Campbell v Australian Insurance Holdings Pty Ltd (No. B1115 of 2003) [2004] QIRC 8 (2004) 175 QGIG 333

30 January, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 333 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Mr Allan John Campbell AND Australian Insurance Holdings Pty Ltd (No. B1115 of 2003) DEPUTY PRESIDENT SWAN 15 January 2004 DECISION Mr Allan Campbell was employed as a Sales Manager for Australian Insurance Holdings Pty Ltd (the respondent) from June 2001 to June 2003. This position was of a full-time nature and Mr Campbell’s employment was governed by a written contract of employment. Upon termination of employment, Mr Campbell was paid one extra months payment. Some three weeks post termination of employment, Mr Campbell found alternate employment, earning, when taking all factors into account, similar remuneration to that which had been paid to him by the respondent. In the respondent’s “Final Written Warning” issued to the applicant on 29 May 2003, the following, inter alia, was stated: “You have received more than sufficient communication and warnings in regard to your failure to meet the weekly Call Observation requirements within your team. You have only completed the requirements 11 times in the last 32 weeks you have worked. This is not only completely unacceptable, but far short of the workload of your colleagues in the same role.”. In the letter of termination issued to the applicant on 20 June 2003, the respondent stated, inter alia: “You have received numerous warnings in regard to your non performance as a Sales Manager. It is in light of this non performance that the company has taken the decision to terminate your employment forthwith.”. Against this background, the applicant’s claim is as follows: • The applicant challenged the number of hours he was required to work per week. His pay slip indicated that he had worked 38 hours and the applicant stated that “Due to not working the extra hours it makes it very difficult to complete the required workload to the best of my ability.” • When considering the respondent’s “key performance indicators”, the applicant believed that he was the top performer on a number of occasions. • Evidence that call observations were performed was shown on a sheet which was signed off by consultants on a weekly basis. There had been no auditing of these sheets to establish the authenticity of such observations having been made. It was suggested by the applicant that some managers may have signed the sheets without actually fulfilling the duties required of them. • During his first warning interview, the applicant complained that he was not permitted to have his own witness present. A typed copy of the transcript of this meeting was produced but the applicant believed that it did not contain all of the detail discussed at the meeting. When asked for a copy of the original shorthand notes which had been taken, the applicant was refused a copy. It had been stated in the meeting, according to the applicant, that one employee had made negative comments regarding his performance. Upon discussing this with the employee after the meeting, the applicant claims that the employee had denied any knowledge of making detrimental statements about the applicant. • Difficulties had arisen between the applicant and Mr Derek Perkins, Sales Director, over the reprimanding of an employee in the applicant’s team. Mr Perkins had instructed the applicant to discipline this employee, but the applicant had refused to do so because he did not believe that the employee deserved such discipline. The applicant had some sympathy for the employee and stated that: “…as Ian was already under a number of warnings, I did not wish to issue another one unless it was 100% valid and had the support of our call quality area, which this one did not.”. Eventually, Mr Perkins met with the applicant and, after repeating his request three times, the applicant did agree to issue the warning. • Around the time of his dismissal, the applicant had been assisting the respondent prepare its case against an unfair dismissal claim which had been lodged by a former employee. The applicant says that about this time, that employee had withdrawn their claim and about an hour after his services were no longer required, he faced his own dismissal. In the applicant’s view, the trigger for the dismissal came in the respondent’s statement that he had “poorly completed” his one-to-one form. -- 1 of 3 -- 334 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 January, 2004 • In terms of his one-to-one form, the applicant states that he had not been instructed as to what specific details were required to be completed on these forms. He was also unaware that failure to appropriately fill out one of these forms could lead to his dismissal. • The applicant stated that there were other managers who had failed to do sufficient call observations and who had also failed to complete monthly one-on-one forms on many occasions. No disciplinary action had been taken against these managers. • The applicant believed that Mr Perkins had a history of relentlessly pursuing those in the company that he disliked. • The applicant believed that part of the difficulty he faced with Mr Perkins related to his highlighting deficiencies in a performance based system which had been introduced by the respondent. Whilst other managers accepted the concerns which had been raised by the applicant, he believed that Mr Perkins saw him as “a ringleader, a negative influence and a troublemaker”. • The applicant states that he had a good record of performance with the respondent and that he was well liked by staff and peers. In terms of the various warnings which had issued, he stated that: “The warnings have serious flaws including not offering a witness, fabrication of content and dismissal over an error never raised before.”. In response to these claims, Mr Perkins responded as follows: • The hours of work question was resolved by referring to the contract of employment which stated that an employee was to work “such reasonable hours as are necessary for the efficient operations of the employer’s business”. • An integral part of the respondent’s business was that of call observations. Managers were required to report a minimum of one call per week for experienced sales consultants and two per week for less performing or new consultants. • On 16 May 2002, all Sales Managers were advised that “this is an immediate requirement of the job with zero flexibility”. The applicant appeared to hold some deep seated opposition to this process. • The applicant continuously disregarded this instruction (see the number of e-mails tendered in evidence around the point). • Further issues were raised with the applicant and he continued to show his unwillingness to perform his duties to the standard required. • Reference was made to further warnings given to the applicant about issuing a warning to one of his consultants; his failure to monitor the performance of a sales consultant; failure to undertake call observations and the inadequacy of completing documents relating to one-to-one interviews with his consultants. • In all, for a significant period of time, the applicant had been advised of his shortcomings, been given instructions as to how to rectify these problems, but had failed to observe these instructions. There had been no other option but to terminate his services. These views were largely supported by the other respondent witness, Mr Timothy Breen who held the position of Manager, Sales. • Adding specific detail to the complaints concerning the applicant, Mr Breen stated that: “Allan did not complete his call observations on 25 weeks out of the 36 weeks that I have been tracking the Call Observations for the Sales Managers.”. • Mr Breen explained how he had held a meeting with the Sales Managers in the previous year where it was clearly explained how the one-to-one documents should be filled out. Generally speaking, it was stated that Mr Campbell had made very little effort to ever comply with the respondent’s instructions as to how to perform his duties. There is little doubt from all of the material before me that the applicant was on notice for a considerable period of time that there was dissatisfaction with his lack of compliance with requests from the Sales Director. The extensive use of the e-mail system between both parties shows the extent to which such dissatisfaction occurred. E-mails can be an efficient mode of communication but can also be potentially damaging for users. Once written (often on the spur of the moment) and sent (often quickly), they can’t be withdrawn and the process leaves little opportunity for reflection which might normally occur were one to rely upon more conventional means of communication. Nonetheless, that is what occurred in this instance. In my view, oral communication between colleagues allows one to reflect upon responses and to qualify statements if required but for some reason it appears as if this approach wasn’t utilised to any great extent. One is left with little else than to consider the e-mails, amongst other things. There is little question that the applicant failed to follow direct instructions with regard to warning one of his consultants. The applicant initially posed a perfectly reasonable proposition to Mr Perkins around the issue, but at the end of the day, Mr Perkins insisted upon a particular approach. This was not followed. As well, in terms of the requirement to perform certain duties (i.e. one-to-one instructions), the applicant appeared determined to ignore the requirements of Mr Perkins. Were the demands only made of the applicant, he may have had cause to complain. The demands, from the documentation which I have viewed, applied to all Sales Managers. There may well have been leniency afforded to other Sales Managers for deficiencies in their performance, but it appears that because of the degree of non-compliance on the applicant’s part, Mr Perkins may have taken a stronger stand with him. The applicant had complained that the hours of work required of him were excessive and that, with a young family, he was unable to stay at work as long as some of his colleagues. A point must be reached where one is deemed to have worked a “reasonable” number of hours for the week. In this instance, I believe that the applicant worked reasonable hours for the week but unfortunately, was unable to perform the duties required of him in that time period. There is no direct evidence before me to show what hours other Sales Managers worked. Having said that, the hours question was not the trigger for much of the complaint against the applicant. It was more a question of his non-compliance with specific directions from Mr Perkins. It is clear from the documentation in evidence that an ongoing battle existed between the applicant and Mr Perkins. The applicant, in his position, had every right to query approaches taken by the respondent, but a continued course of obfuscation and refusal to carry out lawfully made instructions on the applicant’s part made this approach unworkable. There was nothing ambiguous about Mr Perkins’ authority to issue such instructions. As well, and of considerable significance, was the corroborating evidence from Mr Breen supporting Mr Perkins’ evidence. In all, the applicant had enjoyed a lengthy period of time in which to respond to the respondent’s demands in a positive manner. He had refused to do this and suffered the consequence of termination of employment. -- 2 of 3 -- 30 January, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 335 The applicant advised that he had found alternate employment and were he to consider his losses in a monetary sense, then he might have lost one week’s pay. The applicant states that he is more concerned about his loss of a management position and that it would take him some time in which to find a comparable position. I have not found the termination of the applicant’s employment to have been so harsh as to permit the Commission to intervene in the respondent’s decision to act in such a manner. I dismiss the application. Order Accordingly D. A. SWAN, Deputy President. Appearances: Hearing Details Mr A. J. Campbell the Applicant. Mr L. French of Redwing Consulting for Australian Insurance Holdings Pty Ltd. -- 3 of 3 --