Poor performance justified dismissal

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Poor performance justified dismissal

An employee who failed to meet his performance obligations was not unfairly dismissed, the Fair Work Commission has ruled.

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An employee who failed to meet his performance obligations was not unfairly dismissed, the Fair Work Commission has ruled.  

Andrew Demosthenous had been placed on a performance improvement plan and was given several warnings before his employment was terminated. 

Background


Mr Demosthenous, 59, had been working as a customer projects officer for Jemena Asset Management (Jemena) in the electricity division for 19 years until his employment was terminated in June 2017. 

There had been several customer complaints, and subsequent warnings issued to Mr Demosthenous, throughout his time at the company in relation to his poor work performance. 

After several failed attempts to improve his performance, he was placed on a formal performance improvement plan (PIP) from 1 June 2016. 

He failed to complete all the required tasks under the PIP and was placed on a second PIP from 1 November 2016. 

Throughout this period his position changed to project coordinator and Mr Demosthenous sent an email outlining his concerns about the new position and his health issues – diabetes and low iron levels. 

During the review meetings, Mr Demosthenous was given ample opportunity to ask for help to improve his work performance and manage his health problems but he always refused. 

Warnings


He was issued with his first formal warning on 24 March 2017, which noted that if he continued to fail to meet the performance standards then he would receive further warnings and an eventual termination of employment. 

The letter said, “please discuss with me any time your health concerns, I am here to continue to support you and I encourage you to manage this with a medical professional’. 
 
Mr Demosthenous responded with ‘There’s nothing you can do. I’m tired and I’m not coping. But you can’t help me with that’. 

He then received a second warning letter on 31 May 2017 that further outlined his lack of progress and failure to meet deadlines and projects.

On 22 June 2017, he wrote to Jemena requesting leave for his diabetes and ongoing stomach issues which had left him feeling tired and depressed. 

A meeting was held the following day to discuss the email along with his performance. It concluded with his termination. 

Judgment


The Fair Work Commission found there was a valid reason for the dismissal of Mr Demosthenous based on his consistent poor performance and failure to remedy this.  

Firstly, in relation to his customer project work, the commission did not agree with his argument that the failure to complete his work was because of inadequate management by Jemena. It was held that the managers had taken proactive steps to assist him with clear instructions and yet Mr Demosthenous failed to follow this through. 

The second area for concern was related to SAP ‘close out’ work, which was a standard transaction process to close projects. The commissioner found it was within Mr Demosthenous' ‘skill and experience’ to complete the close out tasks, despite the fact he had to often write his own instructions. It was yet again his own choice and fault not to complete them. 

Mr Demosthenous submitted that his performance was tainted by the lack of prioritisation and estimation of hours for each task in the PIPs. However, the Fair Work Commission did not believe this compromised the completion of the PIPs. In fact, it was held that Jemena invested considerable time in the applicant to assist him and even  reduce his workload by distributing it among other staff members. 

The other relevant matters considered by the commission were surrounding Mr Demosthenous’ health and personal issues. The commission was satisfied that Jemena made reasonable enquiries of the applicant to discuss with them any health or personal issues but he refused to engage in this process. It did not agree that the managers should have recognised and imputed he was suffering from such issues without him informing them and request he take leave. 

Although the commission found his age and lengthy service were mitigating factors, these factors were outweighed by the genuine and thorough performance improvement process and the opportunities given to him to meet such expectations.

The commission was satisfied the dismissal was not harsh, unjust or unreasonable and thus was not unfair.

Andrew Demosthenous v Jemena Asset Management Pty Ltd
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