Ganesh Swamy v Australian Refined Alloys Pty Ltd
[2011] FWA 8038
•28 NOVEMBER 2011
[2011] FWA 8038 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ganesh Swamy
v
Australian Refined Alloys Pty Ltd
(U2011/8738)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 28 NOVEMBER 2011 |
Termination of employment.
Introduction
[1] Mr Ganesh Swamy (the applicant) lodged an application with FWA seeking an unfair dismissal remedy on 10 June 2011. The matter was referred to me for arbitration and a hearing was conducted on 9 November 2011. The applicant represented himself, assisted by an interpreter. The respondent, Australian Refined Alloys Pty Ltd (ARA) was represented by Ms Nandi Segbedzi, of Zeitz Workplace Lawyers.
[2] The applicant gave evidence on his own behalf. The following witnesses gave evidence on behalf of the respondent:
- Mr Dennis Boyle (Plant Manager); and
- Mr David Grant (former Plant Supervisor).
[3] Mr Swamy commenced employment with ARA on 1 June 2009, at the respondent’s lead smelter at Alexandria in Sydney. He was employed as an Ingot Casting Operator. His role involved operating the casting machinery and production of lead ingots and block as required each day. He was also required to stack, strap, store and dispatch bundles of alloy in accordance with customer orders.
[4] Mr Swamy’s employment was terminated with immediate effect on 1 June 2011. On that day he received a letter of termination from Mr Boyle. That letter included the following:
‘On Friday 7 January 2011, you and I met to discuss your failure to present for work after Christmas New Year break and ongoing issues with absenteeism. At that meeting I issued you with a final written warning outlining why your behaviour was unacceptable and cautioning you that any reoccurrence could jeopardise your employment with ARA.
On Monday 30 May 2011 and Tuesday 31 May 2011, you again didn’t present for your rostered shift and in our subsequent discussions, you haven’t presented any compelling justification for your absence or outlined any mitigating circumstances.
Given this situation and my previous warnings, I’m left with no option but to terminate your employment effective immediately.’
Events leading to termination of employment
[5] I should indicate at the outset that I found the evidence of both of the respondent’s witnesses as credible and straightforward. The applicant’s evidence on the other hand was often confusing and sometimes lacking in credibility. I have considered whether this might be due to language difficulties; however I am satisfied that this is not the case. Accordingly, where the evidence of the respondent’s witnesses conflicts with that of the applicant I generally prefer the former. Accordingly, most of the following is based on the evidence of the two managers.
[6] On Sunday, 29 May 2011, the applicant called Mr Grant (his direct report) on his mobile and told him he would not be at work on Monday and Tuesday. These were days for which he was rostered to work. There is some dispute between the parties as to the precise nature of the conversation that occurred. I am satisfied that Mr Grant, because of concerns with the applicant’s poor attendance record, explained to the applicant that there might not be a job for him when he came back. The applicant did not indicate why he would be unable to attend work. He merely said he had to go ‘far away’ 1.
[7] I am satisfied that the applicant tried to call Mr Grant on 30 May to explain his absence from work, including the fact that he had gone to Thailand. However Mr Grant could not answer any calls on that day as he was at lectures at university. The applicant did not try to call anyone else at the workplace, even though he had been told that he should do so in such circumstances 2.
[8] When the applicant returned to work on 1 June 2011, Mr Boyle and Mr Grant met with him to discuss his absence. He did not ask for a support person or an interpreter 3. They asked him to tell them what happened and why he had needed extra time off at such short notice. Mr Boyle explained that unexplained absence was a serious matter and that the company was considering terminating his employment. Mr Boyle asked the applicant if he had anything to say about the circumstances of his absence or reasons why his employment should not be terminated. Mr Swamy indicated that he had gone to Thailand to retrieve some money.4
[9] During the meeting, Mr Boyle explained that the applicant’s absence had caused disruption to the team and the operation because the crew was already one man down on 30 May because the team leader was on a day of annual leave. As result they had been required to call in an operator on his rostered day off 5. Mr Boyle reminded the applicant that rosters had been extensively modified to accommodate the 14 days annual leave that he intended to take on Monday, 6 June and which had already been approved.
[10] Because of previous concerns with applicant’s attendance throughout his employment and because of his failure to explain clearly what had caused this latest absence, Mr Boyle indicated that he would be terminating the applicant’s employment with immediate effect. It was only at this point that the applicant told the managers that he had been in Thailand to try and retrieve money that he had lost playing an internet lottery that had apparently turned out to be a scam 6. He admitted that he had not said this before because he was embarrassed and ashamed. He gave a number of documents to the two managers, which he spread on the table.7 He was asked why the matter could not be dealt with by the police and why he had to go to Thailand himself8. The managers asked the applicant to step outside while they considered what he had just said.
[11] The two managers considered the applicant’s explanation for his the absence, his employment history, his absences to date and also considered the way they had treated other operators 9. In the light of these considerations, and in particular the fact that the applicant had been given a final written warning in January 2011, for his failure to report to work after a period of leave, the decision was taken to terminate his employment. As Mr Boyle said during his oral evidence:
‘--For me this was yet another instance of where the company had been presented with a fait accompli, so Mr Swamy was absent from work again and there was no room for us to discuss it because he was overseas. This had happened before when he’d returned to Fiji twice and so there was no room for negotiation about that because he simply said, “I won’t be in,” and there was nothing we could do, and it was the same here. 10
Previous incidents
[12] During the applicant’s relatively brief period of employment, the company had allowed him to take periods of leave even before his entitlement to leave had been accrued 11. For example, when the applicant started as a full-time employee in June 2009, he advised the respondent that he would need time off in September 2009 for a vacation he had already planned. He was given approval for 10 days annual leave, even though his entitlement was only eight days at the time of the leave starting. He was advised that these kinds of arrangements would only be the exception not the rule12.
[13] In December 2009, the applicant asked for time to return to Fiji (where his mother and other members of his family live) and received approval for seven days annual leave even though his entitlement was only six days at that time. He was due to return to work on Friday, 8 January 2010. On Sunday, 3 January 2010, the applicant phone David Grant and told him that a member of his family had been involved in a car accident in Fiji and that he would not be back in time to his first rostered shift on 8 January. He was given approval for three further days of unpaid leave to allow him time to deal with his family emergency and return to Sydney 13.
[14] In mid July 2010 the applicant was granted time off to attend to personal issues in Fiji concerning his family. He was given a number of days of unpaid leave as he had used up all his annual leave entitlement 14.
[15] The applicant was given approval for annual leave from Friday, 24 December 2010 and was due to return on Tuesday 4 January 2011. At around 6:15 am on Tuesday, 4 January, the applicant’s nephew sent a text message to Mr Grant indicating that the applicant would not be reporting to his rostered shift that morning 15. Mr Grant had some difficulty making contact with the applicant, but he received a message through his nephew indicating that the applicant could not return to Australia because he had to help his mother attend appointments at hospital. From his cross examination, it appears that the applicant had it in mind since at least 29 December 2010 that he might wish to delay his return because of his mother’s ill health.16 I note from his evidence that other members of his family live in Fiji, and would normally care for his mother.17 Mr Grant and Mr Boyle decided as a matter of discretion to grant the applicant four days paid carer’s leave18.
[16] When the applicant returned to work on Monday, 10 January 2011 (in other words, six days after he was due to return), the two managers met with the applicant to discuss the situation, and provided him with a final written warning. They indicated that they would pay the applicant carer’s leave, as they understood his mother had been unwell. However they were extremely concerned that the applicant had failed to inform Mr Grant in a timely fashion of his situation, rather than 15 minutes before when he was meant to start work. 19 Mr Boyle issued the applicant with a Final Written Warning, which included the following:
‘Clause 2.1 of your employment agreement with ARA states that ‘you must be present and ready to commence work at the designated starting time for your shift.’ On Tuesday 4 January 2011, you failed to fulfil this obligation and neither did you contact Plant Supervisor David Grant to explain your absence.
Ganesh, this is totally unacceptable.
Your absence adversely impacted the smooth operation of our business and placed extra burden on your Ingot Casting Team mates who had to work shorthanded.
Clause 8 of your employment agreement with ARA states, in part, that “any unauthorised absence will be subject to disciplinary action and may result in termination of employment.”
Because this is not the first occasion where you have failed to present for your rostered shift, I seriously considered terminating your employment. However, David advocated for you and convinced me that you should be afforded the benefit of the doubt.
That said, because of your actions, I’m left with no choice but to issue you with a final written warning. I need to impress on you the seriousness of this breach and make it clear that any re-occurrence will see your employment at ARA terminated.
I’ll review your performance before 30 June 2011 and assess whether you’re operating at the expected level. Please don’t let yourself down.’ 20
Harassment by team leader
[17] In April 2011, the applicant informed Mr Grant that his Team Leader, Mr Percival had made derogatory comments about his religion. Mr Grant discussed the matter with Mr Percival and issued him with a warning. He also spoke to the team and discussed what the company required with regards to behaviour. The applicant subsequently thanked Mr Grant. The applicant conceded that he had no evidence to support his contention that his termination was connected to his allegations against Mr Percival 21. I am satisfied that Mr Percival had no involvement in the applicant’s dismissal; nor did the applicant’s complaint about Mr Percival play any role in his dismissal..
Consideration
[18] The issue I need to consider is whether Mr Swamy’s dismissal was harsh, unjust or unreasonable. Section 387 of the Fair Work Act 2009 provides that in considering whether a dismissal is harsh, unjust or unreasonable, FWA must take into account the following factors:
‘(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 FWA considers relevant.’
[19] Mr Swamy was dismissed for failing to present for his rostered shift without a sufficient excuse. While one might sympathise with the applicant’s loss of money through an internet scam, he should not have gone to Thailand to try and retrieve his money, without first getting leave from his employer. If this had been the only incident of its kind, one might consider dismissal a harsh response. However it came on top of a number of other incidents over a relatively short period of time where the applicant had failed to turn up for his rostered shift, without first obtaining leave, and without giving his employer sufficient degree of notice. Clearly some of these incidents related to his family circumstances. I consider that his employer had up until this point been very reasonable and accommodating. Unfortunately, the applicant appears to have taken his employer’s generosity and understanding for granted. The applicant had been given a very clear warning that a repeat of this kind of behaviour would place his employment in jeopardy. I find that the respondent had a valid reason for the applicant’s dismissal based on the conduct of the applicant.
[20] Mr Swamy was clearly notified at the meeting on 10 January 20011 of the reason why the respondent was considering terminating his employment. I am satisfied that he was given an opportunity to respond to that reason during that meeting. The employer did not refuse to allow a support person to be present (no request for such a person was made.)
[21] The remaining factors referred to in s.387 are not relevant.
[22] Having regard to the need to accord a “fair go all round” to both the employer and employee concerned, I am satisfied that the applicant’s dismissal was not harsh, unjust or unreasonable. His application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr G Swamy, on his own behalf
Ms N Segbedzi, on behalf of the respondent
Hearing details:
Sydney
2011
9 November
1 PN899
2 PN187 - 190
3 PN91
4 PN722
5 Exhibit ARA 1, paragraph 8
6 PN692
7 PN97
8 PN704
9 Exhibit ARA 1, paragraph 15
10 PN715
11 Exhibit ARA 1, paragraph 17
12 Exhibit ARA 1, paragraph 18
13 Exhibit ARA 1, paragraphs 24-25
14 Exhibit ARA 1, paragraphs 33-34
15 PN 199
16 PN213 - 250
17 PN290 - 310
18 Exhibit ARA2, paragraph 28
19 PN885
20 Attachment to Exhibit ARA 2
21 PN512
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