s.394 - Unfair dismissal

The Trustee For The Trimatic Management Services Unit Trust

Application made pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy- Application dismissed.

• [1] Mr Aakar Mankad has made an unfair dismissal against The Trustee For The Trimatic Management Services Unit Trust (the Respondent). Relevant parts of the procedural history of this matter have previously been outlined in a decision issued on 28 March 2025.[1] Amongst other things, that decision outlined the requirement for Mr Mankad to attend the Commission for a hearing listed on 2 April 2025. It also included a caution that if Mr Mankad did not attend in person, the Commission has a discretion under s.600 of the Fair Work Act 2009 (the Act) to determine the application in his absence.

• [2] Notwithstanding the 28 March 2025 decision, Mr Mankad did not attend the hearing. For its part, the Respondent presented and was represented by its Group Manager of People Operations, Ms Delwyn Rayson, and adduced evidence from Mr Rodrigo Cruz (People Adviser) and Mr Aidan Penfound (Operations Manager).

• [3] I consider that correspondence from my Chambers and the 28 March 2025 decision made it clear that Mr Mankad was required to attend the hearing on 2 April 2025 in person. In the absence of any explanation before or since outlining why he could not, I am satisfied that I should exercise the discretionary power in s.600 of the Act and determine the matter.

• [4] The application satisfies s.396(a) of the Fair Work Act 2009 (the Act), in that it was made within the 21-day period after the dismissal took effect. There is no dispute that Mr Mankad is a person protected from unfair dismissal because he had completed the applicable minimum employment period and the sum of his annual rate of earnings was less than the high-income threshold (s.396(b)). Further, it is not contended, and nor do I consider that the Respondent was a small business employer at the material times, such that consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)) is not required. Finally, it was not claimed by the Respondent and nor does the material before me suggest the dismissal was a case of genuine redundancy (s.396(d)).

Section 385 of the Act - was the dismissal unfair?

• [5] It is clear that Mr Mankad was dismissed on 20 November 2024 (s.385(a)) and, as outlined above, this is not a matter that involves a small business and the requirement to consider whether Mr Mankad's dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)). Nor is it a matter requiring consideration of whether or not the dismissal was a case of genuine redundancy (s.385(d)). I am, however, required to determine whether Mr Mankad's dismissal was harsh, unjust or unreasonable (s.385(b)). This requires me to take into account the criteria outlined in s.387 of the Act. I will do so below.

• [6] Mr Mankad commenced employment with the Respondent in October 2022 and at the time of his dismissal, held the position of IAG Claims Consultant RIA Motor. In this role, Mr Mankad mainly received inbound calls from individuals holding motor vehicle insurance policies with IAG (customers). The customers with whom Mr Mankad dealt had an insurance claim assessed as either a high impact claim, or a total loss. Mr Mankad's line manager was Ms Amber Lee Walker, who in turn reported to Mr Penfound. Mr Mankad's position description[2] was verified by Mr Penfound and I have noted it included such key accountabilities as:

1. Delivering a premium customer experience on every contact, regardless of the contact outcome.
2. Being courteous and respectful to customers, colleagues and IAG employees at all times.
3. Maintaining a calm, professional tone and attitude towards the customer when interacting to resolve customer objections, complaints or concerns.
4. Ensuring that customer expectations are managed correctly and that commitments are actioned with transparency and credibility.
5. Exercising care and diligence when managing claims, ensuring that the claims correspond with the correct policy and that all records are updated during each key point within the claims management process.
6. Resolving customer queries at first contact, to the satisfaction of the customer.
7. Acting as a positive brand ambassador for TSA and IAG.
8. Effectively managing inbound queues as required.
9. Ensuring availability and readiness to take calls when required.
10. Maintaining an acceptable (minimal) transfer rate, that meets company expectations.
11. Resolving customer queries, in alignment with company expectations.
12. Adhering to all TSA and IAG guidelines, processes and procedures.
13. Maintaining quality of work across all operational areas as per business requirements.
14. Adhering to all elements of TSA's Compliance and Coaching Checklist.

• [7] I have also noted the Respondent's Code of Conduct required Mr Mankad to exercise integrity, fairness, equity, proper courtesy, consideration, and sensitivity in dealing with clients, customers, employees, contractors, and other stakeholders.[3] Mr Mankad was also required to refrain from unprofessional conduct.[4] Further, the Respondent's Compliance policy[5] outlined that Mr Mankad was expected to both interact with customers in a manner that provided an exceptional customer experience and relay important information, so that the Respondent was adhering to its legal requirements and contractual obligations. Call quality guidelines applied to Mr Mankad in support of these objectives.

• [8] Records produced by the Respondent to the Commission indicate:

1. On 2 January 2024, Mr Mankad received coaching from Ms Walker regarding professionalism and 'work avoidance'.
2. On 5 January 2024, Mr Mankad received coaching that emphasised the need to call customers back if a call was disconnected.
3. On 16 January 2024, Mr Mankad received coaching in techniques to be applied when handling difficult calls, which focussed on ensuring that he did not talk over customers.
4. On 8 April 2024, Mr Mankad was addressed in relation to the manner in which he was interacting with colleagues.
5. On 20 August 2024, Mr Mankad completed refresher training regarding complaints.

• 6. On 17 September 2024, a conversation was had with Mr Mankad in relation to a telephone call in which it was considered that Mr Mankad had provided unsatisfactory service comprising multiple 'long holds', periods of silence and unsatisfactory information. [6]

• [9] There was unchallenged evidence from Mr Penfound that Mr Mankad received informal and formal feedback during 2024, including 17 documented coaching sessions addressing performance concerns, compliance and deficiencies in his professionalism. I have also noted that the Respondent issued Mr Mankad with a Final Letter of Warning dated 19 September 2024 which:

1. asserted Mr Mankad had engaged in both unprofessional conduct and work avoidance on 16 September 2024;
2. documented prior instances of similar behaviour occurring between 22 November 2023 and 16 September 2024;
3. noted that Mr Mankad had provided a response which had been considered;
4. outlined that the Respondent deemed Mr Mankad's conduct as non-compliant with his position description and the Respondent's policies and procedures and code of conduct;
5. foreshadowed training and coaching as a response; and
6. confirmed that further ongoing incidents of misconduct might lead to disciplinary action, including termination of employment.

• [10] Mr Penfound gave evidence that following this, performance and conduct issues persisted despite multiple coaching sessions and coaching.

• [11] In a show cause letter dated 6 November 2024,[7] the Respondent asserted that 6 further instances of unprofessional conduct and compliance breaches occurred between 17 September 2024 and 29 October 2024 and that there had been 26 instances of customer feedback since 20 September 2024 in which dissatisfaction had been expressed. There were two meetings held on 6 November 2024 that were the precursor to the show cause letter. During the break between these meetings, Mr Mankad had provided a written response in which he gave a qualified commitment to work on his professionalism and tone. The Respondent determined that this response fell short of an acceptance of full accountability. Having weighed Mr Mankad's behaviour and response, the Respondent considered there to have been repeated, unacceptable conduct. The Respondent outlined its determination in the show cause letter, asserting that Mr Mankad had:

1. committed a serious breach of the professional conduct expected of him;
2. violated core values;
3. undermined the trust that had been placed in him;
4. compromised the Respondent's commitment to customer service and a respectful environment; and
5. behaved in a manner that reflected poorly on the Respondent and IAG.

• [12] The Respondent advised Mr Mankad in the show cause letter that it was proposing to terminate his employment on the basis of unprofessional behaviour and compliance breaches. Mr Mankad was invited to provide a written response and any further information he wished the Respondent to consider by 1.30pm on 8 November 2024. The Respondent advised that this would be considered before any decision was made and cautioned that if there was no response from Mr Mankad, it would proceed to make a decision based on the information it already possessed.

• [13] In an email sent at 4.38am on 13 November 2024, Mr Mankad asserted that he had been given an inadequate period within which to respond and that the Respondent had failed to provide him with supporting evidence or recordings. Mr Mankad requested a further period of 5 business days within which to respond. Mr Cruz replied at 8.35am that day, referencing an earlier granting of an extension (i.e. from 8 November 2024 to 13 November 2024) and stating that all the incidents referenced in the show cause letter were incidents that Mr Penfound had discussed with Mr Mankad on 6 November 2024. Mr Cruz requested that Mr Mankad advise as to whether he required further information in relation to any particular incident. There was no evidence from Mr Mankad to rebut the assertions of Mr Cruz and Mr Penfound that he neither followed up nor requested further additional details. It also appears Mr Mankad was absent from work on personal leave until 20 November 2024 and that he did not provide a written response to the show cause letter.

• [14] Mr Penfound gave evidence that he held a further meeting with Mr Mankad on 20 November 2024, at which he gave Mr Mankad another opportunity to respond to the show cause letter and asked him whether he had any questions or required further details. Mr Penfound's unchallenged evidence was that Mr Mankad refused to provide a response.

• [15] Mr Mankad was advised by Mr Penfound that his employment was terminated in the 20 November 2024 meeting due to his unprofessional conduct and compliance breaches during call handling. This was confirmed in a letter dated 21 November 2024 (Termination letter). The Termination letter outlined the Respondent's finding that Mr Mankad had failed to adhere to its Code of Conduct in various respects, asserting there had been deficiencies associated with his professional conduct, IAG risk standards and TMS compliance policy, and key responsibility areas (KRAs) within his position description (customer, quality and compliance, call quality process and team culture). The Termination letter documented the asserted breaches, the feedback that had been received regarding Mr Mankad, efforts made by the Respondent to address Mr Mankad's behaviour and the process it had undertaken in response.

• [16] The Termination letter further outlined:

1. The Respondent's assertion that Mr Mankad's actions were not aligned with its core values and that they constituted a clear violation of its Code of Conduct, Compliance Risk Standards, Compliance policy and KRAs;

1. The Respondent's advice that it no longer had any trust or confidence in Mr Mankad's ability to perform his role with the required skill, compliance or professionalism; and

1. The Respondent's decision to terminate Mr Mankad's employment with immediate effect and the payment of any outstanding entitlements plus two weeks' pay in lieu of notice.

Was there a valid reason for dismissal relating to Mr Mankad's capacity or conduct? - s.387(a) of the Act

• [17] In considering s387(a) of the Act, the Commission is required to take into account whether there was a valid reason for the dismissal related to Mr Mankad's capacity or conduct. As outlined above, Mr Mankad did not attend the hearing. There is therefore no sworn testimony from him. There is before the Commission a Form F2 - Unfair Dismissal application (Form F2) that was prepared and filed on Mr Mankad's behalf by Unfair Dismissal Experts Pty Ltd, his former representatives. The content of the Form F2 is not persuasive because it was not the subject of sworn evidence and could not be tested. It is claimed in the Form F2 that Mr Mankad was not advised, either formally or informally, that there were concerns about the quality of his customer service, and yet the Form F2 subsequently referenced correspondence sent by Mr Cruz "accusing" Mr Mankad of "breaching, protocol, engaging in work avoidance, and failing to act professionally." This, amongst other deficiencies, undermines the persuasiveness of the Form F2.

• [18] The only material Mr Mankad provided to the Commission in response to the directions of Commissioner Johns was an email dated 6 March 2025. The contents of this email could not be tested, and I therefore prefer the evidence given at the hearing by Mr Cruz and Mr Penfound.

• [19] Having regard to the evidence before the Commission, I am satisfied there was a valid reason for Mr Mankad's dismissal relating to his capacity and conduct. I am satisfied that the conduct documented by the Respondent and attested to by Mr Cruz and Mr Penfound occurred. Further, I consider the documented conduct gave rise to a sufficient number of concerns about Mr Mankad's performance at work and was of a nature that justified his termination. The unchallenged evidence before me was that Mr Mankad was unsuited to the role of a claims consultant. It established that Mr Mankad was consistently rude and did not treat customers with professionalism, that he was indifferent to the needs of customers and lacked attention to detail, and that he did not follow proper and required processes. By delivering consistently poor customer service over an extended period of time, Mr Mankad engaged in conduct that was contrary to the accountabilities outlined in his position description and requirements in the Code of Conduct. I consider it reasonable to conclude that Mr Mankad's conduct would have undermined the reputation of both his employer and IAG. I am therefore satisfied there were sound, defensible and well-founded reasons for Mr Mankad's dismissal. That I have concluded there was a valid reason for Mr Mankad's dismissal related to his capacity and conduct weighs in favour of a finding that his dismissal was not unfair.

Notification of 'that reason' - s.387(b) of the Act

• [20] Consideration of s.387(b) of the Act in this matter requires asking whether Mr Mankad was notified of "that reason", which is a reference to the valid reason referred to in s 387(a). I am satisfied that Mr Mankad was notified of the valid reason through the correspondence and discussions I have outlined above. Accordingly, in this case the s.387(b) consideration is a factor that weighs in favour of a finding that Mr Mankad's dismissal was not unfair.

Opportunity to respond to 'any reason' related to the capacity or conduct - s.387(c) of the Act

• [21] I am satisfied the correspondence and testimony of Mr Cruz and Mr Penfound establishes that Mr Mankad was given an opportunity to respond to the reasons related to capacity and conduct that the Respondent gave for his dismissal and as such, the s.387(c) consideration is not a factor that weighs in favour of a finding of unfairness.

• [22] While Mr Mankad wrote that he requested transcripts and recordings related to incidents relied upon by the Respondent, the evidence before the Commission satisfies me that the incidents the Respondent relied upon were adequately raised and discussed during the meeting Mr Mankad had with Mr Penfound on 6 November 2024 and further, that they were sufficiently described in the show cause letter. I also note that Mr Mankad did not respond when Mr Cruz enquired, in the email he sent dated 13 November 2024,[8] as to whether there was any incident about which Mr Mankad required further information. Further, I have noted the evidence of Mr Penfound that Mr Mankad refused to engage during the meeting on 20 November 2024, both when given an opportunity to provide a response to the show cause letter and when asked whether he needed further details. Finally, as outlined below, Mr Mankad received the Final Letter of Warning two month prior to his dismissal and was given coaching and feedback in the intervening period.

Any unreasonable refusal by the employer to allow a support person - s.387(d) of the Act

• [23] Mr Penfound's evidence that Mr Mankad was reminded that he had the right to bring a support person into the 20 November 2024 meeting satisfies me there was no refusal by the Respondent to allow Mr Mankad to have a support person to be present to assist at the discussions relating to the dismissal. I prefer Mr Penfound's testimony[9] to the untested assertion in the Form F2.[10] In the circumstances of this case, the s.387(d) factor is a neutral consideration.

Warnings regarding unsatisfactory performance - s.387(e) of the Act

• [24] It is claimed in the Form F2 that Mr Mankad was not issued with any written warnings during his employment and Mr Mankad similarly appeared to suggest in his 6 March 2024 email to the Commission that he received no negative feedback prior to 20 November 2024. The Final Letter of Warning dated 19 September 2024 reveals this was simply not the case. I consider the circumstances in this matter are such that the s.387(e) factor is not one that weighs in favour of a finding of unfairness.

Impact of the size of the employer on procedures followed - s.387(f) of the Act and absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g) of the Act

• [25] I have noted that the Respondent had approximately 2,900 employees at the time of Mr Mankad's dismissal and that it has submitted s.387(f) of the Act is not an applicable consideration in this case. I do not consider the Respondent's size impacted on the procedures followed in any material respect. In terms of s.387(g), I note that the Respondent has outlined that it had a human resource management specialist/expert. As such, s.387(g) is not a relevant consideration in this case.

• [26] I have noted Mr Mankad was employed by the Respondent for 2 years and that in his Form F2, it was contended that he was denied the opportunity to improve and that alternatives to dismissal should have been pursued. Against this, the Respondent's material details coaching and training that was made available to and undertaken by Mr Mankad during his employment and that multiple conversations were had about deficiencies in his performance. I have had regard to the particulars outlined above at [9] - [11]. In particular, Mr Penfound gave evidence that there were 17 documented coaching sessions with Mr Mankad during 2024 that related to performance concerns, compliance and professionalism. Having regard to the evidence before the Commission in this case, I do not consider there are s.387(h) considerations weighing in favour of a finding of unfairness.

• [27] Having made findings in relation to each matter specified in s.387 of the Act and given due weight to each, I am satisfied the dismissal of Mr Mankad was not harsh, unjust or unreasonable. Accordingly, I find that Mr Mankad's dismissal was not unfair. As I have found that Mr Mankad's dismissal was not unfair, his application for unfair dismissal remedy is dismissed. Given this conclusion, I will not issue an Order.

Ms D Rayson on behalf of The Trustee For The Trimatic Management Services Unit Trust.

[1] [2025] FWC 879, PR785643.

[2] Exhibit R5, Digital Court Book (DCB), page 74.

Printed by authority of the Commonwealth Government Printer