Jawwad Hashir Chowdhary v EG Fuelco (Australia) Limited
[2022] FWC 1945
•27 JULY 2022
| [2022] FWC 1945 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jawwad Hashir Chowdhary
v
EG Fuelco (Australia) Limited
(U2022/1696)
| DEPUTY PRESIDENT DEAN | CANBERRA, 27 JULY 2022 |
Application for an unfair dismissal remedy – valid reason – dismissal not unfair – application dismissed.
Mr Jawwad Hashir Chowdhary was employed with EG Fuelco (Australia) Limited (EG Fuelco or the Respondent) as a Console Operator on a permanent part-time basis. His employment was summarily terminated on 19 January 2022 after he proceeded on a period of unapproved leave from about 13 December 2021.
On 8 February 2022 Mr Chowdhary made an application for a remedy pursuant to s.394 of the Fair Work Act 2009, alleging that he had been unfairly dismissed. He seeks compensation as a remedy.
The hearing of the application was conducted by video on 14 June 2022. Mr Chowdhary was self-represented and Ms H Saville (Employee Relations Specialist of EG Fuelco) appeared for the Respondent. Mr Chowdhary gave evidence on his own behalf and Mr Brett Fogarty gave evidence for the Respondent.
For the reasons set out below, I have reached the conclusion that Mr Chowdhary’s dismissal was not unfair and have determined to dismiss his application.
Factual Background
There is little controversy concerning the material facts.
Mr Chowdhary commenced employment with Woolworths Group in November 2015. His employment was transferred to EG Fuelco in January 2021. At the time of his dismissal, he was employed at the Respondent’s fuel site at Belconnen, ACT, and worked his usual weekly shifts on Saturdays and Sundays.
From mid November 2021 Mr Chowdhary made a succession of applications for annual leave, all of which were refused. These applications, details of which are set out below, precipitated him taking a period of unapproved leave which ultimately led to his dismissal.
EG Fuelco’s policy on annual leave is contained in its Leave Policy at clause 2. Relevantly it provides at clause 2.2 the following:
“2.2. Taking Annual Leave
Annual Leave may be taken at a time which is mutually convenient for both the Team Member and the business.
Approval of Annual Leave will be at the discretion of the Team Member’s Line Manager.
Team Members are encouraged to take Annual Leave within 12 months of the leave accruing.
Note: As a retail organisation, Christmas and Easter are EG Group’s busiest periods. Annual Leave will not generally be authorised during the lead up to Christmas and Easter unless there are extenuating circumstances.”
On 16 November 2021, Mr Chowdhary applied through the Respondent’s online portal for annual leave for the period from 28 November 2021 to 20 February 2022. He was advised via a text message by his former manager, Ms Prosser, that his leave request had been denied due to “the cafe opening and Christmas”.
Ms Prosser also asked him to direct any issues to the incoming Store Manager for the Belconnen site, Mr Brett Fogarty. Ms Prosser further told Mr Chowdhary that Mr Fogarty was on leave at the time and that he should contact Mr Ibrahim Azzad (Assistant Store Manager) or Mr Chris Nyman (Area Manager) during his absence.
In the following days Mr Chowdhary sent separate messages to Mr Sunil Karki (another staff member at Belconnen site), Mr Azzad and Ms Prosser about the refusal of his leave request. Mr Karki and Mr Azzad both told Mr Chowdhary that they had no authority to approve his leave application. Ms Prosser reaffirmed that his leave request had been declined and advised that she refused on behalf of Mr Fogarty at the Area Manager’s request. Ms Prosser also sent him a screenshot of clause 2.2 of the Company’s Leave Policy and told him to “have a chat with People Services” if he had any questions about the Leave Policy.
Mr Chowdhary submitted three further leave applications through the online portal on 20, 25 and 28 November 2021, all of which were declined. Each of the three requests sought a slightly different period of leave ranging from 13 to 14 weeks: 28/11/21 to 27/2/22, 4/12/21 to 6/3/22 and 4/12/21 to 13/3/22 respectively. The record of Mr Chowdhary’s applications in the leave portal annexed to the Respondent’s submission indicated that he entered the following comments on 20 November: “I have applied my annual leave for 3rd time. As I mentioned last time I cannot work during this time frame due to my personal engagement. Therefore kindly approve this. I shall be very thankful to you.” There were no comments entered for all his other leave requests.
On 3 December 2021, Mr Chowdhary informed Mr Karki that he was unwell and would not be attending work the next day. In the following morning on 4 December 2021, Mr Fogarty contacted Mr Chowdhary by telephone. This was the first time the two spoke since Mr Fogarty commenced as the Store Manager on 22 November 2021. During this conversation, Mr Fogarty told Mr Chowdhary that he and Mr Nyman wanted to meet with him to discuss concerns about his personal leave absences over the preceding six months (which amounted to some 17 days). Mr Chowdhary was asked to provide his availability for the following week within the next 24 hours.
On 6 December 2021, Mr Chowdhary wrote a lengthy text message to Mr Fogarty in which amongst other things he expressed frustration that his leave applications he had made in the previous month had been refused; that he was not able to work in that period due to ‘personal issues’ and that he did not understand why his ‘entitled’ leave was not approved. The text message reads:
“Good Morning Brett,
1- Please don’t forget to process my sick leaves, which I have already applied through EG portal (Medical Certificate has already sent to you and to 3IC).
2- I have applied my annual leaves from more than one month and every-time it had been refused. I asked about ‘previous manager’ via text msg on 20th of November 2021 about refusal, she replied that on behalf of ‘Brett’, she is refusing my ‘entitled’ annual leave application.
3- (a) As I already discussed with previous manager that due to my personal issues, I am not in the state of working during that period of time.
(b) I am always happy to help like I did last time on Thursday (when you had not found any one to cover and ONLY me covered that).
As I am very sensible person & employee, therefore I don’t want to create sudden emergency for management to arrange someone on my shift during this time.
(c) I still don’t know why management take my matter very personally and not granting me my entitled annual leaves, which I have applied since the beginning of November. However, other employees are getting their annual leaves, also couple of colleagues are now on “Unpaid annual leaves”.
(d) I have cancelled my annual leave on 06 November 2021 just because of previous managers’ birthday.
(e) From last more than 6 years I am covering all public holidays as a favour, but this year, as I mentioned before, due to my personal issues I cannot work for time being, that is the reason I continuous asking for annual leaves.
(f) I really want to sort-out my matter on store level, if this simple matter is difficult to sort-out at store level then I have no option to go further up, until resolved.
4- (a) You called me on Saturday at 9am and talked to me in a very “rude tone” (might be I felt wrong because we never met face-to-face) and informed me (with exact wordings) Area manager “WANTS” to meeting with me and “WITH-IN” 24 Hours I have to tell date and time for that meeting.(As I was sick on Saturday and I already informed Sunil (3IC) on Friday night.)
(b) Could you please send me Pre-brief/agenda of meeting along-with duration of meeting, which will enable me to find appropriate day and time for that. I shall be very thankful to you if you send me an agenda of meeting on email address mentioned below; [email address omitted]
5- Kindly give me para-wise reply of my concise message. Para 3(a)(c)(d)(e)(f) are just for your information and don’t need reply.
Regards,
Jawwad Hashir Chowdhary
New Employee ID: [omitted]
Old Employee ID: [omitted]”
Mr Fogarty responded to Mr Chowdhary later on the same day in the following terms:
“Hi Jawwad
I have entered your sick leave in as we speak
I will formulate agenda today for the meeting
I’m sorry if I come across as rude or aggressive
As you know we had a death in the store last week and under a lot of pressure from cafe opening
For that I sincerely apologise
We will address leave issues in meeting
I will forward this message and your concerns on to Area Manager.”
On 10 December 2021 Mr Fogarty sent a text message to Mr Chowdhary about the proposed meeting:
“Hi Jawwad
I have confirmation from area manager for meeting next week
He can either be here on Monday, Friday, Saturday or Sunday
Can you please select a day that is convenient for you
This is a formal discussion so you have the right to bring a witness.
The topics that will be covered are your excessive sick leave and your annual leave request as well as any other concerns you may have”
Mr Chowdhary sent a text message in response on 11 December 2021:
“Hi Brett,
I am not well, also yesterday, my mother in law admitted in ICU with critical condition. I am finding tickets to visit her in my home country ASAP.
I will provide medical certificate for my todays’ and tomorrow absence. also will provide you copy of my tickets after confirmation of it. I will let you know about meeting when I return.
Currently, me and my family is under extreme tension, pressure & stress.
Hopefully, you will understand my condition.
Regards,
Jawwad
Cc to Mr. Ibrahim (2ic)”
On 13 December 2021 Mr Chowdhary sent screenshots of flight tickets to Mr Fogarty which indicated his departure for overseas that evening. This was followed by a response from Mr Fogarty saying “Are you available to talk please” to which he responded in the following terms:
“I am on the way of Sydney. Going to Pakistan. Kindly approve me annual leaves. As I informed you before, I am going in emergency situation. I will back ASAP and have a meeting with you & Area Manager.
I cannot talk properly due to extra stress and tension. My mother in law in ICU having critical condition. Hopefully you can understand. When I will return definitely we will sort out any issue/concerns (if we have).”
Following a series of text messages exchanged with Mr Azzad whilst abroad, Mr Chowdhary asked Mr Azzad on 17 December 2021 to remind Mr Fogarty to process his annual leave. Later on the same day, Mr Fogarty sent a text message to Mr Chowdhary, stating that the matter was no longer dealt with at Store level and asking him to direct any further correspondence to Mr Nyman. Mr Fogarty later sent him Mr Nyman’s mobile number and email address.
On 20 December 2021 Mr Chowdhary was issued with a letter (Show Cause Letter) from the Acting Area Manager, Ms Jane Soderborg. The Show Cause Letter reads:
“Dear Jawwad
Review of your Employment
As you are aware, you have been unable to perform your full duties as Console Operator since 13 December 2021.
On 11 December, you sent a text message to your ASM advising that you are leaving for Pakistan on 13 December 2021 and no further update of your situation or when can I expect you to return to work. While it is my intention to support you with a successful return to work, I cannot maintain your position open indefinitely.
In these circumstances, I am currently considering the options available to me in respect of your continued employment or whether I should terminate your employment on the basis that you are unable to fulfil the contractual obligations of your role.
In order to ensure that we have been provided with all relevant information prior to making this difficult decision, I would like to offer you the opportunity to provide the Company with any information, supported by evidence that demonstrates why your employment should not be terminated.
For any additional information to be considered, I request that you respond to me in writing, including any necessary supporting evidence no later than Wednesday 29 December 2021.
I respectfully advise you that should you fail to respond by this date or provide a response that includes sufficient information (including supporting evidence), we will make a decision about your employment based on the information currently available.
I understand that this may be a difficult time for you so I would like to take this opportunity to remind you of the Employee Assistance Program (EAP). This is a confidential counselling service which you can access by contacting on [telephone number omitted]
Yours Sincerely
Jane Soderborg
Relief Area Manager – Canberra Western
EG Australia”
On 28 December 2021 Mr Chowdhary provided his written response to the Show Cause Letter. In his response, he outlined the sequence of events leading up to the show cause letter which are largely uncontroversial. Under a heading ‘My Humble Requests’, Mr Chowdhary raised a series of questions which read as follows:
“P-That I want to know either it is normal practice/policy of the company to issue a Show Cause Letter within 7 days without sort of any notification or warnings to an employee who worked more than 6 years with this company who has already more than 259 hours of annual leaves in his account?
Q- That I want to know is it normal practise/policy of the company to NOT granting ‘Entitled Annual Leaves’ to your every employee even after requesting their right, again and again or in extreme unforeseen/unavoidable circumstances?
R- That I want to know IF other colleagues/employees are on annual leaves (paid/unpaid) for a long time, either company dealing with them in the same manner as of my case?. Or company taking my case personally? (Is that not falling under definition of discrimination?)
S- That I have firstly applied through portal my annual leave on 16.11.2021, till the time company has not found any other substitute for me to cover my shifts? (Is it not a question mark of poor Store Management?)
T- That I want to know who is responsible for all those unjust acts or omissions against me?
U- That I want to know is it normal practise/policy of the company NOT to grant ‘Entitled Annual Leaves’ despite one month prior application of applying and instead of granting Entitled Annual Leaves sent a ‘Show Cause Letter’ with the ‘threat of termination’? (does not it come under unlawful practice?)
V- That I requested, time and again, to solve this matter at store level; was that matter so complicated where store management was not capable enough to solve this matter at store level/initial stage? (Question mark on the capability of the Store Management to handle the petty situation)
W- That I am requesting the company to probe this matter and figure out why this matter is taken not professionally and unnecessarily dragging this to a higher level to waste my time and precious time of the higher management on the minor issue.”
Mr Chowdhary further stated, amongst other things:
“i.My mother-in-law is still in a critical health condition and my family is suffering a tough time, firstly she was admitted to the Doctors Hospital Lahore, now she is admitted to Sheikh Zaid Bin Sultan Hospital Lahore. From 10.12.2021 till the date and time, again she is in critical condition and still hospitalized.
ii. My confirmed return ticket is on 07.03.2022.
iii.I have ‘259.21’ remaining Paid ‘Entitled Annual Leaves’ hours which I earned after working a long time with company.
iv.If you need any other information/evidences, I am glad to provide further if so required.”
Mr Chowdhary concluded in his response amongst other things the following:
“I am requesting you again that my case is a very simple ‘open and shut case’, by granting ‘Entitled Annual Leaves’ of the employee who has been working more than 6 years with this company with all dedication, sincerity and hard work. I tried my best to resolve my issue on lower/initial level but unfortunately, without reciprocal attitude.
Therefore, I am humbly requesting you, please deal/handle my matter according to law and legislation provided by the regulator; otherwise, I don’t have any other option except to knock every appropriate door to pursue my case till get my legal rights on return onshore.
Hopefully, after this detailed reply/response, there will no further confusion or misunderstanding on part of the company, and will understand my case very sympathetically according to state of affairs envisaged by me and my family, and will grant immediate my ‘Entitled Annual Leaves’ from the date of 16.11.2021. I will be on duty in March and will report to the company upon my arrival and start and fulfil my duties again as usual.”
On 18 January 2022 Mr Chowdhary sent a ‘follow-up letter’ to Ms Soderborg stating that he was still waiting for a reply of his show cause response. The letter concluded by stating the following:
“I am requesting you again kindly approve my ‘Entitled Annual Leave’ along with all my lawful entitlements. The Delay in approving my lawful right is making this matter more complicated and unjust.”
Prior to the letter of 18 January, Mr Chowdhary made two further online leave applications on 14 January 2022 for the periods from 1 March 2022 to 31 March 2022 and from 1 April 2022 to 30 April 2022.
By letter of 19 January 2022 Mr Chowdhary was notified of his dismissal with immediate effect. The letter, also written by Ms Soderborg, relevantly reads:
“I refer to the show cause letter sent to you on 20 December 2021 advising you that I was considering terminating your employment with EG Australia due to you not being able to perform full duties as a Console Operator since 13 December 2021.
You respond to the show cause letter on 28 December 2021 in which you accepted that you departed the country on 13 December 2021 despite your annual leave being declined on 16, 17, 24 and 28 November 2021.
You are aware that annual leave may be taken at a time which is mutually convenient for both the team member and the business. As a retail organisation, Christmas and Easter are EG Group’s busiest periods. Annual leave will not generally be authorised during the lead up to Christmas and Easter unless there are extenuating circumstances. Prior to 11 December 2021, you at no point discussed with your Line Manager you intend to apply for annual leave or provide any reasons during the busiest period.
By proceeding to leave the country whilst your annual leave was declined, you have breached the EG Australia Leave Policy and your Contract of Employment.
I have now carefully considered all of the available evidence and have made a decision to terminate your employment. Your employment will end on 19 January 2022 and any accrued but untaken annual leave entitlement will be paid to you.”
Case for the Applicant
Mr Chowdhary submitted that his leave requests were unreasonably denied even though he was in ‘unforeseen, unavoidable and extenuating circumstances’. In essence, Mr Chowdhary described his own extenuating circumstances as:
“I was suffering mental pressure, tension and stress due to the critical condition of my mother-in-law in my hometown. My wife was under great tension and stress due to her mother’s condition overseas, which was also impacting my health.”[1]
Mr Chowdhary relied on the following matters in support of the claim that his leave applications were unreasonably refused:
· His leave request first made on 16 November 2021 was more than 38 days before Christmas period. “I continuously tell them due to my personal circumstance I cannot work and need my annual leave.”
· The reason that his leave request was denied due to the opening of the café was “totally unreasonable because staff were informed on a WhatsApp group on 4 September 2021 that there will be no cross over between fuel and cafe beside management.”
· Annual leave was granted to two other employees during that period of time.
· He had been covering Christmas/Easter period since 2015. When he was rostered on his ‘religious holiday’ he worked without any excuse even though “it was my right to take time off on a religious day”.
· “I worked hard with sincerity and dedication and always covered shifts when my manager needed them. … Also, I did work regular 38 hours/week during the extreme Covid-19 crisis in 2020, when the company was actually struggling with shifts cover.”
· “I had 254.05 hours of annual leaves in my annual leaves account which I earned after continuous work with this company, which was my right to use any time of the year without any unreasonable refusal. In my circumstances, I requested leaves to visit my unwell mother-in-law. My request for leaves were for my genuine need, it was not for enjoying vacations.”
Mr Chowdhary alleged that during his first encounter over the telephone with Mr Fogarty on 4 December 2021, he spoke to him with a ‘rude and aggressive’ tone which alleviated his stress level and that he was “feeling like a slave and working forcefully for this company.”[2] He did not tell Mr Fogarty that his mother-in-law was unwell during that call because he “never worked with him and was not comfortable to discuss anything with him”.[3]
In relation to the sick leave taken between October and November 2021, Mr Chowdhary said: “I was on sick leaves due to my stressful condition and highly tense situation. The management did not consider/bother or ask about my sick leaves or whether a team member is in good health/mental condition or not.”[4]
Under cross examination, Mr Chowdhary was asked why he did not want to attend the formal meeting to discuss his leave and gave the following reasons[5]:
a.“I want a complete agenda of the meeting … I don’t know what was the agenda of the meeting.”
b.That he told his previous manager to refer the matter to HR but HR never contacted him and no HR representative was included in the meeting.
c.“Because I used to work with this company for the past six years and suddenly one person want to meet with me without any solid reason.”
d.“Because I was not in the same mental condition. I was in extreme stress. My wife was pregnant and also my mother-in-law was not well, and she has died now, and I want to travel overseas and company did not grant me my annual leave.”
When being asked why he did not tell the store manager or area manager that his mother-in-law had passed away, Mr Chowdhary said:
“They didn't ask. On my letter, I asked that, ‘If you need any extra information, you can ask.’ I already told you that there was no empathy, no sympathy, the store manager was very crude with me, very harsh with me. How can I just explain each and every thing?” and “I was just thinking that the HR level, HR department, would contact with me, so I didn’t tell [the store manager] about she passed away.”[6]
Mr Chowdhary conceded in cross examination that he submitted a further application on 14 January 2022 requesting leave until 30 April 2022. When being asked why he still needed another three and a half months out of the country after his mother-in-law passed away on 10 January 2022, Mr Chowdhary said:
“Because it was COVID time and I was in Pakistan. There was no flights because until the time I haven't received the confirmation because at the exact time, the flight was cancelled. So there was not regular flights and that was the Omicron period. So, definitely, when I have to come back, I need to quarantine, so definitely - and also I have my annual leave, which I want my annual leave, 254 hours, which I can utilise any time. So, I have to come back, I got a week notice from my employ - a week notice from my agent and I had to find another property, which I'm living there. That's why I just applied because then I have to come back, I have to find a property which I have to live. This is the reason. And I have 254 hours, so I can utilise any time. There is no compulsion on me that I can't use - and even the company - the company did not grant my annual leave, so there is no point to ask me that why I am applying.”[7]
Mr Chowdhary further conceded that in his follow-up letter to Ms Soderborg on 18 January 2022, he did not mention of his mother-in-law or her condition. In this regard, he said: “Exactly, because there was no sympathy, no empathy, no HR level tried to contact me.”[8]
Mr Chowdhary submitted that his dismissal was unfair and unreasonable and there was no proper procedure and communication followed contrary to the terms in the Enterprise Agreement[9] and the National Employment Standards.
He said that he was removed from the WhatsApp group on 17 December 2021 which demonstrated that the management had already made the decision to terminate his employment.
He asserted that the leave policy is ambiguous in that it only contains numbers under the ‘Table of Content’ and that he only received it for the first time on 13 March 2022 along with the Respondent’s response after the unfair dismissal application was made.
Mr Chowdhary also made submissions criticising the Respondent’s failure to apply clause 14 of the Leave Policy which provides that an employee may take a period of unpaid leave for up to 6 months in exceptional circumstances.
In deciding to terminate his employment, the Respondent did not consider his circumstances and situation and the financial difficulty he faced.
Mr Chowdhary submitted that throughout his employment he never had any issues regarding his work and/or behaviour, that he was always helpful to management and was never guilty of misconduct ever since joining the company.
In concluding his submissions, Mr Chowdhary said:
“My termination was based on discrimination and differential treatment, firstly management was very rude to me on many occasions. Secondly, even after knowing my circumstances and situation, the company did not grant my leaves which I requested time and again. Thirdly, management did not put effort to find any employee (among 4200 employees) who can cover my shifts. Lastly, after knowing my situation, management refused my leaves request and wanted from me to do shifts/work as usual and not visit my unwell mother-in-law (deceased).”[10]
For these reasons Mr Chowdhary submitted that his dismissal was unfair, unjust and unreasonable.
Case for the Respondent
Mr Fogarty gave evidence that he became aware of Mr Chowdhary’s leave applications on or about 1 December 2021 from his former Store Manager, Ms Prosser. According to him, he was of the understanding that Mr Chowdhary’s reasons for requesting annual leave was that “he has worked the previous five Christmases and that he’s due for one off.”[11]
Mr Fogarty said that Mr Chowdhary’s periods of personal leave over the six month period between 5 June and 28 November 2021 amounted to 17 days. This raised concerns as to his wellbeing and if there were other factors that were causing him to be regularly absent from work. He and Mr Nyman (Area Manager) therefore considered it necessary to have a discussion with him.
Mr Fogarty said that the purpose of his telephone call to Mr Chowdhary was to ask him to provide a date and a time for a meeting so they could discuss his recent sick leave which were deemed excessive and to address the leave applications he made through the system. At no point during the telephone conversation did he shout or use profanities at Mr Chowdhary.
It was Mr Fogarty’s evidence that the Respondent anticipated a busy trade period over Christmas with COVID restrictions easing in addition to a cafe opening at the site. He and Mr Azzard were expected to support the cafe staff until the new cafe was up and running. This meant that team members were required to cover about 40 hours per week of shifts in the fuel site.
In response to Mr Chowdhary’s claim concerning the Store WhatsApp Group, Mr Fogarty explained that it is used for daily store communication between managers and employees. He removed Mr Chowdhary from the group as it was unnecessary for him to remain in the group given his anticipated length of time he would be away. According to Mr Fogarty, at the time he was removing Mr Chowdhary, he realised that two new staff members had not been included in the group and took the opportunity to do so. Mr Fogarty said that these two staff members were hired in preparation for the busy trading period and cafe opening and prior to Mr Chowdhary’s departure (October and December 2021).
Mr Fogarty gave evidence that no staff took annual leave or requested extended leave for the period between November 2021 and January 2022. He denied Mr Chowdhary’s claim that his leave requests were treated unfairly or inconsistently to other employees.
Mr Fogarty said that at no point prior to 11 December did Mr Chowdhary indicate any ‘extenuating circumstances’ for the Respondent to take into consideration when reviewing his leave requests, nor did he indicate that he was suffering from any personal stress or pressure that was impacting his ability to work.
Mr Fogarty said that the medical certificates provided by Mr Chowdhary throughout his absences from June 2021 only stated that he was suffering from a ‘medical condition’. He was not aware of the extent of his stress and had he known he “would have offered him the Company’s EAP number to receive confidential counselling and would have discussed his ability to continue working given his situation and potential alternative arrangements.”
He said that he made multiple attempts to organise a time to meet with Mr Chowdhary to discuss both his personal leave and his annual leave request. This meeting, which Mr Chowdhary failed to avail himself of, was an opportunity for him to discuss the reasons for his leave that he wanted the company to consider.
After advising him on 11 December that he would need to leave as soon as possible, Mr Chowdhary next advised him on 13 December that he was leaving for overseas later that day. Mr Chowdhary failed to provide reasonable notice for the respondent to consider his extenuating circumstances or source appropriate staff coverage for his absence. Further, Mr Chowdhary did not provide any supporting documentation that his mother-in-law was unwell or in ICU.
Mr Fogarty gave evidence of his text exchanges with Mr Chowdhary on 17 December 2021 which were uncontested and set out earlier in this decision. He said that he had no further contact with Mr Chowdhary after 17 December and he was not involved in the decision making process for his dismissal.
The Respondent submitted that the termination of Mr Chowdhary’s employment was fair, just and reasonable. Mr Chowdhary was notified in writing the reasons for his dismissal. His employment was terminated for a valid reason. He was dismissed as a result of being unable to perform the duties of his position after departing the country on unapproved leave. It was submitted that Mr Chowdhary unilaterally absented himself from the workplace, unexpectedly and without approval, leaving the store desperately short of staff at a critical time. Further, the duration of time he expected to remain away was exceedingly long and was ever increasing, and he showed no intent to reduce or mitigate that period of absence in any way. His actions had shown that he was not going to take ‘no’ for an answer and could not accept that his leave had been reasonably declined and left without engaging with the Respondent. This wilful and deliberate behaviour was in breach of his employment obligations and the outcome was proportionate to the gravity of the misconduct.
It was submitted that Mr Chowdhary was provided a reasonable opportunity to respond to the allegations. The Respondent followed procedural fairness and gave careful consideration prior to the decision being made to terminate his employment and prior to it being communicated to him.
The Respondent submitted that the foundation of any employment relationship is that work is offered and the employee agrees to perform it in accordance with the arrangements in the employment contract: “It is not up to one of the parties to unilaterally decide whether the contract should be performed or not. Clearly, one of the arrangements in the contract is the taking of leave and it specifically requires the agreement between the parties when that would happen with, of course, such agreement not being unreasonably withheld.”
It was submitted that in the present matter there was no agreement to allow Mr Chowdhary to take leave and there were sound reasons for refusing his leave request, those being:
a.The leave sought was over the busiest trading period of the year, with the additional pressure caused by an opening of the cafe on the site.
b.It was in line with its leave policy that no annual leave is approved during Christmas and Easter trade.
c.It was anticipated that after a significant period of reduced trade due to COVID, there would be increased traffic in stores over the Christmas period.
d.The staffing levels were reduced as a result of mandatory Government quarantine for close contacts, and in addition to an abnormally high staff turnover and the loss of overseas students which make up a large proportion of the Respondent’s workforce.
It was submitted that Mr Chowdhary’s submission displayed a belief that he was entitled to take his leave at any point for any length of time without acknowledging that the employer has a right to expect him to be at work fulfilling his contractual obligations.
The Respondent argued that it was not informed of any circumstances to support Mr Chowdhary’s leave request prior to 11 December 2021. Since making his initial leave application on 16 November, Mr Chowdhary had 27 days to request consideration for his alleged extenuating circumstances and provide sufficient detail, however chose not to. He was provided multiple opportunities to raise any relevant information he wished for the Respondent to consider for his leave application and failed to take up those opportunities. His request made on 20 November for a 3 month period gave the reason for the request as due to ‘personal engagement’. His message on 6 December 2021 did not detail any personal issues requiring him to take extended annual leave. It was not until two days prior to his departure that the applicant notified the company of his circumstances, specifically that his mother-in-law was unwell and in a critical condition.
The Respondent argued that given the lack of information from him and his repeated leave requests and the sudden departure upon invitation to a meeting, there was reasonable doubt about the genuineness of his reasons for sudden departure. That he failed to communicate with the company over his alleged reasons for the leave request and his withholding information which may have been used to consider his application left the company in a position where it had no choice but to reject his application.
The Respondent also contended that had he met with it prior to his departure and explained his situation and his request, his leave “may or may not have been approved or the company may have been able to accommodate a shorter period of time.”
In his response to the Show Cause Letter provided on 28 December 2021, Mr Chowdhary stated that his mother-in-law had been discharged from hospital on 18 December but was since again hospitalised and was in a critical condition. However, there was no information to support this. He stated his return ticket was booked for 7 March, three months after his departure from the country on 13 December.
The Respondent submitted that at the point of dismissal on 19 January 2022, its information was that Mr Chowdhary had deliberately absented himself from the workplace after it was clearly articulated to him that his leave was declined, that his mother-in-law was still allegedly unwell as at 28 December and, according to his last leave application submitted on 14 January, he intended to remain absent until 30 April without further explanation.
The passing of Mr Chowdhary’s mother-in-law on 10 January was not made known to the company at any point prior to his dismissal. The first time the company became aware of it was from his F2 Application for these proceedings.
The Respondent contended that the additional factors put forward by Mr Chowdhary at the hearing which he explained had impacted his return flight, and necessitated his request for further leave on 14 January, were never disclosed to the Respondent for its consideration. It was argued that Mr Chowdhary has deliberately withheld vital information at critical points in time that may have impacted the company’s decision in both the leave approval and the termination of his employment.
It was argued that even if there was an exceptional reason to grant leave under circumstances which later transpired, the period of leave requested in itself was excessive and rendered that request unreasonable.
It was submitted that whilst it is arguable whether he had a genuine reason for needing to be absent from the workplace due to his mother-in-law’s health condition, that reason ceased to apply on or soon after 10 January. At the point of the applicant’s dismissal, there was no valid reason for him to have remained away from the workplace for the extended period of absence that he continued to insist the Respondent approve.
The Respondent denied any act of discrimination or differential treatment against Mr Chowdhary. It argued that Mr Chowdhary has not submitted any evidence to suggest management was rude to him on any occasion or acted in a discriminatory manner. There was no evidence of financial difficulty and any submissions regarding this is irrelevant to the termination of employment.
The Respondent submitted that all leave requests are reasonably considered in line with the Leave Policy and staffing requirements and the lack of prior disciplinary history does not rescind the Company’s ability to terminate an employee’s employment on reasonable grounds.
Consideration
There is no dispute and I am satisfied that Mr Chowdhary is a person protected from unfair dismissal by virtue of s.382 of the Act. I now turn to consider if his dismissal was unfair within the meaning of the Act.
Was the dismissal unfair?
A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
There is no dispute that Mr Chowdhary was dismissed and that subsections (c) and (d) do not apply.
Was the dismissal 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.
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[12] 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 the misconduct on which the employer 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.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[13]
Valid reason - s.387(a)
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[14] and should not be “capricious, fanciful, spiteful or prejudiced.”[15] 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.[16]
In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred.[17] The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it.[18]
Further, the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason.[19]
There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
It is well settled that the employer bears the onus of establishing the misconduct upon which it relies to demonstrate a valid reason for the dismissal.
Was the decision to refuse Mr Chowdhary’s request for annual leave reasonable?
Section 88(2) of the Act provides that an employer must not unreasonably refuse to agree to a request by an employee to take paid annual leave.
I am satisfied that the decision to refuse Mr Chowdhary’s request for annual leave was reasonable in these circumstances. There is no doubt Mr Chowdhary had a right to take annual leave at a time that was mutually convenient. There is also no doubt that the Christmas period was not a mutually convenient time, evidenced by the Leave Policy which specifically designates Easter and Christmas as periods where leave will not generally be approved unless there are extenuating circumstances. In addition, it was reasonable for the Respondent to refuse leave when the busy Christmas period was exacerbated by the opening of a new café and the staffing shortages resulting from COVID.
The serious illness of Mr Chowdhary’s mother-in-law would in my view have met the requirement for ‘extenuating circumstances’ warranting the approval of a period of leave. However, the key issue here is that Mr Chowdhary did not inform the Respondent of his mother-in-law’s illness at the time he made his requests for leave. There is no satisfactory explanation as to why Mr Chowdhary did not inform the Respondent of these circumstances at least from the time his first leave application was refused. He certainly had ample opportunity, being some 27 days from the making of his first leave application to the time he departed Australia, to inform the Respondent of these circumstances, both at the time he was making his leave applications and at the time he was requested to attend a meeting to discuss his applications in addition to his personal leave. Simply saying he had a “personal engagement” does not disclose any extenuating circumstances. It was only two days prior to his departure that he informed the Respondent his mother-in-law was unwell.
Mr Chowdhary did not disclose to the Respondent that his mother-in-law passed away on 10 January 2022, and it was not until the current application was filed that the Respondent became aware of her passing. I accept the Respondent’s submission that even if there was a genuine reason for being absent from the workplace, that reason ceased to apply shortly after 10 January, and certainly well before his proposed return date of 30 April.
Had he disclosed information that was critical to the Respondent’s consideration of both his leave requests and the show cause letter, the outcome could well have been very different for him. But ultimately, the Respondent made the decisions it did based on the information it had, and those decisions were reasonable given the information available to it.
I am not satisfied that Mr Chowdhary was the subject either of discrimination or differential treatment. The Leave Policy is clear that leave will not be approved at particular times of the year absent extenuating circumstances. It was incumbent on Mr Chowdhary to inform the Respondent of these circumstances in order for it to properly consider his request. He did not do so until two days before he departed the country, and without attending the meeting that he was requested to attend to discuss his leave requests.
Was there a valid reason to dismiss Mr Chowdhary in these circumstances?
There was a valid reason to dismiss Mr Chowdhary in these circumstances. Mr Chowdhary absented himself from the workplace, at one of the Respondents’ busiest times of the year, despite having his leave application refused on multiple occasions. It is clear he felt he had an entitlement to take leave regardless of whether it was convenient to the Respondent, and regardless that his leave applications had been refused on multiple occasions. He did not provide the Respondent with critical information which could have satisfied it that there were extenuating circumstances. The time period he sought to be absent extended from 13 December when he departed Australia until 30 April when he had booked his flight home, despite the fact that his mother-in-law passed away on 10 January. I acknowledge Mr Chowdhary said he was unable to get an earlier flight due to COVID, but this does not change the period of time he would have been absent without approval from his place of work. Again, the outcome could have been markedly different had he just informed the Respondent of the situation with his mother-in-law, and been willing to return to Australia within a reasonably short period of time after her passing.
Mr Chowdhary also argued that his removal from the WhatsApp group demonstrated that the Respondent had made a decision to terminate him on 17 December 2021, however I accept the explanation given by the Respondent that his removal was only because he had indicated an intention to be absent from the workplace for a considerable period of time.
Finally, I reject Mr Chowdhary’s contention that his dismissal was unfair because the Respondent failed to apply clause 14 of the Leave Policy allowing for an employee to take a period of unpaid leave for up to 6 months in exceptional circumstances, because Mr Chowdhary did not apply for such a period of leave.
In all the circumstances, I find that EG Fuelco had a valid reason to dismiss Mr Chowdhary and the reason was sound and defensible.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[20] in explicit terms[21] and in plain and clear terms.[22] In Crozier v Palazzo Corporation Pty Ltd[23] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”[24]
An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.[25] This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[26]
The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Chowdhary before his dismissal was effected.
On the evidence I am satisfied that Mr Chowdhary was notified of the reason for his dismissal and was given an opportunity to respond to the reason. So much is clear based on the Show Cause letter and Mr Chowdhary’s response.
Unreasonable refusal by the employer to allow a support person - s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
Mr Chowdhary did not take up the opportunity to engage in discussions with the Respondent and this matter is therefore irrelevant to my consideration.
Warnings regarding unsatisfactory performance - s.387(e)
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
I am satisfied that the size of EG Fuelco and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal, and this consideration is neutral.
Other relevant matters - s.387(h)
I have considered Mr Chowdhary’s argument that the Respondent did not consider his personal circumstances and the financial difficulty he subsequently faced, however this does not in my view change the fairness of his dismissal.
Otherwise, I do not consider there are any other relevant matters that have not already been considered.
Conclusion
Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Chowdhary was not unfair. Accordingly, the application is dismissed.
DEPUTY PRESIDENT
J H Chowdhary, on his own behalf.
H Saville, for EG Fuelco (Australia) Limited.
Hearing details:
2022.
By video:
June 14.
[1] See Exhibit 1.
[2] Ibid.
[3] Transcript PN104.
[4] Exhibit 1.
[5] Transcript PNs111-115.
[6] Transcript PN 137 and PN143.
[7] Transcript PN161.
[8] Transcript PN163.
[9] Woolworths Petrol Enterprise Agreement 2012.
[10] Exhibit 1.
[11] Transcript PN229.
[12] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
[13] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[14] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[15] Ibid.
[16] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[17] Edwards v Giudice (1999) 94 FCR 561.
[18] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
[19] Miller v University of New South Wales (2003) 132 FCR 147.
[20] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
[21] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[22] Previsic v Australian Quarantine Inspection Services Print Q3730.
[23] (2000) 98 IR 137.
[24] Ibid at 151.
[25] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[26] RMIT v Asher (2010) 194 IR 1, 14-15.
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