FEDERAL COURT OF AUSTRALIA

Dutta v Telstra Corporation Limited [2018] FCA 1994

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant, Prit Nath Dutta, has brought a proceeding seeking compensation from his former employer, Telstra Corporation Limited (Telstra), for alleged contraventions of the Fair Work Act 2009 (Cth) (the Act).

2    Mr Dutta’s principal allegation is that Telstra contravened s 340(1) of the Act by terminating his employment because he exercised his right to make complaints about his managers. Mr Dutta also alleges that he was unfairly dismissed because his redundancy was not a “genuine redundancy” within s 389 of the Act.

3    I will begin by summarising Mr Dutta’s allegations. I will then set out the relevant legislative provisions. I will describe the facts of the case that are not in dispute. I will then assess the disputed evidence. Finally, I will consider whether Mr Dutta’s allegations have been made out.

The applicant’s allegations

4    Mr Dutta has represented himself in the proceeding. Understandably, his allegations of contravention of s 340(1) of the Act have not been precisely articulated. To attempt to understand his case, it is necessary to examine his originating application, a document entitled “Brief for Justice Rangiah”, his written submissions and his oral evidence.

5    Mr Dutta’s material demonstrates that his central complaint is that a manager, Bruce Gessey, arranged for his employment to be terminated as a “revenge attack”. In paragraph 1 of his originating application, Mr Dutta alleges:

I have been dismissed from Telstra as revenge attack by my Superior Bruce Gessey. My crime was to rise up and complain about him last year for sufferings, isolation and Bullying after one incident in Dec 2015. His Dictatorship Management style was further supported by Telstra HR while dismissing me on False Assessment done in Jul 17. I was given lowest rating by my superiors to make me forcibly redundant…”

6    In the document entitled “Brief for Justice Rangiah”, Mr Dutta asserts:

In 2014, Mr Dutta commenced working for Mr Bruce Gessey, an Executive at Telstra. During this period working for Mr Gessey, Mr Dutta suffered a mental and physical breakdown due to bullying, isolation and discrimination. After two and a half years working for Mr Gessey, Mr Gessey approved Mr Dutta being forcibly made redundant.

(Emphasis in the original.)

7    In his oral evidence, Mr Dutta claimed that to the extent that other managers made decisions or engaged in conduct that led to his dismissal, they did so under the control of Mr Gessey.

8    I understand Mr Dutta’s case that Telstra contravened s 340(1) of the Act to be that:

(1)    Telstra, through Mr Gessey and other managers, took adverse action against Mr Dutta by:

(a)    selecting him for redundancy;

(b)    blocking his redeployment to another position within Telstra;

(c)    dismissing him from his employment;

(d)    discriminating between him and another employee by telling him the wrong process for a task, but telling the other employee the correct process;

(e)     bullying, harassing, targeting and isolating him, resulting in injury to his mental state.

(2)    The adverse action was taken because Mr Dutta exercised his workplace rights to make complaints and initiate a process under the Act by:

(a)    making a complaint against Mr Gessey;

(b)    making a complaint in a Telstra employee internet forum;

(c)    making a complaint about his immediate manger, Stanko Zivcic;

(d)    requesting flexible working arrangements.

(3)    The following events or incidents demonstrate that adverse action was taken against Mr Dutta, and was taken because he exercised workplace rights:

(a)    he was bullied, harassed, targeted and isolated because he went over Mr Gessey’s head about an issue in December 2014 and made a complaint about Mr Gessey in July 2016, including by receiving low performance assessments and having his requests for assistance delayed;

(b)    a manager sent confidential performance ratings with adverse comments about Mr Dutta to other employees;

(c)    he was targeted for raising complaints in an employee internet forum;

(d)    he was given an undeservedly low rating in his yearly performance assessment in July 2017;

(e)    when he asked about the correct process for requesting back-up for certain services, Mr Zivcic told him the wrong process on two occasions—in contrast, his supervisors gave the correct information to another employee;

(f)    when he complained about Mr Zivcic’ conduct, Mr Gessey sided with Mr Zivcic;

(g)    he was denied the flexible working arrangements he required to attend to his daughter’s medical needs and obtain treatment for his own depressive condition;

(h)    his request to temporarily work on a part-time basis was refused;

(i)    when he raised his concern that an instruction given by Mr Zivcic was in breach of Telstra policy, he was labelled as a bad employee and a threat was made to have the task done by another employee;

(j)    the above matters culminated in Mr Gessey, together with other managers, producing a falsified assessment report in order to get rid of him through a redundancy process;

(k)    the managers then blocked his redeployment into other positions within Telstra.

(l)    his appeal against his redundancy was wrongly dismissed.

9    In the course of the hearing, I queried whether Mr Dutta should be understood as raising each event or incident from 3(a) to (l) as itself constituting an allegation of adverse action. Telstra submits that they should not be understood in that way and that Mr Dutta’s allegations of adverse action are confined to being made redundant and dismissed. However, one of the allegations of adverse action is that Mr Dutta was bullied, harassed, targeted and isolated, and he asserts that each of these events or incidents is part of a pattern of bullying, harassing, targeting or isolating him. They are therefore to be regarded as part of the allegations of adverse action, as well as evidence going to the true reasons for his being made redundant and dismissed.

10    In his written closing submissions, Mr Dutta raises s 355 of the Act. The allegation seems to concern an assertion that Mr Zivcic threatened to reallocate a particular task that had been assigned to Mr Dutta to another employee. He also raises s 351 of the Act, appearing to allege that adverse action was taken against him because of his race, family or carer’s responsibilities, religion, national extraction or social origin.

11    Mr Dutta also alleges that he was unfairly dismissed under s 385 of the Act because his redundancy was not a “genuine redundancy” within s 389.

The legislation

12    Part 3–1 of Ch 3 of the Act is entitled “General protections”. Division 3 of Part 3-1 is entitled “Workplace rights”.

13    Section 340 is within Div 3 and provides, relevantly:

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

Note:    This subsection is a civil remedy provision (see Part 4-1).

...

14    Section 341 of the Act defines “workplace right” as follows:

Meaning of workplace right

(1)    A person has a workplace right if the person:

...

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

    …

(i)    making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

…

(k)    any other process or proceedings under a workplace law or workplace instrument.

...

15    Section 342(1) of the Act contains a Table which describes when a person takes “adverse action” against another person. Under Item 1, adverse action is taken by an employer against an employee if the employer:

(a)    dismisses the employee; or

(b)    injures the employee in his or her employment; or

(c)    alters the position of the employee to the employee’s prejudice; or

(d)    discriminates between the employee and other employees of the employer.

16    Section 793 of the Act provides, relevantly:

793    Liability of bodies corporate

Conduct of a body corporate

(1)    Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

...

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

...

17    Section 351 of the Act provides, relevantly:

351    Discrimination

(1)    An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

...

18    Section 355 of the Act provides:

355    Coercion—allocation of duties etc. to particular person

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

...

(c)    allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or

(d)    designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.

19    Section 360 of the Act provides:

360    Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

20    Section 361 of the Act provides, relevantly:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

The evidence not in dispute

21    Mr Dutta commenced employment with Telstra in August 2008 as a “Project Manager IT” in Melbourne. He later moved to Brisbane.

22    Mr Dutta and Telstra were covered by the Telstra Enterprise Agreement 2015–2018 (the Enterprise Agreement).

23    Mr Dutta worked in the Operations Support Services Team (the OSS Team). The OSS Team performs a role called “applications management”, working with external IT vendors and internal groups within Telstra to ensure that Telstra’s IT applications are operating within service level agreements and cost restraints. Mr Dutta’s position required him to liaise between external IT vendors and internal work groups to ensure that any problems with IT applications were identified and managed appropriately. He is usually described in the evidence as an “Applications Manager”, and I will adopt that term.

24    Mr Gessey was the General Manager of the OSS Team. He was Mr Dutta’s “two-up manager”, which means that Mr Dutta reported to a manager, known as a Service Operations Manager who reported to Mr Gessey.

25    The position of Service Operations Manager was held by Mr Zivcic from September 2016. Between June 2016 and September 2016, the position was held by Taren Rekhi. Prior to June 2016, the position was held by Robert Bicknell.

26    In June 2017, a restructure of the OSS Team commenced. The restructure was part of a broader restructure across Telstra’s entire business, known as “Project Rosie”. The aim of the project was to identify where efficiencies could be made and areas where costs could be reduced.

27    A decision was made that the positions of 22% of the Applications Managers within the OSS Team would be made redundant. Those that remained would transition into a role called “End-to-End Solution Manager”.

28    Telstra undertook a consultation process about the restructure, including briefing those employees who were directly affected. Mr Gessey was responsible for carrying out the briefings for the OSS Team. On 5 July 2017, he advised the affected employees, including Mr Dutta, that there would be an overall reduction of 25 positions in the IT Operations Team, including five Band 2 positions and two Band 3 positions within the OSS Team. Mr Dutta was a Band 2 employee.

29    A “group redundancy” process was undertaken under the Enterprise Agreement. This involved choosing employees for redundancy after a process of ranking them. Clause 42 of the Enterprise Agreement provides:

42    Group Redundancy

42.1    Sometimes Telstra may need to reduce the number of employees in a group who are performing the same job.

…

42.3    Selection Process

(a)    Telstra will fairly and objectively rank employees in the group, using merit-based criteria. Telstra will not consider anything, other than your ranking, when deciding who will be selected for redundancy.

(b)    Telstra will ask for applications from volunteers within the group and consider any applications before selection is completed.

(c)    Telstra will tell you if you have been selected. This will happen no earlier than 7 and generally no later than 21 calendar days after you were originally told that a reduction in roles is required.

(d)    If your role is redundant you will commence the Placement Period set out in Section 9.

30    Telstra has a written Redundancy Policy which details how the selection process is to be carried out. The Redundancy Policy requires that merit-based criteria be developed. Mr Gessey, together with three other managers, developed five criteria that were to be used to rank the employees who were at risk of redundancy. Mr Gessey deposes that these criteria were chosen on the basis that they best reflected the duties of the persons working in the OSS Team.

31    The five criteria were:

CRITERIA #1

Customer Focus

•    Acts with the customer in mind

•    Builds sustainable partnerships with the customer

•    Uses trends and data to improve customer service and products.

CRITERIA #2

Skills and knowledge

•    Delivers to high standards of performance even when working under pressure.

•    Analyses complex issues, considers issues from a variety of perspectives and plans responses accordingly.

•    Identifies problems and continuously seeks better ways of doing things.

CRITERIA #3

Strategic Agility, Vision and Purpose

•    Aligns own work with team priorities

•    Understands how their role influences business issues, processes and outcomes

•    Shares information regarding team purpose and goals with team.

CRITERIA #4

Innovation Management and Business Acumen

•    Supports sound business decisions even when others disagree

•    Is willing to challenge established processes/procedures, making positive suggestions for improvement

•    Actively listens to and understands alternative points of view.

CRITERIA #5

Organisational and Team Effectiveness

•    Contributes to team success

•    Assesses the implications on cost, bottom line and customer response (both internal and external) before making decisions.

•    Faces up to challenges and takes the lead

32    The employees were invited to complete a “Self Assessment Form”, giving their own assessment of their performance against the five criteria. They were also invited to attend an interview with members of the management team. Managers were then required to complete a “Manager Assessment Form” against the five criteria to evaluate the suitability of employees for new roles. Once the assessment process was complete, the Applications Managers were ranked and the employees with the lowest rankings were selected for redundancy.

33    Mr Dutta submitted his Self Assessment Form on 12 July 2017 and participated in a telephone interview with Mr Zivcic and Santosh Bajanemane, an IT Applications Manager, on 19 July 2017. In the course of the interview, Mr Dutta accused Mr Zivcic of targeting him, of being biased, and not doing his job. He hung up the phone and the interview ended.

34    Following the interview, Mr Zivcic completed the Manager Assessment Form, assessing Mr Dutta against each of the five criteria, with input from Mr Bajanemane. He gave Mr Dutta an overall rating of 2 out of 5.

35    The assessment process for all the Band 2 Applications Managers was completed by Mr Zivcic and Mr Bajanemane by 21 July 2017. Three Band 2 Applications Managers had applied for voluntary redundancy and their applications were accepted by Telstra. Therefore, two Band 2 Applications Managers remained to be selected for redundancy through the Group Selection Process.

36    On 21 July 2017, Mr Gessey conducted a review of the rankings. Following the review, all the Band 2 Applications Managers were ranked according to the scores in their Manager Assessment Forms. The rankings were also reviewed and approved by a Senior HR Business Partner, Karen Pascoe.

37    Mr Dutta was ranked the lowest. He was selected for redundancy, together with the employee who was ranked the next lowest. On 25 July 2017, Mr Zivcic and Ms Pascoe notified Mr Dutta of the decision to select him for redundancy. He was issued with a letter confirming the decision on the same day.

38    On 25 July 2017, Mr Dutta lodged an appeal against the decision to select him for redundancy through “Telstra’s Redundancy Appeal Process” policy. The appeal was allocated to Tony Ford, a Senior HR Advisor, for review. Mr Ford upheld the decision to select Mr Dutta for redundancy. On 11 August 2017, Mr Ford notified Mr Dutta of the outcome of his appeal.

39    There was a “Placement Period” for four weeks where Mr Dutta could apply for redeployment to another position with Telstra. He applied for two positions but was unsuccessful.

40    On 18 August 2017, Mr Dutta’s employment was terminated.

Evidence of Prit Nath Dutta

41    Mr Dutta has affirmed two affidavits that were admitted into evidence. The first gives his account of the events that he alleges led to his redundancy. The second addresses the affidavits of Telstra’s witnesses. His affidavits often use acronyms and technical language used within Telstra that is difficult to decipher. Some of what he has written is confusing. I will attempt, where possible, to give my understanding of what is meant, rather than merely repeating Mr Dutta’s language.

42    In his first affidavit, Mr Dutta refers to the events and incidents he complains of in chronological order.

43    The first incident occurred on 15 December 2014 and appears under the heading “First incident resulting in start of harassment and Bullying”. Mr Dutta states that there was a major outage with one of the applications critical to Telstra’s Global Operations Centre (GOC) due to a hardware failure. Mr Dutta sought Mr Gessey’s approval of funding of $10,000 to address the problem, but two days passed without Mr Gessey providing the approval. Mr Dutta was chased by the GOC team four to five times per day, as the application was critical to allow them to troubleshoot major outages in the Telstra network. After two days, the GOC manager asked Mr Dutta to email Peter Corrigan, Mr Gessey’s manager, to obtain approval of the funding.

44    Mr Dutta sent an email to Mr Corrigan on 17 December 2014, but did not copy Mr Gessey into the email. The email said that, “after two days of un-availability, GOC team requires immediate resolution as an urgent request.” Mr Corrigan approved the funding the next morning.

45    Mr Gessey scolded Mr Dutta for bypassing him and requesting approval from Mr Corrigan. Mr Dutta explained that he had followed a late night instruction, that he was not at fault and he was simply protecting Telstra’s business interests. Mr Dutta says that Mr Gessey, “was very upset with me and used very strong words as he looked bad for being slack”. Mr Dutta states that Mr Gessey remained upset with him for the next two-and-a half-years and that he deliberately delayed action on requests made and “put every effort to rate me low”.

46    Mr Dutta next complains that in June 2015 he was given a low performance rating by Mr Gessey, with the December 2014 incident being raised as the prime reason. Mr Dutta says that Mr Gessey had ignored all the good work he had done. Mr Dutta says that he explained that the incident was not his fault.

47    Mr Dutta then refers to an event commencing in December 2015, which he describes as a “Major incident of deliberate isolation over 6 months putting my job on risk”. He says that Telstra had lost a vendor who supported two of the critical applications he was managing. A replacement was found, but Mr Gessey refused to accept that person, stating that there were organisational funding complications. He states that Mr Gessey kept the approval pending for months with no real reason. Mr Dutta kept asking for approval, but says his requests were deliberately ignored. He says that this was stressful because he was being harassed by other managers for not taking action to support Telstra’s critical business needs and was concerned that he would be blamed if any of the applications failed completely. His request was finally approved on 9 June 2016. He describes the period as being “six months of to and fro for no real reason”.

48    The next event was in June 2016 and is described as “Second year in row, Prit’s manager again gave low rating mentioning previous year’s dealings with general manager in Dec 14”. Mr Dutta says that he was again given a low rating in his performance review for 2015/16. The incident in December 2014 was again mentioned. Mr Dutta says he was very upset this time, since the incident had no relationship with the 2015/16 performance review.

49    The next event was in June 2016 and is described as “Prit’s manager sent Prit’s performance ratings to all staff to malign him displaying low ratings. The similar email was sent again after a couple of days”. Mr Bicknell, who was then the Service Operations Manager, sent an email on 30 June 2016 to all the Applications Managers and other staff attaching the 2015/16 performance assessment results for each of them. In that assessment, Mr Dutta was given a rating of 3 out of 5 and ranked fifth out of six. The comments were generally favourable to Mr Dutta, but also said “at times he can be involved is (sic) missed communications”. In his oral evidence, Mr Dutta said the same document was sent twice in a week.

50    The next event was in June 2016. It is described as “Prit Dutta formally complaint to then Director Brett Turner about Bruce Gessey’s ongoing harassment and Bullying putting Prit job on risk and Telstra Brand on risk as well”. Mr Dutta sent an email dated 26 July 2016 to Mr Turner with the subject “Escalation for not getting help from my GM Bruce Gessey”. The email said:

I request to have an appointment to discuss ongoing issue of not getting support from our GM Bruce Gessey. Not having timely support in putting application on risk when action can be taken timely. This is the third occasion of having similar issue and complaining is negatively impacting my personal goals.

In current issue I seeking urgent support to formally resolve a support problem related with “Dial Before Dig” service. Instead of getting help, I am going in circles with my GM”.

…

51    Mr Dutta’s sent another email on 4 August 2016 with a summary of his concerns. These concerns were described as:

1.    Excessive delays in getting Manager’s support/approvals for serious Business Impacting issues, when funding is in budget and no compelling reason for delays…

2.    Unfairly targeted. While working on an incident related to urgent Break Fix approval from Peter Corrigan, I was unfairly targeted in PRDP for 3 years. NETINFO issue was mentioned repeatedly for three years and my PRDP for some reason and impacted my performance when I attempted to do the right thing with Telstra. This year (2016) I had to clearly refuse to accept this feedback for a third time as being 2 years old issue. I am realising I should not have even accepted this feedback in first place, for not being responsible of missing process and slow approval in my hierarchy.

…

3.    Highly stressful environment due to lack of interest from own Managers in managing daily conflicts with Business Teams and Support Vendors. From Dec 2015 I am under constant stressed possible complete outage on CADLINK resulting in getting unfairly targeted once again.

4.    Serious impact to perform and Career Development.

Currently I am spending a lot more of my time dealing with political issues than Business needs…I would prefer to move to other Telstra Business Unit to make best use of my Project management skills and experience.

(Emphasis in original.)

52    The next relevant event was in September 2016. This is described as “Bruce Gessey’s formal blunt announcement in Team Meeting in front of all staff to work unlimited hours/week, overtime with no compensation or time in lieu”. Mr Dutta sent an email to his then Service Operations Manager, Mr Rekhi, asking for an email confirming that he had the previous day said that, “All Application Managers are expected to work weekend/Off working hours, time in liu (sic)/any compensation will not be provided (Unconditionally/unlimited I guess as working over 30 hours in a month is getting rejected)”. Mr Dutta says he also asked for clarification from HR, but never received any clear statement that unlimited work is not permitted or that working an additional 30 hours per month is abnormal.

53    The next event was in February 2017 when Mr Dutta made a request of Mr Zivcic to work part-time due to ongoing stress. Mr Dutta states that Mr Zivcic informed him that his request had been rejected by Mr Gessey due to the high work load of the OSS Team and insufficient staff. Mr Zivcic sent Mr Dutta a text saying:

I have discussed with Bruce and the position is that we cannot support this, in particular with the coming reductions it will be more difficult to load balance.

Mr Dutta says that it was a shock later in July 2017 when Mr Gessey informed him that he was not required as there were excess staff.

54    The next relevant event complained of is in May 2017, described as “Two major incidents where Prit’s Manager (Stanko Zivcic) discriminated and harassed him, made false allegation of not following process”. Mr Zivcic is said to have twice advised Mr Dutta of the wrong processes for requesting back-up for ICT services. In an email sent on 26 May 2017, Mr Zivcic seems to advise Mr Dutta to approach IBM. Mr Dutta says that, in fact, the correct process was to lodge an application on a web-based application within Telstra called “CRISP”. He says that he later found out that his managers knew that the correct process was CRISP and shared that information with another staff member, but discriminated against Mr Dutta by not giving him the same information. Mr Dutta has produced an email which he says shows that the other employee had been told that the correct process was the CRISP process.

55    At the end of June 2017, Mr Dutta was told by Mr Zivcic to follow the CRISP process. Mr Dutta then complained to Mr Gessey and an “escalation meeting” was held. In that meeting, Mr Gessey is alleged to have made the comment, “We knew the process but in Telstra we expect staff to discover process on their own”. Mr Dutta says that he was surprised by this, since it is usually only the managers who are across the relevant processes, as they tend to be changed regularly.

56    Mr Dutta then complains that in June 2017, “Prit escalated Manager’s (Stanko Zivcic) harassment up to two-up General Manager (Bruce Gessey) who supported Manager’s (Stanko Zivcic) behaviour”. Mr Dutta sent an email to Mr Gessey on 30 June 2017, complaining that he was proceeding with applying for a back-up request on CRISP, but kept hitting road blocks. He also said:

Please note the conversation we had was quite intimidating and not align with Telstra values. As EES clearly states we have serious issue with making simple things quite complex. This is the fundamental reason Telstra had to deal with Angela McCarthy issue. This is not first time I faced poor management in my group. I am frustrated and stressed with the Management style. I will be lodging HR complaint and discuss the issues with appropriate authorities.

57    Mr Dutta then complains that in June 2017, “Telstra performed Performance Assessment to pick staff for forced Redundancy”. He says that he was under the impression that by law, redundancy should not be performed using a performance management tool. He says that Telstra made him forcibly redundant by using a performance assessment tool containing false allegations. Mr Dutta says he was given assessments by two business customers who rated him at four or five out of five in terms of a number of criteria, but these assessments were not taken into account. He says he was also barred from any redeployment opportunities within Telstra.

58    Mr Dutta next complains that on 18 July 2017, “Prit’s manager forcing him to ask vendor to work for free, which is against Telstra policy subject to disciplinary action”. This was a complaint that Mr Zivcic had told him to ask IBM to do some work free. In his oral evidence, Mr Dutta said that this had been said in a telephone call. On 18 July 2017, Mr Zivcic sent an email saying that he was not asking Mr Dutta to ask IBM to work for free.

59    Mr Dutta then emailed Mr Zivcic on 18 July 2017, saying:

I need clear process here please. We are working in Telstra not in a ‘fish n chips “shop. It is not fair that Managers have no control on process but asking to rum around, hit and try things. It this the way we are expected to perform? This is a very standard work flow, it should be established in a process”.

60    Mr Zivcic replied, saying:

You have presented a problem and been provided with a suggested way forward.

Please proceed, if you are not capable of operating within same level of ambiguity as your peers that is fine, I will find someone to help you through the process.

61    Mr Dutta says that this was a threat to have him replaced for the task with another employee.

62    Mr Dutta replied, saying:

Sorry, I am not capable of asking vendor to work for free when support contract is only for Business hours.

63    Mr Dutta’s next complaint is that in July 2017 “Prit’s manager (Stanko Zivcic) formally informed Prit of him being made redundant immediately with 4 weeks’ notice, based on assessment results where claim was made the Prit failed to follow Telstra processes”.

64    Mr Dutta says that he was shocked at the assessment results, where he complained about his manager not giving him the correct processes and discriminating against him compared to another employee. He alleges that Mr Zivcic falsified the assessment to make him redundant. He also alleges that Telstra’s appeal process was biased to protect Mr Zivcic’ decision.

65    Mr Dutta complains that Mr Bajanemane was present in the assessment meeting. He had never met Mr Bajanemane before and had no previous dealings with him. He says that Mr Bajanemane also reported to Mr Gessey who Mr Dutta says “was the source of all my depression, harassment and bullying”.

66    Mr Dutta states that he ought to have been offered an opportunity for redeployment. He says that at least 200 jobs were advertised on Telstra’s job site, and around 40 of these were jobs that Mr Dutta could have done.

67    Mr Dutta complains that Telstra rejected his appeal against the decision to make him redundant.

68    Mr Dutta deposes that since leaving Telstra he has struggled to find and keep other work due to his depressed state. He says that he is also struggling to find work because most employers seek a reference from his previous immediate supervisor. However, Mr Zivcic and Mr Gessey had rated him as being low in his redundancy performance assessment for not following processes, which makes it difficult for him to find other work.

69    Mr Dutta repeated and elaborated upon some parts of his complaints in his oral evidence. I do not propose to describe all his oral evidence.

70    Under cross-examination, Mr Dutta accepted that he had filled in a Self Assessment Form as part of the redundancy process, but denied that it was “valid” as he had not signed it.

71    Mr Dutta accepted that Mr Zivcic had never denied any request he had made to work from home, but complained that Mr Zivcic would not accept his requests straight away and would ask for clarifications.

72    Mr Dutta gave oral evidence that at the meeting to discuss his Self Assessment Form, Mr Zivcic refused to listen to him and the whole process was against him. He complains that Mr Zivcic refused to consider feedback from Mr Dutta’s customers. He said he stopped the meeting when Mr Zivcic made false claims.

73    Mr Dutta’s evidence was that the ratings he was given for the criteria in the Manager Assessment Form did not reflect his true standard.

Evidence of Bruce Campbell Gessey

74    Mr Gessey is the General Manager of the OSS Domain at Telstra. He deposes that he did not have a great deal to do with Mr Dutta’s day to day work.

75    Mr Gessey gives evidence concerning the incident in December 2014 where Mr Dutta proceeded to contact Mr Corrigan directly. Mr Gessey says that Mr Dutta did not follow the correct process, which would have been to speak to Mr Gessey first, rather than going directly to Mr Corrigan. Mr Gessey says that he gave Mr Dutta a “minor wrist-slap” by saying words to the effect that, “That is not the right process, to do. Please ensure you include me in escalations going forward”. He directed Mr Dutta not to go to his “three-up manager” without coming through Mr Gessey first. Mr Gessey deposes that he considered this a minor issue that was closed by the time of the redundancy review process and that he had forgotten about it. He says that the incident was not discussed during the redundancy review process and was not a factor considered by him during the redundancy process.

76    Mr Gessey refers to requests made by Mr Dutta to work from home. He says this was not unusual as many Telstra employees work from home, and he had no problems with this. He says he understands that Mr Zivcic would approve his team to work from home and to have early starts or finishes as required.

77    Mr Gessey refers to the event on 30 June 2016 where Mr Bicknell, the then Service Operations Manager, inadvertently sent the performance review and development plan ratings to a number of Telstra employees, rather than solely to Mr Gessey as intended. He says that Mr Bicknell contacted him to explain what had occurred shortly after it happened and that Mr Bicknell was horrified. There is in evidence an email in which Mr Bicknell apologised for his mistake. Mr Gessey said he counselled Mr Bicknell about the incident and told him that he needed to ensure greater attention to detail was paid when distributing confidential information regarding employees.

78    In an email to Ms Pascoe about the email incident, Mr Gessey said that Mr Dutta was the most vocal team member about the incident and had escalated his complaint to a more senior manager, Mr Turner. Mr Gessey says that he does not recall Mr Dutta making a big fuss over this, but that he did mention that he was disappointed this had been done. Mr Gessey considered this to be a one-off mistake by Mr Bicknell.

79    Mr Gessey deposes that in July 2016 he attended a meeting with Mr Dutta and Mr Turner, the director of IT operations. He had become aware that Mr Dutta had made a complaint about lack of support from Mr Gessey and Mr Bicknell. The main concern expressed by Mr Dutta was the length of time taken to approve an agreement to fund a new external support provider, which Mr Gessey saw as a complaint about the management team not supporting him. Mr Gessey says he developed a process for the approval process so that there were clear expectations and timelines, then if Mr Dutta was not receiving appropriate responses from his “one-up” manager, he could escalate it to Mr Gessey.

80    Mr Gessey states that he was aware of an incident in mid-2016 where Mr Dutta complained to him about Mr Rekhi, the then Service Operations Manager, incorrectly communicating information about time off in lieu and compensation for additional hours worked. Mr Gessey understood that Mr Rekhi had told employees they could not bank time off in lieu, whereas Mr Bicknell had previously been allowing this. After Mr Dutta’s concern was raised, Mr Gessey informed Mr Rekhi that he would not continue to honour the process that Mr Bicknell had developed. Mr Dutta rang Mr Gessey directly to discuss the issue and Mr Gessey said, “It was my fault, I didn’t explain it to Taren properly. I will fix it”. Mr Gessey says he then attended a team meeting, at which Mr Dutta was present, to clarify the issue. He then considered the issue closed, particularly because the interpretation by Mr Rekhi had been corrected almost immediately.

81    Mr Gessey says that he is aware of an incident in May 2017 when Mr Dutta commented on the CEO’s Yammer page, an internal communication tool, which allows any of Telstra’s employees to post comments or comment on other people’s posts. Ms Pascoe telephoned Mr Gessey saying that she had spoken to Mr Dutta about his post and was removing it from Yammer as it was deemed unacceptable. Mr Gessey did not read the comment, but Ms Pascoe told him that it referred to Andy Penn, the CEO of Telstra, and how he probably only had one year left at Telstra. Mr Gessey says that this issue was not considered by him in the redundancy process.

82    Mr Gessey deposes that on about 13 June 2017, Mr Zivcic raised with him the possibility of Mr Dutta working part-time and mentioned that Mr Dutta’s daughter was unwell, without going into detail. Mr Dutta had not made a formal request for a part-time arrangement and Mr Gessey considered that Mr Zivcic was just raising this as a possibility.

83    Mr Gessey deposes that it was difficult to accommodate part-time arrangements in the OSS Team as there was a great deal of “on-call” work that has to be completed. Also, based on the staffing numbers, it was difficult to accommodate requests for part-time work. Mr Gessey did not approve or decline the request to work part-time as it was never a formal request and Mr Zivcic never mentioned it again. He states that this issue was not considered during the redundancy process.

84    Mr Gessey was aware of an incident where Mr Dutta had taken issue with what he perceived to be Mr Zivcic asking a vendor, IBM, to work for free. His understanding is that Mr Zivcic encouraged IBM to push back on its request for Telstra to pay for overtime or additional work. Mr Gessey says that Telstra pays IBM millions a year to carry out maintenance and support and it is not uncommon for managers to try to push back requests for additional funding by vendors.

85    Mr Gessey deposes that he was not directly part of the group who made the decision about the restructure in May or June 2017. He states that other general managers were going through the same restructure as it concerned the restructuring of Telstra’s operations as a whole, and it was not just the OSS Team that was being restructured. It was determined that some 22% of Applications Managers would be made redundant.

86    On 5 July 2017, Mr Gessey sent an email to employees who were potentially affected by redundancies. The email set out the timeframe for the relevant steps.

87    Mr Gessey deposes that the procedure adopted for Band 2 employees in the OSS Team was a “group redundancy”. Practically, this meant that:

(a)    employees whose positions may become redundant, and their managers, each had to complete an assessment form;

(b)    the manager and the affected employee would then meet to discuss their respective ratings; and

(c)    the manager would then finalise an average score, and affected employees would be ranked, from highest to lowest, based on their average score.

88    Mr Gessey, together with a number of other general managers, selected from approximately 20 standard assessment criteria, the five criteria to be used in the assessment process.

89    Mr Gessey deposes that he performed a “sanity review” as part of the assessment process and reviewed the assessments both prior to and after meetings with individuals and managers.

90    Mr Gessey deposes that he reviewed all of the managers’ assessments, as did Ms Pascoe, to ensure that the assessments were balanced and there was no obvious bias. Part of his review was to ensure that there was strict consideration of the five key criteria and to ensure that factors outside these criteria were not considered. He did this by looking at all of the scores for each person in each criteria and benchmarking them. For example, he looked at the people with a score of four in a particular criteria to understand what was considered a good response. He then looked at people with a score of two in that criteria to understand which responses were not as good. He was then able to determine whether the people who were given a score of four and a score of two were consistent across the board. He did not make any amendments to the managers’ assessments, nor did he identify any bias or consideration of factors outside the five criteria on his review of the managers’ assessments. Mr Gessey’s “sanity review” was to ensure that the scoring was consistent and that the scores between one and five reflected the comments and assessments made by managers and individuals. He completed the review on about 21 July 2017.

91    Mr Gessey deposes that he was aware that there had been some disagreement by Mr Dutta about Mr Zivcic’ assessment. As a result, he paid particular attention to the Manager Assessment of Mr Dutta to ensure that it was consistent with the rating of all employees within the group.

92    Mr Gessey deposes that customer feedback was not taken into account during the redundancy assessment process. Interactions with customers form part of the five criteria, but they did not actually consider any feedback from customers, but, rather the examples given by the employees.

93    Mr Gessey states that the group redundancy process is distinct from the performance review process, which was not taken into account in the group redundancy process. Additionally, the individual personalities of employees were not considered. Instead it was a matter of considering performance measured against the five selection criteria.

94    Mr Gessey deposes that he did provide some input into the Manager Assessment Form because Mr Dutta had done some work directly for him and that his input was positive in that Mr Dutta performed well in some of the criteria. He also provided direct input for two to three other employees.

95    Mr Gessey deposes that, overall, he was disappointed to lose Mr Dutta. Mr Dutta had scored three out of five, meaning that he met expectations for the period he was working in Mr Gessey’s team. The redundancy process meant that they were losing some solid performers and it was unfortunate that they had to reduce numbers resulting in a lot of good operators being made redundant.

96    Mr Gessey deposes that he was not involved in any attempt to redeploy Mr Dutta in other parts of Telstra.

97    Mr Gessey recalls receiving a copy of Mr Dutta’s redundancy appeal form from Mr Ford, who interviewed him and asked questions about what he thought of the appeal and whether he thought the right processes had been followed. Mr Gessey states that his only involvement in the appeal process was indicating his view that the right processes had been followed.

98    Mr Gessey deposes that the only factors he considered in the redundancy process were Mr Dutta’s work performance and how that compared to the five criteria and the Manager Assessment Form.

99    In his oral evidence, Mr Gessey explained that in the December 2014 incident, he had been trying to get more detail from Mr Dutta’s “one-up manager” when Mr Dutta bypassed him without keeping Mr Gessey informed. Mr Gessey thought the outcome was positive, but that the correct process had not been followed. He denied that he was angry.

100    Mr Gessey gave evidence about the allegation that Mr Dutta had been deliberately told the wrong process by Mr Zivcic and the making of the complaint against Mr Zivcic. Mr Gessey’s understanding was that the other employee who knew the correct process had been able to work it out for himself. Mr Gessey accepted that he told Mr Dutta that Telstra expected its employees to be able to work things out themselves. Mr Gessey denied having used the CRISP process himself or that he was familiar with it.

101    Mr Gessey explained that Mr Rehki had wanted to take off time in lieu as a block of leave or four days, as that had been allowed by the previous Service Operations Manager. Mr Gessey indicated that time off in lieu was not intended to be used in that way. He said that Mr Rehki had got confused and then conveyed to the Applications Managers that there would be no time off in lieu allowed. Mr Gessey said he quickly clarified the position.

Evidence of Stanko Zivcic

102    Mr Zivcic holds the position of Service Operations Manager with Telstra. He manages a team of eight people. He became Mr Dutta’s direct manager in approximately September 2016.

103    Mr Zivcic deposes that when Mr Dutta made requests to be allowed to work from home, he would approve those requests. He could not recall ever refusing such a request by Mr Dutta. He says that he often told Mr Dutta that if he could balance his workload, there was no issue with working flexibly, Mr Dutta would often work from home.

104    Mr Zivcic deposes that he was not aware of any complaint made by Mr Dutta in June or July 2016 about Mr Gessey or Mr Bicknell.

105    Mr Zivcic was aware that Mr Dutta had commented about the CEO on Yammer. He says that Mr Dutta mentioned the Yammer post in his Self Assessment Form for his annual performance review in 2017, as the use of Yammer was one of the criteria to be addressed. He says he did not speak to Mr Dutta about his comments on the Yammer post as he did not want to have a confronting conversation about it.

106    Mr Zivcic says that in May or early June 2017, he and Mr Dutta had a conversation to the following effect:

107    Mr Zivcic says that off-shore vendors are generally available in late afternoons Australian time, due to time zone differences. The work of Applications Managers in the OSS Team involves significant interaction with off-shore vendors. Another employee had made a request to work part-time, but this was declined on business grounds.

108    On 13 June 2017, Mr Zivcic had a meeting with Mr Gessey in which he raised Mr Dutta’s request to reduce to part-time hours. Mr Gessey said that he was not sure that this would work due to the nature of the work and current workloads. He told Mr Zivcic to tell Mr Dutta that they would continue to consider the request, but it would be good to see what would happen with the other request for part-time hours before making any decisions.

109    Mr Zivcic then says that he had a conversation with Mr Dutta to the following effect:

110    Mr Zivcic says that at no time did Mr Dutta make a request to reduce his hours to part-time in writing.

111    Mr Zivcic refers to the “IBM request to work for free” in July 2017. He says that IBM is a major supplier to Telstra. IBM’s general process is to only provide labour during business hours, unless a general manager at Telstra provides an endorsement to work outside business hours. Mr Zivcic’ understanding is that the contract between Telstra and IBM provided for a number of additional labour hours outside business hours without any additional cost to Telstra. He says that from a commercial perspective, it is the expectation of Telstra that suppliers provide a reasonable amount of labour hours outside business hours without additional costs. If an additional cost is to be incurred, it is Mr Zivcic’ expectation that a quote should be obtained so that Telstra can understand what the costs are.

112    On about 18 July 2017, there was a specific issue in relation to IBM carrying out work outside business hours. There was an exchange of emails between Mr Zivcic and Mr Dutta, part of which is set out above at [59]–[62]. It culminated in an email from Mr Zivcic saying:

Prit

You seem to have deviated on quite a tangent here, I don’t understand why.

As previously stated, can you find out what is required to get the change performed after hours?

I have given you some insight into the experience of others in the group and suggested that you clarify with the IBM NIO SOM. Nowhere have I asked you to negotiate a special outcome with the vendor to perform activities for free. So to be clear I am not asking you to ask IBM nor Infosys to do things for free.

I will repeat myself so hopefully you can get the context.

Speak to IBM to understand what is required to get the change done after hours, present the facts to me so that we can go to Bruce and our management to get approvals or funding, or whatever else is required to get the activity completed.

113    Mr Zivcic deposes that he had concerns about Mr Dutta’s performance arising from this exchange of emails. In particular, he was concerned that Mr Dutta did not have a grasp of the workgroups and people in Telstra. In his experience most, if not all, the Applications Managers who reported to him understood the level of interaction required. He was concerned that Mr Dutta had not demonstrated a degree of autonomy or problem solving skills in attempting to resolve the issues with IBM. He was also concerned with Mr Dutta’s tone and in particular his statements that “We are working in Telstra not in a ‘fish n chips’ shop” and “I am not capable of asking vendor to work for free”, was disproportionate to what he was asking Mr Dutta to do.

114    Mr Zivcic’ affidavit deals with the topic of Mr Dutta’s performance prior to the restructure. He deposes that for the years 2016 and 2017 prior to the restructure, Mr Dutta had received a “medium”, or three out of five, rating which means the employee “meets expectations”. A score of one means that the employee “did not meet expectations”, while a score of five means that the employee “significantly exceeds expectations”.

115    Mr Zivcic states that in 2017, prior to the restructure, there were two other employees who reported to him and received a lower performance rating than Mr Dutta. The lowest rated employee took a voluntary redundancy and was not part of the redundancy assessment process, while the employee rated second last in the assessment process was also made redundant.

116    Mr Zivcic confirms that as part of “Project Rosie”, the number of Applications Managers’ positions were to be reduced by five. Mr Zivcic was provided by Mr Gessey with the five criteria that had been developed. He completed the Manager Assessment Form for each of the Applications Managers reporting to him. In doing so, he assessed the behaviour and performance of each employee against the criteria in the Manager Assessment Form. He was given some basic coaching by human resources on how to complete these forms, with a focus on providing examples and addressing the criteria. He understood that the only factors to be considered in the assessment process were the five criteria stated in the Manager Assessment Form and all other factors were to be excluded. He deposes that he complied with these requirements.

117    Mr Dutta completed the employee Self Assessment Form. The form was provided to Mr Zivcic and shared with Mr Gessey and Mr Bajanemane.

118    Mr Zivcic deposes that he formed the view that Mr Dutta had “missed the mark” and put together a summary of his day to day activities and attempted to describe his portfolio and achievements, rather than addressing the criteria. Mr Dutta did not answer the questions set out in the criteria, whereas other employees made an effort to respond to the criteria rather than use the opportunity to explain and showcase all of the work they had done over the last few years.

119    Mr Zivcic deposes that on 19 July 2017, he and Mr Bajanemane were together in Melbourne and attended a telephone conference as part of the assessment process with Mr Dutta. Initially a meeting room had been booked to facilitate Mr Dutta’s attendance by videoconference in Brisbane, but Mr Dutta had advised that he would be working from home, so the meeting proceeded by telephone.

120    Mr Zivcic deposes that Mr Dutta questioned why Mr Bajanamane was involved and he explained that, inter alia, Mr Bajanemane could be “more objective” as he had no experience in dealing with Mr Dutta.

121    Mr Dutta was invited to “walk us through” his employee Self Assessment Form which had five criteria to be discussed and 15 sub-criteria. Mr Zivcic deposes that in relation to the first ten points discussed, Mr Dutta said he agreed with the Manager’s Assessment. Mr Zivcic recorded that agreement in the Manager Assessment Form.

122    Mr Zivcic states that during Mr Dutta’s description of his Self Assessment Form, he observed that what Mr Dutta was describing was not matching the criteria and said words to the effect “Can you describe how this work fits into the criteria in the assessment form?”. Mr Zivcic does not recall the answer. In relation to an example of work which Mr Dutta was describing, Mr Bajanemane said words to the effect “Can you provide more clarification on that example?”. The example was about an approval for a statement of work, which is a commercial engagement purchase order that Mr Dutta was seeking from Mr Gessey and Mr Bicknell. Mr Dutta said that his managers were ineffective because they would not approve the statement of works. Mr Zivcic said it was unclear how this was relevant to the criteria. Mr Zivcic says that Mr Dutta responded with words to the effect, “I am terminating this meeting. You are not listening to my point” in an aggressive and loud tone.

123    Mr Zivcic deposes that he then told Mr Dutta he was seeking the clarification for his benefit and it was in his interests to continue with the assessment interview. Mr Zivcic suggested that they try a different approach.

124    Mr Zivcic says that he then read out the words recorded in the Manager Assessment Form he had completed. After reading comments under Criterion 1, Mr Dutta said words to the effect, “I agree with that assessment. I also want to give an example” and provided an example about getting a statement of work approved.

125    After reading the comments under Criterion 2, Mr Dutta again said words to the effect “I agree with that assessment. I also want to give an example” and then provided an example. The example provided by Mr Dutta was in relation to the TAMS’ server performance analysis.

126    Mr Zivcic read the comments under Criterion 3 and Mr Dutta said words to the effect, “I agree with that assessment”.

127    Mr Zivcic then commenced reading the comments under Criterion 4. In response to the first comment, Mr Dutta said words to the effect, “I agree with that assessment”. Mr Zivcic then continued to read his comments under Criterion 4 and after reading the second comment, Mr Dutta said words to the effect:

I disagree with that assessment. There is no established process for that scenario and you can’t assess me unless there is a documented process. I have lots of experience, including working for a Japanese company. They had documented procedures for everything. Telstra has nothing.

128    Mr Zivcic says that Mr Dutta’s tone was argumentative and he was speaking loudly. Mr Zivcic says he then said words to the effect:

Prit, as a Band 2 Senior Operational Support specialist it is reasonable, and in fact expected that you are able to work in an environment of ambiguity. Many of our processes and organisational structures change rapidly and the underlying principles of the activities remain, however the paths to execute them change.

129    Mr Zivcic explains that he meant that an individual employee in his position was expected to work out how to get the job done by using resources such as the corporate intranet, communicating with peers and seeking advice from a manager.

130    Mr Zivcic deposes that Mr Dutta then commenced speaking over the top of him in a loud and extremely aggressive manner. Mr Dutta said words to the effect:

I will no longer take any biased, bullying statements from my manager! You are targeting me and you are biased! You always provide me with misleading information! You never help me! I am not continuing with this!

131    Mr Dutta said that Mr Zivcic was not doing his job, that he would go directly to Mr Zivcic’ “two-up manager” to discuss Mr Zivcic and then hung up.

132    The meeting lasted approximately 2 hours. Mr Zivcic states that he spoke to Human Resources to seek their advice and was told not to speak to Mr Dutta as this might aggravate the situation.

133    Mr Zivcic says that the meeting was a difficult experience for him because Mr Dutta had taken scenarios where Mr Zivcic had offered to assist him and then had personally attacked Mr Zivcic for not helping him. For example, on one occasion, Mr Dutta was trying to perform a piece of work and Mr Zivcic was trying to help him to do the work by suggesting he contact Enterprise Services or ask someone in the team to work out how to do the work. Mr Dutta then said that Mr Zivcic was not supporting him, was misleading him and setting him up to fail. Mr Zivcic does not recall when that incident occurred.

134    Mr Zivcic said that following the meeting on 19 July 2017, he recorded his observations and recollections of Mr Dutta’s responses to the Manager Assessment Form against the corresponding criteria in the box entitled “additional comments”. He adopted the same process in relation to the other employees.

135    On 15 July 2017, Mr Zivcic completed a Manager Assessment Form in relation to Mr Dutta. Under each of the five criteria, he assessed Mr Dutta’s performance in his current position and recorded his assessment under each of the criteria in the box entitled “Assessment Against Selection Criteria”.

136    Overall, Mr Zivcic assessed Mr Dutta at two out of five, or “Mostly meets the role requirements”. For subcriterion 3 of Criterion 2, “Identifies problems and continuously seeks better ways of doing things”, he was rated as “Struggled to meet expectations”. Mr Zivcic deposes that Mr Dutta spent more time focussing on the flaws or challenges of performing tasks and escalating complaints about these flaws, rather than actually getting the job done. He deposes that his advice to Mr Dutta was to take notes on these flaws and then seek to perform a review of the process. The Manager Assessment Form for Criterion #2 was as follows:

CRITERIA #2

Skills and knowledge

•    Delivers to high standards of performance even when working under pressure.

•    Analyses complex issues, considers issues from a variety of perspectives and plans responses accordingly,

•    Identifies problems and continuously seeks better ways of doing things.

Assessment against selection criteria

Prit meets expectations when delivering high standards when dealing with ITS delivery groups, Prit is focused on a logical outcome and I have observed him providing support In completing ORC and other activities in parallel for the MONTIS and CADLINK programs.

Prit mostly meets expectations when analysing complex issues like the TAMS performance Issues. Prit raised the profile of performance issues and consequently other team members have supported Prit whilst he was on leave providing historical CPU and other server data to help target investigation by the Virtual ops team,

Prit struggles to meet expectations when Identifying problems with processes used in performing various aspects of his role. This includes situations like reinstating backups for TAMS and working with IBM on getting a server fault addressed in CADLINK where the vendor SLA is not aligned to the business requirements. Prit is challenged In dealing with ambiguity around these processes and has an expectation that these and other processes are document for him and the team to be able to perform his role. Prit’s focus then become fixated at the process rather then working through the gaps to get the desired outcome.

Additional Comments

Agreed with manager’s assessment.

Pritt provided examples (from self assessment) where he demonstrated he met the criteria.

Agreed with manager’s assessment. Pritt said he will work with his learn member to get access to operational reporting data and work towards analysing them to help him to plan reponses (sic) in future.

Agreed with manager’s assessment.

137    In relation to Criterion 3, “Strategic Agility, Vision and Purpose”, Mr Zivcic rated Mr Dutta two out of five, meaning that he “Mostly meets the role requirements”. Mr Zivcic states that the third subcriterion related to “Shares information regarding team purpose and goals with team”, and that Mr Dutta had not adequately provided updates concerning application recovery plans. Mr Zivcic’ assessment in the Manager Assessment Form was:

CRITERIA #3

Strategic Agility, Vision and Purpose

•    Aligns own work with team priorities

•    Understands how their role influences business issues, processes and outcomes

•    Shares information regarding team purpose and goals with team.

Assessment against selection criteria

Prit meets expectations in aligning own work with the team priorities when lakes on activities such as coordinating the volumetric reporting and ARP testing for the NITS team.

Prit meets expectations and understands how his role influences business issues and outcomes when reviewing and providing feedback for CIA’s for his portfolio, Prit also follows up to ensure that his manager has reviewed these CIA’s like the recent MITS NNIG Automation activity

Prit mostly meets expectations when sharing team purpose In participating in vendor governance meetings and coordinating the ARP testing activities. Prit was vocal in following up with the team on email and during the team meetings to ensure the updates were provided and didn’t indicate there were issues, yet in a subsequent meeting with his manager and GM he called out that the team still had outstanding updates to provide.

Additional Comments

Agreed with manager’s assessment.

Agreed with manager’s assessment

Agreed with manager’s assessment

138    For Criterion 4, “Innovation management and business acumen”, Mr Zivcic rated Mr Dutta one out of five, meaning that there was “Limited match between role requirements and employee’s performance”. Mr Zivcic deposes that in his view, Mr Dutta demonstrated a fundamental inability to arrange for system backups to be established on his application, “Telstra Automated Mapping System” (TAMS).

139    TAMS was an IT application which Mr Dutta had accountability for. Mr Dutta needed to engage in an IT infrastructure support group for a quote and then seek funding to have the software back-up capability re-instated on the TAMS’ server. Mr Zivcic deposes that he gave Mr Dutta some generic instructions to go to the Infrastructure group (previously known as Enterprise Services) as Mr Dutta was not aware of the process. He says that Mr Dutta was given the same direction as other members of the team and they were able to engage the Infrastructure group to get similar work done. He advised Mr Dutta that if he was unclear how to find this group, he should speak to other members of the team. Mr Zivcic also deposes that Mr Dutta had attended an applications management forum where a presenter was discussing hardware failure and management, which has nothing to do with getting backups configured for a system, and challenged the presenter about backups.

140    Mr Zivcic recorded the following in the Manager Assessment Form:

CRITERIA #4

Innovation Management and Business Acumen

•    Supports sound business decisions even when others disagree

•    Is willing to challenge established processes/procedures, making positive suggestions for improvement

•    Actively listens to and understands alternative points of view.

Assessment against selection criteria

Prit struggles to meet expectations in supporting sound business decisions when others disagree. I have observed Prit get unproductively argumentative and extremely vocal when others disagree with his perspective as experienced in the meeting with the IBM SOM (on the 11/05/17) on trying to understand what happened in the processing of a PBI following a failed Solaris patching change,

Prit is not meeting expectations when challenging established processes or procedures. I have observed Prit to be very willing to challenge established processes and procedures when there is ambiguity about the expected steps to be completed or if there is repetition effort. I have not observed Prit making any positive suggestions for improvement. I have received verbatem (sic) email’s from Prit informing me that I must clearly document and provide the steps necessary for Prit to complete the procedure being undertaken reinstate backups for TAMS and the request for the restoration of a hardware fault in CADLINK to be performed at a time suitable to the business and customers.

Prit is not meeting expectations in Actively listening to and understanding alternative points of view. In a meeting which was convened to discuss Prit’s concerns and feedback on processes and procedures that were impeding him from performing his role, Prit had difficulty listening to the perspective of the meeting participants and was focused on re-inforcing (sic) his points of view.

Additional Comments

Subcriteria 1

Agreed with manager’s assessment.

Subcriteria 2

Disagreed with manager’s assessment.

Prit did not want to continue with the assessment from here and did not provide artefacts to support his disagreement.

Subcriteria 3

Not Discussed during assessment

141    Mr Zivcic states that Mr Dutta rated poorly against Criterion 5, “Organisational and Team Effectiveness”, as he insisted on escalating what he termed process failures. In a meeting between Mr Zivcic, Mr Gessey and Mr Dutta, he insisted on escalating issues with a process (to get a data back-up capability operational for the TAMS’ server). Mr Gessey and Mr Zivcic advised Mr Dutta to continue with the process and take notes and conduct a post-implementation review when the activity was complete so that the gaps could be raised and addressed. He says that Mr Dutta would not accept the advice, became agitated and made accusations that he and Mr Gessey were not doing their jobs.

142    Mr Zivcic recorded:

CRITERIA #5

Organisational and Team Effectiveness

•    Contributes to team success

•    Assesses the implications on cost, bottom line and customer response (both internal and external) before making decisions.

•    Faces up to challenges and takes the lead

Assessment against selection criteria

I have observed Prit meeting expectations in contributing to team success by supporting the team as backup application manager when required, by providing the volumetric data to the OSS forum and by coordinating the ARP testing activity tracker for the NITS team.

I have observed Prit struggle to meet expectations on implications on cost and bottom line when he gets distracted at escalating process issues resulting in delays and consuming the resources of the respective people in the escalation path.

I have observed Prit meet expectations when agreeing to take on the challenge of performing the Capacity Management audit for the OSS GM. Prit interviewed GMs from the business and IT delivery to get a perspective on how capacity Is managed across the IT Operations application suite.

Additional Comments

Not Discussed during assessment

143    Mr Zivcic states that overall he had a number of concerns about Mr Dutta’s performance, having regard to the criteria that formed part of the assessment process, and states that these concerns were relevant to a number of criteria in the Manager Assessment Form. I will describe these concerns later in these reasons at [235].

144    Mr Zivcic says he assessed Mr Dutta against each of the criteria in the Manager Assessment Form and calculated an average rating. He calculated Mr Dutta’s overall rating at two out of five, meaning that Mr Dutta “Mostly meets all role requirements”. He signed the Manager Assessment Form on 20 July 2017 and filed and scanned it to Mr Gessey and Human Resources.

145    Mr Zivcic states that once the assessment process was completed for all employees, he completed a “Group Redundancy—Selection Process Decision Form”. The form listed the employees by rank according to the rating they had received during the assessment process and Mr Dutta received the lowest rating. Mr Zivcic states that, even if only the assessments Mr Dutta agreed were accurate had been used, he would still have been assessed less favourably than the next lowest rated employee. Mr Zivcic signed the Selection Process Decision Form on 21 July 2017 recommending Mr Dutta for redundancy.

146    Mr Zivcic states that he was not involved in any attempt to redeploy Mr Dutta within Telstra, other than enrolling him in the redeployment program and answering a couple of phone calls from the Redeployment and Career Transition Team.

147    On 25 July 2017, Mr Zivcic told Mr Dutta that he had been selected for redundancy based on the assessment process. On the same day, he sent an email to Mr Dutta attaching a letter of Notification of Selection for Redundancy, an Employee Support Booklet and the Manager Assessment Form. There was then an exchange of emails as follows, in which Mr Dutta wrote:

Please note that comments are added now into the manager assessment sheet which I am seeing first time. I reject those comments, since in reality yourself and Bruce Gessey has failed to perform managerial duties. Both of you are part of Bullish behaviour, which has personal ownership to own actions. Internally in Telstra, it can also be challenged outside Telstra.

There is no process ambiguity as you mention, in reality no established process exists for Backup request/PBI escalation/vendor approvals to support my customer. You even asked me to request vendor to work on risk at no cost outside IBM contract. Please provide me any evidence if you have for these established work flows you have mentioned has ambiguity Manager has ownership to provide correct direction or process to staff when he/she request, in your case you gave me wrong information when I seek help. This was done intentionally when yourself and Bruce knew what is the correct process I was kept in wait for long time, when the issue could have been resolved sooner. I don’t go to management meeting where new process gets defined after organisation changes. I have limited view to groups changing around. Yourself and Bruce have broader access to be across organisation changes impacting processes. Your remarks are not based on facts.

It is completely wrong that I stopped work even you put me in wrong direction, there was no distraction as emails can prove it. I continue to work and only in parallel raised my concerns to you and Bruce.

I will apply for other roles in Telstra, but don’t feel comfortable with yours and Bruce’s bullish management style. 2 years is long time for me to absorb harassment quietly and this opportunity was well used by both you to take revenge. You should have given honest feedback irrespective of redundancy outcome. But that didn’t happen, so I will be appealing your behaviour.

For placement I will not get honest support from your end, so will request outside help.

148    Mr Zivcic replied:

I believe I have represented an honest and fair appraisal as well capturing the events which took place and your acceptance or disagreement of the comments which we got to discuss.

As per the process I am enrolling you in the career transition process.

…

149    Mr Zivcic is aware that Mr Dutta lodged an appeal against the decision to make his position redundant. Mr Zivcic was interviewed by Mr Ford and told him that he treated everyone the same and had done nothing special in relation to Mr Dutta.

150    Mr Zivcic deposes that the only matters he considered in the assessment process were the work performance of Mr Dutta and how that compared to the criteria in the Manager Assessment Form.

151    Under cross-examination, Mr Zivcic agreed that he worked under Mr Gessey and that Mr Gessey had control over his performance rating, which could affect pay rises and promotions. He denied that he had any direct or indirect communication with Mr Gessey to achieve Mr Dutta’s redundancy. He denied that he falsified the Manager Assessment Form.

152    Mr Zivcic confirmed that he had directed Mr Dutta to the Enterprise Services Team to find the back-up team for the TAMS’ server. He accepted that the name of the group may have changed by then and was not the right group. He maintained that he had also suggested that Mr Dutta talk to other members of the team who had engaged with that group. He denied that he was aware that the appropriate process was the CRISP process at that time. He agreed that at the escalation meeting Mr Gessey had said that employees were expected to find the process on their own.

153    Mr Zivcic agreed that Telstra staff members are not allowed to ask people to work for free, but denied that he had asked Mr Dutta to ask IBM to work for free. He maintained that the correct process was to request a general manager endorsement, which should then be provided to IBM with a request that the work be done without further cost.

Evidence of Karen June Pascoe

154    Ms Pascoe’s position is described as Senior Human Resources Business Partner with Telstra. Her role involves dealing with human resources with the OSS Team.

155    Ms Pascoe deposes that she had some involvement in an issue in September 2016, when a manager had raised issues with the OSS Team about time off in lieu and other compensation for working additional hours. Her involvement was limited to providing some policy feedback. She states that from time to time managers misinterpret Telstra’s human resources policy and it is part of her role to provide ongoing coaching to managers.

156    In August 2017, Ms Pascoe became aware that Mr Dutta had posted a comment on Yammer addressed to the CEO of Telstra, which stated:

Hi Andy,

I am not sure why we are creating Chaos in Telstra by doing this B…S… again and again. Last time I took note of your initiative and suggested few things to my Manager, as a result got fired from Telstra. Our Front End staff has to stay here for years to come, work with same GM and Directors, do what is getting told to do. You will be leaving in coming months and everyone will be on own. In case of major outage like the one in Feb 2016 or Angela McCarthy’s case, as usual techie/staff need to take blame. I guess you understand my point.

157    Ms Pascoe replied to Mr Dutta’s post stating that she would call Mr Dutta to discuss. When she called him, he stated that he did not want to talk to her as he was not at the appropriate level. He said that it was no use to talk to anyone and he would like to talk with the CEO or an executive. He said that HR and its processes were biased, that every manager and executive at Telstra were all together, and he would discuss it at the Commission in a few weeks.

158    Ms Pascoe discusses “Project Rosie” and states that she provided advice and assistance to managers when selecting the five criteria to be used in the Group Selection Process. Ms Pascoe also reviewed each of their Manager Assessment Forms to confirm that they were in line with the redundancy and group selection policy and fair and equitable. She states that, as it turned out, she did not have to challenge any of the Manager Assessment Forms. Her review was undertaken after Mr Gessey had completed his review.

159    In Ms Pascoe’s opinion, the Manager Assessment Forms were balanced and considered only the five criteria. It was her view that the employees had received fair ratings and she did not identify any bias or unbalanced views presented by the managers. She considered that the Manager Assessment Forms reflected that Mr Dutta was overall a good employee, although there were some areas for development.

160    Ms Pascoe was not involved in attempting to redeploy Mr Dutta during the redundancy process. Telstra has a team that assists employees during the “placement period” which is four weeks after the decision is made that the employee’s position is redundant.

161    Ms Pascoe states that she is informed that Mr Dutta applied for two roles during the placement period but both were an “indirect match” meaning he was not suitable for those roles. She states that if Mr Dutta had been at least a 75% match, he would have been automatically redeployed to one of those roles, but as a result of the “indirect match”, both applications were unsuccessful.

162    Ms Pascoe states that her involvement in the redundancy process solely considered the work performance of Mr Dutta and how that compared to the five key criteria in the Manager Assessment Form.

Evidence of Santhosh Bajanemane

163    Mr Bajanemane is employed as an IT Applications Manager with Telstra. His duties include managing the IT Operations Department.

164    Mr Bajanemane was asked by Mr Gessey to be part of the management team which was to conduct assessment reviews of the employees who were at risk of redundancy. Mr Bajanemane only completed Manager Assessment Forms for those employees who reported directly to him, and did not do so for Mr Dutta. It was Mr Zivcic who completed the Manager Assessment Forms for Mr Dutta.

165    Mr Bajanemane says it was not his role to decide who would ultimately be selected for redundancy, rather he was to take part in an interview with Mr Dutta along with Mr Zivcic as his direct manager. However, in his oral evidence, Mr Bajanemane clarified that he did have an input into giving Mr Dutta a score. He said that at the end of each interview, he and Mr Zivcic would validate their individual assessments and together come up with an appropriate score for each criteria.

166    On 19 July 2017, Mr Bajanemane participated in an interview with Mr Dutta and Mr Zivcic. He says that Mr Zivcic started with a formal explanation of the process and then they moved through the selection criteria.

167    Mr Dutta raised concerns that he did not think that some of Mr Bajanemane’s questions were relevant. Mr Dutta raised a number of experiences from the past where he had some poor interactions with his managers. Mr Dutta eventually asked for the interview to be stopped as he did not want to participate anymore.

168    Mr Bajanemane considered that some of the examples given by Mr Dutta in the Self Assessment Form were repetitive and sometimes irrelevant. Mr Bajanemane says that he went through the scoring process and Mr Dutta did not score higher than any of the others in the team.

169    Mr Bajanemane stated that his involvement in the redundancy process consisted solely of considering the work performance of Mr Dutta and how that compared to the five criteria in the Manager Assessment Form. I understand his reference to considering work performance to refer to work performance as described in the Self Assessment Form.

170    In oral evidence, Mr Bajanemane accepted that Mr Gessey had an input into his performance ratings, wage rises and promotions. He said he was a neutral person in the assessment. He agreed that at the interview he agreed that Mr Dutta had a point when Mr Dutta said that when a manager was not providing the processes, an individual cannot perform against those processes. However, he thought that the discussion was not relevant to the score. He denied that Mr Gessey or Mr Zivcic had communicated that they wanted Mr Dutta to be made redundant. He denied that he had acted in order to show Mr Gessey his loyalty.

Evidence of Antony Ford

171    Mr Ford holds the position of Case Manager, HR Shared Services with Telstra. His role involves carrying out and coordinating redundancy appeals by employees of Telstra.

172    Mr Ford deposes that he received Mr Dutta’s request for a redundancy appeal on about 25 July 2017 and determined that the appeal was an eligible one. He contacted Mr Dutta to arrange a meeting to discuss his appeal and held the meeting on 31 July 2017.

173    Mr Ford advised Mr Zivcic and Mr Gessey of the appeal and forwarded them a copy of Mr Dutta’s redundancy appeal lodgement form because they were the relevant managers involved in the selection of Mr Dutta for redundancy.

174    Mr Ford discussed the appeal with Ms Pascoe and requested copies of the relevant documentation in relation to the group selection process.

175    Mr Ford reviewed the relevant documentation and provided Mr Dutta with the opportunity to explain the reasons behind his appeal. Mr Dutta forwarded further information to him. Mr Ford interviewed Mr Zivcic and Mr Gessey separately, and spoke to Mr Bajanemane .

176    Mr Dutta’s redundancy appeal form set out seven grounds. I do not propose to set out the grounds in full, but they may be summarised as follows:

(1)    Mr Dutta’s work performance was very consistent and highly praised by his customers and relevant stakeholders.

(2)    After two years of bullying and harassment by Mr Gessey due to an incident in December 2015, Mr Dutta lodged a complaint in August 2016.

(3)    Mr Dutta had been targeted and isolated by Mr Zivcic and Mr Gessey. They intentionally gave him the wrong process details on at least three occasions.

(4)    A manager on Mr Gessey’s behalf announced in September 2016 that the employees were to work overtime without compensation. Mr Dutta objected to this and reported this to HR. Mr Gessey retracted his policy but maintained his anger against Mr Dutta.

(5)    Mr Dutta’s managers expected him to provide reasons for working from home and a statement as to what benefit Telstra would get from this. Mr Dutta objected to this policy because he suffers from an arthritic condition, is receiving treatment for work stress and his daughter has cerebral palsy which requires regular doctor’s appointments.

(6)    Mr Zivcic’ assessment for the selection process was biased and prompted by hatred.

(7)    Mr Dutta’s managers have never supported him and every request was declined by unjustified reasoning.

177    Mr Ford deposes that he found nothing in Mr Dutta’s appeal to indicate that there was any unfairness in the process and was satisfied that there was no merit in the grounds of appeal. Mr Ford upheld the decision to select Mr Dutta for redundancy based on his rankings against colleagues. He was satisfied that only the five merit based criteria described in the employee’s Self Assessment Form and the Managers Assessment Form were used to assess Mr Dutta and other members of his team for redundancy, and had no concerns about Mr Dutta’s selection for redundancy.

178    Mr Ford advised Mr Dutta of the outcome of the appeal on 11 August 2017. When he spoke to Mr Dutta, Mr Dutta asked him whether he had been pressured into making the decision and whether he was colluding with the managers. Mr Ford denied this.

179    Mr Ford deposes that he had never heard of Mr Dutta, Mr Zivcic or Mr Gessey before the appeal and he has no motive to assist these managers.

180    Mr Ford states that he is aware that Mr Dutta made a complaint about bullying and harassment during the redundancy process. Telstra investigated these complaints and decided that they were not substantiated. Mr Ford was mindful to ensure that the bullying allegations were resolved before he finalised the appeal because if it were found that Mr Dutta had been bullied, he may have looked at the appeal in a different way.

Assessment of the evidence

181    It may be seen from the summaries of the evidence I have set out above that Mr Gessey, Mr Zivcic, Ms Pascoe and Mr Bajanemane each assert that the only matters they had regard to in respect of the ranking and selection of Mr Dutta for redundancy were his work performance and the five merit based criteria. Mr Ford’s evidence is to the effect that he did not have regard to any extraneous matters in considering the appeal against the redundancy decision.

182    Mr Dutta claims that the evidence of each of these witnesses is dishonest. He claims that Mr Gessey engaged in a campaign to “punish innocent staff” stemming from the event in December 2014 where he went directly to Mr Gessey’s manager and from his complaint against Mr Gessey in July 2016. He claims that Mr Gessey embarked on a campaign of bullying against him and that Mr Gessey conscripted Mr Zivcic and Mr Bajanemane to produce a deliberately false Manager Assessment Report which dishonestly gave him a lower score than he deserved in order to make him redundant. He asserts that Mr Gessey was able to control Mr Zivcic and Mr Bajanemane because he had influence over their performance ratings, pay increases and promotions. He submits that Telstra, apparently through Mr Gessey, Mr Zivcic and Ms Pascoe, deliberately conspired to block his redeployment within Telstra after they had decided that he would be selected for redundancy.

183    I do not think that it is useful to repeat each of the ways in which Mr Dutta submits that Telstra’s witnesses “fabricated” evidence, made “false” claims, failed to “undertake an honest assessment of the applicant”, “produced a biased report”, “lied on oath”, acted to “punish the applicant”, “demonstrated coercive actions” and committed “perjury”. It is enough to say that I reject Mr Dutta’s claims and, for the reasons that follow, I accept the evidence of Telstra’s witnesses on the controversial issues.

184    Mr Dutta had the opportunity to cross-examine each of Telstra’s witnesses. He did so at length. I do not consider that the substance of the evidence of any of these witnesses was disturbed by the cross-examinations. To the contrary, having observed the witnesses under cross-examination, I was left with no doubt that their evidence was honest and generally accurate. While there were some differences between the witnesses’ accounts of particular events and incidents, that is only to be expected given the passage of time and different perspectives. Those differences do not cause me to doubt the veracity of the witnesses.

185    Much of Mr Dutta’s evidence consisted of surmise, conjecture and speculation that Mr Gessey enlisted Mr Zivcic (and even Mr Zivcic’ predecessors) to undermine Mr Dutta with the ultimate aim of having him removed from Telstra. Mr Dutta contends that Mr Gessey saw his opportunity when the round of redundancies were announced, and then drew Ms Pascoe, Mr Bajanemane and Mr Ford into his plan.

186    My observation of Mr Dutta’s written and oral evidence is that he has some particular and distinctive personality traits which, I consider, have affected his perception of the events and incidents he complains of at Telstra.

187    First, he seems convinced that he must be right and seems unwilling to consider that any different point of view may be available. Second, he is a stickler for rules and processes and seems quite disturbed by any suggestion that he might be asked to act outside what he perceives to be the rules or the appropriate process. Third, he has a very literal understanding of what he perceives to be the rules, processes and instructions. Fourth, he requires clear, precise and detailed instructions and is disturbed by the idea that he might have to improvise, investigate or work out for himself the processes that should be used. Fifth, and associated with the first, is that where a manager corrects him, disagrees with him or instructs him to do something that he disagrees with, Mr Dutta tends to consider that the manager’s action must be done dishonestly and with an intention to injure him.

188    Mr Dutta’s allegations of dishonesty, fraud and collusion are very serious and must undoubtedly be distressing to those who are the subject of the allegations. In case I have not already made it clear, I wish to emphasise that I reject those allegations. I consider that each of Mr Gessey, Mr Zivcic, Mr Bajanemane, Ms Pascoe and Mr Ford were simply doing their jobs and were not bullying, targeting, victimising, or conspiring against Mr Dutta. Perhaps all that might be said to excuse Mr Dutta’s conduct in making such allegations is that he seems to be suffering from a psychiatric illness, and that may be influencing his perceptions and his conduct.

189    For present purposes, I reiterate my finding that each of Telstra’s witnesses gave their evidence honestly and generally accurately. Where the evidence of those witnesses conflicts with that of Mr Dutta, I prefer their evidence.

Consideration

The allegations of contravention of s 340(1) of the Act

190    Mr Dutta’s case that Telstra contravened s 340(1) of the Act requires him to demonstrate, firstly, that Telstra took “adverse action” against him and, secondly, that he “exercised a workplace right”. If he is able to do so, it is presumed, under s 361(1) of the Act that the adverse action was taken because Mr Dutta exercised the workplace right. Telstra will then be required to prove that it took the adverse action for reasons that do not include that Mr Dutta exercised such workplace rights. Telstra must prove that any such exercise of workplace rights was not an “operative or immediate” or “substantial and operative” reason for the adverse action: see Board of the Bendigo Regional Institute of TAFE v Barclay (2012) 290 ALR 647 at [102]–[104], [127]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [19], [90]–[92].

Adverse Action

191    The “adverse action” that Mr Dutta alleges was taken by Telstra was:

(a)    he was selected for redundancy;

(b)    his redeployment to another position within Telstra was blocked;

(c)    his employment was terminated;

(d)    he was discriminated against in comparison to another employee;

(e)    he was bullied, harassed and isolated, causing injury to his mental state.

192    Section 342(1) of the Act provides that “adverse action” is taken by an employer against an employee if the employer:

(a)    dismisses the employee; or

(b)    injures the employee in his or her employment; or

(c)    alters the position of the employee to the employee’s prejudice; or

(d)    discriminates between the employee and other employees of the employer.

193    Telstra’s dismissal of Mr Dutta from his employment was plainly adverse action. The decision to select Mr Dutta for redundancy altered his position to his prejudice. The decision not to redeploy Mr Dutta to an alternative position within Telstra injured him in the course of his employment. There is no difficulty in finding that each of these actions was adverse action within s 342(1).

194    Mr Dutta makes a complaint that Telstra discriminated between him and another employee by telling him the wrong process, but telling the other employee the correct process. I do not accept that Telstra discriminated against him, as I will discuss in more detail later. Mr Dutta has not proved that Telstra took adverse action against him in this respect.

195    An issue might have arisen as to whether the bullying, harassment and isolation of Mr Dutta, if it occurred, was action that “injures the employee in his or her employment”. However, Telstra has not argued that such conduct would not amount to adverse action, preferring to focus on its contention that the conduct did not take place. As I will discuss in detail later, I find that Mr Dutta was not bullied, harassed, isolated or targeted as he alleges. Therefore, he has not proved that Telstra took adverse action against him in that respect.

Exercise of workplace rights

196    Section 341(1) of the Act defines the expression “workplace right”. The exercise of a workplace right includes an employee making a complaint in relation to his or her employment.

197    I accept that Mr Dutta was exercising a workplace right when he made complaints about Mr Gessey and Mr Zivcic. I also accept that he was exercising a workplace right when making a complaint on Yammer.

198    Further, to the extent that Mr Dutta requested flexible work practices, I accept that he was initiating a process under s 65 of the Act, which deals with requests for flexible working arrangements. He was, accordingly, exercising a workplace right.

Whether Telstra took adverse action against Mr Dutta because he exercised workplace rights

199    I have found that Telstra took adverse action against Mr Dutta by selecting him for redundancy, by deciding not to redeploy him to another position and by dismissing him from his employment. I have found that Mr Dutta exercised workplace rights by making complaints about Mr Gessey and Mr Zivcic and by requesting flexible working arrangements. The issue that remains to be decided is whether Telstra has overcome the presumption that it took that adverse action because Mr Dutta exercised such workplace rights.

200    Pursuant to s 793(1) of the Act, conduct engaged in on behalf of Telstra by its employees within the scope of their actual or apparent authority is taken, for the purposes of the Act, to have been engaged in by Telstra. It is apparent that each of Mr Gessey, Mr Zivcic, Ms Pascoe, Mr Bajanemane and Mr Ford are, and were at the relevant times, employees of Telstra. Telstra has not disputed that their conduct was within the scope of their actual or apparent authority.

201    Mr Dutta has described twelve matters or events (set out at [8]) which are said to provide evidence of a pattern of bullying conduct demonstrating, or at least allow an inference to be drawn, that the adverse action was taken because he exercised workplace rights. I will consider each of those matters or events in turn. Before doing so, I reiterate that I consider the evidence of Telstra’s witnesses to be honest and accurate and I prefer that evidence where it conflicts with Mr Dutta’s evidence.

(a)    Whether Mr Dutta was bullied, harassed and isolated

202    Mr Dutta alleges that his problems at Telstra started with the incident on 15 December 2014 when he went directly to Mr Gessey’s manager, Mr Corrigan, to obtain approval for funding to address a major outage at Telstra’s GOC. He says that he was forced to do this because Mr Gessey had not provided a response within two days and he was under considerable pressure from the GOC manager. Mr Dutta alleges that the response of Mr Gessey’s manager was a source of major embarrassment for Mr Gessey and that he thereafter targeted and bullied Mr Dutta.

203    Mr Gessey’s version of events is that Mr Dutta did not follow the correct process, which would have been to speak to Mr Gessey first, rather than going directly to Mr Corrigan. Mr Gessey says he gave Mr Dutta a “minor wrist slap” by telling him that it was not the right process and directing him not to go to his “three-up manager” without coming through Mr Gessey first. Mr Gessey says that he considered the issue to be a minor one.

204    I do not accept that Mr Gessey was “very upset” with Mr Dutta about the incident. I accept that Mr Gessey was unhappy about the incident, and may have felt somewhat embarrassed about being bypassed, but I do not think he considered it to be anything more than a minor incident. I do not think that it provided motivation for any campaign of bullying and harassment against Mr Dutta.

205    Mr Dutta asserts that he was given a low performance assessment for 2014/2015 principally because of the December 2014 issue. The 2014/2015 performance assessment is not in evidence. Mr Dutta has not said which manager conducted the performance assessment, but it seems likely to have been Mr Bicknell, who was then the Service Operations Manager to whom Mr Dutta reported. If it was Mr Bicknell who prepared the report, then he must have got the information about the December 2014 event from Mr Gessey.

206    I accept Mr Gessey’s evidence that he considered Mr Dutta to have failed to follow the correct process. Whether Mr Gessey was right or wrong is not the point. The point is that he had an honest belief which went to his assessment of Mr Dutta’s performance. I do not accept that taking into account the December 2014 event in Mr Dutta’s performance rating for 2014/2015 was an incident of bullying and harassment by Mr Gessey.

207    Mr Dutta complains that his performance assessment for 2015/2016 was also affected by the December 2014 incident. That assessment is not in evidence. Mr Dutta asserts that as it had occurred in the previous financial year, it ought not to have been used. However, it is difficult to judge whether it was used and the context in which it was used. Even if the incident should not have been used for the 2015/2016 performance report, it seems likely that there was simply an error, since I do not accept that Mr Gessey targeted Mr Dutta. I do not accept that Mr Gessey engaged in bullying or harassment of Mr Dutta through his performance rating.

208    Mr Dutta states that after the incident in December 2014, Mr Gessey remained upset with him for the next two-and-a-half years. He says that Mr Gessey deliberately kept his requests pending for a long time and put every effort into rating him low.

209    Mr Dutta complains that Mr Gessey deliberately isolated him by refusing to approve a replacement vendor to support two of the critical applications he was managing for about six months. This led to Mr Dutta making a complaint about both Mr Gessey and Mr Bicknell in July 2016. Mr Gessey states that he dealt with the complaint by developing a better approval process so that there were clear expectations. Mr Gessey plainly regarded the complaint as being more about Mr Bicknell than him. There is nothing to support Mr Dutta’s claim that the six month delay in approving the vendor was an example of Mr Gessey deliberately targeting him. It seems to have been nothing more than a breakdown in communication and process within Telstra. It was dealt with by Mr Gessey approving the vendor and putting in a better process.

210    Mr Dutta alleges that making the complaint about Mr Gessey led to Mr Gessey later arranging for a false assessment to be given of Mr Dutta in the redundancy process. I will consider that allegation later.

211    I find that Mr Gessey did not engage in a campaign of bullying, harassing and isolating Mr Dutta following the December 2014 incident or the complaint made in July 2016.

(b)    Whether a manager sent confidential performance ratings with adverse comments about Mr Dutta to other employees in order to bully or target him

212    Mr Dutta complains about the incident on 30 June 2016 when Mr Bicknell, the then Service Operations Manager, sent an email to all Applications Managers and other staff attaching the 2015/16 performance assessment results. Mr Dutta alleges that a second email attaching the reports was sent two days later, but such an email is not in evidence and I do not accept any relevant second email was sent. Contrary to the suggestion made in Mr Dutta’s affidavit, the email was not only about Mr Dutta’s performance rating, but set out the performance ratings of all the Applications Managers. I accept that Mr Bicknell sent the email to a broader group of recipients in error. Mr Bicknell apologised for his error. There was no targeting of Mr Dutta, whether at the behest of Mr Gessey or otherwise, in order to malign him or embarrass him.

(C)    Whether Mr Dutta was targeted for making complaints in an employee internet forum

213    Mr Dutta complains of Telstra’s conduct concerning a post he placed on Yammer on 17 August 2017. His complaint seems to be about Ms Pascoe. Mr Dutta’s post suggested that he was “fired” from Telstra as a result of making suggestions for improvements to his manager.

214    Ms Pascoe’s evidence was that she attempted to speak to Mr Dutta about the post, but he said he did not want to talk to her, as she was not at an appropriate level. She removed the post from Yammer.

215    I do not accept that Ms Pascoe’s conduct demonstrates any bullying or targeting of Mr Dutta. Neither did the post have any effect upon his redundancy. He had already been notified on 25 July 2017 that a decision had been made to select him for redundancy.

(d)    Whether Mr Dutta was given an undeservedly low rating in his yearly performance assessment in July 2017

216    There is little evidence concerning Mr Dutta’s complaint about his performance assessment for 2016/17. Mr Zivcic’ evidence is that Mr Dutta received a rating of three out of five. The possible ratings range from one to five, with three being described as “Meets expectations”. Mr Dutta has not provided any adequate explanation of why he deserved to be rated 4 or 5. Two other employees who reported to Mr Zivcic received lower performance ratings than Mr Dutta. This evidence does not suggest that Mr Dutta was given a low performance rating or one that was undeserved.

217    I do not accept that the rating given by Mr Zivcic for Mr Dutta for his 2016/2017 performance assessment was an instance of bullying or targeting Mr Dutta.

(E)    Whether Mr Dutta was told the wrong process and given the wrong direction on two occasions

218    Mr Dutta alleges that Mr Zivcic told him the wrong process on two occasions for requesting back-up for particular servers. The issue is not easy to understand, from the evidence, but it seems to be that Mr Zivcic told him to approach the Enterprise Services Group when, in fact, the correct process was to lodge an application using a web-based application within Telstra called CRISP. This occurred in May 2017. Mr Dutta says that later he found out that his managers knew about the correct process and had shared it with another staff member, but discriminated against Mr Dutta by not giving him the same information. He says that when he escalated the issue in June 2017, Mr Gessey stated that, “We knew the process but in Telstra we expect staff to discover process on their own”.

219    I accept Mr Zivcic’ evidence that he referred Mr Dutta to the Enterprise Services Group because he thought that was the appropriate group to approach, although he was not entirely sure of the correct name of the group. He also suggested that Mr Dutta talk to other employees to find out the appropriate group to approach. I accept that Mr Zivcic was unaware that the correct process was the CRISP process at that time. I do not accept that Mr Zivcic told another employee that the correct process was the CRISP process. I accept Mr Gessey’s evidence that the other employee had found out the correct process himself.

(f)    Whether Mr Dutta was denied flexible working arrangements

220    Mr Dutta asserts that he was denied the flexible working arrangements he required to attend to his medical needs and to obtain treatment for his own depressive condition. He has not, however, given evidence that he made any request for flexible working arrangements that was denied.

221    Mr Zivcic’ evidence is that every single request made by Mr Dutta to him to work from home was approved. His evidence is that he is supportive of employees working from home. Further, he approved every request made by Mr Dutta to access personal/carer’s leave. Mr Dutta complains that he was asked questions before his requests were approved, but I cannot see anything improper about that.

222    I accept Mr Zivcic’ evidence. I do not accept that Mr Dutta was denied flexible working arrangements.

(g)    Whether failing to support Mr Dutta’s request to work on a part-time basis was bullying or targeting him

223    Mr Dutta complains that his request to work temporarily on a part-time basis was refused and this provides evidence of the bullying conduct and targeting on the part of Mr Gessey. The evidence of Mr Gessey and Mr Zivcic is that Mr Dutta made an informal request for part-time work to be considered, but that no formal request was ever made. Mr Gessey told Mr Zivcic, who told Mr Dutta, that he could not support any application for part-time work because of Telstra’s business needs. There is some difference between Mr Dutta and Mr Zivcic about whether Mr Zivcic communicated this in a conversation as well as a text message. I do not think it matters.

224    I accept the evidence of Mr Gessey and Mr Zivcic. I find that the refusal to support Mr Dutta’s request to work part-time was not an instance of bullying or targeting him.

(h)    Whether Mr Dutta was threatened by Mr Zivcic for raising a breach of Telstra policy

225    Mr Dutta complains that in July 2017, Mr Zivcic instructed him to ask IBM to do some work without charge, when that was contrary to Telstra’s policy. Mr Dutta refused to do so. Mr Zivcic then sent Mr Dutta an email saying:

Please proceed, if you are not capable of operating within the same level of ambiguity as your peers that. That is fine. I will find someone to help support you through the process.

226    Mr Dutta says that this was a threat to have another employee do the task instead of Mr Dutta.

227    Mr Zivcic states that his understanding of the contract between Telstra and IBM provided for a number of additional labour hours outside business hours without any additional costs to Telstra. It was in this context that he asked Mr Dutta to seek clarification from IBM.

228    Mr Dutta seems to allege that he was being asked to act contrary to Telstra’s policies by Mr Zivcic. I do not accept that this was so. Mr Zivcic has given a plausible explanation of what he was trying to get Mr Dutta to achieve.

229    Mr Dutta alleges that Mr Zivcic’ email was a threat to him to replace him with another employee if he did not carry out Mr Zivcic’ instruction. The word “threat” is far too strong to accurately represent what was being said. Mr Dutta had sent a belligerent and rude email to Mr Zivcic essentially accusing him of managing work at Telstra as if he were managing a “fish n’chips shop”, and complaining that there was no clear process. Mr Zivcic perceived that Mr Dutta had difficulty in dealing with ambiguity that other employees did not have. That perception seems to have been justified. It was in that context that he said that if Mr Dutta could not cope, he would find another employee to assist him. It was effectively an admonition to stop wasting time and to get on with the job. It was not a threat to replace him.

230    I cannot see that any “threat” was made to Mr Dutta. Neither was it an instance of bullying or targeting of Mr Dutta.

(I)    Whether Mr Gessey sided with Mr Zivcic when Mr Dutta complained about Mr Zivcic’ conduct

231    Mr Dutta complained to Mr Gessey in June 2017 about Mr Zivcic’ “harassment” and Mr Gessey supported Mr Zivcic’ behaviour. The complaint concerned the allegedly misleading information about the CRISP process.

232    I do not accept that when Mr Dutta complained about Mr Zivcic, Mr Gessey said that they knew the process. I accept Mr Gessey’s evidence that he did not know it. I accept that Mr Gessey did say that Telstra expected staff to find out the correct processes by themselves. There was nothing that was bullying or harassing about that comment. It simply reflected an expectation that Mr Dutta should exercise some initiative. This was not an instance of bullying or harassment.

(J)    Whether the alleged bullying, harassment and targeting of Mr Dutta culminated in Mr Gessey, together with other managers, producing a falsified assessment report in order to get rid of Mr Dutta

233    Mr Dutta’s case is that Mr Gessey was determined to get rid of him from Telstra. Mr Dutta alleges that Mr Gessey recruited the other Telstra staff involved in the redundancy process, namely Mr Zivcic, Mr Bajanemane and Ms Pascoe, to deliberately produce a false Manager Assessment Form which gave him a low rating and resulted in his redundancy. Although he has not specifically said so, Mr Dutta’s case must also be that Mr Gessey conspired with Mr Ford to reject his appeal against the redundancy decision. Mr Gessey’s antipathy is said to have stemmed from the incident in December 2014 when Mr Dutta went directly to Mr Gessey’s manager. It is said to have been inflamed by Mr Dutta making a complaint about Mr Gessey in July 2016.

234    It will be evident from what I have already said that I do not accept Mr Dutta’s allegations. I consider that Mr Zivcic acted independently and impartially when completing the Manager Assessment Form for Mr Dutta. Mr Zivcic has given a plausible explanation of how he reached the ratings for each criterion in the Manager Assessment Form. I accept that Mr Dutta agreed with the assessments for several of these criteria during the interview.

235    Mr Zivcic deposes that:

Overall, I had a number of concerns about the Applicant’s performance, having regard to the criteria which formed part of the Assessment Process. In summary, these concerns were:

(a)    the Applicant struggled with ambiguity in his role. That is, when presented with a problem, he struggled to independently find a solution;

(b)    the Applicant lacked initiative to find solutions, or identify areas to be improved within his work;

(c)    the Applicant struggled to carry out work in the absence of clear and documented process. The Applicant would often find problems, but not propose or identify solutions;

(d)    the Applicant did not handle professional disagreements well. When challenged on his position, the Applicant refused to listen or accept the position of others. The Applicant often became argumentative with those who did not share his view;

(e)    the Applicant did not identify process improvements;

(f)    the Applicant did not actively listen to and understand the point of view of others; and

(g)    the Applicant did not manage his accountabilities well, rather he would become focused on process. That is, the Applicant was not focused on completing the identified problems, but rather ensuring documented processes were in place.

236    Mr Zivcic states that these matters were relevant to a number of criteria in the Manager Assessment Form. In my view, that each of these concerns was justified is apparent from the evidence, including Mr Dutta’s own written and oral evidence.

237    I accept Mr Zivcic’ evidence that the only matters he considered when completing the Manager Assessment Form were Mr Dutta’s work performance and the five criteria that had been developed.

238    Mr Gessey’s main involvement in the redundancy process was to participate in the selection of the five criteria, brief the employees potentially affected and review the Manager Assessment Forms completed by Mr Zivcic. There is nothing to suggest that the criteria were chosen in order to target Mr Dutta. I find that they were not chosen for that reason.

239    Mr Gessey deposes that he did provide some input into the Manager Assessment Form because Mr Dutta had done some work directly for him. Mr Gessey deposes that his input was positive, in that Mr Dutta had performed well in some criteria. I accept that evidence.

240    I find that Mr Gessey completed his review of the Manager Assessment Form in good faith, taking into account only the five selection criteria. Mr Gessey’s evidence is that overall he was disappointed to lose Mr Dutta and that he had met expectations when working in his team. I accept that evidence.

241    I find that Mr Gessey did not conduct any campaign of bullying or harassment against Mr Dutta and did not target him through the redundancy process. I find that Mr Gessey did not recruit Mr Zivcic or anyone else to produce a false Manager Assessment Form or otherwise conspire to make Mr Dutta redundant.

242    Mr Bajanemane’s role was to assist in the interview with Mr Dutta to discuss his Self Assessment Form and to provide some input into the scores of Mr Dutta. I accept his evidence that he only considered the five criteria in the Manager Assessment Form, as well as the Self Assessment Form.

243    Ms Pascoe’s principal role was to also review the Manager Assessment Forms completed by Mr Zivcic. She found no reason to criticise the assessment. I also accept that she only considered the five criteria.

244    I reject Mr Dutta’s assertion that there was a conspiracy orchestrated by Mr Gessey in which he recruited Mr Zivcic, Mr Bajanemane and Ms Pascoe to create a false assessment so that he would be made redundant.

245    Mr Ford’s role was to conduct the appeal against the redundancy decision. I find that he conducted the appeal in good faith and considered only whether the correct process had been followed and the five criteria that had been developed. I reject the proposition that he was part of any conspiracy to have Mr Dutta’s employment terminated.

(K)    Whether Mr Dutta was blocked from redeployment into another position at Telstra

246    After the decision had been made that Mr Dutta’s position would be made redundant, there was a “Placement Period” for four weeks, during which options for redeployment were considered.

247    Mr Dutta applied for two positions during that period. One was for a Service Management Design Lead. He was assessed as unsuitable for the job because there was a mandatory requirement for candidates to have a “current Baseline clearance”. Mr Dutta did not have such a clearance. The second position was as a Senior Security Architect. Mr Dutta was assessed as being unsuitable for the position because his skills and experience were not those required for that position. I accept that he was not qualified for those positions.

248    There is no evidence that Mr Gessey, Mr Zivcic, Ms Pascoe, Mr Bajanemane or Mr Ford had any involvement in the decision not to offer Mr Dutta those positions. I do not accept that any of them blocked his redeployment.

249    While Mr Dutta claimed that there were a number of other positions he could have been redeployed to, he did not apply for any other positions. Telstra cannot be criticised for failing to give Mr Dutta positions that he did not apply for. I am not satisfied, in any event, that he was suited to any other position then available within Telstra.

(l)    Whether Mr Dutta’s appeal was wrongly dismissed

250    I do not accept that Mr Dutta’s appeal was wrongly dismissed. Mr Ford acted in good faith in dismissing the appeal.

251    Mr Dutta made a suggestion that he could have been considered for a job swap with someone who wanted to be made redundant. However, I am not satisfied that any suitable person to swap with was identified.

Conclusion as to allegations of contravention of s 341(1) of the Act

252    I have found that neither Mr Gessey, nor Mr Zivcic, nor any other employee of Telstra bullied harassed, targeted or isolated Mr Dutta. I have found that Mr Gessey did not carry out any plan to have Mr Dutta made redundant and to have his employment terminated, nor did he recruit any other employee to assist him in such a plan.

253    I have found that Telstra took adverse action against Mr Dutta by selecting him for redundancy, by deciding not to redeploy him to another position and by dismissing him from his employment. I have found that Mr Dutta exercised workplace rights by making complaints about Mr Gessey and Mr Zivcic and by requesting flexible working arrangements.

254    I accept the evidence of each of the witnesses called by Telstra to the effect that they did not take adverse action, or contribute to, any adverse action taken, against Mr Dutta because he exercised workplace rights. I am satisfied that Telstra has overcome the presumption that it took the adverse action because Mr Dutta exercised workplace rights.

255    I reject Mr Dutta’s allegations that Telstra contravened s 341(1) of the Act.

Allegations of contravention of s 355 of the Act

256    In his written closing submissions provided after the hearing, Mr Dutta makes, for the first time, an allegation that Telstra contravened s 355 of the Act. The allegation is that Mr Zivcic threatened to reallocate to another employee the task of attempting to have IBM complete the work without charge.

257    It is too late for Mr Dutta to make the allegation that Telstra contravened s 355 of the Act. It should have been raised prior to the hearing, not afterwards.

258    In any event, I have rejected Mr Dutta’s allegation that any threat was made to him, and the allegation could not succeed for that reason alone.

Allegations of contravention of s 351 of the Act

259    In his closing written submissions, Mr Dutta alleges that Telstra contravened s 351 of the Act. It appears, from his emphasis of particular words in s 351, that he claims that adverse action was taken against him because of his race, family or carer’s responsibilities, religion, national extraction or social origin. However, the allegations are unparticularised.

260    Again, it is too late for Mr Dutta to raise this allegation. It should have been raised prior to the hearing.

261    In any event, there is absolutely nothing to suggest that Mr Dutta’s race, religion, national extraction or social origin had any influence on his redundancy and the termination of his employment or any other conduct by employees of Telstra.

262    The allegation of discrimination on the basis of family or carer’s responsibilities may relate to his allegation that he was denied flexible work arrangements and that he was refused part-time work. However, I have found that he was not denied flexible work arrangements. Further, he did not formally apply for part-time work, but was given an indication that any application would not be supported by Mr Gessey and Mr Zivcic because of Telstra’s business needs. There is nothing to suggest any discrimination against Mr Dutta on the basis of his carer’s or family responsibilities.

Allegation of unfair dismissal

263    Mr Dutta alleges that his redundancy was not a genuine redundancy. He asserts that there are other employees of Telstra who are now performing precisely the same work that he did.

264    Mr Dutta could have applied to the Fair Work Commission under s 394 of the Act for a remedy for unfair dismissal. Under s 385 of the Act, a person is unfairly dismissed if the Commission is satisfied that, relevantly, the dismissal was “harsh, unjust or unreasonable”.

265    However, ss 725, 728 and 729 of the Act required Mr Dutta to elect whether to proceed in the Court under the general protections provisions, or in the Fair Work Commission under the unfair dismissal provisions: see Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 at [136]. He made that election by filing the current proceeding in the Court and seeking a remedy for contravention of s 340(1) of the Act.

266    The Court may not entertain Mr Dutta’s claim for a remedy for unfair dismissal.

Summary

267    I find that Telstra did not contravene s 340(1) of the Act. Mr Dutta should not be permitted to prosecute his allegations of contravention of ss 351 and 355 of the Act, as those allegations have been made too late. In any event, those allegations could not succeed. I find that the Court lacks jurisdiction to entertain Mr Dutta’s claim for a remedy for unfair dismissal.

268    The application must be dismissed.

Associate:    

Dated:    13 December 2018