Fair Work Australia ('FWA') recently heard a case
brought by an employee who was sacked for refusing to sign a
Performance Management Plan or participate in performance
Mr Frank Moretti ('Mr Moretti') brought unfair dismissal
proceedings against his employer HJ Heinz Company Australia Ltd
('Heinz') asserting that his termination was harsh, unjust,
unreasonable and unfair.
At the time of the dismissal, Mr Moretti had been an employee of
Heinz for approximately 28 years and had held the role of Western
Australian Field Sales Manager within Heinz from about 1990, a
period of 21 years.
In May 2011, Mr Moretti underwent an annual performance review.
He also raised concern and reported allegations about improper
conduct of one of his subordinate colleagues to his manager at head
A series of meetings followed these events. The first meeting
took place in June 2011.
FWA accepted the applicant's evidence as to what transpired
at that meeting.
The meeting took place between Mr Moretti and Mr Patterson
(General Manager of Retail Sales). Mr Patterson informed Mr Moretti
'performance of one of [your] team [is] not satisfactory,
[you] should have done something about it.' The team member Mr
Patterson was referring to was Mr Moretti's subordinate
colleague whom he had reported to head office. It was suggested by
Mr Patterson that Mr Moretti should have 'given her a formal
warning' and 'gotten rid of her.' Mr Patterson also
said to Mr Moretti that '[Senior Management] had lost faith in
[his] management skills.'
When Mr Moretti questioned how long they had felt this way; he
was informed that they had harboured such feelings for quite some
time and he was subsequently told by Mr Patterson that: 'there
is no job for you here anymore...you need to resign.'
Shortly after this meeting, Mr Moretti was told by Mr Patterson
that he would be 'performance managed out.'
In July and August, Mr Moretti attended a series of meetings at
the request of Heinz. Throughout these meetings, Mr Moretti was
informed that Heinz held performance concerns and that he would
need to be put on a 'performance improvement plan.' Mr
Moretti was notified by email that if he did not:
'genuinely and constructively participate in discussions
relating to [his] performance and accept the feedback [he] had been
given and work with [Heinz] to meet the reasonable performance
expectations that have been set his employment would be
Mr Moretti refused to participate in discussions surrounding his
performance and further refused to sign the performance improvement
plan as he was of the view that the process was '[leading
toward] a pre-determined outcome of dismissal,' particularly in
light of Mr Patterson's earlier comments that he would
'performance manage [him] out.'
Mr Moretti's refusal led to his termination in August
FWA agreed with Mr Moretti's view that the performance
management discussions and plan were 'the first step out the
door' and said '[Mr] Moretti had good reason for that
suspicion...he had not been subjected to any performance plans of
this nature in the past, no other managers were being subjected to
At the hearing Heinz argued that Mr Moretti was being put on a
performance improvement plan as a result of having attained a low
score in an area of the annual performance review referred to as
Goal 1, which was undertaken in May 2011.
However, the same low score that was recorded Mr Moretti's
annual performance review was also recorded for every other
employee of Heinz. Accordingly FWA said '[this] could not be a
justifiable reason or even part of a reason for the development of
a [performance improvement] plan.'
Accordingly, FWA found that there was no valid reason for
dismissal and said that '[Heinz could have taken] alternative
actions' to deal with Mr Moretti's refusal other than
Mr Moretti sought re-instatement but could not be re-instated to
the position he held before the dismissal as that position was now
being filled by another person who was externally recruited by
Heinz. As an alternative, FWA ordered Heinz to reinstate Mr Moretti
'to another position on terms and conditions no less favourable
than those which he was employed under immediately before the
dismissal.' FWA further ordered that Heinz pay Mr Moretti his
remuneration from the date of his dismissal to the date he was to
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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