An engineer was hired in 2007 by a German bus manufacturing company doing business in Australia. When an Australian bus company bought the German bus company in 2017, the engineer was hired by the Australian bus manufacturing company. In 2019, the Australian bus manufacturing company merged with another Australian bus designing company. The engineer worked for the newly merged company until July 2021 when he was dismissed.
Company merger brought in innovations in the work process
The bus company both designed and manufactured buses for companies such as Mercedes and Scania as well as the Australian government. A former manager that the engineer had directly reported to when at the German bus company became a director and later, executive chairman of the merged bus company. This merged company had two teams in Adelaide and in Queensland.
The bus company wanted to improve the culture and performance of the engineering department. The national manager wanted the engineering team to present monthly at meetings and use a communication software programme to improve project awareness across the two teams. The national manager also sought to assess the performance of the engineers to determine areas of excellence and areas of improvement.
Opinion of managers on the engineer’s underperformance
Months after the assessment began, the supervisors of the engineer held the opinion that the engineer underperformed and struggled on the design side of the business. The engineer had been hired as a manufacturing engineer and then later, his role was in the production side of the business. At the time of his dismissal, he was working on the design side. The quality of his work was not up to the standard of an engineer of his seniority and pay grade. Most of all, they all noted how slow he worked and that this impacted other engineers’ work.
Engineer made mistakes necessitating others to redo his work
The national manager noted that during monthly meetings, the engineer did not actively contribute. Some senior engineers doubted the accuracy or adequacy of the engineer’s drawings. They often had to redo his work as it would have taken more time to have him redo his own work and it would further delay production. Supervisors advised the national manager to cease assigning the engineer complex or time critical work.
Allocated simpler tasks
The national manager moved the engineer off a big project until he was only providing production support and where his work did not require the engineer to exercise judgment or skill. While the engineer noted that his duties changed, he was not told of the reasons why his duties changed. However, in the middle of March 2021, the engineer drew a configuration for a seat on a Mercedes bus. The national manager decided to allocate the task to an engineering intern as he felt the engineer’s drawing was not up to standard.
Late submission of work slowed production
Again, at the end of March 2021, the engineer submitted a drawing for a Scania bus but the national manager considered the drawing late and was cause for the production to slow down. The national manager decided to speak with the engineer formally.
First meeting with manager, concerns about work performance discussed
In April 2021, the engineer was called to a close-door meeting with the national manager. During that meeting, the national manager raised concerns about the Mercedes seat layout and the Scania work that the engineer had drawn. The national manager raised concerns about the engineer’s general work performance but did not give the engineer any warning nor was he informed what the consequences would be to his employment status if his performance standard failed to improve.
Supervisors assigned to closely monitor engineer’s tasks
Toward the end of April, the line manager who was in charge of allocating tasks formed the opinion that the engineer’s performance was significantly below standard. His work did not translate into clear instructions for consistent and timely manufacture. The line manager and the national manager met together with the engineer and assigned a performance manager who would give the engineer clear tasks and monitor his performance on those particular tasks.
Personal supervision by line manager
The line manager began to speak individually to the engineer prior to allocating tasks to ensure that he
understood what was accepted to him. He was also required to meet every three days with the national manager to discuss his performance. The engineer, however, was never informed that the line manager and the national manager were discussing his performance and finding it below standard.
Second meeting where his work quality was discussed
In May 2021, more concerns about the engineer’s work quality came up with a drawing he made of the front and rear panels of a Mercedes bus and a lighting layout that was submitted late. The national manager met again with the engineer. Again, aside from the national engineer’s concerns about those drawings he had submitted late, there were concerns raised about his general work performance but, again, the engineer was not warned of the possible consequences of his failure to improve his performance.
No management plan was provided or implemented
While the engineer was informed that his performance would be managed, he was not provided with a formal performance management plan nor was he informed how long he would stay under performance management.
The engineer was surprised by the news and he took a few days of personal leave. When he returned to work, still unknown to him, the national manager, the line manager and the performance manager communicated through email about his performance, how timely it was and whether it was up to standard.
Costly error on a weld wire that caused a halt in production
At the end of June 2021, the production of Mercedes buses at the two production sites halted when the production staff noticed that the weld wire being applied was not compliant with the client’s specifications. The national manager instructed an investigation into this and found that the source of the error was a drawing made by the engineer for the weld wire.
Meeting with the national manager to discuss error
The national manager himself spoke with the engineer to inform him of his error. The engineer then said that he thought his task was to draw the weld wire according to industry norms and not to the specific requirements of the clients which were of higher quality than the industry norms. The engineer was not informed of the impact or the cost of his error.
Board decided to terminate the engineer
By the end of July 2021, the national manager was instructed by the board that the engineer ought to be dismissed for failing in his duty to perform up to standard on the weld wire issue. The meeting was held in the national manager’s office with a member of the board present. The member of the board was the engineer’s former manager whilst he worked at the German bus company.
Dismissal was immediate and based on the weld wire error
The member of the board informed him that he would be dismissed for under performance, that his dismissal was to take effect immediately and that he would be paid four weeks’ notice in lieu. The engineer said very little during the meeting. The national manager accompanied him to his work station to gather his things. The national manager walked with him to his car when he left the workplace.
Termination letter with particularised reasons for dismissal sent days after termination
He received a termination letter and a separation certificate days after. In his termination letter, the engineer was informed that his dismissal was for his failure to deliver work within deadlines, submitting incomplete work, inability of working and developing new processes, and slow adoption of new tools. He was also informed that he had been spoken to at least twice about the need to improve his output but that there had been no evidence of improvement.
Application for unfair dismissal, grounds
The engineer filed an application for unfair dismissal assailing his dismissal as being without valid reason and as failing to comply with the requirements of procedural fairness. He cited that he had not been given a termination letter prior to the termination meeting and consequently, he had no opportunity to respond to the allegations because the reasons for his dismissal were made clear to him only after he had already been terminated with immediate effect.
FWC found evidence of slow work performance and late submissions
The Fair Work Commission found that there was evidence that the engineer missed deadlines and that his slow turnaround time was significant because the work of production or design would also be impeded. As an engineer, he had the duty of care and attention to the work he was given.
FWC found the errors in the engineer’s work significant enough to merit disciplinary action
The engineer was not required to accomplish perfect work. However, the engineer had seniority, the necessary qualifications and work experience. This formed a context to determine whether his mistakes in his drawings were significant enough to merit disciplinary action. Not all his work was substandard. The thoroughness of his work varied widely and occurred frequently enough to be significant in determining whether his work was substandard. The engineer’s failure to submit satisfactory work on the weld wire caused the intended performance management process to be set aside and it triggered the bus company’s decision to dismiss him. All these are evidence of failures of the engineer in his role.
FWC found existence of valid reasons for the dismissal
The engineer’s performance must be assessed against his contractual obligations and the surrounding circumstances of his performance. He was a professional engineer who had years of experience in the bus manufacturing and design business. The bus company had lost trust and confidence in the engineer’s capacity to perform in his role because of the history of poor performance. The deficiencies in the quality of his work and the timeliness of submission were valid reasons for his dismissal.
FWC found employer failed to comply with procedural fairness and made the dismissal harsh
The engineer had been dismissed for performance reasons and he was advised of this fact during the dismissal meeting. However, the reasons for his dismissal were not particularised during the meeting as they were in the termination letter. This lack of particularity was unreasonable. The failure of the bus company to particularise the reasons for his dismissal was disrespectful to the engineer and added to the dismissal’s harshness.
Employer failed to give engineer an opportunity to respond
The bus company had already discussed and determined the engineer’s dismissal a week prior to the dismissal meeting. And yet, during the dismissal meeting, the engineer was not provided an opportunity to respond to the allegations of his failure in work performance that warranted his dismissal.
Employer bungled performance management
The bus company had determined to put the engineer under performance management but failed to put him on a formal performance management plan. While the bus company assigned supervisors to allocate simpler asks to the engineer and to monitor his accomplishment of those tasks, the engineer was not given a benchmark or review point against which his performance would be assessed.
No performance management plan for the engineer
While the national manager met several times with the engineer to discuss his performance, he was never informed of the possible consequences to his employment of the performance management or of his failure to abide by the performance management plan (since there was no performance management plan).
Not made aware of the impact and cost of his poor performance
When the engineer made mistakes, no one discussed with him the gravity of his mistake or the impact of that mistake to the business of the company. The engineer was not made aware that his mistake on the weld wire issue was already a disciplinary issue. Thus, the FWC found that the engineer had been denied procedural fairness when he was terminated from his employment. The bus company was as clumsy in dealing with the engineer’s performance issues as the engineer was tin-eared about his substandard work performance.
Procedural deficiencies failed to give the engineer the opportunity to raise his work quality, thus the dismissal was harsh and unfair
The question confronting the FWC was not whether the engineer’s conduct or poor performance outweigh the procedural deficiencies in his termination. In being denied due process, the bus company denied the engineer the opportunity to be confronted with the blunt reality that he needed to raise his work performance or else be dismissed. That reality would have allowed the engineer to reflect whether what was required of him aligned with his skills and capacity.
Reinstatement was inappropriate, compensation provided
The FWC then found that even when there was a valid reason for the dismissal, the dismissal was still harsh and unjust. Reinstatement, however, was inappropriate because there was a valid reason for his dismissal and the engineer has no insight into the reasons for his dismissal. The engineer was awarded compensation of $21, 471.15.
Rohieth Lakhan v Bustech Group Pty Ltd T/A Bustech Group  FWC 6329 (29 November 2021)
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