Peter Lacherdis v Mercer
[2022] FWC 2399
•9 SEPTEMBER 2022
| [2022] FWC 2399 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Lacherdis
v
Mercer
(U2022/1728)
| COMMISSIONER CAMBRIDGE | SYDNEY, 9 SEPTEMBER 2022 |
Unfair dismissal - failure to comply with reasonable and lawful directives - factual findings of employer verified - dismissal not harsh, unjust or unreasonable - application dismissed.
This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged on 9 February 2022, and it was made by Peter Stephen Lacherdis (the applicant). The respondent employer is Mercer (Australia) Pty Ltd (the employer or Mercer).
The application indicated that the date that the applicant’s dismissal took effect was 3 February 2022. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 28 July 2022. At the Hearing, the applicant represented himself, and he provided evidence as one of two witnesses who were called to give evidence in support of the unfair dismissal claim. The applicant also called his mother to provide evidence as a witness. The employer was represented by its Senior Manager, Employee Relations, Pacific, Ms L Haywood. Ms Haywood introduced evidence by way of witness statements from two individuals, neither of whom were required by the applicant to attend as witnesses for any cross-examination.
Background
The applicant had worked for the employer for about 2½ years. The applicant was engaged in a position described as a Data Collection – Client Service Officer. The applicant was notionally employed from the employer’s office premises located in Barangaroo Avenue, Sydney. However, the data collection work and associated tasks performed by the applicant were conducted remotely from residential premises where he lived with his mother.
The employer is part of an international asset management and business consulting company which relevantly provides superannuation services as part of its broad range of business consultancy and advice services. The employer and its associated entities have more than 25,000 employees based in 43 countries, and it operates in over 130 countries.
The role of the applicant as a Data Collection – Client Service Officer primarily involved the collection of superannuation asset data and the subsequent uploading of that data to a computer based management tool referred to as Xplan. In order to perform his role the applicant would need to log into Xplan on a daily basis, whereupon he would be provided with the tasks that were allocated for him to complete. The data collection and uploading that was performed by the applicant would then be provided to assist the work of one or more of the employer’s advisory staff.
The applicant performed his work from home, and consequently he had regular email, text, and audio/visual (Zoom) communication with his Manager, Mr Huynh. These communications would involve the applicant reporting to Mr Huynh the names of the clients for which data collection and processing had been performed on Xplan. In November 2021, the applicant returned to work following a period of unpaid leave, and Mr Huynh established an arrangement with the applicant which involved regular reporting updates from the applicant on Monday, Wednesday, and Friday of each week.
On Wednesday, 22 December 2021, the applicant provided an email to Mr Huynh as part of his regular reporting which identified various clients for which he had performed data collection services. Mr Huynh responded to the applicant in an email which thanked him for his report and indicated that the applicant should have a safe and enjoyable Christmas and New Year break. In response to this email, the applicant sent an email which sought to confirm that he would be working from home as per usual over the entire office closure period from 23 December 2021 to 10 January 2022. Mr Huynh then sent an email to the applicant which advised him that he was required to take leave during the period of the Christmas and New Year shutdown that was being observed by the employer, and that if the applicant had no annual leave entitlement to cover the shutdown period, he would have to take leave without pay.
On Thursday, 23 December 2021, the applicant sent a further email to Mr Huynh which stated inter alia, “I won’t be taking any leave during this office closure period and will be working full time from home as per usual.” The employer’s Lead HR Manager, Ms Kaaks, then sent the applicant two emails the first of which relevantly stated, “The business is shutdown. You are unable to work during a shutdown period.” A short time later, Ms Kaaks sent the applicant a further email which relevantly stated, “… you are instructed to take leave as follows over the Mercer shutdown period.”
On Monday, 10 January 2022, the applicant sent an email to Mr Huynh which relevantly stated, “As I have stated to both you and Felicity Kaaks, I have had no break from work and have been working from home full time since the office closure dates of the 23/12/21–09/01/22.”
On Wednesday, 12 January 2022, the applicant was involved in a Zoom meeting with Mr Huynh and Ms Kaaks during which there was discussion about the applicant not taking leave during the Christmas and New Year shutdown period. The matter of the applicant working during the Christmas and New Year shutdown period was not resolved during the Zoom meeting. Later in the morning of 12 January 2022, the applicant sent a text message to Mr Huynh which advised that he was unwell and would not be working for the remainder of the day. Subsequently the applicant claimed personal leave for the period of his absence on 12 January 2022, which was approved by Mr Huynh.
On Thursday, 13 January 2022, the applicant sent an email to Mr Huynh in which he raised vigorous complaint regarding his leave entitlements and the assignment of what he believed to be unnecessary work. There appeared to be no contact made between the applicant and Mr Huynh on Friday, 14 January 2022. On Monday, 17 January 2022, Mr Huynh sent an email to the applicant which included a list of various tasks that had been assigned to him on Xplan. On Friday, 21 January 2022, Mr Huynh sent an email to the applicant which relevantly asked if the applicant was okay as he had not provided any report updates or other communications during the course of that week.
On Monday, 24 January 2022, Mr Huynh sent a text message to the applicant which stated, “Hi Peter, Checking in to see if everything is okay. Can you please let me know you are safe and okay. Thank you Peter. Regards, William” Mr Huynh did not receive any reply from the applicant, and later that day, 24 January, he sent an email to the applicant which relevantly stated, “I have attempted to contact you today by Teams and on your mobile to check in if you are okay however couldn’t reach you. Can you please either respond or call me to let me know everything is okay.” Mr Huynh did not receive any reply from the applicant, and about 58 minutes later he sent a further email to the applicant which relevantly stated, “We are concerned for your welfare as I have left you some message and tried to call you. I called and left a number for your emergency contact today and will take further steps tomorrow if I do not hear back from you or them. I have also sent you a text and message in Teams. Could you please contact me and let me know you are okay.”
On the following morning, Tuesday, 25 January 2022, in the absence of any contact from the applicant, Mr Huynh sent two further emails to the applicant, the second of which advised that if the applicant made no contact with him by 11 am that day he would ask the NSW police to conduct a welfare check. At 11:16 am, in the absence of any contact from the applicant, Mr Huynh made contact with the NSW police and he requested that a welfare check for the applicant be conducted. Later that day, a NSW police officer telephoned Mr Huynh and advised him that a welfare check had been conducted at the residential address of the applicant whereupon they encountered the applicant who was “at home and well”.
Following the confirmation from the NSW police that the applicant was at home and well, Mr Huynh sent the applicant a letter by email dated 25 January 2022, which sought an explanation including any medical evidence to support the applicant’s absence from work between 14 and 25 January. This letter also directed that the applicant return to work at 9 am on Thursday, 27 January 2022, and to report to Mr Huynh when he had logged into Xplan. Further, this letter indicated that any failure to comply with the directions issued in the correspondence, may result in the employer taking disciplinary action which could include termination of employment.
The applicant did not respond to the directives issued in the letter of 25 January 2022. On 27 January 2022, Mr Huynh sent the applicant a further letter by email dated 27 January 2022, which invited the applicant to attend a Zoom meeting on Wednesday, 2 February 2022, for the purposes of discussion about the possible termination of the applicant’s employment as a result of his unexplained absence from work since 13 January 2022. On Tuesday, 1 February 2022, the applicant sent an email to Mr Huynh which relevantly stated, “I have read your email attached and would like to advise that I have been working from home full time from the 13/01/22-27-01/22.”
The applicant did not attend the Zoom meeting that had been scheduled for the following day, 2 February 2022. Mr Huynh checked the Xplan records which showed that the applicant had not logged into the Xplan system since 13 January 2022.
On 3 February 2022, Mr Huynh wrote to the applicant and notified him of the termination of his employment. The termination of employment letter was delivered to the applicant at his home address via a courier service. The termination of employment letter relevantly advised that the employer was satisfied that the applicant’s absence from work since 13 January 2022, would be treated as an unauthorised absence, and further, that the applicant’s failure to comply with directions to return to work and provide evidence to explain his absence, involved a failure to comply with reasonable management directions and established the basis for the termination of his employment. The applicant was paid in respect of a notice period of four weeks together with any outstanding statutory entitlements.
The Case for the Applicant
The applicant represented himself, and he made verbal submissions which elaborated upon documentary material that had been filed. The applicant’s documentary material included a mixture of factual statements and various submissions and assertions. The applicant’s documentary submissions included an outline of submissions document dated 31/05/2022, which included the following statement:
“I was dismissed on the grounds of unauthorised absence and I believe this was unfair as I was working from home full time for the period of 13/01/22-27/01/2022.”
The verbal submissions made by the applicant during the Hearing also stated that he had been dismissed on the grounds of unauthorised absence, but in his defence, he stated that he was actually working from home the entire time and his mother had provided a witness statement to confirm that he was working from home the entire time. In further oral submissions the applicant provided an elaboration upon his assertion that he was working from home full time from the period of the 13th to 27th January 2022, being that he did not action any work as the respondent had instructed him to do work that had already been completed.
The applicant also submitted that he had previously had issues with his manager in connection with a letter of engagement document and therefore he made the decision not to action any tasks on Xplan as a result of not receiving the critical documentation to complete the tasks. Further, in the application document, Form F2, the applicant stated that he did not action any work on Xplan or complete any tasks because the employer had instructed him on 12 January to complete work that already been completed and, in this regard, he referred to a claim that he had filed in the Federal Circuit Court of Australia.
Further, in the Form F2 document, the applicant indicated that he was seeking a remedy of reinstatement in respect of his alleged unfair dismissal.
The Case for the Employer
The employer was represented by its Senior Manager, Employee Relations, Pacific, Ms Haywood, who relied upon written submissions dated 6 July 2022, that had been filed on behalf of the employer. Ms Haywood provided verbal submissions in elaboration of the filed written material.
The submissions made by Ms Haywood asserted that the dismissal of the applicant was not harsh, unjust, or unreasonable. Ms Haywood submitted that the applicant’s employment had been terminated because he failed to comply with a lawful and reasonable direction to attend work and explain his absence from work for the period 13 to 27 January 2022.
In support of this submission, Ms Haywood stated that the applicant had provided no evidence to support his assertion that he was working from home full time during the period 13 to 27 January 2022. Ms Haywood submitted that although the applicant may have logged onto his laptop during the period in question, he did not perform any work during that time, nor did he engage with Mr Huynh. According to the submissions made by Ms Haywood, the applicant flatly ignored multiple attempts by Mr Huynh to contact him and verify his whereabouts.
The submissions made by the employer asserted that there was valid reason for the applicant’s dismissal which involved his failure to comply with lawful and reasonable directions issued by his supervisor, Mr Huynh. These submissions noted that the extent of the applicant’s failure to respond to the reasonable requests made by Mr Huynh culminated in Mr Huynh requesting the NSW police to undertake a welfare check at the applicant’s residential address.
The submissions made by the employer also asserted that the applicant had been notified of the reasons for his dismissal in the letter of 3 February 2022, which was delivered by courier to his home address on that day. Further, the employer submitted that it had provided the applicant with an opportunity to respond to the reasons for dismissal through the letter that invited him to attend the meeting scheduled for 2 February 2022, and the applicant chose not to attend that meeting. In addition, the employer submitted that it had provided the applicant with an opportunity to have a support person present at the meeting scheduled for 2 February 2022, but the applicant chose not to attend that meeting.
The employer further submitted that as the applicant’s dismissal was for misconduct any question of unsatisfactory performance was irrelevant. The employer also submitted that it acknowledged that it was a large employer with dedicated Human Resource management personnel, and that it had adopted appropriate procedures in respect of both the consideration and implementation of the applicant’s dismissal. Finally, the employer made submissions which noted that the applicant had not made any submissions regarding any other relevant matters and that any remedy of reinstatement was strongly opposed.
In summary, the employer submitted that there was a valid reason for the dismissal of the applicant, and it had followed due process and made proper findings in respect to the applicant’s failure to comply with reasonable and lawful directives and consequently the dismissal of the applicant was not harsh, unjust, or unreasonable. The submissions made by the employer urged that the application for unfair dismissal remedy be dismissed.
Consideration
The unfair dismissal provisions of the Act relevantly include s. 385 which stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. Section 385 is in the following terms:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust, or unreasonable.
Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust, or unreasonable. Section 387 of the Act is in the following terms:
“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.”
S. 387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct
In this case the applicant was dismissed for misconduct. The employer’s findings of misconduct involved various actions or more accurately, inactions of the applicant in connection with what was described as his absence from work during the period 13 to 27 January 2022 (the relevant period). The applicant was working from home, and therefore the notion of being absent from work did not involve any requirement for the applicant’s physical presence at a workplace. Instead, the applicant’s absence from work manifested primarily as two particular aspects of his conduct.
The first aspect of the applicant’s conduct was his failure to login to the Xplan computer system on a daily basis and undertake data processing activities. The evidence established that the role performed by the applicant could not be undertaken unless he was logged into the Xplan system. The employer investigated the login records for the Xplan system and confirmed that the applicant had not logged into the system at all during the relevant period.
The applicant provided testimony during the Hearing which firstly confirmed that he had not logged into the Xplan system during the relevant period, and secondly, that he did not perform any work tasks during the relevant period. The following extracts from transcript record the relevant answers provided by the applicant during his cross-examination:
“Maybe I’ll put the question another way. Do you agree that what is in that email is a screenshot that shows the number of log-ins that you had made to Xplan up until 13 January 2022?--- Yes.
So you see that first sentence in the email that says, ‘Last log-in was on 13 January. Log-in since’?--- Yes.
Yes, okay. So do you agree that you did not log into Xplan at all throughout the period 14 January to 27 January 2022?--- Yes.”[1]
And further:
“You have also mentioned in your application for unfair dismissal, your F2 form - - -?--- Yes.
- -that you didn’t perform any work tasks during this period; is that right?---Yes, that is correct.”[2]
The employer subsequently invited the applicant to attend a Zoom meeting on 2 February 2022, to enable him to provide an explanation for what was described as his absence from work during the relevant period. The applicant failed to attend that meeting, and subsequently no explanation has emerged for the applicant’s failure to log into the Xplan system and/or perform any work tasks during the relevant period.
The second aspect of the applicant’s conduct involved his failure to respond in any way to the repeated attempts of Mr Huynh to establish contact and provide an indication of his well-being. The evidence has established that the applicant deliberately refused to respond to any of the numerous emails and text messages that were sent to him by Mr Huynh. The applicant has subsequently provided no evidence as to any explanation or reason for his repeated refusals to respond to the communications from Mr Huynh. The applicant offered the following testimony in answer to questions about his repeated refusals to respond to the inquiries made by Mr Huynh:
“So would it be fair to say that you are quite used to communicating with Mr Huynh by text?---Yes, that would be fair to say.
Yet during the period 13 to 27 January you didn’t respond to his text messages or emails asking after you and inquiring about your welfare?--- I did not respond, no.
No, so when Mr Huynh made attempts to ascertain your wellbeing you didn’t respond to those attempts, did you?--- No, I did not respond.
Nothing further, Commissioner.
THE COMMISSIONER: Can I just ask, Mr Lacherdis, do you remember the police coming around to your home on 25 January this year?--- Yes, I do, Commissioner.”[3]
The Commission has undertaken a detailed examination and careful consideration of all of the evidence of the conduct of the applicant in respect of; (a) his failure to log into the Xplan system during the relevant period, and (b), his failure to perform any work tasks during the relevant period, and (c), his deliberate refusal to respond to the repeated communications from Mr Huynh, and (d), his failure to return to work on 27 February 2022, and (e), his subsequent failure to attend the Zoom meeting on 2 February 2022. Following from this analysis, the Commission has been satisfied that there was sound basis for the employer to conclude that the applicant had deliberately failed to comply with numerous reasonable and lawful directives. There has subsequently been no satisfactory explanation or reason provided for the somewhat extraordinary conduct of the applicant.
Consequently, the employer’s finding that the conduct of the applicant represented misconduct has been verified. Therefore, there was valid reason for the dismissal of the applicant. The findings of misconduct made by the employer, have established sound, well-founded and defensible reason for the dismissal of the applicant.
S. 387 (b) - Notification of Reason for Dismissal
The employer provided written notification of the reason for the applicant’s dismissal. The notification was provided in the letter of dismissal dated 3 February 2022, which was provided to the applicant via courier service. It would have been preferable for this communication to have been provided personally to the applicant. However, in circumstances where the applicant had been working from home, and he had repeatedly failed to respond to various communications and other directives, it was understandable that advice of the termination of employment was not provided personally.
S. 387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct
The employer provided the applicant with appropriate opportunities to respond. In particular, the employer invited the applicant to attend a Zoom meeting scheduled for 2 February 2022, which, if the applicant had attended, represented an opportunity for him to offer explanation or make out any defence in respect of the conduct issues that were under consideration by the employer.
S. 387 (d) - Unreasonable Refusal to Allow a Support Person to Assist
There was no evidence that the applicant was refused the assistance of a support person during the processes that were undertaken by the employer, and which culminated in the dismissal of the applicant. Specifically, the letter of 27 January 2022, which invited the applicant to attend the Zoom meeting scheduled for 2 February 2022, also offered the applicant to nominate a support person to attend that meeting.
S. 387 (e) - Warning about Unsatisfactory Performance
This factor is not relevant to the circumstances in this instance because the applicant was not dismissed for unsatisfactory performance but instead, for misconduct.
S. 387 (f) - Size of Enterprise Likely to Impact on Procedures
The employer is a large business operation and therefore the size of the employer’s operation would not have been likely to have a significant impact on procedures surrounding the dismissal of the applicant. The procedures that were adopted by the employer have been subject to the appropriate level of scrutiny.
S. 387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures
The employer acknowledged that it did have employment Management specialists and therefore the procedures that it adopted have been subject to the appropriate level of scrutiny.
s. 387 (h) - Other Relevant Matters
There were no other relevant matters that were identified as requiring the Commission’s consideration.
Conclusion
In this instance, the applicant was dismissed for misconduct. The misconduct was established upon the employer’s findings regarding his conduct in respect to his absence from work during the relevant period, together with numerous instances involving his refusal to comply with the reasonable and lawful directives of the employer. The employer relevantly found that the applicant’s conduct represented misconduct.
Upon Hearing of the applicant’s claim for unfair dismissal remedy, the findings of misconduct made by the employer have been confirmed by the Commission. There were no other factors which militated against the primary factual findings which represented the reason for the dismissal of the applicant.
Consequently, the employer dismissed the applicant for valid reason relating to the applicant’s conduct. The conduct of the applicant represented misconduct sufficient to justify dismissal.
The dismissal of the applicant was not harsh, nor was it unjust, or unreasonable. Therefore, the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.
COMMISSIONER
Appearances:
Mr P Lacherdis appeared unrepresented.
Ms L Haywood, Senior Manager, Employee Relations, Pacific appeared for the employer.
Hearing details:
2022.
Sydney.
July, 28.
[1] Transcript @ PN117-PN119.
[2] Transcript @ PN96-PN97.
[3] Transcript @ PN123-PN127.
Printed by authority of the Commonwealth Government Printer
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