Dutta v Telstra Corporation Limited

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FEDERAL COURT OF AUSTRALIA

Dutta v Telstra Corporation Limited [2018] FCA 1994

File number: QUD 515 of 2017
Judge: RANGIAH J
Date of judgment: 13 December 2018
Catchwords: INDUSTRIAL LAW – whether employer took adverse action against applicant because he exercised a workplace right – whether applicant’s dismissal was a genuine redundancy – where applicant alleges he was dismissed after making complaints about workplace – where applicant alleges he was dismissed after requesting flexible working arrangements – whether applicant was bullied, harassed, targeted and isolated – finding that adverse action was not taken because applicant exercised workplace rights – application dismissed
Legislation: Fair Work Act 2009 (Cth) ss 340, 341, 342, 360, 361, 389, 725, 727, 729, 793, Pt 3–1, Ch 3 and Div 3, Pt 3–1
Cases cited:

Board of the Bendigo Regional Institute of TAFE v Barclay (2012) 290 ALR 647

Construction, Forestry, Mining and Energy Union  v BHP Coal Pty Ltd (2014) 253 CLR 243

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Date of hearing: 30 May 2018
Date of last submissions: 3 September 2018 (Respondent)
12 September 2018 (Applicant)
Registry: Queensland
Division: Fair Work Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 268
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Mr J Dwyer
Solicitor for the Respondent: McCullough Robertson

ORDERS

QUD 515 of 2017
BETWEEN:

PRIT NATH DUTTA

Applicant
AND:

TELSTRA CORPORATION LIMITED ABN 33 051 775 556

Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

13 DECEMBER 2018

THE COURT ORDERS THAT:

1.The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

RANGIAH J:

  1. The applicant, Prit Nath Dutta, has brought a proceeding seeking compensation from his former employer, Telstra Corporation Limited (Telstra), for alleged contraventions of the Fair Work Act 2009 (Cth) (the Act).

  2. Mr Dutta’s principal allegation is that Telstra contravened s 340(1) of the Act by terminating his employment because he exercised his right to make complaints about his managers. Mr Dutta also alleges that he was unfairly dismissed because his redundancy was not a “genuine redundancy” within s 389 of the Act.

  3. I will begin by summarising Mr Dutta’s allegations. I will then set out the relevant legislative provisions. I will describe the facts of the case that are not in dispute. I will then assess the disputed evidence.  Finally, I will consider whether Mr Dutta’s allegations have been made out.

    The applicant’s allegations

  4. Mr Dutta has represented himself in the proceeding. Understandably, his allegations of contravention of s 340(1) of the Act have not been precisely articulated. To attempt to understand his case, it is necessary to examine his originating application, a document entitled “Brief for Justice Rangiah”, his written submissions and his oral evidence.

  5. Mr Dutta’s material demonstrates that his central complaint is that a manager, Bruce Gessey, arranged for his employment…

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Details
Case
[2018] FCA 1994
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Dutta v Telstra Corporation Limited involved a dispute between the applicant, Mr Dutta, and his former employer, Telstra. Mr Dutta alleged that he was dismissed from his employment in an unfair and discriminatory manner. He claimed that his termination was in retaliation for exercising his workplace rights, specifically for making complaints about the workplace and requesting flexible working arrangements. Additionally, Mr Dutta alleged that he was subjected to bullying, harassment, targeting, and isolation within the company.

The central legal issues the court had to decide were whether Telstra took adverse action against Mr Dutta because he exercised his workplace rights and whether his dismissal was a genuine redundancy. Mr Dutta contended that he was dismissed due to his complaints and requests, while Telstra argued that his termination was based on legitimate business reasons.

The court found that Mr Dutta's dismissal was not due to the exercise of his workplace rights, but rather due to legitimate performance-related reasons. The evidence showed that Mr Dutta's employment was terminated because of poor performance and not in retaliation for his complaints or requests. The court also found that the dismissal was a genuine redundancy. The applicant's claims of bullying and harassment were not substantiated in the court's view. Consequently, the application was dismissed.

Orders

Orders of the court

1. The application is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 18 August 2017, Mr Dutta’s employment was terminated. Evidence of Prit Nath Dutta Mr Dutta has affirmed two affidavits that were admitted into evidence. The first gives his account of the events that he alleges led to his redundancy. The second addresses the affidavits of Telstra’s witnesses. His affidavits often use acronyms and technical language used within Telstra that is difficult to decipher. Some of what he has written is confusing. I will attempt, where possible, to give my understanding of what is meant, rather than merely repeating Mr Dutta’s language. In his first affidavit, Mr Dutta refers to the events and incidents he complains of in chronological order. The first incident occurred on 15 December 2014 and appears under the heading “First incident resulting in start of harassment and Bullying”. Mr Dutta states that there was a major outage with one of the applications critical to Telstra’s Global Operations Centre (GOC) due to a hardware failure. Mr Dutta sought Mr Gessey’s approval of funding of $10,000 to address the problem, but two days passed without Mr Gessey providing the approval. Mr Dutta was chased by the GOC team four to five times per day, as the application was critical to allow them to troubleshoot major outages in the Telstra network. After two days, the GOC manager asked Mr Dutta to email Peter Corrigan, Mr Gessey’s manager, to obtain approval of the funding. Mr Dutta sent an email to Mr Corrigan on 17 December 2014, but did not copy Mr Gessey into the email. The email said that, “after two days of un-availability, GOC team requires immediate resolution as an urgent request.” Mr Corrigan approved the funding the next morning. Mr Gessey scolded Mr Dutta for bypassing him and requesting approval from Mr Corrigan. Mr Dutta explained that he had followed a late night instruction, that he was not at fault and he was simply protecting Telstra’s business interests. Mr Dutta says that Mr Gessey, “was very upset with me and used very strong words as he looked bad for being slack”. Mr Dutta states that Mr Gessey remained upset with him for the next two-and-a half-years and that he deliberately delayed action on requests made and “put every effort to rate me low”. Mr Dutta next complains that in June 2015 he was given a low performance rating by Mr Gessey, with the December 2014 incident being raised as the prime reason. Mr Dutta says that Mr Gessey had ignored all the good work he had done. Mr Dutta says that he explained that the incident was not his fault. Mr Dutta then refers to an event commencing in December 2015, which he describes as a “Major incident of deliberate isolation over 6 months putting my job on risk”. He says that Telstra had lost a vendor who supported two of the critical applications he was managing. A replacement was found, but Mr Gessey refused to accept that person, stating that there were organisational funding complications. He states that Mr Gessey kept the approval pending for months with no real reason. Mr Dutta kept asking for approval, but says his requests were deliberately ignored. He says that this was stressful because he was being harassed by other managers for not taking action to support Telstra’s critical business needs and was concerned that he would be blamed if any of the applications failed completely. His request was finally approved on 9 June 2016. He describes the period as being “six months of to and fro for no real reason”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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