Employer argues 'unsatisfactory performance' but Commission says otherwise
A worker recently filed an unfair dismissal claim against her employer before the Fair Work Commission (FWC), alleging that she was fired due to “arbitrary” sales targets. Meanwhile, the employer argued that her dismissal was valid because it was an “unsatisfactory performance.”
The worker, Chuqi Wang, began her part-time employment as a sales or beauty consultant with the employer, Perfect Shape Medical Beauty Australia Pty Ltd, in January 2022.
On November 17, 2022, the worker received a warning letter (first warning) highlighting her failure to meet the October 2022 sales target of $150,000.00.
The worker contested the warning, citing that the employer approved her leave during the month and sought clarification on her sales target status as a part-time employee.
Despite the worker's efforts, a second warning was issued on December 9, 2022, for not meeting the sales target in November 2022. The employer directed the worker to take immediate "corrective action."
Later, an employer's representative expressed concerns about the worker's punctuality and client outreach.
The worker again raised her concerns about the warnings and questioned the lack of details regarding corrective actions. She also said the sales target was not a part of her job duties as a consultant, arguing that the warnings were arbitrary and amounted to workplace bullying.
In its defence, the assistant HR and administration manager emphasised the importance of meeting sales targets and job responsibilities.
On June 28, 2023, the worker received a termination letter based on consistent unsatisfactory performance and failure to meet sales targets.
The worker argued the dismissal was harsh, unjust or unreasonable, because:
“There were two warning letters sent to me in November 2022 and December 2022, I consider both letters invalid. The first letter was issued in Oct 2022 for unsatisfactory performance and for not meeting sales targets. Despite working only nine days that month, the same sales target was expected of me according to the letter,” the worker said.
“This letter contained typographical errors and inaccuracies. I have highlighted these issues and am awaiting clarification, which I have yet to receive. The second letter in December was issued for the same reason,” she added.
The worker also said that the employer’s “customer allocation process is unfair.”
“The company allocates customers to consultants via a WhatsApp chat. If no customers are assigned, consultants must sit in the room for the entire day. The sales performance achieved in the previous month determines which consultant will get most of the customers based on sales rank.”
“Despite being a part-time employee, I am expected to meet the same sales target as full-time employees. The sales target is set at $150,000 per month, a figure that was neither communicated nor agreed upon,” she said.
“Every consultant is expected to achieve this target monthly. To my knowledge, no consultant has met the sales target so far. Several consultants have been dismissed in recent months for the same reason: consistent unsatisfactory performance and failure to meet the sales target.”
“I believe this target is not achievable. The employment termination process is questionable. Termination of employment is a serious decision [for] the employee, HR [informed] me via WhatsApp chat in a sudden, there is no prior message. I have to bear this message myself without a supporting companion. It has caused stress and chest pain. I have made an appointment to see my GP,” she said.
Meanwhile, the employer argued that the worker “was often late.” It also said that it “offered regular training to the [worker] to improve her performance” and that [the worker was] was “provided with two warning letters and was on notice about the possibility of termination if her performance did not improve.”
In its decision, the FWC said “the only reason relied on by the [employer] as set out in the termination letter was based on alleged unsatisfactory performance for not meeting the sales target.”
“However, the [employer] did not provide any evidence about how the sales targets were set, how the sales targets were reasonable, nor evidence about whether other employees ever achieved the sales targets,” it said.
“Evidence was provided about the [worker’s] sales performance during the 17 months of her employment. It indicated that the [worker] never achieved sales of $150,000.00 per month. She averaged $24,531.92 per month. Absent any other evidence the [employer] has not established that the [worker’s] actual record was a failure to perform,” the FWC said.
“There was not a valid reason for the dismissal. The purported sales targets were arbitrarily set and applied. The [employer’s] application of the purported sales targets was not sound, defensible or well founded.”
The Commission said there was no valid reason for dismissal and added that even though there was any, “it still cannot be said that the [worker] was notified.”
It said the worker only received a “phone call on the day of dismissal,” which merely informed her of the decision. Thus, the FWC said the worker was unjustly dismissed.
