ERA determines if feedback session was conducted reasonably amid worker's concerns
A casual call centre employee claimed she was unjustifiably dismissed and disadvantaged when she received feedback during her fifth day of training that she was not suitable for the campaign for which she was being trained.
The employer denied dismissing the worker, saying it provided feedback in good faith and would have kept her in its pool of casual employees for future campaigns.
The worker sought compensation for hurt and humiliation and requested that a penalty be imposed for alleged breach of her employment agreement.
The dispute centered on whether a lunchroom meeting where performance concerns were raised constituted a dismissal and whether the training and feedback process was reasonable.
Employment arrangement and training commencement
The worker was briefly employed by the employer pursuant to a casual individual employment agreement.
The employer operates a call centre running inbound and outbound campaigns for clients, with work volume and type fluctuating based on client needs.
The employer maintained a pool of casual workers it could call upon when client demand required, either for existing clients' customer call volume or discrete campaigns requiring additional call centre workers.
The worker had experience working in roles she considered likely to be more complex or demanding than the work offered by the employer.
When she saw the call centre role advertised, she felt her skills and experience were aligned with the requirements, so she applied.
On 29 September 2023, the worker was interviewed for a casual position as an inbound/outbound agent relating to a campaign the employer was running at the time, described as reasonably intensive in nature.
On 4 October 2023, the employer's office administrator sent the worker a proposed employment agreement, along with guidelines, policies, and procedures, which the worker signed on 9 October 2023.
The email stated training would run Monday to Friday from 16 October at 11am to 4pm, which became the period of casual employment.
The agreement labeled the position as Inbound/Outbound Agent and described the employment relationship as casual in nature, stating each shift was a separate engagement with no guarantee of further employment following any period of work being completed.
Training week and performance concerns
On Monday, 16 October 2023, the worker started training with one other trainee under an experienced trainer.
The campaign related to an Australian customer providing roadside assistance services, with members calling a phone number answered by the employer's employees.
This meant call centre staff would be speaking to the client's customers while they were under stress, facing urgent issues such as arranging tow trucks or mechanics.
The first three days' training was predominantly theoretical, involving the trainer talking to trainees about the campaign and the employer's systems.
The next two days, Thursday and Friday, were practical involving role plays and live phone calls with customers.
The trainer said she tried to provide feedback to trainees as the week progressed, including during roleplay scenarios.
The worker said she received positive feedback on Thursday, and her relationship with the trainer was generally friendly.
During the first part of the Friday shift, the worker took a number of live calls conducted under the trainer's supervision, either by listening in on the call or standing nearby.
The trainer said she gave tips and encouragement as the calls progressed, but considered that, despite her support, the worker was not doing well on the calls.
She said the worker seemed very nervous and had difficulty typing notes, and on one occasion, the trainer felt she needed to step in to conduct a call because the worker was not doing an adequate job dealing with the caller.
The lunchroom feedback meeting
Given the trainer's reservations regarding the worker's performance on live calls, the employer decided it was appropriate to sit with the worker and provide its view that she was not demonstrating the abilities it considered necessary to work on the campaign.
The meeting to deliver this message involved the office administrator, the trainer and the worker, taking place in the office's lunchroom on Friday, 20 October 2023 and lasting about 15 minutes.
The worker's evidence was that there were no others in the lunchroom, but she could see a fellow trainee through the window.
Given that the lunchroom had no door, she felt others could have heard the conversation, though no evidence was provided to the Authority that the conversation was, in fact, overheard.
The trainer told the Authority the conversation was unlikely to have been heard by others because of how the conversation occurred and the office layout, and that she was concerned about how the worker would experience the conversation and wanted her to "feel OK about the whole thing."
When the administrator asked the worker during the meeting how she was finding things, the worker said it was "overwhelming."
The trainer then said, "It wasn't personal," but she did not think the worker was up to working on the campaign she had been training for.
The trainer told the Authority she did not have any issue with the worker personally and was prepared to consider her for future work on other assignments, but that she thought the worker did not have the capability required for the roadside assist campaign.
Meeting aftermath and communications
Toward the conclusion of the meeting, the trainer told the worker she could go home if she wished rather than completing the afternoon's training, to which the worker responded that she would prefer to stay at work even if on an unpaid basis.
The trainer told the Authority she had been trying to be kind by offering the worker the opportunity to go home and did not mind that the worker wanted to stay for the afternoon.
The worker remained at work for the balance of her shift, observing the other trainee, but did not participate in any further calls, and was paid for this time.
The worker told the Authority she was upset by the conversation because she believed she was being hired to work on the roadside assist campaign and that the employer had not done enough to ensure she was trained to perform the work.
She described feeling shocked and upset on and after the journey home, and a deep sense of embarrassment at the employer's assessment of her abilities.
On 31 October 2023, the worker received an automated email from the employer's payroll system and sent the administrator an email asking how to deal with it.
When the administrator responded to say the payroll email was a notification that time logs for training hours had been entered and approved, the worker responded, asking that her details be deleted from the employer's system. Later that evening, the worker emailed again, saying she intended to raise a personal grievance.
Authority's determination on employment ending
The ERA found that during the investigation meeting, the worker clarified she accepted she was a casual employee, which was consistent with the employer's position, the agreement and the employer's behavior in all circumstances.
Given that the worker was a casual employee, it was within the employer's discretion not to offer her further shifts, including whether it considered her the right person to perform work as part of the campaign.
The employer could have merely allowed the worker to complete the training shifts it had offered her and then not offered any further work.
Although such an approach may have been consistent with its rights under the agreement, the employer preferred to provide her with feedback that the campaign in question was not for her, but that she would be eligible for other casual work on more suitable campaigns.
The Authority found the employer did not wish to terminate the casual arrangement altogether and would have preferred to have retained the relevant contractual framework necessary to engage her on future occasions.
In other words, the employer would have preferred to keep the worker in its pool of casual employees, but it was the worker who terminated this arrangement by asking that the employer delete her personal information on 31 October 2023.
Claims regarding training and disadvantage
The worker claimed she was unjustifiably disadvantaged because the training she received did not reflect a sufficiently identifiable standard, and she was not given adequate feedback on how she was going or an opportunity to comment on that feedback.
The Authority found the level of training provided was reasonable in all circumstances, with the trainer suitably qualified and the training proceeding in a reasonable manner.
The worker was provided with feedback on a dynamic basis as training progressed, as was appropriate in the circumstances.
The worker further claimed the lunchroom meeting was unreasonable because it took place in a "public" area, and she was humiliated by the feedback she received.
She said loud voices were used while negative feedback was insensitively delivered, and that the employer should have raised its concerns with her before stopping her training.
The ERA found that, given the sensitivity of the feedback being provided, it may have been better for it to have been delivered in an environment in which the worker would have been confident that no one else could have heard, though it considered it unlikely the lunchroom conversation was in fact overheard by anyone else.
The Authority determined the feedback being given was not in the nature of a formal performance process, but rather to inform the worker that the way the live calls had gone meant future offers of work on the campaign would not be forthcoming.
The employer was entitled to provide the worker with this view and did so in a manner which was reasonable in all the circumstances.
Accordingly, the worker was not unjustifiably disadvantaged by the employer in the course of her employment.
Employment agreement breach claims
The worker claimed the employer breached clause 17 of the agreement, which stated that as the agreement related to casual employment, the employee was not entitled to notice if their employment was to be terminated at the end of a shift, nor any entitlement to redundancy.
The clause also provided that the employer may terminate the agreement without notice in the case of serious misconduct.
The worker claimed the employer breached this clause because she said she should have been given notice about the lunchroom meeting in order to be able to prepare for it and because the employer was required to have cause "before acting against her."
The ERA found the worker failed to establish she was dismissed, and given the overall circumstances and casual nature of the employment relationship, it was reasonable for the employer to conduct the feedback session in the way it did.
Prior notice was not required, and no allegations were put to the worker of any kind of misconduct.
The Authority determined the employer did not breach clause 17 of the agreement, and given this finding, no penalty should be imposed on the employer.
The worker had not established her personal grievance claims, and accordingly, no orders were made. Costs were reserved, with parties encouraged to resolve any issues of the expenses between themselves.
