7
[Extract from Queensland Government Industrial Gazette,
dated 1 September, 2006, Vol. 183, No. 3, pages 251-258]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 - s. 74 - application for reinstatement
Lee Robinson AND GV MA Emanuel Pty Ltd (TD/2006/211)
COMMISSIONER BLADES / 23 August 2006Unfair dismissal - Probation - Extension of probation - Probation not such as to provide a defence under s. 72 of the Industrial Relations Act 1999 - Extensive resume indicating qualifications and experience - Matters of fact - Inability to communicate - Dismissal of employee on probation - Principles - Dismissal not harsh unjust or unreasonable.
DECISION
Under a written contract which provided for employment to commence 7 November 2005, Mr Robinson (the applicant), commenced working for GV MA Emanuel Pty Ltd (the respondent) on 3 November. The contract provided for a 12 week trial period with an assessment to be undertaken on 3 February 2006. By way of a letter dated 20 February 2006, the employment was terminated, effective 20 February 2006. The applicant, alleging that the dismissal was unfair, has filed an application under s. 74 of the Industrial Relations Act 1999 (the Act).
The applicant was employed as a Building Estimator-Business Support Manager on a base salary of $65,000 plus superannuation of $5,850, bringing the package to $76,850 per annum.
Applicant's evidence:
The applicant responded to an advertisement in a local newspaper and had an initial interview with Mr Greg Tate, an external consultant for the respondent. He then had a further interview with Gary and Melissa Emanuel. He said he told them at the interview that he had not had any prior experience on estimating on houses. Whatever temporary shortfall there was in his knowledge was to be overcome with the person currently occupying the role, Stephen Wilcox, staying on for a further 6 weeks to provide relevant information. He accepted that there was a 3 month probation period. He said he found Wilcox to be very reluctant to provide information and that he supplied no written material to work from regarding any procedures, protocol, job status or status of problem issues. He had to continually hassle him to get the barest information and he struggled to explain things properly. He said that after Wilcox departed, he spent endless hours chasing down information, found inconsistencies and errors.
It was about 30 January 2006 when he reminded Melissa Emanuel about a request for a letter to his Bank from his employer regarding his employment status for a loan approval. This letter was provided on 1 February. However, it was unacceptable to the Bank as it did not include a provision about successfully completing the probation period. He revised the letter to include a reference to the successful completion of the probation period and asked Gary Emanuel to sign it.
When he arrived at work on Friday 3 February, he found the letter on his desk with a note on the reverse which read "Will have to go through the 12 week assessment, which we will have to do next week. Then we will sign letter. Hope you understand. Gary and Melissa.".
He said that on Monday 6 February, Greg Tate arrived and there was a meeting and his performance was discussed. He was asked whether he would be offended if the probation period was extended.
On Friday 10 February, he questioned Gary about the issues because Greg had not been back. Gary informed him that he relied on Greg for the right directions and how to approach things.
On Monday 20 February Greg arrived at work at about 8.00 a.m. and handed him a letter of termination. The reason advanced in that letter was:
"After review of your performance over the last twelve weeks we have concluded that you will not be in a position to perform the tasks as allocated in the Job Profile. While we regret taking this position we have concluded that you have not demonstrated the qualities that are required in successfully running our business.".
The applicant said that he was told no more than that the business was not moving ahead and he claimed that at the beginning of February, he did not know that his employment was under a cloud.
Respondent's evidence:
The respondent company is based in Noosa and carries out building works including custom-built homes, residential renovations, commercial developments and refurbishments, predominantly in the Sunshine Coast region. The respondent has retained Mr Greg Tate of Unison Management Services Pty Ltd for the last 4 years to advise them on matters relating to business operation and planning and staff management. The respondent employs five people, Mr Emanuel as Principal Builder and Project Manager, Melissa Emanuel as Administration Manager, a Bookkeeper, an Office Manager/Estimator and an Office Administration Assistant.
The Job Profile for the Building Estimator-Business Support Manager, Lee Robinson, provided that the Job Purpose was to provide confidential administrative and management support to the business unit. Key Accountabilities were:
· support the owners and their various activities and commitments;
· provide high quality, confidential administrative and management support to the business;
· implementation of the management systems in conjunction with the Business Advisor;
· direct and support the clerical staff;
· ensure the ongoing confidentiality of the business is upheld and maintained;
· provide estimating and tender preparation for all new activity; and
· provide contract administration.
Measures of Key Accountabilities were:
· owner's feedback;
· timeliness and accuracy;
· easy access to documents and information;
· the business is performing with a set business structure;
· clients are handled in a professional manner; and
· job cost control budget v actual results.
Gary Emanuel gave evidence that Mr Robinson was employed on the recommendation of Mr Tate and after interview by himself and Melissa Emanuel. He said that the applicant had indicated that he had communication and management skills but was lacking experience in the estimating department. He explained this lack of experience as being a terminology problem because Mr Robinson had been in the steel construction business, not in carpentry work. Mr Emanuel agreed to oversee this aspect until the required skills and knowledge were obtained as he did not believe it difficult for Mr Robinson, given his supposed existing skills and experience. It was arranged for Stephen Wilcox, the outgoing Office Manager, to stay on until the Christmas break to help the applicant get established in the role. During the period 7 November to 23 December, the applicant did not complain of any deficiencies in the processes and systems in place at the company although there had been friction between Wilcox and the applicant. Mr Robinson's work was found to be inadequate. He said that at the end of his training, he had not reached a level of competency where he could continue unsupervised. He said he failed to properly approach the tasks requested of him or to complete set tasks during the required timeframes. Mr Emanuel said that the applicant did not have the skills necessary to complete tendering jobs and that his work on the tenders was quite bad.
The respondent was scheduled to close down over the Christmas break, 23 December to 10 January, and the applicant requested that he be allowed to work during this period to make sure he was on top of his workload when the company reopened in the New Year although there was also the suggestion that the reason might have been financial. When Mr Emanuel returned from the Christmas break, he expected the work to be up-to-date but it appeared that the only difference was that he had tidied up his desk. He said the applicant was not keeping up with his workload even though the company was not very busy, it being the Christmas period. It was in the last week of employment that enquiries were made with previous employers which satisfied him that the conclusions they had reached for themselves were consistent with the experiences of his recent employers.
Greg Tate is the principal of Unison Management Services Pty Ltd. Unison is a company which consults for builders, offering advice and services relating to business operation and planning and self management and has been consulting to the respondent for about 4 years. Mr Tate handled the recruitment of a replacement for Stephen Wilcox. Mr Robinson's resume indicated a high level of skills in a position of a similar nature with an understanding of steel fabrications and construction. Four candidates were interviewed for the position. Mr Tate said he interviewed Mr Robinson about August 2005 and provided him with a copy of the Job Profile document.
Mr Tate said he met with Mr Robinson on 24 November and asked him if he was managing to date. Mr Robinson advised him that he was settling in well, that he liked the job and was comfortable with the position. He made notes of that meeting. Mr Robinson did not tell him that he was having trouble obtaining information from Wilcox about procedures, protocols and systems. He asked him if there were any areas of concern or if there was anything he did not understand. Mr Robinson responded that it was all fairly straightforward and once he had the reins it would be similar to what he had previously done.
On or about 20 January, Mr Tate met with Gary and Melissa Emanuel where Mr Robinson's lack of performance was discussed. He was told by the Emanuels that the applicant was constantly making excuses that Wilcox didn't tell him anything. Later on 20 January, Mr Tate visited the respondent's office and met with Mr Robinson. He again made notes of the meeting. Mr Robinson said he was managing the position well but that there were some areas of concern which he would address with him later. Nothing else was raised.
The letter of appointment containing the conditions was accepted by the applicant, in writing, on 5 September. It provided that the position was subject to a probationary period of 12 weeks to commence as of 7 November for a trial period of 12 weeks with an assessment to be undertaken on 3 February. The applicant was advised on 3 February that the assessment would have to be done the next week.
The probation period expired on 3 February. A meeting was arranged for 6 February but held on 7 February to discuss Mr Robinson's performance during the probation period. Mr Tate made notes of that meeting. The items of concern raised with Mr Robinson during the meeting, while understanding that there was a weakness in the estimating skills, were:
· his management and estimating skills;
· his lack of reporting to the business owners;
· job cost control;
· communication skills;
· weekly staff meetings;
· site meetings;
· communications with suppliers and subcontractors;
· WH&S procedures; and
· all issues in relation to construction management.
Mr Tate said that Mr Robinson could not adequately explain why these duties/accountabilities were not being performed, or performed adequately. Mr Robinson said that he had not been provided with any information by Wilcox and that due to the Christmas/New Year period, he had been unable to catch up on everything. Mr Robinson was not able to indicate where a "backlog" was occurring but that the problems were inherited from Wilcox. When asked why they had not surfaced while Wilcox was still employed, Mr Robinson said they were in relation to the Serra variations. Mr Tate investigated this explanation and concluded that the errors were not caused by Wilcox but by an accounting error, which could have been solved with a proper investigation of the file.
He said he asked Mr Robinson if he minded if his probation period was extended and he said Mr Robinson agreed to an extension although he conceded in evidence that he may have asked him would he be offended if the probation period was extended. He had made up his mind that the employment should be terminated at that meeting but Mr Emanuel was not there and it was not up to him to make the decision. He also wanted to have another look at the references.
Another meeting was scheduled for 9 February but was unable to be held on that date and was subsequently arranged for 20 February. Mr Tate requested Melissa Emanuel to make enquiries of the applicant's previous employers, Precision Welding Fabrication and Noosa Engineering Crane Hire during the week between 14 February and 20 February to confirm his conclusions regarding Mr Robinson's skills and experience for the position. Had he known of the problems the two previous employers had, he would not have employed him.
At the meeting on 20 February when the applicant was advised of the termination, the applicant said he was unable to perform his duties because Wilcox had not passed on any information to him. Mr Tate said that at no time until 7February were they informed that this was a critical problem and that for the 8 weeks, from when he commenced employment until 23 December, he had not indicated that he was having problems extracting information from Stephen Wilcox.
Mr Tate also referred to some difficulties in communication between the applicant and Melissa Emanuel but not a lot was made of this in evidence. Mr Tate was aware of a difficulty in the passing of information between Wilcox and the applicant but that it seemed to all of a sudden manifest itself from 10 January.
Considerations and findings:
In resolving the factual dispute about whether the probation period was extended on 7 February by agreement, learned Counsel pointed to the applicant's Application filed in the Commission and to the following passage where the applicant said: