Fair Work Act 2009

s. 394 - Unfair dismissal

[1] On 20 September 2021, Mr Michael Costigan filed an application for an unfair dismissal remedy (the application) pursuant to s. 394 of the Fair Work Act 2009 (the Act), his employment having ceased on 31 August 2021.

[2] Mr Costigan alleges that he was dismissed in contravention of s. 385 of the Act by KOR Equipment Solutions Pty Ltd (KOR) and seeks compensation.

[3] KOR has raised an objection to Mr Costigan's application. It says that Mr Costigan resigned and was not dismissed. Mr Costigan acknowledges that he resigned but says that he had no choice and was forced to resign due to the conduct of KOR. Where the jurisdictional objection is not upheld, KOR says that Mr Costigan's dismissal was not harsh, unjust or unreasonable.

[4] This objection needs to be determined by the Fair Work Commission (the Commission) before there can be any consideration of the merits of Mr Costigan's application. That is because only a person who has been dismissed is able to make an unfair dismissal application.[1]

[5] KOR did not consent to take part in a conciliation conducted by a Commission staff member due to their jurisdictional objection to the application. Consequently, this matter was allocated to me for case management on 19 October 2021. I issued directions for the filing and service of material on 25 October 2021 and conducted a Determinative Conference in the matter by video using Microsoft Teams on 15 December 2021. Prior to the Determinative Conference, I granted permission under s. 596 of the Act to KOR.

[6] Some facts are agreed although others are in dispute. On the disputed facts, issues of credit are relevant.

[7] KOR is an import and distribution business. The industrial equipment they import are truck mounted vacuum and hydro-excavation units which they distribute throughout Australia and New Zealand.

[8] Mr Costigan commenced employment by KOR on 3 August 2020. When his employment with KOR ceased on 31 August 2021, he was working as a Business Analyst.

[9] On 26 May 2021, Mr Costigan and Mr Sean Roberts, the General Manager and Chief Financial Officer of KOR, had a meeting (the May meeting). Both parties disagree on the nature of this meeting. Mr Costigan says that this was an informal meeting. KOR says that, during this meeting, Mr Costigan was informed that his performance in the job was inadequate whilst noting several errors he had made in his work.

[10] Mr Roberts and Mr Costigan met again on 21 June 2021 (the June meeting). Mr Costigan says that this was a "routine KPI meeting" but Mr Roberts says this was a "formal management meeting", constituting a formal warning. Mr Costigan denies that he was given a formal warning but notes that Mr Roberts did raise some issues of concern regarding Mr Costigan's work.[2]

[11] On 22 July 2021, Mr Roberts and Mr Costigan met again (the July meeting). Mr Roberts gave Mr Costigan a formal warning detailing what he says were errors in Mr Costigan's work. Mr Costigan says that this constituted his first formal warning. Mr Robert says that this was the second formal warning.

[12] On 31 August 2021, Mr Robert met with Mr Costigan in a disciplinary meeting to discuss Mr Costigan's alleged performance issues (the resignation meeting). Mr Steven Cusworth, the Managing Engineer of KOR, also attended this meeting. At the meeting, Mr Roberts said that Mr Costigan had continued to make errors in his work in the month of August and proceeded to detail those errors. Mr Costigan does not agree with the manner in which the issues raised by Mr Roberts are characterised. The parties do not dispute Mr Cusworth's evidence regarding the resignation meeting.

[13] At the resignation meeting, Mr Roberts told Mr Costigan that the day of the meeting would be his last day working for KOR and told him that he could choose to resign rather than be dismissed. Following the meeting, Mr Costigan sent an email to Mr Roberts stating that:

"At this point in time I would like to exercise my right to resign effective today."

[14] Section 382 of the Act sets out when a person is protected from unfair dismissal and provides:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold."

[15] This was not an issue in contention, and I am satisfied that Mr Costigan is a person protected from unfair dismissal.

[16] Section 385 of the Act describes the circumstances in which a dismissal is unfair and provides:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy."

[17] Sections 385(c) and (d) are not relevant considerations in this matter.

[18] Before the merits of the application can be considered and whether the dismissal was harsh, unjust or unreasonable, I must determine whether Mr Costigan was dismissed by KOR.

[19] Section 386 of the Act sets out the meaning of when a person has been dismissed and further provides:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

[20] Section 386 is divided into two limbs, sections 386(1)(a) and (b) respectively. In this matter, Mr Costigan is contending that he was forced to resign from his employment as per the second limb of s. 386(1).

[21] There are exemptions to the operation of s. 386(1),[3] none of which are relevant in this matter.

[22] Section 387 of the Act provides for the factors that must be taken in to account in the consideration of whether a dismissal was harsh, unjust or unreasonable.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant."

[23] If I find that Mr Costigan was not dismissed pursuant to s. 386 of the Act, the application will be dismissed. If I find in the alternative, I will proceed to consider whether the dismissal was unfair and make findings accordingly.

[24] Mr Costigan gave evidence on his own behalf.

[25] Mr Costigan says that he had applied for a "Junior Accountant" role at KOR despite having more experience than was required, because he could see the potential to grow his career within KOR.

[26] Mr Costigan says that KOR added a supply chain management role to his position but the salary offered remained the same. He says that he accepted the role and extra responsibility anyway because he wanted to work at KOR and could see future career growth potential at KOR.

[27] Mr Costigan says that he then started his role as Finance and Supply Chain Management, and was expected to cover administrative tasks and responsibilities for at least 7 months.

[28] Mr Costigan says that his agreed work hours were 9:00am to 5:00pm; however, Mr Roberts asked him to start at 8:30am and he was expected to stay until at least 5:30pm since his first day with KOR. He says that his workload and deadlines often prevented him from taking lunch breaks and participating in staff lunches. Mr Costigan says that when he did have the opportunity to step away from his desk to take a lunch break, there was not always someone to answer the phones so he would often eat at his desk.

[29] Mr Costigan says that, despite the mounting responsibilities, longer work hours and lack of financial compensation, he never once complained because he loved his job and felt like he was making a difference based on the feedback he was getting regularly from his colleagues and in his regular KPI meetings with Mr Roberts, where Mr Roberts would reassure Mr Costigan of his future potential within KOR.

[30] Mr Costigan says that, in the beginning of August 2021, despite working in the office for almost all of the time of lockdowns and restrictions, he was asked to work from home on a consistent basis for what ended up being his final two weeks at KOR.

[31] Mr Costigan says that he was asked to come in to work on 31 August 2021. When he finished reviewing invoices issued to a customer, he and Mr Roberts met to go over his findings.

[32] At the conclusion of this meeting, Mr Costigan says that Mr Roberts asked him to wait for a second and that he would be back. Shortly afterward, Mr Roberts returned with another Manager.[4] During this second meeting (the resignation meeting), Mr Roberts informed Mr Costigan that he was still making errors, and that because of this his employment would be terminated effective that day and that that regardless of anything that Mr Costigan had to say the decision to end his employment that day would not change. Mr Costigan says that Mr Roberts then raised the following issues to which Mr. Costigan provides the following responses.[5]

• A single data entry error made on 13 June. Mr Costigan says that this is irrelevant as it was an error made before the formal warning on 22 July 2021.

• A new employee's phone number being entered incorrectly on 15 July 2021; however, Mr Costigan says that this was an error made by administrative staff.

• Late approval of creditor invoices. Mr Costigan says the task could not be completed on time due to a lack of communication from Mr Roberts who he says failed to respond in a timely manner to emails and messages regarding the task.

• That Mr Costigan had wasted unnecessary time preparing the import file for the BU budget and had done more work than was required. Mr Costigan says that they both had agreed via email on the approach Mr Costigan would take beforehand. The budget had been imported but, due to software limitations, which he says were in the process of being resolved by IT specialists at the time of the dismissal, a report could not be produced in a timely manner. Mr Costigan says it is important to note that there was no due date for this task and throughout the process he ensured that Mr Roberts was well informed.

• That the Primus balance sheet reconciliation was not completed on time. Mr Costigan says he had nearly finished this task using the opening balances in the system but, after completing a significant body of work, he was informed that the accountants had changed these balances. After communicating this to Mr Roberts, he had asked Mr Costigan to prepare an entry to correct these numbers, and then to re-reconcile a number of accounts based on the new closing balances. This new information was provided to him on 23 August 2021. Mr Costigan says that had he been provided with the correct information from the beginning a lot of time could have been saved, and the task could have been completed without issue.

[33] Mr Costigan says he was provided with the option to resign, and Mr Roberts said he would be willing to write a reference for him as long as it did not relate to attention to detail matters.

[34] Mr Costigan submits that he felt relieved when Mr Roberts provided him with the option to save face by allowing him to resign. Mr Costigan submits that he was not in a clear mindset, being completely blindsided, and unable to clearly consider the grounds for resigning. Mr Costigan submits that he would not have resigned, or even considered it, if not for the actions of KOR, and says that not being able to properly consider everything, he took the option to resign. Mr Costigan says that this was the only real option available to him.

"Mr Roberts noted that it would help me to get another job if I resigned instead and that he was willing to write me a reference if I did so. I was informed that I would have to accept this option before going home on that day, otherwise I would instead just be dismissed."[6]

"...I did not think my prospects of getting another job would be likely if I could not at least provide a reference from KOR. I felt that I had no real choice but to accept the offer ... I was asked to clear my desk, send some documents to Mr Roberts, grab any receipt - credit card receipts and to write a farewell email."[7]

"During this whole ordeal I was not thinking straight and I was still under shock".[8]

"Our meeting commenced at approximately 3.30pm and I left the premises at KOR immediately after sending the resignation letter at 4.07pm Within the space of this 37 minutes at no point did it feel like I had any opportunity to stop and think."[9]

[35] Mr Costigan says that Mr Roberts told him to pack up his things from his desk and write a farewell email to his colleagues in a meeting room close to his office. Mr Costigan says that this was extremely difficult to do as he was still dealing with the shock and embarrassment of losing his job. Mr Costigan says that while he was trying to write the email Mr Roberts kept walking in and out of the room asking him if he was finished. Mr Costigan says that this meant that he had very little time to collect his thoughts and that he quickly sent out a farewell email at 3:53pm.

[36] Mr Costigan says that, after sending his colleagues a farewell email, he returned to Mr Roberts' office who then told Mr Costigan that he now needed to send his resignation email. Mr Costigan says that he was not given the chance to do this at his desk and that he was told to write up this email on Mr Roberts' desk with Mr Roberts present in the room. Mr Costigan says that the resignation email was sent at 4:04pm and he was subsequently escorted off the premises by Mr Roberts.[10]

[37] Mr Costigan says that he later found out that KOR had a replacement for him a week after he had been forced to resign. Mr Costigan says that he believes this demonstrates that the time he was working from home was only to allow KOR to conduct interviews without him knowing.

[38] Mr Costigan submits that, on 31 August 2021, KOR had already determined its stance to part ways with him, which he says is supported in the witness accounts of Mr Roberts and Mr Cusworth. Mr Costigan submits that the facts are clear that even if he had not accepted the offer to resign, KOR would still have ended his employment. Mr Costigan submits that in order to accept the offer to resign, he was required to do this before the end of the day.

[39] In consideration of the items in the resignation meeting which were relied upon by KOR, Mr Costigan submits that there was no real evidence that he had made any further errors following the July meeting, as both errors were identified prior to what he says was the first warning, and the remaining items discussed were not clear indicators of poor performance.

[40] Mr Costigan submits that he was forced to resign, and that the grounds relied upon were not reasonable or sufficient to warrant his dismissal.

[41] Mr Costigan submits that in Grundy v Brister and Co [2019] FWC 3242 the Commission, in a similar scenario, decided that the employee had been forced to resign. He submits that:

• On the facts of this case, the employer initiated the dismissal of the employee for serious misconduct, but afterward offered for the employee to resign instead.

• When the employee later claimed that he was forced to resign, the employer raised a jurisdictional objection that the employee had resigned voluntarily.

• The Commission determined that the employer had forced the employee to resign, and that he had been constructively dismissed.

• Mr Costigan submits that, applying the facts of this case, this is directly comparable to his resignation from KOR. He had been informed of his dismissal, and then provided with the option to resign instead.

• Mr Costigan submits that, on the balance of the facts it is clear that he was constructively dismissed.

[42] Mr Costigan submits that Knight v Wattyl Australia Pty Ltd on which KOR relies is distinguishable on the facts from this case and says:

• The facts of this case indicate Mr Knight was informed that a decision had been made to terminate his employment, and that Mr Knight's representative asked if it were possible to negotiate a demotion or some other outcome, which was rejected. His representative then asked about resignation and Wattyl's representative said it was totally up to Mr Knight. There was then a private conversation between Mr Knight and his representative and Mr Knight resigned.

• Mr Costigan submits that the facts of this case are significantly different to those expressed in Grundy v Brister and Co. In this instance, Mr Knight dealt through a representative, who attempted to negotiate the termination of his employment.

• Mr Costigan submits that, during the course of this negotiation, the resignation offer originated from the representative of Mr Knight, rather than from the employer.

• Mr Costigan submits that, following the employer's response to this request, Mr Knight discussed this option privately with his representative, and then Mr Knight resigned.

• Mr Costigan submits that the Commission held the opinion that the applicant chose to resign, on the advice of his union representative, rather than being forced by the employer.

• In conclusion, Mr Costigan submits that this case is not sufficiently similar to be relied upon in considering if forced resignation occurred.

[43] Mr Costigan submits that one of the fundamental challenges he faced while working for KOR was that he was responsible, for the majority of his employment at KOR, for four competing roles, being Finance, Supply Chain, Receptionist and Administration.

[44] Mr Costigan submits that the challenge of undertaking four different roles was that at times he was forced to put aside some deadlines from one role, to attend to more urgent ones in another role. Mr Costigan provided the example that a truck that was about to board a ship in Europe needed to be changed to another ship at the last minute because of a truck sale. Mr Costigan submits that at times he had to put urgent tasks on hold to complete menial tasks like regularly leaving the office to go and buy coffees from a local café (at the request of Mr Roberts), setting up and cleaning meeting rooms (even when the administrative staff returned from maternity leave), accepting Parcel deliveries and inducting visitors on site. Mr Costigan submits that tasks such as these were frequent, and constantly disrupted his workflow.

[45] During their monthly KPI meetings, Mr Costigan says that Mr Roberts would frequently note the good work he was doing, and the things he wanted Mr Costigan to be able to do in the future. Mr Costigan says that Mr Roberts expressed his desire to "free me up" by hiring a new supply chain and second administrative staff so that he could do more reporting and analysis. In these monthly meetings Mr Costigan says that Mr Roberts would often acknowledge that Mr Costigan had taken a pay cut when accepting the role at KOR and express that he had the potential to be the next CFO, with the promise that his salary would be $100,000 within two years.

[46] Mr Costigan says that up to this point in May he had contributed a lot to KOR such as streamlining the supply chain, overhauling the monthly management reporting, and making many other improvements and developments which benefitted his colleagues. Mr Costigan says that Mr Roberts and he had been discussing for months prior what his new role would look like, and that Mr Costigan would take the full reporting responsibility for the new operations centre in the new year.

[47] Mr Costigan says that having spoken with Mr Roberts a few times about his future responsibilities, he looked up the market value for a Business Analyst and Management Accountant. Mr Costigan says that, given the market value for similar roles, he determined a fair salary would be in the range of $100,000.

[48] Mr Costigan says that he requested that Mr Roberts consider $100,000, explaining that he believed that this was a fair value based on the contribution he was making at KOR and taking into account Mr Costigan's new upcoming role.

[49] Mr Costigan says that Mr Roberts expressed that they could discuss it in their salary review meeting, and they booked in a meeting for 26 May 2021.

[50] Mr Costigan says that on 26 May 2021 Mr Roberts suggested they walk to the Arbor Café and have lunch together. Mr Costigan says that, after lunch, he and Mr Roberts discussed Mr Costigan's new role, his salary request, the quality of his work so far, and he expressed encouragement to now take focus on carriage and closure of tasks as he started this next chapter. Mr Costigan says that it was not a formal meeting as Mr Roberts stated in his witness statement; it was a casual conversation over lunch where he offered some advice on things Mr Costigan could do to get the salary he had requested and how to make note of the financial impact his work was contributing to KOR.

[51] Mr Costigan says that, while they were still in the Arbor Café, Mr Roberts countered his request for $100,000 with $75,000 (from $65,000). Mr Costigan responded that this was below what he valued his contribution. Mr Roberts then offered a salary of $80,000 and that he could get Mr Costigan to $90,000 after 31 December 2021 if he met all his KPIs until that date. After being allowed to consider it, Mr Costigan accepted this offer.

[52] On 13 July 2021 Mr Costigan says that he received a breakdown of his new salary, which indicated that the $10,000 increase was to be another bonus, rather than a pay increase. When Mr Costigan raised this with Mr Roberts he said that he could not get his base salary to rise that much all at once, but that in future years Mr Costigan would have more opportunity to do so. Although this was not what they had agreed to, Mr Costigan says that he did not pursue this further.

[53] When bonuses were paid in the first week of July, and Mr Costigan had not received his, Mr Costigan says that he asked Mr Roberts about it, and he explained that this now formed part of the new December bonus. Mr Costigan says that he expressed that this was not how he had understood it, but Mr Roberts stated that it was the reason why Mr Costigan had the opportunity for a bonus up to $10,000 in December.

[54] Mr Costigan says that on 21 June 2021 he met with Mr Roberts for one of their routine KPI meetings, and at the end of this Mr Roberts brought up some recent items that he thought Mr Costigan needed to be aware of. Mr Costigan does not agree that this was his first formal warning. The following are the issues Mr Costigan says were raised by Mr Roberts followed by his responses:

• One truck LUX model had not been recognised in the database properly: Mr Costigan says that he had never been told that this model existed. In his original handover, Mr Costigan had requested clarification on naming conventions since there was some inconsistency between departments at KOR about how the same truck would be written. During this handover, there were many trucks with additional letters or descriptions, but they prepared a standardised set of names to use across the board. During their discussion Mr Costigan was told to ignore the LUX part of the name, and to note these as "Industrial". He says that at no point did he ever receive training or advice on the truck models, so he took initiative where possible to learn the truck names and understand the differences on his own. He says that this truck was a one-off unit model that Mr Costigan had never been told about, which is why it was recorded incorrectly.

• A missed payment for MBPG: Mr Costigan says that this was a new role he assumed at the beginning of June, and as such he was still establishing best practice. In this instance, Mr Costigan says that he had notified Mr Roberts that this had been entered and ready for him to pay, however, he did not make this payment, and insists that he did not inform him. To fix this issue he made sure all future payment requests were noted via email, and this error did not occur again after this time.

• A confidential email was sent to the administrative staff.

• Miscoded a creditor invoice to the wrong entity: Mr Costigan says that he would routinely enter batches of at least 30 invoices at a time, and he entered one into the wrong entity. He says that when he became aware of this issue he modified his process and did not make the same mistake again.

• Sent an employment pack to the wrong address: Mr Costigan says that on 17 June 2021 at 9:53am he had received an email from a colleague directed to him and Brittney, KOR's administrative staff member who was working from home on this day. Mr Costigan says that in this email it was requested that either he or Brittney send the employment pack to a new employee in Queensland, and the colleague then provided them with the new employee's address. Mr Costigan says that at 9:53pm Brittney sent him an email to request that he organise the postage, and provided him with an address that she had received from the colleague. Mr Costigan says that he organised this promptly, using the address provided to him from Brittney. Around 2:00pm that day Mr Costigan says that he realised that the address provided to him from Brittney was incorrect, and he was able to resolve the issue before the item was actually sent.

[55] On 22 July 2021 Mr Roberts and Mr Costigan again met to go over his KPIs for the month, and Mr Roberts afterward expressed concern that he had found more errors and wanted to talk through how they could resolve this. He indicated that he was issuing a formal warning for these errors. During this discussion Mr Costigan says he noted that he felt like his workload was impacting his ability to complete tasks, and that he had so many deadlines that he found himself rushing through tasks to get things done. Mr Costigan says that Mr Roberts expressed that they have a weekly meeting, and that Mr Costigan should be open to push things back if needed. Mr Costigan says that he accepted Mr Roberts' advice to push tasks back so he could take more time on each one. Mr Costigan's responses to the items outlined in that meeting are as follows:

• Mr Costigan had not reviewed the historical pricing during the Rangedale Invoice Review: Mr Roberts and Mr Costigan had prepared monthly invoice review from April 2021, up to this point, with a consistent procedure of checking that discounts were applied (as these were often missed) and determining the profit margin. In this instance Mr Costigan prepared the monthly review consistent with prior months, and after the usual review concluded it was requested that he print the historical prices and staple them to the back of each invoice. Mr Costigan followed this instruction and finalised the month as normal. Mr Costigan says that at the point of sending them out Mr Roberts then noted the reason for this request, and criticized Mr Costigan's lack of review over historical pricing which he says was a new item that had not been mentioned once for review.

• Employment Hero email sent out to operations staff for certifications: The software in question had a toggle for "Setup mode" which would disable emails going out to employees while this mode was turned "on". During one instance of the system being in setup mode Mr Costigan was setting up license and training for operations staff, and upon completion the system issued requests to the staff he had listed. He was informed immediately by a colleague, and Mr Costigan says he quickly checked and setup mode was still "on". Mr Costigan says that this issue was promptly raised with the Employment Hero team, as well as with Mr Roberts, and Mr Costigan notified all affected staff to disregard the email.

• On 9 July 2021 Mr Roberts had to re-explain the associated trust to one of the companies in the Birrel Group: Mr Costigan says that, in this instance he had misplaced his note. He says he then requested a copy of the entity register, and was provided with this on that date.

• Credit applications for customers not being sent to Brittney, and reflected poorly on KOR: KOR had developed a new system for credit applications for customers, which required them to complete a form via Microsoft Forms, and an email would then be sent to KOR's administrative staff. Mr Costigan had prepared the form, and tested it with the assistance of Brittney. In his testing Mr Costigan had requested that she complete the form, to see if he received an email, which he did. Once Mr Costigan checked this, and that the form itself was functioning correctly, he transferred the template into Brittney's name. With this transfer he set up her email address to receive new applications, and then promptly tested that she received his test submission, which she did. Following this, two customers had filled in the form, and this had not been responded to. Mr Roberts indicated that the fault was on Mr Costigan's as he had managed the process. Mr Costigan says that Mr Roberts was responsible as he was Brittney's manager and Mr Costigan asserts that he had performed his task to the best that it could have been done. At the time that this was brought up in their meeting Mr Costigan suggested that Brittney had simply missed these emails, but Mr Roberts informed Mr Costigan that it was simply poor management on his part, and that he should have tested it better. Mr Costigan then suggested he send a submission for the form immediately, and check if she received it. Mr Costigan says that he did this and after the meeting he confirmed that she did receive it.

• Stock in transit and spare parts audit workpapers were not ready: Mr Costigan says that the workload that was given to Brittney was a one-off, however, he was also working long days, and evenings. Mr Costigan had also been working with their Inventory Controller to see which invoices were not yet in the system, and most of the delays in this task were when he had to wait for the Inventory Controller to finish checking the information from his side. The invoices were all finally confirmed, and provided to Brittney on 16 July 2021. This data entry was part of her role, and Mr Costigan had performed this type of work whilst managing the administrative duties, in addition to his other roles. Mr Costigan says that, on top of this not being part of his role, he also had his own urgent priorities which he was required to focus on. He says that some of the tasks he had to do were finalising the end of financial year stocktake (which he had been asked to manage), finalising the end of financial year management reports, and reviewing the sold trucks for the previous month, which he says was significantly more than the past three months combined.

• When asked about stock in transit on 21 July 2021 Mr Costigan could not give an exact answer: Mr Costigan says that Mr Roberts asked for clarification of stock in transit shortly after 9:00am. Mr Costigan says that he had no prior warning that this information was requested, nor was he aware until that date that Brittney had even done the data entry over the weekend. Mr Costigan says that the ledger was messy because the value of the stock received did not always match the original invoices, and the stock from those invoices would frequently come in 2-3 parts. Mr Costigan says that, because of the nature of the ledger, the only way to properly understand it was to match the reference numbers and amounts together, which took at least an hour. Mr Costigan says that atthe time when Mr Roberts requested the information from him, he explained that he had not yet looked at it, and could not tell him until he had reconciled it.

• An email was sent from Employment Hero unintentionally on two occasions: Mr Costigan says that he had found out immediately on both instances that this had occurred, and that he was still in the process of learning and testing this software. Mr Costigan says that in both instances he promptly informed all staff to ignore these emails, both in person and via email, including expressing this to Mr Roberts both verbally and via email.

• Mr Costigan had sent an email to Graig Bolton instead of Craig Brattan.

• Mr Costigan had not yet entered in the batch of creditor payments on 19 July: Mr Costigan says that Mr Roberts would frequently drop deadlines on him at the last minute, and require completion within a few hours. Mr Costigan says that in this instance he received word that these invoices had been uploaded to OneDrive (and were therefore able to be entered in) at around lunch time. He says that at the time he was focussed on attending to the external auditors who had also come in on that day, and were directing most of their questions at him. Mr Costigan says he was also required to attend to setting up meeting rooms, grabbing coffees at the request of Mr Roberts, and meeting with the external IT implementation team to discuss software changes. In regard to doing this task, Mr Costigan says he began the data entry during his lunch break, continued it during his meeting with the IT team, but had not completely entered all invoices, or managed to call these suppliers to confirm the payment details in order for payment to be made.

• Bank account error on 20 July: Mr Costigan says this issue is connected with the task above, where he was doing data entry whilst in another meeting with the IT team. Mr Costigan says in this instance he verified the bank details with the customer and says that he had not yet been given access to enter the bank details into the system. Mr Costigan says he requested this from Mr Roberts, and was granted access roughly 2 hours afterward. Mr Costigan says he understands that he made an error here, and says he did not make any others like it before or afterward.

[56] Mr Costigan submits that the rationale for his dismissal was focussed on the idea that he had made several further errors since the July meeting. Mr Costigan contends that the only errors which occurred were well before the formal warning in July, and the remaining items that were noted were of little overall consequence and not in proportion to the ultimate punishment attached to them. Mr Costigan says that he also had made every effort to improve his work, taking on the advice to push work back and take more time on tasks to avoid future errors. Therefore, Mr Costigan concludes that his dismissal was unfair and relies on:

• Selvachandran v Peterson Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371

• Rode v Burwood Mitubishi Dec 451/99 M Print R4471 AIRC

[57] Mr Costigan also refers to Wadley v YMCA Canberra,[11] which he submits expresses that there should be a proper opportunity to defend reasons for termination before the decision is made. In reference to the case, he cites the following passage:

"[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in his opinion, does not constitute an opportunity to defend."

[58] Mr Costigan submits that he was given no opportunity to explain himself and, rather, that he was informed that irrespective of any comment he made the result would remain the same. Furthermore, Mr Costigan says that KOR had already hired his replacement, who started one week after he was dismissed.

[59] Mr Costigan says that KOR has provided an outline of the July meeting, in which he was provided with a few items to work on. Mr Costigan says that he was informed that this would be a formal notice. In the "Case Responses" document filed as part of his submissions, a copy of which is attached in Annexure A, Mr Costigan says that he provides feedback on the claims made against him in July, as well as the claims made against him at the resignation meeting.

[60] Mr Costigan submits that the grounds for his dismissal do not demonstrate that he had failed to improve, or that his actions warranted dismissal. Mr Costigan submits that, had he been given the opportunity to defend or discuss these matters properly, this could have been resolved without leading to termination of employment.

[62] In the first instance, KOR submits that Mr Costigan is not eligible to make an unfair dismissal application to the Commission because he was not dismissed and that he resigned from his employment with KOR on 31 August 2021.

[63] KOR asserts a jurisdictional objection of no dismissal first and foremost to dispute the application. KOR asserts that evidence held by it in the form of email correspondence from Mr Costigan to Mr Roberts shows a clear resignation.

[64] KOR submits that, if the jurisdictional objection is not upheld, the unfair dismissal application must fail as Mr Costigan was fairly dismissed based on his performance. KOR says that this is supported by evidence including an email from Mr Roberts to Mr Costigan dated 22 July 2021, notes from various performance feedback meetings between KOR and Mr Costigan, as well as the witness statement of Mr Roberts.

[65] KOR submits that Mr Costigan's outline of his position in relation to the merits of the application neglects to outline the legal basis on which his application relies. They submit that, save for assertions from Mr Costigan of the false apportionment of blame on him for mistakes made throughout his employment, his submissions do not offer any specific argument regarding the perceived harshness, unjustness or unreasonableness of the dismissal he claims.

[66] KOR submits that, if Mr Costigan is found to have resigned (as opposed to being dismissed), his claim in unfair dismissal cannot be successful.[12]

[67] KOR submits that in O'Meara v Stanley Works Pty Ltd[13] the Court distilled the test of "at the initiative of the employer":

"In determining whether a termination was at the initiative of the employer, an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result, or that the appellant had no effective or real choice but to resign."

[68] KOR contends that the question to be determined is whether resignation was the probable result or that Mr Costigan had no effective or real choice but to resign.

[69] KOR submits that the case of Knight v Wattyl Australia Pty Limited[14] considered this issue in circumstances where an applicant had resigned during a meeting or interview with his employer:

"While the evidence shows that the applicant decided to resign as a direct consequence of the decision taken by his employer to terminate his employment, his decision was not "forced" upon him by his employer. The applicant chose to resign..."

[70] KOR submits that, on 31 August 2021, Mr Roberts met with Mr Costigan in a disciplinary meeting to discuss ongoing performance issues which had been previously raised with Mr Costigan. KOR submits that the resignation meeting came as the culmination of various attempts by KOR to address Mr Costigan's unsatisfactory performance.

[71] As outlined in Mr Roberts' witness statement, KOR submits that the unsatisfactory performance of Mr Costigan included instances of:

• Wasted time spent completing work that was not needed and outside scope; and

• Overdue deliverables that were still outstanding.

[72] KOR says that at the resignation meeting Mr Roberts explained to Mr Costigan that his performance had not improved sufficiently to continue in his position and offered Mr Costigan the option to resign.

[73] KOR says that at the resignation meeting Mr Costigan said that he would like to resign effective immediately and would prepare a letter of resignation accordingly. KOR submits that Mr Costigan was instead offered time to himself to consider his options and independently decided to resign.

[74] At 4:04pm on 31 August 2021, being the same day as the resignation meeting, KOR says that Mr Costigan sent the following email to Mr Roberts:

At this point in time I would like to exercise my right to resign effective today Thanks,"

[75] KOR submits that the facts of this case are comparable to those of Knight v Wattyl Australia Pty Limited, wherein the applicant's resignation was brought about following a disciplinary meeting with his employer. KOR submits that in that case "the applicant gave clear evidence that he was not 'forced' to resign by any action of his employer."

[76] KOR submits that the finding in that case that the employee was not forced to resign was upheld despite evidence that showed that he had decided to resign as a direct consequence of the decision taken by his employer to terminate his employment.

[77] KOR submits that in that case the Commission also found that the applicant had failed to discharge the onus required of him to prove that his resignation was forced. Accordingly, KOR submits that the Commission found that there was no dismissal, as the termination was not at the initiative of the employer, despite the employer having expressed their intention to terminate the employee in a meeting.

[78] Similarly, KOR submits that in this case the onus of proof rests with Mr Costigan to demonstrate that he was forced to resign because of conduct engaged in by KOR_._ KOR submits that Mr Costigan has not provided any evidence of compulsion or coercion and, instead, that he freely admits that an optional choice was made available to him.

[79] In contrast to the facts of Knight v Wattyl Australia Pty Limited, KOR submits that Mr Costigan in his submissions admits that he "was provided with the option to resign" at the resignation meeting, and that Mr Roberts said that he "would be willing to be a reference for [Mr Costigan]". Consequently, KOR contends that Mr Costigan has provided evidence that he was not forced to resign but, rather, was given the opportunity to make a free choice.

[80] KOR submits that it accepted the resignation on 31 August 2021 and at no time has Mr Costigan sought to withdraw his resignation.

[81] KOR submits that the Commission should uphold KOR's jurisdictional objection of no dismissal and consequently dismiss the application.

[82] KOR submits that, in the alternative, in accordance with s. 387(e) of the Act the dismissal related to unsatisfactory performance by Mr Costigan.

[83] KOR submits that Mr Roberts has provided evidence that Mr Costigan had been on notice of his unsatisfactory performance for close to 12 months.

[84] KOR submits that the performance issues of Mr Costigan failed to improve despite discussions where KOR gave notice that his performance would need to improve if he wished to maintain his position.

[85] The details of feedback meetings that occurred on 12 October 2020, 4 November 2020, 26 May 2021, 4 June 2021, and 21 June 2021, are outlined in the witness statement of Mr Roberts. In these meetings, KOR submits that Mr Costigan was provided with verbal feedback regarding the inadequacy of his performance.

[86] KOR says that at the regular Monday meetings with Mr Costigan, Mr Roberts would address errors in Mr Costigan's work as they arose. Mr Roberts produced notes from 5 dates spanning October 2020 to June 2021.

[87] Of these meetings, Mr Roberts says the following:[15]

"14. On 12 October 2020 I met with the Applicant at approximately 9:30am to go through some agreed deliverables for the week, including:

b. Parts invoicing and daily GP report to be sent out.

c. Debtor reminders were discussed and the Applicant advised me that Tuesday was the "usual day" for this task.

d. Operations KPI reports were discussed and I informed the Applicant that I required the monthly reports on that same day.

e. Date for ROIC spreadsheet, the Applicant agreed to email Chris and Tim and copy me into the correspondence.

15. On review of what was completed following our meeting on 12 October 2020, I noted the following:

a. No creditor invoices were loaded in BC and 33 invoices for the previous week were loaded (a week delayed).

b. I did not receive a daily parts report at any point.

c. Monday task management software suggests Monday (not Tuesday) was the Debtor reminder day.

d. No KPI reports or monthly reports were produced to me.

16. On 4 November 2020, at our meeting, I requested the Applicant complete the following tasks:

a. For a second time, request to make the COVID worker permits a priority and to provide them to me for review before the end of that day.

b. Ensure we had 100% annual leave forms before I was able to sign them.

17. On review of the completion of tasks, I noted the following:

a. No worker permits were prepared by the end of 4 November 2020.

b. The Applicant had not provided any response to me about the annual leave forms by close of business on 4 November 2020.

c. Little or no progress on tasks listed at 16.c, d, and e above.

18. I again brought up the Applicant's failure to complete the tasks in paragraphs 14 and 16 with him at subsequent meetings in May, June, July and August, however, the tasks were then either completed late, contained errors and/or required significant supervision.

19. On 26 May 2021 I met with the Applicant to discuss the gap between his actual performance and the expectation of his performance. I made it clear to the Applicant at that meeting that he would need to improve his performance.

20. We discussed some of the errors he had made, and I asked him to comment on how this might be improved. At this stage I was fully supportive of him continuing in his position but made clear that improvements would be needed in his performance.

21. At the meeting, I listed several errors that the Applicant had made, and deliverables

22. On 21 June 2021 I met again with the Applicant for a formal performance management meeting. At this meeting I again listed more errors that had been made by the Applicant in his role, some of which included:

a. Incorrect entry of truck detail into database which led to significant lost revenue for the Respondent.

c. Sent a confidential employment contract containing confidential details about another employee's salary to our office manager without first removing the amount of the salary, thereby compromising the confidentiality agreement with our employee.

d. Sent an employment pack to the wrong address, despite extensive instructions

23. The meeting on 21 June 2021 constitutes the first formal warning given to the Applicant that if his performance did not improve, his position would be terminated.

24. At the meeting we had a lengthy discussion about how the Applicant could improve. Some of the strategies we spoke about included:

a. Prioritising accuracy over speed. I encouraged him to slow down and try not to rush through tasks.

b. Introducing a process of self-review at the end of each task to attempt to pick up errors before they are forwarded to other members of the team, including myself.

c. Using the meeting rooms, my office or headphones to create a distraction-free workspace for designated periods of time, thereby limiting the effect of disruptions to his workflow and encouraging better focus.

d. Implementing a system of "blocked time" to focus on specific tasks, to avoid multi-tasking."

[88] Again, on 22 July 2021, KOR notes that Mr Roberts met with Mr Costigan to discuss ongoing issues with errors being made in the course of his employment. KOR submits that Mr Roberts also provided notes relating to the July meeting via email to Mr Costigan on 22 July 2021, outlining what had been discussed in their meeting of that day and outlining some strategies to improve his performance.

[89] KOR submits that, at the July meeting, Mr Costigan agreed with Mr Roberts that his performance was not and had not been at an acceptable standard.

[90] Further errors of concern were discussed in a meeting between Mr Roberts and Mr Costigan in the July meeting and set out in a letter between the parties later that day.[16] This letter reads as follows:

"We met on 21 June to discuss errors relating to lack of care / attention to detail. We discussed a number of examples and together agreed on the following solutions:

• Accuracy over speed, slow down and try not to rush through tasks

• Introduce self-review at the end of each task to attempt to pick up errors before they come to me

• In order to block out distractions use the meeting rooms, my office or headphones to better focus

• Block time to focus on specific tasks, don't multi-task

Despite our discussion the number of errors, some minor, others extremely material, have not reduced. In fact they have become more of a concern. Examples we went through today were:

02.07.21 Rangedale invoice review - historical prices were not reviewed. Risk of sending out invoices with higher price when the customer specifically put us on notice that there was an issue with consistent pricing. When the email was sent to customer still had reversed invoice for hose correction on the summary.

05.07.21 Employment Hero - email prematurely sent out to ops staff for certifications. Whether this was an error or not it displayed a lack of understanding of a project you were leading and reflected poorly on the finance team and KOR's HR function.

09.07.21 Had to ask about Devereux Properties Pty Ltd again. This had been communicated before and the register of entities was shown to you.

15.07.21 Credit applications for customers were not being sent to Brittney. We missed 2 x applications. Bad 1st experience for customers. I have not checked Brittney's emails yet, when I do and if the emails are discovered this will be deleted.

16.07.21 Stock in transit and spare parts audit workpapers were not ready. By not managing the process a significant body of work was handed to Brittney approximately 10 business hours before the due date. This resulted in 6.5 hours of overtime for Brittney on a Sunday. When we met on 21.07 you could still not articulate which shipments were in transit.

19.07.21 Found out EH emails were sent out late June (was never informed). This is in addition to the issue on 05.07.21

19.07.21 sent an email to Craig Bolton instead of Craig Brattan. Easy mistake to make, not material if it wasn't for the quantity of errors above.

19.07.21 conversation was had with you that MPG creditor payments were overdue which was unacceptable. This was identified as an immediate priority. I had to follow up with you again on 20.07 as I had heard nothing.

20.07.21 Bank account error for Sharp and Howells. Risk of losing $10k. No verbal verification notes, which is the agreed and understood procedure. Three opportunities to verify.

[91] KOR submits that, at and after the meetings, including the July meeting, Mr Costigan was given the opportunity to respond and improve.

[92] Ultimately, KOR contends that the responses given by Mr Costigan were not satisfactory to KOR, and Mr Costigan did not improve his performance.

[93] KOR submits that Mr Costigan admits in his submissions to multiple errors made as well as the opportunities afforded to him by KOR to respond. KOR notes that he also admits that the July meeting was explained to him as being a "formal notice".

[94] KOR submits that procedural fairness was provided to Mr Costigan by virtue of:

"27. In accordance with section 387(e) of the Act, the dismissal related to unsatisfactory performance by the Applicant.14

28. Mr Roberts has provided evidence that the Applicant had been on notice of his unsatisfactory performance for close to 12 months.15

29. The performance issues of the Applicant failed to improve despite discussions where the Respondent gave notice that his performance would need to improve if he wished to maintain his position.16

30. The details of feedback meetings that occurred on 12 October 2020, 4 November 2020, 26 May 2021, 4 June 2021, and 21 June 2021, are outlined in the witness statement of Mr Roberts.17 In these meetings, the Applicant was provided with verbal feedback regarding the inadequacy of his performance.

31. Again, on 22 July 2021, the Respondent met with the Applicant to discuss ongoing issues with errors being made in the course of his employment (Performance Meeting).18 Mr Roberts also provided notes relating to the Performance Meeting via email to the Applicant on 22 July 2021, outlining what had been discussed in their meeting of that day and outlining some strategies to improve his performance.

32. At the Performance Meeting, the Applicant agreed with Mr Roberts that his performance was not and had not been at an acceptable standard.

33. At and after the meetings, including the Performance Meeting, the Applicant was given the opportunity to respond and improve.19

34. Ultimately, the responses given by the Applicant were not satisfactory to the Respondent, and the Applicant did not improve his performance.20

35. The Applicant admits, in the outline of his position, to multiple errors made as well as the opportunities afforded to him by the Respondent to respond.21 He also admits that the Performance Meeting was explained to him as being a "formal notice".22"

[95] KOR submits that, subsequently, at the resignation meeting, Mr Costigan was again informed that his performance had not sufficiently improved.

[96] Accordingly, KOR submits that, if the Commission finds that Mr Costigan was dismissed, that dismissal came about as the result of valid reasons, to which Mr Costigan was given ample opportunity to respond and improve. KOR contends that the dismissal, therefore, ought not be found to be harsh, unjust or unreasonable.

[97] KOR says that in order for Mr Costigan to succeed in his application for an unfair dismissal remedy he must satisfy the Commission that he did not resign voluntarily and establish that KOR forced his resignation, by identifying action on KOR's part which brought the relationship to an end or action that had that probable result.[17]

[98] Section 386(1) of the Act allows for dismissal under two distinct limbs, the first being employment being terminated on the employer's initiative and the second being a resignation forced by the conduct of the employer where the employee had no choice but to resign.

[99] Mr Costigan submits that he was dismissed as per s. 386(1)(b) of the Act.

[100] The meaning of "dismissal' in the context of s. 386(1)(b) was extensively examined by the Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli [2017] FWCFB 3941 (Bupa). I adopt the reasoning of the Full Bench, which held that:

"[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd , that "The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd" (footnotes omitted). The body of pre-FW Act decisions concerning "forced" resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust."

[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element."

[101] In maintaining its position that there was no dismissal and that Mr Costigan resigned, KOR relies on Philip Knight v Wattyl Australia Pty Ltd.[18] The facts in this matter are distinguishable. Unlike the circumstances in Knight v Wattyl, Mr Costigan did not have access to a representative who advised him and negotiated on his behalf and the idea of resignation came from the employer.

[102] There is no dispute that KOR had made the decision to dismiss Mr Costigan. Although unlike Grundy v Brister and Co[19] a termination letter had not been arranged and signed, a decision had been made to terminate Mr Costigan's employment. Under cross-examination Mr Roberts said:

"... when it was decided that your employment would cease at KOR, we intended to go about it in the most human and dignified way, including allowing you to resign, offer a letter of reference and not requiring you to work your four week notice period and also providing you with an additional payment to allow you to transition to the next chapter of your life. So the resignation offer was primarily for your own benefit."[20]

[103] There is some dispute regarding the sequence of events; that is, whether Mr Costigan was given an opportunity to leave the meeting room to think about matters before or after he resigned.

[104] The resignation meeting started at 3:30pm and by 4:07pm Mr Costigan had tendered his resignation.

[105] Mr Roberts had told Mr Costigan that 31 August 2021 would be his last day working for KOR. In that context, the pressure KOR put on Mr Costigan to make a decision in less than two hours, being the end of business for the day, the exact timing of the offer to leave the room to "think about it" is immaterial because it would have been insufficient time in any case for Mr Costigan to make a considered decision.

[106] Mr Costigan knew what he was doing, and in that moment believed that it was in his best interests to resign. That is not the matter in contention. The issue is whether Mr Costigan was exercising individual judgement independent of the employer's actions. Between 3:30pm to the end of the working day, he had been told he would no longer be working at KOR by day's end, had resigned, sent a farewell email to his colleagues, cleared his desk, volunteered his keys and entry fob and lost access to his work emails.

[107] Events were moving quickly. Mr Costigan says that during the meeting he was in shock and not thinking straight, that he was feeling vulnerable and did not think he could get another job without a reference from KOR.[21]

[108] Not every resignation following notification of an impending termination will constitute a dismissal and each matter turns on its own facts. In these circumstances, there was time pressure imposed on Mr Costigan and the actions of Mr Roberts were instrumental in Mr Costigan's resignation. The resignation was Mr Roberts' idea and he presented it as an alternative to termination, together with a positive reference and an additional bonus. KOR's intention was that Mr Costigan, whether through termination or resignation, would cease to be employed by them within less than two hours. There was no genuine attempt to give Mr Costigan time to contemplate the choice of resignation.

[109] In applying the principles in Bupa,[22] it is difficult to come to a conclusion that Mr Costigan was exercising his individual judgement when he accepted the offer to resign. He had no effective choice regarding the tenure of his employment at KOR. The only choice he had was the manner in which he would depart.

[110] In finding that Mr Costigan was forced to resign as per s. 386(1)(b) of the Act, I do not direct any criticism at KOR. KOR's offer to Mr Costigan that he resign, the bonus and the offer of a work reference were their attempt at a dignified exit and to make it easier for Mr Costigan find another job.

Was the dismissal harsh, unjust or unreasonable?

[111] Having found that Mr Costigan was dismissed, I am now required to consider whether his dismissal was unfair; that is, whether his dismissal was harsh, unjust or unreasonable.

Was there a valid reason for the dismissal related to Mr Costigan's capacity or conduct?

[112] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded" and should not be "capricious, fanciful, spiteful or prejudiced."[23] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[24]

[113] In Crozier v AIRC[25] it was found that:

"A reason will be "related to the capacity" of the employee where the reason is associated or connected with the ability of the employee to do his or her job."

[114] KOR submits that there was a valid reason for the dismissal of Mr Costigan related to his capacity to perform the requirements of his substantive role. It is KOR's evidence that Mr Costigan had been on notice of his unsatisfactory performance for almost twelve months [26] and that he had been coached to assist him in improving his performance. Further, that even after the employer reduced his duties in June so that he could focus on core tasks, Mr Costigan continued to make unacceptable errors.

[115] That against the background of poor performance, particularly over June and July, by August 31 2021, the following matters illustrated that Mr Costigan could not perform his job and this constituted a valid reason for dismissal. Mr Roberts notes that the following errors he identified were not exhaustive:[27]

a. Ongoing late approval of creditor invoices which Mr Costigan had not managed, and the urgency of the task was not understood by Mr Costigan.

b. In August 2021, Mr Costigan failed to import the monthly budget for BU for Capellotto and run a budget. KOR say that this is another example of Mr Costigan not taking instructions and incorrectly prioritising tasks.

c. After a discussion on 23 August 2021 that reconciling the Primus balance sheets was high priority, four days later this task had not been completed.

d. Mr Costigan was responsible for checking trade references as part of the application by customers for a 30-day account. ControlTech applied on 3 August 2021 and on 19 August 2021, more than two weeks later, references had still not been checked. KOR submits that this lack of urgency and prioritisation reflected very poorly on the company and likely caused a loss of business.

e. In August another Xero creditor error was discovered that had been made by Mr Costigan on 13 June 2021. Mr Costigan had delivered the invoice net of GST. This resulted in the customer short-paying KOR and querying the invoice.[28]

[116] With regards to the reasons given for dismissal at the resignation meeting, Mr Roberts gave evidence that:

• The "ongoing late approval of creditor invoices" was the same as the problem that had been identified and communicated to Mr Costigan in October 2020.[29]

• In relation to the monthly budget for BU, Mr Costigan's failure to follow instructions to complete only a very small part of the task of quite a large task related to KOR taking on a second major supplier. That the consequence of this was that much of Mr Costigan's work needed to be redone. He says that much of it could have been avoided if Mr Costigan had broken the task into smaller tasks, completed one, imported it, reviewed it and checked it before moving on to the next task.[30] This process had been part of the coaching advice that Mr Costigan had been given by Mr Roberts.[31]

• In response to COVID-19, KOR created an online process for potential customers to open 30-day accounts with the company. This was the first direct interaction potential customers would have with the company and that for over two weeks Mr Costigan had not checked customer references. KOR submits that Mr Costigan not prioritizing this task led to the likely loss of business because of the risk that customers, not having heard whether they had been successful in opening a 30-day account, had gone to competitors resulting in loss of business.[32]

[117] At the Determinative Conference, in response to the question from Mr Costigan, Mr Roberts said:[33]

"Are they demonstrators of a lack of improvement? At the point of that meeting on 31 August as I believe I previously stated, I had lost all trust in your ability to complete tasks on time, in full and without error and I believe I mention in my notes somewhere that on a particular case where you'd sent an email to Craig Bratton and not Craig Bolton, it might be the other way round, but an easy mistake to make, I mentioned that if it wasn't for the quantity of ongoing errors that this particular error is not material, however, the quantity of errors over an extended period of time, errors, lack of comprehension and carriage, have forced me to arrive at a position where I could no longer trust you to complete your role and I was having to complete a significant review of all tasks that you were doing to save the reputation and the profitability of the company."

[118] Mr Costigan responds to the issues raised with him at the resignation meeting as detailed by Mr Roberts. Mr Costigan does not dispute the evidence of Mr Cusworth. Significantly, however, he disagrees with the manner in which the issues raised by Mr Roberts are characterised and offers his alternate characterisation.

• a. In relation to the ongoing late approval of creditor invoices, he submits that this task could not be completed on time due to a lack of communication from Mr Roberts who failed to respond in a timely manner to emails and messages regarding the task.[34] He further stated that:

"I had been instructed by Sean (CFO) that I receive specific instruction for each creditor as to the approval criteria. I was to meet with Sean regarding each new creditor as they arose, and establish the reasonable limits for approval. I consistently requested time to meet with Sean to go over these - to then allow approvals to be done, and this was consistently delayed and pushed back. I then began emailing Sean each time I had a new creditor invoice, but these also were not always replied to in a timely manner".[35]

• b. In relation to his failure to import a monthly budget for BU, Mr Costigan says that he had been instructed by Mr Roberts to find a better way to complete this task but that he had received no formal training on how to achieve this, which he says would involve generating a report within the Business Central software. He says that he spent some time discussing how to achieve this with KOR's software expert and had spent time experimenting with the software and doing his own research. He says that the system was not user friendly and that not all reports within Business Central are known or understood.[36]

• c. In relation to failing to reconcile balance sheets in a timely manner, Mr Costigan says that when he had started the task, prior to being informed that it was urgent on 23 August, this task took longer than normal because the software is keyboard based and is not simple to work with. He says that when initially preparing the reconciliations he was using his workpapers from the previous year as he had not been given access to the financials. He says that after a few weeks of starting the task KOR gave him access to the financials and with these new figures he realised there was a discrepancy with the GST which he was struggling to reconcile. He admits that this task remained incomplete prior to his dismissal.[37]

• d. In relation to failing to check trade references as part of the application by customers for 30-day accounts, Mr Costigan accepts that he did not complete this task. However, he submits that this was a new process for him and that he was struggling to complete this along with his other responsibilities. He says that he had requested support a number of times and asked for this task to be completed by another staff member but that these requests were denied.[38]

• e. In relation to the Xero creditor error, Mr Costigan accepts that he made this error, but he submits that this error occurred before the July meeting and that he never made this error again.[39] He says that this should carry no weight towards grounds for dismissal based on when it occurred.[40]

[120] Mr Costigan contends that the claims against his work were low in impact to his employer, and generally petty in nature. He says that some errors were not errors at all, but, rather, were misunderstandings and other errors were out of his control. Mr Costigan submits that this should also be compared with the quality work he produced, his consistent work ethic, and the meaningful contribution he made on a consistent basis. Mr Costigan says that, even at his dismissal, the Managing Director thanked him for his commitment and work ethic, and in the notes from KOR in May there is an outline of the outstanding work overall that he was able to contribute. Mr Costigan says that he has noted in his timeline of events, and response to the performance notes, that many of the issues presented were impacted by the large work load he was given.

[121] KOR submits that Mr Costigan performed poorly as a Business Analyst and was not able to perform tasks in an efficient and/or professional manner. Further, that even after notice of the matters that needed an improvement in performance, and in spite of multiple opportunities to improve, Mr Costigan did not improve, could not be trusted to deliver accurate work and could not perform work to the required standard.

[122] When asked whether one of the reasons for dismissal was because Mr Costigan continued to make errors, Mr Roberts said:[41]

"Yes, that was one of the reasons for deciding to cease your employment, errors and lack of attention to detail, comprehension of tasks. There was a number of factors, however ongoing and consistent errors were definitely a material factor."

[123] The fact that errors made in July were not discovered until August does not mean that they cannot be matters included in the consideration of s. 397(a). Mr Costigan says that three instances related to tasks being late and one was a misunderstanding. I do not find these characterisations and Mr Costigan's explanations regarding his failure to import a monthly budget for BU and his failure to reconcile balance sheets in a timely manner convincing. I do not accept Mr Costigan's contentions that the claims did not significantly impact his employer.

[124] Considering all the evidence, and the matters referred to above, I find that there was a valid reason for Mr Costigan's dismissal that related to his capacity, being his inability to perform his job to the reasonable satisfaction of his employer.

Was Mr Costigan notified of the valid reason?

[125] It is not disputed that Mr Costigan was notified of the reason for his dismissal and the date that the dismissal was to take effect. Mr Costigan was advised orally at the resignation meeting.

Was Mr Costigan given an opportunity to respond to any valid reason related to his capacity or conduct?

[126] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for this dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[42]

[127] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[43] 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.[44]

[128] In his Form F2 application Mr Costigan says that his actions did not warrant dismissal and that he had improved. He says that had he been given the opportunity to "defend or discuss these matters properly" that the issues would have been resolved and that he would not have been terminated.

[129] At the resignation meeting, Mr Costigan was presented with reasons for his dismissal and, as detailed earlier in this decision, was given a choice of resigning or being dismissed. It is not in dispute that KOR had decided to terminate Mr Costigan's employment regardless of what Mr Costigan had to say in response to the reasons and errors detailed by KOR at his resignation meeting.[45]

[130] KOR had previously given Mr Costigan opportunities to rectify the issues identified in the May meeting and the June and July meetings. By the resignation meeting, Mr Roberts had reached the conclusion that:[46]

"[Mr Costigan's] position and the errors and lack of performance had created a position where I could no longer trust you to do your work. I had to conduct a significant amount of review and sometimes rework of your work, and where it got to a point where after a drawn‑out process of coaching, positive enforcement, of working correctively to how these gaps in performance could be reduced, it had come to a point where the position was no longer tenable. It came down to I could no longer trust you to competently do your job on time and error‑free."

[131] The undisputed evidence of Mr Cusworth is that Mr Costigan did respond to the list of errors put to him by Mr Roberts.[47]

[132] I find that Mr Costigan was given an opportunity to respond to the reasons for dismissal as outlined at the resignation meeting. Whilst it may not have been an opportunity that permitted time for Mr Costigan to consider his responses, having regard to KOR's efforts over several months to identify and assist Mr Costigan in rectifying errors and their evidence, which I accept, that he did not satisfactorily improve, this factor is marginally in favour of a finding that the dismissal was unfair.

Did KOR unreasonably refuse to allow Mr Costigan to have a support person present to assist at discussions relating to the dismissal?

[133] No submissions were made on the issue of a support person. This is a neutral consideration.

Was Mr Costigan warned about unsatisfactory performance before the dismissal?

[134] Mr Costigan had regular meetings with Mr Roberts at which his KPIs were discussed. He had been receiving regular feedback about errors and the areas in which he needed to improve. I accept Mr Roberts' evidence that in May 2021 he was supportive of Mr Costigan in closing the gap between his performance and what was expected of him.

[135] Mr Costigan has admitted some errors and denied others. Of the issues of concern raised by KOR over several months, Mr Costigan described some of them as misunderstandings or out of his control, or someone else's responsibility or that he did not have the assistance that he had requested. Mr Costigan submitted that his work was at a high standard.

[136] In some instances, there is a chasm between the interpretation of what was communicated between Mr Roberts and Mr Costigan. To the extent that there is a disagreement regarding the facts and after having observed both witnesses, I prefer the evidence of Mr Roberts. His evidence was clear and direct. Mr Costigan was at times obtuse and on at least one occasion exaggerated his evidence.

[137] I accept Mr Roberts' evidence that in a series of meetings from October 2020 to June 2021, he gave Mr Costigan feedback regarding the inadequacy of his performance. In May 2021, Mr Roberts had a meeting with Mr Costigan to discuss the gap between his performance and what was expected of him. He describes this as a salary and performance related meeting. There was a discussion of the errors and pathways to improvement. Mr Roberts' evidence is that a list of errors and the deliverable which he had neglected or failed to complete was presented to Mr Costigan. Mr Costigan claims that this meeting was not a formal meeting, but a casual conversation over lunch. Mr Roberts did not deny the meeting was conducted over lunch.

[138] Mr Roberts gave evidence to the effect that this first warning was given to Mr Costigan orally,[48] to the effect that if his performance did not improve, his employment would be terminated. Mr Costigan does not deny the issues raised at this meeting but denies it was a first warning. He also denies the number of errors. Specifically, an error that could have cost KOR $100,000 is referred to by Mr Costigan as a "misunderstanding".[49]

[139] A month later, a second warning was given to Mr Costigan. It referenced the 21 June errors and included additional errors. I accept Mr Roberts' evidence that at this meeting Mr Costigan agreed that his performance had not been at an acceptable standard.

[140] Mr Costigan admits that he was given an opportunity to respond to the concerns raised at the June and July meetings.[50]

[141] The challenge for KOR and Mr Costigan is that what KOR viewed as errors, serious enough to warrant performance management in the period up to June and afterwards formal warnings, where not seen as errors by Mr Costigan. He responded to the issues raised by Mr Roberts, but more often than not, was of the view that he was not responsible for the errors, or in fact that these were not errors at all but misunderstandings. Multiple errors over several months had been made and other errors continued to be made. Mr Costigan had a different interpretation to the errors and of their consequences on KOR.

[142] In all the circumstances, I find that KOR did warn Mr Costigan of his unsatisfactory performance before dismissal. This weighs against a finding that the dismissal was harsh, unjust or unreasonable.

The degree to which the size of KOR's enterprise and the absence of dedicated human resource management specialists would be likely to impact on the procedures followed in effecting the dismissal?

[143] KOR had 45 employees at the relevant time and does not employ a dedicated human resources management specialist. Notwithstanding this, there is evidence that considerable effort has been made to spell out clearly to Mr Costigan the issues with his work performance. To the extent that there may be any issues regarding the deficiencies in the process followed, however, is a factor that is explained by the size of the company and its limited specialist resources. This is a neutral consideration.

[144] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[145] Mr Costigan raises other issues and says:

• Errors he had made were attributable to his high workload.

• Termination being disproportionate to his conduct.

• Scrutiny of his work increased after he asked for a pay rise.

• His achievements should be noted, presumably in response to performance-based issues raised by KOR.

[146] On the first point, there was insufficient evidence to make any meaningful conclusion.

[147] On the second factor, there are differing accounts. Mr Costigan maintains that he had a high workload and this is what caused the errors to which he admits. Mr Roberts says that from June Mr Costigan's workload was "stripped down purely for Mr Costigan to do his job"[51] and he was counselled on methods to improve his work.

[148] Assistance to Mr Costigan included advising him to implement a system of blocking time to focus on specific tasks so as to avoid multi-tasking, to use the meeting rooms or Mr Roberts' office or headphones to create a distraction free workspace and to limit disruptions and to use a system of self-review at the end of each task.[52] For the reasons stated previously, I prefer Mr Roberts' evidence.

[149] Mr Costigan has gone to significant effort to apportion blame for the errors and unsatisfactory work as alleged by KOR. In saying that the "punishment" of termination is disproportionate to his conduct, Mr Costigan fails to grasp the seriousness of the consequences of his mistakes. As a witness, he displayed no contrition for his errors and denied that his actions had caused damage to KOR, illustrating a disregard for, or lack of, basic commercial awareness of the situation in which KOR found itself.

[150] In the same vein, Mr Costigan's view that scrutiny of his work increased after he had asked for a pay rise, do not accord with the evidence from his employer. His work was scrutinised because he was making errors and not performing to the standard required from his employer.

[151] Mr Costigan lists what he considers are his achievements whilst working at KOR. These were not canvassed in any meaningful way, and I do not make any findings on this issue. Against the background of the May, June and July meetings, I do not consider the list of achievements relevant.

Is the Commission satisfied that the dismissal of Mr Costigan was harsh, unjust or unreasonable?

[152] KOR dismissed Mr Costigan because he could not perform his job to the required standard and could not be relied upon to deliver accurate work. He was provided with feedback over several months, opportunities for improvement and two warnings.

[153] Mr Costigan was dismissed because he could not perform the job that was required of him.

[154] Having considered all the matters specified in s. 387 of the Act, KOR's dismissal of Mr Costigan was not harsh, unjust or unreasonable. Accordingly, I find that Mr Costigan's dismissal was not unfair.

[155] An order will be issued with this decision dismissing the application.

[1] Fair Work Act 2009 (Cth) (the Act) s. 385(a).

[2] Applicant's outline of position filed 25 November 2021, para 10.

[4] Transcript of Determinative Conference at PN105.

[5] Applicant's outline of position filed 25 November 2021, para 12.

[6] Transcript of Determinative Conference at PN106.

[10] Applicant's outline of position filed 25 November 2021, para 1.

[11] Wadey v YMCA Canberra [1996] IRCA 568.

[14] PR974876.

[15] Witness statement of Mr Sean Roberts, para 14-24.

[17] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941, [47].

[18] PR974876.

[19] [2019] FWC 3242.

[20] Transcript of Determinative Conference at PN611.

[22] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

[23] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[24] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[25] Crozier v AIRC [2001] FCA 1031; (2000) 50 AILR.

[26] Witness statement of Mr Sean Roberts, paras 14-28.

[29] Transcript of Determinative Conference at PN486.

[31] Witness statement of Mr Sean Roberts, para 24.

[32] Transcript of Determinative Conference at PN493-PN495.

[34] Applicant's outline of position filed 25 November 2021, para 12.

[40] Applicant's outline of position filed 3 November 2021.

[41] Transcript of Determinative Conference at PN605.

[42] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[43] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1, 14-15.

[44] Gibson v Bosmac Pty Ltd [1995] IRCA 222; (1995) 60 IR 1, 7.

[45] Transcript of Determinative Conference at PN607.

[47] Witness statement of Mr Steven Cusworth, para 9.

[48] Transcript of Determinative Conference at PN566.

[50] Form F2 Application; transcript of Determinative Conference at PN255.

[51] Transcript of Determinative Conference at PN744.

[52] Witness statement of Mr Sean Roberts, para 24.

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