Hitender Kumar v Consulate General of India, Sydney

[2016] FWC 3129

[2016] FWC 3129

FAIR WORK COMMISSION

DECISION NO. 2

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Hitender Kumar
v
Consulate General of India, Sydney
(U2015/4483)

COMMISSIONER CAMBRIDGE SYDNEY, 24 MAY 2016

Application for unfair dismissal remedy - alleged misconduct and performance issues - conduct of applicant not valid reason for dismissal - significant procedural deficiencies - dismissal unjust and unreasonable - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made under s. 394 of the Fair Work Act 2009 (the Act). The matter was the subject of a previous Decision issued on 1 February 2016, which dealt with the discrete issue of permission for the respondent to be represented by lawyers or paid agents (the representation Decision) 1.

[2] The application was lodged at Sydney on 30 March 2015, and it was made by Hitender Kumar (the applicant). The respondent employer is the Consulate General of India, Sydney (the employer). The applicant has been represented by the Transport Workers’ Union of Australia (the TWU). In accordance with the representation Decision, the employer was granted permission to be represented by Kaden Boriss lawyers.

[3] The application indicated that the date that the applicant’s dismissal took effect was 13 March 2015. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[4] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 8 February 2016.

[5] At the Hearing, Mr L Maroney, legal officer from the TWU, appeared for the applicant. Mr Maroney called the applicant as the only witness to provide evidence in support of the claim. Mr J Phillips, Senior Counsel, appeared for the employer, and he called two witnesses who provided evidence on behalf of the employer.

Factual Background

[6] The applicant was dismissed from employment on Friday, 13 March 2015, at which time he had been employed for a period of just over five years. The applicant was engaged in a position described as “Chauffeur-cum-Messenger”.
[7] The employer is part of the Ministry of External Affairs of the Government of India, and it operates a Consulate office located within the Sydney Central Business District (the Sydney office). The applicant was engaged at the Sydney office, at which approximately 14 local staff and 10 India-based staff are engaged.

[8] The employment of the applicant was formally recorded in a document entitled “Labour Contract”, dated 1 April 2010 (the Labour Contract). The Labour Contract was signed by the then Deputy Consul General and Head of Chancery, Mr Vivek Kumar, and by the applicant. The work of the applicant involved chauffeur motor vehicle driving, and when not engaged in motor vehicle driving, the applicant was required to perform other general office duties, including the collection/transportation of mail and other items, such as the physical transportation of document files between offices. The specific details of the duties of the applicant were not included in the Labour Contract.

[9] In June 2013, Mr Vivek Kumar was replaced by Dr Vinod Bahade, who then became the Deputy Consul General and Head of Chancery at the Sydney office. On 1 July 2014, Dr Bahade issued the applicant with a first written warning. The first written warning complained that the applicant was chatting with other staff members during office hours, and hampering their work. The applicant was warned about this conduct, and advised to confine himself to his duties in the role of Chauffeur-cum-Messenger.

[10] In August 2014, the usual consular motor vehicle that the applicant drove was replaced with a loan vehicle that was not fitted with an electronic toll tag (e-tag). Apparently, the consular cars use e-tags issued by the Roads and Maritime Services NSW (RMS) which are exempt from payment of any vehicle tolls. The applicant purchased another e-tag, called an eMU pass, for use in the loan vehicle. The applicant sought reimbursement for the costs associated with his purchase and use of the eMU pass.

[11] Dr Bahade questioned the applicant as to why he did not use the e-tag from the consular vehicle in the loan vehicle. The applicant believed that it was impermissible for the e-tag from the consular vehicle to be used in the loan vehicle because it was a privately registered motor vehicle. However, Dr Bahade rejected this proposition. The applicant then sent an email communication to the RMS, and he was provided with an email response which indicated that the consular vehicle e-tag could not be used in a vehicle that was registered for private use. The applicant then provided this documentary response from the RMS, to Dr Bahade.

[12] On 7 September 2014, the applicant wrote to the High Commissioner of India in Canberra, and in a lengthy communication, he set out various matters of complaint about the conduct of Dr Bahade. The applicant complained about, inter alia, the first warning dated 1 July 2014, the issue involving the e-tag for the loan motor vehicle, and various other matters alleging unfair treatment and harassment by Dr Bahade.

[13] The applicant’s email communication with the RMS regarding the e-tag for the loan motor vehicle became one of two primary complaints raised as part of a Show Cause Notice dated 8 September 2014, issued to the applicant by Dr Bahade. The Show Cause Notice of 8 September 2014 also raised complaint about the applicant allegedly failing to clear files from the trays of offices, which led to delays in the processing of urgent matters. The applicant was asked to explain why disciplinary action should not be initiated against him for his misdemeanour.
[14] On 13 September 2014, the applicant provided an initial response to the Show Cause Notice of 8 September, wherein he stated, inter alia, that it was the first time that he had been informed that his duties in the capacity of Chauffeur-cum-Messenger included clearing the files from the trays of offices. Also on 13 September 2014, the applicant sent a further communication to the High Commissioner in Canberra which referred to his earlier letter of 7 September, and he requested that the High Commissioner establish an independent enquiry into the allegations that have been made against him by Dr Bahade. The applicant provided Dr Bahade with a further, more detailed response to the Show Cause Notice of 8 September in a document dated 17 September 2014.

[15] On 30 September 2014, Dr Bahade issued the applicant with a written warning which rejected the applicant’s responses to the Show Cause Notice of 8 September 2014. The written warning included a rejection of an assertion that arose in respect to the applicant insisting that he be given instructions or orders in writing, rather than verbal direction. This written warning concluded by advising the applicant that his work, and work attitude, would be under strict observation.

[16] On 31 October 2014, the applicant sent a further communication to the High Commissioner in Canberra complaining about what he described as an inordinate delay in the approval of his application for annual leave. On 6 November 2014, Dr Bahade approved the applicant’s annual leave from 1 December 2014 to 2 January 2015. On 19 January 2015, the applicant sent a further communication to the High Commissioner in Canberra raising complaint about an apparent refusal to pay him a bonus for the year 2014.

[17] On 29 January 2015, the applicant was issued with a second Show Cause Notice from Dr Bahade. The second Show Cause Notice dated 29 January 2015, raised complaint about the applicant communicating directly with the High Commissioner regarding the non-payment of his bonus for 2014. The direct communication with the High Commissioner was asserted to be a breach of the formal channels of communication. The second Show Cause Notice also raised further complaint about the applicant asking for written instructions for routine jobs, which would normally be directed verbally.

[18] On 2 February 2015, Dr Bahade issued the applicant with a second warning which asserted that he had been discussing the second Show Cause Notice with other staff, and thereby hampering their usual work. On 4 February 2015, the applicant provided a written response to the second Show Cause Notice of 29 January. On 11 February 2015, Dr Bahade provided a response to the applicant’s response of 4 February 2015, which broadly rejected the applicant’s response and further introduced an allegation that the applicant had bullied and harassed other staff members.

[19] The applicant was lifting and shifting heavy boxes at work on 13 February 2015, and he experienced some upper back pain. The applicant’s back pain led to a period of absence on medical leave, from 20 February to 12 March 2015.

[20] At about 10:30 on the morning that the applicant returned from his medical leave, 13 March, he was advised in writing that a Disciplinary Committee had been formed to look into seven specified complaints which had been made against him. The applicant was directed to appear before the Disciplinary Committee an hour later at 11:30 am. At 10:46 am the applicant sent an email to Dr Bahade in which he complained that he had not been provided with either the detailed particulars or sufficient time, to address the complaints that were scheduled to be dealt with by the Disciplinary Committee at 11:30 am. Dr Bahade responded in an email at 11:05 am, in which he stated that the complaints were set out in the written notification that had been given to the applicant at about 10:30 am, and further, the applicant was already aware of these details through the various Show Cause Notices that had been previously issued.

[21] The Disciplinary Committee did not convene until about 1 pm. The Disciplinary Committee was comprised of three individuals, Mr Arindam Banerjee, Vice Consul, Mr Rajeev Kumar, Vice Consul (PS), and Mr Rajeev Saxeena, (India-based assistant). Once the Disciplinary Committee commenced, what was described as the “charges” against the applicant were read out one at a time, and the applicant was given an opportunity to respond to these matters. The applicant offered various verbal responses before he was required to leave the room. After the applicant had left the room, the Disciplinary Committee then heard from Dr Bahade. The Disciplinary Committee then invited various other members of the Sydney office Consulate staff into the room, and each of the other staff were asked a series of questions about; their personal view of the applicant; whether they were happy working in the Consulate; and whether they had any other grievances.

[22] After the other Consulate staff members had each appeared before the Disciplinary Committee, the three members of the Disciplinary Committee deliberated, whereupon they determined to recommend that the employment of the applicant be terminated. At about 3:48 pm the applicant was served with a document entitled Office Order. The Office Order stated that the services of the applicant were terminated “by invoking clause 1 of the Terms & Conditions of the Labour Contract dated 30 May 2012.” There was no further elaboration or detail of the reason for the dismissal of the applicant contained in the Office Order.

[23] At the time of dismissal, the applicant was paid one month’s remuneration in lieu of notice. This was subsequently adjusted with payment of an additional week because of the applicant’s age.

[24] The applicant has obtained some sporadic, casual, alternative employment since his dismissal.

The Case for the Applicant

[25] Mr Maroney from the TWU appeared for the applicant, and he made oral submissions in addition to a documentary outline of submissions which had been filed.

[26] Mr Maroney commenced his submissions by stating that the determination of the matter was largely characterised by an argument as to what constituted misconduct. The submissions made on behalf of the applicant referred to the various factors set out in paragraphs (a) to (h) of s. 387 of the Act. Mr Maroney submitted that there was no valid reason for the termination of the applicant’s employment.

[27] Mr Maroney made submissions which examined the various findings of the Disciplinary Committee, and upon which the Disciplinary Committee recommended the dismissal of the applicant. Mr Maroney’s submissions focused upon the issues of the applicant’s alleged breach of protocol and dereliction of duties.

[28] Mr Maroney said that the protocol matter involving the e-tag issue represented, at best, a misunderstanding between the applicant and Dr Bahade. Mr Maroney submitted that the applicant had genuinely believed that it was appropriate for him to obtain documentary confirmation that the consular e-tag could not be used on a privately registered motor vehicle. Mr Maroney submitted that the applicant’s actions in respect to the e-tag issue did not represent misconduct, and the applicant was acting in line with his understanding of the instruction or suggestion given to him by Dr Bahade.

[29] It was further submitted by Mr Maroney that the protocol issue regarding the applicant writing to the High Commissioner did not amount to misconduct. Mr Maroney submitted that the applicant was entitled to write to the High Commissioner, and raise complaint about various issues that had arisen. Mr Maroney said that the applicant had endeavoured to raise his complaints with people lower down within the Consulate, but he had not received any satisfactory outcome.

[30] Mr Maroney also submitted that the performance based issues which were described as the applicant’s dereliction of duties, did not represent valid reason for dismissal. Mr Maroney urged the Commission to except the applicant’s evidence where it differed from the evidence provided by Dr Bahade.

[31] The submissions made by Mr Maroney were strongly critical of the process by which the applicant’s employment had been terminated. Mr Maroney submitted that the Disciplinary Committee did not interview the applicant before recommending that his employment be terminated. Mr Maroney said that the applicant was denied an opportunity to address the decision-maker before his employment was terminated. Mr Maroney also submitted that the applicant was denied an opportunity to have a support person, and he was refused his request for there to be a delay before which the Disciplinary Committee proceeded to deal with complaints made against him.

[32] In conclusion, Mr Maroney submitted that there was not a valid reason for the dismissal of the applicant, and the applicant was denied proper process. Therefore, according to Mr Maroney, the dismissal of the applicant was unfair. Mr Maroney urged that the Commission find in favour of the applicant, who was seeking remedy in terms of financial compensation for his unfair dismissal.

The Case for the Employer

[33] The employer was represented by Mr Phillips SC, who relied upon a written outline of submissions which he supplemented with further oral submissions.

[34] Mr Phillips submitted that there were valid reasons for the dismissal of the applicant. Mr Phillips made submissions which directed attention to evidence of the difficulties that the employer had had with the applicant over a prolonged period of time, and which led to the various Notices to Show Cause and warning letters. Mr Phillips submitted that this evidence established the valid reasons for the applicant’s dismissal relating to his dereliction of duty, and his unacceptable behaviour in and around the office.

[35] The submissions made by Mr Phillips examined the details of the various Notices to Show Cause and warning letters which had been issued to the applicant. Mr Phillips submitted that upon examination of the documentary material, it was clear that the employer had raised a series of performance and behaviour issues over an extended period of time. Mr Phillips submitted that against that background, the issue then escalated in relation to the e-tag incident, whereupon the applicant then demanded that all instructions or directions to him be made in writing. According to Mr Phillips, this proposition ultimately established insubordination to the point where the mutuality of the contract of employment had come to an end.

[36] Mr Phillips also submitted that the termination of the applicant’s employment was an appropriate response given that the applicant’s persistent dereliction of duty amounted to manifest insubordination. Mr Phillips submitted that the evidence established sound, valid reasons for the dismissal of the applicant.

[37] The submissions made by Mr Phillips also rejected the criticism of the process involving the Disciplinary Committee deliberations on 13 March 2015. Mr Phillips said that given the extensive documentary record of Notices to Show Cause and written warnings, the fundamental matters that the Disciplinary Committee put before the applicant involving dereliction of duties and breaches of protocol, were matters that had been the subject of the extensive documentary record. Mr Phillips said that the applicant could not have been taken by surprise when these matters were formally put to him on 13 March 2015.

[38] Mr Phillips further submitted that the evidence provided by the applicant had not raised significant concern regarding any requirement for him to have been given further opportunity to make representations to the Disciplinary Committee on 13 March 2015. Mr Phillips submitted that the applicant had not raised anything crucial which was not already before the Disciplinary Committee at the time that it made its recommendation for the termination of the employment of the applicant. Consequently, according to the submissions made by Mr Phillips, the Commission should be satisfied that the applicant had been provided with a satisfactory process during the Disciplinary Committee deliberations on 13 March 2015.

[39] Mr Phillips submitted that the Commission should have regard for the overall context in which the dismissal of the applicant occurred. In this regard, Mr Phillips submitted that there was a lengthy history involving the employer legitimately trying to do the right thing, whilst the applicant was a person who was putting up roadblocks or barriers and acting in an insubordinate manner. Therefore, Mr Phillips submitted that there was valid reason for the applicant’s dismissal after he had been given many warnings and Notices to Show Cause. Mr Phillips submitted that the claim for unfair dismissal should be dismissed.

Consideration

[40] Section 385 of the Act stipulates that the Commission must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[41] In this instance, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

387 (a) - Valid reason for the dismissal related to capacity or conduct

[42] The applicant was provided with a letter of dismissal in the form of an Office Order dated 13 March 2015 2. Relevantly, this Office Order stated that the reason for the applicant’s dismissal was “… by invoking Clause 1 of the Terms & Conditions of the Labour Contract dated 30 May, 2012.” It appeared that this Office Order may have erroneously referred to an incorrect date, and that it should have referred to clause 1 of the applicant’s Labour Contract document dated 1 April 20103.

[43] Notwithstanding the apparent mistake in the date referred to in the letter of dismissal, clause 1 of the applicant’s Labour Contract document simply provides that; “On successful completion of his probation period, his services may be terminated on one month’s notice from either side or on payment of one month’s pay thereof.”

[44] The Office Order/letter of dismissal provided a plainly inadequate specification of the reason for dismissal. However, the Commission has been required to examine the evidence presented so as to ascertain whether valid reason existed to justify the dismissal, albeit not properly stated by the employer. Therefore, the Commission has been required to examine the underlying basis for the words used in the Office Order as the reason for dismissal, so as to determine whether the conduct, and/or capacity of the applicant, represented valid reason for his dismissal.

[45] The evidence has established that the reason for the applicant’s dismissal involved various matters of performance and conduct that were examined by the Disciplinary Committee on 13 March 2015. The report of the Disciplinary Committee 4 recorded issues under the headings of; dereliction of duty; misconduct and insubordination; commission of an act likely to cause embarrassment to the Post; disclosure of confidential information; bullying, harassment and intimidating other staff members; and, violation of office procedures.

[46] Importantly, the Disciplinary Committee summarised its findings as the applicant having; “regularly failed to discharge his official duties”, and “his behaviour and conduct in office have been poor” and that he “has a habit of not adhering to office decorum and has been a disruptive influence in office.” The Disciplinary Committee adopted a recommendation that the applicant be dismissed because of his “continued misdemeanours and negative influence in office.”

Dereliction of Duty and other Misdemeanours

[47] Upon a balanced and objective evaluation of the totality of the evidence regarding the dereliction of duties and other associated matters of complaint raised by Dr Bahade, the applicant’s conduct could not be properly construed as inadequate performance or misconduct which could provide sound and defensible reason for dismissal. The applicant may not have cleared office files in a timely manner in all circumstances, and he probably provided unsolicited advice which disturbed the work of others. However, these are aspects of workplace conduct and performance which should have been addressed with some specified identification of particular incidents of concern, together with a requirement to have the applicant rectify the concern(s) within identified parameters, including specified timeframes.

[48] The performance issues that the employer raised with the applicant should have been clearly specified, so that, for example, it should have stated that; on this day, at this time, the applicant was disrupting the work of these named staff members, and the disruption involved “x”; or, on this day or days, he failed to clear certain files from “x” for dispatch to “y”. The employer should have also stipulated what required improvements were to be achieved within a specified time period for review, such that, for example; if within a review period of four weeks the applicant repeats the disruptive conduct, or he fails to clear files, he will place his employment in jeopardy. Instead, unfortunately, the performance concerns were generalised and without clear requirements for rectification. In such circumstances, the performance/misdemeanour issues that were raised by the employer cannot be properly relied upon as valid basis for dismissal.

Misconduct and Insubordination

[49] The primary issue regarding the applicant’s alleged misconduct and insubordination arose in respect to his insistence that he be provided with instructions in writing. The evidence clearly established that the applicant’s insistence upon written instructions was an unrealistic and unacceptable approach to dealing with the day-to-day requirements which were understood to be part of his duties (albeit not specified in writing). For example, the requirement to have documentary communication in connection with affixing a photograph of Mahatma Gandhi to the wall at the reception area demonstrated the applicant’s unrealistic, pedantic defiance of the reasonable instruction of the employer. As was submitted by Mr Phillips, these were actions which challenged the continuation of any proper, harmonious employment relationship.

[50] However, the applicant’s unacceptably difficult approach to his employer was action taken in direct retaliation to that aspect of the Show Cause Notice of 8 September 2014, which reprimanded him in respect to the information that he had sought relating to the e-tag issue. The applicant was clearly aggrieved by what he considered to be the injustice that arose when he was reprimanded for obtaining written confirmation from the RMS about the use of a consular e-tag on a vehicle registered for private use, when he had been requested to provide such confirmation by Dr Bahade.

[51] Consequently, the applicant’s insubordination, which was well exampled by his challenge as to whether his duties included clearing files from office trays, and a further requirement to have all instructions conveyed to him in writing, must be properly assessed in context. The evidence provided by Dr Bahade confirmed that he had questioned the applicant’s assertion that the consular e-tag could not be used in a vehicle registered for private use, and that he had then instructed the applicant to; “… just to find out whether if that can be used in the consular car and, if not, what is the alternative.” 5

[52] Despite this verbal directive to the applicant, Dr Bahade complained that the applicant had made an approach to local authorities (the RMS), and when questioned about how the applicant would be able to clarify the e-tag issue without contacting the RMS, Dr Bahade sought to differentiate between the applicant telephoning or emailing the RMS. Therefore, according to Dr Bahade, his verbal directive was confined to the applicant making telephone rather than email contact with the RMS.

[53] It appeared that Dr Bahade had not been sufficiently precise with his verbal instruction to the applicant regarding clarification of the use of the e-tag. He subsequently sought to portray the applicant’s email communication with the RMS as something that was an “official communication” 6 from the Consulate, which could be potentially damaging to the reputation of the Consulate General of India. In such circumstances, the applicant had understandable basis for his belief that he had been subjected to an injustice when he was only endeavouring to do what had been asked of him by Dr Bahade.

[54] The fact that the applicant had legitimate basis to believe that he had suffered an injustice does not necessarily justify some retaliatory, insubordinate behaviour. However, it is important that the entire circumstances which gave rise to the behaviour of the applicant are carefully considered, particularly before that behaviour may be relied upon as foundation for dismissal from employment. On balance, the retaliatory, insubordinate behaviour of the applicant was a matter which, of itself, could not represent a valid reason for the termination of employment.

Commission of an Act Likely To Cause Embarrassment to the Post and Bullying

[55] An examination of the evidence surrounding the e-tag issue has revealed that the applicant’s actions were not motivated by any intention to cause embarrassment, damage to reputation, or any other harm to the employer. The applicant had expended his own money, for which he sought reimbursement, in the earnest belief that he was acting in the best interests of his employer. It would have been potentially damaging to the employer if, as the applicant believed, it breached the local law by using the consular e-tag on the privately licensed loan vehicle.

[56] Consequently, the applicant was acting in what he genuinely believed to be, the best interests of the employer, when he communicated with the RMS. The Disciplinary Committee said that it “felt” that the applicant’s actions were “inappropriate and beyond his brief.” In reality, if any criticism can be made in respect to the e-tag issue, the lack of specific instruction from Dr Bahade would be the issue of most notable concern. The suggestion that, in respect to the e-tag communication with the RMS, the applicant intentionally or otherwise, acted in a manner likely to cause embarrassment to the employer, cannot be substantiated, and represented something of an exaggeration.

[57] The bullying and harassment allegations made against the applicant were very unfortunate. These serious allegations were not supported with any specific details, and were instead described in the Disciplinary Committee’s report as, “He would often be seen roaming around in office, chatting with other staff members and extending unsolicited advice and disturbing people. He has already been issued show cause notice for that but he has not mended his ways.” Despite there being nothing more than a vague suggestion of the applicant engaging in unnecessary gossip, the employer appeared to again exaggerate the matter by describing the applicant’s conduct as bullying, harassment and intimidation of other staff members.

Violation of Office Procedures

[58] The employer, or more particularly, Dr Bahade, complained that the applicant had made representations to the High Commissioner before exhausting all other channels of complaint. However, there was no evidence provided of the particular protocols or procedures of any grievance or complaint procedure that the applicant was required to follow. The applicant had clearly been dissatisfied with the approach of his immediate superiors, particularly Dr Bahade. As a matter of politeness or generally accepted protocol, it would have been preferable for the applicant to have provided Dr Bahade with a copy of the various communications that he sent to the High Commissioner.

[59] On balance, it was inappropriate and impolite for the applicant to communicate directly with the High Commissioner without informing Dr Bahade. Dr Bahade was entitled to be aggrieved by the applicant communicating with a more senior member of the employer’s staff, without providing him with either a copy of the communication or advice to the effect that such communication was being made. The applicant’s conduct was therefore inappropriate and impolite, but in the absence of some stated grievance procedure it could not represent misconduct. Consequently, the applicant’s failure to follow unspecified office procedures was not misconduct which would provide valid reason for dismissal.

No Valid Reason

[60] Following a careful and balanced consideration of the totality of the evidence that was presented in connection with the apparent reasons for the dismissal of the applicant, those reasons, inadequately and erroneously stated, were also without proper foundation. The various findings of the Disciplinary Committee which encompassed misdemeanours, insubordination, and other acts of misconduct or disruptive behaviour, do not, individually or in combination, represent valid reason for dismissal. In particular, upon careful analysis, there can be no finding made that the applicant deliberately acted in a manner likely to cause embarrassment to the employer when he communicated with the RMS in respect to the e-tag issue.

[61] However, on balance, the actions of the applicant, particularly in respect to his reactive insubordination, involved a level of misconduct which, although not sufficient to provide valid reason for dismissal, is an issue which must be appropriately recognised, and factored into the Commission’s overall consideration of the unfair dismissal claim.

[62] Upon analysis, the dismissal of the applicant was not for valid reason related to his capacity or conduct. Nevertheless, further consideration of the other elements contained in s. 387 of the Act must also be undertaken.

387 (b) - Notification of reason for dismissal

[63] The employer provided written notification of the reason for the applicant's dismissal. However, the Office Order which notified the applicant of his dismissal included significant error and a manifest lack of proper description of the reason or reasons for dismissal.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[64] The employer’s approach involving the Disciplinary Committee deliberations on 13 March 2015, was an inadequate procedure which denied the applicant any proper opportunity to respond to the matters which arose from the representations made by Dr Bahade and other employees who appeared before the Disciplinary Committee, after it had heard from the applicant. It is a manifest denial of natural justice if the accused, in this case the applicant, is not provided with an opportunity to be heard in respect to all evidence obtained in support of the allegations that are made against the accused.

[65] The approach that the employer adopted whereby the Disciplinary Committee was arranged whilst the applicant was absent on medical leave, and then it convened on the morning when the applicant returned to work without providing the applicant with prior notification of the allegations that it was considering, might be generously described as inconsiderate and reflective of a pre-determined disposition. The applicant was called before the Disciplinary Committee and provided with a written outline of the allegations that he was required to answer to within a matter of hours. The applicant’s request for better and further particulars of the allegations, and for further time to develop appropriate responses, was unreasonably denied. The employer adopted an approach which could not even remotely lend itself to securing procedural fairness and natural justice.

[66] The applicant was not provided with a proper opportunity to respond to the matters which represented the basis for his dismissal.

387 (d) - Unreasonable refusal to allow a support person to assist

[67] The employer’s approach involving the timing of the Disciplinary Committee deliberations on 13 March, and the refusal to delay the process as requested by the applicant, ensured that the applicant was effectively not permitted to have a support person present during the Disciplinary Committee proceedings, which led directly to his dismissal.

387 (e) - Warning about unsatisfactory performance

[68] The applicant had been provided with various Show Cause Notices and other warnings. The evidence established that there was a significant and on-going deterioration in the employment relationship. Consequently, the Commission has recognised that the applicant’s work performance and conduct was not without fault, and had been the subject of earlier warnings.

387 (f) - Size of enterprise likely to impact on procedures

[69] The Commission has recognised that although the employer is part of a very significant and sizable organisation, it can be more appropriately considered to be only a medium-size operation in respect to the Sydney office.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[70] Although the employer is part of a very large and sizable organisation, it appeared that the employer did not have dedicated employee relations management specialists. In the circumstances, the Commission has had appropriate regard for the absence of dedicated human resource management specialists, and also the particular cultural circumstances of the workplace.

387 (h) - Other relevant matters

[71] As mentioned earlier in this Decision, the applicant’s conduct was clearly not faultless. In particular, the Commission does not condone the conduct of the applicant which has been identified as retaliatory insubordination. The Commission has been cognisant of the deterioration that developed in the employment relationship. However, this circumstance is more appropriately reflected in terms of the outcome that is to be provided as any remedy, rather than a factor that might operate to strongly influence the primary determination of the claim.

Conclusion

[72] In this instance, the applicant was dismissed for conduct and performance related matters which were not properly described by the employer.

[73] The Commission has undertaken a careful consideration of all of the evidence regarding the various conduct and performance issues which can be identified to have underpinned the dismissal of the applicant. This analysis has led to the conclusion that these matters of conduct and performance could not, either singularly or in combination, represent a sound and defensible reason for the dismissal of the applicant. Importantly, on any construction of the conduct of the applicant, there could be no finding made that the applicant intentionally committed the misconduct that the employer complained of, concerning his communication with the RMS regarding the e-tag issue. However, it must be recognised that the applicant did engage in retaliatory insubordination which cannot be condoned.

[74] On a balanced and objective analysis of all of the various factors, the Commission has concluded that the substantive reason for the applicant's dismissal was invalid.

[75] The processes that the employer adopted for dealing with the allegations of the applicant’s unsatisfactory performance and conduct, was severely flawed, such that the applicant was denied natural justice. Further, the applicant was not provided with properly described written reasons for his dismissal. The employer failed to properly particularise the actual performance and misconduct incidents upon which it relied as basis for the dismissal of the applicant.

[76] The dismissal of the applicant was unjust and unreasonable. It was unjust primarily because the applicant was denied procedural fairness, and it was unreasonable primarily because it was without sound and defensible reason. Consequently, the application for unfair dismissal remedy has met the legislative requirements, and it is granted.

Remedy

[77] The applicant has not sought reinstatement as remedy for his unfair dismissal. Instead, he has sought remedy in the form of payment of an amount of monetary compensation.

[78] I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal, and I turn to the factors which involve the quantification of any amount of compensation.

[79] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that have been established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 7 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 8.

[80] Firstly, I confirm that an Order for payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[81] Secondly, in determining the amount of compensation that I Order, I have taken into account all of the circumstances of the matter, including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[82] There was no evidence that an Order of compensation would impact on the viability of the employer’s enterprise.

[83] The applicant had approximately five years and one month’s service with the employer. The applicant would have been likely to have received remuneration of approximately $885.00 per week if he had not been dismissed. There was no clear prospect that the employment of the applicant may have endured for any more than a further several months, primarily because of the on-going deterioration in the employment relationship.

[84] Following the dismissal, the applicant made efforts to mitigate the loss suffered because of the dismissal. The applicant has secured only limited alternative employment which provided approximately $1900.00 in remuneration.

[85] Thirdly, in this instance there was an element of established misconduct in the form of the retaliatory insubordination of the applicant which contributed to the employer's decision to dismiss. This matter has influenced the assessment of the extent to which the employment could have anticipated to have continued.

[86] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[87] In respect to the determination of the quantum of compensation to be provided to the applicant, I have had regard for the loss of non-transferable employment credits associated with employment of five years’ duration.

[88] Consequently, for the reasons outlined above, I have decided that an amount approximating with twelve weeks remuneration should be Ordered as compensation to the applicant. That amount is $10,620.00. Accordingly, separate Orders [PR580479] providing for remedy in these terms will be issued.

COMMISSIONER

Appearances:

Mr L Maroney of the Transport Workers’ Union of Australia appeared for the applicant.

Mr J Phillips, Senior Counsel with Ms A Chandler of Kaden Boriss appeared for the employer.

Hearing details:

2016.

Sydney:

February, 8

 1   [2016] FWC 654

 2   Exhibit 1 – Attachment MM.

 3   Exhibit 1 – Attachment B.

 4   Exhibit 4 – Attachment A.

 5   Transcript @ PN542.

 6   Transcript @ PN547.

 7 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 8   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

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<Price code C, PR580478>