CSL has been ordered to pay eight weeks’ salary to a brand manager after it was found he was wrongly dismissed
The termination was made against a background of alleged poor performance, sexual harassment and running an online sex toy shop on the part of the dismissed employee.
The brand manager started work in July 2015 at CSL subsidiary Seqirus, but by mid-2016 there were signs of trouble as his relationship with his direct manager became strained.
While he had passed his probationary period, during this period his manager and her own manager had discussed whether his was suitable for the role; there were concerns that he “had an inability to meet his position objectives on his own,” and “took issue” with his manager when asked about his progress against objectives, noted Fair Work Commissioner Nick Wilson.
By August 2016, an “Action Plan” was implemented with a focus on improving areas such as planning, time management, presentation skills and working effectively together. This was in line with CSL’s four-stage approach to dealing with unsatisfactory behaviour or performance.
By September the brand manager had made a formal complaint of bullying against his manager, alleging that she claimed to be “fatist” (biased against overweight and obese people) and that she said if she had known the brand manager was a smoker, she would not have hired him. These allegations among others were found to be substantiated by CSL’s consulting group which investigated the allegations.
However his allegation that she suggested he suffered from dementia was only partly substantiated, and other allegations, such as that she deliberately excluded him from events, were found to be unsubstantiated. CSL changed its line of reporting and told him the matter would be discussed with her.
However, he was then told to attend a formal disciplinary meeting regarding his own conduct.
“A meeting of sorts” was held about performance issues during which the brand manager said he had a medical certificate for personal illness. The meeting was suspended, and the brand manager left the premises and did not return again, using up paid personal leave and supplying medical certificates.
By 10 November, his solicitor had contacted CSL saying it was unreasonable to subject him to performance management and that CSL was “seeming to be waiting for the first available opportunity to terminate [his] employment because of workplace rights he had or had exercised or proposed to exercise”.
CSL replied rejecting the allegations and outlining allegations of its own.
These included recording an August conversation between himself and his manager; recording a conversation between himself and another stakeholder; ignoring direction from his former manager; and breaching his contract by selling sex toys.
Seqirus also said it was in the process of investigating allegations from his former manager that he had harassed and sexually harassed her.
He claimed he had already told her that he was engaged in an “external hobby interest” business when he was first interviewed, but CSL replied that this was not the case and that it was “disappointed at the clear lack of cooperation, unwillingness to be forthcoming and find it difficult to conclude he has been honest”.
On 6 January 2017 CSL again tried to contact the brand manager via a letter, seeking information about his return to work and asking him to attend a meeting with his medical assessment and certificates for absence.
He failed to attend, which he said was because he was at his parents’ house and not collecting his own mail, and because he was not in a fit mental state to read and act upon the request to meet.
It was decided that the extended unexplained absence was unacceptable, and that there was “no expectation” of hearing from him or receiving a medical certificate.
He was then terminated.
The brand manager’s contract of employment restricted his capacity to engage in private business or other employment, which meant his actions selling the sex devices were “potentially in conflict” with his contract, Mr Wilson noted.
“However, the scale of those businesses together with the absence of a major conflict of interest between those activities and his work for CSL in and of themselves would likely not be reasons for dismissal, although of course that would have to be a subject of detailed enquiry,” he said.
“So why then did CSL likely form the view that because of his extracurricular activities [the brand manager] had to go?”
The most likely answer lay within “a copy of [his] ‘snaapit’ and eBay stores and comprising 58 pages of the things sold by him, many of which are adult products, covering an extensive range of adult pleasure exotica such as vibrators, dildos, butt plugs, and other sex devices and toys.”
The brand manager responded to CSL on 9 December 2016 and conceded “that he runs an online store selling a variety of items, the predominant items being bedlinen”.
“The response, however did not refer to the store selling adult pleasure goods; it is fair to say from perusal of the items that bedlinen (even of an adult type) does not feature to any great extent, if at all.”
The former brand manager submitted evidence that the sales made from the eBay store were incidental.
“In the three months prior to the hearing he sold goods to the value of $2,809. The cost of goods sold (including eBay charges) was $2,328, leaving a gross profit of $481. There is no specific evidence before the Commission about the revenue stream that may have come from the snaapit site,” the Commissioner said.
“Reasonably if CSL considered the running of either the snaapit site or an eBay store was in breach of its employment contract it could have told him that with an ‘end it now’ directive and that could have been the end of the matter.
“However, in the context of both the evidence in relation to the allegation about [the brand manager’s] extracurricular activities as well as the other allegations that were made against him, the Commission is drawn to the probability that from the time CSL found out about the stores and what they sold, it had already made the decision to part company with him.
“None of the reasons for dismissal considered by the Commission, stated or likely, amount to a sound, defensible or well-founded reason for the termination of [the brand manager’s] employment,” Mr Wilson noted.
“In all respects the Commission finds that CSL acted to terminate the employment of [the brand manager] without there being a valid reason for his dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees).”
However, it said his continued employment at CSL (if he had not been dismissed at the time) would have likely been around six weeks to three months.
CSL was ordered to compensate the brand manager via a payment of eight weeks’ compensation at his former salary of $3,039 a week, plus 9.5% superannuation, which was to be paid to his fund.