Warnings, a PIP, then cables pulled without approval: sacking upheld

What happened

Frederikus Hogendorn started with Nokia on 14 October 2013. He managed a main telephone exchange at Coorparoo in Brisbane, a site Nokia ran for its customer, the mobile network Vodafone (VHA). He said he was on call 24 hours a day, 365 days a year, and often worked more than 18 hours at a stretch when overnight work was needed.

In November 2018 Nokia put complaints to him that he had been found asleep on the job, and that he had been rude and disrespectful to a Nokia colleague in India whose first language was not English. A transcript showed him refusing a call and writing, "your english is very bad and hard to understand so writing is better". He said he lost his 2018 bonus of $4,000 as a result. During sick leave in 2019 a sleep study found he had severe obstructive sleep apnoea.

Warnings and a performance plan

On 19 September 2019 Nokia gave him a first written warning. It dealt with customer feedback that he did not appear to "care" while inducting its staff onto the site, what it called emotional outbursts at a staff workshop, his attendance, and a photo of him playing on his phone. He accepted before the Commission that he played games on his phone, saying he had a lot of free time.

A performance improvement plan (PIP), a written plan setting targets an employee must meet within a set time, followed in October 2019. Its targets included "zero complaints from GDC, customers and colleagues about attitude" and tasks finished on time.

In November the customer wrote that the site's "level of care and attention is very poor". On 27 November 2019 Nokia issued a final written warning, to stay in place for 12 months. It also said that he had been told not to discuss the matter with the customer, yet he had emailed the customer's managers about it himself.

The last straw

On 6 November 2019 he had asked the customer to arrange a change request (CR), its formal approval for work on the site, to remove old optical cables. No approval came. He removed redundant cables from under the floor, and redundant equipment units, anyway. A customer manager complained that he had asked twice for the CR he was working under "and have received nothing". Nokia's manager said approval is always required because working on a live exchange "can result in mass outages".

After a meeting on 19 December 2019 and his written reply, Nokia told him on 10 January 2020 that he was dismissed, with effect from 11 January. He applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) and asked to be reinstated.

Why: the legal test

A dismissal is unfair only if it was harsh, unjust or unreasonable. Section 387 lists what the Commission must weigh, including whether there was a valid reason related to the employee's capacity or conduct, whether he was told of it and could respond, and, for poor performance, whether he was warned first.

A valid reason must be "sound, defensible or well founded", not capricious, fanciful, spiteful or prejudiced. Where conduct is relied on, the Commission decides on the evidence whether it happened. A warning must identify the problem and make clear that the job is at risk; a mere exhortation to improve is not enough.

What the Commission decided

Commissioner Hunt found a valid reason. Mr Hogendorn admitted removing the cables without approval and accepted in hindsight that it was a mistake. The Commissioner noted emails suggesting the customer had wanted him "gone" months earlier, but was satisfied that the breach, "when objectively assessed", was a valid reason.

The process was fair. He was told of the complaint, replied in writing, and was offered a support person at each stage. The Commission found the PIP "was properly instituted and undertaken" and that he had been warned. It called his conduct towards the colleague "belittling and humiliating", and said that until he tidied the site he was "happy to sit among the mess".

His age of 60, more than six years' service and health concerns were weighed in his favour. But he had been given "in excess of one year" to improve, and against "the substantial number of warnings" the dismissal was not harsh, unjust or unreasonable. His application was dismissed.

What this means for you

If you are on a final warning or a PIP, the next incident may be judged against your whole history, and even an honest mistake can be enough. If an approval is needed, wait for it, or put in writing that you are still waiting, rather than acting anyway.

If you think the complaints against you are unfair, respond in writing at each step, and consider getting advice early. A Fair Work unfair dismissal claim must be lodged within 21 days of the dismissal.