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Unfair dismissal payout despite performance warnings

Adam Zuchetti
Adam Zuchetti
23 July 2018 2 minute readShare
Alarm, siren, warning

A marketing analytics firm has been ordered to pay $70,000 in compensation to a former employee deemed to have been unfairly dismissed, despite the business claiming it issued numerous warnings about her performance.

Cathy (Yaqin) Chen had worked for TIOBE as a business analyst/IBM Unica solution specialist for five years, until she was dismissed with notice on 12 February this year. At the time, she had just completed a 14-month assignment with API (Priceline), one of TIOBE’s clients.

Despite acknowledging that TIOBE is a small business, the Fair Work Commission said that “it does not say that the dismissal of Ms Chen is in accordance with the Small Business Fair Dismissal Code”, and therefore pursued Ms Chen’s application for unfair dismissal.

The company’s managing director, Keira Czarnota, said that Ms Chen’s employment was terminated because API no longer wanted her working on its account because of a poor relationship, and said he could not get another engagement for her.

Mr Czarnota also told the commission that he had issued numerous warnings about work performance to Ms Chen in the six months since July 2017, and that she had ignored explicit instructions not to work on Sundays.

However, Ms Chen claimed she did not remember any meetings between Mr Czarnota and API related solely to her performance, and denied that she had been underperforming.

The commission sided with Ms Chen, declaring that, “There is no evidence that Ms Chen’s work performance was an ongoing concern either to TIOBE or API, the client she was working with”.

“It is true that issues in relation to Ms Chen and Mr Yang’s working relationship were raised in mid-2017, but there is no evidence that this was an issue after that point in time,” the commission said in handing down its verdict.

It noted that, while Mr Czarnota detailed further informal meetings with Ms Chen to discuss her performance, these meetings “were not supported with any record or detail”. As such, while the onus is on the business to provide proof of poor performance and attempts to address it, TIOBE could not do so.

“There is no evidence of any ongoing performance issues such that I could find that they provide a valid reason for Ms Chen’s dismissal,” said the commission.

As a result of the finding, TIOBE was ordered to pay Ms Chen $70,000 compensation for her lost earnings.

TIOBE has been contacted for comment.

The case highlights the importance of employers of all size to keep records of internal meetings and the steps taken during any performance management of workers.

In a bid to clarify this and other complexities around unfair dismissal legislation, the Fair Work Commission released a guidebook earlier this year. However, several My Business readers claimed the guidebook does little to quell confusion around unfair dismissal.

From July 2018, the maximum earnings at which an employee is able to claim unfair dismissal increased to $145,400, with compensation payouts now capped at a maximum of $72,700.

Unfair dismissal payout despite performance warnings
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Adam Zuchetti
Adam Zuchetti

Adam Zuchetti is the former editor of MyBusiness and a senior freelance media professional, specialising in the fields of business, personal finance and property. In 2020, he also embarked on his own business journey – inspired in part by the entrepreneurs and founders he had met through his journalistic work – with the launch of customised pet gifting and subscription service Paws N’ All.

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