Fair Work Act 2009

s.394 - Unfair dismissal

Commonwealth of Australia (Australian Criminal Intelligence Commission)

Application for relief from unfair dismissal - harsh, unjust or unreasonable - dismissal found to be fair, application dismissed.

[1] Mr Michael Knight (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 19 December 2016 alleging that the termination of his employment by the Australian Criminal Intelligence Commission (ACIC - the Respondent) on 30 November 2016 was unfair.

[2] The application was heard on 26 and 27 April 2017. At the hearing, Mr Knight represented himself while Mr Damien O'Donovan of the Australian Government Solicitor (AGS) appeared for the Respondent.

[3] Mr Knight gave evidence on his own behalf, while Mr Graeme Toms, the Applicant's former supervisor, gave evidence for the Respondent. Mr Paul Williams, the ACIC Delegate who made the decision to terminate Mr Knight's employment, gave evidence as a result of an order to attend issued by the Commission on 1 March 2017 following an application made by Mr Knight.

[4] For the reasons outlined below, I have found that Mr Knight's dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

[5] On 10 February 2017 in the lead up to the Mention and/or Directions Hearing scheduled by the Commission for 13 February 2017 Ms Virginia Masters, a Senior Executive Lawyer with the AGS, wrote to the Commission requesting that the Respondent's name in this matter be changed to Commonwealth of Australia (Australian Criminal Intelligence Commission) and providing submissions regarding AGS's right of appearance. The Commission advised the parties at the Directions hearing that it would deal with those issues when the matter was substantively heard in late April 2017.

[6] At the hearing on 26 April 2017 the Commission determined to change the name of the Respondent as proposed and that AGS did not require permission to appear on behalf of the Respondent, with the Commission's reasons to be set out in its decision regarding Mr Knight's application. I set out those reasons below.

[7] In support of the Respondent's application to amend the name of Respondent in the matter it was submitted that there was no legal entity such as that identified in Mr Knight's application, i.e. "Australian Crime Commission Trading as Australian Criminal Intelligence Commission". It was further submitted that ACIC is a statutory agency established under the Australian Crime Commission Act 2002 (the ACC Act) and that where the Commonwealth was the relevant employer and a respondent to a matter before the Commission the Commission's general practice was to refer to the respondent as the Commonwealth of Australia as represented by the particular agency or simply refer to the agency's name in brackets after the Commonwealth of Australia.

[8] I am satisfied that ACIC is by virtue of s.7(1A) of the ACC Act and Reg. 3A of the Australian Crime Commission Regulations 2002 the name by which the Australian Crime Commission (ACC) is known. I am further satisfied that the ACC is a Commonwealth statutory agency established by the ACC Act and that the Chief Executive Officer the ACC and ACC employees are employed under Public Service Act 1999 (the PS Act)[1]. In other words, the ACIC is a manifestation of the Commonwealth of Australia.

[9] Against that background and in accordance with s.586(a) of the Act Mr Knight's application was amended so that the Respondent is the Commonwealth of Australia (Australian Criminal Intelligence Commission). The decision to amend the Respondent's name does not alter the identity of the Respondent.

[10] As to the issue of representation, AGS submitted inter alia that since 1 July 2015 the AGS and AGS lawyers have been employees of the Commonwealth employed under the PS Act. Accordingly, the AGS contended that by virtue of s.596(4)(a) of the Act the AGS and AGS lawyers had a right to appear for the Commonwealth in matters before the Commission. The AGS further submitted that the AGS and AGS lawyers are employees of the Commonwealth in the ordinary meaning of the terms and that the Judiciary Act 1903 provides that the AGS and AGS lawyers must be Australian Public Service employees.

[11] The Full Bench in Dushanti Wanninayake v State of Queensland (Department of Natural Resources and Mines (SIMTARS))[2](Wanninayake) when dealing with a similar issue determined as follows:

"[4] At the hearing on 5 April 2017, the Appellant appeared for herself and Ms P. Willoughby, legal practitioner and employee of the State of Queensland ("the Respondent"), appeared for the Respondent. We note the correspondence received from the Appellant on 12 April 2017 and 20 April 2017 opposing the Respondent being represented by Ms Willoughby. The Appellant asserted that Ms Willoughby is an employee of the State of Queensland. In this regard, the Appellant contended that her appeal is against the Department of Natural Resources (SIMTARS) and not the State of Queensland and, therefore, Ms Willoughby cannot be considered to be an employee of the Department. However, we note that the Department is a government body which is owned by the State of Queensland and, as such, the Respondent is the State of Queensland. Accordingly, as Ms Willoughby is an employee of the Respondent, she did not require permission to appear on behalf of the Respondent pursuant to section 596(4) of the Act. Thus, Ms Willoughby was entitled to appear for the Respondent at the hearing." (Underlining added)

[12] Drawing on the decision in Wanninayake, I am satisfied that Mr O'Donovan is an employee of the Respondent (i.e. the Commonwealth of Australia) and therefore pursuant to s.596(4)(a) does not require permission to appear in the matter.

[13] Mr Knight commenced employment with CrimTrac on 30 September 2013. By way of background, on 1 July 2016 the functions of CrimTrac were transferred to the ACC. At the time of his dismissal, Mr Knight was employed as a Business Architect. Mr Knight took up that role in June 2015 after his previous position in CrimTrac was made redundant. Mr Toms was Mr Knight's supervisor when he commenced in the role of Business Architect.

[14] In September 2015 Mr Toms asked all members of his team to identify what work outcomes they intended to produce over the coming six months. Mr Knight's initial response was not clear resulting in Mr Toms seeking further detail from Mr Knight. In October 2015 Mr Knight advised Mr Toms that the key deliverable he was working on was the CrimTrac Business Architecture Framework which he indicated would be delivered in December 2015.

[15] In late 2015 Mr Toms developed a number of concerns regarding Mr Knight's performance which saw him informally performance manage Mr Knight's performance over the period 26 November 2015 to 19 February 2016. At the conclusion of that informal performance management process Mr Toms advised Mr Knight that he would be recommending that formal performance management proceed in view of his continuing concerns regarding Mr Knight's performance. Mr Toms' key concerns related to Mr Knight's failure to complete the CrimTrac Business Architecture Framework and concerns regarding his communication skills, his ability to work collaboratively and build relationships with others and to deliver constructive feedback to his colleagues.

[16] On 3 March 2016 Mr Toms sent Mr Knight an email providing a summary of their recent informal performance management meetings[3]. That email invited Mr Knight to provide any comments by 7 March 2016, an invitation which Mr Knight took up.

[17] On 12 April 2016 Ms Nicole Mayo, CrimTrac's Chief Operating Officer, wrote to Mr Knight advising of her intention to commence a formal underperformance process as a result of him not achieving an acceptable standard of work performance[4]. Attached to the letter was, among other things, a draft Performance Improvement Plan (PIP). Mr Knight was given seven days to comment on the contents of the letter.

[18] On 26 April 2016 Mr Knight's then legal representative responded to Ms Mayo's letter describing the informal performance management process that had been undertaken as unfair and seeking confirmation that the formal underperformance process would not proceed[5]. Ms Mayo responded on 18 May 2016 stating that she expected Mr Knight to participate in the formal underperformance management process[6]. Attached to her letter was a revised PIP which sought to address the concerns expressed by Mr Knight's legal representative.

[19] In late May/early June 2016 Mr Toms and Mr Knight had several meetings to discuss the revised PIP, with Mr Knight suggesting a number of changes to the revised PIP on 2 June 2016[7]. Mr Toms responded to Mr Knight later that day accepting some of the changes proposed by Mr Knight and rejecting others[8]. The PIP was finalised on 3 June 2016 when it was signed by both Mr Toms and Mr Knight. The agreed PIP[9] required Mr Knight to "develop and deliver a CrimTrac Business Architectural Framework in the form of a document presented electronically and in hard copy"[10] and also set out what the Framework was to cover. The end date of the PIP was 29 July 2016, though the period of the PIP was later extended until 17 August 2016 as a result of leave by both Mr Toms and Mr Knight in July 2016.

[20] In early September 2016 Mr Knight provided his assessment of his performance during the PIP period[11]. Among other things Mr Knight stated that "Overall I wish I could have done a lot better, but I believe I did my best and will continue to keep trying" and that "All of he [sic] elements of the CBAF [CrimTrac Business Architecture Framework] were delivered - but the peer review suggested the story was not conveyed to the readers very well."[12] Mr Toms met with Mr Knight on 19 September 2016 when he indicated that he did not consider that Mr Knight had met the requirements of the PIP. Mr Toms provided those comments to Mr Knight in writing on 20 September 2016 in his Manager assessment which was included in the PIP documentation with a request that Mr Knight read the comments and sign and return the completed PIP document, which Mr Knight did on 27 September 2016[13].

[21] On 28 September 2016 Mr Toms advised Mr Knight by email[14] that he had determined that Mr Knight had not attained or sustained the necessary standard of performance as defined in the PIP and that he would be forwarding his summary and recommendations to Human Resources for action. Later that day Mr Toms sent an email to Ms Natalie Rose (who worked in ACIC's People and Integrity area and attended the regular meetings between Mr Knight and Mr Toms during the PIP period) which stated among other things:

"Mr Knight has not demonstrated his ability to attain or sustain the skills and behaviours required for the position of Business Architect at the EL1 classification. Mr Knight's inability attain or sustain the behaviours required also presents the view that he would struggle to perform to the required standard of any role where interaction with stakeholders, including colleagues, managers or peers was required. It is my reasonable assessment that a suitable position for Mr Knight within the agency would not exist where he could performance productively. It is for these reason [sic] that I recommend that Mr Knight's employment at the ACIC be terminated."[15]

[22] Mr Toms' recommendation was subsequently forwarded to Mr Williams for consideration.

[23] On 2 November 2016 at 2:14pm Mr Knight was sent a meeting request by Mr Matt Jones, ACIC's Chief Technology Officer, to meet at 4:30pm that afternoon with the email stating as follows:

"I need to meet with you to discuss the outcome of the formal underperformance process.

You are welcome to bring a support person if you choose, but don't have too."[16]

[24] At that meeting Mr Jones handed Mr Knight a Proposal to Terminate letter from Mr Williams. In that letter Mr Williams advised Mr Knight that he was proposing to terminate his employment under the PS Act on the ground of unsatisfactory performance of duties as he had not attained and sustained a satisfactory standard of performance during the PIP period. The letter also invited Mr Knight to provide any information as to why his employment should not be terminated. At the conclusion of that meeting Mr Knight was placed on leave and escorted from the premises.

[25] Mr Knight responded on 16 November 2016[17].

[26] On 30 November 2016 Mr Williams wrote to Mr Knight advising that he had decided to terminate his employment with immediate effect on the ground of unsatisfactory performance of duties[18].

[27] As previously noted, CrimTrac merged with the ACC on 1 July 2016. The practical effect of this was that from that date Mr Knight was no longer covered by the CrimTrac Enterprise Agreement 2011-2014[19] (the CrimTrac Agreement) but was instead covered by the Australian Crime Commission Enterprise Agreement 2011-2014[20] (the ACC Agreement). Also on that date, Mr Toms ceased to be Mr Knight's day to day supervisor, though he continued to be his manager for the purposes of the PIP process. From that date, Mr Jones was Mr Knight's supervisor until 10 August 2016 when Mr Mathias Hede commenced in that role.

[28] Mr Knight provided a witness statement[21] which was a mix of submissions and evidentiary material. In his witness statement, Mr Knight outlined a number of key concerns regarding his dismissal. Those concerns included the following:

• the termination process was unjustly harsh in that it failed to establish and follow a fair, independent and just process as it did not examine all of the events and circumstances concerning the reasons for his termination;

• the termination process breached the terms of the ACC Agreement;

• he was denied the right to a support person at the meeting with Mr Jones on 2 November 2016;

• the informal warnings issued to him prior to the commencement of underperformance management were not based on a proper foundation;

• the PIP was not perfect because the outcomes were not consistent with or properly aligned with his role description;

• ACIC's actions were inconsistent with the principles of fairness and natural justice;

• the decision making process did not follow the ACC Agreement and as a result failed to properly address the proportionality of the outcome against the balance of probabilities; and

• he was given no notification or consideration of his rights when the PIP (which had commenced under the CrimTrac Agreement) continued under the ACC Agreement.

In his Reply to Submissions and Witness Statements of the Respondent Mr Knight highlighted those aspects of his submissions which he considered ACIC had not addressed in its submissions. Mr Knight also responded in detail to aspects of the ACIC's submissions and Mr Toms' witness statement.

[29] At the hearing, Mr Knight reiterated a number of the concerns outlined in his witness statement, contending that ACIC had not proven its case. Beyond this, Mr Knight also:

• submitted that ACIC had failed to provide evidence of what a practical and usable document looked like and evidence confirming that he had read Mr Jones' email of 2 November 2016 inviting him to a meeting that afternoon;

• questioned the legality of Mr Toms continuing to oversee the PIP process after 1 July 2016 when he was no longer his direct supervisor, raising further questions as to whether Mr Toms had the authority to make his recommendation and whether the delegate had the authority to make a decision to terminate his employment based on a doubtful process;

• contended that Mr Williams had failed to substantiate his position and did not provide evidence of his authority as delegate;

• pointed out that Mr Hede, his supervisor as of 10 August 2016, had not assessed his performance; and

• Mr Williams had not contacted either Mr Hede or the other referees nominated in his response to the Proposal to Terminate letter.

[30] As to remedy, Mr Knight submitted that he was not seeking reinstatement as he had found alternative employment but that he was seeking compensation.

[31] Under cross examination Mr Knight was taken forensically through the various documents attached to Mr Toms' witness statement relating to the PIP process. Key aspects of Mr Knight's oral evidence were that:

• on 8 October 2015 in response to Mr Toms' request of 21 August 2015 seeking advice regarding his six month work plan he advised Mr Toms that he would deliver a CrimTrac Business Architecture Framework in December 2015;

• he believed that he erred in citing the CrimTrac Business Architecture Framework in his response to Mr Toms, expressing the view that he should have referred to the deliverable as a CrimTrac Business Architecture Strategy;

• while at a team meeting of 1 October 2015 he considered it reasonable for Mr Toms to ask him what he was going to deliver (Mr Knight's response was that "I am doing stuff") but that in the circumstances it was not reasonable for Mr Toms to expect an answer that had any clarity to it;

• he recalled being told by Mr Toms in late November 2015 that he would be performance managed;

• he recalled a meeting with Mr Toms on 5 February 2016 at which Mr Toms raised concerns regarding his behaviour in the workplace;

• he recalled Mr Toms advising him in late February 2016 that he would be recommending that he be placed on a PIP;

• he sought legal advice after reading CrimTrac's Managing Underperformance Policy, adding that he understood that the termination of his employment was one possible outcome of the PIP;

• he was provided with an opportunity to comment on the draft PIP, with the final PIP signed on 3 June 2016 reflecting both a number of his and Mr Toms' suggestions;

• with regard to the PIP, he understood what was required of him (in respect of outcomes and behaviours), he understood the duration of the PIP and the consequences of failing to meet the requirements specified in the PIP and had read CrimTrac's Managing Underperformance Policy and Procedure;

• he met with Mr Toms on 10, 17 and 24 June 2016, 1 and 8 July 2016 and 5 and 14 August as part of the PIP process to discuss his progress with regard to the formal underperformance proceeding;

• acknowledged that initially he did not read the summary of these meetings prepared by Mr Toms or take up the opportunity to comment on those summaries;

• disputed Mr Toms' capacity to issue the direction he issued to him at their 1 July 2016 meeting (the direction required Mr Knight to, inter alia, "Review and provide input to the weekly meeting summaries provided by Mr Toms by the due date and time agreed at the previous meeting"[22]);

• agreed that at the meeting of 1 July 2016 Mr Toms advised him that at the midway stage of the PIP he did not consider that he was meeting expectations and outlined his reasons for forming that view;
• prior to going on leave in mid-July 2016 he provided Mr Jones (in Mr Toms' absence on leave) with drafts of the documents specified in the PIP, with the documents subsequently reviewed by a number of people at Mr Jones' request;
• he was provided with feedback on the documents when he returned from leave in early August 2016, though he was not given the opportunity of meeting with the reviewers (either individually or collectively) to discuss their feedback;
• he disputed that the feedback was that the documents were not practicable or actionable, though he acknowledged that that was Mr Jones' view;
• at the last PIP meeting on 14 August 2016 the next steps were explained to him;
• with regard to his PIP self-assessment, he disputed that his best was not adequate and that the documents he produced were not usable;
• he subsequently met with Mr Toms whose view was that the documents were impracticable or unsuitable, adding that he understood the PIP and both his and Mr Toms' assessments would be sent to the relevant delegate who would determine what would occur;
• on the afternoon of 2 November 2016 he was advised by a colleague that Mr Jones wished meet with him at 4:30pm that afternoon, adding that the colleague did not refer to Mr Jones' email meeting invitation;
• at the time he did not have time to unlock his computer and check his emails, adding that he could not rule out that he had the opportunity to read Mr Jones' email meeting invitation;
• he thought the meeting with Mr Jones was to discuss how to resolve Mr Toms' PIP issues;
• at the meeting with Mr Jones he was handed the Proposal to Terminate letter after which he sought to leave the meeting to obtain legal advice, adding that Mr Jones told him to come back as there were other things he needed to tell him including that his access to ACIC's computer system would be cut off;
• at the conclusion of the meeting he was escorted from the building;
• he responded to the Proposal to Terminate letter on 16 November 2016;
• it was not until 2 November 2016 that he became aware that Mr Williams was the delegate; and
• he was issued the termination letter on 30 November 2016.

[32] In its written submissions, ACIC provided a summary of the events leading up to the termination of Mr Knight's employment and addressed each of the criteria set out in s.387 of the Act (ACIC's submissions in this regard are discussed in detail below). In summary, ACIC submitted that Mr Knight's dismissal was not harsh, unjust or unreasonable and that his application should therefore be dismissed. At the hearing, ACIC contended that the factors at s.387 (f) and (g) were neutral considerations in this case and that the remaining considerations set out in s.387 all favoured the Respondent. Among other things, ACIC submitted that there was a valid reason for Mr Knight's dismissal which related to his performance and conduct and that Mr Knight had concerns raised with him regarding his performance on a number of occasions, adding that he was given every opportunity to show signs of improvement but that such improvement simply failed to materialise. ACIC also responded to aspects of Mr Knight's submissions (again, these are discussed below).

[33] As to remedy, ACIC submitted that were the Commission to find Mr Knight's dismissal to be harsh, unjust or unreasonable that it should not order reinstatement. ACIC further submitted that it remained of the view that Mr Knight's failure to effectively deliver usable products and exhibit the required standards of behaviour during the PIP made him unsuitable for any positions within the organisation, adding that during the PIP Mr Knight did not perform in a way that showed he was capable of making a practical and useful contribution to the work of ACIC. ACIC contended that as a result it was not possible for the employment relationship to be re-established and that reinstatement was therefore inappropriate. At the hearing, ACIC submitted that the maximum period of any compensation that might be awarded should be in the order of 3 months' pay.

[34] Mr Toms in his witness statement[23] provided a detailed overview of his period as Mr Knight's supervisor and the PIP process consistent with the background outlined at paragraphs [14]-[21] above. Mr Toms also set out in his witness statement a number of behavioural issues which arose during the PIP and which he discussed with Mr Knight, i.e. an email sent by Mr Knight to the Communications Team regarding ACIC branding, Mr Knight's failure to actively participate in the PIP process and his failure to identify the purpose, target audience or the outcome he was seeking in relation to a police agency survey which Mr Knight had proposed. Mr Toms also disagreed with the proposition canvassed in Mr Knight's witness statement that he could not keep working on the CrimTrac Business Architecture Framework after 1 July 2016 because the new ACIC Business Strategy had yet to be finalised, adding that had the framework been developed to the point where it could be read and comprehended by the intended audience it would have provided a useful document which could have been used in the subsequent development of a new ACIC Business Framework.

[35] In his oral evidence Mr Toms attested, among other things, that:

• Ms Mayo's letter of 12 April 2016[24] made no reference to the ACC Agreement or the ACC Managing Underperformance Guidelines because at that stage Mr Knight was still covered by the CrimTrac Agreement;

• Mr Knight had in May 2016 requested that another person oversee the PIP process with Ms Mayo considering that request and determining that he was the most appropriate person to oversee the process;
• the PIP was developed with the knowledge that on 1 July 2016 the ACC Agreement would cover Mr Knight;
• with regard to the requirement for "close supervision" specified in clause 476 of the ACC Agreement, after 1 July 2017 Mr Jones (to who Mr Knight was reporting at the time) was the conduit for receiving feedback on Mr Knight's performance;
• there were no formal, documented discussions with Mr Hede regarding Mr Knight's performance, though there had been one background discussion with Mr Hede which discussed why Mr Knight was being performance managed;
• Mr Knight did not receive any Business Architect related training, nor did he request or identify any such training;
• with regard to clause 480 of the ACC Agreement, he did not baseline the documents as at 3 June 2016 when the PIP commenced;
• he did not take any action to reassess the PIP on 1 July 2017 when the ACC and CrimTrac merged, adding that clause 481 of the ACC Agreement stated that the "PIP may be reassessed";
• prior to the creation of the ACIC he sought advice from CrimTrac's Human Resources area regarding a comparison of the ACC's and CrimTrac's Managing underperformance arrangements, adding that as a result it was decided that the PIP period would be 8 weeks as per the ACC Agreement;
• the ACC/CrimTrac merger had no material effect on that aspect of the PIP dealing with Support and Resources;
• he did not think he had provided Mr Knight with a copy of the ACC Managing Underperformance Guidelines, noting that Mr Knight had access to the ACC portal and that he did not request a copy of the Guidelines;
• he had no involvement in the process following finalisation of the PIP, later attesting that he did not meet with Mr Williams to discuss his report;
• he considered delivery of the CrimTrac Business Architecture Framework achievable within the PIP period;
• he did not preclude Mr Knight from meeting with those individuals who reviewed the draft documents he provided to Mr Jones in mid-July 2016, adding that Mr Knight could have sought to meet with the reviewers and that he did not seek his assistance to coordinate such a meeting(s);
• he considered that adequate resources had been provided to Mr Knight after 1 July 2016 to meet the PIP deliverables;
• he believed that he used objective measures throughout the PIP in respect of his assessments of Mr Knight's performance; and
• he believed that it was appropriate for him to make the recommendation that he did at the end of the PIP within the context of the ACC Agreement.

[36] Key aspects of Mr Williams' evidence were that:

• he was the delegate on 1 July 2016, adding that he recalled an instrument to that effect signed by ACIC's Chief Executive Officer at the time of the ACC/CrimTrac merger;

• in broad terms he understood that the managing underperformance provisions of the ACC and CrimTrac Agreements were not incompatible;

• he considered the PIP appropriate;

• in coming to his decision to dismiss Mr Knight he read every document, including the referee comments provided by Mr Knight, and formed his final view having regard to those documents and the advice he received;

• he did not contact Mr Hede after reading his referee report as he considered that it did not offer any particular advice that encouraged him to change his view, adding that he did not see it as his specific responsibility as delegate to contact Mr Hede;

• he considered Mr Hede's referee report to be a message of association rather than a report on performance;

• it was not uncommon for an executive to continue to oversee a PIP following a change of structure;

• there was no impediment to proceeding with the PIP following the ACC/CrimTrac merger on 1 July 2016;

• significant information went out to both ACC and CrimTrac employees regarding the merger;

• Mr Toms had good visibility of Mr Knight's work after 3 June 2016 and was well qualified to comment on Mr Knight's performance;

• the changes in governance which followed the ACC/CrimTrac merger would not have reflected heavily on the role conducted by Mr Knight; and

• he was satisfied that the PIP process was fair and reasonable.

[37] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Knight is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows:

A person has been unfairly dismissed if 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant."

[38] There is no dispute that Mr Knight was dismissed, so s.385(a) of the Act is satisfied. Mr Knight contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. ACIC is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Mr Knight was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[39] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria.

(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)

[40] In Rode v Burwood Mitsubishi[25] (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd[26]. The following is an extract from the Full Bench's decision in Rode.

"[17] In relation to the meaning of "valid reason" the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

"Section 170DE(1) refers to a 'valid reason, or valid reasons', but the Act does not give a meaning to those phrases or the adjective 'valid'. A reference to dictionaries shows that the word 'valid' has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: '2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.' In The Macquarie Dictionary the relevant meaning is 'sound, just or wellfounded; a valid reason'.

In its context in s 170DE(1), the adjective 'valid' should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC."

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason." (Underlining added)

[41] As previously noted, Mr Knight in his submissions highlighted a number of concerns about the process leading to his dismissal. Key concerns included that the outcomes specified in the PIP were not consistent with or properly aligned with his role description, the process was inconsistent with the ACC Agreement, it was inappropriate for Mr Toms to continue to oversee the PIP process after 1 July 2016 when he was no longer his direct supervisor, Mr Williams had not provided evidence of his authority as delegate, Mr Williams had not contacted either Mr Hede or the other referees nominated in his response to the Proposal to Terminate letter and the termination process was unjustly harsh in that it failed to establish and follow a fair, independent and just process.

[42] ACIC submitted that the evidence in respect of this factor overwhelmingly pointed to there being a valid reason for Mr Knight's dismissal related to his performance and conduct. In support of that contention, ACIC submitted that:

• the development of a CrimTrac Business Architectural Framework was an expectation of Mr Knight's role;

• Mr Knight indicated in October 2015 that he would deliver a CrimTrac Business Architecture Framework by December 2015;

• Mr Knight's comment at the team meeting of 1 October 2015 that he was "working on stuff" demonstrated a clear absence of focus and triggered the informal performance management process which commenced in November 2015;

• over the period November 2015 to April 2016 Mr Knight received feedback from Mr Toms but still not did deliver a usable CrimTrac Business Architecture Framework document;

• the PIP entered into in early June required Mr Knight to, among other things, develop a CrimTrac Business Architectural Framework;

• the feedback from the reviewers in July 2016 was that the documents produced by Mr Knight were not practical or usable;

• Mr Toms' assessment was that Mr Knight had failed to produce a document to the expected standard;

• a number of issues regarding Mr Knight's behaviour arose during the PIP period; and

• the reasons why Mr Toms considered that Mr Knight had not attained or sustained the necessary standard of performance as defined in the PIP were reflected in the PIP document signed by Mr Knight on 29 September 2016.

[43] Drawing on the material before the Commission, it is apparent that it was Mr Knight who indicated in October 2015 that he would deliver a CrimTrac Business Architecture Framework in December 2015. In this regard, I note that the Role Profile for a CrimTrac Executive Level 1 Business Architect (which Mr Knight was) provides that, inter alia, the Business Architect will:

"✓ Develop a business architecture strategy based upon a situational awareness of CrimTrac's partner's business needs;

✓ Apply a structured Business architecture approach and methodology for capturing the views of the enterprise to assist in future strategy development, forward planning and investment;

✓ Maintain Business architecture deliverables such as strategic investment roadmaps for CrimTrac's current and planned product offerings; ..." [27]

[44] Further it was not disputed that Mr Knight was advised by Mr Toms in late February 2016 that he would be recommending that he be performance managed. Mr Toms' evidence was that he would be doing so because his concerns regarding Mr Knight's performance had not been addressed. Those concerns included that Mr Knight had not completed the CrimTrac Business Architecture Framework despite indicating that he would do so in December 2015 and it being Mr Knight's key contribution to the work of the team. Mr Toms' evidence was that while Mr Knight had provided him with parts of the document in draft the documents were "in a very early and immature stage, and were not suitable for the intended audience."[28]

[45] The PIP agreed to by Mr Knight in early June 2016 required him to develop a CrimTrac Business Architectural Framework and stated that "if Mr Knight does not develop and deliver a CrimTrac Business Architectural Framework, on time and to the required standard defined by this PIP, without reasonable excuse, a course of action identified in the CrimTrac Managing Underperformance Policy and Procedure will be apply [sic]."[29]

[46] On his return from leave in August 2016 Mr Knight was provided with feedback provided on the draft documents he produced as at mid-July 2016. In addition to providing each of the reviewer's comments, their comments were summarised by Mr Jones as follows:

"1. There is no doubt significant effort has been expended in developing these documents to date.

1. It is therefore very unfortunate that, in the views of the ARB reviewers, the documents do not satisfy the three questions above. They are not practical and actionable.

2. The discussion is too narrow in that it focuses on information sharing and ignores internal capabilities required to deliver against these information sharing needs.

3. Matters related to the ongoing sustainment of the agency through the Background Checking function (which generates revenue from information sourced through the information sharing mechanisms) are completely missing from the framework.

4. Advice provided by the CTO [Mr Jones] in February 2016 has not been addressed: ..."[30]

[47] By way of background, the feedback document described the issues that reviewers were asked to focus on in the following terms:

"The key criteria in the assessment was to ensure the documents were practical and actionable and key considerations were therefore given to:

• Ensuring the documents provide clear direction as to what Business architecture is.

• Ensuring that the documents provide a clear framework for developing the deliverables of a business architecture.

• Ensuring the documents provide a clear description of business architecture deliverables."[31]

[48] What can be drawn from the above is that the PIP was consistent with Mr Knight's duties as an Executive Level 1 Business Architect and that he did not meet the expectations reflected in the PIP after being provided with a reasonable opportunity to do so. On the latter point, I note that Mr Knight had almost 12 months from October 2015 when he identified the CrimTrac Business Architectural Framework as his key deliverable until the end of the PIP process in August 2016 to get the documents to an acceptable standard. However the assessment of the reviewers outlined above indicates that he was unsuccessful in this regard. While the PIP occurred at a time of organisational change given the ACC/CrimTrac merger, I do not consider that factor to have made the task impossible. Without wishing to diminish the complexity of the task, based on the material before the Commission it appears that Mr Knight consistently sought to over complicate the task. Further, I consider the process undertaken by ACIC in this case to have been thorough and fair to Mr Knight. To the extent that there was any non-compliance by ACIC with the terms of the ACC or CrimTrac Agreements, I do not consider it to have been material or to have affected the integrity or fairness of the process.

[49] As previously noted, Mr Knight also questioned the appropriateness of Mr Toms continuing to oversee the PIP process after 1 July 2017 when he was no longer Mr Knight's supervisor. With regard to that contention, I would firstly observe that Mr Toms was well placed to oversee the PIP given its focus on Mr Knight delivering a CrimTrac Business Architectural Framework which had commenced when Mr Toms was his supervisor. Further, ACICs decision to ensure continuity of the process rather than "changing jockeys" midway through the PIP process was not unreasonable in my view.

[50] As to Mr Knight's contention that Mr Williams should have spoken to the referees he nominated in his response to the Proposal to Terminate letter, I would note that three of the referees nominated by Mr Knight were external to ACIC. It is unclear what they could have added to the process. The other three referees were ACIC employees, one being Mr Knight's senior manager prior to Mr Toms, one (Mr Hede) being his manager at the tail end of the PIP process and the other his predecessor as Business Architect. Again, it is not clear what they might have added to Mr Williams' deliberations, particularly as Mr Hede's comments as reflected in Mr Knight's response to the Proposal to Terminate letter included the following:

"Before my commencement as his supervisor (A/g in the role) Michael had been working on a Business Architecture Framework and once I commenced myself and others were tasked to review the document. My feedback on the document was that it was theoretical in nature and would not meet the needs of the organisation for a practical howto [sic] standpoint however the theories outlined in the document was sound in terms of providing the theory behind Business Architecture and the methodologies behind it as a practice."[32]

[51] I also note Mr Williams' evidence that he read Mr Knight's response, including the referee comments, and that he did not contact Mr Hede after reading his referee report as he considered that it did not offer any particular advice that encouraged him to change his view. I consider that conclusion to have been reasonably open to Mr Williams.

[52] The above analysis supports a finding that there was a valid reason for Mr Knight's dismissal. Further, drawing on the language in Rode, I am satisfied that the reason for Mr Knight's dismissal was defensible or justifiable on an objective analysis of the material before the Commission and that it was not "capricious, fanciful, spiteful or prejudiced."

(b) Whether the person was notified of that reason

[53] It was not disputed that Mr Knight was notified of the reason for his dismissal.

[54] Accordingly, this factor does not point to Mr Knight's dismissal being harsh, unjust or unreasonable.

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

[55] It was not disputed that Mr Knight was given an opportunity to respond to the Proposal to Terminate letter and that he did so on 16 November 2016.

[56] Against that background, I consider this factor weighs against a finding that his dismissal was harsh, unjust or unreasonable.

(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

[57] Mr Knight disputed that he was provided with the opportunity to have a support person attend the meeting with Mr Jones on 2 November 2016. Beyond that, Mr Knight did not contend that he had been refused the opportunity to have a support person attend all other relevant meetings.

[58] ACIC submitted that it had not unreasonably refused to allow Mr Knight to have a support person attend the meeting of 2 November 2016. While ACIC contended that it was not in dispute that Mr Knight had been emailed an invitation to that meeting on the afternoon of 2 November 2016 it also acknowledged that Mr Knight probably did not check his email. However ACIC further contended that this was more of a reflection of Mr Knight's work practices rather than any failure on its part. ACIC also submitted that there was no evidence before the Commission that at the meeting Mr Knight requested that a support person attend, adding that even if Mr Knight did make such a request given the procedural issues discussed at the meeting a refusal to allow a support person to attend would not have been unreasonable.

[59] While it would have been prudent for ACIC to provide Mr Knight with more than two and a quarter hours' notice of the 2 November 2016 meeting, this does not of itself constitute an unreasonable refusal on its part to allow Mr Knight to have a support person attend that meeting. I further note that Mr Knight did not request the opportunity to have a support person attend a meeting.

[60] The above analysis does not support a finding that ACIC unreasonably refused Mr Knight having a support person present at any stage of the process that led to his dismissal. This does not point to his dismissal being harsh, unjust or unreasonable.

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

[61] Mr Knight did not dispute that he had received multiple warnings regarding his performance. While Mr Knight acknowledged that he saw Mr Toms' manager assessment at the conclusion of the PIP he submitted that he was not aware that Mr Toms had recommended that his employment be terminated until the 2 November 2016 meeting with Mr Jones.

[62] While it may have been courteous and/or appropriate for Mr Toms to inform Mr Knight of his view/recommendation, his failure to do so does not detract from the fact that Mr Knight was warned about his performance on a number of occasions. Accordingly, this factor does not point to Mr Knight's dismissal being harsh, unjust or unreasonable.

(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

(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

[63] Mr Knight submitted that following the meeting of 2 November 2016 he did not have the chance to speak to someone from ACIC's Human Resources area.

[64] ACIC submitted that the procedures followed in this case were elaborate and consistent with the resources available in the Australian Public Service for managing underperformance. ACIC further submitted that as it employed human resource specialists the latter consideration was not relevant.

[65] While I note Mr Knight's submission, it does not relate directly to the consideration set out at s.387(g) of the Act. Beyond that, I note that ACIC is a medium sized employer which employs in house human resource specialists. Against that background, I do not consider that either of these factors impacted on the procedures followed in effecting Mr Knight's dismissal. Accordingly, I consider these factors to be neutral considerations.

(h) Any other matters that FWC considers relevant

[66] Mr Knight argued that ACIC should have been a lot more transparent in terms of their understanding of the implications of the ACC/CrimTrac merger for the PIP process. Mr Knight also submitted that following his leave in July 2016 he should have been given adequate resources and assistance to co-ordinate meetings with the persons that reviewed the draft documents he had produced so that he could have "hard evidence" of why they considered the documents impracticable or unusable.

[67] ACIC submitted, among other things, that Mr Knight had not established that it had not complied with either the ACC or CrimTrac Agreement, adding that any technical non-compliance with either agreement should not override Mr Knight's failure to meet expectations.

[68] The material before the Commission indicates that Mr Toms sent an email to employees in his team on 7 June 2016 advising that from 1 July 2016 that "CrimTrac employees will fall under the ACC EA"[33]. Included in that email was an email from CrimTrac's People and Integrity area advising of all staff induction sessions scheduled in preparation for the ACC/CrimTrac merger, with the induction sessions to include information about "people/HR matters". All staff CrimTrac employees were required to attend one of the scheduled sessions. It is not clear whether Mr Knight attended. Further, drawing on the summaries of the various meetings between Mr Toms and Mr Knight during the PIP, it does not appear that Mr Knight asked any questions seeking clarification of the implications for the PIP process of the transition to the ACC Agreement on 1 July 2016.

[69] As an Executive Level 1 employee Mr Knight bears some responsibility for staying abreast of his terms and conditions of employment. The above analysis points to Mr Knight being given every opportunity to do so in the context of the ACC/CrimTrac merger. It would be unreasonable, in my view, for ACIC to be held responsible for Mr Knight not taking advantage of the opportunity offered to him or for not asking the obvious question, i.e. what are the implications for the PIP of moving to the ACC Agreement. While ACIC could have been proactive in addressing this issue in the PIP discussions, the fact that it did not does not of itself support a finding that the PIP was compromised. Accordingly, I do not consider this issue to be a relevant matter.

[70] As to the issue of resourcing and assistance to meet with the reviewers of the draft documents prepared by Mr Knight, Mr Toms' evidence was that he considered that adequate resources had been provided to Mr Knight after 1 July 2016 to meet the PIP deliverables, that there was no impediment to Mr Knight meeting with the reviewers and that Mr Knight did not seek his assistance in co-ordinating such a meeting(s). In those circumstances, I do not consider this factor to be a relevant matter.

[71] Drawing on the above analysis, I find that there was a valid reason for Mr Knight's dismissal, that Mr Knight was notified of that reason and given an opportunity to respond to that reason, that Mr Knight had been warned about his performance before his dismissal and that there are no other relevant matters. Beyond that, I find that the remaining criteria in s.387 of the Act are neutral considerations in this case.

[72] Having considered all of the criteria in s.387 of the Act I find that Mr Knight's dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

[1] s.47(1)

[2] [2017] FWCFB 1906

[3] Exhibit 2 at Attachment A to Annexure GT3

[16] Outline of Submissions of the Respondent at Annexure A

[17] Attachment to Form F2 - Unfair Dismissal Application

[26] (1995) 62 IR 371

[32] Attachment to Form F2 - Unfair Dismissal Application at page 13

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