Meenakshi Kapoor v Teleperformance Australia T/A Teleperformance Australia
[2018] FWC 4520
•2 AUGUST 2018
| [2018] FWC 4520 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Meenakshi Kapoor
v
Teleperformance Australia T/A Teleperformance Australia
(U2018/2800)
| COMMISSIONER GREGORY | MELBOURNE, 2 AUGUST 2018 |
Application for relief from unfair dismissal – valid reason – misconduct – dismissal ‘harsh’ and ‘unreasonable’ – remedy – compensation.
Introduction
Ms Meenakshi Kapoor was first employed with Teleperformance Australia T/A Teleperformance Australia (“Teleperformance”) as a Technical Support Advisor in March last year and was employed on a full-time basis at a base rate of pay of $21.29 per hour. However, she was dismissed from her employment on grounds of serious misconduct on 27 February 2018. She subsequently lodged an unfair dismissal claim and this decision deals with that application
Ms Kapoor appeared on her own behalf. Mr Mark Redman, Human Resources Manager, appeared on behalf of Teleperformance.
The Issue to be Determined
Mrs Kapoor claims she has been unfairly dismissed under s.385 of the Fair Work Act 2009 (Cth) (“Act”) because her dismissal was “harsh, unjust or unreasonable.” In determining whether a dismissal was “harsh, unjust or unreasonable” s.387 of the Act sets out various considerations that the Commission must take into account. It states:
“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.”[1]
The Commission is accordingly now required to determine whether Mrs Kapoor’s dismissal was harsh, unjust or unreasonable taking into account the matters in s.387.
The Applicant’s Submissions and Evidence
Ms Meenakshi Kapoor
Ms Kapoor was first employed by Teleperformance on 6 March last year and worked as a Technical Support Advisor. However, she was dismissed from her employment in a meeting on 27 February, which was confirmed in a letter given to her on the same day from Ms Hannah Do, Executive Vice President. It stated in part:
“I refer to your meetings with Matthew Phillips and Peter Money today and on Friday 23rd February 2018.
In the aforementioned meetings you are advised about our serious concerns in relation to your inappropriate conduct. You were afforded an opportunity to respond to our concerns regarding the manipulation of the company’s CSAT process.
After carefully considering the matters raised by you, Teleperformance believes that you have breached company policy by deliberately and repeatedly altering customer email addresses to prevent customer satisfaction surveys being sent, which constitutes serious and wilful misconduct.
As a result of our determination, Teleperformance have elected to terminate your employment, effective immediately.”[2]
She was also given a letter on the previous day from Mr Matthew Phillips, the Assistant Call Centre Manager, headed “Work requirements during investigation.”[3] It stated in part:
“We refer to your meeting between Peter Money and Matthew Phillips on 26th February 2018.
In the aforementioned meeting you are advised about our serious concerns in relation to your inappropriate conduct. You were asked a number of questions relating to our concerns and given the opportunity to respond.
While the investigation is undertaken into whether or not a breach of company policy has occurred, you are advised that you are not permitted to attend the workplace or undertake any duties or actions related to the investigation until you receive further advice from Teleperformance.
You will continue to be paid while the investigation is being undertaken.”[4]
Ms Kapoor said she was told in the meeting with Mr Money and Mr Phillips on 26 February that an investigation was being carried out into email addresses being deliberately changed and she would be informed when it had been completed. Ms Kapoor indicated in response that she had never deliberately changed an email address, and mistakes could occur as the result of a typing or listening error. She was also from a non-English speaking background and the callers often had heavy accents, which made it more difficult to understand what was being said.
Mr Money and Mr Phillips also appeared to be taking notes during the course of the meeting. Mrs Kapoor now understands from the materials Teleperformance submitted in these proceedings, in response to her application, that they were compiling what was described as a “Record of Interview”[5] of the discussions in the meeting. However, the record of interview contained in the materials submitted in these proceedings by Teleperformance makes clear that the document should have been given to her at the conclusion of the interview for her to review and then sign.
However, she was not given the document in the meeting, and did not sign it at the conclusion of the interview. She also denies that it represents a true record of the interview with her. She was also not aware whose handwriting was on the document. She also indicated in response to a question from the Commission that the questions contained in the document were not read out to her.[6] She reiterated that she had seen the document for the first time when it was included in the materials filed in the Commission by Teleperformance in response to her application. In addition, she did not make a record of what was discussed.
She also confirmed that after having seen the document she did not accept that it accurately represented her answers to what was put to her in the meeting, because she did not accept that “I changed an email address or I changed anything …”[7]
She was finally told she would be informed about the outcome of the investigation in due course and this would likely take a couple of days. She was then told to go home. However, she then received a phone call around an hour and a half later, just before getting home, and was told the investigation was now complete, and she was required to attend a further meeting on the following day.
She then attended the meeting with Mr Redman, Mr Phillips and Mr Money on 27 February. Mr Redman indicated at the beginning of the meeting that even if mistakes in entering email addresses had not been made deliberately the employees involved would still be dismissed from their employment.
She then asked whether she could see the evidence being relied on, but nothing was provided to her. For example, the sample from a customer located in Singapore included in the materials filed in the Commission was not shown to her during the course of either meeting on 26 and 27 February.[8] In addition, she could not recall dealing with that customer, given the number of calls taken during the course of the day. The Advisers also dealt with customers from Singapore and other parts of the Asia-Pacific region, and English is not necessarily the first language of many of those customers. She again reiterated that mistakes could occur as the result of a typing or a listening error, and in those circumstances any mistakes only warranted a warning being given, and were not sufficient to justify termination of employment.
Ms Kapoor was also asked in cross-examination about whether a support person was present in the meeting. She indicated in response that she had not asked for a support person.[9] Mr Phillips had instead asked her whether she wanted a support person present, and she said she did not. However, he then asked who her team leader was and she told him it was Luca. He then asked Luca to join the meeting. She also again denied in cross-examination that she had provided the responses that were hand written on the record of interview.[10]
She also indicated in cross-examination that she had received some customer dissatisfaction surveys, or DSATs, during the time she was employed, but she had never been disciplined as a consequence.[11] The termination letter, which stated that she had met with Mr Phillips and Mr Money on 23 February, was also incorrect and she had instead received a phone call on that day advising she was not required to attend at work on the following two days because a sufficient number of employees were already rostered on those days. In addition, it was never communicated to her, either verbally or in writing, that any form of investigation was being carried out. She was then told on 26 February to attend the meeting on the following day.
She also indicated she had not been told during the training provided to her that the surveys were related to the information collected from customers. However, she acknowledged that the Advisers were required to obtain email addresses from customers during the course of the conversation with that customer.[12] She also indicated that if she was supposedly manipulating email addresses to avoid receiving DSATs then why was she still receiving DSAT’s as late as January of this year.[13]
She also indicated in response to a question from the Commission that she had not been told at any time, either during the training she received or at any other time, that an incorrect entry of an email address constituted serious misconduct and would result in the termination of her employment.[14] Ms Kapoor also provided a copy of her Employment Agreement,[15] which does not make any reference to the consequences of email addresses being entered into the system incorrectly.
Ms Kapoor has also applied for other jobs since being dismissed, but understood the Employment Separation Certificate provided to her by Teleperformance, and the information given out in response to reference checks made about her, made it difficult for her to obtain other work.
The Respondent’s Submissions and Evidence
Mr Mark Redman
Mr Mark Redman is the Human Resources Manager with Teleperformance. On 21 February 2018 a number of irregularities were discovered concerning the recording and entry of customer email addresses by some of the Technical Support Advisers. These were discovered during an audit of customer email addresses, and it appeared six Advisers were involved. An investigation was immediately commenced involving three Assistant Centre Managers and headed up by the Vice President, Operations. Computer records and audio recordings were reviewed as part of this investigation.
Ms Kapoor was one of the Advisers involved and she was notified of Teleperformance’s concerns about her on 23 February. She then formally interviewed on 26 February by Mr Peter Money and Mr Matthew Phillips and in those discussions she “made free admissions to her misconduct.”[16] After due consideration of all the evidence a decision was then made to terminate her employment on grounds of serious misconduct. Ms Kapoor was informed of that decision in a meeting on 27 February and then given the termination letter confirming the termination of her employment, effective immediately.
Mr Redman’s witness statement also made reference to the “Record of Interview”[17] taken in the meeting with Ms Kapoor, Mr Phillips and Mr Money on 26 February 2018. It was included in the materials Teleperformance filed in the Commission. It contains a series of questions with hand written responses written below. They include the following questions and the hand written responses under the heading:
“Questions related to changing email addresses”:
“Have you ever been pressured or directed to make changes to customer information that is against the approved process? Can you please describe who pressured you and the type of pressure you received.
“I’ve never been pressured & I have never done so …”
Are you aware that changes to customer information are monitored by the client? Who told you?
“Yes.” “my friend informed me.”
We understand that you changed/added unknown email addresses for a number of customers without authorisation to do so, why did you do that?
just to avoid a DSAT, “I did it in some cases, but not always…”
Was it to improve your CSAT metric?
“not really, to avoid = No.”
If so, how does it improve your CSAT metric?
“I am giving 100% on calls but no about changing email addresses.”
If not, please explain the purpose of changing/adding unknown email addresses. Was it to avoid a DSAT?”
“no comment.”[18]
Teleperformance also included in its materials some additional documents, including a document headed “Demonstration that Agents are Expected to Log Customer Information Correctly Training.”[19] However, it is unclear if this document was provided to the Technical Support Advisers. It states in part:
“Logging the correct email address is vital and is equated to customer satisfaction. Deliberate altering of an email address is deemed to be a compliance issue, pertaining to customer privacy and therefore is extremely serious if conduct pertaining to email manipulation, with the intent of altering the customer satisfaction system from achieving its desired outcome. It is classed as “Customer-Fatal” in the Phone Quality rubric utilised by the client.”[20]
It also included in its materials what was described as an “Evidence sample”[21] concerning the incorrect email address entered on the system by Mrs Kapoor. It indicated that in a call on 15 January this year from a customer located in Singapore, the customer clearly stated that his contact email address was [email protected], however, the address was inputted as [email protected].[22]
Mr Redman also acknowledged in cross-examination that “an administrative error”[23] had been made in regard to the meeting with Ms Kapoor on 26 February. This concerned the record of interview compiled during the course of the meeting. It should have been given to her at the conclusion of the meeting to review and then sign confirming she agreed it was a true record of the discussions. However, Mr Redman acknowledged that this was not done. However, after obtaining statements from both Mr Phillips and Mr Money he believed that the hand written responses on the record of interview comprised a true and correct record of what occurred in the meeting.
He also indicated that it was difficult to provide the audio of the phone call to Ms Kapoor because the area in which the discussions were held was outside the secure production area. It would also be necessary to obtain the client’s permission to allow her to listen to the audio because it was retained within the client’s systems. However, the content of the audio recording, and the responses given by Ms Kapoor in the interview on 26 February, provided the basis of the decision by Teleperformance to terminate her employment.
Mr Peter Money
The Commission notes at this point that Teleperformance requested during the course of the proceedings that an additional witness, Mr Peter Money, be called to give evidence about what occurred in the meeting with Ms Kapoor on 26 February. It had not previously indicated that Mr Money was to be called as a witness.
The Commission indicated, in response, that it was prepared to allow Mr Money to give evidence, but did so reluctantly for two reasons. Firstly, Teleperformance had been given the opportunity to provide the evidence it seeks to rely upon when the Directions were issued on 30 April 2018. However, the Commission also had a further concern in that Mr Money had been present throughout the proceedings, and had heard the evidence given by Ms Kapoor. He had also been present during her cross-examination. This clearly had the potential to influence him in terms of the evidence he provided. However, the Commission indicated that it was prepared to allow Mr Money to give evidence, but these circumstances would impact on the weight it would attach to his evidence. It was also indicated that Ms Kapoor could have a brief adjournment, if requested, after Mr Money had given evidence to enable her to consider what matters she wished to raise with him in cross-examination.
Mr Money stated that the record of interview produced by Teleperformance in the proceedings was an accurate record of what occurred in the interview with Ms Kapoor on 26 February. He said the preamble in the document, and the first question, were read out in the interview and Ms Kapoor answered as indicated in the hand written responses. The same situation applied to the remaining questions and answers, and the hand written responses had not misinterpreted what her responses were. He indicated in conclusion “… that it’s a true and accurate record of what occurred during the interview.”[24]
He also indicated in response to a question from the Commission that it was his handwriting on the document.[25]
He also indicated in cross-examination that he could recall reading out all of the questions contained on each of the two pages of the record of interview document.[26]
The Respondent’s Submissions
Teleperformance submits that Ms Kapoor was given the opportunity to respond to its concerns regarding her conduct in the meeting with Mr Phillips and Mr Money on 26 February. The reasons for her dismissal were then confirmed with her in a further meeting on the following day, and the termination letter was then given to her. It also indicated that her request to have a support person at the meeting was granted, and that the size of the business did not have any impact on the procedures followed in dismissing Ms Kapoor.
It submits that she was dismissed for deliberately and repeatedly altering customer email addresses to prevent customer satisfaction surveys being sent out. It also indicated that these are a key performance measure for both the business and the Advisers. The incidents occurred in early January 2018 and her conduct, which appeared to be wilful and deliberate, had the potential to cause serious and imminent risk to the reputation and viability of the business. The investigation process had involved data and voice recordings being examined by Teleperformance’s Quality Assurance Team, as well as by the members of the Investigation Team, which involved three Assistant Centre Managers and the Executive Vice President, Operations.
It also submits that Ms Kapoor had been previously enrolled in a formal performance improvement plan in June 2017, and for a brief time in November 2017 had a poor performance record.[27] However, she was not on a performance improvement plan at the time of her dismissal. It also submits that all the Advisers are instructed in the correct procedures to obtain customer information during their initial training, and then in regular ongoing coaching throughout their employment.
Consideration
As indicated at the outset the Commission is required to determine whether Ms Kapoor’s dismissal was “harsh, unjust or unreasonable” having regard to the various matters set out in s.387. The circumstances in which an employee’s termination might be considered to be “harsh, unjust or unreasonable” have also been considered in a number of recent decisions, including the decision in Byrne & Frew v Australian Airlines Ltd[28] when McHugh and Gummow JJ concluded:
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[29]
The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd[30] also provides guidance about the Commission’s responsibilities in regard to each of the considerations in s.387 when it held:
“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.”[31]
I now turn to deal with this matter having regard to each of the considerations in s.387 that I must take account of and those authorities that I consider relevant.
(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)
Before turning to the specific circumstances involved in the present matter it is again noted that various authorities have had regard to what is required in order for the Commission to be able to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandranv Peteron Plastics Pty Ltd[32] is often referred to in considering what constitutes a “valid reason.” His Honour came to the following conclusions:
“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.
Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…”[33]
In Parmalat Food Products Pty Ltd v Wililo[34] the Full Bench also concluded that:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”[35]
The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post[36] (“Australian Postal Corporation”) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:
“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”[37]
It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the employer believes it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi[38] at paragraph 19 when it stated:
“[19]…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”[39]
These authorities make clear that the existence of a valid reason will often be the most important consideration among the matters the Commission must have regard to in s.387. It is also clear from these authorities that a “valid reason” is one that is “sound defensible and well founded,” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure each party is treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter.
The reason given to Ms Kapoor for her termination was that she had “breached company policy by deliberately and repeatedly altering customer email addresses to prevent customer satisfaction surveys being sent…”[40] This was said to constitute serious and wilful misconduct.
Ms Kapoor denies she ever deliberately changed an email address, or that she ever deliberately entered an incorrect email address into the system. However, she acknowledged that errors could occur as a result of a listening or a typing error. She is also from a non-English speaking background, and it was sometimes difficult to understand what customers were saying, particularly those whose first language was also not English.
She asked in the meetings on 26 and 27 February whether she could be provided with the evidence relied upon by Teleperformance for its decision to terminate her employment. It is noted, for example, that it included an example of a phone call in the materials filed in these proceedings as evidence of Ms Kapoor deliberately altering a customer’s email address. However, this was the first time she had seen that example, and for reasons that were apparently related to security concerns Teleperformance did not provide Ms Kapoor with these details in the meetings with her.
Teleperformance also included in its materials what purports to be a record of the interview with Ms Kapoor on 26 February. Relevant extracts have been set out at an earlier point in this decision and are not restated now. Teleperformance relies on this as evidence of Ms Kapoor’s admissions that she changed email addresses on occasions, and did so to avoid DSAT’s being received in response. However, Ms Kapoor denies the hand written answers in the purported record of interview are an accurate record of the answers she gave. She also denies that the questions set out in the document, or the preamble, were read out to her during the course of the meeting. She was aware that notes were being taken during the meeting, but was not aware of what was being written down. She also did not know whose handwriting was on the document.
The record of interview was also not shown to her at the conclusion of the meeting, and she was not asked to sign it, despite what the document states. For example, at the bottom of the first page, under the heading “Record of Interview,” it states:
“Information shared by you is treated confidentially, and you will be provided with a copy of the written record of interview that I make from our discussion.
You will be provided with a draft copy for review and comment or correction and you will be asked to sign the final version.
You need to be aware that:
· The statements you make will be taken into consideration by Teleperformance in determining what if any action needs to be taken in this matter; and
· If this matter ever proceeds outside of Teleperformance, to a forum such as Fair Work, you could potentially be called to give evidence about your statement.”[41]
As indicated already the first time that this document was sighted by Ms Kapoor was when it was included in the materials filed in these proceedings by Teleperformance. This is not in dispute. Mr Redman also acknowledged in cross-examination that the fact the record of interview was not given to her to review and then sign “was an administrative error.”[42] This description appears to be something of an understatement, and I am satisfied that the fact that this did not occur seriously calls into question the validity of the document, particularly given Ms Kapoor’s denials about its content being accurate, and her denials about the preamble and the questions on the document being read out to her.
It would appear in this context that the Technical Support Advisers on a base hourly rate of pay of $21.29 are to be held to exacting standards in regard to their work performance, and the entry of records onto the system, but a so-called “administrative error” by those responsible for managing these employees is apparently not viewed in the same light.
Given the contrary evidence about what occurred in the meeting Teleperformance requested during the course of the proceedings that additional evidence be provided by Mr Peter Money. The Commission assented to this request but, as already indicated at an earlier point in this decision, did so reluctantly for two reasons. Firstly, because the earlier Directions provided Teleperformance with the opportunity to file the evidence it sought to rely upon. Secondly, and perhaps more importantly, Mr Money was present throughout the proceedings and had the opportunity to hear the evidence provided by Ms Kapoor. This clearly had the potential to influence him in terms of any evidence he might provide. However, the Commission allowed Mr Money to give evidence but indicated that the above circumstances would impact on the weight it would attach to his evidence. It also indicated that, if necessary, Ms Kapoor would be provided with a brief adjournment after Mr Money had given his evidence to enable her to consider what matters, if any, she wished to raise with him in cross-examination.
Mr Money indicated in his evidence that the preamble to the record of interview and the questions in the document had each been read out to Ms Kapoor in the meeting and he had written down her responses. He stated that the document was a true and correct record of what occurred in the meeting, despite her assertions to the contrary.
Ms Kapoor also submits that she had never been told, and was not aware of any other documentation that made clear that the incorrect entry of email addresses was conduct that was considered to be serious misconduct and would result in summary dismissal. She also questioned the alleged motivation for such behaviour, which was apparently to avoid DSAT’s being received by the Adviser. However, she had received a number of DSAT’s in the past and no action had been taken by Teleperformance in response. It was therefore not clear to her why she would be concerned about receiving a DSAT, and why she would consider doing anything to avoid receiving them from a customer.
I am not satisfied, in conclusion, that Teleperformance can be said to have had a “valid reason” to dismiss Ms Kapoor in the sense that the reason can be said to be sound and defensible. It is also difficult to conclude, on any objective analysis of the relevant facts, that the reason can be said to have been well founded. In this context I refer, in particular, to the following circumstances. Firstly, the failure by Teleperformance to follow the correct procedure in regard to providing the record of interview to Ms Kapoor for review and signing. Secondly, the fact that she was not provided with any specific details of the alleged behaviour. Thirdly, the apparent lack of any specific evidence that confirms she deliberately and repeatedly altered customer email addresses and repeatedly manipulated the DSAT process, as stated in her letter of termination. In addition, there is an issue about the proportionality of its response, particularly when the Commission has not been provided with any evidence that the Technical Support Advisers had been put on notice that failure to correctly enter an email address was conduct that was considered to be serious misconduct, and would result in summary dismissal.
(b) whether the person was notified of that reason
Ms Kapoor was provided with the reason for her termination in the meeting on 27 February, and in the termination letter given to her at the conclusion of that meeting.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
This issue has been referred to already in part in dealing with the question of “valid reason.” Ms Kapoor asked for further details about the allegations but was told that detail could not be provided. The first time that she actually saw these details was when they were contained in the materials provided by Teleperformance in response to her unfair dismissal application.
(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
The circumstances surrounding the attendance of a support person appear somewhat unusual. Ms Kapoor was asked on two occasions whether she wanted a support person present in any of the meetings. However, she indicated in cross-examination that she rejected these offers on each occasion. However, in the meeting on 26 February Mr Phillips then asked who her team leader was. When she told him that it was “Luca,” Mr Phillips then asked him to join the meeting.[43]
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
Ms Kapoor was not provided with a warning and was instead summarily dismissed on grounds of serious misconduct.
(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.
(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.
These two matters can be dealt with together. Teleperformance is quite clearly not a small business and is instead part of a larger multinational organisation that has operations located in a number of different countries. It also has a dedicated HR manager employed in the Australian business and it can be expected as a consequence that it would be aware of the procedures to be followed in dismissing an employee.
(h) any other matters that the FWC considers relevant
Ms Kapoor states that she has suffered financially as a consequence of her termination and is concerned about the way in which she was treated. These are normal and understandable reactions from someone in her position. However, she also states that the chances of finding work elsewhere have been made more difficult by the fact she was dismissed on grounds of serious misconduct, and this is made clear in the Employment Separation Certificate she was given. She also understands that this was confirmed by Teleperformance when reference checks were made.
Conclusion
I have had regard to all of the submissions and evidence provided by the parties in these proceedings. As indicated, I have also had regard to each of the matters in s.387 that the Commission is required to take into account. I am satisfied in all the circumstances that Ms Kapoor’s termination was at least “harsh” and “unreasonable” and that she has therefore been unfairly dismissed. In coming to this decision I have had particular regard to the conclusions reached in regard to “valid reason,” and to the opportunity given to Ms Kapoor to respond to the reasons relied on for her termination. Having come to this conclusion I am now required to consider what is an appropriate remedy in the context of s.392 of the Act. I am also satisfied that reinstatement is not a relevant consideration. Ms Kapoor does not seek to be reinstated to her position, and Teleperformance is opposed to any suggestion of her being reinstated, given its view that she deliberately entered incorrect email addresses.
Remedy
Section 392 states:
“Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1 must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”[44]
In dealing with the amount of compensation to be awarded it is necessary to take into account all the circumstances of the matter, including the specific matters identified in s.392(2)(a) to (g), and to consider the other relevant requirements in s.392. The long established approach to the assessment of compensation under s.392 is to apply the formula derived from the Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (‘Sprigg’).[45] This approach was more recently confirmed in the context of the present legislative framework by the Full Bench in Bowden vOttrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge (‘Bowden’).[46] The first, and perhaps most important step to be taken, is to determine what the employee would have received by way of remuneration, or would have been likely to receive, if they had not been dismissed. This was described in Bowden in the following terms:
“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’. This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the ‘anticipated period of employment’ are deducted. An example may assist to illustrate the approach to be taken.”[47]
Once this assessment has been made various adjustments are then required to be made, including the amount of income earned since the time of dismissal, any amount on account of contingencies, any reduction on account of the employee’s misconduct, and the application of the statutory salary cap. This approach is, however, subject to the overarching requirement to ensure that the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.
I now turn to deal with the matters in s.392 in the order in which they appear. There is nothing to suggest, firstly, that there is any issue concerning the effect of any order of compensation on the viability of Teleperformance. It is a relatively large organisation with a significant presence in Australia, and it also has operations in a number of different countries. Ms Kapoor was also employed for a period of less than 12 months. This is obviously not an extensive period of time, even with the level of turnover that might typically be associated with the call centre industry, but it is not insignificant. Ms Kapoor was also placed briefly on a performance improvement plan during the course of last year, but she was not subject to this at the time of her termination.
The Commission is next required to consider what remuneration the person would have received if they had not been dismissed. This involves making an estimate about how long they might have remained in employment had they not been dismissed. As indicated, it is inevitably a matter that is difficult to come to a conclusion about. I am satisfied that Ms Kapoor had a reasonably good employment record, apart from the issue that led to her employment being terminated, and it could be expected that she would have continued in this role for a further period of time if not for her having been dismissed. There is, for example, no evidence to suggest Ms Kapoor was a poor performer, or that her employment was otherwise in jeopardy. As indicated, she had briefly been placed on a performance review plan last year, but was not under any performance review process at the time of her termination. She also indicated that she was reliant on her income from her employment to maintain her lifestyle. I am accordingly satisfied that it is reasonable to assume in all the circumstances that Ms Kapoor would have been employed by Teleperformance for a further period of at least twelve months if not for her unfair dismissal. The submissions provided to the Commission indicate that she earned a gross amount of $47,264.73[48] in the previous twelve months. It is reasonable to assume she would have earned a similar amount in the following twelve month period.
Ms Kapoor provided some evidence about her attempts to mitigate the income lost since her dismissal. She stated that it had been difficult to find to work elsewhere, despite attending several interviews, because her record indicated that she had been summarily dismissed on grounds of serious misconduct from her previous employment. However, she had been able to obtain some limited casual work as a cleaner but this was only carried out on an intermittent basis. However, Ms Kapoor represented herself in the proceedings and appeared to be an articulate and capable person in the circumstances. It is reasonable to assume that despite the difficulties she has had in the recent past she will be able to find other employment in the near future. I am accordingly satisfied that it is appropriate to deduct an amount of $25,000 from the remuneration earned, or the remuneration that Ms Kapoor is likely to earn over the corresponding 12 month period. This amount is to be deducted from the figure of $47,264.
The legislation also makes clear that if the Commission is satisfied that the employee’s misconduct contributed to the decision to dismiss the employee then the amount that might otherwise be ordered is to be reduced. Ms Kapoor acknowledged that she may have made mistakes from time to time due to hearing or listening errors but this was not done deliberately. I am satisfied that it is accordingly appropriate to make a deduction of 20% on account of her misconduct.
The decision in Sprigg also makes reference to the requirement to consider the impact of contingencies, and whether they should have any impact on the amount to be awarded. The consideration of contingencies only applies to the anticipated period of employment. I am satisfied that it is appropriate to make a deduction of 20 % from the total amount in respect of these potential uncertainties, particularly given the nature of the call centre industry and the staff turnover that is often involved.
The compensation cap is then referred to in s.392(5) and provides that the amount ordered by the Commission must not exceed the lesser of the total amount of remuneration either received by the person, or to which the person is entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, and half the amount of the high income threshold immediately before the dismissal. That amount is currently $145,400. The amount of compensation proposed is clearly well below the compensation cap.
Conclusion as to Remedy
The amount of compensation that the Commission has accordingly arrived at has been calculated on the following basis:
| · Step 1: | lost remuneration (twelve months) | - $47,264.73 |
| · Step 2: | remuneration earned or likely to be earned | - $25,000.00 |
| · Step 3: | deduction for contingencies (20 percent) | - $4,452.94 |
| · Step 4: | deduction for misconduct (20 percent) | - $4,452.94 |
| = $13,358.80 |
The final amount of compensation which is derived from the above considerations is therefore $13,358.80, less deduction of any tax as required by law. I am satisfied that this amount of compensation is an appropriate amount in all the circumstances. In accordance with s.392(1) the amount of the order does not include any compensation by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Ms Kapoor by the manner of her dismissal.
The Commission accordingly orders that Teleperformance pay Ms Kapoor the sum of $13,358.80, less deduction of any tax as required by law, within 21 days of the date of this decision. An order to this effect is issued in conjunction with this decision.
COMMISSIONER
Appearances:
M Kapoor on her own behalf.
M Redman for the Respondent.
Hearing details:
2018.
Melbourne:
July 4.
<PR609611>
[1] Fair Work Act 2009 (Cth) s 387.
[2] Attachment to Applicant’s submissions, filed 20 May 2018, “Termination of Employment with Teleperformance”, dated 27 February 2018.
[3] Attachment to Applicant’s submissions, filed 20 May 2018, “Work requirements during investigation”, dated 26 February 2018.
[4] Ibid.
[5] Attachment to Respondent’s submissions, filed 12 June 2018, “Record of Interview”, dated 26 February 2018.
[6] Transcript, 4 July 2018, PN 73 – PN 76.
[7] Ibid, PN 40.
[8] Attachment to Respondent’s submissions, filed 12 June 2018, “Meenakshi Kapoor: Evidence sample”.
[9] Transcript, 4 July 2018, PN 49.
[10] Ibid, PN 65.
[11] Ibid, PN 57.
[12] Ibid, PN 85.
[13] Ibid, PN 89.
[14] Ibid, PN 247.
[15] Attachment to Applicant’s submissions, filed 20 May 2018, “Employment Agreement”, dated 23 February 2017.
[16] Witness statement of Mark Redman, filed 12 June 2018.
[17] Attachment to Respondent’s submissions, filed 12 June 2018, “Record of Interview”, dated 26 February 2018.
[18] Ibid, p 2-3.
[19] Attachment to Respondent’s submissions, filed 12 June 2018, “Demonstration that Agents are Expected to Log Customer Information Correctly Training”.
[20] Ibid, p 2.
[21] Attachment to Respondent’s submissions, filed 12 June 2018, “Meenakshi Kapoor: Evidence sample”.
[22] Ibid.
[23] Transcript, 4 July 2018, PN 115.
[24] Ibid, PN 197.
[25] Ibid, PN 201.
[26] Ibid PN 209 – PN 210.
[27] Respondent’s submissions, filed 12 June 2018, q [4c].
[28] (1995) 185 CLR 410.
[29] Ibid, 465.
[30] [2011] FWAFB 7498.
[31] Ibid, [20].
[32] (1995) 62 IR 371.
[33] Ibid, 373.
[34] [2011] FWAFB 1166.
[35] Ibid, [24].
[36] [2013] FWCFB 6191.
[37] Ibid, [58].
[38] Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).
[39] Ibid, [19].
[40] Attachment to Applicant’s submissions, filed 20 May 2018, “Termination of Employment with Teleperformance”, dated 27 February 2018.
[41] Attachment to Respondent’s submissions, filed 12 June 2018, “Record of Interview”, dated 26 February 2018, p 1.
[42] Transcript, 4 July 2018, PN 115.
[43] Ibid, PN 50.
[44] Fair Work Act 2009 (Cth) s 392.
[45] Print R0235, (1998) 88 IR 21.
[46] [2013] FWCFB 431.
[47] Bowden vOttrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge [2013] FWCFB 431, [33]-[34].
[48] Respondent’s submissions, filed 12 June 2018, q [2b].
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