Tejash Patel v Telstra Corporation Limited T/A Telstra

[2014] FWCFB 3328

[2014] FWC 1179

The attached document replaces the document previously issued with the code [2014] FWC 1179 on 19 March 2014.

The document has been reissued to rectify an omission in the signing date. The month March was omitted.

Susan Robertson

Associate to Senior Deputy President Hamberger

Dated 20 March 2014

[2014] FWC 1179 [Note: An appeal pursuant to s.604 (C2014/3986) was lodged against this decision - refer to Full Bench decision dated 20 May 2014 [[2014] FWCFB 3328] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tejash Patel
v
Telstra Corporation Limited T/A Telstra
(U2013/6948)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 19 MARCH 2014

Application for relief from unfair dismissal.

Background

[1] Mr Tejash Patel (the applicant) applied on 25 February 2013 to the Fair Work Commission (FWC) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Telstra Corporation Limited (Telstra, the respondent) on 4 February 2013.

[2] The applicant commenced employment with the respondent on 10 October 2010 as a Technical Specialist in Network Construction. This role involved designing engineering solutions for the network. Shortly after he commenced employment, the applicant undertook training in EEO, bullying, discrimination and harassment. 1

[3] From November 2011 to November 2012 the applicant worked with or in close proximity to a colleague named Ms Hong Nguyen, another Technical Specialist.

[4] On 13 November 2012 Ms Nguyen made a complaint that she was being harassed by the applicant. In summary, she said that he had been ‘approaching me in a very unpleasant manner’ since November 2011. His approaches included (but were not limited to):

● sending her messages asking him to marry him;

● unwelcome gifts, including jewellery, clothes, a heater, gloves, socks and a fan;

● withdrawing money from his account and asking her to keep it;

● providing her with his personal bank account details and passwords so she could access it if she needed to withdraw money;

● insisting that the applicant purchase a house or car for her; and

● keeping an eye on all her movements. 2

[5] Ms Nguyen also complained on 15 November 2012 that the applicant had followed her after she had left work.

[6] The respondent conducted an investigation under its Managing Conduct Policy. The applicant did not deny (most of) the alleged conduct and agreed that he had continued to engage in the conduct despite being asked to stop. 3

[7] Despite finding that the alleged conduct had occurred, that it constituted sexual harassment and that it was very serious, Mr Romo, the applicant’s ‘1-up’ manager, decided to give the applicant a second chance. He did this because the applicant had promised that he would not engage in similar conduct again. He believed the applicant had understood that what he had done was wrong and that he could change. 4

[8] The respondent issued the applicant with a written warning on 26 November 2012. The written warning made clear to the applicant that further harassment could result in the termination of his employment. The applicant was directed to complete a course on discrimination and bullying 5 and told not to contact Ms Nguyen for non work-related reasons. The applicant was offered the opportunity to work at a different location away from Ms Nguyen; however he declined this offer.6

Events Leading to Dismissal

[9] On 29 November 2012, Ms Nguyen sent Mr Romo an email which referred to anonymous PDF documents that she had received:

● a document sent on 27 November 2012 at 10:12am, ‘Precautions while lightning is in action’;

● a document sent on 27 November 2012 at 10:13am, a map with highlighted safety directions; and

● a document sent on 28 November 2012 at 3:51pm, ‘electrical safety. 7

[10] The documents were sent from a printer to Ms Nguyen’s email address. The printer was one that the applicant had been directed to use so that he would not need to use other printers closer to where Ms Nguyen sat. 8

[11] On 3 December 2012 at 00.27am the applicant sent an email from his personal email account to Ms Nguyen’s personal email account. The email referred to concerns that the applicant had for Ms Nguyen’s safety and explained why he had refused to be moved to another location. 9

[12] On 4 December 2012, Ms Nguyen found on her work desk a ‘Facial Sauna’ pack/box and $27. 10

[13] Mr Romo invited the applicant to a meeting with him and Mr Harry Seiffhart on 6 December 2012. The applicant declined an offer to be accompanied by a support person. Mr Romo took notes of the meeting. 11 According to those notes, he told the applicant the purpose of the meeting was to provide the applicant with an opportunity to respond to allegations that he had continued to harass Ms Nguyen since he had been issued with the written warning. According to those notes, the applicant denied sending the emails of 27 and 28 November 2012. He also denied he had left anything on Ms Nguyen’s desk. He did however acknowledge sending the email from his personal email account on 3 December 2012. According to the meeting notes, he added:

‘I just want to clarify a few things because Harry said that she is feeling unsafe because of me. I cannot say to her personally or see her so this is the only way I can tell her not be unsafe. I had previously sent an e-mail to her personal address and i thought she replied well. I thought that she did not mind if I send her an e-mail to this address.’

[14] According to the notes, when asked how he got her email address the applicant replied ‘I got her e-mail by overhearing a personal conversation of Hong’s’. The applicant was asked “Why, when you gave us a clear undertaking to cease and desist all future communications with Hong, did you then proceed to send her the e-mail’. He responded that he thought the agreement only applied to work hours and corporate e-mail. Mr Romo stressed to the applicant that they needed his undertaking to completely desist from any further correspondence with Ms Nguyen.

[15] On 7 December 2012, Ms Nguyen received another email from the applicant’s private email address in the following terms:

‘Good Morning...

This will be my last e-mail/communication with u...I will never ever send any msg e-mail... anything to u...Please don’t complain for this e-mail,, otherwise i will be defiantly sacked... and i will be in a big big trouble)

Just want to remind ...probably u will be wearing High Hels today...and u will need to walk much more than regular day---so ur feet will be very sour by end of day..

u should consider to get some gel cushion for shoe from the Priceline Near station. The product is SCHOLL invisible sore spots, invisible gel cushions) You just go inside shop walk right..it is the end of the aisle.

If you don’t have time..i already put under the phone ground floor..if possible please take it from there...

After using this ur feet still sour...try to get (not too much) hot water in bucket and immerse ur feet for 10-15 min..

Have a nice day today...

Take care’ 12

[16] On 9 December 2012 the applicant sent an email to Mr Romo where he told him:

‘I am very ashamed on my repeated unaccepted conduct. I don’t know in which words I have to say sorry.

I will obey any decision including termination, going on leave or another location.’ 13

[17] The applicant went to India over the Christmas break. When he returned Mr Romo invited him to attend a meeting on 22 January 2013. The applicant declined the offer to be accompanied by a support person. Mr Seiffhart was also present at the meeting. Notes of the meeting were attached to Mr Romo’s statement. According to those notes, the applicant was told that it was alleged that he had continued to harass Ms Nguyen after he had been issued with a written warning on 26 November 2012. He would be given an opportunity to respond to those allegations. He was told - and agreed that he understood - that the allegations were serious and if proven could lead to the termination of his employment. He was asked about the pdf documents sent to Ms Nguyen on 27 November 2012. This time he agreed that he had sent them to Ms Nguyen. For example, it was put to him that he had sent the document ‘Precautions while lightning is in action’ anonymously from the printer to inform Ms Nguyen of lightning strikes precautionary measures. His response was ‘yes’. He similarly agreed that he had sent the other pdf documents. According to the notes of the meeting, he explained why he sent the map with highlighted safety directions:

‘...because that footpath is very narrow and busses are very near. In the rainy season is possibility to slip and maybe and possible to stuck with the bus’.

[18] According to the meeting notes, when it was put to the applicant that he had sent the pdf documents anonymously from the printer so that it could not be identified they came from him as he had been warned not have contact with Ms Nguyen unless there was a business reason to do so, he agreed.

[19] When the applicant was first asked about leaving the ‘facial sauna’ on the applicant’s desk, he denied doing so. However when asked why this denial should be believed, he responded: ‘I did - I left it.’ He later added that he had left the facial sauna ‘...because this one I bought for her previously so I thought I should give it to her. I left it on her desk at the end of the day. A friend of mine was using her stove to do facial steaming and burnt her face and thought Hong may be doing the same and this would be better.’ The applicant also conceded that he had left the $27 on Ms Nguyen’s desk but said the money belonged to her ‘...because previously I had bought medicines for her and she gave me more money than what I paid for’.

[20] According to the meeting notes, the applicant also agreed that he sent an email to Ms Nguyen after he had received the written warning. When asked why he was continuing to harass Ms Nguyen by making contact with her and by continuing to purchase personal items for her, the notes indicate that he responded:

‘Because maybe I think I have some sort of physiological (sic) problem. I know that I am doing wrong but I cannot stop from doing that. When I was in India over the Christmas break I saw a psychologist and he told me that I need to stop thinking about her and contacting her.’ 14

[21] A further meeting was held with the applicant on 25 January 2013. Notes of the meeting were attached to Mr Romo’s statement. According to these notes, the applicant again conceded that he sent the pdf documents to Ms Nguyen on 27 and 28 November 2012, and left the facial sauna pack/box and $27 on Ms Nguyen’s desk on 3 December 2012. The applicant also agreed that he sent an email to Ms Nguyen’s personal e-mail account on 7 December 2012. The applicant was given an opportunity to add anything he wished.  15

[22] The applicant met again with Mr Romo and Mr Seiffhart on 4 February 2013 for an ‘outcome meeting.’ Mr Romo again went through the allegations with the applicant and asked him for his response. He was told that Telstra was proposing to terminate his employment. After a private discussion with someone from the Employee Assistance Program, the applicant responded that such a decision would be harsh because:

• He did something wrong, but it was not very serious;



• His conduct was serious, but he was seeking help. He explained that his behaviour was caused by some sort of psychological problem and he was seeing a psychologist to help with his behaviour; and



• Sending emails to and from a personal account was nothing to do with Telstra. 16

[23] Mr Romo decided that it was appropriate to terminate the applicant’s employment. Mr Patel was dismissed on 4 February 2013, with four weeks pay in lieu of notice.

Impact of the Applicant’s Behaviour on Ms Nguyen

[24] Ms Nguyen gave evidence that the applicant’s behaviour had had a big impact on her life. For a long time she tried to manage the applicant’s behaviour herself, because she did not want to cause trouble for her managers or the applicant. She tried repeatedly to tell the applicant that she did not want anything from him - not money, gifts nor attention; that they were no more than work colleagues. However the applicant persisted with his behaviour.

[25] Ms Nguyen’s evidence was that towards the end of 2012 she felt that the applicant had taken away her freedom. ‘I was too scared to go for a walk at lunchtime in case he would follow me. I would stay inside at lunch and not get any fresh air during the day. I felt very constrained because I would drive to work, then walk from the parking lot to the office and then leave work and go home in the car. I felt like I was locked inside the four walls of the building because there was a chance that Tejash might follow me.’ In her statement she said ‘...even now when I catch the bus home, I look around to make sure he’s not on my bus and I always feel scared. I always have the feeling at the back of my mind that he is around and he’s watching me. I am emotionally distressed and feel very distracted.’ 17

Credibility of the Witnesses

[26] Having had the benefit of observing the applicant under cross-examination in the witness box and being able to read all the evidence, I have formed the view that the applicant is an unreliable witness. Much of his evidence was contradictory and inconsistent. His denial during the hearing of much of his alleged misconduct was inconsistent with admissions he made in the application form he submitted on 25 February 2013. In that application he did not deny the conduct but sought to excuse it by referring to what he described as his mental illness. When this contradiction was pointed out during his cross-examination he said a Mr Michael Findlay came to his house on the instructions of Mr Romo and told him to ‘accept everything in F2’ otherwise he would be prevented from working anywhere in Australia. He said Mr Findlay told him to ‘make it convincing’. 18 This evidence given by the applicant is frankly absurd. By contrast, I found all of the respondent’s witnesses plausible, clear and consistent. Much of their evidence was backed up by clear contemporaneous written records. The applicant made no attempt to cross-examine Ms Nguyen, Mr Romo or Mr Seiffhart about any of the major factual issues. Where there is a conflict in the evidence between that of the applicant and that of the witnesses for the respondent, I prefer that of the latter.

The Applicant’s Psychological Condition

[27] Immediately prior to his dismissal and in his closing submissions, the applicant suggested that his behaviour was due to a psychological condition. His statement to the Commission included the following:

‘During Jan 2001 earthquake, I have been trapped under fallen building for more than two days waiting to be rescued. During those 2 days I kept worried about safety of my family. After that incidence I developed a mental condition in which I kept being worried unnecessarily about safety of my near family members.

As they were family so they do not felt annoying with my changed behaviour and this condition kept undiagnosed until Jan 2013 when I visited my home country during X’mas holidays. I saw a psychiatrist in India, After some tests my condition has been diagnosed...After arriving to Australia i kept treatment with Australian Specialist.

During my employment, more than normal communication with Ms Hong Nguyen via work e-mail & SMS, under influence of existing mental illness at that time, I developed feelings of worriedness towards Ms Hong Nguyen and kept worried unnecessarily about her, which she found annoying and which resulted in First Written notice.’ 19

[28] Attached to the applicant’s statement was a letter dated 8 January 2013 signed by Dr. Bhavin Desai. In that letter Dr Desai indicated that he had diagnosed that Mr Patel suffers from Chronic Post-Traumatic stress disorder and Chronic Obsessive Compulsive disorder. 20 Also attached to the applicant’s statement was an undated letter from Dr R D Moorthy, a consultant psychiatrist. He also confirmed a diagnosis of Post-Traumatic Stress Disorder. The letter included the following:

‘As a result of his Post-Traumatic Stress Disorder, Mr Patel has had a tendency to be unnecessarily concerned for his family and friends. His concerns for his family and friends may have been obsessive. He was trapped for two days under rubble after an earthquake in his village in India where thousands of people died.

I am aware of the conduct of Mr Patel to Ms Nguyen. I note it is unwarranted and annoying to her, but is not overtly sexual. It is my professional opinion that in a different work environment, it is highly unlikely to occur again.

Mr Patel is now under my care, and I am treating him for the Post-Traumatic Stress Disorder. Now that Mr Patel is being treated for Post-Traumatic Stress Disorder, it is in my opinion highly unlikely that he will continue to be unnecessarily concerned for his family and friends, and even more unlikely that his concerns will become obsessive.’ 21

[29] Neither Dr Desai nor Dr Moorthy were made available for cross examination by the applicant. This was despite the applicant being advised in advance of the hearing by the respondent that their conclusions were in question and that they were required for cross examination. I strongly doubt that either doctor would have been fully aware of the applicant’s conduct towards Ms Nguyen. For example, Dr Moorthy said in his letter that the applicant’s behaviour was not ‘overtly sexual’. This is clearly inconsistent with the facts, including that the applicant asked Ms Nguyen to marry him and regular comments about her looks, asking her to wear particular items of clothing etc. Some of the applicant’s behaviour clearly fell within the definition of sexual harassment. While the two doctors may have been correct in diagnosing the applicant with Post-Traumatic Stress Disorder (PTSD) and/or Obsessive Compulsive Disorder (OCD), in the circumstances there are insufficient grounds for accepting that these conditions caused the applicant’s behaviour.

[30] This is particularly so in the light of the evidence given by Telstra’s expert psychiatric witness, Dr Kipling Walker. Dr Walker’s evidence was that he did not believe that the applicant’s diagnosed conditions of PTSD and/or OCD could give rise to the alleged conduct which led to the applicant’s dismissal. He also said that neither PTSD nor OCD would have made the applicant incapable of complying with directions from Ms Nguyen or his manager to cease his alleged conduct. 22

Whether the Dismissal Was Harsh, Unjust or Unreasonable

[31] Section 387 of the Act provides that in considering whether it is satisfied to 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.’

[32] I will consider each of these issues in turn.

Valid Reason

[33] I am satisfied that the respondent had a valid reason for the applicant’s dismissal. The applicant engaged in unacceptable conduct towards a fellow employee, Ms Nguyen. He may have, in his own mind, been motivated by affection for Ms Nguyen and a concern for her welfare. However Ms Nguyen made it quite clear to him that his feelings were not reciprocated and his behaviour was causing her distress. However he continued to harass her. He was fortunate, after Ms Nguyen’s first complaint, only to receive a written warning. However he did not alter his harassment of Ms Nguyen. I am not satisfied that any psychological condition the applicant was suffering from caused this behaviour. The applicant’s persistent inappropriate behaviour, after he had received the warning, constituted a valid reason for his dismissal.

Notification of reason

[34] I am satisfied that the applicant was notified of the reason why the respondent was considering terminating his employment. Meetings were conducted on 22 and 25 January and 4 February 2013 where the allegations were put clearly to the applicant.

Opportunity to respond

[35] The applicant was given the opportunity to respond to the allegations against him, at the meetings on 22 and 25 January and 4 February 2013.

Support Person

[36] The applicant was given the opportunity to be accompanied by a support person at the relevant meetings.

Prior Warnings

[37] The applicant was not dismissed for poor performance but for misconduct. I note however that he had received a written warning in 26 November 2012 that if his conduct was repeated he might be dismissed.

Size of the Employer and Access to Specialist Human Resources Expertise

[38] Telstra is a large employer, with access to specialist human resources expertise.

Other relevant matters

[39] I do not consider that there are any other relevant factors that I need to consider.

Conclusion

[40] I am satisfied that the termination of the applicant’s employment was not harsh, unjust or unreasonable. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr T Patel appeared on his own behalf

Mr H Small appeared on behalf of Telstra Corporation Limited

Hearing details:

Sydney

2013

2 July

20 October

6 December

13 December

 1   Exhibit T30, paragraphs 3-5

 2   Exhibit T30, paragraphs 12-13

 3   Exhibit T30, paragraph 19

 4   Exhibit T30, paragraph 21

 5   Exhibit T30, attachment JR9

 6   Exhibit T30, paragraphs 19 - 24

 7   Exhibit T30, attachment JR10

 8   Exhibit T30, paragraph 26

 9   Exhibit T30, attachment JR12

 10   Exhibit T30, paragraph 29

 11   Exhibit T30, attachment JR14

 12   Exhibit T30, attachment JR15

 13   Exhibit T30, attachment JR16

 14   Exhibit T30, attachment JR18

 15   Exhibit T30, attachment JR 19

 16   Exhibit T30, attachment JR21

 17   Exhibit T32, paragraphs 64-67

 18   PN 725-761

 19   Exhibit P1

 20   Exhibit P1, attachment M2

 21   Exhibit P1, attachment M3

 22   Exhibit T37

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