Dismissal of employee who failed training program justified

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Dismissal of employee who failed training program justified

An employee of the Australian Taxation Office (ATO) was found to have been fairly dismissed after he failed a graduate training program and displayed a generally poor attendance and work performance.

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An employee of the Australian Taxation Office (ATO) was found to have been fairly dismissed after he failed a graduate training program and displayed a generally poor attendance and work performance.

Background

The employee commenced employment with the ATO, undertaking the ATO's Graduate Program (the Program), on 21 February 2001. He was terminated on 25 February 2002 for allegedly failing to meet a condition of employment; namely, satisfactorily progressing and successfully completing the prescribed ATO Graduate Training Program.

It was argued on behalf of the employee, that in endeavouring to progress the Program he was subjected to a number of impediments, as follows:

  • he commenced his employment with a chronic back injury;
  • his mother died in March 2001, and he was involved in a family dispute over her estate;
  • he experienced back and groin pain associated with the back injury which necessitated time off during June, July and August 2001;
  • in early August 2001, he suffered from stress which required leave between 14 and 18 August 2001. This was later diagnosed as a major depressive disorder, which culminated in five weeks off work between 5 November 2001 and 10 December 2001;
  • he experienced lymphocytic colitis in January 2002, which required 12 days off work, and manifested itself in severe diarrhoea. On his return to work, as he had fallen behind with the Program, course deadlines were set out on 11 December 2001, and again on 29 January 2002. The employee's case was that the revised deadlines were unrealistic;
  • on 29 January 2002, the employee was issued with a Warning Letter, including a deadline of 12 February 2002 for the completion of all outstanding work;
  • a Show Cause Letter was forwarded to the employee on 14 February 2002. The employee was terminated on 25 February 2002.

Legislation

Pursuant to s.170CG(3) of the Workplace Relations Act 1996, the Commission must have regard to the following factors when determining whether a termination was harsh, unjust or unreasonable:

'(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

  1. whether there was a valid reason for the termination ...'

Disability considerations

Commissioner Spencer of the AIRC stated:

'It is clear that, from the outset, the applicant [employee] did not apply himself to progress the course and on the applicant's own evidence, there is no causal link to any disability or, indeed, a suitable excuse for his failure to achieve the requirements of the program.

...

'The critical issue is whether the disabilities and/or medical conditions faced by the applicant during his period of employment were assessed and the appropriate considerations were made to accommodate him prior to the decision to terminate.

'It is apparent from the respondent's [employer's] efforts to accommodate the applicant's circumstances, that they were taken into consideration prior to deciding to terminate.'

Determining whether the termination was harsh, unjust or unreasonable



The commissioner noted:

'According to Gambera v Allied Express Pty Ltd, it is not a requirement that an Employer keep an under-performing employee. In this decision, Foggo C referred to the Industrial Relations Court of Australia decision in Hurskin v Australian Jewish Press Pty Ltd, where Millane JR noted:

"...It is not the role of the court, or indeed the object of the legislation to require employers to keep on underperforming employees. Notwithstanding this observation, the employer does carry the burden of proving that there is a valid reason or reasons for termination connected with the employee's capacity."

...

'The issues of the applicant's disabilities were considered in the process. He was afforded opportunities to complete the Program and arrangements were made to provide him with the ability to work around these set-backs. He was afforded a clear opportunity to progress the course, to present his case, and to respond prior to any decision being taken to terminate his employment. ... The notification of the respondent's reasons for concern were put to the applicant in plain and unambiguous terms.'

The commissioner did not consider that the treatment of the employee's medical conditions, as they evolved, amounted to procedural or substantive unfairness in relation to the termination of the employee.

See: William James Ockendon v Australian Taxation Office - AIRC (Spencer C) - PR925954 - 13 January 2003.

 

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