Krishnaraj Babu v Norwood Industries Pty Ltd

[2013] FWC 7005

[2013] FWC 7005

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Krishnaraj Babu
v
Norwood Industries Pty Ltd
(U2013/1019)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 26 SEPTEMBER 2013

Application for relief from unfair dismissal - medical certificate issued for medical unfitness to arise in the future after a period of work is performed - alleged medical unfitness coincides with period for which application for leave refused - medical practitioner cautioned by Medical Board for certificate issued in error - unauthorised absence from work - misconduct.

[1] On 2 April 2013 Mr Babu filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against Norwood Industries Pty Ltd.

[2] The matter was conciliated and no settlement was reached.

[3] The parties agreed that the matter be dealt with as a determinative conference.

[4] Pursuant to s.596(1)(a) I granted permission for the company to be represented because it would enable the matter to be dealt with more efficiently given the complexity of the matter.

[5] Written submissions and witness statements were filed, and the following witnesses gave evidence:-

● Mr Krishnaraj Babu
● Ms Francine Faye Coyle
● Mr Leon Willis
● Mr Graham Dancey

[6] I have had regard to all the submissions and evidence. I issued this decision on transcript, and reserved the right to publish further reasons for decision. This is an edited version of the decision given on transcript.

[7] First of all, during discussions held on 28 and 29 November the issue of a request from Mr Babu for three months leave was considered. According to Mr Babu his three months leave was approved on 28 November. The evidence given by Ms Coyle and Mr Willis was that during the discussions held on 28 and 29 November no such approval was given. Rather the limited period of leave only was approved, namely, that set out in a handwritten note dated 29 November 2012 1, signed by Ms Coyle. The limited period of leave was until 30 December.

[8] I prefer the evidence given by Ms Coyle and Mr Willis and Mr Dancey where it is inconsistent with that of Mr Babu. Mr Babu’s evidence was sometimes inconsistent and difficult to follow notwithstanding account being taken for some limited English language difficulties. I accept the evidence given by Ms Coyle that she provided no such approval in the conversation held on 28 November 2012. I accept the evidence of Ms Coyle and Mr Willis that at the meeting of 29 November no such approval was given. I accept their evidence that no such approval was ever given. Rather a limited period of leave was approved, namely, that set out in a handwritten note (exhibit N1), a period of four weeks until 30 December.

[9] I am satisfied that Mr Babu was well aware that he was authorised to take leave only for that period. I am satisfied that nevertheless Mr Babu absented himself from work for the period of 10 December 2012 until 15 March 2013 and did so knowing that this was an absence which was not approved or authorised by the employer. Mr Babu, when he became aware that his approval was refused on 29 November then sought on the same day a medical certificate stating that he would be unfit for work and I quote “from 8 December 2012 to 16 March 2013.” The fact that Mr Babu went and obtained this certificate again suggests that he was well aware that his application for leave had been refused otherwise it would not be necessary for him to obtain a medical certificate to excuse him for working for that period. On his version of events it would be unnecessary because he already had his absence from work approved. Again, this is an inconsistency. I note that it is by no means unknown for this Commission to refuse adjournment applications, only to then receive a medical certificate of unfitness for work excusing the applicant from attending 2.

[10] An unusual aspect of the medical certificate 3, dated 29 November 2012, is that Dr Phan authorised a period of sick leave as unfit for work for a future period and Mr Babu engaged in work for a number of days and then purported to take this stress leave. This unusual medical certificate was quite rightly considered with some suspicion by Norwood Industries given that it immediately followed the refusal of three months leave. It also raised suspicions given the future nature of the certificate, namely that at some future time Mr Babu would become unfit for work although at the present time he was fit for work and able to perform work and did so.

[11] On 30 August 2013 the Australian Health Practitioner Regulation Agency responded to a complaint by Norwood Industries about the certificate 4 and I quote:

‘On 29 August 2013 the Medical Board of Australia (the Board) decided that Dr Phan’s professional conduct is or may be unsatisfactory and took relevant action under section 178 of the Health Practitioner Regulation National Law (the National Law). The Board cautioned Dr Phan. The Board has taken this action because Dr Phan accepted that the issue of the medical certificate nine days in advance when the patient was well enough to work during the intervening time was an error. A caution is intended to act as a deterrent so that the practitioner does not repeat the conduct. A caution is not recorded on the national register.’

[12] Clearly, the employer was correct in its suspicions about the medical certificate. Another issue raised by the applicant was that of bullying and other associated conduct while he is at work. He made two complaints about such matters at the end of 2012. I am satisfied that on the basis of the evidence given by Mr Dancey 5 that the employer took appropriate action to deal with the complaints made by Mr Babu. I also note that these two complaints were lodged first of all on 13 October 2012 and secondly, on 26 November 2012. The second complaint was the subject of an investigation by Workplace Legal and the conclusion reached was and I quote:

‘The investigation suggested that Mr Babu falls into conflict with others quite readily. This perspective is absent from his complaint. Several parties suggest he was at the very least a participant in conflict described in his complaint if not the instigator. Mr Babu also appears to be suspicious of his colleagues. When Mr Muthalagaga legitimately used a factory chair, he took it personally. Further, when his co-workers spoke in their language of origin, which seemed to be a common occurrence, he took the view that they were talking about him.

In some instances Mr Babu’s complaint appears to be an attempt to describe all interactions with his colleagues as many of the allegations do not on their face disclose unreasonable conduct. Further in his complaint Mr Babu attributed several of the same statements to both Mr Muthagalaga and Mr Muthalagadon and in some instances did not distinguish between everyday conversation and alleged unreasonable conduct. This affected the credibility of some of the allegations. We were satisfied that the complaints against Mr Muthalagaga, Mr Gagano, Mr Meardon and Mr Fernandez were unsubstantiated.’

[13] Mr Dancey gave evidence that on the basis of this investigation he concluded that the claims of the applicant were without reasonable foundation and no disciplinary action was required. I mention this because it was an important part of the applicant’s submissions 6. Norwood Industries took reasonable action and did not in any way force Mr Babu to take the action that he did.

[14] I also note the explanation for the unusual medical certificate provided by Mr Babu 7 and I am not satisfied that that is in any way an adequate explanation.

[15] These proceedings are governed by the Fair Work Act 2009. Section 387 sets out the factors that must guide me in making my decision. First of all in relation to section 387(a) whether there is a valid reason for dismissal related to the person’s capacity or conduct. I am satisfied that neither section 352 nor the Regulations provide any protection for the conduct engaged in by Mr Babu. I am satisfied that Mr Babu engaged in serious misconduct, namely breach of a lawful and reasonable instruction given by his employer.

[16] Mr Babu was well aware that he was only authorised to take a limited period of leave and notwithstanding that knowledge took extended leave in breach of employer directions. I am satisfied that that is a valid reason for his dismissal related to his conduct within section 387(a) of the Fair Work Act 2009.

[17] Secondly, in relation to section 387(b) whether Mr Babu is notified of that reason, Mr Babu was repeatedly notified of the employer’s concerns about his conduct. In a letter dated 18 January 2013 Norwood Industries wrote to Mr Babu setting out its concerns. In a letter dated 8 January 2013, a letter was written to Mr Babu’s representative at the AMWU setting out its concerns. In a letter of 20 March 2013 Norwood Industries wrote to Mr Babu setting out its concerns. In particular they said and I quote:

‘We are satisfied there is a serious allegation to put to you to which Norwood requires a response. Specifically, the allegation to which we require a response is as follows: (1) that you determined in advance to absent yourself from the workplace without approval from 10 December 2012 to 15 March 2013.’

[18] Further, Norwood Industries advised Mr Babu that they sought a response to this allegation. They directed him to attend a meeting on 22 March 2013. They advised him that he could bring a representative, such as a union representative to the meeting should he wish to do so. They gave him an option of providing a written response as an alternative to attending the meeting. They advised, and I quote:

‘We view this allegation seriously. If on the balance of probabilities we find that this allegation is substantiated it may constitute serious misconduct and could result in disciplinary action up to and including the termination of your employment. Please be advised that should you fail to provide a response at the meeting or in writing we may proceed to make a decision based on the evidence we have to hand.’

[19] Mr Babu was, on the writing of that letter, given an opportunity to respond to the concerns they had, the valid reason within section 387(c) of the Fair Work Act. Mr Babu submits that due to medical issues he was unable to avail himself of that opportunity to respond. However, Mr Babu was able to engage in a range of conduct set out at paragraphs 19 and 20 of exhibit B1, his witness statement, namely, he contacted his AMWU representative and sent emails and engaged in a number of approaches to his AMWU contact.

[20] Eventually he was able to contact her in which time he explained the situation and sought advice and received that advice. Clearly, Mr Babu had some capacity, on his own admission, to engage in a response and he could have done so but he chose not to. In all the circumstances Norwood behaved in a reasonable fashion and endeavoured to give Mr Babu the opportunity to respond to the concerns they had about his misconduct. They did not receive any form of explanation.

[21] Section 387(d) provides for a support person. In the letter of 20 March 2013 Norwood Industries specifically advised Mr Babu that he could have a support person present. Section 387(e) is not applicable in this present matter which concerns misconduct rather than unsatisfactory performance. In relation to sections 387(f) and (g), it appears that there is no dedicated human resource management specialists. I take that into account.

[22] Any other matters the commission considers relevant, section 387(h), a number of issues were raised by the employer, namely, Mr Babu’s lack of remorse, his service of only four and a half years, and the fact that rather than dismiss him summarily without notice, they chose to pay Mr Babu in lieu of notice. Mr Babu also received his accrued entitlements. Also on the submissions on documents tendered by Mr Babu, Norwood Industries appears to have behaved with some consideration in its treatment of Mr Babu.

[23] In a letter tendered by Mr Babu, dated 3 December 2012, a letter from Mr Andrew Eason, this is exhibit B4, the director of Norwood Industries, chose to write personally to Mr Babu expressing his concern with his state of mind and mental health and providing a personal anecdote about his own family in an endeavour to assist Mr Babu. He finished with an offer to provide the details of a doctor who had been treating a member of his own family with a similar complaint. That letter is, in my opinion, a reflection of the care and consideration that Mr Babu has been offered by Norwood Industries and which, unfortunately, he does not appear to be able to understand.

[24] In addition, the managing director, Ms Coyle, was during cross-examination asked by Mr.Babu whether she had been in tears during the 29 November meeting and she confirmed that she had. Again, Norwood Industries management appear to have behaved with a great deal of concern towards Mr Babu in assisting him to deal with his problems and attending to his problems. Again, it is unfortunate that Mr Babu appears not to have recognised this or be able to recognise this.

[25] In my opinion, having regard to the findings I have made in relation to the factors set out in section 387(a) to (h), the termination of Mr Babu’s employment was not harsh, unjust, unreasonable. Mr Babu was afforded or accorded a ‘fair go all round’. I thanked the parties for their submissions and for attending.

[26] An order dismissing the application is contained in PR541821.

DEPUTY PRESIDENT

Appearances:

Mr K Babu the applicant

Mr A Dalton of the Australian Industry Group for the respondent

Hearing details:

Melbourne

2013

13 September

 1   Attachment N1

 2   Akee v Townsville Aboriginal and Islander Health Service Ltd - [2012] FWAFB 5067; Akee v Townsville Aboriginal and Islander Health Service Ltd - [2012] FWAFB 5064

 3   Exhibit N1

 4   Exhibit N2

 5   Exhibit N6, paragraphs 18 onwards.

 6   Exhibit B1

 7   Exhibit B1, paragraph 11

Printed by authority of the Commonwealth Government Printer

<Price code C, PR541820>