Prakash Subramanian v Seljo (NT) Pty Ltd T/A Saffrron Indian Restaurant

[2017] FWC 241

[2017] FWC 241

FAIR WORK COMMISSION

DECISION

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

Prakash Subramanian
v
Seljo (NT) Pty Ltd T/A Saffrron Indian Restaurant
(U2016/10395)

COMMISSIONER WILSON MELBOURNE, 12 JANUARY 2017

Application for unfair dismissal remedy.

[1] Prakash Subramanian worked as a chef at the Saffrron Indian Restaurant at Parap in suburban Darwin between July 2015 and mid-August 2016. The circumstances by which he came to leave his employment are in dispute between the Applicant and the Respondent; Mr Subramanian claims that he was dismissed from his employment, whereas the proprietor of the Saffrron Indian Restaurant, Selvam Kandasamy, contends that Mr Subramanian resigned and then sought to withdraw the resignation after it had been accepted by the employer.

[2] Sathish Lokiah represented Mr Subramanian in the determinative conference conducted by me, and Mr Kandasamy appeared for the Respondent.

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. In relation to the elements within s.396, I find that Mr Subramanian’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that the question of genuine redundancy does not arise. However, it was Mr Kandasamy’s evidence that the restaurant employs only 10 to 15 people. As a result the question of there being a dismissal consistent with the Small Business Fair Dismissal Code may arise and require consideration.

[4] Despite that observation, a more fundamental jurisdictional question arises, which is whether or not Mr Subramanian was “dismissed” within the meaning of the Act. Section 386 of the Act defines the circumstances in which a person has been dismissed, with the section providing that a person has been dismissed either in the event of them having their employment with the employer terminated on the employer’s initiative or the person having resigned from their employment, but having been forced to do so because of conduct, or a course of conduct, engaged in by their employer.

[5] For the reasons set out below, I am not persuaded that Mr Subramanian was “dismissed” within the meaning of the Act and that accordingly his application for unfair dismissal is unable to proceed further.

BACKGROUND

[6] Mr Subramanian is a migrant worker who worked at the Saffrron Restaurant under a skilled migration visa arrangement. While having some proficiency in English, his first language is Tamil and he was therefore assisted in his evidence through an interpreter. Mr Lokiah also gave evidence on behalf of the Applicant, and Mr Kandasamy gave evidence for the Respondent.

[7] When employed by the Saffrron Restaurant Mr Subramanian worked as a chef along with three other full-time chefs and a number of casual employees.

[8] Mr Kandasamy reports having had a lot of issues with Mr Subramanian’s performance and attitude, especially over the 6 months immediately before his employment ended. This observation is disputed by Mr Subramanian.

[9] In relation to his criticisms about work performance, Mr Kandasamy points to three written warnings given to Mr Subramanian about his work performance and conduct. The first was issued on 5 November 2015 and raised the complaints that Mr Subramanian lacked the skills that Mr Kandasamy would have expected; that his food handling and quality checks were insufficient; and that he appeared to take less care than required in judging food quantities. The second was issued on 27 January 2016 and raised similar issues. The final warning was issued on 15 June 2016 and again raised similar matters, but was couched as “a final warning letter”, with Mr Subramanian’s position at Saffrron into the future dependent on his work performance and with it being communicated that “[o]ngoing poor work performance can lead to termination of your employment”.

[10] Mr Kandasamy’s evidence was also that on Sunday, 14 August 2016 he had a discussion with Mr Subramanian about a rumour he had heard to the effect that Mr Subramanian was about to resign and move employment to another restaurant in Darwin, being one in direct competition to the Saffrron Restaurant. Mr Kandasamy’s evidence is that Mr Subramanian agreed that he was going to leave to work at the other restaurant and that the two then agreed Mr Subramanian would immediately finish with the Saffrron Restaurant, and return with his key and uniform in the coming week. Mr Kandasamy’s evidence is that he told Mr Subramanian he would arrange for outstanding payments to be paid to him in the coming week.

[11] Mr Kandasamy’s evidence is then that on the following day, Monday, 15 August, the restaurant was closed and that it reopened on Tuesday, 16 August. Mr Kandasamy relates that he was told by Mr Subramanian at about 10 AM that morning that it looked like the new job was to take longer to obtain and that as a result he wanted to continue working at the Saffrron Restaurant. Mr Kandasamy gave evidence that he replied that he had already organised a replacement employee.

[12] Mr Kandasamy’s evidence is that Mr Subramanian accepted that situation and then left. Later on Tuesday, Mr Kandasamy learned from another of his employees that Mr Subramanian was at the restaurant later on the Tuesday evening and was argumentative. As a result Mr Kandasamy attended the restaurant and spoke with Mr Subramanian and asked him to leave.

[13] In summary, Mr Kandasamy’s submissions are that Mr Subramanian had resigned his employment on Sunday, 14 August 2016, with them agreeing he would finish immediately and with a key and uniforms to be returned during the week, as well as for outstanding payments to be made in the coming week as well.

[14] Mr Subramanian disputes this version of events, denying that he had resigned on 14 August 2016, or at all; and denying that the morning conversation that had been related about Tuesday, 16 August 2016 took place in the manner related or at all. He also denies having been argumentative when he attended the restaurant on the Tuesday evening.

[15] Instead Mr Subramanian puts forward that when he went to work on 16 August 2016 as scheduled at 10 AM, Mr Kandasamy told him that his employment had finished and that when he pleaded with Mr Kandasamy to “not to take the extreme step” he did not allow Mr Subramanian to work. When Mr Subramanian asked him the basis of the termination he was not given an adequate answer.

[16] Since leaving the Saffrron Restaurant Mr Subramanian has secured alternative employment at another Indian restaurant, in Alice Springs, which is not the restaurant that Mr Kandasamy claims Mr Subramanian resigned to go to. His evidence is that this new employment started on 29 August 2016 and that he was therefore without job for about two weeks and three days. His evidence is that the new employment is at a slightly higher wage rate than that which he was receiving at the Saffrron Restaurant, as a result of changes in the intervening period to the Australian Government’s minimum salary level for skilled migrants.

LEGISLATION

[17] The legislative provisions which are relevant to this matter are set out in ss.386 and 387 of the Act, which are as follows;

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

…

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

[18] As set out above, the first matter for determination is whether or not Mr Subramanian was dismissed within the meaning of s.386 of the Act.

[19] Mr Kandasamy argues that Mr Subramanian resigned in the course of the conversation between the two on Sunday, 14 August 2016.

[20] After careful consideration of the evidence given by him and Mr Subramanian, I prefer the evidence of Mr Kandasamy on the subject and therefore accept that Mr Subramanian did resign in the course of the Sunday conversation by confirming to Mr Kandasamy that he had secured employment at another restaurant and that the two then agreed he would finish immediately. While that construct is denied by Mr Subramanian, I consider it to be a more plausible explanation in the context of the evidence as a whole than the one put forward by Mr Subramanian, which relies upon him being unilaterally terminated in the course of the discussion on the morning of Tuesday, 16 August 2016.

[21] Mr Subramanian’s evidence, while denying that there was a Sunday conversation, nonetheless does not directly deny much of the other detail put forward by Mr Kandasamy and in particular fails to deny that there had been consideration by him of employment at another restaurant.

[22] Within the Respondent’s material provided to the Fair Work Commission is an exchange of emails between Mr Kandasamy and his external accountants which advises the accountant that Mr Subramanian resigned his job finishing on Sunday, 14 August 2016 and that that was his last day and that he was not working that week. The accountant confirmed to Mr Kandasamy on Monday, 15 August 2016 that she would act on his instructions.

[23] Given the written warnings that Mr Kandasamy had provided to the Applicant on three occasions are in detailed and meticulous form, it appears more likely than not that the Sunday night communication from Mr Kandasamy to his accountant took place on the dates and times printed on the document before the Commission. That email is consistent with a manager who keeps accurate records about developments within their business and sees a need to do so contemporaneously. The written warnings also serve to give rise to the perception about Mr Kandasamy that had he wished to dismiss Mr Subramanian, either for his work performance or conduct, he would have done so, but relying upon the warnings that had previously and relatively recently been given. Further, it gives rise to the impression that had Mr Kandasamy dismissed Mr Subramanian for any such reason, he would then have documented that reason to Mr Subramanian.

[24] As a result I accept the email as corroborative evidence of Mr Kandasamy’s evidence about the discussion with Mr Subramanian on Sunday, 14 August 2016.

[25] The documents of each party include copies of an email from Mr Subramanian to Mr Kandasamy dated Wednesday, 17 August 2016 remonstrating with what Mr Subramanian saw as having taken place the previous day. That email is in the following terms;

“Dear Selvam kandasamy

This is Prakash subramanian writing to you, I have by state this to you that, I have come to work this morning 10:00am as you know abruply you told me that my employment no longer as a chef (saffron Indian restaurant), also you have to leave in my premises ASAP. In spite of that I pleaded you and also requested you kindly not to take the extreme step. But you were not allow me to work.

I ask you that on what basis you terminate from the work. In spite of all the insult, mental abuse and humiliations. i still fulfilled my day to day work as per schedule. i never ever let you down once, I don't know what reason you terminated me. Please kindly explain what was the cause of it.

Thanking you

Prakash subramanian”

[26] While that correspondence appears to corroborate Mr Subramanian’sversion of events – that he was terminated without warning on 16 August, I consider it more likely to be a document intended by Mr Subramanian to walk back from the resignation he had given on the evening of 14 August.

[27] At least some of Mr Subramanian’s evidence appears to be self-serving and selective. While Mr Kandasamy referred to some irrelevant matters, his evidence is preferable and therefore capable of acceptance on the key question of whether a resignation was offered and accepted on Sunday, 14 August 2016. I find that it was.

[28] As a result I find that Mr Subramanian was not dismissed within the meaning of s.386 of the Act and that as a consequence his application for an unfair dismissal remedy must be dismissed.

COMMISSIONER

Appearances:

Mr P Subramanian, with Mr S Lokiah, for the Applicant.

Mr S Kandasamy for the Respondent.

Hearing details:

2016.

Melbourne (by telephone):

12 December.

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