Worker characterised performance review as ‘farce’
A software developer challenged his dismissal, arguing that the employer failed to appreciate his technical contributions and fabricated documentation to discredit his reputation.
The worker contended that delays on the major project were not his fault, performance concerns were subjective and related to salary negotiation, and his questioning of tasks reflected healthy technical debate.
The employer maintained the worker's combative and argumentative behaviour, exhausting colleagues, refused simple requests before storming out after prior warnings, and prolonged discussions unnecessarily consumed management time.
Employment and workplace interactions
The employer was in the business of developing software for graphics design, sign making, digital print, and computer numerical control (CNC) machining industries. The worker started employment in April 2018, employed full-time as a web and software developer.
His contractual duties included developing software code for various commercial uses aligned with the employer's business. The worker worked on a particular project that involved the integration of an online payment or e-commerce facility intended to be integrated into a client's existing online portal.
On 6 March 2023, a new employee starting work was located overseas. To welcome the new employee, the office manager sent around a message to the team, which appeared to be about 10 people in total. The office manager wrote a welcoming note, welcoming the new employee and hoping he had a great first week, with a friendly emoji symbol.
A number of employees responded with short welcome messages, generally typical of such messages welcoming a new starter. The new employee himself replied, saying he was excited to join the team.
At around the same time, the worker wrote, "Can we please stop being polite and start being productive?" Unsurprisingly, given the blunt and unwelcoming tone conveyed by the worker's message, the office manager sent the worker a separate message saying, "It is unclear whether or not this is a joke; however, it comes across quite intense and not very friendly."
It soon became clear that the worker's message was not a joke or intended in jest. The office manager followed up, stating it was inappropriate to cause conflict on a public forum, and welcoming a new team member working remotely was critical to ensuring they felt part of the team.
Unwelcoming exchange and warning letter
The worker removed his message from the main chat group. According to the worker, he quickly realised it might be misconstrued and removed the message, which he said demonstrated self-awareness and a willingness to adjust communication if he thought it might be perceived negatively.
In fact, it appeared he did so in response to the office manager's counselling message. The office manager then wrote, thanking him and stating it was not very welcoming or kind, especially when someone was beginning from another country by themselves, and the group chat should be used to create a team environment.
Belying the self-awareness the worker claimed he possessed, he then wrote on the three-person chat: "Can we have 2 different group chats, one for those who are here to make friends, and the other for those who are here to work?"
The office manager responded, stating this was ridiculous, it was the new employee's first day, and it was a welcome message, and she was shocked he was being so negative.
The worker responded: "I don't want to be part of the team environment. I don't want to know about other employees being sick, and I don't want to know about days off. And I don't want to be welcome to the new people. I have my team, it is one person. It is enough for me."
The office manager's last message appeared to have been the final word on the topic during that chat message. Notwithstanding, the exchange was of sufficient concern to the employer that it issued the worker with a letter titled "Warning advice about your recent conduct".
The letter stated: "We are writing to you to express our concern regarding your recent conduct during our group chat discussions. Your comments are unnecessarily offensive to other staff members, and airing grievances in this setting is not acceptable staff behaviour. Your behaviour in the group chat on March 6, 2023, does not align with our expectations. You have been removed from the chat, and we hope that as a result, fewer distractions occur during your work day, and we expect that productivity should therefore improve."
In response to receipt of the warning letter, the worker responded: "Hereby, I officially reject your warning letter. All the accusations are subjective to the point of view, and the letter carries no quotes or any other clarifications for me to draw any meaningful conclusions. I'm willing to forgive the company this time, but next time, a letter like this will be seen as regular harassment and cultural racism."
Response demonstrates a lack of insight
The Commissioner found the worker's response demonstrated a significant lack of insight. First, to criticise the letter because it did not contain "quotes" was disingenuous, as it was crystal clear what messages were being referred to.
Second, to use a general directive to minimise excessive chats to shield his poor behaviour compounded that lack of insight. Finally, the notion that the worker would "forgive" the company while at the same time deploying an unfounded accusation of "cultural racism" was quite remarkable.
It was to the employer's credit that they left the matter lie where it was, rather than taking it further as the Commissioner considered they would have been entitled to do.
On 19 March 2024, the worker requested a new charger for his laptop. Rather than making a simple request for a better charger, he sent the managing director multiple messages, 14 in total, explaining various investigations and tests he had performed on his charger and his opinions on chargers.
The managing director immediately approved the request but, with some evident frustration, also said the issue "does not require this many messages and so much investigation, which wastes more time" and that the "time you have just spent writing this out is crazy". That prompted more messages from the worker about being "blamed", which the managing director made very clear there was no blaming.
On 11 June 2024, the managing director conducted a performance review with the worker. There were three aspects identified where performance needed improving. The first was productivity primarily by reference to the project timeliness, which was still ongoing.
The second was "workplace attitude", and the review stated, "there have been several instances where your behaviour has been combative and argumentative, which has affected team morale and project efficiency". No specific examples were given, although the review did state there have been "Frequent argumentative interactions, particularly during discussions about task priorities, responsibilities and approaches towards tasks."
Performance review not accepted
At around this time, the worker had also been seeking a pay increase. No pay increase was offered, and brief reasons for that were also recorded in the written performance review. It was quite clear that the worker did not accept any of the performance concerns raised at the performance review.
The following day, he wrote a lengthy message in which he stated: "I was only after a salary rise. All this farce related to the review of my productivity was not required to me. It was painful to learn that all my efforts are not being appreciated by the company. It still hurts. But I'm recovering. What I learned from the last meeting is that you can pay more, so you are kind of making this a sport for yourself from the wage negotiation process."
The Commissioner found the worker's characterisation of the negotiation process as "sport" was significantly misplaced. Putting aside the various reasons contributing to the delays in the project, which were clearly of concern to the managing director, the workplace attitude issues expressed by the managing director were sincerely held, and there was a proper basis for them. It was not a "farce" or "sport", although it seemed clear that was how the worker perceived matters.
On 14 June 2024, there was a chat communication involving the worker and his management team. The chat ended with the worker writing: "I don't love you very much at the moment, the managing director is not giving me the salary raise as promised, the senior engineer is moving some things behind my back until it breaks and cannot go back, and now I need to remove the security layer from the API. I need some anger management at the moment."
The managing director separately upbraided the worker for the above comment almost immediately, as well as a separate comment the worker had made about the skills of another work colleague.
The managing director wrote, "These comments are inappropriate and unacceptable, and you have no right to say things like this to other staff members and make statements about what I promised you, when I did no such thing." He also said that on the following Monday "we will discuss all of this to address your misconduct and resolve this unacceptable situation."
Warning issued about professional attitude
On 17 June 2024, the managing director issued a warning to the worker regarding the comment the worker had made to the senior engineer a few days earlier. The warning was in writing and provided to the worker. The warning also included under a heading "Expectations going forward" that "You must maintain a professional and respectful attitude towards all colleagues".
The letter stated that a failure to demonstrate "an immediate and sustained improvement in these areas may result in further disciplinary action, up to and including the ending of your employment."
The following day, the worker apologised to the senior engineer for his comments. It would appear that the apology was unsolicited, a point in the worker's favor. The apology included an explanation for why the comment was originally made, which, as the Commissioner read those messages, was evident frustration with the failure to secure a salary increase and pressure with work deadlines.
Somewhat concerningly, the chat messages from the worker also contained an implied warning to the senior engineer to be "mindful" about the managing director, which were suggestive that the managing director could not be trusted. Those comments were made in the context of the worker again raising his salary increase aspirations to the senior engineer.
In August 2024, the employer's delays with the project saw the vendor of that contract exercise a contractual right to discontinue the agreement between it and the employer. Whatever the precise legal mechanism, the arrangement was coming to an end.
Also, by around this time, the managing director's evidence was that the employer had been required to pay some form of contractual penalty on account of the delays. Notwithstanding, a subsequent transitional period to 31 December 2024 was agreed to allow the employer to changeover to another service provider.
Worker refused the request and stormed out
One of the final incidents, which appeared to be the metaphorical straw that broke the camel's back, occurred on 7 October 2024. The morning began as a regular work morning, in which the worker was working in the office. The office was broadly open plan. The office manager was present, as was the managing director and some others.
As best as the Commissioner could assess, the worker arrived for work by 10am. Shortly after, the office manager asked the worker for a particular personal serial number. The Commissioner inferred that the request related to an issue about email synchronisation for some customers.
The office manager's request was a simple one. Nonetheless, the worker did not consider she needed the personal serial number, and the Commissioner inferred that she said so, which also led to a reiteration of the request.
Neither party gave evidence of the exact words used. Instead of simply providing the serial number to the office manager, the office manager's evidence, which the Commissioner preferred, was that the worker refused outright, saying words to the effect of "No, I am not giving that to you," before abruptly storming out of the office.
The managing director was close by when this happened, and his evidence, based on what he observed, was to a similar effect. The Commissioner was readily satisfied that the worker's outburst was a heated outburst, as the office manager described.
The worker sought to downplay the confrontation in his evidence, but the employer's evidence was preferable. The worker acknowledged he was upset in the encounter, suggesting that the encounter was not some vanilla discussions about the pros and cons of some technical issue.
Notwithstanding his initial refusal, the worker did provide the serial number quite soon afterwards. The timing wasn't clear once again, but it was probably provided within about 30 minutes of the initial request.
Witnesses described corrosive impact
The Commissioner addressed a repeated theme of evidence given by the three witnesses called by the employer. Each of those witnesses described, in their own words, significant challenges in dealing with the worker as a work colleague and in a team environment. The senior software engineer frequently collaborated with the worker.
The senior engineer's evidence was that he found it consistently difficult to engage in technical discussions with the worker. The senior engineer said that conversations that should have taken only a few minutes regularly extended into hours-long, drawn-out discussions and arguments.
To help manage these concerns, the senior engineer said he avoided engaging with the worker on their messaging platform. Instead, he chose to make telephone calls or to discuss matters in person to prevent discussions from spiraling into unproductive debates.
The office manager gave similar evidence about her interactions with the worker. She said that attempting to assign tasks to the worker was "exhausting". She also said that the hostility she faced from him was something she had never experienced with any other employee. In her view, many of the worker's responses went beyond healthy debate, they were dismissive and combative, which she said left her feeling overwhelmed and distressed.
To a similar effect, the managing director's view was that the worker repeatedly prolonged discussions unnecessarily, consumed management time with personal grievances, and failed to focus on solutions.
The managing director said the worker's tendency to create excessively lengthy dialogues rather than act on instructions impacted the team's productivity and placed strain on other staff members.
Valid reason for dismissal found
The Commissioner acknowledged that there was frequently a considerable degree of nuance in making an assessment of someone's fit within a team environment or whether they were combative. It was often the case that there was no particular event or events contributing to a belief about fit or impact on the team environment.
Rather, there was sometimes an overall accumulation of relatively minor instances, which were commonly not documented or recorded. The assessment by one employee that another employee had behaved in a particular way was often subjectively presented and may not fairly reflect the reality of the situation.
Here, however, the Commissioner was readily satisfied that the worker's impact on the small team within the employer was corrosive to a positive environment where other employees wanted to work. Simple tasks became difficult. Basic requests became negotiations. The relationship was all too often, as the office manager said, exhausting.
Each of the three witnesses called by the employer gave evidence that, in essence, dealing with the worker was frequently draining and difficult.
The Commissioner did not doubt that a number of encounters would not involve any particular fault on behalf of the worker, but was satisfied that the consistent picture painted by those three witnesses reflected the substantial difficulties they had in dealing with the worker.
The Commissioner considered that the warning issued on 17 June 2024 told the worker, in sufficiently clear terms, that the worker risked dismissal and why. That letter was titled "Formal warning for inappropriate conduct" and gave two concrete examples of statements made by the worker that the employer considered were "inappropriate and unacceptable".
The warning letter directed the worker to maintain a "professional and respectful attitude" towards work employees and specifically foreshadowed termination if an immediate and "sustained" improvement did not follow. The Commissioner was satisfied that the worker had an opportunity to respond to the warning and he was given a reasonable chance to rectify the problem.
The events of 7 October 2024 were important. The worker could have simply responded to that request with a short message explaining why, but instead, there was an emotionally-charged outburst in front of a number of staff, which ended with him walking out. It was distressing for the office manager, once again.
The worker's technical skills were evidently sound, but working with him was too difficult for too long. There was a valid reason for the worker's dismissal. Where an employer had organised its business to include teams or small groups, the ability of those teams to work cohesively was frequently considered a particularly important facet of the company.
The Commissioner was satisfied that the dismissal was consistent with the requirements of the small business code and the application was dismissed.
