M. Shoaib Chowdhury v Leda Aluminium Pty Ltd

[2016] FWC 380

[2016] FWC 380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

M. Shoaib Chowdhury
v
LEDA Aluminium Pty Ltd
(U2015/3796)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 22 JANUARY 2016

Application for relief from unfair dismissal.

Introduction

[1] On 18 March 2015 Mr M. Shoaib Chowdhury (the Applicant) lodged with the Fair Work Commission (the Commission), pursuant to s.394 of the Fair Work Act 2009 (the Act) an application for a remedy for unfair dismissal against his former employer LEDA Aluminium Pty Ltd (the Respondent).

[2] The Applicant commenced employment with the Respondent on 26 October 2009 (according to the Respondent’s F3 response). However, the Applicant had been employed by a predecessor company since December 1994. The Applicant says that he was notified of his dismissal on 27 February 2015 and the dismissal took effect on the same day.

[3] The Applicant was a glass-cutter with the Respondent’s aluminium window and door factory at Greenacre in Sydney’s western suburbs.

[4] The Applicant says that he became aware of his dismissal when he went to the factory on 27 February 2015. He was told by Mr Anthony Asfour that he no longer worked there. The Applicant was off work from 24 December 2014 to 12 January 2015 as part of the Christmas close-down. He then took six weeks annual leave from 13 January 2015 to 28 February 2015 to return to Bangladesh to see his sick father. He actually arrived back to Sydney on the evening of 26 February 2015.

[5] On 19 February, while in Bangladesh, he was told by a work colleague that his job had been taken by someone else. He says that he tried to ring Anthony Asfour and his supervisor Jalal Asfour from Bangladesh and to bring his flight forward. He was unsuccessful on both counts.

[6] In its F3 response, the Respondent submitted that the effective date of dismissal was 4 February 2015. Hence, the Respondent submitted that the application was out of time. On 4 February 2015 Joseph Sabella, on behalf of the Respondent sent the Applicant a letter terminating his employment effective on that day. The termination was for “misconduct”. It stated: “You have abandoned your work duties; you have caused our company major damages and delay with productions and deliveries.”

[7] In a letter dated 23 December 2014, the Applicant submitted an application for six weeks leave. The leave was to start on 13 January, after the close-down. In that letter, the Applicant said that he had: “. . . assigned my present work to Mr Jalal.”

[8] Wednesday, 23 December was the last day of work before the Respondent’s Christmas close-down until 12 January. Mr Sabella sent a letter to the Applicant on 12 January rejecting the annual leave application because of lack of notice. The Applicant operated the automotive cutting machine and could not be spared for such a long period without proper notice. It was further pointed out that the Applicant was not authorized to make arrangements to cover his work; rather, this was a management function.

[9] The Applicant was requested to return to work immediately. This request was repeated in a further letter on 19 January which stated also that a replacement would be pursued.

[10] It appears that these letters were went to an old address of the Applicant and not seen by him. In any event, nothing was sent on to him in Bangladesh.

Commission Proceedings

[11] The matter was conciliated on 29 April 2015 but did not settle.

[12] On 28 August 2015, Commissioner Johns resolved the issue of the effective date of termination, and therefore whether the application was out of time, by an order (PR571352) that the date was 27 February 2015. The matter was referred for programming.

[13] I conducted a telephone programming mention on 3 November 2015.

[14] The hearing took place on 10 November 2015 in Sydney.

[15] The Applicant represented himself. The Respondent was represented by Mr J. Fakhoury who appeared with Mr J. Sabella, Mr Jalal Asfour and Mr Louay Asfour.

[16] With the agreement of the parties, the hearing was conducted as a determinative conference.

[17] The Applicant relied on a brief written submission (Exhibit C1) and witness statement (Exhibit C2).

[18] The Respondent relied on a written submission and witness statements of Jalal Asfour and Louay Asfour.

[19] The determinative conference format facilitated the taking of evidence from all of those who appeared.

Protection from Unfair Dismissal

[20] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[21] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[22] The Applicant was covered by a modern award, the Joinery and Building Trades Award [MA000029]. In addition, his salary at approximately $91,312 per annum was below the high income threshold. It was conceded, therefore, that he was a person protected from unfair dismissal in accordance with s.382 (b)(iii).

[23] Section 396 provides that certain matters must be determined by the Commission before proceeding to deal with the merits of a matter. It provides:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”

[24] None of these matters were at issue in this case. The Respondent had some 52 employees at the time of the dismissal.

Was the dismissal unfair?

[25] A dismissal is unfair if I am satisfied, on the evidence before me, that all of 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.”

[26] No issue was raised pursuant to s.385(a), (c) or (d).

Harsh, Unjust or Unreasonable

[27] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“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.

The Arguments of the Parties

[28] The Applicant submitted that the dismissal was harsh, unjust and unreasonable because:

● For the reasons explained above, the Applicant submitted that he was not aware of his dismissal until he was told by Anthony Asfour when he went into the factory on 27 February 2015, upon his return from Bangladesh. He was not given the Respondent’s letters until 13 March 2015.

● He maintained that the Respondent’s representative had approved his annual leave application on 23 December 2014.

● The Applicant also stated that he was told by a work colleague on 19 January 2015, whilst he was in Bangladesh, that he had been replaced. He says that he could not get a return flight until 26 February. He also says that none of the Respondent’s management would return his telephone calls.

● The Applicant has a young family and was unemployed until July 2015.

[29] The Respondent submitted that the dismissal was not harsh, unjust and unreasonable because:

● The Respondent’s representatives never authorised the taking of the annual leave. Therefore, the Applicant effectively abandoned his employment.

● The Applicant’s skills were essential to the Respondent’s operation and there is no way that such a long absence would have been approved with so little notice.

● The Respondent says it made every reasonable attempt to contact the Applicant after it sent the letter on 12 January. It was, in fact, Jalal Asfour who told the Applicant on the phone he had been dismissed.

● Jalal Asfour, in his statement, says that the Applicant raised with him the possibility of taking the leave a couple of weeks before Christmas. He was told that he needed to submit a written application for leave “to the office”.

● Louay Asfour’s and Joseph Sabella’s evidence was that the Applicant had been told “no” in response to the written leave application on 23 December.

Approach of the Commission

[30] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ 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.”

[31] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

Valid Reason - s.387(a)

[32] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.

[33] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). 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 ...”

[34] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[35] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:

“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.

...

[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). “

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.
. . .

[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”

[36] I respectfully adopt this approach.

[37] As I have stated above, there are conflicting versions of events which are difficult to reconcile. Even on their own accounts of events, neither the Applicant nor Respondent acted with great diligence.

[38] Why would the Applicant leave it until the last day before the Christmas close-down to put in his leave application? Given that the leave was not approved, why did he not pursue the issue before leaving for overseas? Whilst in Bangladesh, I am not convinced that the Applicant made genuine attempts to contact the Respondent once he had been alerted by Jalal Asfour that there was an issue with his job. Nor am I convinced that he would not have been able to get a flight earlier than 26 February.

[39] On the other hand, the Respondent should have sent formal advice to the Applicant before 12 January about the leave application. I appreciate this was the first day back at work but Mr Sabella knew there was an issue and should have used electronic communication. The letters were then sent to the wrong address.

[40] The question of whether there was a valid reason for the dismissal must turn on whether the Applicant’s leave application was approved. I am satisfied that it was not. The Applicant says that there was verbal approval. However, I prefer the evidence of Mr Sabella, Jalal Asfour and Louay Asfour on this point. Certainly, there was no formal written approval.

[41] Given that the Applicant proceeded on extended annual leave without approval and the Respondent needed to fill his position to keep the plant open, I find that there was a valid reason for dismissal.

Notification of a valid reason – s.387(b)

[42] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 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.”

[43] The attempts to notify the Applicant in this case were inadequate as I have already outlined. However, I am not satisfied that, in the circumstances, this failure overrides the finding on valid reason.

Opportunity to respond s.387(c)

[44] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal way to ensure the employee relating to the conduct or capacity of the person. This criterion is to be applied in a common sense is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[45] As I have said, the attempts to communicate on both sides were inadequate.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[46] 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.

[47] This section is not relevant.

Warnings regarding unsatisfactory performance – s.387(e)

[48] This section is not relevant.

Impact of the size of the Respondent on procedures followed – s.387(f); Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[49] Both of these factors probably did contribute to the deficiencies in communication and establishing clarity. However, they do not alter the finding.

Any other matter that the FWC considers relevant

[50] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[51] Some English language difficulties on behalf of the Applicant may have contributed to what occurred. However, he had been an employee for some six years under current management and should have understood how this family company operated.

[52] For these reasons I find that the dismissal was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair within the terms of s.385.

[53] The Application for unfair dismissal relief is therefore dismissed. An order [PR576413] accompanies this decision.

DEPUTY PRESIDENT

Appearances:

M. S. Chowdhury self-applicant;

J. Fakhoury, with J. Sabella, for the Respondent.

Hearing details:

2015

Sydney:

November 3 (Telephone Conference);

November 10.

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