Mr Tasir Jan v NRS Engineering Solutions Pty Ltd

[2017] FWC 1500

[2017] FWC 1500

FAIR WORK COMMISSION

DECISION

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

Mr Tasir Jan
v
NRS Engineering Solutions Pty Ltd
(U2016/12709)

COMMISSIONER ROE MELBOURNE, 16 MARCH 2017

Application for relief from unfair dismissal.

[1] Mr Jan was employed as a security guard by NRS Engineering Solutions Pty Ltd (NRS) from 14 March 2016 until 5 October 2016. The employer submitted that the end date was 4 October 2016 but nothing turns on this matter given that the period of employment exceeds six months and NRS is not a small business employer.

[2] The matter was listed for conciliation in November but the employer did not attend the conciliation. The employer did not respond to numerous attempts by the Fair Work Commission to achieve a response. At a hearing before Commissioner Bissett on 13 January 2017 a Mr Broock appeared for the employer and stated that he had been receiving correspondence addressed to NRS Security Solutions Pty Ltd and that this was not the correct company and that the company had never employed Mr Tasir Jan. The company subsequently engaged Macpherson Kelley to represent them and a notice of representation was provided to the Fair Work Commission. Eventually NRS Engineering Solutions Pty Ltd conceded that it had in fact been the employer of Mr Jan, that the ABN number provided by Mr Jan for his employer had been the ABN number for NRS Engineering Solutions Pty Ltd and that it had no evidence to show that Mr Jan was not in fact an employee of NRS Engineering Solutions Pty Ltd. The company then indicated that it was objecting to the application on the basis that the company named in the application was not in fact the employer. However, the company did not proceed with that objection.

[3] NRS failed to comply with directions and did not submit any material in response to the application by the due date of 21 February 2017. I sent a reminder to the representatives for NRS and requested material be provided by no later than 3 March 2017. Material arrived dated 8 March 2017.

[4] NRS did not attend the hearing which had been listed for 14 March 2017. I have no doubt that NRS were well aware of the hearing. The correspondence which referred directly to the hearing date was extensive. My Associate contacted MacPherson Kelley when they did not appear. MacPherson Kelley advised that they did not have instructions to appear despite the fact that they had provided the appropriate form on 10 February 2017. They advised that they had been instructed that NRS were aware of the hearing and had allocated someone to attend the hearing.

[5] I decided that it was reasonable in all of the circumstances to proceed in the absence of NRS. I was satisfied that they were well aware of the hearing since 8 February 2017 and had adequate notice of the hearing. It would not be consistent with a fair go all round for the matter to be further delayed.

[6] I also decided that there was no doubt about the correct identity of the employer. NRS had confirmed that Mr Jan had been employed by NRS Engineering Solutions Pty Ltd and that NRS Engineering Solutions Pty Ltd had the same ABN as that listed on Mr Jan’s application. I am satisfied that I should exercise discretion pursuant to Section 586 of the Fair Work Act 2009 (the Act) to correct the name of the Respondent employer from NRS Security Solutions Pty Ltd to NRS Engineering Solutions Pty Ltd.

[7] MacPherson Kelley on behalf of NRS claimed that Mr Jan had withdrawn his claim for unfair dismissal because he entered into a Separation Agreement and signed a notice of discontinuance on 10 February 2017. The Fair Work Commission refused to accept the notice of discontinuance because it was provided by MacPherson Kelley and not by the Applicant, Mr Jan. Mr Jan gave evidence that he agreed to the terms of settlement and signed the terms and the notice of discontinuance in the office of MacPherson Kelley. He said that he had been led to believe that MacPherson Kelley had been acting on his behalf as well as on behalf of NRS. He believed that he had been misled and he did not want to discontinue the application. Mr Jan advised the Fair Work Commission that he wished to continue with his application on 21 February 2017.

[8] Throughout the process of management of this file FWC has required the assistance of an interpreter for Mr Jan. Mr Jan is not fluent in English. Mr Jan was not represented and did not have his own interpreter when he was at the office of MacPherson Kelley and signed the settlement terms and the notice of discontinuance.

[9] In these circumstances I am not satisfied that the terms of settlement and the notice of discontinuance can be relied upon. I am not satisfied that Mr Jan gave his informed consent to the documents and I accept that he believed that MacPherson Kelley were acting on his behalf when in fact they were acting for NRS.

[10] MacPherson Kelley on behalf of NRS raised one further objection to the unfair dismissal application. They argue that Mr Jan was a casual employee who was not employed on a regular and systematic basis and had no reasonable expectation of continuing employment on a regular and systematic basis. They submit that text messages and pay slips demonstrate that Mr Jan worked irregular hours, was only required to work when specifically requested to come in on a particular day, and that there was no pattern to the work and that it was irregular and occasional. They deny Mr Jan’s statement that he was told that full time work would be given to him in the future.

[11] NRS did not provide any pay slips or rosters. Mr Jan gave uncontested evidence that he was paid $17 per hour and never received any pay slips. Mr Jan says that he provided his Tax File Number details to NRS. Mr Jan gave evidence, which I accept, that he signed on and off by text message and that he received instructions concerning when and where he was to work by telephone call. Mr Jan says that he would be allocated work at a particular venue and would be told that the work would be ongoing but then after three or four days the work would end and then there would be no work during the next week and then he would be allocated work at a new venue. Mr Jan says that he was regularly assured that the next job would be full time and ongoing. Mr Jan says that no work was offered for about six weeks prior to the last job he did. He was regularly assured that he would be allocated a full time job during the period he was waiting to be allocated new work. Mr Jan says that he worked a total of 160-170 hours during the six month period of his employment. Mr Jan gave evidence, which I accept, that he never refused work that was offered to him and that he was expected to work any shifts that were offered.

[12] I am satisfied that the period of Mr Jan’s employment as a casual employee was on a regular and systematic basis. The regular and systematic pattern of employment was that Mr Jan was expected to work when requested and he always made himself available when he was requested to work. Mr Jan had an expectation of continuing employment by the employer on a regular and systematic basis because I accept his evidence that he was told shortly prior to the last job prior to the termination of employment that his next job would be on a full time ongoing basis. I also accept that he had also been given this assurance earlier.

[13] NRS submit that Mr Jan’s employment was terminated because the client of NRS with whom Mr Jan had been working refused to allow him to return. Mr Jan says that there was no valid reason for his termination and that NRS wrongly reached the conclusion that generators and compressors had gone missing from the site during the period when he was responsible for security at the site.

[14] Mr Jan worked at a job in Truganina in the week of 1 October 2016. He was expecting to work five shifts but after three shifts he was told by a new guard to work the next two days at Lilydale. He was told by another employee on 5 October 2016 that he had been sacked so he sent a text message to the employer, Nabeel, asking why he had been sacked. He spoke to Nabeel and Nabeel said that because some generators, convertor and oil had gone missing from the Truganina job on 3 October 2016 he was sacked from the job. Mr Jan said that on 3 October 2016 he was directly watching the containers where the generators and the convertor were and the items did not disappear on his shift. Mr Jan said that he spoke to the manager at the site who said that the items had disappeared some time between 1 and 3 October 2016. A number of other guards had worked shifts during this period. Mr Jan confirmed the issue was never raised with him prior to the dismissal and so he had no opportunity to respond. Mr Jan provided two recordings of conversations in October 2016 between himself and Qaisir, an NRS employee, and between himself and Nabeel which confirmed some aspects of Mr Jan’s evidence.

[15] In deciding whether or not the dismissal was unfair I am required to consider the following:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) 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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) 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

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) 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

(g) 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

(h) any other matters that the FWC considers relevant.”

Was there are a valid reason related to Mr Jan’s capacity or conduct?

[16] I am not satisfied that there is a valid reason for Mr Jan’s dismissal related to his capacity or conduct. I accept Mr Jan’s evidence that he was not negligent in his duties on 3 October 2016 and that there is no evidence that could establish on the balance of probabilities that the generators and the compressor were stolen on his watch. This factor stands in favour of a finding that the dismissal was unfair.

Was the Mr Jan notified of the reason?

[17] It is not disputed that Mr Jan was told the reason for his termination was that the generators and the compressor were allegedly stolen on his watch. However, he was only told this reason in response to his text message to Mr Nabeel asking him why he had been sacked. This factor stands in favour of a finding that the dismissal was unfair.

Was Mr Jan given an opportunity to respond to the reason for dismissal?

[18] I am satisfied from the direct evidence of Mr Jan that the decision to terminate him was taken prior to any opportunity to respond. This factor stands in favour of a finding that the dismissal was unfair.

Was Mr Jan refused a support person?

[19] There was no notice of the dismissal and so there was no opportunity for Mr Jan to have a support person. However, there was no request for a support person and no denial of a request.

Was Mr Jan warned?

[20] I am satisfied that the dismissal related to conduct and not performance. To the extent that the matters in question relate to alleged neglect of duty and hence to poor performance I am satisfied that Mr Jan was never warned about the matter.

Size of employer and human resources expertise.

[21] I have no evidence concerning these matters. The failings in respect to procedural fairness were so profound in the circumstances of this case that they could not be excused by the size of the employer or any lack of human resources expertise.

Other factors.

[22] The short period of employment, approximately 6 months, is a factor which is relevant.

[23] NRS submits that the host employer refused to have Mr Jan continue working for them. I cannot rely upon this submission and there was no direct evidence and no capacity for Mr Jan to test the allegation. Even if it were established that the host employer refused to have Mr Jan work for them NRS may have been able to allocate Mr Jan to other jobs. Again I do not have evidence to reach a conclusion about that matter.

Was the dismissal unfair?

[24] Taking into account all of the factors in Section 387 I am satisfied that the lack of a valid reason and the lack of procedural fairness mean that the dismissal was harsh, unjust and unreasonable.

Remedy

[25] Mr Jan says in his application that he does not seek reinstatement. NRS opposes reinstatement. I accept that reinstatement is inappropriate.

[26] I consider it appropriate to make an order for compensation. I am required to consider the following matters in determining compensation (Section 392(2)):

“Criteria for deciding amounts

(1) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including

(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.”

[27] There was no evidence before me that demonstrated that the viability of NRS will be adversely affected by any order I make. I am not satisfied that any order I may make is likely to affect the viability of the company.

[28] The length of service of six months is relatively short.

[29] I accept the evidence of Mr Jan that he expected the employment to continue indefinitely and that he intended to stay with the job indefinitely. However, it would be difficult to conclude that the length of further employment would be a number of years in circumstances where the relationship had only been continuing for six months and the number of hours worked was low.

[30] I estimate that the employment would have continued for a further period of six months if the dismissal had not occurred. Mr Jan appears to have been paid less than his legal entitlements. I consider that his expected earnings should be based upon the minimum he would have received under the Security Services Industry Award 2010. The evidence provided by Mr Jan demonstrates that his work was generally at night. The rate of pay for the level 1 security officer working at night with the casual loading is $29.18 per hour. Therefore the amount Mr Jan would have earned in a six month period is 160 hours x $29.18 or $4668.80. Given the low rate of earnings and the low number of hours I have not included superannuation in my calculations.

[31] During the 13 week period from the dismissal until 4 January 2017 Mr Jan did not earn anything from employment. I accept his evidence that he made extensive efforts to find new employment.

[32] During the 10 week period from 4 January 2017 until the date of this decision Mr Jan has earned $80 per week from employment before tax; a total of $800.

[33] During the three week period between now and the payment of compensation Mr Jan will earn a further $240 from employment.

[34] This leaves $3628.80 in compensation.

[35] The only uncertainty is that which is involved in my estimation of the period of time that employment would have continued if the dismissal had not occurred. I therefore make no deduction for contingencies.

[36] I do not consider that there has been any misconduct which contributed to the decision to dismiss Mr Jan.

[37] I have not included any amount for shock, distress or humiliation.

[38] I am satisfied from the evidence of Mr Jan that he made adequate efforts to seek to find new employment and that no discount should be made due a failure to make efforts to mitigate his loss.

[39] The amount is less than the compensation cap of six month’s pay.

[40] Taking into account each of the factors specified in Section 392(2) I will award compensation of $3,628.80. Taxation should be deducted from this amount according to law. The amount is payable within twenty one days. An order to this effect is issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr T Jan represented himself.

No appearance from the Respondent.

Hearing details:

2017

Melbourne

March 14

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