This is a cautionary tale about sex toys, bullying and the internal workings of one of Australia’s most prominent companies on the international stage, blood products group CSL.
Andrew Saunders was a brand manager, being paid a package of $173,041 a year, at CSL in Melbourne when he complained of bullying.
This set off a train of events which, despite having most of his allegations substantiated by an independent investigator, ended in CSL sacking him.
The Fair Work Commission, in determining this was an unfair dismissal, found that CSL used a “carefully constructed strategy” to get rid of Saunders.
The investigation of the bullying allegation started well. An outside company, Papillon Consulting Group, was brought in to investigate.
The subject of the complaint was Mandi Robertson, a marketing manager and the boss of Saunders.
Saunders started at CSL in July 2015 after working in the pharmaceutical industry as a sales representative since 2002.
His job, according to the role description, was to develop and implement marketing plans in collaboration with the brand team, taking responsibility for the profitability of key products .
The company is one of Australia’s success stories. It started as the Commonwealth Serum Laboratories in 1916, listed on the ASX in 1994 has been growing as a global business ever since.
Shares in CSL, at around $130 each, are one of a handful above $100 on the local stock exchange. CSL posted a net profit after tax of $US1.34 billion for the 2017 financial year, a rise of 7.4% the previous year.
Saunders worked in CSL’s flu vaccine subsidiary, Seqirus, the second largest influenza vaccine business in the world.
Things started to fall apart about 12 months into his role. CSL gave evidence to the Fair Work Commission that it had concerns about Saunders’ performance.
By September 2016, Saunders, after talking over his concerns with colleagues, decided to make a formal complaint of bullying to CSL’s human resources department.
Here’s what had been happening, according to evidence given to the Fair Work Commission.
His boss told him he made her physically sick, that he acted like a child, that he caused misery to his colleagues and their families, that he couldn’t recognise the body language of customers, suggested he go to the doctor to see if he had Alzheimer’s, and that he was “fatist” and didn’t like fat people.
His list of allegations included that he was “inappropriately blamed” for lateness of marketing material, was not copied on important work, not invited to the national sales conference dinner (an event he initiated), told he wouldn’t have been hired if it had been known he was a smoker, and was “diminished and demeaned”.
The company says that it changed reporting lines for Saunders when the complaint was made but the commission found that there is no evidence to show this happened. Saunders gave evidence that he continued to be managed by Robertson, the subject of the complaint.
The independent investigation found that 13 of the allegations made by Saunders against his boss were substantiated, one was substantiated in part and five were unsubstantiated.
Saunders didn’t get a copy of the investigation report or any summary of why the findings were made, or told why some allegations were either not substantiated or only partially substantiated.
“As a means of inspiring confidence in the mind of a workplace bullying complainant that their complaints had been taken seriously and acted upon and that things would change in their employment for the better, the correspondence and CSL’s verbal communications to Mr Saunders failed miserably,” the commission found.
“It would be reasonable for a person receiving such correspondence about their detailed workplace bullying complaints to view the closeout letter as an endeavour to shut down the whole subject matter with the minimum possible discussion.”
Within an hour of the findings he was told by his boss’s manager, Danielle Dowell, CSL’s commercial director for pharmaceuticals, that he would be required to attend a formal “disciplinary meeting” in relation to his own conduct.
This took him by surprise. Saunders asked Dowell whether he “was being terminated”?
Dowell replied that there would be some form of disciplinary action, which could include termination due to “misconduct”.
A concerted campaign
What happened, according to Fair Work commissioner Nick Wilson, was likely “a concerted campaign to find material that could be held against him”.
Remembering, of course, that at this point a long list of complaints against his manager had been substantiated. This manager wasn’t dismissed and there is no evidence to suggest she was disciplined or counseled about her behaviour.
The next day, October 21, 2016, Saunders went to a meeting with his boss’s boss, Dowell, and Susan Jackel, the company’s employee relations/industrial relations manager.
Saunders didn’t have a support person with him and he asked that he be allowed to take the questions away to prepare a response.
The meeting went ahead anyway.
The raft of accusations against him included that he engaged in a private business (selling sex toys on eBay and Snaapit).
Evidence was later given to the Fair Work Commission that Saunders made a gross profit of $481 over three months from goods sold on eBay to the value of $2,809.
CSL submitted to the commission a list running for 58 pages of the goods sold by Saunders, covering an extensive range of adult exotica such as vibrators, dildos, and other devices and toys.
The Fair Work Commission said CSL could just have told Saundera to close the stores if it thought this was a breach of employment conditions.
But CSL had other ideas.
“In the context of both the evidence in relation to the allegation about Mr Saunders 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,” the Fair Work Commission found.
Saunders was also the subject of an unspecified complaint from his boss, Robertson, alleging harassment and “sexual harassment”.
He was told discussions were being held with “witnesses”.
Other allegations included that he had recorded a conversation with his manager.
The harassment and “sexual harassment” allegations were unspecified in that no details were given either then or at any time after.
Later, CSL would claim there were no such allegations. “He was merely informed of the fact that Ms Robertson has made a complaint in relation to him,” CSL said.
Saunders reported that details of this particular allegations had spread internally and several of his colleagues called him to ask what they were about.
“The way in which this was done allows it be to be seen as a clumsy feint and parry — something that was intended to rattle Mr Saunders, which it obviously did,” said the Fair Work Commission.
“Then having heightened his state of alarm, CSL disingenuously pulled back from the faux allegation without actually withdrawing it, just in case it may need to be used again.”
The Fair Work Commission described CSL’s later position that there was no allegation of sexual harassment as “self-serving and disingenuous”.
After the “disciplinary meeting”, Saunders produced a medical certificate and went on sick leave. What followed were a series of exchanges between solicitors for each side.
This is when, according to the Fair Work Commission, CSL worked out a way to dismiss Saunders.
A careful strategy
“What emerges from the evidence is a carefully constructed strategy evident in the steps taken by CSL,” said commissioner Nick Wilson.
“CSL was going to do what it could to frame a circumstance in which Mr Saunders could be viewed as having abandoned his employment or be dismissed for a failure to communicate with CSL or attend to its directions.”
CSL sent a letter direct to Saunders at his home by Express Post. This letter demanded Saunders go to the CSL offices with medical certificate in hand. When he failed to turn up, the company says it sent text messages.
However, there is no evidence Saunders received any of these communications.
By this time, Saunders was having physical and mental health issues and was being looked after by his parents at their house. Saunders, working on a recovery, had left communications with CSL in the hands of his solicitor.
His solicitor had written to CSL: “Mr Saunders’ family have advised that he is currently unwell and not in a position to receive or respond to workplace correspondence.”
In the end Saunders wasn’t dismissed because of any alleged misconduct. He was sacked on the grounds that he failed to attend the meetings. He was given four weeks pay.
The Fair Work Commission wasn’t impressed by much of the evidence by CSL.
“The statements of both Ms Dowell and Ms Jackel on this subject (dismissal) lack conviction,” the commission said in its judgement.
“Their evidence that they were willing to return him to work if he provided medical clearance and evidence supporting his absence is implausible.
“It is more than likely that neither had the intention of returning Mr Saunders to the workplace for so long as he failed to respond to CSL’s allegations to the standard it had set.”
The commission found the dismissal harsh, unreasonable and unjust.
“I do not consider that at the time CSL dismissed Mr Saunders it had a valid reason for doing so,” the commissioner wrote.
He also noted that Robertson, who had allegations against her substantiated, including that she had failed as a manager, was not dismissed by CSL as a result of code of conduct findings against her.
“It would reasonably be expected that CSL would apply similar leniency to Mr Saunders even if adverse findings were made against him,” commissioner Wilson said.
However, there was no behaviour by Saunders which could be described as misconduct, the commission found.
The commission ordered CSL to pay $26,622 to Saunders, representing about eight weeks pay plus superannuation.
We asked CSL for comment. This is the company’s response:
“Seqirus is disappointed by the outcome of the case, however we do not see value in protracting the matter through a costly appeal process. While it is not appropriate for us to comment on the specifics of any legal cases, we take pride in our record as an Australian employer who is committed to treating our people in a lawful and fair manner, and engendering a workplace culture of mutual trust and respect.”