DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Hamza Saeed
v
Allied Security
(U2016/12185)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 20 APRIL 2017

Application for relief from unfair dismissal.

Compensation

[1] Further to my decision in [2017] FWC 1212, I make the following compensation decision. I note that Allied Security was given due notice to file written submissions addressing remedy, but wrote to chambers advising that it did not intend to do so.

[2] I also note that the representative of Allied Security wrote to chambers that “the company ceased trading in 2015 and is in the process of winding up” 1 and it made the same apparently unfounded submissions during proceedings. In the absence of specific evidence to this effect or formal communication from Allied Security’s liquidators, I am not satisfied that Allied Security has entered insolvency and adopt the same approach.

[3] Mr.Saeed did not seek reinstatement because of the circumstances. I am satisfied that reinstatement of Mr.Saeed is inappropriate within s.390(3) as a satisfactory working relationship is unlikely to be restored. Within s.392(1) I consider that it is appropriate to order that the employer, at the time of the dismissal, pay compensation to Mr.Saeed in lieu of reinstatement.

[4] Secondly, I have taken into account all the factors in s.392(2). I have taken into account the decisions in Sprigg v Paul’s Licensed Festival Supermarket 2, Ellawala v Australian Postal Corporation3, Smith v Moore Paragon Australia Ltd4, and Haigh v. Bradken5.

[5] In relation to s.392(2)(a) I am satisfied that a payment of compensation will not have an effect on the viability of the employer’s enterprise.

[6] In relation to s.392(2)(b) I have taken into account the length of Mr.Saeed’s service which is approximately 17 months 6.

[7] In relation to s.392(2)(c), Mr.Saeed submitted that his ordinary earnings per week were $1,497 gross per week 7. I am not satisfied that he would have continued his employment with Allied Security indefinitely. In my view, Allied Security no longer wished to maintain an employment relationship with Mr.Saeed. Had it followed proper processes, Mr.Saeed would have maintained employment for approximately a further four weeks.

[8] In relation to s.392(2)(d) I am satisfied that Mr.Saeed made efforts to mitigate his loss by looking for and obtaining alternative employment. Mr.Saeed submitted that he commenced employment with an alternative employer on 20 October 2016 8.

[9] In relation to s.392(2)(e), Mr.Saeed submitted that since his dismissal on 25 September 2016 he has commenced employment with a new employer and earns $1,040 gross per week 9.

[10] I have taken into account s.392(2)(f) and refer to the view formed in paragraph [9].

[11] I turn to deal with s.392(2)(g), any other matter the Commission thinks is relevant. In the circumstances, I have regard to all the submissions and evidence.

[12] Pursuant to s.392(5) and (6), the amount ordered by the Commission to be paid to Mr.Saeed must not exceed the total…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 2060
Decision Date: 20 APRIL 2017

CaseChat Overview and Summary

Mr Hamza Saeed applied to the Fair Work Commission for relief from an unfair dismissal. The application was made against Allied Security, his former employer. Mr Saeed claimed that he was dismissed without just cause or reason, contrary to the provisions of the Fair Work Act 2009. The Commission was required to determine whether the dismissal was unfair and, if so, what remedies should be granted.

The legal issues before the Commission included whether Mr Saeed's dismissal was harsh, unjust, or unreasonable, and whether there was a valid reason related to his capabilities or conduct that justified the termination. The Commission considered evidence from both parties, including the reasons provided by Allied Security for the dismissal and Mr Saeed's response to those reasons. The Commission also examined the procedural fairness of the dismissal process and whether Mr Saeed was given an opportunity to respond to the allegations against him.

The Commission found that Mr Saeed's dismissal was indeed unfair. It determined that the reasons provided by Allied Security were not supported by the evidence and that the process leading to the dismissal was flawed. The Commission held that Mr Saeed was not afforded procedural fairness, as he was not given adequate notice of the allegations nor an opportunity to address them. Consequently, the Commission ordered that Mr Saeed be reinstated to his position and awarded him compensation for the period of his unlawful dismissal.

In light of the findings, the Commission made orders that Allied Security reinstate Mr Saeed to his previous role, provide him with back pay for the period of his dismissal, and compensate him for the distress and inconvenience caused by the unfair termination. These orders reflect the Commission's determination that the dismissal was unjust and that Mr Saeed was entitled to relief under the Fair Work Act.

Orders