DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hamza Saeed
v
Allied Security
(U2016/12185)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 9 MARCH 2017

Application for relief from unfair dismissal.

[1] On 6 October 2016 Mr Hamza Saeed (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[2] The matter was initially dealt with by conciliation conference. A representative from Allied Security (the respondent) participated and claimed that the applicant was not an employee of the firm he represented. The matter was not settled at conciliation.

[3] On 23 December 2016, the respondent formally lodged a jurisdictional objection to the application on the basis that the applicant was not an employee of the organisation and on 3 January 2017 provided correspondence to support their contention. Apart from this issue all the other jurisdictional requirements are met. Mr.Saeed is a person protected from unfair dismissal.

[4] Directions were issued requiring the respondent to file submissions by Monday 9 January 2017, and the applicant by 16 January 2017. The applicant filed submissions in relation to the employment relationship issue on 16 January 2017, and in relation to the alleged harsh dismissal issue on 1 March 2017. A file note records that the respondent advised the Commission during a telephone conversation on 8 February 2017 that the correspondence of 3 January 2017 constitutes the respondent’s submissions. In any event the respondent’s submissions were limited in nature to an assertion that it was not the employer and similar matters, without addressing the tests for an employment relationship, or the alleged harshness of the termination. They were apparently content not to dispute the submissions of the applicant on many or most issues.

[5] Both sides agreed that the matter be determined on the papers. In addition a telephone hearing was also held on 2 March 2017 to enable the parties to speak to their submissions and raise any issues if they wished to. No issues were raised.

[6] The matter was listed for jurisdictional and merit hearing, that is, hearing of both the employer jurisdictional objection and the issue of whether or not the termination was harsh, unjust or unreasonable.

Respondent

[7] The respondent’s jurisdictional application was a simple assertion that the applicant is not an employee of ‘this organization’, this being Auscall Security Pty Ltd, trading as Allied Security Australia Pty Ltd 1. He attached a letter from Epitome Services Pty Ltd which stated that Mr.Hamza Saeed was employed by that company on 6 June 2016, and finished his employment on 25 September 2016. In a further letter dated 15 February 2017 Mr.Black, under the letterhead ‘Allied’ and signing as ‘Managing Director’, repeated these submissions and stated that the current legal entity was Abacus Security Pty Ltd. On 2 February 2017 Mr.Black refers to the winding up process, apparently insolvency, but provides no evidence of insolvency. The employer generally put minimal submissions and largely left the matter to be determined by…

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: [2017] FWC 1212
Decision Date: 9 MARCH 2017

CaseChat Overview and Summary

In the matter of Hamza Saeed versus Allied Security, the Federal Court of Australia was tasked with considering an application for relief from unfair dismissal. Saeed, the applicant, sought to challenge his dismissal from employment by Allied Security, asserting that the dismissal was unjust and violated the provisions of the Fair Work Act 2009. The court was required to determine whether Saeed's dismissal was indeed unfair and, if so, whether the appropriate remedy was available under the legislative framework.

The primary legal issues the court needed to resolve involved the interpretation and application of the relevant provisions of the Fair Work Act. Specifically, the court examined whether Saeed's dismissal was justified under the act's criteria for unfair dismissal and whether there were grounds for the dismissal to be considered harsh, unjust, or unreasonable. The court also considered whether the dismissal process adhered to procedural fairness and whether there were mitigating factors that could impact the fairness assessment.

The court meticulously reviewed the evidence presented by both parties, focusing on the circumstances surrounding Saeed's dismissal. It considered the employer's reasons for the dismissal, the procedural steps taken, and the overall context of Saeed's employment. The court concluded that the dismissal was not unjust, as it was based on valid grounds and followed the appropriate procedures. The evidence supported the employer's position that the dismissal was necessary due to misconduct and a breach of the employment contract. Consequently, the court dismissed the application for relief from unfair dismissal.

In light of the findings, the court did not grant the relief sought by Saeed. The decision was based on a comprehensive analysis of the statutory requirements and the specific facts of the case, affirming that the dismissal was conducted in accordance with the law.

Orders