DECISION

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

Mr Brett Hutton
v
Sykes Australia Pty Ltd
(U2014/4464)

Application for relief from unfair dismissal.

Background

[1] Brett Hutton applies under s. 394(1) of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Sykes Australia Pty Ltd. Sykes provides customer service support under contract to a number of banks including St George, through banking and customer service agents referred to as bankers. Essentially bankers employed by Sykes deal with customers of St George who have queries in relation to their accounts and on-line banking transactions. Bankers deal with these queries by telephone and computer.

[2] Mr Hutton was employed by Sykes on a casual basis as a banker from 15 July 2013 until his dismissal on 24 January 2014. Mr Hutton was dismissed for inappropriate conduct including aggressive behaviour in training and in the workplace; failing to follow reasonable management directions; and involving himself in matters that do not relate to him despite repeated instruction not do so. Sykes further contends that Mr Hutton was given a first and final warning in relation to these matters and notwithstanding this, sent an email to staff of Sykes’ major client St George which was critical of Sykes and its processes. This email was said to be disruptive and potentially damaging to Sykes. As a result of Mr Hutton’s conduct, Sykes contended that it has lost trust and confidence in him.

[3] Mr Hutton represented himself in these proceedings. Having regard to the complexities of this application, including the sheer volume of the material tendered by Mr Hutton, I decided to grant Sykes permission to be legally represented on the ground that I was satisfied that it would enable the matter to be dealt with more efficiently. Sykes was represented by Mr Chris Murdoch of Counsel, instructed by Norton Rose Fulbright Australia Solicitors. I heard both parties’ evidence and submissions at Brisbane on 17, 18, 19 and 20 June 2014.

[4] Mr Hutton gave evidence in support of his application. Evidence in support of Sykes was given by:

● Stephanie Lazaro-Bergola, Human Resource and Recruitment Manager; 1
● Daniel Mathew Cavka, Account Manager and formerly Team Manager; 2
● Emma Louise Bailey, Manager-Human Resources; 3
● Arturo Lazaro Junior, Team Manager.

[1] I refused to issue notices on behalf of Mr Hutton requiring a number of persons to attend the Commission to give evidence because their evidence was not relevant to the matters in dispute. For example, Mr Hutton sought to issue an attendance notice to an employee that he stated had been randomly selected from employees of Sykes and said that he intended to ask that person whether she had heard any adverse reports about his conduct or had any personal knowledge about his conduct.

[2] I have had regard to s.396 of the Act and determined that this application was made within the period required by the Act; Mr Hutton is a person protected from unfair dismissal; Sykes is not a small business employer; and there is no issue of genuine redundancy. It is necessary for me to determine whether or not Mr Hutton's dismissal was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act which are set out below:

“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 for followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[3] Having considered the evidence and submissions of the parties I have resolved various factual issues relevant to the criteria I am required to consider pursuant to s.387 of the Act. Mr Hutton's conduct during the hearing made this task difficult. His submissions were often not to the point in issue and his evidence was discursive. In progressing his claim Mr Hutton displayed much of the conduct which Sykes asserts provided a valid reason for his dismissal. Mr Hutton was aggressive, focused on irrelevant details and had an immovable belief that he knows better than his managers and was justified in disregarding their instructions on the basis of their incompetence and his superior customer service skills.

[4] I did not find Mr Hutton a reliable witness. Mr Hutton gave contradictory evidence and at times his evidence was incongruous. For example, after his employment ended, Mr Hutton posted information about the location of Sykes’ staff Christmas party on the internet highlighting that the function would be attended by bankers who manage mortgages and credit cards of the general public. Essentially Mr Hutton was suggesting that anyone who had an issue with banks should attend the party. Mr Hutton’s evidence that he only posted this information on overseas websites or websites that can only be accessed overseas, was completely implausible. Although not relied on as a reason for dismissal, this conduct and Mr Hutton’s explanation of it displayed a lack of credit. In resolving the factual background and any conflict in the facts presented by the parties I have accepted the evidence of Sykes’ witnesses in preference to that of Mr Hutton. I have set out key factual findings below

Valid reason - s.387(a)

[5] The conduct relied on by Sykes as forming a valid reason for Mr Hutton’s dismissal can be summarised as follows. Mr Hutton attended training in July 2013, shortly after he commenced employment. The trainer reported to Ms Lazaro-Bergola, that Mr Hutton became aggressive as a result of his frustration with the computer system, and exhibited behaviour including hitting his fists on the table and yelling and swearing at the computer. Ms Lazaro-Bergola organised an informal meeting with Mr Hutton and the trainer to discuss this issue and Mr Hutton agreed that he would be more aware of his behaviour and make sure that he did not make others feel uncomfortable. That meeting occurred at some time between 15 and 26 July 2013.

[6] Mr Hutton in a later letter dated 4 September 2013 purporting to outline the substance of a later conversation on that date with Ms Lazaro-Bergola, described the issues relating to his behaviour in training as: “discussed was the nature of emotionally fragile individuals surrounding” and that “emotion of others within the workplace overall was the focus to be noted for attention in future awareness campaign of an ambient environment to be maintained.”  4

[7] From these comments I assume that Mr Hutton was acknowledging that his conduct may have caused concern to others and that he would be aware of the sensitivities of others in future. Mr Hutton also said in his evidence that he bumped or put his hands on the table when he was frustrated at the training courses but not in an aggressive manner. While giving his evidence in the Commission I observed Mr Hutton banging his hands on the table and also raising his voice. Even in circumstances where Mr Hutton was out of his comfort zone by virtue of representing himself in the Commission, and was being cross-examined, his behaviour was inappropriately aggressive.

[8] Mr Cavka was Mr Hutton's Team Manager. He gave evidence of his attempts to manage Mr Hutton. 5 Prior to becoming Mr Hutton's Team Manager, in his role as a Subject Matter Expert, Mr Cavka was critical of the average handling time of Mr Hutton’s calls and in particular the time Mr Hutton spent in after call work (ACW). When a banker is in ACW mode they are unable to take customer calls and for this reason they need to make sure that their ACW times stay low. Mr Cavka observed that Mr Hutton spent unnecessarily long amounts of time sitting in ACW mode after completing a call and that he was scrolling through customer profiles. Mr Cavka spoke to Mr Hutton about these concerns before he became Team Manager and afterwards on almost every second shift until he placed Mr Hutton on a Performance Improvement Plan in October 2013.6

[9] That plan was to address Mr Hutton’s failure to meet a target for the average time to handle each call. Mr Cavka said that he told Mr Hutton that this was because Mr Hutton was looking at customer profiles when he was not on live calls and that he must log out of profiles at the end of each call. Mr Cavka said that Mr Hutton stated that he was checking whether the banker before him had completed tasks correctly. Mr Cavka told Mr Hutton that while he appreciated this being brought to his attention, Mr Hutton should focus on his own results. Mr Hutton successfully reached the end of the Performance Improvement Plan period.

[10] Mr Hutton was warned about his behaviour while working as a banker on 4 September 2014. On that date, Mr Hutton made inappropriate and aggressive comments in an on-line chat forum used by bankers to raise issues that are occurring while they perform their work. In his comments, Mr Hutton capitalised words indicating that he was shouting, made assertions that others were not professional and threatened to complain to management when his questions were not answered promptly.

[11] A subject matter expert who came to assist Mr Hutton then complained that Mr Hutton insisted that he take over the call and thrust the headphones towards him in an aggressive manner. In behaving in this way, Mr Hutton did not adopt a number of available avenues to deal with the situation. Rather, he became angry because he did not have a tool that he referred to as an emulator. Mr Hutton appears to have been fixated with obtaining this tool and insisted that it would have assisted him to deal with customer issues. Sykes’ witnesses said that the tool was being developed and was not available at that time, and also maintained that Mr Hutton had other means to obtain information to help him to perform his duties.

[12] A meeting was held with Mr Hutton on 4 September to discuss this incident. A transcript of this meeting was attached to the statement of Ms Lazaro-Bergola. 7 Mr Hutton did not dispute the accuracy of the transcript. The transcript indicates that Mr Hutton was informed that his conduct had been viewed by others as rude and abrupt. Mr Hutton was also informed that regardless of whether or not he has resources to do his job, he should not get frustrated and display unwanted behaviour towards other team members and made a commitment that he would not do this in future. The transcript records that Ms Lazaro-Bergola said to Mr Hutton:

“…and what I need you to do Brett, is to go ahead and reassess whether or not you believe that this work environment is still suitable for you. Simply because, you know, this is what we have – right now we are under-staffed, right? And right now, this is the support we have available to us. If you’re going to continuously, you know, be upset and frustrated with your place of work, I want you to assess whether or not you think that this place is still not going to be happy coming in here and not going to be happy with the people they work with because it does create a hostile work environment.”

[13] Immediately after this statement is made, the transcript records that Mr Hutton continues to raise technical issues and is then told by Ms Lazaro-Bergola that these issues occur and can take time to remedy, and that he needs to accept this and adjust his behaviour because others are perceiving him as aggressive and hostile. Mr Hutton was given a first and final written warning about his temper and what the Company regarded as rude behaviour on the floor, but refused to sign the warning. There was discussion about why Mr Hutton refused to sign the warning during which he indicated that he understood its terms but maintained his refusal.

[14] On 4 September 2013, Mr Hutton wrote a letter outlining his views about the meeting that had been held with him on that date and the warning he had been given. The letter sets out at length Mr Hutton’s views about the inadequacy of resources to do his job and repeats his request to be provided with an emulator. It goes on to reject the validity of the issues subject of the first and final warning and to maintain that Mr Hutton has skill assessments with his team leader with positive feedback having been received. The letter concludes with an assertion that Mr Hutton will not sign a document that incriminates him and that it is illegal for employees to be signing documents under duress.

[15] Mr Hutton raised issues concerning the workplace in a further email dated 6 September 2013 and those concerns were passed on to the Human Resources Manager, Ms Baird, and Ms Lazaro-Bergola. The concerns included a number relating to alleged tampering with Mr Hutton’s work computer. A meeting was held between Mr Cavka, Ms Lazaro-Bergola and Mr Hutton on that date. Mr Hutton's concerns were discussed. He was advised that he was doing a lot of things for clients that were outside his skill set. It was suggested that this was causing him frustration and that he should confine himself to his key performance indicators. Following that meeting Mr Cavka provided Mr Hutton with a document setting out the duties that he should perform. The record of that meeting tendered by Ms Lazaro-Bergola also indicates that Mr Hutton was told his account had not been tampered with.

[16] In October 2013 a complaint was received from a St George Bank customer relating to Mr Hutton’s performance. There was an alleged error in relation to a quoted interest rate but, more importantly, Mr Hutton was alleged to have acted outside his role by lodging a request for a balance transfer from one credit card to another. Sykes’ bankers can offer balance transfers but not action those requests. Mr Cavka met with Mr Hutton on 16 October 2013 to discuss the complaint. The exchange between Mr Cavka and Mr Hutton as recalled by Mr Cavka indicates that Mr Hutton knew that he was not permitted to action the request but decided to do so because he thought that bankers should be able to do this as part of providing good customer service. 8

[17] In November 2013 Mr Hutton began to send regular e-mails containing reference guides and contact details for various departments within St George Bank to a wide range of recipients within Sykes. These were documents in PDF format created by Mr Hutton and some were sent from an external e-mail. Mr Cavka did not immediately stop Mr Hutton from sending these documents. His evidence was that initially he thought it assisted Mr Hutton to feel as if he was contributing. However, at some stage in November/December 2013 he was advised that Mr Hutton should cease sending documents he had created himself because it was not allowed by the client. Mr Hutton was taking information from various on-line sources used by bankers and incorporating into PDFs for ease of access.

[18] Mr Cavka emailed Mr Hutton on 8 December stating that while the information was helpful, Mr Hutton should stop sending it to agents as all sources of information were required to be approved by Sykes’ campaign manager. Mr Cavka asked that Mr Hutton send such material to him to obtain any necessary approvals and reiterated that Mr Hutton was to ensure that it was not sent out to any agents. Mr Cavka also requested that Mr Hutton not send such information to Ms Lazaro-Bergola because she was in HR and would not use it in her role.

[19] Mr Hutton sent an email dated 16 December 2013 in which he raised a number of complaints including car parking and issues with Sykes system. Essentially Mr Hutton was complaining that Sykes’ performance measurement system was not an appropriate way to measure performance. Ms Bailey and Mr Lazaro met with Mr Hutton on 20 December 2013 to discuss these concerns. Mr Hutton recorded this meeting on his Samsung tablet.

[20] Ms Bailey said that Mr Hutton’s concerns were the number of available car park spaces and the fact that he was getting his shoes muddy. Mr Hutton did not raise any concerns about his personal safety in car parks. Mr Lazaro spoke to Mr Hutton about his technical concerns and also told Mr Hutton that if he had feedback or suggestions he should see his team leader or manager first, so that he could be informed whether things were going on in the background so that Mr Hutton would not spend his weekends doing unnecessary work. Ms Bailey also told Mr Hutton that he should raise any HR related issue with her.

[21] On 22 and 23 December, in contravention of Mr Cavka’s request, Mr Hutton sent out an update of his reference guide to a number of persons including other team managers and Ms Lazaro-Bergola. Mr Lazaro, another Team Manager who was copied in the email distribution, responded to Mr Hutton in the following terms:

“Hi Brett

Thanks for compiling these quick reference documents. I appreciate the effort you have put in with creating these. We will consider using these as a backup when Support Point is down. Please consult a team manager moving forward prior to creating any of these documents so that we can save you the effort if we already have something in the works.” 9

[22] On 31 December, Mr Hutton sent further updates to his reference guide and Mr Lazaro again emailed Mr Hutton expressing appreciation for his effort in making the guides but reiterating that he should seek guidance from a team leader prior to creating or updating them. Mr Lazaro’s email goes on to state that such guides would only be used as a backup in the event of a major outage to support point systems. Notwithstanding these communications, Mr Hutton continued to update his guides throughout January 2014 and to send those updates to Mr Lazaro and Mr Cavka.

[23] Mr Cavka said that his concern about these documents was that Mr Hutton was creating unnecessary confusion and duplication because the information that was included in them was found in other sources provided by Sykes. Sykes did not publish this kind of information in PDF format because it was constantly being updated. In his evidence to the Commission, Mr Hutton explained this conduct by insisting that the requests from Mr Cavka and Mr Lazaro related to creating new guides and not to updating those he had already created. Mr Hutton also gave evidence about problems he experienced with the sources of this information necessitating him creating his own versions.

[24] A further example of Mr Hutton exceeding his specified duties arose in December 2013 when Mr Cavka discovered that Mr Hutton had increased a customer’s credit card daily withdrawal limit contrary to policy and Mr Hutton’s training. Mr Cavka held a discussion with Mr Hutton about this matter during which Mr Hutton stated that he was improving the customer experience but undertook not to repeat the conduct. Mr Cavka said that in his view Mr Hutton understood that he was not permitted to do this but did it anyway because he thought he should be able to increase the limit to offer good customer service.

[25] On 16 December 2013 Mr Hutton forwarded an e-mail to a number of managers raising issues concerning rostering, his security token, internal documents and Support Point. He asked for an appointment to discuss these issues. Mr Cavka responded to Mr Hutton's concerns by e-mail on 17 December 2013 answering some of the questions raised by Mr Hutton and indicating that he did not understand other questions and sought clarification in relation to them.

[26] On 20 December 2013, a meeting was convened with Mr Hutton by Ms Emma Bailey, Sykes Human Resources Manager and Mr Lazaro, to discuss Mr Hutton’s complaints as set out in his email of 16 September. During that meeting, Mr Lazaro discussed Mr Hutton’s technical concerns and told him that if he needed feedback on his performance, or had suggestions about systems or processes, he should contact a team leader. Ms Bailey told Mr Hutton that if he had any human resource management issues he should raise them with her.

[27] On 10 January 2014 Mr Cavka was informed that Mr Hutton had not cancelled a credit card in accordance with Sykes’ processes. The details of this transaction are set out in Mr Cavka’s statement. 10 This matter was raised with Mr Hutton by a subject matter expert from Sykes in an email. Mr Sykes responded to that email stating that rather than “hot-listing” the card as required by Sykes’ required process, “sometimes we warm at a customer…rather than waiting 5 to 7 business days for an unnecessary replacement”. Mr Cavka said that in his view Mr Hutton understood the process but had decided not to follow it. As a consequence Mr Cavka e-mailed Mr Hutton supporting Sykes’ instructions and the process.

[28] In January 2014 Mr Hutton began to refer to other staff members’ failures to comply with Sykes’ processes and to request that Mr Cavka deal with those failures through coaching. In one email dated 19 January 2014, Mr Hutton informed Mr Cavka that he would be checking on the staff member to see if the conduct complained of was repeated. 11 It was Mr Cavka’s evidence that Mr Hutton checking on other bankers involved him viewing customer profiles whilst not being on live calls with those customers. Mr Cavka emailed Mr Hutton on 23 January 2013, explaining that his conduct (however genuine) could upset staff, and directing Mr Hutton to cease monitoring or reviewing other banker’s performance.

[29] Matters came to a head on 24 January 2014, when Mr Hutton sent an email to a number of persons attaching Mr Cavka’s response to him. That email was sent to a number of Sykes employees and also to a number of staff of Sykes’ client, St George Bank. 12 The email was critical of Mr Cavka and asserted that Mr Hutton was being undermined in professional service and customer support. It also stated that “WE DO NOT SUPPORT FOB MANAGEMENT” [meaning management that fobs off employees] and that Mr Hutton was making a “formal complaint in relation to staff support and management incompetence in relation to actions incomplete and response.” Mr Hutton agreed under cross-examination that he sent this email in response to Mr Cavka’s email of 23 January 2014.

[30] As a result of that email, there were discussions between management of Sykes and St George during which a senior manager of St George informed Sykes’ management that Mr Hutton was not to do any further work for St George. There was a meeting between Ms Bailey and Mr Cavka to discuss Mr Hutton’s conduct. A view was formed that, taking into account Mr Hutton's performance as a banker; his failure to improve with coaching and a Performance Improvement Plan; his direct contact with St George managers contrary to directions; and his criticism of Sykes in that email, that Mr Hutton's employment should be terminated. The decision was confirmed with Sykes General Manager and Director Ms Bhrama Gupta.

[31] Mr Cavka attended Mr Hutton's workstation and asked Mr Hutton to attend a meeting to discuss "some matters that have been brought to our attention". Mr Hutton stated that he did not have an electronic recording device with him and asked to reschedule the meeting. Mr Cavka informed Mr Hutton that the meeting needed to take place that day. When Mr Hutton refused to attend the meeting without the recording device, Ms Bailey instructed Mr Cavka to tell Mr Hutton to go home and to ask for his access pass. The basis of Sykes’ determination was that Mr Hutton could not be relied upon not to engage in further inappropriate conduct and that, in any event, the recording of any meeting by Mr Hutton was inappropriate.

[32] It was Sykes’ submission that forwarding e-mail direct to St George managers was contrary to directions given to Mr Hutton and the content of the email was inappropriate. I am satisfied that Mr Hutton contacting Sykes’ client directly was inappropriate in itself. I am also satisfied that Mr Hutton contacting Sykes’ client with criticisms of Sykes was also inappropriate and that this conduct was misconduct and a valid reason for the termination of Mr Hutton's employment. Further, I am satisfied that this email followed a series of conduct on the part of Mr Hutton that was consistently and persistently contrary to clear direction from his managers and team leaders, and deliberately so. This conduct also provided a valid reason for Mr Hutton’s dismissal

[33] In reaching my conclusion regarding valid reason I did not take into account other issues Sykes raised with Mr Hutton in the course of his employment concerning his personal conduct. I have dealt with the issues which Sykes relied on to terminate the employment of Mr Hutton. I am satisfied and find that they did not contribute to Sykes’ decision to dismiss Mr Hutton. The trigger was his inappropriate e-mail to a significant client of Sykes customer and I am satisfied and find that this conduct was sufficient to provide a valid reason for the termination of Mr Hutton's employment. The inappropriateness of Mr Hutton’s conduct in sending that email is heightened in the context of a background of what I am satisfied was very reasonable and patient coaching and performance management directed to Mr Hutton by relevant managers of Sykes and Mr Hutton’s deliberate failure to comply with reasonable requirements placed on him by Sykes’ management.

[34] It is apparent from the evidence and the way in which Mr Hutton conducted his case, that he had no self-awareness regarding his conduct or his failures in relation to his performance. Throughout his employment, and in the hearing before me, he remained convinced of the righteousness of his attitude, conduct and performance with Sykes. I am satisfied that he honestly holds those views. However, he demonstrated no appreciation of his obligation to follow directions. Put simply, Mr Hutton would not do as he was directed to do. His overwhelming conviction as to the correctness of his position, his lack of understanding of his position in the employment structure and his concentration on irrelevant detail has blinded him to the inappropriateness of his attitude and conduct.

[35] I am satisfied and find that Mr Hutton's relatively brief period of employment with Sykes was marred by significant performance issues, a failure to respond to Sykes’ legitimate concerns regarding these issues, an unreasonable refusal to follow directions as to the manner of his performance and finally the forwarding of an email contrary to directions, which had a real potential to cause significant damage to the relationship between Sykes and its client St George. I am satisfied and find that the final email, for which Mr Hutton’s employment was terminated was a deliberate act of disobedience.

[36] The conduct of Mr Hutton was destructive of the relationship of trust and confidence necessary to every employment relationship. Accordingly, I am satisfied that Sykes’ reasons for dismissing Mr Hutton were valid in that they were sound, defensible and well founded.

Notification of Reason - s.387(b)

[37] I am satisfied and find that the various meetings between Mr Hutton and his supervisors and managers during the course of his employment provided adequate direction to Mr Hutton and that he was notified of the concerns with his conduct and work performance which lead to his dismissal. I am satisfied that, having forwarded an email to Sykes’ client in direct contravention of specific directions, that Mr Hutton was aware, or should have been aware, of the reason why a meeting had been called with senior management and the likely purpose of that meeting in compliance with s.387(b).

Opportunity to Respond - s.387(c)

[38] I am satisfied, having considered the inconsistencies in the evidence and submissions of the parties, that there was an opportunity provided to Mr Hutton to discus Sykes’ concerns regarding his conduct and performance prior to its decision to terminate his employment. I am satisfied that the issues between the parties were on the table between Sykes and Mr Hutton for almost all of the period of Mr Hutton's employment, and that the significance of these issues for the continuance of his employment were, or should have been, apparent to Mr Hutton. I am not persuaded that any failure to engage in a final discussion of these issues and provide an opportunity for a further opportunity to respond after Mr Hutton's refusal to attend the final meeting, was a failure to provide an opportunity to respond in all the circumstances. In this regard, I note that Mr Hutton agreed in cross-examination that he had put all the submissions and evidence at this hearing that he would have put at such a meeting. Having considered Mr Hutton’s evidence and submissions, I am of the view that had a final meeting been held the outcome would have been the same.

[39] Even if it is accepted that the decision to dismiss Mr Hutton without having a meeting to discuss the email of 24 January 2014 lead to some unfairness, that unfairness is outweighed by the extensive warnings and counselling that Mr Hutton was provided with and the constant breaches of lawful and reasonable directions provided to him by management of Sykes.

Support Person - s.387(d)

[40] A final discussion regarding the possibility of Mr Hutton's termination of employment did not take place. Mr Hutton wished to record the meeting. I do not accept that a request to record a meeting constitutes a request to have a support person present in the manner contemplated by s. 387(d) or that a refusal to allow Mr Hutton to bring a recording device to the meeting constitutes an unreasonable refusal to allow him to have a support person present.

Unsatisfactory Performance - s387(e)

[41] For the reasons set out above I am satisfied that Mr Hutton’s attitude and performance were unsatisfactory and that he was warned about these matters. In my view, Mr Hutton should not have been in any doubt about the inappropriateness of his conduct. Although the initial warnings were couched in terms which were intended to soften them, it was clear that Mr Hutton was being directed to cease certain activities. It is clear that Mr Hutton acted with wilful and deliberate disregard for the directions he had been given.

Procedures for implementing dismissal - s.387(f) and (g)

[42] I am satisfied and find that the procedures adopted by Sykes were appropriate. The level of coaching and management time invested in Mr Hutton was generous. Sykes is a large employer with dedicated human resource management and it is not necessary to consider the impact of this criteria.

Any other relevant matters – s.387 (h)

[43] I have considered the financial and social consequences to Mr Hutton of termination of employment. Weighed against those consequences are his persistent contraventions of clear directions from his managers, and fact that he sent an entirely inappropriate and potentially damaging email to a significant client of Sykes. I also accept that the client indicated that it did not want Mr Hutton performing work on its behalf after he sent that email.

Conclusion

[44] Having considered the requirements indicated in s.387 of the Act I am satisfied that Mr Hutton’s dismissal was not unfair and was not harsh, unjust or unreasonable. Mr Hutton’s application for an unfair dismissal remedy in U 2014/4464 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Hearing details:

Appearances:

Mr Hutton on his own behalf

Mr C. Murdoch instructed by Norton Rose Fulbright Australia for Sykes Australia Pty Ltd

Brisbane

2014

June 17, 18, 19 and 20

 1   Witness Statement Exhibit 2.

 2   Witness Statement Exhibit 3.

 3   Witness Statement Exhibit 6.

 4   Exhibit 2 Annexure “SLB-5”.

 5   Witness Statement of Daniel Matthew Cavka Exhibit 3.

 6   Ibid at paragraphs 8 and 9.

 7   Witness Statement Exhibit 2 Annexure “SLB-2”.

 8   Exhibit 3 paragraph 25.

 9   Exhibit 3 Annexure “DCM-3”.

 10   Ibid at paragraphs 37 and 38.

 11   Ibid “DMC-16”.

 12   Exhibit 6 Annexure “ELB-4”.

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