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 Full decision here: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc7630.htm


Dismissing an employee based on customer feedback, not good enough according to the Commission, especially when questions in customer survey relevant to respondent’s entire operation not only applicant’s role.

The applicant was employed by the respondent as a Service Consultant for an Audi dealership.

Mr Brennan commenced employment with the respondent as a from 29 May 2017 to 22 March 2019. At the time of his dismissal, the applicant’s role included:

  • Greeting customers;
  • Asking customers what work needs to be done and whether they want anything else looked at;
  • Providing a cost estimate for the work;
  • Confirming customer contact details;
  • Informing customers of additional costs (if any);
  • Advising when a customer’s car is ready for pick-up;
  • Describing the repairs required to be completed in repair orders;
  • Liaising with technicians; and
  • Taking payment from customers.

He was paid $47,000.00 per annum (plus 9.5% superannuation), and in addition a monthly commission of 1% based upon a range of upsell products he sold.

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Customer service survey

The respondent routinely provided its customers with a customer satisfaction survey:

  • How satisfied are you with the way you were treated?
  • What is the reason you gave this rating?
  • How satisfied are you with the way things were organised by our service centre?
  • What is the reason you gave this rating?
  • How satisfied are you with the quality of work carried out on your vehicle?
  • What is the reason you gave this rating?
  • If you now think about this service centre visit overall, how satisfied are you with our services?
  • And what is the reason you gave this rating?
  • How satisfied are you with the overall advice provided by the employees of our service centre?

Each question in the survey must be answered with a score from 1 to 5 inclusive, 5 being the best possible score. The average score from completed surveys returned an overall ‘Customer Experience Marker’ (CEM). A CEM score of 4.5 or higher entitled the applicant to receive commission payments additional to his salary.

The applicant’s CEM scores

The applicant was asked to attend a meeting with management regarding unsatisfactory CEM scores. During the meeting management informed Mr Brennan that his CEM scores must improve as they were under the national average benchmark set by Audi Australia, and as a result, reflected poorly on the dealership’s standing nationally.

Warning letter

 The meeting was followed by an official first and final warning letter, written warning that the applicant must improve his CEM scores, stating (in part):

“…it is expected that your performance improves and in particular you place a greater emphasis on the customer experience, ensuring you make every attempt to exceed customer expectations. In the case that you have any concerns about your results you must consult a manager”.

It was proposed that the matter be reviewed in February, but this meeting did not take place until March 2019, where the applicant’s employment was terminated due to his CEM scores being lower than the national average.

“Not fair” says the applicant

The applicant submitted that his CEM score was not a key indicator of his performance, as it did not provide a valid reason for termination of his employment, saying that the respondent unfairly attributed the results of the CEM survey as a reflection of his own performance. He stated that the survey asked questions of customers that related to their overall experience with Audi and the work undertaken on their vehicles during the service process. He considered these survey questions to be an unfair categorisation of his individual performance.

He further stated Audi’s Business Development Centre, prior to its closure in or around September and October 2018, would follow up with customers after their vehicle was serviced. He believed this process was significant, as customer grievances or issues could be resolved prior to the completion of each survey. The applicant submitted the removal of this arm of the business had negatively impacted his CEM scores across the board, therefore a factor in determining the validity of his dismissal.

Workload issues were also raised by Mr Brennan in his material. He contended this was particularly pertinent during the November and December 2018 Christmas period due to the increase in business demand. Contending that the increased workload was not fairly distributed amongst the other service centre employees, which resulted in him not taking meal breaks.

He further blamed that customer discontent was caused by poor communication relating to delays, which were not relayed to him.

The applicant’s request for compensation

The applicant sought a letter of apology, letter of recommendation and recognition for his employment with Audi with a request that a “positive and complimentary” reference and a statement of his position description.

In requesting this, he submitted that he considered that he would likely have been employed for a further two to six months. He has endured financial strain and has had to rely on family members to help with living expenses. And has applied for some 200 jobs since the dismissal.

The respondent begged to differ

 The applicant attended an Audi’s national training course for Service Advisors at the cost of approximately $15,000, paid for by the respondent. Upon completing that training, the applicant obtained certification and was awarded the status of Audi Certified Service Advisor.

The respondent became concerned with the applicant’s performance during June or July 2018, observing that the applicant had started to become “short” when dealing with customers and colleagues and he had failed to greet customers and did not make eye contact. On one occasion he attended for work with an un-ironed shirt and not in the correct uniform. Audi is a luxury brand and has high expectations of professionalism for its Service Advisors.

There were specific instances of (“angry”) feedback on the customer service component of the service experience.

The applicant was placed on a performance action plan on 4 January 2019, which stated that he CEM score had been declining over the last three months to the lowest point of 4.19 in December 2018.

The respondent’s alternate argument

The respondent presented an alternative argument, citing Roweena Ann De Silva v ExxonMobil Chemical Australia Pty Ltd and submitted that if Mr Brennan was not notified of the reason of his dismissal, any procedural defects should not be afforded any weight due to the numerous written warnings over alleged poor performance from November 2018 until the date of dismissal.

The Commissioner consideration (and a lesson in maths)

Not all customers will complete a post-services survey. On the respondent’s own evidence, it is possible to contact customers whom you think are likely to provide a positive survey result and encourage them to complete the survey. This would, of course, have the effect of skewing the results if no such encouragement had been made.

The questions asked of customers cannot objectively be seen to be based on the service and delivery of services by the Service Advisor only, when there are 35 employees within the enterprise.

Audi dealers have continued to use this measure and narrow in on the “Overall Satisfaction” result which is used to rank dealerships (1 – 40), and to also use it to measure the performance of Service Advisors.

The most important question, it seems, is question four, “If you now think about this service centre visit overall, how satisfied are you with our services?” This question put to customers is extraordinarily broad, yet is used by the respondent, and it seems by Audi Australia to measure the performance of Service Advisors.

The Commissioner observing that:

“…it is disconcerting that the respondent required, as a measure, its Service Advisors to be in the top 50% of all Service Advisors across the Audi Australia group…While it is certainly a virtuous goal, and it is a reasonable goal to require of Audi Indooroopilly Service Advisors, it ignores the fact that 50% of Service Advisors must be in the bottom half of all Audi Australia Service Advisors. Simply because an employee slips into the bottom half of all Service Advisors does not mean that they are not performing their role satisfactorily. Mathematics requires that half of the employees will be in the bottom half”.

Disciplinary practice have since been improved

On 21 February 2019 the applicant was issued with a first and final warning. It was provided to him at a meeting, and I understand it was prepared ready to issue at that meeting. On 22 March 2019 management gained approval to terminate the applicant and this was affected by issuing the termination letter to the applicant. It was conceded that there was no opportunity for the applicant to respond. The respondent has conceded that this practice is not appropriate and is no longer being followed by it and by Audi Australia.

The Commissioner concluding…

“The absence of a valid reason for dismissal, together with my other findings on matters arising … lead me to conclude that [the applicant’s] dismissal was harsh, unjust and unreasonable. Accordingly I determine that the applicant’s] dismissal was unfair.

The Remedy

The Commissioner noted that the applicant had approximately 22 months’ service and took into consideration the decision of SDP Richards in Davidson v Griffiths Muir’s Pty Ltd [2010] FWA 4342.

“As an employee for a short period of time, the length of Applicant’s service with the Respondent on its own is not a powerful force making for a compensation remedy (or a compensation order of significant quantum)”

Therefore finding:

“I consider that Mr Brennan’s service of less than two years is not a significant amount of time…I determine that Mr Brennan would have been likely to have continued in his employment for a period of 12 weeks had he not been dismissed.

“At a weekly rate of $913.46, he would have received $10,961.52. I note that he was paid two weeks’ notice on termination, being an amount of $1,826.92”.

The Commissioner, deducting the notice period already paid, awarding the applicant $9,134.60.


Firstly, and foremost, it is apparent that to rely on one factor in determining an employee’s overall performance is bound to fail (unless it was a case of serious misconduct, then different “rules” apply). Performance reviews are never easy but need not result in termination of employment. Even if the applicant did have poor customer service skills, he may have been better suited elsewhere in the company – where he may have excelled?

Secondly, it was interesting to note that the Commissioner discounted the notice period already paid to the applicant.