16 Apr 2012

Unfair dismissal: higher standards and performance managing

by Joe Catanzariti

Two recent decisions in Fair Work Australia shed light on the tribunal's approach to unfair dismissal cases.

In Ropafadzo Tokoda v Westpac Banking Corporation [2012] FWA 1262, FWA upheld Westpac's dismissal of a customer service employee who produced a falsified medical certificate, suggesting that banks are entitled to hold their employees to higher standards of honesty and integrity.

In Frank Moretti v H J Heinz Company Australia Ltd [2012] FWA 1016, FWA ordered the reinstatement of a sales manager who was dismissed for refusing to be performance managed because he feared it was designed to prompt his exit from the company.

Ropafadzo Tokoda v Westpac

Ms Ropafadzo Tokoda (the applicant) was employed by Westpac Banking Corporation (the respondent) from 2 August 2010 until 26 September 2011 and performed the duties of a customer service officer at the bank's Woden branch.

On Monday 12 September 2011, Tokoda informed her assistant bank manager, Ms Mouat-Markham, that she was unwell and unable to attend work that day. The following day, Tokoda informed Mouat-Markham that she was still unwell and was unlikely to return to work until the Thursday. On 14 September, Tokoda delivered to the bank premises a document purporting to be a medical certificate dated 12 September indicating that she would be unable to work for the week 12 September to 16 September.

Since the document did not have the doctor's provider number on it, Mouat-Markham checked with the doctor's surgery to ensure that it was a valid medical certificate. The doctor named on the document provided Mouat-Markham with a document stating that the medical certificate had not been provided by him and that he had not seen Tokoda at his surgery since 2009.

After an investigation, Tokoda's employment was terminated with effect from 26 September 2011.


The applicant's case was that the termination of her employment was unfair as she had provided the falsified medical certificate to her employer only because she had no choice, as she was unwell but unable to afford to visit a doctor. She also claimed that she had been bullied by the two branch managers and did not feel able to approach them to explain her predicament. She suggested that the investigation into her bullying complaint had been deficient.

In response, the bank submitted that there was a valid reason for the termination and that the applicant had been afforded procedural fairness. It was the respondent's case that the applicant's employment was only terminated because she provided to the respondent a fraudulent medical certificate and as such, the respondent had lost the trust in the applicant necessary for her continued employment in the banking industry.


Commissioner Deegan reached the view that there was a valid reason for the termination of the applicant's employment, and as such, the termination was not harsh, unjust or unreasonable. The Commissioner rejected the applicant's evidence that falsifying the medical certificate was an act of desperation or that she was forced to falsify the certificate because she was being treated unfairly by her branch managers.

The Commissioner did not find the applicant's evidence concerning the alleged bullying convincing, and suggested that these complaints were not supported by the evidence and appeared to have been raised as a response to the investigation into the provision of the falsified medical certificate.

In determining the matter, the Commissioner had special regard to the fact that the applicant was employed in a bank, a position which the Commissioner felt requires the highest standard of honesty and integrity. The Commissioner was satisfied that the respondent had no choice but to terminate the applicant's employment in light of her dishonest conduct in falsifying the certificate and then in denying that she had done so.

Frank Moretti v H J Heinz

Mr Frank Moretti was employed by H J Heinz Company Australia Ltd from 1983 until his dismissal in August 2011. In 1990 Moretti was appointed to the position of the Western Australian field sales manager, and he remained in this position until his dismissal. Moretti reported to the national field sales manager.

On 17 May 2011, Moretti underwent a performance review. In about May 2011, he reported allegations about improper conduct regarding one of his subordinates to his line manager, and was told that the matter would be dealt with by head office.

On 9 June 2011, the general manager retail sales, Scott Patterson, met with Moretti. Different accounts were offered about what was said at the meeting. Heinz asserted that Moretti was given feedback about performance concerns at the meeting and advised that HR would be consulted about managing these concerns.

Conversely, Moretti asserted Patterson had stated that Heinz did not have a job for Moretti and that he should resign. No evidence from the meeting was provided.

Following a series of meetings and communications between Moretti and various managers in July and August 2011, Moretti was ultimately dismissed.


Moretti argued that Patterson laid the foundation for his dismissal when he suggested his resignation on 9 June 2011. He asserted that Patterson said he would return in two weeks with somebody from HR to deal with him and that he would be "performance managed" out of the business.

Moretti suggested that the discussions and correspondence between 9 June 2011 and the date of dismissal were designed by Heinz to lead to his dismissal. He said that during the course of these discussions he frequently requested identification of instances or areas where he was not performing in accordance with his employment contract. He believed that there were no issues with his performance and the discussions and outline of expectations were designed to lead to his dismissal.

In response, Heinz argued that the dismissal related solely to Moretti's repeated refusal to comply with the request to discuss both the performance expectations and his performance in relation to those expectations. Heinz suggested there was a performance review in May 2011 by Moretti's former manager, feedback from Moretti's team and concern from senior business leaders about his failure to address performance issues within his team.

As such, Heinz sought to clarify performance expectations and provide Moretti with feedback about his performance. Heinz asserted that as a result of Moretti's refusal to partake in discussions about his performance or sign up to an individual performance management plan, it was forced to dismiss him.


Deputy President Brendan McCarthy found that the dismissal of Moretti was harsh, unjust or unreasonable and that his termination of employment was unfair. He found there was no valid reason for Moretti's dismissal and rejected Heinz's assertion that the basis for the dismissal was Moretti's refusal to participate in discussions or sign up to a performance management plan.

He felt that the termination was related to a flawed view formed that Moretti's performance should be improved, and that rather than identify the areas in which Moretti was not performing satisfactorily, Heinz tried to portray those performance issues as some type of improvement programme.

In any case, the Deputy President refused to believe that dismissal was the only option and suggested there were alternative actions that could have been taken.

He felt Moretti had "good reason" to be suspicious of the company's intentions since he had not been subjected to any performance plans of this nature in the past, no other managers were being subjected to performance plans, his experience was when employees were subjected to performance plans it was due to their poor performance and the retail sales manager had told him that he was going to be performance managed out of the company.

Deputy President McCarthy ordered that the company reinstate Moretti to a position on no less favourable terms and conditions and repay the remuneration he had lost between his dismissal and reinstatement.


Employees should be aware that where they hold a position of trust, they may be held by their employers and by Fair Work Australia and the courts to high standards of honesty and integrity, and as such, may be reasonably dismissed for conduct which breaches these standards.

Employers should be careful about how they respond to poor performance issues. It is clear from the judgment in Heinz that employers should ensure their views about performance issues are well founded, and should attempt to work through performance issues with their employees before choosing to terminate.

Deputy President McCarthy stressed that the performance grounds relied on by Heinz had been "imperfectly, if not carelessly, formed for an employer of Heinz's size".

He also made specific mention of the fact that actions other than dismissal were available to Heinz in response to Moretti's refusal to undertake the individual performance management plan. Employers needed to explore alternate ways of dealing with an employee's performance issues and refrain from jumping straight to dismissal.

This article was written when Joe Catanzariti was a partner at Clayton Utz and does not necessarily reflect his views as Vice-President of the Fair Work Commission.

This article was first published in the Law Society Journal, April 2012

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