These passages from an unfair dismissal decision of the Fair Work Commission reveal the process which is undertaken by the Commission when determining whether there was a valid reason for dismissal based upon capacity or conduct in the context of performance.
Unfair dismissal
[65] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable (s 385(b)). The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
…. 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 personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.109
[66] In considering whether a dismissal is unfair, the Commission must take into account the matters specified in s 387. For ease of reading, I have used those criteria in s 387 to frame my consideration of the matter. However, before doing so, I observe that s 387 contemplates the Commission will undertake an overall assessment as to the nature of the dismissal. In so doing, the criteria in s 387 must, where relevant, be weighed up in totality.
4.1 Valid reason for the dismissal related to capacity or conduct (including its effect on the safety and welfare of other employees)
[67] While the Commission is obliged to take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct,110 this provision should not be construed as requiring there to be a valid reason. Although, whether there is or not will have significant bearing on the decision reached.
[68] To explain further, ‘valid’ in this context generally refers to whether there was a sound, defensible or well-founded reason for the dismissal.111 The provisions must be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.112
[69] The primary reason for dismissal was the Applicant’s under performance, hence falling under the term ‘capacity’. ‘Capacity’ is understood to be the employee’s ability to do the work she or he was employed to do. The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.113
[70] In the context of dismissal related to the conduct of an employee, it is well established that the Commission must make a finding as to whether the conduct in question occurred. So much is clear from the decision of the Full Court of the Federal Court in Edwards v Giudice,114 and numerous subsequent decisions of the Full Bench of the Commission.115 The question is whether the conduct took place, and the Commission determines the answer based on the evidence in the proceedings before it. The test is not whether the employer reasonably believed that the conduct occurred.
[71] Similarly, in circumstances where underperformance is the reason relied upon to justify a valid reason for dismissal, the Commission must make findings as to whether the underperformance occurred. It follows that the Applicant’s performance needs to be objectively assessed against his contractual obligations as a whole and considered in the context of surrounding circumstances applicable at the time of relevant performance failures.
[72] The role contractually required of the Applicant was that of RSM. Mr Daniels who had been with the Respondent business since 2011 in various roles, including that of RSM for the North-West and Northern suburbs of Perth for some nine years, explained that the role of RSM was fundamentally a sales role. In this case the product subject to sale was VCE and SDLG machinery.
[73] Mr Daniels presented at hearing as an experienced sales representative who possessed a comprehensive knowledge of the role of RSM. In light of his experience in a role similarly occupied by the Applicant, I considered him well positioned to speak to the role’s requirements. At paragraphs [46] to [48] of this Decision, I have detailed that which Mr Daniels described by way of duties for the RSM role and in addition, the KPIs.
[74] At hearing, the Applicant confirmed the following in respect of the KPIs for his position:
- a) in July 2022, Mr Martin had sent an email containing a sale planning quarter – with targets, the targets included 50 meaningful communications of which 30 were to be FtF;116
- b) in February 2023, the Applicant’s performance improvement plan document set targets of 11 quotes and 60 meaningful communications, with 36 of those communications being FtF in the first period;117
- c) in February 2023, the Applicant’s performance improvement plan document set targets of 11 quotes and then 80 meaningful communications, with 48 of those communications being FtF;118
- d) in an email to the Applicant dated 3 October 2024, sales expectations were outlined as 100 monthly contacts, 60 FtF, less than 25% uncontacted customer
(rolling 6 months) and the same for uncontacted shire councils;119 and
- e) in a letter of 6 February 2024, expectations were set for the Applicant up until 26 February 2024, as 48 FTF, made and issued 12 quotes to non-key clients, evidence of working toward achieving orders for February 2024 from non-key account clients and a reduction in the uncontacted customer list through contacting customers.120
[75] Regarding the expectations as outlined in the letter of 6 February 2024, it was noted:
…The evidence we are seeking includes documented feedback from customers on quotes and tenders, and you have held genuine face to face sales meetings with clients…121
[76] Having established that the Applicant was aware of the KPIs for his position, it is worth noting that Mr Leaver gave evidence that when the Respondent assesses performance, it takes an overall view of it.122 Mr Leaver clarified that the Respondent did not routinely discipline or call someone out for missing one of the targets, it was when the targets (usually more than one) were materially under the expectations and the level of sales did not match the requirements.123
[77] There is no dispute between the parties that for a period in early to mid-2023 the Applicant was placed on a PIP. The PIP was initiated after Mr Martin had identified in February
2023, that the Applicant’s year on year quotes dropped from 136 quotes to 87, whereas other RSMs stayed consistent year on year in the number of quotes produced.124 Further, the Applicant had the highest number of uncontacted customers.125 The Applicant disagreed with
Mr Martin’s appraisal of his figures against KPIs.126 It is observed that the document titled
‘Sales Planning Quarter 1 22/23 Sales KPIs’, a document tendered into evidence by the Applicant, indicated that with the exception of Mr Shugar (his line manager at the time), the Applicant had the highest number of customers without ‘Comms” over the preceding six month period.
[78] Briefly stated, the Applicant considered the KPIs in the PIP unreasonable. In contrast, Mr Martin characterised the PIP as a ‘no fail performance plan’.127 Having considered the evidence provided and observing that the KPIs in the PIP were staged, such that there was an incremental increase in KPIs on a monthly basis, I do not consider that the PIP KPIs were unreasonable. As observed, included in the Applicant’s documents was a document titled ‘Sales Planning Quarter 1 22/23 Sales KPIs’.128 That same document sets out a sales KPI of 50 meaningful communications, with 30 of those communications being FtF and 15 to 20 quotes a month.129 The Applicant’s KPI for the first month of the PIP sought to increase meaningful communications by 10 and FtF by six. Whilst the Applicant claims this to be ‘much higher’, I do not agree. Thereafter, FtF were to increase by 12 a month to ultimately reach the target of 60 FtF.
[79] Not long after the introduction of the PIP, the Applicant made a workplace bullying complaint to the HR Department of the Respondent and Mr Martin’s involvement in the Applicant’s performance management subsided, with Mr Shugar taking the lead. The Applicant conceded that in April 2023, he fell short of the targets in the PIP.
[80] Ultimately, the PIP was closed out in June 2023, albeit there was disagreement between the parties as to whether the PIP had been successfully achieved.130 The final PIP meeting was held on 7 June 2023 and by this stage the Applicant held the view that his quote numbers were good, his uncontacted customer list was extremely low (good), but he had fallen short of the excessively high FtF.131 Mr Martin said that the Applicant’s performance was still below the expectations as outlined in the PIP132 and his performance did not really improve.133
[81] Notwithstanding Mr Martin’s view of the Applicant’s performance at this time, there was a hiatus in Mr Martin’s management of the Applicant’s performance in light of the
Applicant’s allegations of workplace bullying toward him. Whilst the Respondent found that the workplace bullying allegations were not substantiated, it is evident that a palpable level of discontent existed between the Applicant and Mr Martin. That discontent between the two was not overlooked by the Respondent, the Respondent having held a mediation for the two in September 2023. Whilst Mr Martin held the view that post mediation his relationship with the Applicant improved,134 it is not apparent that the Applicant shared that perspective.
[82] With the workplace bullying investigation closed, Mr Martin resumed the performance management of the Applicant. It is evident that Mr Martin’s frustration with the Applicant emanated from the Applicant’s reticence to engage in FtF and meet quote requirements.
Mr Martin stated that after reiterating to the Applicant the expectations of the Respondent and KPIs, the Applicant did that for exactly one day (get out in front of customers).135
[83] The Applicant was invited to attend a meeting with Mr Martin, Mr Brindle and
Ms Duncan-Griffiths on 2 November 2023,136 for the purpose of discussing the Applicant’s performance including: (a) ongoing underperformance; (b) failure to follow reasonable and lawful instructions; (c) poor behaviour; and (d) failure to foster an effective working relationship with his GM.137 On or around this time, the Applicant purports that a KPI meeting had occurred, where RSMs had to read out their KPI results and out of all of the RSMs he had the highest FtF at 31, and highest number of orders with 12 orders recorded.138
[84] The meeting planned for 2 November 2023 eventually took place on 20 November 2023. Whilst the Respondent refers to having discussed with the Applicant, amongst other factors, a continued lack of FtF calls and delivering quotes, there is little by the way of contemporaneous documentary evidence to support the conclusion regarding FtF count and quote delivery, and similarly, the Applicant brings no documentary evidence to support his assertion of having had the highest FtF with 31, and the highest number of orders. However, what I would say is that whilst the Applicant had 31 FtF that clearly fell remarkably short of the KPI for FtF at that time.
[85] A warning letter was issued to the Applicant on 30 November 2023.139 It detailed, amongst other things an inability to accept feedback in relation to the Applicant’s performance from his leaders and take accountability for his actions and performance and not tracking to meet sales targets. A third issue raised was resolved with the Respondent accepting the Applicant’s explanation concerning the issue – an appropriate concession in the circumstances.
[86] The warning letter further detailed, that while the Respondent recognised that the Applicant had secured orders in October, the Applicant had not taken proactive steps as per the sales targets for FtF or to improve his sale by providing quotes.140 While appreciative that the Applicant holds the view that the meeting on 20 November 2023, which ultimately culminated in a warning letter being issued, was riddled with false accusations, uneducated opinions, hypocritical comments and vague statements, I am unpersuaded that this was the case notwithstanding the Respondent’s failure to adduce contemporaneous data on FtF and quotes, as detailed. As such, I consider that the warning letter of 30 November 2023 was a legitimate appraisal of the Applicant’s performance at that time.
[87] For the December and January 2024 period, Mr Martin made the following observations based on materials said to have been extracted from Synergy (the Respondent database):
- a) December 2023 weekly call report showed eight quotes and 37 FtF meetings some of which were double ups (as there were two people on the same site having separate entries); and
- b) January 2024 showed 13 quotes and 11 FtF.141
[88] However, Mr Daniels reports that in January 2024, the Applicant completed 19 FtF visits, one quote, one order and started five workflows (meaning that the Applicant had not progressed the workflows through to quotation stage, given he only completed one quote for the month).142 Mr Daniels’ evidence aligns with Respondent document R15 (DHB pages 290291) and as such it is his evidence on which I rely.
[89] In closing submissions, the Representative for the Applicant made some salient points about the December 2023 and January 2024 performance period. The Representative observing there was a final warning given to the Applicant on 30 November 2023, and then the Applicant went on annual leave on 22 December 2023, returning to work on 15 January 2024, and the next event was a disciplinary meeting on 1 February of 2024, which meant that in the new year there was only two weeks of work available for review of the Applicant’s performance.
[90] Further, the Applicant cavils about the figures relied upon by Mr Martin for KPIs in the December and January period. The Applicant states that he expressed in the disciplinary meeting on 1 February 2024 to Mr Martin and Ms Duncan-Griffiths, that since the first written warning at the end of November his performance had improved by 200 percent.143 It is somewhat unclear on what basis the Applicant arrived at that figure when one considers the documentation filed.
[91] In addition, the Applicant appeared to have explained away any performance issues by reference to having taken the aforementioned leave and that on his return he attended nine meetings/presentations that had been organised for him within the next 10 working days.144 A majority of which had been set for times in the middle of the day,145 hence rendering it difficult to meet with customers.
[92] However, concerning the last two weeks of January 2024, whilst the Applicant spoke to the meetings and presentations that consumed his time, in paragraphs [61] to [64] of his first witness statement, it is evident that the Applicant was not absent time to attend to other activities, such as gently reminding Mr Martin on a daily basis to gather parts for the Applicant to take to a customer.146 Whilst the evaluation period of the Applicant’s performance was shortened by the leave he had taken and in the latter part of January 2024 he was engaged in training activities, I am unpersuaded that these factors negated the issues with his performance as reported by the Respondent. Mr Martin gives evidence that in providing the KPI figures for December 2023 and January 2024, he had taken into account the short months (presumedly the Christmas break and the Applicant taking leave).147 It does not strike me that the timeframe allocated for improved performance, when considered against the backdrop of concerns the Respondent had held for some time, was unreasonable.
[93] At hearing, Mr Martin was questioned in cross examination why it was necessary to have the disciplinary meeting in February 2024 (the final written warning arising from that meeting), to which Mr Martin, in my view, provided plausible explanation:
Yes?—The journey had been on for a considerable amount of time with working with Ben through Keith, through Colin, with myself involved, then through James, and it just got to a point where we just needed to see some improvement.
And isn’t it the case you just needed to see something to get rid of him?—No, that’s not the case. All the time that I was working with Ben through Keith, through Colin and James was for Ben to succeed. The performance plan was reduced from our actual KPI numbers as a no fail performance plan. Myself and Keith spent much time with Ben. We had weekly meetings with Ben during the performance plan so that he could have one on one time with either me or Keith, or both of us to review the week, to ask for assistance that was never taken up – by myself, sorry, I’m not sure on Keith.148
[94] The question asked of Mr Martin that the Respondent just ‘needed to see something to get rid of him?’ is perhaps unsurprising in the circumstances. The Applicant led evidence from his former manager, Mr Brindle, who had expressed in his witness statement opinions such as:
…this did not last very long, and it became clear to me that the objective of the business through the GM was to manage Ben out of the company.
…
As his immediate manager during the period of my employment I did not consider that Ben was underperforming when compared to the rest of the team, and not in my view deserving of the disciplinary meetings that he was forced into.
[95] Mr Brindle was not required for cross examination, the Respondent submitting that much of what was said by Mr Brindle was opinion.149 I agree with the submission and as such afford no weight in what Mr Brindle said in this respect. Further, I observe that prior to the conclusion of his probationary period, Mr Brindle’s employment ended.
[96] Whilst cognisant that the written warning of 30 November 2023 detailed an ‘Action Plan’ whereby Mr Brindle and Mr Martin would conduct review meetings with the Applicant on 31 January 2024, 29 February 2024 and 29 March 2024, the setting of such review meeting times did not preclude the Respondent from taking disciplinary action prior to those aforementioned dates. The written warning detailed:
Any of the following may result in further disciplinary action that may include termination of your employment:
- Failure to comply with elements of this warning;
- A further breach relating to any of the elements of this warning; and
- Any other performance concerns which are considered to be sufficiently serious to warrant a Final Warning or termination of your employment.150
[97] On 5 February 2024, the Applicant attended a meeting that had been organised to deliver and go through the second and final written warning.151 The warning identified, amongst other performance issues, FtF targets having not been achieved and the Applicant placing customers inactive in Synergy when six were later confirmed as active.152 Further content of the final written warning dated 6 February 2024, is transcribed at paragraph [40]. Whilst at paragraph
[69] of his first witness statement the Applicant said he entered the meeting with hard evidence to debunk the claims in the warning, his witness statement at paragraph [69] attaches no evidence to that extent.
[98] At issue in the final written warning, amongst other issues, was the Applicant’s late delivery of the ‘Territory Plan’, the warning letter noted that as an RSM it was a requirement of the Applicant’s job for the Applicant to be able to develop and execute a Territory Plan. Having considered the evidence provided, I prefer Mr Daniels’ version of what unfolded such that on the day the Territory Coverage Plan was due, the Applicant asked him what was required for the Call Cycle Report and that he had not made or used a Territory Plan or Call Cycle Plan before.153 Whilst the Applicant appeared to have been provided with time to prepare the Plan and Report (by 9 February 2024) and Mr Daniels noted that the Territory Plan was adequate, the Applicant did not deliver the work on time in respect of the Call Cycle Report.
[99] The Applicant was issued with a final written warning dated 6 February 2024.154 The final written warning amounted to three pages of comprehensive feedback, which included, amongst other details:
You continue to fall significantly behind on your sales targets. We advised that, based on your Synergy data, you are not delivering an average of one FtF client visit per day, when the requirement is 60 visits per month (which is approximately 2-3 visits per day). We advised that two customers enquired about whether you were still employed by CJD Equipment and who their appointed Regional Sales Manager was. We also advised you that your Synergy data entry is lacking substance, where some days appear as though you have not had any sales activity at all. We advised that your Synergy entries sometimes exaggerate your customer interactions, where you make several unnecessary entries for one client interaction.
You replied that you believe your sales activity has improved, but you couldn’t achieve the targets due to the holiday season. You also advised that your sales activity was low because of the office work requirements. You advised that your customers were mistaken and that they were aware of who their representative was.
We confirmed that the sales targets and the expectations to complete office-based duties are the same for all sales employees. We confirmed that we had taken the holiday season into consideration of our analysis of your performance, and you were still falling behind. We also advised that, according to your Synergy entries, your client visits seem to be largely unplanned. You have provided us with your permission to reference our vehicle tracker to verify your client visits and the length of time you spend at client premises.155
[100] The final written warning concluded by referring to a review date of the Applicant’s performance on 26 February 2024.156 It was stated that the Respondent expected the Applicant to demonstrate the following:
- a) 48 FtF client visits;
- b) made and issued at least 12 quotes to non-key accounts clients;
- c) evidence of working toward achieving orders for February 2024 from non-key account clients…; and
- d) reducing uncontacted customers list, through contacting customers.
[101] An assessment of valid reason must be made in context. One such contextual matter is that the Applicant had worked in the position of RSM for some three years and had, for at least the first year, performed satisfactorily. Further, those that were assessing the Applicant’s performance were seasoned sales professionals who were familiar with the Respondent business and the performance of the other RSMs on the team. Mr Martin appeared to have taken little issue with the Applicant’s performance in the first year of the Applicant’s work with the Respondent. It was not until Mr Martin observed a decline in the Applicant’s sales data that the Applicant was more actively managed in that respect.
[102] The final written warning outlined that that the Respondent had offered training and had identified that there were free training resources available on the internet to assist with developing the Applicant’s computing skills. It further outlined that the Applicant had needed time with his manager – and to that extent the Applicant was encouraged to book time with his manager. However, it is difficult to understand why such training was necessary in circumstances where previously the Applicant fulfilled the requirements of his role, and it is not apparent that during the last 12 months of his employment his role had fundamentally changed. To the extent that additional computer skills training was not provided from the date of the final written warning to disciplinary meeting on 13 March 2024, I consider nothing turns on this.
[103] It follows from my preceding observations and reasoning that I find the final written warning was bona fides, such that it accurately depicted the performance concerns plaguing the Applicant.
[104] On 13 March 2024, a disciplinary meeting was held with the Applicant to discuss his performance in the preceding month. From Mr Martin’s notes it is apparent that Mr Martin more likely than not relayed to the Applicant that for the review period of 1 to 26 February 2024, the Applicant completed: 55 FtF visits, 10 quotes and four orders and that while the Applicant’s statistics demonstrated that he was tracking to meet his targets, the Respondent’s concern was about the quality of his work.
[105] Mr Leaver said that in preparation for the ‘review meeting’ (presumedly the meeting on 13 March 2024) he had asked Mr Daniels to pull data from Synergy, the vehicle tracker and to check the data.157 At hearing, Mr Leaver clarified the information collated by Mr Daniels had been compiled into a spreadsheet marked as Exhibit R2/Attachment 14 (the Spreadsheet). Mr Leaver explained that the Respondent’s Sales Assistant Manager extracted the data from the Applicant’s weekly reports and the CRM system that profiles the visits (emails, phone calls and site visits) and that was cross-referenced with vehicle information from the vehicle tracking system provided by either Mr Daniels of Mr Kevin Jones.158
[106] In addition, Mr Leaver asked Mr Daniels to complete spot checks on customers to confirm the Applicant had visited the customer as recorded.159 Mr Leaver said that he discussed the Spreadsheet with Mr Martin and Ms Duncan-Griffiths.160 Having reviewed the Spreadsheet, Mr Leaver arrived at the following position as provided in his witness statement:
- a) some of the data was clearly incorrect, as the Applicant had recorded visiting one country town, when the car was in another and the Applicant had recorded a site visit, when the car was only there for two minutes;
- b) it had always been that communications were to be meaningful and leaving a voicemail or attending a site for two minutes is not a meaningful site visits – site visits are planned in advance, confirmed availability and going in with a plan about what will be discussed;
- c) some of the customers contacted by Mr Daniels indicated that the customer had not seen the Applicant on the day that the Applicant had purported conducting a site visit;
- d) the data collected showed Mr Leaver that the data entry was not genuine or in good faith, but simply entries to achieve a target, which was unacceptable;161 and
- e) the Applicant had not met the quote targets, specifically in respect of new customers.162
[107] At hearing, Mr Leaver elaborated on his concerns regarding the Applicant’s performance in the February period, highlighting in respect of the data in the Spreadsheet:
- a) ‘on the 15/2 – you know there’s an input there for the Shire of Wickepin which clearly wasn’t the case because Ben hadn’t left the office that day’;163
- b) ‘the numbers on the surface starting to actually reflect an improvement in activity. But when you dig a little bit deeper into it some of it was a little bit misleading in my mind’;164
- c) whilst the numbers were getting up there in terms of total calls and visits … ‘when you started to look at the quality of them which is what we wanted to actually get to …:
…So if you move to day two of the 6/2 there was some cold calls in there. What we were starting to find there was some really short sales calls that were occurring and the cold calls. And we’re talking four minutes, six minutes. It takes you – you know – more than that to sort of walk, park the car, shake your car off, grab the gear that you need to walk into the customer with, introduce yourself and have a conversation. So that started to concern me a little bit.165
So we dug a little bit deeper. On the 7/2 there was the claim of a visit to Gino Grannich. That wasn’t the case because Ben was obviously in the office all day, roll forward one day and there was a couple of sales calls in there that were accurate. Gino Grannich was in there again and had a good look at the notes that had been put in there that that business was actually no longer active and was now owned by somebody else. But there was a couple of visits put in there, one that couldn’t occur is one that may have occurred. And then Ben was home by sort of one o’clock, quarter past 1.00 which was a concern to us. I roll forward to the next day to the 9/2.166
Again this just kind of goes to – in the situation we were in we wanted to improve our territory coverage and the representation of the business. We weren’t being very active. There’s a number of days that we’re actually sitting in the office. Stephen Elliott for Urban Resources came into see Ben that day but that was the only customer interaction during the day. Telephone calls, quotes, emails, not inputted. Roll forward to the 2/12 no activity that day. A full day in the office.167
We then come to two days of product training and that was something that Ben attended. They sort of ran from 9.00 o’clock in the morning till 3.00, 3.30 in the afternoon. On day one there wasn’t any sort of phone calls or emails outside of that. On day two there was that training session. There was a customer that came in to visit. So there was a little bit of activity that day. 15/2 was a full day in the office with no activity in front of customers again.168
So we were starting to build a bit of a pattern of spending a lot of time in the office and not out in front of people. Friday 16/2 I believe that was a Friday. There was a couple of phone calls and I will touch on that in a second. There was a site visit. I think Ben dropped down to Urban Resources to drop off a USB that was required and then headed home. And I touch on the Shire of York and the Shire of Beverley because that sort of leads me to the next week of a country trip. And they were the two phone calls that were made to plan a three or four day country trip. That was a concern in itself. If you’re doing a country trip and I get that there’s going to be some very short calls because there is going to be some cold calling but after three or four years of looking after a territory you would imagine that you would have a core group of customers that you would spend a more significant amount of time with. And the fact that we only made two phone calls to prepare four days worth of customer visits concern me. I think there should have been a little bit more planning going to go into that.169 …
So what, on the surface, looked like a fantastic week, when we dug a little bit deeper it didn’t quite have the quality or the planning that I would have liked. So the first two calls in the morning on the Monday morning of that customer trip were as planned for the two phone calls that were made. From there on in it gets very like there were a couple of inputs in there – the Shire of Cuballing that didn’t occur, according to the vehicle registry. And then we had a sequence of one, two, three, four – sorry – five, six sales calls. Not one of which lasted longer than nine minutes. And some of them were as low as five minutes. And I just struggle to see that that brings in at all. We’re turning up unannounced with not planned – anything in fact they were calls – I’m not sure what can be achieved in that time and I do question it if I am being honest that we actually walked in the door for all of those customers. I mean, for example, Farmers sent and they’re a dealer for us for our SDLG brand. And perhaps – you know – the said person that that is the main contact may not have been there. But they also have sales teams, admin people, after market people that we should be talking to to make sure at worst that there is no outstanding issues and that there’s not anything that we can do to help or any information that we can take back.170
So once I saw six or seven calls in one day that were less than nine minutes that was of concern to me. Rolling forward to the 20/2, again there were a couple of site visits that were in there. The two in question that when I had a look didn’t seem to stack up was Shire of Woodanilling and Shire of Katanning. The vehicle was in those towns but it was quite some way away from those offices. And I’m not sure Ben would have walked to the shire buildings.171
And then if have a look and, again, I know I need to be brief but if you have a look at the calls or the Farmers sent to Dumbleyung – it was five minutes. Shire of Dumbleyung seven minutes. You know? We managed to stretch that out to 20 minutes at the Shire of Katanning and 20 minutes at the Shire of Kulin but then we start to pare back less than 10 minutes per call.172
And, again, I just can’t see that that brings value or with confidence say that we have actually gone in and tried to have those conversations. Rolling to the 21/2 the Shire of Trayning seemed a little bit obscure. I don’t think that reflected in the tracking. You know? We did a lot of calls again that were very, very short – 14 minutes – Shire of Merredin. You know, we drive – you know – 50 k’s, 60’s to Westonia and it’s been sort of barely 20 minutes there.173
So, again, the patterns repeat. On the 22/2 Shire of Cunderdin was reflected as an active customer visit by Ben which didn’t actually occur and at about sort of 2.00 – 10 to 3.00 in the afternoon, or 10 to 4.00 in the afternoon, we’ve headed back to the city.174
So, again, what I would say is on the surface I looked at that on the raw data with Ben’s report and actually was quite pleased that we had gone and done that. But having a look at the weeks prior and the planning going into it and when I dug a little bit deeper or spoke to the guys about digging a little bit deeper into the quality of those calls, it seemed to me to be a little bit of a box ticking exercise to get the numbers up.175
[108] The consideration of ‘capacity’ as referred to in s 387(a) encompasses ‘performance’, that is, the level at which the employee renders performance including factors such as diligence, quality, care taken and so on.176 Those factors such as diligence, quality and care taken, may be subject to both objective and subjective assessment. For example, quality in some instances may be measurable by reference to how many millimetres a widget extends past tolerance – an objective exercise, in other instances the quality of an interaction between sales representative and customer may prove more subjective in assessment – if of course the interaction has been observed.
[109] As was expressed by Mr Martin, the Applicant’s statistics demonstrated that he was tracking to meet his targets in the February 2024 period. The question that then arises was whether the Applicant underperformed in the period of 1 to 26 February 2024, as detailed by the Respondent.
[110] It is an indubitable fact that the witnesses of the Respondent had not observed the Applicant engage in the FtF interactions held with prospective customers on the Wheatbelt trip and yet it questioned the quality of those interactions. It did so on the basis of data drawn from the Respondent’ systems and analysed by Mr Daniels and Mr Leaver. I have made references in this decision of preferring the evidence of Mr Daniels, who, in my view, presented as a reliable witness who detailed the process he undertook to arrive at the content of the Spreadsheet, but I am yet to comment on Mr Leaver’s credibility.
[111] I consider that Mr Leaver provided a comprehensive review of the Applicant’s performance as against KPIs for the last year of the Applicant’s employment, particularly the last month. The inferences Mr Leaver drew from the Respondent’s data, were reasonable and open to draw, starting from the point that the Applicant made only two phone calls to prepare for four days’ worth of customer visits on the Wheatbelt trip. This evidently concerned Mr Leaver, hence his view that he thought there should have been a little bit more planning going to go into that.177 On any objective level, Mr Leaver’s assessment is a fair appraisal. The evidence was highly suggestive that Mr Leaver had a comprehensive understanding of the technical information concerning the Applicant’ performance, such as the Applicant’s achievement as against KPIs.178
[112] At hearing, Mr Leaver was asked whether Exhibit R2 had been provided to the Applicant in the meeting on 13 March 2024. Mr Leaver said that he was ‘unable to confirm
that’.179
[113] The Representative for the Applicant submitted that a fair approach would have been to allow the Applicant time to go away and consider the Spreadsheet (presumedly in the disciplinary meeting on 13 March 2024) and to compare that with his own notes and make any proper submissions that he could with respect to the visits to contact those people he had visited for support and back up, but he was not afforded that opportunity. However, it is apparent from the Applicant’s evidence that at the meeting on 13 March 2024, the issues concerning the Applicant providing misleading information about his FtF interactions on the Wheatbelt trip were addressed at that meeting180 as were the customer complaints.181
[114] The Applicant’s Representative also noted that the Applicant was not cross-examined on the Spreadsheet, albeit the Respondent had the opportunity through its Counsel to put to the Applicant that his entries that he had made into the Respondent’s data system were false, and that was not put to him. The Applicant’s Representative noted it had been concluded by the Respondent on 13 March 2024, that the Applicant had deliberately misled the Respondent by simply ticking boxes.
[115] That the Respondent did not cross examine the Applicant on the Spreadsheet is correct. It would appear that the Applicant’s Representative raises an issue of procedural fairness, perhaps along the lines that a cross examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction.
[116] Section 591 of the Act provides that the Commission is not bound by the rules of evidence and procedure in relation to a matter before it, whether or not the Commission conducts a hearing in relation to the matter. Pursuant to s 590, the Commission ‘may inform itself in relation to any matter before it in such manner as it considers appropriate’. It has been held in relation to these provisions and their predecessors, that:
- the rules of evidence are not irrelevant and provide general guidance in relation to the manner in which the Commission chooses to inform itself;182183
- this is not a licence to ignore the rules of evidence which provide a method of enquiry formulated to elicit truth and to prevent error;
- the common law requirement that the Commission must not in its reception of evidence deny natural justice to any party acts as a powerful control over a tribunal not bound by the rules of evidence;
- the rules of evidence are founded in experience, logic and common sense;
- not to be bound by the rules of evidence does not mean that the acceptance of evidence is thereby unrestrained;184 and
- while rules of evidence and procedure are not to be completely ignored, Members of the Commission will likely be more flexible about the strict adherence to such rules when an inexperienced representative is appearing.185
[117] However, there are several observations to make in respect of the contention by the Applicant. The rule, for example, set out in Browne v Dunn is fundamentally a rule of fairness in relation to the way in which the fact finding process ought to proceed.186 It does not compel the Commission to unreservedly accept the evidence of, in this case, the Respondent’s witnesses but permits the Commission to do so.
[118] In Huang v Rheem Australia Pty Ltd, the Full Bench of the then Australian Industrial Relations Commission explained that the impact on the fact finding process of a failure to crossexamine a witness on aspects of his or her evidence is ultimately a matter in the discretion of the Member hearing the case at first instance. A ‘breach’ of the ‘rule’ will only give rise to error on the part of the Member at first instance if the Member acted unreasonably in that regard resulting in factual findings that are relevantly unfair.187
[119] It was open to the Applicant on the day of the hearing, where ample opportunity was afforded including during closing arguments, to advocate his position, particularly in circumstances where additional evidence had been provided. It was further open to the Applicant to take advantage of the opportunities to challenge the evidence. As of 13 March
2024, the Applicant understood that the Respondent considered his entries on the Respondent’s data system to be false, the Applicant stating: ‘[a]t one point, we were arguing over whether I had spent two minutes or eight minutes at a client face to face visit, rather than if I had completed the visit or not’.188 Further, the evidence of the Respondent outlined that the Respondent took issue with the quality of the FtF,189 amongst other performance issues. In arriving at my decision, I have considered the Applicant’s version of events and the Respondent’s version and made my factual findings on this basis.
[120] Whilst the Applicant had reported into the system that he had completed the tasks set of him for February 2024, the Respondent on the other hand essentially expressed that on the face of it that might be so, however on analysis of the vehicle log, the time spent at meetings and that some of the actual exchanges with a customer were of such a short duration, it was open to infer that there was a lack of meaningful exchange between the Applicant and customer.
[121] The Applicant’s unsatisfactory achievement of KPIs over the period of October 2023 until the end of February 2024, his lack of preparedness for the Wheatbelt trip, expressed customer dissatisfaction or unawareness of the Applicant as their RSM, and his failure to submit a Call Cycle Plan, were performance deficiencies which constituted a valid reason for dismissal. When I speak of unsatisfactory achievement of the Applicant’s KPIs in this respect, I speak not only of the volume of the FtF, quotes, orders and reduction in the number of uncontacted customers on the list, but also what is to be made of the quality of the Applicant’s work. I refer particularly to the FtF and his preparedness and intentionality around achieving KPIs such that there was engagement in meaningful interactions with customers. Mr Leaver provided, in my view, a compelling, precise and accurate portrayal of the Applicant’s performance over a period from 2023.
[122] In respect of the data, it is relevant to clarify, first, that while the Applicant concedes having made two errors in his data entry for the month of February, I do not consider that this detracts from the findings arrived at. Second, the Applicant refers to having achieved 12 to 13 quotes for the month of February 2024 and I note in this respect the Applicant’s reliance on communications with the National Sales System Manager and also the evidence of Mr Daniels with respect to whether the quotes achieved for February were genuine February quotes. Based on the evidence provided in respect of the quotes achieved by the Applicant for the month of February 2024, I have erred on the side of caution and observe this particular metric concerning February, has not weighed in favour of finding a valid reason for dismissal.
[123] The failure to achieve a KPI in the course of otherwise competent or satisfactory work is unlikely to be a sufficient basis to ground an unfair dismissal. Context however matters. Intentionality, quality of interaction with a customer and engagement in those activities that the Respondent considers critical to lifting sales is relevant, as is the position the Applicant held, his qualifications and experience. The standard of work that an employer can reasonably expect of an employee is one of competence, not perfection.
[124] Considered overall, and taking into account that the Applicant was an RSM of three years in the same territory, in the same set of scoped customers, it is evident that the details of the Applicant’s trips and his activity, did not meet the Respondent’s minimum expectations concerning his responsibilities and duties as outlined at paragraph [46] of the Decision. I conclude that a valid reason for dismissal existed on account of the unsatisfactory achievement of KPIs in at least the last four months from October 2023 to early March 2024.
4.2 Notification of the reason and an opportunity to respond
[125] At a general level, the case law makes it plain that when it comes to providing an opportunity to respond, the process does not require any degree of formality, and that the requirement is to be applied in a common sense practical way in order to ensure that the employee is treated fairly.190 The Full Bench in Royal Melbourne Institute of Technology v Asher,191 observed that in Osman v Toyota Motor Corporation Australia Ltd,192 reference was made to the comments of Wilcox CJ in Gibson v Bosmac Pty Ltd,193 (approved in Selvachandran v Peteron Plastics Pty Ltd).194 where Wilcox CJ had said:
Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical common sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.
[126] Having considered the evidence regarding the meeting of 13 March 2024, I am satisfied that the Applicant was notified of a valid reason for his dismissal and was provided with a meaningful opportunity to respond.195 Whilst the Applicant submits to the contrary, such that he was not given a proper opportunity to respond as there were no factual findings as to the performance issues, I do not consider that to be the case. It is evident from the Applicant’s own evidence that he protested vigorously regarding the Respondent’s contentions about him having or not having, met the targets, and the quality of his work was questioned, hence the dispute arising in the meeting as to time spent in customer interactions when on the Wheatbelt trip.”
Taylor v CJD Equipment Pty Ltd [2024] FWC 2078 delivered 9 August 2024 per Beaumont DP