Former Indian consulate driver Hitender Kumar in Sydney wins unfair dismissal case

SYDNEY (Diya TV) – Australia’s Fair Work Commission ordered the Consulate of India on Tuesday to pay his former driver $10,620 in compensation for his unfair dismissal in March last year.

Hitender Kumar, who used to work for $12 per hour as the Consulate’s driver, was questioned by his employer after not using the consular e-tag on a private car while the usual consular car was being serviced. Kumar emailed Australia’s Roads and Maritime Service, which confirmed he was restricted from using the e-tag on a vehicle for which it wasn’t assigned.

When he approached his employer for reimbursement of tolls, he was disciplined for not using the e-tag on the private vehicle.

His claim of unfair dismissal came after Kumar served as a whistleblower of a case which alleged passports were issued to the consulate without proper police checks, that he was underpaid, and that he was expected to use the consular e-tag on an ordinary car. Many people don’t realise what unfair dismissal is so the fact that Kumar could claim this way was lucky for his case.

The acting consul-general tried and failed to have a public reporting of the case in the Fair Work Commission suppressed to ensure the “government of India’s reputation is not adversely affected.”

The commission also heard an account in which Kumar asked for written instructions before hanging a picture of Mahatma Gandhi in the consulate reception area. His refusal had been pitched to the commission as “pedantic defiance,” and done in retaliation in response to being reprimanded for seeking advice about the proper use of the consular e-tag.

Commissioner Ian Cambridge said in his final decision that Kumar’s behavior, as retaliatory or insubordinate as it could be observed, was not enough to justify his termination.

“Upon analysis, the dismissal of the applicant was not for valid reason related to his capacity or conduct,” Cambridge said.

Kumar said he was satisfied after the ruling.

“It was a good decision,” he said. “People should stand up for their rights when someone is doing hanky panky.

“Most people from overseas don’t know their rights and can be unfairly dismissed from their jobs. They should know there are regulatory authorities in Australia to look after their workplace rights.”

While Cambridge found that Kumar’s contacting of the High Commission could be observed as “impolite” to his employer, he also ruled that the conduct was not inappropriate.

“The applicant’s failure to follow unspecified office procedures was not misconduct which would provide valid reason for dismissal,” Cambridge said.

“Following a careful and balanced consideration of the totality of the evidence that was presented in connection with the apparent reasons for the dismissal of the applicant, those reasons, inadequately and erroneously stated, were also without proper foundation.

“In particular, upon careful analysis, there can be no finding made that the applicant deliberately acted in a manner likely to cause embarrassment to the employer when he communicated with the RMS in respect to the e-tag issue.”