Hasan Iqbal Kazi v Sydney-South Welfare Centre

[2025] FWC 881

[2025] FWC 881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Hasan Iqbal Kazi
v

Sydney-South Welfare Centre

(U2024/7445)

DEPUTY PRESIDENT GRAYSON SYDNEY, 28 MARCH 2025

Application for relief from unfair dismissal – lawful and reasonable directions  – valid reason for dismissal – dismissal harsh

1. Mr. Hasan Iqbal Kazi (Mr. Kazi/Applicant) was engaged by Sydney-South Welfare Centre (Respondent) to work as an Imam. He is a Permanent Resident of South Africa.[1] After signing an employment contract and obtaining the requisite visa, sponsored by the Respondent, he commenced work with the Respondent in June 2021. This contract contained a term that it would be valid for a period of two years or ‘until terminated’.[2]

1. During his employment, the management of the Respondent descended into a period of turmoil. This included the passing of resolutions that suspended the Shura Council and appointed new ‘administrators’ of the Respondent, the termination of the life membership of some members of the Shura Council and removal of their access to the premises of the Respondent. Ultimately, some members of the Respondent commenced proceedings in the Supreme Court of New South Wales. As a result, orders were made by consent that, in part, had the effect of invalidating these resolutions and requiring steps to be taken to reinstate the previous Shura Council. During the intervening period, the ousted members were not involved in the operation of the Respondent. An Annual General Meeting (AGM) was held in November 2023. At that AGM certain resolutions were passed. These had the effect of reinstating some of the previous members to become office holders of the Respondent. Some members of the Respondent continue to dispute the lawfulness of those resolutions. It is against this turbulent backdrop that the ongoing employment and subsequent dismissal of Mr. Kazi played out.

1. Following the AGM, in or around April 2024, the Australian Charities and Not-for-profits Commission commenced a review of the Respondent’s approach to, amongst other things, ensuring that its responsible people and key management personnel were suitable, how it identified and managed risks and met its legal obligations relating to safeguarding people. As a result, the new President, Mr. AKM Fazlul Hoque, and the new Secretary, Mr. MD Jashim Uddin, repeatedly requested that Mr. Kazi provide his visa status, information regarding any visa renewal applications, his current contract, his Working with Children Check, his taxation and superannuation information and a copy of documents recording the dismissal of ‘his police case’. Mr. Kazi provided some of this information as requested.[3] Discussions and exchanges occurred between Mr. Kazi and Mr. Hoque and Mr. Uddin of the Respondent regarding this issue. The participants dispute the content of some of these discussions. What is clear though is that Mr. Kazi was being supported by some, but not all, members of the Shura Council of the Respondent and was distrustful of the new leadership of the Respondent.

1. Ultimately, Mr. Kazi did not provide a current contract, nor a copy of any visa renewal application or proof of his capacity to work past 21 June 2024, which was the expiry date of his visa[4] and he was dismissed by letter dated 6 June 2024 (Dismissal Letter). The letter was received on 7 June and recorded that Mr. Kazi was being dismissed because his current contract had expired and his services were no longer required (Dismissal). Although the letter then purported to provide Mr. Kazi with an opportunity to provide a justification as to why he should be allowed to continue to provide his services to the Respondent both parties accepted during these proceedings that the letter had the effect of terminating Mr. Kazi’s employment with immediate effect.

1. On 26 June 2024, Mr. Kazi made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed by the Respondent. The Applicant seeks reinstatement to his former position. In the alternative, the Applicant seeks an order for compensation.

1. At hearing the Respondent contended that the Dismissal Letter did not accurately reflect the reason for the dismissal, in that it only referred to the reason being that Mr. Kazi’s employment contract had expired. It contended that this was one of the reasons for the dismissal but that, in addition, the reasons for the dismissal were that Mr. Kazi had failed to provide evidence about his current employment contract and working rights post 21 June 2024 (in breach of his contract), that he had failed to comply with a lawful and reasonable direction to do so,[5] that the Respondent had received advice that they could not continue to employ him when he may not have a legal right to work and that, in any event, it had no intention of further sponsoring his visa. It contended that these were valid reasons for the dismissal. In the alternative, it argues that the conduct of Mr. Kazi covertly recording a meeting with Mr. Hoque (a matter that first came to light during the hearing of this matter) constituted a valid reason for his dismissal. It also contends that the dismissal was not otherwise harsh or procedurally unfair.

1. For the reasons that follow, I find that there was a valid reason for the dismissal. However, I consider that the dismissal was harsh.

Background, Evidence and Factual Findings

1. Mr. Kazi gave evidence on his own behalf and the following witnesses gave evidence on his behalf:

(a)Mr. ASM Ariful Haque; and,

(b)Mr. Wahidur Rahman.

1. The following statements were tendered into evidence by the Applicant:

(a)Witness statement of Mr. Hasan Iqbal Kazi dated 6 September 2024;

(b)Witness statement of Mr. ASM Ariful Haque dated 6 September 2024;

(c)Witness statement of Mr. Wahidur Rahman dated 6 September 2024;

(d)Witness statement in reply of Mr. Hasan Iqbal Kazi dated 9 October 2024;

(e)Witness statement in reply of Mr. ASM Ariful Haque dated 9 October 2024;

(f)A bundle of six documents in chief; and,

(g)A bundle of eleven documents in reply.

1. Mr. Hoque gave evidence on behalf of the Respondent. His statement dated 1 October 2024 and an exhibit to that statement were tendered into evidence. The Respondent also tendered documents including correspondence from the Respondent to the Applicant and minutes of the Respondent’s AGM held on 12 November 2023.

1. The factual background to the matter can be further summarised as follows.

1. The Applicant came to Australia in 2020. The Applicant’s relationship with the Respondent appears to have commenced in approximately December 2020 and on 23 December 2020 he signed a contract of employment to work as an Imam (the 2020 Contract). The 2020 Contract was executed on behalf of the Respondent by Mr. Alam Chowdhury, who provides the position of his authority on behalf of the Respondent as ‘President’ and Mr. Uddin as Secretary.

1. On 7 January 2021 the Applicant lodged an application for a subclass 408 visa which was sponsored by the Respondent. On 11 January 2021 the Applicant was granted a bridging visa while that application was reviewed. On 24 June 2021 the Applicant was granted a bridging visa with working rights and on 25 June 2021 the Applicant commenced working for the Respondent as a Religious Worker/Imam.

1. On 21 November 2022 the Applicant was granted a subclass 408 visa following an application by the Respondent which allowed Mr. Kazi to work until 21 June 2024.

1. Between 2022 and 2023 there was a dispute between members of the Shura Council which involved the attendance of police and the removal of some individuals from the Respondent’s premises. This became the subject of proceedings in the Supreme Court of New South Wales. The appointment and resulting validity of the actions of the management and individuals involved in the ongoing operations of the Respondent during this period including that of Mr. Haque were a matter of contest in these proceedings.

1. Mr. Kazi’s evidence was that Mr. Haque was appointed to the constitutional roles of President and Public Officer of the Respondent in December 2023 and began managing the matters of paying employees’ wages, hiring contractors, employing an Imam, conducting banking and providing reports to the police and council.

1. On Mr. Kazi’s evidence, in July 2023 and before the expiry of his visa, the ‘new management’ of the Respondent made an application for Mr. Kazi’s second subclass 408 visa. I note that on review of the balance of the evidence, it appears that Mr. Haque did not lodge a visa application at this time but, rather, lodged a labour agreement for assessment by the Department of Home Affairs, which would enable the Respondent to continue to sponsor the Applicant’s visa following its expiry on 21 June 2024.

1. Mr. Kazi gave evidence that on 1 July 2023 a new employment contract was signed by both Mr. Kazi and Mr. Haque (2023 Contract). Mr. Kazi contends that Mr. Haque was authorised to sign this contract on behalf of the Respondent. The Respondent contests the validity of Mr. Haque’s authority to execute the 2023 Contract and says that it first held a copy of the document on 21 June 2024. At all times during the period between the 2020 Contract and the Dismissal Mr. Kazi continued to work as an Imam and was paid by the Respondent for that work.

1. In or around 4 September 2023 the Supreme Court proceedings were resolved via consent order[6] that included:

(a)Purported resolutions made by the Shura Council on 14 September 2022, 25 November 2022 and 7 April 2023 were invalid and of no legal force or effect;[7]

(b)A number of individuals including Mr. Haque undertook (among other things):

i)Not to treat as valid, act on or enforce (or attempt to act upon or enforce) any of the purported resolutions; and,

ii)Not to act or represent themselves as entitled to act as ‘administrators’ of the Respondent;

iii)Not to represent to the Australian Charities & Not-for-Profit Association (sic), the Department of Fair Trading or the Commonwealth Bank of Australia that the purported resolutions were valid.

1. On or around 12 November 2023 an AGM was called and new members of the Shura Council were elected. Following the AGM Mr. Kazi was sent correspondence by the Respondent on 12 November 2023 which advised of the new office bearers including Mr. Hoque as President and Mr. Uddin as Secretary.[8]

1. In May 2024, the Respondent sent Mr. Kazi an email which requested copies of amongst other things, his employment contract, visa status, and Working with Children’s Check. Mr. Kazi provided a visa document cover page in response to this. Mr. Kazi was sent further emails in the following period which requested advice of his current visa status, information concerning pending or lodged visa applications, and other matters including confirmation that certain criminal charges against him had been dismissed. Mr. Kazi responded to some of these emails but did not provide evidence of his pending or lodged visa applications or documents establishing his visa status after 21 June 2024 or his employment contract.

1. Mr. Kazi’s evidence was that the Respondent’s requests for his visa did not make sense to him, and that he believed that the Respondent would already have the information to hand as it was the sponsor of his visa. Mr. Kazi’s evidence was that he received an unexpected text message from the President of the Respondent which indicated that the Respondent had hired a new Imam. A few days after this, he says that Mr. Hoque told him that the new committee of the Respondent did not recognise the visa application lodged ‘by the old committee’, because the new committee held a grudge against Mr. Haque.

1. On 19 May 2024, the Shura Council of the Respondent met and determined that the Respondent would revoke and cancel any unauthorised visa applications that may have been lodged and engage an immigration lawyer. The Respondent continued to make requests that Mr. Kazi provide his visa renewal documents. Mr. Kazi had already provided the cover page of his current visa which showed that his visa expired on 21 June 2024. Mr. Kazi did not provide any visa applications, nor any documents which detailed his visa status for the period following 21 June 2024.[9]

1. On 2 June 2024, the Shura Council of the Respondent held a meeting and passed a resolution that the Applicant’s employment sponsorship and visa would not be extended and that the Respondent would not recognise any decision regarding Mr. Kazi’s sponsorship made between 25 November 2022 to 30 August 2023.[10] Mr. Hoque gave evidence that the Respondent then obtained verbal legal advice that it could not continue to employ Mr. Kazi in breach of any working rights or visa conditions.

1. Mr. Hoque gave evidence, which I accept, that all the records of the Respondent were generally kept in a locked safe but that this safe was empty when he attended the offices of the Respondent shortly after 4 September 2023 and that the 2023 Contract was not located in the Respondent’s offices.

1. On 7 June 2024, by letter dated 6 June, the Respondent’s solicitors sent the Dismissal Letter. The letter referred to the 2020 Contract only, which it said commenced on 23 December 2020, was for a period of two years and stated that as the contract had expired, Mr. Kazi’s ‘services [were] no longer required’ by the Respondent. The Respondent says that it first became aware of the 2023 Contract on 21 June 2024 following its receipt of correspondence from Mr. Kazi’s legal representative.

1. On or around 31 May 2024 an application for a subclass 482 visa was lodged on behalf of the Applicant.[11] The records of the Department of Home Affairs state that the Respondent is the sponsor of the application.[12] The evidence of Mr. Hoque, which I accept, was that the Respondent had no knowledge of this application.[13] At hearing, Mr. Haque gave evidence that he paid for and organised this visa application.[14]

1. On or around 13 June 2024 Mr. Kazi was granted a bridging visa while the application for his subclass 482 visa was being processed.[15]

1. Mr. Kazi gave evidence that over the four years that he worked for the Respondent, he did not involve himself in, what he describes as, the party politics and continued to perform his duties as normal. Mr. Kazi said that he made sure that, as an Imam, everything that was happening was consistent with Islam and with the laws of the country. Mr. Kazi said that his refusal to take sides in relation to the dispute within the Shura Council was the true motivation for his treatment by the Respondent and ultimately his dismissal. Mr. Kazi also gave evidence that went to his duties during his employment with the Respondent as well as an alleged underpayment claim, the latter falling outside of the matters I am to consider in this application.

The Hearing and Legal Representation

1. There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.

1. After considering the views of Mr. Kazi and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (per s.399 of the Act).

Representation and conduct of hearing

1. Mr. Kazi and the Respondent sought to be represented before the Commission by a lawyer.

1. Relevantly, section 596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

1. Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a)    it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

(b)    it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c)    it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

1. The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the Act.[16] The decision to grant permission is a two-step process. First it must be determined whether one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[17]

1. On the question of representation, both parties submitted that permission to be represented ought to be granted on the following bases:

• It would enable the matter to be dealt with more efficiently given the matter’s complexity;

• The parties were unable to represent themselves effectively – in the case of Mr. Kazi, given his limited understanding of both legal processes and his legal rights, as well as Mr. Kazi’s lack of proficiency in English; and in the case of the Respondent, due to its lack of employed counsel or dedicated human resources personnel with sufficient skills to deal with matters before the Commission; and

• It would be fair to grant permission to be represented in circumstances where the other party was also represented.

1. Having considered the submissions, I formed a view that this matter does have significant factual and legal complexity for the reasons advanced by the parties. I determined that allowing the parties to be represented by a lawyer would enable the matter to be dealt with more efficiently taking into account the complexity of the matter and decided to exercise my discretion to grant permission for Mr. Kazi and the Respondent to be represented.

1. On the day of the hearing, Mr. Kazi was represented by Mr. Prithvi Chand, who sought to appear as ‘agent’ for Mr. Raj Bassan, Mr. Kazi’s representative on record. Mr. Chand had appeared at the case management conference conducted in the matter previously, although all correspondence regarding the matter for the duration of its conduct had been from Mr. Bassan’s office.

1. At the beginning of the hearing, Mr. Chand explained that Mr. Bassan was unable to attend for medical reasons and that Mr. Kazi had not been aware prior to the hearing that the Respondent was represented by a barrister. Mr. Chand sought an adjournment of the hearing to enable Mr. Kazi to instruct Counsel. Mr. Chand submitted that to proceed would create an unfair or uneven playing field given the matter’s complex evidentiary issues, the involvement of Counsel for the Respondent, and Mr. Chand’s comparative lack of experience in running hearings involving cross-examination and rules of evidence.

1. Following questions from the Commission, Mr. Chand confirmed that he was a Principal Solicitor in his own firm, not being familiar with advocacy or litigation, and had been of the understanding that the listing would be a determinative conference as opposed to a hearing subject to the rules of evidence. Mr. Chand also confirmed that he had been involved in the matter since the case management conference in which he had appeared, including in the preparation of evidence for filing in the matter,[18] but that he had been instructed to appear on the basis that the listing would proceed as a determinative conference.

1. The Respondent opposed the adjournment application. The Respondent said that the parties had been notified the previous week that the matter would proceed as a hearing, not a determinative conference and that, in any event, the parties ought to have prepared for that possibility and that the two formats were not necessarily different in terms of the preparation required (both involving the taking of witness evidence and cross-examination).[19] The Respondent also relied on s.596 of the Act making no distinction between representation by either Counsel or a solicitor (all being dealt with by the concept of permission to be represented) and that the kind of person representing a party under that section did not provide a basis for an adjournment.[20] The Respondent submitted that, when asked to appear the night before in circumstances where Mr. Chand did not feel prepared to do so, he ought to have declined – and that granting the adjournment application would be unfair on the Respondent who had been exposed to costs in order to attend the hearing ready to proceed on the day.[21] The Respondent also cavilled with the lack of detail on Mr. Bassan’s medical certificate and absence of other explanation for Mr. Bassan’s incapacity to attend the Commission on the day.

1. Ultimately, having considered the submissions of both parties, I refused to grant the adjournment application and the matter proceeded by way of determinative conference.

Submissions

1. Mr. Kazi filed submissions on 6 September 2024 and submissions in reply on 9 October 2024. The Respondent filed its submissions on 1 October 2024.

1. Following the substantive hearing on 16 October 2024, the parties returned for closing oral submissions on 24 October 2024.

Consideration

Initial matters

1. Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a)   whether the application was made within the period required in subsection 394(2);

(b)   whether the person was protected from unfair dismissal;

(c)   whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d)   whether the dismissal was a case of genuine redundancy.

1. There is no dispute between the parties and I am satisfied on the evidence that:

(a)Mr. Kazi’s application for unfair dismissal was made within the period required in s. 394(2) of the Act;

(b)Mr. Kazi was a person protected from unfair dismissal; and

(c)Mr. Kazi’s dismissal was not a genuine redundancy.

1. There was no dispute between the parties and I am satisfied on the evidence that the Respondent was a small business as defined at s. 23 of the Act and that the Small Business Fair Dismissal Code (Code) applied to him. Both the Applicant and the Respondent made submissions that the dismissal was not consistent with the Code. Having considered those submissions and the evidence, I find that the dismissal was not consistent with the Code.

1. Section 390 of the Act provides that the Commission may order a remedy if:

(a)    the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b)    the Applicant has been unfairly dismissed.

1. Both limbs must be satisfied. I have determined at [46] above that the Applicant was protected from unfair dismissal at the time of being dismissed. I must therefore turn to consider whether the Applicant has been unfairly dismissed.

1. Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a)    the person has been dismissed; and

(b)    the dismissal was harsh, unjust or unreasonable; and

(c)    the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)    the dismissal was not a case of genuine redundancy.

1. There was no dispute that Mr. Kazi had been dismissed. Having already determined that his dismissal was not consistent with the Code and not a case of genuine redundancy, I will turn to consider whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

1. Section 387 of the Act requires that I take into account each of the matters set out in s. 387 (a) to (h) in considering whether Mr. Kazi’s dismissal was harsh, unjust and/or unreasonable. Section 387 is as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a)    whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)    whether the person was notified of that reason; and

(c)    whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)    any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)    if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)     the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)    the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)    any other matters that the FWC considers relevant.

1. Each matter must be given appropriate weight having regard to the factual findings and taking into account the submissions of the parties. I address each of these matters in turn below.

1. In Byrne v Australian Airlines Ltd[22] McHugh and Gummow JJ considered the concepts of ‘harsh, unjust or unreasonable’ as follows:

… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of misconduct which the employee acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

Was there a valid reason for the dismissal of Mr. Kazi (s. 387(a))?

Submissions of the Applicant

1. Mr. Kazi submits that there was no valid reason for his termination. The Dismissal Letter relied upon the absence of a valid employment contract as the reason for the dismissal. Mr. Kazi maintains that the 2023 Contract was validly executed by Mr. Haque in his capacity as an office bearer and Public Officer of the Respondent per section 34(4) of the Associations Incorporation Act 2009 (NSW) (Associations Act), which it says provides that the acts of a public officer are valid despite any defect in his or her appointment. Further, Mr. Kazi says that the 2023 Contract was in force at the time of his termination and that the Respondent admits the 2023 Contract’s existence by relying on obligations by Mr. Kazi arising from that contract.

1. Notwithstanding any written contract, Mr. Kazi says that following the date on which the 2020 Contract is said by the Respondent to have expired (being 23 December 2022), the Respondent continued to pay Mr. Kazi’s salary, and he continued to perform work for the Respondent. Mr. Kazi maintains that the 2023 Contract was valid but that, in any event, an employment relationship by way of conduct existed between the parties and that the Respondent failed to provide any valid reason for his dismissal which related to his capacity or conduct.

1. Mr. Kazi denies that he failed to provide evidence of his visa status and working rights. He submits that the Respondent was aware of his right to work in Australia prior to his termination because the Respondent instructed legal representatives to file and obtain both the subclass 408 visa and any associated bridging visas and the Respondent sponsored the subclass 408 visas filed in January 2021 and 2022.

1. Mr. Kazi, in his written submissions, argued that in July 2023 the Respondent lodged a labour agreement with the Department of Home Affairs to enable it to continue to sponsor Mr. Kazi following the expiry of his visa. Mr. Kazi says that this indicates that the Respondent was aware of Mr. Kazi’s visa status as the application could not have been lodged without their authority. Further, Mr. Kazi submits that the Respondent had to have been aware of Mr. Kazi’s visa status because it corresponded with migration representatives regarding the grant of Mr. Kazi’s visa with working rights and because invoices in relation to this work were made out to the Respondent. Mr. Kazi says he could not have obtained his visa with working rights without the Respondent’s sponsorship.

1. Mr. Kazi submits that, notwithstanding that the Respondent’s record-keeping may have been disrupted due to conflicts with its internal management, it was not Mr. Kazi’s responsibility to resubmit his personal information in circumstances where the Respondent was the sponsor of his visa and ought to have administered a proper handover of its employee records or obtained them from Mr. Haque. Mr. Kazi submits that the Respondent could have performed a VEVO check[23] if it held concerns as to Mr. Kazi’s working rights and that these concerns should have been put to Mr. Kazi in writing once the VEVO check was performed. Mr. Kazi submits that his termination was unreasonable in circumstances where there was sufficient evidence that he did in fact hold the requisite working rights to be lawfully engaged by, and perform work for, the Respondent.

1. Mr. Kazi submits that he was confused as to whom he reported due to the Respondent’s internal governance disputes and the Respondent’s failure to provide clarity on this matter. He says that his termination was motivated by internal disputes within the Shura Council of the Respondent and that he was dismissed for not aligning with certain members of the Shura Council as opposed to any valid reason related to his visa status. Mr. Kazi submits that his termination was punishment for not supporting the political motivations of members of the Council.

1. Mr. Kazi says there is no record of any written requests by the Respondent requesting proof of Mr. Kazi’s visa status. I infer that this submission is referring to a failure to contact third parties or Government agencies to interrogate Mr. Kazi’s visa status. Mr. Kazi also submits that there were no formal requests by the Respondent to Mr. Kazi that he provide such documentation prior to termination or that explained the consequences of failing to do so. Mr. Kazi submits that failing to put him on such notice indicates that his dismissal lacked a genuine reason and that the stated reason was a pretext, confected to obscure the real purpose of his dismissal (being its connection to internal organisational politics).

Submissions of the Respondent

1. The Respondent submits that Mr. Kazi’s dismissal was not unfair. The Respondent concedes that the reason for the dismissal in the Dismissal Letter was that the Respondent no longer required Mr. Kazi’s services following the expiry of the 2020 Contract but that this was not the only reason for Mr. Kazi’s termination. Rather, the Respondent submits that the reason for dismissal was that in addition to the 2020 Contract having expired:

(a)He had failed to comply with the terms and conditions of his employment by refusing to, or failing to, provide evidence of his visa status/ working rights after 21 June 2024 and his current employment contract despite repeated requests to do so;

(b)The Respondent had received advice that they could not continue to employ Mr. Kazi in circumstances where he may not have working rights in Australia; and,

(c)The Respondent had no intention of sponsoring Mr. Kazi’s visa/s beyond 21 June 2024.

1. The Respondent’s submissions admit a distinction between what it refers to as the ‘first contract’ or the 2020 Contract and his ‘current employment contract’ or the 2023 Contract. The Respondent’s submissions indicate that there is a dispute between the parties as to whether the 2023 Contract was valid.

1. The Respondent submits that an employer is entitled and obliged to ensure its employees are legally entitled to work in the roles of their employment and the Respondent took reasonable steps to do so by requiring Mr. Kazi to provide evidence of his visa status. When Mr. Kazi failed to do so the Respondent could not be satisfied that he was entitled to work, and this failure constituted a breach of a specific term of his contract as well as a failure to comply with a lawful and reasonable direction. The Respondent says that this established a valid reason for Mr. Kazi’s dismissal.

1. During the hearing of these proceedings, it also became apparent that Mr. Kazi had recorded one of the conversations with Mr. Hoque that occurred on or around 15 May 2024.[24] Mr. Hoque gave evidence that he was shocked and upset to discover that the conversation had been recorded as he had previously been unaware of this, and that he lost trust in Mr. Kazi as a result.[25] It was submitted by the Respondent that this conduct also constituted a valid reason for the dismissal.

Consideration

1. In order to be a valid reason, the reason for the dismissal should be ‘sound, defensible or well founded’[26] and should not be ‘capricious, fanciful, spiteful or prejudiced’.[27] However, 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.[28]

1. In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred[29]. Where allegations of serious misconduct are made, the Briginshaw standard applies, meaning that findings that an employee engaged in the misconduct alleged are not lightly made[30]. The employer bears the evidentiary onus of proving that the conduct on which it relies took place[31].

1. The reasons relied upon for the dismissal of the Applicant have evolved over time, including during the course of these proceedings. As per the comments of the Full Bench in Newton v Toll Transport Pty Ltd (Newton):[32]

... In determining whether there was a valid reason for the dismissal the Commission is not confined to the reason advanced by the employer (either at the time of dismissal or during the course of the subsequent hearing). A valid reason for dismissal can be any valid reason underpinned by the evidence provided to the Commission.

1. As per the Full Bench (majority) reasoning in APS Group (Placements) Pty Ltd v Stephen O’Loughlin:[33]

Section 387(a) of the FW Act requires FWA to consider “whether there was a valid reason for the dismissal”. This language directs attention to whatever reason or reasons for dismissal emerge from the evidence and are relied upon by the employer. The tribunal is not confined to a consideration only of the reason or reasons given by the employer at the time of the dismissal. An employer is entitled at the hearing of an application for an unfair dismissal remedy to rely upon whatever reason(s) the employer wishes to rely upon at that time, albeit that in relation to any reason not relied upon at the time of dismissal the employer will have to contend with the consequences of not giving the employee an opportunity to respond to such reason (see s.387(b) and (c) of the FW Act).

Did the conduct occur?

1. Per the Full Bench in King v Freshmore (Vic) Pty Ltd:[34]

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.

1. I find that, as per Newton, the relevant test for whether a valid reason existed to dismiss an employee is objective, and that the Commission is not confined to considering only the reasons expressed by an employer to an employee at the time of his dismissal. In reaching my conclusions on this matter, I have considered the oral evidence and all filed material relied on by the parties.

1. The Respondent’s position at hearing (which was different to its position at the time of dismissal) was that it relied on the the 2020 Contract having expired and there being no valid contract in force. It also relied on the following conduct to constitute a valid reason for the Applicant’s dismissal:

(a)Failure to comply with the terms and conditions of his employment by refusing to, or failing to, provide evidence of his visa status and working rights after 21 June 2024 and his current employment contract despite repeated requests to do so

(b)The Respondent had received advice that they could not continue to employ Mr. Kazi in circumstances where he may not have working rights in Australia; and,

(c)The Respondent had no intention of sponsoring Mr. Kazi’s visa/s beyond 21 June 2024.

1. Following the determinative conference conducted on 16 October 2024 in these proceedings the Respondent also submitted that a further valid reason for the dismissal was the Applicant’s conduct in covertly recording conversations with Mr. Hoque of the Respondent.

Reason 1- The 2020 Contract had expired and there was no valid contract in force

1. It is plain that the 2020 Contract had reached the end of its maximum two-year term as at the time of the dismissal. I accept the evidence of Mr. Kazi and Mr. Haque that they had entered into the 2023 Contract on 1 July 2023, during the period where Mr. Haque and several other members of the Shura Council were conducting the affairs of the Respondent. This is supported by circumstantial evidence filed by the Applicant that demonstrated that a labour agreement (which I acknowledge is a different agreement) was prepared and lodged during the period May to July 2023.[35] I also accept the evidence of Mr. Hoque that, as of 1 June 2024, the Respondent had no knowledge that the 2023 Contract existed. The Respondent contends that, in any event, any decision made during the period September 2022 to August 2023, including to enter into the 2023 Contract, was invalid. Whether that contract was validly entered into, in compliance with the governing Constitution was a live issue in these proceedings, as was whether this act would be invalidated by the Supreme Court orders. Ultimately, both parties made submissions that I did not need to determine whether the 2023 Contract was valid. Indeed, the evidence and submissions before me does not allow me to determine whether the contract was validly made (including being made in compliance with the Respondent’s Constitution) or subsequently rendered invalid as a result of either the orders of the Supreme Court or the operation of the Associations Act.

1. In any event, even if the 2023 Contract was not legally binding on the parties as at the Dismissal Date I do not consider that ‘not having a valid contract of employment’, in circumstances where an initial contract had expired and an employer continued to have an employee perform work for them in exchange for payment would constitute a valid reason for dismissal, let alone for summary dismissal. A written contract of employment is not required for a functioning employment relationship to exist. Nor is it the responsibility of one party to ensure that a legally binding written employment contract exists. Self-evidently, entering into a contract requires both parties to reach agreement on terms (amongst other things). It cannot be sustained that the fact that Mr. Kazi and the Respondent had not entered into a valid written contract of employment, even if this is the case at law, would be the sole responsibility of the Applicant. Nor could it justify his dismissal. I do not consider that the conduct of the Applicant provided the Respondent with a sound, defensible or well-founded reason to dismiss Mr. Kazi.

Reason 2- refusal to provide evidence of his visa status/employment contract

1. As outlined above, the Respondent contends that it had a valid reason for the dismissal of Mr. Kazi as a result of his:

(a)Failure to comply with the terms and conditions of his employment by refusing to, or failing to, provide evidence of his visa status/working rights after 21 June 2024 and his current employment contract despite repeated requests to do so;

(b)The Respondent had received advice that they could not continue to employ Mr. Kazi in circumstances where he may not have working rights in Australia; and,

(c)The Respondent had no intention of sponsoring Mr. Kazi’s visa/s beyond 21 June 2024.

1. I will turn to consider the various requests or communications between Mr. Kazi and the Respondent to provide evidence of his visa status/working rights and his employment contract.

1. The common law position concerning employees’ duty to follow a lawful and reasonable direction given by their employer is summarised by Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday[36] (Darling) as follows:

Naturally enough the award adopted the standard or test by which the common law determines the lawfulness of a command or direction given by a master to a servant. If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.[37]

1. The evidence discloses that the Respondent repeatedly asked Mr. Kazi for evidence of his visa status and employment contract. However, these requests evolved over time and developed an emphasis on the provision of documents which established Mr. Kazi’s visa status.

1. The Respondent has submitted in these proceedings that it is entitled and obliged to ensure that its employees are legally entitled to work in the roles in which they are employed. When Mr. Kazi failed to provide evidence of his visa, the Respondent says it could not be satisfied that he was legally entitled to work.

1. I consider that the directions issued by the Respondent as detailed below in [84] to [113] fell within the scope or subject matter of Mr. Kazi’s employment. In addition, and put simply, it was reasonable for the Respondent to seek a copy of his current contract of employment (in circumstances where it did not hold it). It was also entirely reasonable for the Respondent to interrogate Mr. Kazi’s working rights and whether it could legally continue to employ Mr. Kazi after 21 June 2024, should it decide to continue his employment. There is no suggestion that such directions were unlawful and I am not aware of any basis to conclude that they were.

1. I have reached this conclusion irrespective of whether the 2020 Contract or 2023 Contract or no written contract was in operation at the time of Mr. Kazi’s dismissal. The 2020 Contract had an express provision that required Mr. Kazi to provide authorised or certified copies of his Australian work visa.[38] The 2023 Contract did not. In any event, the communications from the Respondent were directive in nature and, for the reasons identified above and expanded on below, I find them to be lawful and reasonable directions.

1. I now turn to deal with each of the directions made by the Respondent.

9 May Direction

1. On 9 May 2024 Mr. Hoque of the Respondent wrote to Mr. Kazi. The 9 May 2024 email from Mr. Hoque to Mr. Kazi made clear the reason for his request, being that he had been called by an authority for a ‘function and compliance’ interview. It asked for the provision of the following ‘ASAP’ and by no later than 13 May 2024:

(a)Mr. Kazi’s existing contract with the Respondent;

(b)Mr. Kazi’s current visa status;

(c)Mr. Kazi’s children check;

(d)A copy of the dismissal of Mr. Kazi’s police case; and,

(e)Mr. Kazi’s TFN and super fund information.

1. This correspondence also asked that Mr. Kazi keep the matter confidential and not discussion the ‘function and compliance’ interview with anyone.

1. It is not contested that on 14 May 2024 Mr. Kazi sent the Respondent a copy of the cover page of his visa grant via text message. This recorded that Mr. Kazi’s subclass 408 visa was due to expire on 21 June 2024. The body of that text message is not in evidence before me. Mr. Kazi also gave evidence that he had provided the documentation referred to at (c) to (e) above,[39] and there is no submission that the Applicant did not comply with the requests to provide those documents.

1. I find that on the balance of probabilities and according to the Briginshaw standard that Mr. Kazi did not provide a copy of his employment contract as requested at (a) in the Respondent’s email. Mr. Kazi conceded that he had a copy of the contract available to him in his emails when requested to provide it and that he could have provided it to the Respondent at this time.[40]

1. In circumstances where Mr. Kazi admits to having had access to the 2023 Contract at all times and, accordingly, as at the time of the direction on 9 May 2024, I consider that his failure to do so represented a failure to comply with a lawful and reasonable direction.

1. However, Mr. Kazi’s conduct regarding the request to provide his visa documents at this time has a different character. I do not consider that the 9 May email made it clear that the Respondent was seeking a copy of Mr. Kazi’s visa to work after 21 June 2021. The email uses the language ‘your current visa status’ [my emphasis]. By sending the text message attaching the first page of his visa on 14 May 2024 I consider that Mr. Kazi complied with that direction, albeit one day later than directed. It follows that I do not consider that, in this instance, Mr. Kazi failed to comply with a lawful and reasonable direction nor that his conduct in providing only the first page of his current visa constituted a valid reason for his dismissal.

14 May Direction

1. On 14 May 2024 the Respondent sent Mr. Kazi an email acknowledging that some documents had been provided and reiterating the request for the documents at (b) and (d) which it said that it had still not received. It asked for these documents to be provided the same day.

1. Following this email, on or around 15 May 2024, Mr. Kazi met with Mr. Hoque of the Respondent on numerous occasions.

1. The main factual contest in this matter revolved around the conversations between Mr. Kazi and Mr. Hoque which occurred on or around 15 May 2024. I found Mr. Kazi to be the most credible and reliable witness to these conversations. Mr. Kazi had a good and detailed recollection of these conversations including what was said and the order of events in the conversations. These are set out at length in his reply statement filed on 9 October 2024.[41] He answered questions put to him about these conversations in a clear and consistent manner. Although I accept that Mr. Hoque was doing his best to tell the truth, he admitted that his recollection was ‘light’ and he could not provide real specifics of the conversations other than some blanket denials which included that he had not told Mr. Kazi that the Respondent had a grudge against Mr. Haque or was trying to ‘catch him in a problem’.[42] I consider that his memory was unreliable in relation to the conversations of 15 May 2024. I therefore prefer the evidence of Mr. Kazi to Mr. Hoque regarding these conversations where there is inconsistency between their evidence.

1. I therefore find on the balance of probabilities and having regard to the Briginshaw standard that the conversations between Mr. Kazi and Mr. Hoque that occurred on or around 15 May 2024 were as described in Mr. Kazi’s oral evidence and at paragraphs [4] – [14] of Mr. Kazi’s reply statement filed on 9 October 2024.

1. Mr. Kazi gave evidence in these proceedings that Mr. Hoque asked him for his visa reference number and employment contract and said to him words to the effect of:

Our brothers have a serious grudge against Mr. Ariful Haque. We cannot allow his paperwork to go through. You will have to cooperate with us and we will help you with a visa.

…
We checked , and we know that Mr. A.S.M Ariful Haque and Jawshim Bahi had your visa copy copy, but they did not report any of your work to the ATO every three months, as required.

1. Mr. Kazi also gave evidence that he and Mr. Hoque discussed why they were requesting his visa documents when the Respondent was handling the visa process. Mr. Hoque stated that the Shura Council did not recognise the work of Mr. Haque and intended to fight this issue, including his handling of Mr. Kazi’s visa. He said words to the effect of:

The Council invalidated all of Mr. A.S.M Ariful Haque’s work after we returned in September, including this visa issue. We passed resolutions against him, and we are determined to pursue this matter.

1. In response Mr. Kazi express his frustration, saying words to the effect of:

It’s unfair that I am suffering because of your dispute with Mr. A.S.M Ariful Haque. I won’t participate in this unethical conduct, yet you are accusing me of non-cooperation.

1. Following these discussions, Mr. Kazi and Mr. Hoque met again. Mr. Kazi gave evidence, which I accept, that Mr. Hoque offered to help Mr. Kazi apply for another visa whilst also insisting that Mr. Kazi revoke his current visa. His evidence was that Mr. Hoque said that the Respondent would take Mr. Kazi to a different immigration agent to apply for a new one.

1. I conclude from these conversations that:

(a)Mr. Hoque and Mr. Kazi were exchanging information about the Applicant’s visa status post 21 June 2024;

(b)Mr. Hoque was aware that Mr. Haque had applied for a visa on behalf of the Respondent for Mr. Kazi. This is demonstrated by the language ‘We cannot allow his paperwork to go through’ and the request to revoke his application (noting that at this point in time it would appear that only the first stage of this process- applying for a labour agreement had been finalised);

(c)The visa had not yet been approved; and

(d)Mr. Hoque was willing to continue Mr. Kazi’s employment provided that he revoked the visa application that Mr. Haque had supported. This is consistent with Mr. Hoque’s evidence.[43]

1. I also find that Mr. Hoque did make statements that demonstrated that members of the Shura Council had a serious grudge against Mr. Haque. Mr. Kazi was asked to cooperate with the current management of the Shura Council including by revoking his current visa application, which had been made with the support of Mr. Haque. I consider that it was reasonable for Mr. Kazi to assume that there were political motives at play which were leading to the request for visa documentation.

1. He also considered that the Respondent should have these documents as the Respondent was his sponsor.[44]

1. . On the balance of probabilities and according to the Briginshaw standard, I find that Mr. Kazi did not provide his employment contract. At this time, various steps had been undertaken in the visa process but Mr. Kazi had not applied for a new visa and did not hold a copy of the visa documents that the Respondent was asking for, but he provided the information he had. It follows from these findings that I consider that the Applicant did comply with the direction to provide his ‘current visa document’. He provided the only document that he had at that time. The Respondent was aware that he had an application for a new visa, organised with Mr. Haque’s involvement, on foot. It is clear that at that point in time that visa had not been approved and, accordingly, Mr. Kazi could not provide any visa document that allowed him to work in Australia after 21 June 2024. I do not consider that the Respondent had a valid reason for terminating the employment of Mr. Kazi arising from his conduct in responding to the 14 May email in relation to the request to provide visa documents. However, and for the reasons I have set out at [88] above, Mr. Kazi’s failure to provide his employment contract at this time represented a failure to comply with a lawful and reasonable direction.

18 May Communications and Shura Council Meeting of 19 May 2024

1. On 18 May 2024 Mr. Hoque sent a further email to the Applicant enquiring as to whether the 2020 Contract had expired and enquiring whether he wanted the issue of his visa status to be brought up at the next committee meeting. This email was as follows (reproduced as written):

   Assalamualaikum
   Im writing this email out of my concern & responsibility. Tomorrow we have shura council meeting. This might be the last meeting i will be present before going overseas. Should i raised your visa renewal matter in the meeting as it going to expired next month? Also my understanding the contract that we had its out of date.
   Please advise me by tomorrow sunday 12pm .
   If i dont hear anything from you i will not bring this matter to the meeting.
   All information that you share with me privately will be kept confidential.
   Thanks
   Akm Fazlul Hoque

1. On 18 May 2024 the Applicant responded to this email saying:

please for now I say don’t bring anything in the meeting about my visa
Hopefully we would my visa very soon
If they do ask say the truth is I do have a visa
2 About the contract we can just add the new dates and see the contract I
haven’t seen it for long that’s why
Once you get back from overseas I am sure you will be more relaxed and will
have more time we can do my things properly

1. I have considered the terms of this email exchange, which occurred shortly after the meetings on or around 15 May 2024. Mr. Hoque’s email clearly states that any response will be confidential and that if he did not hear anything he would not bring it to the meeting.

1. Three things can be said about this email- it demonstrates that Mr. Hoque had at least some knowledge that there was a visa renewal process underway, consistent with my findings above. It also expressly allowed Mr. Kazi the option to respond or not, regarding his ‘visa renewal’ (my emphasis) and the contract of employment. It also does not direct Mr. Kazi to provide the 2023 Contract – it refers to Mr. Hoque’s understanding that the previous contract had expired. The email cannot represent a lawful and reasonable direction to Mr. Kazi because it contains observations or statements rather than requests or directions.

1. Accordingly, even if Mr. Kazi had not responded to this communication, I would not find that he had failed to respond to a lawful and reasonable direction to provide evidence of his visa status and working rights after 21 June 2024 or to provide his 2023 Contract.

1. In any event, Mr. Kazi did respond to the correspondence to the extent that it referred to his visa renewal. He had already provided evidence on 14 May 2024 that he had a visa that allowed him to work until 21 June 2024. He then communicated to the Respondent by email on 18 May 2024 that ‘Hopefully we would (have) my visa very soon. If they do ask say the truth is I do have a visa’. This was accurate at the time. He did have a current visa; he had provided evidence of this, and he understood that the visa application was in train and was hoping to have a new visa very soon.

1. Mr. Kazi’s confusion regarding the 2023 Contract is apparent in this exchange. I acknowledge that it was not until after the dismissal that the 2023 Contract was provided to the Respondent. I have already made findings that Mr. Kazi’s failure to provide his contract represented a failure to comply with the lawful and reasonable directions to do so on 9 May 2024 and 14 May 2024.

1. Mr. Hoque replied on 18 May 2024 expressing his thanks for the reply and stating that he would ‘do accordingly’. I infer that this meant that he would not raise Mr. Kazi’s visa renewal issue of Mr. Kazi with the Shura Council. He did not express any dissatisfaction with Mr. Kazi’s response.

1. I consider that the minutes of the meeting of the Shura Council of 19 May 2024 support the conclusion that Mr. Kazi had conveyed to Mr. Hoque that a visa renewal was in progress. Those minutes include the following (written as recorded):

If Any unauthorised visa Application were to be found for any Imams which is not authorised by the Current management, will be withdrawn Imidiately.
Any visa Application has been Lodged without the approval of SC proper meeting will be cancelled immidiately.
Immigration Lawyer will be engaged.

1. As at the time of his dismissal I understand that Mr. Kazi was the only Imam whose visa application the Council would have considered to be unauthorised and accordingly I infer that this resolution was regarding Mr. Kazi. I consider that it demonstrates that the Shura Council of the Respondent knew or suspected that Mr. Kazi had a visa application on foot that Mr. Haque had supported on behalf of the Respondent.

19 May and 31 May Directions

1. It would appear that Mr. Hoque then went on leave. On Sunday 19 May 2024 at 11.57 pm Mr. Uddin wrote to Mr. Kazi to the following effect (written as recorded):

Insha’Allah this reaches you in the best of health and Iman.
As you know recently we had meeting with ACNC. and today we have Shurah council meeting where we discussed reviewing all our employees
contact and their visa for legal regulatory purposes.
It came to our notice that your visa document is not updated to us.
So please can you send me your current visa copy and also update me is there any pending immigration visa application or not by Wednesday
22nd May 2024.
I look forward to hearing back from you soon.
Yours sincerely,
Md Jashim Uddin,
Secretary,
Sydney south welfare centre

1. This email evidences the evolving focus of the Respondent’s directions to Mr. Kazi. It makes no mention of any matters other than Mr. Kazi’s visa status and refers only to documents evidencing any applications, lodged or pending.

1. On 31 May 2024 at 11.41 pm Mr. Uddin again wrote to Mr. Kazi to the following effect (written as recorded):

Dear Hasan Qazi,

Assalamu Alaykum, Thanks for providing your visa copy which we had lodged for you and suppose to finish on 21 June 2024, however I haven’t received any information
about your pending or lodged visa application information which I have requested on 19th May 2024 and suppose to provide me by 22 May 2024. Also as our record shows
that your two years contract with us which we signed on 20th December 2020, has expired on 20^th December 2022. Currently we don’t have any contract with you.

We having shurah council meeting on 2 June 2024 at 2:00 pm.

To make decision to sit with you for meeting, we need to have following information asap before our Shurah council meeting:

1. Copy of your New contract or extension of contract if there is any

2. All details of your pending or lodged visa application information including category and details of sponsor if there is.
I hope you’ll cooperate with us in those matters, I look forward to hearing back from you soon.

WasSalam,
          Md Jashim Uddin

1. The following day on Saturday 1 June 2024 at 3.31 pm Mr. Kazi responded to Mr. Uddin (written as recorded):

Wailkumsalam

Dear Br Jashim,
I appreciate your concerns regarding the status of my employment contract and Australian visa with
work rights.

I am confirming to you that I have a valid and current employment contract duly executed by SSWC
and my slef.
Also, rest assured that I maintain a current and valid Australian Visa with work rights.
I’m aware that there is an ongoing dispute in SSWC management, due to which you might not have
access to information, but that mustn’t have any bearing on my
employment status.
I hope this clarifies the matter well. Thanks

Kazi Hasan

1. On the balance of probabilities and according to the Briginshaw standard, I find that Mr. Kazi did not provide a copy of the 2023 Contract although he assured the Respondent in his 1 June email that he had one. He also did not provide details of his pending or lodged visa application information including the visa category and details of the sponsor in response to the 31 May and 1 June emails. I have already determined that Mr. Kazi’s failure to provide his employment contract in response to the 9 May 2024 and 14 May 2024 emails was a failure to comply with a lawful and reasonable direction. I also make the finding that Mr. Kazi’s failure to provide the contract in response to the 31 May 2024 email was also a failure to comply with a lawful and reasonable direction.

1. In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee’s conduct.[45] 

1. Mr. Kazi gave evidence that he did not provide the requested documents for two broad reasons- firstly, because he considered that the Respondent ought to have access to his documents, which he understood to have been kept in the Respondent’s office,[46] and secondly because he was suspicious about what had been going on in the community.[47] Relevantly to this second consideration, Mr. Kazi gave evidence that Mr. Haque had previously warned him not to provide any such documents to anyone ‘until the management is in order’.[48] Mr. Kazi gave evidence that Mr. Haque said words to the following effect:[49]

Don’t give your contract or your reference number to anybody until the management is in order, because maybe one party tried to use your documents to create more problems…. If anybody asks you for any documents from the masjid or your legal or your immigration, don’t inform to anybody. If anybody from SSWC asks for any documents, refer to the secretary. They can access it from me.

1. The Respondent’s evidentiary position, which I accept per the evidence of Mr. Hoque, was that the records (including the employment contracts) held by the Respondent that had been kept in a locked safe were no longer in that safe when Mr. Hoque attended the premises of the Respondent shortly after the Supreme Court orders were made. Mr. Hoque gave evidence that he asked Mr. Haque for copies of ‘all the documents’ and that Mr. Hoque did not provide them. However, Mr. Hoque’s evidence on this point was vague and I consider, taken at its highest, that any request put to Mr. Haque was general and occurred shortly after the resolution of the Supreme Court proceedings.[50] There is no evidence that Mr. Haque was approached to ask for copies of the documents sought by the Respondent in the period leading up to Mr. Kazi’s dismissal.

1. With this being said, the fact that the Respondent did not approach Mr. Haque in order to specifically seek Mr. Kazi’s employment documents does not relieve Mr. Kazi of the obligation which arose from the lawful and reasonable direction to him to provide his employment contract. I consider that Mr. Kazi had no reasonable excuse not to comply with this direction. In reaching this conclusion I have considered Mr. Kazi’s concerns regarding the politically charged environment and Mr. Kazi’s submissions that, effectively, he did not know who was in charge of the Respondent and who he should be dealing with in management of the Respondent. I deal with these submissions further below.

1. Turning then to the visa issue, I have had regard to the evidence and submissions of the parties. Based on this I understand that the process for obtaining a 482 visa is that the employer applies for the ability to sponsor an applicant. The employer files that application with the Department of Home Affairs (DHA) and submits a labour agreement. Once the DHA approves that agreement, then the employer can sponsor an employee. After this occurs then the employee submits their application for a 482 visa.[51] Mr. Kazi gave evidence that Mr. Haque did the labour agreement and the nomination and then Mr. Kazi applied for the visa by instructing a lawyer to make the application[52]. Mr. Kazi also gave evidence that he did not see the nomination form but was told by the lawyer that it had been approved.[53] It appears that a migration agent lodged the application on Mr. Kazi’s behalf on 31 May 2024.[54] The evidence before me does not establish whether Mr. Kazi also received a copy of the receipt letter sent to the migration agent which confirmed that this application had been made. However, given that the final stage of the process was at the instigation of Mr. Kazi and that he had met with the lawyer and instructed him to apply for the visa I am satisfied that Mr. Kazi knew that an application had been made as at this time. In my view, Mr. Kazi either had the relevant application or could have obtained the documentary evidence of his visa renewal application to provide to the Respondent, on or after 31 May 2024. On the balance of probabilities and according to the Briginshaw standard, I find that Mr. Kazi did not provide the evidence of his visa as requested. It follows that Mr. Kazi failed to comply with a lawful and reasonable direction to provide evidence as to whether he could be lawfully employed after 21 June 2024.

1. I have already found that Mr. Kazi made Mr. Hoque (and accordingly the Respondent) aware that he held a visa and had made an application for a new visa. Mr. Kazi gave evidence that he told Mr. Hoque that he was worried that if he provided the information, it might be used against him, and invited Mr. Hoque to either approach Mr. Haque directly for the information requested by the Respondent,[55] or that the Respondent seek the information themselves by accessing the Respondent’s emails or their office.[56] There is no evidence before me that this occurred.

1. I have considered the evidence of Mr. Kazi and Mr. Hoque regarding their conversations on 15 May 2024. I accept that Mr. Kazi was wary of the motives of the Respondent in providing his visa information and his employment contract. At one stage in time, he may have believed that he did not need to provide the information requested to the Respondent, as they already had access to it.

1. However, I do not accept Mr. Kazi’s evidence that he did not know who was in charge of the Respondent. I find that on and from 12 November 2024 he was aware that the Respondent was being managed by Mr. Hoque and Mr. Uddin. Mr. Haque told Mr. Kazi, and Mr. Kazi had accepted, that the election of Mr. Hoque and Mr. Uddin had not come through the Respondent’s constitution and the Quran. Mr. Kazi said that he told Mr. Hoque that Mr. Haque contested the validity of Mr. Hoque’s election to his position.[57] However, Mr. Kazi also accepted that nothing had happened since (either by way of vote or court proceedings) which had the effect of removing either Mr. Uddin or Mr. Hoque from their positions in office, and accordingly they were still in charge as at the time they issued directions to him.[58] In truth, Mr. Kazi admitted that the reason he had taken Mr. Haque’s word as to the contested nature or purported invalidity of the appointments was because Mr. Haque had been in charge of his paperwork.[59] In any event, it was not reasonable for Mr. Kazi to pick and choose what he provided to the Respondent in response to their directions. He was willing to provide the new management of the Respondent his Working with Children Check, financial information and information regarding the dismissal of criminal charges against him. In my view, this demonstrates that he was aware who was in charge of the Respondent and that he was obliged to engage with them.

1. I consider that the main reason that Mr. Kazi did not provide his visa details- was, plainly put, because he was concerned that the Respondent would withdraw his visa application if he disclosed its details, and to a lesser extent, because he was concerned about the ongoing issues between the members of the Shura Council. I think it is possible that Mr. Kazi feared retribution from members of the Shura Council, whether he provided the information to the Respondent or not. Whatever his reason for doing so, by failing to provide the information sought by the Respondent following 31 May 2024, Mr. Kazi failed to comply with a lawful and reasonable direction.

1. Whilst I accept that Mr. Kazi found himself within a highly charged political situation following a period of turmoil I do not consider that this absolved him of the duty to follow lawful and reasonable directions to communicate with the Respondent about his visa status or provided a reasonable explanation or excuse for his failure to comply. Whilst I understand that Mr. Kazi was distrustful of the motives of Mr. Hoque and the rest of the Shura Council, in part as a result of Mr. Hoque’s statements in May to the effect that they had a grudge against Mr. Haque, he had been told that the Respondent was under new management in November 2023. He continued to meet with Mr. Hoque and correspond with him and Mr. Uddin regarding his employment – he just unreasonably elected not to provide them with all of the requested information.

1. Accordingly, I consider that the following conduct by Mr. Kazi provided a valid reason for the Respondent to dismiss the Applicant:

(a)Failure to provide evidence of his visa status following the 19 May and 31 May directions; and,

(b)Failure to provide the 2023 Contract when requested to do so on 9 May 2024, 14 May 2024 and 31 May 2024.

1. On the bases identified in [127], I consider that the Respondent had a sound, defensible or well-founded reason to terminate Mr. Kazi’s employment as a result of his conduct.

1. That said, this did not mean that the Respondent had to dismiss the Applicant several weeks before 21 June and does not automatically indicate that his summary dismissal was justified. In circumstances where the Respondent accepts that there was a real question as to whether at least some of the alleged misconduct could properly be characterised as serious misconduct, the question of whether summary dismissal was disproportionate to the misconduct is a matter properly dealt with in considerations of harshness at s.387(h) of the Act,[60] as is the issue of the Respondent’s decision to dismiss Mr. Kazi a number of weeks prior to the expiry of his visa.

Reason 3- Covert Recording/s

1. At the hearing of this matter, Mr. Kazi gave evidence that he had recorded one meeting with Mr. Hoque. On the balance of probabilities and according to the Briginshaw standard, I find that Mr. Kazi did make this recording.

1. The Respondent submitted that it was not aware of this at the time of this dismissal and argued that this was a further valid reason for the dismissal as those recordings had been recorded without Mr. Hoque’s knowledge or consent. Mr. Hoque gave evidence that he was shocked and upset to discover that the conversation had been recorded as he had previously been unaware of this, and that he lost trust in Mr. Kazi as a result.[61] The Respondent drew my attention to a recent decision of his Honour Deputy President Saunders, Altham-Wooding v PKDKAdventures Pty Ltd,[62] by way of example, where the factual matrix was said to be apposite, in that a covert recording came to light during the proceedings. [63]

1. In my view, absent a justification, the covert recording of meetings or exchanges in the workplace is highly improper. Such a recording may have constituted an offence under the Surveillance Devices Act 2007 (NSW),[64] which prohibits a person from recording a private conversation to which the person is a party, absent consent of all parties or where it is, amongst other things, reasonably necessary for the protection of the lawful interests of the recording party.

1. Mr. Kazi’s covert recording of Mr. Haque was inappropriate. As was found in Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions,[65] recording conversations without the consent of another party is contrary to the duty of good faith or fidelity to an employer and the mutual trust and confidence required in an employment relationship.[66] The Commission has found that covert recordings of conversations in the workplace is highly inappropriate, whether or not it constitutes an offence in the relevant jurisdiction, per Gadzikwa v Australian Government Department of Human Services [67] and Roman v Mercy Hospitals Victoria Ltd.[68] However, as Deputy President Masson observed in Yu v Crown Resorts Limited (Yu),[69] the question of whether an employee engaging in covert recording establishes a valid reason for their dismissal requires a consideration of the circumstances in which it occurred.

1. Mr. Kazi did not seek to rely upon the recording itself in these proceedings. Mr. Kazi gave evidence that he recorded the last of three meetings which occurred on or around 15 May 2024. Mr. Kazi gave evidence that he decided to record this conversation based on what Mr. Hoque had said to him previously, which Mr. Kazi said made him feel suspicious that Mr. Hoque intended to use Mr. Kazi as leverage in an agenda against Mr. Haque.

1. Whilst I consider that Mr. Kazi making this recording was inappropriate it was done within the context of a fraught politically charged environment where Mr. Kazi was on edge about his treatment and his future. He considered that he was being threatened and was being treated ‘as a soccer ball’ in a political game involving members of the Shura Council.[70] This was based, in part, on things that both Mr. Hoque and Mr. Haque had said to him. As considered in Yu, whether a covert recording is a valid reason for dismissal requires consideration of the facts. Having taken into account all of the facts and submissions as to the circumstances in which Mr. Kazi made the covert recording, I do not consider that this conduct gave the Respondent a sound, defensible or well-founded reason to terminate his employment.

Was there a valid reason for the dismissal of Mr. Kazi?

1. By reason of Mr. Kazi’s conduct (as found above on the balance of probabilities and to the Briginshaw standard), I am satisfied that the Respondent had a sound, defensible and well-founded reason to dismiss Mr. Kazi. I am therefore satisfied that the Respondent had a valid reason to dismiss Mr. Kazi related to his conduct. This weighs against a finding that the dismissal was unfair.

Notification of reason (s 387(b)) and Opportunity to respond (s 387(c))

1. Mr. Kazi submits that he was not notified of the reason for his dismissal prior to it being effected nor provided any opportunity to respond to the reason for his dismissal. Mr. Kazi submits that the Respondent’s failure to notify him of the additional reasons for his termination (that is, those in addition to the fact that the 2020 Contract had expired) as outlined at [62](a) – (c) above further establishes its unfairness pursuant to s.387(b) of the Act.

1. Mr. Kazi says that the Respondent admits that it gave him no opportunity to respond to the reason for his termination and that it accepts that the Dismissal Letter, despite purporting to provide 14 days to respond, effectively terminated his employment with immediate effect.

1. The Respondent contends that Mr. Kazi was notified of the reasons for his dismissal by way of the Dismissal Letter but concedes that Mr. Kazi was not informed of the reasons as set out at [62] (a) – (c) above. The Respondent also argues that Mr. Kazi was afforded an opportunity to respond to the reasons for his dismissal by way of the Dismissal Letter but concedes that the letter did terminate his employment and therefore did not provide him an opportunity to respond to the other reasons for his termination.

1. Notification of the reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment[71]and in explicit[72] and plain and clear terms.[73] However, that an employee was not notified of the reason subsequently found to be valid by the Commission does not render irrelevant the notification of any reason prior to or at the time of dismissal.[74]

1. The Respondent relies upon the alleged conduct of the Applicant to justify his dismissal. The conduct relied upon has changed following Mr. Kazi’s dismissal. I have made conclusions regarding the incidents that constituted a valid reason above including that the reason relied upon by the Respondent at the time of the dismissal did not constitute a valid reason. However, I have found that there was a valid reason for dismissal relating to the conduct of Mr. Kazi.

1. This reason was not put to Mr. Kazi in explicit and plain and clear terms. Even if I was persuaded that not having a valid contract was a valid reason for dismissal, I do not consider that Mr. Kazi was notified of this reason for his dismissal prior to the decision being made to dismiss him. Whilst he was told that he needed to provide further information regarding his contract and his visa he was not told that his employment was at risk if he failed to provide these documents.

1. Further, I do not consider that Mr. Kazi was given an opportunity to respond to any reason related to his conduct. The reason identified in the Dismissal Letter referred only to there being no valid employment contract. The Dismissal Letter did not provide him with any real opportunity to respond to the alleged conduct. Both parties accept that it brought the relationship to an end that day. Whilst there are contradictions in the language used, the letter clearly states that ‘as your contract has expired, your services are no longer required by SSWC.’ It then goes on to ask for ‘justification for your continued provision of services to SSWC’ before requesting that Mr. Kazi cease services immediately as he did not hold a current employment contract. The letter asked for a response within next 14 days before stating that a failure to respond would leave the Respondent with no option but to pursue further legal action.

1. The Respondent had not told Mr. Kazi in clear and unambiguous terms that his employment was at risk should he fail to provide the documents they sought (or should they not exist) and it is clear that there was no opportunity for Mr. Kazi to show cause as to why his employment should not be terminated prior to his dismissal. Indeed, evidence before the Commission demonstrates that the Shura Council had already made a decision on 2 June 2024 to dispense with Mr. Kazi’s services. It is not clear from the Dismissal Letter whether the Respondent was asking Mr. Kazi to provide a justification for the fact that he had continued to provide services post the end of the 2020 Contract but I infer that this may have been the case given the language.

1. I also observe, but note that it is not determinative of the consideration of these matters,[75] that he was not provided an opportunity to respond to the other valid reasons that I have found at [127] to [136] above. I consider that these matters weigh in favour of a finding that the dismissal was unfair.

Unreasonable refusal to allow a support person (s 387(d))

1. Mr. Kazi submits that he was not given a chance to attend a meeting accompanied by a support person.

1. The Respondent submits that any unreasonable refusal to allow a support person is an irrelevant consideration given the factual circumstances of his termination.

1. I find that Mr. Kazi and the Respondent did not have any discussions relating to his dismissal and, accordingly, Mr. Kazi did not request a support person. I find that there was no unreasonable refusal by the Respondent to allow Mr. Kazi to have a support person present to assist at any discussions relating to his dismissal. I consider this to be a neutral factor.

Warnings of unsatisfactory performance (s 387(e))

1. Mr. Kazi says that there were no warnings provided or concerns raised by the Respondent in relation to his conduct or performance.

1. The Respondent submits that the question of whether Mr. Kazi had been warned about unsatisfactory performance prior to his dismissal is an irrelevant consideration given the factual circumstances of his termination.

1. I find that the dismissal of Mr. Kazi did not relate to his unsatisfactory performance. In my view, this is a neutral consideration. In any event, I find, on the balance of probabilities, that Mr. Kazi was not given any warnings during his employment by the Respondent. No warnings, verbal or written, were disclosed by the evidence.

Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))

1. Mr. Kazi submits that there is no evidence suggesting that his dismissal was consistent with the Respondent’s policies or procedures. Mr. Kazi says that the Respondent’s claim that it is a small enterprise and engages no dedicated human resource specialists does not absolve the Respondent of its obligations under the Act, and that despite its purported lack of resources, the Respondent has secured legal representation in these proceedings, and ought to have sought legal advice or assistance in order to properly handle his dismissal.

1. The Respondent says that it is a small enterprise with two employees and no employed human resources specialists or lawyers. The Respondent submits that this resulted in the lack of formal procedure or structure taken in its dismissal of Mr. Kazi. While it originally claimed that Mr. Kazi was provided an opportunity to respond by way of the letter terminating his employment, the Respondent ultimately resiled from this position. This was as the letter terminated his employment effective immediately and Mr. Kazi had not been told that failure to provide the documents requested may result in the termination of his employment. However, it says that that the seriousness of the actions of Mr. Kazi outweigh any procedural deficiencies in the Respondent’s conduct of his termination.

1. The Respondent is a small organisation. It does not have any dedicated human resource management specialists or expertise available. However, it did have the support of legal representatives as evidenced by the Dismissal Letter. I am satisfied that the size of the enterprise and the lack of human resource specialists or expertise had an impact on the procedures followed in effecting the dismissal of Mr. Kazi. This weighs, to a limited extent, against the proposition that the dismissal was harsh, unjust and unreasonable.

Other relevant matters (s 387(h))

Submissions

1. Mr. Kazi submits that his dismissal lacked procedural fairness and that its impact was more than his monetary loss. This is, in part, as Mr. Kazi’s highly specialised role made it extremely challenging for him to find alternative employment, which has ramifications for his visa status.

1. He submits that his dismissal results in the loss of working rights and his ongoing residency in Australia, and that the burden of ensuring the validity of his visa lay with the Respondent as his sponsor. Mr. Kazi says that, as at the date of the hearing before the Commission, he holds rights to work in Australia and maintains that he seeks reinstatement, which he says will allow him to find sufficient time to secure a new visa sponsor. He says that the Respondent has evidence of his working rights and has been provided with a VEVO check establishing that he holds a valid bridging visa while his substantive visa application (which is sponsored by the Respondent) is under review.

1. Mr. Kazi submits that the Respondent admits it issued the Dismissal Letter without consulting or discussing the matter first and dismissed him without holding any formal meetings or issuing any warnings and that in doing so it denied Mr. Kazi procedural fairness in relation to his dismissal.

1. The Respondent makes limited submissions in relation to matters that fall within my consideration under s 387(h). It does, however, submit that it could not have afforded procedural fairness to the Applicant in relation to the recording of Mr. Hoque made covertly by Mr. Kazi as it was not aware of that recording prior to these proceedings.

Consideration

1. Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

1. The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon noncompliance with directions or conduct in breach of an employer’s policy was explained by the Full Bench majority in B, C And D v Australian Postal Corporation[76] in the following terms:

[41]Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462;Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42]Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1)The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2)The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3)The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43]The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.

...

[47]In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460): “Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”

[48]Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].

Summary dismissal

1. Whether Mr. Kazi’s conduct justified his summary dismissal was not substantively addressed by the parties. However, Mr. Kazi submits that his summary dismissal was a disproportionate response to his conduct.[77]

1. The question of whether conduct justifies summary dismissal requires an assessment of the degree of seriousness of the conduct in the circumstances. Lucev J’s summary of the principles guiding this assessment in Wintle v Ruc Cementation Mining Contractors Pty Ltd (No 3)[78] is as follows, with citations omitted:

[99]In Laws v London Chronicle (Indicator Newspapers) Ltd it was observed that:

… if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.
… one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.

[100]In North v Television Corporation Ltd the Australian Industrial Court was called upon to consider the word “misconduct” as used in an industrial award covering journalists. In the joint judgment in North it was observed that:

It is of assistance to consider the expression “misconduct” by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression “misconduct” as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment.

This situation would arise if there were conduct inconsistent with the fulfillment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law.

1. In light of the principles, I consider that Mr. Kazi’s conduct warranted his summary dismissal because it was both wilful or deliberate as contemplated in Laws v London Chronicle, and because it constituted fundamental incompatibility with the continuation of the employment contract between Mr. Kazi and the Respondent.

1. Mr. Kazi had access to his 2023 Contract for the duration of the relevant period, and had access, or ought to have obtained access, to his visa renewal application on and from 31 May 2024. In both cases, Mr. Kazi made a deliberate and wilful decision not to comply with a lawful and reasonable direction by his employer. In my view, this constituted misconduct.

1. I note that the written terms of a contract of employment between the parties are, at the very least, disputed. However, an implied term in each employment contract requires an employee to comply with a lawful and reasonable direction,[79] which I have already found that he breached by not providing the 2023 Contract or his visa application.

Harshness/Other matters

1. A relevant matter which contributed to the overall unfairness of the dismissal of Mr. Kazi was that he was dependent on his employment and sponsorship from the Respondent to remain and work in Australia. A worker on a visa of the kind that applied in Mr. Kazi’s case, if dismissed, has 60 days to find another sponsor to employ the worker in the same capacity, or must leave the country if some other form of bridging visa is not available.

1. The Applicant submitted that he had not been able to obtain other employment since his dismissal given his specialist role of an Imam or Religious Worker and gave evidence that this was exacerbated by the fact that his ability to work was tied to the sponsorship of the Respondent.[80] I have factored into my consideration that the Applicant has been out of work since his dismissal. I am satisfied that the dismissal has had significant negative economic effects on Mr. Kazi.

1. The Respondent did not identify any performance or conduct issues other than Mr. Kazi’s non-compliance with directions during the confined period leading up to his dismissal. There was no evidence before me that he had been subject to any performance concerns, warnings or disciplinary action. I have considered this as part of my overall assessment.

1. I accept the evidence of Mr. Hoque that the Respondent obtained verbal legal advice from their immigration legal representatives who advised that the Association could not continue to employ Mr. Kazi in breach of any working rights or visa conditions.[81] The Respondent is obliged to comply with Australia’s laws which govern the employment of persons who are not Australian permanent residents. As at the time of the dismissal the Respondent was not satisfied that Mr. Kazi was legally allowed to work in Australia after 21 June 2024 and had formed the view that, consequently, it was not allowed to employ him beyond this date.[82]

1. Mr. Kazi could have remained in employment with the Respondent through to 21 June 2024 when his visa expired. The Respondent’s actions in dismissing him when it did denied him this opportunity. Keeping him employed or providing him with a notice period would have allowed him to work and get paid for this period and potentially obtain his visa for work post 21 June 2024. I consider that this approach was harsh.

1. In addition, the Respondent’s management of the visa status of Mr. Kazi was poor. As I have observed at [119] above, while Mr. Hoque gave evidence that he had approached Mr. Haque to enquire about Mr. Kazi’s visa status, I consider that this likely occurred directly following the conclusion of the Supreme Court proceedings and was expressed on a general basis for ‘all the documents’ rather than those that related to Mr. Kazi specifically. There is no evidence that the Respondent made its own independent enquiries of third parties or conducted a VEVO check to ascertain Mr. Kazi’s visa status. With this being said, it does not appear that a bridging visa would have shown up on any VEVO Check until after 21 June 2024.[83]

1. Mr. Kazi contends that his dismissal lacked procedural fairness. Effectively he argues that he was denied ‘a fair go all round’. Deprivation of procedural fairness may render a dismissal unfair even where circumstances otherwise justify dismissal[84]. I have previously found that he was not notified of the reason for his dismissal nor given a proper opportunity to respond. Whilst I accept that the respondent was a small business and had little to no experience in dealing with the dismissal of employees, the procedural fairness deficiencies go well beyond these matters. Mr. Kazi was never told that his employment was at risk until after he had been summarily dismissed.

1. These matters weigh in favour of a finding that the dismissal was harsh.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

1. I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal[85].

1. Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of Mr. Kazi was harsh. Whilst there was a valid reason for the dismissal, given the significant procedural fairness deficiencies and the harsh consequences of the dismissal, I am satisfied that Mr. Kazi was unfairly dismissed within the meaning of section 385 of the Act.

Conclusion

1. For the reasons provided, Mr. Kazi’s dismissal was unfair.

Next steps

1. The parties filed some limited evidence and submissions regarding remedy in accordance with directions made by the Commission. However, at the hearing of this matter it was agreed between the parties that should I determine that the dismissal was harsh, unjust or unreasonable that the parties should have a further opportunity to put on further evidence and submissions on the question of what, if any, remedy I should award. Accordingly, directions will be issued seperately for the filing and service of evidence on remedy.

DEPUTY PRESIDENT

Appearances:

Mr R Chand for the Applicant
Mr G Fredericks, Counsel, for the Respondent

Hearing details:

2024
16 October
In person, Sydney

Final submissions:

2024
24 October
In person, Sydney

[1] Statement of Mr. Hasan Iqbal Kazi dated 9 October 2024 [3].

[2] Statement of Mr. Fazlul Hoque dated 1 October 2024, Court Book p.104, cl.4.1.

[3] Temporary Activity (subclass 408) visa – Hasan Iqbal Kazi dated 21 November 2022, Exhibit Kazi 2, Court Book p.157.

[4] Ibid.

[5] Respondent’s outline of submissions dated 1 October 2024 [10], Court Book p.23.

[6] 2023/00123400.

[7] The orders of the Supreme Court at CB 108 record that these resolutions had the effect of suspending the Shura Council, appointing Mr. ASM Ariful Haque and Mr. Saiful Hassain Sheikh as ‘administrators’, hindering the access to the Respondent’s premises by certain members of the previous Shura Council, and the termination of those members’ life membership of the Respondent respectively.

[8] Exhibit R2 – Email sent by Mr. Hoque to Mr. Kazi concerning officers of the Respondent dated 12 November 2023.

[9] Statement of Mr. AKM Fazlul Hoque dated 1 October 2024 [31] at Court Book p.45.

[10] Statement of Mr. AKM Fazlul Hoque dated 1 October 2024 at Court Book p.126.

[11] Temporary Skill Shortage (Labour Agreement) (subclass 428) visa – Hasan Iqbal Kazi dated 31 May 2024, Exhibit Kazi 2, Court Book p.151.

[12] Ibid.

[13] Transcript – 16 October 2024, PN1837 – PN1871.

[14] Transcript – 16 October 2024, PN1318 – PN1352, PN1537 – PN1548.

[15] New Temporary Skill Shortage (Labour Agreement) (subclass 428) visa application – Bridging A visa – Hasan Iqbal Kazi dated 13 June 2024, Exhibit Kazi 2, Court Book p.153 – 154.

[16] Warrell v Fair Work Australia [2013] FCA 291.

[17] Ibid.

[18] Transcript – 16 October 2024, PN24 – PN27.

[19] Transcript – 16 October 2024, PN92 – PN99.

[20] Transcript – 16 October 2024, PN100 – PN102.

[21] Transcript – 16 October 2024, PN103 – PN112.

[22] (1995) 185 CLR 410 at 465

[23] This is the acronym to refer to the Department of Home Affairs’ ‘Visa Entitlement Verification Online’ service, which allows visa holders, employers, education providers and other organisations to check visa conditions.

[24] Transcript – 16 October 2024, PN406 – PN409.

[25] Transcript – 16 October 2024, PN1745 – PN1748, PN2035 – PN2036.

[26] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[27] Ibid.

[28] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685

[29] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24]

[30] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

[31] Ibid.

[32] [2021] FWCFB 3457 [65].

[33] [2011] FWAFB 523 [51].

[34] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000).

[35] Invoices from Green Leaf Migration Services to Sydney South Welfare Centre dated 6 March 2024 and 24 July 2024, Exhibit Kazi 2, Court Book p.164 – 165.

[36] (1938) 60 CLR 601 (Darling).

[37] Darling [50].

[38] Statement of Mr. Fazlul Hoque dated 1 October 2024, Court Book p.107, cl.3.5.

[39]Transcript – 16 October 2024, PN699 - PN702.

[40] Transcript – 16 October 2024, PN1007 – PN1010.

[41] Statement of Mr. Hasan Iqbal Kazi dated 9 October 2024 [4] – [13].

[42] Transcript – 16 October 2024, PN2031 – PN2051.

[43] Transcript – 16 October 2024, PN1777; PN1885 – PN1897.

[44] Statement of Mr. Hasan Iqbal Kazi dated 9 October 2024 [18] – [19], Transcript – 16 October 2024, PN788 – PN791, PN994 – PN1002.

[45] Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries [1995] IRCA 499.

[46] Transcript – 16 October 2024, PN1019 – PN1043.

[47] Transcript – 16 October 2024 PN1010.

[48] Transcript – 16 October 2024, PN 969 – PN970.

[49] Transcript – 16 October 2024, PN960 – PN986.

[50] Transcript – 16 October 2024, PN1830 – PN1847.

[51] Transcript – 16 October 2024, PN462; PN756 - PN771.

[52] Transcript – 16 October 2024, PN449.

[53] Transcript – 16 October 2024, PN789 - PN793.

[54] Temporary Skill Shortage (Labour Agreement) (subclass 428) visa – Hasan Iqbal Kazi dated 31 May 2024, Exhibit Kazi 2, Court Book p.151 – 153; Invoice from Green Leaf Migration Services to Sydney South Welfare Centre dated 20 May 2024, Exhibit Kazi 2, Court Book p. 162.

[55] Transcript – 16 October 2024, PN1096 – PN1097.

[56] Transcript – 16 October 2024, PN1168 – PN1169.

[57] PN473 – PN488.

[58] PN489 – PN523.

[59] PN524 – PN533.

[60] Potter v WorkCover Corporation (2004) 133 IR 458 [55]; Annetta v Ansett Australia Ltd, Print S6824 [10].

[61] Transcript – 16 October 2024, PN1745 – PN1748, PN2035 – PN2036.

[62] [2024] FWC 2753 (Altham-Wooding) [43] – [44], [56].

[63] [2024] FWC 2753

[64] As it was as at May 2024.

[65] [2013] FWC 4513 (Schwenke), upheld in [2013] FWCFB 9842.

[66] Schwenke [69] – [70].

[67] [2018] FWC 4878 at [83], upheld on appeal in [2018] FWCFB 7354.

[68] [2022] FWC 711.

[69] [2022] FWC 2505 at [81].

[70] Transcript – 16 October 2024, PN396.

[71] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151

[72] Previsic v Australian Quarantine Inspection Services Print Q3730(AIRC, Holmes C, 6 October 1998).

[73] Ibid

[74] Komeyui Management Pty Ltd v Mr. Guy Goonewardena[2024] FWCFB 425 [49] – [51].

[75] Ibid.

[76] [2013] FWCFB 6191 [41].

[77] Transcript – 24 October 2024, PN2198 – PN2202.

[78] [2013] FCCA 694 [99]-[100].

[79] Adami v Maison de Luxe Ltd (1924) 35 CLR 143 at 151.

[80]Transcript – 16 October 2024, PN1190.

[81] Statement of Mr. Fazlul Hoque dated 1 October 2024 [43], Court Book p.46.

[82] Respondent’s outline of submissions dated 1 October 2024 [43] – [44(c)], Court Book p.46 - 47.

[83] Check visa details and conditions, Department of Home Affairs | Immigration and citizenship < Keenan v Leighton Boral Amey NSW Pty Ltd[2015] FWC 3156239

[85] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].

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