Muhammad Mustafa v Core Service Holdings Pty Ltd
[2024] FWC 1449
•19 JUNE 2024
| [2024] FWC 1449 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Muhammad Mustafa
v
Core Service Holdings Pty Ltd
(U2024/1134)
| DEPUTY PRESIDENT DEAN | CANBERRA, 19 JUNE 2024 |
Application for an unfair dismissal remedy – compensation ordered.
On 2 February 2024 Mr Muhammad Mustafa (Applicant) made an application for a remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed from his employment with Core Service Holdings Pty Ltd (Respondent).
The Applicant commenced employment on 7 February 2022 as a Mobile Patrol Officer on a part time basis, working 76 hours per fortnight. His role involved visiting client sites to conduct security inspections and checking for trespassers and/or vandalism, and responding to security alarms etc.
On 2 January 2024, the Applicant was advised that his employment was terminated, and his last day would be 16 January 2024. The Applicant claims the reason given for his dismissal was that the Respondent could no longer afford him.
In the response to the application filed by the Respondent (Form F3), the Respondent stated that the Applicant was “excused due to poor performance over a long duration [which] resulted in the loss of clients”.
The application was heard on 4 June 2024. Mr P Smith from Legal Aid ACT appeared with permission for the Applicant and Mr B Harrison appeared for the Respondent. The Applicant gave evidence on his own behalf. The Respondent did not file any material in accordance with directions issued by the Commission however did attend the hearing.
For the reasons outlined below, I find that the Applicant was unfairly dismissed and have decided that compensation is the appropriate remedy.
Was the dismissal unfair?
A dismissal is unfair if the Commission is satisfied on the evidence that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
There is no dispute that the Applicant was dismissed, and subsections (c) and (d) do not apply, notwithstanding the initial advice to the Applicant that his dismissal was because the Respondent could not afford him.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd[1] as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
The onus is on the Applicant to prove his dismissal was harsh, unjust and/or unreasonable.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]
Valid reason - s.387(a)
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]
There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision-making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.
The Respondent contended that the Applicant was not performing to a satisfactory standard. The Form F3 made various allegations about the Applicant’s performance, including that he was constantly speeding and took the business car keys home without permission. It also contended that the Applicant was provided with constant feedback, training and support, however the Respondent called no evidence to support these contentions.
The Applicant gave evidence denying all the matters outlined in the Form F3 which were listed as the reasons for his dismissal. He gave evidence that at no time prior to his dismissal was he advised of any of these matters, and in any event the allegation were untrue.
Given the Respondent did not file any evidence in the proceedings, I accept the evidence of the Applicant and find that there was no valid reason for the Applicant’s dismissal.
Notification of the valid reason and opportunity to respond - s.387(b) and (c)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[6] in explicit terms[7] and in plain and clear terms.[8] In Crozier v Palazzo Corporation Pty Ltd[9] a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”[10]
An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.[11] This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[12]
The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to the Applicant before his dismissal was effected.
The reason given to the Applicant for at the time of his dismissal was not the reason given by the Respondent in the Form F3. I find that the Applicant was not notified of the reason for his dismissal or given an opportunity to respond to the matters set out in the Form F3.
Unreasonable refusal by the employer to allow a support person - s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
I that the Applicant was not unreasonably refused a support person.
Warnings regarding unsatisfactory performance - s.387(e)
A warning for the purposes of s.387(e) must clearly identify:
a. the areas of deficiency in the employee’s performance;
b. the assistance or training that might be provided;
c. the standards required; and
d. a reasonable timeframe within which the employee is required to meet such standards.[13]
The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”[14]
There is no evidence that the Applicant was warned about any alleged performance issues or that the Respondent advised him his employment was at risk.
Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))
There is no evidence that the size of the Respondent and any absence of dedicated human resource expertise impacted on the procedures followed by it in effecting the dismissal.
Other relevant matters - s.387(h)
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
I do not consider there are any other matters that are relevant in this case.
Conclusion as to unfairness
Having carefully considered each of the required matters, I am satisfied that the Applicant has discharged his onus of proving that his dismissal was harsh, unjust and unreasonable, and therefore unfair.
Remedy
Having found that the Applicant’s dismissal was unfair, it is necessary to consider what, if any, remedy should be granted to him. The Applicant seeks the remedy of compensation.
Under section 390(3) of the Act, I must not order the payment of compensation unless:
a.I am satisfied that reinstatement is inappropriate; and
b.I consider an order for payment of compensation is appropriate in all the circumstances of the case.
In this case, I am satisfied that reinstatement is inappropriate, and an order for payment of compensation is appropriate.
The Applicant submitted that had he not been dismissed, he would have continued to earn $1315.36 per week gross. Instead, he earned $10,186.80 in total from the date of dismissal to the date of this hearing, being a period of 20 weeks.
Given his efforts to mitigate his loss, he submitted that the Commission should award him compensation for his lost income from the date of his dismissal to the date of hearing. This amounts to $16,120.40 gross.
In considering whether this is appropriate compensation, I must consider the factors which are set out in s.392(2) of the Act and which are set out below.
Remuneration received, or likely to be received (s392(2)(c))
In terms of the remuneration received, or likely to be received (s392(2)(c)), I consider it unlikely that the Applicant’s employment would have continued for a lengthy time. Had his employment continued and a proper process of warning for unsatisfactory performance taken place and no improvement was made, then his employment would have ended within 4 weeks. Likewise, if it were the case that the Respondent could no longer afford to employ the Applicant, as he was told at the time of his dismissal, then his employment would not have likely continued beyond 4 weeks.
Remuneration earned and income likely to be earned (s392(2)(e) and (f))
The Applicant gave evidence of the remuneration he had received from the date of his dismissal to the date of the hearing which is set out above.
Length of service (s392(b))
The Applicant was employed for a relatively short period of time, which supports a lesser amount of compensation.
Viability (s392(a))
In terms of viability (s392(a)), there is no evidence before the Commission as to the effect of an order for compensation might have on the viability of the Respondent.
Mitigation efforts (s392(d))
The Applicant obtained other part time employment and commenced on 18 February 2024, around one month after his dismissal. I am satisfied that he took appropriate steps to mitigate his loss.
Other relevant matters (s392(g))
In terms of other relevant matters (s392(g)), there are no other matters relevant to this consideration. Specifically, I do not consider it necessary to discount or increase the amount for ‘contingencies’.
Shock, distress etc (s392(4))
The amount of compensation does not include a component for shock, humiliation or distress.
Conclusion
Having considered each of these factors, I am satisfied that it is appropriate to order a remedy of compensation in the amount of four weeks’ pay, that being $5,261.44 gross.
An order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
P Smith of Legal Aid ACT for Muhammad Mustafa.
B Harrison for Core Service Holdings Pty Ltd.
Hearing details:
2024.
By telephone:
June 4.
[1] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.
[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[4] Ibid.
[5] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[6] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
[7] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[8] Previsic v Australian Quarantine Inspection Services Print Q3730.
[9] (2000) 98 IR 137.
[10] Ibid at 151.
[11] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[12] RMIT v Asher (2010) 194 IR 1, 14-15.
[13] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].
[14] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
Printed by authority of the Commonwealth Government Printer
<PR775632>
0
0
0