Abulfazal Tawasoly v Alpha Flight Services Pty Ltd

[2017] FWC 813

[2017] FWC 813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Abulfazal Tawasoly
v
Alpha Flight Services Pty Ltd
(U2016/11281)

COMMISSIONER HAMPTON ADELAIDE, 7 MARCH 2017

Application for relief from unfair dismissal – applicant request for change in working hours – applicant unwilling to work contracted hours as rostered due to change in caring responsibilities – dismissal – valid reason conceded – whether dismissal harsh – request for flexible hours – whether appropriate for Commission to consider as part of unfair dismissal matter – all relevant circumstances to be taken into account – request in combination with other constraints on availability problematic given operational requirements and impact on business and other staff – dismissal not harsh, unjust or unreasonable.

1. Background and case outline

[1] Mr Abulfazal Tawasoly has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, Alpha Flight Services Pty Ltd (AFS).

[2] AFS is a wholly owned subsidiary of Dnata, which provides a variety of airline services globally from ground and cargo handling to inflight catering and travel services. Dnata’s catering services in Australia are delivered by AFS, which has production and distribution operations in various cities across Australia.

[3] Mr Tawasoly commenced his employment with AFS as a Storesperson at its Adelaide facility, on 22 October 2012 on a full-time basis. Since 2013, Mr Tawasoly had generally worked the same roster, being Sunday through to Thursday, with Friday and Saturday off. This allowed Mr Tawasoly to undertake caring responsibilities for his school aged children following a separation.

[4] In the lead up to August 2016, changes took place in the operational requirements of AFS’s Adelaide business, with additional contracts being won. A change in roster hours was also implemented and this involved, at least for a period, Mr Tawasoly working on different days and later, not working his full hours and having some deductions made from annual leave. Further, Mr Tawasoly’s circumstances also changed and he gained additional access to his children, which impacted upon his intended availability on Thursdays of each week. Mr Tawasoly was directed to put in a formal request relating to his capacity to work less than full-time, which was done. The request involved him starting work after 9 am and finishing at 2.30 pm on Thursdays while continuing to have Fridays and Saturdays off. Mr Tawasoly’s rostered shift on Thursdays involved working from 7 am to 3 pm.

[5] AFS considered, but ultimately denied, Mr Tawasoly’s request on 22 August 2016 on the basis that the arrangements could not be accommodated given operational and staffing requirements. He was, in effect, provided with the options of fulfilling the hours that he was rostered to work, reverting to a casual employee in another area, resigning, or being dismissed. Mr Tawasoly advised that none of these options were viable but did indicate that he would be willing to, in effect, work part-time hours. Mr Tawasoly’s employment was subsequently terminated on either 22 or 23 August 2016 on the basis of his refusal and/or inability to comply with the requirements of his contract.

[6] Mr Lawrie of the Transport Workers’ Union of Australia (TWU), who appeared on behalf of Mr Tawasoly, accepted that there was a valid reason for dismissal, 1 but contended, in effect, that the dismissal was unfair on the following grounds:

• The need for Mr Tawasoly to change his roster came about because of amendments to his custodial arrangements which provided for increased time with his children. This arose in February 2016 and was catered for by AFS, up until the applicant’s dismissal, through Mr Tawasoly’s use of annual leave and the provision of additional hours by the respondent;



• Mr Tawasoly complied with AFS’s instruction to provide a written request for flexible working arrangements and was at all times himself flexible with the respondent regarding possible alternatives;



• Mr Tawasoly was able to complete 36 of the 38 hours that he was rostered to work and, being a large employer, AFS would have been able to make alternative arrangements to accommodate those two “lost” hours. Further, the request only needed to be accommodated for “a matter of months” until his partner obtained her driving licence;



• The applicant was at all times committed to AFS and to completing his 38 hours of rostered work, albeit that he was unable to complete them as per the current roster;



• The Enterprise Agreement that governed the applicant’s employment provided an avenue for employees to work over the standard 7.6 hour shift (up to 10 hours) without incurring overtime;



• The alternative employment options provided by the respondent were unnecessarily inflexible in the circumstances; and AFS would not have incurred unreasonable additional costs or risks had it approved Mr Tawasoly’s request;



• Mr Tawasoly was unable to accept the offer of casual employment in a different area of AFS as this was effectively a “demotion” in responsibility, security and wage (approximately $3 less per hour);



• Mr Tawasoly had an unblemished record of employment; and



• The dismissal was a disproportionate response to Mr Tawasoly’s request and is representative of AFS not fulfilling its positive obligation to take all reasonable and proportionate measures necessary to accommodate flexible working arrangements in relation to an employee’s responsibilities as a carer.

[7] In substance, Mr Tawasoly contends that the dismissal was harsh in all of the circumstances. He does not seek reinstatement but rather compensation having regard to the impact of the dismissal upon his employment and income.

[8] AFS was represented (with permission) by Mr Procter of ClarkeKann Lawyers, and contends, in effect, that Mr Tawasoly’s dismissal was for a valid reason and not unfair on the following grounds:

• Mr Tawasoly was dismissed for his refusal and/or inability to comply with the requirement to work from 7 am to 3 pm every Thursday to meet the business and operational needs of AFS;



• Mr Tawasoly accepted that there was a valid reason for the dismissal and implicit in this admission is that the direction itself, to attend work for his rostered hours, was reasonable;



• The applicant’s request for flexible working arrangements was considered, and denied, on the basis of reasonable business grounds;



• At the time of the request, AFS required a Storesperson to work from 7 am to 3 pm on Thursdays, and, taking into account the applicant’s unavailability to work Friday and Saturday, it was not practicable to rearrange the rosters for all employees to accommodate the request including that it was not feasible to hire an additional employee for such a short length of time nor was it practicable to have other employees start early or finish late as this would require the payment of overtime;



• It was Mr Tawasoly, not the respondent, who was unnecessarily inflexible in trying to find an appropriate solution. AFS offered the applicant alternative employment options including changing his rostered days off or moving to casual employment which were both refused by the applicant;



• The specifics of any Court order in relation to custodial arrangements, including whether the applicant was himself required to take care of the children rather than engaging childcare, were not part of the matrix put to AFS by Mr Tawasoly;



• While the relevant Enterprise Agreement does provide an avenue for employees to work a shift longer than the standard 7.6 hours, this clause can only be utilised by agreement of a majority of employees. There is no entitlement to demand those hours as the applicant purported to do;



• The Employee Handbook makes it clear, and Mr Tawasoly accepted, that he was at all times aware, that the nature of the business as a 7-day operation, required employees to be flexible with their rostering arrangements; and



• Even if the Commission were to find that the dismissal was harsh, unjust or unreasonable, because the applicant effectively invited the dismissal to occur in the face of other options being presented to him, there should still be no award of compensation.

[9] AFS also contends that this application was, in effect, an attempt to seek a determination of Mr Tawasoly’s request for flexible working arrangements and the FW Act expressly “prohibits” the Commission from determining such matters. Further, it submits that the Commission should be reluctant to interfere with management prerogative and there were other factors including the conduct of Mr Tawasoly that should be taken into account.

[10] There is no dispute that Mr Tawasoly was protected from unfair dismissal within the meaning of s.382 of the FW Act and there is a valid application before the Commission.

2. The witnesses and other evidence

[11] Mr Tawasoly provided a witness statement and gave evidence in the matter.

[12] AFS relied on the witness statements and oral evidence of the following employees at its Adelaide operation:

• Mr Jordan Read - former Purchasing Manager (Mr Read resigned effective 30 December 2016); and



• Mr Nikola Metodijevic – Unit Manager.

[13] In general terms, there is little factual dispute in this matter. I also found each of the witnesses to be honest and open with their evidence. There are some differences of recollection and I have resolved these having regard to the probability and consistency of the evidence.

[14] There are also differing views about the fairness and practicality of various actions and decisions, and these are ultimately matters for the Commission to determine.

3. Findings of fact

[15] The overall operations of AFS in Adelaide are significant, employing approximately 170 employees. It operates 7 days a week, 24 hours a day.

[16] The stores department in Adelaide, where Mr Tawasoly worked, involves a relatively small team of six employees. Given the requirements of the role, each of these employees must have the necessary training and qualifications to undertake stores department duties including operating heavy load-shifting machinery and meeting food handling and associated standards. Mr Tawasoly’s main area of responsibility was the freezer and most deliveries received by AFS arrive frozen. The peak activity times being Monday, Thursday and Friday when larger (incoming) deliveries are made. In particular, the peak delivery times are between 7 am and 12 noon. The storeroom closes at 4 pm each day.

[17] On Sundays, there is usually only one Storesperson engaged. Amongst other duties, AFS expects the employee concerned to handle a significant order to be placed with a major supplier (Bidvest).

[18] All of the relevant AFS employees at its Adelaide operations are employed on the basis of their capacity and willingness to work within a 24/7 environment. The AFS Employee Handbook, which forms part of the contract of employment 2 and was provided to Mr Tawasoly on commencement, states as follows:

“ROSTERS AND AVAILABILITY
Rosters will be prepared in line with Alpha Flight Services business needs. Due to the nature of the catering industry, most staff members will be required to work weekends, evening shifts and public holidays.

When you were first offered your role with Alpha Flight Services, you would have been offered the position based on your availability. Usually this would be 7 day / week and often 24 hours / day to meet rotating roster requirements. Any changes in your availability must be discussed with your manager, who will then approve or deny your request.” 3

[19] Mr Tawasoly was employed in October 2012 on a full-time basis. His employment ultimately became subject to the Alpha Flight Services Pty Ltd (Catering and Operations Services) Enterprise Agreement 2013-2016 (the Enterprise Agreement).

[20] Sometime in late 2013 or early 2014, Mr Tawasoly began to work a Sunday to Thursday roster. This arose in the context of a move to a new building and a change to provide 7-day coverage for the stores. This change also facilitated, or suited, a change in custodial arrangements that gave Mr Tawasoly caring responsibilities for his school-aged children on Friday and Saturday. These arrangements had to be negotiated and confirmed through (family) court processes. I accept the evidence of Mr Tawasoly that these arrangements could not be readily altered and created constraints on his work availability at times.

[21] In February 2016, Mr Tawasoly’s custodial arrangements changed and he gained additional time with his children on Wednesday evenings. This also meant that he had responsibility to ensure that his children were dropped off and collected after school on each Thursday. As his partner could not drive, this involved Mr Tawasoly undertaking that role. As a result, he requested that he be able to start work not before 9 am and finish at or before 2.30 pm on each Thursday. The evidence does not reveal whether the precise basis of the requested change in hours was known by the management then involved in making that decision.

[22] Despite a subsequent change in rosters, the revised Thursday arrangements were accommodated by AFS on an informal basis for about 5 months. This involved Mr Tawasoly working some additional hours and towards the latter part, the deduction of annual leave. I note that the deduction from annual leave was not something that Mr Tawasoly wanted to continue and it is not clear whether there was proper written authority. 4 AFS also incurred some additional overtime as a result of these arrangements.

[23] In March 2016, AFS changed its rosters following consultation with staff, in order to introduce an afternoon shift. This was part of changes made to cope with increased business activity and this also involved the need for the Bidvest order work to be undertaken and completed on Sundays. As Mr Tawasoly was not trained on the Bidvest work, his roster was changed to become Monday to Friday.

[24] In May and June 2016, AFS won additional catering contracts. Further, during this period Mr Read, who had taken over responsibility for approving overtime, became concerned about the impact of Mr Tawasoly’s Thursday arrangements on the overtime expenses and other matters, and requested that the applicant put his reasons for the working hours restrictions in writing. The evidence does not directly reveal whether this was done or followed up at the time, however, Mr Read was later seeking the same information.

[25] In June 2016, after consultation, Mr Tawasoly was moved back to the Sunday to Thursday roster on the basis that he would learn and complete the Bidvest order work on Sundays.

[26] In early August 2016, a further issue arose about Mr Tawasoly’s capacity and willingness to undertake the full Bidvest work on Sundays and about his availability for work more generally. On 1 August 2016, a meeting was held with Mr Tawasoly, involving Mr Metodijevic and Mr Read, to discuss these issues.

[27] The outcome of the meeting included the following:

● Mr Tawasoly agreed to complete the Bidvest work on Sundays noting that Mr Read and a Purchasing Officer would be onsite to assist;
● Mr Tawasoly would also commence work one hour earlier on each Sunday to assist with the Bidvest order;
● Mr Tawasoly was required to provide a letter confirming that he was “unable to complete the full-time hours”; 5 and
● The parties had discussed the consequences of Mr Tawasoly potentially moving from full-time to part-time or casual work.

[28] On 2 August 2016, Mr Tawasoly provided the following written response:

“From: Abul Fazal Tawasoly Dated: 02/08/2016.
To Human Resources

I worked for Alpha Flight Services for 4 Years. At present I can’t work 38 hours a week because I have family commitments and need to take care of my kids from Wednesday night that means I have to drop my kids to school in the Thursday morning and pick up the kids at 3pm. So, I can’t work 7.6 hours on Thursday’s. I will appreciate if I get paid only for 35.5 hours a week. Please keep my annual leave intact.

Thanks” 6

[29] Mr Read and Mr Metodijevic considered the request and took advice from the AFS human resources team.

[30] On various days between 8 and 11 August 2016, Mr Tawasoly was absent due to illness but did not directly notify Mr Read of the absence as required. This led Mr Read to prepare an employee performance report and arrange a meeting with Mr Tawasoly on 18 August 2016 to discuss the issue and Mr Read’s general concerns about Mr Tawasoly’s work performance.

[31] The 18 August 2016 meeting was to be attended by Mr Metodijevic and Mr Read, who was already in the meeting room, when Mr Tawasoly entered. Mr Tawasoly took objection to the presence of Mr Read and indicated that he would not attend the meeting if Mr Read was to be involved. When Mr Metodijevic advised that it was appropriate for Mr Read to attend as he was the applicant’s immediate manager, Mr Tawasoly indicated that if Mr Read did not leave, he would do something that could cause him problems. Mr Tawasoly then clarified that he “doesn’t want to punch someone and do something wrong”. 7 This was understood by Mr Metodijevic as a threat but despite that view and the evident concerns that arose from that conduct, as Mr Read had already walked out of the room to calm the situation, Mr Metodijevic continued with the meeting.

[32] Mr Tawasoly explained that he considered that Mr Read was communicating with him in an inappropriate manner, including laughing at him and that others in the stores department also had concerns. I note that subsequently, HR called a meeting involving Mr Read and Mr Tawasoly and that Mr Read apologised if his tone was inappropriate but reinforced the need for Mr Tawasoly to perform the Bidvest work on Sundays, which he considered had not been completed. Mr Read denied laughing at Mr Tawasoly and rejected the notion of any broader concerns within the workplace.

[33] On 22 August 2016, Mr Metodijevic and Mr Read met with Mr Tawasoly to discuss his working hours. They noted and discussed the applicant’s written advice in relation to his working hours, which AFS took to be a request for flexible working arrangements. Mr Read sought clarification as to whether Mr Tawasoly was able to work any other days in the week so that he could complete 7.6 hours of work a day over 5 days. Mr Tawasoly indicated that he had to have Friday and Saturday off and that he was unable to work 7.6 hours on Thursdays.

[34] Mr Metodijevic advised that the restrictions, which impacted on 3 days of each week, was making it very difficult to organise work given the small size of the (stores) team, and the specific tasks and skills of the employees concerned. During these discussions, which went for up to an hour, AFS discussed the rosters and sought alternatives from the applicant that might work for both parties. Mr Tawasoly did not engage and stated “that’s okay if you can’t, just terminate me.” 8

[35] In due course, Mr Tawasoly was then given a number of options, including transferring to another department (wash up) as a casual. It was also evident that the prospect of a dismissal or resignation remained options. Mr Tawasoly rejected the requirement to work the rostered full-time hours and declined the casual position.

[36] Either at the initial meeting on 22 August 2016 or after the resumption of the meeting later that day, Mr Tawasoly was provided with a letter confirming the requirement for him to work his full rostered hours, which was in the following terms:

“Dear Abul,

Flexible Working hours request

Following your request on 2 August 2016 you proposed that you are unable to work 7.6 hours on Thursdays. You also requested that your rostered days off be on Friday and Saturday every week as you are unable to fulfil your shift requirements on these days.

We have considered your request and I am writing to inform you that unfortunately we cannot accommodate on the following grounds:

• We are unable to reorganise the work amongst existing staff



• We cannot reasonably cover the additional 1 hour 45 minutes before your shift and 30 minutes after your shift on Thursday’s without incurring additional costs to the business



• Rosters are organised taking into account the existing skills and qualifications of all staff



• The effect on staff morale when showing favouritism to an individual in an operation that requires shift work to meet customer requirements



• The perception of favourable treatment of an employee who has similar commitments, responsibilities and financial restrictions as others

We feel that we have been more than reasonable in accommodating these requests over the past few months but due to the above mentioned reasons we will not be able to accommodate moving forward. I can confirm that you are required to continue working your current contractual hours.

If you wish to further discuss this decision please contact your Manager.” 9

[37] Later on 22 August 2016, or potentially the following day, 10 Mr Tawasoly was dismissed. The dismissal followed a further discussion during which AFS confirmed the required working hours and Mr Tawasoly declined to resign. The dismissal was confirmed in a letter dated 23 August 2016. The terms of that letter effectively repeated the position set out in the 22 August 2016 letter and meeting, and concluded with the following:

“… …

Due to the above mentioned reasons you were advised that you were required to continue working your contractual hours as rostered by management.

In the meeting, you were also offered alternatives in relation to not being able to fulfil your shift requirements on a Thursday. You were asked if you could work a Friday or Saturday instead for which you responded and said that you will not be able to work on those days.

Due to the operational requirements of running a 24-hour business we had no other alternative but to terminate your employment. Based on your length of service, you will be paid 3 weeks in lieu of notice. You will also be paid your accrued entitlements and outstanding remuneration including superannuation, up to and including your last day of employment.

At this time, I also remind you that your Contractual Obligations in relation to Confidentiality, Intellectual Property and Restraints will survive Termination of your Employment and will continue to apply to you.” 11

[38] There is no reference in any of the evidence, including the witness statements, oral evidence or notes of the various meetings, about how long the restriction on Thursdays (or any other days) would need to be in place. That is, it is a reasonable inference from the evidence that AFS was aware that the working hours restrictions on Thursdays related to Mr Tawasoly’s desire to take his children to school, and at least potentially, that this was due to his partner not being able to drive. 12 However, there is no indication that AFS was aware that his partner was intending to obtain a driver’s licence.

4. Was Mr Tawasoly’s dismissal unfair within the meaning of the FW Act?

[39] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[40] Mr Tawasoly was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[41] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[42] The FW Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal is related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”

[43] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

[44] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Tawasoly’s capacity or conduct (including its effect on the safety and welfare of other employees).

[45] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.¹³

[46] As referenced by AFS, Mr Tawasoly accepted in both written and oral submissions that there was a valid reason for dismissal. The concession was in the following terms:

“31. The Applicant submits that ordinarily where an employee is unable to perform the inherent requirements of his or her contractual hours of engagement, this would give rise to a valid reason for dismissal.

32. The Applicant therefore submits that the decision to dismiss Mr Tawasoly was for a valid reason.”  14

[47] In closing oral submissions, Mr Lawrie for Mr Tawasoly confirmed that the applicant did not deny there was a valid reason for dismissal and accepted that where an employee could not perform their contracted hours this would be a valid reason for dismissal. He did also indicate, in effect, that Mr Tawasoly could perform his contractual hours but not at the times required by the employer. 15 This was part of the proposition that the dismissal was disproportionate and harsh, and I will return to this aspect shortly.

[48] Capacity is generally considered to be the employee’s ability to do the job as required by the employer. 16 This includes the physical capacity and conduct to perform the work they were substantively employed to do17 but may also extend to broader considerations.18

[49] The failure of the employee to follow the employer’s lawful and reasonable directions can also constitute a valid reason for dismissal. 19

[50] Mr Procter, for AFS, contended in closing submissions that in order to be a valid reason (as conceded) it was the refusal to follow a lawful and reasonable direction. Implicit in the valid reason is the reasonableness of the direction and accordingly, “if it is accepted that it was a valid reason then it was a reasonable direction.” 20 I note that AFS did not directly rely upon the applicant’s conduct in the meeting of 18 August 2016 as providing a valid reason.

[51] This case was conducted by both parties on the basis that a valid reason for dismissal existed. Whilst I will shortly return to the relevance of Mr Tawasoly’s flexibility request and the reasonableness of AFS’s response, I am satisfied that the instruction to work the full-time shifts as required by AFS was a lawful and reasonable direction. This was consistent with the contract and there had been no agreed variation to that arrangement that would permit reduced hours over the longer period.

[52] The unwillingness to work the contracted hours was a valid reason for dismissal in all of the relevant circumstances.

Section 387(b) – whether Mr Tawasoly was notified of the reasons for dismissal.

[53] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 21

[54] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.

[55] This was conceded 22 by the applicant and I am satisfied that Mr Tawasoly was notified of the reasons for dismissal.

Section 387(c) – whether Mr Tawasoly was given an opportunity to respond to any reason related to his capacity or conduct.

[56] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[57] The process contemplated by the FW Act does not require any particular formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Mr Tawasoly was aware of the nature of the employer’s concern about his conduct and had a full opportunity to respond to these concerns. 23

[58] This was conceded 24 by the applicant and I am satisfied that this consideration was met by the process adopted by AFS in relation to Mr Tawasoly.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Tawasoly a support person.

[59] Mr Tawasoly did not request a support person in connection with any of the meetings or processes leading to the dismissal.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Tawasoly – whether he has been warned about that unsatisfactory performance before the dismissal.

[60] To the extent that performance in this context relates to the unwillingness to work full-time hours, it is reasonably clear on the evidence that Mr Tawasoly was aware that if he declined to work those hours, or to adopt one of the alternative options, he would be dismissed.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[61] I deal with these considerations together. AFS accepted that it is a large employer and has dedicated Human Resources expertise.

Section 387(h) - other matters considered to be relevant

[62] Amongst other considerations, it is appropriate for the Commission to consider the impact of the dismissal upon Mr Tawasoly given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct and circumstances found by the Commission.²⁵

[63] Further, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed.²⁶

[64] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,²⁷ the Full Bench observed:

“[24] ... ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[65] In this matter, this is not so much a case of misconduct in the traditional sense, but rather, an unwillingness by Mr Tawasoly to work the hours as agreed as part of the contract of employment. In that regard, it is evident that a party cannot unilaterally alter the terms of the contract and unless an alternative is agreed, the contract cannot continue. This must, however, also be seen within the scheme of the FW Act and the capacity for an employee in certain circumstances to make a request for flexibility in those arrangements.

[66] As outlined earlier, AFS and Mr Tawasoly have treated the written information supplied by the applicant on 2 August 2016 as being a request for flexible working arrangements as contemplated by s.65 of the FW Act. Section 65 forms part of the National Employment Standards and provides as follows:

“65 Requests for flexible working arrangements
Employee may request change in working arrangements
(1) If:

(a) any of the circumstances referred to in subsection (1A) apply to an employee; and
(b) the employee would like to change his or her working arrangements because of those circumstances;
then the employee may request the employer for a change in working arrangements relating to those circumstances.
Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(1A) The following are the circumstances:

(a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
(b) the employee is a carer (within the meaning of the Carer Recognition Act 2010);
(c) the employee has a disability;
(d) the employee is 55 or older;
(e) the employee is experiencing violence from a member of the employee’s family;
(f) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

(1B) To avoid doubt, and without limiting subsection (1), an employee who:

(a) is a parent, or has responsibility for the care, of a child; and
(b) is returning to work after taking leave in relation to the birth or adoption of the child;
may request to work part-time to assist the employee to care for the child.

(2) The employee is not entitled to make the request unless:

(a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or
(b) for a casual employee—the employee:

(i) is a long term casual employee of the employer immediately before making the request; and
(ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Formal requirements

(3) The request must:

(a) be in writing; and
(b) set out details of the change sought and of the reasons for the change.

Agreeing to the request

(4) The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.

(5) The employer may refuse the request only on reasonable business grounds.

(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:

(a) that the new working arrangements requested by the employee would be too costly for the employer;
(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

(6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.”

[67] It is tolerably clear that Mr Tawasoly was eligible to make a request and did so in writing. The request outlined the reasons for the flexibility, at least in general terms, as contemplated by s.65(3)(b) and Mr Tawasoly confirmed his unwillingness to work full-time hours in writing as required by the employer. AFS considered the request and denied it on what it contends were reasonable business grounds and confirmed, at least in general terms, its reasons in writing, as contemplated by s.65(4) and (6) of the FW Act.

[68] Section 739 of the FW Act relevantly provides as follows:

“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

... …”

[69] I accept the proposition advanced by AFS that the FW Act does not empower the Commission to deal with disputes about requests for flexible working arrangements unless it is expressly authorised to do so by the parties. 28 This is not an application to deal with a dispute, there is no apparent relevant instrument authorising the Commission to do so in this workplace and the Commission should be alert to the potential use of other applications to achieve that end by other means. However, I would not accept that the consideration of whether the employer had objectively justifiable reasons for refusing to offer some flexibility was irrelevant for present purposes, at least where that refusal, in effect, created the basis for the dismissal. This is particularly so given the objects of the FW Act including to “(assist) employees to balance their work and family responsibilities by providing for flexible working arrangements”29 and the breadth of the statutory considerations under s.387.

[70] I note that AFS contended that the Commission should consider the present circumstances as being one of “managerial prerogative” and should apply the approach discussed in the XPT Case. 30 In the XPT Case, the Full Bench stated:

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”

[71] This approach is broadly relevant given the circumstances of the parties. However, the XPT “principles” must be considered in the context of the Commission’s role to assess whether a dismissal was unfair having regard to the various statutory considerations. 31

[72] I consider that there were circumstances which objectively made it very difficult for AFS to accommodate Mr Tawasoly’s request for reduced hours. Those circumstances are confirmed in the evidence of Mr Read and Mr Metodijevic, and related to the operational requirements of AFS. 32 That is, the respondent’s business had expanded throughout May and June 2016 with the acquisition of two new contracts. Subsequently, a new roster was created, taking into account the new unit and customer requirements of the business. The stores department operated 7 days a week. Mr Tawasoly’s inability to complete a 7.6 hour shift on any of Thursday, Friday or Saturday made it difficult to ensure sufficient coverage of the storeroom for the entire week. Further, Mr Tawasoly sought both to start his shift late and finish early on a Thursday, meaning that both ends of the shift would need to be covered by another employee. The stores department team comprised only 6 employees, who were all required to have certain approvals and licences in relation to operating heavy machinery and food-handling, making it difficult to organise a roster among the existing employees that could accommodate Mr Tawasoly’s request without placing additional burdens on the other employees. In addition, AFS could also not readily engage sufficiently qualified casual employees to work just the early and later hours on the Thursday.

[73] In reaching my ultimate conclusions, I have also considered three, potentially contrary, aspects of this matter. Firstly, the indication in the submissions that the constraints on working full-time hours on Thursdays were only temporary and would no longer exist when Mr Tawasoly’s partner obtained a driver’s licence. I accept Mr Tawasoly’s evidence given during the hearing of this matter that this was the case and that subsequent to the dismissal, this circumstance has changed. However, as outlined earlier, whilst the reason for the working hours restrictions on Thursdays could have been inferred by AFS, and the applicant described them as being “at present”, 33 there is certainly no evidence that Mr Tawasoly advised the employer of the potential to have that particular restriction overcome in the near future.

[74] Given the discussions that were held, including the invitation for Mr Tawasoly to provide further alternatives, it was reasonable for AFS to make its decision based upon the indication that the restrictions on Thursdays, Fridays and Saturdays were an on-going issue. Indeed, despite (reluctantly) working some Fridays in the previous 12 months, during the final discussions Mr Tawasoly confirmed that he could not work on either Fridays or Saturdays.

[75] Secondly, whether Mr Tawasoly’s request for part-time work was considered. Whatever purpose was intended by AFS and Mr Tawasoly in connection with the flexibility request, it is clear on face value that Mr Tawasoly was communicating a request to work part-time hours. This was also evidently designed to make it easier for AFS to accommodate Mr Tawasoly’s circumstances given that the employer would not need to find additional hours on other days (to fulfil the 38 hour week) and to avoid any suggestion that annual leave should be sacrificed.

[76] It is reasonably apparent from the evidence of AFS’s management that the request was not considered as a request for part-time work, but rather a request for flexible working hours in the context of the full-time contract. In many cases, this oversight would potentially lead to unfairness. However, in the end result here, there is little consequence of that failure. This is because the reason for the rejection of the request was fundamentally not the problem with utilising the 38 hours of Mr Tawasoly’s contract; but rather, that the restrictions made it very difficult to effectively staff the store at critical times as required. That is, the early times that Mr Tawasoly was not available on Thursdays coincided with the peak demand for work on that day, and the capacity to fill in those hours by using alternative employees was limited due to the need for skilled and qualified employees. To bring in some staff for the few hours on the beginning and end of the day was problematic. Further, there was no capacity to substitute the Thursdays for other working days, given that Mr Tawasoly was not willing at that point to work on Fridays or Saturdays.

[77] Thirdly, AFS had, at least for a period, worked around Mr Tawasoly’s restrictions on Thursdays. If AFS had done so before, why could it not continue to do so?

[78] The evidence reveals that AFS incurred some additional overtime from the extra hours undertaken by other employees during the relevant period and that there were some negative impacts upon other employees in terms of their working hours. Further, Mr Tawasoly had worked Fridays at least for some of that period and this would have increased the capacity for AFS to cope with the Thursday restrictions. It is also evident that the increasing work activity for the store more generally, and the need for the Sunday shift to be undertaken effectively, were operative factors that impacted upon the capacity for the employer to accommodate the restricted working hours in the medium and longer term. For reasons outlined earlier, in the absence of any contrary indications, it was reasonable for AFS to make its decision based upon the presumption that the intended restrictions were on-going.

[79] I have also considered the proposition advanced by Mr Tawasoly in closing submissions that it may have been feasible to negotiate an agreement with employees to work extended hours under the terms 34 of the Enterprise Agreement. This would require majority agreement but would not, in any event, have addressed the fundamental issue associated with the need to have the required staffing at the peak times of the day and the week. This latter finding would also apply to the capacity under the Enterprise Agreement35 for an employee, by agreement, to work the 38 hour week over a period of less than 5 days.

5. Conclusions and order

[80] Mr Tawasoly’s request in relation to his working hours could not be accommodated; however, it was considered and denied. In the particular circumstances, that was not unreasonable given the operational requirements and the staffing implications of the entire request, including what amounted to an on-going inability (unwillingness) to work on Fridays and Saturdays. It was not simply a matter of Mr Tawasoly working less hours on Thursdays, or rearranging others to cover that period, given those particular circumstances.

[81] Further, I note that despite the additional support provided by AFS, there were continuing concerns about the capacity and willingness of Mr Tawasoly to do the full work requirements on Sundays. 36 Unfortunately, this made the request for the shorter weekly hours and modified working days even more problematic in the context of the relatively small work group and the changing nature of the store operations.

[82] Mr Tawasoly was given an opportunity to confirm his position in light of the denial of the request and he did so, knowing the options and the likely outcome. The dismissal was regrettable, particularly given the applicant’s situation, but the requirement to work the contracted hours and intended roster arrangements was objectively justified and reasonable in all of the particular circumstances evident at AFS at that time.

[83] Having regard to the circumstances of the parties, the findings made and the relevant statutory considerations, on balance I am not persuaded that the dismissal of Mr Tawasoly was harsh, unjust or unreasonable.

[84] As a result, the dismissal was not unfair within the meaning of the FW Act and the application itself must be dismissed. An order 37 to that end is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

E Lawrie, of Transport Workers’ Union of Australia, for Mr Tawasoly.

M Procter, of ClarkeKann Lawyers, with permission, for Alpha Flight Services Pty Ltd.

Hearing details:

Adelaide

2017

7 February.

 1   This concession was made both in written submissions and during closing oral submissions.

 2   July 2014 contract of employment at page 2 – Attachment B to the Statement of Mr Read – Exhibit R1.

 3   Exhibit R3.

 4 Section 88 and 93 of the FW Act, which form part of the National Employment Standards do not permit the unilateral deduction of annual leave and any directions to take leave must be authorised under an industrial instrument and be reasonable. See: 4 yearly review of modern awards – Annual leave [2016] FWCFB 6836 and the earlier decision cited in that matter. The Enterprise Agreement does not provide the capacity for the employer to direct the taking of annual leave.

 5   Attachment A to Statement of Mr Metodijevic – Exhibit R2.

 6   Attachment A to the Statement of Mr Read – Exhibit R1.

 7   Notes of meeting – Attachment B to Statement of Mr Metodijevic – Exhibit R2 and confirmed by the evidence of Mr Tawasoly.

 8   Statement of Mr Metodijevic – Exhibit R2 at 23.

 9   Attachment C to the Statement of Mr Metodijevic – Exhibit R2.

 10   Mr Metodijievic’s evidence was that the dismissal occurred on the following day however this contrasts with the evidence on that point by Mr Tawasoly and Mr Read. This difference was not the subject of cross-examination by either party is not significant.

 11   Attachment E to the Statement of Mr Metodijevic – Exhibit R2.

 12   The evidence of Mr Read – recording of hearing at 11.32 am.

13 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].

 14   Applicant’s written outline of submissions.

 15   Record of hearing at 12.22pm.

 16   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 684.

 17   J Boag & Son Brewing Pty Ltd v Button (2010) 195 IR 292.

 18   Applicant v Department of Defence[2014] FWC 4919 and Pettifer v MODEC Management Services Pty Ltd[2016] FWCFB 5243.

 19   Lambeth v University of Western Sydney[2009] AIRC 47; Grant v BHP Coal Pty Ltd[2014] FWCFB 3027.

 20   Record of hearing at 2.38pm.

 21  See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

 22   Applicant’s written outline of submissions.

 23   RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

 24   Ibid.

25 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

26 See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

27 [2011] FWAFB 1166.

 28   The Supplementary Explanatory Memorandum to the Fair Work Bill 2008 stated as follows:

31. Under subclauses 65(5) and 76(4) of the Bill, an employer may refuse a request for flexible working arrangements or an extension to a period of unpaid parental leave on reasonable business grounds. The Bill does not permit FWA (or another person) to deal with a dispute to the extent that it is about whether an employer had reasonable business grounds under the NES (subclauses 739(2) and 740(2)).

 29   s.3(d) as part of the object to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion.

 30   Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (1984) 295 CAR 188.

 31   Although in a different context, see: See Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union[2015] FWCFB 1889 at [27].

 32   Statement of Mr Read at [29] and Statement of Mr Metodijevic at [7], also record of hearing at 11.14 am and 11.50 am.

 33   The request made by the applicant on 2 August 2016 – Attachment A to the Statement of Mr Read – Exhibit R1.

 34   Clause 24.3 of the EA.

 35   Ibid.

 36   The evidence of Mr Tawasoly - recording of hearing at 10.20am.

 37   PR590623.

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