TERMINATION OF EMPLOYMENT – performance – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – employed as a Boilermaker at the Saraji Coal Mine (the Mine) – employed for period of 27 years – prior to 2012 applicant had never been formally disciplined – heavily involved in disputation with BHP throughout 2014 to 2015 – dispute with supervisor arose as to the performance of applicant’s duties as an employee representative – CFMEU on behalf of applicant commenced claim against respondent alleging adverse action for seeking to exercise a workplace right as an employee representative – respondent notified applicant that the lowest or second lowest rating would be assigned, however before doing so, would discuss it with Superintendent – applicant noted that in accordance with 2012 enterprise agreement, Supervisors were not allowed to discuss what rating should be given to an employee with another person not party to the performance review – applicant put under a Performance Improvement Plan (PIP) and rated the lowest rating for 2013 – respondent outlined concerns that needed to be addressed – under the PIP, applicant was given a minimum period of six months to demonstrate satisfactory standards – if applicant failed to meet the requirements of the PIP he could face disciplinary action including termination – applicant dismissed after respondent found he had failed to meet the standards expected in relation to his performance, including that he had displayed conduct in breach of the BHP Billiton Code of Business Conduct and the Charter Values – Commission found valid reason for dismissal – did not find dismissal was harsh, unjust or unreasonable – instead of confronting the performance issues raised, applicant made only mild and sporadic attempts to improve upon performance and continued to display what could be described as belligerent behaviour during the PIP process – applicant did not perform to the required performance levels throughout most of the six month period – at the most important time of career with BHP, failed to demonstrate excellent work, relationships and initiative – Commission gave weight to applicant’s lengthy service and the detrimental effect this dismissal had and decided that this consideration was outweighed by applicant’s sustained and systematic failure to perform and improve upon performance in circumstances where offered a robust opportunity to do so by the respondent – application dismissed. Ingrey v BHP Coal P/L t/a BHP Billiton Mitsubishi Alliance
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