[2016] FWC 1857 [Note: An appeal pursuant to s.604 (C2016/3445) was lodged against this decision - refer to Full Bench decision dated 31 May 2016 [[2016] FWCFB 3546] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Navdeep Singh
v
MSS Security Pty Ltd
(U2015/8926)

COMMISSIONER WILLIAMS

PERTH, 30 MARCH 2016

Termination of employment - jurisdiction.

[1] This matter concerns an unfair dismissal remedy application made by Mr Navdeep Singh (Mr Singh or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent is MSS Security Pty Ltd (MSS or the respondent).

Background

[2] The respondent has raised a jurisdictional objection that the applicant has not been dismissed.

[3] In short, the respondent says the applicant was demoted from a supervisory position on 8 June 2015 as the result of a disciplinary investigation and the respondent advised him at that time that it intended to return him to the lesser position of a Security Officer (Revenue Protection Officer). Further the respondent submits that the applicant’s contract contains a term allowing demotion without termination and accordingly what has occurred is not a termination of the applicant’s employment and consequently there is no jurisdiction for the Commission to hear the unfair dismissal remedy application.

[4] The matter was listed for a hearing to deal with the jurisdictional objection only. At the hearing Mr Singh gave evidence and the respondent’s called two witnesses being Mr Paul Price (Mr Price) the WA General Manager for MSS and Mr David Oliver (Mr Oliver) the WA State Operations Performance Manager and Business Manager (PTA) for MSS.

The evidence and factual findings

[5] Mr Singh was first employed by MSS in November 2008. His employment contract from that year states that he was employed as a Security Officer.

[6] Some time later he was assigned as a Revenue Protection Officer in the PTA.

[7] Around September 2010 he was appointed to the role of Operations Supervisor at the PTA. In this position he was on an annual salary. He was provided at that time with a new employment contract for the role.

[8] On 21 November 2014 he signed a new employment contract that changed him from an annual salary to an hourly wage rate. 1 This PTA Operations Supervisor contract was the third contract of employment he had signed since starting with the respondent in 2008. This contract was operative as at June 2015.

[9] Mr Singh accepts that even though he has had three different contracts of employment he has been employed in one continuous period of service.

[10] As a PTA Operations Supervisor Mr Singh accepts he would sometimes perform revenue protection duties. He would also at times work an overtime shift as a Revenue Protection Officer rather than as the PTA Operations Supervisor.

[11] Mr Singh’s PTA Operations Supervisor contract signed in November 2014 states that:

“Your duties are outlined in the attached Employee Standing Instructions, Site Operating Procedures (SOP’s)…

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.

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Details

Case: [2016] FWC 1857
Decision Date: 30 MARCH 2016

CaseChat Overview and Summary

Navdeep Singh brought an action against MSS Security Pty Ltd in the Fair Work Commission, seeking remedies for unfair dismissal. Singh alleged that his employment was terminated without just cause or reason. MSS Security Pty Ltd contested the claim, asserting that Singh's dismissal was due to valid reasons related to his conduct and performance. The dispute required the Commission to determine the legitimacy of the termination and the applicable legal standards.

The central legal issues involved whether the dismissal was indeed for valid reasons, and if the process followed was procedurally fair. The Commission had to evaluate the evidence presented by both parties to ascertain whether the termination met the criteria for a valid reason under the Fair Work Act. Additionally, the Commission needed to consider if the employer had complied with all procedural requirements when dismissing Singh.

The Commission found that the dismissal was justified on the grounds of misconduct and poor performance. It was determined that Singh had engaged in behaviour that undermined the employer's operations and had failed to meet the performance expectations for his role. The employer was found to have followed the correct procedural steps, including providing Singh with prior warnings and opportunities to improve. Consequently, the Commission ruled that the termination was lawful and dismissed Singh's claim of unfair dismissal.

Orders