Bowen v City of Ryde Council

Industrial Relations Commission (NSW)|2020-09-18

DECISION

James Bowen was employed by the City of Ryde Council ("Council") as a Waste Prevention Officer. His employment was terminated on performance grounds on 8 October 2019, shortly after the end of a six month probation period. On 23 October 2019 Mr Bowen filed an Application for Relief in relation to Unfair Dismissal ("Application") pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act").
The Council initially challenged the jurisdiction of the Commission to hear and determine the Application, on the basis that Mr Bowen was a probationary employee at the time of his dismissal. In a decision dated 12 May 2020 I dismissed that objection: Bowen v City of Ryde Council [2020] NSWIRComm 1036.
The hearing of the substantive case took place on 13 July and 18 September 2020. Mr Bowen was self-represented. The Council was represented by Mr A Olivares from Local Government NSW.
As Mr Bowen represented himself I regarded myself as bound to follow the guidance given by the Court of Appeal in Hamod v State of New South Wales and Anor [2011] NSWCA 375: "309. Courts have an overriding duty to ensure that a trial is fair. ...In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented..." (References omitted)
In these proceedings that guidance led to me adopting a relatively informal approach to the proceedings. I was considerably more active than might otherwise have been the case in assisting Mr Bowen to present his case, including by allowing him to adduce fresh evidence in chief. I provided some guidance to Mr Bowen in his cross-examination of the Council's witnesses, both in terms of clarifying his lines of enquiry and in making sure that they remained pertinent to the matters before the Commission. I took these steps as I wished to be certain that Mr Bowen had every opportunity to put his case in full.

Factual context

In early 2019 Mr Bowen, who is 35 years of age, applied for a position of Waste Prevention Officer which had been advertised by the Council. Being the preferred candidate, in early March 2019 he engaged in negotiations with the Council as to the terms on which he would be employed. Those negotiations culminated in him being sent a letter from the Council dated 11 March 2019 offering him appointment to the position ("Offer").
The Offer contained a term that Mr Bowen's employment would be subject to a three month probation period. If before the end of that period there were concerns regarding his performance or conduct, the Council could extend the probation period for up to a further three months. The Offer also stated that Mr Bowen's employment would be subject to the Local Government (State) Award 2017 ("Award").
On 13 March 2019 Mr Bowen accepted the Offer, by signing a "Statement of Acceptance" contained on the last page of the Offer. On the same day he signed a Position Description in respect of the Waste Prevention Officer role.
Mr Bowen commenced employment with the Council on 1 April 2019. He reported to Jude Colechin, Senior Coordinator Resource Recovery of the Council, who in turn reported to Ian Garland, Manager, Business Infrastructure of the Council.
On commencement and during his employment, Mr Bowen was provided with training. Mr Bowen described it as related to generic ethics and council corruption, unrelated to the specific technical elements of his position. Both Ms Colechin and Mr Garland gave evidence to suggest that the training was more substantive than Mr Bowen asserted. Mr Garland provided a list of the training and meetings that Mr Bowen attended during his employment.1 He deposed as follows: [1] "6. This training, along with the skills and experience expressed by James at interview would have been sufficient for James to undertake the role of Waste Prevention Officer as outlined in the position description, as well as meeting the expectations of Council. 7. The training/meetings included introduction to relevant staff members for James to perform his role (including Council Rangers, Compliance officers, Environmental Health Officers, Public Domain cleansing team), briefings on current topics and issues being faced (including education programs, illegal dumping program, current projects, return and earn issues), systems and technology (including surveillance trailer systems and processes, customer record management systems, bespoke waste systems, CCTV), Council processes (including formal Council induction process, Code of Conduct)."
Ms Colechin and Mr Garland stated that in the first few months of Mr Bowen's employment they identified numerous shortcomings in his performance. These included a failure to complete tasks despite being followed up; incomplete or insufficient recording of his activities; relying on another staff member to complete a particular task which had been assigned to him; a failure to notify the Council of his whereabouts; a lack of willingness to ask for or to accept assistance which had been offered to him; and, a lack of initiative.
Mr Garland stated that he met with Mr Bowen to "set out expectations" on 30 April, 30 May and 7 June 2019. [2]
On 14 June 2019 Mr Bowen was called to a meeting with Mr Garland and his acting supervisor, Denise Torres, who was acting in the role whilst Ms Colechin was on leave. Mr Garland described this as "a standard probationary meeting conducted with all employees, prior to confirming permanent employment or extending probation periods". [3] He stated that Mr Bowen was made aware during this meeting of a number of concerns held by Mr Garland as to his performance.
Ms Colechin and Mr Garland subsequently determined that whilst Mr Bowen's performance needed improving they would give him a chance to demonstrate that improvement rather than terminate his employment. It was decided that Mr Bowen's probation period would be extended in accordance with the Offer.
Mr Bowen was called to a meeting with Ms Colechin and Mr Garland on 27 June 2019. Ms Colechin described the meeting as follows: [4] "14. We met with James on 27 June 2019 to discuss with him the issues we were having with his performance. He was asked to bring with him details of the tasks/projects that he had been working on, deliverables achieved and challenges. The meeting went for over 2 hours where it was reiterated something like 'we're not happy with your performance and lack of initiative. You have not met the goals of your work plan in being proactive in following things up, rather than waiting for management to check where you are at.' I stated that 'since I had been away, we were willing to give you an extension of your probation for a further three months to prove that you have the ability to do the job that you applied for.' James was not happy and kept questioning what he was doing wrong whereby I again advised that his lack of initiative to do the job required without supervision along with not meeting outcomes, was one of the main problems. He challenged back stating that this was a: 'new position and that he did not know what was expected'. I produced the Position Description and Work Plan and advised 'that the tasks of the position were clearly defined' and that he only need to come and ask for help if we needed it. We then advised him 'as this was a new position', we would extend his probation for a further 3 months so he could show that he could improve on the things listed on the extension of probation letter. James was still not happy. …" (Sic)
On 28 June 2019 the Council, in a letter signed by Mr Garland, wrote to Mr Bowen. The letter stated in part: "As discussed at your ten (10) week probation review with myself and your recent conversations with Jude Colechin, Senior Coordinator Resources Recovery, and Denise Torres in her acting role, concerns have been highlighted in regards to your performance and improvement is required in the following areas specifically; • Showing initiative in further developing the role • Being proactive and advising management of challenges you may be facing • Setting goals and beginning to meet outcomes as per the Position Description and your work plan. Some things to address are developing and implementing specific projects such as Eastwood education, bollard & camera installation/operation and litter prevention. • Following through on tasks that have been set in an efficient and timely manner • Keeping management informed of your whereabouts when on site for your safety To enable you to address these areas of concern as outlined in the recent review and discussions, your probation period has been extended for a further three (3) months, with your probation period now due to conclude on 1 October 2019. Please note failure to address the concerns outlined above at the conclusion of your probation period may result in termination of employment." (Sic)
Mr Bowen subsequently requested a meeting with Jessica Smith, a People and Culture Business Partner of the Council. Mr Bowen stated that in making this request he made a "formal complaint" against Mr Garland. In his view, the meeting was intended to address that complaint as well as to clarify the requirements of the letter of 28 June 2019.
The meeting between Mr Bowen and Ms Smith took place on 8 July 2019. Mr Bowen deposed that in the meeting he raised a complaint about Mr Garland's management skills, including his lack of transparent and direct communication, as well as his inability to articulate what he wanted from Mr Bowen in the Waste Prevention Officer role. Mr Bowen stated that he also raised issues about Mr Garland's interpersonal skills.
Ms Smith stated that at the meeting on 8 July 2019 Mr Bowen said that he could not understand why his probation period had been extended. She read to Mr Bowen the matters outlined in the letter of 28 June 2019 and suggested that a further meeting be arranged with Mr Garland to provide Mr Bowen with clarity as to what was required. Ms Smith disputed that Mr Bowen raised any concerns in relation to Mr Garland's management or interpersonal skills. She stated that no formal complaint or grievance was raised by Mr Bowen.
A meeting between Mr Bowen, Ms Smith and Mr Garland took place on 12 July 2019. Ms Smith stated as follows: [5] "8. James returned to work on 12 July 2019 and asked to meet that afternoon with Ian and myself. We agreed. At this meeting, to the best of my recollection James said: 'Please explain why my probation has been extended, I don't understand.' Ian read out the letter to James, which highlighted the areas for improvement and he also gave examples of what he was looking for. To the best of my recollection Ian said: 'If you have any issues with tasks or problems liaising with other departments or external stakeholders you should speak with Jude straight away and she can help to resolve any issues for you. I also need you to be regularly updating our internal staff logs so we know [where] projects are up to, particularly with Eastwood and the bollards. Remember if you go out on site; indicate this on the whiteboard by the printers and when you come back into the office also. That way everyone knows where each other are.' James nodded to these points Ian made and to the best of my recollection replied: 'Ok, that seems doable.' To the best of my recollection I concluded the meeting by saying: 'James you should view this extension of your probation as an opportunity to show us what you can do with the role and really make it your own.' Ian then reiterated my comments to the best of my recollection he said: 'Use these 3 months to demonstrate the skills you have for this role and as Jess said see this as an opportunity and not a negative.'" (Sic)
Mr Bowen stated that Ms Smith left the meeting after approximately an hour. The meeting between Mr Bowen and Mr Garland continued for a further hour. Mr Bowen said that throughout this period the alleged concerns with his performance were discussed at a very general level.
Mr Garland deposed that including the meetings referred to above, he had 13 or 14 meetings with Mr Bowen between April and September 2019. [6] In each of these meetings Mr Bowen's performance was discussed.
Mr Bowen asserted that during his employment with the Council he "accomplished a number of goals and completed several important projects". [7] He listed four such accomplishments. In his written evidence in reply, Mr Garland called into question the significance of the projects identified by Mr Bowen and, further, the extent to which Mr Bowen could claim credit for some of them. Mr Bowen in return took issue with Mr Garland "understating" his involvement in the projects, and in his oral testimony outlined the work that he had done in respect of each of them.
Mr Bowen also sought leave to adduce fresh evidence at the hearing regarding other accomplishments and instances where he had worked beyond the scope of his role, and outside hours, to the benefit of the Council. I admitted this evidence, subject to weight.
Mr Bowen also identified a number of issues he had encountered "regarding the fundamentals of the Waste Prevention Officer position". [8] He identified nine areas in which he claimed he was not provided with appropriate management, infrastructure or technological support. Once again, Mr Garland responded in detail to this evidence, calling into question whether there was in fact any lack of appropriate support and, further, whether the issues raised by Mr Bowen did in fact preclude him from meeting the expectations of the role that had been explained to him.
After Mr Bowen's probation period had been extended, Mr Garland and Ms Colechin continued to identify shortcomings in his performance. In their view Mr Bowen failed to improve his performance to the standard expected of him. Due to these perceived deficiencies, by 24 September 2019 Mr Garland and Ms Colechin had decided to terminate Mr Bowen's employment.
On 26 September 2019 Mr Bowen was given written notice to attend a meeting the following day. The Council's intention was to effect Mr Bowen's dismissal at that meeting, during his probation period. The evidence suggests that Mr Bowen anticipated this intention.
Mr Bowen took sick leave on and from 27 September 2019. Between 27 September 2019 and 3 October 2019 there were a number of telephone calls from the Council's officers to Mr Bowen, not all of which were answered. There were also several emails sent to Mr Bowen, not all of which received a response. The calls and emails were said to have been directed towards obtaining medical evidence to support Mr Bowen's absence and to seek clarity as to his expected date of return.
Mr Bowen returned to work on 8 October 2019. He was called to attend a meeting, which he initially sought to avoid on the basis of feeling dizzy and having to leave work. Despite this, the meeting proceeded. Mr Bowen was informed that his employment was terminated with immediate effect, but that he would receive a payment in lieu of notice and payment for accrued but untaken sick leave. The Council contended that Mr Bowen received payment for twice the period of notice to which he was entitled and that the payment in respect of sick leave also exceeded Mr Bowen's entitlements. This was not controverted.
The dismissal was confirmed in a letter from the Council to Mr Bowen dated 8 October 2019.

Relevant legal principles

Section 84 of the Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust".
To be entitled to any remedy under the Act the onus is on Mr Bowen to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: 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."
In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, the Full Bench made the following observations: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made."

Submissions

Mr Bowen's case is effectively summarised in the following paragraphs of a statement he had prepared dated 16 June 2020: "5. As a result, I have not been afforded Natural Justice and Procedural Fairness as a permanent employee of City of Ryde Council. No warnings, no performance plan, no instruction as to expectation and no fairness. I found the role to have very little capable supervision regarding technical knowledge of legislation and enforcement action. This was an added difficulty along with Ian GARLAND's inability to communicate expectations of the role in a coherent manner. 6. I refute what Ian GARLAND and states about what was stated in meeting discussions, and that expectations of the role were made clear. This is the reason I lodged a complaint in person with Human Resources staff member Jessica SMITH. Which apparently there is no documentation of in City of Ryde's records. In the termination meeting in October, I asked this question of Danielle BRENNAN who stated words to the effect of 'I have no knowledge of any complaint'. … 8. Much of the training was generic ethics and council corruption, unrelated to the specific technical elements of my position. 9. I maintain there was insufficient technical training. I state there was incapable management surrounding the technical enforcement side of the role. I maintain there was a lack of clarity by management about expectations. 10. I maintain there was no due process, procedural fairness or natural justice afforded to me as an employee of City of Ryde, and due to this, I respectfully request the reinstatement of my former position." (Emphasis in original)
The Council disputed that the dismissal was harsh, unreasonable or unjust. It maintained that Mr Bowen underperformed in his role as a Waste Prevention Officer, despite having received extensive training and feedback as to what was expected of him. The Council also contended that the process by which the dismissal was effected was procedurally fair.

Consideration

As is clear from the outline of facts set out above, the Council adduced a significant amount of evidence regarding the shortcomings that it encountered with Mr Bowen's performance and the support that it provided to him to meet its expectations.
In his written evidence, Mr Bowen did not refute the Council's evidence other than at a very high level. This is seen in the extracts reproduced at [35] above. During cross-examination Mr Bowen conceded that he could have gone into further detail. He should have done so, as the onus is on him.
Mr Bowen's version of events was, in the main, to be discerned from the questions he put to the Council's witnesses. That is, he would often preface his questions of the witnesses with assertions of fact that were not contained in his statements. This made it difficult to comprehend the "narrative" of events that Mr Bowen was seeking to present, and impaired the cogency of his arguments.
Further, it is necessary to consider whether it would be fair to the Council to allow Mr Bowen to adduce considerable evidence under the guise of questions put to witnesses, without the Council having the benefit of seeing and being able to respond to that evidence prior to the commencement of the hearing. I observe in this regard that on 19 May 2020 I had made directions which included the filing and service of statements of evidence. I have had regard to the matters raised by Mr Bowen during his cross-examination of the Council's witnesses, but the weight that I afford to those matters has been reduced as a consequence of these concerns.
Mr Bowen did not fully grapple with the case that was brought against him in so far as the Council alleged that his performance had been unsatisfactory. He did not squarely address, on the whole, the allegations of poor performance. Rather, he seemed to offer an alternative narrative as to areas in which his performance had been satisfactory, if not praiseworthy. To use an example, Mr Bowen adduced evidence of instances which he claimed demonstrated him showing initiative. This evidence seemed to be offered as countering the Council's contention that he had failed to do so. In this way, Mr Bowen focussed more on what he perceived he had done well rather than directly responding to the Council's allegations of where he had fallen short.
To an extent, Mr Bowen seemed to take exception to the fact that the Council's evidence concentrated on his shortcomings without recognising areas in which he had performed well. In that respect I think he misapprehended the nature of the proceedings in which he is involved. I did not take the Council to be suggesting that there was nothing at all about Mr Bowen's performance that was satisfactory. Rather, it was properly putting forward its case as to why Mr Bowen was dismissed. It is in the nature of proceedings such as this that the focus will be on the reasons for dismissal.
I do not accept Mr Bowen's submission that the expectations of the role were not made clear to him. They were set out in the Position Description which had been provided to him on commencement. They had been explained to him by Mr Garland and Ms Colechin in several meetings. The areas in which he was falling short were contained in the letter of 28 June 2019, which was the subject of discussion at meetings on 8 and 12 July 2019. Mr Bowen did not suggest that the various meetings did not occur; he challenged what was discussed and their outcomes. On balance, I prefer the evidence of the Council in this regard. Mr Bowen's assertion that he received "no instruction as to expectation" is not supported by the evidence.
I acknowledge that after receiving the letter of 28 June 2019 Mr Bowen approached Ms Smith for clarity as to what was expected of him, which might suggest uncertainty or confusion on his part. On the evidence, though, I have some doubts as to whether Mr Bowen's professed a state of confusion is less to do with the expectations not having been clearly laid out for him, than with an unwillingness on his part to accept that he might not be performing to the requisite standard.
I also do not accept Mr Bowen's submissions that he did not receive adequate and appropriate training for the requirements of his position. Mr Garland provided evidence of the training that Mr Bowen received which, given his relatively short period of employment, seems to have been considerable. While Mr Bowen was able to call into question one instance described by Mr Garland (in which Mr Bowen was in fact providing training, rather than receiving it), this was not enough to undermine the totality of Mr Garland's evidence.
I have considered the issues raised by Mr Bowen as to the technological and other problems he encountered. Although he did not expressly say so, it is to be inferred that he contended that these issues impacted on his ability to perform his role. The first such matter was the alleged inability of the Council "to provide comprehensive specifics regarding targeted expectations within the job description". This has echoes of the submission dealt with at [43] and the same conclusions arise.
On the balance of the issues raised by Mr Bowen, he has not demonstrated that they were the cause of or contributed to the shortcomings in his performance, or prevented him addressing those shortcomings.
Mr Bowen submitted that there was "no due process" in the events that culminated in his dismissal and that he was "never given a right of reply". I do not agree. I consider that in all but one respect, dealt with below, he was made aware of the Council's concerns and had every opportunity to respond to them. Mr Bowen's employment was punctuated by numerous attempts to make it clear what was expected of him and to assist him to meet those expectations. The decision by the Council to extend his probation period also argues against a contention that there was a lack of "due process".
The exception referred to in the preceding paragraph relates to Mr Bowen's perceived interaction with other members of staff. Ms Colechin stated that there had been an investigation into an allegation that Mr Bowen had spoken inappropriately to a depot employee. This did not however lead to any form of disciplinary action. She also deposed that on one or two occasions Mr Bowen had spoken to her in an inappropriate manner, which she had addressed with him at the time. Again, this was not escalated into any "formal" outcome.
Ms Colechin stated that she had taken these matters into account in making her decision to terminate Mr Bowen's employment. However, she conceded that she had not told him that these were in her contemplation. In that respect it could be said that Mr Bowen did not properly have a right of reply to these concerns. However, I do not consider this to be material to the fairness or otherwise of Mr Bowen's dismissal.
I have considered Mr Bowen's criticism of Mr Garland's management and interpersonal skills. If anything, Mr Garland came across as a manager who was at pains to assist Mr Bowen to succeed in the role. The decision to extend Mr Bowen's probation period rather than to effect his dismissal reflects this.
Mr Bowen was insistent that during his meeting with Ms Smith on 8 July 2019 he had made a "formal complaint" about Mr Garland. Ms Smith deposed that no such complaint had been made and that the meeting had focused solely on providing clarification to Mr Bowen regarding the letter he had received extending his probation period. This is reflected in her written record of the discussion. Mr Bowen called that record into question and went so far as to allege that Ms Smith had either fabricated the document during the course of these proceedings or had deliberately omitted a reference to the complaint so as to protect Mr Garland. These are very serious allegations which are simply not made out on the evidence. I had no reason to doubt the veracity of Ms Smith's testimony.

Conclusions

Having regard to the totality of the evidence, I am satisfied that the Council had legitimate concerns with Mr Bowen's performance in his role. This is not necessarily to say that Mr Bowen was wholly unsuccessful in the role and did not work hard, including in the areas he identified. However, Mr Bowen cannot draw attention to his accomplishments without addressing the detail of the Council's evidence as to his poor performance. The Council had proper grounds for terminating Mr Bowen's employment on the basis of that poor performance. The dismissal was not unjust.
Mr Bowen adduced no evidence on which it could be held that the dismissal was harsh. In this regard I note that the Council made a payment to Mr Bowen on termination that exceeded his legal entitlements.
In the ordinary course, I would have found that there was no procedural unfairness in the process by which Mr Bowen's employment was terminated. While the events of 8 October 2019 were perhaps a little out of the ordinary, I would have found that they did not result in any unfairness. While the Council was working on the erroneous basis that Mr Bowen was serving a period of probation and the process it adopted was in part reflective of that, the dismissal must be seen in the context of the entirety of the employment relationship which, as already stated, demonstrated every effort by the Council to extend fairness to Mr Bowen.
That said, although the argument was not advanced by Mr Bowen, there is an issue arising from the Award, which I raised with the Council during the hearing, that calls into question the process by which the dismissal was effected which must be addressed.

Award compliance

During Mr Bowen's employment cl 36 of the Award relevantly provided as follows: 36. Disciplinary Procedures … D. Disciplinary PROCEDURES (i) Where an employee's work performance or conduct is considered unsatisfactory, the employee shall be informed in the first instance of the nature of the unsatisfactory performance or conduct and of the required standard to be achieved, by the employee's immediate supervisor or other appropriate officer of the employer. The employer and employee will discuss the reason(s) for the unsatisfactory work performance or conduct including matters external to the workplace, and, where appropriate, measures to assist the employee to improve their work performance or conduct. Such measures may include, for example, training, counselling and provision of an Employee Assistance Program (EAP). (ii) Unsatisfactory work performance or conduct shall include, but not be limited to, neglect of duties, breach of discipline, absenteeism and non-compliance with safety standards. A written record shall be kept on the appropriate file of such initial warning. The employee shall be entitled to sight and sign such written record and add any notations regarding the contents of such record. (iii) Where there is re-occurrence of unsatisfactory work performance or conduct, the employee shall be warned formally in writing by the appropriate officer of the employer and counselled. Counselling should reinforce the standard of work or conduct expected and, where the employee is failing to meet these required standards, a suitable review period for monitoring the employee's performance; the severity of the situation; and whether disciplinary action will follow should the employee's work performance or conduct not improve. A written record shall be kept of such formal warning and counselling. The employee shall be entitled to sight and sign such written record and add any notations regarding the contents of such record. (iv) If the employee's unsatisfactory work performance or conduct continues or resumes following the formal warning and counselling, the employee shall be given a final warning in writing giving notice of disciplinary action should the unsatisfactory work performance or conduct not cease immediately. (v) If the employee's work performance or conduct does not improve after the final warning further disciplinary action may be taken. (vi) All formal warnings shall be in writing. (vii) Delegates shall be provided reasonable time without loss of pay, to represent members in disciplinary matters at the local level, provided prior approval is sought. Such approval shall not be unreasonably withheld. E. PENALTIES (i) After complying with the requirements above, the employer may: (a) Demote the employee to a lower paid position or a lower salary point/step provided that the employee shall not suffer a reduction in the rate of pay for 2 weeks from the date of the demotion. (b) Suspend the employee without pay from work for a specified period of time. (c) Terminate the employment of the employee in accordance with Clause 38, Termination of Employment of this Award. (ii) Notwithstanding the above, the employer may take appropriate disciplinary action before and/or during the procedures in clause 36D in cases of misconduct or where the employee's performance warrants such action.
In a case of poor performance such as the present, cl 36(D) anticipates a three-stage disciplinary process: 1. an initial communication, which is anticipated to be verbal but which nevertheless must be recorded in writing, as to the nature of the unsatisfactory performance and of the required standard to be achieved. The employee is entitled to sight and sign that record and add notations regarding its contents; 2. a "formal warning" and counselling. The employer must keep a written record of the warning (which must in any event be in writing) and counselling. The employee is entitled to sight and sign that record and add notations regarding its contents; and 3. a "final warning" in writing giving notice of disciplinary action should the unsatisfactory work performance or conduct not cease immediately.
Although cl 36(D)(ii) makes reference to the communication required by cl 36(D)(i) as being an "initial warning", nothing in cl 36(D)(i) requires a warning to be provided. This is to be contrasted with the reference in cl 36(D)(iii) to "whether disciplinary action will follow should the employee's work performance or conduct not improve", which is clearly in the language of a warning as that term is generally understood in an industrial context.
During the hearing I asked Mr Olivares how it was said that the Council had complied with cl 36(D)(i). He submitted that the required "verbal warning" was provided during the meeting on 14 June 2019. In light of my observations at [59] above, I accept this submission and am satisfied that the Council met the requirements of cl 36(D)(i) during the meeting on 14 June 2019, if not earlier. I would add that it did so inadvertently, as there is nothing to suggest that the Council had turned its attention to cl 36 at all.
However, the letter of 28 June 2019 seems to conflate - again inadvertently - the requirements of cl 36(D)(ii) and (iii). That is, it records the outcome of the meeting on 14 June 2019 while containing a "formal warning". Certainly, Mr Bowen had every opportunity to comment on that document, and was counselled, during the meetings on 27 June, 8 July and 12 July 2019.
There is no evidence of a "final warning" having been provided to Mr Bowen after he had received the letter of 28 June 2019, as required by cl 36(D)(iv).
Nothing in the Award excludes probationary employees from cl 36. To the extent that the Council was (erroneously) relying on Mr Bowen's status as being on probation in taking the action it did to terminate his employment, it does not provide a basis for failing to comply with cl 36.
The Council sought to argue that this case fell within the terms of cl 36(E)(ii). I do not accept that. This case concerns poor performance. For cl 36(E)(ii) to apply the poor performance must be such as to "warrant" disciplinary action being taken without the employer taking some or even any of the steps required in cl 36(D). That clause is directed towards ensuring that an employee be made aware if their performance or conduct is unsatisfactory, receive warnings where appropriate, and be given up to three opportunities to improve to the requisite standard. An employee could only be denied the benefits of the clause where the performance concern or concerns are of considerable seriousness or gravity. Otherwise, an employer would have a broad discretion on which it could rely to circumvent the requirements of cl 36(D).
The evidence does not get to the point of establishing performance concerns of such magnitude or gravity. Ms Colechin gave evidence that it was a "whole of work performance" assessment that resulted in Mr Bowen being dismissed. This seems to have been a continuation of generally unsatisfactory performance almost from the commencement of the employment, but nothing requiring urgent steps to terminate the employment. This is borne out by the fact that the Council decided to extend the probation period rather than terminate the employment after the initial three months of employment.
While the Council may not have complied with (or even had regard to) cl 36, it was not indifferent to Mr Bowen's interests. Rather, the evidence points to the contrary conclusion. Mr Garland had met with Mr Bowen to "set expectations" on up to 14 occasions, including after Mr Bowen received the letter of 28 June 2019. Five of these meeting took place between 30 April and 27 June 2019, which might have alerted Mr Bowen to the fact that his continued employment was by no means guaranteed. Certainly, the letter of 28 June 2019 contained a warning and thereafter he would have been on notice that his continued employment was dependent on his performance improving. The subsequent meetings Mr Bowen had with Mr Garland, at which his performance continued to be the subject of concern, would have been conducted in that knowledge.
To my mind, it follows in a practical sense that to the extent that the Council has failed to comply with cl 36, it lies in its failure to expressly articulate and record in writing warnings which might otherwise have been implicit.
That being said, the repeated use of the word "shall" in cl 36(D) makes it clear that the disciplinary process it sets out is mandatory. Further, the employer may only proceed to dismissal after "complying with the requirements" of cl 36(D): cl 36(E)(i). Clause 36(D)(v) similarly suggests that disciplinary action may only be taken if the employee's performance fails to improve after the final warning.
An argument might arise as to whether, in the absence of full compliance with cl 36(D), an employer is precluded by the Award from proceeding to termination. However, this argument was not put by Mr Bowen. Indeed, as already noted, he did not mount any arguments based on a breach of the Award. As much as I have sought to ensure that as a self-represented litigant Mr Bowen did not "suffer a disadvantage" - see Hamod at [4] above - the Commission should not place itself in a position where it might be seen to be advocating for him and mounting a case that he did not present.
I am also mindful that one of the objects of the Act is to provide for the resolution of industrial disputes "in a prompt and fair manner and with a minimum of legal technicality": s 3(g). The Commission "is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms": s 163(1)(c). These provisions, given the facts of this case and the findings I have made, particularly as to the impracticability of reinstatement to which I will come, support me in the view that it is not appropriate to further consider the implications of the Council having failed to comply with cl 36(D). To do so would be to run the risk of inequitably advancing Mr Bowen's interests in preference to those of the Council.
This case is brought under s 84 of the Act. The Commission cannot properly find that a dismissal carried out other than in compliance with the Award is "fair". On this basis, I find that the dismissal was unreasonable.

Remedy

Having made this finding, it is necessary to consider whether the Commission should provide Mr Bowen with a remedy. The remedies available following a finding that a dismissal was harsh, unjust or unreasonable are contained in s 89 of the Act, which is relevantly in these terms: 89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. … (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. …
Mr Bowen seeks reinstatement. It is well established that under the Act reinstatement is the primary remedy if a finding is made that a dismissal is harsh, unreasonable or unjust: Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 at [24]; Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 at [62]-[63]. The Commission can only consider an alternative remedy if reinstatement is impracticable: Dumas; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186.
Mr Bowen submitted that he does not "have any bad blood from [his] side" [9] and that he does not consider that there has been any loss of trust and confidence that would preclude him resuming employment with the Council. These submissions are, however, difficult to reconcile with his allegations during the course of the proceedings that: 1. he had made a complaint to Ms Smith about Mr Garland, which caused Mr Garland, apparently by way of reprisal, to become unreasonably critical of Mr Bowen's performance, resulting in the dismissal; 2. he had lost trust in People and Culture at the Council because they had targeted him in order to protect Mr Garland; 3. further, People and Culture had created either incomplete or deliberately false documents aimed at protecting Mr Garland by concealing the fact that the complaint about Mr Garland had been made at all; and 4. Ms Colechin was a person who the Commission would find had no credibility.
I had the following exchange with Mr Bowen during his submissions: [10] "COMMISSIONER: But even just today, what we've heard you say is that Mr Garland - sorry, that you made a complaint about Mr Garland and, as a result of that, and my words not yours, he turned. And suddenly he was critical and things changed all of a sudden. Now, you didn't go quite to the point, but there was a clear suggestion that your complaint about Mr Garland put you on a slippery slope to oblivion. You then said that you made an allegation that you had lost, you had lost trust in People and Culture and said that you believed that they had essentially taken steps to single you out for adverse treatment, in order to protect Mr Garland. You accused Ms Smith of fabricating the record of interview of 8 July 2010 and suggested that it might have been fabricated between her first statement and her second statement and then you subsequently made the allegation that it may have been fabricated so as to include only things that were critical of you. And then there was the submission that you made that Ms Colechin was essentially not credible and that she was making it up as she went along, in the witness box today. In light of all of those statements and submissions that you have made, might I not have some reservations as to whether the relationship is in fact broken? APPLICANT: Yes, absolutely, Commissioner and I concur with everything you've said. It's 100 per cent correct and the reservations you should have, in my mind, are not to do with my performance. You know, I think there can be improvement, I concede that. COMMISSIONER: No, no, no, I think you misunderstand my question. My question is not should I be worried about them for all those reasons, but should I not be concerned that the fact that you've made those allegations against those employees is inconsistent with your suggestion that there is no problem with the relationship between you and the council? APPLICANT: Yeah, look, with that, the detail record document, I believe there was omissions made or there were omissions, to be grammatically correct. I think the whole story wasn't told, that's my submission on the matter and I know you are suggesting that there are potential issues with trust. I don't feel like they're beyond salvage in that respect. I think, in terms of how that could be rendered, you know, a workable situation is that clarity of communication is prioritised and that's a whole lot to do with my case before the Commission. And so, yeah, if that could be a point to be addressed, if reinstatement was to be completed, then I don't see it as an issue. Just clarity of communication, transparency, is what is needed, I believe. So trust, yeah, I don't believe the trust is irreparable."
The allegations that Mr Bowen made against Mr Garland, Ms Smith and Ms Colechin are serious. Mr Bowen seemed to lack not only an awareness of the gravity of the allegations he had made, but also the implications they would have on his relationship with the Council.
Added to this is the fact that Mr Bowen was almost entirely unwilling to accept that he may in any way be responsible for the situation in which he finds himself. Mr Garland described Mr Bowen as someone who made excuses or tried to place responsibility on others for work not having been undertaken. That is borne out by the evidence in these proceedings. Nowhere in his evidence did Mr Bowen accept that there were any deficiencies in his performance. His focus was on finding fault elsewhere.
The only expression of shortcoming on his part was in his oral submissions in reply as follows: [11] "I concede that there have been performance difficulties but I believe they are on both sides and mostly as a result of a lack of clarity in communication between management and myself."
At best, this is a begrudging acceptance that his performance may have been lacking, and even then he seeks to lay responsibility for that elsewhere. His suggestions as to how the relationship could be resumed and continued were directed almost entirely to what management would need to do to correct their own behaviours if he were to return.
In the circumstances of this case I consider that reinstatement would be wholly impracticable.
On the question of re-employment, no evidence was led as to any alternative positions within the Council for which Mr Bowen might be qualified. He expressed a view in submissions that he might be considered for a ranger position with a specialty in waste. There is no evidence that such a position exists. Further, David Ngeru, Senior Coordinator Ranger and Parking Services with the Council, gave evidence that he had no problems with Mr Bowen's performance as a waste prevention officer (noting that he had no direct reporting relationship), but that he could not speak to whether Mr Bowen had the skills to be a ranger.
In light of my finding at [71] above, but noting my observations at [66]-[67], I have decided that an order for compensation should be made in favour of Mr Bowen. I have decided that the compensation should reflect an estimation of the additional period for which Mr Bowen may have been employed had the Council fully complied with cl 36(D) of the Award.
I have also taken into account that Mr Bowen received payment of two weeks' notice and 3.25 days of sick leave which were above his Award and contractual entitlements.
I have determined that payment to Mr Bowen an amount equivalent to 4 weeks' pay, at the rate which he was being paid at the time of his dismissal, would be fair and just in all of the circumstances of this case.

Order

The Council is ordered to pay to Mr Bowen a sum equivalent to 4 weeks' pay, calculated at the rate of pay applicable to the position occupied by him immediately before the termination of his employment on 8 October 2019, such payment to be made within 21 days of the date of this order. Damian Sloan Commissioner

Endnotes

Garland Statement 4 June 2020 at par 5 and Annexure A
Garland Statement 4 June 2020 at pars 6-7
Garland Statement 6 December 2019 at par 27
Garland Statement 4 June 2020 at par 8
Colechin Statement 6 December 2019 at par 14
Smith Statement 6 December 2019 at par 8
Garland Statement 6 December 2019 at par 27
Bowen Statement 8 January 2020 at par 11
Bowen Statement 8 January 2020 at par 13
Tcpt, 18 September 2020 p 65(16-17)
Tcpt, 18 September 2020 pp 80(9)-81(4) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2020

Industrial Relations Act 1996(NSW)ss 3(g), 84, 89, 163(1)(c)

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