Christopher Anastasopolous v Kodak (Australasia) Pty Ltd [1995] IRCA 388

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2166 of 1994 B E T W E E N : CHRISTOPHER ANASTASOPOLOUS & APESMA Applicant AND KODAK (AUSTRALASIA) PTY LTD Respondent Before: Judicial Registrar Fleming Place: Melbourne Date: 17 August 1995 REASONS FOR DECISION Background The Applicant had worked for the Respondent as a process worker from 4 January 1993 and was recruited by Mr John Fox (Manager) to the Supply Chain Management Group as an Inventory Analyst on 17 January 1994. The Applicant has a Bachelor's Degree in Engineering from Victoria University. Mr Fox, manager for the Respondent, said he recruited the Applicant on the basis of a recommendation made by his supervisors, his academic qualifications and his stated computer skills (Exhibit R1 is the Applicant's resume). In his witness statement Mr Fox described the Respondent's Supply Chain Management Department as having the responsibility of ensuring that product is available to meet customer demand, whilst managing the inventory investment of the company within broad guidelines. The inventory analyst position is a professional job requiring good communication and numeracy skills. Ms Gale was the Applicant's supervisor at the time of his recruitment. The Applicant was provided with a Finished Inventory Analyst job description and a copy of the Supply Chain Management Quality Book one week before his commencement. Between 17 January 1994 and 4 February 1994 the Applicant undertook the standard training program where he was trained on Manufacturing Resource Planning (MRPII) Principles, Kodak Sales Operations Planning process (S&OP), Kodak Inventory Planning system (DRP) and the Sales and Operations Planning Software Tool and technical aspects of Kodak Health Sciences Division Products (Exhibit RA). The Applicant also received "on the job" training from the outgoing planner Ms Balzat and he also undertook a corporate induction program where he was introduced to company policies, individual departments and their purpose. At the outset the Applicant appeared motivated and positive and prepared to put in extra hours to learn his job however Ms Gale's evidence was that this attitude was not maintained after the first few months. Events Leading up to the Termination On 5 May 1994 Ms Gale met with the Applicant to discuss his attitude to his work. Ms Gale called the meeting as a result of complaints she had received from Mr Reynolds (Business Unit Manager), Mr Moran (National Sales Manager) and Mr Ridley (Customer Relations Representative). The Applicant was surprised by Ms Gale's comments and agreed to address the problems raised. The Applicant has maintained throughout his evidence that the Respondent's training was inadequate and that the tasks he was to perform were complex. This evidence is contested by the Respondent. Mr Elder who has been an Inventory Analyst with the Respondent since 1992 worked throughout 1994 with the Applicant to assist him. Mr Elder said the job is just a planning job and it is not difficult. It may take 12 months to get confidence in yourself in the job but he would expect someone to be competent in the job after nine months. Mr Elder was of the view that after working with the Applicant for several months:- "Chris still did not comprehend the basic planning technique necessary to perform his job. In addition he was reluctant to accept advice from myself and other experienced Supply Chain Management personnel. When asked my opinion, I informed Lucinda (Ms Gale) and Margaret (Ms Bromby) but I believed he did not have the necessary skills, and that he had shown little signs of improvement during the time I have spent with him."(Exhibit RH) Ms Gale met with the Applicant on 22 June 1994 to discuss negative feedback she had received about the Applicant's aggressive behaviour. Ms Gale said the Applicant was again surprised by the feedback and after this occasion the Applicant's attitude did improve. On 27 June 1994 Ms Gale again spoke with the Applicant in relation to an inappropriate internal memorandum. Ms Gale also referred to three incidences where problems arose as a result of the Applicant's communication style (Exhibit RD, page 4). Ms Gale spoke to the Applicant again on 21 July 1994 about poor performance and on 28 July 1994 a Performance Review was conducted wherein Ms Gale told the Applicant he was not performing well in the most important areas of his job namely, inventory management and customer service. 'Chris's lack of planning and analytical skills resulted in many product groups being either understocked or overstocked and, as a result, the number of back orders was over twice that for any other period in over 18 months". Ms Gale said that the Applicant was again counselled about his "interpersonal style". On 12 August 1994 Ms Gale had cause to counsel the Applicant further this time about his punctuality. He was between 15 and 60 minutes late frequently and this problem was to be ongoing despite the counselling. On 26 August 1994 Ms Gale again spoke to the Applicant about a complaint she had received from the Photochemical Department in relation to failure to follow company procedures. The result of the Applicant's actions was that the manufacturing division were working overtime or otherwise the staff were under-utilised as a result of incorrect orders. As a result of this counselling session Ms Gale called in Mr Elder to assist the Applicant. Mr Elder and Ms Gale were of the view that the Applicant was unable to improve. On 8 September 1994 the Respondent ran out of critical stock, a situation which was described by Ms Gale as an emergency and it was the responsibility of the Applicant to avoid such a shortfall. The Applicant was unaware of the situation until informed by the Customer Relations Department. As a result of the shortfall the company lost about $20,000. Ms Gale held a formal counselling session with the Applicant on 9 September 1994 which was also attended by Ms Brumby, the Applicant's new supervisor. During this meeting a performance improvement plan was discussed. It was presented on a white board and open for general discussion between the three attendees. On 15 September 1994 there was a further meeting with the Applicant, Ms Brumby and Ms Gale and a document was presented which set out the plan (Exhibit A1). Although it is the Applicant's evidence that he at no time was aware that his employment was in jeopardy, I prefer the evidence of Ms Gale and Ms Brumby and the documentary evidence which sets out clearly that "if satisfactory improvement is not achieved then unfortunately we will have to terminate your employment." (Exhibit A1, page 1). Ms Gale with the assistance of Mr Elder and Ms Brumby conducted a review on 20 October 1994 which highlighted a range of serious problems for which the Applicant was responsible. On 21 October 1994 Ms Gale held a further meeting with the Applicant and Ms Brumby to discuss the DRP sheets (Exhibit A2). The Applicant sought and was given time (the weekend) to review the sheets so that he could respond to the concerns of his supervisors. On 24 October 1994 after the weekend the Applicant returned the DRP sheets with explanatory notes which were reviewed by his supervisor's Ms Gale and Ms Brumby. Ms Gale and Ms Brumby were not encouraged by the explanatory notes of the Applicant and spoke with Mr Fox. Later in the same day the Applicant was advised that:- "We did not believe he could improve his skills to a satisfactory level. We advised him that in our opinion the obvious options were to resign immediately and be paid one month's pay in lieu of notice or be given one month's notice and work out that month with significantly reduced duties." The Applicant sought some time to discuss this situation with the Manager, Mr Fox. Mr Fox met with Ms Gale and Ms Brumby and Ms Pugsley (Personnel Officer) on 25 October 1994 to discuss the Applicant's options and to see whether or not there were other positions within the company that might be available to the Applicant., On 26 October 1994 Mr Fox met with the Applicant. In that interview the Applicant told Mr Fox that he disagreed with his supervisor's assessment of the situation although he did acknowledge some problems with his own performance. "In view of Chris's unacceptably poor understanding of the inventory management process and the fact that he offered no other explanation or alluded to any extenuating circumstances I told him it was my decision that he could no longer continue in his current role. Chris then asked me whether I would be prepared to act as a referee for future employment. I responded that I would. I then advised him to go and talk to Cathy Pugsley in relation to the possibility of other employment at Kodak. Within one hour Chris returned to me and told me he had decided to go and would return after 5.00pm that day to pick up his personal belongings." Procedural Fairness Mr Considine for the Applicant submitted that the Respondent did not conduct a proper investigation of the alleged complaint before terminating the Applicant's employment and that the employer did not give the Applicant the opportunity to defend himself against the allegations made and further it was harsh, unjust and unreasonable because the Applicant was not provided with a written warning prior to the termination of employment. Mr Considine's submission depends upon Section 170DC of the Industrial Relations Act. That section provides that:- "(a) An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless...the employee has been given an opportunity to defend himself or herself against the allegations made or the employer could not reasonably be expected to give the employee that opportunity." There is no doubt that the Applicant's employment was terminated for reasons relating to his performance. Mr Lunny for the Respondent submitted that the Applicant was given an adequate opportunity to defend himself. I prefer Mr Lunny's submission. In Nicolson v Heaven & Earth Gallery Pty Ltd 1994 126 ALR 223 at 243 Chief Justice Wilcox discussed the significance of Section 170DC:- "Before an employee is dismissed he or she must be made aware of the particular matters that are putting his or her employment at risk and given an opportunity to defend him or her self. This section is intended to be applied in a common sense way to ensure the employee is treated fairly." In this matter the Applicant knew why he was being dismissed. He was aware on 15 September 1994 that his performance was being monitored and that the effect of continued poor performance would be termination of employment. On 21 October 1994, 24 October 1994 and 25 October 1994 the Applicant was given an opportunity to respond to the concerns of Ms Gale and Ms Brumby. He was given the opportunity on 21 October 1994 to take the DRP sheets home over the weekend to examine them and to respond to the criticisms of his supervisors and explain why he had performed his duties in the way reflected in the sheets. Ms Gale's evidence was that the explanatory notes made by the Applicant on the DRP sheets over the weekend merely confirmed in her mind that the Applicant was not capable of the duties he was intended to be performing. The Applicant sought and was given another opportunity to discuss his future employment with the Respondent when he spoke to Mr Fox, the Manager of the Department. Mr Fox offered the Applicant an opportunity to explain his poor understanding of the DRP process and Mr Fox's evidence was that "in view of Chris's unacceptably poor understanding of the Inventory Management Process and the fact that he offered no other explanation or alluded to any extenuating circumstances I told him it was my decision that he could no longer continue in his current role." Mr Fox offered to be the Applicant's referee and also suggested that there may be a position within Kodak for the Applicant. In all the circumstances I am satisfied that the Respondent has not failed to comply with Section 170DC and that the Applicant was accorded procedural fairness. Section 170DE The reason given for the termination of employment is that the Applicant was not competent to perform the position he held. When he applied for the position of Inventory Analyst the Applicant provided an impressive resume and covering letter. The Respondent was obviously guided by these documents and according to Mr Fox employed the Applicant as a result of his qualifications and his stated computer skills. The Respondent provided what it considered appropriate training. The Applicant has complained that the training was not satisfactory however the evidence is that the Applicant was provided with all the assistance that the Respondent could give in order to train the Applicant and that the training was considerable. Section 170EDA(1) of the Act deals with the onus of proof in respect of a claim under Section 170DE(1), Section 170EDA(1):- "if an application under Section 170EA alleges that a termination of employment of an employee contravened subsection 170DE(1); (a) the termination is taken to have contravened subsection 170DE(1) unless the employer proved that apart from subsection 170DE(2) there was a valid reason or valid reasons of the kind referred to in subsection 170DE(1); and (b) if the employer so proves, the termination is nevertheless taken to have contravened subsection 170DE(1) if the Applicant provides that, because of subsection 170DE(2) the reason or reasons provided by the employer were not right." I am satisfied that the Respondent has discharged its burden of proof. I find that there was a valid reason for the Applicant's termination of employment and I find that the termination is substantially fair. On the basis of my findings above I order that this Application be dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. That this Application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming. Associate: Dated: Union Representative for Applicant: Mr Greg Considine APESMA Solicitors for the Respondent: Mr John Lunny from Messrs John Lunny & Associates Date of hearing: 2, 3 & 19 May & 8 June 1995 Date of judgment: 17 August 1995