Mr Sanjay Singh v Santosheema Pty Ltd T/A Cardiac Care Centre

[2020] FWC 3795

[2020] FWC 3795

FAIR WORK COMMISSION

EX-TEMPORE DECISION

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

Mr Sanjay Singh
v
Santosheema Pty Ltd T/A Cardiac Care Centre
(U2019/14387)

DEPUTY PRESIDENT BULL SYDNEY, 21 JULY 2020

Application for an unfair dismissal remedy – allegation of serious misconduct – jurisdictional objection raised – small business that complied with small business fair dismissal code – jurisdictional objection upheld – application dismissed.

[1] This matter was heard before me on 10 July 2020 when I delivered my decision on transcript. As advised at the time a published decision would issue; this is now the published version of the decision, edited for style and clarity. 1

[2] Mr Sanjay Singh (the applicant/Mr Singh) claims he was unfairly dismissed by his employer Santosheema Pty Ltd T/A Cardiac Care Centre. Mr Singh commenced employment on 1 March 2018 and was summarily dismissed on 11 December 2019. Mr Singh, who is from India, was employed pursuant to a temporary skilled 457 visa in place for two years. He has stated he is now currently on a refugee visa.

[3] Mr Singh was employed as an IT Support Officer, initially at the employer's premises in Wetherill Park, although Mr Singh disputes having worked there, and then transferred to manage a new centre at Wentworthville. The Wentworthville business closed on 31 October 2019, being unprofitable as a business and Mr Singh was assigned to the employer's Hurstville office and in the employer's submissions to see out the expiry of his 457 visa, which expired on 5 February 2020.

[4] The employer states that Mr Singh's work performance was unsatisfactory and that Mr Singh's IT skills did not match his CV details. On 20 November 2019, while off work due to a sprained ankle, Mr Singh spoke to Dr Sheila Brahmbhatt, Mr Singh's sponsor and a director of the Cardiac Care Centre. Upon enquiring about his visa Dr Brahmbhatt told him that it would not be renewed.

[5] Dr Sheila Brahmbhatt who gave evidence stated that Mr Singh then said that he had a job offer in a regional area.

[6] Mr Singh on the other hand denies having enquired about his visa and states that he had no interest in renewing his 457 visa with the employer as he had been poorly treated by the employer.

[7] The employer states that following advice to Mr Singh that his visa would not be renewed, he started to act erratically. On 6 December 2019, Mr Singh met with Mrs Sheema Brahmbhatt, the employer's Practice Manager, where his alleged late arrivals to work were discussed. At this meeting it was alleged that Mr Singh verbally abused Mrs Sheema Brahmbhatt, which was witnessed by other staff. Mrs Sheema Brahmbhatt felt threatened and feared that Mr Singh was going to hit her as stated in her witness statement.

[8] Following this meeting, Ms Brahmbhatt did not attend work for the two days on the following Monday and Tuesday. Mr Singh similarly did not attend work after this incident and was dismissed summarily as stated on 11 December 2019.

[9] Mr Singh says he did not attend work after 6 December as he could face false accusations of molestation and even rape charges.

[10] Mr Singh's dismissal was based on three grounds which were set out in his dismissal letter of 11 December 2019.

[11] The grounds of dismissal in summary were:

1. Mr Singh’s alleged aggressive and threatening behaviour arising out of his conversation with Mrs Sheema Brahmbhatt on 6 December 2019 and a telephone conversation with another staff member, Ms Kristine King, a receptionist at the Cardiac Care Centre on 7 December 2019;

2. The alleged theft of $1,060 from the employer's My Healthcare Centre; and

3. The theft of the employer's intellectual property, including patient medical records.

[12] Mr Singh denies all allegations and states that the reasons for his dismissal were due to him raising questions about his employment conditions.

[13] The employer being a small business employer for the purposes of the Fair Work Act 2009 (the Act) and in particular the unfair dismissal provisions having only 11 employees, states that it has complied with the Small Business Fair Dismissal Code (the Code).

[14] Section 394(1) of the Act provides that:

A person who has been dismissed may apply to the Fair Work Commission for an order under Division 4 of the Act granting a remedy for unfair dismissal.

[15] Section 385 of the Act provides as follows:

A person has been unfairly dismissed if the Fair Work Commission is satisfied that:

(i) the person has been dismissed; and

(ii) the dismissal was harsh, unjust or unreasonable; and

(iii) the dismissal was not consistent with the Small Business Fair Dismissal Code.

(My underline)

[16] Section 385 of the Act also goes on to make a number of other qualifications which are not relevant in this case.

[17] At s.396 of the Act, the Commission is required to decide a number of threshold issues before considering the merits of an application for an unfair dismissal remedy. Section 396 states that the Commission must determine a number of matters relating to an application for an order under Division 4 before considering the merits of the application, one of those being whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).

[18] Thus, in accordance with s.396(c) of the Act, before considering the merits of the application in this matter, I must decide whether the dismissal was consistent with the Code, and if the dismissal is consistent with the Code, then it cannot be held to be unfair.

[19] The Code, which unfortunately was not addressed in any detail by the applicant, is contained at s.388(2) of the Act in the following relevant terms:

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence, and serious breaches of occupational health and safety procedures. For a dismissal to be deemed to be fair, it is sufficient, though not essential, that an allegation of theft, fraud, or violence be reported to the police, of course, the employer must have reasonable grounds for making a report.

[20] The evidentiary threshold for a small business employer to justify a summary dismissal is considerably reduced under the Code, as opposed to that normally required under s.387 of the Act for other dismissals.

[21] The approach by the Commission in relation to the Code was discussed in the Full Bench decision of John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo 2. In that decision, the Full Bench stated that the Code does not require a determination by the Commission whether summary dismissal was warranted. Rather, the test is whether at the time of the dismissal the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal and whether that belief was based on reasonable grounds. This was explained at paragraphs [29] and [30] where the Full Bench stated:

“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee's conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

[22] In respect of Mr Singh engaging in aggressive and threatening behaviour when speaking to Sheema Brahmbhatt on 6 December, and yelling at Ms King during a phone conversation on 7 December, the employer relied on the evidence of Ms Sheema Brahmbhatt and Ms King and staff who were said to have witnessed the behaviour.

[23] Ms King, Ms Githa Raju and Ms Nargis Monwara, employees of the respondent, all gave evidence of having heard the verbal altercation between Mr Singh and Mrs Sheema Brahmbhatt on 6 December 2019. No witness attested to what was actually said by Mr Singh, other than that his voice was raised and Ms King testified that she heard both Mr Singh's and Mrs Brahmbhatt's voices being raised.

[24] Mrs Sheema Brahmbhatt who gave her evidence by telephone stated that Mr Singh yelled at her and she felt threatened during their 6 December conversation. Her husband told her not to go to work for the next two days, being the following Monday and Tuesday. Mrs Sheema Brahmbhatt in giving her evidence was prone to expressing unfavourable opinion-based observations about Mr Singh which detracted from the substance of her evidence and revealed her general dislike for Mr Singh. Unsolicited comments such as "He probably beats his wife", and, "He probably stares at women that come into the office", were not helpful in ascertaining what actually occurred on 6 December 2019.

[25] Despite Mrs Brahmbhatt's witness statement that witnesses would attest to Mr Singh's threatening and intimidating behaviour, the employer's witness's oral evidence only confirmed that they heard Mr Singh raising his voice and that of Mrs Brahmbhatt herself. Only Ms Monwara's evidence was that Mr Singh appeared angry and that his behaviour was quite scary as everyone could hear him in the office.

[26] The employer states that Mr Singh contacted Ms Kristine King after hours on Saturday, 7 December by telephone and abused her and that such threatening behaviour is not acceptable in the workplace. Ms King who gave evidence provided a witness statement dated 13 March 2020, which stated that Mr Singh telephoned her on Saturday, 7 December and during the conversation yelled at her. Mr Singh tendered a recording of this conversation. The recording was made without Ms King's knowledge.

[27] The Commission pursuant to s.590 of the Act can inform itself in any manner it considers appropriate and while not bound by the rules of evidence, will generally have regard to the Evidence Act 1995 of which s.138 allows improperly or illegally obtained evidence to be admitted where the desirability of admitting the evidence outweighs the undesirability.

[28] While a telephone recording was made without the consent of Ms King and prima facie is in contravention of the Workplace Surveillance Act 2005 (NSW) I allowed the admission of the recording deeming it desirable to hear first-hand whether Mr Singh in fact yelled at Ms King.

[29] The recording was conclusive in establishing that Mr Singh did not raise his voice at Ms King and the conversation was conducted by both parties in a civil manner. Mr Singh's demeanour in presenting his case was conducted in its entirety without a raised voice including towards any witnesses. This was in stark contrast to that of the employer's representative Mr Santos Brahmbhatt.

[30] The employer also relied on the alleged theft of $1,060 in cash from its My Healthcare Centre, which Mr Singh denies. Mr Singh's responsibilities included being in charge of the reconciliation of cash and Medicare Funds, which together with a number of other tasks undertaken by Mr Singh would appear well outside of the role of an IT Support Officer, but this issue was not apparently in dispute.

[31] Mr Singh was said to be the only person responsible for the reconciliation task and the only employee with a key to access the cash drawer. When asked about the missing cash he was said to have stated that the money was in an envelope in the cash drawer, but later stated he took the envelope to the server room. The alleged theft was subsequently reported to the police.

[32] Mr Singh states there is no CCTV footage or any witness to him removing the money and that the drawer had no lock and was accessible to everyone.

[33] The final reason provided to Mr Singh for his summary dismissal is that he procured intellectual property and medical records that belonged to the My Healthcare Centre and provided them to a former doctor at the My Healthcare Centre. This conclusion was made on the basis that as the IT Support Officer, Mr Singh was the only employee with the expertise and authorised access to the employer's data base.

[34] The former doctor, Dr Saravana Rajah whose contract was ended when the My Healthcare Centre in Wentworthville closed down on 31 October 2019 provided evidence. It was the employer's belief that Dr Rajah had obtained intellectual property and medical records belonging to the My Healthcare Centre. This was because on 3 December 2019, Dr Rajah advised Dr Sheela Brahmbhatt that he had employer patient records and data.

[35] Mr Singh denies supplying Dr Rajah with any medical records belonging to the My Healthcare Centre. He stated that the employer can't accuse him of being incompetent on IT matters and on the other hand state that he has the expertise to procure the records for Dr Rajah.

[36] Dr Rajah was called to give evidence on behalf of Mr Singh. Mr Rajah raised a number of grievances he had while working at the My Healthcare Centre and gave evidence that he did not comply with all instructions which he did not believe were either ethical or appropriate while working at the Centre.

[37] In this matter, much has been said in documents provided by both parties that does not relate to the issues to be determined by the Commission. As such, these matters are not referred to and were not taken into consideration in this decision.

[38] It would be fair to conclude that Mr Singh anticipated issues with his employment on commencement. This is ascertained by Mr Singh's evidence that included an audio recording he appears to have covertly made on commencement in February 2018 when he spoke to Mrs Brahmbhatt about his starting date. He says he had taken the recording because he had been warned by a previous employer that the employer exploits 457 visa holders.

[39] Mr Singh appears to have made a number of similar covert recordings throughout his employment which, in my view, reflect poorly on his character. However, the task before the Commission is to consider whether the employer has complied with the Code; in this case whether the employer dismissed Mr Singh without notice while believing on reasonable grounds that Mr Singh's conduct was sufficiently serious to justify immediate dismissal.

[40] I am satisfied that the three allegations as described above each meet the meaning of serious misconduct. In respect of the allegation of yelling and threatening behaviour towards work colleagues, the employer was faced with complaints from two employees. One, Mrs Sheema Brahmbhatt, alleging that Mr Singh verbally abused her and that this conversation was loud enough to be heard by other office staff. As a result, Mrs Sheema Brahmbhatt did not return to work for two days and Mr Singh did not return at all.

[41] While having heard the evidence of Mrs Sheema Brahmbhatt and identifying her propensity of exaggeration regarding this incident, it does not detract from the employer believing on reasonable grounds that the conduct was sufficiently serious to warrant immediate dismissal.

[42] I have concluded differently in respect of the complaint of Ms King. Ms King's first statement on 13 March 2020 states she mentioned to Sheema Brahmbhatt that Mr Singh had called her on the weekend and yelled at her during the conversation. This without more would not have provided the employer with reasonable grounds to hold a belief that serious misconduct had been engaged in by Mr Singh. Although not available to the employer at the time, the audio recording of the telephone conversation revealed that Mr Singh did not yell at Ms King and the conversation was conducted in a civil manner.

[43] The employer accuses Mr Singh of stealing the sum of $1,060 based on his responses when asked about the missing money and that he had originally had the money in an envelope. I did not find Mr Singh's defence to this accusation very persuasive. This is not to conclude that he took the money, but to find that it was reasonably open in the circumstances described earlier for the employer to conclude that he did.

[44] In respect to Mr Singh acquiring the employer's data base of medical records without authority, I am more than satisfied that the employer believed on reasonable grounds that Mr Singh undertook this conduct. It was a reasonable belief to hold. I am satisfied that Dr Rajah told Dr Sheila Brahmbhatt that he had certain patient records on his laptop.

[45] Dr Rajah was not a convincing witness when it came to him explaining his relationship with Mr Singh, his completion of a medical certificate certifying Mr Singh was unfit for 10 days, or how he acquired medical records that he wished to use for his own purposes.

[46] I accept that Mr Singh was the only employee with the capacity to provide this information to Dr Rajah. In any event, while not a consideration in this decision the belief held by the employer is vindicated in the correspondence from the Healthcare Complaints Commission subsequent to Mr Singh's dismissal indicating that Mr Singh had obtained confidential patient information and that he had breached privacy laws in obtaining patient information. Mr Singh's explanation in respect to this allegation in stating that he obtained the information from other unnamed persons was not a satisfactory response.

[47] On the above basis, I find that the employer has reasonable grounds for holding the view that Mr Singh's conduct was sufficiently serious to justify immediate dismissal. Whilst Mr Singh's summary dismissal may not have held up to scrutiny under s.387 of the Act, the dismissal was consistent with the Small Business Fair Dismissal Code which was all that was required of the employer.

[48] On this basis, the application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Sanjay Singh (Applicant)
Mr Santos Brahmbhatt for the Respondent

Hearing details:

2020
July
1, 6, 10

Printed by authority of the Commonwealth Government Printer

<PR721121>

 1   See extra curial publication (1997) 9 Judicial Officers’ Bulletin, per Gleeson CJ at 25

 2   [2012] FWAFB 1359