| Summary |
UNJUSTIFIED DISADVANTAGE – Applicant claimed written warning for poor performance not justified or fairly given – Applicant given sales script, week training conference, workshop and “role play” sessions, and client visits with other staff – Regional manager (“B”) accompanied applicant to client meeting and disappointed with presentation – Sales results showed applicant only salesperson failing sales goals – When B raised concerns, applicant blamed poor communication and support from administrative staff – Applicant given performance improvement plan noting concerns and identifying future requirements and support – Applicant told B doctor diagnosed stress causing high blood pressure and anxiety attacks – Illness caused by personal and work pressures – After applicant met with Australian based general manager (“H”), H gave applicant letter stating reasons for performance problems inadequate and probationary period extended for further three months – B conducted role play assessment and found applicant performed inadequately – B gave applicant letter outlining performance and verbal bullying concerns and arrangements for disciplinary meeting, including support person and offer of paid leave until meeting - Authority satisfied applicant given adequate opportunity, training and support to perform properly – Respondent entitled to raise concerns about performance and did so in fair way – Written warning regarding performance was necessary and open given comparative poor sales and steps already taken by respondent – Performance warning justified – Applicant claimed written warning for misconduct in relations with co-workers not justified or fairly given - Applicant complained that administrative staff rude, uncooperative and deliberately undermining work – When questioned by B, administrative staff accused applicant of aggressive, unprofessional behaviour – B spoke to witnesses and found applicant’s version of events may not be truthful, and that applicant’s frustration from disciplinary meeting likely taken out on co-worker – Authority found fair and reasonable employer would not have formed conclusion without hearing applicant’s version – Found B gave little weight to contributions of administrative staff to poor office relations – Found respondent unduly magnified issue of office relationships due to performance concerns – Respondent’s inquiry and conclusion of misconduct superficial and undocumented – Fair and reasonable employer would not have come to conclusion that complaints solely fault of applicant to extent that final written warning warranted – Misconduct written warning unjustified – UNJUSTIFIED DISMISSAL – Serious misconduct – While respondent considering disciplinary action regarding performance and office conduct, B discovered applicant used remote email access to send several company documents marked “highly confidential and commercially sensitive” and to be shredded after use to personal email address – Respondent argued breached trust, confidence, and contractual obligations, amounting to serious misconduct and justifying dismissal – Authority found fair and reasonable employer would not have concluded that remote access was serious misconduct in circumstances – Found applicant accessed email to prepare for disciplinary meeting, which was company-related business so not in breach of internet policy – Allegations that remote access was “theft” and “without a legitimate reason” inaccurate – Respondent accepted that documents routinely kept for later use – Found contents not disclosed to anyone so no actual breach of confidentiality – Applicant undertook to provide statutory declaration that files deleted after process concluded – Respondent already permitted applicant further three months to reach performance standards – Dismissal was heated overreaction – Dismissal unjustified – Remedies – Applicant claimed reimbursement for lost wages for seven months until reemployed - Authority found applicant’s anxiety attacks made finding reemployment difficult – Applicant entitled to wait for suitable position, but took no interim work so had no earnings for seven months, despite demand in industry – Applicant did not adequately mitigate loss, so respondent not responsible for full period – Awarded three months lost wages – Earnings level for lost wages disputed – Applicant claimed maximum commission – Given findings on performance, Authority accepted respondent’s submission to calculate lost wages as most applicant could have earned – Applicant claimed humiliated and distressed by termination of employment after only three months – Found respondent aware of vulnerability due to work-related stress – $6,000 compensation appropriate – Found applicant never satisfactorily explained performance issues nor acknowledged personal responsibility – Applicant’s approach to return and deletion of emails contributed to overheated atmosphere - Remedies to be reduced by one third for contributory conduct - Merchant service manager |