Boyer v Telstra Corporation Limited [2010] FMCA 51 (4 February 2010)

Federal Magistrates Court of Australia

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Boyer v Telstra Corporation Limited [2010] FMCA 51 (4 February 2010)

Last Updated: 9 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BOYER v TELSTRA CORPORATION LIMITED

[2010] FMCA 51

INDUSTRIAL LAW – Application alleging dismissal for prohibited reason – alleged breaches of Trade Practices Act and other Statutes.

Workplace Relations Act 1996, ss.659, 660, 664 Trade Practices Act 1974, s.53B Criminal Code Act 1995 Corporations Act 2001

Applicant:

LAWRENCE AUGUSTINE BOYER

Respondent:

TELSTRA CORPORATION LIMITED

File Number:

MLG 310 of 2009

Judgment of:

Burchardt FM

Hearing dates:

1, 2 & 3 December 2009

Date of Last Submission:

3 December 2009

Delivered at:

Melbourne

Delivered on:

4 February 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr T. Jacobs

Solicitors for the Respondent:

Blake Dawson

ORDERS

(1) The application be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 310 of 2009

LAWRENCE AUGUSTINE BOYER

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

REASONS FOR JUDGMENT

Introductory

1. Mr Lawrence Boyer was employed by Telstra from 25 August 2008 onwards as a probationary sales consultant at Telstra’s Bigpond call centre at Burwood. His employment was terminated on 31 December 2008. Although Mr Boyer was paid one week’s pay in lieu of notice, he did not work for Telstra after that date.
2. Mr Boyer says his dismissal contravened s.659 of the Workplace Relations Act 1996 (“Workplace Relations Act”) and makes quite a number of other claims against Telstra.
3. For the reasons that follow, I think Telstra did not contravene s.659 of the Act and that none of Mr Boyer’s claims can be made out and that the application should therefore be dismissed.
4. It should be noted that this case has proceeded on the footing adopted by both parties that the Court should apply the Workplace Relations Act as in force at the relevant time.

Mr Boyer’s Claims

5. In his original application filed on 26 February 2009, Mr Boyer sought relief in a variety of forms. Some of these were, on their face, untenable. For example, Mr Boyer sought, in respect of relief for a contravention of s.661 of the Workplace Relations Act, that a fuel card be provided to him as compensation. Clearly, the Workplace Relations Act does not contemplate such relief.
6. Other matters raised included a redundancy payment, the imposition of penalties for contravention of s.660 of the Workplace Relations Act, reinstatement as a result of breach of Telstra’s Code of Conduct, payments of unpaid annual leave and pay for time worked.
7. In a statement of claim filed on 26 June 2009, Mr Boyer refined and added to his causes of action. He articulated claims under s.53B of the Trade Practices Act 1974 (“Trade Practices Act”), alleged negligence by Telstra and breach of the Criminal Code Act 1995 (“Criminal Code Act”) and the Corporations Act 2001 (“Corporations Act”).
8. It should be noted that none of those matters were particularised in any significant, or perhaps any, degree, and the defence filed on 24 July 2009 asserted, in addition to denials, that these additional aspects of the statement of claim were misconceived.

The Facts

9. Mr Boyer, as I have said, commenced employment with Telstra at Burwood on 25 August 2008. His employment was subject to a six-month probationary period and there has been no suggestion made by Mr Boyer that that term of employment in any way contravened the relevant legislation.
10. A Mr Pemberton was the sales team leader of the relevant group of sales consultants with whom Mr Boyer worked.
11. It appears that Mr Boyer had had some sales experience with another related employer and the tenor of his evidence suggested that his supervisor, Mr Pemberton, had had insufficient regard to that experience.
12. Mr Boyer acknowledged that he had made mistakes from time to time, but said that Mr Pemberton had made mountains out of molehills.
13. Mr Boyer’s position, putting the matter admittedly rather broadly, was that he was devoting more time to the calls with which he dealt because he was providing better customer service and in a more sophisticated way than those who were quicker than he was.
14. This aspect of the evidence was important. The evidence given by both Mr Pemberton and his supervisor, Ms Quinn, who were called on behalf of Telstra, was that Telstra’s concern in relation to this call centre was, inter alia, sharply focused on the amount of time each call took to complete. This was known as average handling time or AHT. Once again, putting the matter rather broadly, Mr Pemberton said that he developed a significant concern that Mr Boyer’s AHT was substantially longer than that of other employees.
15. By October and November of 2008, Mr Pemberton’s concerns had reached the point where he felt that it was necessary to intervene. On 30 October 2008, Mr Pemberton conducted a side-by-side call observation with Mr Boyer. It was Mr Pemberton’s view that the applicant did not adequately address the relevant query made to him about excess internet usage.
16. On 7 November 2008, Mr Pemberton had a coaching session with the applicant in relation to an alleged mistaken crediting by Mr Boyer of a customer for a modem, crediting him twice. Mr Pemberton’s perception was that this was a straightforward query and that Mr Boyer should have attended to it but did not.
17. On 13 November 2008, Mr Pemberton held a monthly performance review session with Mr Boyer and assessed him as not meeting expectations. Particular reference was made to Mr Boyer’s AHT. Mr Boyer gave explanations for the delay, which I believe I have characterised at least broadly correctly above. Mr Pemberton played a video which reinforced the importance of AHT.
18. On 4 December 2008, things advanced to a point where, at the next monthly performance review of the applicant, Mr Pemberton gave
    Mr Boyer a warning letter which indicated that if his performance did not improve, his employment might be terminated. That warning letter is exhibit TRP-7, and it speaks for itself.
19. Thereafter, on 10 December 2008, Mr Boyer spoke to Ms Quinn about the warning letter he had received. He asserted various things which he believed were making his AHT greater than that of other employees. This included receiving excessive dial-up calls.
20. Mr Pemberton investigated the issue of dial-up calls and decided that what Mr Boyer was saying was not correct. He thought there had only been one such call and that had been properly addressed by Mr Boyer.
21. On 17 December 2008, Mr Pemberton prepared for a coaching session with Mr Boyer and, in doing so, listened to a call where Mr Boyer had had the customer on the phone for 30 minutes. Mr Pemberton was concerned that a simple solution was available to this problem through a search engine called SmartFind which he thought Mr Boyer had been trained on and should readily have been able to access. The outcome was that, having listened to this call, Mr Pemberton decided that this would be a useful example by which to coach Mr Boyer further.
22. On the same day, 17 December 2008, Mr Pemberton, Ms Quinn and Mr Boyer met for the coaching session. The call was played to Mr Boyer. Mr Boyer’s perception was that the customer had had a good customer experience and had been given the correct solution, but this point of view was completely the opposite of Mr Pemberton’s and Ms Quinn’s perception. Ms Quinn took over the meeting and made it plain to Mr Boyer that she regarded his dealing with the call as thoroughly unsatisfactory. Ms Quinn said that she did not believe Mr Boyer’s assertion that this was a once-off mistake, but would give him the benefit of the doubt. She told Mr Boyer that Mr Pemberton would continue to monitor his calls and that if there was another example of a call like that, his employment would be terminated.
23. She said there would be another meeting in about a week’s time.
24. On 22 December 2008, Mr Pemberton again directly supervised
    Mr Boyer. During that time, he once again formed the view that
    Mr Boyer was not doing his work effectively. Mr Boyer did not agree and it seems plain that there was some contretemps between him and Mr Pemberton at that time.
25. Thereafter, Mr Pemberton approached Ms Quinn, discussed the matter with her, and they agreed that Mr Boyer was not performing adequately and should be dismissed. It was Ms Quinn’s evidence that she decided not to dismiss Mr Boyer there and then because Christmas was coming up but, rather, that this would be done after Christmas.
26. They intended to dismiss Mr Boyer on 29 December 2008.
27. On 29 December 2008, Mr Boyer phoned in sick and did so again on the following day, providing a medical certificate. The medical certificate was processed, as far as I can see, in a completely routine way.
28. On 31 December 2008, Mr Boyer attended work and Mr Pemberton took him to a meeting with Ms Quinn.
29. There is an element of dispute as to the exact order of events, but in my view the overall pattern is clear.
30. It is clear that Mr Boyer had prepared himself to an extent for the meeting, although I accept he may not have known for certain that he was going to be dismissed. He provided a number of explanations for the areas of difficulty that had been put to him by Telstra.
31. Ms Quinn, who had already decided to do so, dismissed Mr Boyer. She did in fact however concede that Mr Boyer’s attendance was good, a matter he himself had raised.
32. Thereafter, Mr Boyer was effectively escorted to his desk and in due course, off the premises. There was something of a kerfuffle as to exactly what documents Mr Boyer would be allowed to remove, but in my view, Mr Pemberton, on behalf of Telstra, did no more than insist that Telstra documentation was retained by Telstra (and in the main, it would appear, placed in a bin for destruction). It seems quite clear that Mr Boyer left with those documents that were personal to him alone.
33. Thereafter, according to Telstra, Mr Boyer’s entitlements were sent to him. He disputes whether this has indeed occurred.

The Credit of the Witnesses

34. Perhaps slightly unusually, the central facts in this case are not really the subject in my view of significant dispute. To the extent that there are differences in the recollections and evidence of the parties, these do no more than reflect their differing roles and the necessary differences of perception that are always obtained when oral evidence is given.
35. Mr Pemberton and Ms Quinn, who were the two primary witnesses called on behalf of Telstra, both gave their evidence in direct and clear fashion, notwithstanding the fact that Mr Boyer, who represented himself, put his questions to them in ways that were often somewhat confusing.
36. Mr Boyer, both in the submissions he made from the bar table and in the course of giving his evidence, presented as a person who was somewhat confused and confusing. It was often hard to discern exactly what the purport of his assertions or questions or answers were. A number of his submissions were in the form of rhetorical questions, and consisted of surmise. I have no doubt that Mr Boyer entirely believed what he was saying, but insofar as there is any conflict between his evidence and that of Mr Pemberton and Ms Quinn, I prefer the evidence of the latter. Not only was their demeanour as witnesses impressive, but what they said and did is not only inherently probable, but is confirmed by the written documentation exhibited to the Court.
37. It was Mr Boyer’s case that he had not been accorded sufficient respect by Mr Pemberton who, according to Mr Boyer, was himself somewhat inexperienced. It was also his case that Mr Pemberton’s dealing with Mr Boyer gave inappropriate and insufficient credit to Mr Boyer’s superior customer skills, and the complexity of the work that he was doing as compared to his colleagues. These assertions were roundly denied, and I accept those denials. Rather, Mr Boyer, for whatever reason, was simply unable to perform the work in the way that Telstra wanted it performed.
38. I have no doubt that Mr Boyer was indeed, as Mr Pemberton and
    Ms Quinn said, dismissed because they felt he was performing his duties inadequately.
39. I have no doubt that the absence of Mr Boyer on sick leave on 29 and 30 December 2008 played no part whatever in the decision of Telstra to dismiss Mr Boyer.

Conclusions on Mr Boyer’s Claims under s.659 of the Workplace Relations Act and the Trade Practices Act

40. For the reasons just set out, Mr Boyer’s claim under s.659 of the Workplace Relations Act must be dismissed. I am quite satisfied that Telstra has met the reverse onus prescribed by s.664 of the Workplace Relations Act. The termination was for a reason that did not include a prescribed reason under the legislation.
41. Insofar as Mr Boyer has mentioned s.53B of the Trade Practices Act, I do not think that Telstra made any pre-employment representations to him that would attract the operation of s.53B of the Trade Practices Act in the circumstances of the case as I have described them.
42. Insofar as Mr Boyer purported to rely upon s.75AZE of the Trade Practices Act, his claim in my view is completely misconceived. It is in any event wholly unparticularised and Mr Boyer made no submissions about it.

Section 660 of the Workplace Relations Act

43. Since Telstra never sought to terminate the employment of 15 or more employees, but rather dismiss Mr Boyer alone, this section can plainly have no operation. The claim is completely misconceived.

Negligence and the Erroneous Separation Certificate

44. Telstra sent a separation certificate to Centrelink and to Mr Boyer which was erroneous. This was, as I find, a clerical error which was corrected at the earliest opportunity. There is no evidence that this was a matter that caused Mr Boyer any loss or damage.

Arrears of Pay

45. Mr Boyer raised three issues under this heading. The first was whether he had been correctly paid for his first weekly pay period in the absence of relevant pay records going back to the commencement of his employment. The second was the calculation of his annual leave and the third was pay for time worked.
46. It is sufficient for these purposes in my opinion to say that I found Ms Sterjovski, who was called on behalf of Telstra, a compelling witness.
47. Ms Sterjovski was a thoughtful witness who gave her evidence in a considered and easily intelligible way.
48. Her explanation as to the issues surrounding the first pay period was entirely believable. She said that it is Telstra’s practice when somebody has not been employed before to record the first payment as a general advance, and that is quite clearly what the records of the second pay period show.
49. So far as issues of annual leave and pay for time worked are concerned, Ms Sterjovski’s explanations were, once again, entirely reasonable. The pay records of Telstra, together with Ms Sterjovski’s evidence, leave me in no doubt that Mr Boyer was not underpaid by Telstra.

Other Claims

50. The claims under the Criminal Code, the Corporations Act, the Australian Fair Pay Conditions Standard, the Superannuation Guarantee Act and the Privacy Act and also the breach of the Telstra Code of Conduct and other policies, while pleaded, were not pressed in any significant way, if at all. They were not supported on any view by the evidence and in my view were all, as Telstra submitted, misconceived and without substance.
51. The application must be dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 4 February 2010