Moinakhtar Karkun v Zone Security Pty Ltd

[2016] FWC 6514

[2016] FWC 6514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Moinakhtar Karkun
v
Zone Security Pty Ltd
(U2016/6869)

COMMISSIONER MCKENNA SYDNEY, 21 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] Moinakhtar Karkun (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an order for an unfair dismissal remedy. The applicant’s former employer, Zone Security Pty Ltd (“the respondent”), has raised an objection to the application, namely, that the respondent is a small business employer and the dismissal was consistent with the Small Business Fair Dismissal Code (“the Code”).

[2] By way of background, the respondent is a small (five full-time and two part-time employees) security company, managed by two brothers who are directors of the business. The respondent provides security services at premises in North Sydney, where it has contracts with two clients. The applicant was formerly employed by the respondent as a full-time security officer, and had worked at the North Sydney premises for approximately six years.

[3] While it is common ground that the respondent is a small business employer, there is dispute about whether there was compliance with the Code in connection with the dismissal.

[4] Section 385 of the Act provides as follows as to when a person has been unfairly dismissed:

“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.”

[5] As to s.385(c) of the Act, s.388 provides:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[6] The Code relevantly reads as follows:

“Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[7] In the proceedings, the respondent relied on “serious misconduct” as the reason for the dismissal (typically a ground relied on for summary dismissal, and a matter about which there is a meaning provided by s.12 of the Act and reg. 1.07 of the Fair Work Regulations 2009), but otherwise gave the applicant a week’s notice of termination of employment. That is, the applicant was advised of the termination of employment in correspondence dated Friday, 15 April 2016. In that correspondence, the applicant was also advised that his last shift would be the following Friday, 22 April 2016.

[8] Thus, the applicant was given one week’s notice which was, apparently, actually worked by him. In relation to a termination of employment effected with notice, the applicant would, however, have had a presumptive entitlement to the minimum notice period specified in s.117 of the Act or a payment in lieu of notice (or a combination of notice and payment in lieu thereof) in accordance with length of service and age. In that regard, it appears the applicant was, on or around the date the dismissal took effect, paid amounts with respect only to: (a) wages for the week of notice during which he had continued to work for the respondent; and (b) accrued but untaken annual leave. It seems the respondent, at a later point in time, paid the applicant another amount of money (albeit the purpose of that payment was unclear). The respondent also made: (a) a pro rata long service leave payment; and (b) a further payment – apparently following a conciliation conducted by a Fair Work Commission conciliator. (In earlier proceedings, the applicant indicated that a union is acting on his behalf in relation to alleged underpayments. Any such proceedings stand separate from the application before me.)

[9] As the Code involves different considerations turning on whether there was a summary dismissal or other dismissal, it is necessary to make a finding as to the nature of the dismissal. In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWCFB 5264 at [36] a Full Bench of the Commission characterised the scope of the “Summary dismissal” section of the Code in the following way:

“(1) The “Summary dismissal” section of the Code is concerned with dismissals which have immediate effect, not dismissals on notice. That is the consistent element of the various expressions used to describe the relevant class of dismissals.

(2) The section is likewise concerned with dismissals made on the basis of serious misconduct. The focus on “serious misconduct” must be taken as identifying the subject matter, notwithstanding that there is no explicit connection between the class of dismissal described and the matter of serious misconduct.”

[10] In the present case, it is clear the dismissal did not have the requisite immediacy to allow its classification within the first category referred to above. This is because there was at least some period of notice concerning the impending termination of employment and, moreover, part of that notice period was actually worked by the applicant, with the result that the dismissal cannot be said to have had “immediate effect”.

[11] The question is then whether the dismissal can be said to have been made on the basis of serious misconduct, with the result that the dismissal would fall within the second category referred to above (and, by extension, with the result that the dismissal was of a type to which the “Summary dismissal” section of the Code applies). Although the respondent relied on the ground of serious misconduct in the proceedings, it is at least instinctively difficult to accept the reliance on serious misconduct in circumstances where the applicant was allowed to continue working with the respondent for a one week period after being notified of the dismissal.

[12] Section 12 of the Act defines “serious misconduct” as having “the meaning prescribed by the regulations.” Regulation 1.07 of the Fair Work Regulations 2009 provides as follows:

“Meaning of serious misconduct

(1)  For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2)  For subregulation (1), conduct that is serious misconduct includes both of the following:

(a)  wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b)  conduct that causes serious and imminent risk to:

(i)  the health or safety of a person; or

(ii)  the reputation, viability or profitability of the employer's business.

(3)  For subregulation (1), conduct that is serious misconduct includes each of the following:

(a)  the employee, in the course of the employee's employment, engaging in:

(i)  theft; or

(ii)  fraud; or

(iii)  assault;

(b)  the employee being intoxicated at work;

(c)  the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

(4)  Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5)  For paragraph (3)(b), an employee is taken to be intoxicated if the employee's faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee's duties or with any duty that the employee may be called upon to perform.”

[13] In light of this definition, and despite the respondent’s submission that the dismissal was made on the basis of serious misconduct, I cannot accept that the applicant’s alleged conduct, that was said to be the catalyst for the dismissal, can be characterised as serious misconduct within the meaning of the Act (even if, hypothetically, the respondent’s evidence were accepted at its highest). This is so for the following reasons:

● In relation to (2)(a) of reg. 1.06 – while the applicant’s alleged conduct may have been wilful or deliberate, it cannot be said to have been inconsistent with the continuation of his contract of employment in circumstances where the applicant was attending for work, generally performing the duties required of him as a security officer, and importantly, where the applicant was allowed to work out a period of notice following notification of dismissal.

● In relation to (2)(b)(i) of reg. 1.06 – there was no evidence applicant engaged in conduct that causes serious and imminent risk to the safety of a person.

● In relation to (2)(b)(ii) of reg. 1.06 – while it may be arguable (and indeed there was evidence from a client in the respondent’s submissions) that the applicant’s alleged conduct caused a risk to the reputation, viability or profitability of the employer's business, it cannot be said to have been serious or imminent risk in circumstances where the alleged conduct occurred over a period spanning back to March 2015 and (again), where the applicant was allowed to work out a period of notice following notification of dismissal.

● In relation to (3) of reg. 1.06 – the categories of serious misconduct provided for in this regulation do not apply by operation of (4) of the reg. 1.06, for the reason that the applicant continued his employment for at least a part of the required notice period, without issue.

[14] In consequence, it appears the dismissal was not of a type to which the “Summary dismissal” section of the Code applies, albeit there appears to have been a shortfall in the notice period – with the result that the relevant part of the Code which arises for consideration is the component which deals with “Other dismissal”.

Consideration

[15] There was sharp dispute on the evidence, and in the submissions, as to whether there were any discussions with the applicant about matters concerning his conduct or capacity.

The applicant’s case

[16] The applicant’s contention in the proceedings was that he had performed his work diligently and to the best of his ability, and that he had never, in his six years of employment with the respondent: (a) been warned about his performance; or (b) received any training (apart from in 2009 and 2011) or professional development opportunities as a security guard.

[17] The applicant’s position was that the respondent had made “baseless allegations” that he had been playing games on his mobile telephone while at work, and that certain closed circuit television (“CCTV”) footage relied on by the respondent is “selective” and reflects only the respondent’s intention to “discredit” him. The applicant disputed certain other matters addressed in correspondence from a client of the respondent concerning his conduct at work, and pointed out that the correspondence in question post-dated the dismissal and, he considered, was reflective of bias and undue influence. The applicant “categorically” denied that discussions described in the respondent’s evidence had ever occurred.

[18] The applicant considered that the dismissal had arisen because of legitimate queries he had raised concerning payment of wages at a classification level different from the classification at which he was paid, and not for any reason concerning, for example, his work performance. The applicant considered that the respondent was “after me since November 2015 after I raised my concern about my award payment rate”. Among other matters, the applicant relied on work references from the respondent and client representatives.

[19] The applicant contended the dismissal was not Code-compliant and was otherwise a harsh, unjust or unreasonable dismissal. He seeks orders with respect to reinstatement and remuneration.

The respondent’s case

[20] The respondent’s case contended for propositions in the proceedings quite different from those advanced by the applicant. The principal matters in that regard were set out in a witness statement of one of the directors of the respondent, John Chillari.

[21] What follows is an overview only of the respondent’s evidence concerning matters, as set out in Mr Chillari’s witness statement. The overview describes only the respondent’s characterisation of matters – because, shortly stated, and as I have already noted, the applicant denies that any issues had been raised with him prior to dismissal.

[22] On the evidence adduced for the respondent, certain issues (relevantly) initially arose in May 2015 concerning damage to a roller shutter door, in circumstances where it was the applicant’s responsibility to check the door was clear of obstacles before it was closed. Consequent upon a complaint to Mr Chillari about the damage, there was a conversation to the following effect:

[Mr Chillari]: “What happened?”

[The applicant]: “The cleaners left an obstacle in the path of the door.”

[Mr Chillari] “It’s your duty to make sure that the door is clear of obstacles before closing it. I am not happy about this”.

[23] Mr Chillari deposed that, despite this (first) roller door incident, the applicant was found to be competent.

[24] In August 2015, Mr Chillari learned that the applicant failed to complete certain of his duties in not performing the patrols that he ought have performed. Thereafter, Mr Chillari started keeping the applicant under observation. Mr Chillari found that in respect of one particular eight-hour shift the applicant had been missing for four hours. A conversation ensued which was to the following effect:

[Mr Chillari]: “Moin what were you doing in one of the meeting rooms on the ground floor when you should have been on duty patrolling the building?”

[The applicant]: “I was sick.”

[Mr Chillari]: “Why didn’t you call me and why did you have a bag on your back? Why did you not go to the sick bay on level 2?”

[The applicant]: “I admit that I was doing a Uni assignment.”

[Mr Chillari] “That’s no good – you are putting all our jobs at risk as this is only a small business. I am docking four hours off your pay.”

[25] Mr Chillari’s evidence was that, in consequence, he arranged for four hours to be docked from the applicant’s wages for that week (i.e. with respect to the four hours the applicant worked on a university assignment while on shift instead of performing his duties).

[26] Mr Chillari’s evidence was that on 3 September 2015, the roller door was damaged for a second time in circumstances identical to the first incident, when the applicant again failed to check there were no obstacles before the roller door was closed. Mr Chillari’s evidence was that he said to the applicant: “Moin this is no good. This is the second time this has happened and I am not going to warn you again.”

[27] Mr Chillari’s evidence was that because he was by then monitoring the applicant, it came to his attention the applicant was “constantly using his personal mobile telephone” in circumstances where the respondent provides mobile telephones for employees to use for work purposes in the course of their duties. Mr Chillari said he had complained to the applicant on various occasions when he had seen the applicant outside the premises using his (personal) mobile telephone; but it was after security cameras were installed in an office shared by the applicant and the building manager that Mr Chillari saw on the CCTV that the applicant was often using his mobile telephone when he should have been doing patrols. In consequence, in November 2015, Mr Chillari said to the applicant: “Moin it’s been noticed that you are always on your mobile phone”, to which the applicant replied: “I don’t use my mobile phone.” Mr Chillari said that the applicant “was having trouble with the building manager at that time and so [he] allowed this incident to go no further”. Mr Chillari did, however, speak to the building manager saying: “… Moin thinks that you are picking on him. He denies using his mobile”. The building manager replied: “I have seen him on his mobile often and I also have a problem with him ringing the emergency line for non-urgent matters”.

[28] Mr Chillari said he then told the applicant what had occurred concerning the conversation with the building manager, and suggested to him that he should undergo additional training; he then “carefully went through the Standard Operation Procedures that [the applicant] ought to have been familiar with”. Mr Chillari said he took time to make sure the applicant fully understood where he had been going wrong, and he reiterated to the applicant that the use of his personal mobile telephone while he was on duty was not allowed. Mr Chillari also assured the applicant that the building manager held no personal grudge against him and was simply concerned with his behaviour.

[29] In January 2016, a new building manager was appointed. At the beginning of March 2016 the building manager said to Mr Chillari: “John I have noticed that your guard is moving things around in my office. I looked on the CCTV footage and I saw that the reason is that he is sitting there with his feet on the desk. He has to move the stuff on my desk to make room for his feet.” The building manager added: “There are also issues with the guard unplugging equipment and not returning keys after the contractors have used them.” In consequence of matters the building manager had raised, Mr Chillari then had a conversation with the applicant, which included an exchange to the following effect:

[Mr Chillari]: “There have been complaints that you have unplugged equipment in the office and you did not ensure that keys were returned.”

[The applicant]: “I haven’t touched anything in the office.”

[30] Mr Chillari said he was unable to present to the applicant any (earlier) CCTV footage as to the matters raised by the building manager, because the camera’s memory had been filled. Mr Chillari decided to check the current CCTV footage; this check occurred in the presence of the building manager on about 16 March 2016. It was then that Mr Chillari saw how often the applicant was using his personal mobile telephone at times when he should have been on patrol. Mr Chillari said he next spoke to the applicant as follows:

[Mr Chillari]: “We have noticed that you are still constantly on your phone.”

[The applicant]: “I am not.”

[Mr Chillari]: “Well the client is not happy with you and they want a meeting with me to work out your future.”

[31] Mr Chillari said he usually finished work before the applicant started, with the exception of Wednesdays, when he had the opportunity to speak to the applicant. On Wednesday 23 March 2016, Mr Chillari once again checked the CCTV footage and realised the footage also showed the applicant playing games on his telephone. Mr Chillari made copies of parts of the CCTV footage, so as “to be able to prove to [the applicant] that he had lied to me”. Mr Chillari said he was also informed the applicant “was making a habit of using the free Wi-Fi from the Telstra store in the building instead of fulfilling his duties”.

[32] On 30 March 2016, there was a conversation between Mr Chillari and the applicant to the following effect:

[Mr Chillari]: “I have information that you are using the free Wi-Fi at the Telstra shop.”

[The applicant]: “I deny that.”

[Mr Chillari]: “Mate we can get their records.”

[The applicant]: “I admit that I have been using their Wi-Fi at night.”

[33] On 6 April 2016, there was a further conversation between Mr Chillari and the applicant, to the following effect:

[Mr Chillari]: “Mate you’ve been on your phone constantly. We’ve even seen you playing games on your phone and I believe you stand outside the Telstra shop using their Wi-Fi.”

[The applicant]: “I deny all of that.”

[34] Mr Chillari said that he and the applicant were in the office at the time of this conversation, and that Mr Chillari “pulled the footage up on a monitor to show it to him”. Mr Chillari said the applicant “shook his head and refused to comment”, whereupon Mr Chillari said: “Mate this is the final straw. I am not happy and the client isn’t happy. The client has told me they will send an email for your removal so you are going to lose your job.”

[35] Mr Chillari said he has 26 photographs (stills) from the CCTV footage showing the applicant on his telephone, and that on each occasion the applicant was “occupied for most of his shift”. Mr Chillari attached to his witness statement a (smaller) number of CCTV photographic stills from mid-March 2016. As to imagery concerning 16 March 2016, Mr Chillari elaborated that the applicant was:

“ … busy on his phone from 4:20pm until 8:15pm. [The applicant] may have been on multiple calls but did not move from his chair.”

[36] In addition to the evidence of the photographic stills from CCTV, Mr Chillari tendered in the proceedings a recording of CCTV footage showing what he described as the applicant “playing games on his phone while he should have been working”. Mr Chillari said that when he showed these videos to the applicant, the applicant said: “Yes I was playing video games.”

[37] Mr Chillari said that when he realised that the applicant’s actions may lead to his dismissal he telephoned “… Fair Work Australia [sic] on 6 April 2016 and discussed the matter with someone in that office who guided me to the Small Business Fair Dismissal Code”. Mr Chillari said he carefully read the Code to ensure he had complied with all aspects of the Code, and completed the associated checklist. On 15 April 2016, Mr Chillari wrote to applicant confirming he was being dismissed. The letter read:

“This letter is in reference of the subsequent discussions we have had with you from time to time on the subject matter. We regret to state that despite giving sufficient opportunity, there is no improvement in your behaviour, attitude & dishonesty towards work.

Moreover it has been reported that your performance is unsatisfactory with our client. The client has requested you be removed from their site ([address]). The client has made several complaints regarding your constant use of your personal phone. I have had discussions with yourself about this topic and you kept denying this claim. On reviewing the CCTV camera, the footage clearly showed you spent several hours playing games on your phone. Also, it has been reported to me, you sit outside the Telstra store for the free Wi-Fi. This is not in your scope of works, meaning you are failing to fulfil and neglecting your security duties.

In the past, I have had a discussion with yourself in regards to you using your personal computer (which is not work related or is needed to carry out your security duties) which you denied. On further investigations and after reviewing the CCTV cameras, you admitted to using your personal computer for 4 hours during your shift. You used your personal computer for work not relating to your security duties.

Other discussions I have had with your performance, include feet on the security desk, failing to clear objects around the loading dock roller-shutter door before closing the door (causing significant damage to the roller shutter, twice), reporting non urgent issues to the call centre which should only be listed in your daily security reports. I have spoken to you many times about the correct incident reporting procedure.

Considering the above mentioned, I have lost confidence in your ability to represent Zone Security and fulfil your work duties. You leave me with no option but to terminate your employment with Zone Security. Your last shift will be Friday the 22nd April 2016. …” (Bold in original)

[38] Around this time, Mr Chillari also spoke to the building manager, seeking that he send an email about “what has been happening”, i.e. the matters which had been the subject of earlier discussion. The building manager sent an email to the respondent, which was in evidence, confirming the same – albeit not until a week after the dismissal had taken effect.

Consideration - the Code

[39] To the extent that the evidence by the applicant and for the respondent was irreconcilably at odds as to matters relevant to the Code, I prefer and accept the evidence of Mr Chillari as against the applicant’s blanket denials that any conversations occurred warning him about his work performance.

The small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

[40] I am satisfied that the respondent gave the applicant a reason why he was at risk of being dismissed. In that respect, I accept Mr Chillari’s evidence as to the matters he raised with the applicant about the proper performance of his work. Compendiously described, the relevant conversations concerned the respondent’s expectation that the applicant should properly attend to his responsibilities. Matters such as proper attention to work duties and responsibilities are, self-evidently, valid conduct-related reasons in relation to a job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

[41] There was no evidence of written warnings. I am, however, satisfied the applicant was verbally warned that he was at risk of being dismissed if he did not properly attend to his duties. That is, the conversations between Mr Chillari and the applicant constituted or involved warnings to the applicant that he was expected to properly attend to the performance of his work as a security officer, even if (each of) the conversations did not necessarily have the formality of the style of warning that might be given by a larger employer. Despite the applicant’s denials, I generally preferred Mr Chillari’s evidence as to both the fact of, and the substance of, the discussions described in the respondent’s case. Approached another way, I consider it implausible to consider that Mr Chillari, in circumstances where the building managers had raised concern about the applicant, would not have then raised those matters with the applicant – because Mr Chillari was understandably anxious to retain the business contracts and not to lose clients as a result of the conduct of one of its employees.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

[42] I am satisfied respondent gave the applicant an opportunity to respond to its warnings concerning the proper performance of his duties. I am also satisfied that Mr Chillari provided instruction to the applicant about the Standard Operating Procedures after the building manager had raised concern about the applicant ringing the emergency line for non-urgent matters.

[43] When Mr Chillari raised certain matters with the applicant, the applicant’s initial responses were, in effect, outright denial. There can be no doubt that Mr Chillari made known to the applicant what the respondent’s job expectations were, namely, that the applicant should properly attend to his duties and, otherwise, not be using his time while on shift for non-work purposes.

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

[44] While the Code provides that in discussions with an employee in circumstances where dismissal is possible the employee can have another person present to assist, there was no evidence that the applicant either sought or otherwise had another person to assist in any such discussions. The discussions that formed the backdrop to the eventual dismissal were, on one view of it, part of a continuum, albeit with the discussion most relevant to dismissal being the conversation on 6 April 2016 when Mr Chillari showed CCTV footage to the applicant where the applicant “shook his head and refused to comment”.

[45] The dismissal did not actually ensue on 6 April 2016. Instead, Mr Chillari made inquiries about dismissal and the Code, and only later formally advised the applicant of the dismissal after examining the Code and completing the associated checklist.

[46] Mr Chillari did not wait for the client to request that the applicant be removed and replaced with another security guard at the North Sydney building. Against the background of what Mr Chillari had seen on the CCTV footage, he determined, as he put it, to “get in first” and to dismiss the applicant. In the proceedings, Mr Chillari’s evidence and submissions focussed, in no small part, on what he considered to be his own loss of trust and confidence in the applicant in circumstances where he had initially deferred to the applicant’s denials as against what he had later observed for himself upon separately reviewing the CCTV footage.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

[47] In the proceedings, the respondent adduced evidence of the type described in the Code.

Conclusion

[48] While the dismissal may not have involved serious misconduct in the sense defined in the Regulations, the dismissal was effected against the background of concerns of the respondent about the applicant’s performance of his duties and, more particularly it seems, in the end, the conclusion by Mr Chillari that the applicant had been dishonest when there had been earlier conversations between them about certain matters related to the performance of such duties. To Mr Chillari, the CCTV footage spoke for itself – and, on 6 April 2016, when the footage was shown to him, the applicant said nothing and shook his head. (In this regard, it may be noted the CCTV photographic stills do, in fact, show the applicant on his mobile telephone and the segments of CCTV footage do, in fact, show the applicant playing games.)

[49] Mr Chillari sought advice about dismissal. By letter dated 15 April 2016, Mr Chillari advised the applicant of dismissal, with the last shift advised to be on the following Friday, 22 April 2016 – and the applicant apparently continued to attend to perform work in his employment with the respondent to that final shift.

[50] I am satisfied that the dismissal (Other dismissal) in this case was Code-compliant having regard to my conclusions set out earlier as to the various criteria in the Code. As such, an order dismissing the application has issued with this decision.

COMMISSIONER

Appearances:

M. Karkun, in person (assisted by a Gujrathi interpreter).

J. Chillari, director, for the respondent.

Hearing details:

2016.

Sydney;

9 September 2016

Printed by authority of the Commonwealth Government Printer

<Price code C, PR585286>