Repeated instances of inappropriate, unprofessional conduct and neglect of duties found to be valid reasons for termination

Case background
The employer was a telecommunications firm that provided telecommunications infrastructure, maintenance and operational support for their customers which were mobile phone service providers. The employees of the telecommunications firm worked closely with the employees of their customers.
Complaints against the manager

Sometime in November 2018, customers forwarded complaints about the behaviour of a manager who was found asleep on the job and whose his office/work station was messy. When providing assistance and support for maintaining the IT hardware of the customer, the manager spoke rudely and disrespectfully to an employee of the customer. The manager refused to speak with the employee saying “his English was bad”. The employee did not speak English as his primary language.

On 27 November 2018, he was called to a meeting to notify him of the complaints and to respond to them. The Manager responded by stating that he had not enough work activities to keep him active and occupied so sometimes he had nothing to do. His line manager agreed to monitor his work and to provide additional work for him in case the work assigned to him was insufficient. Being found by the customer asleep on the job was bad for the employer’s professional reputation.

First warning letter
The manager was summoned to an investigative meeting on 12 June 2019 during which the same complaints were made against him. The manager attended and participated in the meeting but advised the HR officer and his line manager that he was on sick leave at that time and he had been unfit to attend work. He provided a medical certificate and the meeting was postponed.

On 10 September 2019, after the manager returned to work after being declared fit for work, he was sent a first warning letter. In this warning letter, he was informed that another customer complained that while the manager was conducting them through a site, he did not act professionally or with care. During a service excellence workshop, the manager made several emotional outbursts which were abrasive, rude and unwarranted. There were also complaints about his absences from the work site and that he failed to accomplish work given to him to perform. A customer complained that the manager spent too much time on his phone and played games on it while he was at his desk.

To these complaints, the manager responded by saying that he did not “deal often with people” to explain his behaviour. The line manager provided statements from his co-workers stating that they avoided working with him because of his abrasive and rude behaviour in reply to the manager. The manager explained that he was often absent from work because he had worked late the night before.
Because of these complaints, the manager’s bonus amounting to $4,000 was withheld. And because this was the second meeting over a period of 12 months and the same issues of lack of professionalism and bad work attitude had arisen, the manager was given his first warning letter.

Performance management
On October 1, 2019, the manager was placed on a performance improvement plan. The goal was for the manager to receive 0 complaints about his attitude in daily interactions; his tasks will be given a ‘required by’ date and the manager must complete the tasks without delays; the last goal was for him to turn in perfect work attendance and to receive 0 complaints about overuse of his phone for personal activities whilst at work. The PIP was to be updated on the 6th and 12th week. After that, there was to be a formal review.

Final Written Warning
The manager was summoned to a meeting on 15 November 2019 where he was provided with a final written warning. The letter to him stated that another customer raised the complaint that the manager allowed the site under his management into fall into a bad condition. A ‘final written warning’ was issued to the manager and it was to remain in place for 12 months.
The manager was also admonished that the performance management discussions since October were supposed to be confidential and that he was not supposed to speak about it to the customer who made the complaint against him and yet the manager discussed it with the customer. This behaviour was found to be inappropriate and that the outcome of his actions were still being considered by the management.

More complaints in December 2019
While both the Performance Improvement Plan and the Final Written Warning were both in effect, a new complaint was made by a customer against the manager. He informed and asked permission from the customer to cut and remove cables under the flooring at the customer’s site but he did not wait for the approval of the customer. The worksite was also not cleaned up after the manager did the work.

Dismissal on 11 January 2020
At the investigation meeting, the employer pointed out that as a manager, his role was sensitive and that he had access to the customer’s network. The employer had warned him repeatedly about his bad performance and conduct at work and he had been given ample opportunity to improve but the manager has not improved in conduct or performance. Thus, he was terminated. The manager filed an application for unfair dismissal.

Requirements for a finding of unfair dismissal
The Fair Work Commission can order a remedy for unfair dismissal when there is proof that the applicant is protected from unfair dismissal and when there is proof that the applicant had been unfairly dismissed. An employee can be considered as having been unfairly dismissed when the dismissal was harsh, unjust or unreasonable. If the dismissal related to unsatisfactory performance by the employee, the employee must have been warned about that unsatisfactory performance before the dismissal.

Requirements for a valid reason for dismissal
A dismissal that is reasonable must be based on reasons that are sound, defensible or well founded and not on reasons that are fanciful, capricious, spiteful or prejudiced. And if the dismissal related to the employee’s conduct, there must be evidence that the conduct complained of did occur and this justified the termination.
The manager was dismissed because he removed wiring from the floor and made changes with the customer’s hardware without having first obtained the approval from the customer. He had asked for approval but he removed the wiring before any approval was given. The customer, the upper management and even the manager all agree that this conduct was wrong, that the conduct raised a serious issue that could have negatively impacted the customer’s business. For these reasons, the dismissal cannot be considered fanciful, capricious, spiteful or prejudiced.

The incident of removing wires without prior approval is the last of a long list of performance-related complaints against the manager. He had previously been warned of his inappropriate and improper conduct. He was given a warning to improve his conduct and his performance. He was involved in a lengthy performance management process. He also engaged in several meetings where his performance and conduct were discussed. At every meeting, he was notified of the performance or conduct issues raised against him; he was given the opportunity to respond to those complaints against him and his responses were considered by his employer. Thus, the manager cannot say he was not notified of his bad performance at work.

Whether the dismissal was harsh
In considering whether the dismissal was harsh, the FWC found that the manager was already 60 years old and he faced health issues. He had been employed for 6 years and because of his age, it was not likely that he will find a substantially similar employment. Despite the negative economic impact on the manager, the dismissal cannot be considered harsh because the manager was given every opportunity to change and to improve his performance but he did not. The application for unlawful termination was dismissed.
Frederikus Hogendorn v Nokia Solutions and Network T/A Nokia [2020] FWC 4476 (25 August 2020)

Read More