Proof of Performance
FWC upholds BMA decision at end of failed 3 year performance review.
Wednesday 08 March 2017
Saraji miner of 27 years, Ken Ingrey has failed in his attempt to have his dismissal by BMA midway through last year overturned by the Fair Work Commission (FWC).
BHP took the decision to sack Mr Ingrey after a three-year long Performance Improvement Program (PIP) failed to help Mr Ingrey reach the standards BHP expected of him.
During that period Mr Ingrey was involved in six performance reviews.
For the 23 years before 2013, Mr Ingrey had never been formally disciplined at work, and in 2011 Mr Ingrey had been given the highest possible rating in his annual performance review.
However, things started to go wrong by 2013 when his performance review score fell to 3 (generally satisfactory) - although this was later challenged and the result voided.
Another performance review in 2014 saw Mr Ingrey given a result of 1 (lowest possible). That led to him being put on a PIP to address issues like respect for other workers, being late for work, taking long crib breaks, spending too much time writing JSA’s and SWI’s, and not utilising a new management software program.
The PIP continued for the next three years, during which it was argued and documented by BHP, that Mr Ingrey was not consistently providing evidence to show his performance was improving.
Mr Ingrey consistently argued, however, that he was not given adequate guidance by management.
“I was not told that I had to provide examples in order to complete the PIP, “ he said.
“ I was told it was a possibility for me to provide examples, and understood that this would occur at the PIP reviews.”
There were some notable events that led Saraji Management to believe Mr Ingrey's performance was not improving.
On one occasion, Mr Ingrey refused to work with contractors inside a dragline because he considered it “deskilled him”, and on another he refused to install a rubber seal on a dragline door as requested by his supervisor, arguing the seal would not do the job.
He also tried to claim leave so that he might attend an EBA meeting at another mine as an employee representative, as well as emailing an application for leave at 11 pm because his air conditioner had broken down, and he was concerned that it would disrupt his sleep, making him unfit for work.
On another occasion Mr Ingrey had his wife call his supervisor at 3:42am to notify him that he was sick and would not be at work that day.
However, by 2016, Saraji felt compelled to advise Mr Ingrey that his failure to meet their expectations for improvement would result in further action.
“You have now participated in five PIP review meetings and on each occasion have received a rating of unsatisfactory,” they wrote in a letter.
“While the company has noted some areas of improvement over the previous five months, you are continuing to not meet our performance expectations of you.
“We confirm that a continuation of you not delivering on our performance expectations may result in discipline up to and including termination.”
After a sixth failed performance review Mr Ingrey was stood down and subsequently dismissed.
In his concluding statements, while Commissioner Cook found that Ingrey was a competent boilermaker with very good workmanship, he found in favour of BHP.
“I do not consider termination of employment was a disproportionate response to the failure of Mr Ingrey to satisfactorily and adequately improve his performance to the desired standard,” he ordered.
“I do not accept the dismissal was capricious, spiteful, fanciful or prejudiced.
“BHP engaged in a genuine, thorough and lengthy performance improvement process with Mr Ingrey in the lead-up to his dismissal.
“Instead of confronting the performance issues raised with him, Mr Ingrey made only mild and sporadic attempts to improve upon his performance and continued to display what could be described as belligerent behaviour during the PIP process and for his supervisors.
“Ultimately, Mr Ingrey did not perform to the required performance levels throughout most of the six month period.
“Where he did demonstrate good performance and capability, together with problem-solving and improved 1SAP entries, it was outweighed by other incidents involving Mr Ingrey.
“While I have given weight to Mr Ingrey’s lengthy service and the detrimental effect the dismissal has had on him, I find this consideration is outweighed by Mr Ingrey’s sustained and systemic failure to perform and improve upon his performance in circumstances where he was afforded a robust opportunity to do so by BHP.
“Having considered each of the matters specified in s.387 of the Act, I am not satisfied the dismissal of Mr Ingrey was harsh, unjust or unreasonable.”