Mr Ashish Rathod v Blu Ginger Investments Pty Ltd T/A Blu Ginger Indian Restaurant

[2011] FWA 7314

[2011] FWA 7314

FAIR WORK AUSTRALIA

DECISION

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

Mr Ashish Rathod
v
Blu Ginger Investments Pty Ltd T/A Blu Ginger Indian Restaurant
(U2011/8849)

COMMISSIONER DEEGAN CANBERRA, 25 OCTOBER 2011

Termination of employment - Application for unfair dismissal remedy - Jurisdictional objection - Whether termination at the initiative of the employer.

Introduction

[1] On 16 June 2011 Mr Ashish Rathod (the Applicant) filed with Fair Work Australia an application for a remedy in respect of the termination of his employment as a restaurant manager with Blu Ginger Investments Pty Ltd trading as Blu Ginger Indian Restaurant (the Respondent). The Respondent filed a response to the application on 24 June 2011 indicating that there was a jurisdictional objection to Fair Work Australia dealing with the application as the applicant had not been dismissed.

[2] The matter was listed for hearing of the jurisdictional objection. At the hearing the Respondent was represented, with permission, by Mr A Kumar, a solicitor. The Applicant represented himself.

[3] It was the Respondent’s case that at the time the Applicant filed his application on 16 June he had not been dismissed but suspended from his employment because he had breached the Respondent’s policy concerning the consumption of alcohol at work.

The Respondent’s Evidence

[4] The Respondent called four witnesses to give evidence in support of its case.

[5] Mr Madhu Sudhan Reddy Manne: It was the evidence of Mr Manne, Restaurant Manager and a director of the Respondent, that the Applicant had been reported to him on two occasions for consuming alcohol on the restaurant premises. According to Mr Manne (also referred to by the witnesses as Mr Reddy) the first occasion occurred on 17 May 2011 when the Applicant was drinking after hours at the restaurant with some friends. Mr Manne claimed that he warned the applicant and reminded him that no alcohol was to be consumed by staff on the premises during or between shifts.

[6] According to his evidence, on 4 June 2011 Mr Manne was called at home by a chef from the restaurant who informed him that the Applicant and another staff member were in the restaurant kitchen between shifts cooking prawns and drinking beer. Immediately after receiving the telephone call Mr Manne received a text message from the Applicant advising that he had had “three pieces of prawns and two Corona” and that he would pay for them.

[7] It was Mr Manne’s evidence that after the second incident he raised the matter with his business partner, Mr Dharmendra Sharma, and asked him to deal with it. Mr Sharma had asked him to organise a meeting with the Applicant but, according to Mr Manne, the Applicant never returned to the restaurant.

[8] Under cross-examination Mr Manne stated that he had verbally warned the Applicant about consuming alcohol on the premises after the first incident, and had recorded the warning in his work diary. It was also his evidence that he warned the other staff member involved in the second incident, Mr Jasnordeep Singh, and recorded that warning in the diary. Mr Singh signed the diary note. Mr Manne could not recall when he made the diary entry concerning the incident involving the applicant on 4 June, but believed it was the following Wednesday when he was trying to organise a meeting between the Applicant and Mr Sharma.

[9] It was also the evidence of Mr Manne that Mr Singh had been warned twice about consuming alcohol but that his first offence on 8 May was only about drinking alcohol during work hours as he had purchased the alcohol from outside the restaurant. Mr Manne conceded that while Mr Singh had signed the diary notes about the two verbal warnings he was given, the Applicant had not signed the diary note concerning his warning for the incident on 4 June. It was his evidence that he did not have an opportunity to have the Applicant sign the diary note before he ceased working at the restaurant.

[10] According to Mr Manne he had attempted to arrange a meeting between Mr Sharma and the Applicant but the meeting could not be arranged until Thursday 9 June. On Wednesday 8 June Mr Sharma instructed him that the Applicant was not to return to work until that meeting occurred. He agreed that although the alcohol was consumed on 4 June the Applicant was not suspended from work until 9 June. He also conceded that the Applicant arrived for work dressed in his work clothes on the morning of 9 June. It was at that time that Mr Manne, having contacted Mr Sharma, informed the Applicant that he could not return to work until he had met with Mr Sharma. Mr Sharma had told Mr Manne the previous evening that the Applicant “was leaving”.

[11] Mr Dharmendra Sharma, Managing Director of the Respondent, stated that he was made aware of the Applicant’s second offence concerning alcohol on Monday 6 June. He then spoke to the applicant on 8 June at about 9:30 pm. It was his evidence that he informed the Applicant that he was very disappointed in him and asked him to leave the restaurant until a face to face meeting between them could be arranged. When Mr Manne informed him that the Applicant had turned up at the restaurant on the morning of 9 June Mr Sharma advised Mr Manne to tell him to leave pending the meeting. According to Mr Sharma the Applicant never returned for the meeting, despite a letter being sent to him requesting him to do so. Mr Sharma considered that the Applicant had abandoned his employment.

[12] When cross-examined Mr Sharma stated that he had written the letter to the Applicant dated 15 June and that Mr Manne had signed it.

[13] Mr Hari Prasad Sharma, head chef at the restaurant, gave evidence concerning the Applicant’s consumption of alcohol at the restaurant, noting that he had informed Mr Manne about both incidents. It was also his evidence that he was present when Mr Manne spoke to the Applicant about not consuming alcohol in the workplace.

[14] Mr Jasnordeep Singh: Mr Singh’s evidence noted that he had consumed alcohol with the Applicant in the restaurant on 4 June and was given a warning on 24 June, which Mr Manne noted in his diary. Mr Singh signed the diary note.

The Applicant’s Evidence

[15] The Applicant’s evidence was that he had worked for the Respondent on a casual basis for 14 months prior to being made restaurant manager on 14 March 2011. He claimed to have worked for 65 hours most weeks but was paid for 38. He had raised the matter of his working hours with Mr Manne after about one month of working as manager and then again on 17 April and 8 June. On the last occasion he stated that he was fed up with working 65 hours a week without being paid for the additional hours. Mr Manne had told him that he considered the Applicant was being unfair and that he could not assist him because Mr Sharma was the main owner.

[16] As a consequence of his conversation with Mr Manne the Applicant telephoned Mr Sharma about 9:30 pm on 8 June. He raised his concerns with Mr Sharma, who accused the Applicant of “taking advantage” of him as the Respondent had sponsored the applicant for a permanent residency visa. According to the Applicant Mr Sharma abused him, using derogatory language, and told him to “get out of the restaurant”. The Applicant claimed to have been shattered by Mr Sharma’s response. He explained the situation to other restaurant staff and then left the restaurant.

[17] Having telephoned his mother in India, and following her advice, the Applicant returned to work at the restaurant the next morning. At about 11:30 am Mr Manne had spoken to him and explained that it was mandatory to work 65 hours over 6 days each week at the restaurant and that is how the restaurant operated. The Applicant asked Mr Manne for at least one more day off but was told that it would be unfair on the rest of the staff, who had to work for 6 days each week. According to the Applicant he then worked until Mr Manne asked him to phone Mr Sharma at 2:00 pm. At about 2:30 pm the Applicant phoned Mr Sharma. It was his evidence that the conversation proceeded as follows:

“I called him up and spoke to him and I told him, “How can I help you, sir?” He told me that, “Ashish, I am really unhappy with what are your expectations from this place and I cannot follow the work rights which you are looking forward to, which are the general work rights, and if in case I can only help and suggest to you”, in a very sweet tone, in a very sweet manner he told me that, “Ashish, either you pay me $5,000 as a deposit to be working with me for two years or you pay $30,000 and leave the restaurant and I would not go and tell anything to immigration about this”. I said to him that, “What is the third option?” He’s like, “Third option is leave the restaurant and get out”, and again he did say it in a very different manner. He told me that, you know, “If you don’t have money there’s no point working over here. Either you choose to give me money or you don’t work over here. That’s it”. I told him that let me decide on it because this decision of Mr Sharma has led to me in a very dramatic situation because neither I had at that $5,000, neither I had $30,000 and I’d no idea that Mr Sharma would ask me for such a petty matter had concluded to $30,000. Now, after all this situation Mr Sharma told me that, “If you’re not able to pay or if you cannot tell me that you’re going to pay, you’d better leave at the moment from the work place and never come back till the time you have the money to give me.” 1

[18] It was the Applicant’s evidence that he left the restaurant after the conversation with Mr Sharma and sought advice from a “union”. He then called Mr Sharma at about 4:30 pm and told him that he did not have the money Mr Sharma was seeking so Mr Sharma could “go ahead and cancel my visa”.

[19] According to the Applicant he picked up an unfair dismissal form from Fair Work Australia on 10 June which he filled out and signed. He had a further conversation with Mr Manne about the situation on 11 June and was told that if he wanted to work at the restaurant he would have to do what Mr Sharma had said. He then filed his unfair dismissal application on 16 June.

[20] When cross-examined it was put to the Applicant that he had not questioned Mr Manne about the conversation he claimed to have had with him on 8 June concerning his work hours. It was noted that Mr Manne had denied having any conversation with the Applicant about his workplace rights on 8 June. The Applicant was also questioned about the fact that his unfair dismissal application did not refer to his claim that Mr Sharma sought money from him. The Applicant was also questioned about the hours he worked for the restaurant and the duties expected from him in that role.

[21] The applicant denied that the conversation he had with Mr Sharma on 8 June was related to his consumption of alcohol at work, noting that he was on his break at the time. The Applicant also denied that there were any written policies at the restaurant concerning consumption of alcohol by staff. It was his evidence that Mr Manne had often invited him to have a drink with him at the restaurant after work and that the chefs also drank beer in the restaurant after hours.

[22] The Applicant was also questioned about an email 2 he sent to Mr Manne in response to Mr Sharma’s letter of 15 June, in which the Applicant stated that he initially believed that he would be paid for hours worked in excess of 38 or given time off in lieu. The Applicant did not agree that he had been given days off in lieu during his period of employment.

[23] It was the Applicant’s evidence that he considered he had been dismissed from his employment at the restaurant at the time he spoke to Mr Sharma about 2:30 pm on 9 June 2011. He denied that Mr Sharma had mentioned a face to face meeting during that conversation and claimed that Mr Sharma had told him to “bring the money” and “if you can bring the money go ahead and work”. When it was put to him that he was lying about this demand from Mr Sharma the Applicant denied that he was lying.

[24] The Applicant agreed that he had received a letter from Mr Sharma dated 15 June requesting that he attend a meeting with him. He did not attend the meeting as requested as he felt threatened by Mr Sharma. He conceded that he did not go to the police about any threats, stating that he felt secure while he was at home with his friends. When it was put to the Applicant that he did not mention the threats in his email to Mr Sharma of 19 June 2011, it was noted that the email contained the sentence “You threatened me and told me things will be made tough if I don’t pay you”. The Applicant also stated that he feared for his personal safety, not for his permanent residency visa, because visas were given by the Immigration Department.

[25] The Applicant was also asked why he had lodged his unfair dismissal application on 16 June 2011 when he had received a letter from Mr Sharma dated 15 June stating that he had not been dismissed but suspended, and requesting him to attend a meeting. The Applicant responded that he had not received the letter dated 15 June until 17 June 2011, the day after he lodged his application.

[26] Following his cross-examination the Applicant noted that the main reason he filed the application of 16 June, despite having filled one out on 10 June, was that he did not get paid on the pay day on 13 June 2011. He waited two days to see if it was a mistake and then filed the application on 16 June when he was very sure he had been terminated as he had still not received his pay.

[27] Mr Sharma was recalled the witness box to be asked questions about matters contained in the Applicant’s evidence which had not been put to him in cross-examination. Mr Sharma denied asking the Applicant for money or threatening him in any way.

[28] Mr Manne was also recalled and denied any knowledge of demands for money being made of the Applicant.

Submissions

[29] It was put for the Respondent that the termination of the Applicant’s employment arose from misconduct involving consumption of alcohol at the workplace. It was put that the evidence showed that the Respondent had a strict policy concerning alcohol consumption and that the Applicant had offended that policy twice. The Respondent’s case was that the Applicant had been suspended for his misconduct and asked to return to work for a meeting to discuss his actions. He failed to attend the meeting on 19 June as requested and was dismissed on that date, three days after he had filed his application. As there had been no termination at the initiative of the employer as at 16 June 2011, the Respondent’s case was that Fair Work Australia did not have jurisdiction to deal with the application.

[30] The Applicant took issue with the claim that he had been suspended from work as a result of his breach of the employer’s alcohol policy. He denied the existence of any such policy and noted that he had continued to work at the restaurant for some days after Mr Manne was made aware of the incident of 4 June.

Conclusion

[31] I am satisfied that the Applicant was dismissed from his employment with the Respondent on 9 June 2011. I accept in its totality the evidence of the Applicant, who I found to be an honest and open witness. Where the evidence of the Applicant differs from that of the Respondent’s witnesses I prefer the evidence of the Applicant. In particular, I accept the Applicant’s evidence that there was no strict policy concerning the consumption of alcohol in the restaurant out of business hours.

[32] Having heard all the evidence it is my finding that the Respondent’s main concern with the Applicant’s conduct was not his consumption of alcohol as much as the question of whether he had paid for it. I have no doubt that Mr Manne may have spoken to the Applicant about drinking in the restaurant with his friends after hours, and may also have had concerns with him drinking between shifts on 4 June and eating the restaurant food, but I do not believe that these matters were the catalyst for the termination of the Applicant’s employment.

[33] I am satisfied that the Applicant’s employment was conclusively terminated on 9 June by Mr Sharma who was annoyed by the Applicant’s complaints about his working hours. I consider that this conclusion is supported by the evidence that the Applicant continued to work in the restaurant until 9 June, despite Mr Manne being made aware of the incident of 4 June on that day. I also accept the Applicant’s evidence that he was not paid on 13 June 2011, and that this was further evidence that his employment had been terminated by that time.

[34] As the Applicant’s employment was terminated at the initiative of his employer on 9 June 2011 the Respondent’s objection must fail. The application will be referred for arbitration.

COMMISSIONER

Appearances:

Mr Ashish Suresh Rathod, self-represented Applicant.

Mr Avinesh Kumar, Migration Advisory Services, for the Respondent.

Hearing details:

2011.
Canberra:
September, 28.

 1   Transcript PN626.

 2   Exhibit K5.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR516047>