Mr Diako Nourfadi v Viatek Technology Pty Ltd
[2017] FWC 819
•20 FEBRUARY 2017
| [2017] FWC 819 [Note: An appeal pursuant to s.604 (C2017/1194 was lodged against this decision and the order arising from this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Diako Nourfadi
v
Viatek Technology Pty Ltd
(U2016/12360)
| Commissioner Roe | MELBOURNE, 20 FEBRUARY 2017 |
Application for relief from unfair dismissal.
Mr Nourfardi was employed as a senior network engineer by Viatek Technology Pty Ltd (Viatek) from December 2015 until his dismissal by Viatek on and from 10 October 2016. Mr Nourfardi was paid four weeks in lieu of notice. Viatek employs more than 180 persons and so it is not a small business. Viatek has human resources expertise. The dismissal was not for reasons of redundancy. Mr Nourfardi’s position was covered by the Professional Services Employees Award 2010. His salary package including superannuation and car allowance was approximately $140,000 per annum. It is not disputed and I am satisfied that Mr Nourfardi is protected from unfair dismissal. The only issue to be determined is whether or not the termination was unfair and if so what should be the remedy.
Mr Nourfardi says in his application that after the business was sold and the new owners took over in mid 2016 he was asked to work in both the office and at country sites. Prior to this he had generally worked from home when he was not at the country sites. He found this onerous and stressful but he agreed to do it. He says that on 6 October 2016 he was asked to work from Bendigo for the day for a meeting with his manager Robert Folbigg. He drove to Bendigo from Melbourne and was given a final written warning concerning attendance at the office and timely submission of time sheets. He says that he then had to drive back to Melbourne that night and was too tired to make it into the office at 8:30am the next day. He says that he received a phone call from Mr Folbigg in the office at about 11:45am on 10 October 2016 and was told that he was being dismissed due to failure to attend the office on time on 7 October and 10 October 2016.
Mr Nourfardi accepts that he arrived at the office on 7 October 2016 at 10:30am and on Monday 10 October 2016 at 11:20am. Normal office hours were expected to be 8:30am or 9am start except when Mr Nourfardi was working on site in the country.
Viatek provided documentary evidence in the form of emails that satisfies me that in the period between April 2016 and 6 October 2016 both Ms Claney and Mr Folbigg had repeatedly raised concerns with Mr Nourfardi about his failure to complete time sheets on time and fully. They explained on a number of occasions why completion of these time sheets was vital to the business. On one occasion on 10 May 2016 Mr Nourfardi wrote to Ms Claney in response to her plea to get the time sheets in on time and that she not have to follow it up every week as follows: ‘it’s just one day Bronwyn and as usual you’re making a scene again”. I am satisfied that Mr Nourfardi did repeatedly fail to complete time sheets fully and on time despite clear instructions that this was a priority for the business.
Mr Nourfardi gave evidence, which I accept, that under the previous ownership of the company he was permitted to work from home. After July 2016 the new management wanted Mr Nourfardi to work from the office. Although Mr Nourfardi did not accept that Mr Folbigg had instructed him to work from the office prior to 12 September 2016, I prefer the evidence of Mr Folbigg and Ms Richardson that he was told that he was expected to work from the office prior to that date. Mr Nourfardi accepts that the issue was raised in the initial meeting in July 2016 following the change of management.
Mr Nourfardi also says in his submission that:
“I was hired to do project work in country and work from home when in Melb. Robert Folbigg bullied for entire few months he was in charge on this”.
I am satisfied that this establishes that the issue of working from the office was repeatedly raised with Mr Nourfardi by Mr Folbigg.
In his original unfair dismissal application Mr Nourfardi said that when initially engaged he was allowed to work from home but:
“after the business was sole and the new management took over on 1 July 2016 agreements changed and I was asked to both work in the office and country sites which made it impossible for me to keep up with my health, family and life in general. But I agreed.”
I am satisfied that this establishes that from July 2016 Mr Nourfardi was aware and had reluctantly accepted that he was required to work from the office when not at country sites.
In this context the evidence of Mr Nourfardi during proceedings that he was not aware of and had not accepted the requirement to work in the office is unsustainable. The lack of consistency of Mr Nourfardi’s evidence on this central point has led me to generally prefer the evidence of Mr Folbigg, Ms Richardson and Ms Claney where it conflicts with Mr Nourfardi’s evidence. Mr Nourfardi insisted on a number of occasions that this is a simple case of unfair dismissal with no warning despite the documentary evidence that the issues were raised with him on numerous occasions prior to the final warning and the existence of the final warning only two working days prior to the dismissal.
For this reason I also prefer the evidence of Mr Folbigg that on 3 August 2016 he spoke to Mr Nourfardi about the requirement that he work in the office. I accept that this was the first time that Mr Folbigg became aware that Mr Nourfardi had lost his licence for six months ending on 2 September 2016. I accept that Mr Folbigg instructed Mr Nourfardi to attend the office on at least three days per week until he got his licence back and then to attend every day.
Mr Nourfardi concedes that, despite this clear instruction, he was rarely in the office during the period until 12 September 2016.
Mr Nourfardi was given a clear written instruction on 12 September 2016 that: “I expect you to work from the Viatek office every day unless you are scheduled to work from a different location.” Mr Nourfardi responded in writing about one hour later; “no problem Robert”. Mr Nourfardi accepts that he ignored this instruction and did not attend the office regularly in the period following 12 September 2016. He was only in the office about one day per week after 12 September 2016. Mr Nourfardi was not required to work in the country on the other four days per week. Even allowing for the requirement to perform work on site in the country on occasion this amounts to clear defiance of Mr Folbigg’s instruction.
Mr Nourfardi suggests that the instructions given were not reasonable. In respect to the instruction concerning time sheets he said that he sometimes had to respond to urgent calls from hospitals to attend to IT or network problems and that he gave this priority over the provision of time sheets. Although this may have been the basis for delayed response on occasion it does not explain the consistent failure of Mr Nourfardi to prioritise the filling of time sheets as instructed by Viatek. I am satisfied that it was reasonable to expect that Mr Nourfardi as a senior well paid employee would both attend to client urgent calls and complete time sheets on time.
In respect to the instruction to work from the office when not in country the reasons given why this was unreasonable by Mr Nourfardi were that he may be fatigued after a long day in the country, that he may have to respond to client needs out of normal hours and that it was inconvenient and unnecessary to travel to the office when he could do most things remotely. I am satisfied that there were strong business reasons related to coordination, consistency and accountability as to why Viatek wanted Mr Nourfardi to work from the office whenever possible. This business need outweighed the inconvenience to Mr Nourfardi in having to travel to the office. Mr Nourfardi’s tardiness with matters such as time sheets also demonstrated why this was a defensible requirement. It is my assessment from the evidence of Mr Nourfardi and from the Viatek witnesses and, taking into account the fact that Mr Nourfardi did not have a car licence for most of the period from July 2016, that the requirement for country trips was relatively infrequent. I therefore do not accept that the need to recover from those trips was a reason why the instruction to work in the office at regular times was unreasonable. I also consider that, having regard to the level of Mr Nourfardi’s remuneration, the requirement to combine work in the office with some out of hours office work was reasonable.
I accept that Mr Nourfardi was unhappy about the instructions, however, I am satisfied that the instructions to work from the office during normal office hours when not required in the country and to fill in the time sheets in a timely manner were reasonable instructions. Mr Nourfadi says that he was trying to get a face to face meeting with Mr Folbigg to discuss work allocation and the decline in jobs available to him but was unsuccessful. I do not consider this affects my conclusions in respect to the reasonableness of the instructions in respect to timely completion of time sheets and attendance at the office.
Mr Nourfardi was instructed to attend a meeting at the Bendigo office at 10:30am on 6 October 2016. He arrived at 10:45am. Mr Folbigg and Ms Richardson were present. Mr Nourfardi says the meeting lasted 30 minutes while the other two participants say it lasted one hour. All participants agree that the expectations that time sheets be filled in fully and on time and the attendance at the office during normal office hours were discussed. All participants agree that Mr Nourfardi explained why he did not agree he should have to work in the office but Mr Folbigg said that it was essential for the business and that it was a requirement. All participants agree that Mr Nourfardi was put on notice that he was required to attend the office during normal office hours each day and that he was required to fill in the time sheets. Prior to the meeting Ms Richardson had prepared a final warning notice which was then provided to Mr Nourfardi and he signed to acknowledge that he had received the final warning.
Mr Nourfardi left the Bendigo office at about 3:45pm to travel back to Melbourne. Mr Nourfardi gave evidence that it took him about 2.5 hours to travel to and from Melbourne allowing for half an hour stop along the way. Mr Nourfardi gave evidence that he arrived home at 7:30pm. He subsequently suggested it might have been 7pm. He does not recall any special events or circumstances on this trip. I do not accept Mr Nourfardi’s evidence. I am satisfied that if the trip had taken him more than three hours he would have remembered the particular cause of the unusual delay. Bendigo to Doncaster in Melbourne is 165 kilometres via freeway most of the way. Mr Nourfardi lost his licence on two occasions for speeding in the previous 18 months. I am satisfied that Mr Nourfardi would have arrived home by 6:15pm on 6 October 2016. For this reason I reject his evidence that he was unable to attend work until 10:30am on the next day because of fatigue. If Mr Nourfardi thought that driving to Bendigo was too tiring then he could have taken the train.
Mr Nourfardi says that he was late for work on Monday 10 October 2016 because he needed to pack up his home office and take it to work given that he was now instructed to work from the office. The instruction to work from the office had been given several times earlier. I do not accept that this is a satisfactory explanation as to why a senior and highly paid employee would be unable to get to work before 11:20am in circumstances where the issue of his attendance at the office was a major issue and he was aware of its importance. I cannot see why Mr Nourfardi could not have loaded up the necessary items in his car earlier in the day or on the weekend so that he could have arrived at work at 8:30am or 9am. Mr Nourfardi did not raise this reason for his late attendance on 10 October 2016 with Viatek prior to the hearing of this matter.
In deciding whether or not the dismissal was unfair I am required to consider the following:
“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.”
Was there are a valid reason related to Mr Nourfardi’s capacity or conduct?
I am satisfied that the repeated failure of Mr Nourfardi to follow instructions in respect to time sheets and working from the office in normal office hours was a valid reason for termination. I am satisfied that Mr Nourfardi repeatedly defied clear instructions in respect to both these matters. The pressure of other important duties may have explained poor timeliness with completing time sheets and failure to attend the office on some occasions. However, given the frequency and level of non-compliance and the element of direct defiance the conduct is a valid reason for termination. I accept the evidence of Mr Folbigg and Ms Richardson that compliance with these two matters was essential for the business. Work could not be effectively managed and clients could not be properly charged without compliance with these two matters.
I am also satisfied that Mr Nourfardi avoided telling Mr Folbigg that he had lost his licence for six months. I accept that Mr Nourfardi had made others aware of the situation at an earlier stage but he did not inform Mr Folbigg when he became his manager. Part of Mr Nourfardi’s duties was to service country hospitals and on occasions this involved trips to those locations to fix IT and network problems. The fact that Mr Nourfardi made these trips when he did not have a valid licence and failed to tell his direct manager is a further valid reason for termination of employment. Mr Nourfardi was in receipt of a substantial car allowance during the entire six month period when he was legally unable to use the car and the non-disclosure of this matter to his immediate manager is more disturbing given the continuing receipt of the car allowance.
Was the Mr Nourfardi notified of the reason?
It is not disputed that Mr Nourfardi was aware that the reason for termination was his failure to attend work on time on the two business days after he had received a final warning related to the requirement to attend the office during normal office hours.
Was Mr Nourfardi given an opportunity to respond to the reason for dismissal?
In the proceedings Mr Nourfardi did not dispute that he was given an opportunity on 6 October 2016 to respond to the requirement and he did not dispute that he was on notice that it was regarded as an important matter and that failure to comply could result in dismissal. I am satisfied that the opportunity to respond at the 6 October 2016 meeting was reasonable and that Mr Nourfardi’s objections were explained and they were considered and responded to.
However, on 10 October 2016 Mr Nourfardi was dismissed in a short telephone call. I am not satisfied that during this phone call, without notice, Mr Nourfardi was provided with an adequate opportunity to respond to the reason for his proposed dismissal. Mr Folbigg gave evidence that he asked Mr Nourfardi to explain why he was late on 7 October and 10 October 2016. Mr Nourfardi denies that this occurred and says that this only occurred in a subsequent conversation shortly after he had been dismissed. Mr Nourfardi says that the call only lasted a few seconds and that he was not given any opportunity to respond. I prefer Mr Folbigg’s evidence that he did ask Mr Nourfardi to explain why he was late on the two occasions. I also accept Mr Folbigg’s evidence that Mr Nourfardi failed to provide an adequate or convincing explanation. I come to that conclusion in part because Mr Nourfardi was unable to provide an adequate or convincing explanation at the hearing of this matter. However, I am satisfied that Mr Nourfardi did not have a real or meaningful opportunity to influence the decision maker in the phone call. I reach this conclusion because of the lack of warning of the phone call and its acknowledged brevity.
Was Mr Nourfardi refused a support person?
There was no notice of the phone call and so there was no opportunity for Mr Nourfardi to have a support person. However, there was no request for a support person and no denial of a request.
Was Mr Nourfardi warned?
To the extent that the matters in question relate to performance I am satisfied that Mr Nourfardi was adequately warned about the issues of time sheets and office attendance and was provided with adequate opportunity to improve. I am not satisfied that, given the seniority of Mr Nourfardi’s position, these were issues that required any extensive training, coaching or assistance. The two matters were quite straightforward work requirements. Given that Mr Nourfardi’ conduct in respect to these two matters included elements of defiance of reasonable instructions I am satisfied that they were essentially issues of conduct not performance.
Size of employer and human resources expertise.
These are neutral factors as the business is a large one and it has human resources expertise. These factors do not excuse or reduce the importance of any failings of procedural fairness.
Other factors.
The short period of employment, less than 10 months, is a factor which is relevant.
Mr Nourfardi suggests that the change in management requirements after July 2016 is an important factor. I accept that Mr Nourfardi had difficultly coming to terms with the change in management associated with the shift from a small company to a large company and the consequential more rigorous reporting requirements. However, I am satisfied that Mr Nourfardi had adequate notice of the change and the changed expectations.
I do not consider that dismissal was a disproportionate response to the defiance of reasonable management directions in circumstances where the matters in issue were reasonably regarded as critical to the business.
The other factor which is relevant in this case is the poor drafting and confusing nature of the final warning letter. The letter sets out the concerns with Mr Nourfardi’s conduct and that these concerns have been raised on a number of occasions over the last three months. The concerns are the attending the office during usual hours and lack of urgency in entering time sheets. The letter notes that there has been little improvement in these matters and that “we require immediate action to eliminate these behaviours”. The letter then says:
“As a result you will be placed on a 12 week period of review, where you will undergo a regular bi-weekly coaching session with myself, for the next eight weeks and monthly for the remaining four months. These sessions will focus on:
· Accountability for time, effective, timely time sheeting
· Working within the Melbourne Office
On completion of these sessions we will meet again to discuss your progress, review the provisions discussed above.
Any further error in this area, may lead to instant dismissal of our employment with Viatek Technology Pty Ltd.”
The warning letter raises obvious questions:
· Is the review period 12 weeks or six months?
· Is the notice saying that after the review period involving regular coaching there will be a meeting to review progress and if there is any further error after that then you may be dismissed? Or
· Is the notice saying that you will have coaching and assistance and a review but regardless of that you are expected to fully comply immediately and any breach could lead to instant dismissal?
The letter is unfortunate but considered in context of what occurred before the 6 October 2016 meeting and after that meeting I am satisfied that it should be understood as putting Mr Nourfardi on notice that any failure to attend the office in normal hours or to fill in time sheets in a timely manner could lead to dismissal. I accept the evidence of Ms Robinson and Mr Folbigg that this was made clear during the 6 October 2016 meeting. There was no substantial challenge to this evidence from Mr Nourfardi.
Was the dismissal unfair?
I am satisfied that there is only one factor which stands in favour of a finding that the dismissal was unfair and that was the inadequacy of the opportunity to respond to the reasons for dismissal in the telephone conversation on 10 October 2016. In many cases the failure to allow a reasonable opportunity to influence the decision maker is sufficient to make the termination unfair. However, this is an unusual case where I am not satisfied that this factor is sufficient to make the termination unfair. I reach this conclusion because:
· The strength of the valid reasons for termination. Mr Nourfardi had repeatedly defied reasonable management instructions. He had been provided with a final warning concerning the issue of attendance at the office in normal working hours and then on the next two working days he failed to attend in a timely manner without reasonable excuse.
· The close proximity of the final warning. Mr Nourfardi had received a final warning about the matter only two working days earlier. He had had an adequate opportunity to respond to the issues at that meeting.
· The nature of the business. Mr Nourfardi’s manager worked in Bendigo and Mr Nourfardi’s office was in Melbourne. This made it difficult for Mr Folbigg to talk to Mr Nourfardi except on the telephone.
· The straightforward nature of the issue in question. The requirement to attend the office during normal working hours was not complex. The issue of whether there was compliance with the direction or not was easy to assess. Either Mr Nourfardi had a reasonable explanation for failure to comply on the two days in question or he didn’t. Mr Nourfardi could not provide a reasonable explanation for his failure to attend the office on time.
For these reasons, taking into account all of the factors listed in Section 387 of the Act I am satisfied that the dismissal was fair. The application is dismissed and an Order to that effect is published separately.
COMMISSIONER
Appearances:
Mr D Nourfadi represented himself.
Ms K Richardson appeared for the Respondent.
Hearing details:
2017
Melbourne
February 3
Printed by authority of the Commonwealth Government Printer
<Price code C, PR590104>
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