Dai Le v The Australian Broadcasting Corporation [1995] IRCA 157

INDUSTRIAL RELATIONS COURT OF AUSTRALIA SYDNEY DISTRICT REGISTRY NO. NI 708 OF 1994 BETWEEN DAI LE Applicant AND AUSTRALIAN BROADCASTING CORPORATION Respondent COURT: Judicial Registrar Patch PLACE: Sydney HEARING DATES: 23 January 1995, 3 March 1995 DATE ORDERS MADE: 31 March 1995 REASONS FOR JUDGMENT By way of an application filed on 22 August 1994, the applicant sought the following orders: 1. An order requiring the respondent to reinstate the employee in employment. 2. Such other order or orders as will put the employee in the same position (as nearly as can be done) as if her employment by the respondent had not been terminated. 3. Leave for an extension of time for the application to be filed and served. The respondent did not oppose the third order. There was no significant delay, and I therefore give leave for an extension of time for the application to be filed and served. BACKGROUND FACTS The applicant, Dai Le, commenced work with the respondent on 7 February 1994, as a researcher with "The Investigators", a programme on ABC Television. This followed an interview process, in which it was made clear to the applicant that the position was not that of a trainee. Before she started work she was given a letter of appointment (Annexure "B" to her Affidavit, which is itself Exhibit "A"). That letter stated "..... you have been successful in your application for the position of Production Support Officer Strand 3 Level 2-4 (Researcher), TV Documentaries and Features Department at a salary of $32,446 p.a., commencing on 7 February 1994." The letter went on to say, under the heading, "Conditions of Employment". "Your employment with the ABC is subject to the conditions set out in the ABC - PSU EMPLOYMENT AGREEMENT 1992. You are strongly advised to take the time to read this agreement. In most cases this document will be available in your work area. If you are unable to obtain access to this document, you should contact your Unit Leader in Personnel who will arrange access at a mutually convenient time. It is important for you to know that smoking is not permitted in ABC buildings." Under the heading "Probation", the letter said : "So that we may assess your initial work performance you will be on probation for the first three (3) months of your employment. Your supervisor will outline the job you are expected to perform and the work standards you will be expected to meet." By commencing work with the ABC after she received that letter, the applicant accepted its contents and agreed to be bound by the conditions set out in it. Thus, when the applicant commenced employment, she was to be a probationary employee for the first three (3) months of her employment. The respondent was also bound by that letter, and was bound, completely independently of the existence of the letter, by the ABC - PSU Agreement 1992. ("the Agreement"). The significance of this is discussed below. Mr John Turner, the Executive Producer of "The Investigators", gave evidence. His evidence established that he, together with other senior people in the program, fairly quickly developed some concerns about the standards of the applicant's work. It should be understood that "The Investigators" is a special program - mainly because the possibilities for litigation are very high. As a result of that, the standard of work of their researchers has to be particularly high, with meticulous attention to detail. Mr Turner gave evidence that there were three areas in which, in his opinion, the applicant was not good enough for a research position in "The Investigators". These were: 1. Analysis 2. Comprehension 3. Visualisation. I accept that Mr Turner discussed these problems with the applicant, with the desire to assist her to improve so that she would be able to work to the standard required of "The Investigators". On or about 30 March 1994, Mr Turner had a formal discussion with the applicant, (which had followed other discussions of an informal nature). Following that discussion, he gave her a "Probation Report". This is a standard form document which, to speak generally, provides space for an assessment of a probationary employee's performance, comments by her supervisor, and comments in reply by the probationary employee. In many respects, Mr Turner's assessment of the applicant's performance to that date was very high. In respect of attendance, relations with staff/public, initiative and innovation, quantity of work, and general behaviour, his assessment was that the applicant was performing to a high standard. However, in respect of "quality of work", he had this to say: "Has difficulty in the most importance aspect of research on "The Investigators" - analysis and the compilation of all facts and input necessary for complete analysis. English grammar and expression problems." In respect of the category of "application and drive", he said this: "Diligent and enthusiastic, self motivated and willing. However, requires supervision of relevance of research briefs". In the category "development action", Mr Turner said this: "Dai has had some difficulty with analysis and there has been discussion with her over this. I am recommending that we persevere and try and solve the problem. Extend probation period for another three months." I should add here, parenthetically, that in his oral evidence Mr Turner made it clear that the phrase "Extend probation period for another three months" was merely a reference to the recommendation that he was making - and not a reference to an actual decision that he had himself had the power to make, or had in fact made. By mid-June, Mr Turner (and other senior people involved in "The Investigators" and in the TV Documentaries and Features department of the ABC) had reached the conclusion that the applicant's work performance was not of the required standard for a probationary employee. As a result of that decision, on 17 June 1994 Ms Shirley Goodwin, Manager Human Resources TV of the respondent, wrote to the applicant terminating her employment with effect from close of business 24 June 1994. (Annexure "F" to Exhibit "A") The reason for the (then) termination of the applicant's employment was expressed as follows: "First the ABC wishes to acknowledge the application and attitude that you have brought to the task as well as recognition of the fact that there are some components of your duties with The Investigators where you have shown aptitude. However the key requirement of this position as discussed with Mr Turner, is analysis and comprehension and this is the area you are continuing to experience difficulties [sic] to the point where your performance is not viable." "As you are aware, you were counselled and formally advised to improve your work performance in this area. However, unfortunately no improvement has occurred following this advice." The applicant did not accept this dismissal, and consulted with her union. As a result of negotiations involving the union and the applicant, the respondent changed its mind. By letter dated 24 June 1994, (Annexure "D" to Exhibit "A"), the termination of the applicant's employment was rescinded. However, in reference to that letter of 17 June 1994, the subsequent letter said: "The comments about your work performance described therein are not (withdrawn)". The letter of 24 June 1994 also said: "Your probationary period will continue until 6 August 1994, in accordance with section 5.5 of the ABC - PSU Employment Agreement 1992." For the reasons set out in my judgement on 23 January 1994, and as further set out below, the applicant had ceased to be a probationary employee at midnight at the end of 6 May 1994, and the purported extension of the probationary period in the letter of 24 June 1994 was ineffective. Following the withdrawal of the termination of the applicant's employment, the applicant was assigned to work on "Quantum", another program within the same overall department of the ABC. That program deals with issues in science and research. There was some dispute over the terminology, but, whatever was exactly said, and whatever Ms Karp's reply, I accept that, when she was told that she was to work on "Quantum", the applicant did raise some concerns about her lack of a science background. Nonetheless, she was assigned to that program. The purpose of taking her away from "The Investigators" and assigning her to "Quantum", was to give her a further chance to prove herself. The applicant commenced work on "Quantum" on 27 June 1994. There were two meetings held for the purpose of assessing her performance. The first of these was on 13 July 1994 and the second was on 1 August 1994. I will canvas what occurred at those meetings later in these reasons. On 3 August 1994 the applicant was informed verbally that her employment was to be terminated. On 5 August 1994, she received a letter stating that. IS THE APPLICANT EXCLUDED FROM THE OPERATION OF THE ACT BY VIRTUE OF REGULATION 30B? This matter was dealt with as a preliminary point, and I delivered an ex-tempore judgment on this question on 23 January 1995, all the relevant evidence on that point having been given by then. Reference should be made to that judgment for my full reasons. However, as the matter was further argued on 3 March, and in order to make the position as clear as possible, I will briefly re-canvas the question. The applicant was employed as a probationary employee, with an initial period of probation of three months' duration. Under Clause 5.5 of the ABC/PSU Agreement 1992, ("the Agreement") the respondent had the right to extend that initial 3 month period by a further period of three months. However, in order to do that, and to, therefore, alter the conditions of her employment, it would have been necessary for the respondent to tell the applicant of that decision. As the only right that the respondent had was to "extend" the initial period of probation, (as opposed to arbitrarily imposing a period of probation on an employee after that initial period had expired), that information would have to have been conveyed to the applicant before the expiration of the initial period of her probation - ie. before midnight at the end of 6 May 1994. On or about 30 March 1994, Mr Turner had a discussion with the applicant, and subsequently gave her a written probationary report. He merely told the applicant that he was recommending that her probation be extended. He had no authority to, himself, do other than make a recommendation. Subsequently, a decision was, apparently, taken to accept that recommendation - but that decision was not conveyed to the applicant until reference was made to it by letter dated 24 June 1994. True it is that the applicant believed that Mr Turner had, in fact, extended her probation - but that was based on the erroneous assumptions that Mr Turner had done more than make a recommendation, and that he had the authority to make a decision himself. It is also true that the respondent acted as if the applicant's probation had been extended. But that belief was in error. The respondent submits that, as both parties acted as if the applicant was still on probation, that there was therefore a "constructive extension" of the period of probation. I do not accept that submission. Either the respondent had extended the probationary period of the applicant, or it had not. To extend the period, the respondent had to actually tell the applicant that a decision had been made to do that. But the applicant was not informed, before the expiration of the initial 3 month period of probation, that her probation had been extended. As a result of the respondent's failure to do that, the decision to extend the period of her probation never came into effect. The applicant therefore ceased to be a probationary employee at midnight at the end of 6 May 1994. THE CONSEQUENCES OF THE FACT THAT THE APPLICANT WAS NOT A PROBATIONARY EMPLOYEE AT THE TIME OF THE TERMINATION OF HER EMPLOYMENT. At the expiration of the initial 3 month period of probation, Clauses 5.5 and 5.6 of the Agreement ceased to have any application to the applicant. The applicant was, from that time, no longer a probationary employee in any sense. If the respondent wished to dismiss her, and not breach the procedures set out in the Agreement, it would have had to abide by Clauses 8.5 to 8.17. I should note here that, in my opinion, the respondent has acted in good faith in the way it has dealt with the applicant. There was no conscious denial of the applicant's rights. But rights they are, and it is the duty of the Court to safeguard them - even in a situation where the applicant thought that she did not have them. People's rights are to be determined objectively, and cannot be said to depend on the subjective understanding of the persons(s) concerned. WAS THE WAY IN WHICH THE APPLICANT'S EMPLOYMENT TERMINATED A BREACH OF SECTION 170DC OF THE ACT? In my opinion, the answer to the above question is "yes". Section 170DC of the Act is as follows: "An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made; or (b) the employer could not reasonably be expected to give the employee that opportunity." In Nicolson v Heaven and Earth Gallery Pty Limited (1994) 126 ALR 233 Wilcox CJ, in respect of section 170DC of the Act, said, at page 243: "The paragraph does not require any particular formality. But this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as "natural justice" or, more recently, "procedural fairness". The relevant principle is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well established in public administrative law. It was accepted in international labour law when Article 7 was inserted in the Termination of Employment Convention. Section 170DC is directly modelled on Article 7. The principle is, I believe, well understood in the community. It represents part of what Australians call "a fair go". In the context of section 170DC, it is not to be treated lightly. The employee is to be given an opportunity to defend himself or herself "against the allegations made"; that is, the particular allegations of misconduct or poor performance that are putting the employee's job at risk. Section 170DC(a) is not satisfied by a mere exhortation to improve." What regard must be had to the International Labor Organisation Termination of Employment Recommendation, 1982? Section 170CA(1) of the Act is as follows: "The object of this Division is to give effect, or give further effect, to: (a) the Termination of Employment Convention; and (b) the Termination of Employment Recommendation, 1982, which the General Conference of the International Labour Organisation adopted on 22 June 1982 and is also known as Recommendation No. 166, and a copy of the English text of which is set out in Schedule 11." The title of the Recommendation is "Recommendation Concerning Termination of Employment at the Initiative of the Employer." Under the heading "Standards of General Application", there is a subheading "Procedure Prior to or at the Time of Termination". Paragraph 8 under that subheading is as follows: "8. The employment of a worker should not be terminated for unsatisfactory performance, unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed." In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (High Court) (unreported 7 April 1995), their Honours, Mason CJ and Deane J said, in discussing the status, in Australian domestic law, of the United Nations Convention on the Rights of the Child: "It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law........ But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations." One of the objects of the Division 3 of Part VIA of the Act is to "give effect, or give further effect, to" the Recommendation. I must, therefore, have regard to the wording of that Recommendation in determining the meaning of the various sections of Part VIA of Division 3 of the Act, including the obligations imposed on employers as a result of that Part of the Act. The Act does not, in terms, impose an obligation on employers to give employees a "written warning" in terms of paragraph 8 of the Recommendation. I accept that, if it were the intention of the Parliament to impose, in all cases, such a requirement, then the Act would specifically say so. Nonetheless, in view of the fact that one of the objects of the Act is to give effect to the Recommendation, and in view of the fact that the Recommendation is incorporated in the Act in the sense that it is a Schedule to the Act, the absence of a written warning (where that could appropriately and practically be given) is a significant factor to be taken into account on the question of whether or not an employer has breached the provisions of section 170DC of the Act (and section 170DE). To put it another way, although I do not regard the Recommendation as necessarily binding, I do take it into account as providing significant guidance to the Court on the question of the proper procedures for an employer to follow. Furthermore, there are sound policy reasons why a written warning stating that the employee's job is at risk, and setting out the reasons why that is the case (where that could appropriately and practically be given) should be given. It is in the interests of both parties that the potential for misunderstanding be minimised - a written warning has that effect. Related to that, in my opinion, is this: if an employee's work performance is not up to the required standard, then an employer should inform the employee, as precisely as possible, exactly what the problems are. The best way to do this is in writing. If there are standards to which the employee must perform, then those standards should be set out in writing. Nonetheless, lest I be misunderstood, each case has to be examined in the light of its own facts. The absence of such a written warning is not necessarily determinative of the question, and there would certainly be many circumstances in which the absence of a written warning would not necessarily mean that a termination of employment was in breach of the Act. It is simply a factor to be taken into account, in the way set out above. The effect of the respondent's failure to give the applicant written warnings. Here, although the applicant's work performance was discussed at the meetings on 13 July and 1 August 1994, no written warnings were given to her. The Agreement governing the work of the applicant required that warnings be given in writing. Taken together with the Recommendation, I find, therefore, that the failure of the respondent to give the applicant written warnings during her time on the "Quantum" programme was a breach of section 170DC of the Act. The effect of the respondent's failure to inform the applicant of the standard to which she was expected to perform. The reason for the termination of the applicant's employment was set out in the letter to her of 5 August 1994, which is Annexure "C" to her Affidavit (Exhibit "A"), as follows: " As was outlined in Mr Fromyhr's letter your performance has been monitored and discussed with you over the preceding six months. You had been counselled on 13 July, 1994 and 1 August, 1994 concerning your work performance as a Researcher (Production Support Officer (PSO) Level 3) in the Documentaries and Features Department of ABC TV" "You were warned on 23 June, 1994 that your performance at the PSO 3 level was not satisfactory. Unfortunately as you were advised on 3 August 1994, your work performance remains unsatisfactory in that the standard of your research does not meet the requirements for a PSO Level 3. Therefore the ABC is not able to confirm your ongoing employment as a Researcher at Production Support level 3." The applicant was never told that she was working as a "level 3" Researcher. The position, as advertised, was for a "Researcher (Production Support Officer (PSO) level 2-4)". The letter of appointment repeated that description. Nor was the applicant ever told what the "standard of (her) research" should be - and, in particular, she was never told what the "standards" or "requirements" for a PSO level 3 were. The advice, or warnings, about the deficiencies in her performance were therefore insufficient for her to be able to respond properly, and the termination of her employment was, for that reason, a breach of section 170DC of the Act. WAS THE DECISION TO TERMINATE THE APPLICANT'S EMPLOYMENT A BREACH OF SECTION 170DE OF THE ACT? Section 170DE reads as follows: "HARSH, UNJUST OR UNREASONABLE TERMINATION 170DE(1) [Termination must be for valid reasons] An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service. 170DE(2) [Termination harsh, unjust or unreasonable if reasons not valid] A reason is not valid if, having regard to the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid." Was there, in terms of section 170DE(1), a "valid reason" for the termination of the applicant's employment? In order to ascertain what the author of the letter of termination, dated August 5, meant by the phrase "your work performance remains unsatisfactory in that the standard of your research does not meet the requirements for a PSO level 3", it is necessary to examine what occurred at the meetings on 13 July and 1 August 1994. The same persons were present at each meeting. They were the applicant, Mr Terry O'Sullivan (a Union Representative), Mr Bob Deere (Executive Producer of "Quantum") and Ms Daryl Karp (Head, TV Documentaries & Features Department of the ABC). Both the applicant and Ms Karp gave evidence about what occurred at those meetings. Both of them made file notes shortly after those meetings. On analysis, there is not much difference between what they say. At the first meeting, on 13 July 1994, there was a mixture of praise and criticism in relation to the applicant's work. The criticisms made by Mr Deere were to the effect that the applicant needed to work on three areas: - Visualisation and possible sequences; - Cross referencing (ie. not taking things at face value); - Coming to grips, and making sense of the science. I accept what the applicant says in her affidavit when she says that at no stage was she told that she was not performing to the level required of Production Support Officer Level 3. Ms Karp's file note in respect of the meeting on 1 August 1994 is as follows: "The meeting took place in my office, and focused on the shortcomings outlined in the previous meeting. Dai indicated that she was trying to come to grips with visualisation by reading relevant books on film technique. She felt that she was making good progress. She was currently working on 3 new ideas: CD Rom, toxic treatment process; and contaminated land sites. Of the four earlier research briefs, Cannabis had not stood the test of scrutiny, and the other 3 were on file, waiting to be handed to a producer or reporter. Bob Deere felt that Dai had made good progress and was a 'competent researcher, but was yet not able to handle the science' as would be required by a Quantum researcher. Dai asked what the next step was likely to be, and I said that I would need to discuss the situation with Industrial and get back to her, hopefully within the next twenty four hours. The meeting ended amicably." (This memo is to be found as part of Exhibit 4). The applicant's diary note in respect of that meeting is as follows: "Meeting with Daryl, Bob, Terry, Me at 3pm. Meeting was positive. Bob said he was confident with my briefs. He said I need to work on my science, which I agreed. Daryl said that's a problem with people starting in Quantum. However, unlike the Investigators, you have an opportunity to move up in Quantum." I place particular emphasis upon that part of Ms Karp's file note in which she repeated what Mr Deere had said, namely that he felt "Dai had made good progress and was a 'competent researcher, but was not yet able to handle the science' as would be required by a Quantum researcher." Ms Karp was the person who made the decision to terminate the employment of the applicant. In her examination in chief she was asked why she made that decision. She answered as follows: "I made the decision on a number of counts. One, we did not have - one, she was not performing at a senior research level. We did not have a vacant junior researcher position, in fact we do not have a junior researcher position in the department, and there was not one that was vacant. And the only possibility for researcher was likely to come up in the science unit, and both Bob Deere and Alison Lee indicated that the lack of experience compounded with the lack of science background meant that Ms Le was not suitable for their - did not meet their requirements within the science unit. And so, I simply did not have any other positions. In my opinion, the decision to terminate the applicant was not for a "valid reason". She was dismissed as if she were a probationary employee - but, for the reasons set out above, she ceased to be a probationary employee at the end of 6 May 1994. To dismiss a "competent researcher" simply because she was not yet able to handle the science (particularly in view of the fact that the applicant had herself expressed concerns about that when she was first informed that she was to work on Quantum) was, in my opinion, not for a "valid reason". Was the termination of the applicant's employment "harsh" or "unjust" or "unreasonable" in terms of section 170 DE(2)? As I have said above, because the applicant was not a probationary employee, the termination of her employment was governed by Clauses 8.5 to 8.17 of the Agreement. Paragraph 8.5 of that Agreement sets out the permissible reasons for which the ABC may terminate the employment of an employee. It reads as follows: "TERMINATION OF EMPLOYMENT BY THE ABC. The employment of an employee, either full-time or part-time, may be terminated by the Corporation for one or more of the following reasons: a. Misconduct, including serious misconduct, b. Inefficiency, c. Abandonment, d. Retirement upon the employee reaching 65 years of age, e. Where the skills, talents or perceived audience appeal of an employee are no longer relevant to the ABC's overall program requirements, f. Where the employee is one of a class of employees which comprises a greater number than is necessary for the efficient and economical operation of the ABC, g. Where the services of an employee cannot be effectively used because of technological or other change in work methods/practices of the ABC, or h. Where the operations of the ABC are transferred to another location and the employee is not willing to perform the duties at the new location. The stated reason for the termination of the applicant's employment as set out in the letter to her dated 5 August 1994 was as follows: "You were warned on 23 June, 1994 that your performance at the PSO 3 level was not satisfactory. Unfortunately as you were advised on 3 August, 1994 your work performance remains unsatisfactory in that the standard of your research does not meet the requirements for a PSO Level 3. Therefore the ABC is not able to confirm your ongoing employment as a Researcher at Production Support Level 3. This can only fit into the category of "inefficiency" in para 8.5 (b) above. Paragraph 8.6 of the agreement is as follows: Inefficiency. Where an employee is considered to be inefficient for reasons outside the employee's control, the ABC will observe the procedures outlined in Sections 8.12 to 8.16 before any consideration is given to dismissing the employee. Paragraphs 8.12 to 8.16 of the agreement set out the procedures to be followed by the ABC in a dismissal for "inefficiency". These paragraphs read as follows: 8.12 INEFFICIENCY. In consideration of inefficiency or unsatisfactory work performance, an employee will be assured of natural justice and protection from arbitrary or unreasonable determination of work performance. Employees will be provided with a clear statement of the standards of work they are expected to sustain. 8.13 Counselling. Employees who are considered inefficient for reasons outside their control will be entitled to counselling and/or training opportunities. Consideration will be given to solutions such as modification of duties or transfer. 8.14 Right To Union Representation. Employees who face an inefficiency assessment because of their work performance will be advised of their right to be represented by a Union official, or Union nominee, in all counselling sessions and discussions on the matter. The employee will be entitled to receive written advice of all identified concerns and the opportunity to respond in writing. 8.15 Inefficiency Assessment. An employee whose work performance is considered by the ABC to be inefficient will be assessed over a period of up to three (3) months. The employee will be assessed by no less than two (2) ABC employees, one of whom may be the employee's supervisor. One other will be another ABC employee who is familiar with the work to be performed and who is agreed between the ABC and the Union. The period of time required for the assessment will be agreed between the two ABC employee assessors specified above. 8.16 Work Standards and Performance. The standard of work to be sustained during the assessment period, and the work program, will be discussed with the employee and clearly outlined in writing. Performance standards will be determined by the ABC provided those standards are not arbitrary or unreasonable. The respondent was in breach of paragraph 8.12, because the applicant was not given "a clear statement of the standards of work (she was) expected to sustain." The respondent was in breach of paragraph 8.14, because the applicant did not receive "written advice of all identified concerns" and was not given "the opportunity to respond in writing". In respect of paragraph 8.16, the applicant was not given anything in writing which "clearly outlined" "the standard of work" or "the work program". At the meetings of 13 July and 1 August 1994, the applicant was given counselling, and some problem areas in her work performance were verbally identified, but that was insufficient to fulfil the respondent's duties under the Agreement. The dismissal of the applicant was, therefore, a breach of the Agreement. The fact that the respondent and a union covering the work of the applicant have reached an agreement setting out the procedures to be followed in the case of a dismissal - an agreement which, in this case, has the status of an award - is a powerful argument in itself in support of the proposition that a failure to abide by the agreement would render any dismissal "unjust". The terms of the ILO Recommendation were also breached, in that the respondent did not give the applicant "appropriate instructions and written warning" before the termination of her employment. The letters of 17 and 24 June 1994 were not sufficient for this purpose, as the situation had changed from when they were written. Furthermore, in the letter of 24 June 1994 (Annexure "D" to the applicant's affidavit - Exhibit "A"), she was told this: "Your new supervisor will clearly outline the job you are expected to perform and the standards you will be expected to meet." In the context of the Agreement, and bearing in mind the terms of the ILO Recommendation, that should have been done in writing. It was not. Furthermore, although the applicant was told what her problems were, it was never "clearly outlined" at all (either verbally or in writing) what "standards (she was) expected to meet". I find that the failure to follow the agreed procedures - procedures which were, in terms of paragraph 8.12, instituted to "assure natural justice and protection from arbitrary or unreasonable determination of work performance" made the termination of her employment, in the terms of s.170DE(2) of the Act, "unjust." I also find that the failure of the respondent to clearly outline - in writing - "the job (she was) expected to perform and the standards (she was) expected to meet", and well as the failure to make clear at all (either verbally or in writing) what those "standards" were, made the termination of her employment, in the terms of s.170DE(2) of the Act, "unjust." It follows that the termination of the applicant's employment is deemed not to have been for a "valid reason", and was in breach of section 170DE of the Act. IS IT IMPRACTICABLE TO ORDER THE REINSTATEMENT OF THE APPLICANT? Section 170EE(1) and (2) of the Act are as follows: