Sundesh Sharma v CR Cox and Associates Pty Ltd T/A CR Cox

[2015] FWC 7797

[2015] FWC 7797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sundesh Sharma
v
CR Cox & Associates Pty Ltd T/A CR Cox
(U2014/12918)

COMMISSIONER WILLIAMS PERTH, 13 NOVEMBER 2015

Termination of employment.

[1] This matter involves an application made by Mr Sundesh Sharma (Mr Sharma or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is CR Cox & Associates Pty Ltd T/A CR Cox (CR Cox or the respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.

Background

[3] This matter was listed for hearing in March 2015 however the applicant failed to attend the hearing. The applicant’s non-compliance resulted in the respondent making an application under section 399A of the Act. This was the subject of a decision 1 issued on 29 April 2015 wherein that section 399A application was dismissed.

[4] Subsequently Mr Sharma’s unfair dismissal application was listed for hearing on 28 August 2015.

[5] CR Cox is an independent marine surveying and inspection company operating out of Western Australia since the early 1950s. Its Australian network includes permanent operations on various mine-sites, ports and loading facilities throughout WA, SA, TAS, VIC, NSW, QLD & NT.

[6] Mr Sharma was employed as a Marine Surveyor and was dismissed in September in 2014 as the result of behaviour that the company deemed to be misconduct that had compromised the business’s reputation and commercial viability.

Evidence and factual findings

[7] At the hearing of this matter Mr Sharma gave evidence on his own behalf. Mr Sharma also filed a number of statements from individuals that would be termed character references but which were not relevant to the key issues the Commission will be required to determine in this application. Mr Sharma also called Mr Glen Powell, a Stevedore at the Port of Geraldton, and Mr James Jobey, a past port Services Manager for Giacci Port Services at the Port of Geraldton who gave evidence. The respondent called Mr Vlajko Vukosavljevic (Mr Vukosavljevic) the Managing Director, Mr Brendon Monteiro (Mr Monteiro) the respondent’s Operations Manager, Mr Christopher Richmond (Mr Richmond) the respondent’s Business Development Manager and Ms Jane McCrea (Ms McCrea) an Administration Officer of the respondent all of whom gave evidence.

[8] Having considered the evidence of these witnesses I make the following factual findings.

[9] In October 2009 Mr Sharma began employment with Cox Australia Pty Ltd as the Operations Manager in Dampier. Following a change of business ownership Mr Sharma commenced employment in February 2012 with the respondent. Mr Sharma was employed in the Port of Geraldton as the respondent’s Port Manager. In this role he was to undertake marine surveying duties for the respondent’s clients. In previous employment Mr Sharma was a ship’s Captain.

[10] The respondent had no complaints about Mr Sharma’s technical capacity during his employment however Mr Vukosavljevic had cause to counsel him and warn him over an extended period of time about the manner in which he interacted with his colleagues and some representatives of the respondent’s clients.

[11] I accept the evidence of Mr Monteiro, confirmed by Mr Richmond, that on occasions in their interactions Mr Sharma was confrontational and argumentative with Mr Monteiro and refused to accept constructive feedback and ignored Mr Monteiro’s directions. At the time Mr Monteiro was Mr Sharma’s Manager.

[12] I accept Mr Vukosavljevic’s and Mr Monteiro’s evidence that that the second Surveyor employed to work in Geraldton with Mr Sharma around March or April 2012 found Mr Sharma’s behaviour towards him unacceptable on a number of occasions and because of Mr Sharma’s attitude toward him chose to return to Fremantle and subsequently resigned.

[13] I accept that Mr Vukosavljevic had reason to counsel Mr Sharma by email dated 24 October 2012 to the effect that he should not refuse as he had done previously to follow instructions from the Operations Manager, Mr Monteiro.

[14] On 26 June 2013 Mr Vukosavljevic again by email to Mr Sharma counselled him about his refusal to discuss particular matters with the Operations Manager and about disrespectful comments made about the Operations Manager in Mr Sharma’s email.

[15] Following this most recent difficulty Mr Vukosavljevic travelled to Geraldton and discussed face-to-face with the applicant these issues and the need for him to act respectfully towards his colleagues and the Operations Manager.

[16] In early November 2013 as the result of Mr Sharma’s email responses to a client that client complained to Mr Vukosavljevic about Mr Sharma.

[17] Mr Vukosavljevic again in early March 2014 counselled Mr Sharma and chastised him about his interactions with the Operations Manager. Mr Vukosavljevic told Mr Sharma that he was making difficulties and needed to be more courteous towards his colleagues and that he seemed to still find it hard to admit when he was wrong and he needed to improve these things to assist his career prospects.

[18] On 17 March 2014 Mr Vukosavljevic, with the Operations Manager, met with Mr Sharma in Fremantle and following this meeting provided him with a formal written warning for inadequate performance and inappropriate behaviour. The warning concerns Mr Sharma’s report writing skills not being of an acceptable standard, him subverting the position and responsibilities of his Manager Mr Monteiro and his disrespectful treatment of other staff within the business.

[19] The warning letter to Mr Sharma explained that it was an outcome of that meeting that Mr Sharma would attend some business writing classes and make a concerted effort to improve his written language skills. It was agreed that Mr Sharma would not approach more Senior Managers with operational matters and so bypass Mr Monteiro the Operations Manager. It was explained that the manner in which he addressed colleagues at times was inappropriate, disrespectful and constituted bullying. The letter mentioned Mr Sharma had agreed to no longer behave in a way that was argumentative and deliberately frustrating. The letter stated that any further reports of this type of behaviour would be taken very seriously and could result in further action.

[20] Around the middle of 2014 Mr Sharma had a disagreement with a vessel agent in Geraldton regarding the time they required him to board a particular vessel and as a consequence the respondent lost that particular client in Geraldton however that client continued to work with the respondent in their Fremantle operations.

[21] In late July 2014 during a period whilst Mr Sharma was absent from work for two weeks a client of the respondent’s, MMG, complained about a matter which did not involve Mr Sharma but rather another of the respondent’s employees. Consequently Mr Vukosavljevic arranged a phone conference call which was attended by himself, Mr Monteiro and Mr Richmond and they spoke to Mr Higgins of MMG. After they had discussed the immediate concern that MMG had (which had nothing to do with Mr Sharma) Mr Higgins, in Mr Vukosavljevic’s evidence, went into a tirade against Mr Sharma ultimately stating that his company refused to work with Mr Sharma any further. Mr Vukosavljevic was stunned by this reaction from their client. MMG declined to provide any further work to the respondent as a result of their view of Mr Sharma.

[22] I accept the evidence of Ms McCrea that in her experience in directly dealing with Mr Sharma on the telephone he would frequently be rude, unpleasant, unprofessional and uncooperative. I also accept her evidence that at times Mr Sharma was also unprofessional in the tone and comments he would make in emails to client representatives. Her evidence specifically dealt with a few such emails but also was that she could have provided a much greater number of similar email examples involving unprofessional responses to clients by Mr Sharma. Her evidence was that other staff in Fremantle would avoid taking phone calls from him and one staff member refused to speak to him due to her experiences dealing with Mr Sharma.

[23] Mr Vukosavljevic’s evidence was that whilst others within the respondent’s business believed Mr Vukosavljevic should terminate Mr Sharma because he was so disruptive within the relatively small business Mr Vukosavljevic attempted to try and guide Mr Sharma because he believed he was a good Surveyor technically and he thought he could change the way in which Mr Sharma dealt with his colleagues and clients representatives.

[24] On 4 August 2014 Mr Vukosavljevic had a further meeting with Mr Sharma which Mr Monteiro also attended. I accept the evidence is that Mr Vukosavljevic had a discussion with Mr Sharma about the fact that a ship’s Captain had refused to in future have Mr Sharma on-board his vessel, that there was a loss of business as a result of MMG’s refusal to use the services of Mr Sharma and that the standard of Mr Sharma’s reports was still unsatisfactory and his attitude towards Mr Monteiro and other colleagues was still also unsatisfactory. Mr Sharma accepted none of these criticisms and contested all of the issues raised by Mr Vukosavljevic. I accept the evidence is that Mr Sharma was told that any further instances will not be tolerated and that this was a final warning 2.

[25] The evidence is that a number of the respondent’s clients in Geraldton had advised the respondent’s management at different times that they were highly dissatisfied with Mr Sharma.

[26] On 5 August 2014 Mr Vukosavljevic and Mr Richmond in Geraldton met with representatives of two clients, Wilhelmsen Shipping Services (Wilhelmsen) and Monson Agencies (Monsons).

[27] The Wilhelmsen Manager was very critical of Mr Sharma and advised that the respondent’s business would be better in Geraldton if Mr Sharma was not there. The complaint was about Mr Sharma’s interpersonal skills and his written and verbal communication.

[28] Monsons is one of the respondent’s largest clients and had previously arranged for all their Port Managers nationally to appoint the respondent’s to undertake any marine surveying work that Monsons is required. At the meeting in August 2014 Monsons’ Fremantle Manager explained that their staff could not get along with Mr Sharma and Monsons’ Manager had sought permission to not use the respondent’s services in Geraldton as a consequence. Monsons’ senior management had agreed to this and Monsons would no longer be using the respondent’s services in Geraldton.

[29] Subsequently in response to this Mr Vukosavljevic decided that they would engage a second Marine Surveyor to be employed in Geraldton in an attempt to deal with Monsons’ complaints and so the respondent could service them without using Mr Sharma. The evidence is that the respondent lost Monsons’ business in Geraldton until that second Marine Surveyor was appointed.

[30] Subsequently the Manager of Monsons met with Mr Vukosavljevic and confirmed that relationships with the respondent had greatly improved since Mr Vukosavljevic had appointed a second Marine Surveyor in Geraldton as the sole point of contact with Monsons rather than Mr Sharma.

[31] Mr Vukosavljevic had not been aware of the specifics of these clients’ concerns when he had met with Mr Sharma the previous day and given him the final warning. Following these client meetings Mr Vukosavljevic considered for a number of weeks what he should do. He concluded Mr Sharma could not be relocated to Fremantle because of the upset he had caused to staff in the Fremantle office. The evidence is that he concluded that Mr Sharma had not noticeably improved in his interactions with client representatives or his colleagues notwithstanding the efforts Mr Vukosavljevic had made over a long period to counsel and warn him about these matters.

[32] Around the beginning of September 2014 a further complaint about Mr Sharma was received by Mr Vukosavljevic on this occasion from a stevedoring company complaining about his behaviour saying that Mr Sharma was making a nuisance of himself on a vessel. Mr Vukosavljevic’s evidence was that in the wake of the discussions he had with other clients in Geraldton the previous month to the effect that Mr Sharma was the reason the respondent was losing business he decided that this latest complaint was the last straw.

[33] As Mr Vukosavljevic explained it whilst Mr Sharma was just being a difficult character but doing his job properly Mr Vukosavljevic could experiment and try and guide him and perhaps succeed but when Mr Sharma, as a difficult character, was also starting to lose business for the respondent that was the point when the business could not afford to persist any further with Mr Sharma 3.

[34] Mr Vukosavljevic reflected on the fact that Mr Sharma was already on a warning and decided to ring Mr Sharma to discuss his situation. During their conversation after Mr Vukosavljevic raised his concerns about his conduct towards clients Mr Sharma argued that Mr Vukosavljevic wanted to make him redundant because of a decline in the company’s business in the Port. Mr Vukosavljevic’s evidence, which Mr Sharma denies, is that during this phone conversation Mr Sharma said that he would be willing to resign and leave quietly if Mr Vukosavljevic “took care of him...” I accept Mr Vukosavljevic’s evidence on this noting that his handwritten notes 4 reflect this part of the discussion between them.

[35] During that phone discussion Mr Sharma did not respond to the criticisms Mr Vukosavljevic raised. Consequently Mr Vukosavljevic made the decision to dismiss Mr Sharma and wrote to him the following day on 11 September 2014 advising him of his termination and the reasons for this. Mr Sharma was paid four weeks in lieu of notice and allowed to stay on in the respondent’s company house for four weeks at his request.

[36] The evidence of Mr Richmond is that since Mr Sharma left Geraldton there have been no complaints or problems and some of the lost business is slowly returning to the respondent.

Submissions

[37] Mr Sharma submits that any loss of business the respondent suffered was in no way due to his unprofessionalism or conduct.

[38] Mr Sharma complains that in neither instance when he was required to attend a meeting which resulted in him being formally warned was he notified in advance what the nature of the meeting was.

[39] Mr Sharma submits that when Mr Vukosavljevic rang him and told him the company would be better off without him this was because there had been a slowdown in business in Geraldton due to the closure of the MGI Tallering Peak mine site which meant there was no need to have two Surveyors in Geraldton.

[40] Mr Sharma says he was shocked when he saw the termination letter which refers to clients not being happy with his behaviour and performance and he submits that these are just made up stories.

[41] The respondent submits that it had repeatedly raised with Mr Sharma his inappropriate behaviour and conduct in both his interactions with his colleagues and with representatives of the respondent’s clients.

[42] On a number of occasions Mr Vukosavljevic had counselled the applicant about these concerns on some occasions by email and also in face-to-face discussions with him when Mr Vukosavljevic visited Geraldton.

[43] On two occasions the respondent met with the applicant and discussed his unsatisfactory conduct and inappropriate behaviour and warned the applicant that this was unacceptable and cannot continue.

[44] The applicant did not change his behaviour or conduct. Clients of the respondent complained and in some instances refused to any longer conduct business with Mr Sharma. The result was the respondent was losing a significant amount of its Geraldton business directly as a result of Mr Sharma’s inappropriate behaviour.

[45] The respondent submits in the circumstances the dismissal was not harsh unjust or unreasonable and was not unfair.

Consideration

[46] Section 387 of the Act sets out the matters the Commission must consider when determining whether or not an employee’s dismissal was harsh, unjust or unreasonable.

[47] Section 387 of the Act is set out below:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Valid reason

[48] In this case Mr Sharma has rejected that he has done anything wrong and does not accept that that his conduct towards his colleagues and representatives of the respondent’s clients was ever inappropriate. He also rejects that there was any deficiency in his report writing style. The weight of evidence however is heavily against Mr Sharma’s denials of any wrongdoing or deficiency. Each of the witnesses called by the respondent was credible and gave their evidence in an open manner explaining numerous instances of Mr Sharma’s inappropriate conduct towards his colleagues and of the extreme dissatisfaction a number of the respondent’s clients had with Mr Sharma. I also accept that Mr Sharma’s report writing standard continued to be unacceptable. Importantly the evidence also demonstrates that clients of the respondent in some instances had acted on their dissatisfaction with Mr Sharma to the point of refusing to do further business with the respondent.

[49] I am satisfied that Mr Sharma repeatedly behaved in an inappropriate manner towards his colleagues being often rude and disrespectful. I am satisfied that Mr Sharma did not maintain acceptable standards of report writing and was often unnecessarily unhelpful in responding to reasonable requests from administrative staff. I am satisfied Mr Sharma at times ignored the direction of his immediate Manager. I am also satisfied that Mr Sharma’s behaviour caused numerous complaints to be made by representatives of the respondents clients in Geraldton and their dissatisfaction with him directly lead to a significant loss of business for the respondent.

[50] These were all separately valid reasons for Mr Sharma’s dismissal.

Notification of that reason

[51] Mr Sharma was notified of the reasons he was ultimately dismissed for both in the final conversation with Mr Vukosavljevic and also during the 4 August 2014 disciplinary meeting.

Opportunity to respond to the reason for dismissal

[52] During the final discussion with Mr Vukosavljevic on the telephone which lead to his dismissal Mr Sharma had the opportunity to respond to the reasons for dismissal.

Refusal to allow a support person

[53] There was no unreasonable refusal of a request by Mr Sharma for a support person at any of the discussions.

Warnings about unsatisfactory performance

[54] Mr Sharma had received two warnings about his unacceptable conduct and unsatisfactory performance. I note the more important complaints regarding Mr Sharma were to do with his conduct rather than his performance and concerned unacceptable interactions with clients, his Manager and other staff.

The size of the employer’s enterprise

[55] The respondent is a medium sized business and the procedures followed were appropriate in the circumstances.

The absence of dedicated human resource management specialists

[56] The respondent does not have dedicated human resource specialists however the procedures followed were appropriate in the circumstances.

Other matters

[57] Mr Sharma was a Manager and the respondent’s senior representative in the Port of Geraldton.

[58] Mr Sharma says that the complaint made to Mr Vukosavljevic on 2 September 2014 was not one he was given an opportunity to respond to. This point needs to be considered in the context that historically Mr Sharma has never accepted the validity of any of the other past criticisms of him notwithstanding the evidence demonstrates those criticisms were valid. Further the specifics of the clients’ complaints detailed at the meetings with clients in Geraldton were only made known to Mr Vukosavljevic after the second disciplinary meeting with Mr Sharma on 4 August 2015 had been held. Had these details been known before that meeting it is quite possible Mr Sharma would have been dismissed then, before the further complaint was made against Mr Sharma on 2 September 2015.

[59] Overall Mr Sharma has been given a fair go all around in that Mr Vukosavljevic had given him a significant amount of support over an extended period in circumstances where dismissal would have been justified far earlier should Mr Vukosavljevic have chosen that option.

Conclusion

[60] Mr Sharma’s approach towards his Manger and other staff had been unacceptable for a lengthy period. The manner in which he dealt with clients’ representatives was causing the respondent to lose business and was the source of multiple complaints over a lengthy period. He had been specifically warned in two meetings and once in writing this was not acceptable and there could be future action taken against him if this did not stop. Further complains where received and it was apparent Mr Sharma had not accepted the respondent’s warnings to change his approach.

[61] Considering all of the circumstances in this case the dismissal Mr Sharma was neither harsh, unjust nor unreasonable. Mr Sharma was not unfairly dismissed. An order will now be issued in conjunction with this decision dismissing Mr Sharma’s application.

COMMISSIONER

Appearances:

S. Sharma on his own behalf.

D. Jones of the Chamber of Commerce & Industry of Western Australia for the respondent.

Hearing details:

2015.

Perth:

August 28.

 1   [2015] FWC 2943.

 2   Transcript at PN479 to PN506.

 3   Ibid., at PN574.

 4   Exhibit R1, Attachment H.

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