Mr Walter Koch v Advantage Communication & Data Pty Ltd T/A Advantage Communication & Data

[2016] FWC 6937

[2016] FWC 6937

FAIR WORK COMMISSION

DECISION

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

Mr Walter Koch
v
Advantage Communication & Data Pty Ltd T/A Advantage Communication & Data
(U2016/2742)

COMMISSIONER SAUNDERS NEWCASTLE, 26 OCTOBER 2016

Application for relief from unfair dismissal – small business employer – compliance with Small Business Fair Dismissal Code – application dismissed

[1] Mr Koch was employed by Advantage Communication & Data Pty Ltd (ACD) in the position of Business Development Manager from 11 October 2012 to 31 May 2016.

[2] ACD conducts its business in the information technology services industry. It delivers telecommunications and information technology solutions to businesses. The services ACD provides to its clients require some of its employees such as Mr Koch to have regular communication with Telstra.

[3] ACD received a number of complaints from Telstra over a period of time in relation to Mr Koch’s behaviour, in particular his aggressive, angry, rude and loud communications with employees in Telstra’s call centres. On 23 May 2016, ACD received another complaint from Telstra in relation to Mr Koch’s interactions with Telstra employees. Following a meeting with Mr Koch on 31 May 2016, ACD decided to terminate his employment with immediate effect. Mr Koch alleges that his dismissal was harsh, unjust and unreasonable. ACD denies those allegations.

The Hearing

[4] This matter was heard by me on 28 September 2016. Mr Koch gave evidence on his own behalf. Mr Craig Finn, Managing Director, and Mr Paul Reimer, Director/Senior Business Partner, gave evidence on behalf of ACD.

Initial matters to be considered

[5] I am required by s.396 of the Fair Work Act 2009 (Cth) (the Act) to decide four matters before I consider the merits of Mr Koch’s application. There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mr Koch’s application was made within the period required by s.394(2) of the Act;

(b) Mr Koch was a person protected from unfair dismissal; and

(c) Mr Koch’s dismissal was not a case of genuine redundancy.

[6] I will now address whether ACD was a “small business employer” as defined in s.23 of the Act and, if so, whether Mr Koch’s dismissal was consistent with the Small Business Fair Dismissal Code (the Code).

Small Business Fair Dismissal Code

[7] Section 388 of the Act provides:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[8] Section 23 of the Act provides a definition of a “small business employer” for the purpose of the Act. Relevantly, section 23(1) provides that a “national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time”.

[9] For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) all employees employed by the employer at the time (including the dismissed employee who has made the unfair dismissal application) are to be counted subject to the caveat that a casual employee is not to be counted unless, at the time, he or she has been employed by the employer on a regular and systematic basis (ss.23(2) & (4) of the Act); and

(b) associated entities are taken to be one entity (s.23(2) of the Act). The expression associated entity has the meaning given by section 50AAA of the Corporations Act 2001 (Cth) (Corporations Act).

[10] I am satisfied on the evidence, and there is no dispute, that ACD employed 11 employees as at 31 May 2016. There was no suggestion that ACD had any associated entities at the time of Mr Koch’s dismissal.

[11] Accordingly, it is not disputed and I am satisfied on the evidence that, immediately before the time of Mr Koch’s dismissal, ACD was a small business employer within the meaning of the Act.

[12] The Code declared by the Minister pursuant to section 388(1) of the Act is in the following terms:

“Summary dismissal

“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[13] In Pinawin v Domingo 1, the Full Bench considered whether, in the context of a summary dismissal under the Code, the Commission had to be satisfied that the serious misconduct which was the basis for the dismissal actually occurred:

“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. The circumstances include the experience and resources of the small business employer concerned.
…

[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo’s conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well …”

[14] Another Full Bench of the Commission recently examined the summary dismissal part of the Code in detail in Ryman v Thrash Pty Ltd 2and concluded as follows:

“[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates the following way:

(1) If a small business employer has dismissed an employee without notice – that is, with immediate effect – on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectivity speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”

Background to, and reasons for, Mr Koch’s dismissal

[15] Following receipt of a complaint from Telstra about Mr Koch, ACD issued a warning letter to Mr Koch in the following terms on 17 June 2014:

“On the 29/5/2014 I received an email from our dealer manager Alistair Hunt, I have attached to this email for your reference in this letter.

Alistair received an official complaint from the Dealer Care Centre indication [sic] your behaviour is unacceptable.

“The usual manner in which Walter calls through and speaks with the staff in the Dealer Care Centre really is unacceptable, he often raises his voice and will yell at them if they advise anything that he does not agree with, whether or not it is our policy or not. He has displayed the same behaviour to my team leaders when the staff have escalated the call upwards.”

I spoke with Alistair later that day and he indicated that this was not the first time they had received complaints along this line. I have had calls from both Mark Chapman (Dealer Manager) and Theo Papadopoulos (National Sales Manager).

I have been asked to think how much this behaviour is affecting the Advantage brand within Telstra. Telstra have asked me to officially respond.

My response to Telstra will be that “I have officially warned Walter that his behaviour is unacceptable and that this type of behaviour is damaging to our brand within Telstra, we have asked Walter to seek some professional anger and conflict resolution training”.

This has been a long running issue with Telstra and they have indicated that is [sic] something isn’t done the dealer care channel will take this further.

I asked what the outcome could be and the [sic] indicated that if we didn’t address this issue then there could be a ban placed on Walter in relation to calling the dealer centre.

We need this addressed and we need to respect the request of Telstra and keep things professional when dealing with the Dealer Care Centre.”

[16] Attached to ACD’s first warning letter to Mr Koch was an email from a Telstra manager in which Mr Koch’s conduct and its impact on Telstra’s employees was described in the following way:

“The usual manner in which Walter calls through and speaks with the staff in the Dealer Care centre is really unacceptable, he often raises his voice and will yell at them if they advise anything that he does not agree with, whether or not it is our policy or not. He has displayed the same behaviour to my team leaders when the staff have escalated the call upwards.

He has made statements to staff about that he will just continue to call into the queue until he will find someone that will give him the information or the answer that he requires. I have had consultants in tears and unable to take their next calls after speaking with Walter and I have found out this has been going on for quite a while now and I am disappointed that we work really hard in the centre to have to have a great relationship with our dealers and Walter is not only making that very difficult but souring the perception for other dealers as well.

I am happy to take this further as I do not feel that the consultants or the team leaders deserve to have anyone yell and scream at them on the phone when I can guarantee that our people here have a mindset to help and deliver whatever they can for our partners and our customers.”

[17] On 18 May 2015, Mr Finn received notice from Telstra that Mr Koch would be “suspended for 90 days due to his repeated poor manners, angry outbursts and rudeness when talking to our staff”.

[18] In 2015, Telstra informed Mr Finn that if ACD was going to keep Mr Koch on as an employee then Mr Koch would need to get professional help in relation to his anger. Mr Finn then made arrangements for Mr Koch to see a psychologist and for the Telstra recording of a communication the subject of a complaint from Telstra to be played to Mr Koch’s psychologist. Mr Koch attended two sessions with the psychologist and then ceased seeing the psychologist. Mr Koch paid for his visits to see the psychologist.

[19] On 30 September 2015, ACD issued a further warning letter to Mr Koch in the following terms:

“This written correspondence is to address your behaviour in the office on 28 September 2015, on this occasion you demonstrated contempt and disrespect of your senior management, in full view of other staff members. In no way will Advantage Communication & Data accept this type of conduct in the future, if it is repeated it will result in instant dismissal.

Due not only to the above mentioned incident, but also the previous 3 month Telstra suspension, the recent complaint from Telstra regarding your manner on your return from suspension, the complaints from other staff members regarding the disruption caused by your manner on the phone to Telstra and even personal comments made to other staff, it is clear to us that there needs to be a substantial change in your attitude to your fellow colleagues both within Advantage Communication & Data and Telstra Corporate.

It is hereby our joint decision as directors of Advantage Communication & Data, to implement a life work balance by imposing strict office operating hours (8.00am-5.00pm) Monday to Friday. We hereby request the key to the office we issued you to be returned immediately until further notice.

This is a final warning that if there are any further complaints from staff members, or demonstrations of disrespectful behaviour, we will be left with no choice as to terminate your employment. It is also of concern that there has been yet another complaint from Telstra, and if your actions result in your D number being revoked we will be unable to continue your employment.”

[20] Mr Finn explained in his oral evidence that he issued the directive to Mr Koch to work limited hours so that he would have a decent work-life balance and turn up to work refreshed each day, thereby reducing the prospect that he would become angry or unreasonable in his communication with Telstra employees. In the result, Mr Koch ended up working hours beyond 8am until 5pm, but Mr Finn put in place a measure to have Mr Koch’s work computer automatically shut down at 6:45pm each day (Monday to Friday), so that he could not work excessive hours. Although Mr Koch had been working the excessive hours in an attempt to service ACD’s customers and thereby enhance ACD’s business, Mr Finn took the view that the additional service provided by Mr Koch to the clients was not valuable because, first, it came at the cost of Mr Koch having ongoing disputes with Telstra, with whom Mr Koch was dealing on behalf of the client, and secondly, the work Mr Koch was doing in dealing with Telstra on behalf of clients was not generating revenue for ACD.

[21] Mr Finn accepts that Mr Koch’s behaviour improved a lot after his suspension by Telstra, however Mr Finn gave evidence, which I accept, that Mr Koch still had outbursts from time to time where he would “scream” at a Telstra employee in a call centre and ask to speak to their supervisor.

[22] On about 23 May 2016, Mr Finn received notice of a further complaint from Telstra about Mr Koch. This was the first complaint Telstra had made about Mr Koch since his suspension in 2015. Mr Finn was told by the Telstra manager that Mr Koch had engaged in another inappropriate outburst towards an employee in Telstra Dealer Care (a Telstra call centre).

[23] In the week ending Friday, 27 May 2016, Mr Finn and Mr Reimer discussed with Mr Koch their concern about the products he had supplied to various clients over a period spanning about nine months for which Mr Koch had not issued invoices to those clients, with the result that ACD had not received payment of about $35,000. Mr Koch was directed to stop doing the work he was doing and immediately issue the invoices in relation to the product he had supplied to clients. Mr Finn told Mr Koch that other employees could take calls from clients of ACD while Mr Koch undertook this work. Mr Koch did not agree that other staff could deal with such calls. He asked if he could work on Saturday (unpaid) to do the outstanding paperwork. Mr Finn denied this request. Mr Finn’s reason for denying the request was because he was concerned about Mr Koch working too many hours and not coming to work in a refreshed state where he was ready to communicate with Telstra employees in a reasonable manner.

[24] Mr Koch agrees that Mr Finn initially denied his request to work on Saturday, 28 May 2016, but says that he had a further discussion with Mr Finn and Mr Reimer about working on Saturday, 28 May 2016 and “permission was not granted or denied”. Both Mr Finn and Mr Reimer deny this. They say that Mr Finn clearly directed Mr Koch not to work on Saturday, 28 May 2016 and Mr Koch refused to comply with this direction and instead worked a full day on 28 May 2016. I prefer the evidence given by Mr Finn and Mr Reimer on this issue over the evidence given by Mr Koch. Both Mr Finn and Mr Reimer were adamant that Mr Finn denied the request and never waivered from that position. Mr Finn had a clear rationale for taking that position, namely his concern about the likely impact of Mr Koch working too many hours. Mr Koch’s evidence that “permission was not granted or denied” was not persuasive.

[25] On about 27 May 2016, Mr Finn had a further discussion with the Telstra manager about the complaint made against Mr Koch. The Telstra manager asked Mr Finn what he intended to do about the further complaint.

[26] On 30 May 2016, a Telstra manager sent an email to Mr Finn in the following terms:

“Hi Craig

Thank you for your time over the phone, as per our discussion we will be requesting the permanent suspension of Walter’s D number due to his inappropriate behaviour while communicating with members of our Sales Centre.”

[27] Mr Koch was dismissed in a meeting with Mr Finn and Mr Reimer on 31 May 2016.

[28] In the letter of termination dated 30 May 2016, but provided to Mr Koch on 31 May 2016, ACD made reference to the previous written warnings provided to Mr Koch on 17 June 2014 and 30 September 2015 and then stated:

“…We have received further complaints from both Telstra and staff members.

You have continued to be disruptive and show contempt towards management, staff and Telstra call centres. You haven’t adhered to your strict office hours.

Your termination is effective as of the 31/5/2016. Your annual leave entitlements will be paid to you.”

[29] Mr Finn and Mr Reimer gave evidence that they relied on the following three reasons to terminate Mr Koch’s employment immediately on 31 May 2016:

(a) First, ACD had received another complaint from Telstra in relation to Mr Koch’s communications with Telstra employees;

(b) Secondly, Mr Koch acted contrary to the direction given by ACD and attended work on Saturday, 28 May 2016; and

(c) Thirdly, Mr Koch had provided products (principally mobile telephones) to clients of ACD over a period spanning about nine months but had failed to issue invoices to those clients.

[30] Importantly, for the purpose of considering whether Mr Koch’s dismissal was consistent with the summary dismissal part of the Code, I do not need to make a finding about whether the conduct relied on by ACD to terminate Mr Koch’s employment in fact occurred. The issues I need to address in relation to the summary dismissal Code are set out in paragraphs [12] to [14] above.

Summary dismissal under the Code

Serious misconduct

[31] I am satisfied that the conduct on the part of Mr Koch relied upon by ACD to warrant his instant dismissal meets the definition of “serious misconduct” in regulation 1.07 of the Fair Work Regulations 2009 (Cth), for the following reasons:

(a) Mr Koch’s inappropriate communications with Telstra employees were damaging ACD’s brand and reputation within Telstra. So much is clear from the written communication from Telstra to ACD, a copy of which was attached to Mr Koch’s first warning letter, 3 together with oral communications between Mr Finn and Telstra managers. Mr Finn gave evidence, which I accept, that ACD is a Silver Business and Enterprise Partner with Telstra and ACD’s relationship with Telstra is critical to the success of ACD’s business. Mr Koch described himself as the “Telstra face” of ACD’s business. Absent its relationship with Telstra, ACD could only provide clients with a limited range of services and could not sell many of the product and services it now provides to clients. ACD’s three year contract with Telstra expired in December 2015. It was not renewed at the time of its expiry, but continued on until it was formally renewed in June 2016 for a period of 12 months. ACD is one of a limited number of Telstra dealers in the Newcastle region. If ACD has a good relationship with Telstra, it will receive leads and other opportunities for business. If it does not, its business will suffer in a significant way. For those reasons and regardless of whether Mr Koch’s Telstra dealer number (“D number”) was in fact permanently suspended by Telstra, the further complaint from Telstra about Mr Koch caused serious and imminent risk to the reputation, viability and profitability of the employer’s organisation (reg 1.07(2)(b)(ii)). It is important to note that it is the risk to reputation, viability or profitability which must be considered, not whether the reputation, viability or profitability of the employer’s business was in fact damaged;

(b) Mr Koch’s conduct in attending work on Saturday, 28 May 2016 after he had been instructed not to do so constitutes wilful and deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment (reg 1.07(2)(a)). In particular, such conduct is inconsistent with the employee’s implied duty to follow lawful and reasonable instructions. The instruction not to attend work on the Saturday was lawful and reasonable having regard to the history of complaints from Telstra about Mr Koch, the likely impact excessive hours of work were having on Mr Koch’s conduct and behaviour at work, his poor manner of communication in the workplace, and the warnings Mr Koch received from his employer. Such conduct also satisfies reg 1.07(3)(c), in that it constitutes a refusal to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment and, in the circumstances, the conduct made employment in a period of notice unreasonable (reg 1.07(4). Mr Koch’s conduct in deliberately refusing to follow this direction demonstrates that he was not willing to comply with a direction from his employer unless he agreed with it; and

(c) Mr Koch’s conduct in supplying product (principally mobile telephones) to clients without issuing invoices to them for some period of time caused a serious and imminent risk to the reputation, viability and profitability of ACD’s business (reg 1.07(2)(b)(ii)). In particular, Mr Finn gave evidence, which I accept, that the failure of Mr Koch to send out invoices for about $35,000 caused ACD, a small business, cash flow problems. It also damaged ACD’s reputation because Mr Finn received complaints from clients who were upset at being invoiced for product supplied to them, in some cases, many months before as a replacement mobile telephone.

Was Mr Koch dismissed without notice?

[32] The parties agree that Mr Koch was notified of his dismissal on 31 May 2016 and his dismissal took effect on that day.

[33] Therefore I am satisfied that, on 31 May 2016, ACD dismissed Mr Koch without notice – that is, with immediate effect – on the grounds that Mr Koch had committed serious misconduct.

Did ACD believe that Mr Koch had engaged in conduct sufficiently serious to justify immediate dismissal?

[34] Whether the employer genuinely held the belief that the employee’s conduct justified the immediate dismissal is a question of fact. 4

[35] Mr Finn and Mr Reimer each gave evidence, which I accept, that they were the decision makers in relation to Mr Koch’s dismissal. Mr Finn signed the letter of termination. It is clear that each of Mr Finn and Mr Reimer, in their capacity as directors and senior managers of ACD, had actual or apparent authority to make a decision to dismiss Mr Koch. By reason of section 793(2) of the Act, it follows that the state of mind of Mr Finn and Mr Reimer in deciding to dismiss Mr Koch can be attributed to ACD. 5

[36] Mr Koch contends that he was dismissed because he had raised issues concerning alleged unpaid commissions and superannuation owing to him. Mr Finn and Mr Reimer deny those allegations. I accept their denials for three reasons.

[37] First, Mr Koch had been having disputes with ACD about alleged unpaid commissions and superannuation since his first year of employment with ACD. Indeed, about 12 months into the employment relationship Mr Koch threatened to take the directors of ACD “down the back and sort the dispute out like men”. Mr Koch contends that he said words to that effect jokingly, but I do not accept his evidence in that regard, having regard to his angry, red face at the time and his frustration at not being paid what he believed he was entitled to. These disputes about unpaid commissions and superannuation were not, at any time during Mr Koch’s employment with ACD, resolved, and they remained unresolved at the time of the hearing. There is nothing in the evidence to suggest that the disputes about unpaid commissions and superannuation changed at about the time of termination, or otherwise triggered the dismissal.

[38] Secondly, the reasons which Mr Finn and Mr Reimer gave for deciding to dismiss Mr Koch, as set out in paragraph [29] above, related to events which took place in close proximity to the timing of their decision to dismiss Mr Koch. This temporal connection supports a conclusion that Mr Koch was dismissed for the reasons advanced by Mr Finn and Mr Reimer.

[39] Thirdly, Mr Finn and Mr Reimer were, in my assessment, credible witnesses. They gave direct and responsive answers to the questions put to them and showed restraint and patience in the way they dealt with Mr Koch in relation to his numerous disputes with Telstra and ACD management throughout his almost four years of employment with ACD.

[40] Mr Finn and Mr Reimer each gave evidence, which I accept, that Mr Koch engaged in conduct sufficiently serious to justify immediate dismissal. The letter of termination is consistent with that evidence.

[41] For the reasons set out above, I am satisfied that ACD genuinely believed that Mr Koch’s conduct was sufficiently serious to justify his immediate dismissal.

Was ACD’s belief based on reasonable grounds?

[42] A relevant consideration to the question of whether the employer’s belief was based on reasonable grounds is whether the employer carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. 6

[43] When considering whether a reasonable investigation has been carried out, it is also relevant to consider the experience and resources of the small business employer. 7 ACD had 11 employees at the time it dismissed Mr Koch. It was, and remains, a small start-up business without any human resources managers or expertise.

[44] ACD’s investigation into the reasons it relied on to dismiss Mr Koch involved the following steps:

(a) Mr Finn had a discussion with a Telstra manager on about 23 May 2016 in relation to the further complaint about Mr Koch. In that discussion, Mr Finn was told of the nature of the complaint, namely that Mr Koch had engaged in another inappropriate outburst towards an employee in Telstra Dealer Care. Mr Finn had a further conversation with the Telstra manager on about 27 May 2016 in relation to the complaint against Mr Koch;

(b) In the week ending Friday, 27 May 2016, Mr Finn and Mr Reimer discussed with Mr Koch their concern about the products he had supplied to various clients over a period spanning about nine months for which Mr Koch had not issued invoices to those clients. Mr Finn denied Mr Koch’s request to work on Saturday, 28 May 2016 in order to undertake the outstanding paperwork. Mr Finn became aware that Mr Koch had worked on Saturday, 28 May 2016 by reason of the CCTV footage in ACD’s offices;

(c) On Monday, 30 May 2016, Mr Finn received an email from the Telstra manager, the content of which is set out in paragraph [26] above. It was clear to Mr Finn from that email that the matter was serious;

(d) On Monday, 30 May 2016, Mr Finn told Mr Koch that they had received another complaint from Telstra about him, he had worked on Saturday contrary to their instructions, and they wanted the office keys back from Mr Koch; and

(e) On Tuesday, 31 May 2016, Mr Finn and Mr Reimer had a meeting with Mr Koch to discuss the further Telstra complaint and their other concerns. In particular, Mr Finn told Mr Koch that they had received a further complaint from Telstra about his communication with a Telstra Dealer Care employee and Telstra was threatening to withdraw his Telstra “D” number. Mr Finn also told Mr Koch that he had worked on Saturday when they had told him not to do so. Mr Koch responded to those matters. He asked whether Mr Finn had listened to the recording of the communication which was the subject of the Telstra complaint, noting that both ACD and Telstra recorded such communications. Mr Finn told Mr Koch that he did not need to listen to the recording because he sat in close proximity to him in the ACD office and heard the way he communicated with Telstra call centre employees. As to working the Saturday, Mr Koch made the point that he worked on Saturday on an unpaid basis in order to catch up on the paperwork they had spoken to him about the previous week. The discussion between Mr Finn, Mr Reimer and Mr Koch on 31 May 2016 lasted for an hour before Mr Finn informed Mr Koch that his employment would be terminated immediately. It is clear from this one hour meeting that Mr Finn and Mr Reimer had a discussion with Mr Koch about his conduct and paid regard to the explanations he gave in response to the matters discussed with him. That discussion and consideration took place before Mr Koch’s employment was terminated.

[45] In light of the steps set out in the previous paragraph, I am satisfied that ACD carried out a reasonable investigation and reached a reasonable conclusion in all the circumstances. Mr Koch contends that ACD should have found out from Telstra more information about the complaint, including precisely when the conduct allegedly occurred, what precisely was the subject of the complaint and then ACD should have, so it is contended by Mr Koch, searched for, and listened to, the recording of the communication the subject of the complaint before making any decision about the termination of his employment. I disagree. I accept Mr Finn’s explanation that he did not need to find out more information about the complaint or listen to a recording of the relevant communication because he sat about four metres away from Mr Koch in the ACD office and listened to Mr Koch’s communications with Telstra employees on a daily basis. Mr Finn gave evidence, which I accept, that although Mr Koch’s behaviour had improved a lot after his suspension by Telstra in 2015, Mr Koch continued to have outbursts from time to time where he would “scream” at a Telstra employee in a call centre and ask to speak to their supervisor. In those circumstances and in light of the history of inappropriate communications between Mr Koch and Telstra employees, together with the history of inappropriate communications between Mr Koch and ACD management, a reasonable investigation did not, in my view, require ACD to take the additional steps contended for by Mr Koch.

[46] It was reasonable for Mr Finn and Mr Reimer to form the view in all the circumstances that Mr Koch had engaged in the conduct the subject of the complaint, Mr Koch had not complied with their directions, and Mr Koch had failed to issue invoices to customers in a timely manner for product supplied to them. Mr Finn and Mr Reimer also formed the view, reasonably in my opinion, that Mr Koch was in fact causing serious damage to ACD’s brand and reputation within Telstra by reason of the manner in which he was communicating with Telstra’s employees. In view of the importance of the relationship with Telstra to ACD’s overall business, the history of Mr Koch’s poor communications with, and complaints from, Telstra, and the prior warnings Mr Koch had received about his communications and conduct, it is not surprising that Mr Finn and Mr Reimer formed the view that Mr Koch’s employment had to be terminated immediately. There were reasonable grounds for ACD’s belief in that regard, notwithstanding Mr Koch’s belief that he was acting in the best interests of ACD’s clients, and therefore in ACD’s best interests, when he engaged in what he described as “firm” discussions with Telstra employees.

Conclusion

[47] For the reasons set out above, I am satisfied that:

(a) immediately before the time of Mr Koch’s dismissal, ACD was a small business employer within the meaning of the Act;

(b) on 31 May 2016, ACD dismissed Mr Koch without notice – that is, with immediate effect – on the ground that Mr Koch had committed serious misconduct;

(c) ACD dismissed Mr Koch on the basis of conduct which meets the definition of “serious misconduct” within the meaning of reg 1.07;

(d) ACD genuinely believed that Mr Koch had engaged in conduct sufficiently serious to justify immediate dismissal;

(e) ACD undertook a reasonable investigation and reached a reasonable conclusion in all the circumstances; and

(f) ACD’s belief that Mr Koch had engaged in conduct sufficiently serious to justify immediate dismissal was based on reasonable grounds.

[48] It follows that Mr Koch’s dismissal was consistent with the Code. Accordingly, Mr Koch was not unfairly dismissed within the meaning of section 385 of the Act and his application is dismissed.

[49] In view of my conclusion that Mr Koch’s dismissal was consistent with the Code, I have not addressed Mr Koch’s submissions that there was no valid reason for his dismissal and his dismissal was disproportionate to the gravity of his conduct. Those matters are not relevant to an assessment of whether there has been compliance with the summary dismissal part of the Code.

COMMISSIONER

Appearances:

Mr W Koch on his own behalf;

Mr C Finn, Managing Director, and Mr P Reimer, Director/Senior Business Partner, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

September, 28.

 1   [2012] FWAFB 1359

 2   [2015] FWCFB 5264

 3   Exhibit R3

 4   Ryman v Thrash at [43]

 5   Ryman v Thrash at [43]

 6   Ryman v Thrash at [41]; Pinawin v Domingo at [30]

 7   Pinawin v Domingo[2012] FWAFB 1359 at [30]

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