Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (on behalf of David Williams) v. Warringah Council [2013] NSWIRComm 1029 Hearing dates: 10, 11, 12 July 2013 Decision date: 12 July 2013 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application pursuant so s.84 upheld. Compensation ordered. Catchwords: Unfair dismissal - termination for poor performance - process flawed - termination procedurally unfair - lack of consideration of individual characteristics of employees - inflexible performance programme with only termination as a possible outcome - subjective reporting on work performance - termination unfair. Remedy - reinstatement and re-employment impracticable - inability for parties to work together - compensation ordered - factors considered in award of compensation. Legislation Cited: Industrial Relations Act 1996 ss. 84, 88, 89. Cases Cited: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Category: Principal judgment Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union (on behalf of David Williams) - applicant Warringah Council - respondent Representation: Mr R Crow of counsel - respondent Mr G Dunstan - applicant union File Number(s): IRC 161 of 2013 EXTEMPORE DECISION 1This is an application under section 84 of the Industrial Relations Act 1996 ('the Act') in which it is alleged that Mr Williams has been dismissed unfairly. It is an application in which the primary remedy of reinstatement is sought, as well as but in preference to the other remedies available under the Act. 2The proceedings have carried on over three days, less some short periods of time that were lost through no fault of the parties or the Commission's. The evidence is entirely fresh in my mind and I have had the benefit of both written submissions and helpful oral address from the advocates, Mr Dunstan of the union and Mr Crow of counsel, for the respective parties. 3I have been able to form a view about the matter based on having the evidence freshly in my mind and based on the assistance I have been given by both advocates. I propose to give a decision now, on the record, in the matter. That decision proceeds in this way. 4The effective applicant, Mr David Williams, worked for the respondent from 1996 until the present year. He had a long and untroubled record of employment with the council. However, like everything else in the world, workplaces change. The council did change from, particularly, the time of its reversion from management by administrators to management by councillors in 2008. It changed because of the appointment of Mr Middleton, a man with post graduate qualifications in management, to a managerial position that affected Mr Williams, because of the appointment of Mr Williams' long-term colleague, Ms Stuart, as his supervisor following a contested merit process, and for reason of the effective doubling, as I am prepared to accept, of the workload over the last few years. 5The most recent years of Mr Williams' employment with the council therefore found him in a very different workplace. It found him in a workplace driven by management goals that I am prepared to accept were either not previously in place, or certainly not emphasised to the degree that they were after the events to which I referred took place; that is, after 2008 and the subsequent events to which I have referred. It became evidently a workplace in which quantifiable and measured achievement became important, and the council is not to be criticised for evolving into such a workplace. 6Mr Williams, in my view, did not appreciate or possibly could not appreciate the extent to which the workplace around him had changed. It is not an uncommon circumstance. The analogy of a frog in boiling water is often cited to give an example of circumstances where change is not perceived by those in the middle of it until it is too late and, without any disrespect whatever to Mr Williams, it seems to me that that was in good part the circumstance in which he found himself. 7The council had other objectives in mind to those which it had in mind in the first dozen years of his employment and it had determined to move in a different way, a more result-driven way, and a way which was, on the evidence, ill-suited to Mr Williams' style of work. I do not refer to his creative output as a designer but to the way in which he went about being a member of the council's workplace. He became a square peg in a round hole because the hole had changed. 8Observing Mr Williams as I did while he gave his evidence, and observing Mr Middleton as I did while he gave his evidence, I have no difficulty understanding that the two of them as professionals and as employees, as both of them were, did not see and would not be able to see eye to eye, without deciding whether those particular words were actually used between them. 9Not only was there a change to the ethos of the council itself but there was another change effected. As a temporal matter, it occurred, as I understand it, after Mr Middleton's appointment; that was the appointment of Ms Stuart as Mr Williams' supervisor. 10It became evident to me that Mr Williams did not appreciate or did not fully appreciate that this meant that the old way of banter between colleagues had gone. He did not adapt to that. In fairness it must be said that Ms Stuart for her part in my view was also unable to adapt to this new situation. I accept the evidence that she gave Mr Williams what he perceived as being mixed messages and perhaps she is not wholly to be criticised for that, she was a new supervisor, she had recently been a colleague, she had been elevated in a direct contest with Mr Williams for the position and Mr Williams' inability to appreciate the new boundaries, which I have indicated that in my view was his situation, probably challenged her and challenged her skills. 11I formed the view, and I think this view is inescapable, that Ms Stuart became very defensive about Mr Williams. That is probably best evidenced by the catalogue of perceived ills that she voluntarily drew up and voluntarily gave to Mr Middleton which appear - at least in one place - at annexure Z to Mr Middleton's statement. 12When one looks at those, one sees that on any objective view some of them are at best petty and minor matters that an experienced and mature supervisor would have brushed aside. One example about which I asked Ms Stuart, which she claimed to exemplify lack of respect, could only be seen that way in my view by someone predetermined to see it that way. This is not a personal criticism of Ms Stuart, it is the way people sometimes are and the way in which sometimes people are shaped by their circumstances in the workplace, and it was so in this case. 13I emphasise that the remarks I have so far made in this decision are not to say that Mr Williams did not perform below expectations. It seems to me the view that he performed below the expectations of the council as they evolved is also inescapable. Whatever prism it was chosen to look at Mr Williams' work through, whether that was one which was tilted against Mr Williams' particular personality and style or one that was completely objective I do not need to find because it is clear that there were mistakes, there was more than one mistake. 14There were instances of performance that were substandard against what was now expected of Mr Williams and whilst the council's expectations had in my view changed Mr Williams had not. He necessarily then, as a matter of geometry, fell behind what was wanted. The council then adopted an approach which was on paper a sound approach, that is to say a management plan, a performance management plan, one which they, on Ms Whiting's evidence - and I may say here that I found Ms Whiting a witness of truth and I accept the evidence that she gave in the proceedings - was a plan which council had developed themselves. It did not seem to come from any outside source, any institution, it did not seem to be developed by anyone with particular skill in the area, it was one that council had developed. 15The use of a programme is an approach which is preferable to moving to discipline a poor performer off the bat but given Mr Williams' personality and style and, as I say in my view, his lack of perception of the changing dynamic of the workplace, it was one which was less likely than more to be successful in rehabilitating Mr Williams from the outset. 16Mr Williams' response to the plan was to become confused, as a plain matter of fact he became confused, defensive and I infer resentful of aspects of it. The council for its part became more and more determined to see him fit in the process which was underway because the process was the guarantee of a proper outcome. This is not a criticism of the council; it is an observation that organisations work in this way. 17Mr Williams was proceeded through the process with the necessary warnings that inevitably emerged when council formed the view that they needed to be given at stages. His performance was not up to the mark that was required and the process ended up almost necessarily and inevitably ejecting him from his long term employment with the council. 18I have formed the view that the termination of Mr Williams' employment was unfair. I use the term unfair to embrace the so called tripartite test set out in the relevant section of the Act. It is unfair for these reasons. 19Ms Whiting, to whom I have already referred as a witness of truth, pointed out the matters to which I am about to refer - I do not mean pointed out in any didactic sense, she gave this evidence in cross-examination. 20First, no consideration throughout the program was given to any other course than termination, she said, and that is evidently correct. The only possible outcome was dismissal she said, and that is obviously correct. 21Second, the council formed the view that training would not assist Mr Williams. I do not accept notwithstanding the robust submissions of Mr Crow that it was open to council to form that view, that is that training would not help because Mr Williams' difficulty was a personality problem and that would not be helped by training, nor do I accept that it was incumbent on Mr Williams to identify courses that he should be sent on in order to improve his work problems. The council was the employer seeking, as it was entitled to do, to improve Mr Williams' performance but the onus fell on the council in my view to take those steps necessary to improve his performance by whatever means might have been available. 22I contrast in this the approach taken by council to the approach taken by, for example, the Department of Education which has a long standing structured and well tried - indeed scrutinised by this Commission on many occasions - system of performance improvement. That system involves repeated and organised hands-on assistance to teachers who are having difficulties with their performance. They are given training, they are observed, the positive aspects of their work are deliberately emphasised, they are mentored. None of this to any real and effective degree occurred in Mr Williams' case. I was directed to some examples of where his supervisor sat down with him and showed him how to do, no doubt, a useful and valuable task on Microsoft. 23What I was not told about, and that is simply because it was not done, was a positive mentoring approach, a positive training approach, any of those kinds of things which, as I say, can be found in improvement programmes operated in this State by large employers, and the council is not a small employer. These are programmes operated by employers who are desirous of improving the performance of their staff. 24I do not doubt that council had the intention to cause improvement in performance of all its staff across the board and the council certainly cannot be criticised for taking that overall approach. My finding of unfairness in this case stems not from any view that the council is not entitled to insist upon performance, that it is not entitled to place people on improvement programs or indeed that it is not entitled to dismiss people who simply do not come up to the required level of performance at the end of such a program. Those are things employers are entitled to do. 25The reason in this particular case that I formed the view that the dismissal was unfair is that Mr Williams was known to the council. His immediate supervisor knew him well and council has a responsibility, as every employer has in my view, particularly a larger employer, to make some allowance at least for the individual characteristics of the employees it proposes to improve and/or to discipline. 26It is not open to a large employer to treat every employee as being the same, and I apprehend that the process to which Mr Williams was put was a 'one size fits all' process. From that, in my view, an unfairness developed, snowballed and resulted in an unfair termination. For want of any doubt I want to make it clear that it was open to the council to find Mr Williams' performance less than satisfactory. It was open to the council to require him to improve. There were ways of doing that which would not have resulted in an unfair termination of his employment, but what has actually happened is not in accordance with those ways. 27I have formed the view on the evidence that the process itself contained flaws which were serious. It is apparent that there were documents highly critical of Mr Williams developed by his immediate supervisor, Ms Stuart, that were furnished to Mr Middleton which Mr Williams never saw and was never given the chance to comment upon. This is surprising given Mr Middleton's post-graduate qualifications in management. 28To what extent these documents went to influencing the council's final decision to terminate is not known, but a lengthy document from an immediate supervisor setting out a catalogue of faults without a shred of redeeming feature being pointed to in a worker's performance raises two questions. 29First, why is a supervisor developing voluntarily a catalogue of only faults and advancing it to that person's supervisor, a person having power over the employee in question? I do not accept that it was simply so that Mr Middleton would know what was happening on the ground. If that were so, the catalogue would not have been only of faults including complaints of, as I have said, what can only be seen to be of a minor and petty nature. 30And the second problem with such a document is a problem to which I have alluded, that is that on the evidence Mr Williams did not know it existed. He certainly was not invited to comment upon it. He did not know to what extent it had weight in the decision to ask him to show cause or the decision to terminate; indeed, while I refer to this, there was not just one such document but at least two. 31I have found the decision to dismiss was unfair. Reinstatement is, as the authorities decided by this Commission have made it abundantly clear, the primary remedy and I have considered the primary remedy of reinstatement and I have considered the statutory option of re-employment if I find that the first remedy is not practicable. I do not however propose to order reinstatement of Mr Williams nor do I propose to order that he be re-employed and I decline to do that for these reasons: 32As to reinstatement I accept largely the submission of Mr Crow for the council on this point, but independently of that submission I form the view that given the direction in which council now wishes to arrange its affairs and organise its workplaces, and given that it has already found, although in view by a process which did not afford any fairness to Mr Williams, or any real and satisfactory fairness to Mr Williams, that his employment should be terminated, reestablishment of the employment relationship is simply not practicable. 33This case is a different one to, for example, Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 and cases of that kind. I am of course aware of authorities that say that the employment relationship can bear some stresses and strains. However, in my view it is not practicable to ask Mr Williams to work again under Mr Middleton - this not being a criticism of Mr Middleton, but simply a statement of what seems to be abundantly clear to me in the facts - or to work again under Ms Stuart. As I say, I make those observations without by them criticising those persons. It is simply an observation of fact that they are not going to be able to get on, in my view. 34As to re-employment, I accept the submission Mr Crow advanced, and I think it is abundantly clear on the evidence, that Mr Williams' skills are those of a graphic designer and the council has only one graphic designer section. As I apprehend it, the studio is supervised by Ms Stuart and she reports to Mr Middleton. There is, on the evidence, no other place in which Mr Williams could properly be expected to work and accordingly I do not find that there is a position which falls within the statutory prescription in which he could be asked to be re-employed. 35That leaves the Commission to consider the only other remedy available in circumstances where a termination has been found to be unfair, and that is compensation. 36Having regard to Mr Williams' long period of service but also to his own contribution to his demise, noting that I have found that his work did not meet the council's expectations and it is the process by which the council went about addressing that and then ultimately terminating it, the whole of that process and specifically the termination that was unfair and that has lead to consideration of remedy, I cannot contemplate awarding what was advanced in submissions by the union, the maximum compensation. 37Notwithstanding Mr Williams' lengthy period of service, his age and his family responsibilities and employment prospects, which are matters I am entitled to consider, indeed obliged to consider, I propose to award him, rather, half the statutory maximum amount, that is to say thirteen weeks pay. Orders 38Accordingly the orders that I make in respect to this matter are these. The respondent, Warringah Council, is to pay to Mr David Williams a sum equivalent to thirteen weeks pay at the rate of pay applicable to him at the time his employment ceased. Unless something is said against this next part of the order, that is to be done within twenty-one days of today's date. No other order is made. PETER NEWALL Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2014