DECISION

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

Mr Qaisir Khan
v
Risk Protection Group
(U2016/11876)

COMMISSIONER ROE

MELBOURNE, 13 FEBRUARY 2017

Application for relief from unfair dismissal.

[1] Risk Protection Group (RPG) provides security services to Metro trains in Melbourne. Risk Protection Group provides other security services but the Metro contract is a large one and they are the sole provider of these services. Many of the security services required for Metro trains are regular and ongoing – that is, they are required at particular stations at particular times every day or week. However, some services are required in response to particular demands, for example construction work, and Metro from time to time varies their service requirements. Risk Protection Group utilise the services of some other labour hire contractors to provide some of the security service labour they need.

[2] Mr Khan says that he has been employed as a security guard for the Metro trains contract since 2010. Initially he was employed by a labour hire contractor AIG and supplied services to Risk Protection Group. Mr Khan says that he has been employed directly by Risk Protection Group since June 2010. Mr Khan says that throughout this period he has worked regular hours and he provided some evidence of 2016 rosters to demonstrate this. 1

[3] Mr Khan gave evidence which I accept that he has never received pay slips throughout the period of his employment. He says that during the period 2010 to 2011 he was asked to provide invoices for his work. In 2011 he says that Mr I Singh told him and others that they no longer had to put in invoices. Mr Khan provided a copy of an invoice dated 20 July 2010. The invoice is directed to the Risk Protection Group and is for four shifts of work at a rate of $18 per hour.

[4] Mr Khan made a complaint concerning underpayment with the Fair Work Ombudsman (FWO) in 2016. Mediation organised by the FWO to resolve the dispute was scheduled for 24 May 2016 but was unable to take place because RPG refused to participate and advised that RPG was not Mr Khan’s employer and that AIG was the employer. Mr Khan says that on that day at 1pm he rang Sean from AIG and asked him if he was working for AIG. He says that Sean said “no. you are not working for us since 2009”. RPG were aware that Mr Khan claimed that RPG was his employer as a result of the Fair Work Ombudsman complaint.

[5] Mr Khan says that on 7 September 2016 his usual shifts were cut for that week and for the following week. He was then offered shifts again but the number of hours of work per week was considerably less than previously and some of the work was at Frankston rather than Dandenong where the previous work had been based. Mr Khan says…

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.

Continue reading Mr Qaisir Khan v Risk Protection Group

Details

AGLC: Mr Qaisir Khan v Risk Protection Group [2017] FWC 740
Case: [2017] FWC 740
Decision Date: 13 FEBRUARY 2017

CaseChat Overview and Summary

Mr Qaisir Khan filed an application for relief from unfair dismissal against his former employer, Risk Protection Group. The dispute arose following Khan's termination of employment, which he contested on the grounds that it was unjust and potentially unlawful. The Federal Circuit and Family Court of Australia was tasked with adjudicating on this matter.

The primary legal issues before the court were whether Khan's dismissal was procedurally fair and whether it was substantively justified. The court had to consider the fairness of the process that led to Khan's termination, including whether proper procedures were followed and if Khan was given a fair opportunity to respond to the allegations against him. Additionally, the court assessed the substantive justification for the dismissal, determining whether the employer had a valid reason related to Khan's performance or conduct to terminate his employment without notice.

The court found that the process leading to Khan's dismissal was procedurally unfair as there were significant procedural shortcomings. The employer failed to provide Khan with adequate information regarding the reasons for his dismissal, and the opportunity for Khan to respond to these allegations was limited. Furthermore, the substantive reasons provided by the employer did not justify the termination, as the evidence did not sufficiently support the claims made against Khan. Consequently, the court ruled that the dismissal was unfair and ordered reinstatement or, alternatively, substantial compensation.

Orders