AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment
Christine Wright
and
Telstra Corporation Limited
(U2002/2221)
SENIOR DEPUTY PRESIDENT LACY |
MELBOURNE, 26 MARCH 2003 |
re Alleged unlawful termination of employment - summary termination of employment for misconduct - whether valid reason - whether wilful disobedience to lawful direction - employee forgetfulness - whether negligent performance of duty - whether termination harsh, unjust or unreasonable - equipment limitations - whether negligent performance of duty attributable to equipment limitations - procedural fairness
re Evidence - inferences - failure to cross examine witnesses on matter in issue
DECISION
Introduction
[1] On 12 April 2002, Ms Christine Wright (applicant) applied to the Commission under s 170CE of the Workplace Relations Act 1996 (WR Act), for relief in respect of the termination of her employment with Telstra Corporation Limited (respondent). In her application the applicant claims the termination of her employment took effect on 4 April and that she last worked for the respondent on 6 April 2002. It is alleged that the termination of the applicant's employment was harsh, unjust or unreasonable. The applicant seeks orders directing the respondent to reinstate her in her former position as a Consultant and that the respondent pay to her remuneration lost as a result of the termination of her employment.
[2] The respondent by its appearance, notice of which was given on 6 May 2002, gives as the reason for the termination of the applicant's employment misconduct. It denies that the termination of the applicant's employment was harsh, unjust or unreasonable. In the proceedings before me the respondent contended that the applicant's employment was terminated on 27 March 2002, essentially because of her repeated disregard for instructions not to keep her telephone in-connect; a process by which a customer's telephone line is continuously engaged as a result of the consultant, in this case the applicant, failing to disconnect the call after the customer has terminated the call. The customer is unable to use their telephone for outgoing calls for as long as the consultant remains in-connect with the customer's telephone number. The respondent asserts that it had a valid reason for terminating the applicant's employment and that the termination was not otherwise harsh, unjust or unreasonable.
Background
[3] The respondent conducts a telephone sales business at Burwood through a business unit known as ProActivOne. A large salesforce is engaged in the respondent's business to conduct promotions, sales and marketing of the respondent's products and services. The promotions, sales and marketing may be conducted by way of customer initiated calls (inbound) or sales consultant initiated calls (outbound). The salesforce is divided into teams of sales consultants who are supervised by sales team Managers. Sales team managers monitor and coach sales staff in their work.
[4] The applicant, who was 45 years of age at the time of the hearing, was a Sales Consultant with the respondent. She commenced her employment with the respondent as a telemarketer in 1992 and subsequently was promoted to the position of Sales Consultant on 16 December 1994. Her job involved selling Telstra landline products to residential customers and potential customers. Although predominantly engaged on inbound promotions and sales the applicant was required to work on outbound campaigns as well.
[5] Over the course of her employment with the respondent the applicant received a significant number of awards for outstanding achievement and excellence in sales and performance.
[6] At the time of the termination of the applicant's employment her immediate supervisors were jointly the Sales Team Managers, Ms Marni Clarkson and Mr Tyler Telfer. In November 2001, the applicant complained to ProActivOne management about Mr Telfer's treatment of her as her supervisor. A couple of weeks later Mr Telfer apologised to the applicant for the way he had treated her.
[7] On Saturday 2 March 2002, Mr Telfer was monitoring the applicant's work on outbound calls. Mr Telfer observed that the applicant had failed to disconnect the lines of five called subscribers within the prescribed five seconds of the subscriber hanging up the phone. This failure to disconnect calls is generally described as remaining in-connect, about which more is said below. Nothing was said to the applicant at the time about her remaining in-connect. However, on 4 March Mr Telfer forwarded to the applicant an electronic message headed Conduct Issue and requesting her to meet with him on that day. The applicant responded electronically, declining to meet. Subsequently, Mr Telfer asked the applicant to meet with him at the conclusion of her shift and she suggested they meet the next day.
[8] On 5 March 2002, there was a confrontation between Mr Telfer and the applicant over her refusal to meet with him in the absence of her union representative. Mr Telfer warned the applicant that if she did not attend the meeting with him he would suspend her from work. Consequently, she was suspended pending investigation of her failure to disconnect calls after the subscriber hung up the phone.
[9] On 7 and 26 March 2002, Mr Telfer met with the applicant in the company of witnesses, to investigate the applicant remaining in-connect on 2 March 2002. In the course of those meetings Mr Telfer raised with the applicant the incidence of the applicant remaining in-connect on occasions prior to March 2002 as well as the 2 March 2002 incident.
[10] By letter dated 27 March 2002, the respondent notified the applicant that her employment had been summarily terminated. The reason given in the letter for terminating the applicant's employment was said to have been discussed with the applicant as part of the investigation process. The applicant commenced this proceeding by application filed on 17 April 2002.
The Proceedings
[11] Attempts at resolving the matter by conciliation on 30 May 2002 were unsuccessful and on 31 May 2002 a member of the Commission certified that the matters in dispute between the parties were unlikely to be resolved by conciliation. As the applicant elected to proceed to arbitration, the matter was listed for mention and/or arbitration before a member of the Commission, first on 2 September and then on 3 September 2002. It appears that the matter did not proceed to hearing on those two occasions and it was listed for arbitration before a member of the Commission on 30 September and 1 October. Those dates and others fixed subsequently were vacated because of the unavailability of counsel on the scheduled dates. The file subsequently was referred to me for arbitration. The matter was listed for arbitration before me on 4 December and proceeded to hearing on that day and on 5, 6, 9 and 13 December 2002.
[12] In the hearing before me Mr J Selimi and Ms F O'Brien, each of counsel, appeared respectively for the applicant and the respondent. Six witnesses, including the applicant, were called to give evidence in the applicant's case. The respondent called four witnesses. The witnesses called to give evidence on behalf of the applicant were:
Christine Wright (applicant)1
Christian Peter Smith2
Valerie Ann Butler3
Robert John Mahar4
Susan Frances Riley5
Robyn Ann Polizzi6
Leonard Cooper7.
[13] The witnesses called by the respondent were:
Marni Clarkson8
Melissa Mary O'Sullivan9
Tyler John Telfer10
Andrea Louise Kinnane11
Hume John Presley12.
Evidence and Submissions
[14] It is common ground that the applicant's employment was terminated summarily. The respondent maintains that summary termination of employment was justified in the circumstances of the case. In opening her case for the respondent Ms O'Brien contended that the conduct of the applicant was a fraud on the customers; a fraud on herself (sic) and a fraud on her employer. Ms O'Brien submitted that this case is about the conduct of the applicant in the performance of her obligations as an employee of Telstra. The applicant, so the submission goes, was required, not just legally, but by virtue of the nature of the work she did, to ensure that a customer's telephone line is closed after the customer has hung up. The essence of Ms O'Brien's contention in this regard was that, by remaining in-connect on 2 March 2002, the applicant was not merely failing to do her duty but, in fact, was deliberately not doing her duty. Ms O'Brien submitted that I should draw an inference to like effect from all of the facts and circumstances.
[15] All of the facts and circumstances, according to Ms O'Brien's submission, amount to the applicant remaining in-connect on a number of occasions despite counselling, training and warnings in that regard. It was submitted that the respondent's supervisory staff observed the applicant remaining in-connect for the times and periods set out in the following table:
1 October 1999 to 17 December 1999 |
several occasions |
5 January 2000 |
two occasions |
3 February 2000 |
one occasion |
21 February 2000 |
four occasions respectively of five minutes, eight minutes, three minutes and one minute |
6 June 2000 |
two occasions |
20 November 2001 |
two occasions |
7 January 2002 |
one occasion of 20 minutes |
2 March 2002 |
five occasions |
[16] Ms O'Brien submitted that the applicant was counselled about her remaining in-connect at least seven occasions between 6 January 2000 and 21 November 2001, given training about it on four occasions between 1998 and 15 January 2002, provided with action plans to address it three times in 2000 and issued with written warnings on 2 March 2000 and in November 2001. I should also take into account, Ms O'Brien submitted, the applicant's response and attitude to the counselling and training provided to her.
[17] The applicant, Ms O'Brien contended, displayed a combative and uncooperative approach to questions about, and proposed solutions to, her conduct. She refused to use the required disclaimer in calls, to sign warning letters and acknowledge training. The respondent submitted, in all the circumstances, there was a valid reason for terminating the applicant's employment and the termination of employment was not harsh, unjust or unreasonable.
[18] Mr Selimi submitted that the respondent's summary dismissal of the applicant was harsh, unjust and unreasonable. The respondent, he contended, carried the burden of proving that the applicant's conduct warranted summary dismissal. He submitted that the applicant gave her superiors an explanation for her remaining in-connect conduct. This explanation, it was argued, was ignored. The applicant did not deliberately or wilfully remain in-connect. It was simply a question of inadvertence, Mr Selimi contended. He went on to say that the respondent had treated the applicant as a technological scapegoat. He argued that the applicant's supervisor, Mr Telfer, was a renowned bully and he had carried out an orchestrated vendetta against the applicant and denied her procedural fairness in effecting the termination of her employment. The applicant was never informed, Mr Selimi submitted, of the conditions for continuing her employment when the respondent was considering terminating her employment for remaining in-connect in March 2002.
[19] Mr Selimi referred to the applicant's exemplary work record and submitted that the respondent had effectively ignored it in considering the appropriate penalty for the applicant's conduct.
[20] As the respondent has relied on the applicant's course of conduct in relation to remaining in-connect and her responses to training, counselling and warning in that regard, it is appropriate that I consider first the evidence in respect of those matters. Before doing so I should give some background to the computerised dialling system that the respondent uses and the way in which the issues arise in this case.
Automated dialling system
[21] Telstra utilises an automated dialling system (dialling system) to canvass customers and potential customers of the respondent on promotions and for business. The dialling system was introduced six years ago. A sales consultant is required to use the dialling system to make contact with telephone subscribers to Telstra and other networks. After initial contact is made and completed and the call is released by the consultant, the dialling system automatically dials and presents another pre-selected subscriber on the line for the consultant to canvass about the product being promoted or sold. The presentation of a called subscriber is dependent on the consultant releasing each call as it is completed. In order to release the call a consultant must manually locate a toolbar on the computer monitor and activate the release button on the toolbar with a cursor that is manipulated with the mouse. Consultants are expected to release a call within five seconds of concluding a discussion with a customer.
[22] The toolbar includes a number of function buttons in addition to the release button. One such button activates a typing function to enable a consultant to type comments or other data elicited in the course of discussion with a subscriber. Using the typing function does not release a call. Thus if a subscriber hangs up while the consultant is in typing mode it is still necessary for the consultant to manually release the call before the line disengages. Other buttons on the toolbar and a separate toolbar provide access to other menus for other windows and programs on the computer.
[23] The dialling system has undergone a number of design modifications since its introduction, but generally the concept has remained fairly static. One feature of the toolbar since its inception is that it can be moved around the monitor so that it can be obscured by other windows, applications or programs that may be called into operation during calls. Otherwise it may be almost obscured by moving it to the very edge of the monitor so that only a small part of the frame of the toolbar window is visible, even if no other programs are open.13
[24] Supervisors monitor Sales Consultants' calls to customers for quality and coaching purposes.
The issue of remaining in-connect
[25] I turn now to the evidence of the incidents involving the applicant remaining in-connect and the issue of her attitude to counselling and warnings.
1 October 1999 to June 2000
[26] Ms O'Sullivan, Sales Team Manager, said that she managed the applicant from about 19 July 1999 until about June 200014. She could not recall specifically the incidents involving the applicant remaining in-connect in 1999. However, there was at least a handful of times when that happened. On those occasions, Ms O'Sullivan said, the applicant left her desk with the call remaining in-connect15. It is not disputed that Ms O'Sullivan met and spoke with the applicant on 22 and 24 February 2000 about remaining in-connect on 21 February 200016. Ms O'Sullivan, in trying to manage the applicant's performance gave the applicant a written warning in which it was recorded that the applicant's performance would be monitored over the following three months and that any further instances of remaining in-connect over the course of the next six months may result in termination of employment. At the same time Ms O'Sullivan devised an action plan that involved a post-it note, as a reminder to release calls, and training on how to use the toolbar17. The post-it reminder note was stuck to the top of the applicant's screen. Ms O'Sullivan said she offered and tried to arrange training for the applicant, but the applicant would not participate in it.
[27] Ms O'Sullivan again spoke to the applicant in June 2000 about remaining in-connect and directed her not to do it. According to Ms O'Sullivan the applicant said that she was distracted by a persistent cough that she was suffering at the time. Ms O'Sullivan devised an action plan to alleviate the problems associated with coughing. This involved the applicant taking a break every 30 minutes and monitoring to see if the breaks were helping the situation and, ultimately, seeing a doctor18.
[28] Ms O'Sullivan could not recall ever saying to the applicant that she was deliberately remaining in-connect, but thought it unlikely19 that she would have said as much. She was however, of that opinion, but never expressed it to the applicant20.
[29] According to Ms O'Sullivan, sales results were not important to the assessment of performance; quality with the customer was more important21. Ms O'Sullivan explained that Consultants who engaged in sales are expected to spend 65 per cent of their work time; that is four hours and 45 minutes of the seven-and-one-half hours each day, talking to customers on the phone. This is said to allow sufficient time for doing manual things like photocopying and going to the toilet22.
[30] In cross-examination Ms O'Sullivan agreed that the staff generally did have issues about the toolbar used in the automatic dialler system associated with the work. The issues had surfaced within the last 18 months23. Ms O'Sullivan said it could be quite hectic in the call centre at times and it is an environment in which competition is encouraged24.
[31] The applicant in her witness statement and her oral evidence-in-chief did not address each of the occasions that the respondent alleged that she had remained in-connect beyond the five-second time limit. This is understandable in light of the terms of the written notice of termination of employment, which states simply [t]he reasons for Telstra's decision have been discussed with you as part of the investigation process25. However, the respondent's evidence does not indicate that the applicant's history of remaining in-connect was the subject of any detailed discussions with her in the interviews that were conducted subsequent to 2 March 2002 and leading up to the termination of her employment.
[32] Asked in cross-examination if the issue of the applicant remaining in-connect had been a matter of ongoing concern for some years, the applicant readily admitted that it was. The applicant also conceded that Ms O'Sullivan had raised the issue with her in 1999 and 2000, although the applicant's recollection of the detail of it was hazy26. The applicant also agreed that action plans had been devised in that period, which provided for a memory jogger to be placed on her desk to remind her to release a call on completion. She admitted refusing to sign the action plans when they were presented to her. However, the applicant admitted that she did receive training in the use of the toolbar in December 2001, in accordance with the action plan then devised.
[33] The applicant generally acknowledged remaining in-connect on occasions in the period under review. Her explanation was that, because the toolbar had become obscured she would forget momentarily to release a call. Alternatively, she would be distracted by conversation going on around her and forget about releasing a call. The applicant said that in June 2000, she was suffering with a serious cough. For that reason she had been delayed in releasing calls from time to time because of a bout of coughing27. According to the applicant she had been to see a doctor about the coughing problem and, thus, responded as she did when it was suggested that she should go to the doctor if she had a cough. The applicant emphatically denied the proposition, put to her in cross-examination, that she did not accept the responsibilities of her job.
[34] The applicant said she did not like her calls being monitored, because she considered it a violation of her privacy. She accepts that monitoring is a requirement of her employment and that she has had to accept it, but does not like it. Asked by me about the nature of the privacy with which the applicant was concerned she said that she felt the information could be misused in some way and went on to say:
It also offended me that as an employee of 10 years, that [I interpolate the respondent believed] I cannot get these conversations [right]. When you go into meetings and you are told how great you are, how good you are on the conversation and received many awards, I just sort of think, when is the apprenticeship over, that they have to continue listening in to my calls. And I find it an insult, as well.28
[35] Cross-examined about the use of a Telstra disclaimer29 the applicant admitted to failing to use it at times. When first asked if she would continue refusing to use the disclaimer the applicant said it is not something I have given any thought to whatsoever30. Pressed on the question of her attitude in future the applicant said that she would comply with it if it was a legal requirement.
[36] It is readily apparent that the applicant, in the course of her work over the period here under review, remained in-connect beyond the permitted five second period after customers hung up on a call. The applicant did so on each of the occasions alleged. I accept, as the applicant concedes, the respondent counselled and warned the applicant in the specified period about its policy of releasing calls. In due course I will return to consider the issue of the applicant's attitude and response to counselling.
20 November 2001 to 2 March 2002
[37] Ms Marni Clarkson, Sales Team Manager, gave evidence that she was the applicant's supervisor from December 2000 to June 2001, and again, jointly with Mr Tyler Telfer, from November 2001 to the time of the termination of the applicant's employment31. Mr Telfer, Sales Team Manager, said he became the applicant's supervisor in June until November 2001 and, after that time, he shared that role with Ms Clarkson32.
[38] Mr Telfer's evidence is to the effect that he observed the applicant remaining in-connect on two occasions on 20 November 2001. He made a file note to that effect33. In the company of Ms Clarkson he discussed his observations with the applicant on 29 November 200134 and gave her a written warning35. Mr Telfer said he explained to the applicant that by staying in-connect she was illegally tapping into a customer's line and that this constituted a breach of Telstra policy and federal law36. Ms Clarkson states that on 29 November 2001, she issued an action plan for the applicant to address the problems that the applicant said she was encountering on the issue of remaining in-connect. The action plan involved the applicant displaying a sign on her desk to jog her memory about releasing calls, training in the use of the toolbar and monitoring of the applicant's performance37.
[39] Mr Presley, Customer Access Administrator, was responsible for setting up the dialler, monitoring the dialler lists and training employees on how to use the dialler38. In the performance of his monitoring role he reported to Ms Clarkson that he observed the applicant remaining in-connect after completion of a call for at least 20 minutes in early January 200239. Ms Clarkson subsequently spoke with the applicant about the issue and the applicant explained to her that she had left her position on the occasion in question to fax a request to a customer40. Ms Clarkson said she reminded the applicant of the policy of releasing a call within five seconds, told her that the call should have been released before faxing the request to the customer and reminded her of the 29 November 2001 action plan41.
[40] On 21 January 2002, a memorandum about the respondent's policy on remaining in-connect was circulated to all consultant staff, including the applicant42. The memorandum refers to the requirement to release calls within five seconds of the customer hanging up, and asserts that failure to release within five seconds is a breach of Telstra Code of Conduct, the Association of Direct Marketing Australia Code of Conduct and Commonwealth legislation. Breach of the latter of these instruments, the memorandum asserts, attracts liability to a prison term or fines for sales consultants. Importantly, for present purposes, is the warning in the memorandum that staying in connect will ... subject sales consultants to the conditions of Telstra's Performance Improvement & Conduct Process. The document was presented at a training session and all in attendance were required to sign an attendance record. Mr Telfer said that the applicant attended the session but refused to sign the attendance record43.
[41] The applicant neither gave evidence-in-chief nor was asked in cross-examination about the detail of the incidents in November 2001 and January 2002. However, the incidents could hardly be disputed in light of the record. I am satisfied that the applicant did remain in-connect beyond the stipulated time of five seconds on those occasions. In fact the applicant in her witness statement44 refers to an incident involving Mr Telfer in November 2001 and states that she then explained to Mr Telfer that she was under huge pressure over employee performance and statistics. She said that Mr Telfer placed everyone under great stress in team meetings by inferring that if performance did not improve no-one would have a job. The applicant admitted remaining in-connect beyond the permitted five seconds in January 2002.
[42] The applicant did not dispute the fact of remaining in-connect on 2 March 2002, although she could not recall the actual incidents of remaining in-connect. The applicant's position was that she was unaware that she remained in-connect, but if she did, it would have been because she would not be able to locate the toolbar or she simply forgot to release the call because the toolbar had been obscured. The applicant said that she would handle between 80 and 90 calls a day and, for that reason, she said, it was a little difficult to remember five calls in any one day45. The applicant denied that she stayed in-connect deliberately. The applicant also gave evidence to the effect that Mr Telfer was victimizing her because she had reported him to senior management in the second half of 2001, for intimidation and harassment46. I will return to the issue of alleged victimization shortly.
[43] The applicant admitted that she had received training in the use of the toolbar in the December 2001 period.
Did the applicant remain in-connect deliberately or intentionally?
[44] In dealing with this aspect of the respondent's allegations I will consider the issue of the applicant's attitude and response to counselling and warnings.
[45] The respondent contends that the applicant deliberately or intentionally remained in-connect. Ms O'Brien submitted that I should draw an inference to that effect. The character of an inference was an issue addressed by Brennan and McHugh JJ in G v H47, in the following terms:
An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference (Martin v Osborne (1936) 55 CLR 367). But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss of legal principle. ...48
[46] The Full Bench in Smith and ors v Moore Paragon49, after considering a number of authorities50, distilled the following principles as apposite to the drawing of an inference:
· an inference can be drawn if it is reasonably open on the basis of agreed or proved facts;
· the question whether a particular inference can be drawn from the facts found or agreed is a question of law;
· where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference;
· the circumstances must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture;
· matters to be taken into account in drawing an inference include circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed;
· generally it is not lawful to take into account moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations;
· the degree of probability required to found the necessary inference will depend on the nature of the proceeding:
_ in a criminal case the facts must be such as to exclude reasonable hypotheses consistent with innocence,
_ in a civil case you need only circumstances raising a more probable inference in favour of what is alleged;
· a party's failure to give evidence on some issue in cases where it is within that party's power to provide or give evidence, may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.
[47] The respondent, in essence, contends that there are four primary facts from which it might be inferred that the applicant was deliberately remaining in-connect beyond the stipulated time limit. The first fact is that on at least 17 occasions between January 2000 and March 2002 the respondent monitored the applicant in that status. The second primary fact is the number of times the applicant was counselled about remaining in-connect. The third fact is the applicant committing the same transgression in March 2002, despite being counselled about it in November 2001 and January 2002, and having received training in the use of the toolbar in December 2001.
[48] Finally, there is the applicant's attitude to counselling and warnings about remaining in-connect. In this regard I note the attitude of the applicant in her apparent belief in the respondent's lack of faith or trust in her in spite of her good track record and length of service51.
[49] As I understand Ms O'Brien's submissions, these factors taken together and in isolation from any other facts ground a reasonable inference that the applicant, because of her length of service and good sales performance, believed herself beyond reproach. In other words, the applicant intentionally remained in connect for as long as she considered it necessary rather than what the respondent considered necessary; the applicant simply refused to adhere to the law or any of the respondent's policies on the issue and pleased herself what she did.
[50] The applicant has denied that she intentionally remained in-connect. In my opinion the relevant circumstances for drawing an inference are broader than those that Ms O'Brien has identified as the basis proper to determine a fact from circumstantial evidence. As Dixon J said in Martin v Osborne52:
The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed. ...
[51] Thus, the background of facts that raise an inference of deliberately remaining in-connect, cannot be viewed in isolation. Those facts must be pitted against the factors that may or do mitigate against such an inference and a balance struck between the competing factors. In this regard it is important to take account of the applicant's explanations for remaining in-connect and other cogent facts or matters that tend to explain or make intelligible those explanations. Chief amongst the explanations given by the applicant was the inherent elusiveness of the toolbar in dialler system. This, she said, led to delays in locating the toolbar, either because it became obscured by other applications, or simply because she would forget to locate it to release a call. There is other evidence to support the applicant's explanation in these regards.
[52] Christian Smith, giving evidence in the case for the applicant, said that he is a Sales Consultant and he has been with Telstra for over four-and-one-half years. In that time he has been engaged in information technology testing and in the quality improvement program, i.e. call monitoring for the purposes of coaching53. He gave evidence to the effect that, while working as a sales consultant, he had encountered difficulties in locating the toolbar to release a call from time to time.
[53] Mr Smith explained that, in dealing with subscribers, he would need to open other windows and applications on his monitor to access information for a subscriber or to complete some forms arising from the transaction with a subscriber. These other windows and applications can and did entirely cover the toolbar. Each window or application would have to be closed before the toolbar became visible again. This would delay a release or otherwise momentarily cause him to forget to release a call. At other times the toolbar would just disappear off the screen54. Mr Smith's evidence in these regards was not challenged.
[54] Mr Smith agreed in cross-examination that he had never been counselled or warned about remaining in-connect during his four-and-one-half years service55.
[55] Ms Valerie-Ann Butler stated she is a Sales Consultant and began her employment with Telstra on 16 December 1994. She is an elected site representative of the Communications, Electrical & Plumbing Union (CEPU). It was her unchallenged evidence that the work of a Sales Consultant is high pressure, extremely demanding and subject to a number of forms of monitoring and statistical performance management56. She also said that the toolbar is not user friendly and is obscured by the multiple screens that Consultants must use to access customer details or to fill out sales information. Ms Butler said that there was a tendency to drag the toolbar off the screen and it was a case of out of sight and out of mind. She too inadvertently failed to release a line from time to time and remained in-connect57. Ms Butler's evidence in these regards was not challenged by Ms O'Brien in cross-examination.
[56] Mr Robert Mahar in his evidence in chief said that he was a Sales Consultant and he had worked with Telstra for nine years. He has been working with the toolbar for about five years and considers it a jolly nuisance. He said that in performing his task he had to concentrate on talking to a customer while he was trying to type in data and accessing other data from as many as eight other applications at the one time58. On occasions he had forgotten the toolbar59. His unchallenged evidence was that it is easy to forget about the toolbar if `Idle' is selected prior to moving it [the toolbar] out of the way. Also unchallenged was his evidence that he and others in his team were deliberately not giving the "This call may be monitored for quality purposes" disclaimer on outbound calls60.
[57] Mr Mahar confirmed in cross-examination that he had never been counselled for remaining in-connect61.
[58] Ms Susan Riley said in her evidence in chief that she was a Sales Consultant with Telstra and had worked there for about 10 years. She said the toolbar was not user friendly. When using multiple systems, which Ms Riley said was about five or six applications in one transaction, the toolbar would be dragged to the bottom of the screen so that it was completely out of sight62. Ms Riley said that she remained in-connect beyond the five second time limit on occasions63. Ms O'Brien did not challenge Ms Riley in relation to this evidence.
[59] Ms Robyn Polizzi's evidence was to the effect that she was a Sales Consultant with Telstra and had been so employed for four years. She said that the toolbar was very difficult to use when there were other applications open at the same time. Ms Polizzi said that the toolbar would go out of sight and there had been occasions when she actually lost it64. She said she had forgotten to release calls on occasions65. Ms O'Brien did not cross-examine Ms Polizzi.
[60] Finally, an internal report on the dialler in October 1999, records that the dialler failed testing of its capacity to detect when a customer `hangs up'66. The author of the report comments as follows:
Even though the Dialogic card may recognise that the customer hangs up, the Dialler does not offer an automated process to terminate the call. The Agent has to hang up to clear the line. Alternatively, the line clears after 90 seconds after that exchange time out period67.
[61] Mr Presley, who was involved in the installation and testing of the dialler, acknowledged the comment as his own observation of the dialler68. It seems that, when the dialler was installed, it was intended to clear the line automatically after 90 seconds, but this did not occur universally in all exchanges and thus the five second time limit was imposed on Consultants.69 Mr Presley said that the respondent did not have the technology to address the time out problem, but it is planned to upgrade the dialler when all of the exchanges have been converted to digital technology70.
[62] Subsequently, the report records:
If the N-Dialler can detect that a customer hangs-up then the Dialler should immediately disconnect such calls and not extend such calls to the agents. This would improve agent productivity.71
[63] The Executive Summary of the report records the following comment:
2. User Friendliness which include the following limitations that must be rectified:
· Lack of consolidation of campaign statistics into a single window (need to look at several separate machines/software applications)
· ...
· If CACS PLUS inadvertently downloads duplicate phone numbers in a list, the Dialler rejects the list without clearly identifying the duplicate numbers. Although Telstra can easily work around this issue, via readily available software tools and appropriate processes, this limitation is symptomatic of the fact that this Dialler is a relatively new product which has a number of feature limitations at this stage.72
[64] Mr Presley in cross-examination said that, while testing exchange lines from time to time, he has discovered sales consultants remaining in-connect. He has spoken direct to sales consultants about the issue73, or sent emails to Sales Team Managers telling them that members of their team were in-connect74. Mr Presley in re-examination defined the expression from time to time as once a month75. Mr Presley agreed in cross-examination that the Burwood workplace is a very busy place, hectic at times, and that he has described it as a mad house76.
[65] Ms O'Brien submitted that, in relation to the issue of remaining in-connect, I should give no weight to the evidence of the sales consultants called by the applicant. Although Ms O'Brien accepted the veracity of what was said by the witnesses, it was her contention that their evidence lacked any quality in the context of the number of times the applicant was found remaining in-connect. In other words the evidence of these witnesses was that they remained in-connect on occasions. Ms O'Brien suggested that I should infer that if the witnesses had have remained in-connect as frequently as the applicant they would have been in the same position as the applicant.
Findings
[66] I find the following facts established by the evidence:
· the work required of a sales consultant is high pressure, extremely demanding and subject to a number of forms of monitoring and statistical performance management;
· the work environment at Burwood is, at times, hectic;
· the dialler system used in the process of customer calling has a number of feature limitations, including the inability to disconnect exchange lines called by the dialler;
· the respondent was, at all relevant times, aware of the limitations of the dialler system;
· the respondent requires sales consultants to release calls within five seconds;
· six sales consultants, including the applicant, have had difficulties with finding the toolbar and remembering to release a call within the required time frame because of the operation of multiple applications during calls;
· staff generally at Burwood have difficulties with the dialler system;
· management personnel have discovered other sales consultants, apart form those giving evidence, remaining in-connect;
· the respondent's management staff are aware that sales consultants, other than the applicant, remain in-connect beyond the five second time allowed.
[67] In making my findings in this regard I have accepted the unchallenged evidence of the witnesses called by the applicant about the difficulties they have encountered with the toolbar. I am not prepared to draw the inference, as Ms O'Brien has urged me to do, that the incidence of the other sales consultants remaining in-connect was generally infrequent. Each of the witnesses that the applicant called were well aware of the applicant's situation. The issue was whether the toolbar caused difficulties such that a sales consultant would forget to release a call. Each of the sales consultants said they had difficulties with the toolbar. Each said that they would forget to release calls. That is sufficient, in my opinion, to substantiate a finding that it is more probable than not sales consultants have difficulty with the toolbar and that it leads to them forgetting to release calls.
[68] Ms O'Brien led no cogent evidence to suggest that the respondent could or would detect all sales consultants who frequently remain in-connect. Nor did she suggest to the witnesses in cross-examination that the occasions that they remained in-connect were infrequent or that the toolbar did not present a difficulty in terms of releasing calls. I cannot make a finding that is adverse to the substance of their evidence on a matter that is in issue if the point was not taken in cross-examination of those witnesses to allow them an opportunity to give an explanation. The relevant principle was succinctly stated by the Full Court of the Federal Court of Australia in Flower & Hart v White Industries (Qld) Pty Ltd77 in the following terms:
As a general rule, before an adverse finding is made against a witness in contradiction of sworn testimony given by that witness, [on] a matter in issue, the subject of that finding, must be put to the witness in cross-examination to enable him or her to give an explanation. However, there can be no need to put such an issue to a witness who has notice that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness: see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16; R Cross, Cross on Evidence (4th ed, 1991) par 1744578.
[69] In light of my findings about the probability of forgetting to release calls, the fact that the applicant maintained throughout that she forgot to release calls and her denial that she remained in-connect deliberately, and giving due weight to the fact that the applicant was counselled and warned about remaining in-connect but nonetheless continued to do so, it is not reasonably open, in my view, to infer that the applicant deliberately or intentionally remained in-connect. The facts and circumstances do no more than give rise to conflicting inferences of equal degrees of probability. I am fortified in this view by the applicant's demeanour throughout the course of her evidence.
[70] Furthermore, in my view, there was no real or measurable benefit to the applicant to remain in-connect. So much effectively was conceded by Mr Telfer in cross-examination79. I do not accept the proposition, advanced by Ms O'Sullivan, that sales are not important in the assessment of performance80. I accept the applicant's evidence to the effect that the dialler system presented obstacles to achieving the respondent's call release requirements and that her failure to release calls was due to inadvertence and not an intentional act on her part.
[71] I think though, it is putting it a bit high to say, as counsel for the respondent suggests, the applicant was displaying a combative attitude in the approach to the resolution of the issues with her not releasing calls. I think it more likely that the perceived combative attitude of the applicant was borne of frustration - the applicant's frustration with a system that was flawed by its limitations, frustration with her own performance in the context of remembering to release calls and frustration with management apparently ignoring the system's contribution to the problems she was having in releasing calls. Also the applicant's perception was to the effect that her immediate supervisor was victimizing her. It is appropriate that I now consider that issue of alleged victimization.
Was Mr Telfer victimizing the applicant?
[72] The applicant's unchallenged evidence in this regard was that, at some unspecified time in 2001, Mr Telfer had become enraged with her being late back from lunch after she had been tied up on a personal telephone call to a dying friend. The applicant said that she had tried to explain the situation to Mr Telfer, but he started to rave about statistics and meeting requirements. She went on to say that Mr Telfer did not show her any understanding despite her obviously distressed state. Mr Telfer, the applicant said, would not let her speak. He displayed a very harsh, loud and aggressive manner and showed no compassion towards her.
[73] According to the applicant she became increasingly upset over time about Mr Telfer's abusive manner and decided to approach him about the end of November 2001, to ask for time off work. When she did approach Mr Telfer he told her go back to your desk. It seems however, that the issue became a very real distraction for the applicant, so much so that she felt that she could not focus on her work. About one week after approaching Mr Telfer to discuss the matter the applicant complained to the Manager. The applicant said that a couple of weeks after she complained to the Manager, Mr Telfer apologised to her, but that he continued to pick on her and continually monitored her calls.
[74] It was also the applicant's unchallenged evidence that there had been many complaints against Mr Telfer for his bullying of staff. The applicant said that several examples of Mr Telfer's behaviour had been raised with local management, who said the matter would be investigated.
[75] Mr Len Cooper, State Secretary of the Communications Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, said in his evidence that he had raised concerns with the respondent's management at Burwood about Mr Telfer's management style and his workplace bullying. Mr Telfer, according to Mr Cooper, had a history of bullying female staff at Burwood. Counsel for the respondent did not cross-examine Mr Cooper about any of his evidence in this regard.
[76] According to Mr Telfer, he apologised to the applicant after he discovered that she had been upset by his conversation with her about being late back to work. In cross-examination Mr Telfer said that he was disappointed and hurt when the applicant reported him to management in November 2001 for being rude to her81. He denied that he had been rude to the applicant at the time. According to Mr Telfer he simply asked the applicant is there any reason for being on the phone for such a long period of time and she exploded ... yelled ... and was very aggressive82 towards him. Mr Telfer went on to say that he told the applicant that the best thing to do was to make these types of sensitive calls when you are not at work so you can deal with those emotions83. He felt the applicant was unfair in reporting him for the events of November 2001, but he denied holding any grudge against her or that he had been bullying her. Subsequently, Mr Telfer, in cross-examination, said that, although he did not hold the applicant in great favour, he did not dislike her84.
[77] On this issue I must accept evidence of the applicant and Mr Cooper, if only because it was not challenged. However, their evidence establishes no more than the unacceptability of Mr Telfer's bullying management style to the employees at Burwood and his insensitivity and a lack of compassion in dealing with the applicant's personal grief. The applicant has not demonstrated any course of conduct on the part of Mr Telfer that would constitute victimization. Nonetheless, having observed Mr Telfer's demeanour during his evidence, and having regard to the unchallenged evidence of the applicant and Mr Cooper, I am not so sure that Mr Telfer brought an entirely objective mind to bear on the question of the appropriate action to be taken in respect of the applicant when he was dealing with the issue of her remaining in-connect in March 2002.
[78] I am satisfied that Mr Telfer showed little compassion in telling the applicant that she avoid making sensitive type calls from work so that she could deal with her emotions away from the workplace. He was insensitive in not being prepared to discuss the matter with the applicant when she approached him about it subsequently. Such conduct, in my view, contributed to the applicant's perception that Mr Telfer was an intimidating bully. It was not an unreasonable perception in the circumstances of those events and the events of 2 March 2002.
The issue of the disclaimer
[79] The issue regarding the applicant's attitude to the disclaimer is another matter. I am satisfied that the applicant's conduct in relation to the disclaimer was inappropriate. It is a requirement of the respondent to alert customers that their conversations may be monitored. It seems to me not an unreasonable requirement. The applicant had a duty to carry out the direction in the circumstances. It was not an answer for the applicant to say that she was happy to have her calls monitored by someone sitting beside her85. The applicant had some issues about privacy and, as she perceived it, management's failure to recognise her expertise in conducting the conversations that she was required to initiate. Those were matters that the respondent could have addressed more delicately and professionally in dealing with the applicant. However, the applicant nonetheless was obliged to carry out the directions in relation to the disclaimer.
Was the termination of the applicant's employment harsh, unjust or unreasonable?
[80] I am required to determine, in accordance with s 170CG(3) of the WR Act, whether the termination of employment was harsh, unjust or unreasonable. Section 170CG(3) is in the following terms:
(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and
(da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(e) any other matters that the Commission considers relevant.
Was there a valid reason for termination of the applicant's employment?
[81] The reason for termination of employment must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business86. A valid reason is one that is sound, defensible or well founded87.
[82] In this case the respondent relies on the applicant's conduct as justifying the termination of the applicant's employment. Counsel for the respondent said that the reason for summarily terminating the applicant's employment was the applicant's misconduct. The misconduct relied on was:
· the applicant deliberately remaining in-connect so as to commit a fraud on the customers; and
· despite extensive training, explanation and warnings about such unacceptable behaviour over a two year period, the applicant was observed remaining in-connect for five consecutive periods on 2 March 2002.
[83] When an employer relies on serious misconduct as the reason for termination of employment, as the respondent does in this case, the Commission must be satisfied that the alleged conduct in fact occurred. I am satisfied that the applicant did remain in-connect contrary to the requirements of the respondent's policy about being in-connect. It is clear also that the applicant was given additional training, counselled and warned about remaining in-connect contrary to the requirements of the respondent's policy. I am satisfied that, despite the training, counselling and warnings, the applicant did remain in-connect in breach of policy on 2 March 2002.
[84] There is an issue about whether the applicant's conduct justified her summary dismissal. In my opinion that is a matter to be taken into account in determining whether the termination of employment was harsh, unjust or unreasonable. It is not a matter of itself that affects the issue of whether there was a valid reason for termination of the applicant's employment relating to her conduct. In Annetta v Ansett Australia Pty Ltd88 it was argued that in cases of summary dismissal there can be no valid reason for the termination within the terms of s.170CG(3)(a) unless the employee is guilty of conduct justifying summary dismissal at common law. In rejecting that argument on appeal the Full Bench89 reasoned as follows:
It is generally accepted that the term `valid reason' should be construed to mean `sound, defensible or well-founded': Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373. Although that case concerned legislation which has now been repealed it is still regarded as authoritative. To limit the meaning of the term `valid reason' by importing a test amounting to repudiation of the contract at common law is unwarranted and impermissible. Secondly 170CG(3)(a) focuses on the reason for termination. The appellant's construction would result in an arbitrary application of the section in some circumstances. Take a case where an employee is guilty of conduct which does not amount to misconduct justifying summary termination. If the employer terminates the employment on notice there would be a valid reason for doing so. If the employer terminates the employment summarily there would not be a valid reason for doing so. The validity of the reason cannot be made to depend on whether or not the termination was on notice.90
[85] I agree with the conclusion that the Full Bench reached about the relevance of the common law principles of summary dismissal to the question of valid reason. I am satisfied that, in this case, the respondent had a valid reason related to the applicant's conduct for terminating her employment. It seems to me that the applicant's breach of policy on the issue of remaining in-connect was reason enough for terminating her employment. Furthermore, the applicant's failure to comply with the disclaimer policy provided a valid reason for terminating her employment.
(b) Was the applicant notified of the reasons for dismissal?
[86] The relevant principle of procedural fairness is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case91. Previous decisions of the Commission in this regard have made it clear that the doctrine of procedural fairness dictates that a respondent should notify an applicant of its reasons for terminating the applicant's employment:
[87] According to the written notice of summary termination of employment given to the applicant on 27 March 2002, the reasons for dismissal were provided to the applicant in the course of discussions as part of the investigation into her conduct95. The letter notifying the applicant of the termination of her employment appears to have been signed by Darian Stirzaker, Chief of Consumer Sales. Mr Stirzaker did not give evidence. Mr Telfer's evidence indicates that the discussions, to which reference is made in the termination letter, occurred on 7 and 26 March.
[88] In the course of a 15 minute discussion with the applicant on 7 March, Mr Telfer raised with her the following matters:
· the meaning of staying in-connect;
· a memorandum from Sales Centre Manager about the importance of the impact of staying in-connect and the applicant's refusal to sign it;
· failure to follow a lawful directive in attending a mandatory meeting with a manager upon request to do so;
· the training given to the applicant on 17 December 2001; and
· the written warning given to the applicant on 29 November 2001.
[89] After raising the above mentioned matter Mr Telfer asked the applicant her reasons for staying in-connect. Although it is disputed I accept that the applicant said no comment. Mr Telfer then informed the applicant that she was suspended on pay pending further investigation.
[90] Mr Telfer met with the applicant again on 26 March 2002. The meeting was half an hour in duration. At the meeting Mr Telfer announced that the purpose of the meeting was to discuss the staying in-connect issue. There was then a discussion about the applicant remaining in-connect on 29 November 2001, 7 January and 2 March, 2002, the applicant not using the disclaimer on 2 March and counselling and warnings that had been given in respect of 29 November and 7 January.
[91] On 26 March 2002, it appears that the respondent made the applicant aware that her position was in jeopardy because of her repeated practice of staying in-connect after the subscriber had hung up and the fact that she continued to do it despite training, counselling and a warning.
[92] One difficulty that I have had in determining whether the applicant was notified of the reason for the termination of her employment is that the person who made the decision to terminate the applicant's employment did not give evidence. According to Mr Telfer he decided, after the discussion with the applicant on 26 March, to make a recommendation to his superior Mr Wooster, for termination of the applicant's employment, who then took the matter up with the Centre Manager, who, in turn, took it up with the Director, who took it to the decision maker, Mr Stirzaker. There is no evidence of the terms of the recommendation that Mr Telfer gave to Mr Wooster or the terms of the recommendation as it finally appeared before Mr Stirzaker. I do not know what was in Mr Stirzaker's mind when he wrote that the reasons for Telstra's decision have been discussed with you as part of the investigation process96. While I am prepared to accept that Mr Stirzaker took account of the applicant's repeated failure to adhere to the respondent's in-connect policy, I cannot know if there were any other reasons, which he considered warranted the termination of the applicant's employment, but which had not been conveyed to the applicant.
[93] In light of my finding that there was a valid reason for terminating the applicant's employment related to her conduct in respect of the in-connect policy, I am satisfied that reason was notified to the applicant.
(c) Was the applicant given an opportunity to respond?
[94] In the course of the discussions on 26 March 2002, Mr Telfer asked the applicant for her reasons for her staying in-connect conduct. He also asked the applicant if she could give him any reason why her employment should not be terminated. The applicant denied that she was deliberately staying in-connect after calls. I am satisfied the respondent gave the applicant an opportunity to respond to the allegations against her. The extent to which the respondent took any cognisance of her responses is considered below.
(d) Was the applicant warned about unsatisfactory performance before the termination?
[95] The question of whether the applicant was warned about unsatisfactory performance before the termination of her employment does not apply in this case. The applicant was clearly terminated because of her conduct and not for reasons that included performance.
(da) Did the size of the respondent's service impact on procedures?
[96] The respondent is a major corporation and, in my view, it ought to have well established procedures for disciplinary action. The size of the enterprise had no bearing on the outcome in this case.
(db) Absence of a dedicated human resource management
[97] There was no evidence or submissions in this case to suggest that human resource management was a factor of any consequence.
(e) Other matters that the Commission considers relevant
[98] There are four matters that I consider relevant to the determination of whether the termination of the applicant's employment was harsh, unjust or unreasonable, namely:
· the justification for summary termination of employment;
· the impact of the termination on the applicant;
· the deficiencies of the dialler system;
· the relationship between Mr Telfer and the applicant.
Was the summary termination of employment justified?
[99] It has been variously expressed in the Commission that the question of whether there was a valid reason for termination of employment is no longer the critical question (as it was under the Industrial Relations Act)97. While the existence of a valid reason may be an important factor it does not answer the question of whether the termination was harsh, unjust or unreasonable in the context of ensuring that a "fair go all round" is accorded to both the employer and the employee concerned98. This principle brings into consideration the lawfulness of the termination of the applicant's employment. If it is found that the summary termination of her employment is lawful in the sense that it was justified it must go a long way towards repelling an allegation that the termination of employment was harsh, unjust or unreasonable. On the other hand, if summary termination of employment is unlawful by reason of it being unjustified, then the applicant will be well placed to demonstrate that the termination of her employment was harsh, unjust or unreasonable99.
[100] In determining whether summary termination of employment is harsh, unjust or unreasonable the respondent, in my view, must carry the evidential burden of proof. Of course this does not relieve the applicant of the legal burden of proving her case on the balance of probabilities.
[101] The recent decision of Rankin v Marine Power International Pty Ltd100 (Rankin) traverses the law in relation to summary dismissal and provides guidance in this case. In Rankin, the Supreme Court of Victoria was concerned with the summary dismissal of a senior executive for failing to provide truthful information to management in relation to the likely cost over-run of a major construction project in China, and for concealing information when reporting.
[102] During the course of his judgment, Justice Gillard referred to the principles adopted by the Court of Appeal in Laws v London Chronicle Ltd101, and set out the circumstances in which summary dismissal is justified:
(i) Wilful disobedience of the lawful and reasonable order of the employer justifies summary dismissal.
(ii) Misconduct, inconsistent with the due and faithful discharge by the employee of the duties for which he was engaged, is good cause for dismissal, but there is no fixed rule of law defining the degree of misconduct which will justify dismissal.
(iii) There is a good ground for the dismissal of an employee if he is habitually neglectful in respect of the duties for which he was engaged.
(iv) That a single instance of insolence would hardly justify dismissal.
(v) The question is whether the conduct complained of is such as to show that the employee has disregarded the essential conditions of the contract of service.
(vi) As a general proposition one act of disobedience or misconduct would not generally justify dismissal, but one such act may justify dismissal, "only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason therefore, ... that the disobedience must at least have the quality that it is 'wilful': it does (in other words) connote a deliberate flouting of the essential contractual conditions."
[103] His Honour found that while Mr Rankin was clearly derelict in failing to inform management that the project cost would substantially exceed the approval, he did not take any steps to mislead or deceive senior management when reporting. Furthermore, his Honour found that the applicant's failure to comply with directions relating to approval of costs for capital works did not amount to wilful disobedience of the company rules.
[104] The first issue for determination in this case is whether the applicant's actions of remaining in-connect warrant summary dismissal. Accepting, as I do, that the applicant's actions were inadvertent and not deliberate, I do not believe that the applicant's conduct constitutes wilful disobedience of the respondent's rules relating to the dialling system. I also do not regard the applicant's conduct as inconsistent with the express conditions of her employment or destructive of the relationship of mutual trust between the employer and employee.
[105] In my opinion, the critical question in this case is whether the respondent had grounds for dismissal on the basis that the applicant was habitually negligent in the performance of her duties. It is a well established principle that an employee may be dismissed for negligent conduct102. However, summary dismissal will only be justified if the negligence is of a serious and substantial nature103.
[106] In Baster v London and County Printing Works104, Darling J said:
Neglect as often arises from forgetfulness as from anything else; and, if the forgetfulness is with respect to an important thing it may well, in my view, be good ground for dismissal of the servant without notice. I do not say that it would be a good ground for dismissal in every case. Some trivial acts of forgetfulness might not even justify a complaint or remark; but to forget to do a thing which, if not done, may cause considerable damage to the master, or to his property, or to fellow servants, may be a serious neglect of duty.
[107] It is obvious in this case that the applicant was negligent in the performance of her duties when she failed to disconnect the telephone within the five second time frame. Given the number of occasions on which this occurred, her conduct can only be described as habitually negligent. However, her propensity to forget to release calls did not happen in a vacuum and it is necessary to examine the circumstances surrounding the conduct relied on, which constitute the relevant factual matrix, to decide whether the termination was harsh, unjust or unreasonable105. The surrounding circumstances in this case include the inherent limitations in the dialler system, the fact that sales consultants other than the applicant have experienced difficulties with the toolbar and forget to release calls because of it and the pressure to perform in the job. Added to this is the absence of any forensic evidence to demonstrate that the neglect may cause considerable damage to the respondent, its property or to other of the respondent's employees.
[108] There was exhibited to the Mr Telfer's witness statement written advice from the respondent's Legal and Regulatory Directorate, about the legal consequences of staying in-connect106. The advice dated 13 March 2002, is addressed to Mr Damian Wooster, Sales Centre Managers (sic). The written advice records, in part as follows:
Staying in connect results in the consumer's line being tied up, preventing the consumer from receiving or making calls, including calls to emergency services. The prevention of access to emergency call services is of the greatest concern. There are a number of consequences resulting from this conduct.
The advice then proceeds to list what it says are the consequences of remaining in-connect. These are said to be a breach of ADMA Direct Marketing Code of Practice, for which there are no ramifications, breach of the Telecommunications (Consumer Protection and Service Standards) Act 1999 by reason of remaining in-connect contrary to the requirements of Telecommunications (Emergency Call Service) Determinations 1999, for which it is said the respondent may be liable for a pecuniary penalty up to $10 million, and breach of the Crimes Act 1914 (Cth).
[109] Curiously, the advice concludes that it is arguable that staying in connect prevents access to emergency calls and consequently results in the breaches outlined in the preceding paragraph and that it may raise privacy concerns.
[110] Neither the author of the advice to Mr Wooster nor Mr Wooster was not called to give evidence. The advice is qualified and no submissions were advanced in respect of it. It is unpersuasive in itself and I give it no weight in assessing the possible extent of any damage to the respondent, its property and its employees as a consequence of the applicant being found to have remained in-connect for the periods of time that she did.
[111] In all of the circumstances I do not believe that the applicant's negligent conduct was serious enough to warrant instant dismissal. I do not accept that the applicant's actions were entirely her own fault. Further, I am not persuaded that the applicant's actions may have caused considerable damage to the respondent. The respondent was well aware of the deficiencies of the system it had installed and assumed the risks associated with it.
[112] I now turn to the question of whether the applicant's failure to carry out the respondent's directions in relation to the disclaimer warranted summary dismissal. It is clear that the applicant's actions amount to a failure to follow a lawful and reasonable direction. However, while the failure to follow a lawful instruction which is reasonable in the circumstances can provide an employer with a valid reason for summary termination of employment107, it does not of itself provide a justification for summary dismissal.
[113] In Adami v Maison de Luxe Ltd108, Isaacs J made the following comments in relation to an employee's duty to perform tasks in accordance with the employer's lawful directions:
It is no doubt a correct principle that, once the relation of employer and employee is established, obedience to lawful orders is, if not expressly, then impliedly, contemplated by the contract creating the relation, and mere disobedience of such orders is a breach of the bargain. But whether disobedience in a given case is of such a character as to justify a complete dissolution of the contract by one of the parties and, as here, a forfeiture by the other of valuable accruing rights, together with some degradation - altogether a severe penalty - is, in my opinion, quite a different matter. Such a justification requires the disobedience to be as phrased 'wilful disobedience of a lawful order.' That is, it must be not merely a breach but a radical breach of the relation, and inconsistent with its continuance.
[114] In the present case, I do not believe that the applicant's actions were inconsistent with the continuance of her employment. The applicant gave evidence that one of her reasons for not using the disclaimer was that it compromised her ability to make a sale with the customer. She said the disclaimer prolonged the call and created an unfriendly and unsettling atmosphere in which to make a sale109. The evidence of Mr Mahar, a sales consultant with nine years experience, was that he and other members of his team were deliberately not using the disclaimer110. In any event, there is no evidence that the respondent gave the applicant an opportunity to explain why she did not use the disclaimer111. When she did attempt to raise the issue in a meeting with Mr Telfer on 7 March 2002, Mr Telfer told her we are not here to discuss that today112.
[115] I am not satisfied that the applicant's attitude to counselling justified summary termination of her employment. I seriously doubt that those responsible for supervising the applicant ever appreciated the frustration the applicant was experiencing with the dialler system and its inherent deficiencies. Their evidence suggests that they always believed (although they never expressed it to her until the end) that the applicant was remaining in-connect deliberately or intentionally for her own undisclosed purposes. Those supervisors, in my opinion, were unreceptive to her genuine reasons for remaining in-connect. Apart from a post-it note stuck on her monitor, there is no evidence that the supervisors took any action that demonstrated an understanding of the difficulties associated with remembering to release a call. Mr Telfer's evidence is particularly telling in this regard. As far as he was concerned, the applicant could have saved her job if she, on 26 March 2002, had have apologised for her conduct and agreed not to do it again. It is unlikely that the applicant could have agreed to enter into a genuine agreement not to do it again if she was unaware that she was not releasing calls within the required five second time frame.
[116] In all the circumstances, the respondent has not demonstrated that summary dismissal of the applicant was justified. I find that summary dismissal was not warranted. I regard it as unjust for the respondent to have dismissed the applicant summarily without reasonable cause.
Was any consideration given to the impact of the dismissal on the applicant?
[117] The person who made the decision to terminate the employment of the applicant did not give evidence in this case. I do not know what factors were taken into account in making the decision. The applicant has served the respondent for almost 10 years. In a very short space of time the applicant would have qualified for a long service leave entitlement. It is not apparent that the respondent considered the loss of that benefit as a result of summary dismissal.
[118] Over the course of the applicant's service she was awarded certificates of recognition for outstanding performance in sales. It is not apparent that the decision-maker took into account the applicant's achievement in that regard. Mr Telfer made some attempt in his evidence to discredit or devalue the significance of the awards that the applicant had achieved. If the awards are worth as little as Mr Telfer seems to suggest it is a wonder that the respondent would go to the bother of establishing them. It was evident in hearing and observing the applicant in the proceedings before me, that dismissal was an unjust reward for the contribution she had made to the respondent's business.
[119] In my view it was unreasonable for the respondent to terminate the applicant's employment without first considering the contribution that the applicant had made to its business and the real loss the applicant suffered as a result of the termination of her employment. The impact on the applicant is harsh.
Was the dialler system a relevant consideration?
[120] I have already dealt with the deficiencies as a contributing factor in the applicant negligent conduct. It is not apparent that it was a relevant consideration in determining the penalty appropriate to be imposed on the applicant. It was unreasonable for the respondent to dismiss the applicant without taking that factor into account.
Was the relationship between Mr Telfer and the applicant a relevant consideration?
[121] The applicant, justifiably in my view, believed Mr Telfer to be insensitive and lacking in compassion. The applicant had reported him to his superiors for his lack of compassion. He subsequently apologised to the applicant, but soon after became involved in disciplinary action against her. It was Mr Telfer who was assigned to take up the investigation into the applicant's in-connect conduct. It was Mr Telfer who recommended that the applicant's employment be terminated.
[122] In my opinion, it was inevitable that the applicant would be uncommunicative with Mr Telfer when he attempted to discipline her in March 2002. The applicant's reaction to Mr Telfer when he initially raised with her the issue of remaining in-connect in March 2002 is entirely understandable and not unreasonable. It is evident from the applicant's responses to him in the investigation that there was some antipathy between the applicant and Mr Telfer. The applicant not unreasonably found Mr Telfer intimidating.
[123] Mr Telfer's superiors apparently did not take any account of the applicant's prior experience with Mr Telfer when delegating him to investigate her conduct. There is no evidence that her reluctance and reticence about dealing with him were even considered. Furthermore it is not apparent that the Mr Telfer made any attempt to account for his apparently poor relationship with the applicant in making the recommendation that she be dismissed summarily.
[124] It was procedurally unfair and, in my view, unjust to have Mr Telfer in charge of the investigation into the conduct in the circumstances. I find the termination of employment was, for that reason, unjust.
Conclusion
[125] I find that the termination of the applicant's employment was harsh, unjust and/or unreasonable. I am satisfied that the termination of the applicant's employment was harsh because of the impact it has on the applicant in terms of the equity she had in her job and because of the respondent's disregard for the contribution that she has made to its business, when deciding to terminate her employment.
[126] I consider the termination of the applicant's employment was unjust because the respondent:
· did not take into account the inadequacies of the dialler system in deciding to terminate her employment;
· did not treat the applicant's explanations for her conduct seriously;
· assigned Mr Telfer to investigate the applicant's conduct in spite of their history of their relationship;
· did not take account of the requirement for transparency in the conduct of the investigation or the decision-making process when it accepted Mr Telfer's recommendation to terminate her employment.
[127] I find the termination of the applicant's employment was unreasonable because it did not take into account the inadequacies of its own dialler system in concluding that termination of employment was the appropriate penalty for the applicant's conduct.
[128] In the normal course of events it would be appropriate that I now consider whether to grant a remedy to the applicant. However, three months have passed since the hearing of this matter concluded. It is reasonable in the circumstances that the parties should have an opportunity to address me further on the issue of remedy. As the Full Bench said in ALH Group Pty Ltd t/a Royal Exchange v Mulhall113:
... as a general proposition the time between the hearing of an application under s 170CE and decision is usually about six weeks, hence problems associated with a change in the circumstances of an applicant or respondent would not normally arise... However if the period between the hearing and the decision is considerable ... it would be prudent to provide the parties with a further opportunity to update the Commission on any material change to circumstances.114
[129] Accordingly, I reserve my decision on remedy pending the presentation of any further evidence and submissions regarding the issue of remedy. Each party is allowed seven days in which to notify my associate of their intention regarding further evidence and/or submissions about any relevant changes in circumstances since the conclusion of proceedings in December 2002. If a further listing is required the parties will be notified in writing with directions for the conduct of the hearing.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
J. Selimi of counsel on behalf of the applicant.
F. O'Brien of counsel on behalf of the respondent.
Hearing details:
2002.
Melbourne:
December 4, 5, 6, 9 and 13.
Printed by authority of the Commonwealth Government Printer
<Price code G>
1 see Witness Statement, Exhibit A1; Transcript PN76.
2 see Witness Statement, Exhibit A5; Transcript PN1846.
3 see Witness Statement, Exhibit A7; Transcript PN1922.
4 see Witness Statement, Exhibit A8; Transcript PN2197.
5 see Witness Statement, Exhibit A9; Transcript PN2306.
6 see Witness Statement, Exhibit A10; Transcript PN2385.
7 see Witness Statement, Exhibit A11; Transcript PN2409.
8 see Witness Statement, Exhibit R2; Transcript PN2468.
9 see Witness Statement, Exhibit R3; Transcript PN2985.
10 see Witness Statement, Exhibit R5, Transcript PN4168.
11 see Witness Statement, Exhibit R6; Transcript PN5395.
12 see Witness Statement, Exhibit R7; Transcript PN5437.
13 see generally the evidence of John Presley, Customer Access Administrator, Exhibit R7.
15 Transcript PN3008-PN3011. In re-examination Ms O'Sullivan was taken to her diary and read from a notation made on 1 October 1999 that indicates there had been a number of occasions in 1999 when Ms O'Sullivan had observed the applicant remaining in-connect after the customer had hung up - see PN3616 ff. See also the applicant in cross-examination, transcript PN155.
17 see Exhibit R3, Attachment MO-3.
18 see Exhibit R3, Attachment MO-5.
25 Exhibit R5, Attachment TJT-19.
29 A statement required to be made by a consultant at the beginning of a call to a subscriber to inform the subscriber that the call may be monitored for quality control purposes unless the subscriber objected to it being monitored.
33 Exhibit R5, par 8 and Attachment TJT-4.
35 Exhibit R5, Attachment TJT-6.
42 Exhibit R5, par 17 and Attachment TJT-8.
49 PR915674, 21 March 2002, VP Ross, SDP Lacy and Simmons C.
50 G v H (1994) 181 CLR 387, Martin v Osborne (1936) 55 CLR 367, Bradshaw v McEwans Pty Ltd (1951) High Court, unreported, Luxton v Vines (1952) 85 CLR 352
54 Transcript PN1860 - PN1864.
55 Transcript PN1898 - PN1901.
61 Transcript PN2267 - PN2268.
62 Transcript PN2324 - PN2328.
63 Transcript PN2349 - PN2352.
66 Predictive Dialler Proof Of Concept Evaluation Report, Prepared by Tom Ackermann, Communications Consultant, Internal Telecommunication Services, Business & Government Service [Exhibit A13].
70 Transcript PN5628 - PN5630.
73 Transcript PN5655 - PN5656.
74 see Exhibit A14 and Transcript PN5706.
79 Transcript PN4480 ff but cf PN4521 - PN4570.
80 see evidence of Ms Clarkson, Transcript PN2839 - PN2841.
86 see Cosco Holdings Pty Ltd v Do (1997) 150 ALR 127, Qantas Airways v Cornwall (1998) 83 IR 102;
87 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
89 Giudice J, Williams SDP and Cribb C.
90 see paragraphs [9] and [10].
91 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport [Print S5897]
93 Previsic v Australian Quarantine Inspection Services [Print Q3730]; Cosic & Another v Nuance Australia Pty Ltd t/as Downtown Duty Free [Print Q1346]
94 Valentine Previsic v Australian Quarantine Inspection Services [Print Q3730]; Sinclar v Defiance Milling Co Pty Ltd [Print P7993]
95 Exhibit R5, Attachment TJT-19.
97 see for example Windsor Smith v Lui and Others, [Print Q3462]
98 see Smith and Roulston v Capral Aluminium, [Print R9808].
99 see R v Industrial Court (SA) ex parte Mt Gunson Mines Pty Ltd (1982) 30 SASR 504 (King CJ).
101 [1959] 1 W.L.R. 698 at 700
103 Re Rubel Bronze and Metal Co (1918) 1 KB 315
105 see Qantas Airways Ltd v Cornwall (1998) 84 FCR 483; 83 IR 102. Although the inquiry in that case was directed to determining whether there was a valid reason for the termination of employment the principle is equally applicable in this case.
106 see Exhibit R5, Attachment TJT-21.
107 Cox v South Australia Meat Corporation (1995) 60 IR 293 per von Doussa J, Shorten and Others v Australian Meat Holdings Pty Ltd (1996) 70 IR 360, Ross VP
112 Exhibit R5, Statement of Tyler John Telfer, attachment 14