Husam Shamoon v Cabin Services Australia

[2019] FWC 2260

[2019] FWC 2260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Husam Shamoon
v
Cabin Services Australia
(U2018/12538)

COMMISSIONER WILSON MELBOURNE, 14 JUNE 2019

Application for an unfair dismissal remedy.

[1] This decision concerns the merits of Husam Shamoon’s dismissal by Cabin Services Australia (CSA) which provides cabin cleaning and associated services to airlines across Australia. Until his dismissal, Mr Shamoon was employed by CSA at Tullamarine, Melbourne.

[2] After discussion with the parties about the appropriate way to proceed, the matter proceeded by way of a determinative conference. Mr Shamoon was self-represented and assisted by several different interpreters. CSA was represented by Mr Rogan McMahon and Mr Paul Borobokas from the AiGroup.

[3] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Shamoon’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the relevant time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

BACKGROUND

[4] Evidence was given in these proceedings by Ms Danica Nguyen, a former Air Services Operator and Mr Shamoon for the Applicant; and, for the Respondent, by Ms Daniela Armone, the HR and Compliance Manager, Ms Hilal Cukur, Coordinator, Mr Aaron Watson, Station Manager and Ms Lute Leiseni Teputepu, a Leading Hand.

[5] Ms Armone records the company’s business as a requirement to “service 44 different airlines at airports nationwide, this includes international airlines. Our services include cleaning and restocking our client's aircrafts in between flights, biowaste management biowaste removal, linen supplies, in-flight entertainment and passenger transport”. 1 According to CSA’s submissions Mr Shamoon was first employed by the company on 21 November 2016.2 The work he performed involved cleaning and preparing for flight aircrafts for various domestic and international airlines at Melbourne Airport. As may be expected, his work involved shift work although until relatively close to the date of his termination of employment he worked predominantly day shifts, switching to night shifts from around October 2018.3

[6] Mr Shamoon remained employed with CSA until the termination of his employment for reason of serious misconduct on 30 November 2018.

[7] Mr Shamoon worked as a High Lift truck driver and when driving the vehicle worked with one other person, referred to sometimes as a “jockey”. On the day of his dismissal Mr Shamoon was driving the vehicle with a jockey named Tung Le. Part of the task of the two, and especially of the driver, is to approach the aircraft with the truck and raise the platform so that it is level with the aircraft door.

[8] On 23 November 2018, Mr Shamoon was sent a text message in Arabic from his wife. While the precise interpretation of the text message is unclear given the text message is written in Arabic slang and therefore potentially has a double meaning, Ms Shamoon submits that the text message states words to the effect that he was not to purchase or consume any chips since he was ill with diarrhoea. 4 A discussion with the interpreter at the hearing on 27 March 2019 suggested that the context of the Arabic text, said in English as “jabas” could be that it was referring either to watermelon or chips.5

[9] On Saturday, 24 November 2018, Mr Shamoon was scheduled to work a shift that would start on that day and run into Sunday, 25 November 2018. The CSA coordinator on the shift in question was Ms Hilal Cukur and her leading hand was Ms Lute Teputepu.

[10] Early in the course of the shift, Ms Cukur received information that employees for whom she was responsible were consuming without the company’s permission food and drink owned by client airlines. Ms Cukur regarded this as contrary to CSA’s policies, as well as theft and a breach of the Australian Government quarantine regulations.

[11] After receiving this information Ms Cukur determined to investigate the matter and over the course of her shift visited every aircraft the company was responsible for in both the domestic and international terminals. Ms Cukur visited each aircraft accompanied by Ms Teputepu.

[12] Over the course of the shift and the visits undertaken by Ms Cukur she found that indeed there had been consumption of food and drink. At least one other employee was found to have had in his possession a bottle of water marked as coming from an airline different to the one he was working on at the time. That employee, according to Ms Cukur’s evidence, has since been dismissed. 6

[13] The last aircraft visited by Ms Cukur was the one on which Mr Shamoon was working and which gave rise to the allegations that led to his dismissal. The aircraft in question is an A380 operated by Qatar Airways with the incoming flight designation of QR 904. While it is not especially relevant to the overall decision to dismiss Mr Shamoon, his evidence is that the incoming flight had been significantly delayed.

[14] When Ms Cukur and Ms Teputepu entered the aircraft they did so through the air bridge. At that time the truck’s platform was also connected with the aircraft. Mr Shamoon was working on the second of the A380’s floors.

[15] First Ms Cukur and Ms Teputepu went to the truck platform and inspected the utility baskets. Neither Mr Shamoon nor Mr Le were present when they inspected the platform. Their evidence is that they found in one of the utility baskets, also known as a cage, a piece of chocolate cake belonging to Qatar under some linen belonging to Singapore Airlines and a packet of chips in a second cage underneath a jacket. Ms Cukur took photographs of the items and removed them from the cages in which they had been found.

[16] Ms Cukur and Ms Teputepu then proceeded through the aircraft and saw Mr Shamoon on the second level. What occurred from that point is disputed.

[17] Ms Cukur’s evidence is that given the items’ location in the truck controlled by Mr Shamoon she suspected he was responsible for taking them. 7 Then, at around midnight, she phoned Mr Watson and told him what she had found.8 Mr Watson confirmed this set of events as well as that earlier in the evening he had received a phone call from Ms Cukur advising him that there had been reports of staff eating on planes and that he had instructed her to conduct spot-audits in order to check for breaches of the company’s policies after which he received a further phone call at about 11:00 PM about potential misconduct of another employee and then:

“At approximately midnight, I received a call from Ms Cukur, I recall that she informed me that she had found a cake and chips on a truck. I asked whether it belongs to Qatar, which she confirmed. I then asked who was responsible for the truck. I recall that Ms Cukur confirmed that it was the Applicant. I then instructed Ms Cukur to take photos of the items in the truck, and then find the driver and put the allegations him.” 9

[18] Ms Cukur and Ms Teputepu say that the first of the people they saw from the truck in question was Mr Shamoon. Their evidence is that they spoke to him and showed him what had been found and that he agreed the items were his and that they had been given to him by a catering friend. 10 Ms Cukur’s evidence is that she told him words to the effect “this is quarantine, you know this is wrong” and that he replied “it is rude to say no”. Ms Cukur says that following this interaction she instructed him to finish his job and to see her in the company’s tearoom after he was finished.11 At around the Mr Shamoon denies that he either agreed the items were his or that they had been given to him by a catering friend and instead gave evidence that in response to Ms Cukur’s question “what is this”, he replied with words to the effect of “I do not know”. She then replied, “I found these in your truck” to which Mr Shamoon replied “I do not know what this is.”12

[19] The interaction between Mr Shamoon and Ms Cukur or Ms Teputepu occurred somewhere between 11:00 PM and midnight between Saturday, 24 November and Sunday, 25 November 2018. 13

[20] After seeing Mr Shamoon on the aircraft, Ms Cukur both sent a text message with photographs attached and rang Aaron Watson the CSA Station Manager and let him know about the situation. 14 Having received this information Mr Watson attached the text message and photographs to an email and sent them to an internal email address at 12:35 AM.15

[21] At approximately midnight several phone calls were made by Mr Shamoon. He tried to call Mr Watson several times but was unsuccessful owing to Mr Watson’s phone being set up in a manner that would decline such calls when he was off duty. 16 Another phone call made by Mr Shamoon was to another coordinator, Leah. Phone records provided by Mr Shamoon about telephone calls he made on 24 and 25 November 2018 show a number of attempted calls to Mr Watson’s phone and one to another phone number which lasted for more than three minutes. On Mr Shamoon’s evidence Leah told him:

“I then proceeded to call Leah the supervisor. I explained to Leah the correct version of events. Leah asked me “did you eat anything” to which I replied “No”. She then asked “did you take anything” to which I replied “no I didn’t take it or I didn’t eat it”. Leah assured me to not worry and that Hilal cannot do anything. I then ended the phone call by saying thank you to Leah for answering my call and apologised for waking her up.” 17

[22] Shortly after midnight Mr Shamoon went to the tearoom and located both Ms Cukur and Ms Teputepu. Another employee, Ms Debra Wethling was also present, although she did not give evidence in these proceedings. Again, the precise discussion between the people present is the subject of a dispute. Ms Cukur says that Mr Shamoon questioned the seriousness of the issue saying words to the effect of “Hilal are you being serious, we can sort this out between us don’t tell Aaron”. 18 Ms Cukur replied to Mr Shamoon that it was too late and that she had already spoken to Mr Watson. She further told Mr Shamoon that he had done the wrong thing and that she had reported it and that is to Shamoon should go home and Mr Watson will talk to him. When she went to leave the area she recalls that Mr Shamoon followed her and:

“… said words to the effect of “I’m going to change my story - someone else put it there it’s not mine. I must’ve grabbed it with the blankets.” I recall that I said “how can you have Qatar food in Singapore blankets?” I recall that he replied words to the effect of “I don’t know, but if you report me I’m going to lie”.” 19

[23] Ms Teputepu recalls an interaction of the sort with Mr Shamoon following Ms Cukur before he left the premises, but saying words both to the effect of “do not report this to Aaron” and that he wanted to “change his story”. 20 Ms Teputepu did not hear the remainder of the conversation. Mr Shamoon denies this version of events about the conversation in the tearoom, but concedes that there was a conversation at about the time indicated in the tearoom, with Mr Shamoon putting forward that Ms Cukur said that he (Mr Shamoon) changed his story to another employee also present, Debra.21

[24] At the conclusion of this discussion, Mr Shamoon was sent home and informed that Mr Watson would contact him. Later contact indeed was made by Mr Watson when Mr Shamoon was told by him, through a text message, to present himself for an interview. That interview took place on Monday, 26 November 2018 shortly after 2:00 PM.

[25] The attendees were Mr Shamoon and his support person, Fadisho Hirmiz, together with Mr Watson and Brendan Connolly on behalf of CSA. Mr Connolly took notes at the meeting. While Mr Connolly did not give evidence in these proceedings his notes record, at a high level, the following verbatim discussions between the parties:

“Hi All

Please see minutes from meeting today with Husam Shamoon - 26-11-18 @

14:03

Quarantine breach. Removing food from Qatar on to High Lift truck.

ATTENDEES : Husam Shamoon

: Fadisho Hirmiz (Support Person).

: Aaron Watson

: Brendan Connelly

AW

Hi Husam, would you like to tell me what happened on Qatar on Saturday night?

HS

I came late on to Qatar and it was a quick turn because it was late.

I collected the blankets with my jockey and I was upstairs when Hilal and Lute approached me and held out a packet of chips and a cake and said:-

“Where did these come from, did you get this from catering”?

I said no this is f***** bullshit. I asked my jockey Tung Le (Tan Viet Le) if he had put it there.

Aaron, I had already eaten and was extremely full, I couldn’t have eaten another thing.

Anyway, I can’t eat these things because I had diarhea on Saturday night.

I went back to the tea room and saw the food sitting there and asked if they were serious about this.

Hilal said I have told Aaron already and I am going to write a report.

That’s when I tried to call you several times and also Leah.

Leah spoke to me and said “If you didn’t do it, don’t worry about it”.

AW

Okay, so you know you can’t consume or take quarantine from an aircraft.

HS

Yes, of course. I didn’t take anything.

BC

There are reports that you admitted to this on Saturday night on the aircraft that have been backed

up by witnesses.

There are also reports that you said that you wanted to change your story when you went back to

the tea room that was also witnessed.

HS

They are lying, you can check the footage on the a/c if you don’t believe me, there should be security

footage.

AW

Thanks Husam, if you could wait downstairs for a few minutes please.

(AW spoke again to the witnesses to confirm their stories).

Coordinator Deb confirmed that Husam had said that he wanted to change his story.

Lute confirmed that she found the cake in the SQ cage and moved a jacket to find the packet of chips

underneath.

Lute also confirmed that Husam said “My friend gave it to me and said he’s my friend, I can’t say no.

Just give me a warning, please don’t tell Aaron”.

HR CALL

AW

We have spoken to HR department and have decided on this information that we are going to have to terminate your employment with us.

HS

If that’s the case I am going to speak to my lawyer and he will be in contact with you about this and Hilal. I didn’t do this.

AW

Based on the information we have, this is the decision that has been made.

We wish you all the best in the future, thanks Husam, thanks Fadi.

HS

Thanks Brendan, thanks Aaron.

Regards

Brendan” 22

[26] Towards the conclusion of the meeting Mr Watson halted the meeting in order to speak with Ms Armone and Mr Sigsworth, the Chief Executive Officer, in order to check the matters which had been presented to him. When he spoke with Ms Armone and Mr Sigsworth he recommended that Mr Shamoon’s employment be terminated. Ms Armone gave evidence that the decision to dismiss Mr Shamoon was hers. 23 Mr Watson returned to the meeting after this conversation and advised Mr Shamoon that his employment was terminated.

LEGISLATION

[27] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which 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.

CONSIDERATION

[28] Determination of whether Mr Shamoon’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[29] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 24

“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

•  a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 25

•  a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 26

•  it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 27

•  the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 28 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

•  the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 29” (original references)

[30] I will deal with each of the criteria within s.387 in turn.

(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)

[31] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship:

“At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that’’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 30

[32] Where the conduct involves serious misconduct, the principle established in Briginshaw v Briginshaw 31 may be relevant. While the standard of proof remains the balance of probabilities ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’32 and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.’33

[33] The Briginshaw principle does not raise the standard of proof beyond the balance of probabilities. 34 The strength of the evidence needed to establish a fact on the balance of probabilities ‘may vary according to the nature of what it is sought to prove’.35 More serious allegations may require stronger evidence.

[34] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 36 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.37 In considering these matters, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.38 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.39

The evidence generally

[35] Having listened carefully to each of the witnesses and the evidence that each gave, through their witness statements as well as orally, and having observed their demeanour as they each gave evidence, I prefer the evidence of Ms Cukur and Ms Teputepu over that of Mr Shamoon and accept their evidence as the truthful recounting of the critical events surrounding the allegations made against Mr Shamoon.

[36] Ms Armone, being the company’s HR & Compliance Manager, does not have direct knowledge of the matter and became aware of the situation when Mr Watson emailed her on the afternoon of Monday, 26 November 2018, at 12.31pm. 40 She did not attend the allegations meeting, but spoke to Mr Watson in a break in the meeting, and authorised Mr Shamoon’s dismissal, along with Mr Sigsworth.

[37] To the extent there are differences between the evidence given by Mr Shamoon and that of Ms Armone and Mr Watson, I prefer their evidence over that of Mr Shamoon, noting there are fewer areas of disagreement between their respective subjects of evidence than for the evidence given by Ms Cukur and Ms Teputupu.

[38] Mr Watson filed two witness statements in advance of the hearing of the matter, and in neither recollected a conversation with Tung Le, whom Mr Shamoon speculated in the allegations meeting on 26 November 2018 may have been responsible for taking the two items in question. When Mr Watson gave his oral evidence, he identified phone calls with Tung Le (also known in these proceedings under two other names) and Trang Nguyen (also known as Danica Nguyen) and said those calls had been placed by him at around 11 am on 26 November, a few hours before the allegations meeting. 41 It appears likely from this omission that Mr Watson either did not diligently turn his mind to preparing his witness statements, or, potentially worse, has a faulty recollection of the events that actually occurred. Moreover, the fact that Mr Shamoon referred in the allegations meeting to the possibility that he had asked his jockey, Tung Le about the situation, and that Mr Watson did not rejoin that the latter had been contacted prior to the meeting and said that “he wasn’t working in that area” 42 is an improbable omission. In an allegations meeting, it may be expected that the critical issues would be put to the person under suspicion.  In Mr Shamoon’s case, those critical issues were not just that he had admitted to taking the items and then lied, but also that his untruthfulness was exposed by the denial by Mr Le that he was even present. Those matters create difficulties in accepting there was a fully adequate investigation conducted by CSA into the allegations it made against Mr Shamoon or the responses he put forward to the company.

[39] In Mr Shamoon’s case he only has his word to be relied upon as to what occurred on the aircraft on 24 November 2018. The things which he said in oral evidence about those events are generally consistent with the version put forward on his behalf in a written submission to his former employer dated 3 December 2018. That version says that he was approached by Ms Cukur and Ms Teputepu and that Ms Cukur asked him what the items were that she was holding. Mr Shamoon replied that he did not know, with Ms Cukur then telling him that she had found them in his truck, with Mr Shamoon reiterating that he did not know what the items were. A markedly different retelling of the situation was given by Mr Shamoon in the investigation meeting held on Monday, 26 November 2018. In that meeting, instead of simply saying that he did not know what the items were, which is the version maintained on the evening 24 November 2018 and also on 3 December 2018, on 26 November 2018 Mr Shamoon is recorded as having said to those in the investigation meeting, after being asked “where did these come from, did you get this from catering?”:

“I said no this is f***** bullshit. I asked my jockey Tung Le (Tan Viet Le) if he had put it there.

Aaron, I had already eaten and was extremely full, I couldn’t have eaten another thing.

Anyway, I can’t eat these things because I had diarhea on Saturday night.”

[40] Aside from what was said on 26 November 2018 being something other than a simple denial of the accusation made against him, what was said in the investigation meeting is notable for the reason that it is not consistent either with the earlier or later retelling in two critical respects. Firstly, it is reported that Mr Shamoon said to those present that he asked his jockey, Tung Le if he had put it there. Secondly, he explains that he could not have eaten the things he was accused of having taken because he had had diarrhoea on the Saturday night, evidenced by his wife’s text message from 23 November reminding him to avoid chips.

[41] The most likely reconciliation of these discrepancies is that Mr Shamoon was initially quite bullish in his response to Ms Cukur and Ms Teputepu and that he actually did say what they attribute to him, namely that he told them the admission recorded in Ms Cukur’s initial email from the night of 25 November 2018, that “it was his and the Dnata catering gave it too him to eat”. 43 Mr Shamoon likely thought that would satisfy the two and that they would, at worst admonish him. Mr Shamoon’s initial hubris was bolstered with his discussion with Leah, who reassured him if he had not eaten the items either that he should “not worry and that Hilal cannot do anything”.44 His bullishness continued into the tea room when he challenged the women with words to the effect of “are you serious, are you going to report this when it’s not even me”45 or “please don’t report this you make me feel bad and worried” and that “he doesn’t want Aaron to know about this and he promises not to do it again”.46

[42] By Monday 26 November 2018 though, Mr Shamoon was faced with the reality that the matter had been reported and that serious consequences may follow. It was in the allegations meeting on that day that Mr Shamoon raised for the first time the possibility that Tung Le may have taken the items, and that suffering from diarrhoea supported the proposition that he could not have taken the items.

[43] As a result of these matters, I do not accept Mr Shamoon’s evidence where it is not corroborated either by other witnesses or contemporaneous documents. The overall circumstances of his conduct since Ms Cukur first asked him about the goods in question suggests that truth has often been a stranger in his recounting. His story has repeatedly changed, and kept changing all the way through the past few months. His attempts to bolster his claims have been disingenuous, have become more outlandish and to such an extent that those efforts have only served to discredit his own evidence.

[44] In forming my views about the credibility of Mr Shamoon’s evidence, I have taken into account not only his conduct while still employed, but also his post-employment conduct toward his former employer and their officers, as well as his evidence and conduct before the Commission. Consideration of each of these elements reinforces my finding that uncritical acceptance of Mr Shamoon’s evidence is problematic.

Relevant conduct while employed

[45] The text message to Mr Shamoon from his wife on 23 November 2019 was received the day prior to the incident in question, and it is unclear whether Mr Shamoon was still suffering from diarrhoea at the time of the incident. Mr Shamoon ate Subway for lunch on the date of the incident on 24 November 2019, which seems inconsistent with a person diligently following their wife’s advice to avoid chips because they were still suffering the effects of diarrhoea. If one was well enough to eat a fast-food sandwich, one could be well enough to eat the small wedge of cake shown in Ms Cukur’s photograph.

[46] Mr Shamoon’s 3 December 2018 grievance submitted to his former employer has him stating that he did not know about the items Ms Cukur showed him, as well as repeating, but in general terms only, the allusion of another staff member having possibly been responsible:

“As I was about to speak to Hilal she spoke first. At this time Hilal and I were standing in front of each other. Hilal had both of her hands behind her back then proceeded to bring both of her hands in front of herself and in front of me. In her hands were two items which appeared to be food items. She said “what is this” to which I replied “I do not know”. She then replied “I found these in your truck” to which I replied “I do not know what this is” as I was stunned at the claim that she located these items in the truck I was driving. A truck which sees me, my offsider and leading hands go in and out of.”

[47] Instead of relying upon Mr Shamoon’s evidence on the critical conversations, I rely upon that of Ms Cukur and Ms Teputepu.

[48] In doing so, I note that the first statement by Mr Shamoon to Ms Cukur and Ms Teputepu, on board the Qatar Airways A380 had, at that time at least, the possibility of plausibility; with things being said to the effect that the goods were “his and the Dnata catering gave it too him to eat”. 47 His second statement to the two women, within an hour of the first statement could be interpreted as bargaining his way out of a bad situation, with him being reported by Ms Cukur as having said “please don’t report this you make me feel bad and worried”.48 According to Ms Cukur in her first written report from the same evening Mr Shamoon then “said he changed the story now to accidentally grabbing the cake and chips as he was grabbing blankets. I told him not to lie because there were witnesses as he accepted that his friend from catering gave it too him. He kept arguing with me and told me not to report”.49 She elaborated on these discussions in her first witness statement (prepared in March 2019) attributing to Mr Shamoon a statement by him to the effect of “Hilal are you being serious, we can sort this out between us don’t tell Aaron”,50 with her recollecting that Mr Shamoon:

“… followed me and said words to the effect of “I’m going to change my story - someone else put it there it’s not mine. I must’ve grabbed it with the blankets.” I recall that I said “how can you have Qatar food in Singapore blankets?” I recall that he replied words to the effect of “I don’t know, but if you report me I’m going to lie”.” 51

[49] The threat to lie did him no credit, and CSA rightly called his bluff.

Post-employment conduct

[50] A few weeks later, when he had had time to think about his situation, Mr Shamoon tried to get his job back.  First he attended the workplace and attempted to see the General Manager, which Mr Watson refused. Mr Shamoon thought that the General Manager wanted him back as an employee, a proposition Mr Watson believes is incorrect. 52

[51] In January, after he had commenced his application for unfair dismissal remedy, and probably with the forthcoming conciliation in mind, which was scheduled for Thursday, 10 January 2019, Mr Shamoon appears to have changed strategies.

[52] On 4 January 2019, Mr Shamoon claims to have been sent a text message from Ms Cukur. The message he says he received claims that the evidence for his dismissal had been fabricated as a retaliation for not having spoken to Ms Cukur as she would like. The text consisted of these words:

“Hi Husam you see what happened to you my fake story got you sacked thats why you should talk to me right when i said you cant get your job back because aaron is with me . This is a fake number like my fake story so you cant prove this is me. All the best take care from hilal” 53

[53] The text, it is claimed, but without verification, came to Mr Shamoon from a telephone number that he did not recognise. He says this is not Ms Cukur’s usual phone number, but instead one obtained by Ms Cukur in order to mask her actions.

[54] Ms Cukur denies both that the number is one owned by her, or that she sent the text. 54  She also denies the substance of the text – that she conspired to remove Mr Shamoon from his employment. I unreservedly accept her evidence on these matters. I take into account that, with Mr Shamoon’s unfair dismissal application having been lodged in the Commission on Monday, 3 December 2108, he was notified on Friday, 7 December 2018 that a telephone conciliation would take place on Thursday, 10 January 2019. Having considered all of the Applicant’s evidence, not only on these matters, but all matters, I consider it more likely than not that Mr Shamoon fabricated the text to serve his own purposes, and in particular desired for it to improve his chances in what was then the forthcoming conciliation.

[55] When this endeavour bore no fruit, on 16 January 2019, he sent text messages to Mr Sigsworth and Mr Watson, with the threat that the company’s practices would be exposed on the “A Current Affair” television program. The sequencing of the text messages was as follows:

•  Wednesday, 16 January 2019

•  The first text at 11.23 am on Wednesday, 16 January 2019 was to Mr Watson and read “Good news Aaron TV Melbourne (Current Affair) coming Soon for company cabin Service Australia”. 55

•  A similar text was sent at 11.26 am to Mr Sigsworth. In Mr Watson’s case the text showed as originating from “Husam” (presumably because that was the name assigned in Mr Watson’s contacts to the number it originated from). In Mr Sigsworth’s case the number shown as the sender of the text had previously been used to communicate with Mr Shamoon. 56

•  A second text to Mr Watson at 11.39 am 16 January 2019 consisted of “Good luck” followed by a smiley emoji and the words “current Affair”. 57

•  Tuesday, 29 January 2019

•  Another text was sent first at 11.47 am on Tuesday 29 January 2019 to Mr Watson and secondly to Mr Sigsworth at 11.58 am. The version to Mr Sigsworth read:

“This is "Current Affair". I will co-operate with current affair team and disclose illegal and deceiving practices that Cabim Service Australia commit. It's not about my case only. I do have proof that other issues, such as employing workers for short period of time and sack them to get the benefit of the centrelink agency as much as you can from the new employees and myself is one of the victim of that practice

TV Melbourne

(Current Affair) coming Soon for company cabin Service Australia

Thank you” 58

[56] Mr Shamoon agreed that he had actually made contact with “A Current Affair”, but that they took too long to respond and that by the time they did respond he wanted to terminate his request with them. 59 Mr Watson’s evidence on the subject of these texts includes that he found the proposition that Mr Shamoon would take the matter to A Current Affair as “quite threatening and inflammatory” and that he regarded the matter as a threat to him and CSA to reinstatement Mr Shamoon. Mr Watson also regarded the content of the text messages as untruthful.60

Conduct in the hearing

[57] By the time of the hearing, Mr Shamoon’s explanation had changed further. Not only had there been a conspiracy to oust him from his job, and the allegations about the plane food merely part of it, but that an undisclosed relationship meant that certain of the evidence could not be trusted, as well as it being the case that the alleged relationship supported the existence and execution of the conspiracy. Other than the assertion of these matters, there is no evidence that would support these contentions. I have chosen not to relate in this decision the allegations that Mr Shamoon put forward about the relationship since there is nothing of any substance before the Commission other than Mr Shamoon’s allegation that would support a finding that there was an untoward relationship afoot and I do not propose to give the allegation any further credence. There was likely no such relationship and Mr Shamoon’s reference to the matter is likely no more than an unsubstantiated rumour put about by him for the purpose of harming those he perceives as having wronged him.

[58] While these problems in Mr Shamoon’s evidence lead to me being disinclined to accept his narrative on crucial matters, my lack of acceptance of his evidence does not necessarily overcome reservations about CSA’s conduct.

[59] Critically, rejection of Mr Shamoon’s evidence is coupled with my acceptance of Ms Cukur’s and Ms Teputepu’s evidence. Their evidence means that at the time CSA told Mr Shamoon he was under investigation for his conduct, CSA’s case against him consisted of only three significant points. First, he had been asked by the two women if the goods were his. Second, it knew that he agreed they were, and that he asserted they had been given to him by a friend in catering. Third, it knew that, faced with the certainty of Ms Cukur reporting his conduct to Mr Watson that Mr Shamoon was willing to lie and say that he had never agreed the goods were his, which had been reported by Ms Cukur to Mr Watson.

[60] At the time of the incident and the following discussion in the tea room, CSA did not know either the identity of the “friend in catering”, if in fact there was one, or what they may have to say. Neither Ms Cukur nor Ms Teputepu had asked him who the “friend” may be, or even the circumstances by which the airline goods came to be in either cage. Those matters are obvious questions that should have been asked, even at that early stage. On the available record before me, there is no proof the questions were ever asked.

[61] When it came to the allegations meeting on Monday, 26 November 2018, not much more of significance had been obtained by CSA.

[62] In the course of the meeting on that day, Mr Shamoon changed his story in the way referred to above, implicating Mr Le for the first time as the culprit. If I accept his belated recollection on the subject, Mr Watson did not contact Mr Le until the morning of 26 November, and even then the totality of the evidence on the subject is the hearsay that in response to a question about whether he was aware of the items being on the truck, he replied that he was not and that since he was the offsider, he was not working in the area. 61

[63] If I accept the CSA version of the investigation, and I have reservations in doing so because of the strung-out recollection of Mr Watson, without an early and stable narrative, what CSA knew at the time that Mr Watson came to recommend dismissal of Mr Shamoon to Ms Armone was that Mr Shamoon had initially agreed to the goods being his and that he was willing to lie if the matter was formally reported and that, on the basis of the reports from Ms Cukur and Ms Teputepu he probably had lied.

[64] The totality of the evidence before the Commission about Mr Shamoon shows that he has been untruthful at various stages since the first discussion on the aircraft on the evening of 24 November 2018. His conduct after termination, including through his exchanges with Mr Watson and Mr Sigsworth as well as the evidence he gave in the Commission demonstrate a propensity for self-serving invention in an endeavour to both justify as well as retrieve a bad situation. Mr Shamoon’s post-employment conduct shows that more than likely he was not truthful with CSA as it asked him questions about what had been found on the aircraft. More than likely he followed through with his threat to Ms Cukur to lie if she reported situation. While there may be reservations about some of the evidence given on behalf of CSA there are none in respect of the evidence given by Ms Cukur and Ms Teputepu. Mr Shamoon’s conduct within the meeting on 26 November 2018 therefore establishes to the requisite standard of proof that he was untruthful with CSA when he denied having taken the items; stated that he had asked Mr Le “if he had put it there”; and put forward the defence that he could not have taken the products because firstly he had eaten and was full and in any event had had diarrhoea that night. I accept that those statements were not truthful and were designed to mislead. At no stage since has Mr Shamoon accepted responsibility for having taken the packet of chips and a cake.

[65] In relation to the matter of the CSA quarantine obligations, Ms Armone gave evidence that her employer is obliged to comply with the Biosecurity Act 2015 (Cth) and associated Guidelines. Amongst other things, those instruments require that all “cabin, galley and hold waste onboard the aircraft must be collected, transported, stored and/or treated” with the requirements extending to a wide range of matters, including unconsumed prepared food. 62 She gave evidence that CSA is regularly audited on its obligations and expressed the view that “non-compliance poses a significant risk to the viability of the CSA business”.63 While I accept that evidence, were Mr Shamoon’s matter only to involve the avoidance of the CSA quarantine obligations and not theft or untruthfulness, I would be unlikely to have found that an adverse finding on that matter, on its own, presented a valid reason for termination of employment in his circumstances. Nonetheless, in combination with theft and untruthfulness, the quarantine breach having been factually established, becomes part of a finding that there was a valid reason for his dismissal.

[66] The evidence leads me to find that the conduct alleged against Mr Shamoon by CSA took place, with Mr Shamoon being responsible for having removed two items of aircraft food from the aircraft. Further, I find that he was untruthful to his employer when he was questioned about having taken the two items and that when he took the items he intended to breach the company’s quarantine policies and obligations. In each case I find that the alleged conduct actually occurred.

[67] CSA submit two things about the consequence of this conduct; first the removal of food from an aircraft belonging to one of its customers is misconduct in breach of its policies and procedures and secondly, the removal of the food breaches applicable quarantine protocols. The evidence supports each proposition.

[68] I find that the combination of these matters amounts to serious misconduct. The combination to which I refer are the fact that Mr Shamoon took the two items; that he was untruthful with his employer when it questioned him on the subject; and that he acted contrary to the company’s policies and obligations in relation to the observance of quarantine obligations. In combination, those matters are a valid reason for Mr Shamoon’s dismissal.

(b) whether the person was notified of that reason

[69] Mr Shamoon was notified of the reasons for his termination through the letter to him from Ms Armone, the Human Resource and Compliance Manager of CSA.

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

[70] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal there needs to be a finding that there is a valid reason for dismissal. 64 While so, it is also accepted that “an opportunity to respond” amounts to an opportunity to provide reasoning to a decision maker that would, all things being equal, allow a reasoned explanation to cause the decision maker to accept what is proffered and to change from their foreshadowed path.

[71] The meeting held with Mr Shamoon on 26 November 2018 was an opportunity for him to respond to the allegations made against him. In the course of that meeting he had an opportunity to provide such explanation as he saw fit. After being questioned about the circumstance and providing the explanation he wished to put forward, the meeting broke, with Mr Watson speaking with Ms Armone and Mr Sigsworth and relating to them the things that had been discussed in the first part of the meeting.

[72] The material before the Commission does not specifically identify that Mr Shamoon was told in the first part of the meeting that the import of the allegations made against him was such that he may be dismissed from employment. Notwithstanding that omission on the part of CSA, I am satisfied generally that Mr Shamoon had the opportunity to say all the things he wished in the meeting and that the Respondent took those matters into account as it considered what should be done about Mr Shamoon circumstances.

(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

[73] Mr Shamoon had a support person of his choosing in attendance at the meeting in question.

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

[74] Since Mr Shamoon was not dismissed for unsatisfactory performance, this criterion is a neutral consideration in my decision.

(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

[75] There is no evidence before the Commission that the size of the employer’s enterprise impacted on the procedures it followed in effecting Mr Shamoon’s dismissal.

(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

[76] The evidence shows that CSA had access to dedicated human resource management specialists or expertise about the procedures to be followed in effecting Mr Shamoon’s dismissal, particularly in the form of Ms Armone.

(h) any other matters that the FWC considers relevant

[77] I do not consider there are any other matters to be relevant in my determination of this application.

[78] After considering each of the criteria within s.387, I am satisfied that there was a valid reason for Mr Shamoon’s dismissal and that there were no substantial procedural defects or other matters which would cause me to find that notwithstanding their being a valid reason for his dismissal that the dismissal was otherwise unfair.

[79] As a result, I am unable to find that Mr Shamoon was unfairly dismissed.

[80] As a result, Mr Shamoon’s application for unfair dismissal is dismissed and an order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr S. Shamoon, on his own behalf.

Mr R. McMahon and Mr P. Borobokas, from AiGroup on behalf of the Respondent.

Hearing details:

2019.

Melbourne:

27-28 March; 5 and 29 April.

Printed by authority of the Commonwealth Government Printer

<PR706569>

 1   Exhibit R1, Witness Statement of Daniela Armone, dated 13 March 2019, [16].

 2   Form F3, Employer Response Form, 9 January 2019, item, 1.2.

 3   Exhibit A2, Applicant Outline of Submissions, dated 3 December 2018, pp. 2.

 4   Exhibit A4, Applicant Bundle of Documents, dated 18 February 2019, Attachments A3 ‘Evidence’ and A6 ‘Text Message in Arabic “from wife”.

 5   Transcript, PN 574 - 599.

 6   Ibid, PN 1481 – 1482.

 7   Exhibit R3, Witness Statement of Hilal Cukur, dated 13 March 2019, [8].

 8   Exhibit R4, Supplementary Witness Statement of Hilal Cukur, dated 22 March 2019, [5].

 9   Exhibit R7, Supplementary Witness Statement of Aaron Watson, dated 22 March 2019, [8(c)].

 10   Exhibit R3, [8].

 11 Ibid. [8].

 12   Form F2, Application Form, Attachment 1F, pp. 2.

 13 See Transcript PN 185; Exhibit R4, [5](d).

 14   Exhibit R4, [8]; Exhibit R6, Witness Statement of Aaron Watson, dated 13 March 2019, [7].

 15   Exhibit R7, [8](d), Attachment AW-3.

 16   Transcript, PN 2974 – 2980.

 17   Exhibit A2, pp.3; see also Transcript, PN 193.

 18   Transcript PN 889.

 19   Exhibit R3, [13].

 20   Exhibit R5, Witness Statement of Lute Laiseni, dated 13 March 2019, [10] – [11].

 21   Transcript, PN 190.

 22   Exhibit R6, Attachment AW-3.

 23   Transcript, PN 1248.

 24   Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520.

 25   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 26   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 27   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 28   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 29   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 30   Selvachandran v Peteron Plastics (1995) 62 IR 371, pg.373.

 31 (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93]

 32   Briginshaw v Briginshaw (1938) 60 CLR 336.

 33   Ibid., 362‒3.

 34   Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; cited in Guneyi v Melbourne Health T/A Royal Melbourne Hospital [2012] FWA 10270 (unreported, Hamilton DP, 18 December 2012) [14]. See also Budd v Dampier Salt Ltd (2007) 166 IR 407 [15].

 35   Ibid.

 36   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7]

 37   King v Freshmore (Vic) Pty Ltd (2000) AIRC, unreported, Print S4213

 38   Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171

 39   Streeter v TelstraCorp Ltd (2008) 170 IR 1

 40   Exhibit R1, [26]; Exhibit R6, [8].

 41   Transcript, PN 2018 – 2030.

 42   Ibid, PN 2027 – 2030.

 43   Exhibit R6, Attachment AW – 1; see also Exhibit R3, [8]; and Exhibit R5, [9].

 44   Exhibit A2, pp.3.

 45   Exhibit R2, Supplementary Witness Statement of Daniela Armone, dated 22 March 2019, pp.3.

 46   Exhibit R6, Attachment AW – 1.

 47   Exhibit R6, AW – 1.

 48   Ibid.

 49   Ibid.

 50   Exhibit R3, [11].

 51   Ibid, [13].

 52   Transcript, PN 2241 – 2257.

 53   Exhibit A4, Attachment A7.

 54   Exhibit R4, [11].

 55   Exhibit R7, Attachment AW - 4.

 56   Exhibit R2, Attachment DA – 5.

 57   Exhibit R7, Attachment AW – 4.

 58   Exhibit R2, Attachment DW – 5.

 59   Transcript, PN 960.

 60 Exhibit R7, [10] – [11].

 61   Transcript, PN 2027 – 2030.

 62   Exhibit R1, [17]

 63   Ibid, [21].

 64   Chubb Security Australia Pty Ltd v Thomas (2000), unreported, AIRCFB, Print S2679 [41].