Ravindra Chandra v UGL Rail Fleet Services Ltd

[2015] FWC 7381

[2015] FWC 7381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ravindra Chandra
v
UGL Rail Fleet Services Ltd
(U2015/6105)

VICE PRESIDENT LAWLER SYDNEY, 26 OCTOBER 2015

Application for relief from unfair dismissal.

[1] UGL Rail Services Pty Ltd (UGL) is a large organisation that supplies rail related services to the NSW Government and other clients.

[2] UGL made a decision to close its facility at Chullora. Most of the staff on site were relocated to other UGL sites, principally a site at Auburn, or took voluntary redundancy.

[3] A small portion of the workforce was retained at the Chullora site to clear and clean the site before the lease on the site was returned. The Applicant was a Team Leader in that group. It is likely that, but for the dismissal, Mr Chandra would have been transferred to the Auburn site when the clean-up at Chullora was complete.

[4] There was a system in place whereby employees could seek permission from Mr Sayavongsa to take particular items for themselves. If Mr Sayavongsa agreed, a docket was issued and the employee was then permitted to take the item, albeit that this had to be done in the employee’s own time.

[5] The Applicant was dismissed for “serious and wilful misconduct” particularised in his termination letter as:

• Removing copper pipes without appropriate authorisation by Management



• Using Company time to remove the Copper pipes from the Test Machine

[6] Most of the facts in this case are not in dispute.

[7] It is common ground that the site clean-up involved placing scrap in appropriate bins. There was a bin for wood and a bin for metal. It is also common ground that some degree of ‘breaking up’ was required, to either fit items in a bin or where an item could readily be broken down into items that belonged in different bins.

[8] The Applicant contends that there was also a bin for copper scrap. UGL witnesses denied that there was a copper bin, however it is common ground that there was a separate bin for ‘intercoolers’, which contain a substantial amount of copper, albeit that the copper pipes are encased in a steel cover.

[9] UGL was provided with a statement from Mr Milson, which was in evidence before me. Mr Milson’s statement records:

I will vouch that a bin for copper was put on site a week ago so I could remove intercooler cores (copper). After a week this bin was removed as it was being used for steel. Even though I had put 4 signs on this bin (for copper only) on request of Souvanh.

[10] Mr Sayavongsa agreed that there was an intercooler bin but denied that this was a copper bin, noting that the intercoolers, while containing a large amount of copper, are encased in steel.

[11] I am satisfied that even though Mr Sayavongsa did not regard the ‘intercooler bin’ as a ‘copper bin’, that was how Mr Chandra and others understood that particular bin.

[12] One of the items to be scrapped was a test rig (test machine). It had been placed in the scrap steel bin but was protruding above the top level of the bin. It was common ground that the bin company, Onesteel, would not take a bin that had material protruding above the top level of the bin.

[13] The test rig was taken from the bin. Mr Chandra observed that the rig had a number of copper pipes with fittings. He removed the pipes. I accept his evidence that he did so on the basis that he believed that the pipes could be sold to a customer of UGL and generate income for UGL.

[14] There was a dispute over the extent to which employees should have engaged in work breaking down items. Mr Sayavongsa gave evidence to the effect that there should have been very little need for such breaking down. He was concerned that the time cost involved in breaking items down did not justify that action in many instances.

[15] Nevertheless, it is clear that, as a Team Leader, Mr Chandra had a level of discretion and judgment to exercise in that regard. I am satisfied that when Mr Chandra undertook the removal of the copper pipes from the test rig he was acting in a manner that he considered was properly within his discretion (notwithstanding that Mr Sayavongsa turned out to have a different view over whether Mr Chandra’s time should have been used in that fashion). I am not satisfied that the amount of work required to be performed to complete the clean-up of the Chullora site meant that it should have been obvious to Mr Chandra that he ought not spend his work time in this way. The project was completed on time and a number of witness statements indicate that there was not significant time pressure on employees at that point in the project.

[16] Mr Chandra approached Mr Sayavongsa to seek his permission to sell the pipes to the customer. Mr Sayavongsa refused that request. Mr Chandra instructed Mr Kumar to put the pipes in the ‘copper bin’ and, thereafter, had nothing further to do with the copper pipes. Importantly, is it is clear that Mr Chandra took those actions before he was aware of any suggestion from management that it had concerns over what had occurred in relation to the test rig, let alone that Mr Chandra had misconducted himself in relation to the pipes.

[17] Those actions are at odds with Mr Chandra having any dishonest intent in relation to the removal of the pipes.

[18] Mr Kumar did not place the pipes immediately in the ‘copper bin’ but, instead, twisted them and placed them in a plastic bin where they were subsequently discovered. Mr Kumar was not called as a witness. He provided a statement to UGL that corroborated Mr Chandra’s version of events. The fact that the pipes only had scrap value after Mr Kumar had twisted them to fit into the plastic bin does not count against Mr Chandra.

[19] It is tolerably clear that there was a suspicion in the mind of Mr Smith that the Applicant had been engaged in preparing to steal the copper pipes. Mr Smith observed another employee behaving in a manner that he regarded as suspicious in relation to the test rig and this suspicion transferred to Mr Chandra when the removal of the copper pipes from the test rig came to Mr Smith’s attention.

[20] I am not critical of Mr Smith. He presented as a competent and conscientious manager concerned to ensure that the tasks for which he was responsible were undertaken efficiently and effectively in the interests of UGL. However, suspicion is not proof. When an employer relies upon misconduct as a ground for dismissal it is necessary for the employer to establish that the misconduct occurred on the balance of probabilities (with the Briginshaw satisfaction when an allegation of fraud or dishonesty is involved).

[21] The Respondent, in its reasons for dismissal in the dismissal letter, did not allege theft, fraud or dishonesty but it is tolerably clear that the suspicion that Mr Chandra had been preparing to steal the copper pipes lay behind the decision to dismiss him for the particulars of misconduct set out in the dismissal letter.

[22] I am not persuaded that Mr Chandra misconducted himself at all in the fashion described in the dismissal letter. I am not satisfied that, in the environment that prevailed on the site, Mr Chandra was aware that he required specific “authorisation by Management” before he could remove the pipes or that his use of company time in that regard amounted to a failure to follow clear instructions. However, even if, contrary to that finding, Mr Chandra did engage in misconduct by removing the pipes without “authorisation by Management” and by doing so on company time (about one hour), I am not satisfied that this was conduct that merited anything more than counselling or a warning, let alone dismissal.

[23] At the hearing the Respondent also relied upon additional reasons, namely that Mr Chandra:

• chose to deliberately ignore his manager’s instruction to scrap the test rig;



• Did not intend to sell the pipes to the UGL customer; and



• Deliberately lied during the investigation process and otherwise acted deceitfully.

[24] I adopt the written submissions of Ms Saunders in reply on this topic (MFI2, paras 33 to 47)

Matters specified in s.387

(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)

[25] For the reasons given above, I am not satisfied that there was a valid reason for the dismissal of Mr Chandra that related to his capacity or conduct.

(b) whether the person was notified of that reason;

[26] I am satisfied that Mr Chandra was notified of the reasons for his dismissal as set out in his dismissal letter. He was not notified of the reasons referred to in paragraph [23].

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[27] Mr Chandra was given an opportunity to respond to the reasons ultimately relied upon by UGL for his dismissal.

(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

[28] UGL did not unreasonably refuse to allow Mr Chandra to have a support person present to assist in the disciplinary discussions relating to the dismissal.

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[29] The dismissal did not relate to unsatisfactory performance.

(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) of a 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;

[30] UGL is a large enterprise with dedicated human resource management specialists. This factor does not count against Mr Chandra. However, it does give weight to the procedural fairness arguments advanced by Ms Saunders, particularly in relation to the “reasons for dismissal” referred to in paragraph [23] above.

(h) any other matters that FWA considers relevant.

[31] I have considered all of the circumstances of the case.

[32] Particular matters that are relevant are Mr Chandra’s age (49 years) and the inevitable difficulty that someone of his age and experience will have in finding ongoing work and the very adverse effect on his reputation that the dismissal has had within his own community, where he has been unjustly branded as a thief as a result of the dismissal. The evidence does not establish that Mr Chandra was a thief or that he engaged in any dishonesty.

Harsh, unjust or unreasonable

[33] For the reasons I have given, I am satisfied that the dismissal of Mr Chandra was harsh, unjust or unreasonable.

Remedy

[34] Sections 390 and 391 of the Act provide:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.


391 Remedy - reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

[35] I am satisfied that the prerequisites in s.390(1) and (2) are satisfied.

[36] I am not satisfied that reinstatement is inappropriate (and therefore must not make an order for compensation: s.390(3)(a)). On the contrary, I find that, objectively determined, Mr Chandra was treated unfairly and that there should be an order under s.391(1) requiring UGL to reinstate Mr Chandra to the position of Team Leader, being the same position that he held while he was working at the Chullora site, by appointing Mr Chandra to a Team Leader position at the UGL’s Auburn facility (the location to which he would have been transferred, but for the dismissal, after the closure of UGL’s Chullora facility) on terms and conditions no less favourable than those on which Mr Chandra was employed immediately before the dismissal.

[37] I consider it appropriate to also make an order to maintain the continuity of Mr Chandra’s employment.

[38] I also consider it appropriate to make an order to cause UGL to pay to Mr Chandra an amount for the remuneration lost, or likely to have been lost, by him because of the dismissal (based on his standard weekly wage less income - other than social security payments - earned in the period). The parties should attempt to agree that amount. In the event that it cannot be agreed, the Applicant has leave to relist the matter so that the proper amount of back-pay can be determined by the Commission.

VICE PRESIDENT

Appearances:

Ms L Saunders of the AMWU for the Applicant

Mr D Gittus of UGL for the Respondent

Hearing details:

2015

September 14, 15

Written submissions:

2015

September 11

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