Sacked project manager not given a 'fair go'

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Sacked project manager not given a 'fair go'

A project manager has won his unfair dismissal application against a NSW company, after the Fair Work Commission found he was not given a “fair go”.

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A project manager has won his unfair dismissal application against a NSW company, after the Fair Work Commission found he was not given a “fair go”. 
 
He was awarded compensation for nine days’ pay, as well as superannuation. 

Facts and background 

 
On 29 March 2017, AC commenced employment as the NSW Project Manager with ELB Pty Ltd (trading as Electroboard). ELB was a contractor, which specialised in the installation of audio vision/videoconferencing and IT equipment in Australia and the USA. 
 
On 17 November 2017, ELB sent AC a formal warning letter following concerns about his conduct and performance at work. Examples of his unsatisfactory performance and conduct included not responding to direction from his manager, projects not being delivered on time and within budget, failing to maintain adequate communication with key clients, and being frequently unavailable to take telephone calls. 
 
He was invited to attend a meeting on 20 December 2017 with the executive advisor of Electroboard and the human resources manager. He was not advised of the nature of the meeting, nor was he advised to bring a support person. His employment was terminated at the meeting by way of a signed letter by a director of the company, which had been prepared before the meeting. He was not provided with any allegations in writing, nor was he given an opportunity to provide a considered and written response. 
 
He lodged an unfair dismissal application on 10 January 2018.

The law 


Under section 394 of the Fair Work Act 2009, a person who has been dismissed may make an application of unfair dismissal to the Fair Work Commission.
 
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must, in accordance with section 387 of the Act, take into account: 
  • whether there was a valid reason for the dismissal related to the person’s capacity or conduct
  • whether the person was notified of that reason
  • whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
  • any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
  • whether the person had been warned about unsatisfactory performance or conduct before the dismissal, and
  • any other matters that the FWC considers relevant. 
Section 390 provides that the FWC may order a person’s reinstatement, or the payment of compensation, if the FWC is satisfied that a person has been unfairly dismissed. 
 
Section 392 of the Act allows the FWC to make an order for payment of compensation. It also sets out the criteria that should be considered in making the order. Furthermore, section 391 gives the FWC an option to make the employer pay to the person an amount of the remuneration lost, or likely to have been lost, by the person because of the dismissal. 

The question

 
The question here was whether AC’s dismissal from ELB was harsh, unreasonable or unfair. The FWC was then asked to determine the amount of compensation he was entitled to.  

Arguments

 
AC argued that he was unfairly dismissed for a number of reasons: 
  • He received no support, training or advice as to how to improve his performance following the letter date 17 November 2017
  • He was not given the opportunity to respond to any direct allegation prior to being dismissed
  • He had been bullied and harassed at work via verbal abuse, false accusations and threatening emails, and
  • Any delay in the completion of the projects that he was managing was due to the lack of skilled installation staff across the organisation.
ELB submitted that AC’s ongoing performance provided a valid reason for his termination.

It also argued that the dismissal was not unfair because: 
  • It provided him with a written warning letter in relation to his poor performance some five weeks prior to his termination, and thus gave him an opportunity to respond, and
  • His performance did not show any signs of improvement following the provision of the warning letter.

Decision

 
Although the FWC found ELB had a valid reason to terminate AC’s employment, it ultimately found that the termination was unfair and unreasonable because he was not given a “fair go”. For example, he was not provided with an appropriate timeframe to respond to the allegations contained in the termination letter, nor was he given the opportunity to improve his work conduct and performance. Mr C tried to seek clarification and guidance from the HR manager, but her only advice was to “repair his relationship with the director”. This process was further complicated by the director's behaviour towards AC. The director's attempt to isolate or ignore AC was seen as workplace bullying and was strongly condemned by the commission. 
 
It agreed with AC that reinstatement would not be appropriate in the circumstances. AC instead sought compensation for the time between when his notice expired up until the date he gained new employment on 2 March 2018.

AC’s calculation came to 47 days (or $18,980.75).
 
 In making an order for compensation, the FWC considered: 
  • ELB’s ability to afford the amount of compensation
  • the length of AC’s employment, being nine months
  • the remuneration he would have received if he had not been dismissed 
  • the fact that he began searching for work to lessen his loss; and
  • the fact that AC, at the time of the hearing, was working in a new role. 
The commission ordered that AC receive nine days’ pay plus superannuation from ELB. It believed that ELB would have dismissed him, even after giving him an opportunity to properly respond to the allegations against him, because of his failure to follow a written direction from the executive advisor. This meant that AC would only have continued to work for a further two weeks, nine days of which he would have worked. 
 
The bottom line: A person may be entitled to compensation, or reinstatement where appropriate, if that person has been harshly, unreasonably or unfairly dismissed from their employment. 
 
 
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