[2019] FWC 3

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Bayan Hashemizadeh
v
Royal Automobile Association of South Australia Incorporated T/A RAA
(U2018/7589)

COMMISSIONER HAMPTON

ADELAIDE, 9 JANUARY 2019

Application for an unfair dismissal remedy – selling of insurance – alleged misleading and deceptive conduct adopted to make sales – flexible work request made – whether reason for dismissal – conduct issues found to be the reason – whether valid reason for dismissal –conduct allegations substantially demonstrated – misconduct – valid reason found – whether dismissal harsh – whether procedural fairness afforded – balance of considerations but not harsh – opportunity given to respond to allegations and acknowledge conduct – no genuine recognition at time of dismissal – on balance dismissal not harsh, unjust or unreasonable – application dismissed.

1. Introduction and case outline

[1] Mr Bayan (Brian) Hashemizadeh has made an application under s.394 of Fair Work Act 2009 (the FW Act) for a remedy in connection with an alleged unfair dismissal by his former employer, the Royal Automobile Association of South Australia Incorporated T/A RAA (the RAA). The application was lodged with the Commission on 23 July 2018.

[2] The RAA is a large South Australian based motoring organisation which, amongst many other services, sells different types of insurance (including house and contents, motor vehicle, boat, motorcycle), largely to its members or potential members. The RAA operates in an industry that has been included in the recent Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Royal Commission). The circumstances and outcomes of that inquiry have no doubt made institutions like the RAA more alert to the nature of the alleged conduct considered in this matter. Whether its response in the present case is warranted and fair within the scope of the statutory considerations ultimately forms the basis of this decision.

[3] Mr Hashemizadeh commenced employment with the RAA on 3 July 2017 as a Retail Sales Consultant working on a full-time basis at the RAA Call Centre in Mile End. His role focused on dealing with inbound telephone insurance enquiries and making sales of various insurance products. Mr Hashemizadeh was also responsible for handling member service requirements such as updating policy payment methods, address details and directing members to other areas of the RAA. He remained in this position until his dismissal on 12 July 2018.

[4] The reasons given for his dismissal were confirmed in correspondence dated 13 July 2018 and this outlined that he had breached the Insurance Code of Practice, his Authorised Representative Agreement and, in turn, his employment contract and the requirements of his position description. The conduct subject to the allegations involved Mr Hashemizadeh allegedly issuing policies against client’s wishes and/or using deceptive language when issuing the policies. In essence, the allegations relied upon by the RAA involve issuing insurance policies to clients in the form of invoices when a client had only sought to receive a quote for insurance, and as part of this course of conduct (and as an issue in its own right), also describing what was, in effect, a 21 day cooling off period, as being “free cover” or a “free look”, which was not correct. I also note that in some of its evidence, the RAA used the terms “free insurance” and “free cover” interchangeably although the former term was not used by Mr Hashemizadeh.

[5] Mr Hashemizadeh was represented, with permission, by Mr Nippress of Collaborative Employment Solutions and contends that his dismissal was unfair. In support of this proposition he submits that:

• It was unreasonable to dismiss him for “serious and wilful misconduct” in circumstances where the conduct, even if found to be serious, was neither wilful nor deliberate, in that:

• He had not previously been warned in relation to the specific conduct;

• He was an otherwise good Salesperson and would listen and take on advice from his Managers;

• If the allegations had been put to him in a more fulsome way then he may have been able to provide a response;

• The culture of the Sales team within RAA supported an environment where sales were encouraged and expected and that this created pressure to perform;

• There is a difference between the phrase “free cover” and “free insurance” and that he never used the phrase “free insurance” but rather only referred to 21 day “free cover” or a “free look”;

• The use of these terms and the sales approach was consistent with his training and encouraged by his immediate Manager;

• If the phrase “free cover” caused any confusion amongst RAA customers then this would have been alleviated once the customer received the formal paperwork from the RAA; and

• There was no financial risk to the customers who were signed up to the policies, as if the person chose not to proceed following the 21 day period they would ultimately not be required to make a payment and the RAA would cancel the policy.

• The dismissal was unjust as a result of the bias held by the Managers conducting the investigation because:

• A request made by Mr Hashemizadeh for flexible working arrangements (to work part-time due to a physical condition) influenced the investigation as the denial of that request led to an exchange, where it is alleged by the employer that offensive language was used by the applicant, and awareness of this alleged exchange created a bias in the minds of the employer representatives who undertook the investigation;

• The dismissal was unjust as the (above) earlier exchange was not put to the applicant and he was given no opportunity to deny the allegations or to provide a response to the concerns; and

• The request for the flexible working arrangements, the associated condition and the alleged (disputed) exchange led the RAA to take the allegations more seriously than they otherwise deserved.

• In the event that the Commission finds the dismissal was not unjust or unreasonable – it should find that it was harsh given the circumstances of the applicant, including:

• Mr Hashemizadeh’s medical condition and associated medication was relevant and not taken into account when the RAA made its decision to terminate his employment;

• Mr Hashemizadeh’s behaviour should have been considered as a performance issue rather than a conduct issue from which he (his employment) could not recover;

• During the final meeting with his employer, Mr Hashemizadeh and/or his support person stated that he was going through a difficult/stressful time (his family friend had passed away, a family pet had also died and he was shortly getting married) and this was not taken into account as a mitigating factor for his behaviour; and

• There were options available to the employer other than dismissal.

[6] In addition, Mr Hashemizadeh contends that he is unlikely to obtain other employment due to the “label” of having been dismissed for serious and wilful misconduct. Further, he has made attempts to reduce his losses by seeking alternate employment but that he has not been successful to date.

[7] Mr Hashemizadeh is not seeking reinstatement to his former position but rather seeks payment of the maximum “26 weeks” compensation available under the FW Act.

[8] The RAA was represented with permission by Mr Short and Ms Harvey of Minter Ellison, and opposes any remedy sought on the basis that there was a valid reason for the dismissal and it was not harsh, unjust or unreasonable. In support of this position it submits that:

• Mr Hashemizadeh had a distorted perspective of the events leading to his dismissal as he considered that the investigation was prompted by his request for flexible working arrangements – which was not a factor in the events leading to the investigation or in the dismissal itself;

• During the investigation meeting, Mr Hashemizadeh was disinterested, on his phone and was acting in a passive aggressive manner. This was likely to be the result of his view, which was not correct and not supported by any objective basis, that the decision had already been determined and was prompted by his request for flexible working arrangements;

• The investigation was promoted by the discovery of inappropriate conduct by Mr Hashemizadeh in the sale of some insurance which came to light as a result of the review of the coverage of that insurance policy and the information provided by the applicant, which in turn, was prompted by a customer complaint;

• The fact that Mr Hashemizadeh did not engage with or respond appropriately to the allegations at the investigation meeting is the responsibility of the applicant and the RAA provided a reasonable opportunity for him to do so;

• Mr Hashemizadeh did not accept any responsibility for his conduct or recognise the significance of his behaviour;

• The phrase “free look” or “free cover” is not something that an RAA salesperson is trained to use when speaking with customers and was misleading as there is no such thing as free insurance;

• Mr Hashemizadeh provided insurance policies to customers that had expressly sought quotes and, on occasion, this occurred in such a manner as to hide that insurance policies with invoices were actually being issued. This conduct also led to additional commissions being paid to Mr Hashemizadeh when there was no intention for the customers to purchase insurance;

• The misleading conduct of Mr Hashemizadeh also placed the reputation of the RAA at reputational risk – something the respondent was particularly sensitive to given the recent Royal Commission;

• The RAA requires employees to comply with its procedures and policies and the applicant’s conduct breached the Code of Conduct and did not accord with his training;

• The applicant’s medical condition was taken into account in addition to other mitigating factors;

• The previous exchange involving the use of offensive language was not taken into account and was not relevant to the decision; and

• There was nothing about the process or reasoning of the RAA in its decision to terminate the applicant’s employment that calls for the intervention of the Commission.

[9] In addition, the RAA submits that the applicant’s employment was not lengthy and he has already been given two weeks’ pay in lieu of notice. In these circumstances the respondent submits that no compensation should be ordered and the application itself should be dismissed.

[10] There is no dispute that the application was made within the time required by s.394(2) of the FW Act, or that Mr Hashemizadeh was a person protected from unfair dismissal.¹ Further, the Small Business Fair Dismissal Code is not relevant to the RAA² and this was not a case of genuine redundancy.³

[11] Accordingly, the Commission must determine whether the dismissal was harsh, unjust or unreasonable within the meaning of the FW Act. If so, the relevant remedy provisions must be applied.

[12] The application was heard on 27 and 28 November 2018.⁴

2. The evidence

[13] Mr Hashemizadeh provided a witness statement with attachments⁵ and gave sworn evidence as part of the hearing of this matter. He also relied upon a witness statement 6 and oral evidence of Ms Helen Hibeljic who assisted him in the disciplinary process. In addition, the applicant tendered some email correspondence.7

[14] The RAA provided witness statements from the following of its staff, with the exception of Mr Goodwin, and led sworn evidence from all but two of the witnesses:

• Mr Jared Curtis, Manager of the RAA Retail Contact Centre at Mile End;⁸

• Mr Mark Andrew, Sales Team Manager;⁹

• Mr Benjamin Lynch, Health and Return to Work Consultant;¹⁰

• Mr Matthew Selth, Senior Manager Retail Sales; 11

• Ms Jackie Wallace, People and Capability Consultant; 12

• Mr Anthony Maddox, Retail Trainer; 13

• Mr Antonios Koklas, Senior Retail Training Consultant; 14 and

• Mr Jarrod Goodwin, Sales Team Manager. 15

[15] The RAA also tendered a number of documents, most of which were included in a separate comprehensive book of documents. 16 In addition, the RAA provided an extract from the General Retail Award 201017 (concerning the dispute resolution procedure which was referenced by Ms Hibeljic during the investigation process) and a document described as a ‘termination decision summary’18, which was, in effect, the recommendation leading to the dismissal.

[16] It was contended by Mr Hashemizadeh that the Commission (and the RAA) should have regard to his linguistic heritage and medical condition when assessing his evidence. Whilst born in Australia, Mr Hashemizadeh was raised in a non-English speaking background home. He was educated in the mainstream Australian education system and did not request or need an interpreter in the proceedings. Mr Hashemizadeh indicated that the side effects of his medication were that it could cause loss of concentration, lethargy, tiredness and blurred vision. 19

[17] I was alert to the potential implications of these matters and have taken them into account in my assessment of his evidence. I found that Mr Hashemizadeh had a good comprehension of English and this included rephrasing responses and clarifying questions in cross-examination and taking considerable care in the wording of his evidence. I also did not observe any loss of concentration, misunderstanding of questions, or discomfort in the witness box. Whilst his evidence is not without substance, I also found that Mr Hashemizadeh was not convincing on certain important matters and when concessions were made, these were generally given on a conditional basis. However, Mr Hashemizadeh’s medical condition and the challenges associated with the nuance of the English language are relevant factors that I have considered in assessing all of the evidence and in determining this matter.

[18] Ms Hibeljic is an educated, articulate and intelligent person who no doubt considers that Mr Hashemizadeh was unfairly treated by the RAA. It is evident to me that this impacted both upon her role as a support person assisting Mr Hashemizadeh in the investigation interview and in her evidence before the Commission. This included not making concessions about events that were unfavourable to the applicant, even where Mr Hashemizadeh did so. Examples of this included that Mr Hashemizadeh expressed his view to her prior to the investigation meeting that he considered that he was going to be dismissed and concessions that Mr Hashemizadeh made about his body language and conduct in that meeting. This does not mean that Ms Hibeljic was not an honest witness; however, these factors lead me to treat her evidence with some caution.

[19] I generally accept Ms Wallace’s evidence although I consider that her recollection of some aspects of the investigation interview, and her response to the language allegedly used by Mr Hashemizadeh in an earlier exchange with Mr Andrew, to have been influenced by her negative view of the applicant’s conduct. This part of her evidence was not entirely convincing and I prefer the evidence of others on those matters.

[20] I found that the evidence of Mr Curtis, Mr Goodwin and Mr Selth to be objective, measured and convincing. I prefer their evidence where its conflicts with the evidence of Mr Hashemizadeh as to the facts.

[21] Mr Andrew was also an impressive witness and I accept his evidence.

[22] Mr Lynch gave the appearance of being a nervous witness who was somewhat defensive about the challenge made about his approach to the applicant’s flexible work request. In particular, his views about the implications of the medical evidence that was provided in the latter stage of consideration of the applicant’s request were unconvincing. Ultimately, the events leading to Mr Hashemizadeh’s dismissal overtook that issue.

[23] The evidence of Mr Koklas and Mr Maddox, who provided statements about the training provided to Mr Hashemizadeh and others at the RAA call centre and the obligations upon the RAA and its staff in selling insurance, was admitted without challenge. I observe that this has left some significant and directly relevant evidence, adverse to the applicant’s contention that he was only doing what he was trained and/or told to do, largely unchallenged.

3. The general chronology of events

[24] I will shortly deal with some of the key disputed elements of this matter; however, an overview of the timeline of some of the events referred to in later discussion assists to put these into context.

• 3 July 2017 – Mr Hashemizadeh commences employment.

• 3 October 2017 – a performance issue is informally raised with Mr Hashemizadeh by Mr Maddox by email in relation to some lost opportunities on calls.

• 16 February 2018 – an email exchange occurs between Mr Hashemizadeh and Mr Goodwin about the nature and operation of “21 day” (insurance) policies following an earlier discussion.

• April 2018 – Mr Hashemizadeh’s medical condition first became known to Mr Andrew who asked him if there was anything RAA could do to assist. The applicant indicated to the effect that no action was necessary. I note that Mr Goodwin was aware of the fact that Mr Hashemizadeh had a medical condition from sometime earlier in 2018.

• Mid-May 2018 – Mr Hashemizadeh advised Mr Andrew that his condition was worsening and he was experiencing joint pain and swelling. He mentioned to Mr Andrew that he might seek to work less hours.

• 6 June 2018 – an email was sent from the RAA claims department raising an issue with a policy (the insurance complaint) – the RAA Product & Underwriting team responded to the Claims department and advised that they have requested to listen to the business call (dealt with by Mr Hashemizadeh) – the Claims department follow up the request on 25 June 2018.

• Early to mid-June 2018 – Mr Hashemizadeh met with Mr Lynch and Mr Andrew to discuss the applicant’s medical condition and request for flexible work arrangements. Mr Lynch said he would speak with Mr Hashemizadeh’s medical advisors.

• 13 June 2018 – an authority to exchange medical information was signed by the applicant and sent to Mr Andrew along with an undated letter from Dr Kokum Dissanayake, the applicant’s Medical Specialist, “to whom it may concern” – setting out that “… his symptoms are exacerbated by prolonged sitting/standing and we would support any work modifications you may be able to offer to improve his work life balance that would allow more activity and incidental exercise...”.

• 14 June 2018 – a copy of the medical authority and undated letter was provided to Mr Lynch from Mr Andrew.

• 25 June 2018 – Mr Lynch spoke with Mr Andrew and told him that he had spoken with the Mr Hashemizadeh’s medical specialist and reported that there was no confirmation of a medical need for the applicant to work part-time hours.

• 25 June 2018 (or 26 June according to the applicant) – Mr Andrew speaks to Mr Hashemizadeh about his flexible work request, provides the applicant with a form to make a formal application and in effect, indicates that his request is not likely to be successful, given the staffing needs of the call centre and the fact that Mr Hashemizadeh’s specialist did not confirm a set number of (reduced) hours should be worked. Mr Hashemizadeh is also informed that Mr Lynch had suggested bringing in a set of weights or joining the gym and the applicant questioned whether this was based upon medical advice. Mr Hashemizadeh reacts strongly to the indication that his request may be rejected – I will return to the implications of this discussion shortly.

• 25 June 2018 – request for Flexible Working Arrangements signed by Mr Hashemizadeh (Flexible working arrangements request).

• 25 June 2018 – Employee Management System (EMS) File created by Mr Andrew which included as follows:

“After speaking with Brian regarding his medical condition in early June, he requested to work part time.

We turned down the request but asked if he can get a specialist to confirm he can only work for certain hours and we may look at a flexible workplace agreement.

Ben Lynch spoke with his specialist to confirm if there was a medical reason for Brian to work part time and none was given.

For this reason we are unable to put him on reduced hours.

On the 25/06/2018 I have given Brian a flexible workplace agreement form to fill in for us to consider but informed Brian of the decision to keep in (sic) on full time.

I told him I would schedule in a meeting with Steph from HR and we will see what we can put in place to assist him right now, extra breaks, longer lunch etc.

Brian did not take the news well and said “if RAA want to be c##t’s then I can be a c##t too” and its not fair some people are part time for no reason and he cant go part time for a medical reason.

He said he is trained in HR and knows we cant get rid of him with out being 150% above board and he will just continue to get medical certificates for the next 6 months until he leaves, knowing this will effect the teams sales.”

• 26 June 2018 – Mr Hashemizadeh sends an email to Mr Lynch copying in Mr Andrew summarising what he understands to have been RAA’s response and advice to him in relation to his flexible working arrangements request, as follows:

“… …

- Mark has asked me to fill out a request for flexible working hours form yesterday to suggest appropriate hours that will cater to my medical condition

- I wrote that I undergo chronic pain commonly caused by prolonged sitting (stationary) or standing (stationary) after generally 3 days of working an 8 hour day

- Mark mentioned that you have called my specialist who has confirmed my condition but could not recommend an accurate amount of working hours suitable to improve my inflammatory condition, as autoimmune illnesses are hard to predict or control as they are autoimmune

- Mark says your medical suggestion would be to bring weights to work and use them, wasn't too sure about the impact/effect of this? happy to hear more about this in regards to the relativity of counteracting the reoccurring joint pains, and possible evidence to show it will cure the pain caused by the arthritis.

- Mark also has advised that RAA don't want to give anyone part time due to restrictions of space and so on and that a medical condition isn't sufficient enough grounds to be granted any adjustment on working hours, and also that my request for flexible working hours may be delayed for over a month and the answer may still be a decline, for reasons I'm sure will be disclosed at the appropriate time

- I've also been advised that I need to work extra hard to maintain my targets considering I will be playing catch up with the absentee days caused by my condition that don't allow me to attend work on days that flare ups are severely painful.

… …”

• 26 June 2018 – Mr Lynch responds to Mr Hashemizadeh and says, amongst other things, that he was not at the meeting so cannot speak to the information presented.

• 26 June 2018 – Mr Hashemizadeh sends further correspondence about the meeting to Mr Lynch, again copying in Mr Andrew and Ms Abbatista from Human Resources.

• 27 June 2018 – the original email chain in relation to the insurance complaint is forwarded to Mr Selth.

• 27 June 2018 1:33 pm –1:49 pm – Mr Andrew emails Mr Hashemizadeh about his “RCC time” (time between calls) – being one of the highest – and Mr Hashemizadeh responded that he understood the issue but that other factors should also be considered and gave his (high) sales conversions performance as one of a number of examples.

• 27 June 2018 4:32 pm – Mr Selth forwards the email in relation to the insurance complaint to Mr Curtis and requests that he listen to the call and “fill me in on what happened”.

• 28 June 2018 – Mr Curtis responds to Mr Selth and identifies an issue relating to the questions not being filled in correctly on the form based on the customer’s response. Mr Curtis also advised that, “… I have however discovered an issue with the way he (Mr Hashemizadeh) sold the policy which I will take more formal action on…”.

• 28 June 2018 – EMS File created by Mr Andrew – raises issue about framing questions so that customer thought the insurance policy was only a quote – cites the examples of calls on 1 May 2018, 23 May 2018, 24 May 2018 and 2 July 2018.

• 28 June 2018 – Mr Curtis reviewed the EMS file submitted by Mr Andrew and listened to each of the reviewed telephone calls. Mr Curtis contacted Ms Wallace and Ms Kym Waters from the HR Department. The decision was made to suspend Mr Hashemizadeh due to the concerns over those telephone calls and to conduct a further investigation into the conduct.

• 2 July 2018 – Mr Hashemizadeh met with Mr Curtis and Ms Wallace where he was handed a suspension letter. A prepared written statement was read out by Mr Curtis advising the applicant, amongst other things, that he would be suspended on pay until further notice. He was also advised that RAA was investigating the matter and that he would be given the details to allow him to respond to the allegations.

• 5 July 2018 – Letter of allegations sent to Mr Hashemizadeh – requesting that he attend a meeting with a support person (if he wished to have a support person) on 10 July 2018.

• 6 July 2018 – Medical certificate dated 6 July 2018 from Dr Benito Facundo, the applicant’s general practitioner, supplied to the RAA advising in relation to Mr Hashemizadeh that, “…in my medical opinion, he needs to reduce the number of hours working – possibly 25 hours per week – to reduce prolong sitting and standing which exacerbate his condition.”

• 10 July 2018 – interview meeting attended by Ms Wallace and Mr Curtis from the RAA and Mr Hashemizadeh and Ms Hibeljic – the investigation meeting.

• 10 July 2018 – email sent to Mr Hashemizadeh by Mr Curtis with a summary of the investigation meeting.

• 10 July 2018 – Ms Wallace and Mr Curtis meet with Mr Selth after the disciplinary meeting to discuss the outcome of the disciplinary process involving the applicant. It was agreed that they would take some time to consider the matter further.

• 12 July 2018 – email from Mr Hashemizadeh to Mr Curtis attaching “various adjustments” to the record of the investigation meeting notes.

• 12 July 2018 – Letter from Dr Dissanayake to the RAA indicating “… we would support work place modifications that allow increased activity throughout the day, and if this is not feasible, a reduction in work hours whilst we investigate and optimising his treatment…”.

• On or around 12 July 2018 – Decision taken by Mr Selth to dismiss Mr Hashemizadeh made on recommendation provided by Ms Wallace and Mr Curtis.

• 13 July 2018 – Mr Hashemizadeh is dismissed.

4. Findings on key factual and other issues

[25] I will shortly deal with the various statutory considerations that must be applied to this matter. However, there are a number of key factual disputes and related context and it is convenient for me to outline my findings on these before doing so.

4.1 The applicant’s general sales performance

[26] Mr Hashemizadeh, and other retail sales consultants, had key performance targets including relating to the selling of insurance policies. Sales recorded in the system at the time counted towards the selling targets and this was not adjusted where the customer subsequently cooled off and/or did not ultimately make any payments. Mr Hashemizadeh’s sales performance fluctuated over the time of his employment and included periods of relatively high performance that were acknowledged by Mr Goodwin at the time. Mr Hashemizadeh’s sales performance appeared to decline during certain stages of 2018.

4.2 The flexible working arrangements request and its role in the dismissal

[27] Mr Hashemizadeh originally made an informal approach to his management about his medical condition and a request for some flexibility (a reduction) in working hours. In April 2018, Mr Hashemizadeh advised the RAA that he had a medical condition although the details of that condition were not discussed. In mid-May 2018, Mr Hashemizadeh advised that his condition was getting worse and Mr Andrew was informed that the condition involved joint pain and swelling and that he wanted to work less hours.

[28] The evidence reveals that Mr Hashemizadeh suffers from an inflammatory autoimmune disorder (psoriatic arthritis) that leads to joint pain and swelling. Mr Hashemizadeh has been on medication (sulfasalazine) for some time and he reports that this creates lethargy and blurred vision at times. The dosage of this mediation was increased in or about June 2018.

[29] It is evident to me that the RAA had a strong preference for Mr Hashemizadeh to remain in full-time employment given the workload and other constraints within the call centre. This did not mean that a reduction in hours would not be considered; however, some express medical justification was required. The initial medical advice was more general in nature (work-life balance) and at the time of the initial rejection of the informal request (an indication that it may not be successful), there was no express medical support for a reduction in working hours. In the immediate lead up to the dismissal, some additional medical information was provided which objectively added some support for the flexible working arrangements request. However, ultimately this was not considered or acted upon as the disciplinary process was well advanced by that time.

[30] A consideration of the timeline of events and the above discussion reveals that the allegations about Mr Hashemizadeh’s conduct arose in the context of consideration of his flexible working arrangements request. Mr Hashemizadeh’s view at the time, and in his initial evidence to the Commission, was that the request, and the underlying medical condition, was the reason that the allegations were even raised and the dismissal determined. Indeed, it is evident to me that Mr Hashemizadeh immediately believed that he would be dismissed on the same confected ground and this belief dominated his approach to the events that followed.

[31] However, the objective evidence is that the allegations arose from a completely unrelated process and when Mr Hashemizadeh’s approach to providing some of the insurance invoices was discovered and investigated via the assessment of the insurance complaint, it was entirely reasonable for the RAA to deal with the issues about the applicant’s sales approach.

[32] There is also little or no objective evidence to support Mr Hashemizadeh’s concerns that the RAA would treat him poorly as he had assumed. Further, there is no circumstantial or direct evidence that a dismissal for matters associated with his medical condition or flexible working arrangements request was likely or even contemplated by his employer. Indeed, that proposition was convincingly rejected by RAA witnesses and I have accepted that evidence consistent with my findings on credit. The circumstantial context also includes the fact that Mr Hashemizadeh’s immediate manager was supportive of making accommodations for his health concerns and management more generally were not looking to take disciplinary or other actions against the applicant for other reasons, despite an opportunity to do so. 20

[33] It is the case that arising from a discussion with Mr Andrew, Mr Hashemizadeh understood that his request may not be successful. Further, Mr Andrew created a record in the EMS of an alleged conversation that took place on or about 25 June 2018 stating, amongst other things, that:

“… …

… … ”.

[34] This account is disputed by Mr Hashemizadeh and the RAA contends that whilst it is true, any views about that conduct did not influence the dismissal decision.

[35] Having considered all of the evidence, I find on balance that this exchange did take place, largely in the terms set out in the EMS record. I also find that the RAA management were aware of this exchange through access to the EMS record, determined not to take any action as it was considered to be a heat of the moment response, and that the exchange was not the reason for the dismissal. However, the recommendation made for the dismissal was influenced to a limited degree by the fact that management considered that this exchange had occurred. This event as described in the EMS record was not put to Mr Hashemizadeh at any stage and raises some procedural fairness issues that I will return to.

[36] However, I find that the flexible working arrangements request, and the associated medical condition, was not the reason for the dismissal and neither played any meaningful role in that decision. Despite the coincidence of timing, the objective facts and the evidence of the relevant RAA witnesses about this were convincing and consistent on that point.

4.3 The reasons for the dismissal relied upon by the RAA at the time of termination

[37] The dismissal letter provided to Mr Hashemizadeh stated as follows:

“Allegation 1

It is alleged you have breached RM policy when you spoke with members on the 1st, 23rd and 24th of May 2018 and most recently the 2nd of July 2018.

On these occasions you misrepresented the terms of the insurance you issued and in some cases went directly against the customers direction of only wanting a quote sent out and actually issued a policy calling it an invoice with 21 days free.

One customer (R.B, member XXXXX ) on the 1st of May interjected when you were reading a compliance script to advise you he clearly only wanted a quote sent to him. You replied back that it's just an invoice and you were not actually starting the policy or paying for it.

You advised another customer (V.C, member XXXXX X) on the 23rd of May 2018 that their free cover starts on the 20th of June and she has until the 20th of June to make any changes or if you're happy give us a call. The member interjected and asked "So nothing is going to happen unless I ring to say I want to go ahead, is that right?" You told the customer "That's right, so these are all invoices, so it's like an invoice and you've got the option to pay it or not. We don't have any contract in place because you haven't' paid for it and we'll still cover you for 21 days for free even without payment and you've got 21 days to accept or cancel the policy and that's from the 20th of June anyway so were talking another month when the 21 day free period starts."

On the 24th of May, on multiple occasions you advise the customer (P.L, member XXXXX X) they have 21 days free cover.

On the 2nd of July the customer (J.N, member XXXXX X) you dealt with asked "is that a quote I got right? And a/so asked what happens if he wanted to go ahead. You advised him you could send an invoice with 21 days free cover. You also advise it's free for 21 days and is a live policy that comes out in an invoice. Shortly after the customer says" I'll be honest with you, I was going to get a quote somewhere else". You start to speak and the customer interjects saying "yeah yeah, I understand that already, I just want to get a quote to see if you guys are on the ball, you know what I mean? You reply "Yeah absolutely, well this invoice is 21 days free cover so you got 21 days to quote around and decide but at least it will give you the lifetime (vehicle replacement) if you do decide to go ahead.

Through these interactions you have breached Insurance Code of Practice and your Authorised Representative Agreement, in turn breaching your RAA Employment Contract and the requirements in the Position Description.

Not only have you issued policies against customers wishes and/or using deceptive language when issuing policies, you are claiming you are giving customers 21 days free insurance cover. RAA insurance does not have any free period it has a 21 day money back guarantee a/so known as a 21 cooling off period. This period is not free and the customer pays for it but can get a full refund.

This behaviour appears to be a deliberate attempt to manipulate the achievement of your sales targets and in turn profit directly off RAA by receiving financial payments from the Rewards Program which are made for above target achievement.

This is in breach of our Code of Conduct, in particular clauses:

4.1.2 Adherence to standards of behaviour that uphold the organisation's values and the integrity, economic viability and good reputation of RAA.

4.1.3 Compliance with RAA Policies, Procedures, this Code of Conduct, and any contractual obligations.

4.1.4 Compliance with legislative requirements in the performance of all duties including privacy, Work Health and Safety, Equal Employment Opportunity, Anti Discrimination and any other relevant legislation.

4.1.7 Compliance with any lawful and reasonable direction from RAA management.

4.1.8 Behaving honestly, with integrity, care and diligence in the course of employment.

The above allegation is substantiated and relevant to our decision to terminate.

When completing your final pay, which will include 2 weeks payment in lieu of notice and any outstanding entitlements, … …” 21

[38] It follows from my findings above, and my view of the evidence more generally, that the reasons for the dismissal relied upon by the RAA are those stated in that correspondence.

[39] For reasons that will become clear, it is for the Commission itself to determine whether the conduct occurred and if so, whether it forms a valid reason for the dismissal.

4.4 The obligations on the RAA and Mr Hashemizadeh associated with the selling of insurance

[40] I will shortly deal with the detail of the obligations and training associated with the 21 day cooling off period. It is appropriate to initially deal with the general obligations and training provided to Mr Hashemizadeh.

[41] The RAA holds an Australian Financial Services Licence which authorises it to sell insurance policies. A retail sales consultant such as Mr Hashemizadeh must be appointed by the RAA as a sub-authorised representative in order to sell insurance policies. 22 The sub-authorised representative appointment reinforces the obligations to do all things necessary to ensure that the financial services are provided honestly and fairly.23

[42] Mr Hashemizadeh’s written employment contract included the following:

• Mr Hashemizadeh was required to comply with RAA policies and procedures and that a failure to do so could result in disciplinary action including up to termination of employment;

• The location where Mr Hashemizadeh could access copies of the policies (being on RAA's intranet, iConnect); and

• Mr Hashemizadeh was required to familiarise himself with those policies within 4 weeks of his employment. 24

[43] The RAA’s code of conduct 25 requires employees to:

• Adhere to standards of behaviour that uphold the integrity and good reputation of the RAA;

• Comply with any lawful and reasonable direction from RAA management;

• Comply with legislative requirements in performing their duties; and

• Behave honestly, with integrity, care and diligence in their employment.

[44] Mr Hashemizadeh participated in a comprehensive induction training program upon commencement of employment, which ran for four weeks, and included training about the laws which govern the insurance industry and the general insurance code of practice issued by the Board of the Insurance Council of Australia (COP). 26 The induction training also included:

• The history, values and vision of the RAA;

• RAA policies and procedures, including its Code of Conduct;

• Laws which govern the insurance industry and how to comply with them;

• The COP;

• The types of insurance policies which the RAA offers, and details about the associated product disclosure statements;

• The RAA sales system including how to respond to initial enquiries and strategies for dealing with customers (such as how to build rapport, how to ask for a sale, and how to close a sale);

• Effective listening and communication skills;

• The electronic platform that Retail Sales Consultants need to use in order to prepare quotes and convert them to insurance policies ("Landscape");

• Payment methods for insurance policies;

• The process to cancel a policy in Landscape, including if this occurs within a 21 day cooling period available on all RAA insurance policies; and

• Dispute resolution and the role of the Financial Ombudsman.

4.5 The training and instruction provided to Mr Hashemizadeh relevant to the proper use of the 21 day cooling off period

[45] The following training and instructions, provided to employees including Mr Hashemizadeh, is largely drawn from the evidence of Mr Maddox 27 and Mr Koklas28 and informs my assessment of the approach required of the applicant by the RAA.

Product disclosure statements for insurance policies

[46] During the induction training, Retail Sales Consultants are taken through each of the product disclosure statements for each insurance policy which the RAA offers.

[47] The RAA offers a 21 day cooling off period for each of its insurance policies and this information is set out in its product disclosure statements for insurance policies and within an automated recording which is played to a customer over the telephone at the time they purchase an insurance policy. An example of the information about the 21 day cooling offer period is as follows:

“… …

21 day money back guarantee

Should you not be happy with the cover you have chosen, we offer you a cooling-off period of 21 days. This means you can cancel your insurance policy within the first 21 days of the policy by notifying us in writing and requesting cancellation. If you have not made a claim within this time, we will give you a full refund of any premium you have paid.

… …” 29

[48] A Certificate of Insurance is issued on a sale, including where an invoice is sent following the telephone call. This means that each customer has entered into a binding insurance contract at that point, even though they had not yet paid for it.

[49] If a customer makes a claim during the 21 day cooling off period, their insurance policy will be valid. They will be required to pay the applicable premium for the insurance policy.

[50] If a customer cancels their insurance policy after the cooling off period, they will be responsible for paying their premiums for the period that they have held the insurance (including the 21 day cooling off period). However, it has been the practice of the RAA, where a customer does not subsequently pay the invoice or respond to follow up contact and does not make a claim, to cancel the policy and not actively pursue the debt.

Conversion from quotes to insurance policies

[51] During the induction training program Retail Sales Consultants are taught how to prepare a quote and to ask to convert it into an insurance policy. This involves training about the sales process, and also the electronic system which the Retails Sales Consultants will use to input information into (“Landscape”).

[52] Training the Retails Sales Consultants about how to make a sale involves teaching them how to do a quote for a customer and then also (as part of the “sales non-negotiables”) actually asking for the sale. This involves various techniques including explaining the monthly or annual insurance premium and expressly requesting the customer to indicate whether they would like to buy or start the insurance.

[53] If the customer agrees to purchase the insurance the customer is invited to consider arranging monthly direct debits, as this is the businesses preference for the customer's convenience at renewal, and for policy retention. If they do not choose this option, if the second option of making payment in full is not desirable or if a customer wishes to think about the insurance policy more, then the consultant can offer an “invoice”. In this case, the Retail Sales Consultants are trained to emphasise that the customer is covered for insurance (because they are receiving a live insurance policy), but that they have 21 days to decide to either to pay the invoice in full, provide monthly direct debit details or to ring the RAA to cancel the policy.

[54] Where an invoice is provided the payment is deferred but the customer must pay within the first 21 days of the insurance policy in order to maintain the insurance cover.

[55] Before a Retail Sales Consultant may convert a quote to an insurance policy, they must:

• Play the customer an automated recording which (amongst other things) states that the RAA will issue a product disclosure statement and the customer's certificate of insurance, and that the customer has a 21 day cooling off period to cancel the policy in if they feel the product does not meet their needs; and

• Read out a "compliance script" to the customer which describes the insurance which the customer has bought and seeks confirmation from the customer that they have not withheld any information that might influence the RAA's assessment of the risk, premium or terms of the insurance.

[56] Where a sale is made, the final step of the sales process is to always thank the customer and to let them know that their Certificate of Insurance will be emailed or posted.

[57] Retails Sales Consultants are made aware that once a quote has been converted to an insurance policy, an email or letter by post is automatically triggered to be sent using the data in the system to the customer providing the customer their Certificate of Insurance and associated product disclosure statement(s).

[58] The Retail Sales Consultants are trained about how to overcome “objections” if a customer only wants a quote and not an insurance policy during a telephone call. In doing so, the primary focus is to make sure any such conversation occurs in a transparent and ethical way. This includes asking questions and clarifying the cost and benefits of the policy.

[59] The Retail Sales Consultants are not to provide “invoices” as a way of securing a sale (when a policy was not actually sold) or as a means of overcoming an objection from a customer to taking out an RAA insurance policy. I find that Mr Hashemizadeh was not trained or encouraged to overcome objections from a customer in that way.

Cancelling a policy

[60] Induction training also includes how a Retails Sales Consultant should record in the system that an insurance policy has been cancelled.

[61] The system includes a range of different internal codes which describe the reason for the cancellation of an insurance policy. These include "Declined Risk”, “Dishonoured Payment”, “Fraudulent Claim”, “Free Look”, “Insured Elsewhere” and “Insured's Request”. The internal code “Free Look” is a term that is used only in Landscape. It is only used during a cancellation process and for internal recording purposes.

[62] The Retail Sales Consultants are not trained during induction programs or other training to use the term “Free Look” as a way of encouraging a customer to take up an insurance policy. Mr Hashemizadeh was not trained to use that term, or to use terminology with customers of being covered for “free”, or being provided with an “invoice”, but “not actually starting the policy” as a way to describe the 21 day cooling off period that is available under all RAA insurance policies.

[63] During Mr Hashemizadeh’s induction program he completed an online e-learning module and assessment titled “what is insurance?” and this module included information specifying (amongst other things) that insurance companies must act in good faith when a policy is created and a certificate of insurance and product disclosure statement provided to a customer at the time of a sale is a contract of insurance. 30

The February 2018 discussion with Mr Goodwin

[64] In February 2018, a meeting followed by an email exchange between Mr Hashemizadeh and Mr Goodwin occurred regarding the use of the 21 day cooling off period. The email exchange 31 confirming the outcome and the requirements was in the following terms:

• Mr Goodwin to Mr Hashemizadeh at 16 February 2018 at 3:27 pm –

“Hey mate,

21 day policies are great ways of getting a sale if the member doesn’t want to hand over cash or get extra time to think…

Just make sure when you are offering these policies you keep mentioning to the member they will come as a live policy and if they don’t want to take them up they need to call as they don’t self-cancel…

Outbound makes a call to them… so leave no doubt in the members mind that you are sending an Insurance policy out to them.

Any questions sing out

Cheers mate”

• Mr Hashemizadeh to Mr Goodwin on 16 February 2018 at 4:04 pm –

“No worries…

I was under the impression after our last chat that as long as I mention ‘policy’ documents then they know it’s a policy and not a quote. Also you mentioned that I can say it if we don’t heard from them within 21 days the policy will self cancel lol

I can change the scripting to suit no issues there, but it did make totally sense from a legal point of view that a mention of policy would be make after a ‘compliance’ scripting noting that it is regards to the insurance they are buying plus the other info about the documents

… …”

• Mr Goodwin to Mr Hashemizadeh on 16 February 2018 at 4:06 pm –

“They don’t self-cancel outbound call them mate…

Just tidy up that it comes out as a policy.”

• Mr Hashemizadeh to Mr Goodwin on 16 February 2018 at 4:07 pm –

“Ggggggggooooooooooooottttttttttt itttttttttttttttttttttttt”

[65] This exchange reflects the good working relationship between Mr Hashemizadeh and Mr Goodwin. It is also represents an encouragement given to Mr Hashemizadeh to seek to convert requests for quotes into sales and the use of the 21 day policies (21 day cooling off period) to that end.

[66] However, it does not represent any form of encouragement not to disclose the nature of the arrangement being organised and in fact emphasises the mutual understanding that it was necessary to make it clear that a policy was being issued (if that was to be done) and that the policies are real and not self-cancelling.

[67] There is also no mention made of “free cover” or similar concepts in this exchange.

4.6 The conduct of Mr Hashemizadeh in the calls subject of the allegations (between 1 May – 2 July 2018)

[68] The conduct of Mr Hashemizadeh in four calls, each to different customers, was relied upon by the RAA. The particular statements made by the applicant that caused the RAA to review his employment may be summarised as follows (Mr Hashemizadeh’s contributions in the quoted portions are in italics):

• 1 May 2018 – a customer signs up for car insurance and then asks about home and contents insurance – the conduct issue relates to the home and contents insurance. The detail of the information provided by Mr Hashemizadeh in relation to the home and contents request included the following:

• The customer requested a quote for home and contents insurance;

• There was a discussion about the level and nature of the cover;

• A per month premium cost figure was provided by Mr Hashemizadeh and he requests the client’s response. The client indicates that he would need to look into it. The following exchange occurs:

“Nah that’s all right so what I can do for you is send an invoice which gives you 21 days free look so you can have a look and compare. If you do want to go ahead with it, you can simply call us back to make payment arrangements or cancel but we will still cover you for 21 days for free anyway. At least that will give you documents to have a read, something to compare to it.

Right.

So I’ll send that out for you. I’ve just gotta read this for the home insurance like I did for the car. So you need to know the insurance you are buying is right for you, the insurance cover you have chosen is home and contents insurance. This covers your home and contents against defined events outlined in the Product Disclosure Statement.

I just want them to quote for the house mate, I…

This is just an invoice you are not actually like um starting the policy, paying for it. You’ve gotta let us known if you want to pay for it.

Yeah righto, yep, okay.

Yeh. So can you please confirm nothing has been withheld which may influence our assessment of the risk to the premium or terms of the insurance?

Confirmed.

Excellent. So I will send out the invoice mate and then uh if we hear from you, we hear from you but uh the invoice is only valid for 21 days.

Right so, with that house and contents, is that two insurances?

No, it’s one policy, house, building, contents so two insurances on the one policy number.” 32

• And later:

“All right so I’ll send the documents out for ya and um that’ll basically look like a live policy and you’ve got 21 days to um get back to us if you decide that we are cheaper and you obviously want to go ahead with us.

Yeh okay so the car insurance…..activated so that’s all good

Yeh that one’s activated. Good. Don’t even worry about that one um, it’s just the home you need to review, compare it with what you’ve got and call us back within 21 days if you want to go ahead with it.

Yeh, yep. And is that roadside assistance as well so I get an RAA card

Yep the card will arrive

Yeh right

In another few weeks, for the card but you are covered for road service and car insurance from today. In fact, the house insurance you’ll also be covered because it’s basically a live policy with a 21 day free look period so you are insured anyway so it doesn’t really make a difference for you but um we…

So I’m insured twice pretty much? Is that what you’re saying?

Yeh exactly so if you..

For 21 days is it?

But if you needed to make a claim you can choose between us and them so” 33

… …

“No worries at all. So I’ll send out the invoice mate and um have a look through it and then let us know what you think.

Righto. So what was your name, Brian was it?

Brian, yeh. Actually you know what do you want me to put the invoice date because the free cover starts whatever date I put down. Do you want me to put down today or tomorrow or next week?

Oh put it down as today being the 1^stthat works out pretty well.” 34

• 23 May 2018 – the customer requests a quote for home insurance. After a detailed discussion about the nature of the policy and the coverage. Mr Hashemizadeh indicates that he would apply a discount to the quote and later that he will send “this stuff so you can have a look and compare it”. Mr Hashemizadeh also provides a monthly policy cost and the prospect of also providing car insurance was raised and the circumstances of the vehicle discussed. The following exchange then took place:

“Nah that’s all right. What I was going to suggest though because you need to compare all this, did you want me to send out invoice documents for all three because you’ve got 21 days to decide with the documents and that means you do want to go ahead with RAA you’ve just got to call us to make a payment. Otherwise you can cancel and you don’t have to pay for it anyway.

Yeh that’s fine I think I’ve got until June you know like to, I know that this one I’m looking at I’ve got til June.

What date is the renewal?

The 20^th of June.

Yep. I can put the document dates for all of them to 20^th June so if you did decide to go ahead you can simply start on the 20^th but you can always change dates on the documents anyway. All right so then what I’ll do is pop you through to a quick compliance script before I can send paperwork out and then I’ll come back to you in one minute and we’ll send the paperwork out so you can have a comparison quote.

Can you just tell me again sorry, I just want, [REDACTED] was 45 it was it 45.68?

Yep the [REDACTED] one was 45 a month, the home was $84 a month and the car that we’ve just done was 45 as well.

45. Okay. All right I’ll have a look at those, I’ll get bank statements and I can compare

All right. Perfect. So I’ll just get put you through and then I’ll send the documents with the pricing on there as well and what’s included in the cover because I think the house you’ll be getting a little extra cover with us if you did bring it across than what you’re paying for.” 35

• Mr Hashemizadeh plays a compliance script which includes the following:

“… …

If you change your mind about your insurance or after reading of the documents you feel the product does not meet your needs you have a 21 day cooling off period. This means if you decide to cancel and haven’t made a claim in that time, you get a full refund.

… …” 36

• The following exchange subsequently takes place:

“Again, once you have the paperwork you can change any of these details it doesn’t have to be what we’ve put own at the moment because the free cover starts on the 20^th of June anyway so you’ve got until the 20^th of June to make any changes or if you are happy with it, give us a call, confirm the date

Sorry, nothing’s gonna happen unless I right to say I want to go ahead

Yeh definitely

Is that right?

That’s right.

Okay.

So these are all just invoices so its like getting an invoice and then you’ve got the option to pay it or not but we don’t have any contract in place because you haven’t paid for it but we will still cover you for 21 days for free um even without payment but then you’ve got the 21 days to accept or cancel the policy.

Okay.

And that’s from the 20^th of June anyway so we are talking another month where the 21 day free period starts.” 37

• Mr Hashemizadeh concludes the conversation in the following terms:

“Perfect so I’ll send out the invoices. Have a read through them. You’ve got 21 days from the 20^th of June onwards ah and to call us to make payment arrangements whether you want to pay annually or monthly or to let us know you don’t want to go ahead with it and we’ll just cancel it from there.” 38

• 24 May 2018 – involves a customer renewing their road service. Mr Hashemizadeh also raises the fact that the RAA also provides home and contents insurance and a discussion unfolds about the nature and cost of such coverage and when it is revealed that the customer does not have insurance at the moment the following exchange takes place:

“Oh wow well do you want me to just give you 21 days free cover from today and then you decide what you want to do when you read the papers?

Yeh” 39

• And later:

“All right well then I will send an invoice with 500,000 with 21 days free cover for you to decide if this is the right level of cover for you. Ah so we’ll go building 500,000, contents 30K, accidental cover 2,000 and that will bring you back up to yep 84.75 a month exactly. Mind you, you can always go up and down. You don’t have to be stuck with this and if you decide to pay it monthly you can change it or even stop it on a certain month if, if, if things are getting tight or you just don’t need it at that point.

Yeh well, well I, I, I wouldn’t be paying it me self, coming down paying you, what I’d I’d get it paid straight out of me bank, I don’t wanna be…

Yeh, yeh, we can set up a system where we are just taking it out monthly and then you can either stop it when you want or change your details whenever you like, its just a phone call, you don’t have to go into any branch.

Yeh

Um, but you’ve got 21 days anyway so I’d rather send you the paperwork so you can have a read through it first and then decide what you wanna do, um instead of making an on-the-spot decision so would you like me to send some papers out first?

Yeh, yes please, yeh.

I’ll just…

Look I’ll I’ll have a look at the paperwork and go through it and you know just have a read but I’m pretty happy with that. It’s only $21 a week um, I’m a bloody smoker, I spent that on a packet of cigarettes today. You know…” 40

• After informing the customer that he would be playing the compliance script Mr Hashemizadeh indicates as follows:

“You’ve got 21 days free cover so we’ll cover this from today for free for you for 21 days anyway without payments.

No worries.” 41

• After the customer reveals some circumstances that may impact on the risk Mr Hashemizadeh indicates as follows:

“Nup that’s fine and err, that’s it so I’ll send out this stuff with the paperwork dated the 24^th of May so your free cover starts from 24^th of May for 21 days. Just remember to get back to us within 21 days because you may not be covered after 21 days unless we receive some kind of payment but ah you definitely got the free cover and let us know whether you want to go ahead with it or whether you want to cancel it cos it’s pretty much gonna be a live policy with a free look period.” 42

• 2 July 2018 – customer seeks a motor vehicle insurance quote. After discussing the nature of the vehicle and the coverage, Mr Hashemizadeh indicates a premium cost on an annual and monthly basis. The customer seeks clarification as to whether the quote is the best deal that can be done and the following exchange takes place:

“Yeh but for quote is that the best deal you can do?

Yep, that’s including your discounts applicable and lifetime vehicle replacement.

Okay. Um, yep, okay, can I, so that’s a quote I got right and if I wanna go ahead with it what do I do?

I can send you an invoice that will give you 21 days free cover. Um what day are you actually picking it up? Friday?

Friday, yeh.

So I can have this covered for you from Friday for free for 21 days. So it’s a live policy that comes out in an invoice but you’ve gotta remember in that 21 days to call us if you want to continue it to make payment arrangements otherwise it will lapse.

Yep.

Um or cancel as well.

Yeh yep, okay. That’d be great, yeh.

But its…….

………

..because

Yeh, go

..yeh because um sometimes a dealer will tell you, we’ll just give you a quote and then they’ll process it. If anyone does that before RAA, you don’t get that lifetime vehicle replacement so getting the invoice sent out ensures that we were the first ones to insure it therefore you are qualified for lifetime vehicle replacement.

No but I, I’ll be honest with you I just wanna get a quote somewhere else cos……….

Quotes are all right but if you purchase it, like if you know if you…

Yeh, yeh, yeh, nah, yeh I understand that already yeh, yeh, nah I just wanna get a quote to see if you guys are on the ball if you know what I mean? Yeh.

Yeh, absolutely. Well this invoice is 21 days free cover so you’ve got 21 days to quote around and decide but at least it will give you the lifetime if you do decide to go ahead.

Yeh, yep.” 43

• After playing the compliance script the following exchange takes place:

“Great. I’ll send out the invoice that will cover you from Friday, 21 days free.

Yep.

Um and then just remember to give us a call back if you do wanna make payment arrangements on there..

Yeh, yeh, yeh

..or cancel it. Is there any questions you have in regards to the cover?

Nah” 44

• Near to the conclusion of the exchange, Mr Hashemizadeh confirms that he is sending out an invoice and although the customer refers to the document as a “quote” Mr Hashemizadeh confirms that “cover” would still be in place from the date the document is supplied.

[69] The RAA contends the following about this conduct: 45

• Mr Hashemizadeh persistently makes representations to customers in the telephone calls which are not true, including that the customer has a “21 days free look”, will be covered “for 21 days for free”, the “invoice [they are receiving is] not actually like ... starting the policy”, the RAA does not “have any contract in place because [the customer hasn't] paid for it but ... will still cover [the customer] for 21 days for free”, and the customer has “21 days free cover”.

• The RAA does not offer free insurance of any type or for any period. It offers a 21 day cooling off period for each of its insurance policies. The RAA never uses the terminology of “free insurance” or “free cover” in the induction program or any other training and these statements are not accurate but rather are misleading.

• That conduct is serious and places the RAA at risk of breaching obligations under its Financial Services Licence. The effect of doing so can mean financial penalties for the RAA. Importantly, those representations have the potential to damage the RAA's brand and reputation for honesty and transparent selling.

• The processes that Mr Hashemizadeh appears to have undertaken during each of the Telephone Calls above are consistent with him sending a Certificate of Insurance that specifies an amount for payment (being the “invoice”), rather than sending out a quote for insurance.

• In the Telephone Calls, Mr Hashemizadeh does not try to arrange for payment of the insurance policy in any way other than by sending out an invoice. Sending out an invoice is usually a last resort.

• Mr Hashemizadeh was not incorrect on the occasions he said to the customer that he was sending an “invoice”. However, the nature and timing of Mr Hashemizadeh’s statements appear to have conveyed to some of the customers that the customer would receive a quote describing the insurance policy premium amount, rather than receiving a live insurance policy (with associated contractual terms) that included a 21 day cooling off period if the customer wished to cancel the policy. This is not a transparent or honest selling process.

• At times, Mr Hashemizadeh’s statements about “free insurance” or “free cover” were also followed by statements that he was sending out a “live policy”. The combination of these phrases is confusing and a misrepresentation of the insurance product. Even if this was not Mr Hashemizadeh’s intention, his selling process was misleading and not transparent.

• In three of the Telephone Calls, Mr Hashemizadeh appears to be trying to overcome an objection from the customer to taking out the insurance policy. If a caller uses the phrase “I'd like a quote”, the Retail Sales Consultants are trained to present the product price, acknowledge the customer is just after a quote, but to still ask “how does the quote sound” and if the customer would like to go ahead with a policy? The Retail Sales Consultants are not trained to ignore objections and persist with confusing, inaccurate and misleading terminology or to sell RAA insurance products in this way.

• Each of the customers in the Telephone Calls received a Certificate of Insurance following the telephone call. This means that each customer had entered into a binding insurance contract at that point, even though they had not yet paid for it. So where the Applicant implies to customers that there is no insurance contract in place, this is completely inaccurate.”

[70] Mr Hashemizadeh’s position in relation to the alleged conduct included the following:

• The culture of the Sales team within RAA supported an environment where sales were encouraged and expected and that this created pressure on the applicant to perform;

• There is a difference between the phrase “free cover” and “free insurance” and that the applicant never used the phrase “free insurance” but rather only referred to 21 day “free cover” or a “free look” and this was a reasonable understanding of the 21 day cooling off period;

• The use of these terms and the sales approach was consistent with his training and encouraged by his immediate Manager;

• If the phrase “free cover” caused any confusion amongst RAA customers then this would have been alleviated once the customer received the formal paperwork from the RAA; and

[71] Mr Hashemizadeh’s evidence about these matters also included the following:

• During the investigation interview, words to the effect that:

• Why haven’t I been counselled about this earlier?

• I have apparently been misleading customers.

• The RAA should be following up on others in the call centre.

• In the written statement and in response to questions from Mr Nippress during examination in chief, evidence to the effect that: 46

• Mr Goodwin encouraged me to use a 21 day policy as a great way of getting a sale and it was necessary to mention to customers that they need to call back to accept or cancel the insurance as they do not self cancel.

• A 21 day invoice is basically a document a customer may receive if they do not want to hand over cash immediately. It does give customers the opportunity to make a claim if the need arises in which they would need to then pay for. It also gives the customers an opportunity to overlook the documents and then decide whether that insurance is right for them and to purchase that insurance if they wish to go ahead.

• It was basically a 21 day period for customers to have the opportunity to make a claim if the need arises.

• The free insurance (which is a term that was not stated) would be that everything is free. The free cover means that you have the opportunity to make a claim and until then you do not pay anything. If you make a claim, the customer would pay for the excess.

• The 21 day cover was explained to the applicant during either induction or training and was reinforced during supervision.

• Mr Goodwin then, in a one-on-one (meeting) after commending me for my sales, because I was doing very well, told me that RAA does not use the term cover note. Instead we use the term 21 days free look, so we can use the word “invoice” with a 21 day free look, but it would in essence be applied as not a compliance breach if you mention afterwards that the customer then has the 21 days to make payment or to cancel the policy, so the second part had to be mentioned after that.

• Upon reflection of the actual transcripts that I was reading, I could see how the word “free” would have been confusing for a customer.

• The only part I was confused about if I wasn't encouraged to use the term “free look”, I would have never used it giving them the opportunity to suspend on that note. So, yes, upon reflection, yes, I could see that some of my scripting was confusing.

• I accepted responsibility for my actions in that I questioned Jared Curtis why I had not been warned or performance managed before for apparently misspeaking to clients. I found it very, very hard to understand and accept that it has only come to their attention after 11 months of employment.

• I raised two mitigating factors that might've impacted on my work performance; if it was serious misconduct, it was not wilful or deliberate, not to say that I was arguing the point that it may have been confusing, but it was not wilful and deliberate. The other second issue was my request for flexible work hours.

• In response to questioning from Mr Short during the cross-examination about the terminology used in the calls and the training provided, evidence to the effect that: 47

• In training with Tony Maddox I asked the question in front of the group, and my question was, if we had spent an hour with a customer going through the products and services, and the customer decided that they wanted time to think about buying the insurance and then they called back, for example, the day after or a week after, and somebody else got that phone call, would we still be awarded for that sale. Tony then said that, "We've got a saying at RAA, if you don't close on the first call, you don't deserve the sale. Who would say no to a 21 day free look?" so to answer that question I wasn't specifically told not to use the free look, but the word free look was used to describe the invoice throughout the induction a lot.

• Upon reflection I could understand that the phrase free look may have seemed confusing, but it was definitely thrown around freely throughout my entire employment including training.

• The remaining of the calls (beyond the extracts provided in the allegations) clearly show me educating the customer, rather than misleading the customer. I've used the terms live policy as I was coached to do. I've definitely on multiple occasions kept repeating to the same customers that they need to call back within 21 days to pay or to cancel the policy inferring that it's not going to self-cancel, which is again what I was coached to do. So that's – I can't emphasise enough that there's been a one minute snippet of that phone call, but then there's been 26 minutes of me re-educating the customer, telling them what's happened in the process, that it's an invoice, not a quote. Putting them through to a sales compliance scripting which starts off with telling the customer that the insurance that they are buying into, not the quote that they're receiving. I, at the time, didn't think I could've made it any clearer to a customer that they're getting an invoice not a quote.” 48

• In relation to the 1 May 2018 call, Mr Hashemizadeh now accepts that the combination of responses was misleading. 49

• In relation to the 23 May 2018 call, Mr Hashemizadeh accepts that the reference to “free cover” and that indicating that no contract was in place when an invoice was being issued, can be misleading. 50

• In relation to 24 May 2018 call, Mr Hashemizadeh accepts that the reference to “You've definitely got the free cover”, and then, “because it's pretty much going to be a live policy with a free-look period” was misleading. 51

• In relation to the 2 July 2018 call, Mr Hashemizadeh indicates that he was trained to convert requests for quotes into policies; he mentions that he was sending an invoice on a number of occasions but that the reference to the invoice being 21 days free could be misleading. 52

• In relation to the concept of “free cover” and the approach evident in the calls more generally, evidence to the following effect:

• Me telling a customer that it's free insurance would be implying that everything is free, so the premium and the excess, which is how the insurance is broken down. I was implying that the cover is free, they've got the opportunity to make a claim, that's cover. But I never implied that the claim is free to a customer calling it free insurance. So I've always referred to it as free cover, you're covered if you need to make a claim, but you're not getting free insurance. So you make a claim, then you basically don't pay for the excess, that's to me what free insurance meant, the whole package together. 53

• I did not tell the customer that if they want to make a claim for the 21 day period they have to pay, but the documentation issued by the RAA does not do that either. 54

• Again, upon reflection I can see that that approach may be misleading, but based upon the training that I had received, I thought I was actually doing my job quite well. I was doing what I was trained to do 55

[72] Having regard to the evidence before the Commission and my view about the quality of that evidence, I find on the balance of probabilities as follows.

[73] Mr Hashemizadeh ultimately accepted that some of the conduct in the calls was misleading. However, he contends that this was consistent with his training. I have set out the training and information provided to Mr Hashemizadeh earlier in this decision.

[74] There is no evidence to support the notion that not being clear about the nature and impact of providing an invoice to a customer and some other elements of Mr Hashemizadeh’s approach evident in these calls was taught to him, undertaken by other employees, or condoned by the RAA. Indeed, the unchallenged evidence of Mr Maddox and Mr Koklas was that Mr Hashemizadeh was not trained to talk about a “free look” or “free cover”, or to use the 21 day invoice as a means of overcoming objections from customers where they ultimately did not want a policy to be issued. Mr Goodwin did encourage offering of the 21 day cooling off period as a sales strategy but not as means to issue policies where the customer was seeking and expecting a quote to be provided.

[75] Whilst the use of the 21 day cooling off period as a sales strategy was not of itself inappropriate, some of the conduct around the issuing of the invoice was objectively misleading and not consistent with the obligations placed upon the RAA or upon Mr Hashemizadeh. This included not being open and transparent about the nature and impact of issuing an invoice, including that a policy was being issued with mutual obligations created. Although playing the compliance material and subsequently supplying the PDS may have informed the customer that more than a quote was being provided, the information provided before that point, and in one case after the point of the compliance material, was misleading and wrong. This included masking the nature of the invoice itself. The fact that the customers could cancel the policy or not pay for it is not an appropriate explanation or excuse for the conduct. The potential for reputational damage to the RAA and the discord between that conduct and the obligations upon the RAA and its employees in a heavily regulated environment are self-evident.

[76] In terms of the reference to a “free look” to further consider the policy, this was not an accurate depiction of the 21 day cooling off period but I accept that this element was not necessarily an attempt to mislead the customers. In terms of the concept of “free cover”, this is also not accurate, but has the higher potential to mislead as Mr Hashemizadeh made no effort to confirm that the actual cover would only exist if payment was made.

[77] It is also evident to me that Mr Hashemizadeh was aware of the encouragement to make the sales and the fact that if policies were issued, but later cancelled or not paid for, the sale remained credited to him as part of the incentive arrangements.

4.7 The process leading to the dismissal

[78] The general chronology of events has been set out earlier. Mr Hashemizadeh was suspended on 2 July 2018, the allegations and accompanying material, including partial transcripts and full audio copies of the four calls, were supplied on 5 July 2018 and the investigation meeting was conducted on 10 July 2018. Mr Hashemizadeh studied that material at some length prior to the investigation meeting.

[79] The conduct of the parties and their representatives at the investigation meeting is in dispute. It is not necessary for me to deal with all aspects of that dispute.

[80] The RAA provided information in advance of the meeting that Mr Hashemizadeh’s support person was to undertake that role and not advocate for him. That is, Mr Hashemizadeh was to answer the allegations himself.

[81] Ms Hibeljic is a lawyer, but not with experience in workplace relations. It is clear that Ms Hibeljic was seeking to be Mr Hashemizadeh’s advocate in the meeting and to speak on his behalf. Ms Wallace sought early on in the meeting to shut this down.

[82] As part of the explanation as to why she should be able to speak for Mr Hashemizadeh, Ms Hibeljic advised those in attendance that Mr Hashemizadeh was going through a hard time, including by reference to a family bereavement. This was not acknowledged at the time by those in attendance for the RAA and at least objectively those leading the discussion for each party tended to be distracted by the issue of representation and the perceived tone of some of the contributions made.

[83] It is also evident to me that Mr Hashemizadeh’s approach to, and conduct at, the investigation meeting was dominated by his view that this was, in effect, a charade and that he was going to be dismissed as a result of his flexible working arrangements request. As a result, his body language and contributions would reasonably have given the impression that he was not taking the allegations seriously and was disinterested in the process. It is also evident to me that this was a result of his attitude to the process, not a product of any sense of misunderstanding about the seriousness of the situation or the nature of the allegations themselves. Based upon the evidence before the Commission, Mr Hashemizadeh’s medical condition did not play a significant role in his approach to the investigation meeting.

[84] Ms Hibeljic and Mr Hashemizadeh spent most of their contribution raising the flexible working arrangements request and this, along with issues associated with representation, also tended to dominate the clarifications and additions sought to the written record later provided by the RAA.

[85] Despite, what I might call, the “static” created by the representation dispute, the conduct allegations were raised and Mr Hashemizadeh had a reasonable opportunity to respond to those matters. Although Mr Hashemizadeh contends that he acknowledged the problematic nature of his conduct in the calls concerned, this does not sit comfortably with the actual conduct at the meeting. There was no direct acknowledgment by Mr Hashemizadeh of the problematic nature of the conduct, or any real attempt made to respond directly to the substance of the allegations, at the investigation meeting. Indeed, the indication that he had “apparently” been misleading customers and that the RAA should look at the conduct of others in the call centre, would tend to indicate the contrary. However, in the circumstances, I do not draw any negative inference from the fact that Mr Hashemizadeh declined to name the other salespersons that should be investigated.

[86] On or around 12 July 2018, a decision was taken by Mr Selth to dismiss Mr Hashemizadeh based upon the recommendation provided by Ms Wallace and Mr Curtis. I find that the recommendation was influenced to some degree by the view of some in management about the conduct of Mr Hashemizadeh during the 25 June 2018 discussion with Mr Andrew. It is also apparent that Mr Hashemizadeh’s medical condition (and flexibility request) was not the reason for the dismissal but also was not a significant consideration as a potential mitigating factor.

5. Was Mr Hashemizadeh’s dismissal unfair within the meaning of the FW Act?

[87] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

[88] Mr Hashemizadeh was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[89] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[90] The FW Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

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

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

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

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

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

[91] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

[92] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Hashemizadeh’s capacity or conduct (including its effect on the safety and welfare of other employees).

[93] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.⁵⁶

[94] The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee’s employment.⁵⁷ It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.⁵⁸ Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.⁵⁹

[95] I have found, in effect, that some of the conduct of Mr Hashemizadeh in the four telephone calls was misleading and potentially deceptive. This was not consistent with his training or his obligations, and represented misconduct given the context in which it occurred. It was also serious given that context.

[96] Whilst some elements of the conduct might be excused as a poor application of the 21 day cooling off period, other aspects were misleading and lacking in transparency; being either deliberate or recklessly so. This led to Mr Hashemizadeh not being clear or open with the customers about the true nature of some of the transactions that were being entered into, or their consequences, and in some cases actually providing incorrect information as part of an attempt to mask and downplay the true nature of the transaction. This behaviour was not consistent with Mr Hashemizadeh’s duties and was misconduct. This also had the prospect of artificially boosting his sales figures.

[97] In the absence of any genuine recognition of the problematic nature of that conduct prior to the dismissal, and the largely uncontested evidence about the training and instruction provided to Mr Hashemizadeh about these matters, which did not support or justify that practice, this represented a valid reason for dismissal.

Section 387(b) – whether Mr Hashemizadeh was notified of the reasons for dismissal.

[98] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.⁶⁰

[99] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.

[100] Mr Hashemizadehwas notified of the reasons.

Section 387(c) – whether Mr Hashemizadeh was given an opportunity to respond to any reason related to his capacity or conduct.

[101] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[102] This process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.⁶¹

[103] I find that with one possible exception, the RAA provided Mr Hashemizadeh with an opportunity to respond to the reasons associated with his conduct that formed the basis of the dismissal. That exception is associated with conduct of Mr Hashemizadeh on 25 June 2018 and I will return to this aspect shortly.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Hashemizadeh a support person.

[104] Mr Hashemizadehwas afforded an opportunity to have a support person attend the meeting leading to the dismissal and this occurred.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Hashemizadeh – whether he has been warned about that unsatisfactory performance before the dismissal.

[105] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.⁶²

[106] There were some minor issues about unsatisfactory performance raised by the RAA during Mr Hashemizadeh’s employment; these were not related to the dismissal.

[107] At one level, elements of the conduct of Mr Hashemizadeh could be viewed as unsatisfactory performance. However, I have found that the substance of the conduct was misconduct and not simply a matter of performance of the job and as a result I do not consider that the dismissal was related to these matters at least in the sense contemplated in s.387(e) of the FW Act.

[108] However, and in any event, the fact that the dismissal took place without a warning is potentially relevant under s.387(h) of the FW Act.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

[109] The RAA is a large business and has access to dedicated human resources expertise, which was involved in the process leading to Mr Hashemizadeh’s dismissal.

Section 387(h) - other matters considered to be relevant.

[110] Amongst other considerations, the Commission should have regard to the impact of the dismissal upon Mr Hashemizadeh given all of the circumstances. This includes consideration as to whether the dismissal was harsh.⁶³ The question of whether a dismissal is “harsh” involves the exercise of discretion. The discretion is broad and is constrained only by the requirement to take into account the matters specified in s.387(a) to (h) of the FW Act, including any matters the decision-maker considers to be relevant (s.387(h)). Ultimately, the determination of whether a dismissal is “harsh” requires the making of a broad evaluative judgment by the Commission.⁶⁴

[111] Consistent with this approach, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed or because it is disproportionate to the gravity of the misconduct.⁶⁵

[112] Mr Hashemizadeh had been with the RAA for a relatively short period when dismissed but this still meant that he lost his employment with the normal consequences associated with an event of that kind. I have found that the dismissal arose from his conduct and was not related to his medial condition or flexible working arrangements request. Given my findings, whilst the consequences are regrettable, these largely flowed from his conduct and the nature of his response to the allegations. He was also paid a period of two weeks in lieu of notice.

[113] In forming my ultimate assessment of this matter, I have also taken into account three additional factors. Firstly, Mr Hashemizadeh’s medical condition more generally, and his personal circumstances at the time of the investigation interview, are relevant considerations.

[114] I accept that Mr Hashemizadeh’s medical condition created the context for the flexible working arrangements request and more relevantly, it is a reasonable inference that it contributed to the partial decline in his sales performance in the period leading up to the events in question. However, there is no reliable evidence that this impacted upon his capacity to handle the calls in question in the manner that he did, or to provide an explanation for his conduct more generally. For instance, it has not been suggested that Mr Hashemizadeh’s conduct was itself the result of the medical condition or the associated absences. The consequence of the dismissal for Mr Hashemizadeh given his medical condition is a factor that I have taken into account.

[115] I do accept that there were personal circumstances at the time of the investigation interview, which along with his (incorrect) view that the process was not genuine, may have contributed to his approach at the meeting. In the circumstances, a more flexible approach to having Ms Hibeljic act as a genuine representative in the meeting may have also been appropriate. In addition, it is unfortunate that the personal circumstances when raised in the early part of the interview were not acknowledged by the RAA management, at least on an individual level. However, given that Mr Hashemizadeh and Ms Hibeljic were able to respond to the allegations and provide additional notes about matters that they suggest were overlooked in the RAA’s record of that meeting, I am on balance not persuaded that this process led to unfairness.

[116] Secondly, the degree to which RAA’s sales incentive system might be relevant. The full details of the system are not before the Commission but it apparently counts all “sales” of insurance products, even if issued wrongly or issued as an invoice when the customer is expecting a quote. No adjustment is made even where the customer cancels the policy or does not make the payment. This has the potential to influence behaviour and I accept that this may have been a factor in this case. However, no case has been advanced that would support any view that this, of itself or in combination with other factors, mitigates or properly explains Mr Hashemizadeh’s conduct. Indeed, the basis of the case was that Mr Hashemizadeh’s dismissal was for other reasons, his conduct was consistent with his training, and that other mitigating circumstances were involved.

[117] Thirdly, the fact that Mr Hashemizadeh was not specifically warned about his conduct. In most circumstances, this would be a significant factor more consistent with a finding of unfairness. Based upon the evidence, Mr Hashemizadeh was comprehensively trained in relation to his obligations, was not trained to make sales using the strategies he deployed and was reminded in February 2018 by Mr Goodwin to be careful about clearly stating the nature of any 21 day invoice. The absence of any genuine recognition of his obligations or conduct during the investigation meeting is also a relevant countervailing factor when assessing the overall fairness of the dismissal in this particular case.

Conclusions on the dismissal

[118] I have weighed all of the factors and circumstances of this application.

[119] As outlined earlier, the FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the FW Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:

“381 Object of the Part

… …

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[120] I have found the existence of a valid reason and there are some competing considerations as to whether the dismissal was harsh in all of the circumstances. This includes the seriousness of the conduct and the context in which it occurred, the impact of the dismissal, the absence of a prior warning, the payment in lieu of notice, the short period of service and some personal mitigating factors discussed earlier. Whilst the RAA did not provide an opportunity for Mr Hashemizadeh to respond to the conduct on 25 June 2018, I have found, contrary to the applicant’s position, that this occurred largely as noted in the EMS entry. This aspect also did not form a significant part of the decision to dismiss the applicant. The substantive allegations were put, with the provision of the relevant information (including access to the full recordings of the telephone calls, transcript extracts of those calls, and a full set of detailed allegations in advance of the investigation meeting and the dismissal), which facilitated an informed response on those matters.

[121] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether any procedural deficiencies and other considerations made any difference to the overall fairness of the outcome.⁶⁶

[122] It is very unfortunate that, for reasons outlined earlier, Mr Hashemizadeh did not take the opportunity prior to his dismissal to provide the sort of response and perspective that he ultimately provided during his oral evidence in this matter. Whilst I do not accept his view that his conduct was consistent with his training, an acknowledgement about the potential nature of some of his conduct if genuinely given at the time would have added support to the proposition that the issues could have been considered to be a matter of some disciplinary outcome short of dismissal.

[123] However, despite some concerns about aspects of the decision making process adopted by the RAA, that process did provide the applicant with a reasonable opportunity to provide an appropriate and fulsome response to the allegations. Regrettably, Mr Hashemizadeh must bear the responsibility for his conduct and the absence of such a response.

[124] In conclusion, having considered and had regard to all of the matters raised by s.387 of the FW Act as set out in the decision above, I am, on balance, not persuaded that the dismissal was harsh, unjust or unreasonable.

5. Conclusions and Orders

[125] Given my findings, the dismissal of Mr Hashemizadeh was not unfair within the meaning of the FW Act. As a result, an Order⁶⁷ dismissing this application is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

A Nippress from Collaborative Employment Solutions, with permission, on behalf of Bayan Hashemizadeh.

A Short with M Harvey from Minter Ellison, with, permission on behalf of Royal Automobile Association of South Australia Incorporated.

Hearing details:

2018

Adelaide

27 and 28 November.

Printed by authority of the Commonwealth Government Printer

1 Section 382 of the FW Act.

2 RAA is not a small business within the meaning of the FW Act.

3 Section 389 of the FW Act.

4 Having consulted with the parties, I determined that the matter should be subject to a formal hearing (ss.397, 398 and 399 of the FW Act).

5 Exhibit A1.

6 Exhibit A2.

7 Exhibit A3.

8 Exhibit R5.

9 Exhibit R7.

10 Exhibit R10.

11 Exhibit R6.

12 Exhibit R3.

13 Exhibit R8.

14 Exhibit R9.

15 A witness statement was not provided for Mr Goodwin as he was called by the RAA only following a request made by the applicant.

16 Exhibit R1.

17 Exhibit R2.

18 Exhibit R4.

19 Transcript PN-148.

20 The 25 June 2018 exchange with Mr Andrew would have provided a basis for disciplinary action if an alternative justification was being sought by RAA management as contended by the applicant.

21 Exhibit R1, Document 29. Customer details have been redacted for privacy reasons.

22 Section 916B of the Corporations Act 2001 (Cth).

23 Exhibit R1, Document 8.

24 Exhibit R1, Document 6.

25 Exhibit R1, Document 31.

26 Exhibit R1, Document 37.

27 Exhibit R8 at paragraphs 14 to 21.

28 Exhibit R9 at paragraph 16.

29 Exhibit R1, Document 32.

30 Exhibit R9, paragraph 12.

31 Exhibit R1, Document 11.

32 Exhibit R1, Document 13 - p. 8.

33 Exhibit R1, Document 13 pp. 9-10.

34 Exhibit R1, Document 13 p. 10.

35 Exhibit R1, Document 13 p. 23.

36 Exhibit R1, Document 13 p. 24.

37 Exhibit R1, Document 13 p. 24.

38 Exhibit R1, Document 13 p. 25.

39 Exhibit R1, Document 13 p. 28.

40 Exhibit R1, Document 13 pp. 28-29.

41 Exhibit R1, Document 13 p. 30.

42 Exhibit R1, Document 13 pp. 30-31.

43 Exhibit R1, Document 13 p. 38.

44 Exhibit R1, Document 13 p. 39.

45 Drawn largely from the Statement of Mr Maddox and the evidence of the decision-makers.

46 Transcript PN262 to PN276, PN 310 to PN316, PN350 to PN353.

47 Transcript PN350 to PN353 and PN660.

48 Transcript PN660.

49 Transcript PN107 to PN1014.

50 Transcript PN1040 to PN1044.

51 Transcript PN1050.

52 Transcript PN1055 to PN1066.

53 Transcript PN1096.

54 Transcript PN1106.

55 Transcript PN1130 and 1131.

56 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].

57 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.

58 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.

59 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

60 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

61 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

62 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

63 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

64 Reliable Petroleum Pty Ltd v Murray[2017] FWCFB 5843 at [17].

65 See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

66 See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.

67 PR703547.

Bayan Hashemizadeh v Royal Automobile Association of South Australia Incorporated T/A RAA

[2019] FWC 3

9 JANUARY 2019

DECISION

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Hashemizadeh’s capacity or conduct (including its effect on the safety and welfare of other employees).

Section 387(b) – whether Mr Hashemizadeh was notified of the reasons for dismissal.

Section 387(c) – whether Mr Hashemizadeh was given an opportunity to respond to any reason related to his capacity or conduct.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Hashemizadeh a support person.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Hashemizadeh – whether he has been warned about that unsatisfactory performance before the dismissal.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

Section 387(h) - other matters considered to be relevant.