Unfair Dismissal Claim Dismissed Due to Poor Performance Impacting Business

The claimant, a welder, sought relief from an unfair dismissal claim. The Commission found that the claimant's work performance issues had a significant impact on the business, justifying the dismissal. The application was dismissed.

Industrial Relations Commission of New South Wales

CITATION: [NAME] v [NAME] [2005] NSWIRComm 1218

APPLICANT [NAME] PARTIES: RESPONDENT [NAME](S): 3684 of 2005

CORAM: McLeay C

CATCHWORDS: Unfair dismissal - welder - work performance issues - verbal warnings given - lack of significant improvement - anonymous allegation against the applicant - allegation not the reason for dismissal - performance had serious impact on business - dismissal not harsh, unreasonable or unjust - application dismissed

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 11/15/2005

DATE OF JUDGMENT: 12/08/2005

APPLICANT Appeared unrepresented LEGAL REPRESENTATIVES: RESPONDENT [NAME], barrister with Mr J [NAME] and Mr J [NAME]

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: McLEAY C

8 December 2005

Matter No IRC 3684 of 2005

[NAME] and [NAME]

Application by [NAME] re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 1218

1 This is an application by [NAME] against [NAME] for unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. The application shows that [NAME] was employed by the respondent from 22 June 2004 until he was dismissed from the position of welder on 24 June 2005. 2 [NAME] claimed that he had been dismissed on returning to work after four days sick leave, being told that he was suspected of committing a robbery at the workplace on the previous weekend. He said he had not been given any previous written warnings about his conduct or performance. 3 [NAME] gave evidence on his own behalf. [NAME], a Director of the respondent, gave evidence on behalf of the respondent, as did [NAME], the Managing Director. The business employs 14 people and produces steel pallets, cages, stillages and other similar products. The applicant had been employed initially as a casual employee and was appointed as a permanent fulltime employee from 10 February 2005. 4 [NAME] gave evidence that he became concerned about the work performance and conduct of the applicant soon after he became a permanent employee. He was the subject of two complaints from another employee about harassment which appeared to be racially motivated, and had been called to the office and spoken to about his behaviour. He was also called to the office and spoken to about the slowness of his work, and had agreed to pick up his standard. [NAME] also said that the applicant had worked on a valuable order for a client, [NAME], which was later found to be the subject of faulty workmanship, requiring [NAME] and [NAME] to travel interstate to repair the work. 5 In June 2005, [NAME] said that he and [NAME] decided that, due to the poor work and lack of significant improvement by [NAME], they made a decision to dismiss him when they returned from interstate. 6 Meanwhile, on the weekend of 18/19 June, the business premises were broken into. Money and electrical goods were stolen. On the following Tuesday or Wednesday, an anonymous telephone caller named the applicant as one of two people responsible for the break-in. 7 [NAME] and [NAME] called the applicant into the office on his arrival at work on Friday 24 June, following his absence on four days sick leave. [NAME] gave evidence that he said words to the following effect: [NAME], due to the poor workmanship on the [NAME] job together with your overall poor performance, conduct and attitude we are terminating your employment as of today. We have also been advised by an anonymous phone call that you were somehow involved in the break-in. This is not however, the reason your employment is being terminated. We have notified the police about the information we received. 8 [NAME]'s evidence was similar to that of [NAME]. He said that the applicant had twice been called into the office about his conduct - once in regard to racial slander and once in regard to slow work. He said: On about 2nd June [ another employee ] left the employment of the company. [NAME]'s performance did not, however, improve. He was still slow and his work output was lower than that of other employees. He continued to distract other employees by constantly talking to them. I do not now recall specific times and dates but I know that these on-going concerns were raised with [NAME]. On each occasion it was stressed that he must stop the chatter and improve his performance. The on-going problems with [NAME] had been the subject of discussion between [NAME] and myself over some time and we had come to the joint conclusion that it was pretty clear that [NAME] wasn't going to improve and we should terminate his employment rather than prolong what was an unsatisfactory situation. 9 At the meeting on 24 June, [NAME] said that he recalled that [NAME] asked several times whether he was being dismissed due to suspicion of robbery. He was assured each time that that was not so. 10 [NAME] said that his work performance and conduct had not been discussed as a reason for dismissal. He said that he had been told that there had been a robbery, and that another employee had received an anonymous call saying that a former employee and himself and been involved in the robbery. He said that he was told he could not continue to work while there was a police investigation of the incident. When he asked for more detailed information, he was refused. 11 [NAME] denied that poor work performance was given to him as a reason for his dismissal at the meeting on 24 June. He also denied that his conduct in terms of the harassment issues or wasting time of fellow workers were given as reasons for the dismissal. Under cross-examination [NAME] insisted that the only reason for the termination of his employment given to him at the final meeting with his former employers was the suspicion about his involvement in the robbery. He said he was advised by [NAME] to get a lawyer, and not come back to work. 12 However, [NAME] responded to a question in cross-examination by saying: I was standing in the - I returned - I went to work that day as normal; walked into work. Before I was to resume my normal duties the leading hand of the factory was - had informed me that I was to wait in the bottom lunch room because [NAME] and [NAME] were - required to see me. When I walked in to the lunch room I was sitting there and they both came in and that's when both allegations were thrown at me about poor workmanship and that I was going to get - the break in was the main reason they were -- 13 The following exchange took place between [NAME] and the applicant: [redacted] A. Only at that stage of when they confronted me on that Friday morning. 14 This statement by the applicant clearly indicates that the work performance issues were raised at the meeting as reasons for termination, as stated by [NAME] and [NAME]. It throws his continued denial of the issues as reasons for termination into considerable doubt, to the extent that I am satisfied to accept the evidence of the witnesses for the respondent wherever it conflicts with that of the applicant. 15 [NAME] conceded that he may have advised [NAME] that he should seek legal advice in regard to the allegation against him, but that he could not remember particularly doing so. He said that he and [NAME] had both impressed on [NAME] that the allegation of his involvement in the break-in and robbery was not a reason for his dismissal. 16 [NAME] recalled one verbal warning, which coincides with the evidence of [NAME] and [NAME] that [NAME] committed to improving his performance. He denied receiving a warning in regard to racial slander, and denied such conduct. He expressed concern that no written warnings were issued. I am satisfied on the evidence that a number of verbal warnings were issued, both formally and informally. Further, given the size of the business and the continued efforts of [NAME] and [NAME] to manage the situation on a face-to-face basis, I am satisfied that written warnings were not required and the verbal warnings were sufficient. 17 I accept that [NAME] was dismissed for the reasons provided by [NAME] and [NAME]. I accept, as [NAME] said, that the respondent made substantial efforts to maintain [NAME]' employment, trying to sort out the problems that existed and hoping that he would "come good". These efforts include the two formal warnings referred to in evidence by [NAME] and [NAME] as well as a number of informal discussions about the need to improve his performance and conduct. 18 I accept [NAME]' submission that [NAME]'s expressed concern about the impact of [NAME]' non-performance having a serious impact on the business was the major factor in the termination of the applicant's employment. I also accept her submissions that [NAME] did not recognise the problems that did exist, in spite of the fact that they were drawn to his attention. This attitude was reflected in his evidence before the Commission. 19 Further, I accept that the issue of the break-in and robbery of the respondent's premises was coincidental to the timing of the dismissal, occurring on the weekend when [NAME] and [NAME] were travelling interstate. They had already decided that they would dismiss [NAME] because of on-going problems with his work, prior to hearing the report of the break-in, and definitely prior to hearing about the anonymous phone call during which [NAME] was named as being involved in it. They implemented their decision on the first available opportunity, when [NAME] returned from sick leave. 20 I note that [NAME] was paid his statutory entitlements on dismissal, including a week's pay in lieu of notice. It was inappropriate for [NAME] to refuse to provide [NAME] with a Separation Certificate when he requested it, but such refusal does not in itself cause me to find any unfairness in the dismissal. 21 In summary, I accept that the dismissal was not harsh, unreasonable or unjust. The application is dismissed.

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