Andrew Gautam v Ferguson Group Pty Ltd T/A Bridgestone Select

[2015] FWC 7555

[2015] FWC 7555

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Gautam
v
Ferguson Group Pty Ltd T/A Bridgestone Select
(U2015/8187)

COMMISSIONER BISSETT MELBOURNE, 5 NOVEMBER 2015

Application for relief from unfair dismissal - resignation.

[1] Mr Andrew Gautam has made an application for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Gautam was employed by the Ferguson Group Pty Ltd T/A Bridgestone Select (Ferguson). His employment ended on 13 May 2015.

[2] Mr Gautam says that he was forced to resign by the conduct of his employer. Ferguson disputes this and says that Mr Gautam was not dismissed and that the employment came to an end because Mr Gautam resigned.

Evidence and submissions

[3] Mr Gautam says that he was harassed and bullied at work; made to work unreasonable hours and that his superannuation was not paid. He says that this constitutes action or a course of action by the employer that left him with no choice but to resign.

[4] Mr Gautam was employed as a wheel aligner/tyre fitter. He says that he raised issues with respect to the payment of his superannuation and other matters related to his employment with his employer. He says that shortly after raising these issues he was unfairly treated by a new employee Joshua Fraillon and his manager Mike Blackmore. He says he was told by Mr Blackmore that if he was not happy with his job he could leave. He says he was constantly harassed and forced to work back past his normal finishing time of 5.00pm to 6.30pm or 7.00pm.

[5] Mr Gautam says that in early May he met with Stuart Brown the General Manager of Ferguson where he raised with him matters associated with his hours of work, overtime, wages and superannuation.

[6] From 6 – 12 May 2015 Mr Gautam took annual leave.

[7] On 13 May 2015 Mr Gautam returned to work from his annual leave. An incident occurred that day in which Mr Gautam says he was racially abused and harassed by Mr Fraillon. Mr Gautam repeated the words of abuse he says were used by Mr Fraillon but there is no need to repeat them here. Suffice it to say that, if true, they were highly offensive.

[8] That evening (at 11.55pm) Mr Gautam sent email to Stuart Brown in which he said that:

• he had been racially abused by Mr Fraillon and when he told Mr Fraillon that he could not talk to him like that Mr Fraillon told him he was authorised to do so by Mr Blackmore;



• when he raised the matter with Mr Blackmore he was told that there would be a meeting that evening at 5.00pm but that meeting did not occur;



• he had been unreasonably required to work back past his normal finishing times on a number of occasions;



• he believed Mr Blackmore took adverse action against him because he refused to perform overtime prior to going on leave in May;



• after Mr Brown raised his attendance with him he had not been late for work.

[9] Mr Gautam ended his email by stating:

i cannot put up with these kind of things such a racism ,adverse actions, rude behaviour and etc. as these things are causing me stress and affecting my personal .

so i would like to resign from this position as soon as possible.the resignation letter will be email to you by 15/05/15.

kindly let me know if I am free to leave before that I will be very thankful to you. 1(sic)

[10] On 14 May 2015 Mr Gautam received a reply from Alan Brown which said:

Thank you for your email Andrew.

Please note that your resignation as tendered is accepted. Please return your uniforms to Mr Mike Blackmore at Richmond tomorrow. You are indeed then free to leave as you are no longer employed by this company.

As you have not provided the standard notice you have no entitlement to pay in respect of a notice period.

Your other entitlements will be checked and any money owing to you will be paid in the next regular pay period. 2

[11] Mr Gautam says that Ferguson should not have accepted his resignation when it did on 14 May 2015 as he had indicated that his letter of resignation would be sent on 15 May 2015. He says that he sent the email on 13 May 2015 to test if Stuart Brown would do anything about the matters raised but he did not receive a response from him. He then received the email from Alan Brown accepting his resignation. Further, he says that he sent the email of 13 May 2015 to Stuart Brown and he should have had a response from him and not Alan Brown whom he did not know.

[12] On 26 May Alan Brown sent a further email to Mr Gautam querying the return of the uniforms. Mr Gautam responded to this email on 26 May 2015 and said:

g,day allan,

The uniforms are retuned to your rowville store,hopefully my entitlements including superannuation will be cleared by tomorrow .thanks 3 (sic)

[13] Alan Brown replied to Mr Gautam that he had no leave or other entitlements due and he had been paid for a week that he did not work. He also advised Mr Gautam that he should take up any superannuation issues with his fund. Mr Gautam replied that he had not been paid for time he had not worked; he was owed two days’ pay for his last two days at work and he was owed for outstanding annual leave entitlements.

[14] Mr Gautam submits that he should not have been subject to the abuse he received at the hands of Mr Fraillon and that action should have been taken on the matter. He says that there was no reason for the meeting scheduled with Mr Blackmore on the day of the abuse to be cancelled.

[15] Mr Gautam says that the only time Stuart Brown filled in as site manager was a period when he himself was on leave so that Stuart Brown had never directly supervised him.

[16] Evidence was also given by Mr Himanshu Manchanda, a friend of Mr Gautam. His uncontested evidence is that in about April of this year when he went to meet Mr Gautam one day after work at about 6.15pm he observed, ‘a tall guy height approximately 6”2” had glasses on his eyes’ 4 (sic) arguing with Mr Gautam about the performance of overtime. He says that another person came out of the office and started to yell at Mr Gautam and threatened him with losing his job. Mr Manchanda and Mr Gautam left the workplace at this time.

[17] Mr Fraillon gave evidence. In his written statement and oral evidence Mr Fraillon denied that he ever racially abused Mr Gautam. He specifically denied that he used the language Mr Gautam says was used. It was not put to him that he had been observed yelling at Mr Gautam in April 2015 so he was not given an opportunity to give evidence on this issue.

[18] Mr Fraillon says that on 13 May 2015 Mr Gautam was out of the workshop for about an hour around lunch time as he had gone to the warehouse to pick up tyres. On his return Mr Fraillon expected Mr Gautam would get straight back to work but he took his lunch break instead. Mr Fraillon said that this ‘lack of effort’ by Mr Gautam frustrated him. He says he complained to Mr Blackmore that Mr Gautam was being lazy and not helping out. Mr Blackmore told Mr Fraillon to tell Mr Gautam it was time to return to work.

[19] Mr Fraillon says that this is the only time Mr Blackmore had asked him to say anything to Mr Gautam. Mr Fraillon says that when he told Mr Gautam it was time to get back to work Mr Gautam ignored him. He says he got frustrated and called Mr Gautam a lazy bludger. He and Mr Gautam raised voices. Mr Blackmore came out and said the three would sit down after work and talk through what had happened.

[20] Mr Fraillon says that he expected to have the meeting that evening but that Mr Gautam got in his car and left immediately after work.

[21] Mr Fraillon says that the following week he was spoken to by his managers about his behaviour and treatment of co-workers.

[22] Mr Blackmore did not give evidence.

[23] Stuart Brown gave evidence that he, along with Alan Brown, his father, have responsibility for staffing matters in the business.

[24] Stuart Brown says that he was overseas on business on 13 May 2015 when Mr Gautam sent his email. For this reason he referred the matter to Alan Brown to deal with. He says that it is company policy to acknowledge and accept any resignation in writing as soon as possible after it is received as this avoids any later confusion as to the timing of the resignation.

[25] Stuart Brown says that the matters raised in Mr Gautam’s email of 13 May 2015 with respect to bullying and harassment had not been raised with him prior to receipt of the email.

[26] Stuart Brown says he has never instructed any of his employees to bully any other employees. He says that there was an instance of bullying in the workplace in late 2014. This led to the issue of a company-wide memorandum reiterating the company’s zero tolerance to bullying.

[27] Stuart Brown says that he regularly visited the store that Mr Gautam worked at. He says he was there at least once a week but did not attend on the same day each week. He either attended to deliver tyres or for other matters associated with the business. He says that on one of these visits in early May 2015 he had a conversation with Mr Gautam about his attendance and overtime. He told Mr Gautam he would raise the overtime issues with Mr Blackmore.

[28] Stuart Brown says that there had been issues with Mr Gautam’s attendance in the past and he had addressed this in a conversation with Gautam in May 2015. He says this was not a formal meeting but a discussion in the driveway of the service centre. He says that Mr Gautam did not raise any issues of harassment or bullying with him.

[29] Stuart Brown said that Mr Gautam was often late for work. He was aware of this as Mr Gautam had been late when he was temporarily managing the site and also because Mr Blackmore had kept a hand written record from mid-March of Mr Gautam’s start and finish times. 5 Stuart Brown said it was company policy for employees to arrive at work at 7.45am (with a start time of 8.00am) so that it was known who was coming to work and to enable employees to get ready for the day, have a coffee etc. He says that Mr Gautam was late for a work at least a dozen times when he, Stuart Brown, was in attendance at the site.

[30] Stuart Brown also gave evidence that, following Alan Brown’s acknowledgement of Mr Gautam’s resignation on 14 May 2015, Mr Gautam replied in an email in which he said:

really appreciated. i will return the uniforms asap.

thanks once again. 6 (sic)

The Act and the law

[31] Section 385 of the Act states:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[32] Section 386 of the Act establishes the meaning of ‘dismissed’. It states:

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[33] The meaning of s.386(1)(b) has been considered in a number of decisions of the Commission and judicially by the courts.

[34] In Kylie Bruce v Fingal Glen Pty Ltd (in liq) 7 the Full Bench of the Commission carefully analysed the relevant authorities in relation to ‘constructive dismissal’ as is relevant to s.386(1)(b) of the Act set out above.

[35] In Fingal Glen the Full Bench observed:

[21]…In relation to whether the Applicant had “any effective or real choice but to resign”, two points should be noted. First, as referred to by the Senior Deputy President, there were options other than resignation by which the Applicant could have addressed the persistent late payment of her wages. Secondly, we accept that in some circumstances the late payment of wages and/or a failure to pay superannuation may be such as to amount to conduct which has forced an employee to resign. However in the circumstances of the present case we are not persuaded that persistent delays of 1-2 days in payment, with some longer delays, and a failure to pay superannuation, left the Applicant with no effective or real choice other than to resign.

[22] In relation to whether on “an objective analysis of the employer’s conduct” the late payment of wages and failure to pay superannuation “was of such a nature that resignation was the probable result”, we note that the Full Bench in O’Meara was drawing from Rheinberger. In that case Justice Moore said that:

“However it is plain from these passages [in Mohazab]that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct”.

[23] The situation contemplated in this passage is one in which the act of an employer which led to an employee’s resignation was not intended to cause an employee’s resignation (as was the case in Mohazab), but “would, on any reasonable view, probably have that effect”. Rheinberger therefore qualifies the passage from Mohazab quoted above in two respects. First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.

[Footnotes omitted]

Findings

[36] I am satisfied that Mr Gautam returned to work from one weeks’ annual leave on 13 May 2015. (Mr Gautam suggested it was 12 May 2015 but the evidence, including his email of 13 May 2015, all indicates it was the following day.) On that day he had an altercation with Mr Fraillon and that night he sent an email to Stuart Brown in which he raised matters of concern and indicated he was resigning his employment. Mr Gautam attended for work on 14 May 2015 and that afternoon received the acknowledgement of his resignation from Alan Brown and an indication he did not need to attend to work anymore. Further, I am satisfied that on 14 May 2015 Mr Gautam sent a response to Alan Brown in which he thanked Alan Brown and dealt with the return of his uniforms.

[37] I am not satisfied that Mr Blackmore (or any other manager of Ferguson) directed Mr Fraillon or any other employee to harass or bully Mr Gautam. Mr Fraillon’s evidence is that Mr Blackmore told him to tell Mr Gautam to return to work from his lunch break on 13 May 2015. I accept that that is the instruction given to Mr Fraillon. That instruction from Mr Blackmore does not amount to an instruction to bully and harass Mr Gautam. The submission of Mr Gautam to this effect is misconceived. I find however that Mr Fraillon did behave inappropriately in calling Mr Gautam a ‘lazy bludger’ and raising his voice and should rightly have been subject to some disciplinary sanction by his employer for his conduct.

[38] I am satisfied that, following this incident, Mr Blackmore indicated he wished to talk to both Mr Fraillon and Mr Gautam. It is not clear to me from the evidence why this meeting did not occur either that evening or the next day. Mr Gautam says he waited on 13 May 2015 but no meeting occurred whilst Mr Fraillon says that Mr Gautam left that day following the completion of work and did not wait for the meeting to be held. There is no evidence that Mr Gautam or anyone else raised the issue of the meeting the following day.

[39] I am satisfied that Mr Gautam did raise the non-payment of his superannuation with Mr Blackmore. I accept Mr Gautam’s uncontested evidence that, once he raised this issue, Mr Blackmore’s treatment of him deteriorated although the extent or specific details of how this occurred (as opposed to broad statements of harassment) was not provided.

[40] On the balance of probabilities I am unable to find that Mr Gautam was racially abused by Mr Fraillon. Whilst Mr Gautam was sincere in his belief as to the language he says was used, this was put directly to Mr Fraillon and he unreservedly and emphatically denied he said the words Mr Gautam said he heard or that he used any other language that might be considered racist. No evidence was called that would cause me to question the credibility of either witness. Without any evidence that would convince me one way or the other there are no grounds on which I could positively find that this conduct occurred.

[41] It is evident that Mr Gautam and Mr Fraillon did not get on well. Mr Fraillon was frustrated with what he considered laziness on Mr Gautam’s part and Mr Gautam considered Mr Fraillon to be bullying him. I accept, based on the uncontested evidence of Mr Manchanda, that on one other occasion Mr Fraillon had raised his voice at Mr Gautam (the description of the tall man with glasses fits Mr Fraillon as observed in court) but I cannot find that this amounted to bullying or harassment. It may well have been inappropriate behaviour but there is no evidence such that I can find it was more.

[42] Whilst I accept Stuart Brown’s evidence that he did not want his staff working excessive hours Mr Blackmore, Mr Gautam’s immediate and day to day manager, was not called to give evidence on the hours Mr Gautam was required to work. His hand written notes, produced by Stuart Brown, do not indicate the times Mr Gautam finished work or his breaks during the day but rather his commencement times and as such do not clarify the issue of excessive hours. I do find, however, that when Mr Gautam raised his working hours with Stuart Brown and Stuart Brown indicated he would look into the issue. It does not appear to me that Mr Gautam allowed Stuart Brown the opportunity to do so or followed it up. It was raised shortly before Mr Gautam went on leave in May 2015 and within two days of his return Mr Gautam had resigned.

[43] Alan Brown received Mr Gautam’s email of 13 May 2015 on 14 May 2015 (it was sent at 11.55pm). That email said that Mr Gautam intended to resign ‘as soon as possible’ with the letter of resignation to arrive by 15 May 2015. Mr Gautam also asked if he was ‘free to leave before that.’

[44] On the basis of the email I find that Alan Brown was entitled to accept that Mr Gautam had, by email on 13 May 2015, resigned his employment and wanted to leave as soon as possible.

[45] On receipt of the acceptance of his resignation Mr Gautam did not protest that he had been misunderstood but rather sent a reply to Alan Brown within hours in which he said he ‘really appreciated…thanks once again.’ 8 This reply strongly suggests Mr Gautam resigned without rancour. There is no sense in his reply that he felt he had no option but to resign.

Conclusion

[46] Mr Gautam could have raised his concern with respect to payment of his superannuation with Stuart Brown or the relevant person in the company responsible for payroll or directly with the Australian Taxation Office. He had a range of choices as to what he could do about non-payment of his superannuation. Apart from raising it with Mr Blackmore – and no reason is given for Mr Blackmore’s inexplicable failure to follow up on the matter – Mr Gautam did not take up any other option mentioned above for attempting to resolve the matter. Issues with respect to his superannuation cannot be seen to have had the likely effect of forcing Mr Gautam to resign. This is not a matter that left him with no choice but to resign his employment.

[47] Mr Gautam’s issues in relation to his working hours, viewed objectively, did not leave him with no choice but to resign. Mr Gautam raised his working hours with Stuart Wood in the week before he went on leave in May. Stuart Wood said he would speak to Mr Blackmore about the matter. There is nothing on which I could conclude that the matter had or had not been addressed. Mr Gautam did not raise the matter again with Stuart Wood until his email of 13 May 2015 but, in not returning to work after 14 May 2015, did not provide Stuart Wood with an opportunity to reply or advise what actions he had taken to address the matter.

[48] Mr Gautam first raised the bullying and harassment issues he said left him with no choice but to resign in his email of 13 May 2015. Whilst he said he did not intend to resign on that date, rather he wanted to see if Stuart Brown would do anything about it, Mr Gautam did not give Stuart Brown an opportunity to do anything. On receipt of Alan Brown’s acknowledgment of his resignation Mr Gautam thanked Alan Brown and never returned to the workplace. He did not challenge what he says was an incorrect assumption about his intentions arising from the email. If he wanted to have his complaints considered and responded he could have provided some indication of this in the email. His failure to do so means the email perhaps was and can be viewed as no more than a litany of complaints from a disgruntled employee who has no intention of staying with the company.

[49] Even if Mr Gautam’s email could be read as a request for management to address serious concerns he only gave Stuart Brown two days to deal with the issues as his resignation letter would be sent on 15 May 2015. The reality is that Mr Gautam accepted that he had resigned, said nothing more of the complaints and did not return to work.

[50] Regardless of Mr Gautam’s views, the actions of Stuart Brown on his return to investigate the actions of Mr Fraillon and instigate some disciplinary measure indicates that Stuart Brown did take the issues raised in Mr Gautam’s email seriously and was prepared to take appropriate action to deal with the situation. Had Mr Gautam not left the workplace he may well have seen his concerns dealt with. This conclusion as to the preparedness of Ferguson to deal with allegations of bullying and harassment at work is reinforced by the actions it had taken late in 2014 with respect to a complaint of bullying at work.

[51] I am concerned by the lack of evidence produced by Mr Gautam of the bullying and harassment he says occurred. Apart from being asked or required to stay back after his normal finishing time on one occasion (witnessed by Mr Manchanda and these circumstances were not put to Mr Fraillon or any other representative from Ferguson) and the altercation of 13 May 2015 he provides no more specific dates or actions of which he complains. This lack of evidence, in addition to my findings of alternative options above, leads me to conclude that there was no action taken by any employee of Ferguson that forced Mr Gautam to resign or was such that resignation was the probable effect. This is not to be seen to condone any inappropriate behaviour of employees towards Mr Gautam. Mr Gautam, like any other employee, is entitled to be treated with respect at work. He was not, but this lack of respect is not of such magnitude that it left his with no option but to resign or would, on any reasonable view, lead to this outcome.

[52] Whilst I appreciate that Mr Gautam was not happy with what was happening in the workplace and his treatment by Mr Fraillon, viewed objectively I do not consider that the actions of the employer would have the likely result of forcing him to resign. Much of the conduct I found occurred was not conduct engaged in by Mr Gautam’s employer but rather by another employee. That conduct was not directed or sanctioned by his employer. Mr Gautam did not give his employer an opportunity to address the issues raised. In this respect it is important not to confuse the actions of an employee, including those in positions of authority, with those of the employer who, I am satisfied, would have taken action to address the issue. Whilst Mr Gautam’s co-worker did not behave appropriately this cannot be viewed as actions of the employer that had the likely result of forcing Mr Gautam to resign.

[53] For the reasons set out above I do not find that Mr Gautam was forced to resign by conduct or a course of conduct of his employer. Mr Gautam was therefore not dismissed as defined by the Act. His application for relief from unfair dismissal is therefore outside the jurisdiction of the Commission and is dismissed.

[54] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

A. Gautam for himself.

A. Denton of Counsel for the Respondent.

Hearing details:

2015.

Melbourne:

October 5.

 1   Exhibit A3.

 2   Exhibit A4.

 3   Exhibit A5.

 4   Exhibit A7, paragraph 7.

 5   Exhibit R2.

 6   Exhibit R1, attachment SB-3.

 7   [2013] FWCFB 5279.

 8   Exhibit R1, attachment SB-3.

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