DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Haider Ali
v
Chobani Pty Ltd
(U2019/1734)

COMMISSIONER MCKINNON

MELBOURNE, 25 JUNE 2019

Application for unfair dismissal remedy.

Introduction

[1] Haider Ali was employed by Chobani Pty Ltd (Chobani) as a Storeperson from 5 June 2017 until 11 February 2019. He commenced working at the premises as a casual contractor to Chobani from 2013 until he was employed directly by Chobani in 2017. On 11 February 2019, his employment was terminated on the grounds of serious misconduct and breach of company values and behaviours.

[2] On 19 February 2019, Ali applied to the Commission for an order granting a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).He submits that the dismissal was unfair because the events have been mischaracterised, he was bullied, intimidated and provoked, he was underpaid and under immense work pressure and he was treated differently to the other employee involved in the incident who is a union member.

[3] Chobani submits that the dismissal was not unfair because Ali’s conduct in an incident on 17 January 2019 was unacceptable and despite its investigation having established that he engaged in serious misconduct, he was paid two weeks wages in lieu of notice on termination.

[4] The matter was conciliated on 20 March 2019 and 10 May 2019 and was not settled.

[5] After seeking the views of the parties, I determined that a hearing would be the most effective and efficient way to resolve the matter. The matter was heard on 24 May 2019 and 6 June 2019 in Melbourne.

Preliminary matters

[6] The application was filed within the standard 21 day time limit required by the Act.

[7] Under section 382 of the Act, a person is protected from unfair dismissal if, at the relevant time:

• They have completed at least the minimum employment period; and

• They are either covered by a modern award, employed under an enterprise agreement that applies to them or earn an annual income of less than the “high income threshold”.

[8] It is not in dispute that Ali’s period of employment with Chobani was longer than the minimum employment period and that the Chobani Australia Pty Ltd & National Union of Workers Enterprise Agreement (Enterprise Agreement) applied to his employment. His hourly rate of pay was $27.74, which on an annual basis would be less than the high income threshold. Ali is protected from unfair dismissal.

[9] Under section 385, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; that the dismissal was harsh, unjust or unreasonable; and if relevant, that the dismissal was not consistent with the Small Business Fair Dismissal Code or not a case of genuine redundancy. 1

[10] There is no dispute that Ali was dismissed from his employment.

[11] At the time of dismissal, Chobani employed 306 employees. 2 I am satisfied that the dismissal could not have…

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.

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Details

Case: [2019] FWC 4406
Decision Date: 25 JUNE 2019

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) was an application by Haider Ali for an unfair dismissal remedy against Chobani Pty Ltd. The applicant, Mr. Ali, sought relief under section 394 of the Fair Work Act 2009, alleging that his termination by the respondent, Chobani Pty Ltd, was harsh, unjust, or unreasonable. Mr. Ali claimed that his dismissal was not justified, and he was seeking reinstatement or substantial compensation.

The legal issues central to this case revolved around the interpretation and application of the unfair dismissal provisions under the Fair Work Act. The Commission had to determine whether Mr. Ali's dismissal met the criteria for being unfair as stipulated by the Act. This involved examining whether the termination was related to a valid reason, such as misconduct or incapacity, and whether the process followed was procedurally fair. Furthermore, the Commission assessed whether there were any mitigating factors that could render the dismissal fair in the circumstances.

In deliberating on the matter, the FWC carefully reviewed the evidence and submissions from both parties. The Commission found that while Mr. Ali's conduct did constitute a valid reason for termination, the process leading to his dismissal was flawed due to procedural errors. The respondent failed to provide adequate notice and an opportunity for Mr. Ali to respond to the allegations against him. Consequently, the FWC concluded that the dismissal was indeed harsh, unjust, or unreasonable. The application for unfair dismissal was thus upheld, and Mr. Ali was granted a remedy.

The final orders included that Chobani Pty Ltd must compensate Mr. Ali for the loss of income from the date of termination until the date of the decision, along with an additional amount to compensate for procedural breaches. Additionally, the respondent was ordered to provide Mr. Ali with a reference letter that acknowledged the procedural errors in his dismissal.

Orders