Simon Jonathon Ustick v GIO Australia [1995] IRCA 418

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1587 of 1995 B E T W E E N : SIMON JONATHON USTICK Applicant AND GIO AUSTRALIA Respondent Before: Judicial Registrar Fleming Place: Melbourne Date: 17 August 1995 REASONS FOR DECISION Background The Applicant Simon J Ustick is 27 years old. He commenced employment with GIO as a casual telemarketer on 12 January 1994. Mr Ustick signed an employment contract on 18 January 1994 (Exhibit 1) which sets out the terms and conditions of his employment. At the time of signing the employment contract Mr Ustick was undertaking final year tertiary education at Victoria University and he had 16 contact hours at University and was performing about 27˝ hours of employment at the Respondent. The Respondent provides a telephone service to customers seven days per week. On Sundays the telephones are operated by two staff members. The occupational health and safety requirement is that two staff be present on Sundays. The volume of work on a Sunday is between 50-70 calls and it is more often than not that the two staff are kept busy with those calls. The measure of success is the abandonment rate, that is, if calls are lost. Evidence was given that an acceptable abandonment rate was 5% and in relation to waiting times for calls the standard GIO aimed for was no longer than 50 seconds (the evidence was that banks aimed for 15 seconds). Mr Ustick's duties were to answer telephone enquiries ("in-bound") and when possible provide insurance in the form of cover notes for customers. Mr Ustick was trained at the outset by the Respondent in a four week course which involved 2-3 weeks full time training and then one week of "buddy" or supervised training. In about May 1994 Mr Ustick gave evidence that he was having difficulties coping with his studies and the workload. He missed one shift but gave notice of his absence and he dropped one subject to lighten the load. In June or July 1994 Mr Ustick took two weeks leave and on his return to work and to University his hours were reduced from 27˝ hours per week to about 17 or 18 hours a week and his evidence was that these reduced hours suited him. Events Leading up to Termination On 4 November 1994 Mr Ustick failed to attend a voice training session. His evidence was that it completely slipped his mind. On that day Ms Jane Robinson who was at the time the Customer Service Manager was responsible for day to day management and when Ms Miller-Smith was absent Ms Robinson would stand in as manager. Ms Robinson's evidence was that the Respondent had arranged for an "out-bound" training session on 4 November 1994. This session was to train the casual telemarketers in conducting outgoing calls. Independent training consultants were to conduct the training sessions which would consist of a voice training session and an outbound training session. The training session was held up for half an hour while they waited for Mr Ustick to arrive and Ms Miller-Smith's evidence was that it was "crucial that everyone attend". Ms Robinson had a meeting with Mr Ustick after his failure to attend. Ms Robinson was concerned that he was coming in later, 10-15 minutes later, and his attitude was "a little less than adequate" and she explained to him that the training was important and that he had been told of it in advance and if he was not going to attend he ought to have given notice. Mr La Fontaine, who was the only witness for the Applicant, did not attend this training session however he gave the Respondent four weeks notice of his intention not to attend. Ms Robinson asked Mr Ustick what seemed to be the problem and he said he was having difficulty coping with his workload given it was exam time. Ms Robinson asked him how long would it take to clear his study commitments and he replied two weeks. She then gave him two weeks leave and asked that he return to work with a new attitude. Ms Miller-Smith did not agree with the decision of Ms Robinson to give Mr Ustick the leave at this time however she supported the decision and Mr Ustick was not asked to come in over that two week period. Mr Ustick believed he was to work on Sunday 20 November 1994 however when he arrived he discovered that he was not required and he left. The next Sunday Mr Ustick was scheduled to work was 27 November 1994. On this day Mr Ustick was 45 minutes late logging on at 9.45am (Exhibit 9). His Sunday shift commenced at 9.00am. He was scheduled to work with Ms Kapsis and his evidence was that prior to his arrival she would have to field all the calls. Mr Ustick said "Ms Kapsis was visibly upset on Sunday because I was late and I recall her saying she had been unable to rely on my attendance on Sunday especially and I said it wouldn't happen again". Ms Kapsis said that she told Mr Ustick on 27 November that she "had to be able to rely on him on Sundays because there is only the two of us and he said oh fair enough". Ms Kapsis said that on this morning she was "panicky because we had quite a few calls and a few claims calls and I was a bit frazzled". The abandonment rate on 27 November 1994 was 11.1% and one caller was left waiting for 3.16 seconds (Exhibit 9). On the following Sunday 4 December 1994 Mr Ustick was again 30 minutes late logging on at 9.30am (Exhibit 9). At 9.20am Ms Kapsis rang another staff member James Attwood but he was unavailable and when Mr Ustick arrived Ms Kapsis said to him that he needed to be there at 9.00am and she said "if you are late again I will contact another employee and send you home if the other employee is here. Simon looked upset and I felt I had communicated that to him". Both on 27 November and 4 December Mr Ustick did not offer an explanation as to why he was late. On the morning on 4 December 1994 the abandonment rate was 2.8% and one customer was left waiting 1.31 seconds. The next three Sundays seemed to have been uneventful. Mr Ustick worked on Sunday 1 January 1995 and the evidence was that he received a personal phone call on that day which was relating to a disturbing family matter that upset him. Mr Ustick however managed to complete his shift on that day. On 8 January 1995 Mr Ustick did not arrive for his Sunday shift until midday. He telephoned Ms Kapsis after 9.00am and said that he would be in soon and she expected him within half an hour and as a result of that conversation Ms Kapsis did not call for a replacement. Ms Kapsis' evidence was that she was frantic. "It is a heavy responsibility when you are on your own and can't take all the calls". When Mr Ustick arrived he apologised. Ms Kapsis said to him "I am aware of your personal problems but we need to rely on you on Sunday". Mr Ustick had informed Ms Kapsis on 1 January 1995 of his family problems. Ms Kapsis informed Ms Miller-Smith that Mr Ustick was late again on Sunday 8 January and that he may want to talk to her about some personal problems he was having. On this occasion on 8 January 1995 the abandonment rate was 5.6% and the longest wait on a call was 1.34 minutes. On 9 January 1995 Ms Miller-Smith spoke to Mr Ustick "he didn't say what he had been doing on Saturday 7 January 1995 but he agreed he was irresponsible and that it would not happen again. He said he was looking for a full time position with the TAC and asked me to be a referee. I was happy to go verbal referee. The policy at GIO is that we can't write written references". Ms Miller-Smith said that Mr Ustick explained his personal problems to her and that she was "shocked and taken aback" and she asked Mr Ustick did he want GIO to seek counselling for him and he said no the family already had a counsellor and he would be fine. On 29 January 1995 Mr Ustick did not arrive at work until midday. "I woke up after a night talking and drinking with a friend. I rang Stephanie (Ms Kapsis) at about 9.20am to say that I'd be late. I attempted to wake up my friend and I must have fallen asleep again and woken up at 11.30am. I understood it was unacceptable especially when only two of us were rostered on". Ms Kapsis in the meantime had telephoned the Applicant's mother and another number in an attempt to locate him however she was unsuccessful. When Mr Ustick arrived he said to Ms Kapsis "sorry Stef I guess you won't want me working for you any more and Ms Kapsis said no I won't." Ms Kapsis said she was so upset "I couldn't trust myself to speak for fear of what I might say." Ms Kapsis' evidence was that:- "on Sunday 27 November 1994 I said if you are not happy working on a Sunday I can always reorganise the roster to accommodate you. He was eager to keep Sundays. I knew he had study and Saturday cricket. Punctuality on a Sunday is important. Sometimes there's not a lot of calls but claims calls can take longer and because I am not experienced in claims you can get 10 calls at once and you don't want to lose them. There is an obligation to answer them and we pride ourselves on customer service so there is a high standard." The abandonment rate on 29 January 1995 was 2.9% and the longest rate for a caller was 1.02 minutes. Ms Kapsis reported Mr Ustick's late arrival to Ms Miller-Smith on 29 January 1995. Ms Miller-Smith gave evidence that Ms Kapsis had said "he will not work on a Sunday ever again". The Termination On 30 January 1995 Ms Miller-Smith planned to meet with Mr Ustick. Prior to her meeting she looked at the official GIO Human Resource Manual (Exhibit 8) which set out the conditions of the employment and the minimum notice period in relation to casual employees. She telephoned Ms Robinson to confirm the events in November and then she went to Tony O'Kearney the Human Resources Manager and informed him of the situation and asked for his advice. His advice was that there were two options either she could counsel him or, terminate his employment. Ms Miller-Smith believed he had been given enough warnings and she referred to the discussion he had in November with Ms Robinson and the discussion with her on 9 January 1995. Ms Miller-Smith spoke with Mr Tuffrey from the FSU and he also said there were two options, either to counsel Mr Ustick or to terminate his employment. Ms Miller-Smith then spoke to her network manager Mr Grant and he said it was Ms Miller-Smith's decision. In the meeting with Mr Ustick on 30 January 1995 she asked Mr Ustick to explain what had occurred on Sunday 29 January and he said that he had been irresponsible and he tried to organise someone to cover for him but that he was three hours late. Ms Miller-Smith said that it was not the first time that he had been spoken to about his punctuality. She said to Mr Ustick that when we set the staff roster we ask the staff to submit their hours of availability and then we work the roster around that and the roster was prepared a month in advance. Ms Miller-Smith raised the events of 4 November 1994 and 8 January 1994 and 29 January 1994 and said that he was not reliable and she would be terminating his employment. She described Mr Ustick as shocked and silent. He asked her to reconsider and she asked him what he would do in her shoes. She said she did not reconsider because of "what he told me which was nothing." Ms Miller-Smith was aware of Mr Ustick's personal problems and had been so since 9 January 1995. Ms Miller-Smith said GIO must comply with the Occupational Health and Safety regulation and on Sunday no one is to be alone for more than one hour. The call volume on Sunday does not dictate the need for more than two staff but two staff is the minimum requirement for Sunday. Ms Miller-Smith gave evidence of the impact of absences or lateness on the staff as a whole and that it causes a problem in terms of the atmosphere in the office and also on the basis of the abandoned calls. GIO aims for an abandonment rate of no more than 5% and the call activity sheet (Exhibit 9) set out information including the abandonment rate. On the four occasions Mr Ustick was late the abandonment rate was in excess of 5% on two occasions. It was submitted by Mr Ginnane that it is impossible to quantify the cost to the Respondent of the abandoned calls in terms of lost business. Mr Ustick's sales performance was good, Exhibit B sets out the cover notes he was able to sell and in December he sold 3 cover notes and gave one quote, in January he sold 42 cover notes and gave 2 quotes so it suggests that he was able to sell business on the telephone and that if calls are abandoned business is lost. Section 170DE Section 170DE(1) prohibits an employer from terminating an employee's employment "unless there is a valid reason, or valid reasons connected with the employer's capacity or conduct or based on the operational requirements of the undertaking establishment or service." Section 170DE(2): "the reason is not valid if having regard to the employee's capacity and conduct and those operational requirements the termination is harsh, unjust or unreasonable". Section 170EDA(1) of the Act deals with the onus of proof in respect of the claim under Section 170DE(1). Section 170EDA(1) states: "if an application under s.170EA alleges that the termination of employment of an employee contravenes s.170DE(1):- (a) the termination is taken to have contravened sub-section 170DE(1) unless the employer proves that apart from sub-section 170DE(2) there was a valid reason or valid reasons for the claim referred to in sub-section 170DE(1) and (b) if the employer so proves the termination is nevertheless taken to have contravened sub-section 170DE(1) if the Applicant provides that because of sub-section 170DE(2) the reason or reasons provided by the employer were not valid." The reason given for the termination was that Mr Ustick was not punctual and could not be relied upon. He acknowledged that he was late on 27 November 1994, 8 January 1995 and 29 January 1995. He acknowledged that he had been spoken to about his lateness on each occasion. The material also proves (Exhibit 9) that he was late on 4 December 1994. He also failed to attend a training session on 4 November 1994. His lateness ranged from 30 minutes to 3 hours. He acknowledged further that only two staff were rostered on a Sunday. He was aware that if he did not arrive on time the other staff member namely Ms Kapsis would have to field all calls and there was no way of estimating the number of calls that would be. Mr Ustick was rostered on a Sunday and the roster clearly suited his study and sport commitments. This is not a case where the employer has requested that the employee work overtime and the employee for his own personal reasons does not work the overtime. Mr Ustick wanted to and was rostered to work on Sunday. He was aware that he was being relied upon by Ms Kapsis on a Sunday. The nature of the Respondent's business was that it could not forecast the volume of calls but in any event even if it could it was requested by the Occupational Health and Safety Act to have two staff on the premises on a Sunday. The abandonment rate measures the percentage of calls lost to the Respondent and there is no way to quantify the lost calls. Ms Miller-Smith was entitled to decide to dismiss Mr Ustick if she could not rely on him to attend on his rostered days especially when the rostered day was a Sunday. Ms Miller-Smith's decision was based on a valid reason based on the operational requirements of the Respondent's business. In all the circumstances I do not think the termination was substantially unfair. Section 170DC Mr Ustick was spoken to on four occasions (27 November 1994, 4 December 1994, 8 January 1995 and 29 January 1995) in relation to being late and, on one occasion for forgetting to attend a training session (4 November 1994). He was aware that it was important for him to be punctual on Sundays and he was heavily relied upon by his colleague Ms Kapsis who had valiantly performed her duties manning the office and all the phones on her own during Mr Ustick's absences. Mr Ustick was told on 8 January that the rosters were prepared in advance and he was aware that he was being relied upon. On 30 January 1995 Ms Miller-Smith made extensive enquiries in order to seek advice as to what she should be doing. She spoke with Ms Robinson, Mr Grant, Mr Tuffrey and Mr O'Kearney to ensure she was fully informed for all eventualities. She had not made a decision to terminate the employment of Mr Ustick prior to seeing him on 30 January 1995 as she was seeking advice and assessing her options. The advice she received was that she could either counsel Mr Ustick or terminate his employment. I accept her evidence that in her meeting with Mr Ustick she decided to terminate his employment only after she had ascertained his response. She said that he did nothing other than acknowledge he was late without offering an explanation. Ms Miller-Smith said she put all his episodes of lateness to him and offered him an opportunity to respond and when he did not do so she made the decision to terminate his employment. I am satisfied that the Respondent has not breached s.170DC of the Act and has given Mr Ustick an opportunity to defend himself and to respond to all the allegations. I am also satisfied that Ms Miller-Smith took into account the Applicant's personal family situation and was sympathetic to the Applicant. She went so far as on 9 January 1995 to offering him counselling. It is my view that the Respondent has done all it can do in the circumstances to assist Mr Ustick and having said that I find that, whilst the Applicant's personal problems has caused him great stress, that it is not the Respondent's responsibility to go beyond what it has already done in attempting to accommodate him. The Respondent is entitled to employ people it can rely upon and it is the court's view that the Respondent has done all it can do to assist Mr Ustick and to accord him procedural fairness. Accordingly I order that the application of Mr Ustick be dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. That the Applicant's application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding thirteen (13) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming. Associate: Dated: 17 August 1995 Applicant in person Counsel for the Respondent: Mr Ginnane Date of hearing: 20 & 21 June 1995 Date of judgment: 17 August 1995