Mr Michael Burke v Suncorp Group Pty Ltd
[2015] FWC 3357
•26 JUNE 2015
| [2015] FWC 3357 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Burke
v
Suncorp Group Pty Ltd
(U2014/8905)
DEPUTY PRESIDENT ASBURY | BRISBANE, 26 JUNE 2015 |
Application for relief from unfair dismissal – compensation awarded – payment in lieu of notice significantly delayed by Respondent - not deducted from award of compensation.
[1] Mr Burke applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by the Suncorp Group Pty Ltd (Suncorp).
[2] The application was made on 24 August 2014, within the time required in s. 394(2) of the Act. Mr Burke is a person protected from unfair dismissal as defined in s.382 of the Act. Suncorp is not a small business and the dismissal was not a case of genuine redundancy. The matter was dealt with by way of a hearing, as it was considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties
[3] Following unsuccessful conciliation, the parties were directed to file material in preparation for Hearing. The Directions contained detailed information about the form and content of submissions and witness statements.
[4] Mr Burke filed a bundle of documents that were not in the form of either an outline of submissions or a witness statement. Mr Burke also sought to file recordings of various meetings between himself and Managers of Suncorp. The other persons involved in these meetings were not aware that Mr Burke was recording the conversations, and Mr Burke did not seek their permission to do so.
[5] A significant amount of time at the commencement of the Hearing was spent identifying what material Mr Burke sought to tender as evidence. I made clear to Mr Burke that only those items formally tendered into evidence would be taken into account in considering his application. Documents or emails that were sent to the Commission since filing his application would not be considered unless specifically identified and tendered.
[6] Suncorp objected to the Commission receiving much of the material that Mr Burke has filed in proceedings. Specifically, Suncorp objected to the Commission receiving the recordings or transcripts of any meetings secretly recorded by Mr Burke, any material in relation to the conciliation conference conducted before a Fair Work Commission Conciliator and any material in relation to an internal mediation conducted between Mr Burke and his team leader prior to his dismissal.
[7] I ruled that I would admit the meeting recordings into evidence and made clear that Suncorp was able to make any submissions it wished in relation to weight that should be attributed to them. It is not unlawful in Queensland for a person to record a conversation to which that person is a party. I pointed out to Mr Burke the fact he had secretly made recordings of meetings of his former Managers may be relevant to my consideration of remedy in the even that I found he had been unfairly dismissed.
[8] In respect of the notes regarding mediation I queried with Suncorp’s representative whether the parties had entered into a confidentiality agreement prior to undertaking mediation. Ms Lindbergh-Ostling, on behalf of Suncorp, indicated that it was understood that an agreement had been entered into but that it was not available to Suncorp as it was maintained by the Suncorp Group Employee Council. I pointed out to Ms Lindbergh-Ostling that it would have been a matter for Suncorp to apply for an order to produce directed to the Suncorp Group Employee Council to provide any such agreement but that course had not been taken. Mr Burke disputed that a mediation agreement was entered into.
[9] As there was no specific basis upon which Suncorp relied in limiting Mr Burke’s ability to refer to the internal mediation I ruled that I would admit such evidence subject to the usual consideration as to weight. Consistent with the practice of the Commission with respect to conciliation conferences, I ruled that any evidence in relation to any matter raised during conciliation before the Fair Work Commission Conciliator would not be admitted. Conciliation conferences before the Commission are conducted on a without prejudice basis and it is generally not appropriate to admit evidence of proceedings in conciliation. While there may be some exceptions to this rule, they do not arise in this case.
[10] Mr Burke also sought to rely upon what can be described as letters of support or character references by a number of persons. At the commencement of the Hearing I stated to Mr Burke that he was not prevented from relying upon that material but that where the material is ostensibly a character reference it is not relevant to the proceedings. Mr Burke also sought to rely on statements said to establish that he was treated differently to other employees. In relation to these statements I reiterated my view, expressed to Mr Burke during a number of mentions in relation to his application, that evidence in relation to a culture at Suncorp relevant to the reasons for dismissal or evidence of differential treatment was evidence that could be called and it was up to Mr Burke to call that evidence. I further stated to Mr Burke that if those witnesses were not available for cross-examination then I would not take their statements into account. Mr Burke elected not to rely upon the additional material.
[11] Evidence for Suncorp was given by:
● Ms Gayna Armstrong, currently Fleet Claims Leader but previously Mr Burke’s direct Team Leader in 2012; 1
● Mr Dale Cooper, currently Leader of Vero Claims Services and the direct Team Leader of Mr Burke from 18 February 2013 to the time of dismissal; 2 and
● Ms Alexis Rowan, currently HR Consultant for Commercial Insurance. 3
Permission to appear
[12] Mr Burke was self-represented. Prior to the Hearing Suncorp sought permission to be represented by Counsel pursuant to s.596 of the Act.
[13] Section 596 relevantly states:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.”
[14] At a preliminary Conference I indicated that permission would not be granted to Suncorp and that my reasons for refusing permission would be included in my decision in the substantive matter. My reasons for refusing permission were that the matter is not particularly complex and deals mainly with ordinary performance management issues. Suncorp is a large organisation with specialist Human Resources and Industrial Relations Managers, and it would have been unfair to Mr Burke for permission to have been granted to Suncorp. Suncorp also has an internal Legal Counsel, Ms Lindbergh-Ostling, who conducted the case.
Background
[15] Mr Burke commenced employment with Suncorp on 10 December 2010 as a casual employee. He commenced full-time employment for Suncorp on 10 April 2011. Mr Burke had previously been employed with Suncorp for the Period 2 October 2006 to 1 February 2010.
[16] At the time of dismissal, Mr Burke was employed as a claims officer within Suncorp’s Commercial Insurance Claims Services division. Suncorp described this role as a “specialised call centre” with duties primarily dealing with insurances claims from Suncorp’s clients via the telephone.
[17] The role of claims officer required Mr Burke to work with Suncorp’s case management model in which any claims officer of Suncorp could perform work on a client’s claim. Mr Burke’s performance as a claims officer has been the subject of performance management for a number of years prior to dismissal.
[18] By letter dated 9 April 2014, Mr Burke was required to respond to the following allegation:
“It is alleged that you have deliberately completed activities without completing the correct amount of work required on the claim, in order to increase your efficiency scores.” 4
[19] Annexed to the 9 April letter was a list of the claims relied upon by Suncorp in relation to the allegation. A meeting was held with Mr Burke, on 10 April 2014, to allow him to respond to the allegation. The parties met again on 15 April 2014 in order for Suncorp to advise Mr Burke of the outcome of the allegations.
[20] By letter dated 29 April 2014, Mr Burke was informed that the allegations have been substantiated and was issued a first and final warning. The warning was in the following terms:
“We refer to our meeting with you on 10 April 2014. This letter confirms and records the serious concerns regarding your recent conduct.
Issues
During the meeting, we discussed the following:
Since October 2013 your leader Dale Cooper has been working with you through 1 on 1’s and informal counselling to help lift your performance. During this time your performance was inconsistent.
Due to the irregular spikes in your performance, specifically your efficiency results, an audit was conducted on your claims activities from 10 January 2014 and 12 January 2014. The audit has revealed that 28 out of 51 claims have not been actioned at all or actioned incorrectly.
In order to give you the benefit of the doubt and to ensure the errors were not a once off occurrence, a further audit was conducted on your claims activities from 20 March 2014 to 21 March 2014 which revealed 14 out of 25 claims have not been actioned at all or actioned incorrectly.
Allegations
During the meeting you will be required to respond to the following allegation:
1. It is alleged that you have deliberately completely activities without completing the correct amount of work required on the claim, in order to increase your efficiency scores.
Please refer to the table below for a summary of the issues identified in the activities you have performed:
Activity Type | No. of Issues |
Activities completed, claim not actioned | 1 |
Activities completed, No Notes in Claims Centre | 33 |
Claim not finalised in mainframe | 1 |
Document not retitled | 4 |
Review correspondence activity created and completed | 3 |
As part of your role as a Claims Officer you are required to reach an efficiency result of 80%. Every time a claim is touched and activities completed it is expected that a note is left on the claim outlining the conversation that was had with the broker or customer, action taken and the next steps required to bring the claim closer to finalisation.
In addition failure to leave notes on claims has a number of impacts including:
● When a customer or broker calls back to enquire about their claim the consultant taking their call won’t know what has been discussed and agreed upon.
● This also impacts on Suncorp’s reputation and can be seen as a poor customer experience.
Consideration
After consideration of all the available information, including your response, the Suncorp Group finds that the above matters have been substantiated. Accordingly, I confirm that you have breached:
● The Code of Conduct, specifically:
1.1 We act with integrity, honesty and professionalism
You are expected to:
○ Contribute to the achievement of the Suncorp Group’s corporate vision by maintaining a high standard of professionalism;
○ Consistently demonstrate the Suncorp Group values in all business dealings or in any activity or function associated with your employment at the Suncorp Group;
○ Deal fairly and ethically with all parties.
You are expected not to:
○ Behave in a manner that is dishonest, illegal, fraudulent, corrupt or unethical.
2. We comply with our obligations
You are expected to:
○ Comply with and carry out your work in accordance with the Suncorp Group’s internal standards, policies, procedures and practices
● Your Employment Contract, specifically:
Clause 4: Duties and Reporting Structure
General Duties
During your employment, you must:
○ Devote all of your time, attention and skill to the performance of your duties both during normal business hours and at other times as reasonable necessary;
○ Perform your duties honestly, faithfully and diligently;
○ Maintain appropriate ethical standards, trust, confidentiality and integrity.
● The Suncorp values:
Suncorp’s values can be translated into every aspect of your work from the relationships we build with our customers and colleagues, to the way in which we conduct ourselves on a daily basis, this includes:
○ Honesty, Fairness, Trust
Outcome
The Suncorp Group is dissatisfied with your actions and accordingly issues you with this First and Final Warning.
During this meeting we discussed and agreed on a number of changes that now need to occur. Please refer to the attached action plan which details these changes.
Should there be no immediate and sustained improvement in your performance, or should you engage in any further unacceptable conduct as set out above, then further disciplinary action may be taken, up to and including the termination of your employment.” 5
[21] Following the issue of the first and final warning, and an extended period of absence by Mr Burke, Mr Burke was placed onto an action plan. An action plan is a formal document that sets out expectations of an employee and a process for improving and monitoring performance in a number of specific measures. The action plan is dated 3 June 2014 and under the heading “Objectives To Be Met” identifies a number of matters: Demonstrate an increased understanding of the requirements of the Claims Officer role; Efficiency Expectations; Notification of absence from Work; and Demonstrate “Team Member – Making It Happen” attributes as outlined in the Suncorp Leader Profiles.
[22] The employment of Mr Burke was terminated by letter dated 8 August 2014. The letter relevantly stated:
“As discussed on 6 August 2014, this letter confirms the termination of your employment with the Suncorp Group.
Reasons for termination
Your employment has been terminated because, after taking into account your responses and explanations to the matters raised in our “Notice of Meeting” on 6 August 2014, the Suncorp Group has determined that your performance and conduct is considered to be unsatisfactory.
Background
Since January 2013, I have been meeting with you on a regular basis and providing you with informal counselling on a number of issues including absenteeism, punctuality, performance and behaviour.
In February 2014, an audit was conducted on your claims activities after it was noticed that you had irregular spikes in your efficiency. The audit revealed that from 10 January 2014 to 12 January 2014, 28 out of 51 claims had not been actioned at all or actioned incorrectly. A further audit was conducted on your claims from 20 March 2014 to 21 March 2014 which revealed that 14 out of 25 claims had not been actioned at all or actioned incorrectly.
I met with you on 10 April 2014 about the audit results. After taking into account your responses to the issues raised during the meeting, I issued you with a First & Final Warning. An Action Plan was subsequently issued on 3 June 2014 to set the minimum performance expectations for your role.
Substantiation of performance and conduct concerns
The Group has substantiated the following concerns:
You have recently failed to meet the following expectations in your Action Plan, specifically:
1. Demonstrate an increased understanding of the requirements of the Claims Officer role:
As part of your Action Plan you are required to demonstrate an increased understanding of the requirements of the Claims Officer role, including not completing activities in Claims Centre until all work associated with the claim has been completed.
On 15 July 2014, an audit was conducted on your claims activities and it was found that the following two claims which you had worked on had no notes:
[Numbers withheld]
I raised these two claims with you on 14 July 2014 by asking you to review both claims and provide a response to me by close of business, which you agreed to do. However, you did not provide a satisfactory response within the timeframe required.
2. Efficiency Expectations
Throughout the course of your Action Plan you are required to achieve a minimum efficiency target of 80 per cent each week. You failed to meet your efficiency target for the week ending 20 June 2014, as your result was 72 per cent.
When I met with you on 2 July 2014 to advise you of this result, you were unable to provide any explanation for this result.
3. Absence from work
Your Action Plan sets out the requirements to call your leader prior to the commencement of your start time if you are unable to attend work for personal reasons.
Between 11 June and 20 June 2014, you failed to meet the minimum expectations in relation to absences from work, as you failed to notify me that you were going to be late for work:
● On 11 July 2014, you were scheduled to start work at 8:30am but were not job ready until 8:49am.
● On 12 June 2014, you were scheduled to start work at 8:30am but were not job ready until 8:33am.
● On 13 June 2014, you were scheduled to start work at 8:30am but were not job ready until 8:38am.
● On 19 June 2014, you were scheduled to start work at 8:30am but were not job ready until 8:35am.
● On 20 June 2014, you were scheduled to start work at 8:30am but were not job ready until 8:40am.
On 20 June 2014, I met with you to discuss the above issues with your punctuality. I confirmed the following expectations with you:
● You are expected to be at your desk ready to assist customers by your start time.
● If, for some reason, you are not going to be at your desk ready to assist customers by your start time then you should contact me and let me know your expected arrival time.
You agreed to adhere to this expectation.
4) Demonstrated Team Member “Making It Happen” attributes as outlines (sic) in the Suncorp Leader Provides
As part of your action plan you are required to adhere to your “Team Member” Leader Profile. A number of issues have been identified which are not consistent with what is expected of you during the course of your Action Plan, specifically in relation to “Customer Focus” and “Building Great Teams”, specifically:
● On 11 June 2014, during the team stand up meeting I observed you on the internet looking at a basketball website. Team stand up meetings require input from all team members and it’s important to give all of your attention to what is being said because content includes updates for you to be able to perform your role effectively. I raised this with you during our monthly meeting on the same day and your response was that you were multitasking in you didn’t have anything to add.
● On 14 July 2014, I raised with you my concerns about Claim Number [withheld], as you had assigned the claim to yourself which is contrary to the claims management process. Claims should not be assigned to individuals but assigned to the appropriate queue (i.e. Vero queue) so that your colleagues can pick up the claim should a customer call about it. You had not followed the claim up, and no [one] else had been able to because it had been assigned to you.
In addition, as part of this review there were a total of 15 claims found that you had assigned to yourself. I set the expectation with you to action the claims or reassign to the queue on close of business on 15 July 2014. You agreed to do this, and also agreed that you would no longer assign activities to yourself. I ran a report on 16 July 2014 and found that 12 of these 16 still had not been reassigned. When I raised this with you, you stated that you had not been given enough time to action the claims. However, you had not requested additional time to complete this task.
This letter confirms that, having considered all of the information available, your performance and conduct as outlined above amounts to a failure to meet the reasonable requirements of your role as set by the Suncorp Group, along with breaches of:
Your Action Plan dated 3 June 2014
Your First and Final Warning dated 39 April 2014 (sic)
Notice period
Your employment will end immediately. Under your contract of employment, your notice period is 2 weeks, which will be paid in lieu.” 6
RELEVANT LEGISLATION
[23] In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable the Commission must take into account those matters specified by s.387 of the Act, as follows:
“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.”
[24] The onus rests with the respondent to establish that the misconduct as alleged took place and it constituted a valid reason for dismissal: Culpeper v Intercontinental Ship Management Pty Ltd. 7 A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”8 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts,9 and the validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.10
[25] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:
Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;
Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or
Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 11
Mr Burke’s Submissions and Evidence
[26] As previously stated it was difficult to establish the material upon which Mr Burke relied in order to establish that his dismissal was unfair. Following an adjournment, Mr Burke identified a bundle of documents, which was tendered as Exhibit 1 in the Hearing. Mr Burke’s material is comprised of a number of documents setting out his grievances in relation to his treatment by Suncorp and various emails or other documents that he has compiled throughout his employment with Suncorp.
[27] Mr Burke identified conduct of employees in his material that he alleged demonstrated a culture of not leaving notes on claims and a culture of placing a follow up activity for themselves on files to confirm that action has been completed. Mr Burke initially indicated he would call evidence from two current Claims Officers in relation to this. Material filed in relation to these witnesses was not in the form of a witness statement and I expressed a view to Mr Burke that, while evidence was a matter for him, the relevance of the evidence of these witnesses was not apparent. Mr Burke advised the Commission that he did not intend to rely upon that evidence. 12
[28] Mr Burke also sought that the Commission “request” documents from Suncorp. The Commission’s file indicates that Mr Burke was advised about how to apply for an Order to produce documents by the Commission’s administrative staff. I informed Mr Burke at preliminary conferences about the appropriate process to seek an Order to attend or produce. At the Hearing Mr Burke stated that he was not aware of these processes this previous advice.
[29] Mr Burke’s case, in summary, proceeded on three main propositions: the first and final warning that he was issued prior to his dismissal, which formed part of Suncorp’s reasons for dismissing him, was harsh, unjust or unreasonable; the reasons for dismissal are not valid and that Suncorp failed to take his mental health into account in considering dismissal.
[30] Mr Burke also identified what he termed breaches of the Health and Safety Act 2011. Prior to the hearing in this matter Mr Burke provided no detail of the specific sections of that Act he alleged had been breached or the specific circumstances giving rise to the breach. Although the Commission does not have jurisdiction under that Act, I have considered the general conduct Mr Burke alleges in the context of my consideration of whether his dismissal was unfair.
First and final warning
[31] Mr Burke’s attack on the first and final warning was that proceeding to a first and final warning in the first instance was harsh. Mr Burke also asserted that the first and final warning was not accurate, in that he had been able to adequately explain some of the instances identified by Suncorp as being an error and those explanations had been accepted by Suncorp. Mr Burke also questioned the first and final warning on the basis that it related to work completed in January - some three months prior.
[32] Mr Burke submitted that the first and final warning was issued in relation to performance issues that were only first identified during the performance management process immediately prior to the issue of the first and final warning and that this was harsh because the performance concern had not previously been brought to his attention to allow him to respond or attempt to improve.
[33] Mr Burke also submitted that the first and final warning was directly “on the heels” of a bullying claim that he had made. Relying on the decision of John v Star Pty Ltd, 13Mr Burke submitted that for a first and final warning to be given for serious misconduct it is required that the conduct be “wilful or intentional conduct or gross negligence”.14 Mr Burke did not dispute that he had made errors and stated that “at worst” it was negligent conduct on his part.15
[34] Mr Burke contended that his efficiency results, one of the reasons for dismissal, were not the worst in the team and that the information he relied upon showed that some people were achieving results of 30%, 40% or 50%. Mr Burke conceded however that these people were also placed on action plans. Mr Burke contended that his average efficiency score for the 10 week period prior to dismissal was above 80%, sometimes exceeding 100% and consistently in the top half of his team.
Reasons for termination – Mr Burke’s response
[35] In relation to item one of the termination letter, leaving notes on claims, Mr Burke submitted that where a Claims Officer started to enter a note but had to return to other work - for example taking another call - there was no ability on Suncorp’s information systems to save a draft note or save and return to a note to edit or complete it. Mr Burke conceded that it was necessary for practical reasons that Claims Officers handling a claim leave a note 16 and that it was a requirement that notes be left on claims.17 It was Mr Burke’s evidence that Claims Officers were advised not to leave half completed notes and to complete notes during after call work but that this was difficult because they were “constantly” required by leaders to interrupt their after call work and take further calls.18 Mr Burke did concede that it was open to add a second note if a half completed note was saved although it would look “unprofessional” as external brokers were able to view notes left on claims.19
[36] Mr Burke also gave evidence that a reason for not leaving notes was that the IT systems used to save notes often crashed. In cross-examination Mr Burke clarified that the crash he was referring to was if the claims program was left idle for an hour it would automatically log an employee out and if there were incomplete notes on the system that work would be lost. 20 Mr Burke conceded that he was aware of this issue prior to his dismissal.21 In response to the proposition he could have completed work and saved it before leaving his computer for an hour, Mr Burke said that breaks were scheduled and Claims Officers were expected to adhere to those rostered breaks.22 Mr Burke conceded that while crashes of the actual explorer would occur, they were irregular and would occur once or twice a month.23
[37] As to item two of the termination letter, Mr Burke submitted that he requested training but did not receive any. Mr Burke also submitted that the terms of the action plan required that Suncorp review his performance. The action plan stated that each item is “to be reviewed fortnightly” except that in relation to demonstrating the leader profiles, the review period was stated as “immediate and ongoing”. According to Mr Burke, during the 10 week period of the action plan, only two reviews were undertaken. Mr Burke stated that his review was “perfect” in one review and in the other the other, two errors relating to leaving notes were identified.
[38] Mr Burke explained the missing notes by stating that the “system may have crashed” and that he had been diligent in putting notes on claims although Mr Burke also asserted that other team members did not leave notes and that this was discussed in a team meeting on or around January 2014.
[39] As to item three of the final warning, being absences from work, Mr Burke has submitted that he was not aware that he was required to notify Mr Cooper when he was going to be late to work. Mr Burke also submitted that he had stayed back 45 minutes on one occasion and in discussions with Mr Cooper it was “confirmed” that for Mr Burke to “get this time back” was a matter of give and take and that on occasions that he was late then this additional time would make up for that. Mr Burke submitted that the instances of starting late identified as a reason for dismissal equal this 45 minute period. Mr Burke stated that once Mr Cooper notified him that the requirement to notify extended to instances where he was going to arrive late, he complied with the requirement. Mr Burke conceded that punctuality was a matter identified in the second action plan and that punctuality was an important aspect of being a team member. 24
[40] In relation to item 4, Mr Burke conceded that he had been on the internet during a team meeting but stated that he had apologised for that conduct. Mr Burke disputes Suncorp’s position that the he did not apologise. Mr Burke also submitted that he did not engage in similar conduct following the matter being raised with him. Mr Burke did concede that when the matter was raised with him his response had been that he was “multitasking” but clarified that this was a jovial response and that he did subsequently apologise. 25
[41] Mr Burke disputed that Claims Officers could not assign claims to themselves and stated that in attempting to go “above and beyond” when dealing with claims, as is expected of Claims Officers by Suncorp, it was common in the department that Claims Officers would manage claims in this way. Mr Burke did not introduce any evidence to this effect. Mr Burke stated that the “quality team” confirmed to him that they would not identify such action as an error. Again, Mr Burke did not tender any evidence to this effect. In any event, Mr Burke disputed that he did assign the claim to himself, and said that he assigned an activity on the claim to himself for his review.
[42] Mr Burke submitted that his dismissal came “hot on the heels” of the mediation that he undertook with Mr Cooper. One of the matters raised at the mediation was an allegation by Mr Burke that Mr Cooper “stormed out” of a one-on-one with Mr Burke after 5 minutes. Mr Burke stated that Mr Cooper accepted that he engaged in such conduct at the mediation. Mr Burke also submitted that the “last” of the incidents referred to and relied upon in the dismissal occurred in mid-June, seven weeks prior to Mr Burke’s ultimate dismissal.
[43] In cross-examination, Mr Burke conceded that his performance had been the subject of a number of action plans – 11 January 2012, 30 May 2012 and 6 May 2013. Mr Burke maintained that the third action plan, of 6 May 2013, was “never actually in effect” due to the length of time that he was absent from the workplace following the third action plan, 26 but agreed that he was at least aware of the existence of the third action plan and it was delivered to him.27 Mr Burke agreed that there was also a fourth action plan following the first and final warning (discussed above).
[44] Mr Burke agreed that he had been the subject of performance management since at least January 2012. 28
Mental health
[45] There is a dispute between the parties as to whether Suncorp knew, or ought reasonably to have known, that Mr Burke suffered from a mental health condition and whether that should have been or was taken into account in dealing with Mr Burke.
[46] Mr Burke submitted that Suncorp did know that he suffered from depression and should have taken this into account in considering its treatment of him. Mr Burke was absent from work for approximately 7 months of the 18 months prior to his dismissal, and he also applied, and was approved, for income protection. Mr Burke also had dealings with Suncorp’s return to work or rehabilitation team during this period.
[47] Mr Burke tendered emails from himself to the email address “[email protected]” in relation to his “Group Insurance Disablement Claim”. Attached to that claim was a “Medical Attendant’s Report” and “Employee Statement”. The employee statement, declared by Mr Burke, states the nature of the condition to be “depression” and the current symptoms to be:
“lack of motivation, chronic fatigue, heavily sedated from medication, unable to focus or concentrate, appearance disheveled (sic)”
[48] In response to the question “[D]id you cease work due to your medical condition” Mr Burke has indicated “yes”. Mr Burke has also included as “reasons for ceasing work”:
“unable to focus or concentrate to perform duties
Placed on medication which heavily sedates”
[49] When asked whether he has suffered this condition before Mr Burke answered yes, but that the condition was undiagnosed. Mr Burke declared that he had “felt this way for years and years – last 5 years at least”. The employee statement was dated by Mr Burke on 27 June 2013.
[50] The Medical Attendant declared that he had treated Mr Burke since 2006 and that Mr Burke’s condition was diagnosed on 21 May 2013. The diagnosis of the Medical Attendant was stated to be depression following clinical assessment. The Medical Attendant has certified Mr Burke as not fit to work at all from 21 May 2013 for the reason of “sedation” and “poor concentration”.
[51] Mr Burke also maintained that he directly raised his mental health with Mr Cooper who responded to him by stating that a family member of his had suffered from serious mental health concerns.
[52] Mr Burke conceded that he did refuse to give permission to his doctor to seek information in 2013 although he maintained that he advised he would provide any information Suncorp needed on “medical certification”. 29 Mr Burke also maintained that he was not requested to provide information or permission to speak with his treating doctors in 2014.30 Mr Burke said that Suncorp’s Return to Work Advisor did not actually seek medical information from him. Mr Burke further maintained that he did not received two voicemail messages that the Return to Work Advisor stated had been left on Mr Burke’s message bank. Mr Burke maintained that no other means of contact was attempted.31
Suncorp’s Submissions and Evidence
[53] Suncorp submitted that Mr Burke was dismissed for poor performance following a two year period of performance management and underperformance as follows:
a) a performance management plan (referred to as an “action plan” by Suncorp’s staff) dated 11 January 2012 (First Action Plan);
b) a written warning for underperformance dated 29 May 2012 (First Warning);
c) a second action plan dated 30 May 2012 (Second Action Plan);
d) a third action plan dated 6 may 2013 (Third Action Plan);
e) informal performance counselling (at least) between February and March 2013 and on 5 September 2013 and 8 November 2013;
f) a first and final written warning dated 29 April 2014 (Final Warning); and
g) a fourth action plan dated 3 June 2014 (Fourth Action Plan).
[54] Suncorp submitted that the ultimate decision maker in relation to Mr Burke’s dismissal was Mr Cooper and that Mr Burke was dismissed on the basis of persistent performance and behavioural issues.
[55] Punctuality is an essential behaviour for Claims Officers as they are scheduled to be on the phones and available to take calls and adherence to these schedules is important. Claims Officers are also required to leave notes on claims so that should the client call back and speak with a different Claims Officer that Claims Officer is able to determine the stage that the claim is at and what steps may be required to progress the claim.
[56] Suncorp submitted that the team worked on a “team management” model for their claims, meaning that any Claims Officer within the team could work on a claim and claims were not allocated to one Claims officer.
[57] During 2012, Suncorp had a number of concerns regarding Mr Burke’s conduct and performance including:
a) Failure to contact his leader by telephone (and not by e-mail, SMS or other messages) at least one hour prior to using personal leave;
b) Failure to contact his leader by telephone (and not by e-mail, SMS or other messages) at least one hour prior to his start time if he was going to be late;
c) Failure to submit leave forms on the first day of his return to work after using personal leave, resulting in issues with processing sick leave pay;
d) Failure to be set up and commence work at his regular start time;
e) Failure to provide a medical certificate for every day of unplanned sick leave;
f) Failure to comply with the “Code of Conduct Policy”;
g) Failure to follow directs to submit personal leave forms for specific dates; and
h) Repeated failure to come into the office to process an employment letter, despite agreeing to do so.
[58] It was submitted that even though these matters arose years before Mr Burke’s dismissal, the action plans at the time indicated that the matters addressed were to be maintained on an “ongoing basis” and that Mr Burke was warned that the expectations remained even after the completion of the action plan.
[59] Ms Armstrong stated that in early January 2012, she suggested to Mr Burke that he consider converting his employment from a full-time capacity to part-time work. Ms Armstrong says that she did this because Mr Burke was “regularly absent from work” and this move “could assist him to attend work more often and help with work/life balance”. 32 Mr Burke agreed to the change.
[60] Ms Armstrong’s evidence is that from about May 2011 she had conversations with Mr Burke including that he should “[B]e set up and commence work at his regular start time” 33. Ms Armstrong stated that Mr Burke “consistently” failed to comply with these expectations.34
[61] On 11 January 2012 Ms Armstrong met with Mr Burke to give him the action plan, which commenced that date and ended on 11 March 2012. A copy of the action plan was in evidence before the Commission. 35 Ms Armstrong met with Mr Burke on a fortnightly basis to review the conduct against the action plan. His performance did improve during the action plan period.36 The performance was expected to be maintained at that level.
[62] In May 2012 Ms Armstrong states that Mr Burke began to exhibit instances of poor conduct and performance. These instances are not presently relevant but relate primarily to the taking of personal leave, completion of employment related documents (such as requests for leave) and notifying of unplanned absences. These actions resulted in a letter of allegations being put to Mr Burke for response. 37
[63] A meeting was held for Mr Burke to respond to the allegations and his response was not adequate. Mr Burke was issued with a formal warning. 38 He then took a period of planned and unplanned leave. A further action plan was issued to Mr Burke at this time that included punctuality and compliance with the Suncorp Code of Conduct.39 This action plan was delivered to Mr Burke on 2 July 2012. Mr Burke commenced in a different team from 1 July 2012. Ms Armstrong stated that this was because Mr Burke had stated he felt he could no longer work with Ms Armstrong.
[64] Ms Armstrong states that at the meeting of 2 July 2012 Mr Burke made the following statements:
“a) Prior to Michael reading through the action plan he asked me “Please justify each point of the action plan” or words to that effect. He also said, as soon as we went into the meeting, “I am not going to sign the action plan”. I said “That is OK, but it is still in effect” or words to that effect;
b) Michael also asked me “How many parts of the action plan have you put on there without HR approval? It is inaccurate and unfair” or words to that effect, but without putting to any particular examples of inaccuracy or unfairness. I advised Michael “Everything on the action plan is in accordance with the Suncorp Group’s policies and enterprise agreement. The leave policy was standard and the Code of Conduct, which he had breached in May 2012, is standard. I agree with the action plan. You must comply with and carry out your work in accordance with the Suncorp Group’s internal standards, policies, procedures and practices and follow reasonable and lawful management direction at all times” or words to that effect;
c) Michael said “You are putting it all back on HR” or words to that effect. Michael also attempted to raise the NOM. I said “The purpose of today’s meeting is not for me to justify the outcome of the NOM. This particular meeting is not an opportunity to appeal against the outcome of the NOM. This particular meeting is not an opportunity to appeal against the outcome of the NOM. You are making me extremely uncomfortable because you are being rude and threatening” or words to that effect. Michael interrupted me and said “I can appeal” or words to the effect. I said “Yes you can appeal but not in this forum” or words to that effect. He said again “I can appeal” or words to that effect; and
d) At the end of the meeting, I told Michael “Let me know if you have any questions” or words to that effect and Michael said “Yes, I’ll let Sharyn know Gayna because she is my leader now, I’ll let Sharyn know” or words to that effect.” 40
[65] Following this meeting Ms Armstrong discussed the matter further with Suncorp human resources personnel as to whether any further action should be taken in relation to Mr Burke as a result of his behaviour during this meeting. Ms Armstrong discussed the matter with Mr Burke’s new team leader but did not otherwise take further action.
[66] In cross-examination Mr Burke did not challenge Ms Armstrong on the statements that Ms Armstrong attributed to Mr Burke. This was notwithstanding that I informed Mr Burke prior to cross-examining Ms Armstrong that if he intended to invite the Commission to not accept Ms Armstrong’s evidence in relation to a particular point, he needed to put to Ms Armstrong the basis upon which the evidence should not be accepted. 41 Instead, Mr Burke asked Ms Armstrong a number of questions about her technical ability, and Ms Armstrong conceded that she is not an expert in claims.42
[67] Mr Cooper was Mr Burke’s direct Team Leader at the time of dismissal and it appears the ultimate decision maker in relation to the decision to dismiss Mr Burke from his employment. Mr Cooper gave detailed evidence regarding the nature of the role of a Claims Officer and the process of monitoring Claims Officers’ efficiency and quality. In relation to quality, Mr Cooper stated that the “quality team” aims to audit 10 claims for each Claims Office per month.
[68] Attached to Mr Cooper’s statement was a copy of the quality data in relation to Mr Burke for the period of January to July 2014. 43 These results include the following table44:
Month | Error Type | Total Errors |
Jan-14 | Did not rename documents | 3 |
Incorrect file notes | 2 | |
Feb-14 | No Issues | |
Mar-14 | Did not rename documents | 2 |
Incorrect file notes | 1 | |
Apr-14 | Incorrect file notes | 2 |
May-14 | No Audits Michael on Personal leave for May 2014 | |
Jun-14 | No Issues | |
Jul-14 | No File Notes | 1 |
Aug-14 | No Issues | |
[69] Mr Cooper stated that as well as the quality results provided by the quality team, he relies upon “teammates reporting lack of notes or errors or from a random audit”. 45 Mr Cooper stated that the notice of meeting given to Mr Burke dated 5 August 2014 stating that Mr Cooper had given regular informal counselling to Mr Burke since January 2013, was an error and that Mr Cooper only commenced work with Suncorp in February 2013.46 Since this time Mr Cooper has discussed Mr Burke’s performance with him at monthly “one-on-one” meetings and informal catch ups.
[70] Mr Cooper stated that he first sought advice from human resources in relation to Mr Burke’s behaviour and performance in April 2013. 47 Mr Cooper said that he did so because he had noticed issues with Mr Burke failing to notify him when he was going to be late or when he would be absent from work as well as with Mr Burke’s inconsistent efficiency results. Mr Cooper stated he raised these matters informally with Mr Burke in February and March 2013. With the assistance of human resources an action plan was developed.
[71] Mr Cooper met with Mr Burke on 2 May 2013 to discuss the implementation of the action plan. Mr Cooper’s evidence is that Mr Burke was openly hostile during this meeting. 48 At a further meeting on 6 May 2013 Mr Burke refused to sign the action plan and following this, commenced a period of personal leave.49 Mr Cooper states that following the meeting a further item was added to the action plan – “No further displays of inappropriate behaviour”. This was said to be in response to Mr Burke’s “poor attitude” during the meeting of 2 May 2013.
[72] Mr Burke was on leave until 7 August 2013 and returned to work on a gradual return to work plan. To assist Mr Burke in his return to work, Mr Cooper states that the action plan of 6 May 2013 was not implemented.
[73] At a meeting with Mr Burke on 5 September 2013, Mr Cooper raised concerns with Mr Burke regarding his efficiency target not being achieved. For the Month of August 2013, Mr Burke’s efficiency score was 54% (the targeting being 80%).
[74] Mr Cooper states that on 17 January 2014 he received a request from Mr Burke enquiring about a reduction in his working days (from 4 to 3 days) and also the possibility of taking a career break. The reason for Mr Burke pursuing a career break was so that he could move back to Sydney or consider study options. At a meeting with Mr Burke on 5 February 2014, Mr Cooper verbally declined Mr Burke’s request to reduce his working days. Mr Cooper stated that he discussed the situation frankly with Mr Burke.
[75] Mr Cooper disputes that at the meeting with Mr Burke on 5 February 2014 he stormed out of the meeting. Mr Cooper’s evidence is that he discussed Mr Burke’s request to reduce his working days. Mr Cooper recalls saying words to the effect of “what I don’t understand Michael is that if you are so unhappy in your role, why you are not actively looking for a new role”. 50 Mr Cooper states that the meeting come to a close in a “reasonably” calm manner.
[76] Mr Cooper said that in late January 2014 he received feedback from a team member identifying two claims on which Mr Burke had worked but not left a note as required. As a result of this, Mr Cooper reviewed Mr Burke’s efficiency statistics and “observed high efficiency” 51. Mr Cooper states that Mr Burke’s efficiency score was over 90%. Mr Cooper instigated an audit of Mr Burke’s work as he was “concerned that [Mr Burke’s] efficiency was inflated due to activities being closed without the required action”52.
[77] Mr Cooper states that two members of the “technical support” team undertook the audit. This was concluded on 29 January 2014, and revealed Mr Burke’s failure to leave notes was “more widespread than the two instances” 53 that he had been notified of. Mr Cooper stated that the results of the audit were that for the period of 10 January to 12 January 2014, of the 51 claims worked on by Mr Burke, 28 had not been actioned at all or had been actioned incorrectly. Mr Cooper stated that the majority of the failures to action claims or incorrect action was a failure to make notes on claims. Mr Cooper stated that this meant that Mr Burke was able to move quickly to the next claim and process a larger number of claims, and artificially increase his efficiency score. A copy of the audit results was tendered in evidence.54
[78] Mr Cooper wrote to Mr Burke on 9 April 2014 in relation to these errors. Mr Cooper states that he did not take action in relation to these results sooner because Mr Burke was on leave on a number of occasions from 7 January to 4 January 2014 and Mr Cooper was on leave from 6 March to 26 March 2014.
[79] Prior to discussing the January audit results with Mr Burke, Mr Cooper arranged a further audit in late March 2014. The audit covered the period 10 March 2014 to 21 March 2014. This further audit revealed that of the 25 claims worked on by Mr Burke during the period, 14 had not been actioned or incorrectly actioned.
[80] On 9 April 2014 Mr Cooper gave Mr Burke a notice of a meeting attaching the audit results. Mr Cooper acknowledged inconsistencies in the body of the notice of meeting and the attached audit results. A meeting in relation to the audit results occurred on 10 April 2014. Mr Burke had a support person present. 55 Mr Cooper records Mr Burke’s responses and other events at the meeting as follows:
“a) “I disagree with the audit results that you have provided. In particular, the dates used are wrong and there are major discrepancies with the data” or words to that effect. However, Michael did not point to any specific examples or present evidence to support this statement;
b) “Some of the examples of when I have failed to complete correct actions are genuine mistakes” or words to that effect;
c) “Sometimes I go to lunch with unsaved notes. The system may time out while I am on lunch and therefore I lose the unsaved notes” or words to that effect. In response, I asked Michael “Is there anything you could do to avoid losing unsaved notes while on lunch?” or words to that effect. Michael responded with “I don’t know of anything which I could have done to prevent this from happening” or words to that effect; and
d) “I have not been given adequate training” or words to that effect. I explained to Michael “You have received training in relation to the requirement to make a note on the claim outlining the action taken and the next steps required to progress the claim, each time a claim is accessed and actioned” or words to that effect. Michael responded with “My leaders have accessed claims without leaving notes” or words to that effect. I explained that “Leaders will sometimes access claims to allow an escalation to be passed to the appropriate person, however this does not mean that they are auctioning the claim and therefore a file note is note required” or words to that effect.” 56
[81] Mr Cooper stated that he considered Mr Burke’s responses and reviewed the audit results and confirmed that the audit results were correct. Mr Cooper also took into account the responses of Mr Burke that he could not include notes due to system crashes or genuine mistakes. Mr Cooper stated that he did not accept these responses as the system will only lock out after an hour which could only happen during Mr Burke’s lunch break and that as for the remainder of the time, Mr Burke’s work required him to continually use the system. Mr Cooper was also not aware of multiple system crashes during the relevant period.
[82] Mr Cooper states that he considered that Mr Burke had deliberately completed the claims without completing the work in order to increase efficiency scores. Mr Cooper reached this conclusion on the basis of the volume of examples found. Mr Cooper considered this to be a serious and deliberate error warranting a first and final warning. Mr Cooper verbally advised Mr Burke of his decision on 15 April 2014. A letter confirming the outcome was drafted on 29 April 2014 and the letter was given to Mr Burke on 3 June 2014. This did not occur earlier because Mr Burke was on personal leave from 15 April to 30 May 2014.
[83] On 5 May 2014, Mr Cooper lodged a Safety Incident Management System notification to engage the Suncorp Group’s Claims and Return to Work team to support Mr Burke in his eventual return to work. Mr Burke had been absent on unpaid personal leave for most of April 2014. Mr Cooper states that he understands the return to work team were unable to contact Mr Burke. Mr Cooper states that on 13 May 2014, Mr Burke called him to advise he had a medical certificate in relation to a further absence until 20 May 2014. On 20 May 2014, at 9:45am, Mr Cooper called Mr Burke as he had not heard from him and he had not presented at work. At 10:08am, Mr Cooper received a text message from Mr Burke that stated “I am still unwell and will contact you once I have seen the doctor later today” 57.
[84] Mr Burke did not contact Mr Cooper prior to the commencement of his shift on 21 May 2014. Mr Cooper contacted Mr Burke again. Mr Burke called Mr Cooper at 11:53am and advised that he was “close to coming back but…am still really tired. I have a doctors appointment at 3.00pm today”. Mr Cooper asked when he expected to be return to work to which Mr Burke responded with words to the effect “I expect to be off for around two weeks. I will let you know what is going to happen once I have seen my doctor and I will call you in the future if I am not going to be in the office”. 58
[85] Mr Burke returned to work on 3 June 2014 at which time Mr Cooper met with him to deliver the warning letter and discuss the action plan. Mr Burke refused to sign the action plan. On 3 June 2014 Mr Cooper sent Mr Burke Outlook calendar invitations for the six fortnightly action plan review meetings.
[86] Mr Cooper conceded that the action plan delivered on 3 June 2014 did not refer to punctuality because Mr Cooper stated that punctuality issues arose after the action plan was implemented. However, Mr Cooper stated that punctuality is “encompassed” in the ‘Making it Happen’ leader profile. Mr Cooper accepted that on 3 June 2014 Mr Burke stayed back after the completion of his shift to help a colleague, and did not specifically dispute that he told Mr Burke that this time would make up for occasions he was late and that there was “give and take”.
[87] Mr Cooper had meetings to review Mr Burke’s performance on 20 June, 2 July, 15 June and 29 July 2014. Following each meeting Mr Cooper sent an email to Mr Burke with notes of what was discussed at the review meeting. These emails were tendered in evidence in these proceedings. 59 Mr Cooper conceded that the fortnightly reviews did not occur for the first two fortnights of the action plan.60 Mr Cooper stated that they did not occur because “the information wasn’t available”.61
[88] In relation to the review undertaken on 20 June 2014, Mr Cooper’s email records that Mr Cooper would complete a monthly audit of work in relation to understanding of the requirements of the role of Claims Officer; Mr Burke did achieve efficiency targets for that review period; there was a one day unplanned absence and Mr Burke did notify Mr Cooper of the absence; Mr Burke delivered excellent customer service but that looking at websites that were not work-related outside of scheduled breaks was not consistent with the leader profiles and that Mr Burke was late in each of the last 5 working days. This email states to Mr Burke:
“- You are expected to be at your desk ready to assist customers by your start time.
- If for some reason you are not going to be at your desk ready to assist customers by your start time then you should contact me and let me know your expected arrival time.”
[89] In relation to the review undertaken on 2 July 2014, Mr Cooper’s email records that Mr Cooper had commenced the audit and would provide details at the next review; Mr Burke achieved his efficiency target for one of the two weeks; there were no unplanned absences but Mr Burke was late on 1 July 2014 and did not advise Mr Cooper; Mr Burke was also late on 2 July 2014 but did notify Mr Cooper; Mr Cooper confirmed that he was required to advise “in every instance of lateness”.
[90] In relation to the review undertaken on 15 July 2014, Mr Cooper’s email records that he was considering the mediation agreement; Mr Cooper and Mr Burke discussed a follow-up on a particular claim that Mr Burke did not complete, Mr Cooper confirmed that there is “no expectation that [Mr Burke] will set…activities for followup” and that Mr Burke confirmed he would no longer do this; the activities assigned to Mr Burke would be actioned that day; two claims were identified where notes were not left and a response was requested; efficiency targets were met for both weeks; Mr Burke was logged onto his phone by the required time each day. Mr Cooper states that Mr Burke did not provide a response in relation to the two claims identified as not having had notes left. On 16 July 2014 Mr Cooper checked if Mr Burke had actioned the claims that were assigned to him as agreed; 12 of the 16 claims had not been reassigned. Mr Cooper does not give evidence about any steps taken to discuss this with Mr Burke.
[91] In relation to the review undertaken on 29 July 2014, Mr Cooper’s email records that Mr Burke had provided doctor’s certificates for 16 and 17 July; incorrectly dated certificates were provided for 22 to 25 July but Mr Burke advised he had spoken with his doctor and was picking up corrected certificates that day; of the claims reviewed, Mr Cooper had not identified any claims where notes were not left; Mr Cooper queried two claims for response; Mr Burke achieved efficiency targets for one week and was absent for the second (Mr Burke was on leave for 6 of the 8 days); Mr Burke was either logged into his phone on time or had notified Mr Cooper of his absence.
[92] On 11 June 2014, Mr Cooper observed Mr Burke looking at a basketball website during the daily team meeting. This was discussed with Mr Burke during a monthly one-on-one conducted that day. Mr Cooper said that he asked Mr Burke whether he thought this behaviour was appropriate and Mr Burke said he was listening to what was being said and “multi-tasking”.
[93] On 2 July 2014, Ms Sharyn Bignell, a Claims Services Team Leader, wrote to all Claims Officer advising that due to the high volume of calls, no breaks were to be taken between 4 and 5pm. On 9 July 2014, Mr Burke left his desk at 4.20pm and return at 4.35pm with a carrier bag. On 10 July 2014, Mr Cooper met with Mr Burke to query this break. Mr Burke responded that he forgot. This incident was not included in the notice of meeting of 5 August 2014 or the termination letter of 8 August 2014 in error.
[94] Mr Cooper accepts that Mr Burke did mention his mental health at the meeting on 6 August 2014. Mr Cooper responded that he was not aware that Mr Burke suffered from a mental health condition but that he “did not consider [Mr Burke’s] comment about depression relevant because I had not been provided with medical evidence that demonstrated he had a condition that impacted his ability to carry out his role” 62. Mr Cooper conceded that he did not take the statement regarding depression into account in determining what outcome to deliver.63
[95] Mr Cooper adjourned the meeting to consider Mr Burke’s responses and reconvened the meeting at 5:05pm. Mr Cooper “responded” to some of the matters raised by Mr Burke including his responses relating to his mental health. Mr Cooper conceded that there was nothing that Mr Burke could have said, either at the disciplinary meeting of 10 April 2014 or the termination meeting, that would have meant that he was not issued the first and final warning or dismissed. 64 Mr Cooper clarified that the meetings were not “mechanical” but said that he was not aware of anything that Mr Burke could have said to change the decision.65
[96] Mr Burke asked a number of questions of the Mr Cooper in cross-examination regarding the manner in which Mr Cooper had dealt with other Claims Officers who had had similar performance issues such as punctuality and leaving notes. Mr Cooper maintained his position that he had dealt with other instances of under-performance in a manner similar to the way in which he had dealt with Mr Burke but that the under-performance did not continue so did not need to be dealt with by more serious performance management as in Mr Burke’s case.
[97] Mr Cooper conceded in cross examination that during the period of Mr Burke’s employment there were no warnings given to Mr Burke by Mr Cooper regarding the way in which he performed the claims management process. 66 Mr Cooper also conceded that he had not issued Mr Burke with a specific warning in relation to punctuality.67
[98] Ms Alexis Rowan is a HR Consultant for the Commercial Insurance HR Team of Suncorp. Ms Rowan became involved in Mr Burke’s case in around April 2013 when contacted by Mr Cooper. 68 Ms Rowan’s role in the process was to provide advice to Mr Cooper in relation to the management of his concerns with Mr Burke’s conduct and performance.
[99] Ms Rowan reviewed Suncorp’s employment records and states that from 30 January 2012 to 8 August 2014, Mr Burke used 895.4 hours of personal leave (paid and unpaid). 69 Ms Rowan states that this means that Mr Burke was absent for 23% of his ordinary working hours during the period. Mr Burke’s leave history for this period was in evidence before the Commission, as an Appendix to Ms Rowan’s statement.70
[100] In relation to the audit of the January 2014 claims work of Mr Burke and why it was not discussed with Mr Burke until 9 April 2014, Ms Rowan states that this was because:
“i. Michael’s leave on a number of occasions from 7 January to 4 April 2014;
ii. Dale’s leave from 6 March to 26 March 2014; and
iii. Michael raised a complaint about Microsoft Lync (Lync) on 5 February 2014. This caused a delay because he was complaining of bullying by a colleague and we wanted to deal with his bullying allegation before proceeding with performance matters.” 71
[101] The leave data annexed to Ms Rowan’s statement reveals that for the period of 7 January to 4 April 2014, Mr Burke was absent on 7 occasions. It is not explained why these 7 absences prevented the matter being discussed with Mr Burke.
[102] As the results of the January 2014 audit were “so old”, Ms Rowan states that Mr Cooper arranged for a further audit for 10 March 2014 and 21 March 2014. This further audit raised issues.
[103] As a result of the April meeting, Ms Rowan states that she was supportive of a first and final warning being issued, rather than a second formal warning, because the performance concerns had a “serious impact on the rest of the team and the Claims Services stakeholders” 72.
[104] Ms Rowan was involved in advising Mr Cooper and Ms Hunter as to how to deal with the complaint that Mr Burke had made in relation to Lync. Ms Rowan assisted Ms Hunter to draft an email to Mr Burke dated 7 February 2014. 73 In relation to the bullying complaint, Ms Hunter advised Mr Burke to review the appropriate Suncorp policy and if advising that if he wished to pursue the allegation he would need to draft up a statement. Ms Hunter referred Mr Burke to the Suncorp Group Employee Council for assistance in drafting this document.
[105] Ms Rowan states that she is aware that Mr Burke did not pursue a formal bullying complaint after discussion with Ms Hunter on 10 April 2014. At this meeting Mr Burke agreed to engage in mediation with Mr Cooper.
[106] Ms Rowan states that she advised Mr Cooper to lodge the SIMS request to engage Suncorp’s return to work team in relation to Mr Burke’s absence. This occurred on 5 May 2014. Ms Rowan states that she spoke with the Return to Work Co-Ordinator and was advised that the return to work team had closed the SIMS request on 3 June 2014 after having received confirmation that Mr Burke had returned to work. Ms Rowan was aware that the return to work team had not been able to discuss the matter with Mr Burke.
[107] Ms Rowan states that she is aware that Mr Cooper met with Mr Burke on a fortnightly basis from 3 June 2014. Ms Rowan was advised by Mr Cooper of “breaches” of the action plan. Ms Rowan drafted a further notice of meeting for Mr Burke to respond to.
[108] Ms Rowan was not at the meeting of 6 August 2014 but was present for a discussion with Mr Cooper and Mr Byran Hogg (Mr Cooper’s leader at the time) during the meeting to give advice in relation to what had occurred. Ms Rowan states that part of the discussion related to Mr Burke’s claim in relation to his depression. Ms Rowan states that either Mr Cooper or Mr Hogg stated:
“We don’t see [Mr Burke] advising he has depression as a mitigating factor because he has never advised us of this before and we don’t have any medical evidence which says that Michael requires adjustments to his role. [Mr Burke] refused to work with the rehab team to allow them to communicate with his doctor” 74
[109] And further:
“Michael has had sufficient opportunity to improve, because there have been fortnightly action plan review meetings to support performance improvement. There had been some improvement in the ‘notification of absence from work’ and ‘efficiency expectations’ requirements of the action plan. However, there have been continuing failures and inconsistency in meeting the minimum requirements of the claims officer role, in particular the claims management system, such as his issues with repeatedly failing to leave notes on claims he had worked on, repeatedly assigning claims to himself and not following through with commitments he had made in relation to these claims. We are going to terminate his employment based on the continuing nature of his poor performance and the breaches on the action plan…There is nothing in Michael’s responses which persuades me against termination” 75
[110] Ms Rowan states that she supported the decision to dismiss because Mr Burke had previously been warned (on 3 June 2014) that failure to improve his performance could lead to further disciplinary action, including termination; there had been sufficient time for Mr Burke to improve his performance from 3 June 2014; Mr Burke’s statement in relation to his depression should not change the outcome because Mr Cooper was not aware of this previously and Mr Burke had not provided any medical evidence such that Suncorp would be “required” to make reasonable accommodations; Mr Cooper’s responses displayed that he was not taking ownership of his performance issues. 76
[111] Ms Rowan gave further evidence in chief at the hearing in response to matters raised by Mr Burke at the Hearing. This evidence related to the performance management of another employee Mr Johnston. Ms Rowan agreed that Mr Johnston was placed on an action plan and had not met all of the expectations set by that action plan. Ms Rowan states that Mr Johnston was given a first formal warning in September 2013. Ms Rowan states that following this, Mr Johnston met expectations and the action plan ended.
[112] A further action plan was instituted for Mr Johnston after his performance again declined. Mr Johnston did not meet expectations in relation to this second action plan but he was made redundant so it was not necessary to progress the action plan further. Ms Rowan stated that it was decided that Mr Johnston would be given a first formal warning, as opposed to a first and final warning, because Mr Johnston was at the “start” of performance management process and had not previously received a performance management outcome. 77
[113] In cross-examination Ms Rowan explained what might constitute a first formal warning versus a first and final warning as follows:
“It depends on a number of things, such as there are lots of factors and considerations put into that, such as an employee's tenure, how long they've been on performance-management, their previous performance history, their response in the notice of meeting; whether or not they have sort of taken ownership and their explanation. Yes, so a number of factors around if it's behavioural conduct, previous matters - if there's been like more performance done prior.” 78
[114] Ms Rowan conceded that in considering whether to issue Mr Burke with a first and final warning, only his second period of employment was taken into account. If the Commission were to find that Mr Burke had been unfairly dismissed, Suncorp submitted that any order for compensation should be negligible on the basis of Mr Burke’s hostility to performance management and his poor employment history.
Consideration
[115] Section 387 of the Act (extracted above) sets out the matters that the Commission must consider in deciding whether a dismissal was unfair. Each will be considered in turn.
(a) Whether there was a valid reason for Mr Burke’s dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees):
[116] I am satisfied and find that there was a valid reason for Mr Burke’s dismissal. The dismissal followed a two year period of unsatisfactory work performance during which Mr Burke was subject to four performance management plans (termed by Suncorp as Action plans). Notwithstanding that Mr Burke may have successfully completed the outcomes in the Action Plans it is clear from the evidence that he subsequently engaged in exactly the same conduct that had been the subject of previous Action Plans. The Action Plans were implemented by a number of supervisors and were not in identical terms, but nonetheless had a common theme.
[117] It is clear from the evidence that Mr Burke took no responsibility for his poor performance and did not react well to attempts to improve his performance. The consistent conduct engaged in by Mr Burke included:
● Failure to appropriately contact team leaders when he was going to be late or absent from the workplace;
● Failure to submit medical certificates and other forms to enable his leave to be processed;
● Timekeeping issues such as being late for work so that he was not set up to commence at his regular start time, leaving early or taking breaks at times when he was not authorised to do so or had been asked not to do so due to operational requirements;
● Poor efficiency figures and failing to leave notes on claims; and
● Not dealing with claims in accordance with policies and procedures.
[118] In addition to these consistent issues, there were other issues which arose on a “one off basis” such as Mr Burke looking at a basketball website on an electronic device during a team meeting, and when questioned, replying that he was multi-tasking. Mr Burke says that he made the comment in jest. While this may be the case, an employee with Mr Burke’s performance management record should have known better.
[119] At the point this application was heard, Mr Burke continued to maintain that these were not legitimate issues and that others who engaged in the same or similar conduct had been treated differently. Mr Burke also downplayed these issues by saying that he had made some errors but maintained that systems and technology were the problem rather than his own performance. His evidence was not convincing and on balance I accept that there were significant and longstanding issues with Mr Burke’s conduct and work performance.
[120] I do not accept that the audits of Mr Burke’s claims were motivated by the complaint he made about his treatment by another employee, Ms McCullough. That complaint was made on 5 February 2014 by email to Mr Cooper. While I accept that Ms McCullough’s conduct caused distress to Mr Burke, it was not conduct of a serious or significant nature and was not repeated. At the point the conduct occurred and Mr Burke complained about it, he had already received a written warning and had been subject to three action plans in relation to poor performance. I am unable to accept that the complaint had any relevance to his dismissal. I am also satisfied that the matter was dealt with appropriately and that Mr Burke was not given an apology because he stated that while he wanted an apology this would probably not resolve the matter and would not assist him to move past it.
(b) Whether Mr Burke was notified of that reason:
[121] I am satisfied and find that Mr Burke was notified of the reasons for his dismissal. Those reasons were set out at length in the notice requesting him to attend the meeting at which his employment was terminated and the termination letter, which reiterated many of the matters raised in previous warning letters.
(c) Whether Mr Burke was given an opportunity to respond to any reason related to the capacity or conduct of the person:
[122] Mr Burke was given an opportunity to respond to the reasons for dismissal related to his capacity or conduct.
(d) Any unreasonable refusal by the Suncorp to allow Mr Burke to have a support person present to assist at any discussions relating to dismissal
[123] Mr Burke had a support person to assist him during the discussion related to his dismissal.
(e) Whether Mr Burke was warned about unsatisfactory performance before the dismissal:
[124] I am satisfied and find that Mr Burke was warned about his unsatisfactory performance prior to his dismissal. Mr Burke received two warnings during the course of his employment and was subject to four Action Plans as a result of unsatisfactory work performance. Mr Burke was on notice from 2012 that his performance was unsatisfactory and of the aspects of his performance with which his supervisors took issue
(f) The degree to which the size of Suncorp would be likely to impact on the procedures followed in effecting the dismissal;
[125] Suncorp is a large employer and the impact of its size on the procedure followed in effecting the dismissal is not a relevant consideration.
(g) The degree to which the absence of dedicated human resource management specialists or expertise would be likely to impact on the procedures followed in effecting the dismissal
[126] Suncorp has dedicated human resource management and industrial relations expertise, including access to internal legal counsel. This criteria is not a relevant consideration.
(h) Any other matters that the FWC considers relevant
[127] Mr Burke submits that his mental health issues are matters which Suncorp should have been aware of and taken into account in determining whether his performance issues justified dismissal. Mr Burke further submits that if relevant managers were not aware of his mental health issues then they should have suspected that there were such issues and dealt with him accordingly.
[128] Suncorp maintains that managers who were involved in the decision to dismiss Mr Burke were not aware that he had mental health issues and that there are no grounds upon which they could reasonably have known about this matter. There is no documentary evidence, even at the point this application was heard, in relation to the specific nature of Mr Burke’s medical condition and any limits this may have posed to his performance. Mr Burke states that he suffers from depression and has suffered from this condition for some time.
[129] There is evidence that Mr Burke was generally unwilling to engage with Suncorp regarding his medical condition and would not provide permission for Suncorp to access his medical records or speak to his doctor, despite requests in this regard. However it is also the case that in an email dated 1 April 2014, Mr Burke asked for more information about why a rehabilitation officer needed to speak to his doctor. Ms Hunter’s response by email dated 8 April 2014 was to explain that there was not sufficient medical evidence to justify a move to a three day week and why contact between Suncorp’s rehabilitation officer and Mr Burke’s treating medical practitioner was necessary.
[130] Mr Burke submitted an income protection claim under a scheme available to Suncorp employees through a related entity. The email tendered by Mr Burke submitting his income protection claim does not establish that Suncorp, as the employer had knowledge of Mr Burke’s mental health condition. What it shows is that Mr Burke made a claim for income protection to his income protection provider which is Suncorp, the Insurer. It would have been entirely inappropriate for Suncorp, the Insurer, to advise Suncorp, as Mr Burke’s employer, of any of the information contained in Mr Burke’s claim for income protection, without his express permission, which, given his previous refusal to disclose his medical information, it is more probable than not that Mr Burke would have refused permission for in any event.
[131] It is also the case that Mr Burke did not directly raise his mental health issues as an explanation for unsatisfactory work performance, until the meeting at which he was dismissed. Notwithstanding these matters, there are in my view, signs that should have made it reasonably apparent to Mr Cooper and to Suncorp’s human resource management team, that Mr Burke had a health issue, and that it was probable that this was having some impact on his work performance.
[132] Mr Burke had reduced his working hours from five days to fours day per week to assist with work/life balance and his attendance at work. Mr Burke subsequently asked for a career break and sought to further reduce his working week to a three day week. In an email in this regard to Mr Cooper dated 14 January 2014, Mr Burke stated:
“I feel that my work/life balance would be greatly enhanced by moving back to 3 days…I feel like I am regressing to the point I was which caused me to have 3 months off work…
I can get medical certification again supporting my request to move to 3 days if need be.”
[133] Mr Burke also sent emails to the Manager of Core Claims, Ms Hunter, to whom Mr Cooper reported, making various comments about the deterioration in his mental health. It is also the case that Mr Burke had very high levels of absenteeism and extended periods where he was absent from work. Further, Mr Burke lodged a claim for workers’ compensation. Mr Burke’s extended absences from work lead Mr Cooper to lodge a Safety Incident Management System Notification so that Suncorp’s “Return to Work” team could engage with Mr Burke.
[134] Suncorp asserts that two messages were left on Mr Burke’s message bank by a member of the Return to Work Team and that he did not return those calls. Mr Burke contends that he did not get any messages. Under cross-examination Mr Burke appeared to concede that he did get messages but that not enough effort was made to contact him. Regardless, the evidence shows that between 5 January 2012 and 25 July 2014, Mr Burke used 895.4 hours of sick leave of paid and unpaid leave and was absent for 23% of his ordinary working hours. Ms Rowan gives evidence of this quantum of absence in the context of Mr Burke’s poor work performance.
[135] In my view, it is surprising that a member of Suncorp’s human resource management team, or Mr Burke’s supervisor or a more senior manager, did not sit down with him and ask him whether there were any personal issues impacting on his work performance. There is no evidence that there was any such discussion. There is no evidence that this issue was even considered by Suncorp. In my view, for an employer the size of Suncorp, this is not a reasonable way to deal with what should be an alarming absenteeism rate. While great effort was gone to in documenting Mr Burke’s undoubtedly poor work performance, there was little if any effort expended on considering whether whatever health issue he was suffering, was impacting on his work performance.
[136] At the time of considering whether to dismiss the Applicant it would have been appropriate for Suncorp to write to the Mr Burke or to advise him formally that that it was concerned about the possibility that his health may be impacting upon his work performance, and that Suncorp wanted to ensure that it had all information available for its consideration prior to considering whether to discipline Mr Burke, including dismissing him. It would also have been reasonable for Suncorp’s human resource management team to again seek Mr Burkes’ permission to obtain information from his medical advisors, in the context that it was considering terminating his employment and wanted to ensure that it had all relevant information. In the circumstances of Mr Burke’s sick leave history, and the human resources, rehabilitation and industrial relations expertise at Suncorp’s disposal, it is surprising that these efforts were not made.
Differential treatment
[137] I do not accept that Mr Burke has established that he was treated differently from other employees with respect to the performance management process or the matters he was warned about.
[138] Mr Burke gave evidence about the differential treatment of another employee, and elicited further evidence about this in cross-examination, there was a lack of specific detail to enable me to consider the matter as comparable. The evidence of Ms Armstrong was that the other employee was on a first and final warning; he did breach that warning but was ultimately dismissed by reason of redundancy. 79 There is insufficient detail for that matter to be compared with Mr Burke’s case. Primarily, there is no evidence of why the other employee was the subject of a first and final warning, that employee’s performance history or that employee’s personal circumstances.
The first and final warning
[139] Mr Burke also contends that the first and final warning should not have been issued or should have been issued at a lower level. Mr Burke contended that Suncorp needed to establish that he had engaged in wilful or deliberate misconduct or grossly negligent conduct to have been able to issue a first and final warning. If the first and final warning is removed, Mr Burke contends that the Respondent’s decision to dismiss him from his employment cannot be justified as it relied upon the first and final warning in reaching that conclusion.
[140] I do not accept this submission. The evidence establishes that there has been a history of performance concerns in relation to Mr Burke and four action plans aimed at improving that performance. Mr Burke had received a first warning in 2012. Even if I were to accept that issuing Mr Burke a first and final warning was harsh in the circumstance, the fact remains that Mr Burke was not performing at the level expected and had been clearly notified of the level of performance required of him by the Action Plan of 3 June 2014 and did not meet those expectations.
[141] Mr Burke’s submission that an employer has to establish wilful or deliberate conduct or grossly negligent conduct on the part of an employee before issuing a first and final warning must be rejected. Disciplinary outcomes are generally a matter within the prerogative of an employer and must be considered in the context of the circumstances as a whole. In the present case, there were persistent and consistent performance issues about which Mr Burke had been put on notice by means of the Action Plans. In my view, subject to concerns about the failure of Suncorp’s human resource managers and Mr Cooper, to consider the impact of Mr Burke’s obvious health issues, Suncorp was entitled to issue a first and final warning at the point that warning was issued.
[142] On balance I am satisfied and find that the dismissal was unfair, on the basis of the failure to consider Mr Burke’s health issues, which should have been reasonably obvious, and to take into consideration whether those issues impacted on his work performance.
REMEDY
[143] Given that I have found that Mr Burke’s dismissal was unfair, it is necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that Mr Burke was protected from unfair dismissal and that he has been unfairly dismissed. I am also of the view that Mr Burke should have a remedy for his unfair dismissal. Initially Mr Burke sought reinstatement. However, he qualified this by stating that he did not wish to be reinstated to a position in Mr Cooper’s team because of their fractured relationship, and sought to be reinstated to another area or team. Mr Burke did not provide evidence about what area or team he sought to be reinstated to.
[144] The Commission has power to reinstate a dismissed employee to a position in which the person was employed immediately before the dismissal or to another position on terms and conditions no less favourable. The Commission does not have power to put conditions on reinstatement. 80 After considering the evidence I am satisfied and find that reinstatement is not practicable and that it is not appropriate for Mr Burke to be reinstated on the basis that he does not report to his previous supervisor, or is put into a different team.
[145] In reaching this conclusion I have considered the fact that Mr Burke’s work performance was unsatisfactory over a considerable period of time, and that there was a valid reason for his dismissal. I am also of the view that Mr Burke consistently failed to improve his work performance and to take responsibility for his shortcomings. It is also the case that prior to his dismissal, Mr Burke was seeking a career break or to reduce his already reduced working hours from four days to three days per week. Further, there is no evidence that Mr Burke is presently fit to resume employment.
[146] I am satisfied that an order for the payment of compensation is appropriate in all of the circumstances of the case. Section 392 of the Act provides as follows in relation to the remedy of compensation:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
[147] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket 81. In accordance with that approach, and s.392 of the Act, I calculate compensation as follows.
[148] Mr Burke sates that his salary at the point he was dismissed was $54,600 per annum or $1050 per week. At the point he was dismissed, Mr Burke was on a first and final warning and had been subjected to four performance management plans over the immediately preceding two year period. Mr Burke had continually engaged in the same unsatisfactory conduct and work performance, despite the performance management plans. It is also relevant that Mr Burke was seeking to further reduce his working hours or to take a “career break” prior to his dismissal.
[149] Notwithstanding my concerns at the failure of Suncorp to explore whether Mr Burke had a health issue which was impacting on his performance, I am satisfied and find that Mr Burke would not have remained in employment for longer than a further 8 week period from the date he was dismissed. I have formed this view on the basis that even if a further investigation about the possible impact of Mr Burke’s health issues had been conducted, the outcome of the investigation would not have been any different. Even at the hearing of his unfair dismissal application, Mr Burke did not provide any evidence, medical or otherwise, of how his mental health issues contributed to the conduct for which he was dismissed. He had refused requests for permission for Suncorp representatives to speak to his doctor and had offered only medical certificates. Such an exercise would have required more than medical certificates.
[150] At the point he was dismissed, Mr Burke head been employed for a total period of almost seven years, although there had been a break in service. His most recent period of service was approximately three years and four months. Mr Burke was told that he would be paid two weeks wages in lieu of notice on termination of his employment in August 2014. That amount was not paid until November 2014. At that time, Mr Burke was paid the two weeks in lieu of notice set out in his termination letter and a further amount of one week and two days wages when Ms Rowan realised that not only had Mr Burke not been paid notice at the time of his dismissal, but the period had also been miscalculated.
[151] While I accept that this oversight was not intentional I do not doubt that it would have caused Mr Burke significant difficulty given that he was unemployed even at the point this application was heard. Dismissed employees should not have to wait for considerable periods to receive their minimum statutory entitlement to payment in lieu of notice and the impact of the failure of Suncorp to pay this amount in a timely fashion is a matter that I have taken into account in calculating compensation. This is particularly so given that the notice payment was not made until the period over which I have assessed compensation had elapsed.
[152] Had Mr Burke remained in employment for the 8 week period he would have earned the gross amount of $8,400. Given my findings about the failure of Suncorp to properly consider whether health issues had impacted on Mr Burke’s conduct and work performance, and that Mr Burke was dismissed for poor work performance rather than misconduct, I do not consider it appropriate to make a deduction in this regard. Given the late payment of Mr Burke’s statutory entitlement to payment in lieu of notice and that the payment was made outside the time period for which I have determined that Mr Burke would likely have remained in employment, I make no deduction for the period of notice. In my view, the requirement to take such amounts into account does not necessitate that they are deducted from an award of compensation.
[153] On balance, I am satisfied that Mr Burke has made reasonable attempts to mitigate his loss, notwithstanding that he has applied for only the minimum number of positions each fortnight to maintain his entitlement to Centrelink payments. I make no deduction in this regard. Accordingly I have calculated compensation in the amount of $8,400, taxed according to law. That amount is to be paid to Mr Burke within fourteen days of the date of release of this Decision and an Order to that effect will issue.
DEPUTY PRESIDENT
1 Affidavit of Ms Gayna Armstrong dated 24 November 2014, Exhibit 3.
2 Affidavit of Mr Dale Cooper dated 24 November 2014, Exhibit 4.
3 Affidavit of Ms Alexis Rowan dated 24 November 2014, Exhibit 6.
4 Exhibit 4, Annexure DC10.
5 Exhibit 4, Annexure DC-11.
6 Exhibit 4, Annexure DC-17.
7 [2004] AIRC 261.
8 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
9 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.
10 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.
11 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.
12 PN817 to PN830.
13 [2014] FWC 543.
14 PN148.
15 PN149.
16 PN525.
17 PN530.
18 PN535 to PN538.
19 PN541.
20 PN548.
21 PN550.
22 PN556.
23 PN551 to PN552.
24 PN613 to PN618.
25 PN635.
26 PN479.
27 PN491.
28 PN498.
29 PN638 to PN639.
30 PN647.
31 PN641.
32 Exhibit 3 at paragraph 10.
33 Exhibit 3at paragraph 11.
34 Exhibit 3 at paragraph 12.
35 Exhibit 3 at GA-1.
36 Exhibit 3 at 17.
37 Exhibit 3 at GA-2.
38 Exhibit 3 at GA-3.
39 Exhibit 3 at GA-4.
40 Exhibit 3 at paragraph 24.
41 PN696.
42 PN738.
43 Exhibit 4, Annexure DC-7.
44 Ibid.
45 Exhibit 4 at paragraph 19.
46 Exhibit 4 at paragraph 20.
47 Exhibit 4 at paragraph 24.
48 Exhibit 4 at paragraph 26.
49 Exhibit 4 at paragraph 27.
50 Exhibit 4 at paragraph 34.
51 Exhibit 4 at paragraph 37.
52 Ibid.
53 Exhibit 4 at paragraph 38.
54 Exhibit 4, Annexure DC-10.
55 Exhibit 4 at paragraph 55.
56 Exhibit 4 at paragraph 57.
57 Exhibit 4 at paragraph 69.
58 Exhibit 4 at paragraph 70.
59 Exhibit 4, Annexure DC-14.
60 PN1395.
61 PN1396.
62 Exhibit 4 at paragraph 100.
63 PN1106 to PN1107.
64 PN1137 to PN1139.
65 PN1139 to PN1140.
66 PN1359 to PN1362.
67 PN1391.
68 Exhibit 6 at paragraph 4.
69 Exhibit 6 at paragraph 8.
70 Exhibit 6, Annexure AR-1.
71 Exhibit 6 at paragraph 15(g).
72 Exhibit 6 at paragraph 15(m).
73 Exhibit 6, Annexure AR-5.
74 Exhibit 6 at paragraph 34(c).
75 Exhibit 6 at paragraph 34(d).
76 Exhibit 6 at paragraph 35.
77 PN1484.
78 PN1514.
79 PN779 to PN783.
80 Cartisano v Sportsmed SA Hospital Pty Ltd; Sportsmed SA Hospitals Pty Lts v Cartisan [2015] FWCFB 1523.
81 (1998) 88 IR 21.
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