WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES HANS THEODOOR MACHIELSE, APPLICANT v. NU WEST DEVELOPMENTS PTY LTD, RESPONDENT CORAM COMMISSIONER S WOOD DELIVERED FRIDAY, 10 OCTOBER 2003 FILE NO. APPLICATION 1728 OF 2002 CITATION NO. 2003 WAIRC 09634 _________________________________________________________________________________________________________ Catchwords Termination of employment - Harsh, oppressive and unfair dismissal – Probationary employment – Substandard performance – Final warning - Industrial Relations Act 1979 (WA) s 29(1)(b)(i) – Fair go all round – Application dismissed Result Application dismissed Representation Applicant Mr H Machielse Respondent Ms M Bilston as agent _________________________________________________________________________________________________________ Reasons for Decision 1 This is an application pursuant to s.29(1)(b)(i) of the Industrial Relations Act, 1979 (“the Act”). The applicant Mr Hans Machielse alleges that he was dismissed unfairly by the respondent, Nu West Developments Pty Ltd on 18 September 2002. The applicant seeks reinstatement or in the alternative compensation. 2 Mr Machielse’s evidence is that he has not been employed since his termination. He has simply been in receipt of unemployment benefits of approximately $374 per fortnight for some of the time. Since his termination he has been busy preparing a painting for the Archibald competition. He has tried to register a company, has put advertisements in the Western Australian newspaper to offer his services as a planning or building consultant. He has also sought to assist a friend with plans for a new house. He has not earned any income. He says he has pursued advertisements from the paper or the internet for jobs as a site supervisor or building supervisor. He exhibited a bundle of applications [Exhibit A1]. 3 On the day of his dismissal Mr Machielse says that Mr Robert Francis walked into his office with a cheque in his hand. He says he thought Mr Francis was going to give him a bonus instead he said “here is - - here is a cheque one week in lieu of”. He was then asked to go to the conference room where it was confirmed that his services were no longer required. He asked for a reason and was told that “it is not working out”. He says his termination came as a huge surprise to him. 4 Mr Machielse says that he was never counselled about the standard of his work. He says he was spoken to by Mr Robert Francis in terms of certain procedures. Mr Francis did complain that Mr Machielse was not up to speed with the computer. Mr Machielse says that he stressed in his initial interview that he had not seen a computer for nine years. He in fact purchased a computer at home to practise. 5 The applicant says he was introduced to Mr Robert Francis by a friend. In their initial discussion Mr Francis mentioned that he was a developer and had big plans to develop certain blocks of land with low cost housing. He says Mr Francis stated that he was trying to build 60 houses in Seaforth, Gosnells, 11 houses in Wrights Crescent and 10 houses in Fremantle Road. Mr Francis indicated that he could use a person with Mr Machielse’s background to give Alan Thomson, the construction manager, a hand. Mr Francis showed him photographs of eight houses in Hardy Road, Bayswater. Mr Francis assured him that these would sell like “hot cakes”. Mr Machielse advised Mr Francis that he needed a long term job to make an application to the Department of Immigration. Mr Francis asked Mr Machielse what sort of salary package he would require. Mr Francis said he would start Mr Machielse on $45,000 per year and then after an initial three month period, and subject to the sale of the Hardy Road townhouses, he would increase that to $52,000. He offered Mr Machielse an old car to use. Mr Francis said that he was moving offices from Osborne Park to Bayswater. Mr Machielse said that he would need to relocate his living arrangements from Spearwood to Bayswater. Mr Francis offered Mr Machielse one of the ten low cost houses in Midland which he had completed. He suggested the rent could be taken out of Mr Machielse’s salary. Mr Machielse thought that was a good solution in respect to taxation. This offer of accommodation did not eventuate and Mr Machielse had to find rental accommodation in Bayswater. Mr Francis provided a reference to the real estate agent for Mr Machielse in order to obtain the accommodation. 6 Having obtained a job and accommodation on 23 August Mr Machielse asked Mr Gary Francis if he could lodge the application for his wife and two children to come to Australia. Mr Francis replied “Yes that - - you know, that should make you happy”. A few days later Mr Gary Francis gave Mr Machielse a coloured television to use in his accommodation. Mr Machielse considered this a kind act and thought he would get on with the Francis brothers. 7 When Mr Machielse started work he took the initiative to keep minutes of meetings. Mr Robert Francis was not impressed with Mr Machielse for doing this however, Mr Machielse still did the task. He said Mr Robert Francis’ concern related to the lack of clarity about Mr Machielse’s role. Mr Machielse says that he actually took over Mr Gary Francis’ job. Mr Gary Francis was the Construction Co-ordinator. This involved seeing councils in regard to permits or licences. He thought he had a relatively free hand, however, every time he made a suggestion it was knocked on the head. 8 Mr Machielse said that he had discussions with an investor in the company who was concerned that the eight town houses were not selling. He says Mr Robert Francis was also getting niggly and scared that these town houses were not selling. The 60 houses he hoped to commence building were not starting. 9 Mr Machielse says that Mr Gary Francis asked him on 25 July 2002 to sign a letter that purported that he had discussions with Mr Robert Francis to build 60 houses in four stages costing $4.8 million. He queried why he needed to sign this letter and Mr Robert Francis said it was for the bank as he was the construction co-ordinator and Mr Francis needed it to secure finance. Mr Machielse said he was unhappy about this but went along with it. 10 Mr Machielse exhibited his letter of appointment [Exhibit A3]. Mr Machielse also exhibited a copy of the letter in relation to Seaforth Avenue property. 3742 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 11 Mr Machielse also exhibited business cards to prove, as he says, that he took Gary Francis’ job. He says a lot of the time his job was spent trying to work out what “we were really doing”. He exhibits a document [Exhibit A7] which shows his duties and responsibilities and those of Mr Thomson. 12 Mr Machielse says that one of the reasons why he was dismissed was due to financial problems in the company. Either projects had not been started as they should have or houses were not sold. The Fremantle Road units had not started. The Seaforth Avenue units had not started and still have not (at the time of hearing). He says these are exhibited in the minutes of the meeting of 28 August 2002 which he compiled. The meeting was about weekly progress on projects. 13 Mr Machielse says that from what he could gather, all the jobs of the respondent in the past had been done by the seat of their pants. There was no program. He says his forte was the planning and programming of jobs and to make sure subcontractors adhered to the program. He issued documents, making sub contractors sign on to conditions and this had not previously been done. Mr Machielse said that the day before his dismissal he had sought tender prices for electrical work on the Wright Crescent job. Mr Gary Francis favoured a firm Vila which had been used before. Mr Machielse favoured a firm Hilite which had tendered a much lower price. After discussion with Mr Francis and Mr Thomson he says they agreed to engage Hilite. He then appointed Hilite to do the job and then later heard from Mr Francis that his brother Robert wanted Vila to drop their price to do the same job. Mr Machielse complained that it was too late and he says the next day he got the sack. 14 Mr Machielse says that the respondent in their cash flow documents indicated that jobs had been done when they had not. He says this is an indication of the practices they employ. Mr Machielse exhibited a bar chart [Exhibit A13] which he says shows the jobs that was supposed to be done on those and were not. They were not undertaken. 15 Under cross examination Mr Machielse says his position with the respondent was that of construction co-ordinator. In relation to his experience in building and construction, and in particular co-ordination and scheduling of projects, he says he attended the RMIT in Melbourne to do an architectural course. He also attended the Perth Technical College in 1990. He dropped out of that course. He registered a building company in Sydney in 1972 which was a design and construct company and he was the licensed builder for that company. Between 1972 and 1978 he built a number of houses and other public works as part of that company. He then closed that company and moved overseas with a Dutch construction company doing international tendering. He managed a very large tender for a railway project in Paraguay of $1.8 billion US. He did this despite his lack of formal qualifications. In 1981 he was a planning engineer for Fleur. He worked on site at Cobar. He was then asked to join the company Warmac and he worked for them in Dubbo until 1985. He then worked as a planner on the new Parliament House with the McLoughlin group. He then worked in Melbourne for a short time for AV Jennings as site manager on a project in the Mornington Peninsula. He then worked for a firm called Project Planning and Management and in 1993 before he moved to South America. In relation to his duties Mr Machielse had the following exchange— “What experience did you require - - did you understand that you required to fulfil the requirements of the position as construction coordinator at Nu West? What experience did you need to do - - to do the job?---What experience did I need as a coordinator to do the job? Mm. What was your understanding? What - - what experience did you think you needed in order to be able to complete the requirements of the construction coordinator position at Nu West?---Well, you see, this was more or less up to Nu West to - - to tell me. As I understood it, Gary, Robert’s brother, was functioning as the person that did all the running around, that organised the - - the consultants, that organised the - - the designers, organised the engineers, organised the surveyors to set out the sites, called in for tenders, appointed the subcontractors to do the work, ordered material, purchase - - purchase the material for the job itself. All these - - these disciplines, all these activities, I’ve been very familiar with as being a builder myself, so, you know, whether you call it a “coordinator” or whether you call it a “builder”, whether you call it a “project manager”, it’s almost the same thing.” (Transcript p.31) 16 Mr Machielse says he had the skills and experience to do all that was required. He does not believe he is over qualified for the job. He says he knows more about construction than Mr Gary Francis. 17 He agrees that part of his duties were scheduling contractors, drawing up schedules, quote comparisons and providing purchase orders for authorisation to Mr Gary Francis. These requirements were not communicated to him at interview. He was made aware of them as he went along. 18 Mr Machielse agrees that his salary package was $45,000 per annum together with the provision of a motor vehicle and a mobile telephone. He says he could use the mobile telephone and the motor vehicle for private use. Mr Machielse disagrees that there was a three month probationary period. It was never discussed with Mr Robert Francis. He denies that a probationary period was left out of the contract to assist him with the sponsorship of his wife to Australia. Mr Machielse says he would not have taken the job if there was a probationary period as he needed a secure job to sponsor his wife. The applicant says he reported directly to Mr Gary Francis. 19 Mr Machielse says he was concerned about his familiarity with computers when he commenced employment with Nu West. He stressed this to Mr Robert Francis when he commenced employment. He was advised he would be given ample time and training to learn the computer programs. He does not remember being given a Microsoft Project tutorial book. Or that he was given a week on a computer to play around with the program. He says they were not settled into the new office until the second week of July and that the computer did not work properly until 8 August 2002. He says he got a bit suspicious about this. Everyone else’s computer was working. He says he asked everyone for help but he was hardly given any help. He says he had about five minutes of help from Ms Noelene Whiteford and about 20 minutes of help, all up, from Mr Gary Francis. He says in the first week he was trying to figure out how the computer worked. Mr Machielse says that he could not get the computer to work, he does not know whether it was broken but there was a loose plug at the wall. He says he practised at home on his computer and he took a disk home to do so. 20 In relation to whether Mr Machielse thought that the company Nu West was going to wind up he says: “Well, it looked very much like it, yes, because Mr Francis had on several occasions said to Alan and myself, and perhaps even in the presence of Gary, that if Alan and I did not perform, he was not going to go any further with Nu West developments and - - because he could - - he could spend his time in - - in a far better - - far better environment than - - than he was, something to that effect. He has said on several times to Alan and myself that he was unhappy with the way the business was going” (Transcript p. 45). He says he had a feeling that the company was in financial strife. 21 Mr Machielse says that it could have been that he got not more than the two hours of instruction from Gary and Noelene regarding the computer. He says Mr Robert Francis promised him tutorials on the computer but he never got any. 22 Mr Machielse says that the procedure for quote comparisons at Nu West was minimal. He says there were minimal specifications; they were open to so much interpretation. He discussed this with Mr Robert Francis, Mr Gary Francis and Mr Alan Thomson. He suggested that their specifications were not really specifications. Mr Machielse says that the bundle of 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3743 documents [Exhibit R2] was written by him in the satirical way and not meant to be malicious. He says he was upset at the time and he wrote to them on a without prejudice basis. Mr Machielse says he is suspicious of Mr Robert Francis and Mr Gary Francis. He says they have not shown a great deal of scruples or integrity. 23 Mr Machielse denies that he saw a quote comparison for plasterers for the property at 43 Wright Street. He says that he was sacked before he even finished 10% of the quotations that he received. The quotation that he did do was the electrical one. Mr Machielse says that he was not provided with a contract list until after the advertisement in the newspaper of 17 August 2002 which called for tenders. At that time Mr Robert Francis questioned him as to why he put the advertisement in the paper. Mr Machielse said that Mr Francis had earlier agreed to the advertisement. The applicant denies that he was provided with a contractors list and refused to use that list. Mr Machielse says he was not advised that his quoting procedure was not acceptable 24 The applicant says he was learning how to generate purchase orders using the QuickBook program on the computer. He denies he was required to have purchase orders signed by Mr Gary Francis before faxing it to a supplier. Mr Machielse says that on a purchase order he put a zero value because he did not know what the cost was. He does not see a situation arising where, if there is a zero value, a contractor may charge what they like. He does not really know what happened. He does not understand the QuickBook. He says he typed in “supply and deliver pavers” and was told six packs of new Nupav sandstone. He denies the delivery of pavers in one day is an unrealistic time frame, especially for such a small quantity. He says he did have problems with the purchase order 3208A. He says someone gave him assistance to get the details correct. Somebody would have told him that instead of six packs you put down 16 square metres. He would have asked that question of them. In relation to purchase order M22 he says he never knew that Mr Gary Francis had to countersign the order. He is not aware of how the number is generated, or that it related to another employee Matthew Francis. He did not manually generate the purchase order, it was done through the QuickBook program. He denies that he was asked on numerous occasions to get purchase orders countersigned before faxing them to contractors. He says from a safety point of view it is reasonable to say that purchase orders needed to be countersigned. 25 Mr Machielse says that Mr Thomson scheduled contractors and that he, the applicant, scheduled the jobs. It was his responsibility to provide schedule reports. He did not use Microsoft Project to do these reports. He did not know how to do this. In relation to the scheduling reports using the computer program, Mr Machielse says he had discussions with Mr Francis about the program. He says the program is extremely detailed and he wanted to leave some details off. He says he was experimenting with just that. He says he was learning to do that and he was fiddling with that. He was instructed by Mr Robert Francis and Mr Gary Francis on a number of occasions to use the program. He says during his employment he provided twenty to fifty schedules to the respondent. Some of these were computer trials. He denies that he produced only hand written schedules. He denies that he ever refused to produce the schedules. He believes that his manually generated schedules had all the required information. 26 Mr Machielse was asked— “Would a proposed construction require completion dates and confirmation dates and start dates?---No, no. That is another programme again, you know. You have preliminary programmes. You have ordering programmes. You have all kinds of different ones. This is one that is hanging in the site shed on the site and it said “Oh, on Monday we pour that slab”. That’s all” (Transcript p. 74). In relation to [Exhibit R7] Mr Machielse says that he was not spoken to anyone about this schedule. He says that this was a case of just trying things out. It was not the schedule that they were going to work with. 27 Mr Machielse denies that he was spoken to on 2 September 2002 by Mr Robert Francis and, after a particular heated meeting, regarding schedules, was dismissed for not completing the schedules. He says what happened was that Mr Francis at his own unit had the first floor completely poured the wrong way and he took it out on Mr Machielse. He says there was the threat of employment made because Mr Francis gave him a cheque on that day and later on that day he accepted it back because he realised what a childish act he had performed. He says: “Oh, well, you know, I don’t even know what it was for, how much the amount was. You know, it was a cheque that I didn’t even dare look at because I thought it was just so unbelievable for this man to give me this cheque and say “You’ve got 1 week in lieu of” and I - - I - - in fact I thought he’d come in the office to give me a bonus” (Transcript p. 76-77). 28 He says firstly that he remembers the cheque and then under questioning by the Commission he says, “Not Really”. (Transcript p.76-77). He says he did not ask for his job back. He did not even believe that he had lost it. He says in relation to whether he believed he had lost his job: “So, you know, literally 2 or 3 weeks later he fires me, for what? The reason was because he realised he didn’t sell the units and he was getting pressure from - - from Rudolf DeLapsen to sell these units and something had to give. Well, I had to give because I was the last one in and the first one out. That’s how I interpret it.” (Transcript p.80-81). 29 Mr Machielse said he was asked to produce a schedule for River Road but it was not complete. He does not recall whether he produced the schedules for the River Road job on 17 September as requested. He does not believe that he was dismissed for this. He says he did not ask for his job back this time with Mr Robert Francis. He says on 2 September he did argue about it or talk about it all day and in the end Mr Francis got the cheque back and Mr Machielse continued with his job. 30 Mr Machielse says that because it was a small company he reported to Mr Gary Francis and also if there is a problem he discussed it with Mr Thomson. He denies there was any personal animosity between Mr Gary Francis and himself. He says Gary gave him a television set. He denied that he exceeded his authority, eg with the purchase orders not being countersigned. He says his actual authority was never pinned down. Mr Machielse denies that he was remiss in his duties by sending reduced scale plans as opposed to scale plans to contractors. He does not consider that a contractor would need to have to scale drawings to provide adequate quotes. 31 Mr Machielse says that he did not have any issue with the way in which Mr Gary Francis managed his employment. He says he was more qualified than Mr Gary Francis. He says he liked Mr Francis, they got on very well and Mr Machielse liked the way Mr Francis did things. He totally denies that he tried to work around Mr Gary Francis or tried to pick one brother against the other. He did not have any argument with Mr Robert Francis about the way he ran his business. He said it was a very friendly atmosphere and he liked working there very much. He says he liked the brothers very much. He denies that he lacked respect for his employer or he was sometimes argumentative in his attitude towards Mr Robert Francis and Mr Gary Francis. 32 Mr Robert Francis gave evidence that he is the managing director of Nu West Development and has 30 years experience in the construction development industry. Mr Machielse was referred to him by the father of an employee. The company was about to expand. The expansion was some three to five months hence. Mr Machielse’s experience was a lot more than the type of person they were seeking. He wanted some one to assist his brother with scheduling and purchasing. Mr Francis says he arranged for Mr Machielse to have the use of the computer as he indicated that he did not have much computer experience. He says he had two interviews with Mr Machielse, first by himself and the second involved his brother Mr Gary Francis. He says 3744 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. his brother does not have a significant span of experience in the construction industry but he handles people exceptionally well. He says he relies on his judgment. Mr Machielse said he needed permanent employment. He explained that Mr Machielse would be on probation. He says he specifically outlined that there would be a three month probation and that he would not put anyone on without a probationary period. 33 Mr Robert Francis says it was Mr Machielse’s duties to schedule the jobs. He needed to schedule the jobs on the computer and do the quote comparisons and submit these comparisons for approval to Mr Gary Francis. He then had to raise the purchase orders but had no authority to sign these purchase orders. His duties were conveyed to Mr Machielse at interview and during his first weeks of employment. They had weekly meetings to discuss progress. This was slightly disrupted by moving to new premises. Mr Francis said he started Mr Machielse earlier than they needed him or was intended. He says he reworked the applicant’s contract with a salary review because Mr Machielse did not want the contract to mention a probationary period. Mr Francis says that the salary review was made subject to satisfactory performance, which was the best wording he could come up with and not specifically say probation. This was at the request of the applicant because he had to be able to show that he had permanent employment, not probationary employment, to be able to lodge a claim with the immigration department. Mr Francis says he was trying to help Mr Machielse out. 34 Mr Francis says that he gave Mr Machielse the computer, the disks and tutorial for learning the program and advised him to play around with it. He says it is not a difficult program. Mr Machielse was to direct any questions to Mr Gary Francis or Ms Noelene Whiteford. 35 Mr Francis says that Mr Machielse raised concerns with him about his computer training on 2 September 2002 after he had given him his notice and a termination payment cheque. Mr Machielse came and asked him for another chance and Mr Francis said that this would be his final chance. He says Mr Machielse was well aware he wanted him to work through his brother because he continuously came to him instead of going through his brother. Mr Francis says he referred Mr Machielse back to his brother. 36 Mr Francis says they had a preferred list of suppliers and would get three quotes on a job. He says on a number of occasions Mr Machielse did not go to the people on the preferred list. These were people that had been used before and were found to be effective. Mr Machielse did not follow the quote comparison process. He addressed this with Mr Machielse generally at meetings but he left it to his brother to actually counsel Mr Machielse. Mr Francis says that most engagement in the industry is done via a simple purchase order and binds the supplier to the housing industry of Australia specifications and standards. Mr Machielse needed to raise the purchase order and get it countersigned by Mr Gary Francis. The quote comparison was to be filled out for each major function of the job. These purchase orders were generated via the QuickBook program on the computer. He said Mr Machielse did not seem to have much difficulty after initial training in producing these purchase orders. He seemed to be at least quite capable of producing the purchase orders by about the end of August. Mr Machielse did not always follow the instructions and sent out purchase orders under his own signature without reference to Mr Gary Francis. In a number of cases they were sent out without quote comparisons. Mr Francis raised his concerns with his brother to speak to Mr Machielse. Mr Francis said that he did speak to Mr Machielse directly and advised him that he had no authority to sign purchase orders. This occurred prior to 2 September 2002. He says Mr Machielse was under no misapprehension. 37 Mr Robert Francis said he required scheduling documents in computer format. He says Mr Machielse was requested from July onwards to produce such a document for the River Road house in Bayswater or at least attempt to give a computer generated schedule for that house but he never received anything. He required a computer generated schedule because any changes could be automatically adjusted. 38 Under cross examination Mr Francis denies he had difficulty with the designer of his own house. He says there were difficulties with the computers when they shifted premises on 7 July 2002. Mr Francis says in his first week of employment Mr Machielse was given a computer and asked to practise on the computer. Mr Francis agrees that in their initial interview he said to Mr Machielse he was developing 60 houses on a building site. He said Mr Machielse approached the company through the father of an employee looking for work. He agrees Mr Machielse indicated he did not have computer experience. He says that was why he was given time to learn. He says the person that took over from Mr Machielse took about 2 weeks to fully operate the program. Mr Francis says it was explained to Mr Machielse that it was no use having a teacher come in to teach him until he had mastered the fundamentals of the functions of the program. He said that Mr Machielse had not seemed to be even trying to do anything on the computer. 39 Mr Francis says he was sympathetic towards wording a letter for Mr Machielse’s purposes with the Immigration Department. He had had a similar experience with his wife. Mr Francis says that Mr Machielse barely asked for assistance on the computer. Mr Francis says that at interview Mr Machielse was offered transport as he did not have transport. This was agreed as part of his package. He says a building supervisor’s licence was not required as part of his job and the person hired to replace Mr Machielse is the son of Mr Gary Francis. In response to a question from Mr Machielse, the exchange was: “But he was already hired while I was there so you have not hired a new person?---We’ve only hired the construction manager that has taken a similar amount of time. You’ll have to ask Gary that” (Transcript p. 157). 40 Mr Francis says that Mr Machielse at interview was told that his duties were in relation to co-ordinating schedules, making that information available, assisting the purchasing, obtaining quotes and doing quote comparisons. He was told at interview that purchase orders needed countersigning. Mr Francis said that Mr Machielse would take over some of the duties of Mr Gary Francis. He says the suggestion of a pay rise after three months had nothing to do with whether the eight town houses in Hardy Road sold or not. Mr Francis informed Mr Machielse that if he wanted to take a salary sacrifice it could be offset as rent. 41 Mr Francis says that he asked Mr Machielse to put down what his role was and what he would like it to be. He says he did this because he needed to make an assessment of what sort of people were needed to be employed by the company for its next stage of development. Mr Francis did not reply to the reports given to him by Mr Machielse. These were given to Mr Gary Francis to co-ordinate and no response had been made by the time Mr Machielse was dismissed. It was up to Mr Gary Francis to co- ordinate the people in the construction group and to come up with an overall plan for expansion. Mr Francis says that he did not dismiss Mr Machielse because he had been hired too early. 42 Mr Robert Francis says that the Microsoft computer program is not complicated. Mr Machielse simply had to adjust the start date and check the date for each of the job particulars specifications to see whether the time allowed was enough. The program automatically adjusted the schedule. Mr Machielse was asked to attempt this program for one house and he never attempted to do so. Mr Francis says that the program is a working program to ensure that anyone who needs access to the information is kept up to date. Mr Robert Francis referred to an example of this [Exhibit R11]. He also exhibited an example of the schedules and reports that can be produced using the Microsoft Project program [Exhibit R12]. He says he continually asked for the computer generated schedules but never got any. He asked for the schedules through his brother Mr Gary Francis. Mr Machielse did present a number of manual schedules. These were not what were required. He says it was impressed to Mr Machielse that the manual format was absolutely no use to the company because it did not have live data. He says all Mr 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3745 Machielse had to do was to amend the start dates and get a report generated for a single house. He says manual schedules are simply not sufficient because they do not have the depth of information and cannot be adjusted regularly. 43 Mr Robert Francis said that he indicated to Mr Machielse both individually and at meetings that his job was in jeopardy. He says on the first Monday in September at the normal weekly meeting he asked Mr Machielse whether he had any computer generated reports. Mr Machielse handed over another manual report. At that time there was also a difficulty with a purchase order. Mr Robert Francis indicated to Mr Machielse that it was not working as Mr Machielse would not comply with their requirements. Mr Francis arranged for Mr Machielse’s termination pay. Mr Francis presented Mr Machielse with the cheque and asked him to clear out his desk. He was paid notice of a week in lieu. Mr Machielse then went to see Mr Francis and asked what he needed to do to make things work. Mr Francis said he was not to issue purchase orders and that computer generated reports were required. Mr Machielse asked for another chance and gave the cheque back to Mr Francis. Mr Francis gave him one final chance. 44 Mr Francis says that Mr Machielse seemed to want to stick his nose in everyone else’s work but his own. At the meeting subsequent to Mr Machielse’s dismissal Mr Francis said he told Mr Machielse that he wanted a computer generated report at the next meeting. He says there was no doubt or misapprehension about this request. At the following meeting there was again no report. He asked Mr Machielse whether there was any reason why he had not generated the report. Mr Machielse did not give a reason. Mr Francis adjourned the meeting then later called Mr Machielse back in and asked him if there was any reason why he should not be dismissed. This was Mr Machielse’s reply “I suppose if it’s not working it’s not working.” Mr Francis then arranged for a further cheque to be given to Mr Machielse. Mr Gary Francis later approached his brother and said the applicant was seeking use of the vehicle. Mr Robert Francis agreed to allow Mr Machielse to use the car for his period of notice. Mr Machielse did not return the car and this had to be followed up by the respondent. 45 Mr Francis says he could not reinstate Mr Machielse. He says he was disruptive within the office and tried to work around his brother and effectively the licensed builder. He says Mr Machielse did not comply with requirements of the job even after numerous requests. He says Mr Machielse wanted to do things the way he wanted to do them. Mr Francis gave two examples where he says Mr Machielse had mishandled quotations. 46 Mr Francis says that Mr Machielse continued to harass him following his dismissal. He received correspondence from him but did not give it any credence. Mr Francis complained that Mr Machielse’s attitude at work was derogatory. He says he would “overlord” over the contractors and his brother Mr Gary Francis. He says Mr Machielse has a tendency to shout and to dominate conversations with the loudness of his voice. Mr Francis tried to correct this to no effect. He says he found purchase orders that had been issued without the value on them. This is effectively a blank cheque. There were purchase orders that were not put on the computer. These purchase orders had been wiped from the computer. There was a purchase order that went out and two lots of bricks were delivered instead of one. 47 Mr Francis said that Mr Machielse’s position had not been replaced or filled. This is because Nu West took Mr Machielse earlier than they needed him. He says they have— “employed a construction manager which is an office manager because effectively our construction stages has now got up to about triple what it was when Mr Machielse was there. We have employed, if you like, a trainee supervisor and we have engaged on a permanent basis, if you like, a person to actually get there and do the general duties on site such as cleaning up and things like that” (Transcript p. 137). Mr Francis says that a junior (about 20 years old) now does the work Mr Machielse did. He says the firm had teething problems when Mr Machielse started but these lasted about two weeks not two months. Mr Francis says that Mr Machielse continually did not supply what was required of him. He says what was being asked for was not beyond Mr Machielse’s capability either computer or non computer, particularly given the amount of time that he was allowed to come up with just a single computer document. Mr Francis says that Mr Machielse has caused the company concern effectively both during and subsequent to his employment which has cost the company a considerable amount of funds. 48 Mr Gary Francis gave evidence that in relation to Mr Machielse’s experience and skills he seemed to be quite capable with purchase orders. He seemed to have reasonable computer knowledge but not with Microsoft Project, he did not seem to want to know about it. He says Mr Machielse would let certain things out which he would never have let go including purchase orders which were supposed to be countersigned or at least seen by himself but were not. He says Mr Machielse was responsible for quoting and quote comparison. The applicant generated purchase order 3254 and signed off to it. In relation to purchase order for Wright Crescent, Mr Machielse raised this and there were no errors in that document. Mr Francis only received about four quote comparisons from Mr Machielse the whole time he was there. There should have been one for each purchase order raised. Mr Machielse was told that this was not acceptable. Mr Francis says that he told Mr Machielse that he needed to have purchase orders countersigned. This did not always occur. In respect of purchase orders 3208, Mr Francis was concerned that there was no costing amount in that order. Mr Francis complained that the purchase order M22 had been raised by Mr Machielse and it had a number only used for hand written purchase orders. He says also that the Butko Transport require three to five days for delivery. Mr Francis found a number of these types of purchase orders after Mr Machielse was terminated. 49 Mr Francis says he wanted schedules in a computer generated format. This was so that he could give these to other people involved in the building. The manually generated format did not provide enough detail. He advised Mr Machielse of this. Mr Machielse knew that he needed to generate the schedules on computer. The applicant only came and asked him about three times to show him things on the computer with respect to that program. Mr Machielse initially had a week just to play around with Microsoft Project. The computer was not hooked to any other computer so that he could not do any damage. Mr Francis said he advised Mr Machielse that if he needed help to come and see either Alan, Noelene or himself. He says the program was not hard to learn. 50 In early September Mr Gary Francis says that his brother indicated that he was going to dismiss Mr Machielse as he was sick to death of it. He says Mr Machielse was dismissed because they were not getting out from him what they required. He says the schedules and purchase orders were not written out properly. This was placing a burden on the rest of the staff who were doing most of the scheduling for jobs. He says at the time of his termination he was present at a meeting with Mr Robert Francis and the applicant. He says Mr Robert Francis terminated the applicant’s services because they were not receiving the information required to do the job. He says Mr Machielse’s reply was, “Well, there is not much point in me talking about it”. He said most of the time he considered Mr Machielse was reasonable. 51 Under cross examination Mr Francis says that Mr Machielse took over his function as co-ordinator. Mr Francis became General Manager and Mr Machielse reported to him. Mr Machielse advised him that he had not seen any computer for about nine years. He says at the start Mr Machielse said he had to play with the computer but he did not show any progress to the time he was terminated. He says the same computer is still in use and there is nothing wrong with it. He says Mr Machielse’s computer was playing up because as he had advised him his chair had moved back on to the connection point and bent the tabs 3746 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. on the networking cable hence it was showing up as a fault. He says that he helped Mr Machielse when he was asked. In response to the question as to how many times? He says: “It wasn’t many times. And the reason that was, was because I was under the impression that he knew something about computers. I mean, the way he’s - - he’s raised purchase orders, the way he’s sent us emails, I mean, I was under the impression - - he knew how to use it” (Transcript p. 203). 52 Mr Gary Francis says that he has not seen notes made by Mr Alan Thomson prior to his departure on leave. Mr Francis said there has been a big increase in staffing in the company. In relation to Mr Machielse’s accommodation someone from Century 21 rang Mr Francis and wanted to know what wage Mr Machielse was on and whether he was capable of making the rent. Mr Francis provided a letter to that effect. He says Mr Machielse was doing things in the company mostly to Mr Francis’ satisfaction (Transcript p.211). He says he knows that Mr Machielse worked on some Saturdays and Sundays. He denies that he told Mr Machielse not to take any notice of his brother Robert after Mr Machielse was sacked on 2 September 2002. Mr Francis says on 17 September 2002 Mr Machielse came into the conference room and when he was advised of his dismissal he said, “no good me asking for my job back” and Mr Francis says that he replied, “Yeah, fine.” He said he could not see why Mr Machielse would be surprised, he had not produced the documents that had been asked from him on the previous Tuesday morning. He says he did not say that he did not want Mr Machielse to go. He said to Mr Machielse after the meeting that he would talk to his brother Robert. He said he would try and get his, i.e. Mr Machielse’s job back. He says he spoke to Robert who indicated that Mr Machielse was not coming up to scratch with the work required. He says he did not relay Mr Robert Francis’ answer to Mr Machielse. 53 In response to a question as to whether he was upset that Mr Machielse got the sack, Mr Gary Francis says, “Not really. I was burdened with your job as well as my own. Why should I feel remorse for you because I had to do your job as well.” He says that Mr Machielse completed the bar chart schedule which was not adequate for their purposes and could not be given to a contractor. 54 Ms Noelene Whiteford gave evidence that she had no experience in the construction industry before commencing with Nu West Developments. Her computing experience was just basic computing such as Word Perfect. She says when Mr Machielse started he was given a training disk and if he had any problems he was to ask. She says that he spent most of the first week looking through all the construction jobs. She says the disk he was given was fairly self explanatory. She says Mr Machielse was very personable. She says there were a few occasions in meetings when there were a few raised voices. She had heard Mr Machielse raise his voice. She says it could be that she heard Mr Machielse talk loudly on the telephone. She says Mr Robert Francis had told her words to the effect that she needed to function better and pull up her socks. She says Mr Francis told her that she needed to get better organised. She says whenever Mr Machielse asked for a hand with the computer she gave him a hand. This occurred at least six times. She says Mr Machielse had a few problems with purchase orders and QuickBook. She says she did not find any problems with Mr Machielse’s computer. She says he turned it off and on a few times and it was fine. She says it was her understanding that Mr Machielse was using the Microsoft Project program to simply put in start dates and finish dates for a project like Wright Crescent. 55 I have no confidence in the evidence of Mr Machielse and unreservedly prefer the evidence given on behalf of the respondent. I consider the evidence of Mr Machielse to be inconsistent and unreliable at best. I consider the evidence of Mr Robert Francis, Mr Gary Francis and Ms Noelene Whiteford to be direct, honest and temperate in the face of the occasional unnecessary and intemperate interjections by Mr Machielse. Mr Robert Francis complained that Mr Machielse would seek to dominate conversations with the loudness of his voice and would seek to “overlord” others. He described him as argumentative. These characteristics were witnessed at hearing. 56 The applicant at various times complains that he was dismissed the day after he had a disagreement with the Francis brothers over the use of an electrical contractor, he says that one of the reasons that he was dismissed was due to the financial problems of the company, he alludes to the company having got his employment wrong by employing him before they actually required his services. It is not clear to me how each of these allegations can be the reason for his termination. He says that his dismissal came as a huge surprise to him and that instead he was expecting a bonus. Yet, even though Mr Machielse’s evidence changed on this point, he was earlier dismissed on 2 September 2002 and the respondent then decided to rescind that decision. Mr Machielse’s evidence was frequently inconsistent and it is very difficult to have confidence in it. 57 Mr Machielse’s evidence is that the atmosphere at the respondent’s business was very friendly and that he got along well with the Francis brothers. He says that he liked the brothers very much and similarly liked working there very much. He compliments them on their generosity in giving him a coloured television set. His claim is for reinstatement which he views as being practicable. Yet at hearing the applicant refers to Mr Robert Francis as a bully. Further, leaving to one side the document marked without prejudice, Mr Machielse has since his termination sent a range of correspondence to the Francis brothers [Exhibit R2] which has been less than cordial or friendly. For example the email of 13 December 2002 implies some connection between them and a burglary at his house. 58 Mr Machielse says also that he did not have sufficient time to learn the computer and that he received limited assistance in learning the computer program. The evidence of the Francis brothers is that Mr Machielse was requested to familiarise himself with the computer in the first week and that he received assistance and that they were available to help him but he did not ask. It is difficult to accept that Mr Machielse considered them to be very friendly and got on well with them yet struggled with the computer and his difficulties were ignored. 59 The computer and Mr Machielse’s inability to produce computer generated project schedules is a key element of the evidence and the reason for Mr Machielse’s termination. It is not in doubt that Mr Machielse did not produce these computer generated schedules. He chose instead to do manual schedules. Mr Robert Francis in particular was not happy about this as they lacked detail and could not easily be adjusted to reflect changes to the project. I will deal with this in detail. 60 Mr Machielse complains in his evidence and final submissions that he had to rent a property close to his work, that the respondent provided a letter to the real estate agent to support this rental and that his dismissal has left him with a rental which he cannot afford. He claims compensation for this rental. It is not submitted that this rental is part of his contract of employment and in fact it is not. Mr Machielse chose to move on accepting the job. His employer provided him with a motor vehicle at his request and this did form part of the contract. The letter to the real estate agent was simply verifying his employment so that Mr Machielse could in fact obtain the rental, and again was at the applicant’s request. Needless to say that the Act does not provide for compensation to cover the rental property where this cannot be seen in anyway as part of the contract. I should add that the evidence is that Mr Machielse was introduced to the respondent through he says a friend. Mr Robert Francis says that the applicant was referred to him by the father of an employee. It is clear from the evidence that Mr Machielse was very keen to obtain employment to assist him in his immigration applications. It is not the case that the employer sought out Mr Machielse and offered him a job or enticed him to join the respondent. This is sometimes a factor in considering the unfairness of a termination, particularly where someone has been wooed from a secure job and then is 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3747 dismissed soon thereafter. However, it also gives background to whether there was some encouragement by the respondent or obligation upon Mr Machielse to enter into the rental accommodation, and there was not. 61 I turn then to the main issue in question and that is the performance of Mr Machielse. It is clear on all the evidence that one of the main duties of the applicant were to schedule projects and to do this he had to access and manipulate a computer program called Microsoft Project. Mr Machielse was also responsible for arranging quotes, quote comparisons and for raising purchase orders. Mr Machielse’s evidence is not direct on this issue, as is the case with much of his evidence. However, under cross- examination it is apparent that these were his prime duties. The evidence of the Francis brothers is clear and consistent on this issue and I find that these were his prime duties. The evidence of the Francis brothers in terms of whether Mr Machielse took over the job of Gary Francis as co-ordinator is different. However, this does not alter what actual duties he was required to do. 62 The chief complaint against Mr Machielse is that he did not perform his main duties, in particular he did not properly raise purchase orders, did not properly compare quotations and would not produce computer generated scheduling reports. There were complaints also that he raised his voice, was argumentative and interfered with the duties of others. Mr Machielse’s evidence and submission are that all of these claims are without foundation except the one to do with computer generated schedules. He says of this that he was not familiar with computers and had been in a third world country for the last nine years without presumably, on the evidence, access to computing or at least computing programs for work. It is common evidence that he declared his lack of familiarity with computers at interview and was taken on nevertheless. He says also that he was not assisted to learn the computer. He was not sent on a course to learn the computer as others in the workplace had done. The computer did not work properly or on occasion at all for an extended period of time. In the initial week of employment he was given a manual and told to learn the computer. This was unrealistic as the business was moving and he was helping in the shift, the manual was very large (at least this is his final submission, not his evidence) and if I understand his evidence correctly the computer was not fully in use. 63 It is the evidence of Mr Robert Francis, Mr Gary Francis and Ms Whiteford that they knew Mr Machielse did not have familiarity with computers and the Microsoft Project program. Albeit I should say that the evidence is that Mr Machielse was familiar with aspects of the computer, eg emails and word processing, and he was able to do purchase orders. They say that the scheduling program was not difficult to learn, the disk was self explanatory, they had easily learnt the program, others had also learnt the program within four weeks and that basic entries were required of Mr Machielse, eg start and finish times for jobs, and the length of jobs. I consider this more probable otherwise, commonsensically, why would they have employed Mr Machielse, knowing of his lack of computer knowledge, if the program was in fact hard to learn or manipulate. They say also that the training they received was more advanced and was not required initially. Ms Whiteford says that it related to tailoring the program for the company’s needs. They say that Mr Machielse simply had to engage himself in understanding the computer and the disk and he did not, even though Mr Gary Francis arranged for the disk to be put on Mr Machielse home computer. They all say that they were available to help him and did. They say that he did not ask for extra help. 64 It is the evidence of Mr Gary Francis which I find most compelling on this central point. As I have indicated I accept the evidence of Mr Robert Francis, Mr Gary Francis and Ms Whiteford. However, it would appear on a fair reading of the evidence that it is Mr Gary Francis who had most to do with Mr Machielse and who acted as his supervisor. It is also my strong impression from hearing that Mr Gary Francis could be described as a very accommodating witness for the applicant. On the evidence of Mr Gary Francis his brother would appear to adopt a tougher approach to issues than himself (transcript p213). 65 Mr Gary Francis had no animosity toward the applicant. He readily conceded points for the applicant even when the cross- examination was rambling and the questions hence unclear. He helped the applicant with a television set, he sought to talk his brother around in terms of the dismissal and he says that Mr Machielse was performing mostly to his satisfaction. Albeit this perhaps relates to early in Mr Machielse’s employment when one considers the flow of the cross-examination. However, I make no finding to this effect and would give the applicant the benefit of the doubt given that Mr Gary Francis also later sought to persuade his brother to retain Mr Machielse. Against this background Mr Gary Francis’ evidence, in short, is that Mr Machielse did not want to know about the computer program and did not produce the schedules as requested. He was very clear and convincing on those issues. Ms Whiteford says also that she did not find any problems with Mr Machielse’s computer (transcript p231). Clearly she assisted him with the computer. I find that the applicant did not seek to perform properly on this duty and did not follow instructions. I find also that it is probable that he had all the support needed and resources available to be able to learn the required programs. 66 In relation to the other complaints about Mr Machielse’s performance it is clear from the cross examination in relation to purchase orders 3208, 3208a and M22 that Mr Machilese was responsible for these orders and that they had not been completed properly and in at least one instance amounted to issuing a blank cheque on behalf of the company. I so find. In relation to the quotation system and the quote comparison I find also that Mr Machilese did not perform this duty properly and did not follow instruction. He complains that he was seeking to save money for the respondent. This is an admirable objective but at least in relation to the electrical contractor his actions did not marry with the reasonable requirements of the company. Having regard to all of this I find that Mr Machielse did not perform his duties properly, did not follow instructions and was thus not suited to the job. 67 The procedure followed by the respondent was not one of formal counselling and in that way could have been and should have been better. There can be no doubt though that the applicant was told to improve his performance and deliver the work asked of him. As is evident in the decision of Shire of Esperance –v- Peter Maxwell Mouritz 71 WAIG 891 the procedural flaws of a dismissal are but one factor to consider in deciding whether a dismissal can be said to be harsh, oppressive or unfair. There can be little doubt in my mind that what was being asked of Mr Machielse was straightforward and clear. He had to do proper quote comparisons and he did not. He had to get purchase orders countersigned and he did not. He had to produce the computer schedules which were a key part of his job. In fact it is simpler than this. The applicant had to produce the computer schedule for one house to demonstrate that could and would perform his job and he failed to do so. He failed to do so even though it was clear that he had been dismissed on 2 September 2002 for failing to do so and was on one last chance. Mr Machielse disputes his termination on 2 September 2002 as a misunderstanding, or a joke or having arisen from a confrontation. This is not supported by any other evidence and is indeed difficult to believe. The applicant was given his termination pay on that day and only after extensive discussions with Mr Robert Francis, and agreeing to do the job that he was asked to do, was he given back his job. He then failed to deliver and was finally dismissed some two weeks later after failing to produce the schedule as asked on two occasions in the weekly team meetings, and failing to give any legitimate reason for so doing. In all the circumstances I do not consider that Mr Machielse was not afforded a far go all round (Undercliffe Nursing Home –v- Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch 65 WAIG 385) and I would hence dismiss the application. 68 I have not dealt with one key area of dispute between the parties, namely whether the applicant was on probation. I do not consider this aspect to be decisive in determining whether the dismissal was fair or otherwise. For the reasons expressed I accept unreservedly the evidence on behalf of the respondent and have significant difficulty with the applicant’s evidence. 3748 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. Having said that the contract is clear in its expression and is sufficiently complete so as not to seek to go behind it. It does not include a period of probation. It includes a period of three months after which the salary would be increased subject to satisfactory performance. This is not the same thing. A probationary period is capable of clear and simple expression and is not expressed in the contract. The contract that the respondent then entered into must be seen in that light as one without a probation period and on its face is not open to any other interpretation. I so find. _________ 2003 WAIRC 09635