Applicant v NBN Co Limited T/A NBN

[2015] FWC 7412

[2015] FWC 7412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
NBN Co Limited T/A NBN
(U2015/9159)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 OCTOBER 2015

Application for relief from unfair dismissal.

[1] The Applicant’s employment with NBN Co Limited ended on 25 June 2015. He said that his employment was terminated unfairly.

[2] Much of the circumstances which led to the dismissal are not in dispute.

[3] The Applicant was provided with a mobile phone by NBN. In August 2014, the Applicant’s excessive personal use of his work provided phone was detected. At that time it was found that the Applicant had incurred approximately $7500 in international call costs. On 11 September 2014, the Applicant was notified by his then manager about the calls. The Applicant admitted that he had been making personal calls to his family in India. On 15 September 2014, the Applicant apologised and offered to pay for the calls.

[4] NBN then conducted further investigations and found that the Applicant had made a further $3200 worth of international calls between 24 August and 11 September 2014. On 9 October 2014 the Applicant was advised of these additional costs.

[5] Further investigations found that the total amount of international call costs incurred by the Applicant in the period May to September 2014 was $22,630. The Applicant was forwarded an email on 4 November 2014 advising him of this amount and providing him with the relevant bank account details so that he could repay the monies.

[6] On 5 November 2014, the Applicant advised his manager Mr Atul Kant that he could not afford to repay that amount as a lump sum.

[7] On 6 November 2014, the Applicant discussed the repayments with Ms Rebekah Mark from Human Resources. On the same day he repaid $7500. Ms Mark was aware that the Applicant had asked that he not be required to repay the rest of the monies.

[8] On 3 February 2015, the Applicant was issued with a warning letter in relation to his misuse of the phone. The Applicant was found to have breached NBN’s policies. He was directed to repay the outstanding amount of $15,130 and he was asked to provide by 6 February 2015 his proposed repayment plan. He was advised that if he did not repay the outstanding balance NBN would consider taking further disciplinary action including the likely termination of his employment. He was directed to the Code of Conduct and the Acceptable Use Guideline.

[9] On the same day the Applicant replied and denied knowingly breaching the policies. He contended that the Acceptable Use Guideline was not accessible on the intranet. As a consequence he denied breaching the Code of Conduct. He asked for his final warning and the requirement to repay the monies to be reconsidered.

[10] Mr Kant replied on 10 February 2015 and advised that there would be no reconsideration of the final warning. The Applicant was advised that the Code of Conduct and the Acceptable Use Guideline were accessible via a search of the Hub and he was referred to staff wide communications on this topic on 12 April 2013 and 6 March 2014. He was directed to provide a repayment plan by 13 February 2015. The same warnings about the consequences if he did not were included in the email.

[11] In February 2015, the parties exchanged emails about a repayment plan. On 16 March 2015, NBN wrote to the Applicant and proposed a plan that would see the monies repaid by February 2016. The Applicant was again advised if he did not commence repaying the monies he would face disciplinary action.

[12] On 20 March 2015, NBN received a letter from Professionals Australia on behalf of the Applicant. That letter advised that because NBN had not monitored call usage in accordance with its policy the Applicant had been unaware of the costs he was incurring. Had the Applicant been aware he had been incurring the costs, he would have ceased making the calls. It reiterated that the policies were not accessible. It was accepted that the Applicant had breached the Acceptable Use Guideline and IT Equipment Policy but not the Code of Conduct because he had not knowingly behaved in an unacceptable way. They sought a meeting to respond to the repayment plan.

[13] NBN replied on 27 March 2015 and advised that it did not accept that its policies were not accessible. It further advised that the Applicant was required to repay the monies and invited the Applicant to put forward a proposal that commenced with a repayment in the next pay cycle and saw the full repayment by 28 February 2016.

[14] On 27 April 2015, the Applicant advised that he was withdrawing his offer to repay the monies until appropriate discussions resulted in a properly considered and agreed outcome.¹ The Applicant in the final paragraph advised that he was filing a grievance and he requested a fair investigation.

[15] On 28 April 2015, a further meeting was held with Mr Kant. Mr Kant sent the Applicant an email setting out NBN’s requirements, namely that repayment must commence immediately and the monies must be repaid in full by February 2016. He was asked to provide a repayment plan.² The Applicant gave evidence that he did not respond to this request as he had lodged a grievance.³

[16] Ms Mark responded to the Applicant’s grievance on 5 May 2015 rejecting the matters set out in the Applicant’s latest letter and advised that NBN would work with him to pursue a successful repayment of the outstanding monies.⁴

[17] On 11 June 2015, there was a meeting with the Applicant and his representative and Mr Murray James, the General manager Engineering & Transit, Mr Kant, Ms Mark and Ms Jung. The Applicant was presented with a show cause letter. In that show cause letter NBC proposed a repayment plan which would see the Applicant repay $200 per fortnight until such time as the monies were repaid. He was told to advise if he accepted the plan by 15 June 2015. The letter then said:

“If you feel you are not able to manage the repayment amounts proposed in the Repayment Plan, we require you to respond in writing by 15 June 2015 outlining the reasons why and proposing an alternative regular repayment amount that is reasonable to both parties in the circumstances.”

[18] He was advised that:

“NBN considers your conduct in this both the breach of NBN polices and subsequent non-compliance with a reasonable and lawful direction to be a serious matter and accordingly NBN requires the repayment of the Outstanding Amount. As a result, should you not agree to a reasonable Repayment Plan, NBN may consider taking disciplinary action against you (which may include terminating your employment), on the basis of your continued failure to follow a reasonable and lawful direction to put forward a reasonable repayment proposal.
….
In the event you do not provide your agreement to the Repayment Plan, NBN requires you to provide a written response outlining why NBN should not take disciplinary action against you….”⁵.

[19] The Applicant replied on 15 June 2015 and said “I do not believe that I am or I was at any time liable to pay to NBN the amount of $22,630.” He advised that he was a single income earner for his family and that he was still recovering from the loan that he had to take out to make the initial payment of $7500. He advised that a payment of $15,130 in less than one year is overly burdensome and unreasonable. The Applicant set out the reasons why he considered he was not liable to repay the monies and advised that he wished to place his final written warning in formal dispute including that there was no evidence that NBN had been required to make such a payment; the payment plans were unreasonable and would leave him financially crippled; his employment had been threatened if he did not repay the monies; he used the phone in accordance with his understanding of acceptable phone usage; other staff used their phones for personal international calls; he was not provided with any information about his phone’s plan or usage cap; he was not alerted to the problem until September 2014; he had not seen the Acceptable Use Guidelines; this was not part of his induction; NBN did not follow the procedure set out in the IT Equipment Policy and if it had done so he would not have continued to use the phone for personal use; his breach of policy was not blatant and NBN, because of its conduct, is not entitled to recover the call charges; and NBN are selectively enforcing the policy which is unjustifiable.⁶

[20] On 16 June 2015, following another meeting, Ms Mark replied and rejected the Applicant’s contentions⁷. The Applicant was asked to advise if he continued to deny that he was required to repay the monies and would not contemplate a repayment plan, or whether he was open to an alternative repayment plan, and if he was, could he confirm how much he could afford to repay per fortnight. He was advised that if he could not afford to make any repayments then they required written information about his financial position so that they could assess his response. He was required to provide an answer to this email by 5pm on the same day.

[21] The Applicant replied on the same day but did not answer Ms Mark’s questions. He accepted that he had undertaken the Security and Privacy Training but he said it made no mention of the usage of business phones.⁸

[22] On 17 June 2015, the Applicant registered a formal grievance with NBN about the disciplinary action which he said was unfair and potentially unlawful. He sought advice on “where [he] should seek help next to register a formal grievance complaint.”⁹

[23] On 18 June 2015, the Applicant sent a further email in which he reiterated his position but advised that he was willing to “negotiate a reasonable settlement …..that take(s) into account the actions/inactions of both parties.”¹⁰

[24] On 18 June 2015, Ms Marks replied¹¹ and advised that NBN did not accept that the policies were not available to him. She advised that NBN had paid for the phone calls made and advised that she would provide evidence of this if available. She denied that NBN were selectively applying the policy and that NBN had been negligent in implementing and enforcing its policies. Even if it had she said, it did not negate his obligation to comply with the policies. She put that he must have been aware that his excessive use of the phone to make international calls was unreasonable and the final warning would stand. NBN denied that he had been bullied or placed under duress.

[25] On 22 June 2015, Ms Kathryn Nell, the General Manager Human Resources, advised that she had investigated his complaint and advised that she was “satisfied that the matter had been handled appropriately and in accordance with the NBN Co Managing Performance and Behaviour Policy.”¹²

[26] On 25 June 2015, a further meeting with the Applicant and his representative along with NBN representatives took place. Various proposals were discussed which included a non-negotiable proposition put by the Applicant that his final warning be revoked. NBN would not revoke the final warning and as a consequence the negotiations did not reach an agreed outcome and the Applicant was advised that his employment was terminated.

[27] A letter of termination was provided which advised that:

“NBN considers it has gone to extensive lengths to afford you the opportunity to come to a reasonable agreement to resolve the Outstanding Amount. Despite this process taking place over a period of not less than six months, you have continually failed to cooperate with our attempts to reach an agreement and have repeatedly failed to comply with a reasonable and lawful direction issued to you by your employer.

Against this background and the fact that you have already been issued with a Final Warning for the unacceptable conduct in question, I confirm that NBN has made a decision to terminate your employment with notice in accordance with Clause 8.2 of your contract of employment, effective immediately.”¹³

[28] The Applicant was not required to work out his notice.

Was the Applicant aware of the relevant NBN policies?

[29] The relevant policies were the IT Equipment Policy and the Acceptable Use Guidelines.

The IT Equipment Policy

[30] This policy provides that NBN has the right to audit and review phone and/or data usage accounts. NBN has implemented the necessary reporting tools to identify those users or services that exceed the acceptable use as outlined within this policy. If inappropriate use is identified NBN reserves the right to recover the costs directly from the employee(s). Any violation or breach of this policy may result in disciplinary action including termination of employment.

[31] Employees are advised that all calls originating from mobile voice services are timed voice calls, even voice calls to services in the local area. Voice calls should be kept to a minimum practical length. Cost Centre Owners are required to review any exceptional usage with the respective employee(s) to determine whether business needs justify the usage. The monthly benchmark is call charges >$75. Employees are advised that consideration may be given to the recovery of call charges where blatant misuse is identified.

[32] The policy makes it clear that NBN is responsible for usage charges as required and arising from approved business use only. The benchmark for call charges requiring investigation is >$75 per month.

[33] The policy requires monitoring of usage to ensure non-business related expenses are recovered.

[34] The policy provides for personal use provided it does not breach the law, this policy or other NBN policies and standards; unreasonably interfere with the performance of your job; consume significant time and/or resources, give rise to more than nominal additional costs.

The Acceptable Use Guideline

[35] This policy provides that mobiles are provided to receive and make business calls nationally and internationally, although desk phones are the preferred method for telephoning when possible. Reasonable personal use of mobile calling within Australia is acceptable.

[36] The Applicant accepts that he was aware of the IT Equipment Policy at the relevant time but denies knowing about the Acceptable Use Guideline.

[37] The Applicant gave evidence that he assumed that the cost of calls was capped.¹⁴ It is difficult to see how he could have reached this view given the IT Equipment Policy requires that mobile voice calls be kept to a minimum and that usage over $75 was subject to investigation. The Applicant made international personal calls with some calls lasting up to 1.5 hours.

[38] The Applicant gave evidence that he knew the high cost of international calls.¹⁵ The Applicant gave evidence that in early 2014 he asked his colleagues if they generally received invoices for phone calls but no-one had.¹⁶ He accepted that he did not ask his managers about call costs¹⁷ and he never asked anyone if there was a cap.¹⁸ He accepted that before he started making the calls that it would have been a smart move to have asked about the policy.

[39] It was put to the Applicant that he should have been aware of the Acceptable Use Guideline because it was referenced in the Security and Privacy training that the Applicant undertook on 24 March 2014.¹⁹ An extract of the training package was provided²⁰ and it is headed “Acceptable Use Guideline”. There is no indication in that document that a link to the Acceptable Use Guideline was provided and the content of the training package does not address personal use of mobile phones. The Applicant did not think the training package he undertook referenced that policy.²¹ The Applicant said he had a copy with him of the training package he undertook but it was not tendered in re-examination nor was a copy put to any of NBN’s witnesses. I find therefore that the Applicant was alerted to the existence of the Acceptable Use Guideline in March 2014.

[40] The Applicant submitted that he was unable to find the Acceptable Use Guideline on the intranet. He gave evidence that in 2014 a notice was sent to employees advising them that all policies could be found on the BMS Portal under “policies.”²² It was his evidence that the Acceptable Use Guideline was still not accessible via this portal in March 2015.

[41] Ms Mark gave evidence that if the words “acceptable use” were put into the search engine on the HUB portal the first item that is brought up was Acceptable Use Guideline. Ms Mark gave evidence that the policy could also be accessed if you went to the policies section of the page, clicked on IT usage which then advised that the policy had been superseded and if you then click on it you are taken to the Acceptable Use Guideline.²³

[42] Had the Applicant completed the NBN’s employee affirmation program in 2014 his attention would have been drawn to this policy. However he did not do so and there was no explanation as to why this did not occur. He was not required to undertake the program in 2013 as he had only recently commenced employment.

Findings

[43] I am unable to find that the Applicant was aware of the Acceptable Use Guideline. It is surprising that as part of his induction that this policy was not provided to employees. I accept that there was a reference to the Acceptable Use Guidelines in the induction but there was nothing in the induction that specifically advised employees that they must not use their phones for personal international calls. It is also surprising that when employees are provided with a mobile phone they are not directed to the relevant policy.

[44] However the Applicant’s evidence about his lack of knowledge about the policy is disingenuous as there is no evidence that prior to September 2014 he took any steps to find the Acceptable Use Policy. He assumed he could make an unlimited number of calls without making any inquiries to his managers.

[45] I do not accept that the Applicant had any reason to believe that he was able to make an unlimited number of international phone calls. The Applicant was aware at the relevant time of the IT Equipment Policy. There is nothing in that policy which would lead any employee to believe that they could make unlimited phone calls let alone unlimited international phone calls. Quite the contrary, the policy advises employees that their use will be monitored and if their use exceeds $75 then there would be an investigation.

[46] I also find that prior to using his work provided phone for personal use the Applicant should have made inquiries of his managers. Without express advice that a work provided phone can be used for both personal local use and international calls an employee cannot simply assume that such use is approved. The Applicant was aware of the costs of international calls and he was not entitled to assume that NBN would not incur significant costs as a result of his conduct.

[47] However I do accept the submissions of the Applicant that, had he been alerted to the excessive use earlier, he would have ceased to make the calls. NBN did not comply with its policies. It did have in place a procedure to monitor use over the business. Its international call costs generally average $8000-$12000 per month. It is only when the international phone call costs exceeded this that an investigation was conducted and the Applicant’s excessive use was discovered. That practice was not consistent with the policy set out in the IT Equipment Policy.

[48] I therefore find that the Applicant was aware of and did breach the IT Equipment Policy. The Applicant received a letter of warning for breaching a number of policies and while I have found he was not aware of one of the policies nevertheless NBN were entitled to issue him with a letter of warning for his excessive use of the phone. The Applicant did not thereafter breach the policy.

The Repayment of the Outstanding Monies

[49] The Applicant’s attitude to the repayment of the monies has changed over time. Initially the Applicant agreed to repay the monies and did repay the initial amount identified. I accept the evidence of NBN that when the Applicant was first advised of the excessive use he was aware that there were more calls he had made which had not yet been identified by NBN and that the amount he would owe would be greater than NBN realised.

[50] The Applicant entered into negotiations with NBN about a repayment plan. However on 27 April 2015 the Applicant withdrew his offer to repay the monies. When presented with the show cause letter on 11 June 2015 the Applicant advised that he had no obligation to repay the monies.

[51] At the hearing the Applicant’s representative accepted that the Applicant was liable to repay the monies.²⁴ It was his submission that the Applicant was not in a financial position to repay the monies.²⁵ However the Applicant did not respond to NBN’s invitation in the show cause letter to provide reasons in writing as to why he could not manage the repayment plan or provide an alternative regular repayment plan. The Applicant response was to deny liability. He did not provide any written evidence to NBN to support his claim that he was not able to meet the repayment plan.

Was the termination of employment harsh, unjust or unreasonable?

[52] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[53] NBN relied on both the excessive use of the phone in breach of NBN’s policies and the refusal of the Applicant to agree to a repayment plan to justify the termination of his employment.

[54] I accept that the Applicant was not aware of the Acceptable Use Guideline, he was aware of the IT Equipment Policy. That policy makes any suggestion that it was reasonable for the Applicant to believe that he could make an unlimited number of personal international calls untenable. However NBN did not terminate the Applicant’s employment because he breached the policy. He received a letter of warning and that was appropriate.

[55] NBN submitted that it only gave the Applicant a warning, in circumstances where it was entitled to dismiss him, because he had agreed to repay the monies. However there is no evidence to support a finding that the Applicant had at February 2015 agreed to repay the outstanding monies.²⁶ I am unable to conclude that the reason NBN did not terminate the Applicant’s employment then was because he had agreed to repay the monies.

[56] Mr Murray James, the General Manager Engineering Transit for NBN, made the decision to terminate the Applicant’s employment. When asked why NBN did not simply institute proceedings to recover the outstanding amounts, he said “because we had reached a point where there was a breakdown of trust between NBN and the Applicant, and also that he had breached the policy. And his behaviour and his approach to repayment was becoming less and less cooperative. And at the last meeting on 25 June, the requirement was that we withdraw the formal written warning letter which was not a position which was negotiable for us.”

[57] When asked if he had considered taking action in the local Court he advised that they had not considered it in great detail. Nor had he considered raising a dispute in the Fair Work Commission or seeking an independent mediator.

[58] Clearly by June 2015 there was a dispute between the Applicant and NBN about his liability to repay the outstanding monies. Was NBN then entitled to dismiss him because he would not agree to a repayment plan?

[59] The IT Equipment Policy of which the Applicant was aware provides NBN with the right to recover call charges where blatant misuse is identified. The Applicant was contractually bound to comply with NBN’s policies. I do not consider that the Applicant’s position in refusing to repay the monies was reasonable. So much was acknowledged at the hearing. While I accept that the Applicant advised representatives of NBN that he could not meet the repayment plan initially proposed by NBN by June 2015, NBN were proposing a repayment plan over three years and even then they were prepared to discuss the matter further if the Applicant produced evidence of his incapacity to pay. The Applicant had earlier proposed repaying the monies by February 2016 so it is difficult to see how he could not repay the monies as proposed by NBN. Unfortunately the Applicant did not take up this offer and insisted that the letter of warning be removed.

[60] I do not consider that the mere existence of a debt provides an employer with a valid reason to terminate the employment of an employee. If there is a legitimate basis for the debt to be disputed then requiring the employee to repay the disputed amount on pain of dismissal may be unfair. In those circumstances the parties should avail themselves of other remedies. For example, they could notify a dispute to the Commission, if appropriate, or the party claiming the debt could take legal proceedings to recover that amount.

[61] However I find in this case that there was no reasonable basis for the Applicant to dispute the debt. As such it was unreasonable of him not to enter into an agreement to repay the monies.

[62] The Applicant maintained that as he had raised a grievance with NBN, that grievance should have been resolved before his employment was terminated. I find that NBN had responded to his grievance. The Applicant did not accept the outcome.

[63] The Applicant owed NBN approximately $15,000 and was refusing to repay it. The direction to enter into a repayment plan was a reasonable direction. His failure to comply provided NBN with a valid reason to terminate his employment.

[64] I find that NBN had a valid reason to terminate his employment.

s387(b) whether the Applicant was notified of that reason;

[65] The Applicant was notified of the reason before the decision was made to terminate his employment.

s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[66] The Applicant was given an opportunity to respond and he did respond to the reasons.

s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;

[67] The Applicant had a support person at the show cause meeting and the termination meeting. He was not at any time denied the right to have a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether the Applicant had been warned about that unsatisfactory performance before the dismissal;

[68] The Applicant was not dismissed for unsatisfactory performance.

s387(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;

[69] NBN is a large employer and I have not found fault with the procedures adopted.

s387(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;

[70] NBN has dedicated human resource management specialists so this criterion is neutral.

s387(h) any other matters that the Fair Work Commission considers relevant.

[71] I accept that hadthe Applicant been advised earlier of his excessive use in accordance with the NBN policy he would not have accrued such a significant debt. I do not accept his submission that it was unfair to dismiss him whilst he had an ongoing dispute about his obligation to repay the monies. NBN responded to the Applicant’s complaints and formed the view that his claim, that he was not liable to repay the monies was wrong. His dispute had been responded to. The Applicant did not accept NBN’s position. NBN have attempted to negotiate with the Applicant a resolution to this dispute over a nine month period. It modified its positions significantly. It had initially required the monies be repaid in one year. Its final proposal was a three year repayment plan and even then, had the Applicant provided written advice about his financial hardship and a revised repayment plan, they would have considered it.

[72] Had NBN not responded as it did I may have considered the termination harsh. But NBN acted reasonably while unfortunately the Applicant’s position in relation to this matter hardened. I find therefore that the termination of the Applicant’s employment was not harsh, unjust or unreasonable and his application is dismissed.

DEPUTY PRESIDENT

Appearances:

D. Dwyer for the Applicant.

R. Humphreys for the Respondent.

Hearing details:

2015.

Melbourne:

October 7.

1 Exhibit R5 at RM36

2 Exhibit R3 at AK12

3 Exhibit A1 at [28]

4 Exhibit R5 at RM37

5 Exhibit R6 at MJI

6 Exhibit R5 at RM39

7 Ibid at RM40

8 Ibid at RM41

9 Exhibit R4 at KN1

10 Exhibit R5 at RM42

11 Ibid at RM43

12 Exhibit R4 at KN2

13 Exhibit R5 at RM44

14 Transcript PN 151 and PN 198

15 Ibid PN 191

16 Ibid PN 198

17 Ibid PN 199

18 Ibid PN 200

19 Exhibit R5 at [8]

20 Ibid at RM5

21 Transcript PN 257

22 Exhibit A5

23 Transcript PN 784

24 Transcript PN 38

25 Ibid PN 167

26 Exhibit R5 at [31], Exhibit R6 at [10(f)], Exhibit R3 at [20]

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