Angela Kokke v Momentum Energy Pty Ltd [2024] FWC 1710

1 Fair Work Act 2009 s.394—Unfair dismissal Angela Kokke v Momentum Energy Pty Ltd (U2024/4405) DEPUTY PRESIDENT COLMAN MELBOURNE, 28 JUNE 2024 Unfair dismissal application – refusal to engage with performance plan and follow other reasonable directions – serious misconduct – application dismissed [1] Angela Kokke has made an application under s 394 of the Fair Work Act 2009 (Act). She contends that her dismissal by Momentum Energy Pty Ltd (Momentum) was unfair. Momentum denies that it dismissed Ms Kokke. It says that it accepted Ms Kokke’s repudiation of her contract of employment after she refused to participate in a performance plan and defied other directions. It contends that alternatively, any dismissal was not unfair. [2] The relevant background can be summarised as follows. In late 2023, Momentum received complaints from employees about Ms Kokke’s behaviour, including that she was rude and intimidating. Momentum was also concerned that Ms Kokke had ignored directions to work in the office. Various discussions occurred between management and Ms Kokke and correspondence was exchanged. Then on 6 February 2024, Bab Kamath, the network manager, wrote to Ms Kokke and said that the company was putting her on a one month performance plan and that she was required to meet with him to discuss it. Mr Kamath also directed Ms Kokke to participate in online work meetings known as ‘connections team chats’, and to work in the office, rather than from home, on Tuesdays and Wednesdays during the plan period. Ms Kokke replied, stating that the company’s letter was ‘completely unnecessary and unlawful.’ Further correspondence followed, in which Ms Kokke raised various complaints about the company and Mr Kamath, including that the workplace was unsafe, that her team had caused her to suffer mental health problems, and that Mr Kamath was trying to micromanage her. She stated that she would not be attending any meetings with Mr Kamath and would not be attending the office unless she deemed it to be safe. She told Mr Kamath not to contact her again. On 26 February 2024, Paul Joseph, the customer care manager, told Ms Kokke that the company considered the workplace to be safe, that there were no details to substantiate her allegation against Mr Kamath, that he did not consider Mr Kamath to have acted inappropriately, and that the performance plan would proceed. More correspondence was then exchanged in which Ms Kokke insisted that a performance plan was not necessary. [2024] FWC 1710 [Note: An appeal pursuant to s.604 (C2024/4548) was lodged against this decision - refer to Full Bench decision dated 12 September 2024 [[2024] FWCFB 336] for result of appeal.] DECISION -- 1 of 4 -- [2024] FWC 1710 2 [3] In a letter to Ms Kokke dated 14 March 2024, Mr Joseph stated that the performance plan would be implemented from 19 March to 16 April 2024. He required her to comply with certain directions, including that she participate in connections team chats, and that she attend the office on Tuesdays and Wednesdays during the plan. The letter stated that if Ms Kokke was unable to comply with any aspect of the plan for medical reasons, she had to provide information from her medical practitioner, by 18 March 2024, to enable the company to consider whether adjustments to the plan were needed. The letter also stated that it was a fundamental requirement of Ms Kokke’s employment that she comply with lawful and reasonable directions, and that a failure to do so might result in termination of employment. [4] On 14 March 2024, Ms Kokke replied to Mr Joseph and said, among many other things, that she disagreed with the plan and that she was not required to provide any information about her health. Ms Kokke did not submit any medical information by 18 March 2024. On 19 March 2024, she advised Mr Joseph that she was not required to attend the office if she deemed it unsafe, and that the company’s ‘supposed plan’ was not valid. She stated that she was not required to accept any feedback that she did not agree with. She stated that she would not be agreeing to any of the company’s ‘one-sided and arrogant claims and directives’. She told Mr Joseph not to contact her again. [5] On Tuesday 19 March 2024, Ms Kokke attended work at the office. She did not comply with the direction to participate in connections team chats. She did not attend the office on Wednesday 20 March 2024. She did not accept the performance plan. [6] On 20 March 2024, Mr Joseph sent Ms Kokke a letter noting that she had refused to accept the performance plan and had ignored reasonable directions. The letter asked her to show cause why she should not be dismissed. In her response that day, Ms Kokke said that she would not agree to the company’s performance plan and that she was not required to participate in connections team chats because of mental health problems that had been caused by the company. She referred to a large number of grievances and complaints, and listed generic examples of ‘gaslighting’, ‘victimisation’, and various other negative behaviours of which she claimed to be a victim. She concluded by stating that the company’s directions were not valid, and that Mr Joseph was not to contact her again. On 22 March 2024, Ms Kokke sent another message to Mr Joseph, stating that she was not required to attend a workplace she considered unsafe, or to accept Mr Josepeh’s perceptions or those of anybody else. [7] On 27 March 2024, Mr Joseph wrote to Ms Kokke, stating that the company accepted the repudiation of her contract and that her employment would end immediately. He also stated that the company was entitled under her contract of employment to dismiss her immediately due to her failure to comply with lawful and reasonable directions, and that although she was not entitled to any notice, the company had decided to pay her four weeks’ pay, which it said was essentially a payment in lieu of notice. Consideration [8] I find that Ms Kokke was dismissed by Momentum. The fact that an employee has committed a repudiatory breach of the contract of employment does not of itself constitute a termination of employment at the employee’s initiative. It is now well-established that dismissal, as defined in s 386 of the Act, is concerned with termination of the employment -- 2 of 4 -- [2024] FWC 1710 3 relationship. In some cases, an employee’s repudiatory conduct might have the effect of ending the employment at the employee’s initiative. This might be the case if the employer has no real choice but to regard the employment as at an end. That is in effect what the company said happened here, because Ms Kokke would not follow its directions. The company contended that this was the critical action, or principal contributing factor, that led to the end of the employment relationship. I accept that Ms Kokke repudiated her contract. However I do not consider that the company had no real choice but to regard the employment as at an end, even if perhaps the circumstances were approaching such an end point. The company could have decided to affirm the contract and maintain the employment relationship. It would be an understatement to say that this was an unattractive option for the company. Nevertheless, it was Momentum’s decision to end Ms Kokke’s employment, not hers. I also note that the termination letter invoked the company’s right to terminate the employment because of Ms Kokke’s fundamental breach of her contract. In my view, the employment was terminated on the employer’s initiative, and Ms Kokke was therefore dismissed. However, having regard to the considerations in s 387 of the Act, the dismissal was plainly not unfair. [9] First, there was a valid reason for the dismissal related to Ms Kokke’s conduct (s 387(a)). She refused to accept the company’s performance plan, and refused to engage with its efforts to address the concerns it held about her behaviour. She also refused to follow other directions of the company that in my view were both lawful and reasonable, namely the directions to attend the workplace on certain days during the performance plan, and to participate in the connections team chats. Ms Kokke says that these things were not reasonable because they were incompatible with her health, including her mental health. But there is simply no medical evidence that substantiates this. Ms Kokke was invited to provide the company, by 18 March 2024, with any medical evidence that might indicate that she could not comply with the performance plan for health reasons. She did not do so. The medical information that the company had previously received from Ms Kokke came nowhere near establishing a basis to contend that she could not reasonably participate in the performance plan for medical reasons. Nor is there any other evidence in this matter that bears out any such reason, or any other legitimate reason to refuse to accept the performance plan, or to defy the other directions. In particular, I reject Ms Kokke’s suggestion that an eye condition causing hypersensitivity to light justified any of her refusals to follow directions. And I find that there is no evidence that shows or even suggests that the company or its managers behaved inappropriately towards her. There is nothing to indicate that the proposed performance plan was unreasonable. There was no reasonable basis for Ms Kokke to refuse to participate in connections team chats or to attend the office two days a week during the plan. [10] Ms Kokke subjectively believes that she has been wronged, but in my view she has lost perspective. This is partly because she believes, as she said to Momentum, that she is not required to accept anybody else’s perceptions. Yet she expects other people to accept hers. Ms Kokke openly defied the directions of her employer, including its efforts to address concerns about her conduct. This was a valid reason for the company to dismiss her. It also constituted serious misconduct, because it was a breach of a fundamental term of the contract of employment. Momentum was entitled to summarily dismiss her. [11] Mr Joseph’s letter of 27 March 2024 advised Ms Kokke that her employment had ended because she had failed to follow lawful and reasonable directions. Ms Kokke was thereby notified of the valid reason for dismissal (s 387(b)). She was also afforded ample opportunity -- 3 of 4 -- [2024] FWC 1710 4 to respond to the reasons for dismissal through the show cause process (s 387(c)). There was no unreasonable refusal by Momentum of a request for a support person (s 387(d)). The dismissal related to conduct, not performance, therefore s 387(e) (whether the employee was warned about poor performance) is not strictly relevant. However, I note that, contrary to Ms Kokke’s submission on this point, she was in any event warned about the potential consequences of her conduct. The considerations in ss 387(f) and (g) carry no weight, as the employer is a large organisation. As to s 387(h), I take account of the fact that the company could have decided to make no payment in lieu of notice to Ms Kokke, but instead decided, generously in my view, to give her four weeks’ pay. I also note that Ms Kokke had worked for the company for some four years. [12] Ms Kokke will not see reflected in this decision the detail that makes up the vast bulk of materials that she filed in this matter. It is not necessary to recite it. It suffices to focus on the essential facts, which are these: Ms Kokke repeatedly refused to follow her employer’s directions, including that she participate in a plan to improve her behaviour. Although Ms Kokke believed that her refusals were justified, she was wrong, because the directions were both lawful and reasonable. [13] Taking into account the considerations in s 387, I conclude that Ms Kokke’s dismissal was not harsh, unjust, or unreasonable. It was therefore not unfair. The application is dismissed. DEPUTY PRESIDENT Appearances: A. Kokke for herself K. Vermey for Momentum Energy Pty Ltd Hearing details: 2024 Melbourne 26 June Printed by authority of the Commonwealth Government Printer <PR776536> -- 4 of 4 --