Quality director dismissed after employer found he was not suitably qualified

A quality and risk director was dismissed after the employer concluded he was not suitably qualified to do his job and the organisation was too small to have a director for quality and risk. The employee's position was described in a contract as including the roles and responsibilities of quality and risk director, chief technology officer and IT support officer. 

The employer sent an email on 7 May 2025 identifying concerns about the employee's performance including that he should have been familiar with registration requirements but his lack of knowledge meant a contractor had to be engaged, and many day to day tasks associated with his role were not being performed without support or guidance. 

The commission examined whether the dismissal was unfair and whether compensation should be awarded.

Employer outlined performance concerns in email

The commission found that the employer confirmed termination of the employee's employment in a letter dated 7 May 2025. The commission found the letter stated the employer required a director of quality and risk who had extensive experience with the Commonwealth Register of Institutions and Courses for Overseas Students, and who could be on campus full-time. 

The commission said the letter further stated the employee's resume did not show any experience in higher education-related quality and risk, the needs of international students, or relevant legislation, and that the employee had advised he was unable to attend campus full-time.

The commission added the employer gave evidence that at his meeting with the employee on 28 April 2025, he told the employee that the organisation was too small to have a director for quality and risk and that his employment would be terminated. 

The commission found that the employee replied that he would write to the employer about what had been discussed at the meeting. The commission found on 1 May 2025, the employer received an email from the employee posing a number of questions, including whether he could be transitioned to another area or role, and whether his termination was a redundancy.

Employer identified specific performance concerns

The commission found on 7 May 2025, prior to sending the termination letter, the employer sent the employee a lengthy email in response to his message of 1 May 2025.

The commission said that in the email, the employer stated that in December 2024, when the ownership of the company changed, a sustainability review was conducted which revealed the employee had been given his role 'in name only' and that he was 'not equipped to fulfil the position requirements'. 

It found the employer then identified concerns about the employee's performance, including that the employee should have been familiar with registration requirements but his lack of knowledge meant a contractor had to be engaged to complete a certain piece of work, and the employee had not contributed to the onboarding and compliance management of international students, which was a key responsibility of his role.

The commission said the employer's concerns also included that the employer's recent application for a graduate diploma should have undergone a quality review by the employee but this did not occur, a data migration project had been redirected because the employee lacked knowledge of the relevant systems, and many of the day to day tasks associated with the employee's role were not being performed without the support or guidance of the employer or an adviser—29 tasks were cited as examples.

Employer acknowledged not raising concerns previously

The commission found that the employer responded to the questions in the employee's message of 1 May 2025. The commission found as to whether the role was redundant, the employer said it was not a full redundancy because a downgraded role would continue, but that the issue of concern was the employee's unsuitability to undertake the existing role. The commission found the employer's evidence was that as it transpired, the downgraded role never eventuated.

The commission stated the employer's evidence was that although the termination letter had referred to the employee's unsuitability for the role as the reason for dismissal, there were in substance three reasons: first, the company had shrunk and it was now too small for a role like that of the employee; secondly, the functions of that role could be redistributed; and thirdly, the employee was simply not up to the job. 

The commission found the employer acknowledged that prior to sending the employee the email of 7 May 2025, he had not raised with him the detailed performance concerns set out in that message.

Commission accepts employee unable to carry out tasks

The commission found that although the employee did not attend the proceeding and did not give evidence, it had regard to the written materials filed by him and the submissions of his representative, which addressed various factual matters.

The commission found, in particular, that the employee said his performance was consistently rated highly and that he had received commendations as recently as March 2025, and it inferred that he generally denied that his performance had been inadequate. The commission found the employer's evidence was that the content of his email of 7 May 2025 was true and correct.

It found it accepted the employer's evidence that the employee was unable to carry out the 29 tasks and functions referred to in the email of 7 May 2025 without the assistance of the employer or the adviser. 

The commission found it preferred the sworn and detailed evidence to the employee's unsworn statements that his performance had been good. The commission found the evidence of the employer led it to conclude that the employee was not able to do his job effectively.

The commission found it also accepted the evidence that the employer had concluded that the role was not needed, particularly because the company had shrunk in recent times.

Commission finds valid reason for dismissal existed

The commission found proof that the position was indeed not required was the fact that when the employee's employment ended, he was not replaced, the downgraded role that had been contemplated never materialised, and the IT function was outsourced. 

It found the simple fact was that the employee had not been up to the job and, as often happens in such situations, the employer realised that it did not need his position.

The commission found the termination letter framed the reason for dismissal as one relating to the employee's lack of experience. The commission found it did not consider that this was a valid reason for dismissal and was not persuaded that his past experience and qualifications precluded him from reasonable appointment to the position that he held. 

The commission found nevertheless, a valid reason for dismissal did not need to be the reason relied on by the employer at the time of dismissal and it was for the commission to determine whether it considered there to have been a valid reason for dismissal. The commission found it considered that there was a valid reason for dismissal, as well as a good operational reason to end the employment.

Commission finds employee not given opportunity to respond

The commission found the termination letter did not notify the employee of the valid reason that it had found to exist, namely his performance. The commission found however, the performance concerns were set out in detail in the employer's email of 7 May 2025 which preceded the sending of the termination letter.

It found that the employee was notified of the valid reason for dismissal, however, the employer did not give the employee an opportunity to respond to the valid reason for dismissal.

The commission found it accepted that the employer raised concerns with the employee about his performance at the meeting on 28 April 2025, but there was little detail of what was said. The commission found the company's concerns about the employee's performance were not explained to him until the employer's email of 7 May 2025, and while this was sent prior to the formal termination letter, it was clear that by this time the decision to end his employment had been made.

It said that based on the evidence before it, it did not consider that the employee had a fair chance to respond to the employer's dissatisfaction with his performance.

Commission finds dismissal harsh and unfair

The commission found taking into account all of the circumstances, it considered that because the employee was not afforded an opportunity to respond to the concerns about his performance, the dismissal was harsh and therefore unfair.

The commission found there was a good and valid reason to dismiss the employee because he was not able to do his job effectively, but the detail of the company's performance concerns was not explained to the employee until after the decision to dismiss him had been made. The commission found the company did not make any real effort to assist the employee to improve his performance.

The commission found because the company no longer needed his position anyway, it may have believed that there was no point in going through its performance concerns with the employee, but whatever the reason, the process was unfair in this respect.

Compensation inappropriate due to mitigation

The commission found the employee sought compensation rather than reinstatement. The commission found reinstatement was not sought and was inappropriate because the position was not needed. It said that in light of the numerous concerns, it was highly improbable that the process would have resulted in a decision to continue with the employment.

It was found further that the company had decided that it did not need the position in any event. The commission found it estimated that a fair process would have taken one week, marking the limit of compensable loss in this case.

It found, however, that the Act required it to take into account the person's efforts to mitigate the loss suffered because of the dismissal. The commission found at the proceeding that the employee's representative said that, following his dismissal, the employee did not apply for any jobs and that he had been thinking about retiring. The commission found that she said that from around 4 or 5 weeks after dismissal, the employee was too unwell to apply for jobs or to work.

The commission found in its view, the failure to take any steps to mitigate loss meant that it would be inappropriate to award compensation in this case. It said that although it accepted the employee was later too ill to work, if no efforts were made to look for jobs in the first 5 weeks, it was not persuaded that but for the onset of illness, the employee would have changed his mind and started to look for work.