[2020] FWC 1839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shanker Ramakrishnan
v
Dargan Financial Pty Ltd ATF For The Dargan Financial Discretionary Trust T/A Home Loan Experts
(U2019/10678)

DEPUTY PRESIDENT DEAN

SYDNEY, 7 APRIL 2020

Application for an unfair dismissal remedy – application dismissed.

[1] Mr Shanker Ramakrishnan was employed as a Mortgage Broker with Dargan Financial Pty Ltd ATF for the Dargan Financial Discretionary Trust T/A Home Loan Experts (HLE) from 16 April 2018 until his dismissal, which took effect on 3 September 2019.

[2] On 23 September 2019 Mr Ramakrishnan made an application under s.394 of the Fair Work Act 2009 for a remedy, alleging that he had been unfairly dismissed by HLE. The remedy Mr Ramakrishnan seeks is compensation.

[3] The application was heard in Sydney on 3 and 12 February 2020. Both parties were granted permission to be represented at the hearing. Mr Ramakrishnan was represented by Mr C Lindo and HLE by Mr D Kiel. Mr Ramakrishnan’s application was supported by evidence given by himself and Mr Scott Shying. A statement of Mr David Broadstock in support of Mr Ramakrishnan’s claim was admitted into evidence as Mr Broadstock was not required for cross examination. HLE led evidence from Mr Otto Dargan (Managing Director), Mr Bhisan Raj (General Manager) and Ms Kellie Tomas (Executive Assistant).

[4] For the reasons set out below, I find that Mr Ramakrishnan’s dismissal was not unfair, and so I dismiss his application.

Background

[5] HLE operates a mortgage broking service which specialises in obtaining loans for customers whose circumstances are described as complex and/or financially difficult.

[6] It has offices in Australia and Nepal. HLE’s office in Nepal has operated for more than six years and has approximately 150 employees. It conducts most of the sales administration functions including loan processing. There are around 24 employees in Australia.

[7] Brokers of HLE are assigned to different ‘credit niches’ and allocated client leads generated through various channels including the HLE website, telephone enquiries and live chats.

[8] Mr Ramakrishnan commenced with HLE as a mortgage broker on 16 April 2018 and was tasked with three niches namely Commercial, SMSF (Self Managed Super Fund) and Bad Credit. Prior to his employment with HLE, Mr Ramakrishnan had 25 years’ experience in the banking and finance industry and by reason of that experience was considered a senior broker at HLE.

[9] Mr Ramakrishnan was advised of his dismissal at the conclusion of a meeting on 5 August 2019 where he was asked to respond to a number of performance and conduct issues. The reasons for the dismissal were set out in the letter of termination dated 5 August 2019 which reads as follows:

“I am writing to you to confirm the termination of your employment with Home Loan Experts.

In this regard, I refer to your performance agreement plan dated 14 June 2019 (PAP)and to our various meetings and written exchanges in respect of Home Loan Experts’ concerns regarding your performance and conduct. These meetings and written exchanges have included (without being exhaustive):

1. we attempted to meet with you on 12, 15 and 30 July 2019;

2. we met with you on 29 July 2019 during which we provided you with an outline of your work performance and conduct issues and Home Loan Experts’ concerns regarding your suitability for your position (First Show Cause Meeting). During this meeting you refused to answer our questions, citing that you did not have access to your work account in order to verify information;

3. we invited you to access your work account on 31 July 2019 or 1 August 2019 and, per your request, to provide your responses to our questions in writing (Show Cause Letter). You did not respond to the Show Cause Letter until the evening of 31 July 2019;

4. we provided you with access to your work account on 1 August 2019 and accepted a copy of your written responses to the Show Cause Letter (Show Cause Response);

5. we met with you on the morning of 5 August 2019 to ask additional questions and clarify your responses (Second Show Cause Meeting); and

6. we met with you on the afternoon of 5 August 2019 to confirm the termination of your employment (Termination Meeting),

(together, the Show Cause Process).

During the Show Cause Process, Home Loan Experts afforded you with significant opportunities to respond to its concerns regarding your performance and conduct. In this regard, we note that we provided you with additional time to prepare for each show cause meeting when you requested it, and we provided you with time to review your work account as you claimed that you needed to do so in order to adequately respond to our concerns. We note that in attending Home Loan Experts’ offices on 1 August 2019, Bhisan Raj KC saw that you had prepared most of your written responses to our concerns before you accessed your work account and that you used only one hour of the two hours allocated for your access.

In each of the First Show Cause Meeting, Second Show Cause Meeting and Show Cause Letter, Home Loan Experts explained our concerns to you and provided you with specific examples of those concerns. In addition, during the Second Show Cause Meeting, we discussed:

• questions you had raised in respect of your PAP;

• your Show Cause Response and in particular:

• Home Loan Experts’ concerns that you have failed to follow our internal processes and procedures on multiple occasions, which has resulted in client complaints;

• on repeated occasions you have failed to follow reasonable and lawful directions to follow our internal processes and procedures; and

• you have not met the inherent requirements of your position or achieved your Key Performance Indicators, despite the PAP.

As discussed during the Termination Meeting, we have considered all of your responses and information that you have provided during the Show Cause Process and taken these into account in our decision-making process. We consider your explanations to be unsatisfactory because:

• they do not provide any reasonable explanation for you failing to achieve the inherent requirements of your position or your Key Performance Indicators. These requirements are reasonable and each Home Loan Experts Mortgage Broker is expected to meet the same or similar standards;

• you have failed to follow our processes and procedures in managing our clients and submitting loans. We operate in a highly regulated industry and your failure to follow the processes and procedures has exposed us to unnecessary regulatory risks and potential lost clients and reputation damage;

• you do not appear to appreciate the seriousness of your conduct or accept responsibility for it and instead have acted in an aggressive manner in which you have repeatedly proclaimed that your employment has either been terminated or will be terminated;

• you have not provided a reasonable explanation for your unauthorised absences from the office, particularly noting that employees are required to report any absence from the office to their manager and there are meeting rooms and a coffee machine available to staff who wish to have a quiet conversation about a difficult client matter;

• the fact of directing clients to your personal email address without prior authorisation from Home Loan Experts exposes the client to potential privacy issues and confirms that you have personally serviced a client to Home Loan Experts’ detriment or potential detriment.

As discussed during the Second Show Cause Meeting, your conduct has been wilful and deliberate and is inconsistent with the continuation of your contract of employment dated 5 March 2018 (Contract).We consider your performance and conduct has caused a serious and imminent risk to the reputation, viability and profitability of Home Loan Experts in that investment in marketing was lost, as was the potential revenue from the leads that were not followed up properly and updated in timely manner.

Accordingly, Home Loan Experts has made the decision to terminate your employment in accordance with clause 15.1 of the Contract, effective on and from 3 September 2019. During your notice period, in accordance with the Contract, you are expected to attend work, follow our directions, and perform your duties to the best of your ability, diligently and faithfully. In this regard and in accordance with Part 5, clause 6.1 and clause 15.1 of the Contract, Home Loan Experts reserves its right to direct you to perform alternative duties and at a different work location.

In accordance with clause 11.2 of your Contract, you are directed to provide Home Loan Experts with a doctor’s certificate or statutory declaration for any day of personal (sick or carer’s) leave taken during your notice period. Such evidence must be provided within 24 hours of your absence. If you wish to take any annual leave during your notice period, you must provide your manager, Soham Bhatt, with your written request more than 24 hours before the date on which you wish to take annual leave. Such requests will be considered on a case by case basis. Failure to follow these lawful and reasonable directions will be considered to be serious misconduct and may warrant the summary termination of your employment. …”

[10] Mr Ramakrishnan contends that the reasons given for his dismissal are not valid reasons and that he was not afforded procedural fairness.

Events leading to Ramakrishnan’s dismissal

Performance Management

[11] Mr Ramakrishnan was under Mr Soham Bhatt’s direct supervision for the duration of his employment with HLE. Mr Bhatt was the Broker Team Manager and reported to Mr Raj. Mr Bhatt had left the employ of HLE in about September 2019 and was not called to give evidence in these proceedings.

[12] Mr Dargan is the founder and Managing Director of HLE. He gave evidence that he was involved in the performance management of Mr Ramakrishnan, albeit intermittently. It was Mr Dargan’s evidence that HLE first raised performance concerns with Mr Ramakrishnan in January 2019. This was acknowledged by Mr Ramakrishnan who provided a comprehensive response to the concerns in an email to Mr Dargan dated 24 January 2019¹.

[13] Mr Raj gave evidence that he had responsibility to oversee the brokers and became involved in Mr Ramakrishnan’s performance management from around July 2019. According to Mr Raj, Mr Bhatt had regular one-on-one meetings with each broker and he prepared detailed meeting notes which were kept on each broker’s HR file. Attached to Mr Raj’s statement are meeting notes prepared by Mr Bhatt containing details of his meetings with Mr Ramakrishnan. Mr Ramakrishnan did not dispute the veracity of those notes.

[14] Mr Raj said that all brokers of HLE are required to meet certain sales targets and KPIs and these targets and KPIs are discussed with all brokers to ensure that they are achievable.

Performance Improvement Plan – April 2019

[15] At a meeting with Mr Bhatt on 18 April 2019, Mr Ramakrishnan was advised that he would be subject to a Performance Improvement Plan (PIP) as a result of the continuing concerns regarding his performance. This meeting was preceded by two earlier meetings on 1 and 15 April 2019 which addressed the perceived unsatisfactory performance of Mr Ramakrishnan.

[16] The proposed PIP was to commence on 17 May 2019 and conclude on 17 August 2019.

[17] On 28 April 2010 Mr Ramakrishnan wrote to Mr Bhatt with respect to the PIP. The email correspondence was comprehensive and included statements and observations in response. In summary, Mr Ramakrishnan sought clarification of a number of issues relating to the PIP and sought clarification between the team goals and a broker’s individual target/KPI’s.

[18] Consequent to the correspondence, Mr Ramakrishnan was advised by Mr Bhatt at a meeting on 30 April 2019 that the PIP would cease to apply due to his misunderstanding of the individual goals/KPI’s that he was required to meet.

[19] Mr Ramakrishnan disputed any confusion on his part and, unusually, argued that he did not request the withdrawal of the PIP. Notwithstanding the contention, what remains relevant is that Mr Ramakrishnan was informed if his results did not improve, he would be subject to another PIP.

Written warning – June 2019

[20] On 7 June 2019 Mr Ramakrishnan was issued with a written warning for a breach of HLE’s policy and procedure by failing to email a Preliminary Assessment to clients prior to making the loan submission.

Performance Agreement Plan (PAP) – June 2019

[21] Not long after the written warning was issued, Mr Ramakrishnan attended a meeting with Mr Bhatt and Mr Raj on 13 June 2019 where he was told that he would be placed on a 4 week Performance Agreement Plan (PAP) which was to commence on 17 June 2019 and conclude on 12 July 2019.

[22] The PAP was documented by way of letter dated 14 June 2019 and was described as having been designed to assist Mr Ramakrishnan to improve his results. A list of key performance indicators (KPIs) was identified which Mr Ramakrishnan was required to achieve. Those KPIs included targets set for:

• Number of calls made per business day

• Number of emails sent per business day

• Amount of time spent on the phone queue per business day

• Number of SAFs sent per business day

• Number of SAFs received per business day

• $value of deals submitted per week

• $value of deals settled per week

[23] The letter also states the following:

“This performance plan will start from Monday, 17th June and we will meet every Monday thereafter, starting on 24th June to discuss your results for the prior week and to check-in if you’re meeting mutually agreed targets.

We are confident that with your vast experience and knowledge, if you are able to hit these mutually agreed numbers, then this plan will help you improve your performance and lead it on an upward trajectory. Bhisan [Mr Raj] and I [Mr Bhatt] are happy to provide you with any assistance that you may require.

We’ll review your results over a 4-week period commencing on 17th June 2019. If at the end of this period, you have not met the above targets, it may lead to a final warning and/or termination of your employment.” 2

[24] Mr Ramakrishnan asserted the targets that applied were unrealistic and unachievable, and on that basis refused to sign the PAP.

[25] Mr Bhatt met with Mr Ramakrishnan on a weekly basis to discuss his progress with the KPIs. There is no dispute that Mr Ramakrishnan did not achieve the targets set out in the PAP.

[26] Prior to the third weekly PAP meeting to be held on 8 July 2019, Mr Ramakrishnan wrote to Mr Bhatt on 7 July 2019. The email correspondence was in the following terms:

“I refer to Performance Agreement Plan dated 14 June 2019 (which was unsigned by me).

As at close of business 5 July 2019, I note that HLE have NOT advised me of their Intentions to Terminate my Employment, issue me with further Final Warning, or cease PIP etc as at 17 July 2019 etc.

As we have a Weekly Performance Agreement Plan meeting scheduled for 8 July 2019, I will need clarification of the following:

1. When does HLE expect to be in a position to make a decision as to whether they intend to Terminate my Employment, issue me with a further Final Warning, or cease PIP? I note that the Performance Agreement Plan goes until 17 July 2019, and I am of the view that HLE would be reasonably positioned to make an assessment of their intentions, and communicate their intent prior to this date

2. Please confirm what Termination Payment is being provided to me, and that all accrued Annual Leave Entitlements will also be paid separate to this Termination Payment – my understanding of my Contract of Employment is that this Termination Payment will be paid separate to any accrued Annual Leave Entitlements.

3. Confirmation of what Letter of Separation is being provided and what is being stated in this Letter, I would expect that the Letter of Termination is provided up to and no later than the time of Termination of Employment. I also request a copy of the Termination Letter to review.

4. With respect to all clients/referrers introduced by MYSELF to HLE I will need to be communicating with each of them personally to notify them that I will no long [sic] be in HLE’s employment.

5. I will require an Audit of my Files to be completed and the results of such communicated to me prior to Termination of Employment, as HLE is fully aware that I would no longer have access to any emails and CRM’s etc to action any items on cessation of employment.

6. I will require written confirmation that all my Bank & Lender Accreditations will cease to be used by HLE upon Termination of Employment, nothing that HLE have a database where my Broker Codes are made available for the use of Support who are based off-shore, I expect HLE to indemnify me against any potential matter that may arise in the event of unauthorised use of my Accreditations (as you are aware we have had documented instances where Support have used my Bank & Lender Accreditations in breach of the Bank & Lender polices without notification to myself prior)

On another note I am likely to need to attend to some personal appointments in the week and will advise you of any absences (there is no expectation that HLE pays me for these absences).” 3

[27] On 8 July 2019, Mr Ramakrishnan attended the third weekly PAP meeting with Mr Bhatt and Mr Raj. The email of 7 July sent by Mr Ramakrishnan to Mr Bhatt was one of the subjects being discussed. According to the meeting minutes 4, Mr Bhatt addressed the matters which Mr Ramakrishnan sought clarification and told Mr Ramakrishnan that:

“1. … the decision as to whether to terminate the contract will be based on whether the required numbers have been achieved by Shanker. If the lead indicator numbers show that he is on track to achieve budget, then the Performance Plan will be extended, if not, his contract as a mortgage broker will be terminated. The Performance Plan Agreement does not require HLE to make a decision prior to the end of the Performance Plan Agreement period, which is for a period of 4 weeks commencing 17th June 2019.

2. The Termination payment is in line with your notice period, which should be 1 month (please refer to your employment contract for confirmation). If you were to resign, then we would require you to work the notice period in a different area of the business, e.g. writing content for our marketing team. A notice period can be waived off by mutual agreement, however, in this case you would not receive payment in lieu of it. Any accrued annual leave would be paid on top of the notice period.

3. A separation letter will outline who terminated the agreement, i.e. HLE or yourself. If you resign, the agreement is deemed to have been terminated by you and if it is terminated by HLE then the separation letter will note this. HLE is not required to provide you with a copy of the termination letter for review.

4. To be clear, any leads introduced by you while in employment with HLE belong to HLE. You are not to contact the clients and this is outlined clearly in your employment contract. Even if the lead has not been submitted, the same criteria applies.

5. Any audit of a broker’s files is completed after termination of employment, this is our standard process. If the audit is clear, then a separation letter is issued. If not, then we will contact you in any case. HLE will not be sharing the results of our file audit with you.

6. When Connective is notified of your separation from HLE, we will be notifying them of the date when you ceased to be a HLE employee. Therefore, it is not possible for your accreditation to be used to lodge any applications after this date as they will not be accepted by Connective any way. Please note that HLE will not be issuing any letter indemnifying you.

7. Regarding your need to attend personal appointments during this week, it is a requirement that you notify me of the dates and times of these, so that they can be lodged as annual leave. Please note any unexplained absences from the office will be counted as annual leave.”

[28] On 11 July 2019 Mr Ramakrishnan received an Outlook invitation to attend a Performance Plan Agreement meeting the following day. The purpose of the meeting was said to review the results over the 4 week period commencing 17 June 2019. Included in the invitation was a line noting “We need to advise you that this will be a formal meeting that may result in action being taken, up to and including, termination of your employment. We invite you to bring along a support person to the meeting if you choose to do so.”

[29] The meeting was scheduled to commence at 10 am on 12 July 2019. At 5.55 am Mr Ramakrishnan sent an email to Mr Bhatt advising that his wife was unwell and that he would be taking carer’s leave that day. At 6.06 am Mr Ramakrishnan sent a further email to Mr Bhatt to request that the meeting be rescheduled on the basis that he was not provided with sufficient notice and in terms of having a support person at short notice.

Suspension of access

[30] Later on 12 July 2019 HLE disabled Mr Ramakrishnan’s access to all of its computer systems. HLE explained that this was a precautionary measure taken to protect its intellectual property after it became aware that Mr Ramakrishnan had removed his business cards from the reception and had cleared his belongings from his desk before leaving the office on 11 July.

[31] In this regard, Mr Dargan stated that past employees and contractors had attempted to misappropriate HLE’s intellectual property and confidential information. Mr Dargan said that these past incidents incurred significant damages and resulted in several lengthy and expensive court cases, hence his action to disable Mr Ramakrishnan’s access.

15-27 July 2019

[32] The meeting arranged for 12 July 2019 was deferred as a result of Mr Ramakrishnan’s absence on carer’s leave. A meeting was rescheduled for 15 July 2019.

[33] On 15 July 2019, Mr Ramakrishnan sent an email to Mr Bhatt and copy to Ms Kellie Tomas. In that email correspondence with a subject title ‘TERMINATION OF EMPLOYMENT’, Mr Ramakrishnan said:

“I refer to your Outlook Invitation sent to me on Thursday 11 July 2019 at 4.59 PM requesting my attendance at a Performance Management Meeting scheduled for 10.00 AM on 12 July 2019.

In your invitation I was advised the following:

We need to advise you that this will be a formal meeting that may result in action being taken, up to and including, termination of your employment. We invite you to bring along a support person to the meeting if you choose to do so.

On Friday 12 July 2019 at 6.06 AM I emailed you to advise that I would be declining the meeting on the basis that I did not believe that HLE had provided me sufficient notice for this meeting in the event I was to bring a Support Person to the meeting.

As a matter of clarification does HLE believe that the notice period was sufficient, as I am reasonably advised by the Fair Work Commission that HLE may have been in breach of their legal obligations to me as an Employer in this matter, and it is on this basis that I declined to meet, requesting instead for the meeting to be rescheduled for a later date and time.

On Friday 12 July 2019 at 5.55 AM I had also emailed you to advise that as my wife was unwell I would be availing of a Carer’s Day for that day with the request to expense this to my Sick Leave/Carer’s allowances, on the basis that I was of the view that I had sufficient appropriate leave balances to facilitate this.

I note the following;

1. At approximately 9.30 AM on 12 July 2019 HLE made a decision to change the password on my work provided email account, without any notification to myself, thereby disabling my access to my entire work platform

2. HLE had also made a decision to disable my building pass, and the before and after-hours access to my designated place of work, also without notification to myself

Based on these 2 specific extraordinary actions taken by HLE I believe that HLE effectively Terminated my Employment with HLE, and as such I am no longer an Employee of HLE.

In accordance with the effective Termination of my Employment I now request from the HLE the following:

1. Please arrange to forward to me by close of business 15 July 2019 my Letter of Termination under HLE Letterhead stating the reasons for Termination of my Employment from HLE effective 12 July 2019

2. Please arrange for HR to finalise my pay and advise me in writing without any further delay my Termination Pay and expected Accrued Annual Leave Allowances, and advise the expected date of payment of this final pay

3. Please advise in writing when I can expect my Separation Letter to be provided

4. HLE to confirm that upon Termination of my Employment that all Bank & Lender Accreditations held by myself during my time with HLE have and will cease to be used by HLE

5. HLE to confirm that as of 9.30 AM 12 July 2019 that no further emails had been sent from my email account under my email signature without acknowledging to the recipient that the email was being sent by someone else on my behalf (I would consider the use of my image and email signature after 9.30 AM 12 July 2019 by HLE, an act that constitutes deceptive and misleading conduct)

I note that you had attempted to contact me on my work and personal mobile, and personal email on Friday 12 July 2019 to discuss my request for Carer’s Day, and that I had declined to speak with you on the phone at the time advising that I was unable to for personal and privacy reasons, and advised furthermore that as my request had been emailed to you appropriately I was fine for HLE to approved/decline the request in writing.

I was subsequently advised by you in email that all leave requests (including Sick/Carer’s Leave had to be approved by HLE prior to this being availed).

Based on my professional experience of 25 Years in Australia in the banking and finance industry, HLE are the only organization that I have worked for that is expecting this, and I am unsure as to how we can pre-arrange Sick/Carer’s Leave, except in some circumstances of having to attend to pre-arranged medical/health procedures etc.

In my 15 Months with HLE from April 2018 until now you have never once contacted me to discuss my request for sick/carer’s leave on the day, so am unsure as to why you considered it necessary to do so in this instance ?

I note that I had not cut all communication with you and had responded by text to you, and that you had access to email me to my personal email account.

In my text to you I also advised you that if my Carer’s Day request was an issue for HLE, they were not to pay me for this day, but mark it as leave without pay.

In your texts you also advised that Otto Dargan had attempted to contact me that morning. I have reviewed my mobile phone and confirm that I do not have any missed calls nor any texts that identified the sender as Otto Dargan.

I note also that in your text you requested that I produce a Medical Certificate on Monday, to which I advise the following:

1. The Carer’s Day was taken to attend to my wife who was unwell, and is also a mother to our 2 children aged 3 years, 3 months, and 10 months who were in her care for the day

2. My wife as a full-time mother is currently on Maternity Leave and does not request/obtain Medical Certificates from her Medical and Health Professionals as she is not required to

3. My wife who is also a Medical and Health Professional herself had queried the use of her personal medical records to satisfy my employers requirements

Notwithstanding the above, I acknowledge that any Employer has a right to make reasonable inquiries to satisfy themselves as to the purpose of the leave availed by their staff members, and as such you had amended your original request of me from providing a Medical Certificate to a Statutory Declaration stating purpose of the Leave Availed.

I will have a Statutory Declaration made available to HLE to confirm the purpose of the leave on the day on the basis that HLE confirm that I am being paid in full for this date from my available allowances of accrued Sick/Carer’s Leave.

As I am effectively no longer an Employee of HLE I understand that there are some post-employment obligations that HLE expect me to review and agree to, so in this regard please arrange to forward to me the exit agreement HLE uses with their Employees leaving the service of HLE, without further delay.

I request a minimum of 72 hours to review this agreement and if necessary will seek legal advice to ensure that I am not being unduly compromised and encumbered in any future employment I may undertake.

With respect to the return of Tools of Trade I request that HLE review their records and provide me a list of items expected to be returned.

I also make a request to not have any further meetings with anyone from the Sydney HLE office (for personal reasons that are both health and medical related) except Otto Dargan’s Executive Assistant Mrs Kellie Tomas who I believe is adequately authorised to take the Tools of Trade back into HLE’s possession, and conduct any exit interview HLE may wish to conduct with me.

I have copied Kellie on this email (Kellie can you please contact me on this email at your convenience and we can make a time and place to meet up outside HLE’s office to facilitate the above, I will be available to meet up in the week commencing 22 July 2019, and am not able to do so any earlier for medical and health reasons).

On another matter Kellie can you please let Otto personally know I will make contact with him down the track to catch up with him in person if he is agreeable, as I would like to personally express my gratitude to him for allowing me to be a part of his successful business for the time I was at HLE, and to also wish him all the best in his business and personal life.

Soham on a personal note I wish you all the best in your future both professionally and personally, and advise/confirm that I will be declining today’s scheduled meeting for 10 AM, as I do not believe that actions taken by HLE to effectively terminate my employment allow me to reasonably consider myself an Employee any further.

As a well educated, long-standing, dedicated, and respected professional of the banking and finance industry of 25 years, I have always strived to maintain the highest standard of integrity, ethics, and professionalism, and in my years of employment with ANZ, Westpac, CBA, St George Bank, BankWest, BoQ, and 3 Aggregators, Loan Market Group, Connective Credit Services, and Astute Financial Management all organisations have found my behaviour and conduct to be acceptable, as well as having clean audits and credit reviews, and I expect that this would be no different with HLE, on my departure.” 5

[34] Mr Ramakrishnan took sick leave between 15 and 26 July 2019.

[35] Mr Raj said that after receipt of the 15 July email, he engaged in various email correspondence with Mr Ramakrishnan between 15 and 17 July 2019 where he sought to confirm Mr Ramakrishnan’s willingness to resume discussions regarding the performance management process upon his return to work. He also told Mr Ramakrishnan that he had not been terminated and that the limits on his access were temporary.

[36] On 21 July 2019 Mr Ramakrishnan wrote to Mr Raj to advise that he was unable to return to the office until 29 July 2019 due to health reasons, and he provided a medical certificate.

[37] Subsequent to further email exchanges, Mr Ramakrishnan agreed to attend a formal performance management meeting on 29 July 2019.

Meeting on 29 July 2019

[38] Mr Ramakrishnan attended a meeting with Mr Bhatt and Mr Raj on 29 July 2019. At the meeting, Mr Ramakrishnan was asked to respond to matters relating to his performance and his handling of various customer files that HLE became aware of. Mr Ramakrishnan was also questioned about allegations arising from an audit of his emails conducted by HLE. Those allegations were described as a lack of compliance with the company’s usual communication management procedures; multiple incidents of client communications being referred to his personal email account, and allegations of dealing with clients in contravention of his employment contract. Mr Ramakrishnan denied the allegations and claimed that he was unable to respond to the questions put to him without having the necessary information as a result of his access being disabled.

[39] Later on the same day, Mr Raj wrote to Mr Ramakrishnan in the following terms:

“Soham tried to reach you over the phone but I think you were busy so he has left a voice message. He has also sent an invitation for tomorrow’s meeting.

We had discussion with Otto and he has advised that you should get the responses for things you have raised re performance plan and concerns you had about the conversion, niches allocated etc. (which you had emailed us before). It would be best if you could come up with any other concerns you had as well so that Otto can discuss all with you.

We will also provide you with your email access once you are in the office tomorrow.

This will be a follow up meeting from today’s meeting in general when you meet with Otto.

Thank you.” 6

[40] On 30 July Mr Ramakrishnan wrote in response to Mr Raj. In that email correspondence 7, Mr Ramakrishnan:

• noted that he had already made prior arrangements to see a medical specialist on 30 July and would not be in the office.

• noted that irrespective of his absence, he would be declining to attend the conference given the short notice and given the purpose of the meeting was to determine action up to and including termination of employment.

• requested that the meeting be rescheduled from 31 July onwards.

• raised concerns that at the meeting on 29 July questions were asked of him that were not directly relevant to the performance management where he was expected to provide meaningful responses in circumstances where he had no access to the sources of data and information.

• noted that his access had been disabled for almost 3 weeks and emails had been sent by Nepal office from his email account without his knowledge and consent, and without identifying the sender doing so on his behalf.

• challenged the allegation of his unauthorised absence from the office and claimed that since commencing with HLE in April 2018 he had worked more than his contracted core hours.

• requested that he be provided with a clear and detailed agenda as well as list of attendees and list of matters/questions HLE wished to raise, stating that it was his right to be given appropriate time to prepare and provide a response.

• claimed that the allegation that he sent HLE sensitive information to his personal email account was questionable and requested HLE to provide him all emails as evidence of the alleged breaches.

• acknowledged that there might be some emails sent from his HLE email to his personal email but explained that they only related to personal matters.

• maintained that he had always complied with his obligations in maintaining the integrity of the organisation and business that he had worked for.

• acknowledged the delay caused by his own health reasons but requested that the performance management process be concluded with no further delay.

[41] This was followed by a further email sent to Mr Raj on 31 July 2019:

“Hi Bhisan,

Thank you for your email.

In regards to providing a Statutory Declaration stating reasons for my absence on 12 July 2019 on Carer’s Leave, I will arrange for this to be sent through as discussed, this is fine and no problem at all.

With respect to 30 July 2019, there is no Medical Certificate, however I am fine to provide HLE a Statutory Declaration also stating the reasons for not being able to attend the Follow Up Meeting (although I would have thought my reasons were fairly clear noting this was to be a day of Leave without Pay).

In respect to my seeking approval prior for 30 July 2019, I remain very unclear as to what is currently expected as I believe that HLE have failed to provide me with some consistency with regard to their expectations at present, pending finalisation of the Performance Agreement Plan and the Actions to be Taken following review of this.

I do also note that my email was sent to you in the very early morning hours of 30 July 2019, approximately 6 hours prior to the 9 AM meeting, and there was no response from HLE to my email until well into the evening some 12 hours later, and after the meeting.

I note that on Monday 29 July 2019, it was suggested/requested by HLE I actually leave the office being my place of employment at 10 AM and not return for the day, after attending a 9 AM meeting at HLE’s instigation.

Do I ask management to approve my absences from the office, when they have specifically directed me not to remain in the office, after coming to a meeting they asked me to come to?

Please explain to me how this is supposed to work?

Where does the disabling of my building access pass almost 3 weeks ago, without prior notification to myself come into this? What conclusion do I as a Salaried Employee of HLE draw from this?

Is HLE expecting me to be in the office, or stay away until finalisation of the Performance Agreement Plan?

I wish to also raise another matter from the Monday meeting that pertains specifically to Soham’s statement of my “unauthorised absence” from the office on Thursday 11 July 2019 from 4.45 PM to 5.45 PM.

Soham stated that I was not in the office at this time, and in our meeting on Monday 29 July 2019 he alleged my absence was unauthorised etc, requesting my whereabouts.

I have reviewed my records and refute the claim and consider his claim to be both false and misleading with the intent to further undermine my integrity, character, and standing as a professional in the service of HLE.

I confirm that I was in the office until approximately 5.10 PM on 11 July 2019, when I had left the office with one of the other HLE Brokers to go across to the Rhodes Shopping Centre to have coffee being a Thursday night, returning to the office around 5.50 PM, and not leaving until around 7.45 PM later that night (as was confirmed by you at the meeting from the Scan In and Scan Out records for the day).

I am aware of this detail with some level of accuracy as Soham had in fact sent me an Outlook Invitation at 4.59 PM for a Friday Formal Meeting the next day, and I had seen this come through in my email appointments on my lap top in the office.

The colleague who had gone out with me for coffee had done so as they had asked for some assistance in a small personal matter, and was also aware that I had been upset about the email appointment sent to me at 4.59 PM by Soham, suggesting something along the lines that we go out for a coffee to “clear our heads”.

Soham to my recollection was actually in the small office and meeting room where he had been for some time that afternoon.

I would like to know exactly why Soham Bhatt who is in Management and is one of those responsible for overseeing my Performance Agreement Plan where recommendations/decisions are to be made by HLE that can include the Termination of my Employment, considers it acceptable to falsify these pertinent details to my detriment?

Does HLE consider this acceptable, and in keeping with HLE vision and values?

Does HLE expect me to continue to trust those who are placed in management over me?

Is HLE aware of the potential emotional and mental and psychological impact this has on an employee’s health and well-being, both in the short and longer term?

Bhisan I have been very patient with HLE to date with regard to the Performance Management process, however, I find myself left with little option now but to potentially consider taking further action without any further notice to HLE, that may likely include a formal request to the Fair Work Commission to review the management and other internal practices at HLE, specifically with respect to the handling of my Performance Management process.

I want to also remind you that in April this year Soham had also placed me on another 3 Month PIP, and 2 weeks later made a decision to take me of this when I started to question this further, at no time did I ask HLE to actually take me of the PIP and this was also conveyed by me to Otto.

Please also be advised that I have sought some preliminary Legal Advice and on the evidence of some compelling extraordinary actions taken by HLE (such as the disabling of my building pass, changing of my HLE email and Google platform passwords – all without any prior notification or explanation to myself), my Legal Advisors are of the strong view that HLE had in fact “effected” the termination of my employment on 12 July 2019, and in the event HLE claims I am still an employee, at minimum HLE’s actions are potentially unlawful.

Bhisan, at the risk of sounding disrespectful or condescending, as you have been in Australia for a relatively short time, please be advised that HLE is bound by law to meet their obligations to their employees, and that some aspects of these requirement may not be totally familiar to you.

I have been a professional in this industry for around 25 Years, including having held roles in management and leadership with the Big 4 Banks in Australia, and have also been involved directly with the hiring, management, and termination of staff, so have some working knowledge of some of the legal obligations of employers as well as employees.

I strongly believe that some of the actions taken by HLE are potentially unlawful, and at minimum would be considered unacceptable and unsatisfactory workplace practices by the Fair Work Commission.

Please come back to me without any further delay in regard to the outcome of the Performance Agreement Plan and review that has been undertaken by management, and specifically the impact this has on my Employment with HLE, and specifically how we are to progress forward from here.” 8

Show Cause Letter

[42] By letter of 31 July 2019, Mr Ramakrishnan was issued with a Show Cause Notice. The letter referred to Mr Ramakrishnan’s email of 30 July and his request that HLE provide him questions in writing. Mr Ramakrishnan was directed to provide a written response to a schedule of questions attached to the letter by 12 pm on 1 August 2019.

1 August 2019

[43] On 1 August 2019 Mr Ramakrishnan attended to HLE’s premises and was given access to the system and emails in order for him to provide a response. Later on the same day Mr Ramakrishnan provided written response to the matters raised in the Show Cause Letter.

[44] Mr Raj gave evidence that after evaluating the responses from Mr Ramakrishnan and being satisfied that his responses were unacceptable, he was suspended from duty on full pay so that various matters could be investigated. In particular, Mr Raj said that he questioned Mr Ramakrishnan about a specific file and he failed to give a credible explanation as to the reason why the progress of the customer’s loan was not updated in HLE’s system. Mr Raj explained that there were concerns that Mr Ramakrishnan might misappropriate HLE’s client database and other intellectual property such as training manuals.

[45] Mr Ramakrishnan was subsequently asked to attend a further meeting on 5 August 2019.

Events leading to dismissal

[46] Attached to Mr Raj’s statement is a SMS message sent to him by Mr Ramakrishnan on 2 August 2019. It reads:

“I have got the Stat Decs signed and witnessed, will email to you later today. I note you have booked a 2 hour meeting for Monday, is this really going to take 2 hours? I will drop my tools of trade back to you if you can have all my final Termination Notice and Documentation ready, as I do not wish to be dragging this out to any further meetings etc.” 9

Dismissal on 5 August 2019

[47] At the meeting held between Mr Ramakrishnan, Mr Otto, Mr Raj and Mr Bhatt on 5 August 2019, Mr Ramakrishnan’s responses to the Show Cause letter were discussed.

[48] According to Mr Dargan, after considering Mr Ramakrishnan’s responses, he reached a decision with Mr Raj and Mr Bhatt to terminate Mr Ramakrishnan’s employment due to his continued poor performance and conduct issues. Mr Dargan said that HLE was suffering a loss by continuing to employ Mr Ramakrishnan as his broking revenue was not covering the costs of his salary and entitlements.

[49] Mr Dargan said that Mr Ramakrishnan’s performance had been of concern since at least January 2019, being over six months prior to the termination of his employment. He was given numerous warnings about his poor performance and had been placed on two performance improvement plans during his employment.

[50] Mr Raj said that Mr Ramakrishnan never met his sales targets and never earned a commission during his employment.

[51] The termination letter handed to Mr Ramakrishnan is set out earlier in this decision.

Submissions and evidence

[52] The evidence and submissions set out below only deal with matters relevant to what needs to be determined to ascertain whether Mr Ramakrishnan’s dismissal was unfair.

[53] Mr Ramakrishnan claimed that the PAP which he was compelled to participate in was unfair and unreasonable. It was Mr Ramakrishnan’s evidence that he did not sign the PAP because the targets applied to him were unrealistic and unachievable. He explained that the niches he was allocated were complex and would require some 3 months to 12 months to convert from initial inquiry to settlement. It was therefore not achievable in a 4 week performance assessment period. He claimed that despite his disagreement, Mr Bhatt told him that he was expected to achieve the KPIs and HLE did not require his agreement to implement the performance management process.

[54] In this regard, Mr Raj said that the performance targets were discussed and agreed by himself, Mr Bhatt and Mr Ramakrishnan at the meeting on 13 June. He was never advised by Mr Ramakrishnan that he disagreed with any elements of the targets.

[55] Mr Raj said: “From my experience as a mortgage broker at HLE, Mr Ramakrishnan’s usual KPIs and his PIP targets were both reasonable and achievable having regard to the performance of all the other brokers. Furthermore, the PIP contained many sales activities which are to be done on a daily basis and which were designed to help boost Mr Ramakrishnan’s submissions and settlements. Mr Ramakrishnan’s actual results in the period of PIP were below expectations and well below comparable results of other brokers.”

[56] Mr Ramakrishnan also had grievances in relation to the niches he was allocated. He claimed that they were complex and required significantly more time and effort to convert. He also claimed he was told by Mr Bhatt that he could not choose the credit niches allocated to him.

[57] Mr Ramakrishnan agreed that the online leads were assigned automatically by the niche of the particular broker but said that the management has some say as to the distribution and quality of leads.

[58] Mr Ramakrishnan criticised the culture within HLE, claiming it was at times toxic and divided and competitive with animosity between the Australian and Nepalese mortgage brokers. Mr Ramakrishnan said that this was in part due to the favouritism shown by Mr Dargan to the Nepalese mortgage brokers including preferential treatment with respect to the allocation of leads as well as better service being provided by the Nepal off-shore team to the Nepalese brokers.

[59] Mr Dargan denied Nepalese brokers were given preference to better quality leads and maintained that all employees in the Sydney office are treated equally. Mr Dargan gave evidence that Mr Ramakrishnan received similar number of leads from the same composition of sources as each other HLE broker. HLE performance managed and terminated Nepalese staff both in Nepal and Australia based on their performance or behaviour.

[60] Mr Raj’s evidence was that niches are usually allocated according to experience and performance and may change as a broker develops their experience. It was his evidence that Nepalese brokers were not given preference to better quality leads and were treated equally to other employees with respect to performance management.

[61] Mr Raj said that Mr Ramakrishnan never raised any issues with HLE about his allocated niches. He stated that the niches assigned to Mr Ramakrishnan did not require significantly more time and effort to convert. The Bad Credit niche does not generally require intensive broker involvement in terms of loan processing and administration and often has the most conversions as there are limited lenders who can provide loans to borrowers with bad credit.

[62] According to Mr Raj, HLE ran an assessment of different niches in 2018 and found that the Bad Credit was one of the highest performing niches in the company and had at least the same conversion rate as other niches.

[63] Mr Raj testified that Mr Ramakrishnan’s lead conversion rate during the time of his employment with HLE was 2% lower than the average rate and that his success rates were not on par with other brokers who also handled the Commercial niche. According to him, Mr Ramakrishnan was on the bottom spectrum of HLE’s brokers and he settled less than on third of the budget during his employment.

[64] Both Mr Dargan and Mr Raj said that if a broker desired more or different leads, it was always open to brokers to log on to HLE’s phone queue or live chat queue to obtain leads which were not specific to a particular niche.

[65] Mr Raj said that almost all lenders have outsourced their back office functions and this is a common practice for both brokers and lenders. The witness statement of Mr Raj stated the following:

“Once a deal is submitted by a broker, most things are thereafter taken care of by the Loan Processing team in Nepal. Prior to submitting a deal, the role of brokers is to qualify leads and get in touch with the customer, analyse their needs, do assessments and send out the assessments. If everything is fine and the customer agrees to proceed with a loan application, then the broker sends them a checklist and that checklist goes to the Loan Processing team in the Nepal office. Once a loan application is submitted, the Loan Processing team follow up with the lenders, the valuers and make sure the file gets settled.”

[66] Mr Dargan said that it is a standard part of the process that staff members of the Nepal office have access to broker emails. This was communicated to Mr Ramakrishnan as part of his onboarding process and Mr Ramakrishnan made no objection at the time.

[67] Mr Raj pointed to the fact that brokers’ email accounts remain intellectual property of HLE and it is standard practice for brokers to store their account passwords in a centralised database (Lastpass) to allow the Nepal office to assist each broker with administrative and loan processing tasks. It was also pointed out that under clause 19.1 of Mr Ramakrishnan’s contract of employment, he consented to HLE accessing his emails.

[68] Mr Dargan said that all brokers in Australia are on the same remuneration structure. HLE does not pressure employees into resigning in order to replace them with brokers based in the Nepal office for two reasons. First, the costs are actually higher to sponsor Nepalese staff to work in Australia and second, a broker in Australia can perform better than a broker in Nepal as they can build better relationships with clients and lenders and can be available during normal work hours. Mr Dargan said that it would not be in HLE’s interests to pursue a strategy of moving broker jobs offshore.

[69] There is no dispute that Mr Ramakrishnan had completed training and an induction process upon commencing his employment. He also had access to an online Mortgage Broker Manual containing policies and procedure pertaining to the handling of client files as well as various other instructions and guidelines. Mr Ramakrishnan asserted, however, that HLE failed to provide him with proper and sufficient training.

Evidence from cross examination

[70] Mr Ramakrishnan, in cross examination, agreed with or conceded that:

• He acknowledged in an email to Mr Dargan in January 2019 that his results were ‘seriously underwhelming’. 10

• Minutes were usually received after meetings with management which reflected what had been discussed. 11

• He had the same targets as everyone else. 12

• The targets he was required to meet were outlined in HLE’s mortgage broker manual. 13

• He had received a writing warning in July 2019 for breaching HLE’s policies or procedures regarding sending preliminary assessments to clients. 14

• He had received notification of complaints made by clients or leads relating to his responsiveness: “I don’t recall more than two or three”. 15

• He had meetings with his line manager about his failure to update the Mercury CRM system. 16

• He cleared out his desk and took his business cards from the reception in the evening of 11 July. He explained his action based on the outlook invitation he received because he believed he would be terminated the following day. 17

• He intentionally held off putting through deals from his personal clients because of “increasing issues with Nepal” 18

Mr Ramakrishnan’s submissions

[71] Mr Ramakrishnan submitted that there was no valid reason for his dismissal related to his capacity and conduct. He was dismissed prior to being given proper opportunity to defend himself and respond to the issues outlined by HLE. The decision to terminate his employment was reached prior to the meeting and it was implied by the actions that HLE took by blocking Mr Ramakrishnan’s access on 12 July 2019.

[72] It was submitted that Mr Ramakrishnan was not properly warned about his performance and the expectations were not properly communicated to him. The PAP was imposed on Mr Ramakrishnan without his agreement and it had unrealistic expectations and unattainable goals. Further, he was not afforded reasonable time to achieve the expectations.

[73] Mr Ramakrishnan submitted that the allegation of misconduct brought against him was not put to him prior to the termination for his response, and as such the allegation should not be considered by the Commission. Further, HLE failed to provide any concrete evidence to substantiate the allegation of misconduct. It was submitted that Mr Ramakrishnan had been open about the dealings that he had with his clients.

[74] It was submitted that his dismissal was also due to HLE’s intention to reduce the numbers of Australian brokers.

[75] Mr Ramakrishnan also relied on a submission that he was led by a supervising manager, Mr Bhatt, who had himself received a warning for failing to properly train the brokers under his supervision. It was submitted that Mr Bhatt failed to identify the need for improvement, failed to implement the performance plan at an earlier stage in Mr Ramakrishnan’s employment and did not communicate well in terms of the performance expectations. It was because of Mr Bhatt’s attempt to redeem himself for failure on his part to proceed with the first PIP which ultimately led to Mr Ramakrishnan’s dismissal.

[76] Another submission was that Mr Ramakrishnan was treated differently to other brokers in that there were other brokers who did not meet the expectations but were still employed.

[77] It was also alleged that HLE failed to take into account the fact that he was suffering from a mental illness.

HLE’s submissions

[78] HLE submitted that the dismissal of Mr Ramakrishnan was not unfair. He was dismissed for poor performance and a failure to follow HLE’s processes and procedures. The dismissal occurred after HLE had conducted an appropriate and lengthy process of assessing his performance and providing him an opportunity to improve and respond.

[79] HLE submitted that the conduct of Mr Ramakrishnan which provides a sound, defensible and well-founded reason for dismissal includes:

a. poor performance, including prior to and during the PAP, and his inability to perform the inherent requirements of the role in respect of:

i. failing to achieve the necessary targets under the PAP, which were less than standard individual KPIs, or otherwise substantially improve performance;

ii: failing to meet standard individual KPIs;

iii: failing to respond and provide updates to clients in a timely manner, which resulted in a number of complaints being made to HLE; and

iv. failing to action and complete tasks in respect of received SAFs in a timely manner and on the same day they were received.

b. failing to comply with HLE’s policies, procedures and reasonable directions, in respect of:

i. failing to follow its processes and procedures in managing client files, communications and compliance process, despite repeated instructions to do so, which put HLE at risk of contravening the National Consumer Credit Protection Act 2009 (NCCP Act); and

ii. failing to send preliminary assessments to leads, which put HLE at risk of contravening the responsible lending obligations under the NCCP Act;

c. unauthorised absences from HLE’s office during business hours on 20 June 2019 and 11 July 2019;13 and

d. improperly sending client and lead information to a personal email address, in breach of the company’s policies and his contract of employment.

[80] HLE’s submissions also set out in some detail the procedure it followed in effecting the dismissal.

Consideration

Protection from Unfair Dismissal

[81] There is no dispute and I am satisfied that Mr Ramakrishnan is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.

Was the dismissal unfair?

[82] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[83] There is no dispute that Mr Ramakrishnan was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[84] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[85] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd¹⁹as follows:

‘... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

[86] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.²⁰

Valid reason - s.387(a)

[87] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”²¹ and should not be “capricious, fanciful, spiteful or prejudiced.”²² However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.²³

[88] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.²⁴ The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.²⁵

[89] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[90] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows²⁶:

“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a ”valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”

[91] The evidence supports a finding that there was a valid reason for Mr Ramakrishnan’s dismissal.

[92] Mr Ramakrishnan acknowledged in January 2020 that his results were ‘seriously underwhelming’. Over the relatively short period of Mr Ramakrishnan’s employment, performance concerns were raised with him on a number of occasions (set out earlier in this decision), particularly from April 2019.

[93] He received a written warning in June 2019 for breaching HLE’s procedures by failing to send a Preliminary Assessment to clients prior to making a loan submission. I accept it was important for him to follow these procedures as HLE had legal obligations under the NCCP Act.

[94] The initial performance improvement plan instituted as a result of ongoing performance concerns was discontinued because of an apparent misunderstanding by Mr Ramakrishnan of the difference between his monthly KPIs and the quarterly team goals. While this was to Mr Ramakrishnan’s benefit, he argued in these proceedings that he did not request its withdrawal. In any event, I am satisfied he was, at this point in time, clear about the performance required of him.

[95] I am satisfied that the KPIs set for Mr Ramakrishnan were reasonable in the circumstances. This is primarily because the uncontested evidence was that the KPIs set for him in the PAP were less than that required by other brokers, and his performance objectively measured was less than other brokers who were meeting these targets. Over the four week period of the PAP, Mr Ramakrishnan did not meet any of his KPIs.

[96] I am satisfied that Mr Ramakrishnan was clear that if his performance did not improve, it would lead to his dismissal. So much is clear from his many emails to HLE asking when he would be dismissed.

[97] I am also satisfied that Mr Ramakrishnan was provided with extensive training, in the form of a two week training period on commencement of his employment and access to an online Brokers Manual during his employment.

[98] It follows that I do not accept the criticism of Mr Bhatt made by Mr Ramakrishnan to the effect that Mr Bhatt failed to train him, failed to identify the need for improvement, and did not communicate well in terms of the performance expectations of Mr Ramakrishnan. None of these criticisms were supported by the evidence.

[99] Further, I accept the evidence led by HLE that Mr Ramakrishnan did not raise concerns during his employment as to the alleged difficulty of the niches he was allocated. I also accept the evidence of Mr Raj, that was not contested, that the ‘bad credit’ niche allocated to Mr Ramakrishnan was one of the highest performing niches in 2018.

[100] I accept the explanation of Mr Dargan as to the reason why Mr Ramakrishnan’s access was removed on 12 July 2019, that being that Mr Ramakrishnan had taken his personal belongings from the office the day before. In the circumstances, it was a reasonable assumption to make that Mr Ramakrishnan may not have intended to return to work.

[101] In relation to Mr Ramakrishnan’s claim that HLE failed to take into account his mental illness when dismissing him, it is somewhat difficult to take account of something that was not known to HLE at the time. There is no evidence that Mr Ramakrishnan advised HLE he was suffering from a mental illness until after he was dismissed.

[102] I reject Mr Ramakrishnan’s assertion that his dismissal was motivated by HLE’s desire to reduce the number of Australian brokers, in favour of more Nepalese brokers. I agree with the submission made by HLE that had that been the case, it would have made Mr Ramakrishnan redundant and not invested the time in supporting Mr Ramakrishnan to address the performance concerns.

[103] I do not consider the allegation of unauthorised absences is of sufficient importance as to support a finding of a valid reason for dismissal.

[104] In respect of the allegation that Mr Ramakrishnan sent client information to and from his personal email address and otherwise improperly dealt with client leads, I am not satisfied that this occurred in the way contended by HLE, particularly given Mr Ramakrishnan’s evidence that one ‘client’ was his brother in law. However, Mr Ramakrishnan’s continued poor performance and the failure to follow procedures with respect to the handling of files provide a valid reason to dismiss him.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[105] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,²⁷ in explicit terms²⁸ and in plain and clear terms.²⁹ In Crozier v Palazzo Corporation Pty Ltd³⁰ a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”31

[106] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.³² This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.³³

[107] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Ramakrishnan before his dismissal was effected.

[108] While Mr Ramakrishnan contends that he was not made aware of the precise nature of HLE’s concern about his conduct or performance and therefore did not have an opportunity to respond, I am satisfied on the evidence before me that he was notified of the reason for his dismissal and was given an opportunity to respond to that reason.

[109] The evidence demonstrates that the performance issues were clearly identified and raised with Mr Ramakrishnan. He received instructions and guidance on an ongoing basis. There were numerous discussions with him, as set out in the evidence of Mr Raj. The Show Cause notice also detailed the reasons for HLE’s concern about Mr Ramakrishnan’s performance.

[110] Further, the letter of termination provided to Mr Ramakrishnan sets out the reason for his dismissal.

[111] In terms of an opportunity to respond, it is clear from the chronology of events set out earlier in this decision that there were multiple opportunities given to Mr Ramakrishnan to respond to HLE’s concerns. He was given the opportunity to respond and in fact did so.

[112] In my view, Mr Ramakrishnan had a clear understanding of the expectations of him from his employer. He understood the requirements of the role. He did not perform to the standards set for him, which were the same or less than other brokers of HLE.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[113] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[114] There is no dispute that Mr Ramakrishnan was provided with the opportunity to have a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[115] A warning for the purposes of s.387(e) must clearly identify:

(a) the areas of deficiency in the employee’s performance;

(b) the assistance or training that might be provided;

(d) a reasonable timeframe within which the employee is required to meet such standards.³⁴

[116] The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”³⁵

[117] I am satisfied on the evidence that Mr Ramakrishnan was appropriately warned regarding his unsatisfactory performance. This is evidenced by the meeting minutes made by Mr Bhatt and attached to the statement of Mr Raj, and by the two performance improvement plans.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[118] While HLE’s Human Resource Manager was on maternity leave at the relevant time, I am satisfied that the size of HLE and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[119] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[120] It was argued on behalf of Mr Ramakrishnan that the post termination conduct of HLE was a relevant matter that should be taken into account. Particularly, HLE did not provide him with a separation letter until November 2019, and this hampered his ability to find alternative employment.

[121] I do not accept that a dismissal which is otherwise fair could be rendered unfair because of conduct of the employer post-dismissal.

[122] I have taken into account that Mr Ramakrishnan was the sole income earner for his family, however this is not sufficient to support as finding that his dismissal was unfair.

[123] To the extent it is necessary to do so, I reject the arguments made on behalf of Mr Ramakrishnan that HLE favoured the Nepalese brokers, or that his dismissal was somehow motivated by a desire on the part of HLE to engage ‘cheaper’ Nepalese brokers. Obviously, HLE knew the cost of employing Mr Ramakrishnan before it did so, and had been employing both Australian and Nepalese brokers for some period of time before Mr Ramakrishnan commenced.

Conclusion

[124] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Ramakrishnan was not harsh, unjust or unreasonable, and therefore it was not unfair. Accordingly, I dismiss the application.

DEPUTY PRESIDENT

Appearances:
C Lindo for Shanker Ramakrishnan.
D Kiel for Dargan Financial Pty Ltd ATF for the Dargan Financial Discretionary Trust T/A
Home Loan Experts.

Hearing details:
2020.
Sydney:
February 3, 12.

Printed by authority of the Commonwealth Government Printer

1 See Attachment BR-9 to Exhibit 5.

2 See Attachment BR-20 to Exhibit 5.

3 See Attachment BR-26 to Exhibit 5.

4 See Attachment BR-27 to Exhibit 5.

5 See Attachment BR-33 to Exhibit 5.

6 See Attachment BR-38 to Exhibit 5.

7 See Attachment BR-39 to Exhibit 5.

8 See Attachment BR-40 to Exhibit 5.

9 See Attachment BR-45 to Exhibit 5.

10 Transcript PN273.

11 Transcript PN300.

12 Transcript PN358.

13 Transcript PN366.

14 Transcript PN374.

15 Transcript PN386.

16 Transcript PN395.

17 Transcript PN550.

18 Transcript PN721.

19 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

20 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

21 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

22 Ibid.

23 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

24 Edwards v Justice Giudice [1999] FCA 1836, [7].

25 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

26 [2013] FWCFB 6191

27 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

28 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

29 Previsic v Australian Quarantine Inspection Services Print Q3730.

30 (2000) 98 IR 137.

31 Ibid at 151.

32 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

33 RMIT v Asher (2010) 194 IR 1, 14-15.

34 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].

35 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

Shanker Ramakrishnan v Dargan Financial Pty Ltd ATF for the Dargan Financial Discretionary Trust T/A Home Loan Experts

[2020] FWC 1839

7 APRIL 2020

DECISION