s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed.

• [1] Mr Syed Rizvi (Applicant) was employed by Salini Australia Pty Ltd (Respondent) from 7 June 2021 until he was dismissed on 27 January 2023 on grounds of unsatisfactory performance. The Applicant has made an application pursuant to s.394 of the Fair Work Act 2009 claiming that he was unfairly dismissed.

• [2] In short, the Applicant contends that he did not underperform; that the many aspects of the procurement process he was held accountable for were outside his control, his workload was excessive, and the performance improvement process (PIP) he was subjected to was unfair. The Respondent says that the Applicant was dismissed due to poor performance following a PIP and a warning being issued to the Applicant.

• [3] The application was heard on 31 August and 1 September 2023. At the hearing, the Applicant appeared on his own behalf. Mr T Sebbens of Ashurst appeared with permission for the Respondent.

• [4] The Applicant gave evidence in support of his application and called evidence from Mr Masud Hossain and Mr Ram Kannan, both former employees of the Respondent.

• [5] The Respondent called evidence from the following persons:

• Mr Muhammad Naveed (Expediting and Logistics Manager);
• Ms Angela Tobar (HR Advisor); and
• Mr Carlo Giraudo (Procurement Manager)

• [6] For the reasons set out below, I find the Applicant's dismissal was not unfair.

• [7] The background is largely not in dispute.

• [8] The Applicant was employed as a Procurement Officer on the Snowy Hydro 2.0 Project (the Project). He reported to Mr Naveed, and Mr Naveed reports to Mr Giraudo.

• [9] In May 2023 the Applicant was relocated from the Cooma office to the Project's main construction site at Lobs Hole. His roster was five days on site and two days off.

• [10] His role included following up on purchase orders to ensure that equipment and materials were delivered to the Project on time, and to interact directly with operational staff to communicate how orders were progressing and to understand their procurement needs, specifically for the Tunnel Boring Machine (TBM) and Drill and Blast operational groups.

• [11] On 14 July 2022 Mr Naveed emailed the Applicant a copy of his job description and requested he follow up 10 to 15 purchase orders per day. The email also set out instructions on how to expedite purchase orders.

• [12] On 18 July 2022 the Applicant participated in a performance review process with Mr Naveed. The Applicant rated himself as meeting or exceeding the expectations of the role. Mr Naveed initially rated the Applicant as 'meeting expectations' but after consultation with Mr Giraudo, the Applicant was rated as 'below expectations'.

• [13] The Applicant was invited to a meeting on 15 December 2022 with Mr Naveed and another manager at which he was advised his performance required improvement. He was issued with a performance improvement plan (PIP).

• [14] The PIP identified the following performance issues:

1. the pace of completing tasks was below standard;
2. lack of initiative and poor level of coordination with end users and expediting team. Failure to provide updates to end users and spending more time on delivered orders rather than following up on new orders;
3. taking frequent breaks, more than he was entitled to; and
4. poor punctuality - on several occasions he had missed the bus to return to site on Mondays.

1. follow up on a minimum of 10 new purchase order deliveries in conjunction with TBM and Drill and Blast order tasks;
2. occasionally work at the Project's Tantangara and Marica sites;
3. improve the accuracy of the advice he provided, ensuring he was not contradicting himself when communicating; and
4. stop taking breakfast in the office and ensure he completed site hours, attend the pre start meeting at 6:30am at the main office in Lobbs Hole, improve his punctuality by ensuring he did not miss the site bus, and in the event he missed the bus or was late to work or not attending work due to sickness, notify his line manager by calling at least 30 minutes prior to his start time.

• [16] The PIP was implemented on 15 December 2022 and was to be reviewed on 30 January 2023.

• [17] The Applicant refused to sign the PIP on the grounds that he disagreed with some of the contents. He was subsequently advised that the PIP would be implemented notwithstanding his refusal to sign the document.

• [18] As part of the PIP, the Applicant attended weekly meetings with Mr Giraudo to discuss the PIP. These meetings occurred on 23 December 2022, 3 and 10 January 2023.

• [19] On 22 November 2022, Mr Naveed emailed the Applicant to remind him of a discussion they had the previous week concerning the need for the Applicant to follow up on new purchase orders.

• [20] On 7 December 2022, Mr Naveed emailed the Applicant to note that he was still not following up on any new purchase orders despite his earlier instruction to follow up on 10 new purchase orders per day. The Applicant was asked if there was any issue in following the instructions that had been provided to him.

• [21] On 13 December 2022, Mr Naveed forwarded a vendor purchase order confirmation to the Applicant and asked why he had not followed up on the order since 28 November 2022 and whether the order had been delivered.

• [22] On 20 December 2022, the Applicant requested a period of annual leave from 31 January 2023 until 10 March 2023. As a result of the leave request being approved the final review date of the PIP was amended to 27 January 2023.

• [23] On 23 December 2022, Mr Giraudo emailed the Applicant following their weekly meeting to discuss his progress on achieving the requirements of the PIP. Mr Giraudo's email recorded that over the past week the Applicant had followed up on a maximum of six and an average of five purchase orders per day, did not attend or arrange to meet the Marica or Tangangara sites, and had attended only two pre start meetings that week.

• [24] On 3 January 2023, Mr Giraudo sent the Applicant a further email which recorded that the Applicant had not followed up on a minimum of 10 year purchase orders, did not attend or arrange to meet the Marica or Tangangara sites nor had not provided feedback to these sites, missed three pre start meetings that week, and had taken the afternoon bus instead of the morning bus on two days that week.

• [25] On 10 January 2023, Mr Giraudo sent the Applicant a further email which recorded that the Applicant had processed a maximum of five purchase orders per day that week, had provided inaccurate advice to the TBM team and was unable to explain the status of most of their orders, had shown a poor understanding of the criticality connected to site operations and a lack of interaction between the supply chain team and Project operations team. He asked that the Applicant confirm his attendance at pre start meetings and was asked to provide evidence from the register of attendees.

• [26] On 17 January 2023 the Respondent issued a written warning to the Applicant. The warning stated that the Applicant's failure to demonstrate consistent satisfactory performance by the PIP's end date, on 27 January 2023, could lead to disciplinary action including the termination of his employment.

• [27] The Applicant attended a meeting on 27 January 2023 to discuss the outcome of the PIP. The meeting was attended by the Applicant, Mr Giraudo and Ms Tobar. In that meeting, the Applicant's employment was terminated and he was provided with a termination letter and paid one month's pay in lieu of notice.

• [28] The Applicant's evidence included the following:

1. He never received formal training after joining the Respondent and was not given a formal job description;
2. after two months of employment, the expectation and workload was immense and he was working overtime every day to manage his workload;
3. A number of his accountabilities were affected by factors outside of his control, as procurement had to coordinate with other departments such as accounts payable, cost control, warehouse etc;
4. despite raising this with Mr Giraudo on several occasions, the unrealistic expectations and undue pressure were not acknowledged;
5. Mr Giraudo's management style was intimidating, bullying and threatening, and the Applicant was extremely uncomfortable and stressed by the work culture;
6. When asked to sign a new contract that required him to stay on site 5 days, Monday to Friday, he felt he had no choice but to accept this roster arrangement;
7. being on site was challenging in terms of living in a remote area every week and only going back to Cooma for the weekends;
8. He was doing much more work on site than in the Cooma office as he was the focal point for procurement on site;
9. Given the pressure he was under, in July 2022 he asked his manager for a copy of his position description;
10. In terms of his performance appraisal, the Applicant said he discussed his performance with his manager who agreed his performance was average if not good. However, Mr Giraudo disagreed with the rating and as a result the Applicant's manager changed the appraisal giving him a lower rating;
11. After the performance appraisal, new methods were adopted by his managers to put further pressure on him. He complained to his manager several times about the behaviour of Mr Giraudo but nothing was done;
12. He raised his concerns about his workload with Ms Tobar who told him he should speak with his manager;
13. On 23 December 2022 he was placed on a PIP which he did not sign as he did not agree to its contents. He also disagreed with the timing, being initiated just prior to the Christmas period, and while his manager was away on annual leave. The Applicant said at this time he was doing not only his own work but the work of his manager as well;
14. he said that in each weekly meeting with Mr Giraudo he explained the excessive workload but this was never acknowledged;
15. He was shocked when, in the last PIP meeting on 27 January 2023 he was handed a termination letter, and was terminated on his last day of work before flying overseas for his holidays;
16. He said his parents were urging him to get married but he was unable to do so given he had just lost his job. He had to vacate the company accommodation in Cooma which left him homeless, and severely affected his mental health.

• [29] In his evidence in reply, the Applicant set out in detail his response to the evidence filed by the Respondent. In terms of the following up of purchase orders, he said that "following a particular number of purchase orders is actually closing them down or in other words making sure that they are delivered on-site to the warehouse, are passed on to or with the end user, with the POD (proof of delivery) submitted by the supplier and the good receipt done by the warehouse department (making the entry in the SAP system) for the Accounts payable to make the payments to the supplier for the delivery done". He said this was a manual and complex process, and required him to have to make others follow the process and provide the necessary process, which took significant time and effort. He further said that it was unfair to blame him for not getting things done when other people were not doing their part of the process.

• [30] The Applicant argued that it was unfair that his employment was terminated only one week after being issued with the written warning.

• [31] Two former employees of the Respondent also gave evidence in support of the Applicant's case. Mr Hossain and Mr Kannan gave evidence about what they described as the toxic workplace culture and the stress it placed on employees. They named Mr Giraudo as the reason for the culture in the workplace.

• [32] The Respondent contended that there were several issues with the Applicant's performance, including that:

1. he consistently failed to achieve the goal of following up on at least 10 purchase orders per day and would instead follow up on approximately 6 to 7 orders per day;
2. he was unable to consistently provide feedback to the TBM and Drill and Blast teams about the progress of their procurement orders;
3. he failed to attend work without giving notice to Mr Naveed on a number of occasions; and
4. he failed to attend for work at the start time of 8:30am, and was observed arriving at work between 9:00am and 9:30amand taking extended breaks.

• [33] The Respondent submitted that it had a valid reason to dismiss the Applicant, that being his continued poor performance, and it followed a fair process in doing so.

• [34] The Respondent also submitted that the Applicant was notified of the reason for his dismissal and was given an opportunity to respond to the performance matters that had been raised with him.

• [35] There is no dispute and I am satisfied that the Applicant is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.

• [36] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

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.

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

• [37] There is no dispute that the Applicant was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

• [38] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

1. 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

1. whether the person was notified of that reason; and

1. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

1. 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

1. if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

1. 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

1. 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

1. any other matters that the FWC considers relevant.

• [39] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd[1] as follows:

'... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'

• [40] The onus is on the Applicant to prove his dismissal was harsh, unjust and/or unreasonable.

• [41] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]

• [42] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[3] and should not be "capricious, fanciful, spiteful or prejudiced."[4] 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.[5]

• [43] There is no mandate for giving the 'valid reason' criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to 'have regard to' or 'take into account' requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

• [44] Having considered all the evidence, I find that on balance there was a valid reason for the Applicant's dismissal, although this has been a difficult decision to make.

• [45] The concern which has been difficult to resolve is whether the standard the Applicant was required to perform was reasonable and achievable in circumstances where the "following up" of purchase orders was at least in part reliant on other people doing their jobs. The evidence initially seemed to suggest that "following up" on purchase orders was what was required, but Mr Giraudo in cross examination confirmed that the requirement was to "close out" rather than "follow up" a specific number of purchase orders.

• [46] The chronology of events set out earlier makes it clear that the Applicant was given multiple opportunities to address the Respondents concerns, as explained in the PIP document and the weekly meetings with Mr Giraudo. These concerns extended beyond closing out purchase orders. Had the unsatisfactory performance been limited to this matter, I would not be satisfied that there was a valid reason for his dismissal. However, as outlined earlier, the performance concerns raised multiple times with the Applicant included his poor punctuality, failing to give notice to his manager when he was absent from work, and poor coordination and feedback to the operations teams about the progress of their procurement orders.

• [47] There is no doubt that the Applicant held a fundamentally different view to that of the Respondent as to his performance. He did not accept or agree that he was underperforming. Having fully considered all the evidence, I accept that his performance fell short of the Respondent's expectations. These matters in my view support a finding that there was a valid reason for his dismissal.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

• [48] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[6] in explicit terms[7] and in plain and clear terms.[8] In Crozier v Palazzo Corporation Pty Ltd[9] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

"[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted."[10]

• [49] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied 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.[11] This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[12]

• [50] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to The Applicant before his dismissal was effected.

• [51] There is no dispute that the Applicant was notified of the reason for his dismissal, and I am satisfied that he was given an opportunity to respond to the performance matters that resulted in his dismissal.

• [52] In this case, the Applicant was provided with information to afford him a full and proper opportunity to understand the performance concerns held by the Respondent. This included:

1. the email from Mr Naveed on 14 July 2022;
2. the Applicant's performance appraisal dated 18 July 2022;
3. the meeting with Mr Nassar and Mr Naveed on 15 December 2023 to institute the PIP;
4. the meetings with Mr Giraudo on 23 December 2022, 3 January 2023 and 10 January 2023 to track the applicants progress in achieving the requirements of the PIP;
5. The written warning provided to the applicant on 17 January 2023; and
6. the conference on 27 January 2023 to advise the Applicant of his dismissal.

• [53] Overall, I am satisfied on the evidence before me that the Applicant was notified of the reason for his dismissal and was given an opportunity to respond to that reason.

Unreasonable refusal by the employer to allow a support person - s.387(d)

• [54] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

• [55] The Applicant was not denied a support person.

Warnings regarding unsatisfactory performance - s.387(e)

• [56] A warning for the purposes of s.387(e) must clearly identify:

1. the areas of deficiency in the employee's performance;
2. the assistance or training that might be provided;
3. the standards required; and

• d. a reasonable timeframe within which the employee is required to meet such standards.[13]

• [57] The warning must also "make it clear that the employee's employment is at risk unless the performance issue identified is addressed."[14]

• [58] There is no doubt, based on the evidence set out earlier, that the Applicant was warned about this performance, and that the matters set out in this subsection were met.

• [59] While there was a short period of time between the issuing of the warning letter issued on 17 January and the Applicant's dismissal on 27 January, I am satisfied that the prior events in terms of the PIP meant that the contents of the warning letter could not have come as a surprise to the Applicant, and it ought to have been a relatively straightforward matter to immediately address at least some of the concerns such as punctuality and notification to his manager if he was absent.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

• [60] I am satisfied that the size of the Respondent and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal, and the process was undertaken to a standard that would be expected of an organisation of its kind.

Other relevant matters - s.387(h)

• [61] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

• [62] I have considered the impact that the dismissal has had on the Applicant, particularly in the context of his proposed wedding and having been dismissed immediately before a long period of approved annual leave. I have also taken account of his financial circumstances.

• [63] I have also taken into account his relatively short length of service.

• [64] Having carefully considered each of the required matters, I am not satisfied that the Applicant has discharged his onus of proving that his dismissal was harsh, unjust or unreasonable. Accordingly, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act, and so his application is therefore dismissed.

T Sebbens of Ashurst for Salini Australia Pty Ltd.

[1] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

[2] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

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

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

[6] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

[7] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[8] Previsic v Australian Quarantine Inspection Services Print Q3730.

[9] (2000) 98 IR 137.

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

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

[13] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].

[14] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

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