Joe Cai v Serco Citizen Services Pty Ltd - [2023] FWC 1391

[2023] FWC 1391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joe Cai
v

Serco Citizen Services Pty Ltd

(U2022/10544)

COMMISSIONER WILSON

MELBOURNE, 14 JUNE 2023

Application for an unfair dismissal remedy. Work performance alleged to be unsatisfactory; Warnings given. Merits considered. Dismissal not unfair.

This decision concerns an application for an unfair dismissal remedy made by Mr Joe Cai pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was filed in the Fair Work Commission (the Commission) on 2 November 2022 (the Application) after Mr Cai was dismissed by Serco Citizen Services Pty Ltd (Serco, or the Respondent), with effect from 12 October 2022.

For the reasons set out below I find Mr Cai was not unfairly dismissed.

PRELIMINARIES

The merits of the Application were the subject of a hearing convened by me on 23 March 2023 at which Mr Cai appeared for himself and Ms Roxanne Fisch, Special Counsel with Clyde and Co, solicitors, appeared for Serco with permission having been given by me to be represented in these proceedings by a lawyer.

After consulting with the parties on the subject, as required by s.399, I determined the matter would best proceed by way of a hearing, with that course being the most effective and efficient way to resolve the matter.

My reasons for granting permission for legal representation to Serco and for determining the matter should be dealt with through a hearing are dealt with below.

Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in s.394(2), whether the person was protected from unfair dismissal, whether the dismissal was consistent with the Small Business Fair Dismissal Code, and whether the dismissal was a case of genuine redundancy. Neither party put forward that any of the initial matters required consideration. In relation to the elements within s.396, I find that Mr Cai’s application was lodged with the Commission within the 21-day period for making applications required by s.394(2) and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

BACKGROUND

Mr Cai’s application to the Commission for an unfair dismissal remedy was made on 2 November 2022 with him having been dismissed on 12 October 2022.

The matter was the subject of conciliation before a Commission staff member on 22 November 2022. When the matter did not settle, it was referred to me for determination of the merits of the claim. Directions for hearing were issued on 25 November 2022 following a mention hearing for the purposes of programming. Mr Cai did not attend the mention, advising the Commission he had a prior arrangement. The matter was the subject of an application by Serco for dismissal of the substantive proceedings under s.399A of the Act, which was refused by me.[1]

Representation and format of proceedings

At the start of the proceedings on 23 March 2023 I gave permission for Serco to be represented by a lawyer and dealt with the matter of the format of the proceedings. Serco sought to be represented in the forthcoming hearing by Ms Fisch of Clyde and Co, solicitors.

For the reasons set out below, I am persuaded that it is appropriate for me to grant permission for Serco to be represented by lawyers with me reaching this conclusion having regard to the criteria within s.596 of the Act as well as the particular facts of the matter and the submissions made by each party to me about representation.

Determination of the question of representation requires consideration of s.596 of the Act, which is in the following terms:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;

that is representing the person; or
(c) is a bargaining representative.”

Serco relies upon each of the criteria in s.596(2) as supporting its application, submitting:

In relation to s.596(2)(a): that the matter is complex and as such would benefit from the involvement of a lawyer to clearly present evidence and assist logistically, thus improving the efficiency of the hearing;

Addressing subsection (b): that it would be unfair to refuse representation as there is only one in-house legal person who is responsible for day-to-day employment and IR issues with little experience in advocacy. No capacity or resources for the rest of the in-house team to run a matter before the Commission; and

Addressing subsection (c): it would not be unfair for the Respondent to be represented, as while the Applicant is self-represented the Commission itself has powers to inform itself and remove unfairness from the hearing.

The proper interpretation of s.596, was considered by Flick J of the Federal Court in Warrell v Walton[2]:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”[3]

It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission.[4] It is only where the first step is satisfied that the second step arises, which involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.[5] The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.[6] Satisfaction of one of the s.596(2) criterions does not dictate that the discretion is automatically to be exercised in favour of granting permission.[7]

In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused.[8] Sheer volume of documents or the existence of extraneous issues does not equate to complexity, with the Commission routinely being required to deal with such factors.[9] While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.[10]

I was satisfied that the relevant complexity of this matter includes the failure of the Applicant to coherently articulate the grounds of his application or rebut the Respondent’s, leaving uncertainty as to the matters to be argued or the means by which his application would proceed, whether in the form of a hearing or determinative conference. I was satisfied that representation of Serco by lawyers has the likelihood of enabling the matter to be dealt with more efficiently. I have more to say on this subject in respect of the matter of discretion, dealt with below, however relate those matters to the establishment of complexity and efficiency as well.

Satisfaction on those matters is a precursor to a grant of permission for legal representation pursuant to s.596(2)(a).

I am not though satisfied of the matters within s.596(2)(b), that it would be unfair not to permit legal representation as Serco is unable to represent itself effectively. Senior Deputy President Richards considered the operation of s.596(2)(b) at length in CEPU v UGL Resources (which consideration has not been disturbed by Govender). I do not repeat his consideration here, other than to note it and that he concluded “the totality of the observed circumstances will be important, as will the genuineness of any asserted belief that is said to be held”.[11] I doubt very much from the events associated with this file that no person employed within Serco, whether legally trained or not, would be unable to represent the company in these proceedings, at least in the manner of summarising the salient points of the Respondent’s case or taking the Applicant to the matters it contended showed his termination to be fair. Serco has therefore failed to satisfy me that s.596(2)(b) is a ground for consideration of a grant of legal representation.

Serco has similarly failed to persuade me that the criterion within s.596(2)(c) has been satisfied either. There would be no inherent unfairness to it through the non-representation of the Applicant.

As set out above, the decision to grant permission is not merely a procedural step but is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[12]

Having determined that the only ground enlivened by the Respondent’s application is whether a grant of legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, I considered that the possibility that there will be a significantly improved handling of the proceedings because of the Respondent’s representation is a factor in favour of the discretion being exercised.

I placed significant weight in my exercise of discretion on the uncertainty about Mr Cai’s case, even to the point at which the hearing commenced. The nature of his case has at all stages been mercurial and I considered it would be of significant assistance to me in dealing with his application for the Respondent to have competent legal representation.

It follows from a grant of permission for legal representation to the Respondent that some measure of unfairness flows to the Applicant, however the need for the Respondent’s case to be presented in an orderly and competent manner likely outweighs the disadvantage to the Applicant, whether actual or perceived. On balance, I considered that the matter of potential efficiency to be gained through the grant of representation outweigh the potential for imbalance for the Applicant in the hearing or determinative conference. Serco was therefore granted permission to be legally represented in the forthcoming proceedings in this matter.

Format of proceedings

The format of the proceedings is a matter dealt with by s.399 which provides:

“399 Hearings
(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:
(a) the views of the parties to the matter; and
(b) whether a hearing would be the most effective and efficient way to resolve the matter.

(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.
(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.”

On the day prior to the hearing my Chambers communicated with the parties about a number of matters including the consideration in s.399. The relevant part of the communication was this:

“Finally, the Commission refers to the provisions of s.399 of the Fair Work Act which provides that the Commission must not hold a hearing in relation to an unfair dismissal application unless it considers it appropriate to do so after taking into account the views of the parties and whether a hearing would be the most effective and efficient way to proceed. The Commissioner’s view on the subject is as follows:

1.Proceeding by way of conference may be most efficient and effective, IF

a.Mr Cai does not seek to cross-examine the Respondent’s witnesses and accepts their written statements as factually correct, AND

b.The Respondent either does not seek to cross-examine Mr Cai or Ms Deacon OR seeks cross-examination only in respect of a limited set of factual disputes (which would need to be identified in writing at the start of the proceedings).

2.If agreement on the above matters is not achieved, then it would be most efficient and effective to proceed through way of a hearing, which necessarily would take longer and require cross-examination of some or all witnesses.

Your views on the subject are sought before the Commissioner determines the format of the proceedings, as are those of the Respondent, which is on notice on the subject through this correspondence.”[13]

In response Serco submitted through Ms Fisch that it considered a hearing would be most efficient:

“The Respondent considers that a hearing would be the most effective and efficient way to resolve this matter as there are a number of contested facts in relation to the matter. The Respondent would like to have the opportunity to cross examine both the Applicant and his witness, Ms Deacon (if the Applicant wishes for her evidence to be taken into account) and have the ability to provide submissions in relation to the matter.
The Respondent does not consider any further conciliation or conference will resolve the matter given that the previous conciliation(s) before the Commission have not resulted in any resolution between the parties. The Respondent has already made arrangements for its witnesses to be available and to attend at the hearing. In the circumstances, the Respondent wishes to proceed with the hearing as scheduled.”[14]

Mr Cai also responded, submitting that he could attend for two hours only:

“2. Related to the time frame of hearing, I recalled you sent me the email to get the view on it. I said I would request for two hours and didn't get a response after that. The full day arrangement was not mentioned on the Notice of Listing on March 9.
I have planned for two hours hearing prior the email received yesterday. I respectfully request I can attend the hearing for two hours. Apart of the health concern, I also need the time to prepare my interviews.
If the hearing is longer than two hours, my son Jeffrey can write down the notes and questions on my behalf. We can also communicate via the email. You may arrange another hearing if there is a real need.
I disagreed this and quoted, "The proceedings duration can be shortened if you agree the Respondent’s witness statements or parts of them are factually correct." These are two different parts and they shouldn't be linked together.”[15]

Mr Cai also submitted in the same correspondence that an anti-bullying application he had brought to the Commission in 2022 prior to being dismissed “should be linked … because they are directly related”.

After taking these matters into account as well as the short submissions of each on the subject at the start of 23 March 2023 I advised the parties the matter would proceed by way of hearing. This was because of a high level of uncertainty on my part as to the Applicant’s case, Serco’s opposition to me proceeding without the need for cross-examination of Mr Cai and his witness, Ms Deacon, and because the communications of each party did not suggest the matter would be capable of proceeding with the intention of a mutual, low conflict and non-adversarial discussion of the facts that required determination.

Having done so I confirmed to Mr Cai that he needed to ask Serco’s witnesses questions if he had any and that he would need to be available for cross-examination from its lawyer.

I also asked Mr Cai whether he had made arrangements for the attendance of his psychologist, Ms Deborah Deacon, on behalf of whom Mr Cai submitted a short witness statement in his material filed on 21 December 2022.

Mr Cai was unrepresented in these proceedings. He refused to allow cross-examination of himself by the lawyer for Serco, Ms Fisch, despite being directed to do so by me, and he declined to cross-examine any of Serco’s witnesses.

Since no application was made in the course of the hearing by Serco to dismiss Mr Cai’s application pursuant to s.399A for failing to comply with the direction I gave him to answer questions from Serco’s lawyer in cross-examination I have not determined these matters under that section.

The matter has instead been decided by me in accordance with the criteria for establishment of unfairness set out in s.387 of the Act after considering the written submissions and witness statements filed by each party, as well as the matters referred to in the short hearing conducted by me on 23 March 2023. Despite the problems that conceptually arise from Mr Cai refusing to comply with a direction to answer questions in cross-examination and declining to ask questions of the Serco’s witnesses there is little in the way of direct contradiction between Mr Cai’s case and the evidence put forward by Serco’s witnesses in their written witness statements. After consideration of these factors and other relevant considerations I find for the reasons set out below that Mr Cai was not unfairly dismissed.

Employment background

Mr Cai was employed by Serco between 22 February 2019 and 12 October 2022. In the first part of his employment, until 13 May 2021 he was employed as a casual employee and in the second part, between 16 May 2021 and 12 October 2022, he was employed part-time.

In all cases where this decision quotes from documents before the Commission the spelling and syntax of the quotation is as set out in the original document.

Mr Cai was employed as a Customer Services Employee working in association with Serco’s contract with the Australian Taxation Office and was one of about 318 Customer Contact Officers (CCO) at the ATO’s Whitehorse Road, Box Hill office. Subject to working from home arrangements during the COVID – 19 Pandemic, Serco’s services were provided at the ATO’s offices. Ms Carolyn Long, Serco’s Contact Centre Manager provided the following context to Mr Cai’s work in her written witness statement:

“12. CCOs are trained in a range of ATO skill sets and are primarily responsible for providing customer service to customers via inbound and outbound telephone calls, responding to queries regarding their skillset and from time to time undertaking correspondence work, i.e. processing online forms or enquiries through various ATO portals. …
13. The Applicant was initially trained in Individual Income Tax Skills and Business Skills or Business Tier 1 for inbound teleph0ne and was most recently trained in Superannuation Tier 1 for inbound telephony, which he commenced taking inbound calls in this skill on 1 October 2019.”[16]

Mr Cai’s case includes the following:

In July 2020 he contracted COVID – 19 which he says was contracted at work.[17] The effects of the illness on him were severe and long lasting and required a visit to hospital.[18]

The effects of the COVID – 19 illness continued even to April 2022, with him putting forward to Serco as part of the disciplinary process then underway his need “to take a personal care approach to manage my health in this stressful covid period”.[19] He submitted he said similar things to Serco in unspecified meetings rejecting the contention he was engaging in misconduct:
“1. As I told them in the meetings, it’s not misconduct related to repeated excessive breaks. I had been trying to use a self management approach to cope with the post covid trauma in terms of elbow, arm and back pain, headache as well as mental stress after I caught the virus at the work site.
2. I told former team leaders Caitlin and David, I could improve as long as I got the pain under control. I provided GP certificates with two extra breaks recommendations. I also offered my own time for extra breaks on my cost in my emails to Caitlin.”;[20]

Other medical conditions and/or other stressors contributed to his work performance, namely elbow, arm and back pain, headache as well as mental stress.[21]

After becoming alert to what it perceived as a problem with Mr Cai’s work performance Serco put in place a process to draw its concerns to his attention and seek remedial action. The concerns identified by Serco went to matters of Mr Cai’s adherence to its key performance indicators for staff in positions such as his.

There were the following relevant developments associated with Serco’s performance management of Mr Cai and his eventual dismissal:

Between 22 December 2021 and 23 February 2022 – there were several meetings with his Team Leader, described as “informal catch up sessions”. In two of these sessions Mr Cai was asked why his “breaks are almost double the expectations”;[22]

15 March 2022 – a First Written Warning was issued to him, which followed a formal meeting held between Mr Cai and two managers on 9 March 2022. The notes prepared for conducting the formal disciplinary meeting focused on Mr Cai’s “extended lunch and excessive work breaks during your rostered shifts”, with it being planned to put to him that he had “demonstrated call and work avoidance”.[23] The First Written Warning went further than these planned discussion points, elaborating with reference to the meeting on 9 March 2022:
“The purpose of the meeting was to address the following concern of underperformance and misconduct:
1. It had been identified between December 2021 – February 2022 you had taken extended lunch and excessive work breaks during your rostered shifts
2. It had been identified that between 23 February 2022 – 08 March 2022 you had demonstrated call and work avoidance. Specifically, there had been recorded 28 instances where you took extended break 2’s and lunches and for up to 20-25 minutes for break 2’s and 45-49 minute lunches at a time. This is after having had three conversations about the issue. This has also been the trend identified across December and January.
3. It has been identified that you have failed to adhere to meet minimum performance expectations as of repeated behaviour.
a. Informal discussion – 22 December 2021
b. Informal discussion – 27 January 2022
c. Informal discussion – 23 February 2022”.[24]

The warning put in place a Performance Improvement Plan and cautioned Mr Cai that:

“Failure to improve and meet the requirements of the performance improvement plan may result in further disciplinary action, up to and including the termination of your employment”[25]

Between March and April 2022 the “Coaching conversations” with Mr Cai’s Team Leader continued, however now as part of the Performance Improvement Plan which arose out of the First Written Warning;

29 June 2022 – a disciplinary meeting was held;
4 July 2022 – the disciplinary meeting was followed by a Final Written Warning being issued to Mr Cai. The Final Written Warning traversed similar ground to the earlier First Written Warning issued on 15 March 2022, however dealing with four specific allegations covering different date ranges:[26]

· Allegation 1 – Between 16 May 2022 and 15 June 2022 Mr Cai is alleged “to have taken extended morning breaks, also known as ‘Break 1’ greater than the maximum allocated break time of 10 minutes”, specifying the dates and length of the extended break for 20 such occasions;

· Allegation 2 – Between 16 May 2022 and 15 June 2022 Mr Cai is alleged to “have taken extended lunch breaks, also known as ‘Meal Break’ greater than the maximum allocated time of 30 minutes” specifying the dates and length of the extended break for 20 such occasions;

· Allegation 3 – Between 16 May 2022 and 15 June 2022 Mr Cai is alleged “have taken extended morning breaks, also known as ‘Break 2’ greater than the maximum allocated break time of 10 minutes” specifying the dates and length of the extended break for 18 such occasions, and

· Allegation 4 – An allegation that Mr Cai’s “behaviour is now a result of repeated behaviour, despite being provide previous formal and informal warning”, making reference to the 15 March 2022 written warning and the “File note discussions” of 23 February 2022 and 27 January 2022 and 22 December 2021.

Between July and August 2022 – the coaching sessions with Mr Cai’s Team Leader continued;

8 September 2022 – Serco suspended Mr Cai pending a meeting with him to take place the following day at which he would be expected to respond to five specific allegations about his work performance (set out within a letter entitled Invitation to Disciplinary Meeting). The date ranges of the first three allegations differed from those previously put forward; the fourth allegation was reframed to refer to Mr Cai’s performance against Serco’s average handling time requirements and a fifth allegation was put to him, dealing with a failure to provide evidence supporting two absences from work in September.
Serco also cautioned Mr Cai that after receiving his response it would confirm arrangements to decide the outcome of its allegations which may include disciplinary action, up to and including the termination of his employment.[27]

On 9 September 2022 Mr Cai attended a meeting with Serco in which he provided a response to its allegations (referred to as the September Disciplinary Meeting). Serco’s notes of the meeting record Mr Cai’s responses being founded on his medical conditions as well as extending his suspension from work until 12 September 2022:[28]

Allegation 1 – that between 5 July and 19 August 2022 Mr Cai took “extended morning breaks, also known as ‘Break 1’ greater than the maximum allocated break time of 10 minutes” on 33 occasions, the notes of the meeting taken by Mr David Morrissey, Team Leader of the meeting attended by him and Mr Chris Maassen, Serco’s Operations Manager, included:

“I believed this was in the work plan but the previous TL did not mention this and told to get doctors advice. Workplace did not get any medical information to support this – I work hard I get exhausted. First time trying to book medical place was booked out for two weeks as two staff members were away with covid.
Chris queried work plan?
Joe believed he was on a work plan for his Medical condition.”

Allegation 2 – that between 5 July and 19 August 2022 Mr Cai took “extended lunch breaks, also known as ‘Meal Break’ greater than the maximum allocated time of 30 minutes” on 32 occasions, the notes of the meeting record Mr Cai as having responded:

“Same as above – explain similar. Doctors also suggested, work very hard under stress. Try my best. At the time I tried to, kind of. Sometimes okay. Elbow arm?
customer one. Long call or angry customer. Migraines, tried to take personal care approach.
Beyond my control. I try my best. System issued when logging back in. or need to wait. Didn’t report the system issue. Don’t call the sick line as its very short times”.

Allegation 3 – that between 5 July and 19 August 2022 Mr Cai took “extended morning breaks, also known as ‘Break 2’ greater than the maximum allocated break time of 10 minutes” on 33 occasions, the notes of the meeting record Mr Cai as having responded:

“Umm, similar thing as the first one and second one. Eye sight blurry, injury – don’t want to work cover do that to business. Eye sight strain from computer – when looking at something else its blurry – feels like migraine.”

Allegation 4 – that between May and July 2022 Mr Cai is alleged to have failed to meet the Average Handling Time (AHT) requirement of -2.5% /+ 2.5%, with a score in May of 81.15%; June of 78.14% and in July 2022 of 82.01%, Mr Cai is recorded as having responded:

“Not sure about that, I focused on medical symptoms. Was stressful and pain. Mainly we focused on the excessive breaks during coaching. Could have improved this.”

Allegation 5 – dealing with an allegation that Mr Cai failed to provide medical evidence to support his absence from work on 6 and 7 September 2022, Mr Cai is recorded as having responded:

“I tried to provide to him, but this is the same thing. I provided a certificate later for these periods late yesterday afternoon.”

Mr Cai says about the September Disciplinary Meeting that he wanted to have a support person in attendance, Ms Deacon, however this was refused.

On 14 September 2022 Mr Cai was notified in writing by Serco in a Show Cause Letter that it had considered his responses together with all other matters and considered all five allegations were substantiated, holding the view this constituted a breach by Mr Cai of its Code of Conduct and that it sought him to show cause as to why his employment should not be terminated as a result. Mr Cai was directed to attend a meeting to answer these matters on 19 September 2022, as well as communicating the substance of the meeting, being “for the purpose of providing a response and making submissions in relation to viability of your ongoing employment with the business. Any views or submissions you make will be considered, prior to a final decision being taken”.[29] The correspondence continued Mr Cai’s suspension to the end of 20 September 2022.

Mr Cai did not attend the Show Cause Meeting scheduled for 19 September 2022, advising he was unwell and also did not attend the meeting when it was rescheduled to 20 September 2022.[30]

The Final Written Warning, Invitation to a Disciplinary Meeting, and the Show Cause letters were authored by Mr Maassen, against whom Mr Cai commenced an anti-bullying application in the Commission on 19 September 2022.

On or around 20 September 2022 Mr Cai commenced an appeal under Serco’s internal “Fair Treatment and Grievance Resolution SOP” which was assigned to Serco’s Employee Relations Specialist, Matthew Schembri. The internal appeal sought to address Mr Cai’s concerns about the First Written Warning, issued on 8 March 2022, and the Final Written Warning, issued on 27 June 2022. Mr Schembri’s witness statement records that the applications were made by Mr Cai “84 days outside of the SOP requirement” but that Serco resolved to accept the request for appeal nonetheless.[31] Mr Schembri’s witness statement notes that Mr Cai “failed to provide specific detail around the reasons or grounds for why he wished to lodge an appeal, other than stating the process was not fair and general comments around his health concerns not being accommodated”.[32] He found as a result of his review that “the outcomes undertaken in relation to the Applicant’s employment were fair and justifiable. I found that the Applicant’s appeal was unsuccessful, that due process had been provided to the Applicant and that the previous disciplinary outcomes that had been reached (i.e. the two written warnings) were fair”.[33] Mr Schembri wrote to Mr Cai to advise his findings and then called him on 4 October 2022:

“11. … The Applicant re-stated many of his grievances in an incoherent manner and stressed that the show cause process should not continue. I stated I would consider any final additional information which the Applicant wished to provide and had not done so already.
12. From 29 September 2022 to 7 October 2022, the Applicant sent through a number of emails responding to his appeal with further background to support his appeal.
13. After conducting a secondary review and considering the additional information provided by the Applicant, I subsequently confirmed in an email on 7 October 2022 to the Applicant, that the outcome of the appeal remained unchanged and was now concluded. Further I confirmed again that there were no findings of unfairness and that the evidence indicated that the Applicant had repeatedly breached client and Serco policies and procedures and his conduct had not improved despite the various steps taken. …
14. The Grievance SOP provides no further internal mechanism for review of the appeal process.
15. Following that email, I had no further interaction with the Applicant.”[34]

The material provided in Mr Schembri’s witness statement includes several references from Mr Cai to him either being under a work plan or wanting a work plan. When he commenced the appeal, he stated Ms den-Bakker had proposed a work plan, but that Mr Morrissey “David didn’t mention this type of form in coaching or discussions. He did mention kind of of performance plan. He's emphasising and encouraging progress and improvements. I felt positive and thought the issue was over and I was on a work plan”.[35] After the results of the secondary review were communicated, he stated:

“As we all worked from home and communicated via Jabber and phone while I put customers on hold, sometimes could be a long call and difficult one. I only used the ATO email box and didn't open my private one while I worked. If team leaders don't arrange time for these important matters and communication, it's not practical for me to follow up provided those medical symtoms still exists.
That's the reason why I have had the belief I have a work plan for a few months. In my view the work plan should be discussed and implemented in the second meeting or the third meeting afterwards instead of warning letters”.[36]

As a result of Mr Cai’s anti-bullying application to the Commission, which referred to Mr Maassen, Ms Long took over dealing with Mr Cai’s case, advising him in writing that notwithstanding his illness Mr Cai still needed to respond and Serco still needed to proceed to determine an outcome for its disciplinary process. In this regard Ms Long wrote to Mr Cai on 20 September 2022 setting out these matters:

“Hello Joe,
I am writing you in regards to your ongoing Show Cause process.
I am aware that you informed the business today that you were unable to attend your scheduled show cause meeting for the second consecutive day as you are unwell and moreover that your partner has now contracted COVID and as a result you also have caring responsibilities. The business understands this and due to this change in your circumstances we are happy to forgo requiring you to attend in person for your show cause meeting.
However the business does still need to proceed with this process to reach an outcome and as such we instead require that you please provide a written response to show cause as to why your employment should not be terminated by close of business next Wednesday the 28th of September 2022 in line with the details set out in the letter of 14th September 2022.
Please also provide any other supporting evidence, documents or materials that you would like the business to consider by this time also. If during this period you and your partner become well again and you would like to have an in person meeting to provide oral submissions also, please let me know and this can be arranged as well.
As your suspension will lapse at close of business today and you have indicated you are not fit for work at this time, you will now be placed onto personal leave, until such time as you inform us that you are fit to attend work again. In the meantime we will require you to provide supporting evidence for your period of personal leave in line with Serco’s Leave SOP.
I can also confirm that having received a stop bullying order application from the Fair Work Commission today in regards to Christopher Maassen, that he will now step aside from this process and I will step into his place to oversee and act as the decision maker in this process moving forward to ensure a fair and just process for all participants in the circumstances.
Please let me know if you have any questions or concerns.
Kind regards
Carolyn Long
Contact Centre Manager”.[37]

Further correspondence was sent to Mr Cai by Ms Long on 7 and 10 October 2022, with the latter inviting Mr Cai to attend a Show Cause Meeting on 11 October 2022. Mr Cai did not attend the meeting on 11 October 2022, after which Ms Long wrote to him again reminding him of the seriousness of the matters she needed to determine:

“Dear Joe
We refer to the ongoing Show Cause process and previous invitation to Show Cause correspondence. We directed you to attend a meeting today to further discuss the process and provide you with a final opportunity to provide any additional responses or materials for the business to consider in this matter, prior to making a final decision. We note that earlier today you contacted your Team Leader to advise that you were unwell and would not be attending the meeting. You also acknowledged that the business could make a final decision in relation to your employment in your absence. In the circumstances, the business will provide you with a final opportunity to provide any additional responses or materials you would like us to consider prior to making a final decision. Any such response or materials must be provided in writing to me no later than 3 pm tomorrow, 12 October 2022. Please be aware that this is the final opportunity to provide further information and that if you choose not to do so a final decision will be made tomorrow afternoon on the basis of the information currently available to the business.
We understand that this may be a difficult time and remind you that confidential support and counselling is available to you free of charge by calling our Employee Assistance Provider (EAP) Converge on 1300 687 327. This service is available to you and your family members.
Carolyn Long
Contact Centre Manager”.[38]

Mr Cai responded to this correspondence on 12 October 2022 in an email to Mr Morrissey. Amongst other things he disputed Ms Long’s assertion that he had acknowledged to Mr Morrissey that Serco could make a final decision in relation to his employment in his absence:

“Hi David,
Further to our conversation yesterday, I have forwarded the doctor certificate for your records and I will be on stress leave from Tuesday to Friday.

I also copied Carolyn's email yesterday as following for you in which I highlighted and quoted, " You also acknowledged that the business could make a final decision in relation to your employment in your absence".
I didn't say that and I would never say that. I don't know where and whom Carolyn got this from.
Everything and discussions must be done via the emails with my consent including my name, signature, date and time, contents with the correct subject line.
It's crystal clear that there's miscommunication and misunderstanding from May to September, 2022 after Caitlin left the team and didn't follow up with me. I had difficulties to book doctor appointments at the time and a belief and impression that I was on a work plan. The due date of May 16 for the medical form to be submitted had elapsed.
As the matter and current process severely affects my health and wellbeing, I would like to request the management to resume my work immediately and restart the work plan in May outlined by HR and approved by all parties.
I will keep my rights and take whatever necessary steps to pursue a fair and justified resolution.
Kind regards,
Joe Cai
Customer Service Representative
Service Delivery
Australian Taxation Office”.[39]

In addition to this email, Mr Cai also provided to Serco a letter from his psychologist, Ms Debra Deacon which set out a number of matters about Mr Cai, including that she recommended leave be given to Mr Cai between 11 and 14 October 2022:

“To Whom It May Concern
RE: JOE CAI
I advise that Mr Joe Cai has been attending psychological support and treatment via the Employee Assistance Program. Mr Joe Cai reports experiencing elevated stress due to a series of workplace pressures as the result of pending workplace decision.
Mr Joe Cai reports sleeping difficulties owing to ruminating about work and upcoming work hearings. This renders Mr Joe Cai tired and exhausted, experiencing stress headaches and adversely affects his concentration and processing capabilities.
It is my professional opinion/recommendation that Mr Joe Cai be afforded time off for stress leave for the next four business days commencing on Tuesday 11th October until the end of business on October, Friday 14th, 2022.
Should you need clarification please do not hesitate to contact me on the above.
Yours sincerely
Debra Deacon
Registered Psychologist”.[40]

As set out in Ms Long’s 11 October 2022 email to Mr Cai, she asserts that earlier that day Mr Cai “contacted your Team Leader to advise that you were unwell and would not be attending the meeting. You also acknowledged that the business could make a final decision in relation to your employment in your absence”. Mr Morrissey’s evidence though does not deal with this matter with his narrative ending on or around 20 September 2022.

Serco proceeded to dismiss Mr Cai through a letter dated 12 October 2022 and with immediate effect. Because of its length the full letter is not reproduced here, however, as indicated in the last paragraph of the following, Serco’s reasons for Mr Cai’s dismissal are those set out in the 14 September 2022 show cause letter, the relevant part of which is set out above:

“Dear Joe,
SHOW CAUSE OUTCOME – TERMINATION OF EMPLOYMENT
We refer to our Disciplinary letter Outcome and Request to Show Cause dated 14 September 2022 and our letter to you dated 11 October 2022.
The purpose of that letter was to confirm our decision in relation to the Allegations put to you in our Invitation to Disciplinary Meeting Letter on 8 September 2022. The decision considered the responses you provided in the formal meeting you were invied to per our letter on 7 October 2022.
As outlined in your Outcome and Invitation to Show Cause Letter dated 14 September 2022, all allegations against you were substantiated and as a result of this outcome, we informed you that Serco was seriously considering termination of your employment. Consequently, we invited you to attend a Show Cause meeting prior to a final decision being made. Following this, you failed to attend the Show Cause meeting scheduled for 19 September 2022 and rescheduled on 20 September 2022 as you needed to take Personal Carer’s/Sick Leave to attend to your wife who contracted Covid-19. On 20 September 2022, we wrote to you and extended the period to provide a Show Cause response by close of business 28 September 2022 and provided you with the opportunity to respond in writing given the circumstances. A further meeting was was scheduled to be held on 11 October 2022. We note that you did not attend the meeting and advised your Team Leader that you were unwell on the day. Following this, Serco provided you with a final opportunity to respond to the latters set out in your Outcome and Request to Show Cause. On 12 October 2022 you provided us with your response via email and attached a letter from a psychologist in relation to your current medical condition.
We have now considered the views you shared in response to the Show Cause letter along with all other relevant materials. In particular we have considered your additional feedback in regards to allegation 5 pertaining to your failure to provide a medical certificate for personal leave in line with the Leave SOP and although this allegation was factually substantiated it has not been weighed against you in the these circumstances.
Unfortunately, having considered all the relevant materials, the business has decided to terminate your employment effective immediately. The reasons for termination of your employment remain as outlined in our Show Cause Request Letter dated 14 September 2022 specifically that;
[remainder omitted]”.[41]

The omitted text particularises Serco’s findings on 4 allegations, the relevant extracts of which are set out below:

“1. Between 5 July 2022 – 19 August 2022 you on many occassions took extended morning breaks, also known as ‘Break 1’ greater than the maximum allocated break time of 10 minutes.” (then specifying 33 dates and durations of absence);
“2. Between 5 July 2022 – 19 August 2022 you on many occassions took extended lunch breaks, also known as ‘Meal Break’ greater than the maximum allocated time of 30 minutes.” (then specifying 32 dates and durations of absence);
“3. Between 5 July 2022 – 19 August 2022, you on many occassions took extended morning breaks, also known as ‘Break 2’ greater than the maximum allocated break time of 10 minutes.” (then specifying 33 dates and durations of absence)
“4. During May 2022 – July 2022 it is alleged that you failed to meet the Average Handling Time (AHT) of -2.5% /+ 2.5% and that your AHT, as set out below, was significantly above the required handling time without any reasonable explanation.
Specially:
May 2022 = your AHT was 81.15%
June 2022 = your AHT was 78.14%
July 2022 = your AHT was 82.01%”

The correspondence also took account of the warnings given to Mr Cai:

“We also note the two previous warnings you have received for similar past conduct in regards to extended unathorised breaks and that your conduct failed to improve following those warnings.”

The termination letter did not state as a ground for termination the fifth allegation dealt with in the show cause letter, alleging Mr Cai had failed to provide medical evidence to support his absence from work on 6 and 7 September 2022. However, he provided an explanation in the 9 September 2022 meeting that he had provided a certificate to Serco the previous day which is supported in the evidence before me.

CONSIDERATION – WHETHER DISMISSAL UNFAIR (s.387)

In order to determine the application, it is necessary to consider its merits in the manner set out in s.387, the provisions of which section are 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 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.”

Determination of whether the dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account. The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way:

“The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

· a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced;[42]

· a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour);[43]

· it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal;[44]

· the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss[45] (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

· the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct).[46]”[47] (original references)

A dismissal is unfair in the case of a person protected from unfair dismissal, dismissed by the employer which is not a small business employer and for reasons other than genuine redundancy, if it was harsh unjust or unreasonable, taking into account the criteria within s.387.

I will deal with each of the criteria within s.387 in turn.

(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)

To be a valid reason the reason must be “… sound, defensible or well-founded.” A reason which is “… capricious, fanciful, spiteful or prejudiced …” cannot be a valid reason.[48] The reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.[49] The valid reason for termination is not to be judged by legal entitlement to terminate an employee, “… but [by] the existence of a reason for the exercise of that right” related to the facts of the matter.[50] Ascertainment of a valid reason involves a consideration of the overall context of the “practical sphere” of the employment relationship.[51]

It is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”[52] However, the Commission “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”[53]

Serco’s case is that Mr Cai’s performance was inadequate over a long period of time and that despite counselling and warnings Mr Cai did nothing or took insufficient steps to improve his performance.

The process of counselling and warnings are set out above, noting that the date ranges referred to have moved since the disciplinary management process started. The themes for which Mr Cai has been counselled have largely been similar – taking too long away from work during the “Break 1” and being absent for too long after taking “Break 2” and taking extended meal breaks. Serco’s discussions with Mr Cai referred to “the impact of the Applicant’s underperformance on the ATO contract”.[54]

Mr Cai’s response to these matters has been to argue that he had health problems which impacted his functioning in different ways. At various times Mr Cai argued that this had been caused by a COVID-19 infection or its sequelae. At other times he referred to medical symptoms without specifying the cause or allowing Serco to scrutinise the detail of his health situation or what may be professionally advised.

Mr Cai contracted COVID-19 in or around July 2020[55] and was sufficiently ill to seek treatment at a hospital, with him being taken by ambulance to Box Hill Hospital. Ambulance Victoria invoices tendered by Mr Cai record he was taken to hospital on 27 July 2020 and returned home the same day.

“Informal catchup conversations” commenced with Mr Cai and his team leader in December 2021, more than 16 months after his COVID-19 illness. By 8 March 2022 Mr Cai had raised “potential health concerns”.[56]

On 18 March 2022 Mr Cai had explained to Serco he was experiencing health issues and that while he had not obtained GP advice about his health he had seen a psychologist.[57] Following this Serco suggested to him a “Stay at Work Plan” which involved Serco “seeking a medical release authority from the worker to write to their medical practitioner in order to obtain a detailed understanding of the workers' capacity to perform their role and any support or accommodation the Respondent can provide them through the process to assist them in being able to fully perform the requirements of their role”.[58]

The information that was proposed to be the subject of consent from Mr Cai for provision to Serco was general, but subject to any limitation he placed on its release:[59]

“MEDICAL RELEASE AUTHORITY
I, .…………………………………… consent to the release of written or verbal medical information relevant to my injury / illness to Serco, for the purpose of managing my workers
compensation claim / non-work related medical condition / safe work capacity.
I also consent to Serco releasing written or verbal information relevant to my injury / illness to third parties (including but not limited to other treating or independent health and medical practitioners, rehabilitation providers and insurers) for the purpose of managing my workers compensation claim / non-work related medical condition / safe work capacity.
*My consent for exchange of my information as detailed above, is limited to the following injury/condition(s):
…………………………………………………….....................................................”

Serco communicated with Mr Cai about the plan between 23 March 2022 and 4 May 2022, however Mr Cai did not take up the opportunity to participate in a “Stay at Work Plan”. Mr Morrissey’s witness statement puts forward that he returned to the subject of a Stay at Work Plan when he called Mr Cai to advise he would be providing him with the Final Written Warning, stating:

“I called the Applicant on 4 July 2022 to advise him of the Final Written Warning being issued. I recall advising the Applicant with words to the effect of "while there are no pre-determined outcomes and I cannot advise of what the next step would be, as this is a final written warning, it does require you to meet the appropriate break requirements." I recall the Applicant mentioning that his physician previously advised that additional breaks are required. I said to him words to the effect of, "a Stay at Work Plan does require documentation to justify it and I am aware that a previous Stay at Work Plan was mentioned before and that you declined to provide any of the documents previously." I did not receive any documentation or medical certificates from the Applicant and he did not request a Stay at Work Plan.”[60]

Although he accepts that he did not participate in a Stay at Work Plan, he attributes this to fault on the part of Serco, not him, saying that his team leader “Caitlin left in May and didn’t follow up with me or passed the forms and info to new team leader David”.[61]

The material provided by the parties contains the following about Mr Cai’s medical conditions:

27 July 2020 – Mr Cai was taken by ambulance to the Box Hill Hospital and returned home the same day. Mr Cai states he contracted COVID-19 at his work site in July 2020.[62]

27 January 2022 – Ms Caitlin den-Bakker, his Team Leader, records in notes taken by her that Mr Cai said in an Informal Catchup Conversation there were health issues impeding him from performance:

“Advised him based on the adherence report again with the extended lunches and breaks that there will now be a meeting with HR about the issue. At this he then for the first time mentioned he thinks his shoulder and elbow are feeling a bit sore and maybe worsening apparently. Also feeling stressed about COVID and this is part of why he takes long breaks. Asked if that can be addressed first before the meeting with HR, sounded a bit anxious and talking very fast. I asked if he has spoken to a doctor about any of this yet or tried to help these issues himself and apparently he has not done that yet.”[63]

9 March 2022 – the notes of the warning response meeting record Mr Cai as having responded to the first allegation concerning extended lunch and excessive work breaks that he had seen a psychologist in December and “Back is kind of pain from stress and elbow right arm sore. Try to relief anxiety I tried to hold on and cope by myself”.[64] Mr Cai then said in response to the second allegation dealing with “demonstrated continued call and work avoidance” between 23 February 2022 and 8 March 2022:
“I am trying psychologist and doctor very hard to get appointment seeing psychologist more from December but the issue started in July 2020 when got covid19 at Serco and counselling. Seeing psychologist kind of stopped and didn’t want more sessions right now.”[65]
In response to a question about how he could be supported in improving his behaviour, Mr Cai is recorded as having said the following, as well as having committed to speaking further with his psychologist and obtaining more information when he saw his doctor:
“Would like break times and lunch times longer
Sometimes to pray
Feel peace and harmony not enough time.”[66]
18 March 2022 – Mr Cai’s response to the first written warning letter provided to him he said to Serco was to put forward that it was unfair, especially given the state of his health:

“I felt that it’s rushed and unfair because there's misinformation and misunderstanding. Also I have been trying to take a personal care approach to manage my health in this stressful covid period. I haven’t got the GP advice at the time we discussed. I used my personal time to see a psychologist and didn’t take any sick leave.
In light to the three allegations, the meet and doctors information you requested, I have outlined following points:
1. I went to see a doctor today and he said it’s an elbow muscle issue and a current along the arm. He suggested the elbow support and I could take two more breaks to relieve elbows and arms, one in the morning and one in the afternoon instead of longer breaks.

…
Based on the doctor's recommendation, I would like to request two extra breaks, each ten minutes to be put on my shift as we all know health is the most important thing. The cost is bound to me. I believe I can make progress on the adherence next month.”[67]

21 March 2022 – Mr Cai provided a medical certificate to Serco which certified him as unfit for work on 18 March 2022 for reason of “a medical condition”.[68]

6 September 2022 – Mr Cai left a voicemail for his Team Leader, Mr Morrissey advising that he would not be attending work that day owing to stress associated with the invitation to attend a disciplinary meeting sent on 5 September 2022. The voicemail records the following comments about Mr Cai’s health:
“The Agent has advised they have been significantly affected by COVID, which has led to further stress that has been compounded these last couple of years. The Agent advised they contracted COVID in July 2020, which I confirmed I was aware of. The Agent stated that an ambulance had to be called for them and they believe they almost passed away due to breathing issues, though they were grateful for the care showed by Serco in organising the ambulance. The Agent further advised this caused a strain in his familial relationships with his spouse and son, and the stress from performance
management has made this worse”.[69]

5 September 2022 – Mr Morrissey records that when he spoke with Mr Cai the same day about Serco’s request of the latter that he attend a disciplinary meeting on 5 September 2022 that Mr Cai raised his health as being a reason he was not achieving the company’s performance benchmarks. The file note is ambiguous as to whether the following were matters discussed in the 5 September conversation or whether they were from earlier discussions:

“Further notes on the record indicate that on 04/08/2022 I did mention that there had been some improvement to Availability, but they needed to focus on their break times, and that on 16/08/2022 it was documented that they were again reminded to improve their break times to meet expectations. Have advised the Agent that the excess break time for the period 05/07/2022 - 19/08/2022 does indicate that the equivalent of two working days has been spent in excess break time. The Agent advises the excess break time is required to prevent further injury to their elbow. The Agent advises they do not want to attend the meeting on 06/09/2022, and would prefer it if they could go on to a performance improvement plan, whereby they were provided with two additional unpaid breaks a day. The Agent states they have doctor's notes to this affect, and they have provided this to their previous TL.”

6 September 2022 – Ms Debra Deacon, a psychologist provided a letter of that date advising she had seen Mr Cai as part of Serco’s employee assistance program, advising so far as is pertinent that “Mr Cai was assigned six appointments which he has utilised, commencing on the 15th December, 2021 until 16th February, 2022. All sessions were via telehealth modality.”[70]

8 September 2022 – Mr Cai forwarded a medical certificate to Serco dated 7 September 2022 stating that he “is being treated for a medical condition” and is “unable to work/study” for the period 6 September to 7 September 2022 inclusive.[71]

9 September 2022 – in the course of the September Disciplinary Meeting with Mr Maassen and Mr Morrissey, the latter records Mr Cai putting forward in response to the first allegation, that he took extended “Break 2” morning breaks:

“I believed this was in the work plan but the previous TL did not mention this and told to get doctors advice. Workplace did not get any medical information to support this – I work hard I get exhausted. First time trying to book medical place was booked out for two weeks as two staff members were away with covid.
Chris queried work plan? Joe believed he was on a work plan for his Medical condition.”[72]

11 October 2022 – Mr Cai provided a letter of that date from Ms Deacon who stated the following:

“I advise that Mr Joe Cai has been attending psychological support and treatment via the Employee Assistance Program. Mr Joe Cai reports experiencing elevated stress due to a series of workplace pressures as the result of pending workplace decision.
Mr Joe Cai reports sleeping difficulties owing to ruminating about work and upcoming work hearings. This renders Mr Joe Cai tired and exhausted, experiencing stress headaches and adversely affects his concentration and processing capabilities.
It is my professional opinion/recommendation that Mr Joe Cai be afforded time off for stress leave for the next four business days commencing on Tuesday 11th October until the end of business on October, Friday 14th, 2022.”[73]

In his written submissions to the Commission Mr Cai submitted the following as a general explanation of his circumstances and conduct:

“1. As I told them in the meetings, it’s not misconduct related to repeated excessive breaks. I had been trying to use a self management approach to cope with the post covid trauma in terms of elbow, arm and back pain, headache as well as mental stress after I caught the virus at the work site.
2. I told former team leaders Caitlin and David, I could improve as long as I got the pain under control. I provided GP certificates with two extra breaks recommendations. I also offered my own time for extra breaks on my cost in my emails to Caitlin.”[74]
and
“1. I have been trying my best to cope with the post covid trauma. I used my time to see a GP and psychologist. Overall my attendance was excellent.
2. Looking at the latest incident in July and August, I was on the way to improve provided there’re system issues after I locked back in from the breaks. Also my voice was gone after a long call or difficult call. My eyesight was blurry after looking at computer for a long time.
3. I had passed all quality assessments and constantly contributed to the team.”[75]

With reference to discussions with “Chris”, whom I take to be Mr Maassen, Serco’s Operations Manager, Mr Cai states:

“1. Operation manager Chris refused to reschedule the discretionary meeting and didn’t allow me bring my support person
2. I have been under medical condition in terms of physically and psychologically as I caught the covid virus at the work site and was sent to a hospital by emergency. I have still suffered from the post covid trauma and been seeing doctors and psychologists.
3. Chris said he knew these from the minutes. He signed and sent out the final warning letter after the second meeting held by new team leader David. He didn’t attend this meeting or had a conference with me.”[76]

Ms Deacon’s unsigned witness statement, dated 20 December 2022 more than 2 months after his dismissal, gives the following illumination of her understanding of Mr Cai’s condition:

“In sessions it was noted that Mr Joe Cai was experiencing elevated stress due to a series of workplace pressures. He also referred to a physical condition that warranted extra time away from his assigned duties. Please refer to correspondence from Mr Joe Cai’s treating General Practitioner (GP) for additional information regarding his physical condition as this is beyond the professional expertise of the writer.
Mr Joe Cai expressed a belief that the workplace issues were addressed via recommendation from his treating GP that he be afforded extra breaks to accommodate his physical condition”.[77]

Despite Mr Cai’s claims about his medical conditions he never provided evidence of any detail to Serco about the illnesses he was suffering from and never provided comprehensive advice from a practitioner about how his situation should be managed in the workplace. Such explanation or medical material he provided was general, never addressing his circumstances with sufficient detail or independent verification.

The Stay at Work Plan might have been his opportunity to allow proper scrutiny of his claims, but he avoided participating in the program and failed to return the release form. His claim that this was the fault of Serco is self-serving and not to be accepted. By the date the Stay at Work Plan was suggested to him, on or around 18 March 2022, he had been through several counselling sessions about his work performance and had been issued the First Written Warning. The warning was unambiguous about the consequences of a failure to remedy his performance – without change there may be “further disciplinary action, up to and including the termination of your employment”.[78] Mr Cai’s reliance on aches and pains as the basis of his response about poor performance featured in the parties’ discourse only from about 8 March 2022, shortly before the warning was issued.

If the impact of Mr Cai’s illnesses were real, he might reasonably be expected to have taken by both hands the opportunity put forward by Serco to participate in a Stay at Work Plan. If undertaken the plan would have likely assisted Serco to properly and medically understand Mr Cai’s health, the work limitations flowing from his conditions, and what reasonable accommodations might be offered to assist him.

If he did not see participation in a Stay at Work Plan as beneficial to him at or around the time of the First Written Warning, he could have taken the opportunity up at a later stage in the disciplinary process, which at that time still had another 7 months to run before he was finally dismissed.

If Serco really did overlook following up with him the Stay at Work Plan documents as a result of a change in Team Leader, there was nothing preventing Mr Cai from raising the subject later as he was asked time and again for his response to Serco’s claims that his performance was poor, amounted to misconduct, and could be considered as a reason for his dismissal.

Instead, the overall circumstances of the matter lean toward the view that Mr Cai did not engage with the Stay at Work Plan because it was not in his interests to do so. The fact that he did not participate or provide cogent evidence of his health conditions leans toward the likely conclusion that the symptoms he described, of the lingering effects of a COVID-19 infection, elbow, arm and back pain, headache and mental stress were low level and neither seriously impacting him nor preventing him from improving his work performance.

Mr Cai’s submissions include several references to his medical advisors suggesting longer breaks. This was mentioned in his response to Serco about the First Written Warning and in the September Disciplinary Meeting, as well as a claim that he had provided medical certificates to Serco that recommended two extra breaks.[79] The medical certificates and submissions provided to the Commission though do not support those contentions:

In his written response to the First Written Warning, Mr Cai first says “Also I have been trying to take a personal care approach to manage my health in this stressful covid period. I haven’t got the GP advice at the time we discussed” (underlining added) and then contradictorily says “went to see a doctor today and he said it’s an elbow muscle issue and a current along the arm. He suggested the elbow support and I could take two more breaks to relieve elbows and arms, one in the morning and one in the afternoon instead of longer breaks.” [80] The general practitioner could well have said those things to Mr Cai, however there is no medical certificate or correspondence before me establishing what Mr Cai alleges beyond the limited period of 21/03/2022 to 30/04/2022 inclusive.[81]

In the course of the September Disciplinary Meeting held on 9 September 2022, Mr Morrissey, the minute taker, notes Mr Cai as having first confirmed in response to a question of his understanding of the break requirements stating that “The one thing I know is that, 10 minute in morning break – 30 minute lunch and 10 minutes in the afternoon”[82] Mr Cai is then recorded as responding to the specific allegations:

oRegarding Allegation 1:
“I believed this was in the work plan but the previous TL did not mention this and told to get doctors advice. Workplace did not get any medical information to support this – I work hard I get exhausted. First time trying to book medical place was booked out for two weeks as two staff members were away with covid.
Chris queried work plan?
Joe believed he was on a work plan for his Medical condition.”[83]

oRegarding Allegation 2:
“Same as above – explain similar. Doctors also suggested, work very hard under stress. Try my best. At the time I tried to, kind of. Sometimes okay. Elbow arm ?
customer one. Long call or angry customer. Migraines, tried to take personal care approach.
Beyond my control. I try my best. System issued when logging back in. or need to wait. Didn’t report the system issue. Don’t call the sick line as its very short times.”[84]

The problem with the contention that “this was in the work plan” is that there never was one. Mr Cai had never come forward and completed the Stay at Work Plan, and there is nothing that would suggest an alternative “work plan was negotiated and in operation.

Mr Cai’s contention that “I provided GP certificates with two extra breaks recommendations” is also not supported by the evidence before me. There are medical certificates from two dates and one psychologist’s letter in the material before me:

o21 March 2022 – two medical certificates from Dr Hewavitharana certifying that Mr Cai:

§“has a medical condition and was unfit for work from 18/03/2022 to 18/03/2022 inclusive”.

§“is a patient of this clinic. He will benefit from reducing close contacts at work and working remotely if possible. Thank you for your consideration”.

§“has bilaterally forearm pains and it is recommended to get brief 10 mins beak in the morning and afternoon sessions at work and also to use voltaren topical gel from 21/03/2022 to 30/04/2022 inclusive”.[85]

o7 September 2022 – a certificate from Dr Zhou certifying that Mr Cai “is being treated for a medical condition and for the period from 6/09/2022 to 7/09/2022 inclusive. He will be unable to work/study”.[86]

o11 October 2022 – a letter from Ms Deacon recommending that Mr Cai “be afforded time off for stress leave for the next four business days commencing on Tuesday 11th October until the end of business on October, Friday 14th, 2022”.[87]

In his correspondence to Serco on 23 September 2022 following receipt of the Show Cause letter Mr Cai put forward “I believe a stay at work plan should be implemented based on doctor’s recommendation on March 21”.[88] If with these words Mr Cai was suggesting a Stay at Work Plan had been put in place in March, he was incorrect as the medical consent form was never returned by him. If, instead Mr Cai is suggesting one should be put in place in September, based on medical advice six months earlier, examination of the medical certificates does not support his case as Dr Hewavitharana only advised the use of voltaren gel and breaks for the week period “from 21/03/2022 to 30/04/2022 inclusive”.

By October 2022, when he commenced the internal appeal Mr Cai appears to accept that the March recommendation from his doctor that he be given some additional breaks had expired when he said the following to Ms Vagone, Serco’s People and Culture Advisor:

“It has been stated that the Doctor’s recommendation that I be given extra 2 brief breaks due to my physical condition was out of date, however the physical condition still exists and is related to work. Caitlin also caught virus at that time and didn’t directly respond to my email with the doctor’s recommendation. She didn’t mention that I had go back to site to work with her original plan and gave me the impression that this had been resolved. Caitlin left without follow up with me. David didn’t write me any correspondence regarding the doctor’s recommendation and mentioned a kind of work performance plan.”[89]

Against these matters Serco’s submissions about Mr Cai’s unfair dismissal claim set out considerable failings on the part of Mr Cai summarising the reasons for his dismissal in this manner:

“The Applicant was dismissed:
(a) for taking extended unauthorised morning rest breaks (“Break 2”) on 33 occasions between 5 July 2022 and 19 August 2022 greater than the maximum allocated break time of 10 minutes;
(b) for taking extended unauthorised meal breaks on 32 occasions between 5 July 2022 and 19 August 2022 greater than the maximum allocated time of 30 minutes;
(c) for taking extended unauthorised rest breaks (“Break 2”) on 33 occasions between 5 July 2022 and 19 August 2022 greater than the maximum allocated break time of 10 minutes;
(d) for his failure to meet the required key performance targets required for his role, specifically the requirements relating to Average Handling Time (AHT) of -2.5% / +2.5%; and
(e) as a result of his AHT being significantly above the required handling time without any reasonable explanation between May to July 2022.”[90]

Ms Long provided the following explanation of AHT and other relevant metrics and the importance of them for Serco’s own contract with the ATO in her written witness statement:

“30. The Applicant was required to meet the KPI requirements for his role as noted in section 3 of the Customer Success Profile … . Performance is measured across a range of requirements such as quality and professionalism. Key metrics we use to measure the performance of a CCO include: Adherence, Availability and Average Handling Time.
31. In brief:
(a) Adherence measures how closely the CCO follows their schedule. Adherence is impacted by logging in to start taking calls/work at the scheduled start time, taking 10-minute breaks as close to the scheduled break times as possible and for the stated duration, logging out for a meal break as close to the scheduled break time as possible and for the stated duration. Departure from the scheduled off phone breaks can be impacted by extended break duration, repeated breaks that are not scheduled, taking break times too early or too late or skipping breaks. As occasionally it can be challenging to take breaks at the precise time, particularly for example if calls run over a break start time, the minimum expectation for adherence is measured at 93%.
(b) Availability measures the percentage of work time the CCO spends actually working or their availability to action with work scheduled to undertake and for which they are being paid. Availability is impacted by a CCO being off the phone due to excessive breaks, not being in ready mode (i.e. waiting for an inbound call to drop in). Availability over 100% is usually the result of working through breaks, i.e. working hours over and above schedule. The minimum target Availability is 98%.
(c) Average Handling Time (AHT) measures the efficiency of a call, with each call comprising talk time, KPI for hold time and KPI for After Call Work (the time between when the call or interaction is ended and before the CCO becomes available to take the next call. The expected target variance (i.e. the difference between the target time for an interaction and the actual time taken on an interaction) of between -2.5% and +2.5%.

32. Each KPI metric is measured by an ATO reporting software system, and the Respondent's Reporting Analyst extracts the relevant data.
33. Coaching, support and guidance is utilised by the Team Leaders where CCOs are not actively participating with meeting their KPI targets.
34. Where CCO's fail to consistently meet their KPI targets, this has flow on commercial and reputational effects for the Respondent in being able to meet its own KPI requirements as part of the ATO contract. In the past this has also resulted in the Respondent being financially penalized as a result of not meeting KPI targets.
The Applicant's Performance
35. Having reviewed the Respondent's reporting systems for the purpose of these proceedings, in summary the Applicant 's performance was as follows between December 2021 to October 2022:
(a) Availability: 90.77% versus a minimum KPI expectation of 98%;
(b) Adherence 85.42% versus a minimum KPI expectation of 93%; and
(c) AHT Variance (for Superannuation interactions): 72.38% versus a minimum KPI expectation of - 2.5% <+2.5%.”[91]

Despite this useful explanation the absence of oral evidence on the subject leaves me unclear of the calculation of Average Handling Time and how Mr Cai performed against the expected KPI. While it may be seen from the above that Serco expect an AHT of “-2.5% / +2.5%” and from other material that Mr Cai’s performance is alleged to have been in the range of 78% to 82% for the three months May to July 2022, the lack of explanatory evidence leaves me unable to make findings as to the reasonableness of it being a reason for his termination of employment. As a result, in fairness to Mr Cai no findings are able to be made by me in relation to those parts of the reasons for dismissal relating to AHT.

It was however reasonable in the circumstances for Serco to call Mr Cai to account on the length of his breaks and how those matters affected his Availability and Adherence KPI expectations. Ms Long gave the following explanation about the breaks and what was expected about them:

“18. The Applicant was employed to work a minimum average of 60 ordinary hours per fortnight up to a maximum average of 76 ordinary hours per fortnight.
19. CCOs are generally required to work an 8-hour day, with a scheduled 10-minute morning break, known as "Break 2", a scheduled unpaid meal break of up to 30 minutes and a 10-minute afternoon rest break, known as "Break 2". Additional breaks are provided if the CCO works overtime.
20. These break requirements are set out at clause 22 of the Serco EA and are shown in each CCO's roster schedule, including the Applicant's.
21. Roster schedules are published at least two weeks in advance and are prepared by Workforce Management.
22. The Applicant was aware of the Respondent's break requirements at all material times during his employment.
23. A CCO is required to manually log Break 2 through the ATO's toolbar using certain break codes to show them in a Break 2 state so that customer calls are not transferred through to them. CCOs are also required to log out of the system when taking their meal break.
24. Breaks are monitored and "out of adherence" reports are produced for the leadership team. Team Leaders can also monitor and track breaks and they occasionally utilise the adherence reports to coach and manage CCOs where they are taking excessive breaks . This was the case for the Applicant during the period from around December 2021 up to the termination of his employment.”[92]

Concerns about Mr Cai’s alignment with these metrics were first raised in early 2022 when he was asked “why the breaks are almost double the expectations”[93] and was then placed on a process of Informal Catchup Conversations. Rather than the initial conversations having the effect of correcting less than optimum performance what was put in place by Serco did not lead to a response of any substance and the conduct continued.

Mr Cai claims to have agreed with Serco that he would have extended breaks in order to manage his health issues; however there is no evidence before me that would suggest such was ever seriously discussed, let alone agreed. The Stay at Work Plan, if implemented, could have been the instrument that allowed the development of a response; however no such plan was ever put in place. As set out above he also appears to blame Serco for not finalising a Stay at Work Plan.[94]

That narrative though is self-serving and disingenuous when account is taken of Ms den-Bakker’s correspondence to Mr Cai, when she wrote to him on Wednesday 4 May 2022, putting responsibility for completion and return of the form onto him:

“Hi Joe
As we discussed, please see attached the medical release form here that I need back by the end of this week. Let me know what day you make the appointment with the doctor and their name too. Please understand that we need to know whether you are fully fit to work.
After the Performance Improvement Plan you mentioned that your arm is sore, back and elbow which is impacting your performance i.e., taking unauthorised extended breaks.
Please be advised that if you have any medical information that we need to consider, then it is your responsibility to bring that information forward. The business would like this information ASAP and the business is not required to pay for the doctors appointment, that is out of your expense.
Until you provide us with medical information, we have to continue with our process i.e., you are expected to take the same break times as every other employee. HR and myself will monitor and document this and if it doesn’t improve, we will continue our disciplinary process.
Please also recall that if you are unwell/ have a sore arm during a shift, you are required to use personal/sick leave and if you are at work, we expect you to fulfil the requirements of your role. This includes abiding by ten minute breaks twice a day and thirty minute lunch once a day.
If you have any concerns, please reach out to Rebecca Vagnoni in HR. We will continue with our process (catch ups and monitoring your performance) and if you continue to not meet performance expectations or fail to follow company break times, then we will continue to manage the underperformance or misconduct.
I believe we have been more than accommodating trying to help you and it is now your responsibility to provide Stay at work documents in a timely manner if you wish that we consider something alternative to support your health.
Kind regards,
Caitlin den-Bakker
Team Leader
Serco Asia Pacific”.[95] (emphasis in original)

Mr Cai availed himself in September 2022 of Serco’s internal appeal process under its “Fair Treatment and Grievance Resolution SOP”, however lodged the application late, did not provide sufficient material to evidence his claims and then argued the result and obtained a secondary review. There is no material before me that would suggest the procedure followed to conduct the internal appeal was procedurally unfair. It was up to Mr Cai to provide Mr Schembri with persuasive evidence, however he failed to do so. Critically Mr Schembri found the following after his secondary review and communicated these matters to Mr Cai:

“I also believe that the findings made and the disciplinary outcomes put in place by the business were on the facts objectively supported based on the information available to the relevant decision makers. In particular, not only was it factually recorded by Serco and client systems that you frequently exceeded your permitted break times, the business also gave you multiple informal warnings regarding this prior to you being engaged in a formal disciplinary process. Despite these warnings your behaviour persisted and ultimately multiple disciplinary proceedings were required which produced various stages of warning and have now culminated in an ongoing Show Cause process which is in my opinion, on the facts, justifiable and reasonable.”[96]

When account is taken of the whole of the circumstances leading to his dismissal a finding is not available that Serco acted unreasonably or indefensibly. While trite, the Commission’s role is not to stand in the shoes of the employer and do things such as set the parameters and standards of work, determine the key performance indicators, or the standards of performance management. There is no evidence before me that would lead to a finding that any of those things were unreasonable in their design or deployment in Mr Cai’s workplace. Neither is there evidence, or even submissions, that would suggest Serco’s documentation of the days and times of longer than permitted breaks is inaccurate or otherwise not to be relied upon. In fact Mr Cai’s submissions make it clear he did take longer than permitted breaks, relying on the medical and workplan matters set out above as his reason for why these things occurred.

The performance management process implemented by Serco was measured and reasonable: from the start of the Informal Catchup Sessions, through the two warnings, performance improvement plan and show-cause process Mr Cai was on notice about the problems Serco perceived about his performance and what needed to be done by him. From beginning to end that process took over 11 months.

Few employers would patiently work an underperforming employee through a performance improvement process of that length.

For his part, Mr Cai never articulated beyond the general the reasons he may be prevented from achieving better performance. When called to account he referred only to generalised health matters and did not bring forward evidence about how or why those matters were impacting him, or what reasonable accommodations in the workplace needed to be given to him. The psychologist he consulted through Serco’s employee assistance program only communicated either general information to Serco (that she was consulted by him 6 times between December 2021 and February 2022 with no indication of the reasons)[97] or time limited advice (that he “be afforded time off for stress leave” between 11 October 2022 and 14 October 2022).[98]

I am satisfied from the evidence that it was appropriate to counsel Mr Cai about his work performance, with it being evident to Serco by late 2021 that there was a problem when his performance was considered against its KPI expectations. There then ensued a very extended performance management process which did not appreciably move Mr Cai’s performance, and certainly did not move it to acceptable levels. His explanations as to why that may be the case were largely general, evasive and blame shifting – evasive in that he never provided cogent medical evidence of his situation and blame shifting inasmuch as he tried to say that the failure to submit a Stay at Work medical consent form was a failing on the part of his Team Leader and not an omission by him. The First Written Warning, the Final Written Warning, the Disciplinary Meeting, and the Show Cause Letter were each appropriate steps to be taken by Serco in respect of Mr Cai. The conclusion Serco reached that Mr Cai’s employment should be terminated for the reasons set out above was appropriate and evidenced.

It follows from the matters set out above that I accept Serco had at the time of Mr Cai’s dismissal a valid reason for such related to his capacity and conduct. The valid reason is the combination of matters set out in the termination letter and extracted above, save for the fourth reason, relating to a failure to meet the AHT expectations about which I make no findings. In summary I find that Serco held a valid reason for Mr Cai’s dismissal, with him having repeatedly longer work breaks and meal breaks than permitted and having failed to respond to counselling and warnings about that subject.

(b) whether the person was notified of that reason

Mr Cai was notified of his dismissal through the letter provided to him from Serco on 12 October 2022.

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

For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal.[99] I am satisfied that Mr Cai was on notice from at least 14 September 2022 when the Show Cause Letter was issued that his dismissal was being contemplated as a result of allegations being put to him having been substantiated.

(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

Mr Cai argues Serco refused to allow him to attend the September Disciplinary Meeting with a support person, submitting that he wanted his psychologist, Ms Deacon, to attend however this was refused, putting forward that:
“Operation manager Chris refused to reschedule the discretionary meeting to allow my support person Debra (psychologist) to attend the meeting. He said “the business can’t accommodate you too long””.[100]

Ms Deacon’s witness statement suggests a willingness on her part to attend, being:

“… agreeable to this request however this was met with scheduling difficulties due to excessive demand for psychological services within the current climate. The discretionary meeting was scheduled for Friday 9th of September 2022. Writer was unavailable at that time. However an available appointment time was identified and secured for the following Tuesday 13th September at 9am (again via telehealth modality)”, with her “unable to comment if this was relayed to the disciplinary hearing participants”.[101]

Serco instead put forward that Mr Cai “was invited to bring a support person to the meeting, however they declined”;[102] and
“The business denies that Chris Maassen’s ever unreasonably refused to reschedule the disciplinary meeting with Joe’s nominated support person, Debra. Not only was a support person offered and despite repeated requests Mr. Cai was unable to provide a date when Debra would be available to attend as his support person and the disciplinary process could not be delayed indefinitely.”[103]

and
“The Applicant was invited to the meeting scheduled on 6 September 2022, by letter dated 5 September 2022. The letter informed the Applicant of the upcoming meeting and notified him of his entitlement to bring a support person if he wished to do so. This was confirmed in a telephone discussion between the Applicant and his team leader, Mr David Morrissey, on 5 September 2022.
At the disciplinary meeting held on 9 September 2022, the Applicant advised that the doctor was invited to attend as his support person but “did not give a response. Was invited, but not available to attend”. The Applicant did not notify the Respondent of an available date for when his doctor would be available to attend as his support person.
The Applicant was invited to the show cause meeting on 19 September 2022 by letter dated 14 September 2022. The letter informed the Applicant of the upcoming meeting and notified him of his entitlement to bring a support person if he wished to do so. The Applicant did not request for a support person to attend this meeting. The show cause meeting never went ahead, with the Applicant providing his responses in writing.”[104]

Several things may be said about these matters. First, in considering whether a dismissal is unfair and for the purposes of s.387(d), the Commission’s examination extends to whether there was any unreasonable refusal by Serco to allow Mr Cai to have a support person present to assist at any discussions relating to dismissal. Second, as Serco’s communication to Mr Cai requesting he attend a meeting for disciplinary purposes on 9 September 2022 made clear, a support person’s role is not as an advocate:

“You are entitled to bring a support person to the meeting. The role of a support person includes observing and providing emotional support. However, a support person does not act as an advocate nor do they present or defend a case on behalf of you.”[105]

The Disciplinary Meeting Letter advised Mr Cai that the meeting was to be held to discuss Serco’s concerns which have “come to our attention forming reasonable grounds to believe that you may have engaged in misconduct and breached your obligations as an employee of Serco”.[106] The correspondence did not explicitly refer to the potential for Mr Cai’s dismissal, although it stated that a substantiation of the allegations could amount to a finding of misconduct and breaches of his obligation to Serco as an employee. Serco’s written submissions though concede that the 9 September 2022 meeting was for the purpose of Mr Cai responding to the reasons it held for his termination.[107]

I am not satisfied from the material before me that what transpired about Ms Deacon’s attendance at that meeting was either a “refusal” or an “unreasonable refusal” to allow her to attend. Any person who seeks a professional or other very busy person to attend a disciplinary meeting on their behalf runs the risk of conflicting diary problems and it would be unreasonable to require an employer – and especially Serco at this stage of the disciplinary process – to have to wait for the convenience of the support person. Further, as Serco’s submissions suggest, it may well have been the fault of Mr Cai that he never relayed that Ms Deacon was available on a later date.

In any event Mr Cai was offered the opportunity to bring a support person to the later Show Cause meeting, which he never attended, with or without a support person.

In finality it must be noted there were no discussions with Mr Cai about his impending dismissal. This came about as a result of Mr Cai’s failure or refusal to meet with Serco following the Show Cause letter being issued.

For these reasons consideration of this criterion is a neutral factor in my decision.

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

Mr Cai had been counselled on numerous occasions to avoid long breaks and had been provided with the First Written Warning, the Final Written Warning, and the Disciplinary Meeting Letter, each of which cautioned the need to work to Serco’s expectations. He did not heed the warnings or provide evidence that would satisfy a reasonable employer that there was a medical reason for him to take long work breaks and meal breaks. Accordingly, consideration of this criteria weighs against a finding in favour of Mr Cai.

(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

Serco is demonstrably a large employer. There is, however, no evidence that its size impacted on the procedures it followed in effecting Mr Cai’s dismissal. This is a neutral factor in my decision.

(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

Serco’s decision making in relation to Mr Cai appears to have been assisted by its People and Culture staff, although its written submissions do not address the subject. Accordingly, this is a neutral factor in my decision.

(h) any other matters that the FWC considers relevant

At the time of his dismissal Mr Cai had been employed by Serco only since February 2019 and was engaged in somewhat low-level administrative duties. He had been ill in 2020 as a result of COVID-19 and says that has affected him since. To an extent that illness and the other symptoms experienced by him may explain his inability to meet Serco’s performance expectations. However, the fact that the illness to which he refers was more than 2 years before Mr Cai’s dismissal and that he did not ever bring froward cogent evidence of the symptoms he was experiencing, the nature of his illness and the accommodations he sought were never endorsed by his medical practitioners other than for a confined period weighs against his dismissal being found to be unfair.

In correspondence to me dated 23 March 2023 and in the hearing Mr Cai invited me to “link” this application with the anti-bullying application he commenced in the Commission in 2022 prior to him being dismissed, arguing the two matters “should be linked … because they are directly related”.[108] This application was refused by me for several reasons.[109] First; the anti-bullying application is no longer active: the application was commenced by Mr Cai on 19 September 2022 and was dismissed by Deputy President Gostencnik on 30 November 2022 for the reason that as Mr Cai’s termination of employment had taken effect on 12 October 2022 the application no longer had any reasonable prospects of success.[110] Second; there is nothing of substance to “link” with the matter never having progressed beyond the initial stages: such material as may be on that file is repetitive with that within this matter’s file, and appears not to illuminate this matter in any respects. Third; the request to “link” the two applications was not made until 23 March 2023 and well after the date Mr Cai had been directed to file his material in support of his unfair dismissal application. Even if there were any purpose in “linking” the files to do so at such late stage of the proceedings the ordinary case-management processes of the Commission would lean against doing so as parties should be expected to comply with the Commission’s directions and not be given opportunities to shift the basis of their case or to do so in a manner that is unfair to the other party.

I do not consider there to be any further matters requiring consideration under s.387(h).

Conclusion on the s.387 criteria

After considering each of the criteria within s.387, I am satisfied there was a valid reason for Serco’s dismissal of Mr Cai and that there were no procedural defects in the manner in which he was dismissed. Accordingly, I find that Mr Cai’s dismissal was not an unfair dismissal and that his application in turn must be dismissed. An order dismissing Mr Cai’s application is issued by me at the same time as publishing this decision.

COMMISSIONER

Appearances:

Mr J. Cai for himself
Ms R. Fisch for the Respondent

Hearing details:

Melbourne;
23 March;
2023.

[1] [2023] FWC 280.

[2] [2013] FCA 291.

[3] Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

[4] Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869, [5].

[5] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].

[6] Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618, [19].

[7] ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].

[8] King v Patrick Projects Pty Ltd[2015] FWCFB 2679, [15].

[9] Ibid, [17].

[10] Singh v Metro Trains Melbourne[2015] FWCFB 3502, [16].

[11] [2012] FWA 2966, [21].

[12] Warrell v Fair Work Australia [2013] FCA 291, [26].

[13] Email from Wilson C. Chambers, 22 March 2023, 10:27 AM.

[14] Respondent’s email to Wilson C. Chambers, 22 March 2023, 12:30 PM.

[15] Applicant’s email to Wilson C. Chambers, 23 March 2023, 4:26 AM.

[16] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, DHB pp.222 – 223.

[17] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, DHB p.36.

[18] Ibid, see also Exhibit A4 Applicant’s Outline of Submissions: Merits, 21 December 2022, DHB p.152.

[19] Exhibit A2, Applicant’s Document Bundle, DHB 45

[20] Exhibit A4, Applicant’s Outline of Submissions: Merits, 21 December 2022, DHB 159.

[21] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, DHB p.36; Exhibit A4, Applicant’s Outline of Submissions: Merits, 21 December 2022, DHB 159.

[22] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 6, DHB pp.272 – 276.

[23] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 8, DHB p.285.

[24] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 9, DHB p.291.

[25] Ibid, p.292.

[26] Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, Annexure DM – 6, DHB pp.348 – 349.

[27] Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, Annexure DM – 12; DHB pp.363 – 367.

[28] Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, Annexure DM – 14, DHB pp.372 – 379.

[29] Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, Annexure DM – 15; DHB p.383.

[30] Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, [32] – [33], DHB pp.322 – 323.

[31] Exhibit R6, Witness Statement of Matthew Schembri, 10 January 2023, [6], DHB p.405.

[32] Ibid, [7].

[33] Ibid, [9], DHB p.406.

[34] Ibid.

[35] Exhibit R6, Witness Statement of Matthew Schembri, 10 January 2023, Annexure MS – 2, DHB p.422.

[36] Exhibit R6, Witness Statement of Matthew Schembri, 10 January 2023, Annexure MS – 3, DHB p.426.

[37] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 12, DHB pp.301 – 302.

[38] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 15, DHB p.309.

[39] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 16, DHB pp.311 – 312.

[40] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, Attachment, DHB p.39.

[41] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 17, DHB pp.316 – 323.

[42] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[43] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561, [6] – [7].

[44] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033, [32]; Annetta v Ansett Australia (2000) 98 IR 233, [9] – [10].

[45] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033, [32]; He v Lewin [2004] FCAFC 161; 137 FCR 266, [15].

[46] Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033, [33] – [34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205, [22] – [23].

[47] Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520, [28]; see also Sydney Trains v Hilder[2020] FWCFB 1373, [26].

[48] Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.

[49] Robe v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).

[50] Miller v UNSW [2003] FCAFC 180 (Gray J), [13].

[51] Selvachandran v Peteron Plastics (1995) 62 IR 371, 373.

[52] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

[53] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

[54] Exhibit R5, Witness Statement of Christopher Maassen, 10 January 2023, [14], DHB p.386.

[55] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 8, DHB p.287.

[56] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, [27], DHB p.224.

[57] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, Attachment, DHB pp.45 – 46.

[58] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, [28], DHB p.224.

[59] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 5, DHB p.271.

[60] Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, [17], DHB p.321.

[61] Exhibit A4, Applicant’s Outline of Submissions: Merits, 21 December 2022, item 4c, DHB p.159.

[62] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, DHB p.35; Exhibit A4, Applicant’s Outline of Submissions: Merits, 21 December 2022, DHB p.172; Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 8, DHB p.287.

[63] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 6; DHB p.280.

[64] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 8; DHB p.287.

[65] Ibid.

[66] Ibid, DHB p.289.

[67] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, Attachment, DHB pp.46 – 46.

[68] Exhibit A2, Applicant’s Document Bundle, DHB p.135.

[69] Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, Annexure DM – 9, DHB p.359.

[70] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, Attachment, DHB p.38.

[71] Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, Annexure DM – 13, DHB p.370.

[72] Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, Annexure DM – 14, DHB p.374, 394.

[73] Exhibit A2, Applicant’s Document Bundle, DHB p.57.

[74] Exhibit A4, Applicant’s Outline of Submissions: Merits, 21 December 2022, item 4c, DHB, p.149.

[75] Ibid, DHB p.160.

[76] Ibid, DHB p.172.

[77] Exhibit MFI1, Witness Statement of Debra Deacon (unsigned), 21 December 2022, DHB p.145.

[78] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 9, DHB 291.

[79] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, Attachment, DHB pp. 46; Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, Annexure DM – 14, DHB p.394; Exhibit A4, Applicant’s Outline of Submissions: Merits, 21 December 2022, item 4c, DHB 159.

[80] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, DHB p.45.

[81] see Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, DHB p.40; Exhibit A2, Applicant’s Document Bundle, DHB p.135 and Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, Annexure DM – 1, DHB p.324.

[82] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CM – 2, DHB 392.

[83] Ibid, DHB p.394.

[84] Ibid, DHB p.395.

[85] see Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, DHB p.40; Exhibit A2, Applicant’s Document Bundle, DHB p.135 and Exhibit R4, Witness Statement of David Morrissey, 10 January 2023, Annexure DM – 1, DHB p.324.

[86] see Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, DHB p.43 and Exhibit R4, Witness Statement of David Morrissey, 10 January 202, Annexure DM – 13, DHB p.368.

[87] see Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, DHB p.39 and Exhibit A2, Applicant’s Document Bundle, DHB p.57.

[88] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, Attachment, DHB p.131.

[89] Exhibit R6, Witness Statement of Matthew Schembri, 10 January 2023, Annexure MS – 3, DHB p.428.

[90] Exhibit R1, Respondent’s Outline of Submissions, 10 January 2023, DHB 197.

[91] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, DHB pp.224 – 225.

[92] Ibid, DHB, p.223.

[93] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 6, DHB, p.272.

[94] Exhibit A4, Applicant’s Outline of Submissions: Merits, 21 December 2022, DHB p.159.

[95] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CL – 5, DHB p.269.

[96] Exhibit R6, Witness Statement of Matthew Schembri, 10 January 2023, Annexure MS – 3; DHB p.425.

[97] Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, Attachment, DHB p.38.

[98] Ibid, DHB p.57.

[99] Chubb Security Australia Pty Ltd v Thomas Print S2679 (unreported, AIRCFB, 2000) [41].

[100] Form F2, item 3.1, DHB p.8; Exhibit A1, Applicant’s Outline of Submissions, 14 December 2022, DHB 36; Exhibit MFI1, Witness Statement of Debra Deacon (unsigned), 21 December 2022, DHB p.144; Exhibit A4, Applicant’s Outline of Submissions: Merits, 21 December 2022, DHB p.172.

[101] Exhibit MFI1, Witness Statement of Debra Deacon (unsigned), 21 December 2022, DHB pp.145 – 146.

[102] Form F3, item 3.1, DHB p.18.

[103] Ibid, item 3.2, DHB p.19.

[104] Exhibit R1, Respondent’s Outline of Submissions, 10 January 2023, DHB p.200.

[105] Exhibit R3, Witness Statement of Carolyn Long, 10 January 2023, Annexure CM – 1; DHB p.390.

[106] Ibid, DHB p.387.

[107] Exhibit R1, Respondent’s Outline of Submissions, 10 January 2023, item 3f, DHB p.199.

[108] Applicant’s email to Wilson C. Chambers, 23 March 2023, 4:26 AM.

[109] Transcript, PN 37 – 57.

[110] [2022] FWC 3162, [24].

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