2007 WAIRC 00556

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIESSharon Whittle

APPLICANT

-v-

Em-Tech (Incorporated) trading as Workability Employment Strategies

RESPONDENT

CORAMCommissioner J L Harrison

HEARD9October 2006, 10October 2006, 11october 2006, 12february 2007, 13february 2007, 14February 2007, 14march 2007

DELIVEREDtuesday, 26june 2007

FILE NO.U 157 OF 2005

CITATION NO.2007 WAIRC 00556

CatchwordsTermination of employment - Harsh, oppressive and unfair dismissal - Principles applied - Applicant unfairly dismissed - Application upheld - Compensation ordered - Industrial Relations Act 1979 (WA) s 29(1)(b)(i)

ResultUpheld and Order Issued

2007 WAIRC 00556

Representation

ApplicantMrO Moon (as agent)

RespondentMrD MacLean (of counsel) and MrM Cuomo (of counsel)

Reasons for Decision

1This is an application by Sharon Whittle (“the applicant”) pursuant to s29(1)(b)(i) of the Industrial Relations Act 1979(“the Act”). The applicant alleges that she was unfairly terminated from her position as the General Manager of Em-Tech Incorporated trading as Workability Employment Strategies (“the respondent”)on 24October 2005. The respondent argues that the applicant was not unfairly terminated.

Background

2There are a number of relevant facts that are not in dispute. When the applicant commenced employment with the respondent on 7May 2002 her terms and conditions of employment were confirmed in writing (Exhibit A28).

3On 23August 2005 the respondent gave the applicant the following letter expressing concerns about her performance (formal parts omitted):

“The Board has become increasingly concerned about staff recruitment, retention and management at Workability Employment Strategies during the past two years. The turnover is approximately 100% in the past twelve months. The Board is concerned about the effect this has on Workability’s capacity to deliver a service and its effect on the functioning and morale of staff. Of particular concern is the loss of relatively recently hired staff and senior staff. The board (sic) or I have been contacted by staff at various times during the past fifteen months over this matter. On all occasions staff have cited your management style and interpersonal skills as a major factor in staff resignations and poor morale.

The concern the Board has was formally documented with you during your Performance Appraisal in September and October 2004. Several meetings were held and this issue suggested intervention strategies and two goals were recorded in the report dated 15th October 2004.

From this time to date our concern increased partly due to some of the behaviour displayed by you during or after Board meetings as well as your lack of interaction with myself since October 2004. The coaching that had been implemented at this time did not seem to be making a difference and it was difficult to obtain specific information about this. The coaching had excluded myself when it was discussed initially that I would be involved and would be included in at least one coaching session. When asked about the coaching you were non-specific about it citing absolute confidentiality between you and the coach.

On 10th May 2005 you were asked to complete the relevant section of a Performance Appraisal and concurrent to this your performance was discussed by the Board. The appraisal template was not returned to me until 28th June 2005, some seven weeks later. On this template you indicated that you believed that one of your strengths was communication with staff. Generally your appraisal form was brief, recited items which had been directed by myself last year and identified an agency goal instead of a personal development goal. This caused concern that you had not fully accepted that staff turnover and functioning was an ongoing and critical concern that could be directly attributed to you.

On 15th July 2005 I was approached by six staff members (50% of Workability’s staff), all of whom raised significant concerns about you and all cited specific examples where your behaviour had been inflexible, cold, unfriendly and unhelpful. Staff were very frustrated at turnover, your management style, a lack of access to training, lack of acting on staff suggestions and your criticism of staff over non core business matters.

On 22nd July 2005 a meeting was arranged with you at which the allegations from staff were put to you and some of my own concerns advised to you formally. This occurred in the presence of your management coach Clare Goodman. Peter Kent (Board Member) and I discussed in detail the concerns raised by staff and concerns I had over your lack of communication with me, your interaction with me and your outbursts and demeanour during and after Board meetings. We discussed that this had intensified following the performance appraisal of October 2004. You stated that you were not happy with last year’s performance review and inferred that you ignored it.

At this meeting specific areas of improvement were identified and coaching implemented again.

The specific areas are:

  • Staffing issues – inflexibility, not being open, not accepting suggestions, unfriendly and cold.
  • Relationship with Chairman

Subsequent to this meeting, three staff have resigned. Two have contacted me directly and cited your behaviour as the main cause of their resignation. Other staff have also contacted me and have stated that since the meeting of 22nd July your behaviour has become worse. They specifically state that you have withdrawn, are not attending staff meetings, are continuing to “freeze out” selected staff and are retaining control over leave and training whilst having Wendy Mears action your specific instructions. (You confirmed you still held control over leave and training when I asked you about it on 16th August).

Given the Board’s apprehension and our ongoing meetings, I was concerned that you did not advise me that Gail McKay had resigned. I pointed out to you that I considered this a lack of judgement on your part and that in the current situation I expected to be advised of such resignations. You seemed surprised and protested that this was a new requirement on you. On 19th August I was advised (not by you) that Kim Sunter had resigned. This is alarming given his experience with Workability and contribution to the business.

Generally I have found your recent communication brief, formal and cold. The development plan has been received but no discussion has taken place regarding what this model is or how it would be progressed, timelines and so on. I have discussed several times with you that my view is that the coaching needs to be much more active in the early stages so that change can be made more quickly. I was hopeful of our ability to move forward regarding the concerns raised but it now appears this may not be the case.

One of the key requirements of a General Manager of a small organisation like Workability is to build and manage a team so that service outcomes may be achieved. Indicators such as turnover and the direct feedback from staff show that you are not able to do this. In addition your communication with myself as Chairman, other board members as individuals and on occasion the full Board is not satisfactory. The Board has lost confidence in yourability to manage Workability.

The Board considers these matters serious and they may affect your employment. You have one month to improve in the areas identified to you over the past twelve months. Your ongoing employment will then be reviewed.

Should you wish to seek support additional to the coaching and employee assistance program please contact me to discuss.”

(Exhibit A1)

4At a meeting held on 13October 2005 the respondent gave the applicant a letter of termination dated 13October 2005 and the applicantwas given one month’s noticeas required under her contract of employment and the respondent told the applicant to work out her notice period away from the respondent’s premises. On 24October 2005 the respondent decided not torequire the applicant to work out her remaining notice period and paid out her outstanding entitlements including compensationfor her work vehicle for the rest of the notice period.

5Following is a copy of the letter given to the applicant on 13October 2005 (formal parts omitted):

“Reference:Meeting 13th October 2005 Margot Tobin/Sharon Whittle

As discussed at the meeting of 13th October 2005 feedback from staff indicates little change in the situation at Workability Employment Strategies regarding staff morale. There have been further complaints by staff members regarding your management and communication.

In addition, the board has not moved in its position regarding your performance as advised in the letter dated 23rd August 2005.

The Board have again considered your performance and the issues raised with you over a period of twelve months.

We feel that Workability Employment Strategies is unable to move forward whilst this situation remains unsolved. Therefore you may consider that your employment contract is now ended on the basis of one month’s notice.

Please make arrangements to return any property, access cards, security codes/passwords and so on which are the property of Workability Employment Strategies no later than 13th November 2005.

You may access three further coaching sessions with your current business coach at cost to Workability. In addition, we strongly encourage you to seek support from Workability’s Employment Assistance provider, OSA. This can be extended up to one month post your completion date.

If you have any questions or would like to discuss any details of this letter, please contact me on my mobile telephone 0414460361.”

(Exhibit A22)

6The respondent is operatedby a voluntary Boardof Management (“the Board”). The respondent provides a specialised employment service which assists people with disabilities to find and maintain employmentand it provides a range of services to help its clients prepare for employment, find a job, develop their skills and maintain employment.

Applicant’s evidence

7The applicant stated that when she was given the letter dated 23August 2005 criticising her performance she believed that parts of the letter were inaccurate and even though the respondent did not require her to respond to the letter she made some notes about some of the issues raised in the letter. The applicant stated that the Board’s Chairperson, MsMargot Tobin did not discuss this letter with her and she felt that the letter was pressuring her to resign. The applicant’s notes made on 27August 2005 in response to the letter are as follows:

“DIARY NOTES: 27August 2005

My response to the letter originally dated 21August 2005 and provided to me 23August 2005 at the closing of the Board of Management meeting. These responses were not sent to the Chairman, as I was not requested to respond to the letter.

The Board has become increasingly concerned about staff recruitment, retention and management at Workability Employment Strategies during the past two years. The turnover is approximately 100% in the past twelve months. The Board is concerned about the effect this has on Workability’s capacity to deliver a service and its effect on the functioning and morale of staff. Of particular concern is the loss of relatively recently hired staff and senior staff. The board or I have been contacted by staff at various times during the past 15 months over this matter. On all occasions staff have cited your management style and interpersonal skills as a major factor in staff resignations and poor morale.

Workability Employment Strategies current staffing levels are 17. The following staff have (sic) over 18months service or greater are as follows:

Giorgia

Sharon

Andrea

Jason

Diane

The organisation experienced substantial growth over the past 12months.

Two additional staff were employed to deliver the JPET program commencing 1July 2005 and a job share PSP Coordinator was employed to assist with delivering the program.

We were also successful during February 2005 in achieving additional places of 21% of the market share which recognised our service delivery and performance achievements during the past 8months.

There is no evidence that service delivery has been affected. To the contrary we have continued to achieve our performance targets. See outlet performance outcomes Annual report 2005.

I have not been advised of which staff have contacted the Chairman or the date of their contact with the Chairman regarding their reasons for resignation and it is not reflected in their letter of resignation. I have not been given an opportunity to respond to their reasons given for resignation.

The concern of the Board has been formally documented with you during your Performance Appraisal in September and October 2004. Several meetings were held and this issue, suggested intervention strategies and two goals recorded in the report dated 15 October 2004.

Although these concerns were raised in the initial appraisal meeting attended by MsDebra Goundrey and MsMargot Tobin, I was disappointed that my comments were not noted in the final appraisal document as presented to me by MsTobin and I had no opportunity to respond formally to the appraisal contents.

Goal for 2004-2005

Turnover/staffing issues to be reduced significantly

Awareness of own management style and how using a variety of styles will work better. At least on (sic) of the tools suggested is to be applied this year.

The first goal was not specific in the outcomes or measurable

The second goal was limited to five coaching sessions.

At the completion of my appraisal, I successfully negotiated a pay increase of $4000

From this time to date our concern increased partly due to some of the behaviour displayed by you during our or after our Board meetings as well as your lack of interaction with myself since October 2004. The coaching that had been implemented at this time did not seem to be making a difference and it was difficult to obtain specific information about this. The coaching had excluded myself when discussed initially that I would be involved and would be included in at least one coaching session. When asked about the coaching you were non-specific about citing absolute confidentiality between you and your coach.

Including the Chairman in the coaching session was a goal identified by the Chairman as part of my appraisal. My recollection is somewhat different to the Chairman as to whether she would be included. I recall her stating that she would like to be included if possible in one of the sessions. This was also relayed to me by my coach that the Chairman had indicated her interest in being part of the final coaching session. I recall providing feedback to the Chairman that our coaching sessions were focussed on communication and the impact and influence of words.

On 10 May 2005 you were asked to complete the relevant section of a Performance Appraisal and concurrent to this your performance was discussed by the Board. The appraisal template was not returned to me until 28June 2005, some seven weeks later. On this template you indicated that you believed that one of your strengths was communication with staff. Generally your appraisal form was brief, recited items which has(sic) been directed by myself last year and identified an agency goal instead of a personal development goal. This caused concern that you had not fully accepted that staff turnover and functioning was an ongoing and critical concern that could be directly attributed to you.

The email from the Chairman indicted (sic) that she would be on leave for three weeks and that there was no hurry for preparing my appraisal form and it was stated that these were my thoughts as a basis for discussion. Although I acknowledgethat I did not return the appraisal form within or prior to 6June 2005. During the first week of June our server was affected by lightening strikes so I was unable to return my appraisal by email before 6June 2005. It was my intention to provide the appraisal to the Chairman at our pre-arranged Board meeting scheduled 14June 2005. As there was no quorum for this date, it was re-scheduled to 28June 2005. I did not appreciate the urgency of returning the appraisal form before the Chairman’s return from annual leave or before the scheduled Board meeting.

This is the first time that I have been informed that my appraisal form did not meet the Chairman’s expectations. In fact my review has stalled and been replaced with feedback. This occurred 22July 2005 with both the Chairman and Peter Kent in which I was informed that the Board is pleased with my performance overall, and the Board does not want me to leave, they also revealed to me the praise from Peter after spending the day with me at a workshop we attended together. Peter provided feedback to the Board that the organisation were (sic) very lucky to have someone like me with my experience to see them through this period of uncertainty. This communication was witnessed by my coach who attended the meeting with me. There was only one area that the Board would like to see improved and that was staff management.

On 15 July 2005 I was approached by six staff members (50% of Workability’s staff), all of whom raised significant concerns about you and all cited specific examples where your behaviour had been inflexible, cold unfriendly and unhelpful. Staff were very frustrated at turnover, your management style, a lack of access to training, lack of acting on staff resignations and your criticism of staff turnover over non core business matters.