Mr Muhammed Rizwan Ali Suleman v TNT Australia Pty Ltd T/A TNT Express

[2020] FWC 3653

[2020] FWC 3653

FAIR WORK COMMISSION

DECISION

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

Mr Muhammed Rizwan Ali Suleman
v
TNT Australia Pty Ltd T/A TNT Express
(U2020/3917)

DEPUTY PRESIDENT CROSS SYDNEY, 13 JULY 2020

Application for an unfair dismissal remedy –– harsh, unjust or unreasonable – application dismissed.

BACKGROUND

[1] An application was filed on 31 March 2020 (the “Application”), by Mr Muhammed Rizwan Ali Suleman (the “Applicant”), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant seeks an unfair dismissal remedy, primarily reinstatement, following his dismissal by TNT Express – FedEx t/a TNT Express (the “Respondent”) on 30 March 2020.

[2] The Applicant commenced employment with the Respondent on 6 November 2017. The Applicant was terminated for misconduct on 31 March 2020. He was paid two weeks in lieu of notice. The relevant misconduct was the failure to comply with lawful and reasonable requests of the Respondent, and the lodgement of vexatious claims.

[3] In his Form F2 Unfair Dismissal Application the Applicant provided the following regarding why he claimed his termination was unfair:

“Allbecause I got majorly sick and tried to return back to work. You tellme this racist towards me.

The company has been racist towards me from the beginning and don’t want me to return back to work. All the allegations towards me I came up with answers. I haven’t done anything wrong but just felt sick cased by the company.” (Original text)

[4] At the hearing of the Applicant’s claim, the Applicant stated that he was terminated because someone tried to fight him at work in June or July 2019, and that was the reason he was terminated.

[5] In accordance with my Directions, the following material were filed:

(a) The Applicant filed four emails dated 29 April 2020;

(b) The Respondent filed an Outline of Submissions together with Statements from Christopher Lennox, Matt Dawson and Renae Bullock; and

(c) The Applicant filed an email dated 22 June 2020, with Annexures.

Background

[6] The Respondent operates a freight business. It has a depot at Erskine Park NSW from which it operates trucks. The Applicant was employed out of the Erskine Park depot, as a driver of a Heavy Rigid class (HR) truck for bulk deliveries, as part of the Respondent’s Bulk Fleet.

[7] In June 2019, the Applicant was the subject of disciplinary action in relation to fraudulent scanning of freight, which resulted in him being issued a final written warning for misconduct on 2 August 2019, and being placed on a performance improvement plan. Shortly after being placed on the performance improvement plan, the Applicant went onto an extended period of sick leave. He did not in fact work for the company again after that commenced.

[8] On 30 September 2019, after providing the Respondent with a medical certificate relating to his fitness to return to work, the Applicant was asked by his manager Mr Dawson to attend a meeting at the workplace on 1 October 2019. The Applicant did not attend.

[9] Mr Dawson wrote to the Applicant on 2 October 2019, asking the Applicant to attend a meeting the next day. The Applicant replied to the effect that he would not. Mr Dawson then wrote to the Applicant again, asking him to nominate an alternative time by 6 pm that day. No such meeting time was nominated.

[10] On 8 October 2019, the Applicant wrote to Ms Bullock in the HR department, regarding alleged bullying. Ms Bullock directed him to attend a meeting on 10 October 2019, to discuss the allegations and to discuss the question of the medical certificate and return to work.

[11] At the meeting on 10 October 2019, the Applicant’s medical fitness was discussed. His medical certificate listed restrictions which had the effect that the Applicant would not be able to perform the inherent requirements of his duties, and in particular that he was not fit to drive. The Applicant was advised that a Fitness for Duty Assessment would need to be completed before he could return to work. The Applicant agreed to undergo this assessment and signed a consent form to that effect during the meeting. The Respondent informed the Applicant that he would be on stand down with pay pending the assessment, rather than continuing to be on sick leave (which by then was unpaid as the Applicant had used all of his paid personal leave).

[12] At the meeting on 10 October 2019, the Applicant was also invited to provide further detail about the allegations of harassment. He withdrew the allegations, saying “let it go” and “I retract all comments” and “there is nothing to investigate”.

[13] Thereafter, the Applicant sent a series of three emails to Fedex Investor Relations in the United States of America in which, among other things, he threatened to make allegations about the Respondent to “social media, newspapers, court case, worldwide press everyone hears on tv” and stated: “The below incident could go away with a small price too (sic.) pay. This will be set at $1 million”.

[14] Ms Bullock became aware of the above emails and on 15 October 2019, wrote to the Applicant to point out to him that he had just had a meeting at which he had withdrawn all allegations, and that if he wished to have them investigated he needed to provide details directly to her. She also directed him to comply with the Respondent’s policies and procedures, and not to send any further emails to Fedex executives.

[15] On 21 October 2019, Ms Bullock sent the Applicant the appointment details for his Fitness for Duty Assessment scheduled for 23 October 2019. The Applicant underwent the assessment and was found not to be fit for work.

[16] Following the receipt of the report on the Fitness for Duty Assessment, Mr Dawson wrote to the Applicant on 5 November to notify him that he was required to attend a meeting on 7 November 2019, to discuss the report and its findings. The Applicant responded to the effect that he was not available on 7 November 2019 due to being “booked out” with a “lawyers appointment”.

[17] Mr Dawson wrote to the Applicant again on 6 November 2019, to reschedule the meeting for 8 November 2019. The Applicant responded to this with an email saying “I’m not available on this day”.

[18] Mr Dawson replied by email and reminded the Applicant that he remained on paid stand down and was therefore expected to be available for meetings that the Company requests. Mr Dawson advised the meeting for 8 November 2019 remained confirmed and directed the Applicant to attend. He was also informed to the effect that “…your non-attendance will be deemed as failure to follow a reasonable and lawful management direction”.

[19] On 8 November 2019, Mr Suleman failed to attend the scheduled meeting.

[20] On 13 November 2019, the Applicant was directed, via email, to attend a meeting set down for 18 November 2019. Also raised in that directive was the Applicant’s previous failure to comply with lawful and reasonable directions in relation to his non-attendance at previous meetings. His pay status was also reverted from paid stand-down to sick leave.

[21] The Applicant responded with a series of emails in which he claimed that his non- attendance at the meeting on 8 November 2019, was due to medical reasons. He attached medical certificates, that were dated 11 November 2019. He also indicated that he would not be available to meet on the morning of 18 November 2019, as he was to have a blood test.

[22] The Respondent agreed to move the meeting set down for 18 November 2019, to the afternoon, to accommodate the Applicant’s request.

[23] The Applicant did not attend the meeting on the afternoon of 18 November 2019.

[24] On 13 February 2020, the Applicant contacted the Respondent asking for a Separation Certificate, and attached an email from Peter Anderson (General Manager Australian Dismissal Services). Ms Bullock wrote to the Applicant and to Mr Anderson to advise that the Applicant had not been terminated and was still employed by the Respondent.

[25] The following day Ms Bullock received an email from Mr Anderson saying:

Given Muhammad has not been dismissed, there is obviously no action we will take, thank you for helping us get to the bottom of his enquiry.

I have informed Muhammad if he wishes to return to work he needs a full medical clearance to perform his 'normal duties', and, he should then attend a meeting with you to discuss his return to work.

[26] Ms Bullock was unaware what action had been taken, but a couple of days later it emerged that an unfair dismissal had been lodged in the FWC. This was subsequently discontinued.

[27] On 24 February 2020, Ms Bullock received from the Applicant a medical certificate stating that he could return to truck driving duties after being passed on a driving assessment by an occupational therapist. He did not return to work however, nor make any other contact, nor is the Respondent aware of him arranging a driving assessment.

[28] On 11 March 2020, Ms Bullock sent the Applicant a direction from Mr Dawson to attend a meeting on 13 March 2020 at the Erskine Park Depot. The Applicant replied the same day in several emails, in which he requested prior payment of money to attend the meeting, for fuel, clothing and so he could be “nicely groomed”. Ms Bullock offered to have the meeting via telephone.

[29] On 12 March 2020, Ms Bullock wrote to the Applicant to say:

.. the meeting scheduled for tomorrow will go ahead. TNT has provided you with the opportunity to attend via phone call, if this is something that you wish to happen, please provide TNT with your best contact number. If you do not wish to attend via phone call, it is expected that you attend the meeting, in person, as directed.

[30] The Applicant did not attend the meeting set down for 13 March 2020, either in person or by telephone.

[31] On 14 March 2020, the Applicant again emailed Fedex Investor Relations, contrary to the explicit direction he had been given, stating “You guys know I can sue the company. If TNT Express Erskine Park keeps trying to fight me. I have no choice but to sue the company. One of the drivers told me Tnt likes to fight.” (original text retained)

[32] On 18 March 2020, the Applicant was sent a Show Cause letter, listing in detail allegations of failure or refusal to comply with lawful and reasonable directions in relation to his failure or refusal to attend the series of meetings above, his making of vexatious claims in relation to bullying and racism, and his failure or refusal to comply with a lawful and reasonable direction that he raise any complaints via the company’s established procedures and not send emails to Fedex Investor Relations. The Applicant was directed to attend a meeting at the Erskine Park depot on 23 March 2020, to answer these allegations and show cause why he should not be dismissed.

[33] The Applicant attended the meeting. He had Mr Jason Armstrong of the TWU as his support person, and in attendance for the Respondent were Ms Bullock and Mr Dawson. The Applicant was given an opportunity to respond to the allegations and did so.

[34] Following consideration of the Applicant’s responses Mr Dawson and Ms Bullock agreed that he should be dismissed. That decision was referred to Mr Chris Lennox, the General Manager, who reviewed the facts and agreed with the recommendation.

[35] The Applicant was then contacted by Ms Bullock on 30 March 2020, for a meeting to discuss the outcome. The meeting was to be conducted by telephone. The Applicant’s representative, Mr Armstrong, indicated that he was available, but the Applicant said that he was not available for a week, due to being “booked out with my legal team this week”. Mr Lennox then wrote to the Applicant to direct him to attend the meeting on 31 March 2020.

[36] The Applicant did not thereafter attend the meeting, nor contact the Respondent. Mr Lennox then arranged for a letter of termination to be delivered to him by courier.

CONSIDERATION

Preliminary findings

[37] There are no jurisdictional objections to the Applicant’sapplicationbeing determined by the Commission. Specifically, I am satisfied that:

(a) The Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));

(b) His unfair dismissal application was lodged within the 21 day statutory time limitation found at s 394(2) of the Act;

(c) The Applicant is a person protected from unfair dismissal in that:

i. he had completed the minimum employment period set out in ss 382 and 383 of the Act, being a period of two and a half years; and

ii. an enterprise agreement, the TNT – TWU Fair Work Agreement 2017 – 2020, applied to his employment (s 382(3)(b)(ii));

(d) His dismissal was not a case of genuine redundancy (s 385(d)); and

(e) His dismissal was not a case involving the Small Business Fair Dismissal Code, as the respondent employs around 4500 employees (s 385(c)).

[38] As I have just concluded that three of the above criteria have been satisfied ((a)(c) and (d)), this leaves only the question of whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable’ and therefore an unfair dismissal. To this end, one must direct attention to s 387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair. It is trite to observe that each of the matters must be considered and a finding made on each of them, including whether they are relevant or not; for example whether a person was (d) refused an opportunity to have a support person present may be irrelevant, if the request was not made, or the employee declined to take up the offer.

[39] Section 387 of the Fair Work Act 2009 identifies the matters that the Fair Work Commission (FWC) must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable”:

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

Whether the person was notified of that reason; and

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

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

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

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

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

Any other matters that the FWC considers relevant.

[40] The Respondent raised a preliminary issue, being that the Applicant had simply failed to make a case for unfair dismissal. The Respondent noted that the Applicant was directed by the Commission to file an outline of submissions and any evidence upon which he relies by 20 May 2020. The Applicant had not filed any outline of submissions, and the material sent by the Applicant to the Commission does not address any of the criteria under s. 387, or set out why the termination was unfair, nor challenge the process followed or reasons for his dismissal.

[41] There is some considerable force in the submission of the Respondent, however, as the dismissal involved allegations of misconduct, the legal burden to establish that misconduct rests with the Respondent. As the Industrial Relations Commission of New South Wales found in Pastrycooks Union v Gartrell White (No. 3) 1:

“It is undoubted, in my view, and as Mr Walton conceded, that the onus for making out a case to warrant the intervention of the Commission in ordering reinstatement is on the claimant union: see Re Barrett and Women's Hospital, Crown Street [1947] AR (NSW) 565; Re Municipal Employees, Greater Newcastle (Wages Division) Award (Re Wallace) [1949) AR (NSW) 868; Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 and Homebush Abattoir [1966) AR (NSW) at 386. However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 at 552, 553; North v Television Corporation Ltd [1976] 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. To the extent that Mr Newall submitted to the contrary, his submission cannot stand. The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644:”

"Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved”. (Emphasis added)

[42] I therefore make the following findings regarding the assessment of the relevant criteria under s. 387 of the Act.

(a) Valid reason

[43] The Respondent relied upon three forms of misconduct in terminating the Applicant. They were:

(a) The failure or refusal to comply with lawful and reasonable directions in relation to his failure or refusal to attend the series of meetings;

(b) Making of vexatious claims in relation to bullying and racism; and

(c) The failure or refusal to comply with a lawful and reasonable direction that he raise any complaints through the Respondent’s established procedures and not send emails to Fedex Investor Relations.

[44] On the evidence before the Respondent, the first form of misconduct outlined above on its own formed a sound, defensible and well founded basis for their making their decision to terminate the Applicant. 2 The Applicant repeatedly failed or refused to attend meetings, despite being put on notice that these were not mere requests but formal directions. The Applicant’s explanation in the hearing that he did not attend meetings because he “had appointments” was simply unacceptable. The Respondent on numerous occasions attempted to accommodate the Applicant, only to have the Applicant fail to attend rescheduled meetings.

[45] It is lawful and reasonable for an employer to direct an employee to attend meetings, and it was in the Applicant’s interest to attend when those meetings concerned such matters as a potential return to work.

[46] On their own, I would not have considered the making of vexatious claims in relation to bullying and racism formed a sound, defensible and well founded basis for the decision to terminate the Applicant. Such claims were only occasional, and in the absence of any investigation I cannot characterise them as vexatious.

[47] The third form of misconduct, being the failure or refusal to comply with a lawful and reasonable direction that he raise any complaints through the Respondent’s established procedures and not send emails to Fedex Investor Relations, would also on its own form a sound, defensible and well founded basis for their making their decision to terminate the Applicant. The original email demanding $1 million was simply extraordinary and unacceptable, but the Applicant’s further email on 14 March 2020, after specific instruction to not do so and to follow established grievance channels, was yet another failure to follow lawful and reasonable directions of the Respondent.

[48] On their own, either the first or third forms of misconduct relied on the Respondent constituted valid reasons to justify the termination. When considered together, those reasons formed an overwhelmingly sound and valid basis for termination.

(b) Notification

[49] The Applicant was notified of the allegations in detail in the Show Cause letter. These allegations were the reason, ultimately, for his dismissal.

(c) Opportunity to Respond

[50] The Applicant was informed of the allegations and called to a meeting to answer them, which took place on 23 March 2020. The allegations were clearly set out in the Show Cause letter and the Applicant was given the opportunity to say what he wished to say in response to them.

(d) Support person

[51] At all relevant times the Applicant was invited to have a support person. The Applicant did have a support person for the Show Cause meeting. He had also had the opportunity to have a support person at the outcome meeting, and Mr Armstrong from the TWU was available. Unfortunately, the Applicant failed to attend that meeting.

(e) Warnings

[52] This is not a relevant consideration as the reason for the termination was misconduct, not performance.

(f/g) Size of the business/human resources

[53] These are not relevant considerations as the Respondent is relatively large and well resourced in the area of Human Resources.

(h) Other relevant matters

[54] There are no other relevant consideration.

Conclusion

[55] Following a period of sick leave, the Applicant repeatedly refused to comply with lawful and reasonable requests to meet with the Respondent. The Respondent went to extraordinary lengths to accommodate the Applicant regarding meeting times, only to be rebuffed by the Applicant. The Applicant’s refusal to comply with a lawful and reasonable directions of the Respondent also extended to the sending of emails to Fedex executives instead of making complaints through the Respondent’s established processes.

[56] The Respondent put the allegations to the Applicant, and gave the Applicant an opportunity to respond. Those allegations formed a valid reason for termination. I am satisfied that the Respondent took into account the Applicant’s response in deciding to terminate the Applicant, and that the Applicant was accorded procedural fairness in the termination process.

[57] The termination of the Applicant was not harsh unjust or unreasonable. The Application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720921>

 1 [1990] 35 IR 70, at Pp. 83 to 84.

 2   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.