking action against you, that is all.” 42
11. Ms Sharry advised Mr An that signing the Probationary Review Form would not take away his legal rights. 43 The meeting with the aid of the interpreter ceased with Mr An requesting he have a support person present. Mr Grahame Jordan (IT Manager) acted as Mr An’s support person. Ms Sharry reiterated the need for Mr An to improve his performance and for his agreement to be noted on the Performance Review Form. Mr An responded:
“There is nothing wrong with my work and my performance and I am better than Ken was so I don’t want any more reviews. You should just leave me alone to do my job and no more reviews because you don’t give me package increase. You should stop picking on me. David just goes and gets Suzie and makes me emotional and just picks on me. You just want me to sign the document so I cannot take action against the company!” 44
12. Mr An became increasingly distressed throughout the meeting. A break in the meeting was called with Ms Sharry and Mr Sultana liaising with Ms Carly Brezni (Administration Manager). Discussion was had regarding how MR An’s employment could continue where he was refusing to work with the company to improve his performance. When the meeting with Mr An recommenced, Mr An was asked why GE Pty Limited should continue employment him where he was not prepared to improve the standard of his work. Mr An responded:
“My work is good enough and this is it” 45
13. Ms Sharry advised Mr An that the company would not be able to continue with his employment if continued to refuse to engage with the company to improve his performance. Mr An responded:
“My work is good enough and this is it” 46
14. Ms Sharry advised Mr An that the company was unable to continue with the employment relationship as he was not willing to agree to improve and the high level of errors in his work was unacceptable. Mr An was advised that his dismissal would take effect immediately with him being paid one week in lieu of notice. Mr An responded:
“You are only doing this because you want to force me to sign the document because you know I can take action against the company.” 47
15. Mr An was escorted from the premises and provided with a termination of employment letter. 48
Appearances:
Mr Vuong An, Applicant
Ms Susan Sharry, Respondent
Mr David Sultana, Respondent
Ms Carly Brezni, Respondent
Hearing details:
2020.
Melbourne.
12 March.
Printed by authority of the Commonwealth Government Printer
<PR718018>
1 Respondent Document List – Appendix 4.
2 Appendix 1 – Summary of Submissions
3 Respondent Outline of Argument at page 5.
4 Ibid at page 1.
5 Witness Statement of Mr Sultana at [16] – [21].
6 Ibid at [23].
7 Witness Statement of Ms Sharry at [29].
8 Ibid at [37], [39]
9 Exhibit G1 at page 5, Exhibit G2 at [55].
10 Ibid, Exhibit G2 at [59].
11 Exhibit G2 at [61].
12 Exhibit A1 at [2].
13 Ibid.
14 Ibid at [2]-[4].
15 Ibid at [8].
16 Ibid at [4].
17 Ibid at [11].
18 Exhibit A2 at [5(b)].
19 Ibid at [5(c)].
20 Ibid at [5(e)].
21 Ibid at [5(f)].
22 Exhibit A1 at [1].
23 Ibid at [6].
24 Exhibit A2 at [5(b)] and [5(c)].
25 Exhibit A1 at [2] and [4].
26 Ibid at [4].
27 Ibid at [5].
28 Ibid.
29 Ibid at [7].
30 Ibid at [8].
31 Ibid at [11].
32 Ibid.
33 Exhibit A2 at [6(d)].
34 Exhibit G1 at page 1.
35 Ibid, Exhibit G3 at [16] – [20].
36 Ibid at page 2, Exhibit G2 at [24] - [26].
37 Exhibit G1 at page 2, Exhibit G3 at [37].
38 Ibid at page 3, Exhibit G2 at [35].
39 Ibid.
40 Ibid, Exhibit at [39].
41 Audio Recording of Mention (27 February 2020) at 10:28 am.
42 Exhibit G1 at page 3-4, Exhibit G2 at [46] – [50], Exhibit G3 at [41].
43 Witness Statement of Ms Sharry at [51].
44 Exhibit G1 at page 5, Exhibit G2 at [55].
45 Ibid, Exhibit G2 at [59].
46 Exhibit G2 at [621].
47 Ibid at [65].
48 Ibid at 66, Exhibit G3 at [45].