Fedele v UCMS Solutions Pty Ltd [2009] FMCA 94 (27 February 2009)

Last Updated: 12 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FEDELE v UCMS SOLUTIONS PTY LTD

[2009] FMCA 94

INDUSTRIAL LAW – Alleged termination for temporary absence for illness originally – proscribed reason – whether poor performance sole reason for termination – reverse onus met – application dismissed.

Workplace Relations Act 1996, ss.659, 664 Workplace Regulations 2006, reg.2.12.08

General Motors Holden Pty Ltd v Bowling 12 ALR 605 Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191 Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 Hayward v Rohd Four Pty Ltd [2008] FMCA 1490 Laz v Downer Group Ltd (2000) 108 IR 214

Applicant:

FRANCESCO FEDELE

Respondent:

UCMS SOLUTIONS PTY LTD

File Number:

MLG 288 of 2008

Judgment of:

Turner FM

Hearing dates:

1 and 2 December 2008

Date of Last Submission:

2 December 2008

Delivered at:

Melbourne

Delivered on:

27 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr. M. Follett

Solicitors for the Applicant:

Max Legal

Counsel for the Respondent:

Mr. R. Millar

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 288 of 2008

FRANCESCO FEDELE

Applicant

And

UCMS SOLUTIONS PTY LTD

Respondent

REASONS FOR JUDGMENT

The application

1. The applicant (“Fedele”) alleges breaches of ss.659(2)(a) and (f) of the Workplace Relations Act 1996 (the “Act”) which provide relevantly:
   • “659 Employment not to be terminated on certain grounds
   • ...
     • (2) Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
       • (a) temporary absence from work because of illness or injury within the meaning of the regulations;
       • ...
       • (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
   • ...”
2. The meaning of “temporary absence for illness or injury” is defined in reg.2.12.8 of the Workplace Relations Regulations 2006 (the “Regulations”) as follows:
   • “Temporary absence because of illness or injury
   • (1) For paragraph 659 (2) (a) of the Act, an employee's absence from work because of illness or injury is a temporary absence if:
     • (a) the employee provides a medical certificate for the illness or injury within:
       • (i) 24 hours after the commencement of the absence; or
       • (ii) such longer period as is reasonable in the circumstances; or
   • (b) the employee:

(i) is required by the terms of an industrial instrument to:

(A) notify the employer of an absence from work; and
(B) substantiate the reason for the absence; and
(ii) complies with those terms; or
(c) the employee has provided the employer with a required document in accordance with section 254 of the Act.

(2) Subregulation (1) does not apply if:

(a) the employee's absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or
(b) the total absences of the employee, within a 12 month period, whether based on a single or separate illnesses or injuries, extend for more than 3 months, unless the employee is on paid sick leave for the duration of the absences.

(3) In this regulation:

medical certificate has the meaning given by section 240 of the Act.
Note Any finding that an absence is not a temporary absence for paragraph 659 (2) (a) of the Act is without prejudice to the rights of an employee whose employment has been terminated by an employer on the basis of such an absence:

• (a) to apply to the Commission for relief under subsection 643 (1), on the ground, or on grounds including the ground, that the termination was harsh, unjust or unreasonable; or
• (b) to apply under a law of a State on the ground that the termination was harsh, unjust or unreasonable (however described);
• in respect of the termination of that employment.”

3. The relevant words of s.659(2)(f) are “physical ...disability”.
4. Section 664 of the Act provides:
   • “Proof of issues in relation to alleged contravention of section 659
   • In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:

(a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but

(b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).”

5. It is therefore not necessary for the applicant to prove his termination of employment (the “termination”) was for a proscribed reason.
6. The applicant must however prove:
   1. That he was an employee of the Respondent;
   2. That he was or had been temporarily absent from work because of illness or injury; and
   100. That his employment was terminated by the respondent.
7. If the applicant proves the matters above, to escape liability the respondent must prove that the termination of employment was for a reason or reasons that do not include a proscribed reason.
   The respondent does not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.

The case for the applicant

8. The applicant deposed in his affidavit filed on 9 July 2008:
   • That he commenced employment with the Respondent on or about 1 August 2007 (para 1).
   • That Exhibit “FF1” is a copy of his contract of employment.
     That document originated as an offer of employment as the Business Development Manager, to commence on 1 August 2007 (clause 7). The last para of the document provides for the applicant to accept the terms and conditions by signing the offer. The document was signed by the applicant on 1 August 2007 and became his contract of employment of unspecified duration. There is nothing before the Court to indicate that the contract was terminated before 21 December 2007. Therefore at the time of the alleged events in this matter the applicant had a contract of employment with the respondent.
   • The applicant deposed that he was absent from work due to illness from 21 to 23 August 2007; from 23 to 26 August 2007 and from 23 to 25 September 2007 (para 3).
9. The applicant was absent from work to attend doctors appointments on 18, and 21 August 2007 (sic; 2007); 12, 15, 22 and 23 October 2007; 21 and 28 November 2007 and 13 December 2007.
10. Those absences did not extend for more than three months within a
    12 month period and therefore the absences are not excluded from being temporary (reg.2.12.8 (2)(b)).
11. The applicant deposes that his employment was terminated on
    19 December 2007. The applicant attached Exhibit “FF3” which is a letter on the respondent’s letterhead, signed by Mr Witthoft (“Witthoft”), Manager Director of UCMS Solutions, confirming that the applicant’s employment ceased “effective 21 December 2007”.
12. The applicant claims that his employment was terminated because of his temporary absence from work for illness or injury (s.659(2)(a)) or because of his physical disability (s.659(2)(f)).
13. Having raised those allegations, the burden is on the respondent to prove that the claimed factors were not the reason, or were not among the reasons, for termination.
14. The applicant gave evidence confirming his affidavit and was cross examined.

Relevant uncontested facts

15. Fedele was employed on 1 August 2007.
16. Fedele was unfit to attend work 21 to 26 August 2007; 22 September 2007 to 8 October 2007 (applicants outline of submissions).
17. Fedele returned to work 8 October 2007.
18. In mid October 2007 Witthoft proposed Fedele work less days per week.
19. Fedele proposed reducing his daily hours of work.
20. Fedele returned to work full time at the end of November 2007.
21. Fedele was away from work with back pain on 17 December 2007.
22. Fedele’s employment was terminated on 18 December 2007, effective 21 December 2007.

The case for UCMS

23. It was apparent to Witthoft in the first 2 months that Fedele was not performing his role as required (Court Transcript page 18, line 15 regarding the affidavit of Witthoft filed 8 August 2008).
24. Witthoft was alarmed that business opportunities were not actioned by Fedele. Witthoft expressed concern to Fedele that he had not followed up a number of business opportunities by email on 13 August 2007 (Annexure 3, Affidavit of Witthoft para 9).
25. Fedele contends that it was not part of his function to follow up those opportunities. However that does not affect the crucial fact that Witthoft was concerned about Fedele’s poor performance, before and after his absences for illness.
26. Fedele admits that UCMS had no knowledge of any illness when Witthoft expressed his concerns in August 2007 (Court Transcript page 20, line 35) and that any complaints about performance at that time could not have been affected by any illness or absence from work (Court Transcript page 20, line 39).
27. Fedele accepts that Witthoft had to remind Fedele to follow up on dealing with Optus (Court Transcript page 21, line 20).
28. Fedele was advised on 15 August 2007 that Optus wanted more information about UCMS offerings but Fedele did nothing to action a follow up (Affidavit of Witthoft para 10).
29. Witthoft reminded Fedele of his key tasks, as Fedele needed consistent pushing (Affidavit of Witthoft para 11).
30. Witthoft also, was frustrated by Fedele’s poor performance from
    8 October 2007 onwards.
31. Witthoft was concerned that Fedele had not prepared a proposal for GE Money (Affidavit of Witthoft para 12).
32. Witthoft requested a performance review with Fedele on Wednesday,
    17 October 2007. Fedele denies that his performance was discussed (Affidavit of Witthoft para 13).
33. Fedele failed to submit weekly reports as required (Affidavit of Witthoft para 14).
34. Witthoft sent a high importance request to Fedele that was not actioned, and resulted in a lost opportunity (Affidavit of Witthoft para 15).
35. Witthoft was aware that Fedele was seeking employment with a partner company which resulted in a breakdown of the relationship of UCMS with that company (Affidavit of Witthoft para 16).
36. Witthoft sent an email to Fedele that it was important that he meet his KPI’s (Key Performance Indicators) to the end of December 2007, and asked him to submit his sales plans that had not been provided. (Witthoft had asked for these “consistently” and they had not been provided, although Fedele said that Witthoft had deleted them in error). (Affidavit of Witthoft para 18).
37. Witthoft received a complaint on 2 November 2007 from a customer who was unhappy with the performance of the applicant, and his level of professionalism. Witthoft sent an email to the applicant stating he expected a greater degree of attention to detail from a professional, stating that his shortfalls were of “sales and opportunity management basics” (Affidavit of Witthoft para 19).
38. After a sales meeting on 10 December 2007, the Executive General Manager (Mr Henderson) of UCMS, expressed concern to Witthoft about the performance of Fedele (Affidavit of Witthoft para 20).
39. Witthoft read an email from Fedele about a client proposal, which showed that Fedele did not have the skills and knowledge to write an effective proposal. Witthoft redrafted the proposal (Affidavit of Witthoft para 21).
40. Witthoft sets out dates he met with Fedele or requested to meet Fedele to discuss his performance (Affidavit of Witthoft para 22).
    (In Witthoft’s email to Fedele on 2 November 2007 he recounts that he had attempted to create a sales reporting framework via constant phone calls, sales meeting requests and emails requesting sales updates but “To date I do not have a clear view of where and what your requirements are per opportunity. These are sales and opportunity management basics. I would expect from a professional a greater degree of attention to detail.” Clearly Witthoft was disappointed by Fedele’s poor performance, by 2 November 2007).
41. Witthoft states that after the dismissal of Fedele, UCMS received a call from a client expressing frustration with delays by Fedele (Affidavit of Witthoft para 22). (Although this could not be relied on by UCMS as a reason for dismissal it shows that Fedele’s performance was inadequate. It is not necessary for the company to prove that Fedele’s performance was inadequate. But such evidence shows that the claim by the company that Fedele was terminated for poor performance is credible and consistent with the facts).
42. Fedele told Witthoft on 17 October 2007 that his health was not 100% and that he could not perform his duties (Affidavit of Witthoft para 24). (His employment was not terminated at this point. It was only after increasing concern about Fedele’s poor performance that his employment was terminated. Again, this adds credibility to the company’s case).
43. Witthoft stated that (by mid December 2007) he was concerned that Fedele had failed to do this job, and that he did not consider that Fedele’s performance was sufficient (Affidavit of Witthoft para 34).
44. Witthoft explains that after he dismissed Fedele, he asked Fedele what reason he would give to customers and staff for leaving UCMS, and Fedele said he wanted to say that “he was leaving due to ill-health”. (Affidavit of Witthoft para 43). (This no way contradicts the company’s evidence that Fedele was dismissed for poor performance).
45. Illness mid August 2007 to September 2007 (Court Transcript page 5, line 32).
46. Returned to work 8 October 2007 (Court Transcript page 7, line 11).
47. Off work with back pain on 17 December 2007 (Court Transcript page 10, line 35).
48. On 17 October 2007 Witthoft asked if Fedele wanted to work fewer days per week (Court Transcript page 14, line 5). In response Fedele proposed working reduced hours each day (Court Transcript page 15, line 10). His hours were reduced but he was paid for 7.6 hours per day (Affidavit of Witthoft para 28).
49. Fedele returned to full time work from about the end of November 2007 (Court Transcript page 17, line 10).
50. Fedele’s employment terminated on 18 December 2007 (Court Transcript page 17, line 15).
51. Fedele states that he was absent for about 20 working days out of 100 (Court Transcript page 48, line 42).
52. Fedele denies that the list of meetings referred to by Witthoft were performance meetings – he describes them as normal sales meetings or meetings “to discuss business activities that I was across” (Witthoft however viewed them as performance meetings) (Court Transcript page 67, line 32).
53. Fedele refers to the alleged lost opportunity referred to by Witthoft in his affidavit (para 15) and said that he in fact found out that it was not an opportunity for UCMS. (Again this does not show that Witthoft did not have concerns about the performance of Fedele. Whether or not those concerns justified the dismissal is not the question. The question is “what was the reason for dismissal”). It is not necessary for UCMS to show that the concerns about the performance of Fedele were sufficient to dismiss Fedele (Court Transcript page 70, line 1).
54. Witthoft stated that Fedele being away on 17 December 2007 was not the “straw that broke the camel’s back.”(Court Transcript page 132, line 20).
55. Witthoft stated as to Fedele’s performance with UCMS, that “he did not demonstrate the professionalism that I’d expect from an experience sales campaigner”(Court Transcript page 137, line 16).
56. Fedele was absolutely failing to manage his business or accounts (Court Transcript page 139, line 35).
57. Question: Do you recall Bonnici saying “we are terminating you because you are sick and not performing?” Answer, Witthoft, “...absolutely not. That was not said”. (Court Transcript page 141, line 16).
58. Question: Do you recall say that “his illness was impacting on the business?” Answer, Witthoft: “No never said that.” (Court Transcript page 141, line 19).
59. Witthoft “in fact the applicant apologised to me for his lack of performance” (Court Transcript page 144, line 20).
60. There are three primary arguments for the applicant (Court’s emphasis).
61. The first that Ms Pitt (“Pitt”) the Chief Executive of UCMS was the person who made the decision to terminate, or could have prevented Witthoft from terminating the employment of the applicant (Court’s emphasis).
62. Mr Follett, for Fedele, referred to the decision in General Motors Holden Pty Ltd v Bowling 12 ALR 605 and alleged that Pitt made the decision to terminate, and as she was no called to give evidence, there is nothing before the Court to establish that the applicant’s absence was not part of the reason for his termination.
63. However the Court accepts the submission by Mr Millar for UCMS, that Witthoft was the person who made the decision to terminate, in consultation with Ms Bonnici (“Bonnici”). The fact that Witthoft then discussed the decision with Pitt and said that Pitt could have stopped the termination, does not mean that Pitt made the decision to terminate.
64. As stated in Bowling (page 68) it depends on who makes the decision to terminate. Here clearly Witthoft was responsible for making the decision, and he made it after consulting Bonnici.
65. Witthoft and Bonnici gave evidence that the applicant’s absence or illness were not factors in deciding to terminate. They corroborate each other in saying that they did not agree with the applicant who alleges that he asked whether he was being terminated because he was sick. The Court accepts that evidence for UCMS. It is supported by the concern of UCMS, especially after the applicant returned to work on 8 October 2007 about his poor performance. He was absent again on only one day after that date; his poor performance after 8 October 2007 could not have been a result of his absence.
66. The Court accepts that the decision to terminate was made by Witthoft, who is the Managing Director of the respondent, in consultation with Ms Bonnici, whose duties include human resources. The fact the decision to terminate was then discussed with Pitt, does not mean that Pitt made the decision. The decision made by Witthoft, and Pitt did not interfere with the decision.
67. Both Witthoft and Bonnici gave evidence that the sole reason for termination, was the applicant’s poor performance.
68. Bonnici was an impressively frank and direct witness. She is a HR professional and the Court does not accept the criticism of her for throwing away her handwritten notes, taken at the meeting on
    18 December 2007, after she entered them into her computer. She gave evidence that this is her standard procedure. That evidence is credible.
69. The Court accepts that she took notes during the meeting and copied them onto her computer. Exactly when she did this is of little relevance, as the notes were taken contemporaneously with the meeting. Her computer notes show that nothing was said in the meeting about termination for reason of absence for illness.
70. The Court accepts her evidence that those notes are an accurate copy of the original. The applicant says that he left the meeting and went to his desk and wrote notes of (his recollection) of what was said at the meeting. The Court prefers the notes taken by Bonnici as they were made from notes taken at the meeting and do not rely on recollection. They are consistent with the evidence by Witthoft.
71. Witthoft impressed the Court as a thorough and responsive witness.
    He responded to questions in a direct manner. He seemed alarmed by suggestions that he had decided to terminate the applicant’s employment because of his absence due to illness.
72. The Court does not accept the evidence by the applicant that Bonnici and Witthoft agreed at the meeting on 18 December 2007 that he was being dismissed because he had been sick.
73. The Court accepts the evidence of both Witthoft and Bonnici that at the meeting they did not answer “yes” when it was allegedly put to them by the applicant that he was being terminated because he was sick.
    Their evidence is corroborative of each other, and contradicts the evidence of the applicant. The Court accepts the evidence of Witthoft and Bonnici. There is nothing in the material or evidence of others to support the applicant’s contention. The Court finds this to be a fabrication, to suit the applicant’s case, and his need to tell staff and clients that he was leaving due to ill health.
74. The fact that the applicant was offered the opportunity to return to work for the respondent at a later stage in a different and less demanding position, does not show that the applicant was not dismissed for poor performance. Indeed the fact that he was offered a less demanding position is consisted with him not performing his then current role adequately.
75. The respondent found the applicant to be unable to perform the role he had been employed to perform on a full time basis. In response, the respondent allowed him to return on a part time basis and reduced his KPI’s (Key Performance Indicators) without reducing his pay.
    That shows that the respondent was willing to change the applicant’s employment to better suit his abilities. That was what was offered when the respondent said that “The applicant could return as an account manager if he felt up to it”.
76. The applicant alleges that the drop in his performance was due to his absence, and therefore his absence was the reason for his termination. That assertion is inconsistent with the fact that the applicant returned to work full time on 8 October 2007 and was absent for only one day after that. The instances of his poor performance related to events before his absences and after his return to work. Witthoft’s concern about the applicant’s performance had existed for some time.
77. The other two arguments for the applicant are set out later in this decision (Court’s emphasis).
78. The Court accepts that the respondent was unhappy with the performance of the applicant before he was absent from work and after he returned to work.
79. The concerns about performance arose from things that the applicant failed to do while at work. The concerns were not about things that were not done because he was away from work. The applicant accepts that Annexure “RW13” to the affidavit of Robert Witthoft filed on
    8 August 2008 expressed concern about the applicant’s professional competence. The email is dated 2 November 2007. Witthoft later lists 8 occasions between 17 October 2007 and 18 December 2007 when he met the applicant, or requested that he meet the applicant, about his performance
80. The evidence about why the company chose to pay Fedele 2 months notice under clause 40, instead of 1 month under clause 7, is that Bonnici said it was decided to give Fedele 2 months notice because it was just before Christmas (Court Transcript page 106, line 16).
    This does not show that Fedele was not terminated because of poor performance. Termination for poor performance could have been done pursuant to clause 7 or 40.
81. The illness that caused absences in August and September 2007 was not present on 18 December 2007. There is nothing to connect Fedele’s back pain with his termination. The evidence of Witthoft and Bonnici is that the poor performance of Fedele was the sole factor.
    The Court is not required to view that evidence with scepticism or suspicion Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191 - the company’s witnesses corroborate each other.
82. It is illuminating to note that Fedele alleges that at the meeting on
    18 December 2007 Bonnici said “We are terminating your contract and not going beyond your probationary period because you have been sick and not performing”, but there is no mention of that comment having been made in his affidavit in support of his application or in his claim. That statement, if made, would have been central to the case. The Court does not accept Fedele’s explanation, as to why it is not mentioned in his affidavit, that he “left it to his legal counsel to provide what information they thought was relevant to the case” (Court Transcript page 47, line 15). It beggars belief that it if the statement was made, and was communicated to his legal representatives, that it would be left out of his affidavit. Further, in his statement of claim at para 14 Fedele alleges a very different conversation that Witthoft said to him “Your illness has been impacting on our business”, to which Fedele alleges he said “So you are dismissing me because I have been sick?” and that both Witthoft and Bonnici answered “yes”.
83. On one hand Fedele says that Bonnici stated that we are not going beyond your probationary period because of your illness and performance, and on the other hand Fedele says that he raised the question of whether his employment was being terminated because he had been sick.
84. Both Witthoft and Bonnici deny that either of them said that Fedele’s termination of employment related to his illness. The notes of Bonnici (Annexure 8 to her affidavit sworn on 6 August 2008) record that she stated that the termination was based on lack of performance, and inability to perform the sales role and that it was not a consequence of his illness.
85. Fedele argued that he was concerned to save face by making sure that people....understood that the termination was not performance based – but was because of illness (Court Transcript page 56, line 13). It is instructive to read that Fedele did not want to tell his clients that he was being dismissed for “lack of performance” (Court Transcript page 52, line 25). The Court accepts the evidence of Witthoft and Bonnici. It is consistent with the evidence about concerns with the performance of Fedele, before and after his absence for illness. As the evidence is that there were those concerns, the Court must ask itself why with genuine ongoing concerns as to performance, UCMS would opt to include illness as a reason for dismissal? Bonnici is the Human Resources Manager. Such a course would not make sense.
86. The applicant questions (Court Transcript page 51, line 21) why, if he wasn’t performing, UCMS would raise the opportunity for him to return to work for it. The evidence is that the offer to return was in a different and part time contract role as an account manager (Court Transcript page 51, line 5), which was different work (Court Transcript page 106, line 35).

Submissions for the respondent

87. The Court accepts the following submissions for the Respondent:
    1. “This is not a complaint about the fairness of the termination of employment” Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191. Federal Magistrate O’Sullivan at para 142 referring to Sallehpour v Frontier Software Pty Ltd [2005] FCA 247 per Justice Marshall at para [38] that:
       • “The proceeding before the Court does not call upon the Court to determine whether Mr Sallehpour was unfairly dismissed. The question for the Court is whether the dismissal occurred for reasons which included a prohibited reason under s.170CK.”
    2. “The question here is whether the applicant was dismissed for reasons which included either his temporary absence for illness or injury or a disability.”

The Court is satisfied that Fedele was temporarily absent from work by reason of illness or injury. The Court accepts that Fedele was dismissed by UCMS. The Court does not accept that his absences for illness or injury, back pain, or disability were reasons for, or part of the reason for his dismissal. The sole reason for his dismissal was his failure to perform his role to the satisfaction of UCMS.
The reverse onus has been discharged on the balance of probabilities.

The Court has convincing evidence from Witthoft, who made the decision, after discussions with Bonnici and Pitt.
The Court has equally convincing evidence from Bonnici.
It was important to Fedele that he be able to advise clients and staff that he left because of illness and not because of poor performance. Affidavit of Witthoft para 43.

3. “The reverse onus of proof does not require the Court to view the evidence of the Court to view the evidence of the respondent with scepticism or suspicion. Randall ante at [109].”

The evidence of Witthoft and Bonnici was tested in able cross examination, but the Court accepts their evidence that poor performance was the sole reason for his dismissal. That poor performance did not arise from Fedele’s absence by reason of illness, but was apparent before and after his absence. There is no reason to reject their evidence, whereas Fedele had a need to show clients and staff that he left because of illness.

4. “That the determination of the proceeding requires the following:
   1. The applicant proving the fact of employment and its termination;
   2. The applicant proving such of the facts as he intends to rely upon to invoke one or more of the provisions in ss.659(2) and 793(1) of the Act;
   100. The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment;
   4. In discharging the onus the respondents do have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.”

Per Federal Magistrate Wilson in Hayward v Rohd Four Pty Ltd [2008] FMCA 1490 at [34] after adopting passages of Justice Moore in Laz v Downer Group Ltd (2000) 108 IR 214 at 255 para [26].

5. “It does not matter if officers of UCMS got in the wrong in assessing Fedele’s performance.”

Witthoft gave evidence about specific instances of poor performance and Fedele disputes much of it. Fedele says that many of the meetings called were not about his performance, and that some of the business opportunities he failed to secure were not within his area of responsibility. Such evidence even if accepted, does not change the fact the UCMS has established that it has serious concerns about the performance of Fedele. Even if UCMS was wrong in its assessment, that does not mean that Fedele’s claim should succeed.

6. “The claim of termination because of a disability requires Fedele to establish that he was dismissed, not because he was absent from work, but because of the disability he was suffering. A medical practitioner certified that Fedele was fit to return to work on 8 October 2007, which meant that he did not have the urinary tract infection at that time, and there is nothing to suggest dismissal because of back pain.”

The Court refers to its acceptance of the evidence of Witthoft and Bonnici as to why Fedele was dismissed.
An alleged disability played no part in that decision.
The evidence is accepted that poor performance was the sole reason.

7. “Little turns on when the notes of the meeting on
   18 December 2007 were made.”

The question is “whether UCMS used Fedele’s absence, illness or disability as a reason for his dismissal?”
The Court accepts the evidence that poor performance was the sole reason.

8. “There is no linkeage between the temporary absence for illness and the poor performance.”

The Court accepts that the concerns about poor performance arose before and after the absences. They are not connected with, and did not arise from the absence.

9. “The law does not provide immunity from termination on performance grounds just because an employee has been away from work because of an illness, injury or disability”.

Submissions for the applicant

88. The Court refers to the following submissions for the applicant:
    1. “The employer doesn’t need a legitimate performance reason to terminate employment...and is entitled to get it wrong.”
    2. “Even if there was legitimate performance issue, the employer must prove that the sole operative reason was unrelated to the alleged reason.”
    3. “The UTI, epididymitis and back pain are ‘physical disabilities’ for the purposes of s.659 (2) (f) of the Workplace Relations Act.”

The Court accepts that the sole reason for dismissal was poor performance unrelated to those disabilities. It does not matter that there is no evidence from UCMS specifically denying dismissal because of illness or injury, as the evidence is that poor performance was the sole reason. There is nothing to connect the poor performance with the absence, illness, injury or disability.

4. “The Court rejects the submission that the period of illness (UTI) was right up until the time of termination”, as the medical practitioner certified Fedele fit for work on
   8 October 2007.
5. The Court accepts the submission that the decision in General Motors Holden Pty Ltd v Bowling 12 ALR 605 at 618, requires that those who made “the effective decision to terminate”, “must give evidence as to the reason for terminating.” At page 618, line 40 of that decision the Court sets out evidence in that case that “Your understanding is that it is these two men (in Melbourne) who determined the dismissal of Mr Bowling...?” (Court’s emphasis).

The Court stated at page 619, line 7 that “In light of the evidence it is impossible to treat the directors in Melbourne as having no more than a power to veto a decision arrived in at South Australia.”

The evidence here is that Witthoft made the decision to terminate Fedele after discussing the situation with
Ms Bonnici, and Pitt could have prevented it from being implemented she had no more than a power of veto over it. The decision however was made by Witthoft, and he gave evidence that performance was the only consideration in his mind.

6. It is submitted for the applicant that there are three principle arguments:
   • First that UCMS hasn’t discharged its onus because there is no evidence of what was in Pitt’s mind.
   • Secondly, there are too many questions left unanswered to conclude that Fedele lied in the witness box, and that the Court cannot be satisfied on the balance of probabilities that Witthoft and Bonnici are correct in what they say.
   • Thirdly, that the illnesses or absences caused or contributed to the inability to perform, which shows them to be a factor leading to dismissal.
7. The applicant submits “that it is not credible that Fedele would be a poor performer at UCMS when he had performed similar roles in the industry for the past 15 years.”

The Court rejects that contention as Fedele was employed in a position with a new employer which obviously differed from his past positions and environment. In any event the evidence is that his performance was not acceptable.

8. The applicant queries why a bad performer would be offered a future role with the company. The role offered was a part time contract role in a different position with different functions.
9. The applicant queries why UCMS would state that the “the termination is not about illness, this is about poor performance.” If that statement was made and Witthoft and Bonnici deny that it was, it does not prove that the termination was for reason of illness.
10. The applicant queries why he was paid 2 months notice. The evidence states that the extra was paid because the termination was shortly before Christmas.
11. The applicant queries how UCMS could make a legitimate assessment of his performance over such a short period.

The question is not “how it was done” or “whether it was legitimate”. The question is “what Witthoft relied on in reaching his decision to dismiss Fedele?”

xxi) The applicant queries why UCMS proceeded on the basis that Fedele would continue to be employed into 2008, if it had concerns about his performance. The evidence is that the decision was not made finally until the meeting on
18 December 2007.

13. The applicant submits that his evidence showed be preferred over Witthoft and Bonnici including “because of demeanour”. The Court was impressed by the demeanour of Witthoft and Bonnici, and accepts their evidence. Fedele wants customers and staff to think that he left because of ill health.
14. The applicant claims various forms of relief. They have not been covered in oral submissions. Given the decision in this matter, they do not arise for consideration.

89. The first principle argument about no evidence of the state of mind of Pitt has been rejected.
90. The second principle argument that there are too many questions left unanswered to conclude that Fedele lied in the witness box, and it cannot be accepted on the balance of probabilities that Wittfhoft and Bonnici are correct, is rejected. Fedele wants staff and customers to think that he left because of ill health. The Court accepts both Witthoft and Bonnici as truthful witnesses.
91. The third principle argument is that Fedele’s absences contributed to his inability to perform which shows that to be a factor leading to his dismissal. This argument is rejected for reasons stated above. Concerns as to performance arose before and after Fedele was absent; they do not relate to his absence. There is evidence from Witthoft that Fedele’s performance was not judged on figures covering his periods of absence.
92. The application is dismissed.

I certify that the preceding 92Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !ninety-twoninety-two (92) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Kirra Vickerman

Date: 27 February 2009