| FWC 2896|
|FAIR WORK COMMISSION|
Fair Work Act 2009
St Michael’s Association
DEPUTY PRESIDENT BARCLAY
HOBART, 4 JUNE 2020
Application for an unfair dismissal remedy.
 This is an Application for an unfair dismissal remedy arising out of the Applicant’s employment being terminated on 20 December 2018.
 At the hearing of the matter neither party was represented by a paid agent.
 The Applicant had been employed for some nine months from 5 March 2018 until 20 December 2018. She was initially employed on probation for the first six months. The probation period was extended for a further three months. The probation period was further extended for a further period of slightly over two weeks to enable the Applicant’s manager (who was then on leave) to particulate in the review of the Applicant’s probation. The extension of the probation period by three months was to enable the Applicant to improve her performance.
 The Applicant’s employment was terminated on the last day of the extended probation period. The termination was effected on the basis that the Applicant was on probation and that therefore the Respondent had a right to terminate the Applicant’s employment on the basis that she had not satisfactorily completed the probation period.
[NP] While I have had regard to all of the evidence it is unnecessary to recite much of it in light of the conclusions I have reached.
Background to the dismissal
 The Applicant was employed as a chef and food safety trainer. As noted she was on probation for the first six months of her employment. She underwent probation review at one, three and six months. At each of the probation reviews some issues were noted with the Applicant’s performance. The Applicant was also entered into a performance improvement plans. Whilst there were three performance plan documents competed each plan was in all material respects identical to the one before. These plans were implemented at around six months in September.
 The performance improvement plans contained a rating as to the Applicant’s performance. The initial plan of 4 September 2018 noted that of 10 criterial the Applicant was only meeting expectations in respect to one. She had partially met expectations in respect to a further 6 and was well below expectations in 3.
 By 15 November 2018 the Applicant was meeting expectations in respect to most of the criteria. As I understand the documentation the Applicant was partially meeting expectations in 3 of the criteria and none were regarded as being below expectations so the Applicant was meeting expectations in respect to 7 of the criteria.
 There was to be a final performance review on 17 December 2018 which did not occur. It can be seen however that there had been improvement during the extended probation period.
 On 19 December 2018 a Probation Review Committee meeting was held at which it was decided not to continue with the employment of the Applicant.
 The Chief Executive Officer of the Respondent Mr Gilpin made a statement and gave evidence. In his witness statement Mr Gilpin noted that the Probation Review Committee took the view that “it was more probable than not” that the Applicant would be unable to demonstrate appropriate levels of efficiency or responsibility in respect to various aspects of her role and on that basis the employment was terminated.
 Mr Gilpin summarised the situation as follows: 1
“Therefore the Probation Committee based on balance of probabilities decided to terminate Natasha Werner's employment, under probation, with St Michaels as Natasha Werner was unable to demonstrate, on an ongoing basis, the full expectations of the role of Chef and Food Safety Trainer, of which I signed and gave the termination letter including notification of payment in lieu of notice.”
 Because of the view I have reached about the outcome of the matter it is unnecessary to go through the particular matters where the Respondent alleges the Applicant was failing. It is enough to note the significant improvement to which I have referred to above over the course of the Performance Improvement Plan
The Parties Contentions
 In summary the Applicant asserts that she was satisfactorily fulfilling the requirements of her position and that there was no valid reason to terminate her employment.
 The Respondent submits that it was entitled to terminate the Applicant’s employment as she had not demonstrated an ability to fulfil the full requirements of the job and, that as the Applicant was still under probation is was appropriate to proceed to terminate the employment.
 The Respondent took advice from an industrial advocate regarding the Applicant’s employment and the manner in which it was appropriate to terminate her employment. It seems likely the advice was given on the basis that the Applicant was not protected from unfair dismissal because of the probation period she was under. Unfortunately, that advice was wrong.
 Section 382 of the Fair Work Act 2009 (the Act) defines when a person is protected from unfair dismissal. It provides: 2
“When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
 A modern award and an enterprise agreement covered the Applicant’s employment. Accordingly, s.328(b) is satisfied. Additionally, the length of the Applicant’s employment was slightly more than nine months. Accordingly, she was employed for the minimum employment period within the meaning of s.381(a). The Applicant was therefore protected from unfair dismissal.
 The Respondent did not appreciate that. The advice it had received is that because the Applicant was on probation, her employment could be terminated if she was not meeting the requirements of the role. Mr Gilpin put it this way: 3
“And given the information being probation, the probation is just to give the final response, final answer, is you didn't meet the inherent requirements of the position, and to forward the termination letter.”
 It can be seen that the Respondent though it had an unfettered right to terminate the Applicant’s employment if she had not satisfactorily (in the Respondents eyes) completed probation. As indicated that was wrong.
 As a result of that advice the Respondent has failed to comply with much of s.387 of the Act. In light of the fact the Respondent did not have regard to the matters referred to in s.287 I will only refer to those matters of most significance for this decision.
 The Respondent submits there was a valid reason for termination which was that the Applicant was not fulfilling the full expectations of the role. In terms of capacity or conduct the Respondent points to the fact that the Applicant was on a performance improvement plan and that by the time of the Probation Review Committee meeting the day before the dismissal the Applicant was not properly fulfilling her role.
 It is important to note that the Probation Review Committee meeting at the six months stage was minded to terminate the Applicant’s employment. However the Applicant’s direct manager Ms Campbell was of the following opinion regarding the Applicant’s capacity at that time: 4
“So given that the vote was three managers had voted to terminate under probation because of information that it had at its hand at that particular time, you voted to keep Natasha on. Why did you do that?---Because I saw within Tash's role that she was doing and what she had learnt up until then, we had momentum moving on forward in that kitchen with the 12 programs I think it was that she had developed in the end, the rapport with the staff, the rapport with the clients, and I thought by terminating her we were setting back all our programs, because we had to find someone else to fill in those areas as well, and Natasha had documented clearly what she was doing. You asked her to set up a folder within S drive under kitchen ops. She did that. She monitored that and she maintained that while she was there. She showed record of how much money was coming in through her programs and also how much money was being spent through the donation that was given to our in-home tenancy dinner, and there's a lot of time in that - - -
Yes, and (indistinct), as you said, there's continuous improvements?--- … and I believe that because she spent so much time developing these things and maintaining them, and then under the PIP trying to improve even more, which she was improving from month-to-month, and had shown that, that I truly believed that, yes, she shouldn't be terminated.”
 It is then to be noted that, by the penultimate review of the Applicant’s performance in November 2018, as I have noted above, she was meeting expectations in most of the areas of the employment. It is interesting to note that one of the areas the Applicant was not meeting expectations was in respect to completing some training. However, that training was scheduled to be completed after the date or termination.
 Ms Campbell was of the opinion, during the time of the performance improvement plan, that whilst there was some areas still to improve the Applicant was doing a good job.
 Ms Loosmore also gave evidence. She was the employee engagement manager of the Respondent. She had the unenviable task of becoming involved with the matter late. However, she had formed the opinion that it was likely that the Applicant’s employment would be extended. When she gave evidence however she indicated that she supported the managers at the Probation Review Meeting in December that the Applicant’s employment should be terminated. I asked her about that, and she said: 5
“So what did they tell you?---Okay, so a few things were told. There was - just getting my timing right, because my memory is not that great, for that particular day. It was a quick meeting. The round-the-table discussion was about the process. There was the mention that an external consultant had been spoken to, so that information was brought to the table. My concerns on the day when bringing up to speed was more along the reputational aspect of everything I guess, and - it was just the comments, I guess, that went around the table. Mr Campbell was supportive. Mr Gower was supportive. I had some hesitation, so then I was supportive, and then - so that was it. That was the up to speed.
But I want to know why - I want to know what you were told that changed your opinion?---It was more of an informational - those aspects. There was no new information brought on that day.
So what made you change your mind?---I supported my managers - supportive of my managers.
So you didn't necessarily change your mind; it's just that - - -?---I was supportive, yes.”
 It may be seen that two managers (one of whom was a direct report of the Applicant’s) were of the opinion that the Applicant’s performance was sufficient to justify continuing with her employment. It seems clear that Ms Loosmore changed her mind because she was supporting her managers. No new information was given to her to cause her to change her mind otherwise.
 I conclude that there is nothing in the capacity of the Applicant which would have justified her dismissal from employment. She had improved significantly. There were only a few matters left to improve on. One manager felt she was doing well and improving and the other thought that the Applicant’s employment would be continued. There are no issues of conduct separate to the issues of capacity which might have justified dismissal.
 The difficulty facing the Respondent is that it essentially reversed the question for consideration. Rather than considering whether the Applicant’s capacity was so lacking that it justified dismissal, it considered whether the capacity was sufficient to keep her employment. The Respondent did not make findings of an absence of capacity which would justify termination. The finding at the Probation Review Committee was she did not fulfil the full expectations of the role, and even then the finding was that it was more probably than not, not an affirmative finding that there was in fact a failure in respect to capacity.
 I find there was no valid reason for the dismissal.
 The Applicant was told that her employment was not going to continue past the extended probation period at the meeting on 20 December 2018. The reason given was that the Applicant did not meet the inherent requirements of the position 6. She was not told in what way her performance was wanting. She was not told what tasks of her job she was failing in.
 I find that the Applicant was not notified of the reason for the dismissal. Rather she was given the broad explanation of not meeting inherent requirements.
 The Applicant was not given an opportunity to respond to the reason relating to capacity. While it is correct that she was subject to a performance improvement plan the Applicant was never told that her performance was so lacking that her employment might be terminated.
 In any event the Applicant was only told that her alleged lack of capacity was leading to termination on the day of the termination. The Applicant was given no opportunity to respond.
 The Applicant was not advised that she may have a support person at the 20 December termination meeting. She did not have a support person with her.
 The evidence is that the Applicant was expecting to have her job confirmed and so the question of support person did not arise.
 Whilst no support person was present there was no unreasonable refusal to allow the applicant to have a support person. The absence o f a support person is of little significance to the matter.
 The Applicant was not given any prior warnings about her performance and that it could lead to termination. It is correct that she was undergoing a performance improvement process. It is also the case that this was during a probation period. However, the Applicant was not told that her slow (but clear) improvement was not sufficient and that her job could be or was in jeopardy. Indeed, Ms Loosmore was of the opinion that the chances for the applicant keeping her job were good. The applicant was not the subject of any relevant warnings.
 I do not need to consider the other criteria in s.387 of the Act.
 The Applicant’s employment was unfairly terminated. There was no valid reason for the dismissal and the Applicant was not adequately notified of the reasons for dismissal. She was given no opportunity to respond. She had not been subject to any prior warnings. It is clear that this arose because the Respondent acted on incorrect advice regarding the effect of the extended probation period. Nevertheless, the termination was unfair and the Applicant is entitled to a remedy.
 I have concluded that reinstatement is, in the circumstances of this case inappropriate. The period of time that the Applicant was employed was very short. During that time, she was performance managed. It is common ground amongst the witnesses employed by Respondent (including those called by the Applicant) that there were ongoing issues with performance.
 The Respondent still had issues with the Applicant’s capacity. It was and remained concerned about the Applicant’s capacity. I am conscious that an order for reinstatement could well set the Applicant up to fail. The Respondent indicated that ongoing performance management was likely. There is a realistic chance that reinstatement will lead to performance management and further issues leading to a further termination on the basis of capacity in the short term.
 The Respondent submits it has lost trust and confidence in the Applicant. It points to alleged misrepresentations during the recruitment process to the effect that the Applicant was able to do the job, when it says it was clear she could not. I accept that there are issues with trust and confidence. They are relevant particularly to the likelihood of ongoing performance management and consequent issues with the employment relationship if reinstatement was to occur.
 Accordingly, I determine that reinstatement is inappropriate. I should add that it would be fair to say that the Applicant also had reservations about returning to work. Some of that uncertainty was because her manager was no longer employed by the Respondent. This caused concerns about how the Applicant might be treated if she was to return to work.
 However, I determine that the Applicant is entitled to compensation.
 The Applicant earned $1098.58 per week gross from her employment. By the time of the hearing the Applicant had been able to obtain some work. She obtained about 6 weeks work and earned $6,337.95 from that work. The Applicant said that she obtained this work shortly after the dismissal during a period of high demand but had been unable to obtain any other employment.
 The total which could be awarded (namely six months wages) to the Applicant is $26,365.92.
 Had the Applicant not been dismissed when she was, she would have obviously continued to work. It seems likely she would have continued to be subject to performance management as there were issues still to be finalised. It may well be that her employment would have come to an end within a few weeks or months as a result of ongoing performance management in any event. I find that this would have been more likely to occur that not. I have noted that the Applicant was somewhat uncertain about returning to work. Some of that uncertainty is because her manager was no longer employed by the Respondent. This caused concerns about how the Applicant might be treated if she was to return to work.
 In my view, having regard to all the circumstances of the matter, the fact the Applicant was only employed for a very short time and was subject to probation (albeit that she was protected from unfair dismissal) and performance management that a fair award of compensation is eight weeks. I take account of the fact the Applicant was paid one week’s pay in lieu of notice.
 I order that the Respondent pay the Applicant the sum of $8,788.64 within 14 days of the date of this decision.
N Werner the Applicant
J Gilpin for the Respondent
Printed by authority of the Commonwealth Government Printer
1 Mr Gilpin Witness Statement Page 8 paragraph 13.
2 Section 382 of the Fair Work Act 2009 (the Act).
3 Transcript PN 1227.
4 Transcript PN 677 – 678.
5 Transcript PN 934 – 937.
6 Transcript PN 1115 -1117