Umang Kumar Gupta v The Good Guys Discount Warehouses (Australia) Pty Ltd
[2022] FWC 3373
•23 DECEMBER 2022
| [2022] FWC 3373 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Umang Kumar Gupta
v
The Good Guys Discount Warehouses (Australia) Pty Ltd
(U2022/8388)
| COMMISSIONER YILMAZ | MELBOURNE, 23 DECEMBER 2022 |
Application for an unfair dismissal remedy.
On 16 August 2022, Mr Umang Kumar Gupta (Mr Gupta) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with The Good Guys Discount Warehouses (Australia) Pty Ltd (Good Guys). Mr Gupta was a member of the sales team, and he commenced his employment with the Good Guys on 29 November 2021. He transferred to a Melbourne store on 27 June 2022 and was offered full-time employment which he accepted soon after. Mr Gupta was dismissed on 12 August 2022 and seeks a remedy of reinstatement with compensation for the loss of his job.
It is not in dispute that Mr Gupta’s application satisfies the requirement of minimum employment period and coverage under a modern award pursuant to s.382 of the Fair Work Act 2009 (Cth) (the Act). The Good Guys is not a small employer covered by the Small Business Unfair Dismissal Code. It is not in dispute that Mr Gupta’s employment was terminated for serious misconduct on 15 August 2022. The termination of employment was due to language toward a customer which is described by the Good Guys as abusive, and it contends that it was serious enough to warrant summary termination. There were no jurisdictional matters raised.
At the hearing, Mr Gupta gave oral evidence and The Good Guys called two witnesses:
· Ms Susana Thomas, HR Manager; and
· Mr Rhys Boyd, Sales Manager.
I received substantial documentary and oral evidence from both parties.
The Good Guys was granted leave to be legally represented.
Background
Mr Gupta was employed as a full-time sales representative and on 5 August 2022 he had a verbal confrontation with a customer. He submits that he was asked about a Samsung projector, for which he provided information. He further submits that the customer wanted the product at a cheaper price and when told the product was not for sale at the cheaper price, the customer asked about another projector. When Mr Gupta advised he could not demonstrate the second projector on a 100 inch screen because he was unable to remove it from the stand to demonstrate without the help of the Samsung team. He states that the customer abused him and provoked him to react aggressively.
After Mr Gupta told the customer to “shut the fuck up”, the customer pulled out his phone, began filming Mr Gupta and provoked him again to make further statements on camera. Video footage was presented at hearing which shows the customer following Mr Gupta and urging a response “say it again” when ultimately, he did say “fuck off man”. When a manager intervened, directing Mr Gupta to leave, he says “bullshit customer” which Mr Gupta does not deny.
On 10 August 2022, Mr Gupta was stood down and invited to a disciplinary meeting the following day with the Store Manager and the HR Adviser.[1] On 12 August 2022 the Store Manager informed Mr Gupta of his dismissal by telephone during which Mr Gupta accepted his dismissal and chose not to proceed to a further meeting, he was also advised that a letter of termination would be forthcoming. The letter of termination is dated 15 August 2022 and was emailed to Mr Gupta’s private email address.[2]
Submissions of the Applicant
Mr Gupta gave oral evidence and tendered written submissions. His oral evidence was unclear in terms of dates, however, he admitted he was confused and could not recall the exact dates and conceded the evidence of the Good Guys in terms of dates was most probably correct.
He admitted to using the language which he agrees was inappropriate but states that he was provoked because the customer told him to “shut the fuck up” first. He submits that the dismissal was unfair because the training that he undertook did not include an example of provocation by a customer where staff are recorded without consent.[3] He does acknowledge that the training advocated zero tolerance of aggression by staff.[4] Further in relation to the training, he submits that a module on aggressive customers was completed some nine months before the incident, and at the time he could not recall how to diffuse the situation.
Mr Gupta submits that the incident did not warrant termination of employment. He further submits that a warning would have been more appropriate because it was his first incident, he states that the employer should have taken his side because he sells for the business and is a top performer. The customer was angry and intentionally recorded Mr Gupta and pushed him to respond. He also submits that the dismissal was harsh as he has a mortgage and needs the job.
Mr Gupta disputes that the conduct amounts to serious misconduct because he did not steal, assault or defraud the company.
He submits that the SDA conducted research which found 80% of customer service representatives experienced verbal abuse and his view is that policies should reflect that if customers “give us respect & then we will treat you with respect.”[5]
Submissions of the Respondent
Ms Thomas, the Good Guys HR Manager gave evidence that Mr Gupta completed “Aggressive and Disgruntled Customer Safety” Training on 3 December 2021.
On 9 August 2022, the HR Manager was informed by Mikaela Tarraran (the HR Advisor) that the Good Guys received a customer complaint and video. On the HR Manager’s advice Craig Maskell (the Store Manager) was then supported by HR to suspend Mr Gupta to investigate the alleged conduct. A letter suspending Mr Gupta was given to him by the Store Manager on 10 August 2022.
The HR Manager gave evidence that while she was not present, notes were taken by the HR Advisor where the disciplinary meeting included HR Advisor, the Store Manager and Mr Gupta and the subsequent telephone call between the Store Manager and Mr Gupta, notes were made by the Store Manager.[6]
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I 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 Commission considers relevant.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[7]
Consideration
Was there a valid reason for the dismissal related to conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.”[8] Further it is the role of the Commission to consider the employer’s reasoning to determine whether that reasoning is valid.[9]
The Good Guys’ reason for dismissing Mr Gupta was that it found that he abused a customer on 5 August 2022. Having considered his responses, together with his completion of training it determined Mr Gupta’s conduct was serious misconduct of a nature that called for a summary dismissal.[10] I find that the employer’s reasoning was valid, and my reasons follow.
Mr Gupta gave evidence that on commencement of employment that he was given a letter of offer[11] which refers to the location of all policies and mandatory training which he is obliged to comply with. While he admits to not reading the letter, he understood that it contained information on his obligations as an employee. Further he understood as a member of the sales team he had the obligation to treat all customers and staff with respect and to demonstrate level headedness and calmness. He accepted that completion of training programs was required and confirms that he completed the training. Mr Gupta acknowledged that he had been made aware of Good Guys policies and Code of Conduct and the need to adhere to these.
While giving evidence, Mr Gupta admitted to completing the online training for other employees, allowing others to complete his training, and not watching the instructive videos but rather sliding the bar on the video across to get to the assessment stage to answer the questions using “common sense”. He described the reason for this approach to training as a low priority over earning commissions on sales. He acknowledged it was wrong but considered management should have taken an active approach to enforce compliance with training. He accepts no responsibility himself for failure to complete the training properly.[12]
Mr Gupta further admitted to not reading the Code of Conduct but recognised the document and when taken to the detailed obligations contained within the Code, he agreed that he failed to comply with each of the obligations.[13]
Mr Gupta gave evidence that the incident occurred on 5 August 2022, he worked on 6 and 7 August, had two days off then returned to work on 10 August 2022 and was stood down. A letter was handed to him by his manager regarding the standdown, and an invitation to a disciplinary meeting on 11 August 2022.
Mr Gupta’s oral evidence was consistent that he told the customer to “fuck off” prior to the customer filming the interaction, but he insists that the customer first said, “shut the fuck up”.[14] The following extract from the transcript captures the evidence:
And we’ll get to the video in a moment. But you agree, don’t you, that you told him to fuck off before the video started? ‑And you are not considering those points, what he told me?
No, no - - -? ‑He told me, ‘Shut the fuck up’ first.
Yes. No, we’re just focusing, right now, on what you said though? ‑Yes, I said that.
You agree that you said - - -? ‑Yes, I admit that, yes.
Okay, thank you. You told him to fuck off because you were agitated by what he was saying to you? ‑No, I’m not agitated, it’s just kind of mutual respect. Like suppose you are dealing with someone, any stranger, you don’t know him, and he starts abusing you, what are you going to say, ‘Man, please go, I don’t want to deal with you, fuck off’. That’s the kind of thing.
So you weren’t agitated but you told him to fuck off? ‑Yes, ‘Just go away, I don’t want to interact with you because you are not understanding what I want to deal with the customer’. I don’t want to entertain these kind of customers, those who don’t know how to respect the salesman who is helping them.
Sure, okay. But you wouldn’t say you were agitated, you said you told him to fuck off, without being agitated? ‑It’s just a normal - it’s like even if you are - someone says you’re something, like, ‘Please shut the fuck up, what I say to you? I didn’t say anything to you, why are you saying these kind of words to me?’. I never had the incident in The Good Guys, I’d been working for nine months, as you said, I deal with a lot of customers in which purposely my fault was there, I put the wrong delivery day, I handled it effectively. So it is something where someone lose the respect of the salesman but he’s trying to help you out and he’s saying, ‘Man, shut the fuck up’. I said, ‘What have I done wrong with you, man, I’m just trying to help you out’.
On a number of occasions while giving oral evidence Mr Gupta described his view that if the customer was to show respect, then the customer would get respect in return. The transcript captures the evidence:
“Firstly, we had the discussion like why you said to me like that thing. Then I said, now you need to respect us and you need – then only we respect you. If you say me shit words, how can I go rig that thing up. Then when he comes to camera in front of my face, can you do that thing up? I said okay, fuck off, now please go. I told him like, you are provoking me and then still he keeps following me. I said man, please leave, I don’t want to mess with you. Then one of the customers nearby me he calls the manager and I thank the customer for calling the manager, because I was blind in that situation what I need to do, where I need to go”[15]
The video evidence was viewed, and despite the first part of the altercation not being captured, it is evident that Mr Gupta was aware he was being filmed. While filmed he was provoked, but the response by Mr Gupta was disproportionate to the language used by the customer. Further, the evidence shows clearly that Mr Gupta stepped away but returned aggressively. There was no justification for this conduct. It was serious.
Was Mr Gupta notified of the valid reason?
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[16] in explicit[17] and plain and clear terms.[18]
I am satisfied that Mr Gupta was notified of the reason for his dismissal and further given an opportunity to respond.[19]
While Mr Gupta was confused over dates, it was established at the hearing that he was suspended on 10 August 2022, and a meeting was held on 11 August 2022 to give him an opportunity to respond. It was apparent that Mr Gupta was aware of the reason before the termination of employment, further he understood that the allegations may be considered serious misconduct and was likely to result in the termination of his employment.
Was he given an opportunity to respond to any valid reason raised in relation to his conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[20]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[21] 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, this is enough to satisfy the requirements.[22]
Mr Gupta was given an opportunity to respond to the reason considered for his dismissal on 11 August 2022.
Did the Good Guys unreasonably refuse to allow the Applicant to have a support person present?
The Good Guys did not unreasonably refuse to allow a support person. Mr Gupta had a support person for the meeting on 11 August and on 12 August when contacted by his manager, he advised he did not require a support person.
Was he warned about unsatisfactory performance before the dismissal?
Performance is not a consideration in this matter.
To what degree would the size of the enterprise and degree of human resource expertise be likely to impact on the procedures followed in effecting the dismissal?
The Good Guys is not a small employer, and it has a well-resourced HR department. While I consider the Respondent had a valid reason, the process had its shortcomings.
Mr Boyd, sales manager gave evidence that he did not know how to handle the matter. After speaking to the customer and upon receiving the customer complaint via email, that same day, he spoke to another sales manager then phoned the store manager and territory manager for advice. On receipt of this advice, Mr Gupta was taken upstairs to a meeting space to have a chat. He states that Mr Gupta was given the option to stay upstairs until the end of his shift.
He further gave evidence that he had not experienced a situation where a customer filmed a member of the sales team before, so he was unsure how to handle the matter.[23] Mr Boyd took the customer’s complaint seriously, particularly, the threat that he would post the video on social media platforms if nothing was done about his incident with Mr Gupta.[24] On receipt of the video it was viewed by management and Mr Boyd acknowledged there was another staff member in the brown goods section of the store (location of the incident). However, the other staff member was not spoken to, nor a statement taken from him about what he witnessed. The management of the incident by Mr Boyd concluded at that point.
Furthermore, Mr Boyd gave evidence that the other staff member present at the time, shared his observations of the event among store staff. The incident became gossip among store staff and Mr Boyd could not keep the incident confidential. In fact, he gave evidence that ultimately staff were informed by management that Mr Gupta was dismissed for misconduct. This approach is directly inconsistent with written instructions to Mr Gupta in his stand down letter, which states that a breach of confidentiality may result in disciplinary action. If confidentiality concerning the management of Mr Gupta’s role in the incident was required, management failed to afford him an equal duty.
I note that no evidence was led to challenge statements made by Mr Gupta at the hearing that compliance training was not well managed. Specifically, Mr Gupta stated that staff and management completed the training on behalf of other staff members for various reasons including to relieve a staff member to focus on sales. I also note that Mr Boyd did not question the customer that filmed Mr Gupta nor query his complaint, but simply took the approach that the customer is always right.[25]
Ms Susana Thomas, HR Manager gave evidence that her role is to manage her team to provide leadership in performance management, and to ensure that procedures and investigations are consistent with their policies and procedures including legal frameworks. However, the apparent deficiencies in the process included:
· The investigation consisted of accepting the customer’s complaint and video footage and having Mr Gupta attend a short disciplinary meeting. The investigation prior to the meeting was inadequate.
· While it was the first incident when a customer provoked a member of staff while recording, the store managers, who had many years of experience, were unsure how to handle the matter, yet a higher standard was expected of Mr Gupta.
· Instead of Mr Gupta’s short period of employment and experience as a sales team member working in his favour, in terms of appropriate disciplinary procedure, such as a warning and further training, it worked against him to justify a summary termination of employment.
· No investigation was made into whether Mr Gupta in fact completed the necessary training before the dismissal.
· No investigation took place into witness evidence and the customer’s statement was accepted without any further investigation.
· Processes concerning the provision of training and policies were inadequate, all obligations fell on employees with no process to ensure compliance and understanding. Evidence that managers completed training for sales team members was not challenged or that staff completed training for others or that staff simply scrolled through to the assessment stage answering questions using “common sense” rather than learned outcomes. The training program was obviously inadequate.
· Despite the alleged seriousness of Mr Gupta’s conduct, he was permitted to continue to work and was only stood down some five days after the incident. The reasons given for this delay was that Ms Thomas was not informed of the incident until 9 August and then she took a further day to review the report from her HR adviser. However, Mr Boyd gave evidence that he obtained advice in the evening of 5 August because he was unsure how to manage the incident. It appears the internal process failed to efficiently escalate to Ms Thomas who was authorized to stand down Mr Gupta.
For the size of the enterprise, I consider this consideration weighs against the Respondent.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Mr Gupta raised the impact of the dismissal on his personal circumstances and while a dismissal will have a financial impact on a person, I do not consider there is any reason to give weight to the submissions made in terms of my findings. Mr Gupta sought reinstatement and described the job as his dream job. However, his failure to appreciate the gravity of his conduct captured on video, particularly his conduct of walking back towards the customer and aggressively quarrelling with him is to be balanced against his defence that he was unable to think clearly in the situation and his statement that he was not angry. Such behaviour despite the shortcomings in the HR process in my view warranted disciplinary action for such serious misconduct.
While I find that the Respondent’s HR team mismanaged the process and the investigation was inadequate, perhaps rather than summarily dismiss Mr Gupta, it may have considered termination with notice. However, the evidence that came to light during the hearing is relevant to whether the dismissal was unfair and whether a remedy is appropriate.
Mr Gupta gave evidence that he accepted that he should have handled the incident better, and he maintained that reinstatement and a warning was justified. However, it cannot be ignored, and it is of concern that he argued quite strongly, the view that customers are only entitled to respect when they show respect to sales staff. Despite this position, together with his admission that he did not complete the training properly or at all, that he did not read any materials that were given to him and that it was allegedly common practice to prioritise sales over compliance with policies and training, he submits that his poor conduct was somewhat rationalised. I do not agree that his conduct ought to be rationalised given the weight of the sworn evidence.
Evidently, Mr Gupta took no responsibility to use the training and materials provided to manage complex customer situations. Had he appraised himself with some effort to read any materials or participate in training, perhaps he may have managed the situation more effectively and retained his job. Instead of walking away from the customer, he engaged aggressively with them, he denied that he was an aggressor insisting that he was provoked and relied on failings in management to justify his application. The conduct was serious.
While I do not consider a remedy is appropriate, I observe that Mr Gupta seeks reinstatement despite his ability to find alternative work. Mr Gupta gave evidence that he had obtained alternative employment within a short time after the dismissal with a competitor from which he resigned, also another role was offered to him which he rejected because it required physical work, and he gave evidence that he held a position during the hearing. Because Mr Gupta did not favour any of the alternative positions he held, or that were offered to him, that is no justification to consider a remedy.
Harsh, unjust or unreasonable?
I have considered each matter specified in section 387, against the evidence before me, I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case.
I have found that the Respondent had a valid reason, the conduct was serious warranting disciplinary action and there was no evidence, that the Respondent despite its HR failings unfairly dismissed Mr Gupta. The evidence in respect of each of the requirements under s.387 did not weigh in Mr Gupta’s favour. Notable was the evidence of Mr Gupta’s unacceptable conduct captured on film, his failure to take any responsibility to read the policies or complete the training as required and including his strong held view that customers are entitled to respect only when respect is shown to the salesperson, outweighs any likely unfairness in the HR process to render the dismissal unfair.
I am satisfied that all of the circumstances do not weigh in favour of finding that the dismissal was harsh, unjust or unreasonable.
Conclusion
Having considered all the relevant factors, I am not satisfied that the dismissal was harsh, unjust or unreasonable. I am not satisfied that Mr Gupta was unfairly dismissed within the meaning of s.385 of the Act.
As the dismissal was not unfair, I am not required to consider issues of remedy.
For these reasons, I will issue an order separate to this decision, that the application be dismissed.
COMMISSIONER
Appearances:
Mr U. Gupta for the Applicant
Ms E. Tullberg for the Respondent
Hearing details:
2022
Melbourne
21 October
[1] Exhibit R8, Attachment B to the Respondent’s outline of submissions- Letter advising of formal disciplinary meeting and suspension of employment dated 10 August 2022.
[2] Exhibit R11, Attachment D to the Respondent’s outline of submissions- Letter advising Termination of employment dated 15 August 2022.
[3] Exhibit A1. Applicant’s form F3 attachment confirmed as his statement and Applicant’s outline of submissions at 6d.
[4] Applicant’s outline of submissions at 4c.
[5] Summary of Incident, attachment to Form F2.
[6] Exhibit R1 11 August 2022 Record of discussion and Exhibit R2 12 August 2022 Record of discussion.
[7] Sayer v Melsteel Pty Ltd (2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 [2002] AIRC 317, [69].
[8] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[9] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[10] Exhibit R11, Letter of termination dated 15 August 2022.
[11] Exhibit R3.
[12] Transcript at PN267 - PN268.
[13] Transcript at PN461 - PN508.
[14] See also Transcript at PN160 and PN161.
[15] Transcript at PN161.
[16] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[17] Previsic v Australian Quarantine Inspection Services Print Q3730 [1998] AIRC 1371.
[18] Ibid.
[19] Exhibit R8 suspension letter to investigate serious allegation of verbal abuse and meeting held on 11 August 2022.
[20] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 75.
[21] RMIT v Asher (2010) 194 IR 1, 14-15.
[22] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[23] Transcript at PN827 - PN832.
[24] Transcript at PN841 and PN862 - PN863.
[25] Transcript at PN864.
Printed by authority of the Commonwealth Government Printer
<PR749265>
0
8
0