Anil Chauhan v Eureka Operations Pty Ltd T/A Coles Express

[2015] FWC 3005

[2015] FWC 3005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anil Chauhan
v
Eureka Operations Pty Ltd T/A Coles Express
(U2015/418)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 MAY 2015

Application for relief from unfair dismissal - refusal to participate in coaching and disciplinary meeting - valid reasons - fair process - not unfair.

[1] On 1 February 2015 Mr Chauhan lodged an application pursuant to s 394 of the fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Eureka Operations Pty Ltd T/A Coles Express (Coles Express). Mr Chauhan's application was not settled through the conciliation process and was referred to me for arbitration.

[2] The application was the subject of a hearing, by video between Adelaide and Perth. At Mr Chauhan's request, a translator was present. Whilst Mr Chauhan specifically requested that everything be translated into his native language, I note that this translation ceased at various times as Mr Chauhan reverted to normal discourse in English.

[3] Mr Chauhan represented himself in this matter. Coles Express was represented by Ms Anderson of counsel. Ms Anderson is a lawyer employed by the Coles Group. Eureka Operations Pty Ltd is a wholly-owned subsidiary of the Coles Group. Permission, pursuant to s.596(2)(a) was granted to Ms Anderson on the basis that I was satisfied that her involvement would allow for the more efficient conduct of the proceedings. I note that Mr Chauhan indicated that he was not opposed to a grant of permission being made.

[4] At the commencement of this hearing Coles Express confirmed its position that there were no initial or jurisdictional issues associated with the application. The material before me confirms this.

[5] Mr Chauhan was employed by Coles Express on 1 May 2014 on a part time basis as a Customer Services Operator in a service station. The parties dispute his work performance over the duration of his employment. They also dispute his behaviour over this time. His employment was suspended on 6 January 2015. The parties dispute the basis for this suspension. The letter of 8 January 2015 confirming that suspension required Mr Chauhan to attend a meeting on 13 January 2015. Mr Chauhan, and his wife, as his support person and employer representatives attended this meeting. Mr Chauhan's employment was terminated at this meeting. He disputes the manner of, and reasons for, that termination.

[6] Mr Chauhan contends that the termination of his employment lacked a valid reason and occurred in an inherently unfair manner.

[7] The Coles Express position is that Mr Chauhan's performance was clearly deficient, and that he was the subject of appropriate performance management processes which were applied in a procedurally fair manner.

[8] Mr Chauhan’s evidence went to his version of the events that led to the termination of his employment. Because of the manner of the presentation of his evidence, I have considered his evidence in the context of the sequence of events described by the Coles Express witnesses.

[9] Mr Patterson is a Human Resources advisor with the Coles Group. His evidence went to his involvement in the disciplinary meeting on 13 January 2015 which concluded with the termination of Mr Chauhan's employment.

[10] Mr Little is a Retail Area Manager for Coles Express. His evidence went to his endeavours to convene a coaching discussion with Mr Chauhan on 23 December 2014 and again, on 30 December 2014. In addition, Mr Little gave evidence about an aborted coaching session on 6 January 2015 and the actions he took to suspend Mr Chauhan.

[11] Ms Johnson is a Coles Express Regional Human Resources Manager. Her evidence went to Mr Chauhan's employment history, including the steps taken to improve his work performance.

[12] Ms Cox is the Site Manager of the Brookdale Coles Express site where Mr Chauhan worked. Her evidence went to the issues associated with Mr Chauhan's employment and the steps she took to address performance deficiencies.

Findings

[13] On the evidence before me I have reached the following conclusions about the facts of this matter. Because Mr Chauhan’s evidence was primarily directed at the incidents which gave rise to performance concerns on the part of Coles Express and did not facilitate consideration of the chronology of the matter, these conclusions generally reflect the Coles Express sequence of events.

[14] I have concluded that Mr Chauhan commenced employment in May 2014. He took unpaid leave shortly after that date following a death in the family. He then worked on a regular part-time basis from late June 2014.

[15] After an incident on 9 August 2014 where a milk delivery was not refrigerated, Ms Cox had a coaching session with Mr Chauhan on 12 August 2014. 1 Mr Chauhan complained to Mr Little about the conduct of that coaching session. Mr Little attempted to meet with Mr Chauhan in this respect but Mr Chauhan did not facilitate that meeting.2 Mr Chauhan continues to dispute the circumstances of the milk delivery. Notwithstanding this, Coles Express had continuing performance concerns with respect to Mr Chauhan from 12 August 2014. I am satisfied that Mr Chauhan did not comply with normal management instructions over this time.3

[16] Coles Express received a complaint about Mr Chauhan's behaviour from a customer on 6 November 2014. 4 Mr Chauhan participated in a coaching discussion on the following day. Following that discussion he signed a training action plan on, or around 11 November 2014.5 Mr Chauhan asserts that he had no option but to do so because he was being threatened by Coles Express. The evidence before me does not support this assertion in any way. Mr Chauhan subsequently complained about the conduct of that coaching session.6 In the hearing, he also continued to press a complaint about Ms Cox’s manner of filing or storage of that complaint letter.

[17] Coles Express staff had difficulties in contacting Mr Chauhan but finally met with him on 11 December 2014 to discuss his concerns. Mr Chauhan's union representative was present at this meeting. Mr Chauhan abandoned this meeting. His evidence is that he was not able to understand Ms Johnson’s English and found the small room where the meeting was held to be suffocating. Having considered the evidence of the Coles Express witnesses, I am not satisfied that Mr Chauhan had an acceptable reason for abandoning this meeting. He did not facilitate subsequent steps directed at rearranging this meeting and continued to dispute the customer complaint which prompted the meeting. 7

[18] Coles Express continued to have concerns about Mr Chauhan's work performance. 8 Ms Cox asked Mr Chauhan to attend a further coaching session with Mr Little on 23 December 2014. Mr Chauhan agreed to attend this meeting.9 Mr Chauhan then sought further advice about the meeting.10 Mr Chauhan refused to participate in that meeting unless he could record it. Mr Little refused that demand and Mr Chauhan then refused to meet.11

[19] The coaching meeting was then rearranged for 30 December 2014. Again Mr Chauhan demanded an agenda and the right to record the meeting. 12 Mr Chauhan was absent from work on 30 December 2014 but later provided a medical certificate for this absence.13 The discussion was rescheduled to 6 January 2015.

[20] On 5 January 2015 Mr Chauhan again requested an agenda and permission to record the meeting. He was provided with a list of the matters to be discussed. 14 Mr Chauhan refused to participate in the meeting on 6 January 2015. Mr Little attended Mr Chauhan’s workplace and asked him to participate in this meeting. He repeated this request three times. Mr Chauhan refused to meet and to leave his work area. Mr Little obtained advice from Ms Johnson15 and subsequently advised Mr Chauhan that he was suspended.16 I prefer the evidence of Mr Little, that it was Mr Chauhan who then sought to involve customers in a discussion between he and Mr Little. I have considered Mr Chauhan’s argument that he was not mentally prepared for this meeting and that his father was in hospital at that time. I am not satisfied that these reasons represent a basis for Mr Chauhan to refuse a reasonable request to participate in this meeting. It was open to Mr Chauhan to raise these matters in the meeting but inappropriate for him to blatantly refused to leave his work area for the meeting when requested to do so. I have concluded that Mr Chauhan’s behaviour in this regard was part of a consistent pattern of wilful disobedience and obstruction relative to reasonable instructions given to him by Coles Express. To the extent that Mr Chauhan argues that Mr Little’s actions in suspending him whilst he was at his workstation were inconsistent with the Coles Express Code of Conduct, this simply cannot be the case as Coles Express management must have the ultimate capacity to require employees to comply with lawful directions. Mr Chauhan was not doing so.

[21] Coles Express then forwarded correspondence to Mr Chauhan on 8 January 2015, requesting that he attend a disciplinary meeting on 13 January 2015 to address his behaviour towards Mr Little and his continuing refusal to attend and participate in coaching discussions. At that meeting Mr Patterson explained the reasons for the meeting and Coles Express refusal to have the meeting recorded. Mr Chauhan was given an opportunity to respond. In the course of this meeting I am satisfied that Mr Patterson corrected an earlier erroneous assertion that Mr Chauhan had not provided a medical certificate with respect to his absence on 30 December 2014. 17 The meeting was suspended to consider Mr Chauhan’s response. Upon its resumption, Mr Patterson confirmed that Coles Express was considering the termination of Mr Chauhan's employment. Again, Mr Chauhan was given an opportunity to respond but did not do so. He was then dismissed on a summary basis.18

[22] I have concluded that Mr Chauhan adopted an obstructionist position to the attempts by Coles Express to counsel and coach him. He was dismissed for this reason. He was not dismissed because of specific performance issues such as the milk delivery or the customer complaint. I am not satisfied that his illness on 30 December 2014 was relied upon as a ground for his dismissal.

[23] Section 387 states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[24] I have considered each of these factors separately and collectively.

Valid Reason

[25] Notwithstanding the subsequent legislative changes, I have adopted the principles underpinning the concept of a valid reason summarised by Northrop J in Selvachandran v Peterson Plastics Pty Ltd 19.

[26] I have concluded that Mr Chauhan's continued refusal to properly participate in performance and disciplinary meetings were deliberate acts of misconduct which went to the very basis of his employment relationship. Coles Express had every right to request him to meet and every right to expect Mr Chauhan to properly participate in those discussions. Coles Express was able to refuse Mr Chauhan's demand that he be allowed to record those discussions. For the avoidance of doubt, I am satisfied that Mr Chauhan’s employment was not terminated because of the spoiled milk incident or the customer complaint. It was simply the case that Coles Express had concluded that Mr Chauhan’s conduct in refusing to comply with reasonable instructions and to participate in appropriate coaching discussions had made the continuing employment contract unworkable.

[27] Accordingly, I am satisfied that Coles Express had a valid reason for the termination of Mr Chauhan's employment.

Explanation of the reason

[28] I am satisfied that, at the meeting on 13 January 2015, Mr Patterson explained to Mr Chauhan, the reasons for the termination of his employment. The correspondence sent to him on 16 January 2015 20 confirmed that discussion.

Opportunity to respond

[29] Mr Chauhan was given ample opportunity to respond to the Coles Express concerns about his behaviour and was given a clear opportunity to respond to the proposition that his employment might be terminated.

Unreasonable refusal to permit a support person

[30] Coles Express facilitated Mr Chauhan’s access to a support person through the involvement of a union official in the discussion on 11 December 2014. The Coles Express correspondence of 8 January 2015 specifically invited him to have a support person present at the meeting on 13 January 2015. Mr Chauhan had his wife with him in this respect. Consequently, there was no unreasonable refusal to permit a support person.

Warnings with respect to performance issues

[31] Notwithstanding that the termination of Mr Chauhan’s employment occurred because of his obstructionist behaviour relative to attempts to coach and counsel him about performance issues, I am satisfied that he acknowledged the provision of coaching advice on 11 November 2014 and that he was provided with advice about the Coles Express requirement that he participate in discussions about his work performance in December and early January. Mr Chauhan’s behaviour toward Mr Little on 5 January 2015 made further constructive discussion over performance concerns practically impossible.

Size of the employer’s enterprise - impact on procedures and access to dedicated human resource management expertise

[32] Coles Express is a very large employer. I am satisfied that, as such, it had sophisticated procedures and access to dedicated human resource management expertise. My observation is that these procedures and this specialist expertise were properly applied in Mr Chauhan’s circumstances.

Other matters relevant

[33] Mr Chauhan was summarily dismissed. I consider that his behaviour made that summary dismissal appropriate.

[34] I have considered the initial complaints about Mr Chauhan’s work performance. In the hearing, Mr Chauhan sought to further debate these issues, notwithstanding that the termination of his employment occurred because of his subsequent behaviour. I am not satisfied that any of the initial performance related complaints were improperly founded or that they were acted upon by Coles Express in an inherently unfair manner.

Conclusion

[35] The termination of Mr Chauhan’s employment was not unjust. His conduct is most properly described as misconduct of a serious nature in that his refusal to comply with reasonable management instructions goes to the very basis of the employment relationship.

[36] The termination of his employment was not unreasonable. It was simply based on facts and fundamentally on Mr Chauhan’s own, and quite deliberate behaviour.

[37] The termination of Mr Chauhan’s employment was not harsh in that the consequences of his behaviour should have been clear to him and the nature of his actions left Coles Express with simply no alternative other than termination of employment.

[38] Perhaps the only surprising aspect of the termination of Mr Chauhan’s employment relates to the extent to which it did not occur at an earlier time. I do not consider the termination of employment to be unfair. Mr Chauhan’s application will be dismissed on this basis. An Order (PR566808) to this effect will be issued.

Appearances:

A Chauhan on his own behalf.

L Anderson counsel for the respondent.

Hearing details:

2015.

Adelaide (with VC to Perth):

April 28.

 1   Exhibit R2, para 7

 2   Exhibit R3, para 8

 3   Exhibit R2, para 18

 4   Exhibit R3, para 10

 5   Exhibit R3, para 11 and Exhibit R2, para 22

 6   Exhibit R3, para 14

 7   Exhibit R3, para 18

 8   Exhibit R2, para 34

 9   Exhibit R2, para 34

 10   Exhibit R2, para 38

 11   Exhibit R5, para 8

 12   Exhibit R5, para 21

 13   Exhibit R2, para 22

 14   Exhibit R5, para 24

 15   Exhibit R3, para 30

 16   Exhibit R2, paras 32 - 36

 17   Exhibit R5, para 17

 18   Exhibit R5, paras 5 - 34

 19 (1995) 62 IR 371 at 373

 20   Exhibit R5, MP02

Printed by authority of the Commonwealth Government Printer

<Price code C, PR566807>