Mr Mahmoud Dahbache v Prixcar Services Pty Ltd

[2014] FWC 7932

[2014] FWC 7932 [Note: An appeal pursuant to s.604 (C2015/1206) was lodged against this decision - refer to Full Bench decision dated 5 March 2015 [[2015] FWCFB 1227] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Mahmoud Dahbache
v
Prixcar Services Pty Ltd
(C2014/4492)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 14 NOVEMBER 2014

Application to deal with a dispute.

[1] This decision arises from a dispute notification by an employee, Mr Mahmoud Dahbache, against Prixcar Services Pty Ltd (Prixcar) lodged pursuant to section 739 of the Fair Work Act 2009 (the Act) in accordance with clause 9, level 5, of the Prixcar Services Pty Ltd Enterprise Agreement (the Agreement).

[2] The dispute was listed on 23 May and 6 June 2014 for conference before Commissioner Riordan. Commissioner Riordan was unable to resolve the dispute.

[3] On 28 May 2014 a letter was received from Brian Bragg (Psychologist) stating Mr Dahbache was suffering from work related stress and anxiety.

[4] On 19 June 2014 the notification was listed for Mention and Directions before me.

[5] Prixcar agreed to maintain Mr Dahbache’s working arrangements until resolution of the dispute.

[6] In August 2014 Mr Dahbache notified an alleged underpayment of wages.

[7] I heard this notification on 4 September 2014. Mr Dahbache appeared at the hearing before me with a friend, Mr Kowalczuk, who wished to assist him and who Mr Dahbache had asked to speak on his behalf. Prixcar were represented by Mr DeClase, National Human Relations Manager, and Mr Spiteri, NSW VPC Operations Manager. In addition to the issues raised in the notification, Mr Dahbache alleged at the hearing that at some time in the past he had been made a proprietor of Prixcar for the purpose of approving vehicle registrations. Prixcar rejected any suggestion that Mr Dahbache was a proprietor of Prixcar.

[8] After the lodgement of the dispute notification and following the conclusion of the hearing I continued to receive submissions concerning ongoing difficulties in the relationship.

[9] In September 2014 Mr Dahbache lodged a workers’ compensation claim for an injured shoulder. In October 2014 Mr Dahbache alleged that Prixcar had not followed the proper procedure for processing his work cover claims and, in particular, that there was no Claim number. Later in October 2014 the Government Insurance Office of NSW denied Mr Dahbache’s claim on the basis that his condition was not work related.

[10] Mr Dahbache’s notification contained the following history and issue summary:

“1. In 1994 there was a verbal agreement between Prixcar and myself Mr Mahmoud Dahbache which was to work Mon - Thurs 6am to 3pm and 6am to midday on Friday which makes up my full time hours.

2. This arrangement has been exercised for over 20 years between Prixcar and myself Mr Mahmoud Dahbache.

3. I chose this roster as it allowed me to attend religious prayer every Friday and Prixcar agreed to this. If this agreement was not agreed by Prixcar at the time of employment I would not have sought employment with Prixcar.

4. I work entirely independently to my colleagues.

5. My right for flexible working arrangement has not been given. I need to attend religious prayer from midday every Friday and then other commitments (one of which is to pick up and care for my two grandchildren who live with me - my daughter is a single mum and nurse) I have been caring for my grandchildren every Friday afternoon for years.

6. I addressed my concerns with my Manager and was told ‘If you do not like it then resign’. This statement was intimidating and hurtful.

7. I have a written statement reminding Prixcar of my rights being 55 years and older that I am entitled to flexible working arrangement and have offered 6 options to allow me to continue the current roster. In order to continue with finishing at midday on Friday I have offered the following options:

1. Continue with the current arrangement - make up for 2.5 hrs during the week
2. Take 2.5 hrs LSL every Friday
3. Take 2.5 hrs A/L every Friday
4. Use 2.5 hrs every Friday from my RDO (and make up for the owing 2.5 hrs during the month)
5. Take 2.5 hrs of unpaid leave every Friday
6. Reduce my working hours by 2.5 hrs a week

Despite all these options, all were rejected.

8. The options provided by Prixcar do not work. Please see documents attached. I cannot go and come back in time as I will not make it to prayer nor will I be able to care for my grandchildren.

9. No agreement has been reached and I am being forced to start the new shift times as of 26th May.” 1

“Issue Summary:

My current employer, ‘Prixcar services pty ltd’ is forcing me to work inflexible working hours after 20 years of ongoing service.

Background:

Since 1994, have been working the same hours each week where I work:

• 9 hours per day from Monday to Thursday



• Then starting at 6am on Friday and finish up at midday



• Total number of hours is equal to or above the set hours per week

Historically management has never had an issue with this agreement. The agreement has been exercised for over 20 years - until early this year when it was deemed unacceptable. This was a key condition of my employment acceptance when joining the firm.

I was told that these work arrangements are costing the company income - yet I work entirely independently to my colleagues.

Reason for needing flexible working hours on Friday

• On Friday afternoons I have an ongoing personal commitment that I need to attend to



• Along with this, leaving early was a key condition of my employment



• My daughter who is a single mother with 2 children lives with us and relies on my support (financially and by helping with picking up my grandkids from school).

Effect

The entire episode has had a very stressful affect on my life and all those around me. Both my wife and I are now over 50 and 60 respectively and still care for our daughter (single mother with 2 children).

I have since consulted my GP about my situation and have been provided with medication, referred to see a psychologist.

Action in response:

• I have tried to reason with my company on 2 separate occasions and voiced my concerns, and the response was ‘If I am not happy I can resign’. To maintain honesty in this case, the company has since apologised for this comment, however the underlying issue was never resolved.



• I then contacted Fair Work Australia about my case and they have advised me to put my issues down in writing. To support this, FWA also suggested that any employee over 55 years of age should be considered for flexible work arrangements.

What I need from my employer

I would like my case reviewed in kind and be provided with ongoing flexible arrangements as has been agreed since employment. Fair Work Australia has requested that my employer respond to this letter in writing within 21 days of being presented.

To assist with your response, for over 20 years I have been a loyal worker, hard working and rarely take any sick leave during the course of my employment (until recently).

I am committed to this company.” 2

[11] Relevant correspondence was attached to the notification by Mr Dahbache. This included the letters of Mr Spiteri dated 1 and 9 May 2014, Mr Dahbache’s letter to Mr Glenn DeClase of 15 May 2014 andMr Dahbache’s response of 18 May 2014.

[12] Mr Dahbache commenced employment at Prixcar in 1994. He alleged that part of the inducement to work for Prixcar was the proposed flexible working arrangements that facilitated his religious needs and child care arrangements. Since commencement of employment Mr Dahbache has had an arrangement regarding his hours of work which suited his personal circumstances. He worked from 6 am to 3 pm Monday to Thursday and 6 am to 12 noon on Fridays.

[13] In March 2014 proposed changes to the working arrangements at Prixcar were notified. These changes affected Mr Dahbache’s hours of work. The first toolbox notification was on 19 March 2014. This notification gave two weeks notice of the change. 3

[14] On 23 April 2014 Mr Dahbache formally asked for the retention of his flexible working arrangements with Prixcar.

[15] In correspondence dated 1 and 9 May 2014 Mr Spiteri rejected Mr Dahbache’s request citing reasonable business grounds. Those grounds are set out in the correspondence and relevant extracts are set out below:

On 1 May 2014

“The new requested arrangement outlined is Monday - Friday, 7am - 3.30 pm (with RDO) or your choice of Monday to Friday 7am - 3pm (No RDO)

As discussed with you on several occasions we have not able (sic) to offer a working roster consisting of Monday to Thursday 6am - 3.30pm & Friday 6am - 12pm for the following reasons:

• Our current client base consisting of 27 different vehicle manufacturers have an operating range of 9am - 5pm, and we need to ensure our operations run as close as possible to these hours to ensure we can provide a high level of customer service and provide flexibility to meet their demand.



• All VPC staff on the NSW Minto site have had their hours reviewed and have been consulted regarding the changes required to meet operating requirements, along with the reasons explained. From 843 Full time employees, 27 Casual employees and 2 Permanent Part Time employees you have been the only individual to request a 6am start on an ongoing basis. Under our ‘duty of care’ responsibilities we are not permitted by law to allow you to work on your own in your area for safety reasons and unsupervised.



• Although upon your employment in 1994 the company and clients of the company may have requested a 6am start for operations, the client base of the company today has different requirements which we need to fulfil and this consists of a 7am start to close operations at 3.30pm. Further to this I have found no record of agreement, nor have you provided any evidence that your employment was predicated on a roster to your description as described above.



• Through the years the previous managers within the organisation may have deemed your hours to be satisfactory but, we need to take on board the considerations of our clients along with the considerations of our other employees working in your unit to ensure a fair working condition is provided to all.

To summarise what has happened so far:

• On the 19/3/14 your supervisor held a team meeting for all areas under his direct authority to discuss the proposed change in working hours for all people involved. At this point people were given two weeks’ notice (as per the EBA) to raise any concerns and discuss any potential impacts that individuals may have.



• As requested by you on the 2/4/14 you along with your supervisor attended my office for a meeting to discuss your concerns and explore any options that may be available to have the times remain the same. The basis for your request was family commitments Monday to Thursday along with religious commitments on Friday’s. After careful consideration your request was denied and the reasons as above were explained. To ensure you had enough support I delayed your change in work arrangements by weeks to ensure you had time to prepare.



• As requested by you on the 15/4/14 you attended my office for another review after consulting our HR Manager. You were accompanied by a support person of your choosing and your supervisor to once again discuss the option of keeping your working conditions the same, again on the basis of having family commitments Monday - Thursday and religious commitments on Friday’s. After lengthy discussions and all available options explored by everyone, including the HR Manager (present via teleconference) the agreement was reached that the change in hours Monday - Thursday were non impacting to your family commitments as your finish time did not change. The matter of leaving early on Friday could not be accommodated for the above mentioned reasons but agreement was reached on combining your Morning Tea and Lunch Breaks into one lunch break at 12pm to allow you 50 minutes time to attend to your religious commitments. To my understanding this was a suitable arrangement as you agreed to this and stated it suited your requirements. Again, to once again allow you time to prepare I granted a further 2 week extension to the changes.

In reference to your letter we are well aware of our responsibilities as an organisation to our employees and have taken every opportunity, considered several options and courses available to consult and consider your needs along with the organisational requirements. I have had no intention to cause you any form of anxiety or stress relating to this matter nor cause you any discomfort and apologise if this has been the case. I would like to remind and offer to you the option of accessing our (EAP) employee support program completely independent of the company which is free of charge, if you wish to take your doctors advice and seek consultation regarding your stress and anxiety levels.

Further to this I am happy to offer immediate access and approve up to 3 weeks annual leave from your entitlements if you feel some time away from work will provide benefit to your current stress levels.

I believe that during our last meeting our agreement met the needs of both parties and I am quite concerned that the situation has now changed and reasons as to why you need a flexible work arrangement have also changed to the basis of your age and status at home regarding your mature aged daughter and grandchildren.

I will once again review your application based on the new reasoning and provide a written response to you by no later than the 9th of May 2014. To support this I will once again postpone the new working arrangement effective from today pending the outcome of our decision.” 4

On 9 May 2014

“In our last discussion you agreed and confirmed that 7am - 3.30pm Monday to Thursday was not impacting on your commitments at home and was suitable for your needs.

The issue there lies with your need to leave at 12pm every Friday.

This means you would not be working full time hours impacting the output of the area and overall business performance and our commitments to customers.

The option to make up the additional hours Monday - Thursday is not available as all your colleagues work 7am - 3.30pm, and to allow you to work on your own would be a breach of our safety obligations to you.

I have taken on board your revised statement of needing to look after your mature aged daughter and her children but I believe your original statement of needing to attend religious commitments is the truth of the matter and this does not justify the need to alter a full time work arrangement impacting the business and all of your colleagues as well.

For these reasons unfortunately we cannot support your request to leave at 12pm on a Friday, and once again I give you two weeks’ notice of the change in your working hours.

Your new hours will be Monday to Friday 7am - 3.30pm (with RDO) or your choice of Monday to Friday 7am - 3pm (Without RDO).

I stand by our original agreement of allowing you a combined morning tea and lunch break of 50 minutes at 12pm to attend your religious commitments on a Friday.” 5

[16] On 15 May 2014 Mr Dahbache wrote to Mr Glen DeClase.

“Dear Glen

My issue has still not been resolved nor has an agreement been reached. I am directing this email to you as I would appreciate it if this matter is dealt with by you or someone with higher authority. Please do not forward back to Daniel Spiteri as no agreement was reached the first time and the matter is not being resolved. I addressed the matter with National HR for the reason that I am not being treated fairly and Daniel intimidates me. Telling me that if I did not like the new working hours then I should resign. This comment was hurtful and was clear that my religious and personal commitments were not important to him.

Please note that attending religious prayer every Friday is very important for me and the suggested solution (combined tea and lunch break at 12) does not allow me to go and come back in time (as prayer commences around 1pm). Leaving at 1pm was also rejected as I would need to take a break every 4 hours. Furthermore, my commitment to my two grandchildren every single Friday is being ignored. My daughter is a single mother and a Nurse. Every Friday her kids are in my care and this has been practiced for years. Why is this being ignored?

Where is the flexible working arrangement that I am entitled to being over the age of 55?
My religious prayer and caring for my grandchildren are both very important events that I need to attend to every Friday.

I have offered to:

1. Work extra during the week to make up for leaving early (what I have done for over 20 years)
2. Take 2.5 LSL hours every Friday
3. Take 2.5 A/L hours every Friday
4. Take 2.5 Unpaid leave every Friday
5. Reduce my working hours by 2.5 hrs
6. Take 2.5 hours of RDO every Friday and make up for the remaining 2 hrs during the week (extra ½ hour a day)

All 6 options have been rejected. Where is my right to flexible working arrangements? Especially that there are other staff members taking certain times off and hours for their personal reasons. Why am I not allowed?

Furthermore despite the announcement that no staff will commence work at 6am, I can name many staff members that are still starting work at 6am. Therefore the idea that I am not to work alone is not an issue as there are many people around. Whilst I have been pressured to agree to start at 7am Mon-Thurs - clearly this is unfair to me that others are starting at 6 and 6.30am.

Again I will mention that upon my employment with Prixcar:

• There was a verbal agreement between Prixcar and myself.



• It has been exercised for over 20 years



• If this agreement was not agreed to 20 years ago I would not have sought employment with Prixcar.” 6

[17] On 18 May 2014 Mr DeClase replied and confirmed the reasons for refusal provided by Mr Spiteri. On that same day Mr Dahbache lodged this notification.

[18] Mr Spiteri gave evidence about the business need for a change in the hours of work. He had moved from another Prixcar division into Mr Dahbache’s area of the business, vehicle processing, in March 2014. He said:

“------So you came in and?---Came in and obviously I had been set some targets and KPIs to try and make sure we’re running the business as efficiently as possible. One of the very things that I noticed coming into the business is that across arrangement of about a hundred and thirty employees there was a lot of variance in start/finish times. And obviously I needed to get some order as to when people start and finish with shifts to cover workloads and demands. So that’s what’s caused the change.

So how did it come about if – was everyone starting at six, were they?---No. Across the hundred and forty people that we have we have different groups of shifts. Some people were starting at six. Other people 6.30, seven right through until midday. So I’ve done a review of the entire business, not just the section that Mr Dahbache works in, and restructured the start times and finish times of the entire business.

Okay. And why was it necessary to alter Mr Dahbache’s hours?---The particular area that Mr Dahbache works in is what we call our campaign and PDI area. So for a lot of our customers we conduct registrations and servicing and detailing of vehicles, getting them ready for pickup at our Minto facility. And starting at 6 am, finishing at 2 pm or 3 pm, in most cases, puts us outside the hours that a lot of our clients would actually come out to our site and a lot of the times that we will need to have the cars and vehicles ready to go. We get a lot of inquiries - - -

So you changed it from 6 o’clock to what?---7 o’clock.

And were there any exceptions to that?---No.

So you changed Mr Dahbache’s time in line with everyone else’s?---Correct.

But why was it necessary to change his finishing time, which had been in place for such a long time, on Fridays?---On Fridays? Obviously starting at 7 am by the time we got to the Friday there would not have been a 38 hour week worked or a 40 hour week worked with an RDO. So that meant that his finishing time would have still remained in line with what he had had previously. But obviously he wouldn’t have accrued enough hours to finish at 12 o’clock on a Friday without accessing some sort of entitlement or going without pay.” 7

[19] In response toMr Dahbache’s proposal that he be allowed to access long service leave, Prixcar responded that it was a breach of the NSW Long Service Leave Act, which applied as a result of the operation of clause 35 of the Agreement, to access long service leave in such short bursts.

“MR CLAUSE: ------It means that if you accrue long service leave and after 15 years you get 13 weeks of long service leave you’ve got to either take it as five, five and three or four, four and five. You’ve got to take in period lots. You can’t take it in - -  8

[20] Mr Spiteri was opposed to Mr Dahbache’s use of two and one half hours annual leave every Friday afternoon. He believed this would set a precedent for all employees which he would be obliged to apply and that it would not be in the best interests of the business.

[21] Mr Spiteri gave evidence that he had conferred with Mr Dahbache concerning these issues. The parties had discussions about "--- converting to casual and part-time status at work. In effect, complying with what the request was." Mr Dahbache rejected that proposal. In effect, the proposal involved converting Mr Dahbache to a 35 hour working week on a part-time basis so that he retained his annual leave entitlements and sick leave entitlements on a pro rata basis. This proposal was the subject of discussions before Commissioner Riordan.

[22] Prixcar considered letting Mr Dahbache leave two hours early on Fridays by using his entitlement to rostered days off. That proposal would have meant that Mr Dahbache had to leave at 1pm instead of 12 noon as he wished to. That was not acceptable to Mr Dahbache. Prixcar would not allow Mr Dahbache to start at 6 am because he would have been at work on his own and Prixcar considered that to be an occupational health and safety risk.

[23] In response Mr Dahbache submitted that it was he who had advised Prixcar that various employees were working before 7am. Prixcar had then changed that arrangement. He had also been aware that one person was taking long service leave for one day per week. When he advised Prixcar of that situation they changed it also. Mr DeClase agreed that that had occurred. When he became aware of these practices he had put an end to them.

[24] At the end of the hearing Mr Dahbache raised a new issue. He alleged that he had become an owner of the business for the purpose of registering cars. He also suggested that Prixcar were not using appropriately trained mechanics for inspections.

Conclusion

[25] Prixcar employed Mr Dahbache on conditions which included an arrangement about his working hours which allowed him to leave work at 12 noon on Fridays. That employment commenced in 1994 and for 20 years the arrangement was in place without interruption.

[26] Clause 24 of the Agreement is set out below:

“24. CONSULTATION ON WORKPLACE CHANGE

The Company shall notify employees and the Union in writing as early as possible of all proposed changes which will effect the performance or organisation of work and shall consult fully with employees and the Union about all aspects of the changes proposed.

Effective consultation will:

• Ensure that the views of employees are known by management;



• Provide management with an informed basis upon which to make decisions



• Ensure all outcomes are mutually agreed.”

[27] Prixcar cannot be said to have failed in its obligation to meet its agreement with Mr Dahbache concerning hours of work. It met that obligation for 20 years. However, the arrangement Prixcar had with Mr Dahbache was not a deal for life. The arrangement could not be changed on a whim, but Prixcar were not obliged to continue the arrangement to the detriment of its business as it changed and grew, or as its client’s needs altered. Prixcar was entitled to introduce change in accordance with the Agreement.

[28] If the needs of a business change, the conditions of employment of employees may need to change as well. I am satisfied that the business needs of Prixcar did change. Prixcar now needs to have its staff at work during hours geared to meet the needs of its clients. It needs its staff working when its clients are working. I am satisfied that the changes introduced by Prixcar in March 2014 were a reasonable response to the changed circumstances of its business. I am satisfied that Prixcar had, and still has, a legitimate business need to alter the commencement time of its workforce. I am satisfied that 7 am was and is an appropriate time for its workforce to commence, taking into account the need to satisfy and service its clients.

[29] I have considered the level of consultation entered into by Prixcar. Prixcar consulted with the workforce in general and have consulted with Mr Dahbache at length. They agreed to continue his arrangements whilst this dispute progressed. Proposals have been put to Mr Dahbache regarding altered arrangements. He has refused all compromises. Whilst it is clear that none of the arrangements proposed are as perfect a solution to Mr Dahbache’s needs as the arrangement he had in place prior to March 2014, I am satisfied that those proposals were very reasonable responses to Mr Dahbache’s personal circumstances where Prixcar had a legitimate need for change.

[30] Whilst I understand that Mr Dahbache is dissatisfied with any change in the conditions which applied from when he commenced employment to March 2014, I am satisfied that Prixcar have consulted effectively and to the extent required by the Agreement and beyond, and that it has introduced the change in a way that has been sympathetic to Mr Dahbache’s personal circumstances.

[31] I recommend that Mr Dahbache accept the offer made by Mr Spiteri that he convert to a 35 hour working week on a part-time basis so that he retains his annual leave and sick leave entitlements on a pro rata basis. All current accumulated sick leave should be converted into hours and accrued to him. He should do so as soon as his health enables him to.

SENIOR DEPUTY PRESIDENT

 1   Question 4 of Form F10

 2   Attachment to Application

 3   Transcript PN85

 4   Attachment to Application

 5   Attachment to Application

 6   Attachment to Application

 7   Transcript PN127 - PN133

 8   Transcript PN142

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