Mr Frederikus Hogendorn v Nokia Solutions and Network T/A Nokia
[2020] FWC 4476
•25 AUGUST 2020
| [2020] FWC 4476 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Frederikus Hogendorn
v
Nokia Solutions and Network T/A Nokia
(U2020/870)
COMMISSIONER HUNT | BRISBANE, 25 AUGUST 2020 |
Application for an unfair dismissal remedy – breach of process – lengthy performance management – dismissal not harsh, unjust or unreasonable – application dismissed.
[1] On 28 January 2020, Mr Frederikus Hogendorn made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Nokia Solutions and Network T/A Nokia (Nokia). Mr Hogendorn seeks a remedy of reinstatement.
When can the Commission order a remedy for unfair dismissal?
[2] Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and
(b) the person has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether Mr Hogendorn was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr Hogendorn was so protected, whether he has been unfairly dismissed.
When is a person protected from unfair dismissal?
[4] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Determinative conference
[6] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. After taking into account the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference. 1 The determinative conference was conducted by telephone.
[7] Mr Hogendorn appeared and gave evidence on his own behalf. The following Nokia personnel appeared for Nokia:
• Mr Blake McManus, HR Oceania Lead;
• Mr David Keith, In-house legal counsel;
• Mr Paul Hadfield, HR Consultant
[8] Mr Jeff Sharpe, Managed Service and Delivery Manager – QLD gave evidence for Nokia and was cross-examined at the determinative conference.
Has Mr Hogendorn been dismissed?
[9] A threshold issue to determine is whether Mr Hogendorn has been dismissed from his employment.
[10] Section 386(1) of the Act provides that a person has been dismissed if:
(a) the person’s employment with their employer has been terminated on the employer’s initiative; or
(b) the person has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.
[11] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that Mr Hogendorn’s employment with Nokia terminated at the initiative of Nokia. I am therefore satisfied that Mr Hogendorn has been dismissed to satisfy s.385(a) of the Act.
Initial matters
[12] Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[13] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
[14] It is not disputed, and I find that Mr Hogendorn was dismissed from his employment on 11 January 2020 and made the application on 28 January 2020. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was Mr Hogendorn protected from unfair dismissal at the time of dismissal?
[15] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[16] It was not in dispute and I find that Nokia is not a small business employer, having 15 or more employees at the relevant time.
[17] It was not in dispute and I find that Mr Hogendorn was an employee, who commenced his employment with Nokia on 14 October 2013 and was dismissed on 11 January 2020, a period in excess of 6 months.
[18] It was not in dispute and I find that Mr Hogendorn was an employee.
[19] I am therefore satisfied that, at the time of dismissal, Mr Hogendorn was an employee who had completed a period of employment with Nokia of at least the minimum employment period.
[20] It was not in dispute and I find that, at the time of dismissal, the sum of Mr Hogendorn’s annual rate of earnings (being $99,676.87) together with such other amounts worked out in accordance with regulation 3.05 of the Fair Work Regulations 2009 (being a mobile telephone and a company laptop), was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2019 and at or before 30 June 2020 is $148,700.
[21] I am therefore satisfied that, at the time of dismissal, Mr Hogendorn was a person protected from unfair dismissal.
[22] Neither the Small Business Fair Dismissal Code nor the considerations relevant to a case of genuine redundancy are relevant to this application.
[23] Having considered each of the initial matters, I am required to consider the merits of Mr Hogendorn’s application.
Disciplinary issues and termination of employment
[24] Mr Hogendorn was employed as a Main Telephone Exchange (MTX) Manager by Nokia. He worked at the MTX site at Coorparoo, Queensland providing supervision of MTX sites operated by Nokia that serviced customers including Vodafone (VHA).
November 2018
[25] As late as November 2018, complaints had been received regarding Mr Hogendorn’s behaviour at work, including that he had been found asleep on the job and had engaged in discussions considered to be rude and disrespectful with a Nokia employee who did not speak English as their primary language. On 27 November 2018, Mr Hogendorn had a meeting with his line manager, Mr Jeff Sharpe, State Manager – QLD, and Mr Paul Hadfield, HR Consultant. Mr Hogendorn was advised of the complaints and responded to them at the meeting, as below:
“2018.11.27 Meeting
1.30m Sydney
Attendees: Fred Hogendorn, Jeff Sharpe and Paul Hadfield
Hi Fred,
We have received some complaints via the customer and would like to investigate these further with you. Jeff Sharpe will attend the call on site with you at Coorparo Exchange.
I will call you both via the webex below.
Kind regards
Paul
PH: Thanks for attending the meeting. We have received some complaints regarding your conduct and wanted to discuss this with you. Examples are:
Customer finding you asleep at the job
Discussion with a Nokia employee what has English as a second language – your approach was considered rude and disrespectful.
FH: I’m very surprised. Customer complained about sleeping on the job…where? In this room? I am responsible to maintain the networks and sometimes I’m bored so I may sleep.
JS: Do you find other things to do? There are 1st aid kits pending.
FH: All have been updated and in the store.
JS: How do you update the customer?
FH: I update facilities (Shane) and Operations (Andrew Bone).
JS: If you worked more hours and tired then you need to take time off. Your job is monitored.
FH: I understand that it is not acceptable when on the job. But I have nothing to do. My JD is not clear.
JS: I have reviewed the JD with you and covered all of what needs to be covered. If the customer comes into the office then they would say that this is a mess (the room), it compares to a boys bedroom.
FH: OK, I will clean it up.
JS: if you’ve got nothing to do then contact me, as your line manager, I will find you something to do. Is there anything medical?
FH: I’m not 20 anymore.
JS: Everyone is aware, so you need to change their opinion of you and you need to clean the place. There is a bad perception of you in Nokia and the customer and you need to change their perceptions.
FH: I am surprised that no one spoke to me before.
JS: Did you see the photos of you in that were taken?
FH: I will wait for you to keep me active.
JS: I will produce some reports and action points to keep you engaged and active. The complaint regarding being abrasive with GDC employees.
FH: We need to get better speaking GDC employees. Can I suggest that if you receive complaints that you let me know.
JS: Yes of course.”
[26] Following the meeting Mr Sharpe sent an email to Mr Hogendorn on 29 November 2018 outlining the complaints and action to be taken by Mr Hogendorn to address them:
“Hi Fred,
Thank you for attending the meeting with myself and Paul yesterday the 27th of Nov at 1230pm QLD time.
As discussed there were two complaints regarding your performance. The first was a complaint regarding sleeping on the job and the second was in regards to a conversation with a GDC employee that claimed you were abrasive and rude.
You explained that there weren't enough activities to keep you busy and this is why you were sleeping. In our discussion we agreed to set some activities to keep you active and engaged in the office. You also confirmed that there was no medical issue that causes your sleep at work. You agreed that this would have and drastic negative effect on the perception (from the customer) on you as an individual and Nokia as a company.
You also explained that it was difficult dealing with the GDC due to language challenges. The GDC is a global team that all of Nokia needs to work with to support our local customers. It is important that we find a way of working together and respect others, which is one of the company values.
Please understand the severity of this situation and that unless these issues are resolved further action will be taken.
I'm glad that we were able to have an open discussion, and as agreed I have set some activities below to support you moving forward:
1. Daly/Weekly report on all onsite activities including names and times of contractors entering and leaving the premises (as per attached with examples filled in on second tab)
2. Ensure that the office space and common areas of the exchange are kept clean and tidy
3. Contact me if you do not have any actions/activities to ensure that we keep you engaged and productive. You can also expect to be issued tasks from others within the VHA Nokia team. Please use these tasks to keep yourself more engaged and utilised.
4. Inform me immediately of any complaints or altercations so that we can address and resolve them quickly
5. Deal with all internal and external stakeholders in a professional manner and be patient and understand with others where English is not their first language.
Can I also ask for you to start preparing a schedule of the routines that you must undertake in both sites. This is to include Technology, type of routine, frequency and duration.
I hope that these activities help to turn things around and that we have your engaged and productive in your role. Let's continue to keep talking on these points. I would propose that we have a follow up meeting in the next few weeks to see how you are progressing. I will schedule something in the calendar.
Many thanks
Jeff Sharpe”
June 2019
[27] On 5 June 2019, Mr Hogendorn was sent a letter signed by Mr Sharpe. The letter said that Nokia had received several complaints from the customer over a sustained period of time regarding his behaviour and demeanour during working hours on the customer’s premises. Photographic evidence was shared with Nokia and attached to the letter. The letter advised that a meeting would be held on 12 June 2019 and invited Mr Hogendorn to bring a support person, as below:
“Dear Fred,
CONFIDENTIAL – REQUIREMENT TO ATTEND INVESTIGATION MEETING
The business (we) are instructing you to attend a meeting with regards to your performance whilst engaged in your role with Nokia.
The allegation, which is not yet substantiated or confirmed hence the investigation meeting, is that we have received several complaints from the customer over a sustained period of time regarding your behaviour/demeanour during working hours on the customer premises. Photographic evidence was shared with Nokia and are attached with this letter.
I would like to meet you in on Monday 12th June 2019 at 2pm to discuss this issue and hear your feedback regarding this allegation. Paul Hadfield from HR will also be in attendance. You are welcome to have a support person present at the meeting, however should you decide to bring a support person then please confirm who they are prior to the meeting.
During the meeting we will ask for your feedback and comments. Following the meeting I will meet with HR to fully consider all the facts and then agree a way forward. At this stage no decisions have been made.
If you have any questions about this letter or the process, then please don’t hesitate to contact me or Paul Hadfield.
Yours sincerely,
Jeff Sharpe
Managed Services and Delivery Manager – QLD
Nokia Solutions and Networks”
[28] Mr Hogendorn attended the meeting on 12 June 2019 but after having the complaints put to him, he advised he was presently on sick leave and had a medical certificate and had attended specifically for the meeting. On account of Mr Hogendorn having been declared unfit to attend for work the meeting was postponed.
September 2019
[29] On 10 September 2019, Mr Hogendorn returned to work having been declared fit to return to work. The meeting was rescheduled for 17 September 2019. On 19 September 2019 he was issued with the following first written warning:
“Dear Fred,
First Written Warning letter
I write to you with regards to your work performance with Nokia Networks (the Employer/Company).
You attended a meeting with Paul Hadfield (Human Resources) and I on 17 September 2019. You were given the option to have a support person attend but declined. During the meeting you were advised that there were some concerns regarding your performance, and you were given the opportunity to respond to the following claims raised:
1. Following a Customer site visit there were complaints made by the customer that during the inspection you did not seem to care. The feedback was that you were not at all professional in your inducting them into the site.
2. During a Service Excellence Workshop, you had several emotional outbursts that surprised and shocked many people and made them feel uncomfortable. The outbursts were abrasive and rude and were unwarranted under the circumstances.
3. There are concerns regarding your attendance to the sites and not completing the work that has been requested to be done. There was also concerns that you spend considerable amount of time on your phone and that we had a customer email including a photo of you playing games while you were at your desk.
During the meeting we discussed the complaints made by the customer and by internal employees. You stated that you don’t deal with people often and I stated that part of the reason for this is because they tend to avoid you due to your abrasive behaviour. You asked for some examples of the feedback which I will share separately, however I cannot disclose who the individuals are. You did confirm that you are willing to work on this issue during the meeting.
We talked about your attendance and you mentioned that on occasion you work late. We need to find a way of capturing this so that we can report and confirm your attendance. We also need to demonstrate that you are performing within your role. We discussed some of the tasks that were issued to you by Rob Sykes and were considered not to have been completed adequately. I confirmed that I did give the instruction to Rob, however I will be more involved moving forward.
We also discussed that this was the second meeting of this type over the last 12 months and that your attitude and professionalism needed considerable work and you agreed with this.
After full consideration of your feedback the Company has decided to issue a first written warning letter.
I would like to meet with you within the coming 10 days to agree targets moving forward. You should be aware that should you continue to not meet the expectations agreed then you may be issued with additional warnings which may result in your employment with the Company being terminated.
If you wish to respond to this formal warning letter, then please do so by contacting me on [redacted] or by replying in writing.
Yours faithfully,
Jeff Sharpe
Managed Services and Delivery Manager – QLD
Nokia Solutions and Networks”
October 2019
[30] On 1 October 2019, Mr Hogendorn attended a meeting where a Performance Improvement Plan (PIP) was established. The PIP commenced on 3 October 2019. The PIP identified three objectives, being:
(a) attitude and professional behaviour, measured on the basis of zero complaints from GDC, customers and colleagues about attitude in daily interactions;
(b) productivity, measured on the basis that when issued a “required by” date that is within reason, Mr Hogendorn must do everything in his power to complete the task with zero delays beyond agreed time frames without prior agreement; and
(c) attendance and focus on job-related activities, measured on the basis of zero complaints about overuse of phone for personal activities and 100% attendance when not on leave or respite, with any leave or respite to be communicated to Mr Sharpe via email.
[31] The PIP established dates for updates and outcome, requiring a meeting in 6 weeks, 3 months, and then formal review.
November 2019
[32] On 15 November 2019, Mr Hogendorn was required to attend a meeting regarding customer complaints about the maintenance of the building. On 27 November 2019, he was given a final written warning which read:
“Dear Fred,
Final Written Warning letter
I write to you with regards to your work performance with Nokia Networks (the Employer/Company).
You attended a meeting with Paul Hadfield (Human Resources) and I on 15 November 2019. You were given the option to have a support person attend but declined. During the meeting you were informed that the customer had raised concerns regarding the status of the Coorparoo MTX site. As per your PIP, you are targeted with maintaining the status of the site so that we do not receive complaints. You were asked to give your feedback which we received 25 November 2019 where you responded by demonstrating that you have now addressed the complaints raised. However, this did not explain why the site was allowed to fall into such a condition that created the customer to complain. The PIP is in place to ensure that we do not have these escalations.
After full consideration of your feedback we have decided to issue you with a Final Written Warning. This warning will remain in place for the next 12 months from the date of this letter.
I have attached with this letter the PIP document with my comments from our meeting. The terms of the PIP will continue, and I encourage you to focus on ensuring that these targets are maintained. Should you continue to not meet the expectations agreed, then you may be issued with an additional warning which may result in your employment with the Company being terminated.
In addition, I would like to point out that these PIP discussions are a confidential internal Nokia matter. It was not appropriate for you to share this information with the customer. You were instructed in the meeting not to speak to the customer regarding this complaint and that I would deal with the customer directly. This behaviour is inappropriate, and you should not disclose such information to the customer. The final outcome of your actions regarding this matter is still under consideration.
If you wish to respond to this formal warning letter, then please do so by contacting me on [number redacted] or by replying in writing.
Yours faithfully,
Jeff Sharpe
Managed Services and Delivery Manager – QLD
Nokia Solutions and Networks”
December 2019
[33] On 19 December 2019, Mr Hogendorn was required to attend a further meeting regarding complaints that he had removed underfloor cables and equipment without customer approval. On 20 December 2019, Mr Hogendorn sent the below email to Mr Sharpe and Mr Hadfield:
“Hi Guys,
In response to the latest email, I requested a CR from the VHA guys that did the recovery work on 6-11-2019 but I never received a response, but the work still had to be cleaned up.
No INC was generated when I removed the redundant cut/removed cables under the flooring, and the VAM and ODF units that where also made redundant. (stored in new cold store room)
This was indicated at our last meeting.”
[34] After the meeting of 19 December 2019, an investigation was undertaken. Mr Hogendorn was sent a letter advising of the outcome of the investigation on 8 January 2020 which read:
“Dear Fred,
CONFIDENTIAL - REQUIREMENT TO ATTEND INVESTIGATION MEETING OUTCOME
You attended an investigation meeting with Paul Hadfield (Human Resources) and I on 19 December 2019, where we discussed a complaint raised by the customer. We agreed that we would wait for your feedback and conclude the investigation process in the new year.
I would like to meet you on Friday 10 January 2020 at 10.00am to share the outcome of the investigation. Please note that this issue is an internal Nokia discussion and is therefore confidential and should not be discussed outside of the group of participants to the meeting without permission from myself. Paul Hadfield from HR will also be in attendance.
You are welcome to have a support person present at the meeting, however should you decide to bring a support person then please confirm who they are prior to the meeting.
If you have any questions about this letter or the process, then please don't hesitate to contact me or Paul Hadfield.
Yours sincerely,
Jeff Sharpe
Managed Services and Delivery Manager – QLD
Nokia Solutions and Networks”
[35] Mr Hogendorn was notified of his dismissal at the meeting on 10 January 2020 and in writing that day. He was informed the dismissal would take effect from 11 January 2020. The termination letter stated:
“Dear Fred,
Termination of Employment
I write to you with regards to your work performance with Nokia Networks (the Employer/Company).
You attended an investigation meeting with Paul Hadfield (Human Resources) and I on 19 December 2019. You were given the option to have a support person attend but declined. During the meeting you were informed that the customer had raised concerns regarding changes you made at the customer site without their approval.
You provided your feedback via email on 20 December 2019 where you demonstrated that you requested permission from the customer to make changes to the site, as you are aware the we require customer approval before action is taken. However, the customer did not provide consent to proceed and you therefore took action without their approval.
Having fully considered your feedback, the complaint from the customer and how this relates to your ongoing PIP and your Final Written Warning, the Company has decided to terminate your employment based on performance. Due to the sensitivity of your role and access to the customer network, your employment with the Company will cease today, 10 January 2020.
Over the coming weeks, you will be asked to return all company property and complete the exit checklist with myself. A statement of employment can be obtained from HR Connection.
You will be paid all outstanding entitlements, such as outstanding leave and payment in lieu of notice. Final payment calculations will be made on or around the 15th of the month following your last working day to your bank account.
Please note that this is an internal Nokia discussion and is therefore confidential and should not be discussed with the customer. If you need to approach anyone within Nokia then I would encourage you to speak with Blake McManus, Head of HR Oceania. You have access to Personal Support Services for the next 30 days, should you or your family decided to use them.
On behalf of the Company, I wish you all the very best in your future.
Yours faithfully,
Jeff Sharpe
Managed Services and Delivery Manager - QLD
Nokia Solutions and Networks”
Mr Hogendorn’s evidence and submissions
Allegations of sleeping at work
[36] Mr Hogendorn stated that in early June 2019 he received an email from Mr Hadfield requiring his attendance at a meeting to discuss issues raised in the MTX to be attended by himself via phone and Mr Sharpe, his supervisor. Before this meeting could take place, Mr Hogendorn said he requested and received sick leave approval for the period of 11 June 2019 to 31 July 2019.
[37] Mr Hogendorn attended the meeting on 12 June 2019, and he was informed of an allegation of sleeping while on duty. Mr Hogendorn said he was shown some old photos from 2018 of him sleeping at work. The occasions when he had been asleep at work were 9 and 13 November 2018. The email was a note from Mr Corey Hardwick, National Operations Manager, requesting Mr Hogendorn’s removal. Upon Mr Hogendorn informing Mr Hadfield and Mr Sharpe he was on sick leave the meeting was closed and rescheduled.
[38] Mr Hogendorn considered that there was no evidence of him sleeping at work during the period of 2019. He stated that he had been disciplined in November 2018 relevant to sleeping at work, resulting in losing a 2018 bonus of $4,000 gross.
[39] During his absence on sick leave he underwent a sleep study with Dr Andrew Scott, which confirmed that he had severe obstructive sleep apnoea. Mr Hogendorn described the condition as severe and life threatening. He then underwent surgery to remove his gall bladder, which led to him extending his leave until 14 August 2019.
[40] Mr Hogendorn stated that no further mention of sleeping on the job was brought up until it was mentioned by Nokia as part of its response to his unfair dismissal claim.
First formal warning
[41] Mr Hogendorn stated he was invited to attend another meeting on 17 September 2019. Discussed at this meeting was induction to the site for VHA personnel, Mr Hogendorn’s speaking out at a Service Excellence Meeting, and his attendance at site.
[42] In relation to the issues around induction, Mr Hogendorn said no proof was provided other than verbal statements from Mr Sharpe. Mr Hogendorn said he disagreed with this item and noted that the RASI Matrix on areas of responsibilities and authority was not completed and that he had provided the induction to the best of his abilities, having no instruction from management other than to provide an induction form for visitors to read on entry. Mr Hogendorn said that Vertiv, the main facilities contractor for VHA, provided their own induction paperwork, but he was never given any instructions regarding this paperwork from Vertiv or VHA.
[43] Mr Hogendorn stated that in the six years he and other MTX Managers looked after the contract between VHA and Nokia, he had never been instructed on any part of his duties and responsibilities other than to be told that the MTX managers were hired to be the first call to any incident regarding the VHA network inside the MTXs. Mr Hogendorn said that MTX managers in other states had fortnightly meetings via telephone to discuss any issues with the running of these exchanges; in those meetings they worked on defining what they were required to do to perform the best for the network. Mr Hogendorn said that in those meetings in 2019, he and the other managers were told about the RASI Matrix after VHA personnel attended the MTX site and noticed that improvements were required. Mr Hogendorn said that the RASI Matrix was not signed off at the time of his dismissal.
[44] Mr Hogendorn stated that during his employment there had never been a major outage of the Queensland VHA network, even after two small fires inside the building, generator fails, air conditioning system fails, and minor network incidents that required his skills to fix at any time of the day or night. He stated he was the first person to be called regarding any issues with the MTX, and he was on call 24 hours a day and 365 days of the year. His evidence is that there were many occasions when he was required to work a full day and then attend work inside the maintained window of 11:00pm to 6:00am. He said it was expected that he responds to emails and answer phone calls before starting work onsite to coordinate resources, and this left him little time to sleep before the late-night works. Mr Hogendorn said he was often working more than 18 hours at a time without any breaks, and that this occurred on average one or two times a week.
[45] Mr Hogendorn stated that he took pride in his work and never complained or tried to cause problems. In the November 2018 meeting Mr Sharpe had said he had no problems with Mr Hogendorn’s work in relation to maintaining the network, and his skills in that department were excellent. Mr Hogendorn said he believed this part of his contract was 90% of his job responsibilities, and the remaining 10% was to be on site at one of the MTXs to handle any day-to-day requests.
[46] Mr Hogendorn considered that at the Service Excellence Workshop it was company policy that people are allowed and encouraged to speak up at meetings to put their point of view forward. He stated that he had talked to many Nokia personnel about the meeting and Mr Sharpe was the only person offended. Mr Hogendorn apologised if anyone was offended.
[47] Mr Hogendorn submitted that when staff were required to attend the MTX site for many hours per day, and only interact when contractors or delivery personal came, it is very hard to keep busy. Mr Hogendorn said he would walk around the site to check the facilities and this only required 20 mins per day. Mr Hogendorn said that the only routine was to change a media tape each week, but this stopped in 2017 or 2018. During the determinative conference Mr Hogendorn agreed that there was a photo of him playing on his phone. He stated that he played game on his phone and he had a lot of free time on his hands.
[48] The work that was mentioned at the meeting was to help Mr Rob Sykes clean the paging base stations. It was Mr Hogendorn’s evidence that Mr Sykes had noted that the only problem was that the outside of a cabinet could be cleaned better. Mr Hogendorn said he had since found a product that far exceeded Mr Sykes’s requirements and Mr Sykes was very happy with the outcome from then on.
[49] Mr Hogendorn submitted that during his employment, no contractor or Nokia personnel had ever complained to him that he had been abusive until it was mentioned in the first letter. He was provided with transcript of a conversation between himself and a staff member in 2017 and this was the only evidence that was supplied. Mr Hogendorn said that he had worked with staff from India for six years and he suggested that staff keep to written dialog as the noise level inside the MTX equipment room approached levels of 85 decibels, and it was very hard to hear phone conversations in this environment.
Performance Improvement Plan and maintenance complaint
[50] Following this meeting, Mr Hogendorn said he attended another meeting in October 2019 and agreed to a PIP. The plan was to be reviewed after six weeks.
[51] Mr Hogendorn utilised Nokia’s employee assistance programme, speaking to staff at an organisation called PSS. He spoke with a staff member called Grant, who expressed concern as to the PIP, as it did not seem to match Grant’s expectations of a PIP. Mr Hogendorn requested Mr Hadfield discuss the PIP with Grant, however this did not occur. Mr Hogendorn said he was told that a PIP had to show how he was to change and improve and the metrics of how to measure this.
[52] Mr Hogendorn stated that he received an email in November 2019 to attend to a meeting on 15 November 2019. At this meeting, Mr Hogendorn was informed that Nokia had received a complaint from VHA regarding the state of the equipment room. Mr Hogendorn provided a response at the meeting.
[53] On 25 November 2019, Mr Hogendorn sent an email to Mr Sharpe, Mr Hadfield, and several staff from VHA. The email included a copy of the email sent to Mr Hogendorn on 6 November 2019 which outlined the maintenance issues with the Coorparoo site. Mr Hogendorn outlined in the letter each of the issues and included photos where he had remedied these issues. 2
Termination of employment
[54] Mr Hogendorn said that on 27 November 2019 Mr Sharpe came to the site and hand-delivered the final written warning. Mr Hogendorn said Mr Sharpe told him VHA was conducting an investigation regarding the email Mr Hogendorn had sent on 6 November 2019. Mr Sharpe informed Mr Hogendorn the he should not have sent the email to VHA and should have kept it in-house. Mr Hogendorn submitted that he did not like secrets, and this is why he sent the email to explain myself to VHA who had raised the matter with Nokia. Mr Hogendorn said he did not remember being told not to involve VHA in the matter.
[55] Mr Hogendorn stated that in December 2019, VHA sent Mr Sharpe an email asking why Mr Hogendorn had performed this work without a Construction Request (a CR). Mr Hogendorn explained to Mr Sharpe that he had requested a CR for the works and had sent Mr Sharpe and Mr Hadfield a copy of this email, but he had never received a reply from VHA. Mr Hogendorn said that in hindsight he understood he should never have attempted to clean the MTX equipment room of the redundant items, and that this was his only mistake.
[56] During the determinative conference Mr Hogendorn was asked why he did not complete a CR, despite having been asked twice by a VHA manager. Mr Hogendorn responded, “My state of mind was weighing heavily on me. My state of mind was fragile.”
[57] During the determinative conference Mr Hogendorn stated that he considered that a Nokia employee, Mr Rob Sykes held a vendetta against him. He considered that he was persecuting him. No further evidence was led on this issue.
Mitigation
[58] After the determinative conference and at my direction, Mr Hogendorn filed to my chambers evidence of jobs in which he has applied following the dismissal. This included screen shots of emails in his email inbox between 20 February 2020 and 14 May 2020 related to job applications.
Nokia’s evidence and submissions
Mr Jeff Sharpe
[59] Mr Jeff Sharpe filed a witness statement in the matter and gave evidence at the determinative conference for Nokia. Mr Sharpe had been Mr Hogendorn’s manager since April 2018. He stated that he had been given negative feedback about Mr Hogendorn’s attitude and performance in his duties by the previous manager, Mr Sarim Saeed, the customer (VHA), and some of Nokia’s senior staff.
[60] Mr Sharpe stated that there were some legacy complaints about the fire safety of the Coorparoo MTX that were raised after a fire incident. The entire site was reviewed and deemed non-compliant with fire regulations. It is Mr Sharpe’s evidence that many of the issues were due to poor housekeeping that fell directly in Mr Hogendorn’s remit. Mr Sharpe stated that he had to engage other staff to clean up the facility as Mr Hogendorn was not getting the job done. Once the items had been addressed the customer was satisfied that the site was compliant.
[61] Mr Sharpe said that in the following months there were complaints about Mr Hogendorn sleeping in his office, being rude to Nokia colleagues in India, a demonstrated lack of action with his duties and further complaints about his attendance. Mr Sharpe said he requested assistance from Nokia’s HR department as to the best way to handle this complaint and the other complaints.
[62] Relevant to the complaint of Mr Hogendorn being rude to colleagues in India, the following was sent by a colleague named Mr Maheshkrishna Anupala on 17 September 2018 to Mr Sharpe:
“Hi Jeff,
I would like to bring to your notice of this rude behaviour by Frederikus Hogendorn today, Which shows lack of respect and a very demeaning attitude,
I have never heard anybody complaining about my English so far, am little taken aback by this conversation where he refuses to take my call to explain the problem and says “my English is very bad and hard to understand so writing is better”
It has been quite sometime that I have spoke to Fred in the recent days and has been working with him for the last 5years, We have never seen him like this before, He is a little agitated these days.
I request you to look into this and contain it please.”
[63] A transcript of the online discussion between Mr Hogendorn and Mr Anupala is reproduced below:
“MA: Hello Fred
FH: hi
MA: Good afternoon
FH: how can i help
MA: I would like to have a quick chat with you regarding [code] fault bundle interface swap
If you remember on Sep 10th night you have moved one of the cable to fix the FBB POI issue
Now to replace the faulty cable
FH: that is correct – we moved traffic to another port on 181 and moved spare O/F to fix
MA: I am asking VHA to send a spare cable to you
They might send if via courier. Can I share the contact details for the delivery
FH: why problem fixed – and the fault was not in the cable as we proved on previous night
MA: The problem is with the 1 lead in the MPO breakout cable
FH: no it was not and you know it
MA: Can I call you to explain
FH: no
MA: Ok, The problem is fixed by moving the config to a spare interface [code]
FH: ??????????????????
MA: I will send all the details via email
I need to send a spare cable to Brisbane
May I know where would you like it to be sent to?
Gold Coast MTX or Brisbane MTX?
FH: neither as the fault is not in the cable
MA: I disagree
The problem didn’t follow when the config was moved to a different cable
FH: we have proved the cable with successful loop back
MA: Then can you explain why we keep seeing
Active alarms: LINK
Active defects: LINK, LOCAL-FAULT
And we don’t see this on the new patch cable
FH: as I cannot see the alarm I am unable to comment
MA: That’s fine that’s where our analysis comes from and we narrow down to the faulty cable and it needs to be replaced
FH: get someone else to do it as i refuse
MA: I am not sure why you are making this so complex!
FH: becouse you are wrong
MA: I am happy to accept if I am wrong, but first you have to prove me wrong
FH: already did a week ago
MA: The loop didn’t prove anything and as soon as the cable is connected back the local-fault alarm came back
FH: i am happy to help if you share screen shots of the fault with me as i have more than 35 years of working on these types of faults
MA: I meant no disrespect for you, That was the reason I said let me call you and explain you our findings
FH: your english is very bad and hard to understand so writing is better
MA: oh really that hurts, That’s first time I am hearing that
Let me share a drawing with you of the MPO breakout cable
FH: “The loop didn’t prove anything and as soon as the cable is connected back the local-fault alarm came back”
This proves by your own words the fault is not in the cable
MA: ok then how did the problem go away as soon as the cable is changed?”
[64] Mr Sharpe stated he had a discussion with Mr Hogendorn on 17 September 2018, which constituted a formal employee feedback session. In this meeting Mr Sharpe said he discussed the complaints against Mr Hogendorn and advised him that he needed to seriously think about them and offered him a chance to change. Mr Sharpe said Mr Hogendorn requested a job description and this was emailed to him.
[65] Mr Sharpe considered that after this discussion there was little change to Mr Hogendorn’s performance and attitude. He said there were more customer complaints and negative feedback from others within Nokia.
[66] Mr Sharpe stated that in May and June 2019 there were further complaints about Mr Hogendorn and another verbal warning was issued. The letter of 5 June 2019 at [27] was issued to him. Mr Sharpe said that he challenged Mr Hogendorn to find other things to keep him busy and assist his over-worked colleagues, but Mr Hogendorn proceeded to do very little and did not do the extra duties found for him. Mr Sharpe said that when challenged on this, Mr Hogendorn gave poor excuses that he could have overcome himself, however Mr Sharpe felt that he would rather do nothing.
[67] Mr Sharpe stated that following a further complaint in September 2019, a first written warning was issued. This complaint arose out of a VHA inspection of the MTX at Coorparoo. As part of the inspection Mr Hogendorn was meant to induct the visitors to the site. Mr Sharpe said that the VHA staff were shocked at the lack of interest in this task and Mr Hogendorn’s terrible attitude, and the customer was left thinking that Mr Hogendorn was just there to fix the occasional fault and not manage the facility. Mr Sharpe said that in addition to the written warning Mr Hogendorn was placed on a PIP.
[68] Mr Sharpe refuted Mr Hogendorn’s evidence in relation to the induction training. Mr Sharpe said that the MTX role required the management of every aspect of the MTX with support from the state manager. He provided a job description to Mr Hogendorn in 2018 which should have made clear to Mr Hogendorn what was required of the role.
[69] Mr Sharpe further refuted Mr Hogendorn’s evidence in relation to the PIP. Mr Sharpe said he believed the PIP was very clear and he considered that Mr Hogendorn understood exactly what was required of him. Mr Hogendorn did not raise any concern with him that the PIP was unclear or that he was confused with what was required.
[70] A further complaint was received in November 2019 from senior management at VHA. An audit of the premises had been conducted by VHA, and they were said to be horrified about the state of the building. Mr Sharpe said that at the Coorparoo site there were numerous examples of neglect and serious health and safety concerns. Mr Sharpe said there were numerous unprotected holes in the floor and objects left on the floor rather than being stored or sent away to redeployment or recycling.
[71] I have sighted a letter from VHA to Nokia dated 6 November 2019 detailing these concerns. The letter includes the following:
“Overall the level of care and attention is very poor and VHA is expecting more than this from the Nokia site managers.
We visit all sites fairly regularly and find all other sites to be neat tidy and issues raised where necessary. Coorparoo regularly fails inspections were other sites have no ongoing issues.
Please advise on a plan to rectify this ongoing lack of care and attention, call me if you wish to discuss.”
[72] On 25 November 2019 Mr Hogendorn took it upon himself to email the VHA author of the letter, including other VHA and Nokia representatives:
“This email/attachment is in regards to the email Michael Baker sent to Jeff Sharpe, regarding the condition of the Coorparoo MTX.
I hope the correspondence attached helps resolve any outstanding issues that I might have caused between VHA and Nokia, without my knowledge that I have caused any concern.
I am always available 24/7 via phone or email if you have any questions that I can help with.
With the most utmost respect..”
[73] In the attachment to the email Mr Hogendorn addressed the matters that had been included in the VHA letter at [71], detailing what had been tidied up. At the end of the attachment he wrote the following:
“Conclusion:-
If I Have caused any stress to both VHA and Nokia then I am sorry you had to go though this process.
I have spent 6 years building a good relationship with the VHA personal and I have found this issue disturbing as it could have taken just a quick phone call to resolve any outstanding communication issues. I am still available 24/7 via phone and email, so please call me if you have any problems with my performance.
There has been a lot of capital works at Coorparoo MTX that have been completed, but I am still in the process of cleaning up the recovery works and cleaning the last of the site from all this activity, see photos. This includes the car park and under the white room floor with still a lot of cut cables that need to be removed.”
[74] On 25 November 2019 Mr Sharpe wrote to the VHA manager as follows:
“Hi Michael, my sincere apologies for this email. This is an internal Nokia issue and you or others within VHA should not be involved.
I will be addressing this within the Nokia HR guidelines. Please feel free to talk to myself directly on this or ignore the email all together.”
[75] On 26 November 2019 Mr Sharpe forwarded the email to Mr Hadfield, Mr McManus and Mr Hardwick and stated the following:
“All,
I believe that this is gone on long enough. Fred can and will cost Nokia a great deal of time, money and potential business … I believe that the VHA managed services team need to be made aware of this and their input on brand damage assessed.
I directly told him that the letter of complaint was NOT to be used or forwarded onto ANY especially VHA staff. He has brought the company into disrepute and we must act.”
[76] Mr Hogendorn was issued with a final written warning, reproduced at [32]. Mr Sharpe said that at the meeting he had discussed the PIP with Mr Hogendorn and said that he must make a concerted effort to comply with the requirements. Mr Sharpe said he told Mr Hogendorn that this was serious, as some things had been addressed but some had not. Mr Sharpe said he felt Mr Hogendorn didn't want to take responsibility for the things that had been complained of, and tried to blame others, including the client, VHA.
[77] Mr Sharpe gave evidence that in December 2019 he received another complaint from VHA regarding Mr Hogendorn removing cables from the Coorparoo exchange without appropriate approval obtained. Mr Sharpe said a CR or Change Request approval is always required before removing equipment from inside the MTX racks and cable trays. Mr Sharpe said that approval is crucial as working on a ‘live’ MTX can result in mass outages.
[78] While it is true that Mr Hogendorn had requested approval in the appropriate manner from the customer, he had not been given approval. Mr Sharpe said Mr Hogendorn did not escalate the non-approval, but proceeded to remove the cables, and this was a very large problem for Nokia and VHA. He considered that Mr Hogendorn acted on his own initiative, without approval, on the customer's equipment which could have caused network outages.
[79] The manner in which the issue of Mr Hogendorn performing work that had not been approved by way of a CR is as follows:
(a) Email of 11 December 2019 from Mr Evan Tinkler of VHA to Mr Ravi Easwaran of VHA:
“Hi Ravi,
We’ve ascertained that Nokia (Fred in Coorparoo) has been doing work (emptying racks and pulling fibers) in the white floor space without a CR. Who would be the correct person to escalate this to?
Thank you.”
(b) Mr Easwaran responded:
“Hi Evan,
I can escalate it to Nokia management. Is there any more detail that you can provide?”
(c) Mr Tinkler replied:
“Hi again Ravi,
Geoff Leahy and I were up there in late October decommissioning OMS’s and other legacy hardware and had left DC and Fiber cabling underfloor to be cleaned up on our next trip.
Fred had been questioned on the overall cleanliness of the site and shared a rambling reply – an excerpt of which is attached where he admits to removing cut fibers and fiber modules.
I’ve asked him twice for the CR he was working under and have received nothing – both emails are attached.
We know he:
1. Isolated the underfloor suppression
2. Lifted multiple floor tiles
3. Removed unused fibers from underfloor ; and
4. Removed ODF/VAM modules from inside a rack”
(d) Mr Easwaran forwarded this email to three Nokia managers on 12 December 2019:
“Hi Joe,
Please see below and attached. This is a clear process breach.
Can you please discuss this with the concerned individual/his Nokia manager and come back to me with what actions will be taken to address this.
Appreciate if you can close this off by early next week.”
(e) On the same day the email was forwarded to further Nokia managers including Mr Corey Hardwick:
“Hi Corey,
In Jeff’s absence, can you look into this issue that has been flagged by VHA. From my initial review, the activity to remove underfloor cables and equipment needed to be performed under an approved change.
Can you let me know the outcome of your review and any actions taken to address any process breaches identified. Ideally, need to know outcome by early next week.”
(f) Mr Hardwick responded:
“Joe,
We are currently in the process of managing this sensitive issue and others with Fred via HR.
Jeff is dealing with this directly and I/we will be able to provide a detailed and accurate response on Monday when Jeff returns.”
(g) Mr Sharpe replied on 16 December 2019:
“Thanks Corey and Joe,
I have spoken to HR on this matter and they are preparing a letter for the next (final) phase of the HR process.”
[80] Mr Hogendorn had sent an email to Mr Tinkler of VHA on 6 November 2019 as follows:
“Hi Evan,
Can you please arrange a CR for removing the old optical cables from Coorparoo. Should only take a month or Two when I have available time.
Also when are you guys going to Labrador as it looks like the same network equipment needs to come out of there as well.”
[81] On 17 December 2019 Mr Hadfield sent the following email to Mr Hogendorn:
“Hi Fred,
There has been a complaint from the customer that we would like to go through with you. I remind you that you may bring a support person to the meeting if you wish, but please let me know beforehand.”
[82] On 20 December 2019 Mr Hogendorn replied:
“Hi Guys,
In response to the latest email, I requested a CR from the VHA guys that did the recovery work on 6-11-2019 but I never received a response, but the work still had to be cleaned up.
No INC was generated when I removed the redundant cut/removed cables under the flooring, and the VAM and ODF units that where also made redundant. (stored in new cold store room)
This was indicated at our last meeting.”
[83] On 7 January 2020 Mr Hadfield inquired of Mr McManus the following:
“Hi Blake,
The last discussion we had with Fred was regarding the complaint from VHA where Fred took action without the approval of VHA via a CR. Subsequent from the meeting, Fred shared an email (attached) where he requested a CR from VHA for this work.
So the point is that Fred was aware that he needed a CR, and requested a CR but took action without the approval.
It would seem that there are two points of error…(1) VHA didn’t respond to Fred’s request for the CR and (2) although Fred requested a CR and recognised that he needed one, he took action without the approved CR from VHA.
How comfortable are you with us terminating Fred’s employment on this basis?”
[84] Mr McManus replied:
“Thanks Paul
Undertaking work unapproved doesn’t look good .
Jeff any comments on this ?”
[85] On 7 January 2020 Mr Sharpe replied:
“Added Corey: Hi Blake, the complaint came from quite high up in VHA. As per the “quick question” email attached this is a clear breach of processes as per complaint. In my mind it’s the final straw but I guess we should keep in mind that he requested the CR prior to us giving him the final warning later in Nov.. This is not to say that he didn’t undertake the non approved work after he received the final warning.
The customer want him gone, its as simple as that ..”
[86] Mr McManus concluded:
“Thanks Jeff
I’d agree - if we strip it back it’s breach in process that would of otherwise been met with discipline so this is no different.”
[87] Nokia submitted that the business made genuine attempts to improve Mr Hogendorn’s performance through a range of mechanisms, including feedback and a formal improvement plan which Mr Hogendorn failed to follow and ultimately breached.
[88] Nokia submitted that Mr Hogendorn’s actions in performing construction work, unapproved, whilst knowing approval must be given before any works were to be undertaken, was admitted to by Mr Hogendorn and constituted a serious breach.
[89] It was submitted that prior to termination, Nokia undertook a fair and transparent performance management process, which included extensive evidence of warnings, face-to-face meetings, the opportunity for witnesses and opportunity for improvement.
Relevant legislation
[90] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[91] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 3
[92] I set out my consideration of each below.
Consideration
s.387(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)
[93] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 4 and should not be “capricious, fanciful, spiteful or prejudiced.”5 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.6
[94] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 7 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”8
[95] The Commission must consider not whether an employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively. 9
[96] Mr Hogendorn was dismissed for removing wiring from the floors and making changes to the MTX without customer approval. Mr Hogendorn admitted he had done this without approval despite having sought approval from the customer. In his witness statement, he admitted that this was a mistake.
[97] Mr Sharpe’s evidence was that this was a serious issue and could have widespread impacts on the customer’s business as well as Nokia’s reputation with VHA. It is clear from the emails sent by VHA managers that they considered the breach to be a serious one. The same position was adopted by Nokia.
[98] VHA and Nokia considered Mr Hogendorn’s conduct to constitute a serious process breach. Mr Hogendorn admits to the conduct. I do not consider the reason for the dismissal to be capricious, fanciful, spiteful or prejudiced. Whilst I have considered earlier emails from some Nokia managers suggesting that VHA wanted Mr Hogendorn “gone” many months before the dismissal, I am satisfied that the particular breach of process, when objectively assessed, constitutes a valid reason for the dismissal.
s.387(b) whether the person was notified of that reason
[99] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 10 and in explicit11 and plain and clear terms.12
[100] Mr Hogendorn was terminated for making unauthorised changes to the MTX including removing underfloor cables and equipment without customer approval. He was advised of the complaints on 19 December 2019 and given an opportunity to respond. He was sent a further letter on 8 January 2020 inviting him to a meeting to discuss the outcome of Nokia’s investigation into the complaints. Mr Hogendorn attended the meeting on 10 January 2020 and was advised he was being dismissed.
[101] Having regard to the matters referred to above, I find that Mr Hogendorn was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
s.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[102] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 13
[103] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 14 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.15
[104] On 19 December 2019, Mr Hogendorn attended a meeting where Nokia managers addressed with him the process breach. On 20 December 2019, Mr Hogendorn provided a response to the investigation. His response is produced at [33].
[105] I am satisfied that Nokia gave valuable consideration to the written response. Mr Hogendorn was informed on 8 January 2020 that the investigation was complete, and Nokia had made findings relevant to the investigation.
[106] In all the circumstances, I find that Mr Hogendorn was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
s.387(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
[107] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[108] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 16
[109] Mr Hogendorn was informed at each stage of the disciplinary process, including when earlier investigations had taken place and written warnings issued that he could have a support person present. He was invited to have a support person present in the final meeting to discuss the outcome of the investigation. Mr Hogendorn did not elect to have a support person present. During the determinative conference he stated that he chose not to have a support person as he is a private person. Further, he stated that he did not feel that he could trust anybody.
[110] In all the circumstances, I find that Nokia did not unreasonably refuse to allow Mr Hogendorn to have a support person present at discussions relating to the dismissal.
s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[111] A mere exhortation for an employee to improve their performance would not be a sufficient warning. A warning must:
• identify the relevant aspect of the employee’s performance which is of concern to the employer; and
• make it clear that the employee’s employment is at risk unless the performance issue identified is addressed. 17
[112] Mr Hogendorn had been involved in a lengthy performance management process from 2018 through until his termination in early 2020. He had been warned about his performance and his conduct several times, both verbally and in writing. He had been issued a final written warning a short time prior to his dismissal.
[113] Mr Hogendorn participated in several meetings relating to his performance and his conduct over the period from 2018 to his dismissal in early 2020. He provided responses at each stage which were received and considered by Nokia.
[114] In Aperio Group (Australia) Pty Ltd (T/a Aperio Finewrap) v Sulemanovski, 18 the Full Bench considered the dismissal of a long-term employee who was dismissed following numerous warnings over the span of two years. The employee had a long history of performance and conduct related issues, which included unauthorised absences, non-compliance with OHS and other company policies, and late attendance. The employer gave multiple warnings and conducted several counselling sessions. The Full Bench found that the employee’s misconduct was a valid reason for the dismissal.
[115] In considering whether the employee had been warned about unsatisfactory performance, the Full Bench found:
“Mr Sulemanovski was warned about his unsatisfactory performance before the dismissal. Mr Sulemanovski received written warnings in relation to the loss of product/faulty product, not wearing a proper uniform, failure to check production orders, not running machines at proper speed, absences from his work station during working hours without reason and failure to wear Personal Protection Equipment. Multiple written warnings were given in relation to some of those issues and the warnings often dealt with more than one issue. Attendance issues and absences from the factory, without authority, were subject to written and informal counselling on multiple occasions and one written warning in respect of absences from the factory. It may be noted that some instances of warnings related to conduct, rather than performance, but unsatisfactory performance was subject to warnings on numerous occasions.” 19
[116] Having regard to the numerous warnings issued to Mr Hogendorn, and the discussions held with him, I consider that Mr Hogendorn’s performance and conduct deteriorated from 2018 until his dismissal. The instance of him being asleep at work it seems was not evidenced by his colleagues on more than two occasions in late 2018, however it was a serious issue that I am satisfied caused the potential of some reputational damage to Nokia. Following that incident Mr Hogendorn received medical treatment to assist with some of his medical conditions, including severe obstructive sleep apnoea.
[117] I consider Mr Hogendorn’s conduct in relation to Mr Anupala in late 2018 to have been belittling and humiliating to Mr Anupala. Mr Hogendorn acted in a churlish manner towards Mr Anupala. It was entirely appropriate to address this poor conduct with Mr Hogendorn. Whilst the matter could be said to be a conduct issue, it is also a performance issue in that Mr Hogendorn acted unreasonably to Mr Anupala, which in turn affected Mr Hogendorn’s performance of his responsibilities relevant to the incident.
[118] Clearly the issues addressed by Nokia in September 2019 were not petty. In particular, the feedback from VHA that Mr Hogendorn did not appear to “care” during an induction of VHA people should have given Mr Hogendorn the appropriate reset to demonstrate enthusiasm and initiative on site. Disappointingly, even whilst under a PIP, the events of November 2019 and December 2019 occurred. These issues are both performance and conduct issues.
[119] Nokia’s customer, VHA had cause to write to Nokia to inform it that the MTX Coorparoo site was in a very poor state. I am satisfied that this affected the reputational damage of Nokia, and left VHA management bewildered as to why that particular site was in a state of disarray. Mr Hogendorn had earlier stated that he didn’t have enough work to keep him occupied, yet the site was not to the client’s reasonable standard. Until Mr Hogendorn rolled his sleeves up to address the condition of the site, he was quite happy to sit among the mess. It is reasonable to conclude that he had become apathetic and comfortable to the conditions in which he worked, without appropriate regard to his employer’s obligations to its client. Again, I am satisfied that these matters were both performance and conduct issues.
[120] Relevant to Nokia’s consideration of Mr Hogendorn’s efforts in the PIP, Mr Sharpe noted that Mr Hogendorn improved in some areas after the complaints were raised, but that he did not improve in other areas. The Performance Improvement Plan noted that success would be measured on the basis of zero complaints from GDC, customers and colleagues about attitude in daily interactions.
[121] I am satisfied that the PIP was properly instituted and undertaken. I do not consider that Mr Sharpe’s review of Mr Hogendorn’s performance and conduct whilst subject to the PIP was inappropriately critical or harsh.
[122] In all the circumstances, I find that Nokia did warn Mr Hogendorn of his unsatisfactory performance before dismissal.
s.387(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
[123] In its Form F3, Nokia identified it employed 782 employees at the time of Mr Hogendorn’s dismissal. Nokia is a well-known telecommunications company servicing Australia on a national scale. I find that the size of Nokia’s enterprise was not likely to impact on the procedures followed in effecting the dismissal.
s.387(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
[124] Nokia has a dedicated human resources team which participated in Mr Hogendorn’s performance management process and the dismissal itself. I do not consider there was any impact on the procedures followed in effecting Mr Hogendorn’s dismissal due to a lack of human resources specialists or expertise.
s.387(h) any other matters that the FWC considers relevant
[125] I consider that the following matters are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.
[126] Mr Hogendorn had just over six years’ service at the time of the dismissal. I have had regard to the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd.20 His Honour determined at [140]:
“As an employee for a short period of time, the length of Applicant’s service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum)”.
[127] I consider six years’ service to be a reasonable period of time. I have also had regard to the fact that Mr Hogendorn was aged 60 at the time of the dismissal. As noted by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd:21
“Relevantly advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round.”
[128] Noting Mr Hogendorn’s age of 60, together with his previous health concerns, I accept that the loss of employment and the financial impact of the dismissal are matters which are to be weighed in the balance of assessing whether the dismissal was harsh, unjust or unreasonable. Specifically, these matters tend to be relevant in assessing whether the dismissal was harsh.
Is the Commission satisfied that the dismissal of Mr Hogendorn was harsh, unjust or unreasonable?
[129] I have made findings in relation to each matter specified in s.387 as relevant.
[130] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 22
[131] The matters for consideration in s.387(h) which might weigh in favour of a finding that the dismissal was harsh are, however, to be balanced against the seriousness of the reason why Mr Hogendorn was dismissed. Mr Hogendorn was afforded in excess of one year to improve his performance and address his conduct issues which he failed to do. Throughout 2019 Mr Hogendorn continued to cause considerable consternation and frustration to both Nokia and VHA in the performance of his duties.
[132] Though it is doubtless the case that the matters set out above will have some harsh impact on Mr Hogendorn, they do not weigh so heavily when account is taken of the seriousness of the valid reason and the other matters that either weigh against a conclusion that the dismissal was unfair or are neutral, as to militate against a conclusion that the dismissal was not harsh. I am not satisfied that the dismissal was unjust, nor was dismissal disproportionate or otherwise unreasonable considering the substantial number of warnings that had been issued and the PIP in place. The dismissal was not unreasonable.
[133] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Hogendorn was not harsh, unjust or unreasonable.
Conclusion
[134] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Hogendorn was unfairly dismissed within the meaning of s.385 of the Act. Mr Hogendorn’s application is therefore dismissed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
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1 See section 399 of the Act.
2 Email dated 25 November 2019, “Response to PIP 2019”.
3 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
4 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
5 Ibid.
6 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
7 Edwards v Justice Giudice [1999] FCA 1836, [7].
8 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
9 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at para. 62, [(2000) 98 IR 137].
10 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
11 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
12 Ibid.
13 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
14 RMIT v Asher (2010) 194 IR 1, 14-15.
15 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
16 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
17 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
18 [2011] FWAFB 1436.
19 Ibid at [58].
20 [2010] FWA 4342.
21 (2003) unreported, PR931440 at [30].
22 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
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