[2021] FWC 6682

The attached document replaces the document previously issued with the above code on 23 December 2021.

A paragraph numbering error has been amended.

Associate to Deputy President Lake

Dated 23 December 2021

Fair Work Act 2009
s.394—Unfair dismissal

Fiona Stark
v
Charter Mercantile Agency Pty Ltd
(U2021/6932)

Application for unfair dismissal remedy – dismissal for serious misconduct – whether valid reason for dismissal – where valid reason existed – application dismissed

[1] Fiona Stark (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Charter Mercantile Agency Pty Ltd.

[2] The Applicant commenced employment with the Respondent on 1 August 2019 and was terminated on 20 July 2021, effective immediately for serious misconduct.

[3] It is not in dispute that the application was made within time, the Applicant is protected from unfair dismissal, the Small Business Fair Dismissal Code does not apply and the dismissal did not involve a genuine redundancy. 1 The matter for determination is whether the Applicant’s dismissal was harsh, unjust or unreasonable.

[4] This matter was heard in Brisbane on 20 October 2021. At the hearing, the Applicant sought to be represented by Sean McNally from Moreton Bay Law. Granting permission to be represented under s.596 requires the existence of one of the criteria set out in s.596(2), though their mere presence does not immediately invoke the right to representation. Rather, the Commission must use “an evaluative judgment akin to the exercise of discretion”¹ and consider “whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.” ² I was satisfied that, given the personal nature of the allegations and the allegations of bullying and other conduct by persons within the Respondent, it was appropriate to allow Mr McNally to appear for the Applicant. He did so virtually. The Respondent was self-represented by Simon Hunnisett.

APPLICANT’S MATERIAL

The Applicant’s evidence

[5] The Applicant prepared two written statements and gave evidence at the hearing. She had been employed by the Respondent at their call centre at Redcliffe as a debt collection agent. At the hearing, the Applicant stated that she had previously worked as a solicitor in Brisbane and was still on the roll of solicitors in Queensland and New South Wales, although she does not hold a current practicing certificate.

[6] The Applicant stated that the Respondent predominantly acts as authorised debt collection agents for major corporate and financial clients. The Respondent relies on a computer generated dialler system, known as “Cosmos”, as well as manual calls to contact customers/debtors. At the hearing, the Applicant explained that the process for commercial clients and banking clients was the same, whereby she would either be on the computer generated dialler, which would make various calls to a number of customers and wait for an answer. Her evidence was that she had been told that incoming calls were to be given priority over those coming through the dialler. She said that because of the way the Cosmos system worked sometimes a person could be operating the dialler and they would be linked to a call but then another call coming through which they would answer thinking that they would get someone from the dialler but it was actually an external, incoming call. This would terminate the first call automatically. The Applicant said the Cosmos system had lots of glitches and would break down or freeze at least twice a day.

[7] On 20 July 2021, the Applicant was asked to attend a meeting in the boardroom. Present were Gary Thorley (Manager), Dean Atcheson (Manager), Jessica Brumley (Collection Agent) and Tiffany Atwood (Team Leader). The Applicant was not invited to bring anyone into the room with her. At the time, she did not think to ask as she was not sure what the meeting was about. She immediately felt intimidated given the presence of those four people, the fact there were various papers on the table in front of her and Ms Brumley set out about taking notes.

[8] Mr Thorley commenced by saying they had a serious matter to discuss. He asked her a couple of questions about the Bankwest account before informing her that her employment was to be terminated because of fraud. She was taken aback by this accusation. She found it defamatory and upsetting. She asked Mr Thorley to elaborate. He told her that they had discovered that she had been hanging up on Bankwest customers over the last few weeks.

[9] The Applicant recalls Ms Brumley interrupting Mr Thorley to say that the conduct was very concerning. The Applicant asked Ms Brumley to be quiet given that the Applicant did not think she should even be in the room as she was a more junior collector than the Applicant.

[10] Mr Atcheson asked the Applicant if she had been hanging up on Bankwest customers when on the dialler. The Applicant responded by saying that she had been repeatedly told that the golden rule was to ignore any calls on the dialler if there was an incoming call. She admitted to having hung up on some customers to take an incoming call. The Applicant said she had been keeping a folder of the daily statistics and knew that she answered more incoming calls than other staff. Customers frequently complained they could not get through to the Respondent as no one would answer the phone. Further in respect of this allegation, the Applicant stated that she had never had this drawn to her attention as an issue prior to the meeting at which her employment was terminated.

[11] The Applicant went on to explain that the Cosmos computer system that is used is inherently unreliable and that the dialler would frequently freeze. This meant that a customer would answer the phone but no customer information would display on the screen as the system had frozen. The Applicant, and other collectors, would be forced to terminate the call because otherwise they would have no name, address or subject matter for the call and it would be impossible to proceed. The Applicant further stated that sometimes the calls would appear to be answered by a customer only to realise it was their answering machine. As callers were instructed not to leave messages on a private dial, she would terminate the call. The Applicant admitted there had been occasions whereby a mistake has been made and the wrong activity box has been pressed accidentally. The dialler is quick and it becomes an automatic process to respond quickly. The Applicant said she was aware that other collectors had made similar mistakes.

[12] The Applicant claims that during the meeting, Mr Thorley accused her of inducing people to commit suicide. She was horrified and upset by this statement, particularly given she had attended to many calls with distressed people whom she had tried to assist in accessing psychological services and finding a solution to their debt in accordance with the Respondent’s standard practices . It was particularly distressing given that she had lost two people close to her in this way.

[13] The other allegation put to the Applicant and relied upon by the Respondent in terminating her was that she had inaccurately recorded her timesheets. The Applicant strongly denied that she was dishonest in recording her hours of work. She said that the security passes were not a reliable indicator of when someone had clocked on or off because people would walk in or leave together. Similarly, the computer log may not be accurate because sometimes she would have to restart her computer.

[14] When shown the specific discrepancies between the times derived from the security passes and the times she recorded as start and end times, the Applicant stated that:

“My understanding was that we would - you know, say we had our shift 8.00 until 4.00.  I would put 8.00 until 4.00 and if I was one or two minutes late signing in at the door, I just assumed that that would be picked up, anyway, on - you know, it didn't occur to me that we had to - no one ever said to us - and in fact we were never told how to fill in a time sheet, but no one ever said you have to put the exact 8.03 or 4.31 or whatever, so … But if I had left early - say, for example, if I was sick or I had an appointment or whatever, I was faithful to put down - you know, if I left at 1.30, I left at lunchtime and that was the case.”

[15] The Applicant also denied having hung up on a work call in favour of taking a personal call. She said this allegation, like the others, was never put to her before her termination.

[16] The Applicant says Mr Thorley stated she was dishonest and her behaviour was disturbing. When Ms Brumley again interjected and commented on her performance, the Applicant told her to stop. Mr Thorley told the Applicant to try and retain some dignity. The Applicant went on to say that as a permanent employee she should be counselled, given an opportunity to explain herself or receive further training.

[17] The Applicant then articulated that her statistics had been good, despite the fact that she had been the subject of harassment and intimidation by Mr Atcheson and Ms Atwood. She detailed those instances both in her statements and at the hearing. I have read and considered each. They included an allegation that Mr Atcheson told her that, “I am the rock of this firm and you guys are the rubble” and that he falsely accused her of not being on the dialler when she was. The Applicant says there were a number of occasions where he had to concede that she had in fact been on the dialler but he never apologised for effectively calling her a liar in front of her colleagues.

[18] During that meeting and at the hearing, the Applicant vehemently denied the allegations of misconduct, fabrication of records or otherwise dishonest behaviour. However, she conceded that on rare occasions on which she missed speaking to a Bankwest customer it was because she was stressed, time poor and under the hammer to perform. The Applicant said she was terrified of making a mistake on a Bankwest call as Mr Atcheson had made it clear on a number of occasions that any mistakes would result in termination. She said other employees also expressed that they felt their jobs were threatened and they resented this.

[19] The Applicant said that throughout this meeting, she was not provided with an opportunity to properly respond to the allegations because she felt ambushed, intimidated and overwhelmed. She was unable to have recourse to her computer on which she says she had kept detailed notes. That inhibited her ability to defend herself. Furthermore, the fact that the termination letter had already been printed and handed to her early on during the meeting made her feel like resistance was futile.

[20] After the meeting concluded, the Applicant was escorted to her desk by Mr Atcheson and Ms Brumley. She was instructed not to touch her computer and to return her security pass. The fact she was being treated as a security risk was insulting and confronting, particularly considering when it was in full view of other staff.

[21] The Applicant felt that during this process Mr Atcheson stood over her in a confronting manner which she found intimidating and triggering. Upon returning home, she wrote a complaint to the Respondent’s head office in India. No response was received. She also called the Redcliffe Police Station and reported that Mr Atcheson had made her feel physically intimidated while she was being asked to leave. She says the police told her they had noted her concerns but would not take the matter any further so she did not make a formal statement.

[22] She says it took two phone calls and an email before she was provided with a Separation Certificate.

[23] The Applicant has been looking for work through a couple of employment agencies since her termination but not found work. She is currently receiving Centrelink and her husband’s WorkCover.

Evidence of Glen Kendall

[24] Mr Kendall provided a witness statement in these proceedings but was not required for cross-examination. Mr Kendall commenced employment at the Respondent in July 2019 in the role of collection agent. Training was provided through the Indian office which he found to be highly inadequate. Mr Kendall said that he received feedback regarding Quality and Compliance from Roshid. Mr Kendall stated that he frequently questioned feedback but was told by Mr Atcheson that he was not permitted to ask any questions of Roshid. According to Mr Kendall, the inability to question or reply to feedback was frustrating and rendered future training pointless.

[25] Mr Kendall stated that inconsistencies in information provided by Roshid and Mr Atcheson made his day to day duties difficult. Mr Kendall recalled that Mr Atcheson would instruct employees to perform tasks a certain way and then later reprimand staff for following his directions.

[26] In October 2020, Mr Kendall and the Applicant attending a Bankwest training session with Ms Attwood. According to Mr Kendall, Ms Attwood treated the session as a joke and gossip session, advising the Applicant that she knew nothing about Bankwest and that she should contact Melody Johnson or Sherrelle Matila-Smith if she had questions.

[27] Mr Kendall stated that his relationship with Mr Atcheson further deteriorated when Ms Attwood was appointed Team Leader. Mr Kendall recalled regularly seeing the Applicant upset about the way she was being treated by Mr Atcheson as she too felt harassed and intimidated.

[28] Mr Kendall stated that in mid-2021, Ms Robyn Zahner commenced employment with the Respondent and advised the Applicant and himself that Ms Atwood told her and two other employees not to approach the Applicant, Mr Kendall or Ms Wright as they have poor work practices and are known as the “three stooges”. Mr Kendall’s view is that it seemed he and the Applicant were being slandered unfairly.

[29] Mr Kendall recalled feeling harassed during his employment with the Respondent. Mr Kendall stated that Mr Atcheson made his working life “unbearable” to the point that the resigned. Mr Kendall stated that he felt the Applicant was treated in a similar way and was given a particularly hard time by Mr Atcheson and Ms Attwood after Ms Zahner resigned, as the Applicant supported her.

[30] Mr Kendall confirmed that staff were often told by Mr Atcheson to ignore dialler calls and grab incoming calls because these were regarded as “gold” and priority. Mr Kendall also confirmed that the Cosmos system is highly ineffective and prone to constant glitches resulting in the termination of calls or the loss of call notes.

Evidence of Janet Rouget

[31] Ms Rouget provided a witness statement but was not required for cross-examination. Ms Rouget commenced employment at the Respondent on 16 December 2020 as a casual debt collection agent.

[32] Ms Rouget stated that during her period of employment she was frequently referred to by the incorrect name which she found at times to be insulting. Ms Rouget further stated that certain members of staff were given privileges over others as they had developed friendships with management and were at times not required to complete the same work as other staff.

[33] Ms Rouget’s evidence is that on many occasions, some staff were accused of not participating in the dialler campaigns and were regularly reprimanded unfairly. According to Ms Rouget, the Applicant appeared to be unfairly harassed by management, particularly by Mr Atcheson and Ms Attwood, for fabricated reasons such as not being on dialler campaigns when she actually was. Ms Rouget recalled the Applicant appearing distressed in the lunchroom stating she felt anxious about additional work with which she had been tasked.

[34] Ms Rouget stated that at times she witnessed Mr Atcheson speaking aggressively to the Applicant. According to Ms Rouget, the Applicant communicated that her that the behaviour of management of was affecting the Applicant’s health. Ms Rouget stated that she found the Applicant friendly, hardworking, cooperative and willing to assist others.

Evidence of Robyn Zahner

[35] Ms Zahner was employed by the Respondent as a collection Agent from 1 September 2020 to 15 March 2021.

[36] Ms Zahner stated her training was mostly conducted through the Indian office. According to Ms Zahner no formal training on the Cosmos system was provided, except for occasionally observing other calls. Ms Zahner’s view is that Cosmos was ineffective and often went down, with no onshore IT assistance. Ms Zahner stated that customers would frequently complain that they had been called upward of six times a day on a private number with no one on the other end and we would have to explain to them that this was because of the computer generated dialler. The dialler would also often stall or result in terminated calls.

[37] Ms Zahner stated that her request to sit with the Applicant to receive training was denied by Ms Attwood who directed her to instead sit with another employee. Ms Zahner’s evidence is that Ms Attwood advised her to avoid approaching the Applicant, Mr Kendall or Ms Kelly-Anne Wright (referred to by Ms Attwood as the “three stooges”) for any assistance, as their bad work practices may rub off on her.

[38] According to Ms Zahner, Ms Attwood blatantly favoured other employees. Ms Zahner stated that this was demonstrated by allowing them to engage in lengthy discussions about personal issues upon arriving at work, have extended time out of the office, and advising Quality and Compliance to “bury” their mistakes. Ms Zahner stated that Mr Atcheson was also complicit in this behaviour.

[39] Ms Zahner stated that she was criticised for interacting with the Applicant at break times or upon arrival. Ms Zahner’s evidence is that since Ms Atwood became team leader, the situation had deteriorated greatly. Attending work became more stressful, it was difficult to have questions answered or any assistance provided when criticised. She said it was clear to her that some staff were treated more favourably than others.

[40] Ms Zahner corroborates the Applicant’s claims that she was spoken to by management in a patronising, belittling manner, that Mr Atcheson and Ms Attwood would often gang up on her and fail to include her in proper Bankwest training until around April 2021 (despite another member of staff receiving training prior to that).

[41] Ms Zahner was terminated from her position and brought an unfair dismissal application of her own in this Commission, which she says she discontinued after she found out that her continuation of it (and the involvement of Ms Stark in it) was causing people within the Respondent to target Ms Stark. By that time, she had already found other employment anyway.

Applicant’s Submissions

[42] The Applicant submits that she had been employed by the Respondent for nearly two years and that during that time she worked diligently and performed well in the high pressure work environment that existed in the high volume calls centres. She says that she had been ahead in statistics with respect to the performance of her duties.

[43] The Applicant notes that more recently, she had been asked to take more BankWest calls. These were slightly different, and she found them more complex than the other portfolio she had been working on previously. The Applicant asserts that she was provided with no effective training. Rather, the training that was provided was offshore and unclear.

[44] The Applicant denies all allegations of fraud and dishonesty. It was asserted on her behalf that she is not a liar, she’s a lawyer. Further, the Applicant claims there was a paucity of evidence provided at the time of her dismissal – and still – regarding whether, during the impugned calls, it was the Applicant or recipient who ended the call. She asserts that neither she nor the Commission has that evidence. The Applicant submits that, as per the standard outlined in Briginshaw v Briginshaw, where fraud is alleged, a higher burden of proof should be met before drastic action is taken.

[45] The Applicant says she had been instructed by Mr Atcheson that priority was always to be given to incoming calls, rather than those generated by the dialler. It was also noted that given outgoing calls often appeared as a private number, people often hung up. No evidence has been produced regarding the statistics of other call centre workers in the relevant week to see if her call rates were similar to others. Further, the Applicant claims that she has been deprived of the records she made in the course of her employment.

[46] The Applicant further states that at the meeting at which she was summarily dismissed, the Applicant was not provided with the particulars of the allegations against her, nor was she given a proper opportunity to respond. The letter had been drafted before she entered the room, and it was clear a decision had already been made to terminate her employment.

[47] In respect of each of the elements of s.387 of the Act, the Applicant made the following submissions. Firstly, that her dismissal was of a summary nature, but her conduct was not dishonest. She did not hang up on callers deliberately as alleged. The Applicant states that there was not at the time, nor is there now, evidence of a valid reason for dismissal, let alone valid reason for summary dismissal. She was dismissed without any warning, prior performance appraisals or recommendations for improvement. Secondly, that there was never any (or any proper) notification relevant to her capacity or conduct prior to her summary dismissal.

[48] Thirdly, that she was given no opportunity to respond to the allegations. There was a confluence of factors that inhibited her ability to properly respond. The obvious factor was that she was in shock. She was also denied access to the alleged proof of wrongdoing. She says that was not allowed to listen to the impugned recordings or otherwise check to see if any of the calls had been recorded in her personal notes. Rather, she was confronted by those who she alleged to have bullied her in the workplace, Mr Atcheson and Ms Attwood, and summarily terminated. A more junior employee was also invited to attend that meeting and rebuked the Applicant.

[49] Fourthly, the Applicant submits that she was deprived of the opportunity to have a support person because she was not told of the nature of the meeting prior to attending. Fifthly, the Applicant submits that she should not have had to face her tormenters directly and a dedicated Human Resources Manager should have been there to intervene or at least mediate discussions between them. Finally, the Applicant asserts that she was a hard-working, dedicated and high achieving employee who has not been afforded procedural fairness in this case. These matters, she claims, should be taken into account when deciding whether she was unfairly dismissed.

[50] In terms of an appropriate remedy, the Applicant asserts that had this not occurred, she would have expected to have continued in her employment until at least the end of 2021. She has been diligently seeking alternate employment since her dismissal without success. For these reasons, the Applicant respectfully submits that she ought to be awarded the maximum monetary compensation under s.392 of the Act.

RESPONDENT’S MATERIAL

Evidence of Gary Thorley

[51] Mr Thorley, Manager, has been employed by the Respondent for over 24 years. He had worked with the Applicant since she commenced employment with the Respondent and believed they had a great working relationship. He never observed her being bullied or harassed. Mr Thorley also rejected the Applicant’s claims that her training in respect of the Bankwest matters was poor. He thought that every opportunity had been extended to her to gain experience in actioning these accounts. He said the Applicant had the assistance of their head manager in India as part of the training. The Applicant was granted exclusive access to be the initial agent in making manual phone call first contact with new customers. Mr Thorley explained that it was conveyed to the Applicant that despite extra training and all attempts allowing preferential access, customer contact had not appropriately improved. An investigation was subsequently established to determine the issues.

[52] Mr Thorley stated that the meeting on 20 July 2021 commenced by recapping issues conveyed over the past few months with respect to the Applicant’s lack of confidence in handling the Bankwest accounts and the further training she had been provided. He then went on to summarise the issues they had found with respect to the Applicant’s work.

[53] Mr Thorley stated that the QA analysis concerning the Applicant’s working practices unveiled disturbing issues. Such issues included several outbound manual phone calls which resulted in a person answer the phone (at times answering hello twice) that were terminated by the Applicant. The record that was subsequently made was ‘Ph out - Phone - Voice Mail - No message left.

[54] Mr Thorley agreed in cross-examination that priority was given to incoming calls. He said, “All calls are important, but incoming calls of course have our quick attention”. He was asked what would happen if an incoming call came through to a staff member while they were on a Cosmos call. He replied:

“All calls are a priority. When you are on a call, you stay on that call.  If you're implying that you're on a call and talking to someone, however the means of that call coming through to you, should be terminated because you've got another call coming through, take in consideration there's a team of people, it is not correct.  Calls are generated by virtue of our proprietary dialler, and on a campaign, you've probably heard that terminology from time to time.  So when you're on a campaign you are either being provided with a call to answer, or you're waiting for a call.  So I would suspect the instruction of what you're getting to there is if you are waiting for a call and an inbound call occurs, it is appropriate to exit from that campaign whilst you are not on a campaign and take that inbound call.” 

[55] Mr Thorley was asked to provide more information about the process of accepting inbound and Cosmos calls. He explained it in the following terms:

“A campaign, you've - we have a number of people in our team on a campaign number.  You're waiting for the dialler to present with you with a pop screen, a phone call, right.  The dialler dials numbers for you, and when you get a pop screen, that's - as for dialler is concerned, it's linked with our collection system, Cosmos, we've probably heard of that many times, and it's uniquely linked, the account that the telephone number has been dialled of is linked to an account, and the phone rings, and up pops the screen with the customer's details on it.  So you know when you press the button and you're talking, you would be talking to a telephone number that was rung in connection with that account.  Whoever answers the phone is another thing again, but you've got the pop screen there.  So if an inbound call is ringing, you're already talking to someone.  The instruction is not to terminate that call and take the inbound call.  Yes, there's a priority when you're not talking to anyone, take the inbound call.  Inbound calls are always a priority.  We're not always working on the dialler.  So if you're sending emails, if you're doing whatever else you need to do, scribing up a letter, your priority in that eventuality is take the inbound call.”

[56] Mr Thorley gave evidence that the Applicant claimed difficulty in discerning the difference between voice mails and actual people when on out bound dialler calls. Again, it was explained to the Applicant that these were not dialler, but manually dialled phone attempts. Mr Thorley stated that the serious nature of hanging up on customers coupled with false and misleading account notes is in breach of service providers obligations under financial services legislation potentially placing the Respondent’s reputation with their clients in jeopardy.

[57] Mr Thorley denied that he told the Applicant during the termination meeting that her actions would cause people to take their own lives. According to Mr Thorley, he just explained that some bank customers are sensitive in nature, even suicidal, so hanging up on these people cannot be condoned.

[58] The reasons for the Applicant’s dismissal were early termination of outbound calls and falsifying records both in respect of the calls she made and the time she worked. Mr Thorley stated that the Applicant did not exhibit any remorse or understanding as to the severity of her actions. Their business is one that relies on trust. The Applicant’s actions had been deliberate, and she represented a clear and present risk to the Bank’s customers and the Respondent’s reputation. Given the risk to both was so high, it was determined that summary dismissal was warranted. This was not an action that Mr Thorley took lightly. During the hearing, he said that his trust in the Applicant was gone, “with great anxiety and disappointment on my part certainly.  I had to listen to these calls for my own benefit.  I would never want to take such stern action without satisfying myself completely from every angle”.

[59] Mr Thorley recalled that the Applicant was then handed the termination letter. The Applicant responded by claiming that she “cannot be sacked, she knows her rights, she is a permanent employee [and] she should be receiving a warning letter.” After reading “fraud” in the letter, the Applicant claimed was going to make a compliant to police.

[60] Mr Thorley’s position is that at no time during the Applicant’s employment was she bullied or harassed and no official complaint concerning bullying was received.

Evidence of Dean Atcheson

Mr Atcheson, Collections Manager, has been employed by the Respondent for over 12 years. He says he treated the Applicant fairly and never bullied or harassed her. He maintained that the training in respect of the Bankwest files was comprehensive. It was conduct by their quality analyst who was based in India and she would regularly attend teams meetings. Mr Atcheson quipped that if the training was as bad as the Applicant said it was, “then our newer agents would have had difficulty in achieving their 100 per cent compliance, and they haven't had difficulty in achieving that”. He says their training program is thorough and any allegation to the contrary is false.

[61] Mr Atcheson stated repeatedly that the Applicant was not terminated because of performance issues, but rather because of a pattern of misconduct that had been uncovered.

[62] In respect of the priority given to particular kinds of calls system, Mr Atcheson’s evidence was that:

“Well, the priority is to speak to customers. We're a call centre, so we need to talk to people, whether that's an inbound call or an outbound call… We don't hang up on any customers. If you accept a call and you're speaking to the customer then obviously you cannot accept another call, because you're talking to one person at one time. So if you're asking me would I instruct our agents to deliberately hang up on a customer when they've accepted a call, the answer is no, I would not. Why would we do that, and the calls would be recorded, and they would be provided to the bank, as we're required to do every month. We wouldn't do that.”

[63] Mr Atcheson attended the termination meeting on 20 July 2021. He says the allegations were put to her and they tried to make her understand how serious her behaviour had been. Mr Atcheson said that the same information presented during the hearing was available to the Applicant during that meeting. When asked whether it was actually shown to the Applicant, Mr Atcheson stated that, “I believe [Mr Thorley] talked through it and explained it to the Applicant”. She did not appear remorseful or apologetic.

[64] At the conclusion of the meeting on 20 July 2021, Mr Atcheson allowed his colleague, Ms Jessica Brumley, to escort the Applicant from the building. Mr Atcheson stated that the CCTV footage clearly shows that he did not stand over the Applicant and at no time raised his hand to her face in a threatening manner. Instead, Mr Atcheson recalled moving away from the Applicant to avoid confrontation on the call centre floor.

[65] After reading the Applicant’s submission that she made a police complaint, Mr Atcheson presented to the Redcliffe Police station with Mr Thorley on Wednesday 11 August 2021. Senior Constable Buley confirmed there was no record of a complaint having been made against him by the Applicant.

[66] Mr Atcheson stated that he received threats on his personal mobile which he reported to police. On 22 July 2021, he received a threat of physical hamr from a male person.

Evidence of Jessica Brumley

[67] Ms Brumley, HR Project Officer, has been employed by the Respondent for over 14 months. Ms Brumley was advised of the meeting between the Applicant and management on the morning of 20 July 2021 although she was already aware of the Applicant’s misconduct findings.

[68] Ms Brumley stated that she had no issue with the Applicant during her duration of work, although she did display some bad behaviour. For example, on two separate occasions Ms Brumley thought she heard the Applicant swear under her breath at Ms Brumley and Mr Atcheson, although it was barely audible so Ms Brumley did not say anything.

[69] Ms Brumley stated that she sat next to the Applicant on the call centre floor for a couple of months. Ms Brumley says that on occasions, she witnessed the Applicant pretending to be on a Bankwest dialler but placing herself on hold until the dialler ran out. Ms Brumley also noticed at times, the Applicant on her phone at her desk, presumably texting other staff members or family, despite that she was told she could not have her phone at her desk due to the sensitive information that staff deal with.

[70] Ms Brumley was responsible for conducting the Applicant’s exit interview. Ms Brumley recalled it was a stressful meeting as the Applicant did not understand the severity of her actions and got very agitated and angry. The meeting was distressing for Ms Brumley as she considered the Applicant a friend and the Applicant “turned on [her] the most in the room.” Ms Brumley stated that the Applicant thought of her as a subordinate, despite the fact she would ask for help on Bankwest. Ms Brumley stated that the Applicant sometimes confided in her and that she had been supportive of the Applicant receiving more training.

[71] Ms Brumley attended the meeting on 20 July 2021. She stated that the Applicant was not presented with any evidence, but the recordings of the calls and the supporting documentation were offered to her. The Applicant became upset and changed the subject to how she had been treated by the Respondent and other employees.

[72] When the meeting had finished, Ms Brumley advised the Applicant that she would be escorted out of the building after she collected her belongings. The Applicant stormed out of the board room and slammed the door. Ms Brumley’s evidence was that the termination was conducted in accordance with the usual process, and she did not think that the process was threatening.

Evidence of Nisha Sunil

[73] Ms Sunil prepared a statement in these proceedings but was not available for cross-examination. Accordingly, her evidence must be weighted accordingly. Ms Sunil was a Senior Quality Analyst. Her job is to monitor calls and make sure all agents are maintaining 100% compliance on their calls. If mistakes are identified, Ms Sunil is required to provide feedback to the agent, notify them of the breach and train them. Ms Sunil is also responsible for ensuring that agents do not repeat breaches and maintain client requirements and comply with Service Level Agreements and regulatory guidelines.

[74] Ms Sunil stated that during her weekly internal reviews dated 25 June 2021, 2 July 2021 and 9 July 2021, Ms Sunil noticed the Applicant’s customer contacts were significantly less when compared to the rest of the employees. Ms Sunil stated that between April and the beginning of May she had given feedback regarding how the Applicant could increase her customer contacts. Ms Sunil’s evidence is that she also provided the Applicant with assistance with the list of live customer base and daily outsource file to increase the right party contacts.

[75] According to Ms Sunil, the Applicant’s call attempts increased, however her customer contacts did not. On review of the Applicant’s call recordings, Ms Sunil identified that the Applicant was abruptly disconnecting calls to potential customers. Ms Sunil stated that such conduct failed to comply with the Debt Collection Guidelines (DCG) resulted in a breach of the Client Agreement. Ms Sunil stated that she found many examples where the Applicant deliberately hung up on a customer and then written file notes that falsely recorded that there had been no answer. Ms Sunil explained that the Applicant’s behaviour constitutes a breach of industry standards and debt collection guidelines as per Regulation 96 of the DCG regarding “maintaining accurate account conversation notes”. The consequence of such behaviour includes the system continuing to call (due to false notes) and possibly undue harassment and complaints.

Evidence of Simon Hunnisett

[76] Mr Hunnisett prepared a statement in these proceedings. He appeared for the Respondent at the hearing but did not himself give evidence. Mr Hunnisett has been the director and co-owner of Charter Mercantile for 35 years.
[77] From the outset, Mr Hunnisett rejected the Applicant’s alleged grievances regarding an ongoing culture of bullying, intimidation and harassment over a two-year period, increasing in the months prior to her dismissal. Mr Hunnisett stated that her allegations are general and that no official complaint was ever received by the Respondent. Mr Hunnisett’s position is that the Respondent’s other staff always acted professionally and appropriately, and the Applicant was never bullied, harassed, intimidated or discriminated against.

[78] Mr Hunnisett stated that the Respondent uncovered a disturbing pattern of dishonest behaviour of the Applicant which resulted in instant dismissal under the serious misconduct provisions of the relevant Award and the Act.

[79] Mr Hunnisett referred to the Applicant’s allegations that she was physically threatened by Mr Atcheson at the termination meeting l and that she subsequently lodged a police complaint. Mr Hunnisett relied on the CCTV footage of the last four minutes of the meeting which he states, “paints a very different picture” and contradicts the Applicant’s claims regarding intimidation and threatening behaviour. Further, Mr Hunnisett confirmed that the Redcliffe police station advised the Respondent that there is no record of a phone call or complaint against Mr Atcheson. Mr Hunnisett’s view is that the Applicant’s false claim regarding the police complaint is another example of her fraudulent behaviour and intentional deceit to secure financial gain.

[80] Mr Hunnisett explained that the Respondent operates in a strict regulatory environment, managing hardship and sensitive accounts for a major bank. The bank monitors the Respondent’s activity closely to ensure compliance, conducting monthly audits. Mr Hunnisett stated that where errors or breaches are discovered, the Respondent is required to take immediate remedial actions providing the examples of training, counselling or extra internal auditing. If breaches are regular and ongoing, the Respondent is required to implement a performance improvement plan to the employee who is not meeting the required standard. It is within the bank’s discretion to prohibit an agent from contacting their customers.

[81] Mr Hunnisett provided three recent examples of instances where sub-standard conduct of employees was dealt with by the Respondent. Mr Hunnisett stated that none of these employees were bullied or harassed.

Evidence of Tiffany Attwood

[82] Ms Wood prepared a statement in these proceedings but was not cross-examined. Her evidence must be weighted accordingly. Ms Attwood is a Team Leader at the Respondent. She stated that in order “to maximize the Applicant’s extensive Bankwest training”, she and other Bankwest agents were assigned to perform various duties in the portfolio. The Applicant was assigned to work on a portion of the manual daily outsourced file, being crucial in the day-to-day business. Ms Attwood explained that the file gives the Respondent First Right Party Contacts (RPC) with their new customers. This in turn gives the Respondent the best chance of getting on the right foot with new customers. Ms Attwood explained that this is classed as essential manual daily actioning. This became one of the Applicant’s duties so that she could gain valuable experience and also meet her personal RPC benchmark, which was well below average. According to Ms Attwood, the Applicant has had more training in Bankwest than any other agent.
[83] Ms Attwood stated that she has witnessed other colleagues be harassed and intimidated by the Applicant. By the end of 2020, Ms Attwood said that she felt ostracised and targeted by the Applicant and other colleagues. She attributed this behaviour to the Applicant and others being disgruntled by her increased responsibilities. She denied the Applicant’s claim that she told new staff not to train with the Applicant or referred to the Applicant as one of the “three stooges.”

[84] Regarding the Applicant’s dismissal, Ms Attwood stated that her role was simply “to be present”.

Respondent’s Submissions

[85] The Respondent submits that the Applicant was not unfairly dismissed. Rather, she was summarily dismissed after it was discovered that she had committed serious misconduct. Having discovered the Applicant’s conduct, the Respondent says that it could no longer trust her and therefore had to terminate her employment. The Applicant’s conduct was not accidental – the dialler does not hang up of its own accord – it was deliberate. Nor was the Applicant’s conduct a result of poor training. The Respondent submits that their training is impeccable and that it must be because they are constantly audited by the banks. The Respondent consistently receives excellent scores from the banks and if system was as bad as the Applicant asserts, the Respondent would have been sacked.

[86] The Respondent also vehemently denies that staff have a practice of systematically abusing the timesheet process by not recording the actual hours worked. The Respondent makes clear that it views the Applicant’s conduct as demonstrating total contempt and disdain for her employer.

[87] Given the overwhelming evidence against the Applicant, the Respondent submits it had a valid reason to dismiss her.

[88] All that said, the Respondent acknowledges that with the benefit of hindsight, a more prudent course may have been to suspend her immediately for 48 hours to provide her with a more fulsome opportunity to respond, though it maintains that would not have changed the overall outcome given the overwhelming evidence.

CONSIDERATION

Was the dismissal harsh, unjust or unreasonable?

[89] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[90] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 2

(a) whether there was a valid reason for the dismissal

[91] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 3 and should not be “capricious, fanciful, spiteful or prejudiced.”4 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. It is not sufficient that the employer believed, on reasonable grounds that the employee was guilty of the alleged conduct. 5

[92] In short, the Applicant’s employment was terminated because the Respondent had reason to believe that she had hung up on already connected callers in favour of taking incoming calls, misrepresented the reason for the early termination of calls in her records and inaccurately completed her time sheets.

[93] In the context of a call centre operating within the financial services regulations, the first two allegations are understandably concerning. I am sympathetic to the Applicant who obviously felt stressed and overwhelmed when taking calls relating to Bankwest. That may have been because she received inadequate training, because of the pressure she felt from others to perform in respect of that account or because of an instruction she thought was given regarding the prioritisation of incoming calls. Whatever the cause of the Applicant’s behaviour, the evidence provided by the Respondent, while not as strong as it could have been – in that the actual recordings of the calls were not provided due to privacy concerns – demonstrated that the Applicant had ended calls prematurely and then not accurately reported that cause (whether it because of a dialler issue or because another incoming call had been received). On this point, I accept in particular the evidence of Mr Thorley. He presented as an honest witness who had taken no pleasure in the decision that was made to terminate the Applicant’s employment. His evidence made it clear that until the allegations came to light, he and the Applicant had a friendly working relationship. The Applicant seemed to share that sentiment.

[94] The premature termination of a phone call in this context is a very serious issue. The Respondent’s business relies upon the making or taking of calls and the accurate reporting of each. It is fundamental to the conduct of their business and a failure to do so is likely to cause them significant reputational damage, particularly given the clients for which they work and the fact that their calls are regularly audited to monitor compliance. I am satisfied that non-compliance with the standard practices and procedures in respect of taking calls by an employee is a valid reason for dismissal.

[95] The third allegation in respect of the inaccurate completion of timesheets would similarly be concerning for any workplace. The documentary evidence showed that the Applicant had provided the Respondent with inaccurate timesheets. It is not necessary for me to determine whether this was a deliberately deceitful act, whether she thought that given she did not always take her breaks that on balance the time sheets reflected the hours that she worked or whether she genuinely believed that it is was acceptable to only record her hours of work in that way. I am satisfied that this too would be a valid reason for the Respondent to have issued a show cause notice. That is particularly so in a workplace that relies so heavily on trust given the highly sensitive and confidential nature of the information involved.

[96] I accept in any event that the cumulation of this behaviour meant that the Respondent had lost trust in the Applicant and had a valid reason for summary dismissal.

(b) whether the person was notified of that reason

[97] Based on the evidence provided and submissions made, I am satisfied the Applicant was notified of the reasons the Respondent sought to rely on to justify her dismissal, albeit moments before she was dismissed. While this was certainly not been best practice, I am satisfied that the Applicant was made aware of the allegations.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[98] The Applicant was told of the allegations against her for the first time during the meeting at which she was ultimately terminated. She was not given any time to process the allegations against her or consider her response.

[99] During the meeting, the Applicant was understandably confronted and upset by the allegations made against her and intimidated by the four people sitting in the room. It is curious why four people – one of which was junior to the Applicant – needed to attend that meeting if not to intimidate or, at the very least, embarrass the Applicant. It seems that all the individuals involved in the decision-making process had decided that the trust had been fractured irreparably by the Applicant’s conduct. Perhaps it was, and perhaps allowing the Applicant an opportunity to adequately respond would not have made a difference in the Respondent’s ultimate decision. However, it certainly appears that everyone’s emotions were heightened and that the decision was made in haste. While I accept the Respondent may have been concerned about the risks to the business, I consider that the actual risk arising from immediately standing the Applicant down and allowing her adequate time to respond, would have been minimal. I am not satisfied on the evidence that the Applicant was given an opportunity to respond to each of the allegations. Indeed, this seems to have been conceded by Mr Hunnisett in his submissions at the hearing. I therefore find that the Applicant was not provided with an opportunity to respond to the allegations made against her prior to her dismissal.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[100] The Applicant was not refused a support person, nor was she invited to bring one to the meeting at which she was terminated. Not being aware of the purpose of the meeting prior to entering it, the Applicant was not able to request the presence of a support person. This factor is in favour of the Applicant’s application, though I am mindful that undue weight cannot be given in circumstances where there is a valid reason for termination.

(e) whether the person had been warned about unsatisfactory performance

[101] This factor is not relevant. The Applicant was dismissed for misconduct.

(f) and (g) the impact of the size of the employer’s enterprise & the absence of dedicated human resource management specialists or expertise had on the dismissal process

[102] The Respondent did not have the benefit of dedicated human resource personnel. However, it is not a small business and those within it should have some knowledge of the appropriate way to engage in disciplinary matters that might lead to an employee’s termination. Indeed, at the very least they should have given some consideration to possibility of standing the Applicant down until she had an appropriate opportunity to respond. The evidence of each of the Respondent’s witnesses suggests that this was barely contemplated, if at all.

(h) any other matters that the FWC considers relevant

[103] I have considered the reasons for termination particularly in the light of the industry within which the Respondent operates, the confidential nature of the information with which it deals and the ensuing importance of maintaining a high level of trust in respect of each of its employees.

Conclusion

[104] The Respondent failed to afford the Applicant natural justice in allowing her an opportunity to respond to the allegations. However, the gravity of her conduct means that, on balance, the dismissal of the Applicant was not harsh, unjust or unreasonable.

[105] Consequently, I order that the Applicant’s unfair dismissal application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR737119>

 1   Fair Work Act 2009 (Cth) s.396.

 2   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) [69].

 3   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371, 373.

 4   Ibid.

 5   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) [23]-[24].