Steven Post v NTI Limited T/A NTI (U2014/14956) [2015] FWC 3911. Williams, C. 9 July 2015


A Performance Evaluation Review was conducted by Mr Alexander with Mr Harborne in early May 2014. The Review identified a number of areas where Mr Harborne had not met elements of his job description.


The Review report identified a number of required actions for Mr Harborne, e.g. “Continue to progressively promote innovative product and scale back on commodities” and “Targeted product suite focus required with forward planning to secure ongoing sales/forward orders”.


Mr Harborne received notice of his termination in a letter from Mr Alexander dated 25 August 2014 which stated:


“We consider that your performance is still unsatisfactory and have decided to terminate your employment for the following reasons:


  • Failure to meet planning and reporting functions to a required level
  • Failure to achieve forecasted sales results”


Mr Harborne submitted that his sales forecasts were not achievable due to a number of factors, including:


  • product line unavailability – in his application Mr Harborne cited a number of products which were not available, resulting in orders being cancelled or not placed;
  • the closure of Imtrade’s Wagga Wagga depot which resulted in increased transport costs for clients and in turn lead customers to source product from alternative suppliers;
  • the pricing of products;
  • quality issues with some products; and
  • drought conditions in northern New South Wales.


In dismissing the application, the DP stated:


“Taking into account all of these factors, I am satisfied that there was a valid reason for Mr Harborne’s dismissal. Drawing on the language of the decision in Rode’s Case, I am satisfied that the reasons for Mr Harborne’s termination are defensible or justifiable on an objective analysis of the relevant facts and were not ‘capricious, fanciful, spiteful or prejudiced.’


“[The FWA] (e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal.


“…Imtrade first raised its performance concerns with Mr Harborne in the May 2014 Performance Evaluation Review. The material before the Commission suggests that the purpose of the Performance Evaluation Review discussion was to try and assist Mr Harborne to improve his sales performance and the quality of his planning and reporting. Despite the market difficulties existing in New South Wales, I accept that Mr Harborne was given sufficient opportunity and guidance on how he might improve his performance in these areas.”


The DP concluded:


“Drawing on the above analysis, I find that despite the difficult market conditions in New South Wales, there was a valid reason for Mr Harborne’s dismissal related to his performance, that Mr Harborne was notified of Imtrade’s concerns about his performance, that he was given an opportunity and assistance to improve his performance, and that there are no other relevant considerations.

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