Mustafa (Mushy) Mirzadeh v NCR Australia Pty Limited T/A NCR Corporation

[2015] FWC 573

[2015] FWC 573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mustafa (Mushy) Mirzadeh
v
NCR Australia Pty Limited T/A NCR Corporation
(U2014/11977)

COMMISSIONER ROBERTS SYDNEY, 25 MARCH 2015

Application for relief from unfair dismissal - alleged serious misconduct - absence from work without approval.

[1] This decision concerns an application lodged on 25 August 2014 by Mr Mirzadeh pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by NCR Australia Pty Limited T/A NCR Corporation (NCR or the Company). The matter was the subject of unsuccessful conciliation by a Fair Work Commission Conciliator on 25 September 2014. The matter was then set down for arbitration before me in Sydney on 9 December 2014. An order for production hearing was held on 28 January 2015. Further hearings were held on 3 and 13 February 2015.

[2] Directions were issued on 24 October 2014 for the filing of written submissions, witness statements and any supporting documents. That process was completed on or about 1 December 2014.

Background

[3] Mr Mirzadeh commenced employment with NCR in the position of Customer Engineer in the Services Division on or about 2 January 2013. He was dismissed by the Company on 6 August 2014 for alleged serious misconduct for taking a period of unauthorised leave. Mr Mirzadeh was employed pursuant to the NCR Australia Field Service Enterprise Agreement 2010 (the Agreement).

[4] In its form F3 (Employer Response to Unfair Dismissal Application), the Company set out the following reasons for dismissing Mr Mirzadeh:

“a) refusal to follow a reasonable and lawful direction to attend work (and subsequent period of unauthorised absence for the period 1 July 2014 to 12 July 2014);

b) refusal to respond to communications from the Respondent; and

c) manner of communicating with colleagues in relation to a rejected application for annual leave.”

[5] In his form F2 (Unfair Dismissal Application), the Applicant gave the following reasons as to why he believes his dismissal to be unfair:

“1. The reason it was unfair because I was subject to bullying, harassment at NCR causing me stress and anxiety and mental health issues for which I was receiving treatment at the relevant times.

2. I was not giving [sic] a real chance and fair opportunity to present my case as NCR had already made up its mind and not under [sic] carrying out a genuine process involved in the termination.

3. I had responded to NCR letters with respect to returning to work pointing out the failure to provide me an opportunity to finalize ethics and compliance matters, also seek advice.”

[6] Mr Mirzadeh seeks relief in the form of reinstatement and compensation for lost wages.

Evidence

Mr Mirzadeh

[7] Mr Mirzadeh gave sworn evidence and adopted a witness statement 1. In his witness statement, Mr Mirzadeh dealt, in considerable detail, with allegations that he had been bullied and harassed during the time he worked for NCR. Specifically, he drew attention to an abusive phone call he received from another employee on 24 May 2014, which was followed up by an offensive email from the same employee later that day. That email was sent to all of the Applicant’s team members. He lodged a complaint with Mr Sharan in relation to the phone call and email which he copied to all team members. Mr Mirzadeh believes that Mr Sharan’s initial response, to the effect that he may have brought the situation on himself, was unacceptable and compounded the harm done to him. Mr Sharan went on to demand that Mr Mirzadeh not send emails of complaint to all team members. He was later threatened by Mr Sharan with the issuing of a formal warning in that regard.

[8] Mr Mirzadeh went on to say that he suffered considerable stress related to the bullying and harassment. He had given lengthy notice to Mr Sharan that he wished to take leave during all of July 2014 but was not able to log in to the computer system on a regular basis for a several months. Mr Mirzadeh claims that Mr Sharan was aware of his psychological issues and that July was the holy month of Ramadan for Muslims, during which he was required to fast during the day and pray at night.

[9] Mr Mirzadeh formally lodged his leave application for the period 1 July to 2 August 2014 on 23 June 2014. This was refused by Mr Sharan for the period 1 to 12 July 2014 on the grounds of workload during that period and the absence on pre-approved leave of another employee.

[10] On 24 June 2014, Mr Mirzadeh emailed Mr Sharan and Ms Kucelj saying that his leave request was “not negotiable or changeable. You might need to use other alternatives. Saying above, I would not be able to attend any service during July.”

[11] Mr Sharan responded to Mr Mirzadeh’s email of 24 June 2014 on the same day. In that email, he repeated that he could not approve the first two weeks of the requested leave period, denied having any conversation prior to 23 June relating to Mr Mirzadeh taking leave and stated that if Mr Mirzadeh could come to an arrangement with the other employee who had been approved for leave, then Mr Sharan would change the roster. Mr Sharan closed by saying: “Please be advised you are required to work from the 1st to the 12th July 2014 unless otherwise agreed.” Mr Mirzadeh replied on the same day stating that he intended to take the leave which he had requested, for religious reasons.

[12] Mr Mirzadeh’s witness statement closed in the following terms:

“I clearly explained all and still Anil [Sharan] ignored till I decided to bluff him and HR by saying that I am resigning.
HR contacted me on the phone and I mentioned to Kathryn [Kucelj] (HR Manager) that I am resigning if my leave not get approved.
She directed me to send request to Anil Sharan in regards to resignation, so I send two emails one to Anil and another one to my team to make it totally normal.
Then Anil called me to see when I want to resign, I replied 1st July the exact date he previously rejected my entitled leave,
He accepted on spot and aid he will send me an email with all documentation I have to submit with my resignation, He was very happy I am resigning also he pre typed my forms or it had been prepared even earlier with my name and details on it and emailed me.
Then it was clear that his excuse of other CE [Customer Engineer] is taking leave at same time etc are just continues of his harassments to me and no genuine company related reason was behind leave rejection except giving me hard time.
I took my leave and HR sent 2 notice that I replied to both and then received dismissal letter.”

[13] In cross-examination, Mr Mirzadeh repeated his evidence that Mr Sharan had approved him taking leave during a verbal conversation in May 2014. 2 Mr Mirzadeh was then asked about his email to Ms Kucelj on 27 June 20143 in which he said: “I will not be attending as decided to resign. Already informed HR.” Mr Mirzadeh said that his email was intended as ‘a bluff’. Mr Mirzadeh went on to agree that he had no intention of resigning from his employment. He said that his statement about resignation was meant to bring to a head the finalisation of his bullying and harassment complaint.

[14] The cross-examination of Mr Mirzadeh went on at considerable length in relation to correspondence between him and the Company from 27 June 2014 onwards. I have paid regard to that material. Further cross-examination concerned the issues of alleged bullying and harassment and Mr Mirzadeh’s levels of psychological stress. Again, I have paid regard to that material. In brief, Mr Mirzadeh maintained his earlier evidence, including his assertion that the taking of leave at a time convenient to him was an entitlement 4 and that he required leave because of pressures on him but went on to say that he was not ill.5

[15] Further cross-examination of Mr Mirzadeh concerned matters related to mitigation of his loss. Given my ultimate decision in this matter, I will not deal with that material.

Kathryn Kucelj

[16] Ms Kucelj gave sworn evidence and adopted a witness statement 6. In her statement, Ms Kucelj said that she is the Human Resources Manager of NCR and has held that position since August 2005. She is “responsible for managing HR matters in relation to the employees, supporting all Divisions for the South Pacific Area in all aspects of Human Resources.”

[17] Ms Kucelj went on to say that NCR’s business “involves selling and assisting with assisted and self-service solutions, serving businesses with our products and services including ATMs, Retail and Restaurant Point of Sales (POS hardware and software) and Airport Self-Service Kiosks.” Mr Mirzadeh’s duties “involved providing installation, maintenance and repairs on equipment within an assigned territory or region to assure continuity of customer operations and high levels of customer satisfaction.”

[18] Ms Kucelj went on to detail the Company’s leave approval system which requires employees to enter a leave request into the Company’s web-based payroll system. That request is then automatically routed to the employee’s workflow manager, in this case Mr Sharan. The workflow manager then considers the request and accepts or rejects it. The employee then receives an email notice to the relevant effect. In Mr Mirzadeh’s case, he applied for leave in late June 2014 for the period 1 July to 2 August 2014. The request was only granted in part by Mr Sharan for the period 15 July to 2 August 2014 on the ground that another employee would be on approved annual leave from 1 to 12 July 2014. On 24 June 2014, Mr Mirzadeh emailed Mr Sharan and Ms Kucelj in the following terms 7:

“Hi
1th of July is starting of Holy moths of Ramadhan and last for 30 days. That we do religious pray over every nights and fast. During days for whole month, If you recall last month discussed it with you but as you also aware had general logging issues With ADP, And request sent last week Thursday.
Leave requested are from my available leave balance and not requested to be favoured or such upfront leave request.

Regarding importance of this months for us Muslims. I have planned my hours from last year to have sufficient hours available. And unfortunately is not negotiable or changeable.
You might need to use other alternatives. Saying above, I would not be able to attend my service during July.
Thanks
Mushy”

[19] In subsequent email correspondence, Mr Mirzadeh continued to dispute the non-granting in full of his leave request. On or about 27 June 2014, Ms Kucelj had a discussion with the Applicant to the following effect.

“Kathryn Kucelj: ‘As you are aware, Anil [Sharan] has already declined your request for annual leave from 1 July to 12 July. This means you are required to turn up for work on those days.’

Mushy Mirzadeh: ‘Well if my leave is not approved then I am going to resign. Can you please tell Anil that I am going to resign. I will put this in writing when I go home today.’”

[20] On 27 June 2014, Mr Mirzadeh sent an email to all members in his team saying that he has decided to resign from the Company 8. The Applicant sent a further email on 27 June 2014 to Mr Sharan9 advising that he would be proceeding on leave but would remain in the Company’s employ.

[21] Mr Mirzadeh did not present for work as rostered on 1 July 2014 and on that day Ms Kucelj wrote to him in the following terms 10:

“Dear Mushy,

I refer to our discussion on Friday 27 June 2014 where we discussed the issue of your annual leave application being declined by your manager, Anil Sharan. During this discussion, you advised if you were not granted annual leave from 1 July 2014 to 12 July 2014, you would resign from NCR Australia Pty Limited.

At the end of this conversation you asked me to advise Anil of your intention to resign and that you would follow this up with your written resignation when you went home for the day.

To date NCR have not received a written resignation from you. We have only received the following emails from you:

• An email to fellow CE’s and Anil on 27 June 2014 at 2.43 pm, advising you would not be attending an Enterprise Agreement Representative meeting as you had ‘decided to resign and you had already informed HR’.



• An email to Mukherjee Kamalendu at 4.26 pm on 27 June 2014 stating:

‘I am resigning and tomorrow Saturday will be my last day at work.

Please finalise a list of parts in my hand and send me the return documentation for all my inventory.’

• An email to Anil Sharan at 7.58 pm on 27 June 2014 which was unclear as to your intentions. Specifically you ended this email with the statement:

‘I would like to advise at this stage I carry on with my leave from 1st of July and then after meeting with higher managements which are on the way to report my experiences will provide you exact desire date of transfer or resignation.’

You have failed to present for work today and have not advised NCR as to your whereabouts.

At this point, it is not clear whether:

a) you consider your verbal resignation as all that is required and you have resigned from NCR with effect from 1 July 2014 as indicated in your conversation with Anil on Friday 27 June 2014, or

b) you have decided not to resign and instead have deliberately taken unauthorised leave from 1 July 2014 to 12 July 2014.

I therefore ask that you please either:

a) confirm you have resigned and the effective date of your resignation; or

b) provide an explanation as to why you have not presented for work today.

If you have not presented to work because you have deliberately taken unauthorized leave after your annual leave request was declined, please provide any comments as to why your employment with NCR Australia Pty Limited should not be terminated.

Please respond in writing to me before the close of business Wednesday 2 July 2014.

Kathryn Kucelj
Human Resources
NCR South Pacific”

[22] Mr Mirzadeh responded to Ms Kucelj’s letter of 1 July 2014 by way of an email dated the same day, stating that his solicitor would be in contact with the Company 11. There was no further contact from Mr Mirzadeh or his representative from 2 July to 13 July 2014.

[23] On 10 July 2014, Ms Kucelj wrote to Mr Mirzadeh in the following terms 12:

“Dear Mushy

We refer to your ongoing, unauthorised absence from your employment with NCR Australia Pty Ltd (NCR). It is NCR’s view that your conduct over the last 2 or so weeks has been entirely unacceptable and is grounds for the summary dismissal. The purpose of this letter is to again set out the basis for NCR’s concern and to give you a final opportunity to show cause as to why your employment should not be terminated.

While the events leading up to this letter should be well known by you, the following chronology is relevant for present purposes:

(a) On 19 June 2014, you submitted a leave request for the period 1 July to 2 August 2014.

(b) On 23 June 2014, you were informed by your manager, Anil Sharan, that your leave for the period 1 July to 12 July was not approved.

(c) On 23, 24 and 25 June 2014, Mr Sharan advised you that you were required for work from 1 July to 12 July.

(d) On 27 June 2014, you had a conversation with me regarding your request for leave for the periods 1 to 5 July and 8 to 12 July 2014. In that conversation, you stated that you would take leave for these periods, whether or not such leave was approved. You also stated that you would resign from NCR if you were not permitted by NCR to take the leave.

(e) On 27 June 2014, you sent emails to colleagues at 2:43pm and 4:26pm to advise of your resignation.

(f) On 27 June 2014, you had a conversation with Mr Sharan where you advised Mr Sharan that you had resigned and that your last day of work would be 1 July 2014.

(g) On 27 June 2014, you sent an email to Mr Sharan at 7:58pm to communicate an intention to go on annual leave from 1 July 2014 and stated that, following the period of leave, you would confirm ‘an exact desire date of transfer or resignation’.

(h) On 1 July 2014, you did not present for work and to date, remain on a period of unauthorised absence.

(i) On 1 July 2014, NCR wrote to you and directed you to confirm whether you had resigned or, if you had not resigned, why you did not present for work on that day.

(j) On 1 July 2014, at 4:48pm, you emailed me to state that you [sic] solicitor would be in contact with you. This appears to be in response to my letter and email to you of the same date.

Our letter to you dated 1 July 2014, in which you were directed to provide an explanation for your absence from the workplace, has not been adequately responded to by you. Further, NCR has received no further correspondence from you or from your lawyer.

Numerous aspects of your conduct to date have been entirely unacceptable, including:

(a) your refusal to follow the direction to attend work (and subsequent ongoing period of unauthorised absence);

(b) your refusal to respond to communications from your employer;

(c) your failure to cause your lawyer to respond to communications on your behalf, despite assurances that this would occur;

(d) your manner of communicating with your superiors in response to your rejected leave application; and

(e) the fact that you only applied for leave some 2 weeks before the proposed commencement date in circumstances where you sought to take a substantial period of time (notwithstanding that you may have had technical/computer issues with applying for leave).

In light of the above, NCR is providing you with a final opportunity to answer the following questions:

(a) please confirm whether you have resigned and, if so, the date of your resignation;

(b) if you have not resigned, please provide an explanation as to why you have not presented for work since 1 July 2014; and

(c) please provide an explanation as to why you or your lawyers have not responded to NCR’s letter to you dated 1 July 2014.

Mushy, the implications of your conduct are serious and at this stage, NCR is proposing to terminate your employment. It is therefore vital that you respond to this letter. While nothing in any response you give can guarantee the safety of your employment, please note that if you do not respond to this letter by 4:00pm on Monday 14 July 2014, NCR wil terminate your employment without further notice to you.

If you have any questions about this letter, please contact me immediately.

Sincerely,

Kathryn Kucelj
Human Resources Manager
NCR Australia Pty Limited”

[24] On 14 July 2014, Mr Mirzadeh emailed Ms Kucelj 13 in the following terms:

“Dear Kathryn

I am giving you very short response in this email.

1. Unfortunately points in your attached email is only small section of whole story, you are very well aware of it but decided to cover up feel free to do so.

2. No I am not resigned but from tomorrow my second part of leave starts and finishes early August.

3. You are hiding very important matter that even in my previous email mentioned it to you after verbally advise. I even forwarded leave request email to you but for some reason you are forgetting it. On Friday 27th of June I sent another request of leave for this period and FSM failed to act either reject or approve. I have taken it as YES.

4. My solicitor working on case but at this stage he is not in Australia. And by the way my solicitor matter has nothing to do with my leave. He is working on harassment and abuse at work place that till now you failed to resolve it and matter getting bigger and bigger.

5. Please tell me why should not take legal action against NCR.

6. Other reasons to be forwarded by my solicitor after receiving complete report of E&C matter. On the phone you advised me that E&C matter is finalised but you failed to send me a copy.

7. Unfortunately you failed to resolve important ongoing harassment and abuse happened under your nose.

8. As you are aware my second section of leave starts from tomorrow and end early August and I would not be available to response important matter in 48 hours time frame you choose. But happy to receive your report ASAP.

Please accept my apologies for 22 minutes delay of response Deadline initiated by you,
Regards
Mushy”

[25] On or about 28 July 2014, Ms Kucelj sent a further letter to the Applicant setting out a chronology of events and advising Mr Mirzadeh that NCR was proposing to terminate his employment and asking for his response regarding his alleged absence from duty without permission 14.

[26] Around 5 August 2014, Ms Kucelj received a letter from Mr Mirzadeh 15 concerning a bullying and harassment investigation, the lack of an employee assistance program, alleging that his absence from work between 1 and 12 July 2014 was an entitlement due to his feelings of having been stressed, abused and harassed by Mr Sharan and another staff member and stating that the resignation he tendered earlier was meant as a test to see if the Respondent would resolve his bullying complaint in a fair manner.

[27] On 6 August 2014, Ms Kucelj wrote to Mr Mirzadeh stating that his response to the letter of 28 July 2014, which invited him to show cause as to why his employment should not be terminated, was unsatisfactory and that NCR had decided to terminate his employment with effect from 6 August 2014. Ms Kucelj’s letter went on to say that the Company viewed Mr Mirzadeh’s behaviour as constituting serious misconduct justifying summary dismissal but had elected to pay him a period of notice.

[28] Ms Kucelj’s written statement went on to deal with a bullying and harassment complaint made by Mr Mirzadeh in May 2014. Her statement sets out the investigative process undertaken by NCR which resulted in another employee being given a written warning and being required to complete the NCR Code of Conduct Training again and to familiarise himself with the policy of NCR’s Information Technology Infrastructure specifically around email usage. Mr Mirzadeh and Mr Sharan were counselled about their respective roles. Mr Mirzadeh was told of the results of Ms Kucelj’s investigation on 27 June 2014.

[29] The complaint made by Mr Mirzadeh “had no bearing on the decision to terminate his employment with the Respondent”.

[30] In cross-examination, Ms Kucelj:

● Said that she first became aware of allegations of bullying and harassment of Mr Mirzadeh on 28 May 2014 and agreed that she met Mr Mirzadeh on 6 June 2014 to discuss the allegations which the Company had instructed her to investigate.
● Agreed that NCR has a zero tolerance policy towards bullying and harassment.
● Said that the bullying and harassment allegations, investigation and outcome were completely separate to issues surrounding the Applicant’s request for annual leave.
● Said that she recommended that Mr Mirzadeh’s employment be terminated “after I sent you numerous letters to which you did not respond or provide answers to the questions that were asked.”
● Said that the decision to terminate Mr Mirzadeh’s employment was finally made on 5 or 6 August 2014.
● Said that she relied on Mr Sharan’s assessment of his inability to approve leave for Mr Mirzadeh between 1 and 12 July 2014 and did not make an independent assessment.
● Said that she knew Mr Mirzadeh was not at work on 1 July 2014 because Mr Sharan had advised her.
● Agreed that NCR preferred its employees to take their accrued annual leave.
● Said that she was unaware of the Applicant’s leave balance as she did not have access to it on her computer.
● Said that ultimately it was up to Mr Sharan to approve Mr Mirzadeh’s leave or not.
● Said that she “asked him [Mr Sharan] why he refused the leave and he explained to me the reason was because somebody else was on leave and I asked is there any other way we could cover, or words to that effect, I don’t know if it’s exactly those words, but is there any other way to cover that period. He said no so I have to take it on his decision that he’s going to have a coverage issue so there’s nothing for me to advise. It was he [who] declined the leave because he didn’t have the coverage.” 16
● Said that on 20 June 2014 she submitted her report on the alleged bullying and harassment of the Applicant but did not supply a copy to Mr Mirzadeh “because there could be sensitive information in there from other parties involved. So I do not supply a copy of the report to each individual that is involved in the allegations or the investigation. I submit my recommendations and a detailed report to the ethics and compliance. I wait for their approval and then I would take those recommendations and act on those; which is what I did.” 17

Anil Sharan

[31] Mr Sharan gave sworn evidence and adopted a witness statement 18. In his statement, Mr Sharan said that he is the Field Services Manager of the Sydney Retail Team division of NCR Australia, of which Mr Mirzadeh was a member, and has held that position since March 2010. He is responsible for managing the Customer Engineers “who go out on site to work on maintenance and installation jobs for the Respondent’s clients. Generally our clients are large retailers.” He is also responsible for managing the rostering of Customer Engineers and leave requests for his team.

[32] Mr Sharan’s evidence went on to deal with the May 2014 bullying and harassment complaint by Mr Mirzadeh in some considerable detail.

[33] On 24 May 2014, Mr Mirzadeh sent an email to numerous Customer Engineers and other persons, including Mr Sharan. The email concerned work that had been assigned to Mr Mirzadeh by Mr Sharan and made a complaint regarding the quality of work previously carried out by another employee at the same locations. Mr Mirzadeh’s email did not name the other employee but Mr Sharan deduced who the Applicant was referring to. On the same day, another Customer Engineer [Mr P] emailed team members and others, including Mr Sharan, effectively supporting Mr Mirzadeh’s complaint about the workmanship of a fellow employee.

[34] The employee who believed he was the subject of Mr Mirzadeh’s complaint [Mr K] about alleged poor workmanship then allegedly telephoned Mr Mirzadeh calling him a ‘dick’ and swearing at him. Mr Mirzadeh reported this to Mr Sharan asking him to “take required action”. This was followed by an email from Mr K to Mr Mirzadeh in the following terms:

“Why are you guys such a pack of whining girls??? FIRSTLY!!! Muchy you know I went to those sites yesterday and I briefed you and informed the customer into the circumstance and they were fine with it..so why are you beating your chest and grand standing about it??? Secondly!!! [Mr P] … 2 of those jobs I attended yesterday were your reworks.. but I guest practicing what you preach is much harder than being a Proper CE (what ever that mean?).. Please, give me a break!!!” 19

[35] Mr Sharan then sent the following email to his team members:

“Team,
If there is an issue you need to discuss then please come to me directly, don’t take it upon yourselves to send an email to the entire group.
Mushy and [Mr P], this is unacceptable and should it happen again there will be consequences. [Mr K], I understand why you have responded but please next time speak to me first and let me deal with the problem.
Anil” 20

[36] Later on 24 May 2014, Mr K sent the following email to Mr Sharan:

“Anil,
I should have known better and I apologise - I was infuriated and reacted in heat of the moment, I read his email and was taken aback, shocked at which he publicly did what he did? It’s not like he and I are feuding so why would he shit stir? And yes, I did give he a spraying with great regrets. BTW..All his claim are unsubstantiated, but it doesn’t matter to me now.
Kind regards,
[name redacted]”

[37] In a further email to all team members, including Mr Sharan, Mr Mirzadeh asked for a general meeting of Customer Engineers together with a ‘voice record’ of the offensive phone call made to him. Mr Sharan responded by saying: “You might want to ask yourself if you deserved it. No more emails please.” 21 Mr Mirzadeh continued to send broadcast emails and was then warned by Mr Sharan in the following terms: “Mushy, I told you not to send another email in regards to this matter or there would be consequences for you. I will talk to you next week for a first and final warning.”22

[38] The matter of the alleged bullying of Mr Mirzadeh by Mr K then apparently moved to an investigation conducted by Ms Kucelj.

[39] The witness statement went on to deal with Mr Mirzadeh’s alleged absence without permission between 1 and 12 July 2014. He said that Mr Mirzadeh only applied for leave some seven days prior to its proposed commencement and, as another employee had been approved for leave during the period 1 to 12 July 2014, this “made it impossible to find an alternative staffing solution to cover the absence”. Mr Sharan went on to say that he tried unsuccessfully on several occasions to contact the Applicant regarding the leave application rejection and then sent an email on or about 23 June 2014 telling Mr Mirzadeh that his leave would only be approved for the period 15 July 2014 to 2 August 2014. Further email correspondence between him and Mr Mirzadeh ensued. On 27 June 2014 the Applicant lodged a further leave request for the period 1 to 12 July 2014.

[40] “I do not recall having any discussion with the Applicant about his annual leave application during May 2014. If we had discussed it, I would have directed the Applicant to put his annual leave request into the ADP system, or if he was having problems with the ADP system I would have noted his request and spoken to our HR department about it.”

[41] Mr Sharan said that he also received an email from Mr Mirzadeh on 27 June 2014 saying that the Applicant was resigning from his employment. He then asked Mr Mirzadeh to delay his resignation for some three days “as no one would be available to collect the company assets”. Also on 27 June 2014 “the Applicant sent me an email saying that he was not resigning and was going on his planned leave”.

[42] In cross-examination, Mr Sharan was firstly questioned extensively about the work practices of Customer Engineers and a number of complaints that Mr Mirzadeh had in relation to such matters as meal breaks and overtime. I have paid regard to that material.

[43] Mr Sharan maintained his evidence that the prior granting of leave to another employee for the period 1 to 12 July 2014 and workload issues meant that he was unable to approve Mr Mirzadeh’s application for leave for the same period. Mr Sharan strongly denied that the refusal of part of Mr Mirzadeh’s leave application arose from events concerning or arising from the bullying and harassment allegations made by Mr Mirzadeh. Mr Sharan conceded that he could have better handled his initial response to Mr Mirzadeh’s bullying complaint.

Written outlines of argument

[44] Mr Mirzadeh relied on his witness statement to also form his written submissions. NCR filed a written outline of submissions. 23

[45] NCR’s submissions argued that:

“there was a valid and reasonable basis for terminating the Applicant's employment related to his serious misconduct which included the following:
(i) the Applicant’s dishonesty in his dealings with the Respondent in communicating different explanations for his unauthorised absence which were not genuine or truthful;
(ii) the Applicant stating that he would absent himself from the workplace during 1-12 July 2014,despite being given express direction to not do so;
(iii) the Applicant's unauthorised absence during 1-12 July 2014;
(iv) the Applicant resigning and then admitting after the fact that he did so to ‘test’ or ‘bluff’ the Respondent; and
(v) the Applicant repeatedly refused the Respondent's directive to return to work or provide a genuine explanation for his absence;”

[46] NCR went on to argue that it acted reasonably in relation to the Applicant’s request for leave. NCR said that the short notice given by Mr Mirzadeh and the fact that another employee had leave approved for the period 1 to 12 July 2014 meant that the Company was unable to accommodate Mr Mirzadeh’s request to take all of July off. The Company had genuine operational reasons for refusing the first half of the leave request and “despite the short notice for a significant period of leave, the Respondent did approve the Applicant’s annual leave from 12 July onwards until 2 August 2014.”

[47] In relation to the bullying complaint and subsequent investigation, NCR said that the complaint was properly investigated and it did not have any bearing on the termination of Mr Mirzadeh’s employment.

[48] NCR’s submissions went on to deal with the requirements of s.387 of the Act and I have paid regard to that section of the submissions.

Oral submissions

[49] Both sides made oral submissions after witness evidence had been completed. I have paid regard to those submissions but will not detail them further here as they largely re-work issues that are sufficiently dealt with elsewhere in this decision.

Conclusions and Findings

[50] Despite taking a tortuous path over three hearing days, the factual matrix of this case is not complicated. Mr Mirzadeh apparently believes that he had an unfettered right to take annual leave at a time of his choice once that leave had accrued and he provided advice of his intention to NCR. Mr Mirzadeh appears to have believed that the lodging of a leave request was more in the nature of a notification to the employer of his intentions rather than the making of a request which may be declined. Mr Mirzadeh further believes that his action in taking the leave, despite the refusal of Mr Sharan to approve it, was justified as he was ‘stressed’ and had made his plans for Ramadan. He submits that the subsequent termination of his employment by NCR was harsh, unjust and unreasonable. Despite initially resigning, the Applicant does not appear to have intended that the employment relationship end. It is to NCR’s credit that Ms Kucelj did not take the resignation at face value.

[51] Section 385 of the Act provides:

“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.”

[52] As the Applicant’s conduct in relation to taking unauthorised leave was the reason for the termination of his employment, I have to determine for myself whether the impugned conduct occurred and, if so, its nature and then, depending on the outcome of my determination of the earlier matters, whether any such conduct amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 24:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[53] In Container Terminals Australia Limited v Toby 25, a Full Bench said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”26

[54] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 27 said:

“In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ….”

[55] In Qantas Airways Ltd v Cornwall 28, the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[56] In Edwards v Justice Giudice 29, Moore J said:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”

[57] Mr Mirzadeh’s employment was terminated on 6 August 2014 at the initiative of NCR.

[58] After a thorough review of the transcript, witness statements, oral evidence and materials available to me, I find that Mr Mirzadeh’s action in absenting himself from the workplace from 1 to 12 July 2014 amounted to misconduct. Mr Sharan’s refusal of the Applicant’s leave application was lawful within the terms of the Agreement 30 and reasonable in all the circumstances applying at NCR at the relevant time. In saying this, I have some sympathy for Mr Mirzadeh’s situation and the distress which NCR’s refusal of leave caused him. The Applicant admitted in a discussion with me31 that it is not a religious obligation on persons of the Muslim faith to not work during Ramadan. The period 1 to 12 July 2014 was also coincidentally school holidays in NSW. There was also no basis for Mr Sharan to intuit that Mr Mirzadeh was feeling stressed and therefore needed to take leave.

[59] Where there is conflict between the evidence of Mr Mirzadeh and that of Ms Kucelj and Mr Sharan, I prefer the evidence of Ms Kucelj and Mr Sharan. I particularly prefer Ms Kucelj’s evidence concerning her investigation of the bullying complaint and that of Mr Sharan as to his reasons for refusing to grant leave to Mr Mirzadeh during the period 1 to 12 July 2014. Accordingly, I find that there was a valid reason for the termination of Mr Mirzadeh’s employment based on misconduct.

[60] In reaching my decision as to valid reason, I have been conscious of the decision by the Full Bench in Spillard v Patrick Stevedores Holdings 32. In that decision, the Bench said: “… a finder of fact needs to have regard to all of the evidence to ascertain whether inferences can be drawn to lead to a conclusion of probability.”33

Harsh, unjust or unreasonable?

[61] I now turn to the question of whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act sets out the criteria for considering harshness etc. It provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[62] In Byrne v Australian Airlines 34, McHugh and Gummow JJ of the High Court said:

“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.”

[63] In Parmalat Food Products Pty Ltd v Wililo 35, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 36

[64] In Miller v University of New South Wales 37, the Full Bench held:

“The entire relevant factual matrix must be considered in determining whether an employee’s termination is for a valid reason: Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413. In Izdes Beazley J said:

‘In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct.’ (61 IR 439 at 451)

In considering the validity of the reason, “it is not the court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct”: see Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685.” 38

[65] The question of valid reason is dealt with above.

[66] It is clear from the documentary evidence before me that Mr Mirzadeh was notified of the reason for the termination of his employment by way of Ms Kucelj’s letter of 6 August 2014 and I so find. It is further clear and I find that Mr Mirzadeh was given a fair opportunity to respond to the allegations against him before a decision was made to terminate his employment. Circumstances prevented a face to face meeting between the Company and Mr Mirzadeh and therefore the issue of the presence of a support person did not arise. I believe that had any face to face meeting been held, the outcome for Mr Mirzadeh’s employment would have been the same.

[67] No allegations relating to Mr Mirzadeh’s work performance were raised against him.

[68] The size of the employer enterprise is a factor which is likely to have impacted on the procedure followed in effecting the applicant’s dismissal. On what is before me, I conclude that the size of NCR’s operations and its access to professional advice, both internal and external, led it to conduct a procedurally fair process leading up to the dismissal and I so find.

[69] I have also taken into consideration the length of Mr Mirzadeh’s service and the economic and personal effects of the termination of employment on him.

[70] All in all, I find that the termination of Mr Mirzadeh’s employment was not harsh, unjust or unreasonable. Mr Mirzadeh embarked on a course of conduct from 1 to 12 July 2014 that led to him being dismissed. Mr Mirzadeh was determined to take leave at a time convenient to him and erroneously believed that he had every right to do so when he did not. He was not dismissed due to Mr Sharan holding a grudge against him even though Mr Sharan may well have been happy to see Mr Mirzadeh go. The bullying complaint made by the Applicant on 24 May 2014 is the key to understanding this application. Mr Mirzadeh remains deeply aggrieved about what occurred on that day and this has coloured all of his subsequent dealings with his former employer. On what is before me, I am fully satisfied that the Company, despite Mr Sharan’s initial unfortunate response, did everything to conduct a fair investigation which resulted in a fair outcome. My view is strengthened by the fact that the formal warning issued to Mr K occurred on or about 14 August 2014, being some eight days after Mr Mirzadeh’s dismissal. This indicates to me that the Company viewed the incident seriously.

[71] Mr Mirzadeh’s application for relief is therefore dismissed.

[72] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[73] An order reflecting this decision is in PR560352.

COMMISSIONER

Appearances:

M Mirzadeh, the Applicant.

J Murphy and Z Jenkins for NCR Australia Pty Limited T/A NCR Corporation.

Hearing details:

2014.

Sydney:

December 9.

2015.

Sydney:

January 28.

February 3, 13.

 1   Exhibit A1.

 2   Transcript PNs302-303 and following.

 3   Attachment KK10 to Exhibit R1.

 4   Transcript PN631.

 5   Transcript PNs653-655.

 6   Exhibit R1.

 7   See Attachment KK5 to Exhibit R1.

 8   See Attachment KK11 to Exhibit R1.

 9   See Attachment KK10 to Exhibit R1.

 10   See Attachment KK13 to Exhibit R1.

 11   See Attachment KK14 to Exhibit R1.

 12   See Attachment KK15 to Exhibit R1.

 13   See Attachment KK17 to Exhibit R1.

 14   See Attachment KK18 to Exhibit R1

 15   See Attachment KK19 to Exhibit R1

 16   Transcript PN1807.

 17   Transcript PN1965.

 18   Exhibit R3.

 19   Attachment AS4 to Exhibit R3.

 20   Attachment AS5 to Exhibit R3.

 21   Attachment AS8 to Exhibit R3.

 22   Attachment AS10 to Exhibit R3.

 23   Exhibit R2.

 24   Print S4213, 17 March 2000, per Ross VP, Williams SDP and Hingley C.

 25   Print S8434, 24 July 2000, per Boulton J, Marsh SDP and Jones C.

 26   Ibid at para 15.

 27 (1995) 62 IR 371 at 373.

 28 [1998] FCA 865.

 29 [1999] FCA 1836.

 30   See clause 9 of NCR Australia Field Service Enterprise Agreement 2010.

 31   Transcript PNs348, 353 and 354.

 32 (2010) 193 IR 184.

 33   Ibid at para 13. See also Nesterczuk v Mortimore, (1965) 115 CLR 140.

 34 (1995) 185 CLR 410.

 35   [2011] FWAFB 1166

 36   Ibid at para 24.

 37   PR910187, 11 October 2011, per Boulton J, Drake SDP and Larkin C.

 38   Ibid at para 75.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR560351>