Bajram Zyka v The Security Hub Pty Ltd

[2023] FWC 3299

[2023] FWC 3299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Bajram Zyka
v

The Security Hub Pty Ltd

(C2023/3474)

COMMISSIONER CIRKOVIC MELBOURNE, 20 SEPTEMBER 2023

Application to deal with contraventions involving dismissal – casual employee – jurisdictional objection of no dismissal – jurisdictional objection upheld.

1. On 15 June 2023 Mr Bajram Zyka (Applicant) made a general protections application to the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009 (Act) alleging contraventions of the Act associated with his alleged dismissal.

1. The Security Hub Pty Ltd (Respondent) opposes the application. It filed a response on 26 June 2023 raising a jurisdictional issue that the Applicant has not been dismissed from his employment.

1. The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368.[2] It is thus necessary to determine the jurisdictional issue for the Applicant’s application to proceed further.

1. I issued directions on 20 July 2023.

1. I heard the jurisdictional objection on 6 September 2023 by way of determinative conference. I heard evidence from both the Applicant and Mr Gupta of the Respondent.

1. The following facts are largely not in dispute:

• The Respondent conducts the business of providing security services to clients in Melbourne, Victoria. The clients range from direct clients to those where the Respondent is engaged by a head contractor.[3]

• The Applicant has been employed with the Respondent as a security officer on a casual basis since 3 April 2023.[4] There being no written contract of employment or letter of appointment,[5] the Applicant worked pursuant to a roster published by the Respondent via an online rostering App known as Guardhouse (the rostering App).[6] The Applicant’s terms and conditions of employment were governed by the Security Services Industry Award 2020 (the Award).[7]

• The Applicant performed work at a range of sites, including the Department of Family Services in Richmond (the Richmond site) where MSS Security Pty Ltd (MSS) was the head contractor.[8]

• The Applicant was last rostered to work for the Respondent on 13 and 14 June 2023 at the Richmond site.[9] His shift on 13 June 2023 was cut short following an incident between the Applicant and Mr Meet, Control Room Operator for MSS.[10] The incident related to Mr Meet’s request that the Applicant provide his physical security license.

• The Applicant refused to produce his physical security license on the basis that he believed Mr Meet’s demeanour was ‘terrible’,[11] was without ‘respect’,[12] was not ‘professional’[13], and that he was not authorised to request his security license.

• Following the incident, the Applicant went to patrol the allocated area at the Richmond site with 3 other security officers.[14]

• On 13 June 2023 at 9.15am, an email was sent by Mr Meet to Mr Mayne and Ms Glover of MSS informing them of the incident involving the Applicant.[15]

• The Respondent was informed of the incident at 10.56am on 13 June 2023 via an email from Ms Glover. In that email correspondence, the Respondent requested the Applicant’s replacement from the site with another security guard.[16]

• On 13 June 2023 at 10.41am and 10.44am, the Applicant sent text messages to Kristina, Rostering Co-Ordinator of the Respondent asking if he is still ‘employed with the Security Hub’, advising her that he was ‘removed off site at Department of Families and shift cut short’ and told that he ‘would be getting no further shifts at MSS Sites at no fault of my own’. The Applicant also stated in that correspondence ‘I need to know if I am still an employee of the company and why this occurred. I await your reply’.[17]

• During further conversations with Kristina following the incident, the Applicant was advised that she would ‘fix the situation’ and ‘give him work elsewhere’.[18]

• On 13 June 2023 at 11.58am, the Applicant emailed the Respondent detailing his account of the events. [19]

• On 13 June 2023 at 12.12pm, Mr Rehlon of the Respondent emailed the Applicant informing him that ‘it is indeed important for security officers to carry their security licenses at all times while on duty. Failure to do so may result in disciplinary action or other consequences. If a site supervisor requests to see your security license, it is recommended to comply with their request promptly’... ‘unfortunately we will not be able to roster you at any MSS site due to not complying with site requirements’.[20]

• On 13 June 2023, the Applicant received a notification on the rostering App that his shift had been cut short.[21]

• On 13 June 2023 at 12.39pm, the Applicant wrote to the Respondent asking, ‘why other guards were not requested to produce their license in a professional manner’, for the Respondent to forward a ‘copy of the investigation report’, and ‘if I have been stood down, please advise reasons why I have been stood down’.[22] Further, the Applicant asked for confirmation as to whether he was still employed with the Respondent.[23]

• On 13 June 2023 at 10.15pm, the Applicant lodged an unfair dismissal application (UD application) with the FWC.[24] The Respondent was not copied into the UD application lodgement email.

• On 15 June 2023 at 10.34am, the Applicant sent an email to the Respondent asking for a copy of the investigation report regarding the incident at the Richmond site and other material related to the incident, including advice as to ‘my tenure at the company’.[25]

• On 15 June 2023 at 11.55am Mr Rehlon replied to the Applicant as follows:

“As requested by MSS we will not be able to roster you at Department of Families site, as you were not able to provide your security license on site, when requested. This is a prerequisite of working as a security officer at any site. If site supervisor or site manager requests you to show your security license, you have to show your security license, as you cannot work without having physical security license on you.

You are still employed by us, and will still be working at other sites, but I would highly request you to carry your security license with you at all times, and show your security license whenever it is requested by client”[26]

• On 15 June 2023 at 12.49pm, Mr Gupta of the Respondent attempted to call the Applicant but was unable to get hold of him.[27]

• On 15 June 2023 at 1.18pm, the Applicant filed a General Protections application with the FWC (GP application). The Applicant included the Respondent in the GP application lodgement email.[28]

• On 16 June 2023 at 3.41 pm the Respondent was notified by the Commission that an UD application had been lodged.

• On 20 June 2023 at 4.35pm, the Applicant discontinued his UD application by telephone to an administrative staff member of the Commission.

• The Applicant has not been rostered for any shifts with the Respondent since lodging his GP application.

Submissions

Respondent

1. The Respondent submits that the Applicant has not been dismissed. Essentially, the Respondent submits that it acted as expeditiously as possible to deal with the incident on 13 June 2023, particularly in light of the fact that it also needed to consult its client MSS throughout the process.[29]

1. Further, Mr Gupta gave oral evidence that the Applicant acted prematurely in making his Application and had ‘assumed that things were not moving along’[30] and that he was intent to take the matter to the FWC despite assurances from the Respondent that he had not been dismissed. In particular, he points to the email correspondence to the Applicant of 15 June 2023 confirming the Applicant’s status as an employee of the Respondent who is ‘still employed by us and will still be working at other sites’.[31]

1. Mr Gupta also stated that the Respondent had not offered the Applicant further shifts after he filed the general protections application because he did not think the Applicant would accept them and further, the matter was under Commission review, and he did not wish to ‘mess around’.[32] He stated that the Respondent was in the process of reviewing the incident and that the Applicant ‘assumed that he has been dismissed from the workplace, resisted, and seized (sic) contact with the business without providing an opportunity to discuss options’.[33]

Applicant

1. In essence, the Applicant submits that he was dismissed from his employment on 13 June 2023 when the Respondent removed him from the Richmond site prior to the expiration of his shift on 13 June 2023.

1. In support of this submission, the Applicant submits that the control room operator who requested to view his security licence on 13 June 2023 was not authorised to do so and that the manner in which he did so was was ‘terrible’,[34] was without ‘respect’,[35] and was not ‘professional’.[36] Further, the Applicant states that the control room operator said ‘I’ll fix you’.[37]

Consideration

1. Section 365 of the FW Act provides:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a)   a person has been dismissed; and

(b)   the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

1. Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact.[38] “Dismissal” for these purposes (and other purposes of the FW Act) is defined in section 386(1), which provides:

   “386 Meaning of dismissed

(1)A person has been dismissed if:

(a)   the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b)   the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

1. Having raised the jurisdictional objection, the Respondent bears the onus of establishing that the Applicant was not dismissed.

1. Section 386(1)(a) states that a person has been dismissed, for the purposes of the unfair dismissal provisions in Part 3-2 of the Act if the person’s employment has been terminated ‘on the employer’s initiative.’ There may be a dismissal pursuant to s 386 (1) (a) where the action of the employer is the principal contributing factor leading to the employment termination.[39] It is necessary for me to decide whether the Applicant was dismissed by the Respondent within the meaning of s 386(1)(a), there being no suggestion that the Applicant has resigned from his employment or that the present matter involves a forced resignation.

1. I have formed the view that the Applicant was not terminated on the employer’s initiative.

1. The Applicant contends that the principal factor that led to the termination of his employment was his removal from the Richmond site following the incident between him and Mr Meet on 13 June 2023.

1. At hearing, the Applicant accepted that he sought confirmation from the Respondent of his employment status prior to the making of the GP Application on 15 June 2023 and that the Respondent confirmed that he was still employed and would be offered further shifts. I accept that the Applicant was aggrieved and frustrated by the incident and the Respondent’s request that he leave the Richmond site prior to the conclusion of his rostered shift. That said, the bringing to the end of the Applicant’s placement at the MSS site does not in my view demonstrate that the Respondent brought the employment relationship to an end.  Nor does it demonstrate an intention to repudiate the contract of employment.  As to the latter finding, I observe that the parties have not executed a written contract of employment. On the material before me and based on my factual findings I conclude that an oral contract was formed by the Applicant and the Respondent, the terms of which were that the Applicant would perform work for the Respondent and would accept shifts allocated to him on a weekly basis via a rostering App, that he would work across a range of geographic sites on behalf of various clients and would be paid in accordance with  the terms of the Award. 

1. In coming to my conclusion, I accept Mr Gupta’s evidence that the Respondent acted efficiently in dealing with the incident and that it needed to consult MSS and conduct an investigation into the incident. In all the circumstances, it follows that I agree with the Respondent that the Applicant filed his application prematurely.

Was the Applicant’s employment terminated on the employer’s initiative?

1. In the circumstances, I find that the Applicant’s employment was not terminated on the initiative of the employer.

1. The casual nature of the Applicant’s employment does not alter this conclusion.

1. Finally, whilst it is not strictly relevant to the consideration before me, it is worth noting that prior to the matter adjourning Mr Gupta made an offer on the record to the Applicant in the following terms:

‘You know, again I would just like to add here, you know, whatever the Commissioner decides today or whenever she comes out with her, you know, determination, you are more than welcome to reach out to us and we are still happy to get you on board and get working, if that helps in any case or manner.  That's all, thank you’.[40]

1. The offer was rejected by the Applicant on the grounds that he had been hurt and had suffered mental distress, his relationships with his wife and children had been impacted and he was seeking a determination from the Commission.[41]

Conclusion

1. As the Applicant is not a person who has been dismissed, he is not entitled to apply under s 365 for the Commission to deal with a dismissal dispute. The application is therefore not made in accordance with this Act. The jurisdictional objection is upheld, and the application is dismissed.

COMMISSIONER

Appearances:

Mr Zyka, for the Applicant

Mr Gupta for the Respondent

Hearing details:
2023
6 September
Melbourne (by Microsoft Teams)

[1] [2020] FCAFC 152

[2] See Yi Zhang v Medlab Clinical Ltd[2021] FWCFB 2453 [1]

[3] Respondent’s Outline of Submissions at [1].

[4] Applicant’s Outline of Submissions at [9].

[5] Email from Applicant of 31 August 2023 at 6.07pm.

[6] Applicant’s Outline of Submissions at [11].

[7] Email from Respondent of 4 September 2023 at 10.19am.

[8] Respondent’s Outline of Submissions at [1].

[9] Email from Applicant of 31 August 2023 at 7.39pm.

[10] Respondent’s Outline of Submissions at [4].

[11] Transcript PN65.

[12] Transcript PN79.

[13] Transcript PN79.

[14] Transcript PN73.

[15] DCB at p.112.

[16] DCB at p.111.

[17] DCB at p.78.

[18] Applicant’s Outline of Submissions at [39].

[19] DCB at p.14.

[20] DCB at p.70.

[21] Applicant’s Outline of Submissions at [31].

[22] DCB at p.71.

[23] DCB at p.71.

[24] DCB at p.51.

[25] DCB at p.107.

[26] DCB at p.86.

[27] Respondent’s Outline of Submissions at [10].

[28] DCB at p.22.

[29] Transcript PN191.

[30] Transcript PN199.

[31] DCB at p.271.

[32] Transcript PN230.

[33] Respondent’s Outline of Submissions at [11].

[34] Transcript PN65.

[35] Transcript PN79.

[36] Transcript PN79.

[37] Transcript PN79.

[38] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54]

[39] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625, 62 IR 200 at 205, 206; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [50]; cf NSW Trains v Mr Todd James[2022] FWCFB 55; 316 IR 1 at [45] which concluded that s 386(1)(a) means termination of the employment relationship and/or the contract of employment. In this respect see Shane John Varichak v COG Regional Team Pty Ltd[2022] FWCFB 37 at [33].

[40] Transcript PN239.

[41] Transcript PN240.

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