Mr Craig Spooner v CSC Australia Pty Limited T/A CSC

[2015] FWC 1598

[2015] FWC 1598

FAIR WORK COMMISSION

DECISION

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

Mr Craig Spooner
v
CSC Australia Pty Limited T/A CSC
(U2014/12470)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 24 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Craig Spooner (the applicant) applied on 12 September 2014 for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment by CSC Australia Pty Ltd (the respondent) on 9 September 2014.

[2] The matter was heard on 2 March 2015 in Sydney. The applicant represented himself and the respondent was represented by Mr D Marshall of the Australian Industry Group. The applicant gave evidence on his own behalf. The following gave evidence on behalf of the respondent:

● Ms Nerys Jefferson (National Employee Relations Manager);

● Ms Catherine Matthews (Advisor Human Resources Expert); and

● Mr Benjamin Nelson (Incident Management Delivery Lead).

The evidence

[3] The following represent my findings concerning the facts in the case, based on the evidence presented during the proceedings. I indicate at the outset that I did not find the applicant to be a credible witness. His answers during cross examination were often evasive or frankly implausible 1. He also failed to take the opportunity to challenge most of the evidence of the respondent’s witnesses during cross examination. Accordingly, where there is a conflict in the evidence between that of the applicant and that of the respondent’s witnesses, I prefer the latter.

[4] The respondent is a multi-national software corporation with around 2500 employees in Australia.

[5] The applicant commenced full time employment with the respondent in April 2011 as an Incident Coordinator in the respondent’s Incident Management Team (MIM team). (He had previously completed a number of short term contracts with the respondent.) The MIM Team is responsible for the management and coordination of major incidents affecting the respondent’s customers, leading to the restoration of the affected IT services. The MIM Team operate on a 24/7 basis and is located in Sydney and Kuala Lumpur. There are four shift teams working 12 hour shifts. The nature of the work is time critical. It also requires the ability to work well with other stakeholders, especially other employees and customers.

[6] On 1 November 2011 the applicant was appointed as the Shift Lead for his shift team. According to Mr Nelson:

‘This role is normally appointed to the most experienced member of a shift team and is not a Team Lead or manager role, but someone for team members to go to for guidance if required. The Shift Lead also ensures the workload is distributed appropriately when required to ensure the team is being as effective as possible.’ 2

[7] In June 2013 the respondent decided that for business reasons it needed to move one of the MIM Team to a day shift role. This would involve a reduction in remuneration for the affected employee as there would be a loss in shift loadings. Mr Nelson decided that the applicant would be the most appropriate person for the change in work hours. As he put it in his written statement:

‘The main determining reason for this was the Applicant’s performance. The Applicant was often argumentative with stakeholders that he was working with each day.

With the Applicant working in a day role, the Applicant’s Team Lead and I would be able to better monitor his overall performance, while still being able to meet our day to day operational requirements.’ 3

[8] Beginning around June 2013, Mr Nelson and the applicant’s immediate supervisor (a Mr Kok) observed a trend in the applicant arriving late for work. The applicant’s start time was 10:00 am. He had arrived late for work (between 15 to 50 minutes) on four occasions. On 16 July 2013, after again arriving late for work, Mr Nelson had a meeting with the applicant. The applicant told Mr Nelson that the bus he had to catch was often full by the time it reached his stop and would not pick him up. It was agreed that the applicant’s start time would be changed to help him get to work on time. 4

[9] In August 2013, Mr Nelson and Mr Kok became concerned about a change in both the behaviour and conduct of the applicant. This included outward displays of frustration about specific incidents being managed, and at times, about his colleagues in Malaysia. There would also be instances where the applicant would argue with CSC colleagues and vendors on the phone. Following a specific incident a meeting was held with the applicant on 28 August 2013 where he was given a formal verbal warning. This covered his continual failure to arrive at work on time, unacceptable conduct towards a colleague and continued failure to adhere to the respondent's dress code policy. 5

[10] On 18 October 2013 the applicant received a formal written warning. This was in response to a number of recent events. For example, on 8 October 2013 the applicant failed to attend work for a scheduled meeting and failed to inform his Team Lead or Manager that he was unable to attend. The applicant called a colleague in the office to advise he had fallen asleep on a bus and was going to go home. On a number of other occasions the applicant arrived at work late and/or not wearing clothes that were consistent with the respondent’s dress policy. 6

[11] The evidence is that from November 2013 through to June 2014, the applicant continued to arrive to work late for his rostered shifts, engage in inappropriate conduct with customers and stakeholders and fail to comply with the respondent’s dress code policy.

[12] Matters came to a head after 19 June 2014 when Mr Nelson saw the applicant ‘smoking’ an e-cigarette at his desk in breach of the respondent’s policies. On 24 June the applicant was required to attend a ‘Show Cause’ meeting with Mr Nelson and Ms Jefferson. The applicant declined to have a support person present. With the consent of the other participants he recorded the meeting on his mobile phone. A number of concerns were raised with the applicant, namely:

• Smoking an e-cigarette in the office;



• Failure to comply with dress policy;



• Continuing lateness; and



• Inappropriate interactions with other employees.

[13] Specific incidents were raised with the applicant under each heading, and he was given an opportunity to respond. A Show Cause letter was given to the applicant that day advising that a response in writing was required by close of business 26 June 2014. 7 The applicant was subsequently given until 14 July 2014 to formulate his response.8

[14] The applicant’s final response to the respondent’s concerns contained allegations of bullying and harassment against the applicant’s manager and team leader. 9 These were investigated by Ms Jefferson who concluded they were unsubstantiated.10

[15] A meeting was held on 3 September 2014 where Mr. Nelson advised the applicant of the respondent’s response to the Show Cause letter. The respondent suggested to the applicant that he could resign and receive a ‘financial settlement’ in addition to his ‘standard entitlements’. 11 A further meeting was scheduled for 9 September 2014 at which the applicant would be required to indicate his response to this offer. At that meeting the applicant indicated he had decided to decline the offer. The respondent then proceeded to terminate his employment.12

[16] On the day of the termination of his employment the respondent provided the applicant with a letter of termination that included the following:

‘Show Cause Notice Outcome - Termination of your employment

The purpose of this letter is to notify you that your employment with CSC Australia Pty Limited ("CSC") is terminated effective today 9 September 2014 as a result of your continued failure to perform your role to an acceptable standard.

Reasons for termination
We refer to the:
• verbal warning provided to you on 28 August 2013;
• first written warning letter provided to you on 18 October 2013;
• 'Show Cause Notice' letter provided to you on 24 June 2014; and
• our meetings with you on each of these dates and on 3 September 2014 regarding our concerns relating to your ongoing performance in your role.

A number of concerns relating to your ongoing performance in your role have contributed to our decision to terminate your employment. These concerns include those relating to:
• failure to follow reasonable and lawful directions issued to you by CSC management;
• non-compliance with CSC's policies, including CSC's Smoking Practices policy;
• non-compliance with CSC's Incident Management Processes and Procedure, including in relation to hierarchical escalation, preventing conflict and arguments with stakeholders;
• ongoing and increasing concerns regarding your punctuality at work.

These concerns have been identified and discussed with you. CSC is of the view that you have had a reasonable opportunity to rectify them and have failed to do so to CSC's satisfaction.

Having regard to all of the circumstances, CSC has made the decision to terminate your employment with immediate effect by providing you with a payment in lieu of four weeks' salary in lieu of notice in accordance with your contract of employment. You will also be paid out your accrued but unpaid annual leave entitlements.

In making this decision, CSC has considered your responses to the concerns raised with you, including that set out in your letters dated 30 June 2014 and 11 July 2014.’

Consideration

[17] 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.

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

[19] I am satisfied that the respondent had a valid reason (indeed a number of valid reasons) for the dismissal of the applicant. I am satisfied that that the applicant continually breached the respondent’s policies relating to appropriate dress and smoking in the workplace. He was also regularly unpunctual and exhibited inappropriate behaviour in his dealings with his colleagues. I found the applicant’s attempts to deny or excuse his conduct entirely unpersuasive.

[20] There is no doubt that the applicant was put on notice about the reasons that led to his dismissal both orally and in writing (in particular through the Show Cause process). He was given ample opportunity to respond to those reasons. Indeed he was given more than two weeks to prepare his response to the Show Cause letter.

[21] The applicant was not denied the presence of a support person.

[22] The applicant was given repeated warnings about the respondent’s concerns with his conduct and performance. Unfortunately he failed to take the opportunity to change his behaviour.

[23] The respondent is a large employer with access to specialist human resource management expertise. The procedures it adopted were consistent with its size and sophistication.

[24] There are no other matters that I consider relevant.

Conclusion

[25] The applicant’s dismissal was not harsh, unjust or unreasonable. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

C Spooner on his own behalf.

D Marshall, Australian Industry Group for the respondent.

Hearing details:

2015.

Sydney:

2 March

 1   For example, at PN243-248, 263, 279-299

 2   Exhibit CSC 3, paragraph 10

 3   Ibid, paragraphs 20-21

 4   Ibid. paragraphs 30-33

 5   Ibid. paragraph 43

 6   Ibid. paragraph 83

 7   Ibid paragraph 115

 8   Exhibit CSC 1 paragraph 63

 9   Ibid. paragraph 64

 10   Ibid. paragraph 71 and attachment NJ5

 11   Exhibit CSC 3, paragraph 144

 12   Ibid. paragraphs 84-85

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