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T12569

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

David Robert Mounster
(T12569 of 2006)

and

Minister Administering the State Service Act 2000
(Department of Primary Industries, Water and Environment)

 

COMMISSIONER JP McALPINE

HOBART, 31 May 2006

Industrial dispute - termination of employment - application dismissed

REASONS FOR DECISION

[1] On 22 February 2006, David Robert Mounster (the applicant), applied to the President, pursuant to s.29 of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of a dispute with the Minister Administering the State Service Act 2000 (the Minister) (Department of Primary Industries, Water and Environment) arising out of his termination of employment.

[2] The application was listed for hearing (conciliation conference) at the Commonwealth Law Courts, 39-41 Davey Street, Hobart on Wednesday, 8 March 2006 11.00 am. However, this was subsequently changed to Tuesday, 28 March 2006 at 9.30 am.

[3] Appearances: the applicant for himself; Ms K Steenhuis with Mr M O'Leary entered an appearance on behalf of the Minister and the Department of Primary Industries, Water and Environment.

[4] The hearing (conciliation conference) commenced with preliminary submissions, followed by the parties entering into private discussions in an attempt to settle the dispute. When the hearing reconvened, the parties informed the Commission that their negotiations had not settled the dispute. The hearing was adjourned sine die.

[5] Commissioner McAlpine convened a further hearing on Tuesday, 2 May 2006 at 9.30 am.

[6] The applicant applied for and was appointed to the role of hydrologist with the Department of Primary Industries, Water and Environment (the Department) on the 17 August 2005. He was employed on six months probation, during which time his conduct and work performance was to be assessed.

[7] Two months into the probation, the applicant was advised by his immediate supervisor and his manager of his lack of progress in the role. After the third month of probation a mid-term report was compiled and the applicant was formally counselled with regard to his below acceptable level of performance.

[8] At a meeting on 2 February 2006 the applicant was provided with the final probationary report, which recommended his employment be terminated. A further meeting was held on 6 February 2006, to afford the applicant a further opportunity to make comment on the situation.

[9] The applicant's employment was formally terminated on 22 February 2006.

[10] No sworn evidence was educed.

[11] The applicant relied on his own statement and comments from two support people, Mr S Hodgman and Ms SY Ku.

[12] Ms Steenhuis (for the Minister and the Department) relied on written statements from those directly involved with the matter.

BACKGROUND

[13] The applicant asserted he was unfairly dismissed from his position as a Hydrologist at the completion of his probationary period. He gave twelve grounds for his assertion:

(1) He came with appropriate skills for the position.

[14] The applicant asserted he had the required skills to do the work. He also asserted that in his previous role in Queensland he had worked under limited supervision.

[15] Ms Steenhuis agreed. She asserted that the information contained in the applicant's Curriculum Vitae, his detailed application, the Department's selection process and confirmation from his referees, indeed, reassured them the applicant should have been quite capable of doing the work required.

[16] The applicant was engaged at Professional Employee - Level 1, sixth year of the Professional Employees Award, which equated to recognition of six years professional experience.

[17] The applicant confirmed the role he carried out was, indeed, the role advertised and for which he applied. He also confirmed he was fully aware of the requirements of the role.

(2) He asserted the induction process was mismanaged.

[18] The applicant asserted his induction process was mismanaged. He provided no evidence to support this, but asserted his negative opinion of the training and his negative opinion of Dr Gurung's supervisory skills.

[19] Dr Martin Read, at point 3 of his statement, stated:

"This is standard training for hydrologists and given David's background should have been sufficient for him to undertake the majority of tasks (both simple and complex) within the position of hydrologist."

[20] Dr Gurung, at point 2 of his statement, stated:

"The level of training provided to him was the same as I had received ... if there were any specific issues with regard to supervision of his probation he could approach Martin (Read) directly and discuss them with him."

(3) Management expectations were too high based on misinformation.

[21] The applicant asserted that the Department's expectations were too high. The applicant further argued that the Department erred in assuming he had nine-years' experience as a functioning hydrologist.

[22] At paragraph 57 of transcript, Ms Steenhuis clearly stated:

"In his application David stated that since gaining his degree he had worked for nine years in various organisations as a hydrologist or in water management planning roles."

[23] It follows from the submission of Ms Steenhuis, that the Department recognised the applicant's actual range of experience.

[24] However, at paragraph 146 of transcript, with informed knowledge the requirements of the role, the applicant asserted:

"I came to the position with appropriate skills. I possess the skills and experience in hydrology."

(4) On-the-job training was insufficient to assist him to adapt to the Department's context.

[25] The applicant asserted the training he was given was insufficient. He also asserted the manner by which training was provided was inappropriate for his mode of learning.

[26] Ms Steenhuis rejected the applicant's assertions. She claimed a combination of working closely with his supervisor and the provision of a wide range of training were afforded to the applicant. It was also asserted that as late as 14 December 2005 the applicant requested further training. The supervisor sought guidance from an external training consultant as to the most appropriate way to progress the applicant's competence in the role.

[27] The statement from Mr Bryce Graham asserted he had assessed the applicant's training needs for a particular aspect of his work and came to the conclusion the appropriate training had already been given to him. In concluding his statement he advised that further study of the training references already supplied might be of benefit to the applicant. He offered no further training in that particular area.

(5) Management did not provide sufficient mentorship to combat his lack of task readiness.

[28] At paragraph 152 of transcript, the applicant claimed he required:

"... hands-on mentorship that was required to (sic) comprehension of the complex tools required to perform even basic hydrology tasks."

[29] Ms Steenhuis asserted there was sufficient one-on-one supervision to afford the applicant the coaching needed.

[30] At point 3 of his statement, Dr S Gurung, the applicant's supervisor, states:

"I was there to assist David whenever he required assistance as well as assigning him specific jobs that related to "in house" training ... as well as giving him sufficient time to practice usage of hydrological analysis tools ..."

(6) A culture of discouraging questions retarded the applicant's skills development.

[31] The applicant asserted Dr Gurung's behaviour was such as to discourage his asking questions. At paragraph 155 of transcript, he said:

"... he continued to direct me to reading texts and finding answers for myself and responded in a hostile manner when I tried asking questions."

[32] And further at paragraph 156, he continued:

"... often when I asked a question, instead of receiving the necessary assistance from Mr Gurung, I would receive a rebuke ..."

[33] However, at paragraph 161 he stated:

"He (Dr Gurung) also said that he liked me because I was someone he could work with."

[34] Ms Steenhuis refuted the applicant's assertions. She drew the Commission's attention to Dr Gurung's statement in which he asserted how he saw his role as "mentor" to the applicant.

(7) He had an expectation that he would be employed for more than six months, by dint of the probation period being extended.

[35] The applicant asserted he had been given verbal inferences from his supervisor that the probation period could be extended. There is no evidence to support this.

[36] Ms Steenhuis denied the supervisor gave the applicant any expectation of an extension to his probation. She further asserted that there was no mechanism in Departmental policy or procedure by which an extension to probation beyond six months could be considered.

[37] The applicant asserted the prospect of an extension to his probation was inferred and not ongoing employment as a hydrologist.

(8) He had an expectation of ongoing work because training was frequently spoken about.

[38] The applicant claimed that because more training was being considered for him, even up to the termination of his employment, he had an expectation of ongoing employment.

[39] Ms Steenhuis rejected the conclusions drawn by the applicant. The ongoing search for appropriate training, she asserted, was to provide the applicant with the best opportunity to successfully complete his probation.

(9) The termination process was mismanaged.

[40] The applicant asserted the termination process was rushed and that he did not get enough time to respond adequately. He referred to the meeting of 2 February 2006, at which he claims he was asked "to respond immediately to this unexpected decision". A subsequent meeting was arranged for 6 February 2006, at which the applicant had to opportunity to mount a case against termination.

[41] At paragraph 162 of transcript, the applicant argued:

"The meeting held on Monday, 6 February was only two working days after the first (meeting)."

[42] Ms Steenhuis outlined the process followed by the Department. She asserted there was an informal meeting with the applicant after two months into his employment, to alert him to the fact he was not performing adequately. The applicant's lack of performance was elaborated upon in the three-month report. The intent of the meeting on the 2 February 2006 was discussed with the applicant by his supervisor beforehand.

(10) The senior manager did not act on information from the direct supervisor.

[43] The applicant asserted Dr M Read did not act on information received from Dr Gurung, however he provided no concrete evidence to support this view. He did allude to a private conversation between Dr Gurung and himself where, he alleged, Dr Gurung told him he did not agree with the contents of the final report. In his statement Dr Gurung categorically denied the allegation. The compilation of the various reports and discussions on training between Dr Read and Dr Gurung appear to contradict this claim. Dr Read in his statement asserted he and Dr Gurung had held frequent discussions regarding the applicant's performance.

(11) Insufficient time to act on the three-month report.

[44] At paragraph 157 of transcript, the applicant asserted he had:

"... only approximately seven working weeks to learn complex software and procedures before the notice of termination arrived."

[45] Ms Steenhuis argued the applicant was progressively counselled regarding his lack of performance from very early on in his employment.

(12) The authorship, content and accuracy of the six-month probation report were in doubt.

[46] The applicant asserted that the copy of the six-month report presented to him on 2 February 2006 did not have his supervisor's signature and, as such, he challenged its authorship and accuracy. The applicant also alleged Dr Gurung had confided in him that he, Dr Gurung, did not agree with the contents of the report.

[47] At point 12 of his statement, Dr Gurung denied this allegation.

[48] The applicant asserted that a meeting between Dr Gurung and Dr Read, after the meeting on 2 February 2006, confirmed that Dr Gurung was not the author of the entire report.

[49] Ms Steenhuis, at paragraph 219 of transcript, stated:

"... the accuracy and the authorship of the six month probation report is not in question. Given the very serious nature of what was being recommended it was entirely appropriate that Shiv sought the views and comments and appropriately from his and David's manager which is Martin."

FINDINGS

[50] For dismissal to be unfair the Act is clear on the criteria this Commission must consider:

"30. Criteria applying to disputes relating to termination of employment

(3) The employment of an employee who has a reasonable expectation of continuing employment must not be terminated unless there is a valid reason for the termination connected with -

(a) the capacity, performance or conduct of the employee"

[51] The applicant was on a fixed-term probation period of six months. It is clear from the letter of appointment that continuing employment was to be based on his performance and conduct throughout the probation period. The applicant's capacity to perform the required work and his overall performance was deemed to be unacceptable by his immediate supervisor and their mutual manager.

[52] Section 30, further states:

"(5) Where an employer terminates an employee's employment, the onus of proving the existence of a valid reason for the termination rests with the employer."

[53] Ms Steenhuis cited the applicant's inability to perform required tasks after six months of training and coaching as being the reason for terminating his employment at the end of the probation period.

[54] Section 30, also states:

"(6) Where an applicant alleges that his or her employment has been unfairly terminated, the onus of proving that the termination was unfair rests with the applicant."

[55] The applicant was made aware of his unacceptable performance within the first two months of employment. He was also aware that an adverse three-month probation report would be written regarding his performance. He was counselled again, using the three-month report as a base. He was well aware his employment was in jeopardy.

[56] At the six-month review the applicant was informed his employment would not be continued. He was given the opportunity to respond at that meeting and again four days later. His response was not accepted. Throughout the period of employment the applicant had one-on-one supervision, as well as training tailored to his apparent needs. Indeed, up to the time of his termination training was still being discussed. There can be no doubt the applicant was fully aware of the precarious tenure of his employment for the majority of the six-month probation period.

[57] The applicant confirmed he was fully aware of the requirements of the role of hydrologist for which he had applied. He also confirmed that the role he was given to undertake was that which was advertised.

[58] The applicant clearly asserted he had both the qualifications and the experience to perform in the role of hydrologist. His application for the job espouses his expertise, experience and ability in great detail.

[59] Ms Steenhuis confirm that his references had been checked and had received a positive response as to whether the referees thought the applicant could handle the job. It follows the Department would have reasonably expected the applicant to be capable of performing the role after six months of training and mentoring.

[60] The applicant blamed his supervisor and manager for his inability to perform the required work. He blamed inadequate and inappropriate training and supervision. Yet his supervisor, who is a senior hydrologist and an external training consultant, attempted to tailor training to suit him. He blamed the review process for inadequate time to react to an unfavourable report to develop the skills required. Yet he was aware his performance was lacking from the second month of employment. He blamed misinformation for the Department having too high an expectation of him. Yet it was he who applied for the role; it was he who prepared both his Curriculum Vitae and the job application, which purported to show his expertise and ability.

[61] At no stage during the proceedings did the applicant appear to accept that there was an onus on him to gain the skills required for the role of hydrologist.

[62] The applicant claimed he had an expectation of ongoing employment by way of an extension of his probation period, and this was reinforced by discussions on training until he was dismissed. It is clear in his letter of appointment the probation was for six months. It was made clear by the Department there is no facility to extend beyond six months, even if that had been the Department's desire. The continual discussion on training, as stated by Ms Steenhuis, was an attempt by the Department to give the applicant the best opportunity to be successful.

[63] Section 30 of the Act states:

"(7) The employment of an employee must not be terminated for reasons related to the employee's conduct, capacity or performance unless he or she is informed of those reasons and given an opportunity to respond to them ..."

[64] It is clear the applicant had every opportunity to respond to criticism of his performance, as well as the opportunity to reach the level of competence required.

[65] The applicant contradicted himself on numerous occasions. He asserted he was well qualified to do the work, but complained it was too complex and that the Department had unreasonable expectations of him. He asserted his supervisor was at fault because of his aversion to answering questions and his abrupt manner, yet this same supervisor is alleged to have confided in the applicant that he did not support his termination and that he liked working with him.

[66] The testimony from the applicant's two support persons was in the main hearsay and as such I have given it such weight.

[67] In matters such as this, process is all-important. The Department followed a very structured procedure throughout the course of the probation period. It followed it's own policy. It kept clear accounts of proceedings and, in my view, went beyond that which would be expected of an employer in support of a qualified, competent probationer. The Department actively pursued its part of the training and mentoring aspect of the probation period. I cannot say the same for the applicant.

[68] In my view, the applicant was treated fairly and given more than reasonable opportunity to meet the Department's requirements. The applicant was not unfairly dismissed.

[69] The application is dismissed, and I so find.

 

James P McAlpine
COMMISSIONER

Appearances:
David Robert Mounster for himself
Ms K Steenhuis with Mr M O'Leary on behalf of the Minister Administering the State Service Act 2000 (Department of Primary Industries, Water and Environment)

Date and place of hearing:
2006
March 28
May 2
Hobart