Woman wins $30,000 for unfair probation dismissal

The tribunal agreed with the employee on only the first ground.

The employer had set two benchmarks for staff on probation: an overall performance score of at least 80 per cent and an average competency rating of at least three out of five across 10 functional competencies.

The manager received a performance score of 71 per cent and an average competency rating of 2.4, which was rounded down to two.

But the tribunal found that the employer had failed to prove that those scores fairly reflected her performance.

The magistrate noted that the reporting supervisor had admitted she did not explain what was required for the various competency ratings at the start of employment, nor did she conduct the periodic documented reviews required under the company’s own probation process.

The employee was therefore “left to navigate a set of qualitative descriptors without any guidance as to how they would be applied to her work in practice, or what she would need to demonstrate to achieve a passing rating”, Magistrate Tan said.

He also found that no written reasons were given for the low competency ratings.

Instead, the supervisor offered explanations only during the hearing, saying the employee “might not be that passionate” about some work, “could be more proactive” in making more decisions and appeared uninterested in how the company was doing.

The magistrate was not persuaded. “These impressions, taken together, revealed a supervisor who had formed a view of the (employee) – that she lacked passion, initiative, and engagement – but who did not explain the standard against which that view was formed, or demonstrate that the claimant had been measured against it in any principled way,” he said.

He added: “(The) ratings produced by this process were, in substance, (the reporting supervisor’s) impressions dressed up as a suitability review.”

The tribunal also examined the employee’s performance goals, including audit work, financial health checks, ad-hoc assignments and training responsibilities.

In several instances, the employer alleged she had missed deadlines, failed to follow instructions or produced work with formatting deficiencies.

However, the magistrate found that many of those criticisms were unsupported by evidence, or concerned standards that had never been clearly communicated to the employee.

The magistrate also observed that the supervisor never criticised “the substantive quality” of the employee’s audit work, but instead focused largely on “peripheral and administrative matters”.

Instead, he found there was a misalignment between the supervisor and the employee. While the supervisor emphasised administrative compliance, the employee prioritised “the rigour and integrity of the audit process itself as an audit professional”.

Language discrimination, whistle-blowing allegations failed

Although the employee succeeded in proving that her dismissal lacked just cause or excuse, the tribunal dismissed her claims that she had been discriminated against because she did not speak Korean.

The employee had argued that important discussions among senior colleagues were frequently conducted in Korean, excluding her from discussions that shaped expectations of her work.

But the magistrate found insufficient evidence that her inability to speak Korean had caused her dismissal.

He accepted that Korean was sometimes used in the workplace, but found no evidence that her language ability influenced her performance ratings or the decision to terminate her employment.

Her whistle-blowing claim also failed. The employee had argued that she raised concerns about a restructuring proposal. She also questioned whether audit functions should be led by her reporting supervisor, who lacked audit qualifications and experience.

But the tribunal found no evidence that the managers who decided to dismiss her knew about the restructuring discussions at the time the dismissal decision was made. As a result, it was not prepared to conclude that the dismissal was retaliation for whistle-blowing.

In deciding compensation, the magistrate noted that under current employment claims regulations, the woman would be entitled to an award comprising two components: up to three months’ pay for loss of income, and up to two months’ pay for harm caused by wrongful dismissal, adding up to a total of five months’ salary.

“The (employer) brought the (woman’s) employment to an end in a manner that was both sudden and unjustified, and it would be difficult to suppose that such a dismissal did not occasion her considerable distress,” he said.

The tribunal also ordered the employer to pay the woman $300 in costs and $60 in disbursements.