| [2015] FWC 6429 [Note: An appeal pursuant to s.604 (C2015/6987) was lodged against this decision - refer to Full Bench decision dated 10 December 2015 [[2015] FWCFB 8216] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Palak Rani
v
Limitless Ventures Toscas Pty Ltd T/A Toscanis Mackay
(U2015/3939)
SENIOR DEPUTY PRESIDENT RICHARDS |
BRISBANE, 25 SEPTEMBER 2015 |
Summary: unfair dismissal - performance and conduct issues - procedural fairness - continuing employment an unsustainable proposition.
[1] This decision concerns an application by Ms Palak Rani who is seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”) in relation to her dismissal by Limitless Ventures Toscas Pty Ltd T/A Toscanis Mackay (“the employer”).
[2] The employer’s business is owned by Mr Armanpareet (Amani) Khehra and Ms Gagan Kaur. Mr Khehra and Ms Kaur also owned and operated two other establishments in Mackay, they being “The Vintage Room” and “Spice n Flavours” Indian restaurant.
[3] Ms Rani performed duties as a restaurant manager at the employer’s place of business in Mackay, Queensland from 21 September 2013 until her dismissal on 4 March 2015.
[4] The reasons given for Ms Rani’s dismissal were set out in writing and handed to her at a meeting conducted on 4 March 2015 (“the dismissal correspondence”). The dismissal correspondence relevantly read:
“[…] I am writing to you about the termination of your employment […] due to the following reasons:
Being late to work on numerous occasions including today.
Have failed to provide a weekly stock take reporting as requested by the owner of the franchise. The owner had to come into its stock take on several occasions.
Weekly stock take recently were only down on 15 February 2015 and 1 February 2015.
On 21 December 2014 and you had a meeting with Amani Khehra. At this meeting you were advised that your performance has been unsatisfactory, and that immediate improvement is required. In particular you were advised that you have been coming late to open a restaurant have not consistently been completing stock takes on previous occasions.
In the meeting you were asked if you have anything you wish to stay or to respond to the situation and you said “I thought it was not required”.
After considering the situation it was expected that your conduct improves and specifically that you are acting as a role model and need to lead from the front being a restaurant manager. You are also advised that this should not happen again and more responsibility should be taken.
It has come to be revealed about your conduct during the incident:
On social media on 11 August 2014 a customer posted a complaint on a shift which you were working in you were not able to resolve the matter. You then followed the complaint trail on social media in support of the comments posted by the customer against the restaurant.
Regular customers have also brought to the attention that you had mentioned to them the owners inability to order products and showing a “no care attitude” towards the business by them.
• Was wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment.
• Caused a serious and imminent risk to the reputation, liability or profitability of the employer's business in that as a lot of business has been lost because of the comments made to customers, resulting in loss of trade.
We consider that your actions constitute serious misconduct warranting dismissal.”
[5] I add at this juncture that according to the evidence led by the employer (which went unchallenged) the stocktake issue was considered by the employer to be an important concern as its franchise agreement required the necessary reconciliations to be completed on a weekly basis on a Sunday (so that comparisons can be made across the franchisees). The employer faced breach notices for non-compliance in this respect with the franchisor, it was claimed. Ms Rani also accepted that the completion of stocktakes was a significant duty. 1
[6] Ms Rani contended that she was given no warnings about her performance or conduct as a restaurant manager and that the dismissal came as a surprise to her. She claimed that had she been aware of any issues in her employment she could have had an opportunity to respond and outcomes could have been different.
[7] Ms Rani claimed that her performance had never been subject to any discussion, evaluation or performance review and she had never made any significant mistakes or errors that were communicated to her at any point.
[8] Contrary to her employer’s claims, Ms Rani also maintained that she did all stocktakes 2 and that she had always opened the shop at the correct time.3
[9] Ms Rani also contended that she had not been appropriately remunerated at the restaurant (at the point of dismissal) and that payments to her superannuation fund were not made over the course of her employment.
[10] A number of witnesses appeared in ostensible support of Ms Rani’s application. Not all of the witnesses were available at the time of the hearing (the original hearing date), despite ample opportunity being provided to make the necessary arrangements. Some did not answer their telephones when they were contacted. However Ms Rani was able to make most of her witnesses available at the second hearing date.
[11] Mr Puneet Bhatia gave evidence for Ms Rani. Mr Bhatia could provide no written evidence of any direct kind in relation to the particulars bearing on Ms Rani's dismissal, given that he had only been employed by the employer between February and December 2014. He could only state that he had seen the dismissal letter given to Ms Rani and “as far as I know she was making genuine efforts to help and support Toscanis.” Mr Bhatia could give no direct evidence about Ms Rani’s conduct in relation to stocktakes.
[12] Mr Bhatia had only worked on shifts with Ms Rani “sometimes” and over what he claimed to be a 50 day period at Toscanis (which was disputed in any event), so his observations of her performance and conduct were limited.
[13] Mr Fwad Ahmed was presented as a witness and provided a statement to that end. Mr Ahmed did not provide any evidence of relevance and had no direct knowledge of Ms Rani’s involvement in stocktakes or about her practices in opening the restaurant:
Do you know who in Toscanis was responsible for carrying out the weekly stocktakes? I know that, okay, because I work in the Spice N Flavour.
You don't know? I'm not sure, I'm not sure.
Only answer if you know the answer. If you don't know the information or answer, you don't have to? I will not do that.
Are you aware who was responsible in Toscanis for opening and closing the restaurant? No, I'm not aware of that. 4
[14] Ms Diana Lake gave evidence for Ms Rani to the extent that her observations of Ms Rani’s work were that she had been “an excellent worker very patient and [she had never] heard her complain.” Ms Lake gave wider evidence in respect of her own personal difficulties with the employer (which did not directly reflect on the circumstances of Ms Rani’s dismissal but might be considered to provide inferential support for Ms Rani).
[15] Ms Lake’s evidence was particularly limited in respect of Ms Rani’s performance - they did not always share rosters and Ms Lake did not know a great deal about Ms Rani’s wider performance as a consequence. Moreoever, Ms Lake was only employed for about a three month period and was not employed after November 2014.
[16] Ms Lake recalled tensions, nonetheless, between Mr Hassani and Ms Rani and others (involving Mr Hassani’s managerial manner, according to Ms Lake).
[17] Ms Lake did not often work on a Sunday – the day on which stocktakes were undertaken – and could not give evidence about Ms Rani’s conduct in this regard (so far as it went to the employer’s concerns about consistency).
[18] Ms Jennifer Amirez-Fletcher gave evidence of her own personal experience whilst employed at the restaurant and claimed that she had been dismissed without any reasonable explanation or notice. Other than this, Ms Amirez-Fletcher did not give evidence in relation to any of the particulars relating to Ms Rani’s dismissal or otherwise provide relevant, direct evidence. Ms Amirez-Fletcher for much of her evidence expressed some uncertainty about Ms Rani’s identity and in any event did not know a great deal at all about Ms Rani’s duties and responsibilities (including in relation to the stocktakes).
[19] Ms Neetu Dhawan was an employee in the restaurant up until June 2014 (which therefore limited the range of observations about Ms Rani’s performance in the later part of the year and in 2015). Ms Dhawan’s evidence did not reflect directly on any of the circumstances relating to Ms Rani’s dismissal.
[20] Ms Dhawan raised a range of concerns about her own experience with the employer but other than that made only an observation that to the extent of her exposure to Ms Rani’s performance, she considered her to be a punctual and efficient employee. Ms Dhawan’s viva voce evidence extended to claims that there were “arguments every single day of the week” in the workplace and these involved Mr Hassani and Ms Rani (a point never cited in Ms Rani’s evidence).
[21] Mr Rajender Prasad Ghildiyal provided a written statement on behalf of Ms Rani. But Mr Ghildiyal was not able to give his evidence on the first day of the hearing and he was not pressed as a witness on the second day.
[22] The relevant components of the evidence of Mr Rakesh Yadav was to the effect that he had worked with Ms Rani for 18 months, and considered her an “excellent” worker who “done all the stocktake for the kitchen.” Mr Yadav also stated that he had never seen Ms Rani come into work late.
[23] Mr Yadav’s evidence - including the extent to which I can rely on its as being credible - is discussed further below in the context of another statement he gave as part of the employer’s evidentiary case.
[24] Ms Prasidha Pokhrel claimed that she had worked with Ms Rani for a period of some 11 months.
[25] Ms Pokhrel’s last day of work for the employer was in August 2014. Ms Pokhrel was not a witness to any of the alleged conduct or performances of Ms Rani after that date and up to the date of her (Ms Rani’s) dismissal in March 2015.
[26] Ms Pokhrel further claimed that Ms Rani had never come in late to the workplace and had always been a punctual employee. But Ms Pokhrel’s evidence in this regard - which was somewhat questionable - was as follows:
But she would ring you that she's running late? She used to ring but if it would happen – but it never happened but if it happened that she was to ring. 5
[27] Ms Pokhrel had never heard any complaints about Ms Rani’s approach to stocktakes But despite so claiming, Ms Pokhrel conceded under cross examination that Ms Rani did not do the stocktakes all the time and that she (Ms Pokhrel) had carried them out:
Are you aware of any time she missed doing the stock take, we would have to call - during your time of employment, were there any times when she missed doing the stock take and you were asked to do that on a Monday? Er - - -
Do you remember or we call any time when the stock take was not done on Sunday when both of you were working in the restaurant and you had a day off on Sunday, was there any time you were asked to do a stock take on Monday because it was not done on Sunday? It happened when I was working, yes.
It did happen? Yes.
Pardon? Did it happen or not? It happened, yes.
So there were times when Ms Rani did not do the stock take when she was working by herself and you had to do them on a Monday because it was not done on a Sunday by her? Yes. 6
[28] Ms Pokhrel did not open the restaurant with Ms Rani at all times and could not give evidence about Ms Rani’s conduct in this regard. Ms Pokhrel did recall, however, that there were staff meetings in which the issue of late openings of the restaurant were raised and staff were advised to be punctual, and that Ms Rani was late on at least one occasion (and had called the restaurant to so advise it).
[29] Mr Sushil Mahajan gave evidence largely to the same effect that Ms Rani had never been late and carried out “all her duties like stocktakes.”
[30] Like Mr Yadav (above), Mr Mahajan also gave a statement in support of the employer’s position, and I will turn to this development below as it has ramifications for weight to which I can accord Mr Mahajan’s evidence.
[31] Ms Sandra Braxton also gave evidence on behalf of Ms Rani and held that Ms Rani had carried out all her stocktake duties and was “never late.” Ms Braxton worked with Ms Rani for a period of 3 months only as a casual employee, and not a lot of that time was spent at Toscanis. Ms Braxton was not generally rostered on shifts with Ms Rani, and had little direct knowledge relevant to the proceedings. Ms Braxton seemed to be guessing about her evidence for the most part:
And you said that Palak did all the stock ordering and stocktakes and everything. What day was the stocktake done? I'm going to say it was between her and Praseeda, and I think that there was a stocktake, but I know that they used to do it
What day? Possibly on a Monday morning.
Monday morning. Great. And who would do that usually? Sorry?
Who would do that Monday morning? Like I said, Praseeda or Palak would be there. Sometimes it was both of them that would do it.
Okay. So nobody would do the stocktakes on Sunday, that's why it had to be done on a Monday? I assume so. I hardly did any Sundays.
Okay. So were you there on a Sunday at all, ever? Have you worked a Sunday? There was probably one.
Okay. So you just worked on Sunday during the time - how many shifts do you think you would have done in Toscanis? A couple? I wouldn't have a clue. I wouldn't have a clue. It was so random. 7
[32] The employer, through the evidence of Ms Kaur, claimed that Ms Rani was given “a lot of chances but attitude toward work never improved.”
[33] The failure to perform mandatory weekly stocktakes resulted in the employer receiving breach notices from the franchise. It was also alleged that Ms Rani was late to work on numerous occasions and that this would result in late opening of the restaurant. Ms Kaur gave viva voce evidence that she (along with others) had brought to Ms Rani’s attention her inconsistent approach to completing stocktakes and for a period of time she had improved. Ms Kaur claimed that at the time she had congratulated Ms Rani for her efforts in this regard, but that those efforts subsequently declined once again:
Did you, yourself personally ever counsel Ms Rani? Yes, I did speak to her two times during between December and February and when she started doing them, I did congratulate her as well and I thank you Palak, you've got back on track, you're doing the right thing, please continue doing that.
Did you say that to me? Yes, because you were doing it right, you were doing them. At that time again, I remember I did mention that you're not (indistinct) their work.
She's saying that I didn't do stocktake in February and that - - -? I said between December and March there's a week when you didn't do them, then you worked the Monday and then you again started doing them. Then the first week of February you did. You missed again. You did for the next week and thereafter you stopped doing them. 8
[34] Evidence was given by Mr Hamun Hassani, who was the operations manager of the employer, and oversaw the day-to-day operations of both the front of house and the kitchen. Mr Hassani claimed that Ms Rani was a “very inefficient manager” who did not take responsibility for running a restaurant and did not manage staff effectively. In respect of this matter, Mr Hassani claimed that Ms Rani was involved in confrontations with staff (a point of concern also raised in the evidence of Ms Ake Kura set out below).
[35] Mr Hassani claimed that Ms Rani was late on numerous occasions in opening the restaurant and failed to produce the stocktake reports as required by the franchise. In respect of the stocktake reports, Mr Hassani claimed Ms Rani had to be continually reminded to complete the reports and that other staff members attempted to complete stocktakes on her behalf where Ms Rani left work without completing the same.
[36] Mr Hassani claimed that Ms Rani was given verbal warnings on many occasions. Ms Rani’s infractions also extended to refusing to wear an apron as part of the restaurant uniform and creating a scene in front of customers (which involved swearing) when asked to do so. Mr Hassani claimed that on this occasion he asked Ms Rani to calm down and to discuss the matter in the kitchen, but that she remained in a high emotional state and claimed that she didn’t care about the business or its customers.
[37] After this incident Mr Hassani gave Ms Rani a verbal warning. Mr Hassani prepared a written warning letter the night following the incident, but he did not give it to Ms Rani owing to circumstances around his pending departure from Mackay two days later. The draft written warning was tendered in evidence.
[38] In her cross examination of Mr Hassani, Ms Rani did not challenge his claim that there had been a confrontation between them of the kind that Mr Hassani described. Her focus, more indirectly, was on fact that Mr Hassani did not provide her with the written warning.
[39] Like Ms Kaur, Mr Hassani also claimed that he had warned Ms Rani about her inconsistent approaches to stocktaking:
Mr Hassani, were you aware of stocktake issues at all whilst you were in employment? Well, I did have a stocktake issue. Sometimes you didn't take your stocktake, sometimes she did. I ask her personally and (indistinct) stocktake correctly. She was doing it time to time, but not correctly. I personally, as the operational manager, thought she was not performing the way she should have.
Did she do the stocktakes all the time, some of the time or not at all? Well, she has to do it sometimes, but she was missing some weeks, as well. Not like she wasn't doing it at all. She was doing it sometimes. 9
[40] Mr Hassani also claimed that the restaurant was closed on one occasion with a table which had not been cleared (and he included photographs of this occasion). He claimed that Ms Rani was warned about her performance in this regard but repeated the same conduct the following week. When he raised his concerns with her subsequently Ms Rani was said to have been indifferent about those concerns.
[41] Mr Hassani also argued that Ms Rani contravened the mobile telephone policy and ate food at work in front of customers (and did so even on an occasion when there was a queue for coffee in front of her).
[42] Mr Hassani did not give his evidence as an employee of the employer. Mr Hassani no longer works for the employer (or lives in Mackay for that matter).
[43] Ms Ake Kura gave evidence on behalf of the employer that Ms Rani had been late in opening the restaurant and returning from her scheduled breaks and that this had had an effect on her duties. Such were the circumstances that Ms Kura had had additional keys cut in order to solve access issues:
What do you say in relation to your knowledge about being late opening up the restaurant? As I said, I had staff members asking me for a set of keys for her if she turned up late, because the staff needed to be there at 6.30 to open by 7.00 as there was tables and chairs that needed to be set up outside of the restaurant and that needed to be done before 7 o'clock.
Why were they asking you for those keys? As manager, Palak wasn't there and not opening and not being there on time and the other staff member that was coming on with her, was asking for the keys so they could get in. 10
[44] Ms Kura also contended that Ms Rani was critical of staff in the restaurant in front of customers and on social media. Ms Rani was said to have neglected paperwork and reports required of her.
[45] Ms Kura also claimed that Ms Rani had a tense relationship with other staff to the point that other staff walked out of the restaurant.
[46] Ms Kura further contended that Ms Rani’s conduct extended to causing loss to the restaurant for reasons that she incorrectly charged back food bills to certain corporate entities and did not file receipts when she shopped for the restaurant from local stores.
[47] Ms Kura also gave evidence that she was in attendance at the meeting at which Ms Rani had been dismissed and recalled – in conformity with the termination correspondence referred to above – that Ms Rani had questioned whether completing stocktakes had been her role as restaurant manager.
[48] Ms Kaur also provided evidence by way of statements that had been signed and provided to her by Sushil Mahajan and Rakesh Yadav which were largely to the opposite effect of the evidence that they had given on behalf of Ms Rani. I will discuss this further below.
[49] Ms Kaur provided a number of other witness statements on behalf of other persons. But these persons did not present as witnesses and I have not had regard to their purported evidence as a consequence.
[50] I now turn to consider the application against the requirements for an unfair dismissal remedy as sought by Ms Rani.
[51] The relevant legislative provisions arise under s.387 of the Act, which provides as follows:
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.
[52] Generally, for various reasons, the evidentiary cases for both sides presented unusual challenges and care was required in interpreting the various claims and counter claims. There was also a high degree of animosity between some parties which made the examination process, led by unrepresented litigants, difficult to effect.
[53] There were a number of evidentiary issues that I will turn to firstly. It is apparent from the materials on file that Sushil Mahajan and Rakesh Yadav – who both gave evidence in support of Mr Rani – had also provided statements to Mr Kaur to the opposite effect. That is, in their statements as provided to the employer the two witnesses had stated that Ms Rani was not always punctual in relation to her work attendance.
[54] Mr Yadav’s statements both ostensibly bore his signature. When this was brought to his attention Mr Yadav initially refused to accept that this was the case, then subsequently conceded that he had signed both statements. Mr Yadav was then asked to explain how he came to have signed contradictory documents. Mr Yadav refused, despite being given the opportunity, to provide any explanation for his conduct whatsoever.
[55] Mr Yadav also claimed that text messages said to have been sent to the employer (Ms Kaur) from his phone number were in fact sent by the employer (Mr Khehra), who must have taken possession of Mr Yadav’s phone at some undisclosed point and sent the messages in question.
[56] In the circumstances, I have found Mr Yadav’s evidence (as it relates to the contradictory claims) to be unreliable, and I can give it no weight.
[57] Mr Mahajan also provided two contradictory statements. The signed statement provided for the employer indicated that Ms Rani “on occasion […] did not come to work.”
[58] Mr Mahajan argued that he had only provided this statement because Mr Khehra had threatened to remove his employer nomination from his visa and would not pay him unless he signed the statement as he had been directed. In short, Mr Mahajan claimed he was coerced into signing the statement for Mr Khehra to defend the business from Ms Rani’s claim.
[59] Mr Mahajan also claimed Mr Yadav had been subject to the same coercion at the same meeting and had to sign the same document.
[60] Mr Khehra gave a different construction of events. Mr Khehra claimed he invited the two employees to provide a written comment on Ms Rani’s attendance given their knowledge. Mr Mahajan, Mr Khehra stated, had claimed he could not state that Ms Rani was always late - as Mr Yadav had effectively claimed - but that she was occasionally late. Mr Mahajan signed the qualified statement.
[61] I am persuaded that I should accept Mr Khehra’s evidence and dismiss Mr Mahajan’s claim of coercion.
[62] The fact that Mr Mahajan’s signed statement was qualified intentionally (and to a significant extent) does not sit well with a claim that the statement was signed under duress and in a coercive context. Deliberation and qualification are not ordinarily expressed in a coercive setting where one’s livelihood and lifestyle is under direct threat.
[63] Further, Mr Yadav was given an open opportunity to explain how he came to have signed his statement claiming Ms Rani was late to work, noting that he did so in company of Mr Mahajan and when Mr Mahajan was being allegedly coerced into signing his statement. But he made no effort whatsoever to refer to any coercive context manufactured by Mr Khehra. He did not claim that both he and Mr Mahajan were coerced. Reasonably, Mr Yadav could have readily defended his conduct by referring to Mr Khehra’s coercive conduct (in the manner alleged by Mr Mahajan), but he made no effort to do so when given the express opportunity.
[64] I was also struck by Mr Khehra’s own evidence. Mr Khehra seemed to me to have given candid evidence about his relationship with Mr Mahajan. Mr Mahajan was said by Mr Khehra to have been a much valued employee who was his “go-to man” and he (Mr Khehra) would not have taken steps to threaten his employment.
[65] On the balance of probability I find Mr Mahajan’s claims about Mr Khehra’s conduct to be contrived, and I should give little weight to Mr Mahajan’s evidence overall as a consequence.
[66] Ms Prasidha Pokhrel had given evidence on behalf of Ms Rani as set out above. But Ms Pokhrel had been on maternity leave for 12 months prior to Ms Rani’s dismissal. Ms Pokhrel’s observations can only be given limited weight as a consequence as they do not reflect completely on the circumstances that led to Ms Rani’s dismissal. Equally so, Ms Pokhrel (as a witness for Ms Rani) also gave evidence that despite Ms Rani’s claims, Ms Rani had not completed some stocktakes at least and that she (Ms Pokhrel) had to conduct them herself. I have set Ms Pokhrel’s evidence out above.
[67] Ms Braxton’s evidence did not assist Ms Rani as Ms Braxton was a casual employee for a short term – and even she had seen Ms Rani complete stocktakes on the Monday (the day after the stocktakes were due).
[68] Generally, the evidence led by Ms Rani (through her various witnesses) was either unreliable or irrelevant or was counter to Ms Rani’s own evidence (especially so in Ms Pokhrel’s case).
[69] That said, in the end, the evidentiary case for the employer was compelling. The evidence given by the employer’s witnesses had none of the hallmarks of fabrication or concoction and was provided on the basis of persons who were well positioned to provide direct evidence in respect of the particulars of Ms Rani’s conduct and performance as a restaurant manager. For example, Ms Kura freely conceded to having no direct knowledge of Ms Rani’s performance in relation to stocktaking and to the wider practices involved therein, but limited her evidence to her direct observations (as set out above). Evidence given in such a matter is suggestive of authenticity.
[70] Importantly in this respect, the principle claims in relation to Ms Rani’s stocktaking efforts were not cast in extreme terms as a contrived claim might be. Both Mr Hassani and Ms Kaur only argued that Ms Rani was inconsistent and unreliable as opposed to simply failing to do her duties at all in this regard. Ms Kaur claimed she had congratulated Ms Rani when she had improved her efforts. The evidence in this respect struck me as genuine and authentic for reason of its complexity. Further, Mr Hassani, as I have indicated above, had no reason that I could discern to support Ms Kaur’s case – he was no longer employed in the restaurant and had left Mackay. I consider his evidence to be sound.
[71] Ms Rani’s evidence, by contrast, amounted to absolute claims in her defence, whilst her own witnesses provided little relevant or direct evidence in support of her claim. In this respect, Ms Rani contended in absolute terms that she had never been warned about any conduct (involving insolence or disrespect for authority) or performance issues, never opened the restaurant late or failed to do a stocktake. The evidence of Ms Pokhrel, Ms Kura, Ms Kaur, Mr Hassani and Mr Khehra contradict this. It was very difficult to find support for Ms Rani’s absolute position in such a context, and this reflects negatively on the credibility of her evidence more widely as a consequence.
[72] Ms Rani’s claim that she had never been warned or counselled about any matters in relation to her performance of her duties or her conduct was unsustainable in the context of the evidence as provided. The three witnesses for the Respondent (Ms Kaur, Mr Hassani and Ms Kura) gave evidence that flatly contradicted many of Ms Rani’s claims (that she was never counselled or warned and never had any performance or conduct issues). Mr Hassani’s evidence as to a public altercation with Ms Rani over a uniform issue was made out. The evidentiary case for Ms Rani gave strong support for the existence of continuing hostilities between Ms Rani and Mr Hassani. But Ms Rani’s evidence was silent on any such incidents and events.
[73] Such was the weight of evidence provided by the witnesses, as set out above, that it was demonstrative of the fact that Ms Rani, amongst other matters referred to above, was broadly unreliable in relation to the performance her duties as a restaurant manager over time (which included the important stocktaking tasks), and that her dismissal was warranted as a consequence.
[74] I was not satisfied that claims in relation to Ms Rani’s interactions with social media were at all relevant. The fact that Ms Rani “liked” a complaint about the restaurant on Facebook does not lead me to conclude that Ms Rani had set out to damage her employer’s corporate reputation. Indeed, the matter was not the subject of any examination in any detail in the course of the proceedings.
[75] I have not found that Ms Rani’s relationships with various staff were attributable to her own mismanagement of those relationships (the evidence never traversed this issue to any extent).
[76] But that said, for the reasons I have given above, I nonetheless do consider that the consistent evidence that Ms Rani did not fulfil her various wider, particular and important duties as a restaurant manager to be made out and that this evidence warranted the decision to terminate her employment.
[77] On this basis, I am satisfied that the employer had a valid reason for the dismissal of Ms Rani.
[78] I am not of the view that Ms Rani was provided advanced notification of her dismissal. Ms Rani was provided her dismissal correspondence upon being approached by her employer.
[79] Ms Rani was not provided an opportunity to respond to the reasons for her dismissal. Ms Rani was called to a meeting with her employer and was handed her dismissal correspondence.
[80] The circumstances of the dismissal did not give rise to a context in which Ms Rani had an opportunity to have a support person present at the meeting with her employer which resulted in her dismissal.
[81] I am satisfied on the evidence that Ms Rani was notified at previous times about various concerns in relation to her performance. Her claims to the contrary are contradicted by the evidence I have accepted and set out above on behalf of the employer. Mr Hassani’s evidence was particularly relevant in this regard, as was that of Ms Kaur, Ms Kura and Mr Khehra.
[82] The employer’s enterprise is a relatively small enterprise. It is reasonable to surmise that the process leading to the dismissal was affected by the more informal processes characteristic of smaller businesses.
[83] The employer does not employ any dedicated human resource management specialists and reasonably this fact would have likely impacted on the procedures followed in effecting the dismissal.
[84] There are a number of underpayment issues agitated by Ms Rani arising from her dismissal. Ms Rani, of course, can pursue these matters through the Fair Work Ombudsman if they are of continuing concern to her. This is similarly the case with other former employees who may have like concerns.
[85] I add only that Ms Rani approached her case on the basis that her witnesses set about building a portrait of an employer who treated its employees without respect or care. Ms Rani’s witnesses largely pointed to their own circumstances and particular experiences (and not to Ms Rani’s) in an effort, perhaps, to cause me to draw an inference that the employer was not to be trusted.
[86] In the end, however, it is the employer’s conduct in relation to Ms Rani that is exposed to examination. And it is the evidence in relation to that conduct that must be evaluated.
[87] The employer had a sound, defensible and reasonable basis - and thus a valid reason - for the dismissal of Ms Rani from her employment as a restaurant manager. Ms Rani could not be relied upon to perform critical roles as a manager and her conduct had been less on occasions than might reasonably be expected by her employer.
[88] Ms Rani, however, was not accorded the procedural opportunities to defend her position that an employee ordinarily would anticipate under the Act: she was not notified of her dismissal in advance nor provided an opportunity to respond to the conduct and performance issues that were relied upon for her dismissal.
[89] That said, when all the circumstances of this matter are taken into account, I do not consider that the result would have been any different had Ms Rani been able to exercise her rights in relation to such procedural opportunities. It appears to me very much to be the case on the evidence that I have heard that Ms Rani’s continuing employment had become an unsustainable proposition by March 2015.
[90] Given my conclusion in this regard, Ms Rani’s application under s.394 of the Act is dismissed for reasons that her dismissal was not harsh, unjust or unreasonable.
SENIOR DEPUTY PRESIDENT
Appearances:
Ms P. Rani, Applicant
Ms G. Kaur, of the Respondent
Hearing details:
By telephone
5 August & 18 September 2015
1 Transcript of proceedings dated 5 August 2015 at PN77.
2 Transcript of proceedings dated 5 August 2015 at PN74 and PN132.
3 Transcript of proceedings dated 5 August 2015 at PN78-79.
4 Transcript of proceedings dated 5 August 2015 at PN417-419.
5 Transcript of proceedings dated 18 September 2015 at PN1539.
6 Transcript of proceedings dated 18 September 2015 at PN1507-1511.
7 Transcript of proceedings dated 18 September 2015 at PN1726-1732.
8 Transcript of proceedings dated 5 August 2015 at PN547-549.
9 Transcript of proceedings dated 5 August 2015 at PN647-648.
10 Transcript of proceedings dated 5 August 2015 at PN475-476.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR572002>