DECISION NO:191/97 CATCHWORDS INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - VALID REASON - company restructure - OPERATIONAL REQUIREMENT - REDEPLOYMENT - CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND - Workplace Relations Act 1996 ss170DC, 170DE(1), 170EA, Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 HEALD & FSU -V- GIO AUSTRALIA VI 1241 of 1997 Before : PARKINSON JR Place : MELBOURNE Date : 13 JUNE 1997 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1241 of 1997 B E T W E E N: James Matthew HEALD Applicant A N D GIO AUSTRALIA Respondent MINUTES OF ORDERS 13 JUNE 1997 PARKINSON JR THE COURT ORDERS THAT: 1. The application made pursuant to Section 170EA of the Workplace Relations Act 1996 be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1241 of 1997 B E T W E E N: James Matthew HEALD Applicant A N D GIO AUSTRALIA Respondent REASONS FOR DECISION 13 JUNE 1997 PARKINSON JR This is a decision in relation to an application made pursuant to Section 170EA of the Workplace Relations Act 1996. The respondent is engaged in the provision of motor vehicle and other insurance. The applicants in this proceeding are the Finance Sector Union of Australia,('the FSU') and Mr Heald,('the applicant'). The applicant was employed by the respondent on 17 October, 1994, as a Level One employee in the underwriting area. As a consequence of a major restructuring exercise undertaken in 1996, the applicant was transferred to a new position as a Level One employee in the registry area. This new position involved performing mail and filing functions. The transfer occurred on 5 September, 1996. The respondent contends that the applicant did not perform his duties adequately in the position and that despite the respondent providing adequate training and assistance his work performance did not improve over a three month period. The respondent bears the onus of establishing, on balance of probability, that it had valid reason for the termination of the applicant's employment. In this proceeding the applicant's representative elected to call no oral evidence from the applicant. Documents were tendered by her with the consent of the respondent. No issue was taken with the validity of the reason for transferring the applicant from the underwriting section to the pool of employees to be allocated new positions. Nor is this a case where the applicant declined to accept the proposed new position, or sought that he be transferred elsewhere. Neither party tendered the Federal Award or Agreement governing the employment, so I have had no opportunity to give consideration to the actual provisions, however, by the descriptions of the work to be performed and oral evidence as to the Award classification structure, it appears that the clerical and administrative duties involved in the new position are duties of the type contemplated by the broad banded classification level at which the applicant was employed and were therefore duties which the respondent was, subject to the intervention of an industrial tribunal or process of dispute resolution pursuant to the Award, entitled to ask the applicant to perform. No evidence was presented which suggested that the tasks of the new position were not within the contemplation of the Award provision which governed the employment or that it was at least at the time of the transfer, unreasonable of the respondent to redeploy the applicant to that position. The evidence of the respondent was that the applicant commenced the new duties on 5 September, 1996 and that shortly thereafter difficulties were apparent with his work performance. The respondent contends that as a consequence of these difficulties it took various steps in an attempt to remedy the situation. It contends that the counselling steps taken failed and as a consequence the applicant's employment was terminated on account of poor work performance. It further contends that there was no alternative position available for the applicant to be redeployed to having failed to perform satisfactorily in the new position. The respondent having regard to the burden of proof under s170EA called evidence as to each of these matters. In essence the applicant does not contest that his work performance did not meet the standard required by the respondent. Nor was it put that the standard required of the applicant by the respondent was unreasonable. Rather it was contended that the termination of the employment in the circumstances of the applicant, being a recent redeployee, was harsh, unjust and unreasonable. I take this latter submission to be a submission that the termination was capricious in the sense discussed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, where consideration was given to the proper interpretation of s170DE(1). It was further put on behalf of the applicant that he was clearly unsuited to the redeployed position and consequently the respondent ought to have arranged for an alternative position as an alternative to terminating the employment. I turn now to a consideration of the evidence. The applicant commenced in the new position on 5 September, 1996. The unchallenged evidence is that shortly after he commenced, the Claims Manager,Mr Dickson, in recognition that employees are likely to suffer some uncertainty and anxiety as a result of the restructuring exercise, spoke individually to all redeployees, including the applicant, at which discussion he reassured him that there was a future for him in the division and in the business. The evidence is that upon transfer, the applicant received one week of training in the position, whereby he accompanied an experienced employee in performing the mail and filing tasks required for that week. The respondent's evidence was that it had an appreciation of what would be reasonable levels of performance to be required of an employee new to the position. Its evidence in this regard was that an amount of 40 items of undistributed mail at the end of a week would not be unacceptable initially, however most employees, including other redeployees were able to maintain a level of between 15 to 20 items. The respondent's evidence is that in the first four weeks in the position the applicant's outstanding mail count at the conclusion of each week exceeded 70 items. On 3 October, 1996 as a result of complaints being received as to the applicant's delay in processing items, a meeting was held with between the applicant, Mr Welsh, the applicant's manager and Ms Ellul, the applicant's line supervisor, wherein his performance was discussed. The respondent's evidence is that at the meeting the concerns as to delays were discussed together with other matters. Mr Welsh's evidence was that the applicant was asked if there were any steps the respondent might take to assist him in improving his performance. The evidence was that he offered no suggestions and made no comment either upon his view of the position, nor as to the reasons for his difficulties, other than that he recognised he was not performing adequately. A record of the counselling session was made and signed by all present at the meeting including the applicant. On Tuesday 12 November, a further meeting was held with the applicant as to his work performance. In the course of that meeting the applicant's performance as to the identification, sorting and collation of incoming mail was again discussed. The applicant was reminded as to the weekly target of no more than 40 items of mail outstanding, and advised that the previous five weeks had revealed items outstanding to his account of 50, 57, 76, 99 and 70 items respectively. The evidence of the respondent was that at this meeting the applicant provided no explanation as to his poor work performance and made no suggestions as to how he may be assisted in improving. The meeting resulted in the applicant being informed that if his work performance did not improve in the next four weeks, termination of his employment may be the result. The applicant did not sign the record of the counselling session, although the record was signed by Mr Welsh and Ms Ellul. The evidence is that the respondent continued to monitor the applicant's work performance from 12 November, 1996. In the ensuing month the applicant's work performance according to the respondent declined. In the four weeks following his outstanding mail count was 83, 52, 62 and 110 items respectively. The applicant's advocate tendered a number of documents in the proceedings. Those documents included the counselling session documents,(Exhibits A1 & A2), the letter terminating the applicant's employment,(Exhibit A5), correspondence from the FSU to the respondent advocating the applicant's case,(Exhibit A3) and various documents identifying that the applicant's work performance in the previous position had been the subject of recognition by the respondent by way of bonus payments and merit certificates. The applicant's advocate relied upon this material to support the contention that the respondent had acted capriciously. The applicant did not give evidence in the proceedings and consequently the Court is not informed as to the applicant's explanation for the difficulties in performing the work and mitigating factors if any which ought to have been taken into account by the respondent and were not. Further there was no evidence called to refute the evidence of the respondent that there was no alternative position or duties, suitable to the skills of the applicant to which he could have been redeployed in preference to termination. It was further contended on behalf of the applicant that the industry standard required the respondent to accord greater consideration to the applicant as a redeployee than would normally be necessary. In this regard however no evidence was put before the Court as to how that industry standard was said to apply and no reliance was made upon the terms of any industry award or award applicable to the employment of the applicant by the respondent. In the absence of such material there is no basis for the Court to make any finding as to a generally applicable standards in the industry, the failure to apply which standards may constitute the termination of the employment as capricious. The course of the evidence identifies a concentration by the respondent's managers and supervisors on sick leave taken by employees who were redeployed. The applicant was counselled as to the amount of authorised sick leave he had taken in the period 9 September to 24 September, and this counselling occurred merely as a result of the quantum of the leave and prior to any inquiries being made by the respondent as to the reasons for the leave. The counselling notes of 3 October records that the applicant's 5 days of sick leave were and remained a matter of concern and does not record that the matter was adequately explained. Nor does the document record that the respondent accepted the applicant's explanation as to the sick leave taken, although this evidence was given in the proceedings by Mr Welsh. Mr Welsh was not cross examined as to this apparent inconsistency or inaccuracy in the record and his explanation as to the reason for supervising the level of sick leave of employees was not contested by the applicant. Further the uncontested evidence of the respondent is that no account was had of the applicant's leave record in deciding to terminate his employment, nor was there any complaint in this regard at the time the applicant's employment was terminated. For the reasons set out above I am satisfied that the respondent had valid reason for the termination of the applicant's employment. I am also satisfied having regard to the process utilised by the respondent and the meetings with the applicant and his union representatives on 6 and 12 December, 1996, that the applicant was given an adequate opportunity to be heard in relation to the allegations as to his work performance. Consequently there has been no contravention of s170DE(1) or s170DC of the Act. I certify that this and the preceding six (6) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate : Dated : 13 June 1997 APPEARANCES Counsel appearing for the applicant : Ms. H. Lewis Representatives for the applicant : Finance Sector Union Counsel appearing for the respondent : Mr. C. O'Grady Solicitors for the respondent : Middletons Moore & Bevins Date of hearing : 10 June 1997