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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abulfazal Tawasoly v Alpha Flight Services Pty Ltd

Details

AGLC: Abulfazal Tawasoly v Alpha Flight Services Pty Ltd [2017] FWC 813
Case: [2017] FWC 813
Decision Date: 7 MARCH 2017

CaseChat Overview and Summary

In the case of Abulfazal Tawasoly v Alpha Flight Services Pty Ltd, the applicant sought relief from his dismissal on the grounds that it was unfair. The applicant had been employed by Alpha Flight Services, a company providing flight services, and had been dismissed due to his inability to adhere to his contracted working hours. This was primarily because of changes in his caring responsibilities. The Fair Work Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable.

The central legal issue was whether the dismissal was fair under the Fair Work Act, specifically considering the applicant's request for flexible working hours due to personal circumstances. Additionally, the court had to determine whether the Commission could consider the request for flexible hours as part of the unfair dismissal matter and what weight, if any, should be given to this request in the context of the overall fairness of the dismissal. The court also had to assess whether the dismissal, given the operational constraints and impact on the business and other staff, could be deemed fair.

The Fair Work Commission examined the application and found that while the applicant's personal circumstances were unfortunate, they did not alter the fundamental nature of the employment contract. The request for flexible working hours, when considered in combination with other constraints on the applicant's availability, presented significant challenges to the operational requirements of the business and had a considerable impact on the company and its other staff. The Commission concluded that the dismissal, although valid, was not harsh, unjust, or unreasonable given all the circumstances. The Commission thus dismissed the applicant's claim for unfair dismissal.

Orders