Hussain Siddiqui v Vicpro Security Pty Ltd
[2024] FWC 1783
•23 JULY 2024
| [2024] FWC 1783 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hussain Siddiqui
v
Vicpro Security Pty Ltd
(U2024/1500)
| DEPUTY PRESIDENT BELL | MELBOURNE, 23 JULY 2024 |
Application for an unfair dismissal remedy – dismissal unfair – compensation ordered.
Mr Hussan Siddiqui was a security guard for the respondent, Vicpro Security Pty Ltd. His assigned location of work was Victoria University, located in Footscray (the university). The university was a client of the respondent. Following a heated verbal altercation between Mr Siddiqui and another security guard toward the end of an evening shift on 31 January 2024, Mr Siddiqui was summarily dismissed from his employment on 2 February 2024.
Mr Siddiqui subsequently made an application for relief against unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (Act), with the application being made within the 21-day period under s 394(2)(a). Mr Siddiqui was an employee protected from unfair dismissal: s 382. Mr Siddiqui had completed the minimum employment period of employment and was covered by a modern award and, in any case, his salary was below the high income threshold. For the purposes of s 385, Mr Siddiqui was “dismissed”, with the dismissal being at the initiative of the employer. The Small Business Fair Dismissal Code was not applicable and there was no contention the dismissal was a case of genuine redundancy.
The issue in dispute was whether Mr Siddiqui’s dismissal was harsh, unjust or unreasonable and, if so, what if any remedy ought follow from that finding. For the reasons that follow, I find that there were valid reasons for Mr Siddiqui’s dismissal but that summary dismissal was unfair. Mr Siddiqui should have instead been given one week’s notice. As reinstatement is not appropriate, an order for compensation for one week’s wages will be made.
Factual findings
The respondent’s business included the supply of security services. It employs approximately fifty full-time employees. For approximately the past seven years, it has supplied security services to the university, which is an important client.
On 15 May 2023, Mr Siddiqui commenced employment full-time as a Security Officer with the respondent. From the commencement, he was assigned to work at Victoria University’s Footscray Park Campus.
Mr Siddiqui was provided with training to work at the campus. There is some dispute about the extent of training received but it is not necessary to resolve those disputes. Mr Siddiqui says he undertook various training activities in the “control room” at the beginning of his employment.
Mr Siddiqui’s evidence raises a litany of assorted complaints and grievances with other workers during the period from November 2023 to January 2024, inclusive. Aspects of it includes complaints he has made about allegedly poor performance of other workers. For example, on 19 November 2023, there was a “break glass” alarm incident. Mr Siddiqui says he addressed the alarm and suggests that another employee should have addressed it. Mr Siddiqui expressed his concern about his co-worker’s “unprofessional behaviour”.
Other evidence during this period indicates Mr Siddiqui was the subject of management performance action in response to Mr Siddiqui’s conduct toward the same employee above. On about 20 December 2023, an incident between the two arose concerning who got to use, or should use, a locker. Both employees were provided with verbal warnings or counselling.
On 11 January 2024, Mr Siddiqui raised a different complaint about the same work colleague. The complaint alleged “loud noises” in the Security Operations Control (SOC) room being made by the other employee. The “loud noises” were not explained in the evidence. These “noises” precipitated a series of text messages from Mr Siddiqui to Mr Manu Monga. Mr Monga was the Security Contract Manager and was not Mr Siddiqui’s direct supervisor. It was not clear why Mr Siddiqui escalated the matter directly to Mr Monga but Mr Siddiqui’s evidence refers to the following text messages he sent to Mr Monga:
· At about 7.05pm, “Do call me once you get free coz today loud noises from SOC from [the other employee]”.
· Again at about 7.05pm, “Recently he is sending unnecessarily to DOTL [a ‘Door Open Too Long’ alert] before 6 pm.”
· At 7.08pm, “Previously same DOTL 10 minutes ending before the shift. Today he started loud voice over radio.”
· Also at 7.08pm, “I believe he is your favourite Previously no action currently no action making my stress level high”.
· At 7.38pm, “Please arrange guard. I am not feeling well. I am going home.”
According to Mr Siddiqui’s evidence:
“Subsequently, at 7:38 PM, considering the lack of action taken and to avoid potential conflict, I informed Manu to arrange another guard and left for home. This decision was made in a professional manner to prioritize my well-being and prevent any escalation of the situation.”
These were not the only incidents. I note these incidents in part because Mr Siddiqui placed emphasis on them – they demonstrated possible “favouritism” by management towards the other employees. It is not necessary for me to resolve the rights and wrongs of each incident here, although I have significant reservations that Mr Siddiqui’s response demonstrated a “professional manner” as he claimed, even assuming his complaints about the other employee’s conduct were correct. What they do demonstrate, however, is that there was at least some apparent discontent among the security guards working at the university and that Mr Siddiqui had a marked degree of distrust of one or more co-workers.
On 30 January 2024, Mr Siddiqui was rostered for work. That day, Mr Siddiqui felt aggrieved by “the unfair assignment of duties”. His witness statement complains that he “was tasked with outdoor patrol in the heat, while “Mr. Zubair”[1] [another security officer] spent time in the air-conditioned room, not working.” Mr Siddiqui again escalated his complaint to Mr Monga directly, which he did via a number of after-hours calls to Mr Monga.
The exact complaints about Zubair’s alleged conduct are somewhat vague in the evidence but, as with the matters above, it is not necessary for me to resolve them. Notwithstanding, Mr Siddiqui’s statement asserts that as a result of no action being taken, that led him “to believe that the situation was being manipulated to create issues and potentially terminate my employment.” On this assertion, there is simply no credible evidence at all to support the proposition of “manipulation” but I accept it was Mr Siddiqui’s belief.
By this stage, Mr Monga had requested Mr Siddiqui put his complaint in writing. Later that evening by email to Mr Monga, Mr Siddiqui did so and he also implied a work colleague had been improperly taking items from a lost property collection. Mr Siddiqui requested Mr Monga “investigate this matter to ensure clarity and resolve any potential misunderstandings.”
On 31 January 2024, Mr Siddiqui was again rostered for work from 2pm to 10pm. Prior to his shift starting, at about 11.22am, he called Mr Monga to “address a potential conflict with Zubair”. Mr Monga also gave evidence about the matter. Before I address the telephone call itself, it is necessary to provide my observations about these witnesses.
Having assessed the two witnesses, I prefer Mr Monga’s account to the extent of any differences. My assessment of Mr Monga was that he sought to give his evidence without exaggeration, with appropriate acknowledgements when he could no longer recall matters, and while doing his best to answer honestly. By contrast, and even granting significant latitude to the fact that Mr Siddiqui was in a position he had unlikely been in before as a litigant, Mr Siddiqui’s evidence was deeply coloured by suspicion and impugned motives of a vast range of people, he was prone to exaggeration and frequently ignored the question asked of him and instead responded with speeches, demands, or questions of his own. I do not consider Mr Siddiqui was a reliable or credible witness. Mr Siddiqui also did not appear to have any insight as to how his own behaviour might be seen by others.
In the telephone call at 11.22am, Mr Siddiqui wanted to know about the investigation he had requested. At that stage, no investigation had started – so much is unsurprising. The call records indicate the call was approximately 53 seconds in duration. Mr Siddiqui says he offered to take the day off to avoid working with Zubair. Mr Monga cannot recall that. I accept Mr Siddiqui likely did make the request. I also find it likely that Mr Monga stated he would be looking into the matter raised by Mr Siddiqui.
Mr Monga’s response did not evidently satisfy Mr Siddiqui of the apparent urgency felt by Mr Siddiqui. Fourteen minutes later, at 11.36am, he sent a text message to Mr Monga threatening to make a complaint to the “fair work ombudsman”. His text message also asserted Mr Siddiqui’s belief that he was unfairly held accountable for what appears to be the matters in December 2023 and 11 January 2024, described above.
Mr Monga saw the text message at around the time it was sent. He happened to be sitting next to Mr Leigh Boughton, the respondent’s Chief Executive Officer, and showed him the message. Mr Boughton then called Mr Siddiqui. Mr Boughton gave evidence and was cross-examined. His witness statement includes the following description:
“During this call Hussain Siddiqui became very agitated and commenced discussing matters around his family, namely that he lost his children, at this point I had asked Hussain if he and his children were ok and how he lost his kids. Hussain then advised me that they got lost on the way to school and that he was very stressed about this. I advised Hussain that I am sorry to hear about his kids and that my call today was simply to advise that off the back of the messages sent to Manu that we take his matter seriously and that we need to follow the process of investigation. At this point Hussain Siddiqui continued to escalate and talk through matters not related to the complaint and I had to advise Hussain Siddiqui that I needed to end the conversation so we can continue to focus on the complaint.”
As with Mr Monga, I prefer the evidence of Mr Boughton to Mr Siddiqui to the extent of conflict between the two.
Despite the assurances given to Mr Siddiqui by the CEO of the company that an investigation would be commenced about the matters he had raised, that was evidently insufficient at that time for him. Mr Siddiqui’s view was that this highlighted the “unfair treatment compared to a previous incident”. According to Mr Siddiqui, the “lack of investigation and resolution indicates a deliberate attempt to create stress and issues leading to my resignation.” I do not accept there was an unfair treatment of this kind. I also note that Mr Siddiqui’s employment was later terminated and he did not resign.
Mr Siddiqui commenced his shift at about 2pm. He complains that, during the shift (and also from the day before), that another security officer, Zubair, had been “deleting my daily shift tasks”. There is no evidence that satisfies me that Zubair was in fact conducting himself this way, although I accept that Mr Siddiqui certainly believed this was the case. While the two protagonists appeared to be getting under each other’s skin, they almost made it through the shift without incident. Almost.
At about 9.50pm, Mr Siddiqui was in a discussion with another security officer, Mr Usman Shah. Mr Shah gave evidence and was cross examined. My assessment of Mr Shah was that he was honest, credible and generally level-headed. I have no hesitation in preferring his evidence to that of Mr Siddiqui in the events that follow.
Mr Shah and Mr Siddiqui were in an outside location, but reasonably close to the main control room. During that discussion, Mr Siddiqui was telling Mr Shah that Zubair has a habit of deliberately deleting his activity notes. While this conversation was occurring, Zubair was approaching from a nearby doorway. Mr Shah says, and I accept, that the door opening at that time of the night was easily heard. Mr Shah also says, and I accept, that Mr Siddiqui noticed it was Zubair coming through the door, although it would not make a difference to my conclusions that follow even if he did not.
Mr Shah says that, at this point, Mr Siddiqui continued talking but now (according to the incident report Mr Shah prepared some hours later) “using abusive language, and gesturing in CSO Zubair’s direction.” In his oral evidence, Mr Shah says that the language included “mother f**cker” and “sister f**cker”.
Mr Siddiqui’s language prompted a response from Zubair who returned fire with his own abusive language of similar nature. Mr Shah says Zubair’s level of abusive language was about “fivefold” of Mr Siddiqui’s.
Neither Mr Siddiqui or Zubair were restraining their voices at this stage. A fourth security officer, Mr Mushaf Mohammad heard “two voices hurling abuses”. Mr Mohammed gave evidence and, similar to Mr Shah, I consider that Mr Mohammad was an honest, reliable witness doing his best to give accurate evidence without exaggeration or embellishment.
The events in question at this point were a little chaotic and the narrative cannot be precisely described. There are, however, three particular stages that I am very clearly satisfied about. The first stage is what I have described above, which is the beginning of the incident involving the arrival of Zubair and the initial verbal altercation between the two.
The second element is where Mr Siddiqui has produced his telephone and started recording Zubair. In this stage, which happened quickly, Mr Siddiqui gives evidence that he recorded Zubair yelling something like “I am going to kill you”. While that video file was not in evidence, I accept the general nature of Mr Siddiqui’s claim here. I infer shortly after this, Zubair initially walked away, although only after intervention by Mr Shah.
The third stage, also within a short period following, was when Zubair returned. Evidently, he had more to say. At this stage, Mr Mohammed had arrived. Mr Mohammad describes Zubair “hurling abuses” towards Mr Siddiqui and the matter getting close to physical confrontation. Mr Siddiqui also recorded some or all of this period, although the recording was also not in evidence.
During this third stage, Mr Mohammed describes Zubair being the primary aggressor, perhaps a matter that is unsurprising given that Mr Siddiqui was recording matters, although in any event a matter that is clear from all three witnesses (including Mr Siddiqui). Mr Mohammed recalls Mr Siddiqui saying he got want he wanted on camera. Mr Mohammad also describes his attempt to physically interpose himself between Zubair and Mr Siddiqui to ensure matters didn’t further escalate. Mr Shah was making similar such efforts.
Zubair then left the scene. While there was some unrelated factual matters of dispute concerning the subsequent timing of when everyone left, it is not relevant to the determination of the matter.
At about 10pm, Zubair called Mr Monga (out of hours again for Mr Monga) to make a complaint about Mr Siddiqui. Mr Monga requested it be put in writing. At 10.05pm, Zubair lodged an email complaint about Mr Siddiqui to Mr Monga.
At 10.24pm, Mr Siddiqui lodged his own incident complaint about Zubair to Mr Monga, which Mr Monga acknowledged within about 20 minutes, along with stating that a complaint had been received from Zubair which would also be investigated. Mr Siddiqui also reported the matter to the police. At some point, he also provided the police with his video footage.
At about 10.30pm, Mr Monga requested other potential witnesses to provide statements. He received statements from Mr Shah and Mr Mohammed (both of whose evidence I have described above) and another security officer (who was not present at the actual incident and did not give evidence).
Victoria University was notified of the incident, I infer by Mr Monga, on 1 February 2024. The university informed Mr Monga that it would conduct its own investigation.
Mr Siddiqui was rostered to work on 1 February 2024 but called in sick. At about 9am that day, he and Mr Monga had a brief telephone discussion. In that call, Mr Siddiqui repeated his request for an investigation and Mr Monga said that was going to be the case and he would get back to him.
Mr Monga says that his subsequent attempts on that day to speak with Mr Siddiqui went unanswered.
On 2 February 2024, Mr Siddiqui advised he was sick and would not be at work that day.
Also on 2 February 2024, the university issued a written directive to the respondent. The letter relevantly stated:
“A review of the incident involving Hussain Siddique and [Zubair] has been conducted and in our view does not meet our expectations of behaviour for the following reasons as per your contractual arrangements:
Section 4 para b) acts in a discourteous manner and parts and para d) acts in a manner which may be construed as sexual harassment, racial or ethnic intolerance or offensive behaviour.
Hussain Siddique and [Zubair] are to be removed from the contract effectively today.
Should you wish to discuss the incident please feel free to contact me.”
Mr Monga says he attempted to contact Mr Siddiqui to discuss the above outcome but was unsuccessful with his attempts.
At 3.39pm on 2 February 2024, Mr Monga sent an email to Mr Siddiqui titled “Termination from Contract”. The email stated:
“I tried to call you multiple times and left a message.
As per your complaint and complaint received from 2nd CSO regarding altercation between yourself and Zubair where you both were involved in aggressive and abusive altercation with each other during your shift.
Our Client VU was aware of this and they have advised Allied Security to remove all persons involved in that incident as this type of behaviour is not tolerated at the workplace.
Please see warning letters attached along with your immediate termination.”
There were four attachments to the email, described as First Warning, Second Warning, Final Warning and Termination Letter. The three ‘warning’ letters were dated 1 February 2024.
The first warning was titled “Not following SOPs” (which I infer is a reference to Standard Operating Procedures), and appears to be a warning for the DOTL incident described above, albeit specifically for not actioning the ‘door open’ alarm quickly enough.
The second warning appears to be a document titled “First Warning – Providing misleading and incorrect information” and appears to relate to some event prior to the events of 31 January 2024.
The final warning was titled “Final Warning – Not Following SOPs – Breaching Code of Conduct”. It relevantly stated (original emphasis):
“You were engaged in an aggressive and provocative argument with another CSO and at one stage with SOC operator over the locker issue.
Upon investigation and witness statement, it is confirmed that both CSO’s involved were aggressive and abusive.
This type of behaviour at work is not acceptable to Allied and our Client VU.
Any further incidents of this nature will result in disciplinary action and possible termination.”
The letter offered an “additional meeting”, if so required, although it is not clear when this would have occurred given the letter of termination also attached.
The termination letter is also dated 1 February 2024. It relevantly stated:
“I am writing to you today after executing and completing an investigation around with the Security Management team at Victoria University in regard to abusive and aggressive behavior demonstrated by you whilst at work.
An investigation was conducted on 31st Jan 2024 and 1st FEB 2024 after receiving complaint from yourself and your colleague [Zubair], you both were see aggressive behavior towards each other and statement form the witness mentioned that you initiated the abusive slur and then both engaged in abusive and aggressive altercation.
After the investigation a client has advised Allied Security to remove both involved personal from the contract.
This letter is to advise you of instant dismissal from all VU Sites as of now.
The termination is effective immediately and Allied Security require you to return your uniform, ID, FOB and any issued items to your Manager Manu Monga immediately. Once all items have been returned your final pay will be executed.”
It is not clear whether the letter from the university to the respondent, which I have set out above, was provided to Mr Siddiqui. I infer it was not provided at the time.
The evidence before me is that Mr Siddiqui’s termination of employment was treated as a summary dismissal, with no notice of termination being provided. The evidence is that Zubair’s employment was similarly terminated summarily.
On the possibility that Mr Siddiqui might have been redeployed, there was no evidence before me suggesting any such opportunity and it was not submitted as an option. In his oral evidence, Mr Boughton stated that there were not such redeployment opportunities. His evidence was not challenged and I have no basis to doubt it.
Consideration
Mr Siddiqui was an employee protected from unfair dismissal: s 382. For a dismissal to be unfair, it must also be harsh, unjust or unreasonable. Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.
Section 387(a) – valid reason relating to capacity or conduct
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3]
The reasons proffered by the employer were initially somewhat confused. In part, the employer appeared to rely upon the conduct of Mr Siddiqui, perhaps coupled with the alleged earlier conduct issues of Mr Siddiqui, as the reason for dismissal. In this respect, for the reason to be sound, defensible or well founded, I would have to be satisfied that Mr Siddiqui engaged in conduct of a kind that would support dismissal.
However, as became clearer during the course of the hearing, the primary reason for the dismissal was because of the directive that the employer received from the university to remove Mr Siddiqui (and another) from the worksite. The letter of termination from the respondent to Mr Siddiqui states that the “client” had advised to have Mr Siddiqui and the other employee removed from the contract (being the contract with the university).
The directive given by the university was a sound reason to have Mr Siddiqui removed from his role at the university. The university was plainly a key client of the respondent, the latter of whom is not a particularly large organisation. While the contract between the respondent and the university was not before me, Mr Boughton gave evidence that the university has options for staff removal, which I do not doubt. More to the point, for commercial reasons alone, there were sound reasons for the respondent to comply with the university’s wishes, even if the university did not have a contractual right to enforce those wishes.
It does not automatically follow that the requirement to remove Mr Siddiqui from the university location required his employment to be terminated but, in the present case, I am satisfied it does. Mr Boughton gave evidence, which I accept, that there were no alternative positions available. That evidence was not challenged and it was not otherwise suggested that such positions were available or ought to have been made available.
I am satisfied that the directive given by the university to remove Mr Siddiqui from the site constituted a valid reason for dismissal, because it directly affected his capacity to perform the work he was engaged to perform.
I also would ordinarily have been inclined to accept the conduct of Mr Siddiqui, as constituted by his altercation at the end of the shift of 31 January 2024, to provide a valid reason for dismissal. The employer’s case on this element was somewhat confused but it does not appear from its Form F3 response nor the termination letter that it was independently relying upon Mr Siddiqui’s conduct as such, although in a number of instances it seemed as if it did. However, the Form F3 again clearly refers to the decision by the university to have Mr Siddiqui removed from the campus as the reason for dismissal, as does the letter of termination. As I am satisfied the university’s action supplied a valid reason for dismissal, I need not say anything further on this issue.
I reject as a valid reason the events of December 2023 (the “locker” incident) and the “DOTL” matter. While Mr Siddiqui was notionally given a written warning about those matters, the warning was delivered well after the event and only at the time he was being summarily dismissed. No witness who observed those matters was called to give evidence about them by the employer and, on the material before me, I am not satisfied any of those matters were established such that they support a valid reason for dismissal.
At the conclusion of the hearing before me, Mr Siddiqui requested an adjournment of the case or that he be otherwise allowed to tender the video footage he took from his camera phone. The footage was not in his evidentiary material. I rejected that request and I will briefly record my reasons for doing so here for completeness. First, the material should have been included in Mr Siddiqui’s evidence. If he was having difficulties, he should have raised that well before the hearing and arrangements could have been made. Second, Mr Siddiqui’s video did not capture the initial events of the altercation, which I consider particularly important, and where Mr Siddiqui’s conduct was poor. Mr Siddiqui invited me to reject Mr Shah’s evidence based on his videos but there is no basis for me to do so, because the first stage of the encounter was not being recorded. Third, Mr Siddiqui was suggesting that Mr Shah and Mr Mohammad would need to be re-examined, a matter that I considered entirely unacceptable. They had each left the court premises at the time Mr Siddiqui was raising this. Finally, Mr Siddiqui was still capable of giving evidence about those matters and cross-examining witnesses and he did so. Specifically, I accept various general propositions of evidence by Mr Siddiqui, namely that he was (relatively) the least aggressive of the two protagonists and aspects of the threats made against Mr Siddiqui. But as Mr Shah’s evidence makes clear, Mr Siddiqui was far from blameless in the critical first stage. It is also unsurprising that Mr Siddiqui toned down his own language once he started recording Zubair.
Section 387(b) – notification of reason
Mr Siddiqui was notified of the reason for his dismissal, albeit only at the time he received the letter of dismissal.
Section 387(c) – opportunity to respond to reason for dismissal
Mr Siddiqui was summarily dismissed.
The respondent provided evidence that it had made attempts to contact Mr Siddiqui to advise him of the “outcome” of the university’s investigation and indicated that Mr Siddiqui was not answering his telephone. Given Mr Siddiqui’s propensity to send emails and escalate matters at all hours of the day, there is little doubt that a text message notification or email warning would have been sufficient to alert Mr Siddiqui that dismissal was being considered and Mr Siddiqui was requested to contact the employer. This was not undertaken.
I conclude that Mr Siddiqui was not given any meaningful opportunity to respond to the reasons for dismissal.
Section 387(d) – unreasonable refusal for a support person
While Mr Siddiqui was not informed that he might wish to have a support person, there was no evidence he wished to have one and no evidence of any “refusal” for such a person. That being noted, in circumstances where Mr Siddiqui was summarily dismissed without notice, the opportunity for a support person was practically non-existent.
Section 387(e) – whether warning for unsatisfactory performance
Mr Siddiqui was not dismissed for unsatisfactory performance (as distinct from capacity or conduct or from the directive of the university). The requirement of s 387(e) are therefore not relevant. So far as the employer might consider that the three warning letters issued at the time Mr Siddiqui was dismissed constituted warnings for unsatisfactory performance, I reject that contention.
I do note that Mr Monga’s statement refers to Mr Siddiqui having previously been given verbal warnings for what appears to be the ‘locker’ incident, it is unclear what the warning contained, or when it was given. However, for the reasons indicated in the previous paragraph, I do not consider that s 387(e) is relevant to the present claim given the employer’s reasons for dismissal I have set out above.
Section 387(f) & (g) – employer size and human resources capability
The employer is not a small business but neither is it a large enterprise. It does not appear to have any dedicated human resources capacity, which appears likely to have impacted on the procedures followed in effecting the dismissal.
Section 387(h) – other matters
Neither party drew my attention to any matter that I consider would weight in favour or against an overall finding about the dismissal for the purposes of s 387 not already addressed above.
Mr Siddiqui asserts that he has never received any verbal warning in the past from anyone. While that might be arguably correct, it at least appears that he has been verbally counselled by Mr Monga, and possibly warned. He was also separated from working with another employee in December 2023 and the evidence before me indicates Mr Siddiqui has little insight into his effect on others.
Mr Siddiqui repeatedly asserted that he had been targeted or discriminated against for months. I am not satisfied from any of the evidence led by Mr Siddiqui that this was the case. On the evidence before me, the opposite would appear to be the case. The employer was doing its best to deal with a challenging employee, who was involved in multiple arguments with other employees. The evidence before me indicates that the employer was doing its best to be even-handed and patient in what were often trying circumstances.
Finally, Mr Siddiqui’s treatment was consistent with the other employee who was also dismissed. While the evidence shows that the other employee was the more serious protagonist of the two, the outcome for Mr Siddiqui was not disproportionate. Both were also subject to the university’s directive.
Overall consideration – whether unfair
Having considered each of the matters specified in section 387 of the Act, I am satisfied that the dismissal of the Applicant was unjust.
While there was a sound reason – based upon the directive from the university and no alternative employment options – to terminate Mr Siddiqui’s employment, it was not necessary for him to have been summarily dismissed. The university was entitled to issue a directive to the employer, without any finding of fault on the employer’s behalf. So much can be accepted in ordinary commercial relationships between a service provider and client. The consequence of this no-fault contractual right exercised by the university was that Mr Siddiqui’s (and another) employment was no longer viable. But that does not allow the employer to terminate Mr Siddiqui’s contract of employment summarily; the employer was required to give notice and it did not do so. (And to repeat my observations above, while the employer faintly appears to rely upon Mr Siddiqui’s misconduct as a basis for dismissal, this is ultimately not what it did and nor did it provide the necessary procedural fairness if that is what its intention was.)
As the other jurisdictional requirements under s 385 have been met or are not relevant, I am satisfied that Mr Siddiqui was unfairly dismissed from his employment.
Remedy
Having found that Mr Siddiqui was unfairly dismissed, I now consider remedy. I am not satisfied that it would be appropriate to make an order for reinstatement in circumstances where the employer was directed to remove Mr Siddiqui from the university campus and Mr Siddiqui’s own conduct leading to that direction. Even if there were available positions, I would not order reinstatement due to Mr Siddiqui’s deeply rooted suspicion of the motives of management and work colleagues. By way of but some examples from many, Mr Siddiqui accuses the respondent of “mismanagement and bias”, “favouritism” (to others), and being “targeted” among other similar allegations.
I am satisfied that an order for compensation in lieu of reinstatement is appropriate, and that the appropriate amount is one week’s wages in lieu of the period of notice that Mr Siddiqui ought to have been provided. I base this conclusion on the factors in s 392 of the Act. Primarily, Mr Siddiqui would have been employed for no longer than his correct notice period, had notice been given.
The contract in evidence states this period was one week. This is the period I find Mr Siddiqui would have continued to work for or that he would have been paid in lieu. None of the factors in s 392(2) would operate to discount this amount to a lesser period.
For the purposes of s 394(3), while I am satisfied that Mr Siddiqui’s misconduct contributed to the employer’s decision to dismiss Mr Siddiqui, I will not reduce the amount of compensation on account of that misconduct.
Mr Siddiqui’s employment contract states that his ordinary hours are between 32 – 44 hours per week. I assume there is an averaging system of some kind, and his average ordinary hours are the midpoint, being 38 hours per week. Mr Boughton stated there was an eight week cycle.
At the conclusion of the hearing, I requested the employer to provide copies of Mr Siddiqui’s most recent payslips. Mr Siddiqui was paid weekly, based on work undertaken. There was some considerable variation between the gross amounts of pay in the payslips, reflecting hours worked, whether the work was at day or night, whether the work was on a Sunday or a public holiday.
The three most recent complete pay periods prior to dismissal showed gross pay of $1,183.18 (for the week ending 14 January 2024), $893.73 (for the week ending 21 January 2024) and $862.50 (for the week ending 28 January 2024). An average of those amounts is appropriate and neither party made a submission about any alternative amount, which I calculate to be $970.80 for one week.
I note that Mr Siddiqui asserts that he was being discriminated against and the more favourable shifts (eg weekends) were being given to others, such that his weekly amount should be higher. There was simply no coherent evidence of this beyond Mr Siddiqui’s assertion and I am not satisfied the amount should be increased on account of those claims. I note in his application that Mr Siddiqui states he was not correctly paid from 15 May 2023 to 20 August 2023. This is not a matter I can address for an unfair dismissal remedy.
Order
In light of the above, I will make an order that the Respondent pay $970.80 gross less taxation as required by law to Mr Siddiqui in lieu of reinstatement within 14 days of the date of this decision. An Order[4] giving effect to these reasons will be issued together with this decision.
DEPUTY PRESIDENT
Appearances:
H Siddiqui on his own behalf
L Boughton from the Respondent
Hearing details:
2024.
Melbourne:
May 2.
[1] Consistent with how the parties have referred to this employee in their filed material, he is referenced simply as ‘Zubair’ in this decision.
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Ibid.
[4] PR776778.
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