Kostantina (Deana) Hatzisevastos v Iron Mountain Pty Ltd

[2015] FWC 770

[2015] FWC 770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kostantina (Deana) Hatzisevastos
v
Iron Mountain Pty Ltd
(U2014/9468)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 4 MARCH 2015

Application for relief from unfair dismissal.

[1] On 26 September 2014 Ms Konstantina (Deana) Hatzisevastos (the applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy against her former employer, Iron Mountain Australia Pty Ltd (the respondent).

[2] The respondent is a large multi-national storage and information management company. In January 2014 it acquired an Australian company, TMS. The applicant commenced employment with TMS on 8 October 2012, and her employment transferred to the respondent at the time of the acquisition. Her employment with the respondent was terminated on 18 September 2014.

[3] The application was referred to me and a hearing was conducted in Sydney on 27 January 2015. The applicant represented herself and the respondent was represented by Ms Angela Sharpe, an HR Adviser with the respondent.

[4] The applicant gave evidence on her own behalf. Ms Sharpe gave evidence for the respondent, as well as Mr van Coller, General Manager, Data Protection (the applicant’s manager).

[5] On the date of dismissal the applicant was given a letter signed by Ms Sharpe, headed ‘Termination of Employment’. The letter included the following:

'The Organisation has considered the allegations previously provided to you, the responses and any relevant mitigating circumstances offered by you, along with your employment history with the Organisation.

After considering all the relevant information and material available, we have determined that the appropriate action in this instance is for serious and wilful misconduct (sic) is Summary Dismissal-Termination without notice. This decision is effective immediately.

Your employment has been terminated as the Organisation is satisfied that the below allegations have, on the balance of probabilities, been substantiated.

The allegations are as follows:

1. A 32” TV was sent to Silverwater addressed to you. Supporting information for this allegation is: A delivery docket with your name on it from Paul Tutton from Dicker Data.

2. It is alleged that you called the Silverwater site and spoke to Isobelle and Robert Wormleaton. You advised Isobelle that the TV was for Cathy Economos’ husband, and then said it was for Cathy. You advised Rob that it was a gift for Cathy. Supporting information for this allegation is: Statements from Robert and Isobelle Wormleaton.

3. I called you to investigate the issue and you advised that you purchased the TV as a gift for Cathy and it was offered to you by Paul at Dicker Data for 50% off retail price. You said you purchased this TV for Cathy as she supports you. You advised Cathy doesn't know about this TV as it's a gift. You advised you have a transaction receipt for this purchase and you will send me a copy of this receipt.

4. Paul Tutton was contacted to provide further details around the delivery of the TV and he advised that it was part of a promotion Dicker Data were running and since Iron Mountain have purchased so many tapes the TV was a gift. When asked if you were aware of the promotion he advised yes as you had asked for the TV to be sent to Silverwater.

Your responses to the above allegations were:

● You stated that you lied to me about having purchased the TV. You said you just panicked when you received a call from HR.

● You stated that the TV was given to you and it's what suppliers do. It's a token of thanks. You confirmed you did not buy any Dicker Data products to get the TV. It's your role to purchase tapes and Dicker Data is so big they always give their customers gifts.

● You explained how you would send out an email to suppliers with a brief requesting a big price and Dicker Data was the most competitive supplier.

● I asked you if you had received gifts in the past. You stated that you had in July 2014 when Paul Tutton from Dicker Data took you out for lunch and at the end of lunch he presented you with a bag which had a HP Omni 10. You advised you have kept this laptop.

● You stated that the TV from Dicker Data is literally a token of thanks. All customers are entitled to the rewards. You went on to explain your sales results over the last couple of months and that normal sales behaviour was $50k in sales however July it was $142k and Aug was $115k.

● You stated that Cathy Economos processes sales through Oracle and Cathy deserves a bonus. You stated that Cathy has never been appreciated and deserves a pat on the back and you were going to give the TV Cathy as a gift.

● You confirmed that you were aware that you are going to receive a TV from Dicker Data.

● You confirmed that you have read the Gift and Hospitality policy, Code of Ethics and completed the recent compliance training -- Anti-Bribery and Anti--Corruption and you understood all of this.

● You stated that you feel that receiving the TV is less of a ‘misconduct’ issue and more an appreciation of thanks.

● You stated in this instance both Dicker Data and Stutch (another supplier) were both offered to bid and Dicker data offered a better price.

● I asked you if there was any point in the exchange of gifts did you feel uncomfortable or thought you were doing something wrong (sic). You stated you felt uncomfortable but you also felt ‘chuffed’ that Paul was taking you out.

● When Paul Tutton from Dicker Data gave you the laptop you felt it wasn't deserved and took it as a compliment.

● You stated that you expected the delivery of the TV to be on Monday 15/9/14.

● You advised Isobelle Wormleaton at Silverwater site that a box was coming for Cathy. You stated that you said it was something for Gary (Cathy's husband) and then you said it was for Cathy. Isobelle kept asking what it was and you asked her to just put the delivery in Cathy's office.

● You stated that the TV was to go to you but you decided a couple of weeks ago you would it (sic) to Cathy as a pat on the back.

● Interpretation of what's happened has been misjudged. Matie didn't hesitate for a second to call HR regarding this matter.

● I asked you if you had received gifts from Dicker data under TMS and you replied no.

● You stated you were not aware of the TV as a bonus prior to the sale with Dicker Data.

Receiving gifts either directly or indirectly with a value of over $100 AUD is prohibited and is a breach of our Core Values, Code of Ethics, and the Gift and Hospitality Policy which provides further information about the exchange of gifts. Such a breach is considered serious and wilful misconduct….’

The evidence

[6] The applicant does not deny that she was given the HP Omni Tablet by Mr Tutton at her lunch with him. 1 She also said that when she disclosed this to her manager (Mr van Coller) he told her to tell HR, but she failed to do so.2 Mr van Coller denies this conversation ever took place.3

[7] The applicant did not deny that the TV was sent to her by Mr Tutton, though she said that she had she asked the receptionist (Ms Wormleaton) to have it placed in Ms Economos’s office. 4 She agreed that she initially lied to Ms Sharpe and told her that she had bought the TV as a gift for Ms Economos.

[8] It is not in contention that both the HP Omni laptop and the TV set were ‘gifts’ to the applicant from Dicker Data, a supplier to the respondent. 5 While there was no direct evidence about the matter it is reasonable to assume that both gifts were worth substantially more than $100. The applicant was involved in awarding a contract to Dicker Data. There is no evidence that the gifts influenced the applicant in her business dealings with Dicker Data.

The relevant policies

[9] The respondent has a Code of Ethics and Business Conduct. The applicant was given a copy of this policy when she commenced employment with the respondent. This policy includes the following:

‘GIFTS AND ENTERTAINMENT

Exchanging gifts with customers is a common way to express appreciation. However, gifts and entertainment should never be given in an attempt to influence business decisions -- even where it's a standard business practice or local custom. Always consult your local Gifts and Entertainment Policy before offering or accepting anything of value, including gifts, favours, tickets to entertainment events, invitations to travel etc.’

[10] The local gifts and entertainment policy for Australia includes the following:

‘The Company selects products and services on the basis of price, quality and service. The Company expects its customers to purchase its products and services on the same basis. All Company business transactions must be transparent, impartial, objective and free of outside influence. Directly or indirectly giving and/or receiving modest gifts, favours, entertainment, and hospitality is often appropriate, a cultural expectation, and used to strengthen business relationships. However, gifts, favours, entertainment, or hospitality may not be accepted or given if they violate any law or regulation industry code and/or Company Policy; are conditional; and/or obligate or appear to obligate the recipient or Company to provide an improper business advantage.’

[11] The policy defines the term ‘covered parties’ to include all of the respondent's employees (as well as others). The policy explicitly states that ‘covered parties’ must not offer, accept, or receive directly or indirectly a gift, favour, entertainment, or hospitality if it has a value in excess of $100 AUD. There are certain exceptions to this policy; however none are applicable to the circumstances of this case. The policy states that (unless the exceptions apply)

‘… a gift, favour, entertainment or hospitality that has a value greater than $100 AUD or the local equivalent of $100 AUD, or that could influence or be reasonably perceived influence the covered party's judgement must be immediately reported to Human Resources or the Company’s VP - Compliance and General Counsel, and returned to the donor as tactfully as possible, or where returning the gifts is not possible or appropriate, the gift should be property donated to charity.’

[12] The applicant completed Bribery and Corruption Online Training on 29 August 2014. As part of this training the applicant’s attention was drawn to the gifts policy as well as a number of other related policies. As part of the training she formally expressed her agreement that she had read and understood the requirements of these policies, that she understood the requirement to comply with those policies and that failure to comply might be a cause of disciplinary action up to and including termination of employment.

Consideration

[13] In considering whether the dismissal of the applicant by the respondent was harsh, unjust or unreasonable, I must take into account:

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

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

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

(d) any unreasonable refusal by the respondent to allow the applicant 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 applicant had been warned about that unsatisfactory performance before the dismissal; and

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

[14] I will consider each of these factors in turn.

[15] It is not seriously in contention that the applicant was guilty of misconduct. She breached the respondent’s policies governing the acceptance of gifts on two separate occasions. These policies are very clear, and the applicant had received recent training in them. The breaches were not minor or technical in nature. The policies themselves are clearly important to the respondent and are lawful and reasonable. In particular the restrictions placed on the receipt of valuable gifts by the respondent’s employees are designed to ensure that the respondent’s business dealings are ‘transparent, impartial, objective and free of outside influence.’

[16] I am satisfied that the respondent had a valid reason for the dismissal on the rounds of misconduct. I should add that the applicant was not accused of bribery or corruption but of breach of policy.

[17] The applicant was notified of the allegations against her at a meeting with Ms Sharpe on 15 September 2014.

[18] The applicant had an opportunity to respond to the allegations against her at the meeting on 18 September 2014.

[19] There is no evidence that the applicant was refused the presence of a support person at any discussions related to her dismissal.

[20] The respondent is a large, sophisticated employer, with access to specialist human resources expertise. The procedures adopted in effecting the dismissal were consistent with these circumstances.

[21] The applicant put forward a number of factors which in her submission made the dismissal ‘disproportionate and top heavy’. These include her long experience in the industry, her excellent sales record, and the lack of a commercial agreement with Dicker Data. The applicant said that she had never previously been accused of misconduct, and that going from a small family run Australian company (TMS) to a global corporation was a ‘culture shock’. She said this was her first infringement and rather than dismissal she should have received a warning, a chance to retrain and reread the new company policies. She claimed that she had been guilty of nothing more than an ‘innocent and stupid mistake.’

[22] The respondent was well within its rights to consider any breach of its Code of Ethics and related policies as a serious matter. The applicant breached the company’s gift policies not once but twice. Nor were they minor or technical breaches. She had no reason to plead ignorance of those policies. She had received training in them. The training was well written and was designed to leave employees no doubt about their obligations. The applicant’s sales record is of limited relevance - she was dismissed for misconduct - not poor performance. I do not consider any of the other factors referred to by the applicant as in any way outweighing the seriousness of her misconduct.

Conclusion

[23] Having regard to these findings, I am satisfied that the dismissal of the applicant was not harsh, unjust or unreasonable. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K Hatzievastos on her own behalf

Ms A.Sharpe on behalf of Iron Mountain Pty Ltd

Hearing details:

2015

Sydney

January 27

 1   PN29

 2   PN45

 3   PN145

 4   Exhibit H1, paragraph 6

 5   Exhibit IM1, paragraphs 9-12

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