Karan Sharma v Coles Supermarkets Australia Pty Ltd
[2022] FWC 2216
•23 AUGUST 2022
| [2022] FWC 2216 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karan Sharma
v
Coles Supermarkets Australia Pty Ltd
(U2021/9435)
| COMMISSIONER WILLIAMS | PERTH, 23 AUGUST 2022 |
Application for an unfair dismissal remedy
This decision concerns an application made by Mr Karan Sharma (the applicant) under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The respondent is Coles Supermarkets Australia Pty Ltd (Coles or the respondent).
Background
The applicant was terminated following an investigation into a series of complaints made by several Coles employees. The applicant’s letter of termination dated 1 October 2021 shows the reason for termination was misconduct. The applicant was paid four weeks wages in lieu of notice.[1]
The applicant initially failed to comply with the Commission’s directions to file his evidence and submissions by the specified date. Extensions of time for the applicant to file his materials were granted. Further requests were again made for an extension of time to file the applicant’s materials in reply.
At the hearing of this matter the applicant gave evidence. For the respondent, evidence was given by Ms Johana Kohler, Ms Zoe Evangelista, Ms Amy Dames, Ms Cheryl Johnson, Ms Nicole Mills, Ms Ebony French, Ms Trudy Jaeschke and Mr Taron Roberts.
The evidence and factual findings
The applicant was first employed in 2015.
From February 2021 until his dismissal, he was employed in the position of caretaking Store Manager at the Coles store in Caversham. As such he was the most senior manager on site.
The applicant’s evidence in chief is that all allegations against him were wrong and it was a war on him by two employees who told other team members they would get rid of him by making wrong allegations. His evidence was that five of the employees were close friends.
His evidence was that he had worked for Coles for approximately seven years.[2]
His evidence in chief was that he had nothing to do with his wife’s roster adjustments.[3]
He rejects that he was in any way racist in his actions or comments. His evidence was that he was implementing structural changes required by Coles, which some employees did not want to comply with. His evidence was that the attitudes of some of those employees were recalcitrant, racist, and vengeful. He accuses some staff of not embracing change.[4]
His evidence was that postponing breaks was done only to accommodate the businesses and customer’s short-term needs, and that rostered breaks were taken at the earliest opportunity. He would explain the need to team members and did not intimidate them.[5]
He states that allegations of time fraud by him are wrong, as it is a requirement for managers to sign in and out daily. He says on one day he was required to go to visit three other stores and with the full understanding of his regional manager he got a team member to sign him off at the necessary time at his store to achieve compliance with the policy.[6]
His evidence in chief was there is an unwritten understanding that you must sign on and off in adherence to your scheduled roster.
His evidence is that he has been subject to career assassination, which destroyed his reputation with fabricated lies from disgruntled employees.[7]
His evidence was that he supported a number of the complainants in their employment, mentoring them and supporting them to become managers.[8]
His evidence was that there was only a minority of recalcitrant staff who rated him negatively.[9]
In his evidence in chief the applicant denied repeatedly contacting Coles employees in an aggressive and intimidating matter following his dismissal. Rather, he said, he was the recipient of calls from these employees. He says he did not initiate any conversations.[10]
The applicant provided 13 statements from other employees in support of him. However, none of these employees attended to give evidence in person.[11]
Under cross examination the applicant agreed he was aware of the Coles Code of Conduct policy document, and understood Coles expected him to comply with that.[12]
The applicant did not remember, but did not deny, that he had been trained in the Coles Conflict of Interest Policy in July 2020 as part of broader training concerning governance matters.[13]
The applicant was also resistant to accepting that Coles expected that he would not put his personal interests ahead of the interests of the company.[14]
In contrast the applicant agreed “a hundred percent” that he was familiar with the Coles Appropriate Workplace Behaviour Policy, and he understood that Coles expects all employees to comply with this policy. However, he did not remember doing training on the policy in June 2021.[15]
Considering all the evidence including the respondent’s records,[16] I am satisfied that the applicant had been trained on the respondent’s Code of Conduct, the Conflict-of-Interest Policy and the Appropriate Workplace Behaviour Policy.
The applicant did not remember asking Ms Kohler in or around May 2021 to prepare a new contract for his wife Shavali, which increased her hours, nor asking that his wife only be rostered between 9 AM and 2 PM to fit in with their day care arrangements.[17] However the applicant also separately answered that it was impossible that he would have asked Ms Kohler about this.[18]
The applicant did not remember numerous other interactions with Ms Kohler and with Ms Evangelista about his wife’s hours of work.[19]
Similarly to the issue regarding his wife’s roster, the applicant responded to other allegations against him by either denying an event occurred, denying he said particular things or not recalling the event occurring.
The applicant did not remember instances where other staff say they were directed by the applicant, in his absence, to clock him off.[20]
He does not remember requiring staff to come into work at the store when they were not rostered to do so.[21]
As well as not remembering, the applicant also denied making inappropriate comments to staff members about their race, sexuality or gender identity.[22]
The applicant denies making disparaging remarks regarding materials displayed in the store to celebrate NAIDOC week and separately to support members of the LGBTQI community.[23]
The applicant denies swearing at team members, threatening team members, pressuring them to stay at work, directing them to do personal tasks for him, requiring them to close the store in his absence or behaving aggressively towards them.[24]
The applicant denies threatening team members with losing their jobs for making complaints about him or changing their rostered hours for complaining.[25]
Under cross examination, the applicant was regularly evasive and was reluctant to concede reasonable propositions.
Having considered his evidence and having observed the applicant throughout the hearing I found his evidence often to not be credible.
The evidence from the respondent’s witnesses is that on 6 August 2021 Coles received an anonymous complaint from an employee alleging Mr Sharma gave preferential treatment to Shefali Sharma, his wife, who was also an employee at the Caversham store of which he was the manager.
Subsequently, between 19 August and 1 September 2021, another four written complaints from employees were received containing a range of different allegations concerning Mr Sharma.
The allegations in summary were that the applicant intimidated or victimised employees or behaved aggressively towards them after he became aware of complaints made against him. These allegations detailing him behaving in a racist, homophobic, or transphobic manner. Further allegations were made that he had not been clocking off correctly i.e. committing time fraud and that his wife had been receiving more favourable treatment than other employees.
The respondents consequently undertook an investigation into the employee complaints.
The investigation was undertaken by Ms Jaeschke who is a specialist in the People and Culture Advisory Team based in Queensland. Her role, amongst other things is to conduct workplace investigations into allegations of misconduct by employees. She has conducted such investigations for over 20 years and has specialised in this work in the last six years.
Her evidence was that there were four written complaints logged by, Ms Clark, Ms Mills, Ms Evangelista and Ms French.
Prior to the investigation she had not had any interactions with the applicant. Her evidence was that on 3 September 2021 she spoke to the applicant on the phone the purpose of which was to put him on notice of the allegations against him and explained the process of the investigation. She explains however the call lasted around 1 ½ hours in duration
During the phone call Mr Sharma made his own allegations about other Coles employees but could not provide specifics to her. She advised him a number of times that if he had genuine complaints, he needed to put them in writing with a level of detail setting out what the particulars are.
Her evidence was that during the call he repeatedly asked who the complainants were in an aggressive manner. She told him that he would be provided with sufficient and detailed information on the allegations for him to respond in due course. Her evidence was that given the nature of some of the allegations she was cautious about protecting the identity of the complainants at that point.[26]
Her evidence was that she expressly told the applicant not to contact employees regarding the matters under investigation. He was told the matters must remain confidential and were not be discussed with other employees. He was told not to interfere directly or indirectly with the investigation in any way. He was told he would be provided an opportunity to formally respond to the allegations.[27]
Between 6 September and 16 September 2021, she conducted telephone interviews with the complainants and 10 other witnesses. By this stage one complainant, Shannon Clark had already resigned so she was not involved in the investigation.
Her evidence was that following the interviews with the complainants and the witnesses she prepared a detailed set of allegations, being twelve in total.[28]
Next, she interviewed the applicant by telephone on 17 September 2021 and he answered questions she asked about all of the allegations. This interview lasted for one and a half hours, and she took detailed notes of his responses.
After the interview she provided the applicant with a written copy of the allegation particulars which had been put to him for response during the discussion.[29]
Next, she went through the complainant’s and the other witness’ statements and the applicant’s responses to the allegations and determined what her findings were on the balance of probability as to whether the allegations were substantiated or not.[30]
Her findings on the allegations were compiled into a report.[31]
On 24 September 2021 she spoke with the applicant on the phone and advised him of the findings on each of the allegations. As she was taking him through her findings, she says he became aggressive and yelled and swore at her.
When she had finished reading him the findings on each of the allegations she says he aggressively and erratically yelled out 23 incoherent allegations against numerous employees and managers. Her impression was that the applicant was himself now making an allegation against everyone whom the applicant believed had made an allegations against him.
She advised him that given the seriousness of some of his allegations he needed to put them in writing and send them to Ms Johnson with details of the particulars.
Mr Sharma abruptly ended the call. On 27 September 2021 she says she emailed him via his support person, at his request, a summary of the findings discussed with him on the telephone.[32]
The evidence is that subsequently a meeting was arranged by Ms Johnson[33] which was held on 30 September 2021. The applicant attended a meeting with his support person with Mr Roberts and Ms Johnson in attendance for Coles.
During that meeting Coles advised him of the findings of the investigation and provided him with an opportunity to respond.
The applicant and his support person were left alone for a period so that he could provide a written response. However, when the meeting resumed the applicant had not written anything down. The evidence of Ms Johnson is that at this point the applicant said he has evidence regarding his wife’s roster. However, when asked about it, he said he had not raised this evidence with the investigator and had not brought it with him.[34]
Ms Johnson and Mr Roberts adjourned the meeting and in consultation with others decided whether the applicant’s employment should be terminated. They decided that given that he had not provided any new information, termination was appropriate. They also decided that he should then be asked to show cause regarding why his employment should not be terminated.
The meeting resumed and Mr Roberts advised the applicant that they were considering terminating his employment and he was invited to show cause why this should not happen.
The applicant’s response was that they were being racist.
The meeting adjourned again whilst Coles considered its decision and when they resumed Mr Roberts advised the applicant that his employment was terminated that day. He was advised that he would be paid in lieu of notice.[35]
At this point the evidence is Mr Sharma threw himself onto the floor. He had his eyes closed and was not speaking. Ms Johnson’s belief was that he had thrown himself onto the floor on purpose and had not genuinely fainted.
Mr Roberts placed the applicant in the recovery position whilst they sought the assistance of a first aid officer. Mr Sharma then picked himself off the ground and sat back in his chair. Her estimation was that he was on the ground for approximately 45 seconds.
The applicant was left alone with his support person to recover his composure. However, they abruptly left the room and were witnessed driving away from the Coles office. Mr Sharma was driving.
Mr Robert’s evidence confirms this was what occurred during the meeting. His evidence was that the first aid officer Lavina attended the meeting room and assessed Mr Sharma and applied water to his face. He then opened his eyes and she assisted him to sit up.
The first aid officer offered to call the applicant an ambulance however this was declined. She then organised a medical appointment with a general practitioner within the area.
Mr Robert’s evidence was that once it was confirmed that the applicant was okay they left the meeting room so Mr Sharma could be alone with his support person.
Mr Roberts had a discussion with the applicant’s support person who said he was okay and that he was going downstairs to get a coffee before attending the general practitioner.
Mr Robertson advised the support person that formal documents reflecting the outcome of the meeting would be sent to the applicant that day.
His evidence was later he saw the applicant and his support person driving in the parking lot. Mr Sharma was at least initially driving the car.[36]
With respect to the witnesses called by the respondents: those employees who had complained about the applicant to their employer; Ms Kohler, Ms Mills, Ms Evangelista, Ms French and Ms Dames all presented as credible witnesses. Their evidence detailed their interactions with the Applicant which Ms Jaesehke put to the applicant in her discussion with him on 17 September 2021. Under cross examination by the applicant, they did make concessions where appropriate. However, they each were also unshaken in their evidence regarding his complained-of behaviour, actions or statements. On these matters, to the extent there are conflicts, I prefer the evidence of each of these witnesses over the evidence of Mr Sharma.
Turning then to the allegations Coles put to Mr Sharma during the show cause meeting,[37] considering the evidence of the respondent’s witnesses, which I accept in full, and the evidence of Mr Sharma I find as follows.
1. The applicant did on occasion direct subordinate employees to change his wife’s contracted hours and shift arrangements to her and his benefit and contrary to the interests of his employer.
2. The applicant, having been made aware of employees having complained about him did make threats to employees that he would take action against them and behaved aggressively toward them.
3. The applicant did on a number of occasions make comments to subordinate employees that were either racist, homophobic or transphobic.
4. The applicant, on a number of occasions, did not as required clock off when he left the store but instead required a subordinate employee to clock him off at his end of shift time when he had in reality left the store sometime earlier.
5. The applicant did during the investigation communicate with employees and managers inappropriately about matters under investigation contrary to the direction given to him by Ms Jaeschke on 3 September 2021.
It is unnecessary to specifically identify which clauses in the respondent’s policies this conduct breached. Suffice to say the applicant, by his words and actions had acted contrary to the requirements of Coles policies in many ways and on numerous occasions.
The legislation
Section 387 sets out matters the Commission must have regard for when considering in this case whether the dismissal of the applicant was harsh, unjust or unreasonable.
This section is set out below:
“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.”
Consideration
The applicant’s conduct, specifically:
1. Directing subordinate employees to change his wife’s contracted hours and shift arrangements to benefit her and himself contrary to the interests of Coles.
2. Making threats to employees that he would take action against them and behaving aggressively toward them for complaining about him.
3. Making comments to subordinate employees that were either racist, homophobic or transphobic.
4. Not clocking off when he left the store and then requiring a subordinate employee to clock him off at his end of shift when he had in fact left the store sometime earlier.
5. During the investigation communicating with employees and managers inappropriately about matters under investigation contrary to the direction given to him by Ms Jaeschke.
were each valid reasons for his dismissal.
The fact that this conduct breached Coles’ policies in many ways, which he was aware of and bound to comply with, was a further valid reason for his dismissal.
Notification of the reason for dismissal
The applicant was notified of the reasons Coles was considering dismissing him before it made the final decision to do so.
Opportunity to respond
The applicant did have an opportunity to respond to the reasons Coles was considering dismissing him and did so during the meeting on 30 September 2021.
Refusal to allow a support person
There was no refusal by the respondent to allow the applicant to have a support person during discussions regarding his dismissal.
Unsatisfactory performance warnings
The dismissal was not related to his performance, but rather his conduct. Consequently, performance warnings are not relevant in this case.
Size of the employers enterprise and a lack of human resource expertise
The employer is a large business which does have human resource management expertise in-house. Consequently, both the investigation and the procedure followed was appropriate.
Other matters
The applicant had been employed since 2015.
In terms of the performance of the store, other than for the conduct above, the applicant had generally been a good manager.
As the manager of the store he was responsible for ensuring that his subordinates behaved in a way that was consistent with the same Coles policies which he had seriously breached in many ways on numerous occasions. His flagrant disregard for these policies in his interactions with his subordinates demonstrates he was not fit to be their manager.
Conclusion
In this case Mr Sharma’s dismissal was neither harsh, unjust nor was it unreasonable.
Mr Sharma was not unfairly dismissed by Coles.
Consequently, this application will be dismissed.
An order to that effect will be issued in conjunction with this decision.
[1] Court book page 385.
[2] Court book page 42 and 43.
[3] Court Book Page 63.
[4] Court book page 63, 66.
[5] Court book page 59.
[6] Court book page 60 and 66.
[7] Court book page 62.
[8] Court book page 64 re-Ms Mills, 67 re-Ms Evangelista and Ms Kohler.
[9] Court book page 69.
[10] Court book page 71.
[11] Court book page 78 to 90.
[12] Court Book Page 193 PN 84, 87.
[13] Court book page 203, PN 94.
[14] PN 94 – 106.
[15] PN 106 – 111, court book page 212.
[16] court book page 284
[17] PN 132 – 135.
[18] PN 136.
[19] For example, PN 138, 166 – 168, 179 – 190.
[20] For example, PN 225, 278, 279, 283.
[21] PN 247 – 260.
[22] For example, PN 290 – 301, 317 – 321.
[23] PN 311, 314, 331 – 333.
[24] PN 337, 339, 340, 345, 346, 349 -352, 357 – 370, 374 – 385, 389.
[25] PN 393 – 400, 444 – 453.
[26] Court book page 184.
[27] Court book page 185.
[28] Court book page 186.
[29] Court book page 225.
[30] Court book page 188.
[31] Court book page 226.
[32] Court book page 190 to 192.
[33] Court Book Page 288.
[34] Court book page 289.
[35] Court book page 290.
[36] Page 353 of the court book.
[37] Court Book page 355.
Printed by authority of the Commonwealth Government Printer
<PR744988>
0
0
0