Neha Sharma v Teleperformance Australia T/A Teleperformance Australia

[2018] FWC 4402

[2018] FWC 4402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neha Sharma
v
Teleperformance Australia T/A Teleperformance Australia
(U2018/2689)

COMMISSIONER GREGORY MELBOURNE, 26 JULY 2018

Application for relief from unfair dismissal – valid reason – misconduct – dismissal ‘harsh’ and ‘unreasonable’ – remedy – compensation.

Introduction

[1] Ms Neha Sharma was first employed with Teleperformance Australia T/A Teleperformance Australia (“Teleperformance”) as a Technical Support Advisor in November 2016, although she had previously been placed in the business while working for a labour hire company. However, she was dismissed from her employment on 28 February this year on grounds of serious misconduct. She subsequently lodged an unfair dismissal application. This decision deals with that application.

[2] Mr Vishal Sharma appeared on behalf of Ms Sharma. Mr Mark Redman, Human Resources Manager, appeared on behalf of Teleperformance.

The Issue to be Determined

[3] Ms Sharma claims she has been unfairly dismissed under s.385 of the Fair Work Act 2009 (Cth) (“the Act”) because her dismissal was “harsh, unjust or unreasonable.” In determining whether a dismissal was “harsh, unjust or unreasonable” s.387 of the Act sets out various considerations that the Commission must take into account. It states:

“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.” 1

[4] The Commission is accordingly required to determine whether Ms Sharma’s dismissal was “harsh, unjust or unreasonable” taking into account the matters in s.387.

The Applicant’s Submissions and Evidence

Ms Neha Sharma

[5] Ms Sharma was first employed by Teleperformance on 14 November 2016 and worked as a Technical Support Advisor. Her base rate of pay was $20.61 per hour, however, this had increased to $21.29 per hour at the time of her dismissal. She generally worked for around 38 hours each week, and was normally rostered on a shift commencing at 12.30 p.m. and concluding at 8.30 p.m. Her roster also included regular work on Saturday and Sunday. She had worked with the business prior to being directly employed when she worked for a labour hire company that provided services to Teleperformance. Her placement in this capacity commenced in March 2016.

[6] She considered herself to be a competent professional in terms of carrying out her duties and responsibilities and had not previously been the subject of any disciplinary action during the time she was employed. However, Ms Sharma began to have concerns about whether she was spending enough time with her children and looked to reduce her hours and move to work on a part-time basis. She raised this issue with her Team Leader, “Daniel,” but was told she would require a letter from her children’s school confirming her children would benefit by spending more time with her, before this request could be given any further consideration. However, she also acknowledged in cross-examination that she had not made a formal request to HR to move to a part-time position. 2

[7] On 27 February 2018 she sent an email to Ms Bridget Matheson at Teleperformance advising that she had decided to resign from her employment “and perhaps seek for a part-time job somewhere else.” 3 She also indicated that she would serve out her notice period of one month, as required by her appointment letter, and concluded by stating:

“After working for almost two years, I take with me all the pleasant memories. I would be extremely pleased to support anywhere to make this a smooth transition.” 4

[8] However, Ms Sharma received an email later that day from the Human Resources Manager, Mr Mark Redman, indicating he was not aware of any request to change her working hours, but he would welcome the opportunity to discuss this situation with her “tomorrow when you return to work.” 5 However, his email continued to state:

“On a totally separate matter, Teleperformance has become aware of some other issues that Harleen and I wish to also discuss with you. Please feel free to arrange a support person with you for our meeting tomorrow.” 6

[9] Ms Sharma replied by sending a further email that evening, which concluded by stating:

“Another thing that I would want to add on here is that in a core technical support role, that I have played for almost 2 years successfully under so much stress of ever changing environment, long telephonic calls with a wait time of only a few seconds, troubled Apple customers and nil recreation facilities at the office premises, I still managed to remain one of the best performers. My Customer-Satisfaction survey reports are a testimony to that.

I am on my way to the office tomorrow anyhow, hope it all settles amicably.” 7

[10] On the following day Ms Sharma was then asked by the Floor Manager, “Matthew”, to attend a meeting in the HR room. She was again asked whether she wanted a support person to attend with her, but said she did not.

[11] When she arrived at the meeting with Mr Redman, Mr Peter Money, and her immediate Manager, who she knew only as “Harleen”, were also present. Ms Sharma said Harleen then asked how the customer surveys arrive and where do the customers’ email addresses come from. Ms Sharma indicated in response that some addresses are already in the system, and they are also obtained during the calls made with customers. However, she was not entirely sure, and understood the email addresses are obtained from various sources, and customer satisfaction surveys are then sent out automatically in response.

[12] Harleen then told her that the addresses are only obtained through the manual entry of the email addresses by the Technical Support Advisor after they are obtained during the course of the phone call with the customer. Ms Sharma indicated in response that she was surprised that this was the case. She was then asked if she had deliberately altered any of the email addresses.

[13] Ms Sharma indicated in response that she had always been a good performer and denied deliberately altering the addresses. She also said there was a possibility of human error when the addresses were obtained, particularly in the case of someone like her from a non-English speaking background. The Technical Support Advisors were also working in a high-pressure, time constrained environment, however, she had no knowledge of having misspelled any email addresses. Ms Sharma said Harleen did not accept this argument and said the client had found she had changed the email addresses deliberately. Ms Sharma continued to deny these allegations.

[14] There was then a break in the meeting and when it resumed Mr Redman and Mr Money gave her a letter indicating her employment had been terminated. Mr Redman also told her the business could perhaps have been more considerate toward her, but this had all been initiated by its client, and the business had no choice but to dismiss her. Ms Sharma said she was “shell- shocked” 8 and asked how this could happen without being given any warning. She continued to deny she had deliberately and repeatedly altered customer email addresses to prevent customer emails from being sent. She also asked for more details about the accusations but nothing further was provided. The meeting then concluded.

[15] Ms Sharma also attached a copy of the termination letter dated 28 February 2018, which was signed by Ms Hannah Do, Executive Vice President, Teleperformance Australia Pty Ltd. It states in part:

“I refer to your meeting with Harleen Kohli and Peter Money today.

In the aforementioned meeting you are advised about our serious concerns in relation to your inappropriate conduct. You were afforded an opportunity to respond to our concerns and you confirmed to us that you had repeatedly manipulated the company’s CSAT process.

After carefully considering the matters raised by you, Teleperformance believes that you have breached company policy by deliberately and repeatedly altering customer email addresses to prevent customer satisfaction surveys being sent, which constitute serious and wilful misconduct.

As a result of our determination, Teleperformance have elected to terminate your employment, effective immediately.” 9

[16] She was later provided with an Employment Separation Certificate which confirmed she had been terminated on grounds of misconduct.

[17] Ms Sharma also indicated in response to a question from the Commission that during the course of the meeting she requested, but was not given the opportunity to listen to those calls where she was alleged to have entered an incorrect email address. 10 She indicated, in response, words to the effect of “[n]o, but without listening or without seeing that, I can’t like admit on that that I did something wrong like that.”11

[18] She continued to state:

“It may be a human error, maybe because of like I’m hearing like whether the customer is saying A and due to my non English background, so maybe I heard AE or something like that so - but then she asked me and I simply deny it because I was not doing that like deliberately. So then suddenly Mark, Harleen and Peter, they went out, they said “We want to discuss” and after two-three minutes they come back with the termination letter and they hand over the termination letter to me. There was no warning, nothing was there. Not even a single chance or no training regarding on this or they didn’t discuss on anything on that.” 12

[19] She also denied she had deliberately and repeatedly altered customer email addresses to prevent customer surveys being sent. She was also referred in cross-examination to the five examples provided by Teleperformance in its written materials of the cases in which the email address was spelt incorrectly. These examples had not been raised or shown to her in the discussions in the meeting on 28 February, and she had only seen them for the first time when they were included with the materials provided by Teleperformance in these proceedings. 13 She also could not recall those instances, although this was not surprising, given the number of calls taken by the Advisers, and the pressure they worked under.

[20] She also said “Harleen, Peter, Mark” indicated that the decision was unfortunate, but the client wanted some action taken in response to its concerns. She also said that when she sent the email on 27 February, indicating she intended to resign from her employment, she had no knowledge of what the business wanted to discuss with her on the following day. She also indicated in cross- examination that at the time of the meeting on 28 February she was not aware that three of the Technical Support Advisers had been terminated on the previous day. 14 She also indicated in response to a question from the Commission that she was not at work on 27 February, but was on sick leave, and had provided a medical certificate to support her absence.15 The email she sent on that day had accordingly been sent from her home.

[21] However, Ms Sharma did acknowledge in cross-examination that she was placed on a performance improvement plan in August last year, which concerned the customer satisfaction surveys. 16 However, she was then provided with further assistance and training, and within two weeks was “on good numbers.”17 She continued to indicate that the customers were often unhappy, not because of their dealings with the Technical Support Advisers, but because of the service being provided by the client.

The Applicant’s Submissions

[22] Ms Sharma submits that she was one of the best performing employees at Teleperformance, and had consistently received good customer surveys. She had also been working in a difficult environment, and in the 22 months in which she had been employed there had been six Team Leaders in that time. In addition, there had not previously been any disciplinary issues raised with her, and she was not given any warning or detailed explanation about the behaviour that led to her dismissal. She also submits that her employment was terminated in order to save face with Teleperformance’s major client, and she had effectively been made a scapegoat in those circumstances. The client had apparently identified some quality assurance gaps, and once this was made known to Teleperformance it attempted to save face by terminating several Technical Support Advisers, including Ms Sharma.

[23] Ms Sharma continues to submit that while there may have been some performance issues with some Advisers she was simply terminated on the basis of what was described as “whimsical suspicion.” 18 There was also no opportunity given to her to be able to understand the actual nature of the allegations made about her, or to be able to provide any clarification of her position in response. In addition, she was not made aware of the specific examples relied on by the business as the reason for her termination.

She also submits in the alternative that the behaviour should not have been considered to be serious misconduct and the misspelling of an email address, if it occurred, warranted a warning at most. Ms Sharma also submits that she was never provided with any real opportunity to have the allegations clarified in the discussions that took place so as to enable her to provide an appropriate response. She was simply told in the meeting about the accusations, and that her employment was to be terminated as a consequence.

[24] She also indicated in her submissions that she had applied for various part-time jobs since being dismissed and had attended some interviews. However, she had been unable to get past the final stage of those processes when reference checks were made, and because the Employment Separation Certificate provided to her indicated she had been terminated as a result of misconduct. 19

The Respondent’s Submissions and Evidence

Mr Mark Redman

[25] Mr Redman said that on 21 February this year a number of irregularities were discovered in regard to the recording of customer email addresses. They were discovered during an audit of those addresses, and it appeared six Technical Support Advisors were involved. An investigation was immediately commenced by three Assistant Centre Managers, which was headed up by the Vice President, Operations. Computer records and audio recordings were reviewed as part of this process.

[26] Three Advisers were then interviewed on 27 February and given the opportunity to provide a response to the concerns identified. Two of the Advisors made admissions about their misconduct, with another indicating they may have incorrectly recorded customer’s email addresses. The three Advisors were then terminated for serious misconduct based on the evidence obtained during the investigation, and their responses.

[27] On 27 February Ms Sharma sent an email to HR indicating she intended to resign, citing work/life balance reasons and providing four weeks’ notice of her decision. Mr Redman sent an email in response informing her that he wished to speak with her tomorrow about some separate concerns. She was also informed she could have a support person present in the discussions.

[28] The meeting took place on the following day with Harleen Kohli and Peter Money also in attendance. Ms Sharma was asked about her knowledge of customer email addresses, and why it had been discovered that standard processes were not being followed in her calls. She denied any knowledge of the importance of the customer satisfaction surveys or how they are collected. She also denied having deliberately and repeatedly manipulated customer email addresses. There was then a break in the meeting and after due consideration of the evidence a decision was made to terminate Ms Sharma’s employment on grounds of serious misconduct. The meeting then reconvened and Ms Sharma was given a letter confirming her employment had been terminated.

[29] Mr Redman also indicated in cross-examination that there were different processes in place whereby Teleperformance monitored and maintained the quality of calls being received by its Advisers, and the data that was collected indicated the email addresses collected by several Advisers were different to the email addresses on file for that particular customer “so it hence came up as a red flag.” 20

[30] He also indicated that the client had identified some “anomalies, irregularities, between what was recorded in the call recording and the client information.” 21 Teleperformance then investigated the matters further. He also indicated in response to a question from the Commission that the examples referred to in regard to the spelling of “Paulette, Jonathan, Madam and Hodgkinson”22 were the examples relied upon as the basis of Ms Sharma’s termination. However, these examples were not specifically put to her in the meeting on 28 February. Ms Sharma simply denied any knowledge or understanding of incorrectly recording customer emails, and said the errors could have occurred as a result of human error. However, the email addresses were already on the system in many instances, and it was difficult to believe in those circumstances that the incorrect recording of the email details was not a deliberate act.23

[31] He also indicated in response to a question from the Commission:

“Sure, look it’s such a rare occurrence of email addresses not to match hence why there was a very immediate investigation to it. It goes to the very core of the level of trust and integrity our client has with our organisation and such is the high standards that we have for ourselves and our contractual obligations to our client, necessitated the immediate - once it became identified to us, to make the immediate investigation to it and immediate action in terms of, yes, what had occurred and to make corrective action.” 24

The Respondent’s Submissions

[32] Teleperformance indicated in its submissions that the misconduct of six employees was discovered on 21 February 2018 as a result of the regular audits carried out. These concerned the irregularities involving customer email addresses. An investigation team was immediately established consisting of three Assistant Centre Managers and headed up by the Executive Vice President, Operations. Data and voice recordings were examined by the quality assurance team and members of the investigation team, and interviews with each of the Advisers were then arranged in order to provide an opportunity to respond to what had been discovered.

[33] Teleperformance also provided a document setting out some details about the training the Advisers are exposed to, although it was not made clear whether and when this document had been given to the Advisers. It stated in part:

“Logging the correct email address is vital and is equated to customer satisfaction. Deliberate altering of an email address is deemed to be a compliance issue, pertaining to customer privacy and therefore is extremely serious if conduct pertaining to email manipulation, with the intent of altering the customer satisfaction system from achieving its desired outcome. It is classed as “Customer-Fatal” in the Phone Quality rubric utilised by the client.” 25

[34] Teleperformance also provided details in its materials of the errors alleged to have been made by Ms Sharma. They each occurred in the period between 31 December 2017 and 6 January this year. The first example involved the letter “t” being left out of the spelling of the name Paulette, with the correct name entered in the name and surname field and then misspelt in the email address. 26 The second example involved the letter “o” being left out of the spelling of the name Jonathan. In this case the Adviser is alleged not to have heard the customer’s email address but the email contact field is filled in.27 In the next case the letter “m” is left out of the word Madam, despite the customer clearly pronouncing the name during the call.28 The next incident involved the letter “g” being left out of the name Hodgkinson.29 The Adviser logged the customer’s surname correctly, but it was not checked in the case of the email address. The final example involved the letter “a” being left out of an email address after the customer verbally stated the email address correctly.30

[35] Teleperformance also indicated in its closing submissions that its quality assurance process was part of a global approach that involves a regular monthly audit being carried out to identify fraudulent behaviour whereby data is incorrectly entered and does not match data already on its system. 31 It also indicated in response to a question from the Commission that its internal policies equated incorrect entries to fraudulent behaviour.32

[36] It also confirmed that Ms Sharma was not taken to the specific examples in the meeting on 28 February because the document had not been typed up at that time. It also acknowledge that Ms Sharma denied deliberately and repeatedly manipulating customer email addresses, however, it believed that this had occurred, and relied on the multiple examples in support of this conclusion. It was also considered to be a fraudulent act and therefore a warning was not an appropriate response.

[37] It continued to submit:

“If our client starts to doubt our integrity of the adherence to such an important process, that that breach of confidence in how their policies are - sorry, their procedures are followed may put the entire business in jeopardy and, quite frankly, other providers have lost this client’s account if that integrity of their processes isn’t maintained.” 33

[38] It also indicated that there had been admissions from other people working in close proximity to Ms Sharma about altering email addresses, and this was done as a way of getting around the process whereby customer surveys were sent out. If the incorrect email address was entered in the system the survey would not be received by the customer and the Adviser could then avoid the possibility of a dissatisfaction survey (DSAT) being returned.

Consideration

[39] As indicated at the outset the Commission is required to determine whether Ms Sharma’s dismissal was “harsh, unjust or unreasonable” having particular regard to the various matters set out in s.387. The circumstances in which an employee’s termination of employment might be considered to be “harsh, unjust or unreasonable” have also been considered in a number of previous decisions.

[40] The decision in Byrne v Australian Airlines Ltd 34 is often cited in this context. The joint judgement of McHugh and Gummow JJ concluded that

“...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 35

[41] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 36 also provides guidance about the Commission’s role in regard to each of the considerations in s.387 that must be taken into account in determining whether an employee’s dismissal was “harsh unjust or unreasonable.” The Full Bench concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 37

[42] I now turn to deal with each of the considerations in s.387, and those authorities that are relevant to the determination of this matter.

(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)

[43] Before coming to the particular circumstances involved in this matter it is noted that various authorities have also had regard to what is required in order to conclude that there was “a valid reason for the dismissal related to the person’s capacity or conduct.” The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 38 is again often referred to in this context. His Honour came to the following conclusions:

“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.

Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 39

[44] In Parmalat Food Products Pty Ltd v Wililo 40 the Full Bench also concluded that:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 41

[45] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 42 (“Australian Postal Corporation”) also provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered:

“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 43

[46] It is also clear that the reason must be valid when viewed objectively. It is not sufficient that the Employer believed it had a valid reason for termination. This was made clear in the Full Bench decision in Rode v Burwood Mitsubishi 44 at paragraph 19 when the Full Bench stated:

“…the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 45

[47] As indicated by these authorities the existence of a valid reason is often the most important consideration among the matters the Commission must have regard to in s.387. It is also clear from these authorities that a “valid reason” is one that is “sound defensible and well founded,” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct, and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well. I have sought to adopt the approach of these authorities in coming to a decision in this matter.

[48] I am satisfied that the following circumstances are relevant in terms of whether Teleperformance had a “valid reason” to terminate Ms Sharma’s employment:

•  Ms Sharma was an employee of a reasonably long standing, given the nature of the industry she worked in.

•  She appears to have been, for most of the time she was employed, a competent employee and only appears to have been subject to a performance review on one occasion.

•  Ms Sharma was given no prior notice of what the meeting on 28 February was to be about. She had also tendered her resignation on the previous day for reasons associated with her family responsibilities after earlier attempting to move to a part-time role.

•  She denied in the meeting on 28 February that she had ever deliberately and repeatedly falsified or altered a customer’s email address. She also provided various explanations about how errors in entering data could occur. For example, she acknowledged that mistakes can happen due to listening or spelling errors. However, without having access to audio records, or other specific information about each instance where mistakes were alleged to have occurred, she was not in a position to provide any further explanation about might have occurred. She also submits that it was intimated to her at the time that the decision to dismiss her was made to appease the client, and she was effectively being made a scapegoat.

•  Mr Redman’s witness evidence confirms Ms Sharma denied in the meeting that she had deliberately and repeatedly manipulated customer addresses. He also indicated that Ms Sharma denied any knowledge of the importance of customer satisfaction surveys, or how they are collected.

•  However, Ms Sharma’s denials do not appear to have prevented the Executive Vice President, Ms Hannah Do, from indicating in the termination letter given to Ms Sharma that “you confirmed to us that you had repeatedly manipulated the Company’s CSAT process.” 46

•  Teleperformance relies on the five examples referred to in its materials in support of its conclusion that Ms Sharma had “breached company policy by deliberately and repeatedly altering customer email addresses to prevent customer satisfaction surveys being sent.” 47 However, she was not provided with any detail in the meeting on 28 February about these matters, and the first time she was made aware of them was when this material was included in the submissions and evidence provided in these proceedings by Teleperformance. This obviously made it very difficult for Ms Sharma to provide a considered response to the allegations, and meant that Teleperformance was not informed by this response when it made its decision to terminate her employment.

•  It appears that it had not been made clear to employees that mistakes in entering email addresses in the system was considered by Teleperformance to be conduct that involved serious misconduct and would result in summary dismissal.

[49] I am satisfied that these circumstances clearly call into question whether Teleperformance had a “valid reason” to dismiss Ms Sharma. As the decision in Rode v Burwood Mitsubishi makes clear it is not sufficient for an employer to simply maintain or act in the belief that the termination was for a valid reason. In must instead have a valid reason that is well founded and defensible, and can be justified and on an objective analysis of the relevant facts.

[50] The evidence of Ms Sharma about her denial of the allegations made about her, which was corroborated by the evidence provided by Mr Redman, makes it difficult to conceive how Ms Hannah Do came to the conclusion in the termination letter given to Ms Sharma that she had “… confirmed to us that you had repeatedly manipulated the Company’s CSAT process.” 48

[51] Teleperformance may have had reason to dismiss Ms Sharma. However, based on the submissions and evidence now before the Commission I am not satisfied, in conclusion, that it can be said to have had a “valid reason” to terminate Ms Sharma’s employment in the sense that the reason relied on can be said to be sound, defensible and well founded based on an objective analysis of the relevant facts.

(b) whether the person was notified of that reason

[52] Ms Sharma was told about the reason for her dismissal in the meeting on 28 February. It was also set out in the termination letter given to her at the conclusion of the meeting.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[53] This issue has been touched on already in dealing with the issue of “valid reason.” Ms Sharma was not given any advance notice of what the meeting on 28 February was to be about, other than being told “on a totally separate matter, Teleperformance has become aware of some other issues that Harleen and I wish to also discuss with you. Please feel free to arrange a support person with you for our meeting tomorrow.” 49

[54] Ms Sharma was then asked in the meeting if she had deliberately altered any email addresses entered into the system. She denied having done so. She also asked for more details about the allegations, but nothing further was provided to her. In the materials provided in conjunction with its submissions Teleperformance detailed the five examples that were relied on in support of the decision to terminate her employment. However, these details were not given to her in the meeting on 28 February, apparently because they had not been typed up at that time. The first time Ms Sharma became aware of them was when they were filed in the materials provided to the Commission by Teleperformance in response to her application.

[55] It again seems most unusual that Ms Sharma was not taken to the particular examples in the meeting on 28 February as part of the process of giving her an opportunity to respond to the reasons related to her dismissal, particularly given the significance that Teleperformance attached to what was alleged to have occurred.

(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

[56] Ms Sharma was provided on two separate occasions with the opportunity of having a support person present in the meeting on 28 February, but declined to take up this opportunity apparently because she was not aware of the significance of what was to be discussed in the meeting.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[57] Ms Sharma was not provided with a warning but was summarily dismissed on grounds of serious misconduct.

(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.

(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

[58] It is appropriate to deal with these two considerations together. Teleperformance employs a significant number of people in Australia. It is also part of a larger multinational business that has operations in several countries. It also has a dedicated HR Manager employed in the Australian business. It can be expected as a consequence that it would be aware of the procedures to be followed in dismissing an employee.

(h) any other matters that the FWC considers relevant

[59] Ms Sharma has obviously suffered financially as a consequence of her termination. She is also upset about what has occurred. These are normal and understandable reactions from someone in her position. However, the chances of her finding work elsewhere have also been made more difficult because she was dismissed on grounds of serious misconduct, and this is made clear in the Employment Separation Certificate she was given, and in the responses from the business when reference checks are made.

Conclusion

[60] I have had regard to all of the submissions and evidence provided by the parties in these proceedings. As indicated, I have also had regard to each of the matters in s.387 of the Act that the Commission is required to take into account. I am satisfied in all the circumstances that Ms Sharma’s dismissal was at least “harsh” and “unreasonable.” In coming to this decision I have had particular regard to the conclusions reached in regard to “valid reason,” and to the opportunities provided to Ms Sharma to respond to the allegations made about her conduct. Having come to this conclusion I am now required to consider what is an appropriate remedy in the context of s.392 of the Act, given Ms Sharma does not seek to be reinstated and Teleperformance is opposed to that outcome

Remedy

[61] Section 392 of the Act states:

“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.” 50

[62] I have had regard to each of the considerations in s.392 in coming to a decision about the amount of any compensation that should be awarded to Ms Sharma. I am satisfied, firstly, that the making of an order will have no effect on the viability of Teleperformance. As indicated, its Australian operations are part of a multinational business that operates in a number of different countries.

[63] Ms Sharma was employed by the business from November 2016 until her dismissal on 28 February this year. However, she had previously been placed in the business while working for a labour hire firm from March 2016. Her evidence also suggests there was a significant amount of turnover in the business and it can be concluded that she had a reasonable period of service, given those circumstances.

[64] In terms of the remuneration Ms Sharma would have received, or would have been likely to receive if she had not been dismissed, her evidence indicates she actually tendered her resignation on the day prior to being dismissed. In the email containing her resignation she states she was giving 4 weeks’ notice and intended to work out that time. However, it is also noted that in the email sent to Ms Sharma by Mr Redman on 27 February he appeared to be opening up the possibility of further discussions with her about the option of moving to work on a part-time basis. However, those discussions were not progressed given what transpired on the following day.

[65] I am satisfied that it can accordingly be concluded that if her employment had not been terminated Ms Sharma would have received a further amount equivalent to 4 weeks’ pay. This is based on the fact she tendered her resignation on 27 February with 4 weeks’ notice.

[66] It is understood that Ms Sharma was employed as a Customer Contact Officer 2 under the Contract Call Centres Award 2010 (“the Award”)  51 At the time that she was terminated her base hourly rate was $21.29.

[67] The relevant rates under the existing Award are as follows:

•  Monday to Friday – $21. 29 per hour ($809.10 per week) (between 7 am – 7 pm)

•  Saturday – $26.61 per hour (midnight Friday – midnight Saturday)

•  Sunday – $31.94 per hour (between 7am – 7pm)

•  Sunday – $37.26 per hour (outside 7am – 7pm)

[68] In response to a question from the Commission, Ms Sharma also indicated that she was typically rostered to work from 12.30 pm to 8.30 pm and regularly worked on Saturdays and Sundays. 52 It was also indicated that she typically worked 5 days a week and this included 2 days at the weekend and 3 week days.53

[69] She also indicated that she worked a “seven and a half shift” 54 with a half hour unpaid break. Clause 25.1 in the Award indicates:

“… an employee must not be required to work for more than five hours without a break for a meal which for day workers, afternoon shiftworkers and night shiftworkers will be unpaid and for a period of not less than 30 minutes and not more than 60 minutes.” 55

[70] Based on those submissions, and factoring a 0.5 hour unpaid break, the during the 3 weekdays the Applicant worked the following:

Monday to Friday

•  12.30 pm – 7.00 pm = 21.29 x 6.0 hours = $127.24

•  7.00 pm – 8.30 pm = 26.61 x 1.5 hours = $39.92

Therefore, $127.24 + $39.92 = $167.16 per day

Saturday

•  12.30 pm to 8.30 pm = 26.61 x 7.5 = $199.58 per day

Sunday

•  12.30 pm to 7.00 pm = $31.94 x 6.0 = $191.64

•  7.00 pm to 8.30 pm = $37.26 x 1.5 = $55.89

Therefore, $191.64 + $55.89 = $247.53 per day

Total weekly rate:

•  ($167.16 x 3 = $501.48) + $199.58 + $257.53) = $958.59 per week

Per 4 weeks:

•  $958.59 x 4 = $3,834.36 per 4 weeks

[71] Ms Sharma indicated that she had been endeavouring to mitigate her loss by obtaining employment elsewhere, but this had been made more difficult by the fact Teleperformance had summarily dismissed her on grounds of serious misconduct. This was referred to in the Employment Separation Certificate given to her, and in reference checks, and meant she was finding it difficult to obtain other work. However, she had been able to obtain a limited amount of work as a cleaner. Similar considerations would appear to apply in regard to the amount of any income reasonably likely to be earned by Ms Sharma between the making of the Order for compensation and the actual compensation.

[72] I am satisfied, in conclusion, that it is appropriate to make an Order for payment of an amount equivalent to 4 weeks’ pay to be paid to Ms Sharma, which the Commission estimates to be an amount of $3,834.36, being the amount she would have earned up to the date of her intended resignation. That amount should be paid to Ms Sharma within 14 days of the date of the Order. An Order to this effect will be issued in conjunction with this decision. The Commission is also prepared to assist the parties if any further issues arise in terms of compliance with the Order.

COMMISSIONER

Appearances:

V Sharma for the Applicant.

M Redman for the Respondent.

Hearing details:

2018.

Melbourne:

July 3.

Printed by authority of the Commonwealth Government Printer

<PR609396>

 1   Fair Work Act 2009 (Cth) s 387.

 2   Transcript, 3 July 2018, PN 119 – PN 121.

 3   Attachment to Respondent’s Submissions, filed 12 June 2018, “Email correspondence from Neha Sharma to Bridget Matheson”, dated 27 February 2018.

 4   Ibid.

 5   Attachment to Respondent’s Submissions, filed 12 June 2018, “Email correspondence from Mark Redman to Neha Sharma, dated 27 February 2018”.

 6   Ibid.

 7   Attachment to Respondent’s Submissions, filed 12 June 2018, “Email correspondence from Neha Sharma, to Mark Redman, dated 27 February 2018”.

 8   Witness statement of Applicant, filed 19 May 2018, p 2.

 9   Attachment to Applicant’s Submissions, filed 28 May 2018, “Termination of Employment with Teleperformance”, dated 28 February 2018.

 10   Transcript, 3 July 2018, PN 134.

 11   Ibid.

 12   Ibid.

 13   Ibid, PN 139.

 14   Ibid, PN 183.

 15   Ibid, PN 190 – PN 191.

 16   Ibid, PN 68.

 17   Ibid, PN 71.

 18   Ibid, PN 258.

 19   Applicant’s submissions, filed 19 May 2018, q [7d].

 20   Transcript, 3 July 2018, PN 211.

 21   Ibid, PN 216.

 22   Ibid, PN 231.

 23   Ibid, PN 233.

 24   Ibid, PN 237.

 25   Attachment to Respondents Submissions, filed 12 June 2018, ‘Demonstration that Agents are Expected to Log Customer Information Correctly Training”, p 2.

 26   Attachment to Respondent’s Submissions, filed 12 June 2018, “Evidence of Investigation – Neha Sharma”, p 1.

 27   Ibid.

 28   Ibid, p2.

 29   Ibid.

 30   Ibid, p 3.

 31   Transcript, 3 July 2018, PN 269.

 32   Ibid, PN 273.

 33   Ibid, PN 296.

 34 (1995) 185 CLR 410.

 35   Ibid, 465.

 36   [2011] FWAFB 7498.

 37   Ibid, [20].

 38 (1995) 62 IR 371.

 39   Ibid, 373.

 40   [2011] FWAFB 1166.

 41   Ibid, [24].

 42   [2013] FWCFB 6191.

 43   Ibid, [58].

 44   Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).

 45   Ibid, [19].

 46   Attachment to Applicant’s Submissions, filed 28 May 218, “Termination of Employment with Teleperformance”.

 47   Ibid.

 48   Ibid.

 49   Attachment to Respondent’s Submissions, filed 12 June 2018, “Email correspondence from Mark Redman to Neha Sharma”, dated 27 February 2018.

 50   Fair Work Act 2009 (Cth)s 392.

 51   MA000023.

 52   Transcript, 3 July 2018, PN 123 – PN 126.

 53   Ibid, PN 35 – PN 54.

 54   Ibid, PN 124.

 55   Contract Call Centres Award 2010, cl 25.1.