[2019] FWC 7705
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Bronson Brown
v
Oracle CMS Pty Ltd
(U2019/4776)

COMMISSIONER HUNT

BRISBANE, 8 NOVEMBER 2019

Application for an unfair dismissal remedy – applicant dismissed for refusing to complete alternate duties – applicant alleged not required to complete alternate duties due to verbal agreement reached at start of employment – not unreasonable for respondent to require applicant to complete alternate duties – valid reason for dismissal – unreasonable refusal to allow support person in disciplinary meeting – failure to provide opportunity to respond to certain allegations – dismissal harsh – compensation ordered.

[1] On 28 April 2019 Mr Bronson Brown made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Oracle CMS Pty Ltd (Oracle/the respondent) was harsh, unjust or unreasonable.

[2] Mr Brown commenced employment with Village Roadshow Theme Parks (VRTP) in April 2015. He was subsequently employed by Oracle on 1 September 2018 when VRTP outsourced its call centre needs to Oracle.

[3] Mr Brown was notified of his dismissal on 21 March 2019 with the dismissal taking effect on 11 April 2019. He was dismissed for repeated failures to follow reasonable directions to undertake training to learn new skills required as part of his duties within Oracle’s call centre.

[4] Whether or not the service of Mr Brown at VRTP counts towards his service with Oracle due to relevant transfer of business arrangements is not required to be determined for the purposes of ascertaining whether Mr Brown is a person protected from unfair dismissal pursuant to s.382 of the Act. It is accepted by both parties that Mr Brown has completed the relevant minimum employment period of six months.

[5] The parties participated in a conciliation conference before a Fair Work Commission (the Commission) staff conciliator on 5 June 2019. The matter was unable to be resolved and was subsequently allocated to me for determination. This matter was listed for hearing before me in Brisbane on 12 August 2019.

[6] On 9 August 2019 I held a directions hearing to determine if leave would be granted for the respondent to be legally represented pursuant to s.596 of the Act. After hearing from the parties I decided against granting leave for the respondent to be represented as I was not satisfied that the matter was sufficiently complex pursuant to s.596(2)(a) of the Act.

[7] At the hearing of 12 August 2019 Mr Brown appeared and gave evidence on his own behalf. Mr Kyle McQueen, Operations Manager appeared for Oracle. The following persons gave evidence for Oracle:

  Ms Kali Gayle, Chief Operating Officer;

  Mr Ashaam Burke, Operations Manager;

  Mr Metin Unal, Executive Director;

  Mr Kyle McQueen, Operations Manager;

  Mr Nicholas Kinch, On-site Supervisor.

Submissions and Evidence of Mr Brown

[8] Mr Brown was employed at VRTP where he performed work in the call centre relevant to the various theme parks in operation on the Gold Coast, Queensland. He worked there for approximately three years. Towards the end of his employment with VRTP he learned that VRTP had agreed to outsource its call centre work to Oracle.

Pre-employment discussions

[9] In deciding whether to accept employment with Oracle, Mr Brown stated that he gave appropriate consideration to the visits paid by Oracle management when they visited the VRTP premises to encourage employment with Oracle.

[10] Mr Brown’s evidence is that when Oracle management visited the VRTP premises on 22 and 23 August 2018, a number of VRTP employees recorded the meetings. Mr Brown did not, but he did obtain a copy of the recordings. Mr Brown’s evidence is that the following was said on 22 August 2018:

VRTP employee:

So with the call volume will be required to answer other company’s calls?

Liam Staker:

So at this present time when you guys first come across you guys will be just answering village calls, later down the track there will be opportunities if you’re keen and you guys want to branch out and take other company’s calls we do have like messaging services which is like name, number, message, send off. There are simple things like that, that people can take on, so companies who’ve done before… have decided 6 months OK, I’m done, I’m done with the product, I want to do something different, we’ve offered them a month’s training.

VRTP employee:

No cold calling?

Kyle McQueen:

No, no sales involved in any of our service, other than upselling.

VRTP employee:

And if the team don’t want to take other calls?

Liam Staker:

Then that’s nothing that will ever be forced on them.

Nicholas Kinch:

…it’s very good knowledge to have then like I said it breaks your day up and it gives you a break from here and gives you a little bit more knowledge here and your day goes like that but like I said if you don’t want to do it, it’s completely fine, but of course if you do, it’s there and will be there for you the whole entire time.

[11] The above is only a small part of the entire discussion. On 23 August 2019, Mr Metin Unal visited the VRTP site and the following was discussed:

[12] A questions and answers document was provided to Mr Brown to assist with his consideration to join Oracle from VRTP. Some of the questions and answers are produced below:

“Q: Will I lose the years of service that I have with VRTP?

A: No, as the Contact Centre business is transferring to OracleCMS, your years of service with VRTP will transfer and will count towards your service with OracleCMS.

Q: What happens if I do not want to transfer to OracleCMS?

A: If you do not wish to transfer, your employment with VRTP will end on 31/08/18 as your position (and entitlements) are transferring to another company. You are welcome to apply for any vacancy in VRTP should you not wish to transfer.

Q: Would I be eligible for redundancy?

A: No, redundancy would not apply in this situation, as your position will still exist, albeit with another company. As your employment, remuneration and entitlements will be transferred, you will not be disadvantaged.

Q: Will we get a new contract of employment?

A: Yes, OracleCMS will issue you with a contract which will contain your terms and conditions and pay rate.

Q: What agreement or award will I be paid under?

A: From 1st September 2018, you will be covered by the Contract Contact Centres Award 2010 but your remuneration under this award will match what you are paid now.

Q: Once the VRTP team has transferred to OracleCMS, will we only be working on VRTP calls or will be required to respond to other client’s calls as well?

A: You will be working on VRTP calls only, however, if you want to be cross skilled, you can request to be trained to take other calls.”

[13] Mr Brown was offered a written employment agreement. Relevant parts of the employment agreement are produced below:

3. POSITION AND TITLE

3.1 You are employed on a part time basis in the position described at Item 3 of the Schedule.

3.2 You may be required to perform other tasks from time to time, as reasonably requested by the Employer.

4. PRINCIPAL DUTIES

4.1 You may be provided with an outline of your duties before or on commencement of your employment. The outline is not intended to be an exhaustive list of the duties you may be required to perform, rather an indication of the kinds of duties that fall within the scope of the position. You acknowledge that the Employer at its discretion may vary your duties from time to time.

4.2 You also have general duties to:

(a) comply with reasonable directions given to you by the Employer;

(b) at all times act faithfully, honestly and diligently;

(c) ensure you are performing solely work related activities in work time;

(d) exhibit a professional and courteous attitude when dealing with the Employer, its customers, employees, suppliers and other members of the public; and

(e) act in the Employer’s best interest at all times.

5. EMPLOYER POLICIES AND PROCEDURES

You agree that:

(a) you will comply with all the Employer’s policies and procedures, as amended from time to time at the sole discretion of the Employer;

(b) the specific detail of the Employer’s policies do not form a term of your contract; and

(c) failure to comply with the Employer’s policies may result in disciplinary action, up to and including dismissal.”

[14] The Schedule attached to the employment agreement nominated Mr Brown’s position as ‘Customer Connect Team Member’ working 60 hours per fortnight.

[15] It is noted that Oracle did not consider it necessary to apply the Village Roadshow Theme Parks – AWU Agreement 2016 – 2018, in light of s.311 of the Act and there appearing to have been a transfer of business given VRTP had outsourced its call centre operations to Oracle.

[16] On 27 August 2018 Mr Brown emailed Mr Cetin Unal, Chief Financial Officer of Oracle, seeking clarification on several terms within the proposed employment agreement. Later on 27 August 2018 he received the following response from Ms Hanh Tran from the Payroll and Account team. The names of writers have been included to provide clarity:

3. POSITION AND TITLE –

3.2 You may be required to perform other tasks from time to time, as reasonably requested by the Employer.

[Bronson Brown] It was advised by VRTP management and Metin that we will performing our current duties only and will only ever perform other tasks (non VRTP products) if we choose to.

[Hanh Tran] Of course we will try to allocate only VRTP duties to you however as indicated, to provide you more hours than your PPT30/60, if there are quiets periods, you would need to perform different duties for us to give you these hours.

We have some great services that you could choose from and of course if you wanted to keep under the VRTP umbrella of services, we also have Edge Loyalty.

4 PRINCIPAL DUTIES –

4.1 You may be provided with an outline of your duties before or on commencement of your employment. The outline is not intended to be an exhaustive list of the duties you may be required to perform, rather an indication of the kinds of duties that fall within the scope of the position. You acknowledge that the Employer at its discretion may vary your duties from time to time.

[Bronson Brown] This has not been supplied and again it advises that my duties may be changed at the employers discretion however this was not the verbal agreement that was presented to us on multiple occasions by VRTP management and Metin.

[Hahn Tran] Your duty is to answer phone calls and to be on available to do so. Also, our award MA000023 outlines the duty of a call centre agent.

Please find attached a copy of the job description.

7. HOURS OF WORK –

7.1 The business’ normal span of hours of operation are outlined at Item 7 of the Schedule

[Bronson Brown] This item simply listed as Monday to Sunday – 24 hours. It was agreed that we would be supplied with the same rostering history that we have had for the last 6 month. My roster has been 8am-4pm, Monday to Friday, for just shy of 2 years.

[Hahn Tran] As our call centre is open 24 x 7 x 365 we need to add these hours. As discussed, we will work with you and our workforce management software to try and accommodate VRTP staff.

7.2 Your hours of work are outlined at Item 8 of the Schedule. These hours of work may be subject to variation as agreed between you and the Employer, in writing from time to time.

[Bronson Brown] As per the above I have been working on a fixed roster with fulltime hours for close to 2 years.

[Hahn Tran] We will work with our workforce management to try and accommodate these hours. We are mirroring your current agreements.

26. ENTIRE AGREEMENT –

The contents of the Contract constitute the entire agreement between you and the Employer. Any previous agreements, understandings, and negotiations on this subject matter cease to have effect.

[Bronson Brown] Effectively this means that all the verbal agreements that have been presented to me will be null and void should I sign this contract. I will require the above points to be addressed in writing to reflect what was verbally presented and agreed to.

[Hahn Tran] OracleCMS will mirror the same agreement as you have with VRTP and try to accommodate hours using our workforce management software.

… [original emphasis]”

[17] Mr Brown signed the written employment agreement with Oracle dated 30 August 2018 to commence work on 1 September 2018.

January 2019

[18] It is Mr Brown’s evidence that on 30 January 2019, without warning or explanation, he received an email informing him that his hours had been reduced to 30 hours per fortnight, whereas his contracted hours were 60 per fortnight and he had been regularly working 75 hours per fortnight. He immediately queried this roster change. The following morning he was asked to forward his employment agreement to Mr McQueen, and he understands that it was forwarded to ‘the Melbourne office’ to have his hours reinstated to 60 hours per fortnight.

[19] He stated that he asked Mr McQueen why this had occurred, and Mr McQueen was unable to say why. Later that morning, Mr Burke took Mr Brown into a stairwell, where, according to Mr Brown, some meetings are held as there is no private area on site. Mr Brown stated that Mr Burke told him his hours could return to 75 hours per fortnight if he learnt other Oracle products. He stated that the discussion did not progress further and he was not asked to learn other Oracle products.

[20] Between 31 January 2019 and 12 March 2019 there was no further discussion regarding the need to learn other Oracle products. He endured the reduction in hours.

March 2019

[21] It is Mr Brown’s evidence that on 12 March 2019 he was asked by Ms Paige Smith, an Oracle Customer Service employee who trains staff, to log off the phones and to learn Oracle products. Mr Brown declined the offer. Approximately 10 minutes later, Ms Smith made the same request of Mr Brown and he again declined the offer.

[22] Mr Kinch then approached him and asked him to learn the Oracle products. Mr Brown informed him that he had written correspondence from Ms Tran that he would not be required to learn the Oracle products unless he wanted to. Not long after, Mr Kinch took Mr Brown into the stairwell and advised him that Mr Brown had misread what Mr Tran had written. They then read the email together, and Mr Brown considered that Mr Kinch agreed at that time that he would not be required to learn the Oracle products.

[23] Later that day Mr Kinch issued to Mr Brown a written warning. The written warning reads:

“During a quiet period, I have refused to learn a simple skill to increase my occupancy and help the team with their workload.”

[24] Mr Brown informed Mr Kinch that he wanted to obtain advice before signing the written warning. He did not sign the warning.

[25] Mr Brown asserted that on 13 March 2019, one day after receiving the written warning, he was informed that his hours of work were changing from 8:00am – 4:00pm to 9:00am – 5:30pm.

[26] Mr Brown sent the following email on 14 March 2019, which Mr McQueen forwarded by email to Mr Burke, Ms Gayle, Mr Cetin Unal and to an accounts email:

“To whom it may concern,

This letter is a formal response to the written warning I was given on the 12th of March 2019.

The written warning said; “During a quiet period I have refused to learn a simple skill to increase my occupancy and help the team with their workload.”

As it stands, the warning gives the impression that I didn’t have work to do and this simply was not the case. I declined to learn the other Oraclecms products as I was given verbal and written confirmation that it would not be compulsory to learn said products. I also had VRTP work to do including a backlog of VRTP emails which required action.

I am requesting that management respond to the correspondence I received from Hanh Tran in reference to the below.

3. POSITION AND TITLE – 3.2 You may be required to perform other tasks from time to time, as reasonably requested by the Employer

My question to Hanh:

It was advised by VRTP management and Metin that we will be performing our current duties only and will only ever perform other tasks (non VRTP products) if we choose to.

Hanh’s response:

Of course we will try to allocate only VRTP duties to you however as indicated, to provide you more hours than your PPT30/60, if there are quiet periods, you would need to perform different duties for us to give you these hours.

It is clear in Hanh’s response that I would not be required to do any non VRTP tasks, but by declining these tasks, my hours could potentially be lowered to my minimum of PPT60.

Given that my hours have already dropped to the minimum it is my understanding I am within my agreement to decline to learn the other Oraclecms products but as a result Oraclecms may feel it necessary to keep my hours at the minimum during quiet periods.

I pride myself on being a person of respect and integrity and as this is also one of Oraclecms’s values I’m sure the written warning has been a misunderstanding.

I sincerely value the VRTP products and enjoy my work at Oraclecms. I will continue to do my best and am willing to listen to any feedback you may have. I would welcome a meeting to discuss the situation and hope this issue can be resolved.

Thank you for your attention to this matter. [original emphasis]”

[27] It is Mr Brown’s evidence that on 15 March 2019 he received a call from Ms Gayle asking him what his issue is, to which he replied that he does not have an issue. He declined her request to learn other Oracle product and referred to his letter of 14 March 2019. Mr Brown asked Ms Gayle why his hours of work had been reduced, and it his evidence she responded that she had dropped his hours ‘because I can’.

[28] Later that day Ms Gayle sent the following email to Mr Brown:

“Dear Bronson,

Thank you for your response.

Let me elaborate. You currently have over an hour a day where you are not on phone calls.

You may have misread Hanh’s email, where she clearly stated that OracleCMS will “try” to primarily have you on VRTP.

VRTP will be prioritised to you however, you are not taking enough calls for the hours you are working.

On our conversation at 3:40 (approximately) you have informed me that you refuse to take a reasonable instruction and learn more services so that the work is fairly distributed within the team.

You will be receiving another warning for breaching FAIR WORK REGULATIONS 2009 – REG 1.07 – Serious Misconduct.

Marina will organise this in due course.

I have highlighted section C for you in red.

Please speak with your legal representative to discuss this as we do want this to work out as you are a valued employee to the company, however we have a duty to distribute work fairly within out teams.

We ask you to respectfully reconsider your attitude regarding learning new skills so we distribute work fairly amongst your colleagues.

FAIR WORK REGULATIONS 2009 – REG 1.07

Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(c) The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

…[original emphasis]”

[29] The email from Ms Gayle to Mr Brown was sent to his personal Gmail account. Ms Gayle also copied-in to her email Mr Metin Unal, Mr Cetin Unal, Mr Burke, Mr McQueen, Ms Marina Aquilina (HR Manager of Oracle) and Mr Anthony Pileggi of Spencer Law Partners. Mr Brown forwarded Ms Gayle’s email from his Gmail account to his work email account.

[30] On 19 March 2019 Mr Brown was asked by Mr Burke to attend a meeting. He stated that he wished to bring with him a support person. Mr Burke said he would call Ms Gayle instead. Mr Brown felt that this meant that he was not allowed a support person. Mr Brown stated that when the meeting commenced, Ms Gayle said to him words to the effect of, “Do you feel warm and fuzzy because you asked for a support person?” Mr Brown attempted to explain that he didn’t get to have a support person present but considered that he was cut off. Mr Brown explained that in his downtime he works on VRTP emails through ‘Zendesk’ which means that he does not have downtime at all, as there are always Zendesk inquiries to answer. Ms Gayle informed Mr Burke that Mr Brown was no longer allowed to work on Zendesk.

[31] On 19 March 2019 at 11:02 am AEST, Mr Brown replied to Ms Gayle, copying in all of the people nominated above. His email stated:

“Hi Kali,

Please see my response attached.

Regards

Bronson”

[32] The attachment to the above email, which Mr Brown is certain was attached stated the following. It should be noted that it is disputed by Ms Gayle that she received this attachment:

“To Kali Gayle,

This letter is a formal response to the email I received from yourself on the 15th of March 2019.

The email said; “On our conversation at 3:40 (approximately) you have informed me that you refuse to take a reasonable instruction and learn more services so that the work is fairly distributed within the team.”

This is incorrect; I have declined the offer to learn additional tasks as I was given verbal and written confirmation that it would not be compulsory to learn said products.

I have not misread what Hanh said, you have taken what Hanh said out of context. The meaning of what Hanh says after she says; “try” is not apparent until your [sic] read the statement in its entirety. In this case the “try” relates to being provided “more hours”, above what I am contracted to, by learning new products if I choose to.

I feel that the company has been discriminating against me.

On Thursday the 31st of January 2019 I received an email to show that my hours would be dropped from 74.5hrs per fortnight to 30hrs per fortnight which is below my contracted hours. I only had them increased to the minimum contracted hours (60hrs per fortnight) after I raised the issue. These hours were reduced without explanation. After receiving the notification my roster was amended and my reduced hours took affect from the following Monday. During our phone call on Friday, when I brought this up again, you advised you dropped my hours because you can.

This is not the only occasion I have felt discriminated against. The day after I declined the offer to learn new products, and provided proof of my agreements stating it wasn’t compulsory to do so, my hours were changed from 8am to 4pm (what I have worked over the last two years) to 9.30am to 5.30pm. This was also done without explanation. I have an adopted child and there are instances where it has been advantageous for me to finish at 4pm. I think it is important that you consider that have this time changed will negatively impact my family.

In changing my roster I feel you have violated my rights. According to the Fair Work Ombudsman; “…when an employer wants to change an employee’s regular roster or ordinary hours of work, they have to discuss it with the employee first. They have to:

  Provide information about the change (e.g. what the change will be and when)

  Invite employees to give their views about the impact of the change

  Consider these views about the impact of the change…”

I believe that the company has used intimidation tactics to try and force me to learn other products when I have an agreement in place that states this is optional. I feel that my attempt to defend my agreements with both Metin and Hanh have resulted in intimidating actions being used against me with the company reducing and changing my roster without explanation or consideration for my rights.

Thank you for your continued attention to this matter. I look forward to your response. [original emphasis]”

[33] On 19 March 2019 at 12:06pm AEST Ms Gayle sent the following email to Mr Brown, copying in all of the other persons set out above at [29]:

“Dear Bronson

Here is written notification that we did not drop your hours “because we can”.

Ash and Kyle let you know that there was not enough VRTP work and that you could learn other services. We informed you before the change.

As of tomorrow, we will be training you in other services so you can support the team and fill the 1.5 hours a day of spare time.

This is not intimidation, are you saying you want to just sit there and do nothing for 1.5 hours?

You have given us your views and do not want to supplement your knowledge.

Would you like another discussion today with Kyle and Ash?

The only impact this has on you is teaching you more skills which is for you (sic) benefit.”

[34] On 20 March 2019 Mr Brown responded:

“Hi Kali,

Your written notification is in direct contrast to what you told me over the phone on Friday the 15th of March 2019, which is when you told me that you changed my hours because you can.

I can explicitly inform you that neither Ash nor Kyle advised me that my hours were going to be reduced. I received an email, while at home, showing a reduction in hours that took me by complete surprise. I replied to the email that showed my reduction in hours asking for an explanation or clarification however none was given.

I will again be declining the offer to learn new products for the reasons previously given.

The actions you have taken in reducing my hours and changing my hours of work without notification are intimidating. These are actions which threaten my livelihood so you can force me to learn new products when I have been given both written and verbal assurances that I will not have to do so unless I choose to. Furthermore, being asked at the start of our phone call yesterday if I felt “warm and fuzzy” because I requested to have a support person is also intimidating.

I have informed you that during quiet periods I work on emails, which means I do not have any downtime at all. I work hard from the time I log in until the time I finish, which the managers in the office can attest to. You told me today that I am no longer allowed to work on emails which prevents me from using downtime to perform work duties that perfectly fit my skill set. I am the most capable employee you currently have to do this work. I have never at any point expected or wanted to sit there and do nothing.

You have still not addressed the primary concerns I have raised, which are the assurances and agreements that I accepted before my employment with OracleCMS commenced. Aside from the written agreement that I have supplied previously, we were told by Metin that we would only have to learn new products if we chose to. This was done in a formal setting which was witnessed by approximately 50 people, some of which are staff that are currently employed by OracleCMS that will be able to confirm what was said.

Thank you for your continued attention to this matter.”

[35] A written warning titled ‘2nd Written Warning – Bronson Brown’ was issued on 20 March 2019 which stated:

“As per the requirements of my work with OracleCMS I must learn certain skills in order to assist the team. Refusal to do so means I am unwilling to assist the team with their workload.”

[36] Mr Brown refused to sign the second written warning. A further written warning was issued the same day which stated:

“Dear Bronson,

Final warning letter

I am writing to you about your conduct during your employment with OracleCMS Gold Coast, Specifically [sic] in regards to repeatedly refusing to learn new services to supplement the free time of up to two hours of available time with no phone calls each day.

On the 19th of March you attended a meeting with Kyle McQueen. At this meeting you were advised that your refusal to learn simple services to spread the workload of the team has been unsatisfactory. You were previously issued with a formal warning letter dated 12-03-19 and another warning was issued on 20-03-19 also in reference to this fact.

You also spoke with Kali on multiple occasions who has given you numerous chances to adjust your stance toward learning new services.

At our meeting on 20th March your conduct was again reviewed, and you were advised that improvement had not been achieved to the level required by the employer. You were provided with a second warning letter dated 20th March 2019.

It is of note that you refused to sign both prior warnings related to this matter.

As I advised at our meeting on 20th March 2019 your performance has not improved and continues to be unsatisfactory.

This is a final warning letter. If significant improvement in your conduct is not achieved by 21st March you employment may be terminated. To reiterate, our expectation is that you learn new skill sets to fill in your vacant time.

I propose that we meet again on 21 March to review your progress and any potential adjustments to your current stance re learning new skills. If you wish to respond to this final warning letter please do so by contacting me on [phone number omitted] or by replying in writing.

Yours sincerely,

Kyle McQueen”

[37] At 3:59pm on 20 March 2019 Ms Gayle sent the following email to Mr Brown:

“Dear Bronson,

Kyle and Asham [sic] request a meeting with you tomorrow at 11:00am.

Please feel free to bring someone along with you.”

[38] On 21 March 2019 Mr Brown responded as follows:

“Hi Kali,

I have received my 2nd and Final warnings that were given to me yesterday. I have not signed them for the reasons provided previously.

I will be at the meeting at 11:00am.”

[39] Ms Gayle responded:

“Dear Bronson,

You have actually received your third warning. Kyle, provide copies of all three. This was your final warning Bronson.

You also stated to Kyle yesterday, which deeply disappointed both Metin and myself that you don’t care as you don’t even like your job.

Very disappointing.”

[40] Mr Brown responded:

“Hi Kali,

I have received all 3 warnings. My email this morning was in reference to the 2nd and final warnings I received yesterday.

I did not advise Kyle that “I do not care” or that “I do not like my job”. I advised that I am standing up for myself based on the treatment I have received which is outlined in all of the previous correspondence I have provided.”

[41] Ms Gayle replied:

“That’s not what Kyle stated.”

[42] On 21 March 2019 Mr Brown attended a meeting with Mr McQueen and Mr Burke, with Mr Metin Unal and Ms Gayle also attending by telephone. Mr Brown was accompanied by one of his colleagues a support person. During the meeting Mr Brown was informed that his employment had been terminated with three weeks’ notice. The termination letter issued to him is set out below:

“Dear Bronson

Termination of your employment

I am writing to you about the termination of your employment with OracleCMS Gold Coast.

On 12/03/19 you met with Nicolas Kinch. In that meeting, you were advised that you were required to learn new simple skill sets to assist the team with their workload. Upon refusing this request, you were issued with a formal warning letter on 12/03/19.

On 19/03/19 you had a second meeting with Kyle McQueen, and you were advised that your stance on learning simple skills had not changed and this could affect your employment with OracleCMS. You were issued with a second warning letter on 20/03/19.

You also attended a meeting with Kyle McQueen on 20/03/19. In that meeting you were issued with a final warning letter. This letter indicated that your employment may be terminated if your stance on learning new skill sets did not improve by 21/03/19.

We consider that your refusal to assist the team with their workload during quiet periods is still unsatisfactory and have decided to terminate your employment for the following reasons:

  Repeated refusal to learn new skill sets to assist the team with their workload

Based on your length of service, your notice period is 3 weeks. Therefore, your employment will end on 11/4/2019.

You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment. This includes the balance of any time off instead of overtime accrued but not yet taken (paid at the overtime rate applicable when the overtime was worked), and superannuation.

If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.

Yours sincerely,

Kyle McQueen

Operations Manager”

[43] Mr Brown submitted that there was no discussion during the meeting around improvement or performance and he highlighted that the action taken by Oracle seemed like a gross contradiction given the fact that Ms Gayle had, in her email correspondence of 15 March 2019 (set out above at [28]) described Mr Brown as a ‘valued employee to the company’.

[44] In his witness statement, Mr Brown provided a number of call statistics which he says are attributable to himself and another Oracle employee. He stated that these statistics show his dismissal was unjust, as the other employee, Nathan, spent less time on the phones than he did each day and received no warnings and was not terminated.

[45] Mr Brown submitted in response to the final warning stating “…our expectation is that you learn new skill sets to fill in your vacant time”, that he did not have any vacant time as he worked on Zendesk enquiries whenever he was not on the phone. The Zendesk work ceased after he was told by Ms Gayle that he was no longer allowed to work on Zendesk.

[46] Mr Brown submitted by that he was refused a support person for the meeting of 19 March 2019 by way of that meeting, which had been scheduled as a face-to-face meeting, being changed to a telephone meeting, and that he was mocked by Ms Gayle for requesting a support person, asking if he felt ‘warm and fuzzy’.

[47] Mr Brown contended that Oracle was not impacted by his declining the offer to learn Oracle products. He submitted that if Oracle was impacted, then the other employee, Nathan (whose call statistics were included in Mr Brown’s witness statement) would also have been terminated as Nathan spent less time on the phone than Mr Brown, which meant he was not assisting the team with the workload to the degree that Mr Brown was.

[48] Mr Brown highlighted the lack of use of Oracle’s Human Resources officers, whom he submits did not attempt to make any contact with him throughout the process. Mr Brown stated that Ms Aquilina was aware of his issues because Ms Gayle had copied her in to all relevant emails.

Submissions and Evidence of the Respondent

Evidence of Mr Metin Unal

[49] In relation to the issue of alleged representations that were made to Mr Brown about his requirement to only take VRTP calls once transferring employment to Oracle, Mr Metin Unal provided a statement giving information about the meeting that occurred between then VRTP employees and Oracle staff at ‘Movie World’ on 23 August 2018. Mr Unal stated that Mr McQueen, Mr Kinch and Mr Liam Staker (former employee of VRTP) were also in attendance at that meeting.

[50] Mr Unal outlined his recollection of that meeting and stated that he had responded to questions asked about the work and roles available at Oracle. Mr Unal’s evidence was:

“I had stated that they will continue to complete and perform duties that they currently perform at Village. However, over time call volumes may fluctuate and in the future, we would promote and expect Village staff to learn new services such as simple answering services. I gave examples of these services.” 1

[51] Mr Unal stated that he informed the VRTP employees that it was their decision to join Oracle and they would have to read and accept the Oracle employment contact and understand the award they would be employed under.

[52] In cross-examination, the following was put and answered: 2

Evidence of Mr Nicholas Kinch

[53] The statement provided by Mr Nicholas Kinch was consistent with Mr Unal’s recollection of the meeting at Movie World. Mr Kinch gave evidence that at no stage did Mr Unal tell VRTP staff that they would never have to learn any new skills, and in fact told VRTP staff that in quiet times agents would be required to help with any calls in queue if necessary.

[54] The following was put and answered during cross-examination: 3

[55] Mr Kinch considered that he was willing to help Mr Brown and provide friendly assistance to him. He wanted to have a cohesive team within the office, with people who get along and all contributing to the workload.

[56] It is his evidence that when Mr Brown began his protest in learning new skills, he sought to assure him that the skills he was to learn were not difficult, and in fact some were easier than VRTP calls.

Evidence of Mr Kyle McQueen

[57] Mr McQueen provided a statement in this matter in which he indicated that prior to the inclusion of the VRTP employees within the Oracle business, all existing Oracle staff took different types of calls and upon the inclusion of VRTP, all existing staff added VRTP call to their skillsets.

[58] Mr McQueen outlined that the busy period for VRTP-related calls occurred over 3 – 4 months during the summer holiday season. The transfer of business from VRTP to Oracle occurred near the start of this busy period. Former VRTP employees continued to focus primarily on VRTP calls to cover that period, however after that busy 2018 – 2019 summer period, the VRTP call volume began to decline and former VRTP employees were cross-trained in other products to ensure their work hours were occupied. The witness statement of Mr Ashaam Burke supported the proposition that as the VRTP busy season wound down; employees were trained in other products to fill that time.

[59] The following was put and answered during cross-examination: 4

[60] Mr McQueen confirmed that he was present at the both the 22 and 23 August 2018 meetings. I questioned Mr McQueen as follows: 5

[61] The following evidence was given relevant to Mr Brown’s refusal to undertake training on other Oracle products: 6

Evidence of Mr Ashaam Burke

[62] Mr Burke’s evidence is that following a busy summer with VRTP calls, the VRTP calls began to decline. Oracle commenced cross-training former VRTP employees. Mr Burke stated that all staff members, including management are expected to take calls and assist the team in times of high call volumes. However, Mr Brown began to ‘dig his heels in’ and he refused to be trained in other Oracle products. It is Mr Burke’s evidence that Mr Brown was idle for 30% of the day and refused to learn any new skills to fill in his time, and Mr Burke stated that Oracle could not allow that to occur.

[63] In cross-examination, Mr Brown put to Mr Burke that there had not been a meeting on 23 January 2019 as asserted by Mr Burke. Mr Burke’s evidence was vague on this point; he stated that there had been many meetings between management and Mr Brown, but he could not recall if all three managers had met with Mr Brown at the same time.

[64] Relevant to Mr Brown’s assertion that he was refused a support person at the meeting of 19 March 2019, Mr Burke agreed that Mr Brown did not have a support person during that meeting, but he does not know why. 7 He could not remember Mr Gayle asking Mr Brown if he felt “warm and fuzzy” at the beginning of the telephone call.8

[65] In cross-examination Mr Burke stated the following: 9

“…I believe the main problem was, and the problem has always been as simple as it was a quiet time, the workload was coming down, and you refused to learn other stuff in order to obviously sit there and be working while you're at work.  The only reason you were asked to learn these other tasks, for example, Alltel, as you said yourself, it's a 30 minute training session.  It's as simple as taking someone's name and number and it is obviously something that we give all of our guys to sort of - as a filler, you know, so you're not sitting there with availability…

…the stuff you did, yes, I don't think there's ever been a question that you've even been offered the job but - yes, actually, I always said you did a good - I even told - I had a conversation with you where I said, "Look, Bronson, you're really good at this, like, the job you do, but there's just not enough work.  We need to spread the workload".  Everyone learns more services including me, Kyle, even Kali, the CEO, like, she takes sort of calls when it's busy.  Like, we're a team, that's something we pride ourselves with.  We all spread the workload.  The fact of when you sort of said no it was obviously - you know, it was a big problem for the call centre.  All the other - it made us lose face as managers, sort of,  just someone sitting there saying no when all of the other staff except yourself just kind of, you know, accepted to learn more stuff and be up-skilled so they could therefore have less availability time.”

[66] In re-examination the following evidence was given: 10

Evidence of Ms Kali Gayle

[67] Ms Gayle stated that as CEO of Oracle she was involved in the transition period to move VRTP staff to Oracle. It is her evidence that staff were informed that Oracle is a contracted call centre and employees would work primarily on VRTP products. She stated that VRTP is a seasonal service based on the holiday season, and there are quiet periods, where Oracle would supplement with other services and full training would be provided.

[68] Ms Gayle stated that she begged Mr Brown on more than three occasions to learn other services, and she asked him how he would feel when he watches other colleagues busy taking calls and he did nothing for 1.5 – 2 hours per day. It is her evidence that he responded that ‘he didn’t care’ and he declined to learn the other products.

[69] During the hearing Mr Brown put to Ms Gayle that her evidence was hearsay evidence. She responded, “No, it’s not second-hand information, it was information from day one, and I believe that Brett and your other managers have explained that to you. In fact, Brett will confirm that that’s the case, Brett being your previous manager.” 11

[70] The following was put and answered during the hearing: 12

[71] During cross-examination, Ms Gayle stated that in the phone call where Mr Brown did not have a support person, she did not consider the conversation to be a ‘disciplinary one’. She considered it to be a general conversation to let Mr Brown know that he was going to be trained, and she could not recall if he had a support person. 13

[72] Mr Brown confirmed during questioning from me that the phone call had occurred on 19 March 2019, and Ms Gayle gave the following evidence in response: 14

[73] Noting that Mr Brown was informed of his dismissal on 21 March 2019, I was concerned with Ms Gayle’s attention to giving evidence by telephone. She appeared to me to be distracted and not giving the Commission her full attention. The following was discussed: 15

[74] At this point in time the telephone connection to Ms Gayle was lost. My Associate contacted Ms Gayle and she was reconnected to the hearing. On her return the following evidence was given: 16

[75] Ms Gayle gave evidence regarding the email sent by Mr Brown on 19 March 2019 set out above at [31] and stated that she did not receive the attachment to that email set out at [32]. It is her evidence that she would have held a discussion with Mr McQueen in the (roughly) one hour from Mr Brown sending his email to Ms Gayle responding. It is noted, however, that if Ms Gayle did not receive an attachment from Mr Brown, the only email she would have been responding to would have been:

“Hi Kali,

Please see my response attached.

Regards

Bronson”

[76] Mr Brown asked the following in cross-examination: 17

Mr Brown:

Did you provide advice to the managers in the office in relation to the disciplinary actions that were happening?

Ms Gayle:

I would have - the advice I would tell them is to speak to the HR department to know the proper way of doing things.  I've been the chief operating officer for 14 years and I know that if it is a disciplinary meeting, you do need a support - we have to offer you a support person.  I'm actually sure - I think it was James was your support person on a couple of occasions.  Is that correct, Bronson?

[77] In re-examination Ms Gayle stated the following: 18

Oracle’s submissions

s.387(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)

[78] It was submitted that the reason for Mr Brown’s dismissal was his repeated refusals to occupy his free time at work with learning new skillsets and assisting his team members with their workload. Mr Brown’s refusal to assist with the workload took a toll on other workmates as he was sitting idle while everybody else, including managers, were dealing with large call queues which he refused to provide assistance with. Oracle also noted that Mr Brown held up group training sessions by refusing to join them until management had no choice but to move forward without him.

s.387(b) - Whether the person was notified of that reason

[79] It was submitted that Mr Brown was notified of the reasons for his eventual dismissal on many occasions, first informally in the form of friendly conversations about learning new skills and then escalating to written warnings and finally a termination letter.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[80] It was submitted that there was open dialogue with Mr Brown between the Gold Coast management, right up to Ms Gayle, the CEO of Oracle.

s.387(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

[81] It was submitted that Mr Brown was not denied the right to seek assistance from external bodies or to have support people to hear his case.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[82] Oracle submitted that Mr Brown was issued with three written warnings regarding his performance and was also encouraged by management to assist the team and to comply with what Oracle stated was its reasonable requests to fill his free time. It was submitted that Mr Brown’s available free time exceeded 30% of his time.

s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[83] Oracle submitted that employs numerous human resources and workforce management experts and strives to treat all of its employees at the same fair and equitable standard. Oracle noted that Ms Aquilina is Oracle’s in-house HR Manager and although she is based in Oracle’s Melbourne offices, at no time was Bronson denied the opportunity to speak with Ms Aquilina.

s.387(h) Other matters

[84] Oracle reiterated that Mr Brown was unoccupied in his role for an average of 30% of his time, and on certain days up to 40% of his working hours were free for him. Oracle provided extracts of reports produced in its Zendesk system showing the number of jobs or ‘tickets’ completed between 1 February 2019 and 10 April 2019; Mr Brown’s last day of work. Oracle submitted that of 7,670 tickets completed, Mr Brown completed on 157 tickets, whereas Oracle’s other agents completed between 437 and 3,076 tickets in addition to their own other work. Oracle submitted that Mr Brown’s assertion that he spent his free time handling emails could not be supported based on this data.

Was there an attachment to the email of 19 March 2019?

[85] Given the evidence given by Ms Gayle during the hearing, where she stated that she did not see an attachment to Mr Brown’s email of 19 March 2019, I ordered Mr Anthony Pileggi, Senior Associate of Spencer Law Partners, who had been copied in to the relevant emails, to provide relevant information to the Commission. Mr Pileggi complied with the order, forwarding to my chambers on 28 August 2019 a copy of Mr Brown’s email of 19 March 2019. The document produced by Mr Pileggi included the email and the attachment described above at [31] – [32].

[86] Mr Pileggi provided the following additional information:

“We clarify that such correspondence was forwarded to the writer’s email address with respect to a matter whereby our firm, Spencer Law Partners, was not engaged to act, and to this end, such correspondence was wholly disregarded.”

[87] On 2 September 2019, Oracle’s legal representatives provided further written submissions, including as to whether Oracle personnel were able to view the attachment to Mr Brown’s email sent by him on 19 March 2019. An affidavit of Mr Fransisco Vera, Managing Director of Securelogic Solutions Pty Ltd was provided for the Commission’s consideration. Mr Vera stated the following:

“On or around 27 August 2019 I was requested by the respondent to access an email (the Email) sent by the applicant to the respondent on Tuesday, 19 March 2019 at 11:02AM and undertook the following investigations:

(a) Investigate the missing attachment

(b) Check the received email to examine what may of [sic] happened

(c) Investigate Email Protection Software to identify what was sent

I am informed by my investigations that the respondent did not receive any attachment to the Email and have concluded that there are two possible reasons for this:

(a) The document was never attached to the Email; or

(b) There was a document attached to the Email but the attachment was blocked by the respondent’s filtering and security services, possibly detected as malware or a malicious document type by the Mailguard systems implemented by the respondent to protect incoming and outgoing emails, and the attachment was therefore blocked from receipt; and

(c) If the attachment was blocked it would depend on how it was attached to the Email and the file type that was send (sic). Additionally, if the document was infected, malicious or corrupt the security systems in place for the respondent would have blocked the file and prevented the respondent from receiving the attachment to the Email.

…”

[88] Mr Brown responded to Oracle’s submission and to Mr Vera’s affidavit as follows:

(a) The document was never attached to the Email; or

Mr Brown:

This has been proven to be false as per the email from Mr Pileggi and the screenshot I provided which showed the document was attached.

(b) There was a document attached to the Email but the attachment was blocked by the respondent’s filtering and security services, possibly detected as malware or a malicious document type by the Mailguard systems implemented by the respondent to protect incoming and outgoing emails, and the attachment was therefore blocked from receipt; and

Mr Brown:

The document was attached as a standard file. The email was sent from my Village Roadshow Theme Parks work email which we were still using while employed with OracleCMS. I sent the email on Oracle CMS premises and on their servers. Any malware on the system would have been flagged and prevented from being sent out as per Francisco’s explanation above.

If the OracleCMS Mailguard system was the cause of Kali not receiving the attachment then that does not explain why both Mr Pileggi and my Gmail account received the email with the attachment. Given the Mailguard system, as explained by Francisco, the outgoing email should have been blocked too as it was sent from a computer that I was logged into at the OracleCMS office.

In addition, Gmail does not allow emails to be received if they contain malware/viruses. Please see Gmail support link [link provided] which states:

“When Gmail finds a known virus attached to an email that has been sent to you, Gmail will reject the message and let the sender know. If Gmail finds a virus in an attachment on an email that’s already in your inbox, you won’t be able to download the attachment.”

(c) If the attachment was blocked it would depend on how it was attached to the Email and the file type that was send (sic). Additionally, if the document was infected, malicious or corrupt the security systems in place for the respondent would have blocked the file and prevented the respondent from receiving the attachment or the Email.

Mr Brown:

The response to (b) applies here also. Furthermore, in my experience anytime attachments or emails are blocked for IT security risks you will receive a message notifying you of what has been blocked and whether you would still like to open the email or attachment. If this option is not given then it will ask you to contact your IT department to access the blocked material.”

[89] Mr Brown made the following further observations:

“While Kali is claiming she did not receive the attachment, her email reply on the 19th of March 2019 directly relates to the attached letter. Please refer to the examples below which show extracts from my attachment [and Kali’s responses]:

[90] Mr Brown submitted that if Ms Gayle did not receive the attachment, he expects her next reply would have been to say that there was no attachment, rather than replying to the attachment with the direct responses that he has highlighted. Further, Mr Brown noted that there were six other recipients who were copied in to the email, and none of them replied to advise that there was no attachment.

[91] Mr Brown submitted that it is clear that Ms Gayle received the email together with the attachment, whether it was sent to her by somebody else on the email.

Legislation

[92] Pursuant to section 385 of the Act, unfair dismissal is defined as meaning:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[93] Furthermore, section 387 of the Act relevantly provides:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

[94] The type of conduct that may fall within the words ‘harsh, unjust or unreasonable’ was outlined by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 19 as follows:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[95] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 20

Consideration

s.387(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)

[96] I have listened to the audio of the meetings of 22 and 23 August 2018. Some of the audio recording is reflected below:

23 August 2018:

[97] There was extensive discussion about adding additional skills, and nominating attempts to provide like work, so that if people were currently doing some admin work servicing customers, endeavours would be made to add additional admin work.

[98] There was also extensive discussion as to other customers Oracle provides services to. It was explained that many customers do not require cold-calling, and it was mostly service orientated.

[99] I have also had regard to the transcript provided by Mr Brown at [10] – [11].

[100] It is clear that there was conflicting advice given to prospective employees. The meetings held with employees were communal and lengthy. Many questions were asked by various employees.

[101] I do not accept Mr McQueen’s evidence that Mr Staker was not authorised to make the statements that he did. Mr McQueen was present at the meeting, and had the ability to listen to the recordings prior to the hearing. Mr Staker unequivocally stated that transferring employees would not be forced to take other company’s calls. Mr McQueen’s evidence relevant to what was said at the meeting was evasive, notably when he had some transcript and the audio recording available to him.

[102] Mr Metin Unal’s statement at [11] is almost the inverse, where he explained to potentially transferring employees that if they didn’t want to do a particular type of service, they could move to another service. While he stated that there would be a requirement for training, he did not at [11] unequivocally state that employees would not be required to service other Oracle products.

[103] He did, in my view, when regard is had for his statements at [96] give to prospective transferring employees the impression that they would be at least secure in their minimum part-time hours performing VRTP work, as opposed to training other people up in the work. He flagged that there would be no benefit to Oracle if employees did not take calls and were not going to do anything. He stated that they would not be dropped to five hours within a week.

[104] I note that prior to accepting the work with Oracle, Mr Brown made written inquiries of Oracle at [16]. I find that Ms Tran provided an answer to Mr Brown that was clear – Oracle would try to allocate only VRTP duties, however, to have more hours than Mr Brown’s PPT60, if there are quiet periods, Mr Brown would need to perform different duties in order for Oracle to give to Mr Brown those hours.

[105] Ms Tran’s communication was relevant to any additional hours above 60 hours per fortnight. I accept that Mr Brown understood that relevant to his 60 contracted hours per fortnight, he would not be required to service other Oracle products.

[106] Mr Brown was provided with answers by Ms Tran, and he specifically articulated that on reading the terms of the employment agreement offered, he understood that it would override any verbal representations made to him. Ms Tran’s answers were broad enough to provide to Oracle the flexibility it requires around servicing of customers and hours of work to be performed.

[107] The employment agreement ultimately entered into by Mr Brown did not state, as he wished, that he would be required to service only VRTP products.

[108] Between September 2018 and January 2019 Mr Brown performed his allocated hours of work without concern. All managers of Oracle who gave evidence stated that he was a good performer, and there were no issues with his work performance.

[109] Mr Brown was particularly pleased when he was authorised to work through Zendesk, as he considered that he was very good at it, and in fact better at it than anybody else. He was concerned when he was asked not to do Zendesk work and this was performed by Nathan, whom Mr Brown considered to be less competent than himself.

[110] On the evidence before me, it would appear that there was enough work to do in both taking VRTP calls and performing Zendesk work to accommodate Mr Brown’s minimum hours of 60 per fortnight. On Ms Gayle’s evidence, she was concerned when she visited the Gold Coast operations and observed, on her account, Mr Brown viewing a photograph of a theme park patron on a ride for what she says was four hours. She ultimately instructed the managers to remove Mr Brown from performing Zendesk work, and as I understand it, another employee, Nathan predominantly performed that work from that time.

[111] This was, it seems, in direct contrast with the commitment given by Mr Unal at the meeting of 23 August 2018, where Nathan was a newer employee being tasked to do the work that Mr Brown was competently performing and desired to do.

[112] There is much to be said, however, about managerial prerogative. In ensuring efficient use of employees’ time, managers and employers will need to, at times, require employees to perform duties within their skill and competence that is not the work that the employee is accustomed to or even wishes to do. Mr Brown was not being asked to cold-call or sell; he was repeatedly asked to train in Oracle products that would, on one example, take no longer than 30 minutes to learn. The most basic of these tasks included answering calls for a messenger service.

[113] Mr Brown clung to what he considered to be a concrete promise that he could not be asked to perform work other than VRTP work in his contracted hours. He became principled over the issue, including refusing to attend group training sessions, answering, “No thanks” when invited to participate.

[114] Having regard to the contract of employment entered into by Mr Brown, and also regard to the written commitments he sought, and also reflecting on what was put during the meetings of 22 and 23 August 2018, I find that Mr Brown unreasonably refused to perform the work required of him by Oracle. Putting aside how reasonable the direction to work the other Oracle products was issued to him, I find that it was reasonable for Oracle to require of him to perform work on products other than VRTP.

[115] His continued refusal would have, I accept, been an unreasonable burden on Oracle in having him idle for substantial periods of time. While I accept that he could have been returned to Zendesk to perform work and reduce his idle time, there is no guarantee that it would have completely occupied his idle time, particularly in winter months when the VRTP services reduced. Further, I do not consider that Mr Brown could stake a claim to the Zendesk work.

[116] I find that there was a valid reason for the dismissal.

s.387(b) - Whether the person was notified of that reason

[117] Mr Brown was notified of the reason for the dismissal.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[118] I accept Mr Brown’s evidence that there was no discussion held with him between 31 January 2019 and 12 March 2019 regarding his refusal to learn other Oracle products, other than a stairwell conversation as to how he could return to a 75 hour fortnight as opposed to a 60 hour fortnight. I do not accept the evidence of Oracle witnesses that he was issued with an investigation letter dated 23 January 2019.

[119] From 12 March 2019 Mr Brown was provided with an opportunity to respond to Oracle’s concerns. He remained steadfast in his refusal to do work on products other than VRTP.

[120] Following the issuing of the second written warning and a further final written warning on 20 March 2019, Mr Brown was not provided with an opportunity to respond to any reason for the dismissal when he was informed of the termination on 21 March 2019. I note that his position on the matter had not changed overnight. I am mindful of, and accept Ms Gayle’s evidence that she “begged and pleaded” with Mr Brown on 21 March 2019 to learn the other Oracle products and he could remain employed.

[121] I find, therefore, that between 12 March 2019 and 21 March 2019, there was an opportunity to respond to the concerns Oracle held as to his refusal to learn other Oracle products.

s.387(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

[122] On the whole, Ms Gayle’s evidence to the Commission was most unsatisfactory. She was not focussed, explained that she had been pulled from a meeting, and gave the impression that she is very busy. She was not, at the beginning of her oral evidence, aware of the date Mr Brown was informed of his dismissal.

[123] I accept Mr Brown’s evidence that on 19 March 2019, when he was asked to attend a meeting with Mr Burke, and he requested a support person, Mr Burke contacted Ms Gayle to join in the conversation, where Ms Gayle inquired of Mr Brown if he felt “warm and fuzzy” because he asked for a support person. Ms Gayle made much of her 14 years’ experience, and denied that she had said that, but gave conflicting evidence that she did not consider the meeting to have been a disciplinary meeting. This is, of course, after she had sent him an email on 15 March 2019, informing him that he was receiving “another written warning” and informing him that she considered he could fall foul of Regulation 1.07 of the Fair Work Regulations 2009.

[124] To inquire of an employee if they feel warm and fuzzy when they have asked for a support person to be present at what was clearly a disciplinary meeting is, quite frankly, deplorable and condescending behaviour of a CEO of an organisation of 500 employees; particularly one who purports to know of her responsibilities to employees.

[125] Ms Gayle’s denial during the hearing was not accepted, particularly when Mr Brown addressed this in his email of 20 March 2019, noting that she had said that at the commencement of their meeting the day before. Ms Gayle’s evidence during the hearing, dismissively declaring that she would have skimmed over Mr Brown’s email, is not accepted.

[126] I note that Mr Brown was afforded the opportunity to have a support person present at the meeting on 21 March 2019 where he was informed of his dismissal.

[127] I find that there was an unreasonable refusal by Oracle to allow Mr Brown to have a support person present during the meeting of 19 March 2019 to assist in discussions relating to dismissal. I find that the meeting of 19 March 2019 was an important meeting, and the meeting should not have occurred without his support person present.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[128] Mr Brown was issued with a written warning on 12 March 2019. He was then issued with a second written warning, and a (separate) final warning on 20 March 2019. The final warning, issued on 20 March 2019 stated that he had until 21 March 2019 to significantly improve his conduct.

[129] I accept that there were warnings of unsatisfactory work performance before the dismissal, noting that three were issued within nine days, and two were issued one day before the notification of the dismissal.

s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[130] Oracle submitted that it has dedicated HR personnel, and is a large company. It was submitted that Mr Brown had available to him the services of Ms Aquilina. It is expected, however, that if there are dedicated HR services available, and if, as Ms Gayle claimed, she is knowledgeable of correct practices in dismissing employees, one would regard the issuing of three written warnings within nine days, and termination advised on the tenth day to be a failure of best or even good practice.

[131] I find that the size of the respondent did not impact on the procedures followed, and there was no absence of a dedicated human resource management specialist which would have impacted on the procedures followed. There is no evidence, however, that Ms Aquilina was ever invited by Ms Gayle to be involved in the issue.

s.387(h) Other matters

[132] I have had regard to the reduction in Mr Brown’s hours of work in the months leading to the dismissal. Where he was contracted to work a minimum of 60 hours per fortnight, I consider it was within Oracle’s rights to offer him only 60 hours per fortnight and not the 75 hours that he had enjoyed. It could not accommodate excessive idle time once the summer season was coming to an end and VRTP work declined.

[133] It is concerning, however, that an attempt was made to reduce Mr Brown’s hours to 30 per fortnight, and he had to address this to ensure his contracted minimum was maintained. Nobody has taken responsibility for this instruction, and I do not accept the respondent’s evidence that this was done without somebody from management authorising this direction.

[134] Mr Brown stated his concern to Oracle on 17 March 2019 that he considered the change in roster from 8:00am to 4:00pm, to 9:00am – 5:30pm to be a violation of his rights, and he was concerned that he had not been consulted. I have had regard to the following clause within the Contract Call Centre Award 2010 (the Award):

24.5 Alteration to hours of work

(a) Subject to the employer’s right to fix the daily hours for day work within the spread of hours referred to in clause 24.6 and the right to require employees to work shifts on existing rosters, ordinary hours once determined may be altered:

(i) by the employer giving one week’s notice of the requirement to change the arrangement of hours or the shift roster;

(ii) by the employer giving 48 hours’ notice to the employee in the case of an emergency;

(iii) by mutual agreement between the employees concerned and their employer; or

(iv) at the discretion of the employer, employees may be permitted to exchange shifts or days off to perform duty for another employee. In such circumstances the employer is not required to make any additional payment.

(b) Provided where an employee receives notice under clause 24.5(a)(i) or (ii) and significant concerns are raised about the alteration of their hours of work due to their personal or family circumstances, the employer will consult with the employee about such concerns.”

[135] I note, however, that I raised concerns with the parties during the hearing that my preliminary view was that on account of the employees transferring from VRTP to Oracle, the Agreement might have been a transferable instrument pursuant to s.311 of the Act. The respondent, being unrepresented was not able to provide a firm answer on this during the hearing.

[136] Having reviewed the audio tapes of 23 August 2018, Mr Metin Unal made varying references to the Contract Call Centre Award 2010 having application to the transferring employees’ employment, and not the VRTP Agreement. I consider it is a matter for the respondent to urgently look into. If I am correct about this issue, Oracle should satisfy itself that it is meeting all of its obligations under the VRTP Agreement.

[137] If the VRTP Agreement does apply, I have had regard to the following relevant clause within the Agreement:

“4.7 ROSTERS

a) The ordinary working hours of all permanent team members will be worked in accordance with rosters prescribing the starting and finishing times. Rosters will be made in accordance with ordinary hours provided for in clauses 2.1.1, 2.1.2 and 2.1.4 and 4.1 of this Agreement.

b) Where a permanent team member’s ordinary starting and finishing times vary from work cycle to work cycle, a roster showing starting and ceasing times for the ordinary hours of duty for each team member will be prepared by VRTP.

c) Copies of the rosters will be posted electronically and/or placed in a conspicuous place/s on VRTP premises which are readily accessible by team members. Rosters will be posted a minimum of seven days in advance of their commencement date.

d) VRTP may change the roster of a permanent team member by phone call, text message, email or by other electronic means with a minimum 48 hours notice, or such lesser period if mutually agreed between VRTP and the team member concerned. Provided that, in the case of an emergency (for example, an act of nature which necessitates the closing of the Park), VRTP may alter the roster, without notice.

…”

[138] If either the Award or the Agreement applies, I do not consider that in changing Mr Brown’s roster, Oracle acted outside of the authority vested in it. I do not consider it was unreasonable, and where Mr Brown did object to the roster change on account of his desire to be home earlier for his adopted daughter, I note that she is aged 17 years of age, and along with his 15 year old son, they are making their way home from school independently.

[139] I have had regard to the email sent by Mr Brown on 19 March 2019, with the attachment. I accept Mr Brown’s evidence that the attachment was made to the email, and this is clear on the evidence of Mr Pileggi.

[140] I do not accept Ms Gayle’s evidence that she did not receive the attachment. Her response, sent just over one hour after Mr Brown sent the email with the attachment is in direct response to the statements made by Mr Brown in the attachment. Nowhere earlier had Mr Brown asserted to Ms Gayle that she had used the words, “because I can”.

[141] Nowhere earlier had Mr Brown asserted to Ms Gayle that Oracle had been intimidating him.

[142] Mr Brown had referred to the impact the roster change would have on his family, and Ms Gayle referenced the same word to say that the impact of learning new products would be for his benefit. She indeed used the words in his attachment to construct a reply just over one hour later.

[143] It is very concerning that the respondent sought to assert to the Commission that the attachment was either not attached or was not available when Ms Gayle’s written response is clearly made to Mr Brown’s concerns within the attachment.

[144] Accordingly, I find that Ms Gayle did open and read the attachment and respond to Mr Brown, having regard to the attachment.

[145] I have had regard to Ms Gayle’s assertion to Mr Brown on 20 March 2019 that he stated to Mr McQueen that he does not care or even like his job. She informed him it was very disappointing. Mr Brown denied having said that, but it appears by Ms Gayle responding, “That’s not what Kyle stated”; did not accept Mr Brown’s denial. Mr Brown never had another opportunity to convince Ms Gayle that she was incorrect with the second-hand information received from Mr McQueen. It is noted that Mr McQueen did not include any reference to such statement in the final warning issued on 20 March 2019. I conclude that Mr Brown did not make such a statement to Mr McQueen.

Conclusion

[146] I have determined that there was a valid reason for the dismissal. There appears to me, to have been no reasoning with Mr Brown as to his obligation to perform other services than VRTP. I have earlier found that Mr Brown unreasonably refused to perform the work required of him by Oracle.

[147] I am deeply troubled, however, by the speed and willingness to exit Mr Brown from the business from the period 12 March 2019 to when he was informed of the dismissal on 21 March 2019. The issuing of three written warnings in just nine days, and two written warnings on the same day is disturbingly breath taking, followed by notification of the dismissal the next day. It was, in my view, quite ruthless. The tone of some of Ms Gayle’s emails to Mr Brown is unpleasant. Ms Gayle’s statement to Mr Brown, which I accept that she said, that the hours can be reduced ‘because we can’ was an inappropriate way to inform Mr Brown of Oracle’s purported rights.

[148] Further, Ms Gayle did not afford Mr Brown an opportunity to satisfy her that he did not say he did not care or even like his job. She determined it was said, despite his denial, and without it being referenced in Mr McQueen’s written warning to Mr Brown.

[149] I have had regard to Ms Gayle’s “begging and pleading” to Mr Brown on 21 March 2019 to agree to learn other Oracle products, and his continued refusal.

[150] I am satisfied that if Mr Brown continued to resist the request of Oracle to perform other services, his employment would have ended in the near future. He would not have been able to maintain the objection ongoing. Employees, despite being promised how work will be undertaken cannot hold out for that promise to be kept in a changing world where if you don’t move with the times, on account of technology, or customers, or services provided, you may not have a job.

[151] On balance, I find that Mr Brown’s dismissal was harsh in the manner it was undertaken.

[152] Accordingly, I find that Mr Brown was unfairly dismissed.

Remedy

[153] Section 390 of the Act reads as follows:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[154] Mr Brown is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated. Given the circumstances of the dismissal, and Mr Brown’s unwillingness to perform work other than VRTP work, I am satisfied that it is inappropriate to order reinstatement.

[155] I now turn to consideration of compensation.

Compensation

[156] Section 392 of the Act provides:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

Authorities

[157] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.21 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;22 Jetstar Airways Pty Ltd v Neeteson-Lemkes23 and McCulloch v Calvary Health Care (McCulloch).24

[158] I have had regard to the above authorities, and I have considered the submission of each party.

The effect of the order on the viability of the respondent

[159] Given the size of the respondent this is a neutral consideration.

The length of Mr Brown’s service

[160] Mr Brown had just over six months’ service with Oracle, however I am satisfied that his service with VRTP counts towards his service with Oracle. This is clear in the statements made by Mr Metin Unal to employees considering transferring to Oracle, and in the questions and answers provided by VRTP employees. Mr Brown was not, on employment with Oracle, provided with any statement by Oracle pursuant to s.384(2)(b)(iii) that the service with VRTP would not count with Oracle.

[161] Accordingly, I find that Mr Brown’s service was approximately four years.

[162] I have had regard to the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd [2010] FWA 4342. His Honour determined at [140]:

“As an employee for a short period of time, the length of Applicant’s service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum)”

[163] I consider that Mr Brown’s service of approximately four years is a reasonable period of time.

The remuneration that Mr Brown would have received, or would have been likely to receive, if he had not been dismissed

[164] I have determined that Mr Brown would have continued to resist Oracle’s attempts to have him trained in other Oracle products. Providing just days to agree, while being issued warning after warning was, as I have found, not reasonable. I determine that Mr Brown would have been informed of his dismissal in an appropriate fashion four weeks from the date of 21 March 2019, with an appropriate notice period then provided based on his service at that time.

[165] Accordingly, I am satisfied that Mr Brown would have earned a further 120 hours, being two fortnights, at $24.49 per hour. This is an amount of $2,938.80 gross.

The efforts of Mr Brown (if any) to mitigate the loss suffered because of the dismissal

[166] I am satisfied that Mr Brown made suitable attempts to mitigate the loss suffered because of the dismissal, including applying for many roles.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[167] Mr Brown’s bank records demonstrate that at the time of the hearing he had not earned remuneration.

The amount of any income reasonably likely to be so earned by Mr Brown during the period between the making of the order for compensation and the actual compensation

[168] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[169] I do not consider that there are any other relevant matters to consider that I have not already addressed above.

Misconduct reduces amount

[170] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[171] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.25

[172] Mr Brown did not engage in misconduct.

Shock, distress etc. disregarded

[173] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Brown by the manner of the dismissal.

Compensation Cap

[174] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[175] The high income threshold immediately prior to the dismissal was $145,400, and the amount for 26 weeks was $72,700. The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[176] This is not an appropriate consideration given the size of the respondent.

Order of compensation

[177] I have determined that the respondent is to pay to Mr Brown the amount of $2,938.80 less tax as required by law within 14 days of the date of this decision.

[178] In addition, the respondent is to pay superannuation on the amount of $2,938.80 at the rate of 9.5% into Mr Brown’s superannuation fund within 14 days of the date of this decision.

Seal of the Fair Work Commission with member’s signature.

COMMISSIONER

Appearances:

Mr B Brown, for the Applicant;

Mr K McQueen, for the Respondent.

Hearing details:

Brisbane

August 12

2019.

Final written submissions:

Applicant’s response to affidavit of Francesco Vera, 5 September 2019;

Respondent’s submissions

Printed by authority of the Commonwealth Government Printer

<PR714137>

 1   Witness Statement of Metin Unal, 1 August 2019, Exhibit R4.

 2   PN992 – 995.

 3   PN880 – 884.

 4   PN532 – 537.

 5   PN576 – 580.

 6   PN662 – 671.

 7   PN773.

 8   PN774.

 9   PN796 – PN800.

 10   PN820.

 11   PN1104.

 12   PN1105 – 1112.

 13   PN1113.

 14   PN1121 – PN1124.

 15   PN1125 – PN1133.

 16   PN1136 – 1141.

 17   PN1214.

 18   PN1221 – 1222.

 19   (1995) 185 CLR 410, [465].

 20   Sayer v Melsteel [2011] FWAFB 7498 at [20].

21 (1998) 88 IR 21.

22 [2013] FWCFB 431.

23 [2014] FWCFB 8683.

24 [2015] FWCFB 2267.

25 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].