Deakin University successfully defends termination for performance
In a recent decision in the Fair Work Commission, Deakin University as Respondent successfully defended their decision to terminate Ms Jessica Chin King Saw (Chew).
Ms Chew commenced employment with the Respondent in the role of a Laboratory Technician on 27 July 1987. Ms Chew was most recently employed in the role of Senior Technical Officer, in the Respondent’s School of Life and Environmental Sciences, within the faculty of Science Engineering and Built Environment at the Respondent’s Burwood campus, having held that role since 2014. Ms Chew’s employment was governed by the terms of the?Deakin University Enterprise Agreement 2017?(Agreement). Under the Agreement, the Role is classified as a Higher Education Worker, Level 6, Step 5, (HEW 6) being the highest step of the Level 6 classification under the Agreement.
The Agreement provides that the typical activities of a HEW 6 employed in a technical position are to:
???manage a teaching or research laboratory or a field station;
???provide highly specialised technical services;
???set up complex experiments;
???design and construct complex or unusual equipment to general specifications;
???assist honours and post graduate students with the laboratory requirements; and
???install, repair, provide and demonstrate computer services in laboratories.
The position description for the Role (PD) provides that the principal accountabilities of the Role are as follows:
???to manage and coordinate multiple and concurrent practical classes in Chemistry disciplines for Deakin and MIBT students;
???to supervise other technical staff in the Chemistry area;
???to manage Occupational Health and Safety issues for the Chemistry disciplines and maintaining risk assessments, chemical classifications and inventories, safety datasheet (SDS) databases, labelling and signage;
???to provide a high level of technical support within the designated field of responsibility for the preparation of materials and equipment plus the demonstration and operation of analytical equipment and/or techniques to students and staff;
???to trial new experiments to ensure their effective implementation in practical classes;
???to ensure that technical support in the preparation of materials and equipment for undergraduate chemical practicals for Deakin and MIBT students is delivered efficiently and effectively; and
???to ensure the implementation of all relevant policies that relate to the areas for which the position is responsible in particular those relating to equal opportunity, Occupational Health and Safety, risk management, staff development and staff performance planning and review.
The PD provides that the typical duties of the Role are as follows:
???to manage materials and equipment requirements of staff within the designated area of responsibility;
???to supervise other technical staff in the Chemistry area;
???to assist in ensuring that laboratories are a safe working environment for teaching and research staff, postgraduate and undergraduate students by providing technical expertise and advice on Occupational Health and Safety issues, ensuring that laboratory safety standards and protocols are maintained at all times;
???to provide high-level technical expertise and advice to teaching, technical and research staff and students which might include the demonstration and operation of analytical equipment and/or techniques;
???to trial new experiments or modify existing experiments that may require the development of new processes or procedures;
???to ensure adherence to all safety protocols in laboratory activities undertaken by staff and students in accordance with the School and University policies; and
???any other duties as directed, commensurate with the scope and classification of the position.
In approximately November 2020 Dr Quayle commenced in the role of Technical Services Coordinator in Chemistry, Life and Environmental Sciences at the Respondent’s Burwood campus. While in the Role Ms Chew reported to Dr Quayle. Dr Quayle’s evidence is that within weeks of starting in the role of Technical Services Coordinator she noticed several performance issues with Ms Chew,?including Ms Chew’s poor communication skills, her failure to organise chemicals and equipment, her lack of preparation and failure to follow through with tasks and complete work in a timely way
Performance Reviews
1 January 2020 – 31 December 2020
Dr Quayle undertook Ms Chew’s performance assessment for the period 1 January 2020 to 31 December 2020 in around January 2021.?That assessment is recorded in a document entitled “Deakin Achieve Plan”, dated 28 February 2021?(Plan). The Plan provides that Dr Quayle assessed Ms Chew’s overall performance as “Development Required.” That overall assessment was determined by Dr Quayle taking into account both her own observations and an “overarching report” on Ms Chew’s performance provided by Ms Chew’s previous supervisor for the period January 2020 – November 2020.?Dr Quayle considered that Ms Chew had not fully achieved the requirements set at the commencement of 2020 nor developed behaviourally from 2019. The Plan provides that Ms Chew received a rating of “Not Achieved” in the following areas:
???Position description;
???Leadership;
???Instrumentation;
???Behaviours;
???Behavioural expectations;
???Code of Conduct; and
???Skill development.?
The Plan concludes:
Ms Chew responded to the Plan on 23 February 2021, saying that she considered the comments “overly harsh”, as she considered that the expectations in 2020 were different from previous years, the working from home directions meant there were significantly decreased opportunities for feedback and the conclusion that she had not achieved the requisite standard in so many areas was harsh because of the lack of guidance and feedback.
Dr Quayle’s uncontested evidence was that from approximately January 2021 she had informal performance discussions with Ms Chew and adopted strategies to seek to improve her performance.?Her further uncontested evidence is that from approximately January 2021 she had regular one-on-one catch ups with Ms Chew, which increased in frequency from approximately July 2021. At these catch ups Dr Quayle says that she would discuss how Ms Chew was progressing, the plan for the rest of the year, any training that was coming up and clarified any questions Ms Chew had about her role.
2021 Mid-year review
Dr Quayle undertook a Professional Staff Check mid-year review with Ms Chew, dated 31 August 2021 (Mid-Year Review).?The Mid-Year Review provides that Dr Quayle considered that Ms Chew was not meeting the requirement of the Role in at least the following areas:
???Organised technical support;
???Cross collaboration;
???Teaching support;
???Safety Management;
???Instrumentation;
???Code of Conduct;
???Team Culture;
???Behavioural Expectations; and
???Excellence.
The Mid-Year Review concludes:
Dr Quayle’s evidence was that given her ongoing concerns regarding Ms Chew’s performance she decided she would need to place Ms Chew on a performance improvement plan (PIP). Her evidence is that because of this she did not complete a 2021 end of year performance review for Ms Chew.?Dr Quayle’s evidence was that various other Deakin staff members also raised issues with her regarding Ms Chew’s performance and behaviours (both verbally and by email) including Mr Kehridakis (Technical Officer), Dr Donaldson (Senior Technical Officer), Dr Trinh Buck (Technical Services Coordinator), Maria Amodio (Technical Services Coordinator) and Caryal Yap (Technical Services Coordinator).
Performance Improvement Plan (PIP)
On Friday, 3 December 2021 at 5.40 pm Dr Quayle sent Ms Chew an email informing her that she wished to meet with her the following week on Tuesday, 7 December 2021 to discuss her performance. Ms Chew was on annual leave on 2, 3, and 6 December 2021 and therefore received the email regarding the performance discussion whilst on leave.?She says that this required her to organise a union support person over the weekend and on her annual leave.
Upon her return to work Dr Quayle, Mr Michael Stafford (Consultant, People and Culture), Ms Chew and Ms Chew’s support person, met on 7 December 2022. Dr Quayle’s evidence is that at the meeting the areas of concern in Ms Chew’s performance and the deadlines in the PIP were explained to her.
Following the meeting, Dr Quayle provided to Ms Chew by email:
???an unsatisfactory performance letter (Letter);
???a copy of clause 65.10 of the Agreement;
???a copy of the PIP; and
???a copy of the PD for the Role.
Ms Chew was advised that the PIP was for a six week period from 7 December 2021 to 4 February 2022 (excluding the Christmas close down period).?The Letter provides that Dr Quayle would meet with Ms Chew weekly to discuss her progress under the PIP. Ms Chew was requested to review the PIP and advise Dr Quayle in writing of any concerns or queries regarding the PIP by 5 pm Wednesday 8 December 2021.
Ms Chew requested an extension of time within which to review the PIP until 5 pm on 10 December 2021.?This was agreed to by Dr Quayle.?On 10, 13 and 15 December 2021 Ms Chew raised a significant number of queries and sought clarification of a number of matters in the PIP.?These were addressed in a meeting between Dr Quayle and Ms Chew on 14 December 2021 and also in writing by Dr Quayle on 15 December 2021.
Contents and implementation of the PIP
Clause 65 of the Agreement deals with disciplinary action for unsatisfactory performance. Clause 65, relevantly, provides as follows:
The PIP identifies the following three areas of concern with Ms Chew’s performance and in respect of which improvement was required:
For each area of concern, examples of underperformance were provided, the standard of performance required was articulated, specific tasks and measures of improvement required were articulated and support to be provided were set out.
In relation to Area 1 the PIP provides the following work required/measure of improvement and support:
In relation to Area 2 the PIP provides the following work required/measure of improvement and support:
In relation to Area 3 the PIP provides the following work required/measure of improvement and support:
Performance Review Process
Dr Quayle’s uncontested evidence is that she met with Ms Chew throughout the PIP period on the following dates:
???14 December 2021(Meeting 1);
???13 January 2021(Meeting 2);
???18 January 2021(Meeting 3);
???27 January 2021(Meeting 4);
???4 February 2021(Meeting 5).
Following each of these meetings, Dr Quayle confirmed the content of the meeting by email, generally the following day.
Meeting 1 email
The email following Meeting 1, dated 15 December 2021, reiterated the requirements of Ms Chew’s role and clarified that “the PIP provides short-term guidance on how to improve your performance to meet?minimum requirements, you are required to exhibit at least this standard of performance beyond the PIP period.”?It also reminded Ms Chew of the tasks to be completed by 5 pm 17 December 2021 and expressed concern at the lack of progress in these tasks. Dr Quayle confirmed that she had set time aside on the morning of 16 December 2021 to work through draft risk assessments to be prepared by Ms Chew.?It also states Ms Chew advised she needed some time off to rest and recalibrate, saying this was a “good idea” and inviting her to submit a leave application for any leave she wished to take in addition to the mandatory shut down period.
Ms Chew responded to that email saying she had complied with the work deadlines, clarifying the circumstances around the creation of the WhatsApp group and thanking Dr Quayle for taking the time to work through various technical documents regarding her role and responsibilities. She also said that “achieving my PIP is of the utmost importance to me” and “I would like to reiterate that I am committed to achieving my PIP and appreciate all of your guidance and support.”
The meeting scheduled for 20 December 2021 was rescheduled due to Ms Chew taking annual leave at that time.
Meeting 2 email
The email following Meeting 2, dated 14 January 2022, confirms Dr Quayle had provided Ms Chew with an extension of time for the completion of the tasks in the PIP due to the period of additional leave taken by her. It also confirms that Dr Quayle advised Ms Chew that she remained concerned that Ms Chew was having difficulty drafting documents to the standard required in the PIP. She advised Ms Chew that the drafts provided in December (in accordance with the PIP deadlines) (Drafts) were not to the standard required, noting that they contained missing, incorrect and inconsistent information, poor flow and wording and directly copied mis-matched snips from other external sources. She considered that many of the errors were due to lack of knowledge and attention to detail. Dr Quayle attached feedback on two of the Drafts to help Ms Chew understand Dr Quayle’s concerns and understanding of the standard expected of her. She also confirmed that a subject matter expert (Liz) would provide feedback on the Nuclear Magnetic Resonance (NMR) Drafts, given it is not Dr Quayle’s specialty. An extended deadline until 28 January 2022 for the provision of resubmission of the Drafts was given to allow Ms Chew to review the feedback given and rectify any issues. Dr Quayle provided Ms Chew with the link to the Deakin guideline of writing Safe Working Procedures (SWP) and encouraged her to get in touch with her or Liz if Ms Chew needed help or further clarification. Dr Quayle also confirmed that she wanted Ms Chew to schedule additional meetings with her ahead of time to discuss or demonstrate progress so that Dr Quayle could give Ms Chew her full attention and higher quality assistance and support.
Meeting 3 email
The email following Meeting 3, dated 19 January 2022, confirms that Ms Chew has been granted leave for the periods 19-20 January 2022 and 31 January 2021 – 2 February 2022 and in light of that provides revised deadlines for the tasks included in the PIP, including further revised dates for the resubmission of the Drafts. The email also provides that the spectral assignments provided by Ms Chew were not in the appropriate format. Dr Quayle once again encouraged Ms Chew to seek assistance saying “I am concerned that you are still not approaching me sooner than your deadline for assistance. Make sure you schedule the time you need from me in advance as discussed.” Finally, Dr Quayle reminded Ms Chew to update the weekly TRACIE uploads, noting that they had not been actioned since before Christmas.
Meeting 4 email
The email following Meeting 4, dated 28 January 2022, provides positive feedback on Ms Chew’s attendance at GC-MS Training. However, Dr Quayle states that she is “still very concerned that you are struggling to understand straightforward instructions and tasks, noting that you are continuing to advise me once a deadline has passed that you do not understand what’s required of you. This is despite my regular reminders and encouragement for you to be proactive in reaching out to me for assistance when you’re unsure of how to complete your work.” The email provides a range of revised deadlines for completion of matters in the PIP in light of the GC-MS training. The email notes that Ms Chew was provided with comprehensive feedback on the Drafts on 14 and 19 January 2022 and “concerningly” Ms Chew had not sought to discuss any questions or queries that arose from that feedback.
Meeting 5 email
The email following Meeting 5, dated 8 February 2022, confirms that because of leave Ms Chew took following the Christmas shutdown the PIP had been extended until 18 February 2022. The email reiterates that Dr Quayle remains concerned about Ms Chew’s ability to complete tasks to the required standard and in a timely manner. Dr Quayle again encouraged Ms Chew to seek assistance outside of the regular PIP meetings to ensure she met all of the deadlines. The email notes that the TRACIE uploads are still not fully up to date. The email states that Ms Chew has made minor improvements regarding her engagement and professionalism and reminded her to keep engaging with the team, try to avoid communication out of hours and keep clear and open communication.
PIP Outcome
On 7 March 2022 Dr Quayle sent an email to Ms Chew to meet on 8 March 2022 to discuss her performance and progress during the PIP.?A meeting was held on 8 March 2022 attended by Dr Quayle, Mr Dean Mahoney (Senior People and Culture Partner), Ms Chew and her support person. At this meeting, Dr Quayle advised Ms Chew that she did not consider Ms Chew had satisfied the requirements of the PIP and advised her that another meeting would be scheduled to inform her of the outcome given the underperformance. After the meeting Dr Quayle provided Ms Chew with an underperformance letter (Letter 2) and a detailed summary of Dr Quayle’s assessment of Ms Chew’s performance, including the PIP with final review comments (Final Assessment). In summary, Dr Quayle found that Ms Chew:
???did not demonstrate an ability to complete work to the required standard with fewer errors as the PIP progressed, in particular Ms Chew’s multiple unsatisfactory attempts at drafting the NMR and Alpha Fourier Transform Infrared Spectrometer (FTIR) training manuals and SWP documents;
???failed to prioritise principal accountability and complete tasks in a timely manner and by the deadlines set out in the PIP; and
???did not significantly engage and demonstrate appropriate professional behaviour, communication or organisation skills, including Ms Chew’s unsatisfactory approach to obtaining the assistance and support she required to enable her to complete work.?
Letter 2 provided that Ms Chew was able to provide a response to the Final Assessment by 5 pm on 22 March 2022.
Ms Chew took personal leave from 11 March 2022 until 8 April 2022.?However, she provided a response to the Final Assessment on 22 March 2022.
Chew’s Response
In her response to the Final Assessment (Response) Ms Chew raised ten matters and provided numerous character references. Of the ten matters raised by Ms Chew in the Response, eight challenge the examples of underperformance contained in the PIP. Only two dealt with conclusions in the PIP that Ms Chew contested. Accordingly, the Commission found that the Response in large part agitated matters which led to the PIP being implemented, rather than addressing the requirements of the PIP or contesting the conclusions in it.
In relation to the two matters in respect of which Ms Chew did contest the conclusions reached in the PIP, Ms Chew said that:
???the PIP incorrectly finds that she had not submitted the NMR SWP as of 28 February 2022, when she submitted it on 18 February 2022; and
???the PIP found that Ms Chew used her personal computer for work, rather than her authorised Deakin computer. Ms Chew denied this, saying she did not own a personal computer and that the work in question became corrupted and she was unable to retrieve it.
On 29 March 2022, Dr Quayle sent Mr Slack, as the delegate of the Chief People and Culture Officer, a report recommending that Ms Chew’s employment be terminated (Report).?Dr Quayle’s evidence was that she considered the Response prior to providing the Report. The Report provides the following comments:
In relation to the two contested conclusions raised in the Response, the Report provides that:
???Dr Quayle did not receive the NMR SWP until 8 March 2022 and notes that the email asserted to be submitted on 18 February 2022 contains the same typographical error as the email she received on 8 March 2022;
???in any event, the NMR SWP was still not to the required standard;
???Ms Chew advised Dr Quayle verbally on 14 February 2022 in the weekly PIP meeting that she could not provide the spectral characterisation data because it was on her personal laptop at home or on a portable storage device and accordingly, the meeting was pushed back to allow Ms Chew to go home and retrieve the information; and
???in any event, the data was not digitised or completed and was partially provided on paper at the later meeting.
As to the character references provided by Ms Chew, the Report provides as follows:
Determination
Mr Slack’s uncontested evidence is that after receiving the Report he read it in its entirety, spoke to Mr Mahoney and Mr Stafford to clarify whether there were any other factors, such as quality of management style or matters that might otherwise have impacted on Ms Chew’s performance, and considered the Response and the character references provided by Ms Chew. In relation to the latter matter, Mr Slack’s evidence was that he did not consider the character references related to the concerns and areas of unsatisfactory performance and therefore were of little relevance,?a conclusion with which the Commission agreed.
After reviewing the Report, Mr Slack’s evidence is that he agreed with the recommendation that Ms Chew’s employment be terminated.?On 1 April 2022 he confirmed this with Dr Quayle.
On 8 April 2022 Dr Quayle sent Ms Chew an email confirming that she had received a decision from the Director of People, Partnering and Solutions concerning Ms Chew’s unsatisfactory performance under clause 65 of the Agreement. Dr Quayle asked Ms Chew to attend a meeting via Zoom to the discuss the outcome on Monday 11 April 2022. She advised Ms Chew that she may bring a support person to the meeting. Ms Chew responded seeking that the meeting be rescheduled to after 20 April 2022, as her preferred representative was on leave until that time. Dr Quayle refused this request and confirmed that meeting would proceed as scheduled.
On 11 April 2022 Ms Chew provided a medical certificate for the period 11 April 2022 until 6 May 2022 and advised that she would not attend the scheduled outcome meeting.?On 12 April 2022 Dr Quayle advised Ms Chew that notwithstanding the medical certificate she was required to attend the meeting, which was rescheduled to 13 April 2022.?Ms Chew did not attend the meeting on the 13?April 2022.?On 14 April 2022 Dr Quayle directed Ms Chew to attend a meeting to discuss the performance outcome on 21 April 2022.?On 20 April Ms Chew advised that as she was on sick leave she would not attend the meeting on 21 April 2022.?On 21 April 2022 Dr Quayle sent Ms Chew a new meeting invitation for 22 April 2022.
On 21 April 2022 Dr Quayle received an email from Dr Richard Young, treating Psychologist. The email states that Ms Chew is unwell, would not be unable to participate meaningfully in the outcome meeting and says that it would be helpful if the meeting was postponed to a later date. Due to the unusual form of the email,?on 22 April 2022 Ms Alexandra Gonos (Consultant, People Solutions (Workplace Relations)) wrote to Dr Young seeking further information as to Dr Young’s qualifications, the clinic in which he worked and when Ms Chew would be able to attend a meeting to discuss the outcome of her performance process.?Dr Young responded in writing on 26 April 2022, advising that Ms Chew would be able to attend a meeting from 5 May 2022 and requesting that the meeting occur as soon as possible from 5 May 2022 as delay “will likely cause anxiety levels to rise significantly again.”
On 5 May 2022 Dr Quayle and Mr Mahoney met with Ms Chew and her support person. At the meeting Dr Quayle advised Ms Chew that the Director of People, Partnering Solutions had accepted Dr Quayle’s recommendation that her employment be terminated for poor performance. Ms Chew was provided with five weeks’ notice of termination, with her termination of employment being effective on 9 June 2022, subject to the Respondent choosing to make payment of all or part of the notice period. Ms Chew was not required to perform any work during the notice period.?Dr Quayle sent Ms Chew an email that day, confirming that her employment would terminate on 9 June 2022 on the ground of poor performance and enclosing a letter of termination from Mr Slack?(5 May Termination Letter). In addition to the above matters, the 5 May Termination Letter advised Ms Chew of her right of review pursuant to clause 67.1 of the Agreement. Ms Chew was required to request a review by close of business on 19 May 2022. Ms Chew was also advised that further details regarding the review are set out in clause 67 of the Agreement.
Review of decision to terminate
On 19 May 2022 Ms Chew sent an email to Mr Mahoney seeking review of the decision to terminate her employment. In that email Ms Chew states that “the process has been undertaken to terminate me rather than to provide an adequate redundancy for my long tenure at Deakin University”, relies upon the absence of any prior performance management processes and makes a generalised assertion that she is being discriminated against.?On 19 May 2022, Ms Walton wrote to Ms Chew by email acknowledging her request for review and seeking confirmation that Ms Chew had, in accordance with clause 67 of the Agreement, submitted all the materials she wished to in relation to the review. The email also advised Ms Chew that while the review was in process her termination of employment was “on hold”.?Ms Chew did not provide any written submissions or any other evidence to support her request for the review of the decision to terminate her employment.
On or around 27 May 2022, Ms Romy Klein from Wise Workplace Solutions was engaged to undertake the review.
On 6 June 2022 Ms Klein provided her review report to Mr Slack (Review Report).?The Executive Summary of the Review Report provides as follows:
Additionally, the Review Report found that:
???it was appropriate for the Respondent to take disciplinary action against Ms Chew;
???given their knowledge of Ms Chew’s capabilities and the needs of the broader team, Dr Quayle and the University are best placed to determine the most appropriate form of disciplinary action;?and
???there was nothing in the extensive materials reviewed that indicated that the decision to terminate Ms Chew’s employment was based on anything other than genuine performance concerns.
Dismissal
Following consideration of the Review Report by Mr Slack, Mr Mahoney and Ms Walton, Ms Walton determined to confirm Ms Chew’s termination of employment. On 10 June 2022, Mr Mahoney, Mr Gleeson, Technical Manager, Ms Chew and her support person attended a meeting at which she was advised that her employment was terminated effective that day, with 5 weeks’ pay in lieu of notice. This was confirmed by letter dated 10 June 2022.
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Consideration
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
The Commission is required to consider each of these criteria, to the extent they are relevant to the factual circumstances.
Was there a valid reason for the Applicant’s dismissal? – Section 387(a)
The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee’s capacity or conduct are well established. A valid reason is one that is “sound, defensible or well founded”?and should not be “capricious, fanciful, spiteful or prejudiced.”
The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.?The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.
The Act requires consideration of whether there was “a” valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated.?It is also well established that a valid reason need not necessarily be the one relied upon by the employer.
Applicant’s submissions
The Applicant submits, inter alia, that there was no valid reason for her dismissal.
Firstly, Ms Chew contends that she ought not have been placed on a PIP and that “false and misleading information” formed the basis of the PIP.?She submits that the Respondent falsely alleged that she:
???failed to order materials, requiring the rearranging of a practical when the materials did not arrive on time and in the correct volume (eg Pyrazine for SLE 316 in July 2021);
???failed to communicate effectively and let chemistry technicians at other campuses know of the requirement for quartz cuvettes in SLE361 (20 September 2021); and
???had not completed that Gas PowerPoint Training as at 23 November 2021.
Ms Chew also contends that the Respondent made the following “unreasonable allegations” against her:
???failing to provide timely updates; Responding out of hours (Out of Hours Example);
???on 28 October 2021, stock from SLE 214 was left all over the preparation room;
???Whatsapp group is not an appropriate communication tool with the team;
???failing to partake in additional training such as the suggested webinar for NMR; and
???failing to engage during zoom meeting and joining late on 22 June 2021.
Secondly, Ms Chew contends that the requirements of the PIP were not clearly communicated to her.
Thirdly, Ms Chew contends that the Respondent did not comply with the provisions of clause 65.1(c) which requires that the “University will give the staff member a reasonable period of time to demonstrate performance against those expectations.” Ms Chew submits that 6 weeks was not a reasonable period of time, particularly in light of her lengthy tenure with the Respondent. In support of this she relies upon comments in the Review Report where she says the reviewer said “in my assessment, 6 weeks may not have been a sufficient amount of time for Ms Saw to meet all of the performance set out in the PIP.”
Respondent’s submissions
The Respondent submits that there was a valid reason for Ms Chew’s dismissal based on her unsatisfactory performance. Specifically, it submits that Ms Chew had not consistently maintained and performed the key requirements of her role to a satisfactory standard.
Valid reason
The reason for Ms Chew termination is set out in the 5 May Termination Letter. In summary, Ms Chew’s employment was terminated for unsatisfactory performance. The Respondent considered that during the period of the PIP Ms Chew had not consistently maintained and performed the key requirements of the Role to a satisfactory standard.
The Commission first considered Ms Chew’s contention that she ought not have been placed on a PIP and that the PIP contained false and misleading information and unreasonable allegations. As set out above, the PIP identified three broad areas of concern and provided examples of underperformance for each area. For Areas 1 and 2, 5 examples of underperformance were provided and 7 examples were provided for Area 3. The Commision did not consider that the evidence before the Commission establishes that the above examples in the PIP were “false and misleading” or “unreasonable”. For the most part, Ms Chew seeks to explain or justify the conduct in the example, rather than deny it occurred.?Where she denies it, that is contested by Dr Quayle.?The Commission also considered that in respect of some of the examples Ms Chew misrepresents the example. For example, the Out of Hours Example in the PIP was as follows:
The Out the Hours Example was not, therefore, concerned with Ms Chew responding out of hours; rather it was concerned with the fact that she responded to a matter some 40 hours after the time for the required response, noting that the response was required at that time due to a practical activity being run that day. In any event, even if it be that the matters said by Ms Chew to be false and misleading or unreasonable were so (which the Commission did not consider to be the case) there still remains a large number of examples of underperformance not said by Ms Chew to be either false, misleading or unreasonable. Further, the Commission noted that in her correspondence on 10 December 2021, and again on 13 December 2021, Ms Chew’s queries and concerns regarding the PIP included the statement “could we please discuss a comprehensive plan on how I can improve my performance to meet your expectations?” The Commission also noted that in correspondence of 15 December 2021 Ms Chew also makes the statement that “a PIP is a short term plan to give me an idea of how to improve my performance moving forward, and a comprehensive plan will be created by yourself which will include core duties.” Accordingly, the Commission considered these statements indicate that Ms Chew did not properly engage with the PIP or the process under it. The Commission also considered they indicate that she did not, at the time the PIP was implemented, contest that her performance was not at the standard required. Further, under cross examination she said that she “genuinely believed that she [Dr Quayle] was going to help me improve”,?“and then to give me training”,?“and genuine support. But that was not the case.”
In light of all of the above matters, the Commission found that as at December 2021 Ms Chew’s performance was not at the standard required of an HEW 6 as set out above at paragraph [11] – [13]. Further, it is clear that Ms Chew’s performance, to her knowledge, had not been considered satisfactory for a significant period of time prior to the implementation of the PIP. The Commission also noted that the primary areas of concern in the PIP are those raised in her most recent performance reviews. The Commission was therefore satisfied that Ms Chew’s performance was unsatisfactory as that term is defined in clause 65.10 of the Agreement and that there was a proper basis for the implementation of the PIP.
As to Ms Chew’s contention that the requirements of the PIP were not clearly communicated, the Commissioned rejected that contention and considered the requirements of the PIP to be clear and specific. They identify specific tasks and the timeframe within which they are to be completed. Further, Ms Chew raised a number of queries on 10, 13 and 15 December 2021 regarding the PIP requirements, which were responded to by Dr Quayle in person on 10 December 2021?and by Dr Quayle in writing on 15 December 2021.
As to Ms Chew’s contention regarding section 65.1(c) of the Agreement, the existence of a valid reason is not to be assessed by reference to any legal right to dismiss.?In?He v Lewin?Gray and Mansfield JJ made the following comments in relation to whether there can be a valid reason for dismissal, notwithstanding non-compliance with a contractual right, an award or an agreement:
Accordingly, the majority held that it is open to the Commission to find that there is a valid reason even if the termination is in breach of an enterprise agreement.?In?Martine Magers v Commonwealth of Australia (Department of Health and Ageing)?the Full Bench of the Commission referred to a number of authorities and said:
Accordingly, whether the period of six weeks for the PIP was a reasonable period of time does not go to whether there was a valid reason for dismissal. It may, however, be a relevant consideration to the overall question of whether the termination was harsh, unjust or unreasonable.
Whilst the Commission considered there is evidence that Ms Chew did make some improvements during the PIP, the Commission was satisfied that there was a valid reason for Ms Chew’s dismissal based on her performance. In particular, the Commission was satisfied that at the conclusion of the PIP:
???the SWPs for the NMR and FTIR were still not submitted on time (even with extended deadlines) or to the required standard (although I accept that Ms Chew may have mistakenly believed that she submitted the NMR SWP on 18 February 2022);
???Ms Chew’s technical notes and spectral characterisations for several units were incomplete;
???despite being given an extended deadline of 11 February 2022 to order chemicals, Ms Chew was still ordering chemicals on 21 February 2022;
???Ms Chew had only completed 148 of the required 180 TRACIE records at the deadline of 16 February 2022;
???Ms Chew waited until work was due (spectral characterisation, FITR SWP, NMR SWP, FITR training and NMR Training) to advise Dr Quayle that the work would be late; and
???despite a request in the PIP for Ms Saw to be proactive in seeking guidance from Dr Quayle if she needed assistance in completing a task, she rarely sought help from Dr Quayle outside their weekly sessions.
Further, Ms Chew does not at any point contend that she achieved all of the requirements of the PIP.?In particular, other than in relation to the submission of the NMR SWP and alleged use of her personal computer for work purposes, Ms Chew does not contest any of the above conclusions. Additionally, of all the work product said by Dr Quayle to be substandard, Ms Chew only disputed Dr Quayle’s claim in relation to the Gas PowerPoint Training. Rather, Ms Chew says that there were a range of matters that rendered the PIP requirements unachievable.
The Commission was satisfied that there was a valid reason for Ms Chew’s dismissal based on her performance.
Was the Applicant notified of the valid reason? – Section 387(b)
Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment,?and in explicit?and plain and clear terms.?In?Crozier v Palazzo Corporation Pty Ltd?(t/as Noble Park Storage and Transport)?a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the?Workplace Relations Act 1996?observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
Ms Chew was notified by Dr Quayle in the letter of 8 March 2022 that Dr Quayle considered her performance unsatisfactory and that further action would be taken. Ms Chew was again notified of the valid reason for dismissal by Mr Slack in the 5 May Termination Letter. At that time she was also advised of her right of review. Ms Chew was notified of the valid reason.
Was the Applicant given an opportunity to respond to any valid reason related to her capacity or conduct? - Section 387(c)
Section 387(c) requires the Commission to take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.
The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.?Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.
In?Wadey v YMCA Canberra?Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:
“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
Ms Chew was provided with an opportunity to respond to Dr Quayle’s letter of 8 March 2022 and, in fact, did do so. Further, she exercised her right of review under section 67 of the Agreement. The Commission was satisfied that Ms Chew was provided with an opportunity to respond and that opportunity was reasonable.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal? - Section 387(d)
Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal.
The Applicant contends Dr Quayle scheduled meetings throughout the PIP with little notice and on dates that made getting a support person challenging, and as a result was unable to have continuity in her support person. These matters are not relevant to section 387(d). That section is only concerned with discussions concerning dismissal.
Ms Chew also contends that whilst she had a support person at the meetings on 5 May 2022 and 10 June 2022 the Respondent made it difficult for her to do so. The Commission rejected that contention. The Commission accepted that the meeting which ultimately occurred on 5 May 2022 was rescheduled on several occasions. However, the meeting was ultimately rescheduled to 5 May 2022 on the advice of Ms Chew’s treating Psychologist, Dr Young and Ms Chew had a support person in attendance.
The Respondent did not unreasonably refuse to allow Ms Chew to have a support person present at discussions relating to dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal - Section 387(e)
If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal.
A dismissal relates to unsatisfactory performance where it refers to “the level at which the employee renders performance, including factors such as diligence, quality, care taken and so on.”
Ms Chew was put on notice that her performance was considered unsatisfactory in the Plan and again in the Mid-Year Review. Further, Ms Chew was clearly warned that her performance was unsatisfactory at the meeting on 7 December 2022, at which the PIP was implemented. She was also warned at that time of the possible consequences of not achieving the PIP. Further, Ms Chew was provided with feedback regarding her performance at the five meetings which occurred during the PIP period.
The Commission was satisfied that Ms Chew was warned about her unsatisfactory performance before the dismissal.
To what degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal? - Section 387(f) and (g)
Section 387(f) and (g) requires the Commission to take into account the degree to which the size of the employer’s enterprise and the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.
The Respondent is a large and well-resourced employer, with a dedicated human resources function.??The size of the employer’s enterprise would have no impact on the procedures followed in effecting dismissal. There was no absence of dedicated human resource management specialist or expertise in the Respondent’s enterprise. Accordingly, section 387 (f) and (g) have no application.
What other matters are relevant? - Section 387(h)
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.
It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In?B v Australian Postal Corporation?the Full Bench stated that:
“That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be ‘relevant matters’ that do not bear upon whether there was a ‘valid reason’ for the dismissal but do bear upon whether the dismissal was ‘harsh, unjust or unreasonable.”
Applicant’s submissions
Ms Chew submits that a range of other matters ought be taken into account when considering whether her dismissal was harsh, unjust or unreasonable.
Those matters are:
Length of tenure and absence of a PIP
The Commission accepted that Ms Chew has had very lengthy service with the Respondent and that until December 2021 had not been placed on a PIP. However, it is clear that since the beginning of 2020 Ms Chew’s performance had been considered unsatisfactory. This is clearly articulated in the Plan and the Mid-Year Review. Further, Dr Quayle’s evidence, which is uncontested, is that she had informal discussions with Ms Chew regarding her performance from very shortly after she commenced in the role of Senior Technical Coordinator until the PIP was implemented. The commencement of the PIP ought not have been a surprise to Ms Chew and her lengthy tenure and her prior satisfactory performance does not negate the unsatisfactory nature of her performance from 2020 onwards.
Timing of the PIP
Ms Chew contends that the PIP took place over the Christmas shutdown. The Commission disagreed. The PIP commenced on 7 December 202, although the Commission accepts that the shutdown occurred during the course of the PIP period. However, the PIP was extended to take this into account and there was no expectation of work during the Christmas period. Further, Ms Chew took additional further annual leave following the shutdown and throughout January 2022. In that context, it is difficult to see how Ms Chew can now seek to assert that the PIP was disrupted. Additionally, the requirements of the PIP were the minimum requirements of someone in Ms Chew’s role and, in the Commission's view, the break from work for the Christmas shutdown did not impact on Ms Chew’s ability to achieve the requirements of the PIP or render support for improvement unavailable.
Availability of support
The Commission rejected the contention that Dr Quayle’s work at the Geelong campus rendered her availability for support limited. The evidence before the Commission establishes, in my view, that Dr Quayle regularly and consistently offered feedback, further support and opportunities for Ms Chew to seek assistance. Rather than a lack of availability by Dr Quayle, the Commission considered the evidence before the Commission established that Ms Chew did not seek out or take advantage of the support which was offered and was available.
Chew’s husband’s health
The Commission rejected the contention that Ms Chew’s husband’s health impacted on Ms Chew’s ability to achieve the requirements of the PIP. The Commission accepted that Ms Chew’s husband had a heart condition and was in hospital for a period during the PIP. The Commission also accepted that this would have been distressing and concerning for Ms Chew. However, there is no evidence that he suffered a heart attack or required surgeries or that this impacted on Ms Chew’s ability to achieve the PIP. The evidence before the Commission is that on Sunday 19 December 2021 Ms Chew sent an email to Dr Quayle submitting her weekly report on progress on tasks required by the PIP. In that email she said:
Dr Quayle replied on 20 December 2021 saying:
Ms Chew replied thanking Dr Quayle for her concern saying “it has been a stressful few days” and asking to reschedule the meeting that day. Dr Quayle replied saying:
Accordingly, despite Ms Chew’s husband’s heart condition and hospitalisation, Ms Chew submitted the weekly report for Dr Quayle’s review, the feedback meeting was rescheduled until after the Christmas shutdown and Ms Chew was encouraged to take whatever leave she required. She sought leave and this was granted. I also note that the period of the PIP was extended to reflect leave taken by Ms Chew during the PIP period.
Chew’s mental health
Ms Chew’s evidence was that she notified Deakin in 2019 that she was suffering depression and anxiety.?Her further evidence is that she told Dr Quayle in July 2021 and again in her 2020 performance review that she suffered depression saying “that is when I sort of mentioned to her like I’m not ... like I was suffering from depression and on medication.”?Dr Quayle denies that Ms Chew told her at any time that she had been diagnosed with a mental health condition or that this was the reason for her unsatisfactory performance, although she accepts that Ms Chew did tell her that she was finding the PIP stressful.?For the following reasons the Commission preferred Dr Quayle’s evidence as to this. Firstly, there is no probative evidence before the Commission that Ms Chew suffered depression and anxiety at any time. Secondly, there is no evidence that Ms Chew’s unsatisfactory performance was the result of a mental health condition or that her inability to meet the requirements of the PIP was the result of a mental health condition. In this context, the Commission noted that the correspondence forwarded by Dr Young on 26 April 2022 (which, in any event, post-dates the PIP period) does not say that Ms Chew has been diagnosed with depression, rather it says that she is “highly anxious and distressed”. Given that this was immediately before the meeting at which Ms Chew was to be advised that her employment was to be terminated, this is unremarkable. Thirdly, the evidence before the Commission indicates, that through the PIP process Dr Quayle sought to accommodate Ms Chew’s requests for leave, rescheduling of meetings and provided extensions of time for the completion of tasks when necessary. In that context, the Commission considered it implausible that had Ms Chew advised Dr Quayle that she had been diagnosed with depression or a mental health condition that Dr Quayle would not have taken steps to address and accommodate this. Fourthly, Ms Chew objected to Dr Quayle’s assessment of her performance in the Plan. At no point in that objection does Ms Chew say that she is suffering from a mental health condition or that this is the reason for her poor performance. Finally, although there is evidence before the Commission that Ms Chew emailed Mr Daren Taylor in November 2019 absenting herself from a mentoring event because she was on sick leave, saying “Frankly, I am suffering from depression and anxiety from work”,?not only is this unsupported by any probative evidence, the Commission was unable to see how this amounts to notifying the Respondent that she was suffering depression and anxiety. Further, even if it be the case, it occurred two years prior to the commencement of the PIP. Additionally, the Commission noted that in response to a question from the bench Ms Chew said the COVID-19 caused her depression.?Accordingly, the Commission did not consider that Ms Chew’s mental health impacted her ability to achieve the requests of a PIP.
Lack of genuine support and training during the PIP
As to the contention that Dr Quayle failed to provide Ms Chew with genuine support and training, the Commission also rejected that contention. As to support, the Commission considered that the evidence before the Commission, and with particular reference to the matters raised in the emails sent following each of the PIP meetings, establishes that Dr Quayle did offer sufficient support to Ms Chew to successfully achieve the requirements of the PIP. She met weekly with Ms Chew, provided feedback on draft documents and provided advice as to where Ms Chew might seek assistance. In addition, on multiple occasions she encouraged Ms Chew to make times to meet with her to discuss tasks and progress outside of the weekly meetings. Rather than an absence of support, the Commission considered that Ms Chew did not utilise the support that was available, did not engage proactively with the PIP requirements and failed to take responsibility for her own performance. Further, when asked by the bench what support she was not provided with she said?“…Well, sort of like maybe ask about my wellbeing…”?As to training, it is clear that additional training in relation to certain matters, for example NMR training, was provided to Ms Chew, however, it appears that Ms Chew did not consider the training to be appropriate. Having observed Ms Chew during the course of the Hearing the Commission considered that she was, at best, reluctant to accept Dr Quayle’s direction as to what training would of assistance to her and would increase her general knowledge of a matter such that she would be more able to meet the requirements of the Role. As such, the Commission found that Ms Chew did not properly engage with training provided, preferring her own view over that of Dr Quayle as to it relevance, nor did she avail herself of all of the training opportunities provided.
As to the period of the PIP, the PIP was initially implemented for a period of six weeks from 7 December 2021 until 4 February 2022. Due to periods of leave taken by Ms Chew the PIP was extended for a further 2 weeks until 18 February 2022. Ms Chew submits that the period was unreasonable and relies upon comments in the Review Report where she says Ms Klein says that “in my assessment, 6 weeks may not have been a sufficient amount of time for Ms Saw to meet all of the performance standards set out in the PIP.” Ms Chew submits that “this statement in itself demonstrates that the process was not only unfair, unreasonable and harsh but it is in breach of the requirements of the Deakin Enterprise Agreement.”?The Commission rejected that submission. Firstly, Ms Chew incompletely quotes Ms Klein’s comments. As to the period of the PIP, the Review Report provides as follows:?
Accordingly, contrary to Ms Chew’s submission, Ms Klein’s conclusion was that six weeks was a reasonable period of time.
Secondly, Ms Chew is a Senior Technical Officer. The stated purpose of her role is to “provide a high standard of technical support to the academic, teaching and research programs of the School to ensure that the practical and administrative services are provided in an efficient?manner.”?The key accountabilities of her role included managing practicals in Chemistry disciplines, managing OH&S issues and providing high level technical support for the preparation of materials/equipment and demonstration/operation of analytical equipment and techniques.?The Role requires highly developed lab skills, strong organisational skills, deep understanding of chemical safety issues and strong written and oral communication skills.?In that context, the Commission considered that the requirements of the PIP reflect the minimum requirements of Ms Chew’s role and a period of six weeks is an adequate and reasonable period of time for Ms Chew to demonstrate competence in them. Further, Ms Chew was provided with extended time frames within the PIP period for the submission of certain materials. Thirdly, the PIP was commenced following Ms Chew having been on notice since at least January 2021 that her performance was unsatisfactory in a significant number of areas and following two unsatisfactory performance reviews. Further, during the course of 2021 Dr Quayle had informal discussions with Ms Chew about her performance and meet with her one-on-one about this. Had the PIP been implemented in December 2021 absent these factors, it may be that a period of six weeks was reasonable. However, taking into consideration all of the relevant circumstances, the Commission was satisfied that the period of the PIP was reasonable. It therefore follows that the Commission also consider that the relevant provisions of the Agreement have been complied with.
Notification of the PIP meeting
It is uncontested that Ms Chew was notified of the of the PIP meeting to be held on 7 December 2021 whilst she was on leave. It appears that the meeting was scheduled to coincide with Ms Chew’s return to work from leave. Whilst the Commission did not consider this best practice, and consider that Ms Chew could have been advised of the PIP meeting upon her return to work on 7 December 2022 and the meeting delayed by one day, the Commission did not consider that any particular unfairness arises from this. Nor did the Commission consider that any unfairness arises from Ms Chew spending time on the final day of her leave arranging for the attendance of a support person. This was a choice made entirely by Ms Chew, noting that the meeting was not a discussion regarding dismissal.
Scheduling of meetings while Chew was on sick leave
Ms Chew contends that the Respondent directed her to attend several meetings whilst she was on sick leave and questioned the validity of her treating psychologist’s opinion.
It appears uncontested that Ms Chew was took sick leave from 11 March 2022 until 8 April 2022 and from 11 April 2022 until 6 May 2022. On 8 April 2022 Dr Quayle scheduled a meeting on 11 April 2022. Ms Chew was advised that a decision had been received from Mr Slack regarding the outcome of the unsatisfactory performance process. On 11 April 2022 Ms Chew provided a medical certificate from her general practitioner stating that she was unfit from that day until 6 May 2022. The meeting was then rescheduled to 13 April 2022, then 21 April 2022, and then 22 April 202. Ms Chew did not attend any of these meetings. The meeting finally occurred on 5 May 2022 following advice from Dr Young on 26 April 2022.
In relation to the meeting scheduled on 11 April 2022, this appears to have been scheduled to coincide with the expiration of Ms Chew’s initial period of leave. As such, the Commission did not consider anything arises from this. Ms Chew provided the further medical certificate to support the second period of leave from 11 April 2022 on the morning of 11 April 2022, after having her request on 8 April 2022 for the meeting to be postponed until 20 April 2022 denied. As to the rescheduling of the meeting on 13, 21 and 22 April 2022, Dr Quayle’s uncontested evidence is that while Ms Chew provided a medical certificate for the relevant period, she did not provide any clarification as to any medical condition that would prevent her from attending a meeting and she was not being asked to perform her normal duties.?The Commission accepted that evidence. Specific advice that Ms Chew was not well enough to meaningfully participate in the outcome meeting was not received until 26 April 2022 from Dr Young, following which the meeting was rescheduled for 5 May 2022, being the date advised by Dr Young on which it could occur. As such, the Commission did not consider the scheduling of the outcome meeting gives rise to any unfairness.
The Commission also rejected Ms Chew’s contention regarding the questioning of Dr Young opinion. Dr Young’s email of 21 April 2022 is, in my view, in a most atypical form. In this regard the Commission noted that:
???the advice that Ms Chew was unwell and could not participate in the outcome meeting was provided in a 6 line email and was not provided by way of a medical certificate or report;
???the email was informal and addressed Dr Quayle as “Kim”;
???identified the author as Dr Richard Young but did not include any details of Dr Young’s qualifications;
???did not include any details (such as name, address or telephone number) of Dr Young’s clinic or medical practice;
???came from the email address of?[email protected], which is not obviously the email address of a medical practitioner;
???did not contain Dr Young’s provider number; and
???did not provide a time frame by which Dr Young considered that Ms Chew would be fit to attend an outcome meeting.
This to be contrasted with the correspondence received from Dr Young on 26 April 2022 which runs to two pages, is on letterhead, contains details of Dr Young’s qualifications, clinic address, telephone and email contact details, provider numbers, details of Dr Young’s memberships and provides that Ms Chew can attend a meeting from 5 May 2022. The Commission considered Ms Gonos was entirely justified in seeking further clarification from Dr Young following receipt of the 21 April 2022 email and that no unfairness arises from this.
Matters in the Response not addressed
Ms Chew contends that only two of the matters she raised in the Response were addressed by Dr Quayle in the Report. The Commission rejected that contention. The Commission found that of the ten matters raised in the Response, only two matters contest the conclusions in the PIP. The remaining eight matters (Eight Matters) agitated matters which led to the PIP being implemented. Dr Quayle identifies in the Report that “in her response Jessica predominantly addresses concerns that led to the PIP being implemented. Little focus is given to the concerns raised about her performance during the PIP period itself.”?Dr Quayle then goes on to address the two conclusions contested by Ms Chew in the Response and also addressed the character references provided by Ms Chew. Accordingly, whilst Dr Quayle does not individually address each of the Eight Matters, she has clearly considered them, provides comment in relation to them and concluded, correctly in my view, that they do not go to whether or not Ms Chew met the requirements of the PIP.
Personal leave denied and terminated whilst on sick leave
As already set out, on 5 May 2022 Ms Chew was advised that her employment was to be terminated on the ground of poor performance. At that time she was advised that she was provided with 5 weeks’ notice of termination but was not required to perform any duties during the notice period. Ms Chew applied for personal leave for the period 9 May 2022 until 2 June 2022, which was denied by Dr Quayle due to Ms Chew not being required to perform any duties during her notice period.?Accordingly, as Ms Chew was not required to perform any work she was not required to utilise personal leave during this period. The Commission was unable to see how any unfairness arises from this. Further, there is simply no evidence that Ms Chew was on personal leave at the time of her dismissal on 10 June 2022 and such a contention is entirely inconsistent with the prior denial of personal leave on 5 May 2022. Additionally, Ms Chew continued to be paid from 5 May 2022 until her employment terminated on 10 June 2022.
Chew’s age and length of employment
Although Ms Chew made no specific submissions as to this, the Commission took into consideration Ms Chew’s age and period of employment with the Respondent. Notwithstanding Ms Chew’s very lengthy period of employment with the Respondent and her age, in the circumstances of Ms Chew’s continued and sustained underperformance, her lack of engagement with the PIP, her failure to access additional training and support available to her during the PIP and her reluctance to accept Dr Quayle’s direction, the Commission did not consider her length of service and age weigh so heavily as to render the dismissal harsh, unjust or unreasonable.
Other matters
The Commission addressed four final matters.
First, the Commission rejected any suggestion by Ms Chew that clause 65 of the Agreement was not complied with by the Respondent.
Second, in her Form F2, and also when seeking review under clause 67, Ms Chew asserts that she was dismissed on the grounds of poor performance by the Respondent so as to avoid the need to make a redundancy payment and that her duties have been redistributed amongst other employees.?This submission was not pressed in subsequent materials fled by Ms Chew. However, should it be so contended, the Commission rejected that submission. There is simply no evidence before the Commission to suggest that Ms Chew’s dismissal was for any reason other than unsatisfactory performance.
Third, Ms Chew appeared to suggest that she was not afforded a proper opportunity to file materials in relation to the review of the termination decision conducted under clause 67 of the Agreement, saying she was afforded less than 24 hours to prepare materials.?The Commission rejected that suggestion. The 5 May Termination Letter informed Ms Chew that she had a right of review pursuant to clause 67. That letter also included the following statement:
Clause 67.2 of the Agreement provides that in order to request a review, an employee must provide the Executive Director, Human Resources, with the following materials at the time the request is lodged:
???the basis for requesting the review;
???any written submissions supporting the request for review; and
???any documentary evidence that the staff member relies on in respect of the above.
Accordingly, Ms Chew was directed to the relevant provisions of the Agreement, at the time she was advised of the ability to request a review. That she did not read them or avail herself of them, does not mean that she was not afforded an opportunity to file material. Further, Ms Chew took the entire period allowed, until 19 May 2022, to advise the Respondent that she sought review and clearly had time within that period to inform herself as to what was required under clause 67. Finally, Ms Walton afforded a further period of time after 19 May 2022 for Ms Chew to file any relevant materials. She did not do so.
Fourthly, and related to the above matter, Ms Chew also raised an issue with the Review Report’s finding that there had been “no substantial flaw in following the procedures of clause 65 of the EA”.?Although conceding that the Review Report did not identify any flaw,?Ms Chew submitted that what is required is no flaw in the procedures, not simply no substantial flaw. Firstly, the Commission did not consider that any flaw in the procedures of clause 65 have occurred. Secondly, pursuant to clause 67.5(b) of the Agreement, one of the findings the reviewer is required to make is whether there has been a substantial flaw in following the procedures of the clause. Accordingly, the finding contained in the Review Report is one that is required by the Agreement to be made.
In light of all of the above, the Commission did not consider that any of the matters raised by Ms Chew pursuant to section 387(h) support a conclusion that the termination of her employment, was harsh, unjust or unreasonable.
Conclusion
Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on the factual findings, the Commission was satisfied that the dismissal of Ms Chew was not harsh, unjust or unreasonable.