Unfair dismissal and work performance

When an employee is dismissed upon performance grounds, the Fair Work Commission in an unfair dismissal case will pay special care to consider the assistance which was made available by the employer to assist the employee improve and also the clarity of the warnings which were afforded to the employee about the consequences if a failure to improve. A lack of either may well cause the Commission to hold that the dismissal was relevantly unfair. Here is an extract from such a case.

“s.387(e) – performance related issues

A critical issue in dealing with performance issues of a person is that the person must know the performance standards required of them and be warned of the consequences of a failure to improve.

In Fastidia Pty Ltd v Goodwin 23 the Full Bench of the Australian Industrial Relations Commission said that a warning must:

– identify the relevant aspect of the employee’s performance which is of concern to the employer; and

– make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.

A mere exhortation to improve is not enough.

In McCarron v Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd 24 I observed that:

[32] The purpose of a warning about unsatisfactory performance must be to identify the performance that is of concern and must make it clear that a failure to heed the warning places the Applicant’s employment at risk.25 Such a warning gives an employee an opportunity to improve in those areas identified as requiring improvement. An integral part of such a warning must be to clearly identify the areas of deficiency, the assistance or training that might be provided, the standards required and a reasonable timeframe within which the employee is required to meet such standards.

In this case I am not satisfied, for the reasons given below, that the Respondent did each of the following:

(a) clearly identified the areas of deficiency in the Applicants performance;

(b) identified the standards to which the Applicant was required to improve;

(c) set a clear timeframe within which the improvement should be achieved;

(d) provided training and support so as to assist the Applicant to improve.

(a) & (b) – identify deficiencies and the standards required

I do not accept that the Respondent advised the Applicant clearly of those areas in which his performance was deficient beyond general claims of the need to improve and the provision of the regular maintenance checklist. 26 This is, at best, no more than an urging the Applicant to improve.

The maintenance checklist is no more than that – a list of tasks to be done. To the extent it might identify work not yet completed I accept it as that. It is not, however, an identification of problems or errors or poor quality of workmanship in the work performed, an indicator of work not being performed on time or an indicator of the standard to which it is expected work will be performed.

On the basis of the evidence before me I accept that the Applicant was advised at the meeting of 22 November 2019 that his performance had to improve. The evidence of Ms Rissmann adds weight to that of Mr Robertson. I accept Ms Rissmann’s statement that “you don’t forget things like” someone being told they may lose their job. The Applicant appears to accept by his evidence that he was at least advised of the need to report regularly on completed tasks from the maintenance checklist. He said in his evidence that he provided regular reports to Mr Robertson between February 2019 and November 2019 (although I find no evidence of these actually being provided).

To the extent that the Respondent sought regular reports from the Applicant as to the completion of tasks on the maintenance checklist I am not satisfied, on the basis of the evidence before me, that the Applicant provided such reports until 21 February 2020. It appears that over the final two months (that is, March and April 2020) of the Applicant’s employment and, even then, he did not provide a weekly report to the Respondent. The evidence suggests that on only one occasion, 2 March 2020, did the Applicant specify in correspondence he has produced the tasks actually completed by him.

However, the requirement to advise on the tasks to be completed does not amount to advice being given as to the standard of that work. Further, the task list went primarily to maintenance matters and did not go to quality or tidiness or waste issues. To the extent the maintenance checklist included such things as “improve production output” this is not sufficient. It does not indicate what aspects of production output were to be improved – was it quality, quantity or timeliness? To the extent the maintenance checklist indicated matters required “on-going monitoring” this is not an indication of deficiency or of some (improved) standard required. Whether it means weekly maintenance or maintenance as required or close monitoring is not apparent.

(c) – a timeframe for improvement

The Applicant said that he was not given any notice of the need to achieve outcomes against the maintenance checklist.

The evidence of emails between the Applicant and Mr Robertson after the meeting of 20 February 2020 supports a conclusion that the Applicant was at least aware of the need for him to demonstrate some progress on the maintenance checklist provided to him and that he had 1 month in which to do so. The Applicant’s evidence of the conversation with Mr Robertson at the meeting of 6 April 2020 (or 30 March 2020 on the Applicant’s reckoning) that he was told he had “one month to fix everything on the maintenance list and if it’s not done, we are going to terminate your employment” shocked him as this was the “first time” anything had been said to him about the status of the maintenance checklist is clearly not correct on his own evidence.

As the Applicant said in his evidence that between February 2019 and November 2019 he regularly emailed Mr Robertson (corrected in his later statement) on updates to the status of tasks on the maintenance checklist and that he also did this from November 2019 to March 2020. 27 From this it can be inferred that the Applicant was aware, a year prior to his dismissal, that there was some monitoring of the work he was doing. Certainly by February 2020 his mind should have been well focussed on the need for improvement.

I am therefore satisfied that the Applicant was given a timeframe within which he was to demonstrate completion of tasks on the maintenance checklist.

(d) – provision of training

The Respondent says, and I accept, that it provided the Applicant with training 28 but that training was in mid-2017. Either the Respondent accepted the progress of the Applicant at that stage or did not identify any further training for him. In any event it left the Applicant in situ for a further 18 months before, on Mr Robertson’s evidence, any further action was taken in relation to the Applicant’s performance in early 2019. In this regard the training given in mid-2017 was not in relation to performance issues identified in 2019 or early 2020.

Mr Robertson also says that he provided the Applicant with people to contact to assist in resolving specific matters. 29 I note that while the Applicant initially denied such assistance was available to him he did eventually agree that he had been provided with some industry contacts. I am, however, not satisfied that this was structured in such a way that it could be properly considered training designed to assist the Applicant improve his performance in identified ways. In reaching this conclusion I am cognisant of a seeming reluctance of the Applicant to utilise the contacts he was given in the industry in undertaking his work. Had he accepted the assistance offered through these contacts he may have been able to meet the performance demands of him.

I accept that the Applicant had access to Vic Chen, the Ballarat Factory Manager, for assistance and that the Applicant did seek his assistance from time to time.

I also accept that the Applicant did have access to documented procedures manuals in the workplace and that these were in hard copy.

Conclusion

For these reasons I do not accept that the Respondent clearly articulated to the Applicant the deficiencies in his work performance or the standard required to be achieved. Further, it is not apparent on the evidence, and I do not accept, that the Respondent provided training to the Applicant at the time he required it. I do accept that the Applicant was aware that he had 1 month within which he was to show improvement even though the standard was not clearly articulated.

I would observe that it is not apparent that the Applicant was being asked to undertake work that he was not qualified to perform. The Applicant had worked in the area and had spelt out his broad range of experience and capabilities in the email to the Respondent of 12 September 2015, prior to his employment. 30

For these reasons I am not satisfied that the Applicant was satisfactorily warned of his performance.”

Vence v Bouvourie P/L. aft The Danbar Plastics Unit Trust T/A Danbar Plastics – [2020] FWC 4776 delivered 18 September 2020 per Bissett C