Adam Kachwalla v ARA Security Services Pty Ltd
[2022] FWC 1459
•26 AUGUST 2022
| [2022] FWC 1459 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adam Kachwalla
v
ARA Security Services Pty Ltd
(U2021/11956)
| DEPUTY PRESIDENT CROSS | SYDNEY, 26 AUGUST 2022 |
Application for an unfair dismissal remedy
Mr Adam Kachwalla (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 21 December 2021 (the Application) in respect of his dismissal from employment with ARA Security Services Pty Ltd (the Respondent).
A Conciliation conducted by a staff member of the Fair Work Commission (the Commission) on 28 February 2022, failed to resolve the matter, and the matter was then allocated to my Chambers for determination.
I conducted a Member Assisted Conciliation and Directions Hearing on 27 April 2022 however this did not resolve the matter, and directions for the filing of materials were issued accordingly. Those Directions were as follows:
1. Adam Kachwalla (the Applicant) is directed to file with the Fair Work Commission, and serve on ARA Security Services Pty Ltd (the Respondent) an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 11 May 2022.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 25 May 2022.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 1 June 2022.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 25 May 2022.
The parties complied with the Directions. In particular:
· On 11 May 2022, the Applicant filed an Outline of Submissions, and a witness statement of the Applicant,
· On 25 May 2022, the Respondent filed an Outline of Submissions, and witness statements of Mr Tony Franov, Managing Director of the Respondent, and of Ms Christina Rainsford, Compliance & People Manager of the Respondent, and
· On 1 June 2022, the Applicant filed a Reply Witness Statement of the Applicant and a Witness Statement of Mr Spiros Nicolis, Senior Electrician and Data Technician of Servcore Pty Ltd.
The matter was listed for Hearing on 9 June 2022. At the Hearing, the Applicant and Mr Franov were cross-examined, and the statements of Ms Rainsford and Mr Nicolis were received into evidence without their being required to attend to give evidence.
Background Facts
The Applicant commenced employment with the Respondent on 13 January 2020. His role was to mainly service the Respondent’s financial institution clients, including Commonwealth Bank of Australia, Westpac and Suncorp, and on occasion to deliver technician services for ARA Security’s commercial clients such as the Department of Communities and Justice. The Applicant’s employment contract (the Contract) provided:
“29. Compliance with Policies and Procedures
You acknowledge and agree that in carrying out the Services, you will at all times act in accordance with all policy and/or procedure document supplied by the Company to you. However, these policies and procedures are not part of your terms of employment.”
From around August 2021, the Respondent’s clients advised that they were in the process of mandating vaccination against COVID-19 as a condition of entry to their worksites for their employees, contractors and service providers. The Respondent was directed to only send to worksites employees who were fully vaccinated against COVID-19, and conveyed those directions to their employees.
In mid-August 2021, Mr Franov called the Applicant to advise that the clients he serviced had required the Respondent only send to their sites fully vaccinated employees. The Applicant responded that the available COVID-19 vaccinations were still in a clinical trial stage, had not yet been approved, and there was no proof that they were effective. Mr Franov advised the Applicant that as a Security Technician, he would need him to attend worksites and if he could not deploy him to worksites, the Respondent could not make use of his resources and the Applicant would potentially be stood down.
On 26 August 2021, the Respondent emailed their employees to provide an update on the impact of COVID-19 on the Respondent’s business, including the following:
“…I need to highlight the noted changes under health orders in NSW which are now seeing our clients request details and in some instances declarations regarding our workforce both direct staff and subcontractors alike and the number of who are vaccinated;
Authorised workers NSW
Effective 30 August 2021, if you live in or are temporarily staying in a local government area of concern, you must not leave your local government area for work unless you have:
had at least 1 dose of a COVID-19 vaccine or
·evidence of a medical exemption or
·evidence of COVID-19 testing as part of a COVID-19 rapid antigen testing program approved by the Chief Health Officer.
These requirements do not apply to authorised workers before 30 August 2021.
Authorised workers who are unable to have a COVID-19 vaccine can request a COVID-19 vaccination exemption for medical reasons.
With the onset of the above requirements I need to advise that we have started to receive requests and in some cases instructions from clients to provide resource registers indicating which staff members are vaccinated to ensure they are permitted to access the client sites.
Whilst we will ensure that our provision of information will only indicate a yes or no to the question of vaccination it will become a requirement for each of you who have received it to validate it by way of showing your vaccination certificate at the client premises or enforcement officer if asked to do so.
I need to stress the seriousness and importance of vaccinations as it is inevitably going to become the primary driver of our governments and clients that will in turn possibly affect your ability to work on their or any sites moving forward and generate an income.
Please continue to stay safe follow the health guidelines in your respective states and get vaccinated.”
In early October 2021, in order to ensure the health and safety of its employees and to reduce the potential exposure to COVID-19, the Respondent decided it would follow the state and territory governments’ mandates and require vaccination against COVID-19 as a condition of entry to their workplaces, particularly in light of the interaction between office-based staff and technicians operating externally at client worksites.
In mid-October 2021, Mr Franov telephoned the Applicant and told him that the Respondent’s clients were consulting their contractors and service providers in the process of formalising their vaccine mandates requiring vaccination as a condition of entry. The Applicant said he had not made up his mind whether he would get vaccinated or not. Mr Franov informed the Applicant that if he was not going to be vaccinated against COVID-19, Mr Franov needed him to obtain a medical certificate or exemption to enable him to still attend client worksites, and that he may be stood down or have his employment terminated if he did not get vaccinated or did not hold a vaccination exemption.
On 18 October 2021, the Department of Communities & Justice formally introduced their COVID-19 Vaccination Policy which required employees and contractors to comply with any direction to be vaccinated against COVID-19, and that condition of entry to their worksites would be subject to compliance with such a direction given. The Respondent performed work at Department of Communities & Justice sites through its client BGIS, who directed Mr Franov not to send to any worksites any employees who were not vaccinated.
Also on 18 October 2021, there arose some confusion as to whether the Applicant had been stood down arising from a conversation with his supervisor. Mr Franov assured the Applicant he had not been stood down and the Applicant was paid for the day.
Around mid-October 2021, a significant client of the Respondent, Commonwealth Bank of Australia, contacted Mr Franov to advise that they were mandating COVID-19 vaccination as a condition of entry to their worksites, and directed Mr Franov to only send fully vaccinated employees to their worksites. Mr Franov subsequently advised the Applicant of that direction.
On 26 October 2021, Westpac, a large client of the Respondent, introduced their Entry to Workplace Policy effective from that day which required that its employees, contractors and suppliers to be fully vaccinated against COVID-19 by 1 December 2021, as a condition of entry to its workplaces or hold a medical exemption against the vaccination.
On 1 November 2021, the Respondent formally brought into effect its Return to Work (COVID-19) Vaccination Policy (the Policy). The Policy set out that Respondent’s employees and personnel were required to be fully vaccinated against COVID-19 by 1 December 2021 (or by 1 January 2022 for employees and personnel in the states of Queensland and Western Australia) unless an exemption had been provided by the Respondent due to a medical condition or recognised contraindication preventing vaccination. The Applicant and Mr Nicolis received the Policy by email on 1 November 2021.
As at 1 November 2021, over 78% of ARA Security employees had already been fully vaccinated against COVID-19 and over 91% of employees had received at least one dose of their COVID-19 vaccination, or held medical exemptions. The Respondent advised employees of the Policy by email on 1 November 2021.
On 3 November 2021, Commonwealth Bank of Australia formally introduced their Group Vaccination Policy effective from that date which required that all employees, external suppliers and contractors be fully vaccinated against COVID-19 by 1 December 2021 as a condition of entry to their worksites.
On 10 November 2021, Suncorp, a prominent client of the Respondent, introduced their COVID-19 Safety Standard effective from that date which had the effect that the Respondent could only send employees with an Active Vaccination Status to Suncorp’s worksites.
By early November 2021, all of the clients that the Applicant had previously serviced in his capacity as Security Technician had directed that its contractors be vaccinated against COVID-19 as a condition of entry, and introduced policies enforcing such directions. The Applicant could not be redeployed to other client worksites as all but a few of ARA Security’s clients had such requirements, and of the few remaining worksites not requiring vaccination as a condition of entry, the volume of work was approximately one work order issued per month.
While the Applicant, in his evidence at the Hearing, sought to assert that there were a sufficient number of clients of the Respondent that were not requiring the provision of vaccinated Security Technicians,[1] or that he was unaware of the increasing number of major clients of the Respondent requiring vaccinated Security Technicians,[2] I found that evidence to be vague, baseless and entirely unconvincing.
On 12 November 2021, Ms Rainsford spoke by telephone with the Applicant. He advised Ms Rainsford that he had not decided whether he would be vaccinated against COVID-19.
In mid-November 2021, Mr Franov spoke with the Applicant and explained that he would not be able to be deployed to the worksites he had previously attended or other worksites unless he was either fully vaccinated against COVID-19 or had a medical exemption by reason of the directions given and policies introduced by the Respondent’s clients. The Applicant informed Mr Franov that he did not wish to be vaccinated against COVID-19 and that he did not hold a medical exemption. Mr Franov advised the Applicant that his resources could not be used if he was not vaccinated against COVID-19 as almost all of the Respondent’s clients required vaccination as a condition of entry to their workplaces, as did the Respondent.
Following the above conversation, Mr Franov evaluated the Applicant’s vaccination status and his refusal to be vaccinated against COVID-19 in the absence of a medical exemption. Mr Franov considered the Policy, and the directions and vaccination policies of the Respondent’s clients, and determined that there were no client worksites to which the Applicant could be deployed. As a Security Technician, the Applicant’s role was dependent on attending client worksites, and no alternate duties were available for him to perform, Mr Franov decided that it would not be possible for the Applicant to continue employment with the Respondent.
On 15 November 2021, Mr Franov prepared a notice of termination of employment for the Applicant providing him with two weeks’ notice of the termination of his employment effective as of 30 November 2021. That letter was as follows:
On 30 November 2021, the Applicant returned the equipment, vehicle and uniforms the Respondent had provided to him.
The Applicant and Mr Nicolis were two of three employees of the Respondent whose employment was terminated by reason of not being (or not intending to be) vaccinated against COVID- 19 and not otherwise holding a medical exemption against vaccination.
The Applicant’s Grounds of Challenge to Fairness
The grounds upon which the Applicant submitted his dismissal was unfair were as follows:
There were no mandates or Public Health orders in effect for the NSW security industry at the time the dismissal took place, and to date, there are no such mandates, orders or directions that would affect the Applicant’s employment, had he continued to be employed;
There was no consultation in relation to the introduction of the Policy, as required under the Workplace Health and Safety Act 2011 (NSW);
The Policy was implemented well after his employment commenced with the Respondent, and well after the probationary period ended;
The Policy compels medical procedures;
An employer is not privy to health information under the Privacy Act 1988 (Cth), unless they are an organisation which provides a health service;
As a Security Technician, the Applicant has to work in irregular physical positions to access specific features of equipment, and working at heights. This placed him at an increased risk of harm or injury from side effects from the vaccines, such as blood clots, cardiac disorders and other side effects that may result in disability, or death.”
Consideration
Initial matters to be considered
Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the unfair dismissal application lodged by the Applicant (the Application). There is no dispute between the parties, and I am satisfied on the evidence, that:
(a) The Application was made within the period required in s 394(2) of the Act;
(b) The Applicant was a person protected from unfair dismissal;
(c)The Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and
(d) The Applicant’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of that section in considering whether the Applicant’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
General principles
It is necessary to consider whether the Respondent had a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4]
The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5] The question the Commission must address is whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).[6]
Consideration as to whether there was a valid reason
The Applicant was dismissed for failing to comply with the Policy. The grounds upon which the Applicant submitted his dismissal was unfair address the issue of whether a valid reason for dismissal existed.
Absence of Public Health Order
I do not consider the fact that the Respondent’s industry has not been the subject of NSW Public Health Orders mandating vaccinations has any weight in assessing the reasonableness of the Policy. Whilst the existence of a government mandate requiring vaccination to enter a high-risk setting may weigh in favour of a complementary policy at that setting being reasonable, the converse is not true. The reasonableness of an employer’s policy proposing a vaccination requirement is to be objectively considered on its merits, and not be burdened by a presumption of unreasonableness simply because government authorities have not declared that worksite to be a high-risk setting.
I give significant weight to the fact that a vaccination policy such as that included in the Policy intrudes on one’s right to bodily integrity if it is complied with. The practical effect of the Policy is to place pressure on an employee to give up this fundamental right, given that non-compliance is accompanied by potential disciplinary consequences that include termination of employment. This weighs against the Policy being assessed as reasonable. In his final submissions in the Hearing, the Applicant expressed his predicament as follows:[7]
“In light of my submissions, I still maintain that where there is risk there needs to be a choice. I've maintained that when consent is not about hanging an axe over someone's head and saying you either give me what we want, or you lose your ability to look after yourself, you lose your ability to look after your finances. One of my witnesses, Mr Nichols, is a family man. Now he got terminated. He suffered under an immense amount of stress. He couldn't even continue his case with the Fair Work Commission.”
However, I also give weight to the fact that the Policy has a logical and understandable basis in that it deals with the management of a real and present risk to health and safety. I give significant weight to this consideration given the collective rights and obligations the Respondent and employees have to the management of workplace health and safety (including the mitigation of risk). That is particularly so where persons employed by the Respondent physically interact with other employees of the Respondent, but more particularly the employees of many and varied clients of the Respondent. The predicament faced by the Respondent was eloquently stated my Mr Franov as follows:[8]
“I'm in the business of electronic security Mr Kachwalla, I'm not a medical expert, nor do I do clinical research. I simply follow the instructions of engagement and you deliver a service that we're specialized to deliver, which is electronic security solutions. If the government was telling me that there's a vaccine that needs to be taken and the masses of population are taking it up and our clients are mandating it for an access to the site and for us to breach a contract and make sure that we take 275 people through what I would arguably say was the most turbulent time in our history so far, then yes, I'm not an expert to be able to go and argue that case. I'm sorry.”
Considered overall, the factors in favour of the Policy being assessed as reasonable outweigh the factor against such a conclusion, being that the Policy places pressure on an employee to give up a fundamental right to bodily integrity. I do not conclude that the Policy is unreasonable, or disproportionate, as a workplace health and safety response to the risks presented by COVID 19. That being so, I conclude that a direction to comply with the Policy would be reasonable.
Consultation
The issue of consultation was a basis of the Applicant’s challenge to his dismissal, though he never specified what he considered would have been adequate consultation. The Applicant simply stated that there had not been adequate consultation.
In Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal,[9] the Full Bench stated:
“[98] It is uncontentious that the introduction of the Site Access Requirement and its implementation enlivened the consultation obligations in the WHS Act. 92 Sections 47 to 49 of the WHS Act are set out below:
47 Duty to consult workers
(1) The person conducting a business or undertaking must, so far as is reasonably practicable,consult, in accordance with this Division and the regulations, with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety.
Maximum penalty—
(a) in the case of an individual—230 penalty units, or
(b) in the case of a body corporate—1,155 penalty units.
(2) If the person conducting the business or undertaking and the workers have agreed to procedures for consultation, the consultation must be in accordance with those procedures.
(3) The agreed procedures must not be inconsistent with section 48.
48 Nature of consultation
(1)Consultation under this Division requires—
(a) that relevant information about the matter is shared with workers, and
(b) that workers be given a reasonable opportunity—
(i)to express their views and to raise work health or safety issues in relation to the matter, and
(ii)to contribute to the decision-making process relating to the matter, and
(c) that the views of workers are taken into account by the person conducting the business or undertaking, and
(d) that the workers consulted are advised of the outcome of the consultation in a timely manner.
(2) If the workers are represented by a health and safety representative, the consultation must involve that representative.
49 When consultation is required
Consultation under this Division is required in relation to the following health and safety matters—
(a) when identifying hazards and assessing risks to health and safety arising from the work carried out or to be carried out by the business or undertaking,
(b) when making decisions about ways to eliminate or minimise those risks,
(c) when making decisions about the adequacy of facilities for the welfare of workers,
(d) when proposing changes that may affect the health or safety of workers,
(e) when making decisions about the procedures for—
(i)consulting with workers, or
(ii)resolving work health or safety issues at the workplace, or
(iii)monitoring the health of workers, or
(iv)monitoring the conditions at any workplace under the management or control of the person conducting the business or undertaking, or
(v)providing information and training for workers, or
(f) when carrying out any other activity prescribed by the regulations for the purposes of this section.
[99] The WHS Act is based on the work health and safety model laws, which have been enacted in all jurisdictions except Victoria and Western Australia.
[100] The Work Health and Safety Bill 2011 (Cth) Explanatory Memorandum provides some limited guidance on the content of the duty to consult in s.48, as follows:
‘153. Subclause 48(1) establishes the requirements for meaningful consultation. It requires PCBUs to: share relevant information about work health or safety matters (listed in clause 49) with their workers; give workers a reasonable opportunity to express their views; and contribute to the decision processes relating to those matters. It also requires PCBUs to take workers’ views into account and advise workers of relevant outcomes in a timely manner.
154. Subclause 48(2) provides that consultation must involve any HSR that represents the workers.
155. Consulting with HSRs alone may be sufficient to meet the consultation duty, depending on the work health or safety issue in question.’ [Emphasis added]”
After considering the propositions that could be drawn from cases about what constituted consultation,[10] the Full Bench observed:[11]
“[113] While we accept that the metes and bounds of the Respondent’s obligation to consult is delineated by the terms of the WHS Act, we consider that the propositions outlined above contain contextual material that is relevant to an understanding of ss.48 and 49 of the WHS Act and will have regard to them on that limited basis. Of course, we recognise that the content of any specific requirement to consult is determined by the context, including:
· the precise terms in which such a requirement is expressed in the applicable industrial instrument, contract or legislation, including the circumstances in which the obligation is enlivened,
· the factual context in which the requirement arises, including the size and nature of the business and the nature of the change which is the subject of the consultation and the impact of that change on the persons who are required to be consulted, and
· whether the factual circumstances dictate a quick response.
[114] As to the last point, if there was a surge in COVID-19 cases such that the risk of transmission substantially increased or if a new, more transmissible or virulent, COVID-19 variant became prevalent then such circumstances may warrant a truncated consultation process. This is recognised in the qualification in s.47 of the WHS Act that consultation take place ‘so far as is reasonably practicable’.”
The Applicant pointed to no specific consultation requirement other than the WHS Act. The factual context in which the consultation requirement was applied was to a Company with 275 employees attempting to deal with the vaccination mandates of its clients.
While, as I have observed at [35] above, a vaccination mandate such as that included in the Policy intrudes on one’s right to bodily integrity, and the practical effect is to place pressure on an employee to give up this fundamental right, that mandate did not have immediate effect, and was the subject of further consultation with the Applicant both before, but particularly after the introduction of the Policy.
While the Policy was introduced with some haste, I find the factual circumstances, particularly the dictates of clients, required a quick response.
The complaint of the Applicant regarding consultation was not, I consider, regarding the absence of consultation. Rather, his complaint was that notwithstanding the consultation that did occur, the Policy continued to apply to him.
I consider that, taking into account the factual circumstances and the need for a quick response, the conduct of the Respondent was consistent with its consultation obligations under the WHS Act.
Policy Implemented after Employment Commenced
The Contract of the Applicant is clear that it requires the Applicant act in accordance with “all policy and/or procedure document supplied by the Company to you”. The terms of Clause 29 of the Contract clearly contemplate that policy and procedure documents can be provided after the commencement of employment, and after the conclusion of the probationary period.
It was entirely consistent with the terms of the Contract that the Policy could be issued, and if so issued, that the Applicant must comply with the Policy.
The Policy Compels Medical Procedures
I do not consider that the Policy compels medical procedures, specifically vaccinations. The Applicant’s own actions exhibit that vaccination was not compulsory. While I have found above that the practical effect of the Policy is to place pressure on an employee to give up this fundamental right, given that non-compliance is accompanied by potential disciplinary consequences that include termination of employment, such pressure does not equate to compulsion.
Privacy Act
There is no basis for Applicant’s submission that requiring confirmation of vaccination status in line with the Policy amounted to a breach of the Privacy Act. In Wendy Robinson and Others v Metro Trains Melbourne Pty Ltd T/A Metro Trains Melbourne[12], Commissioner Bissett considered reliance on s.16B of the Privacy Act in a submission that that the Privacy Act prohibited the collection of health information unless a permitted health situation existed. Commissioner Bissett found:[13]
“A review of the APP [the Australian Privacy Principles] does not disclose that health information can only be collected in a “permitted health situation” as put by the Applicants. This is because health information is personal information (which can be collected in a permitted general situation) and is also sensitive information and APP clause 3.4 allows for the collection of sensitive information.
I do not consider s.16B of the Privacy Act to be of any assistance in this matter. Section
16B of the Privacy Act is a definition only. It does not provide assistance in determining if the actions taken by Metro Trains in accordance with the Directions have breached the Privacy Act.For these reasons I do not consider that there is conflict between the Privacy Act and the requirement of the Directions that the Applicants disclose their individual vaccination status to Metro Trains.”
I further note that in in Stevens v Epworth Foundation[14] the Commission found that the collection, use, and storage of evidence of employee’ vaccination status could be achieved in line with the privacy principles, and in Construction, Forestry, Maritime, Mining and Energy Union and Ors v BHP Coal Pty Ltd t/a BHP Billiton Mitsubishi Alliance/BMA and Ors[15] the Commission confirmed that an employer’s requirement to show proof of vaccination in order to enter a site did not breach the Privacy Act 1988.
Finally, I reject the Applicant’s contention of breach of Discrimination legislation. The Respondent did not discriminate against a person because of a disability. The Respondent was complying with its obligations to ensure the health and safety of its workers while at work in accordance with work health and safety legislation.
I accept that the Respondent needed to know the vaccination status of each of its employees to ensure that it could comply with its obligations under Work Health and Safety legislation to keep employees and clients safe and healthy, and enquiries as to the vaccination status of employees were lawful and reasonable.
Medical Concerns
The Applicant did not lead any evidence to support the allegations that as a Security Technician, he was placed in increased risk of harm or injury from side effects from vaccines, such as blood clots, cardiac disorders and other side effects that may result in disability, or death. There is no basis for those submissions.
Conclusion on Valid Reason
It follows from the matters set out above that I accept the Respondent had, at the time of the Applicant’s dismissal, a valid reason for such dismissal related to his capacity. The valid reason was that without compliance with the Policy, the Applicant could not fulfil the inherent requirements of his job, particularly to attend client’s premises.
Notification of reason (s 387(b))
The Applicant was notified of the reasons for his dismissal in the termination letter of 9 December 2021.
Opportunity to respond (s 387(c))
The Applicant was given opportunities to respond, and did in fact respond, to the reason for his dismissal in discussions with the Mr Franov and Ms Rainsford in the period leading up to his dismissal. Having regard to all the circumstances, I am satisfied that the Applicant was given an opportunity to respond to the reason for dismissal related to his capacity.
Unreasonable refusal to allow a support person (s 387(d))
The Applicant did not seek to have a support person present in any conversations, and so this is not relevant to the present case.
Warnings of unsatisfactory performance (s 387(e))
The Applicant was not dismissed for unsatisfactory performance. This criterion is not a relevant criterion to the present case.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
The Respondent has some human resource management expertise. In all the circumstances, I am satisfied that neither the size of the Respondent’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting the Applicant’s dismissal.
Other relevant matters (s 387(h))
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment.
Conclusion
After considering each of the matters specified in s.387 of the Act, my evaluative assessment is that the Respondent’s dismissal of the Applicant was not harsh, unjust or unreasonable. The Respondent had a valid reason for the dismissal, and it afforded procedural fairness to the Applicant prior to making the decision to bring his employment to an end. The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
A Kachwalla, Applicant.
D Sefton of the Respondent.
Hearing details:
2022.
Sydney (by Video):
June 9.
[1] Transcript PN 193 to 219.
[2] Transcript PN 72 to 76.
[3] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
[4] Ibid.
[5] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685].
[6] Ibid.
[7] Transcript PN 461.
[8] Transcript PN 379.
[9] [2021] FWCFB 6059, at [98] to 100].
[10] [2021] FWCFB 6059, at [108]
[11] [2021] FWCFB 6059, at [113] and [114]
[12] [2022] FWC 1614.
[13] At [81] to [83].
[14] [2022] FWC 593.
[15] [2022] FWC 81.
Printed by authority of the Commonwealth Government Printer
<PR742509>
7
0